Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Council of the Law Society of New South Wales v Chand [2024] NSWCATOD 131 Hearing dates: 29 July 2024 Date of orders: 22 August 2024 Decision date: 22 August 2024 Jurisdiction: Occupational Division Before: Armstrong J, President A Suthers, Principal Member Decision: 1. Pursuant to s 119 of the Legal Profession Uniform Law (NSW), the Respondent is disqualified indefinitely. 2. Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW), publication of evidence given in the proceedings or documents lodged with the Tribunal which identifies the persons referred to in these reasons as the Principal Solicitor, Complainant 1 and Complainant 2, is prohibited. Catchwords: OCCUPATIONS — person holding himself out as legal practitioner — person engaging in unqualified legal practice — findings that conduct constitutes grounds for indefinite disqualification on two separate grounds under s 119(2) of Legal Profession Uniform Law (NSW) — disqualification order justified — disqualification order made — non-publication orders made Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Legal Profession Uniform Admission Rules 2015 (NSW) Legal Profession Uniform General Rules 2015 (NSW) Legal Profession Uniform Law (NSW) Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 (NSW) Cases Cited: Bauskis v Liew [2013] NSWCA 297 Council of the Law Society of New South Wales v Parente [2019] NSWCA 33 Council of the Law Society of NSW v Clarke [2022] NSWCA 57 Council of the Law Society of NSW v Aslan [2019] NSWCATOD 159 Council of the Law Society of NSW v Brincat [2020] NSWCATOD 108 Council of the New South Wales Bar Association v Costigan [2013] NSWCA 407 Council of the New South Wales Bar Association v EFA (a pseudonym) (2021) 106 NSWLR 383; [2021] NSWCA 339 Council of the Law Society of New South Wales v Zhukovska (2020) 102 NSWLR 655; [2020] NSWCA 163 Gautam v Health Care Complaints Commission [2021] NSWCA 85 Prothonotary v Gregory [2017] NSWCA 101 Prothonotary of the Supreme Court of New South Wales v Thomson [2018] NSWCA 230 Texts Cited: None cited Category: Principal judgment Parties: Council of the Law Society of New South Wales (Applicant) Harry Chand (Respondent) Representation: Counsel: A McGrath (Applicant) Solicitors: Council of the Law Society of New South Wales (Applicant) File Number(s): 2023/00291550 Publication restriction: Publication of evidence given in the proceedings or documents lodged with the Tribunal which identifies the persons referred to in these reasons as the Principal Solicitor, Complainant 1 and Complainant 2, is prohibited. REASONS FOR DECISION Summary 1. On 13 September 2023, the Council of the Law Society of New South Wales (Law Society) lodged an Application in the Occupational Division of the NSW Civil and Administrative Tribunal (NCAT) seeking an indefinite disqualification order with respect to the Respondent, Harry Chand, under s 119 of the Legal Profession Uniform Law (NSW) (the Uniform Law). 2. Between 2016 and 2018, the Respondent held himself out to be an Australian legal practitioner working for, or in connection with, a law practice (the Law Practice) in suburban Sydney when he was not an Australian legal practitioner, and engaged in unqualified legal practice by accepting legal instructions from and giving legal advice to two complainants in relation to their respective wills and estates matters. The Respondent also engaged in dishonest acts in relation to his handling of their matters, including by lying to them, creating false documents and forging signatures, and misappropriation of settlement monies of one of the complainants. 3. For the reasons that follow, we have decided to make an indefinite disqualification order under s 119 of the Uniform Law with respect to the Respondent. 4. We will make orders under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) in relation to the principal solicitor of the Law Practice, and the two complainants, identified in the Application. In these reasons, we will refer to that principal solicitor as the "Principal Solicitor" or "Principal", and to the respective complainants as "Complainant 1" and "Complainant 2". The Law Society's Application 1. The Law Society applies for an order under s 119 of the Uniform Law that Harry (or Harold or Hal) Chand (also known as Moon or Manik) be disqualified indefinitely; for anonymisation or non-disclosure orders under s 64 of the NCAT Act in relation to the Principal Solicitor and the Law Practice identified in the Application; and such other orders as the Tribunal deems fit. 2. The Grounds for the Application are: 1. The Respondent is not a fit and proper person to be employed or paid in connection with the practice of law or to be involved in the management of a law practice pursuant to s 119(2)(b) of the Uniform Law, and/or 2. The Respondent is guilty of conduct that, if the person were an Australian legal practitioner, would have constituted unsatisfactory professional conduct or professional misconduct pursuant to s 119(2)(d) of the Uniform Law. 1. The Particulars to the Grounds (numbering 4 to 55) are set out in the Application. Hearing of the Application and brief procedural history 1. The Respondent did not appear at the hearing of the Application on 29 July 2024, nor did he attend any of the directions hearings (in person or by telephone or audiovisual link) prior to the hearing date. He did not lodge a Reply or any evidence in response to the Law Society's Application. The Tribunal made various orders for substituted or informal service. Mr Clifford Flax of the Law Society tendered affidavits sworn 2 April 2024 and 12 June 2024 deposing to the steps taken by the Law Society to effect service of documents on the Respondent, and informing him of the date of the directions hearings and, subsequently, the date of the hearing. We are satisfied that sufficient steps have been taken by the Law Society to bring the Application and supporting evidence, and the dates of direction hearings and the final hearing, to the Respondent's attention. The requirements for substituted or informal service under the Orders were met. We proceeded to deal with the matter in the Respondent's absence. Proof and evidence relied on by Law Society 1. The onus of proof is on the Law Society, and the civil standard of proof applies. As these proceedings do not involve disciplinary proceedings taken against a legal practitioner, the rules of evidence do not apply. Nonetheless, facts must be proved on the balance of probabilities to our comfortable satisfaction, having regard to the seriousness and importance of the matters alleged: see, for example, Gautam v Health Care Complaints Commission [2021] NSWCA 85 per Payne JA at [85]-[87]. 2. The Law Society tendered into evidence in the proceedings: affidavit of Clifford Flax, sworn 12 June 2024 (Exh A1); affidavit of Complainant 1, affirmed 17 August 2023 (Exh A2); affidavit of Anthony Lean, affirmed 7 September 2024 (Exh A3); affidavit of Gavin Connor, sworn 26 June 2023 (Exh A4); a second affidavit of Gavin Connor, sworn 26 June 2023 (Exh A4); affidavit of Rosalind Burke, affirmed 18 April 2024 (Exh A5); affidavit of Simone Carton, sworn 16 April 2024 (Exh A6); affidavit of Rachel Leeding, affirmed 12 April 2024 (Exh A7); affidavit of Elizabeth Fulham, affirmed 12 April 2024 (Exh A8); affidavit of Luke Rheinberger, affirmed 4 April 2024 (Exh A9); affidavit of Danny Whelan, affirmed 4 April 2024 (Exh A10); affidavit of Aislinn McIntyre, sworn 2 April 2024 (Exh A11); and, affidavit of Clifford Flax, sworn 2 April 2024 (Exh A12). 3. By virtue of the hearing occurring ex parte as a consequence of the Respondent's failure to engage in the proceedings, the evidence tendered by the Law Society remains uncontested. Notwithstanding that, we have reviewed the evidence relied upon by the Law Society. None of it is inherently illogical or unreliable, or based on an incorrect or incomplete history, or upon unproven assumptions. We have located no evidence of a substantial nature which contradicts it. We have accepted the evidence on that basis: Bauskis v Liew [2013] NSWCA 297 (Gleeson JA, with whom Beazley P and Barrett JA agreed) at [109]-[111]. Having done so, and having satisfied ourselves that the evidence warrants the findings promoted by the Law Society, we have, in part, adopted and reproduced its submissions in what follows. The law relevant to these disqualification proceedings 1. Section 119 provides that: Section 119 — Disqualification of individuals (other than practitioners) (1) The designated tribunal may, on the application of the designated local regulatory authority, make an order disqualifying a person who is an individual (other than an Australian legal practitioner) for the purposes of this Law, for a specified period or indefinitely, if satisfied that— (a) a ground for making the order under this section has been established (see subsection (2)); and (b) the disqualification is justified. (2) Any of the following are grounds for disqualifying a person— (a) that the person has been convicted of a serious offence; (b) that the person is not a fit and proper person to be employed or paid in connection with the practice of law or to be involved in the management of a law practice; (c) that the person was formerly an Australian legal practitioner and has, when an Australian legal practitioner, been guilty of conduct that constituted unsatisfactory professional conduct or professional misconduct; (d) that the person has been guilty of conduct that, if the person were an Australian legal practitioner, would have constituted unsatisfactory professional conduct or professional misconduct; (e) that the person could be disqualified under sections 206C–206F of the Corporations Act from managing a law practice if the law practice were a corporation. 1. We agree with the Law Society's submission that s 119(2)(b) and s 119(2)(d) of the Uniform Law provide potentially overlapping grounds for disqualification to the extent that it can be shown that the person is not a fit and proper person. Section 119(2)(d) provides additional scope for disqualification if it can be shown that the person engaged in conduct that, while not necessarily reflecting upon the person's honesty and integrity, involved a breach of professional standards that would result in a finding of unsatisfactory professional conduct or professional misconduct if the person was an Australian legal practitioner. 2. Where a disqualification order is made in respect of a respondent, every law practice is prohibited from having that person as a lay associate unless prior approval has been obtained from the designated local regulatory authority: Uniform Law, s 121. Furthermore, a disqualified person must not seek to become a lay associate of a law practice unless he or she first informs the law practice of the disqualification: Uniform Law, s 122(1). The meaning of "lay associate" and "associate" are set out in s 4 (definitions) of the Uniform Law. Fit and proper person – s 119(2)(b), Uniform Law 1. One ground for disqualifying a person who is not an Australian legal practitioner is "that the person is not a fit and proper person to be employed or paid in connection with the practice of law or to be involved in the management of a law practice": Uniform Law, s 119(2)(b). The meaning of "a fit and proper person" is not defined in the Uniform Law. Its meaning in this context can be, however, gleaned from judicial consideration of the same phrase when applied to Australian legal practitioners for the purposes of the Uniform Law. 2. In Council of the Law Society of New South Wales v Clarke [2022] NSWCA 57 (Clarke), the Court of Appeal declared that a solicitor who had been convicted of six fraud offences against his employer was not a fit and proper person to remain on the roll of lawyers maintained by the Supreme Court of New South Wales pursuant to s 22 of the Uniform Law. The Court (Basten JA, Macfarlan JA and Simpson AJA) said at [9]: "The offences involved him taking advantage in a deliberate and calculated fashion of opportunities arising out of his employment as a solicitor and involved significant breaches of trust and serious dishonesty. His acts were antithetical to central requirements for being a fit and proper person, namely honesty and integrity." 1. In Clarke, the Court also cited at [9] with approval Spigelman CJ's previous statement in NSW Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284 (Cummins) at [19]-[20]: "Honesty and integrity are important in many spheres of conduct. However, in some spheres significant public interests are involved in the conduct of particular persons and the state regulates and restricts those who are entitled to engage in those activities and acquire the privileges associated with a particular status. The legal profession has long required the highest standards of integrity. There are four interrelated interests involved. Clients must feel secure in confiding their secrets and entrusting their most personal affairs to lawyers. Fellow practitioners must be able to depend implicitly on the word and the behaviour of their colleagues. The judiciary must have confidence in those who appear before the courts. The public must have confidence in the legal profession by reason of the central role the profession plays in the administration of justice. Many aspects of the administration of justice depend on the trust by the judiciary and/or the public in the performance of professional obligations by professional people." 1. We agree with the Law Society's submission that the same high standards of honesty and integrity that are required of Australian legal practitioners are also required of non-lawyers employed or paid in connection with the practice of law or to be involved in the management of a law practice. The proper administration of justice and the protection of the public depends upon it. Professional misconduct and unsatisfactory professional conduct – s 119(2)(d), Uniform Law 1. Another ground for disqualifying a person who is not an Australian legal practitioner is "that the person has been guilty of conduct that, if the person were an Australian legal practitioner, would have constituted unsatisfactory professional conduct or professional misconduct": Uniform Law, s 119(2)(d). 2. Unsatisfactory professional conduct and professional misconduct are defined in the Uniform Law: 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. 1. Section 298 of the Uniform Law also provides a non-exhaustive list of conduct that is capable of constituting unsatisfactory professional conduct or professional misconduct, including conduct in breach of the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 (NSW). 2. Considerations about a person's personal qualities and character will generally be relevant to whether a person is "fit and proper" for the purposes of s 297(1)(b). In this context, in Council of the New South Wales Bar Association v EFA (a pseudonym) (2021) 106 NSWLR 383; [2021] NSWCA 339 (EFA), the Court of Appeal (Bathurst CJ, Leeming JA and Simpson AJA) observed at [169]: " … 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 often 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. Moreover, as provided for in s 297(2), for the purpose of deciding whether a lawyer is or is not a fit and proper person to engage in legal practice within the meaning of s 297(1)(b), regard may be had to matters that would be considered if the lawyer were an applicant for the following: 1. Admission to the Australian legal profession. The Legal Profession Uniform Admission Rules 2015 (NSW) require an applicant for admission to provide certain evidence, among other things, of "good fame and character". 2. The grant or renewal of an Australian practising certificate. Rule 13(1) of the Legal Profession Uniform General Rules 2015 (NSW) sets out the matters to which regard may be had when the issue of whether a person is a fit and proper person to hold a practising certificate is being considered for the purposes of an application for the grant of a practising certificate. Relevantly, it lists the following matters: whether the person is currently of good fame and character (r 13(1)(a)), and whether the person has contravened an Australian law relating to the legal profession (r 13(1)(p)). 1. There is no definition of "good fame and character" in the Uniform Law. Some guidance may be gleaned from judicial decisions. For present purposes, the Law Society submits that it involves, in effect, the same considerations to those referred to in Clarke and Cummins. 2. The Law Society also refers us to the Court of Appeal's decision in EFA. There, the Court referred to three cases where declarations were sought by the Law Society, Bar Association or Prothonotary of the Supreme Court that a legal practitioner was not a person of good fame and character. Those decisions were Council of the Law Society of New South Wales v Parente [2019] NSWCA 33 (Parente), Prothonotary v Gregory [2017] NSWCA 101 (Gregory), and Council of the New South Wales Bar Association v Costigan [2013] NSWCA 407 (Costigan). 3. In Parente, the legal practitioner was convicted and sentenced for drug supply offences, and in Gregory, the legal practitioner was convicted of three counts of dishonesty, involving tax fraud. The legal practitioner in Costigan was not convicted of a criminal offence, but was found guilty of professional misconduct. Declarations were made by the Court in both Gregory and Costigan to the effect that the legal practitioner was not a person of good fame and character. 4. However, in Parente, despite the Law Society seeking a declaration that Mr Parente was not of good fame and character, the Court declined to make such a declaration noting that this language has now been removed from the statute. However, the Court did note the continued importance of the phrase and that it has not entirely been removed from the lexicon within the protective jurisdiction. The Court summarised its relevance at [10]: "In considering whether an applicant for admission is a fit and proper person, the local regulatory authority is required to have regard to matters specified in the Admission Rules made for the purposes of s 17 of the Uniform Law: s 17(2)(b). The Legal Profession Uniform Admission Rules 2015 (NSW) ("Admission Rules") require that an applicant provide evidence by way of two statutory declarations as to his or her "character": r 16(1). The Legal Profession Admission Board may require an applicant to provide other evidence "about the applicant's fame and character": r 16(6). The applicant must make a statutory declaration disclosing matters which the Board might regard as not being favourable to the applicant when considering whether the applicant "is currently of good fame and character and a fit and proper person to be admitted to the Australian legal profession": r 17(1). The disclosure statement is required to include a statement by the applicant "that I am and always have been of good fame and character": r 17(7). Finally, amongst the matters which the Board is required to have regard to for the purposes s 17(2)(b) of the Uniform Law is "whether the person is currently of good fame and character": r 10(1)(f)." 1. The Court also noted the benefit in the reference to "fame" being that it draws attention to one of the purposes of the disciplinary powers which is to maintain public confidence in the integrity and honesty of the profession (Parente at [12], [49]). It is for that reason that the good fame and character of an applicant is a relevant consideration when being admitted as a solicitor; and correspondingly, that a lack of good fame and character is relevant on an application for removal from the roll (Parente at [49]). 2. Where a respondent lawyer has been convicted of a criminal offence, a conviction for an offence accompanied by a sentence of imprisonment will often be incompatible with "good fame and character", not only because of the underlying conduct, but also because of the public disgrace involved (Parente at [50]). In Gregory, the Court of Appeal stated (citing earlier authority) that: "[t]he Court needs to consider the conduct involved in the conviction and see whether it is of such personally disgraceful character that the opponent should not remain a member of an honourable profession" (at [25]). 3. In Gregory, the Court listed other principles that are applicable to a finding of good fame and character, and stated (again citing earlier authority) that "[t]he concept of good fame and character has a twofold aspect. Fame refers to a person's reputation in the relevant community, character refers to the person's actual nature". 4. NCAT has previously made disqualification orders against persons who are not legal practitioners under s 119(2)(b) and s 119(2)(d) of the Uniform Law. In Aslan, a disqualification order was made against a person including under both s 119(2)(b) and s 119(2)(d) on the basis that he held himself out to be a practising solicitor when he was not and that he engaged in unqualified legal practice. In Brincat, a disqualification order was made against a person including under both s 119(2)(b) and s 119(2)(d) where the person in question used trust monies without authority and for her personal benefit. In both of these cases, there had been no criminal convictions recorded prior to the disqualification proceedings in NCAT. Factual findings 1. Having regard to the evidence before us, we make the following factual findings. 2. The Respondent is not, and has never been, an Australian legal practitioner. Complainant 1's matter 1. In late 2016, Complainant 1 was a guest at Complainant 2's home in regional NSW where she met a man named "Harry Moon". She later learned that he is also known as "Harry Chand". That man is the Respondent in these proceedings. 2. The Respondent told Complainant 1 that he was a barrister. Complainant 2 also overheard the Respondent tell other people present on this occasion that he was a qualified barrister and lawyer. 3. Following this meeting in late 2016, Complainant 1's mother died. No provision was made for Complainant 1 in her late mother's will. Complainant 1 telephoned Complainant 2 and asked her if she knew anyone who could help her in relation to making a claim against her mother's deceased estate. Complainant 2 received the call when she was in a car with the Respondent together with his secretary. The Respondent said to Complainant 2 words to the effect of: "I'll do the matter cheap for $10,000 because [Complainant 1]'s a close friend of yours." Complainant 2 relayed this to Complainant 1 over the telephone. 4. Sometime later, the Respondent and Complainant 1 discussed her matter. The Respondent said to Complainant 1 words to the effect of: "You have a good case. You can pay me the $10,000 from your claim." Complainant 1 agreed to retain the Respondent as her solicitor in order to make a claim against her mother's deceased estate. 5. During the course of her matter, Complainant 1 met with the Respondent about three times; twice at the home of Complainant 2 and once at her own home. Complainant 1 never received any letters or emails from the Respondent. 6. Complainant 2 also met Complainant 1 several times to discuss what information she needed to obtain for the Respondent to progress Complainant 1's matter, including doctors' reports and family history. Complainant 1 provided this information to Complainant 2 to pass on to the Respondent. Complainant 2 would also type up Complainant 1's affidavits in her presence, and pass on messages between Complainant 1 and the Respondent. Complainant 2 told Complainant 1 that she was helping the Respondent with her claim in order to save Complainant 1 money. The Respondent had said to Complainant 2 words to the effect of: "The more you help [first name of Complainant 1], the less it will cost her". 7. Between about July 2016 and June 2018, Complainant 2 worked as a legal secretary for the Respondent under his direction and instruction in return for him acting as her solicitor in a claim she had made against her father's deceased estate. 8. In late 2017, the Respondent telephoned Complainant 2 and said words to the effect of: "They have just offered $70,000 for [Complainant 1]. I suggest she takes it. Can you please ring and tell her." Complainant 2 then telephoned Complainant 1 and told her this, and Complainant 1 said she would accept the offer. Complainant 1 accepted this offer because it meant she would receive $60,000 after she paid the Respondent the agreed $10,000 in legal fees. No other settlement offers were ever communicated to Complainant 1. 9. Shortly before settlement, the Respondent came to Complainant 1's home in regional NSW. Complainant 2 waited in the car. The Respondent was in a hurry, handed Complainant 1 some documents to sign and said "sign here". She signed the documents. He was only there for about a minute or so before he left. Complainant 1 did not read the documents that she signed and the Respondent did not explain them to her. He also did not give her copies of the documents. 10. Complainant 1 identifies her genuine signature on the 'Deed of Settlement' dated 27 October 2017. She also identifies a cross mark she made on a handwritten document of the same date titled 'Direction to Pay' authorising $80,000 in settlement monies to be paid into the Bank account of "N Berry". She did not, however, understand that by signing this document she was authorising this. She does not know the person "N Berry" and she did not realise the settlement amount was $80,000. Instead, she believed the settlement amount was $70,000. The Respondent had told Complainant 2 that "Nicole Berry" was his daughter's name. 11. At about this time, Complainant 1 and the Respondent also had a telephone conversation during which he told her that the settlement amount was confidential and that she could not discuss it with anyone or the family could sue her. 12. On 31 October 2017, the Respondent's secretary emailed the executor's solicitor requesting that Complainant 1's settlement be paid into the "N Berry" Bank account. 13. In November 2017, Complainant 1 telephoned the Respondent and asked him to put $20,000 of her settlement money into a bank account in her name so that she could purchase a car. On 8 November 2017 and 4 December 2017, two deposits of $20,000 each were made into this bank account. 14. In early 2018, Complainant 1 telephoned the Respondent several times and asked to be paid the rest of her settlement monies and also asked to be provided with the supporting documentation. There is no evidence of any action taken in response to the request. 15. In about February 2018, Complainant 1 telephoned the Principal Solicitor of the Law Practice. She said words to the effect of: "Where is the rest of my money? Why haven't you given me any documents?" to which the Principal replied with words to the effect of: "I don't know anything about the matter. Harry's not in today. I'll talk to him about it." This was the only time Complainant 1 ever spoke to the Principal Solicitor. She never met him in person. 16. Following this telephone call between Complainant 1 and the Principal Solicitor on 27 February 2018, an amount of $9,000 was deposited into Complainant 1's bank account. 17. On 29 March 2018, Complainant 1 lodged a complaint with the NSW Legal Services Commissioner because she had only received $49,000 of her $80,000 settlement money. She also never received copies of any documentation relating to her matter. Complainant 1 also never received a purported letter the Law Practice sent her dated 1 March 2018 enclosing various documents. 18. We note that the Law Society pointed us to Exh A2 as evidence of the complaint made on 29 March 2018. However, evidence of a complaint being made on 29 March 2018 and stating that the complainant had only received $49,000 is instead found in a Statement within Exh A4 (at p 74). The evidence cited in Exh A2 instead states that a complaint was made 6 February 2018 regarding an amount of $41,000 being received. A copy of this complaint dated 6 February 2018 is enclosed in the evidence and is stamped by the NSW Legal Services Commissioner as being received 12 March 2018. The 6 February 2018 complaint is for an amount of $41,000 but the complainant stated this was an error as she had only received $40,000 of her settlement money at this stage (Exh A2 at [23]). At [23] of Exh A2, the complainant states that an additional $9,000 was deposited into her account on 27 February 2018, but does not mention a further complaint in March 2018. 19. We assume no additional complaint was made in March 2018, and that the date and amount referenced in the complaint in the Statement within Exh A4 is incorrect. Because we only have a copy of a complaint being made in February 2018, we understand that this is the correct complaint to refer to and we rely on Exh A2 at [23]-[24]. 20. On 11 April 2018, the Respondent's secretary emailed Complainant 2 a copy of Complainant 1's complaint to the Legal Services Commissioner. Complainant 2 then telephoned the Respondent. The Respondent said: "[Complainant 1] is a bitch and just wants more money, she doesn't want to pay her legal fees and she is just jealous because you aren't being charged anything for your legal fees with your matter". Complainant 2 also questioned the Respondent about Complainant 1's claim that the Respondent had charged her $30,000 in legal fees. The Respondent replied that she was a "liar". 21. Soon after this, Complainant 2 was present in the offices of the Law Practice when the Principal Solicitor said to the Respondent in relation to Complainant 1's complaint, words to the effect of: "You'll just have to pay her the rest of the money". 22. In late April 2018, Complainant 2 was in the Respondent's office at the Law Practice when the Principal Solicitor came in and said words to the effect of: "I have done my part of [Complainant 1]'s costing Harry, now you have to do your part". The Principal Solicitor asked Complainant 2 if she, Complainant 2, had met Complainant 1 in the office and he (the Principal Solicitor) said words to the effect of: "I have met [Complainant 1] here haven't I, I'm sure I have met her here". Complainant 2 shook her head sideways to reply "no". Complainant 1 never visited the office. 23. A funds flow analysis prepared by Mr Dunlop (Trust Accounts investigator at the Law Society) shows that Complainant 1's $80,000 in settlement monies were paid into a bank account in the name of the Respondent's daughter, Nicole Berry, on about 2 November 2017. A total of $49,000 was later paid to Complainant 1 and the rest of the money was applied for the benefit of other people, including a total of $28,900.34 in 17 home loan repayments to an account in the name of 'Jaison Chand', $300 to a Mastercard in the name of Harry Chand, and other credit card payments and cash withdrawals. The funds flow analysis also shows that funds belonging to several other apparent clients of the Respondent also were deposited into his daughter's account. 24. Mr Dunlop's review of correspondence and file notes that he obtained from the Law Practice in relation to Complainant 1's matter also show that there was a series of settlement offers and counteroffers that were made on Complainant 1's behalf. However, the only settlement offer that Complainant 1 was informed about was the one that she accepted for $70,000. She had no knowledge of the previous settlement offers and never gave instructions authorising them to be made (or rejected) on her behalf. 25. In particular, Complainant 1 did not provide instructions about the following settlement offers and counteroffers. We note that we were referred to Exh A2 by the Law Society but these references are instead found in the Dunlop Report, within Exh A4: 1. on 16 May 2017, a settlement offer was made on Complainant 1's behalf for $150,000; 2. on 4 July 2017, an offer from the executor of $40,000 made 3 July 2017 was rejected on Complainant 1's behalf and a counteroffer of $120,000 was made; 3. on 20 July 2017, an offer made 14 July 2017 from the executor of $60,000 was rejected on Complainant 1's behalf and a counteroffer of $100,000 was made; 4. on 4 August 2017, a restated offer from the executor of $60,000 was rejected on Complainant 1's behalf; and 5. on 23 August 2017, an offer of $80,000 from the executor was made to Complainant 1. 1. Complainant 1 never received the 'Costs Disclosure and Costs Agreement' dated 1 December 2016 and her purported signature is a forgery. The Respondent purports to have witnessed this document. Complainant 1 was also never provided with or signed a costs agreement with the Respondent or the Law Practice. 2. Complainant 1 also never received the 'Memorandum of Fees & Disbursements' dated 1 November 2017 for $30,000. It contains a large number of apparently false entries, including a large number of claimed conferences between Complainant 1 and the Respondent, and between Complainant 1 and the Principal Solicitor, that Complainant 1 says never occurred. 3. File notes that Mr Dunlop obtained from the Law Practice were also falsified because they refer to instructions being obtained from Complainant 1 when in fact this did not occur. Complainant 2's matter 1. In April 2016, Complainant 2 required legal advice in relation to challenging her late father's will. A barrister referred her to the Respondent. 2. Soon after this time, the Respondent telephoned Complainant 2 and told her that he was a practising solicitor and could help her. Complainant 2 and the Respondent arranged to meet at the offices of the Law Practice to discuss her matter further. 3. On 26 April 2016, Complainant 2 met the Respondent at the offices of the Law Practice. Complainant 2's daughter accompanied her. On this occasion, the Respondent introduced Complainant 2 to the Respondent's secretary and also another lawyer who left shortly afterwards. 4. At this meeting on 26 April 2016, Complainant 2 told the Respondent that she wanted to secure her late father's rental property in regional NSW (the Property) which formed part of his deceased estate. She told him that she only wanted one third of his deceased estate. The Respondent reassured Complainant 2 that he was more than experienced and qualified to handle her matter. Complainant 2 agreed to engage the Respondent as her solicitor. The Respondent advised Complainant 2 that the only option available to her was to make a claim under the Family Provision Act. He also said that he would lodge a caveat on the Property. No caveat was, however, lodged on the Property and it was sold. 5. Soon after their meeting on 26 April 2016, the Respondent proposed to Complainant 2 that he would do her legal work for no fee if she worked for him for no pay in return. Complainant 2 agreed. 6. Between about July 2016 and June 2018, Complainant 2 worked as a legal secretary for the Respondent under his direction and instruction. She carried out some of her duties at the offices of the Law Practice and some of her duties by working remotely from her home. Complainant 2's responsibilities included receiving and sending emails, typing letters and affidavits, meeting clients at coffee shops with the Respondent, attending client conferences with him at the offices of the Law Practice, attending telephone conferences with him and attending court with him. She would also often take dictation from the Respondent when she was working remotely from home and post him the documents at her own expense. She also performed tasks in relation to progressing her own matter. Complainant 2 would also perform cleaning services at the Respondent's various residential properties as part of their arrangement. 7. During the time Complainant 2 worked at the offices of the Law Practice, she observed that the Respondent had his own clients and all of his legal files were referenced "CH/JK", meaning Harry Chand and his secretary with the initials JK. 8. On many occasions, the Respondent said to Complainant 2 words to the effect of: "I prefer to work as a lawyer than barrister because I prefer to do the research side of law and I find court very boring". 9. During the course of Complainant 2's matter, the Respondent would attend all of the conferences with her barrister, as her solicitor. The Respondent also attended the Supreme Court in 2017 as her solicitor and was involved in the settlement of her matter. 10. At the mediation of her (deceased estate) matter, the Respondent gave Complainant 2 legal advice that in no circumstances should she agree to settle the matter because the executor would increase the current offer. In particular, he advised her not to accept the executor's offer of $30,000. He said: "They are crooks so do not settle, they will come back to you". The Respondent advised Complainant 2 not to listen to the advice of her barrister to settle for this amount. 11. On a number of occasions, the Respondent also gave Complainant 2 legal advice that she could sue the executor of her late father's estate because he had engaged in misconduct and breached his fiduciary duties. 12. Ultimately, Complainant 2 settled her matter for $75,000. 13. In early 2018, Complainant 2 received a telephone call from a real estate agent that she had met whilst working for the Respondent. The real estate agent told Complainant 2 that the Respondent had asked if her $75,000 settlement could be placed in the real estate agent's trust account and that the real estate agent had told the Respondent that would be illegal. Complainant 2 later confronted the Respondent and he admitted to having asked the real estate agent to do this. He said that he had asked her to do this because he wanted all of Complainant 2's money to come to her. 14. In late June 2018, Complainant 2 was sitting in the lunchroom at the Law Practice when the Principal Solicitor's secretary said to the Respondent words to the effect of: "You're not registered as a lawyer in Australia are you?" The Respondent replied in words to the effect of: "Why would I pay $50,000 to be registered in Australia?". 15. Soon after this, Complainant 2 verbally sacked the Respondent as her lawyer. 16. Complainant 2 believes that the Respondent had been working independently as a solicitor in the offices of the Law Practice for many years. She said that the Respondent told her that he and the Principal had an "agreement". 17. On 1 July 2018, the Respondent and Complainant 2 engaged in an exchange of text messages where the Respondent stated, among other things, "No as I am a city lawyer". 18. A term of her settlement was that she and her family were to move out of the Property. The Respondent, however, gave her legal advice that she did not have to comply with this given she was in continuing negotiations to purchase the Property. This advice was incorrect. As a result, a writ of possession was issued in relation to the Property and Complainant 2 was required to vacate the Property rendering her and her family homeless. 19. On 17 July 2018, the Respondent sent Complainant 2 a text message asking her to "check email and call the office and ask for [first name of the Principal solicitor]". She sent a reply saying "why would I ask for [first name of the Principal Solicitor]?" Complainant 2 had never dealt with the Principal Solicitor before in relation to her matter. She later attended the offices of the Law Practice to collect her legal file and was told that the Principal Solicitor had put a lien on her file. She then met with the Principal Solicitor and the Respondent. 20. On 19 July 2018, the Respondent wrote a letter on her behalf to the executor of her deceased father's estate in contravention of her instructions to him not to send the letter. The Principal Solicitor signed the letter. 21. On 20 July 2018, Complainant 2 emailed the Respondent formally terminating her instructions. 22. On 23 July 2018, Complainant 2 received a 'Notice of Ceasing to Act' document signed by the Principal Solicitor and dated 20 July 2018. 23. On 5 November 2018, Complainant 2 received a letter from the Law Practice claiming that she owed the firm $45,000 in legal fees for its conduct of her matter. The Respondent had, however, previously agreed to perform her legal work for no fee if she provided him with secretarial services in return. Conclusions on the evidence 1. The facts as found match the allegations set out in the relevant particulars to the Law Society's Grounds of Application. Having regard to the evidentiary material and the factual findings we have made, we are satisfied that the allegation contained in Particulars 4 to 53 set out in the Application have been established. 2. We record that we do not have sufficient information before us to make any finding about the precise employment, contractual or other type of business relationship in existence between the Respondent and the Law Practice, or between the Respondent and the Principal Solicitor, between 2016-2018. There is credible evidence from Complainant 2 that the Respondent said there was an "arrangement" between him and the Principal Solicitor. The Respondent used an email address with his name and the Law Practice's domain. He had an office at the Law Practice, as well as a secretary. He apparently had his own "clients" whom he met with, his legal files were referenced "CH/JK", meaning Harry Chand and his secretary with initials JK. There was a photo of him in a barrister's wig and gown in the lunch room of the Law Practice which he stated was taken in Fiji. On the other hand, the forged 'Costs Disclosure and Costs Agreement' lists the Respondent as a "paralegal clerk". 3. We do not consider it necessary to determine the precise relationship between the Respondent and the Law Practice (or Principal Solicitor). It is enough that one or both grounds in s 119(2)(b) or (d) is established, and the disqualification order sought by the Law Society is justified. Respondent's conduct warranting disqualification 1. Part 3.9 of the Uniform Law (headed "Disqualifications") addresses disqualification of persons and entities, including at s 119 of persons who are not legal practitioners. The disqualification provisions can be understood in light of the objectives of the Uniform Law and the protective jurisdiction. Statutory objectives include, at s 3 of the Uniform Law: (c) enhancing the protection of clients of law practices and the protection of the public generally; (d) empowering clients of law practices to make informed choices about the services they access and the costs involved; and (e) promoting regulation of the legal profession that is efficient, effective, targeted and proportionate. 2. The provisions of s 119 of the Uniform Law make it clear that these disqualification proceedings may only be taken against a person who is not an Australian legal practitioner. We are satisfied that the Respondent has never been admitted as a legal practitioner or held any practising certificate in any Australian jurisdiction. 3. The following are the elements necessary to be established as a prerequisite for the exercise of the power vested in NCAT to order that a person be disqualified: 1. That at least one of the grounds for disqualification established by s 119(2) of the Uniform Law have been established. In the circumstances of these proceedings the relevant grounds are (b) and (d). 2. That, by reason of either ground, disqualification is justified: Uniform Law, s 119(1)(b). 1. The disqualification may be for a specified period or indefinitely: Uniform Law, s 119(1). Whether Ground 1 of the Application is established 1. We turn to consider whether the disqualification ground in s 119(2)(b) is made out, that is, whether the Respondent "is not a fit and proper person to be employed or paid in connection with the practice of law or to be involved in the management of a law practice". 2. We said earlier that the meaning of "a fit and proper person" is not defined in the Uniform Law, but that its meaning in this context can be, however, gleaned from judicial consideration of the same phrase when applied to Australian legal practitioners for the purposes of the Uniform Law. Certainly, honesty and integrity are necessary attributes for persons involved in the practice of law, including non-lawyers who are employed or paid in connection with the practice of law or involved in the management of law practice. Complainant 1's matter 1. The Law Society submits that the following conduct by the Respondent in relation to Complainant 1's matter is established on the evidence and warrants his indefinite disqualification pursuant to s 119(2)(b) of the Uniform Law: 1. the Respondent held himself out to be a qualified legal practitioner to Complainant 1 when he was not, contrary to s 11 of the Uniform Law; 2. the Respondent engaged in unqualified legal practice by accepting Complainant 1's instructions to act for her and providing her with legal advice as to how to conduct and settle her matter, contrary to s 10 of the Uniform Law; 3. the Respondent dishonestly appropriated Complainant 1's settlement monies by deceiving her into signing 'Direction to Pay' on 27 October 2017 that authorised her settlement monies to be paid into a bank account in his daughter's name, Nicole Berry, when Complainant 1 did [not] agree to this. Approximately $30,000 of the settlement monies were then kept by the Respondent and applied to the benefit of himself and third parties; 4. the Respondent was party to the creation of a false 'Costs Disclosure and Costs Agreement' dated 1 December 2016 to justify the amount of approximately $30,000 which he kept of Complainant 1's settlement monies. This document: 1. contained Complainant 1's forged signature; 2. was falsely witnessed by the Respondent; 3. was backdated; and 4. was never provided to Complainant 1 by the Law Practice or the Respondent; and 1. the Respondent was party to the creation of a false 'Memorandum of Fees and Disbursements' dated 1 November 2017 to justify the amount of approximately $30,000 which he kept of Complainant 1's settlement. This document contained false entries about work that was not done and client conferences with Complainant 1 that were never held. 1. We note there would seem to be a typographical error in the Law Society's written submissions in relation to (c) above wherein the submissions stated "[Complainant 1] did agree to this". We take this to be an error and the Law Society intended to submit that Complainant 1 did not agree for the settlement monies to be paid into the bank account of Nicole Berry. Complainant 2's matter 1. The Law Society submits that the following conduct by the Respondent in relation to Complainant 2's matter is established on the evidence and warrants his indefinite disqualification pursuant to s 119(2)(b) of the Uniform Law: 1. the Respondent held himself out to be a qualified legal practitioner to Complainant 2 when he was not, contrary to s 11 of the Uniform Law; and 2. the Respondent engaged in unqualified legal practice by accepting Complainant 2's instructions to act for her and providing her with legal advice as to how to conduct and settle her matter, contrary to s 10 of the Uniform Law. In respect of both matters 1. For the ground in s 119(2)(b) to be established, it is not necessary that the Respondent was "employed or paid in connection with the practice of law" or that he was involved in the management of the Law Practice. In the present context, establishing the ground requires a finding that the Respondent is not a fit and proper person to potentially or conceivably "be employed or paid in connection with the practice of law" or "to be involved in the management of a law practice". What falls for determination here is whether the Respondent's character (including his personal qualities or nature), based on the conduct we have found proven, is such that he is a fit and proper person to be involved in the practice of law or management of a law practice. In essence, we are determining whether his behaviour aligns with the high standards of honesty and integrity required to be observed in connection with the practice of law. In our assessment, the Respondent's behaviour clearly does not align with such a standard. 2. The evidence shows that the Respondent held himself out as a legal practitioner to both complainants when he was not. He lied to, or misled, each of them about his status as an Australian legal practitioner. He engaged in legal practice in giving advice to and purporting to act on their behalf in their respective wills and estates matters. He held himself out as having the qualifications and legal authority to engage in legal practice in New South Wales (and in Australia) that he did not possess because he was not an Australian legal practitioner (with a current practising certificate). He engaged in conduct which is in contravention of key provisions of the Uniform Law at ss 10 and 11. 3. Such conduct is not only dishonest in the extreme; it poses real dangers to members of the public (including the complainants) who relied on him having the required qualifications and authority to practise as an Australian legal practitioner. The public is entitled to have confidence in the honesty and integrity of those individuals (including non-lawyers) involved in the practice of law. The public needs to have confidence in the legal profession, and those associated with the profession, to seek to aid the administration of justice rather than to thwart it. The Respondent's conduct in relation to the matters of both complainants demonstrates a complete lack of honesty and integrity which is fundamental to the practice of law (and, as here, to the management of a suburban law practice). 4. Further, in Complainant 1's matter, the Respondent misappropriated settlement monies. Approximately $30,000 of the settlement monies were applied by the Respondent for his own benefit and that of third parties. It was egregious conduct on his part. Cases of dishonesty and misappropriation have historically been taken very seriously by the Courts, especially where a legal practitioner has committed an evidently criminal act (see Prothonotary of the Supreme Court of New South Wales v Thomson [2018] NSWCA 230; Council of the Law Society of New South Wales v Zhukovska (2020) 102 NSWLR 655; [2020] NSWCA 163 at [146]). There is no reason why a case of misappropriation by a non-lawyer, such as in the present circumstances, should be viewed differently. 5. Further, as part of his ongoing web of lies and deceit, the Respondent created (or had a part in the creation of) a costs disclosure agreement (never provided to Complainant 1) which contained her forged signature, was improperly backdated and was falsely witnessed by him. In addition, he created (or had a part in the creation of) a Memorandum of fees and disbursements which contained false entries about work that was not done and client conferences with Complainant 1 that were never held. The Respondent's conduct involved the making of multiple false statements and other dishonest acts, amounting to a very significant breach of the trust reposed in the Respondent by that complainant. 6. On the facts as we have found, the Respondent's conduct involved him taking advantage of both complainants in a deliberate way and involved significant breaches of trust and serious dishonesty. The Respondent's acts "were antithetical to central requirements for being a fit and proper person, namely honesty and integrity": Clarke at [9]. While that case involved a solicitor (convicted of fraud offences), the Court of Appeal's comments also apply to non-lawyers involved in the practice of law. The requirement for honesty and integrity is not less important for professionals who are employed or otherwise paid in connection with the practice of law, or are involved in the management of a law practice. 7. We agree with the Law Society's contentions with respect to the matters of both Complainant 1 and Complainant 2. We are satisfied, on the civil standard, that the Respondent is not a fit and proper person to be employed or paid in connection with the practice of law or to be involved in the management of a law practice. Accordingly, we find that the ground for disqualifying the Respondent under s 119(2)(b) of the Uniform Law has been established. Particulars 29 and 54 to the Law Society's Grounds for Application are made out. Whether Ground 2 of the Application is established 1. Another ground for disqualifying a person who is not an Australian legal practitioner is "that the person has been guilty of conduct that, if the person were an Australian legal practitioner, would have constituted unsatisfactory professional conduct or professional misconduct": Uniform Law, s 119(2)(d). We referred earlier to the statutory definitions of unsatisfactory professional conduct and professional misconduct, and to s 298 of the Uniform Law which also provides a non-exhaustive list of conduct that is capable of constituting unsatisfactory professional conduct or professional misconduct, including conduct in breach of the Conduct Rules. Complainant 1's matter 1. In the Law Society's submission, the following conduct by the Respondent in relation to Complainant 1's matter is established on the evidence and warrants his indefinite disqualification pursuant to s 119(2)(d) of the Uniform Law: 1. the conduct referred to at [94] (c), (d) and (e) above; 2. the Respondent failed to make a costs disclosure to Complainant 1 in accordance with s 174 of the Uniform Law; 3. the Respondent never obtained Complainant 1's instructions to make, accept or reject the numerous settlement offers that were communicated between the parties, except for the last settlement offer that she accepted; 4. the Respondent obtained Complainant 1's signature on the 'Deed of Settlement' and 'Direction to Pay' on 27 October 2017 in circumstances where the Respondent did not provide her with the opportunity to either read the documents or have their contents explained to her; 5. the Respondent never provided Complainant 1 with any documents relating to her matter, despite her requests for him to do so; 6. the Respondent failed to receive Complainant 1's settlement into a trust account pursuant to s 137 of the Uniform Law and failed to disburse it in accordance with her directions pursuant to s 138 of the Uniform Law; 7. the Respondent referred to Complainant 1 in conversations with Complainant 2 in disparaging terms, namely as a "liar" and "bitch". Complainant 2's matter 1. The following conduct by the Respondent in relation to Complainant 2's matter is also established on the evidence and warrants his disqualification, for an indefinite period, pursuant to s 119(2)(d) of the Uniform Law: 1. the Respondent failed to make a costs disclosure to Complainant 2 in accordance with s 174 of the Uniform Law; 2. the Respondent promised but failed to place a caveat on the Property (forming part of the estate of Complainant 2's late father) which the executor ultimately sold; and 3. the Respondent wrongly advised Complainant 2 that she could continue living at the Property contrary to the settlement orders. In respect of both matters 1. We agree with the Law Society's contentions that, if the Respondent had been an Australian legal practitioner, his conduct would have constituted professional misconduct. 2. Turning to the first limb of the statutory definition of "professional misconduct" in s 297(1)(b) of the Uniform Law, professional misconduct includes unsatisfactory professional conduct (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) where such "conduct which is a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence". 3. In the handling of Complainant 1's matter involving a family provision claim on her deceased mother's estate, the Respondent made multiple false or misleading statements to Complainant 1, created (or was a party to the creation) of false documents, and misappropriated approximately $30,000 of her settlement monies. The Respondent failed to comply with requirements of the Uniform Law and he engaged in conduct which fell seriously short of proper professional standards. It is clear on the evidence before us that the Respondent failed to ensure that he (or the Law Practice with which he was associated) made a costs disclosure to Complainant 1 in accordance with s 174 of the Uniform Law; he failed to obtain her instructions to make, accept or reject the settlement offers in relation to her family provision claim (except for the last offer which she accepted); he failed to ensure that all of the settlement monies paid from the estate were directed to a trust account pursuant to s 137 and failed to disburse the entirety of those monies in accordance with her directions pursuant to s 138 of the Uniform Law. He obtained her signature on the deed of settlement in question, and on the direction to pay instructions, without giving her the opportunity to read the documents or have their contents explained to her. He failed to provide her with documents relating to her matter, despite her requests for him to do so. 4. It is clear that the Respondent's conduct constitutes a substantial and consistent failure to reach appropriate standards of competence and diligence, and amounts to unsatisfactory professional conduct that rises to the level of professional misconduct within the meaning of s 297(1)(a) of the Uniform Law. 5. As to Complainant 2's matter, the Respondent failed to comply with requirements of the Uniform Law, and he engaged in conduct which fell well short of appropriate professional standards. On the facts as found, the Respondent failed to ensure that he (or the Law Practice) made a costs disclosure to Complainant 2 in accordance with s 174 of the Uniform Law. The Respondent failed to place a caveat on her late father's property despite promising Complainant 2 that he would do so, and he provided incorrect or incomplete advice to her that she could continue living at her late father's property contrary to settlement orders. Taken together, each of those aspects of the Respondent's conduct in Complainant 2's matter amounts to a substantial failure to meet appropriate standards of competence and diligence, and in our view, amounts to professional misconduct within the meaning of s 297(1)(a) of the Uniform Law. 6. We turn to the second limb of the statutory definition of professional misconduct in s 297(1)(b) of the Uniform Law, and whether the Respondent's conduct, if he were an Australian legal practitioner, is conduct of a lawyer (whether or not occurring in connection with the practice of law) that would justify a finding that the lawyer is not a fit and proper person to engage in legal practice. As earlier noted, in determining fitness for the purposes of s 297(1)(b), regard may be had to a range of matters which will include the personal qualities and character of the person in question, including whether or not the person is "of good fame and character" (being a matter relevant to admission to legal practice: s 297(2); Admission Rules). 7. With regard to both matters, the Respondent held himself out as an Australian legal practitioner when he was not, and purported to give legal advice and take instructions from the complainants in their respective matters when he was neither qualified to do so, nor permitted to do so, under the Uniform Law. That conduct involved serious breaches of the trust reposed in him by each complainant. The Respondent took advantage of each of them in a "deliberate and calculated fashion", displaying poor character through his lack of honesty and integrity (Clarke at [9]). In addition, his misappropriation of settlement monies in Complainant 1's matter constitutes, at minimum, a "significant [breach] of trust and serious dishonesty" (Clarke at [9]). 8. We are satisfied that the Respondent is not a "fit and proper person" for the purposes of s 297(1)(b), and we make that finding. Moreover, as we said before, regard can be had to whether the Respondent is of "good fame and character". On the facts as found, it is self-evident that the Respondent is not of good character. His dishonest acts point to his actual nature, and his character is deficient in terms of his lack of honesty and integrity. 9. The second limb of the statutory definition of "professional misconduct" – s 297(1)(b) of the Uniform Law – is established. We find that the Respondent's conduct, if he were an Australian legal practitioner, is conduct of a lawyer, whether or not occurring in connection with the practice of law, that would justify a finding that the lawyer is not a fit and proper. 10. We find the ground for disqualifying the Respondent under s 119(2)(d) of the Uniform Law has been established because, if the Respondent had been an Australian legal practitioner, his conduct would have constituted professional misconduct. We are satisfied that Particulars 30 and 55 to the Law Society's Grounds for Application are made out. A disqualification order should be made 1. On the facts as found, the Respondent's conduct amounts to grounds for disqualification under s 119(2)(b) and, separately, under s 119(2)(d). We must be satisfied not only that the grounds for making the disqualification order have been established, but also that the disqualification is justified. 2. Having regard to the nature and extent of the conduct of the Respondent which we have found to have occurred, the failure of the Respondent to engage in these disqualification proceedings and his failure to give evidence to explain his conduct, and the establishment of the grounds for disqualification referred to above in these reasons, we find that it is appropriate that a disqualifying order be made. 3. The Law Society requests that we make an order for disqualification indefinitely, and there being no other circumstances which would indicate to the contrary, we propose to make an order in these terms. Non-publication orders 1. In oral submissions at the hearing, the Law Society sought orders under s 64 of the NCAT Act prohibiting disclosure of the name of the Principal Solicitor and the Law Practice identified in the Application, and prohibiting the publication of evidence which contains details identifying the Principal Solicitor and the Law Practice. We declined to make any s 64 orders at the hearing, reserving our decision on that issue. No other order was sought by the Law Society prohibiting or restricting disclosure or publication of the names of other persons involved in these proceedings, including the two complainants, or in relation to evidence which identifies the complainants and other persons (except for the Principal Solicitor). Order in respect of Principal Solicitor 1. The Law Society sought an order under s 64(1)(a) to prohibit disclosure of the name of the Principal and the Law Practice; an order under s 64(1)(b) to prohibit those names being broadcast; and an order under s 64(1)(c) to prohibit publication of those names insofar as the names are referred to in evidence given before NCAT. 2. As to the order sought under s 64(1)(a) concerning the Law Practice, it was accepted by the Law Society in the hearing that the Law Practice is not a legal "person" (and noting that the Law Practice in question is not an incorporated law practice). Even if s 64(1)(a) is not restricted to natural persons and is broad enough to encompass corporate entities, which we do not need to decide (and in respect of which, we do not have submissions), s 64(1)(a) would not permit us to make an order which restricts disclosure of the name of an unincorporated law practice. We note, however, that by virtue of s 64(4), disclosure of the name of the Law Practice would be information that is likely to lead to the identification of the Principal Solicitor. Accordingly, if we were minded to make an order under s 64(1)(a) to prohibit or restrict the disclosure, or s 64(1)(c) to prohibit the publication of evidence containing the name of the Principal Solicitor, the practical effect of such an order would also be to prohibit or restrict reference to the name of the Law Practice in the circumstances of this case. 3. The basis on which s 64 orders are sought is that we may make adverse findings or comments which relate to the Principal Solicitor. We have not found it necessary to do so. However, he did not have an opportunity to make submissions about findings that might be made which might otherwise affect him by adversely impeaching his professional reputation. Given the non-participation of the Respondent in these proceedings, the evidence of the complainants is unchallenged. The Law Society submits that it would be unfair to the Principal Solicitor for his name to be made known through publication of the Tribunal's reasons in this matter, or for his name or identifying details to be disclosed through publication of evidence received by NCAT in the proceedings, where evidence which relates to him is essentially untested, without him having been heard. The Law Society acknowledged at the hearing that there is no current investigation being undertaken pursuant to the Uniform Law into the conduct of the Principal Solicitor with respect to issues which are referred to in these reasons for decision, nor are there disciplinary proceedings on foot. 4. Under s 64(1)(c) of the NCAT Act, if it considers it desirable to do so by reason of the confidential nature of the evidence or for any other reason, NCAT may, on application of a party or of its own motion, prohibit or restrict the publication of evidence given before NCAT, or of matters contained in documents lodged with NCAT or received in evidence by NCAT. 5. It is unclear why the Principal Solicitor has apparently not been given the opportunity to comment on the evidence in these proceedings which might allow for findings to be made against him personally, or even more broadly. However, as that is a matter outside our control, we have decided to make a non-publication order under s 64(1)(c) of the NCAT Act in respect of the Principal Solicitor. A prohibition on publication of his details as contained in the material before the Tribunal, rather than on disclosure, will suffice in the circumstances. 6. We do not consider that the orders sought by the Law Society under s 64(1)(a) and (b) of the NCAT Act are necessary. Order in respect of the two complainants 1. We have also decided to make an order under s 64(1)(c) of the NCAT Act, of our own motion, in respect of the two complainants. There is no public advantage to the names of the two complainants, or their personal details or affairs, being published, other than the information we have recorded in these reasons for decision. We consider it desirable due to the essentially confidential nature of the solicitor client relationship (or what was held out by the Respondent to be a solicitor client relationship), and the personal details of the complainants discussed in these reasons, that those details are not published. Orders 1. We make the following orders: 1. Pursuant to s 119 of the Legal Profession Uniform Law (NSW), the Respondent is disqualified indefinitely. 2. Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW), publication of evidence given in the proceedings, and documents lodged with the Tribunal, which identifies the persons referred to as the Principal Solicitor, Complainant 1 and Complainant 2, in these reasons for decision is prohibited. ********** 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 27 August 2024 - coversheet- section 199 corrected to section 119 para 6 - section 199(2)(d) corrected to section 119 para 128 - section 199 corrected to section 119 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: 27 August 2024