Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Kazas-Rogaris v Council of the Law Society of New South Wales [2024] NSWCATOD 166 Hearing dates: 16 September 2024 Date of orders: 15 October 2024 Decision date: 15 October 2024 Jurisdiction: Occupational Division Before: A Balla ADCJ, Principal Member D Fairlie, Senior Member Decision: The Decision of the Professional Conduct Committee, as delegate of the Council of the Law Society of New South Wales, on 28 April 2022 is affirmed. Catchwords: OCCUPATIONS — Legal practitioners — Solicitors — Unsatisfactory professional conduct — correct and preferable orders Legislation Cited: Administrative Decisions Review Act 1997 (NSW), s 63 Civil and Administrative Tribunal Act 2013 (NSW), ss 38(2), 50, 64(1)(a) Legal Profession Uniform Law Application Act 2014 (NSW) s 126 Legal Profession Uniform Law (NSW) ss 296, 298, 299, 3021(3), 314 Cases Cited: Chief Health Officer, NSW Health v FRC [2023] NSWCATAD 76 Council of the Law Society of New South Wales v Hammond [2021] NSWCATOD 52 Council of the New South Wales Bar Association v EFA [2021] NSWCA 339 Council of the New South Wales Bar Association v EFA (No 2) [2021] NSWCATOD 84 Di Giovanni v Council of the Law Society of New South Wales [2024] NSWCATOD 66 ECR v Public Guardian [2021] NSWCATAD 141 Griffin v Council of the Law Society of New South Wales [2016] NSWCA 364 Kostov v Ecclesia Housing Limited (No 3) [2018] NSWCATAP 221 Law Society of New South Wales v Maharaj [2017] NSWCATOD 79 Legal Services Commissioner v Sing [2007] 2 QLPT 4 New South Wales Bar Association v Evatt (1968) 117 CLR 177 Provident Capital Ltd v Anderson (No 3) [2013] NSWSC 705 Quinones v Council of the Law Society of New South Wales [2023] NSWCATOD 43 Re Becker and Minister for Immigration & Ethnic Affairs (1977) 32 FLR 469 State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69 Category: Principal judgment Parties: Anne Kazas-Rogaris (Applicant) Council of the Law Society of New South Wales (Respondent) Representation: Counsel: R Withana (Applicant) Solicitors: Attia Lawyers (Applicant) Law Society of New South Wales (Respondent) File Number(s): 2022/00157044 Publication restriction: Pursuant to s 64 (1) (a) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the name of any person referred to in any of the following documents/orders which were filed or generated in proceedings before the then Federal Circuit Court of Australia in a way that could reasonably identify any such person as a party to the proceedings, is prohibited: i. Order, dated 11 July 2017 at pp 56 to 59 of the bundle of documents filed by Council of the Law Society of New South Wales on 28 June 2022 pursuant to s 58 of the Administrative Decisions Review Act 1997 (NSW) (s 58 bundle); ii. Order, dated 15 February 2018 at pp 60 to 61 of the s 58 bundle; iii. Application for Divorce dated 14 September 2017 at pp 64 to 68 of the s 58 bundle; iv. Application in a case dated 1 November 2017 at pp 69 to 72 of the s 58 bundle; v. Response to Divorce, dated 23 November 2017 at pp 91 to 92 of the s 58 bundle; vi. Initiating application (Family Law) and Financial Statement dated 16 June 2017 at pp 106 to127 of the s 58 bundle; vii. Initiating application (Family Law) dated 16 June 2017 at pp 154 to 163 of the s 58 bundle; and viii. Notice of Intention to Withdraw as Lawyer dated 11 July 2017 at pages 164 to 165 of the s 58 bundle; and 2. Pursuant to s 64 (1) (c) of the Civil and Administrative Tribunal Act 2013 (NSW) the publication of any of the documents referred to in to in order 1 above is prohibited. REASONS FOR DECISION 1. Ms Anne Kazas-Rogaris was admitted as a solicitor in NSW in 1997. In these Reasons we have referred to her as the Solicitor. 2. On 28 April 2022 the Professional Conduct Committee (PCC), as delegate of the Council of the Law Society of New South Wales (Law Society), found that the Solicitor had engaged in unsatisfactory professional conduct. She was reprimanded and fined $2,500 (Decision). 3. On 27 May 2022, the Solicitor applied to this Tribunal for an administrative review of the Decision. She seeks an Order setting aside the Decision and, in the alternative, if we affirm the finding of unsatisfactory professional conduct, she seeks to have the Decision varied to impose a caution rather a reprimand, and a reduced fine. 4. The respondent is the Law Society. It says that the correct and preferable decision is the Decision made by the PCC on 28 April 2022. Background 1. The complaint which led to the Decision arose in the context of a family law matter in which the Solicitor acted for the Wife and Mr Maatouk, solicitor, acted for the Husband. A non-publication order in respect of the names of the Wife and the Husband was made on 29 June 2022, pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). 2. There was no oral or affidavit evidence before us from the Wife, the Husband or Mr Maatouk. Our understanding of the events leading up to the two Facebook messages which were sent by the Solicitor on 22 May 2017, which underpin the Decision, have principally been obtained from the evidence of the Solicitor in three affidavits, the Decision and some of the documents in evidence. The Solicitor also gave oral evidence before us. 3. The Wife and Husband married in 1987 and came to Australia in 1995. 4. On 3 September 2015, the Wife was declared bankrupt due to a debt in respect of a mortgage on a property which was registered solely in her name. 5. The matrimonial home was registered solely in the Husband's name. According to the Wife, this was due to her bankruptcy. She believed she had an equitable interest in the matrimonial home as the Wife of the Husband. 6. The Wife said they separated on 20 January 2017 although in Application to the Federal Circuit Court for a divorce filed by the Husband, he says they separated in 2002 or 2003 but continued to live in the same home until 20 January 2017. The Wife said that, from 20 January 2017, she came to believe that the Husband had left Australia and gone to the Philippines to pursue multiple relationships including marriage and had listed the matrimonial home for sale. 7. The Wife was living in a women's refuge in mid-April 2017 when she was referred to the Solicitor for pro bono assistance. The Solicitor said that the Wife instructed her to act for her in the family law matter as the Wife was concerned that her Husband would sell the matrimonial home without her knowledge and leave her homeless. She said she was instructed by the Wife to place a caveat on the property to prevent its sale. 8. The Solicitor said that the Wife had told her that there had been a history of physical, verbal and financial abuse in the relationship. 9. On 28 April 2017 the Solicitor lodged a caveat over the matrimonial home. 10. On 4 May 2017, the Husband instructed Mr Maatouk to lodge an Application for Preparation of a Lapsing Notice with NSW Land Registry Services. That Notice, once served, would cause the caveat to automatically lapse 21 days after service, unless the caveat was extended by Order of the Supreme Court. 11. In April and May 2017 the Wife attended the Solicitor's office virtually every day requesting help because she was receiving harassing messages from ladies in the Philippines who claimed they were having a relationship with the Husband. 12. The Solicitor says that, on 22 May 2017, the Wife came to the office in a very distraught state. She again complained about receiving messages daily from the Husband's girlfriends telling her she was a bad wife, she deserved everything she got, she was not really his wife and a woman would be marrying him in the Philippines. The Solicitor says she told the Wife that that was not possible as the Husband was still legally married to the Wife. The Wife then told the Solicitor that they had married in Egypt, they had not registered their marriage in Australia and the Husband had told her that they were not married in Australia. She had lied when she had signed a separation certificate to get Centrelink assistance as they were living under one roof and having normal relations. 13. The Solicitor said the Wife showed her the messages she had received calling her derogatory names such as "bitch and whore", saying words to the effect of "let go of your ex-husband or you will be very sorry. We will go after you. Let them get married, you stupid witch." 14. The Solicitor's file note made on 22 May 2017 relevantly said: "She continues to allege that she is being harassed and threatened by her husband's girlfriends overseas. She says she fears for her safety and she feels she would lose her mind. (The Wife) is shaking and appears to be unwell. ..She requested an AVO against these women. I said it difficult to place AVOs against people overseas in fact I advised that it cannot be done. She showed me some Facebook messages from two women in the Philippines. First message Respondent read "Your husband is not your husband you are lying. When you lie you will be cursed. Leave my darling alone or you'll be sorry. Will arrange for someone to put a stop for you to you. Your mother-in-law hated you because you are evil. Just go away, out of our lives. I wish you to die. You are just evil and you will be punished"… (The Wife) was crying uncontrollably. She said "Anne, I beg you help me put a stop to this harassment every day. He just wants me to have a breakdown." I told the Wife that I could not do anything from Australia. I advised her to go to the police to see whether they can assist. (The Wife) said "Just send them a message on Facebook Messenger and ask them to stop all this. Tell them he is still married to me and needs to divorce me before he marries them." I agreed to assist her on the proviso that she signed written instructions for me to do so. I advised (the Wife) that this is not common practice. However since we do not have an address to send her a letter I would, as she instructed, send a message advising this lady that (the Husband) is married and she cannot marry him while he is still married to my client. I would request that this woman stop harassing my client and I advised … that the (the Wife) was my client and I am her solicitor. I will write this message at her request. 1. The Solicitor then prepared a document which said: I [the Wife] instruct my solicitor Anne Kazas-Rogaris to send a private message on facebook as I have instructed her to write to the persons … and request that they stop all telephone calls and facebook messages to me that denigrate me. They should stop name calling me and swearing at me. My solicitor should also advise them that [the Husband] is still married to me and cannot proceed with any marriage in the Phillipines unless he legally divorces me. I do not want them to harass or intimidate me regarding these matters. 1. The Wife read it and signed it. 2. The Solicitor then sent two messages (Messages) on Facebook Messenger to the accounts which were confirmed by the Wife to be the source of the abuse. It is likely that the person was the Husband's girlfriend's (Girlfriend) sister (Sister): "Hello Madam, I advise that your sister is committing bigotry with (the Husband) because he is legally married and his wife is our client. (The Husband) is committing a crime. We will take action against him. Tell your sister to obtain legal advice regarding this matter. Kind regards Anne Kazas-Rogaris KR Lawyers and Consultants". (Message 1) "(The Husband) is a bigamist which is illegal in your country too. Thank you''. (Message 2) 1. It is the evidence of the Solicitor that she meant to type "bigamy" when she wrote "bigotry". 2. The Solicitor says that there was a third message sent to the account which requested that the Sister cease the harassment against the Wife. 3. On the following day the Solicitor wrote two letters to Mr Maatouk (the Husband's solicitor), one regarding the allegation of bigamy, the other regarding the Lapsing Notice. She said she intended for the tone to be conciliatory as she had realised that she should have contacted him first and left the Wife to do whatever she needed to protect herself, even if that meant switching off her social media account. The letter relevantly said: We refer the above matter. We have been advised by our client that your client is intending to get married in the Philippines. This is in spite of his existing marriage to our client which commenced in Egypt in 1987. Please find enclosed a translated certificate of marriage for your reference. Our client has been informed by your client that as their marriage was not formally registered in Australia he will be able to get married again in the Philippines. As you would appreciate this is not the case and the course of action your client is set on is in contravention of Australian law. We recommend that you advise your client of the consequences of their proposed action and breach of Australian law. 1. The other letter relevantly said: We are writing to you to attempt to reach an agreement with regard to the sale of the property that recognises the equitable interest that our client holds with respect to the property. To this end we would be prepared to allow the caveat to lapse provided that the next proceeds from the sale of the house are paid into your firm's trust account and held pending orders from the Family Court. We advise that we will be filing an initiating application in the Family Court by the end of this week. If an agreement cannot be reached in this matter we advise you that our client will not allow the caveat to lapse and will be seeking orders extending the duration of the caveat. This will be done by Thursday of this week at the latest. 1. On 25 May 2017, Mr Maatouk made a complaint to the NSW Legal Services Commissioner (Commissioner) on behalf of his client, the Husband, about the Solicitor who acted for the other side, the Wife, in a caveat dispute. The letter relevantly said: We refer to the abovementioned matter regarding the conduct of KR Lawyers & Consultants Pty Ltd. We act on behalf of (the Husband) and he has instructed us to lodge this complaint on his behalf. We now formally raise a complaint against KR Lawyers & Consultants Pty Ltd and it relates to their actions on social media and defamatory and derogatory comments, with the intention of harming our client's reputation as well as intimidating our client for the benefit of their client. Actions on social media and defamatory and derogatory comments On 23 May 2017, our client advised us by telephone that Ms Anne Kazas-Rogaris, the principal solicitor of KR Lawyers & Consultants Pty Ltd, had sent messages to our client's girlfriend's sister on social media. Our client also provided us with screen shots of these messages. We enclose herewith for your reference document 1, being copies of these screen shots. It is noted that our client is currently overseas in the Philippines and so is the sister that was contacted by Ms Anne Kazas-Rogaris. We have been instructed to lodge a formal complaint against Ms Anne Kazas-Rogaris and note that her conduct is unsatisfactory which falls well short of the professional and ethical standards expected from our honourable profession. Furthermore, we believe Ms Anne Kazas-Rogaris' conduct is in breach of rule 34.1.3 of the Australian Solicitors' Conduct Rules by using tactics that go beyond legitimate advocacy with the intention of harming and intimidating our client's reputation as well as his family and friends. By way of background, her client has lodged a caveat over our client's house and her actions are specifically designed to intimidate our client into not forcing her client to approach the Supreme Court to obtain an order stopping the lapsing of the caveat. Our complaint is not limited to the above breach only and we ask that your office look into the conduct and make your determination and findings concerning same. 1. The Solicitor said that she asked the Wife to forward the harassing messages to her, but the messages which she later received from the Wife are not the messages of abuse that came from the Philippines. She no longer has the co-operation of the Wife. 2. The Solicitor says that on the day she received the complaint from the Commissioner, she checked her Facebook account and the Messages were there. She did not print them out. She believes that her Facebook account was hacked because, later on, all of her messages from 2012 to 2018 were missing. 3. There is in evidence an affidavit from a solicitor who was employed as a paralegal at the Solicitor's office at the time. He had helped draft the Wife's Initiating Application in the family law proceedings. He recalled the Wife attending the office a number of times. He recalled that the Wife had said she had been harassed and intimidated by the Husband via emails and text messages. In around April 2017 he saw the Wife show the Solicitor her phone while the Wife was saying that the Husband, the Girlfriend and the Sister were harassing her. The Solicitor told the Wife that, as they were overseas, there was not much she could do. He saw the Solicitor type the authority, he brought it to the Solicitor from the printer and he saw the Wife sign it. He heard the Solicitor ask the Wife to send copies of the messages she had received on Facebook to the office email. He then saw the Solicitor typing on her Facebook account. After the complaint had been made to the Law Society, he checked the Solicitor's Facebook account and saw that she had sent three messages. They respectfully requested that the harassment stop and told the Sister that the Girlfriend could not marry a married man. It is his recollection that the Solicitor intended for these messages to stop any further harassment of the Wife. 4. The Commissioner dealt with the complaint between 25 May 2017 and 24 September 2018. On 24 September 2018, the Commissioner referred the complaint to the Law Society to be dealt with in accordance with the Legal Profession Uniform Law (NSW) (Uniform Law). Jurisdiction and nature of NCAT's review jurisdiction 1. Once a legal disciplinary decision has been made by the PCC under s 299 of the Uniform Law, the Solicitor may seek administrative review of that decision: Uniform Law, s 314. 2. The principles relevant to review proceedings were summarised in Quinones v Council of the Law Society of New South Wales [2023] NSWCATOD 43 at [14] (Quinones), and Di Giovanni v Council of the Law Society of New South Wales (Di Giovanni) [2024] NSWCATOD 66 at [24] including relevantly as follows: 1. This review is conducted under the Administrative Decisions Review Act 1997 (NSW) (ADR Act), the Uniform Law, the Legal Profession Uniform Law Application Act 2014 (NSW) (Application Act), s 126, and the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). 2. We must decide what is the correct and preferable decision having regard to the material before us: ADRA Act, s 63(1). 3. We stand in the shoes of the original decision maker and we should conduct the review as though we were performing the function of the PCC in accordance with the law as applied to it. We may consider the material before the decision-maker as well as any relevant new material put before us. We may exercise all of the functions that were conferred or imposed on the PCC: ADRA Act, s 63(2). 4. We may decide to affirm, vary or set aside the Decision (and then either make a substitute decision or remit the matter for reconsideration by the decision maker): ADRA Act, s 63(3). 5. There is no onus of proof on either party. The rules of evidence do not apply to review proceedings since they do not involve a question of professional misconduct: NCAT Act, s 38(2) and cl 20 of Sch 5; Uniform Law, s 301(3). A fundamental obligation is to make findings of fact based on logically probative material and we may rightly have regard to the gravity of any allegations made and to the gravity of the consequences that may flow from the making of a particular finding or decision. 6. Our task is to determine the matter on the merits. We are not concerned to examine whether there was challengeable error in the process or reasoning by the PCC. There is no presumption that the PCC's decision is correct. 7. We are entitled to inform ourselves on any matter in the manner we think fit, subject to the rules of natural justice. 8. The purpose of the disciplinary proceedings conducted by the Law Society and therefore our review of the decision, is not to punish the Solicitor but to protect the public. Previous disciplinary action 1. The Solicitor has been the subject of other disciplinary proceedings. 2. On 28 April 2022, the Law Society's PCC resolved: 1. To find that the Solicitor had engaged in unsatisfactory professional misconduct being unethical conduct in May 2018 by advising the complainant, who was a party to family law proceedings, to evade personal service of documents by the husband (the other party to those proceedings) after ceasing to formally act for the complainant; and 2. To reprimand the Solicitor and order that she undertake and complete ethics training within 6 months of the notification of the resolution. 1. On 29 April 2022, the Law Society sent the Solicitor a letter notifying her of the PCC's resolutions. The Solicitor has not undertaken the ethics training because she believes she has sought a review of the decision. 2. On 26 May 2023, for reasons which are not in evidence before us, the Law Society resolved to suspend the Solicitor's practising certificate for the practising certificate year ending 30 June 2023. The Solicitor's practising certificate remained suspended for the period from 1 July 2023 to 30 June 2024 and remains suspended for the period from 1 July 2024 to 30 June 2025. What were the Reasons and the Decision of the PCC? The Reasons 1. The PCC considered the Complaint which had been received from Mr Maatouk on behalf of the Husband. 2. On 28 April 2022 the PCC decided it was comfortably satisfied that: 1. In breach of a Conduct Rule, the Solicitor's assertions grossly exceeded a legitimate assertion of the Wife's rights by alleging in a message that the Husband and the Girlfriend were currently committing the crime of bigamy, despite not having evidence that they were married, and intimidated or misled the Sister by informing her that the Husband and the Girlfriend had already broken the law when it was not apparent that they had, and threatening imminent legal action for the criminal behaviour, not just in Australia, but in the Philippines too; and 2. Contrary to another Conduct Rule, the Solicitor's tactic of sending a misleading and intimidating message to the Husband's prospective extended family, was primarily designed to embarrass or frustrate the Husband and/or the Girlfriend. 3. The Solicitor demonstrated a lack of understanding of her obligations as a solicitor, including her obligation to act appropriately and to uphold the integrity of the legal profession, regardless of what she believed her client's circumstances or instructions to be. 4. The Solicitor had not provided any evidence on which she could reasonably have relied to make the accusations and assertions in the Messages, nor that would warrant the sending of the Messages in the manner and to the person to whom she did. 1. The PCC found that the Solicitor's conduct reflected an apparent fundamental disregard for her paramount duty to the administration of justice such that she had engaged in unsatisfactory professional conduct. The Decision 1. The PCC made the following orders in respect of the complaint: 1. the Solicitor was reprimanded: s 299(1)(b) of the Uniform Law; and 2. The Solicitor was fined $2,500: s 299(1)(f) of the Uniform Law). This Review 1. "This review involves a two-step process. We must determine whether the Solicitor engaged in unsatisfactory professional conduct, and if so, decide what protective order or orders (if any) are correct and preferable": Quinones at [15(10)]; Di Giovanni at [24(10)]. 2. We find that the Messages were sent in the course of the Solicitor's legal practice in representing the Wife. There was no submission to the contrary, Indeed, the Solicitor obtained the Wife's written instructions to respond to the emails from the Philippines. Did the Solicitor engage in unsatisfactory professional conduct? Legal principles 1. "Unsatisfactory professional conduct" is defined in the Uniform Law. 2. Firstly, the Law Society relies on s 296 of the Uniform Law. This was not the basis of the finding of unsatisfactory professional conduct in the Decision. It relevantly provides: 296 "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. 1. Secondly, the Law Society relies on s 298 which identifies categories of specific conduct that are capable of constituting unsatisfactory professional conduct. 298 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; 1. When the Solicitor engaged in the conduct the subject of these proceedings, rules 34.1.1 and 34.1.3 of the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 (Solicitors' Rules) provided: "Dealing with other persons 34.1 A solicitor must not in any action or communication associated with representing a client: 34.1.1 make any statement which grossly exceeds the legitimate assertion of the rights or entitlements of the solicitors client, and which misleads or intimidates the other person … 34.1.3 use tactics that go beyond legitimate advocacy and which are primarily designed to embarrass or frustrate another person.'' 1. The following principles are relevant: 1. "A legal practitioner does not have to have a subjective belief in the complete accuracy of every assertion they make on a matter of law either in submissions or in correspondence engaged in on behalf of their client. In the ordinary course, it may suffice if the practitioner considers that a relevant assertion on a matter of law is something which is reasonably open on the current state of the law. Of course whether that is so will always depend upon the context": Provident Capital Ltd v Anderson (No 3) [2013] NSWSC 705 at [36]. 2. "The Council submitted and we accept that it is not necessarily inappropriate for a lawyer, in negotiation, to indicate that the commission of a possible crime will be referred to the appropriate authorities, in circumstances where there is some basis in fact to apprehend that a crime has been committed: Council of the Law Society of New South Wales v Hammond [2021] NSWCATOD 52 (Hammond) at [64]. 3. There is a continuum applicable to practitioners, with legitimate pressure at the one end, and improper intimidation at the other. It may in any particular case be difficult to delineate the precise point at which any application of pressure becomes improper. That is why practitioners must be extremely careful before resorting to any even arguably threatening conduct. They are well advised to err on the side of caution, as in all aspects of their professional approach. With the increasingly intense demands of clients, and the high level of competition which these days characterises the practice of the law, practitioners will inevitably be asked to stretch the limits of their consciences: they must be steadfast not to yield to that temptation: Legal Services Commissioner v Sing [2007] 2 QLPT 4 at [30]. 4. If a letter on its face is objectively threatening and intimidating then it is not necessary to show that the solicitor intended it to be threatening and intimidating. ln Griffin v Council of the Law Society of New South Wales [2016] NSWCA 364 the appellant had written an ex parte letter to a Judge which made unfounded allegations and contained threats. The Court of Appeal held at [112]: The contents of the Letter must be judged on their face. There is not a shred of evidence advanced in the Letter to support any of the allegations of impropriety … the Messages read on their own and together are on their face objectively threatening and intimidating and it is not necessary to demonstrate that the Solicitor intended them to be threatening and intimidating: Was the language used in the Messages objectively threatening and intimidating? 1. The solicitor for the Solicitor, in his written submissions, prepared a table analysing the clauses used in the Messages in support of his submission that the Messages were not threatening or intimidating: 1. The opening salutation "Hello Madam" is polite. 2. "I advise" – This conveys information and is not threatening language. 3. "Bigotry" - Is not a crime. 4. "his wife is our client" – This was an assertion of fact, 5. "(the Husband) is committing a crime" – If the Husband takes steps towards marriage or if he has married, it is a crime. "Committing" is a gerund. The word commit here means "an association with" and is true if the Husband was taking steps to marry another. 6. "We will take action against him" – It is unclear what action will be taken. 7. "Tell your sister to obtain legal advice" – This is not threatening and is entirely appropriate. 8. "regarding this matter" - This is a reference to a civil, not a criminal matter. 9. "Kind regards Anne KR" – This is non-threatening language. 10. "(the Husband) is a bigamist" – The Solicitor makes the same mistake as the Law Society in confusing "steps being taken towards a second marriage" with being married twice. It is a mistake which can be easily remedied. 11. "Which is illegal in your country too" - This could simply mean that the marriage is void, not criminal. 1. The solicitor for the Solicitor submitted that the expression "We will take action against him" is unclear and could mean that the Solicitor will take action against the Husband to progress the family law dispute. We do not accept that submission. In the context of the whole message the meaning is perfectly clear - the Husband is committing bigamy while married to the Wife which is a crime in respect of which action will be taken by the Solicitor. 2. The next submission by the solicitor for the Solicitor relates to the (mistaken) use of the word "bigotry" instead of "bigamy". It was submitted that the Husband's intimidatory behaviour from overseas was driving acts of bigotry towards the Wife by calling her a "witch" so the use of the word bigotry in Message 1 was likely to confuse the reader and dilute the message intended. The effect was that the message was unclear and invited the reader to ask what is going on. We consider that this submission is fanciful. Calling the Wife a "witch" is not bigotry. In context, Message 1 makes it clear that the author is referring to the Husband remarrying while married. 3. The solicitor for the Solicitor also submitted that the Messages are, in context a warning to the Girlfriend to get advice before marrying the Husband. The recipient would have been aware of the harassing messages to the Wife, could have asked the Husband for clarification and would have been aware that the Girlfriend and the Husband had not yet married. This meant that the recipient was informed about the Husband's intention to marry and the Messages could have easily been rebuffed as a misunderstanding. We do not accept this submission. The relevant legal test is whether the Messages, on their face, are objectively threatening and intimidating. Speculating on what the recipient may or may not have known or may or may not have done is irrelevant. 4. The solicitor for the Solicitor submitted that it is rare that a demand to seek legal advice could be considered threatening. The Messages do not say that legal action in Australia and the Philippines will be taken imminently. Other messages in evidence show the Wife had benevolent intentions towards the two women in the Philippines. We do not accept this submission. The suggestion to obtain legal advice was given in the context of an assertion that a crime had been committed and that action would be taken and does not stand alone. 5. The solicitor for the Solicitor also submitted that there is no evidence from the Girlfriend or the Sister as to how they interpreted the Messages. We consider that the absence of this evidence is not relevant to our determination of whether the Messages were objectively threatening and intimidating. 6. The solicitor for the Solicitor made several submissions about errors in the investigation by the Commissioner and the Law Society culminating in the PCC not objectively reviewing what had taken place, accepting the Husband's assertions at face value, demanding that the Solicitor disprove a certain state of affairs, and not giving the Solicitor the benefit of the doubt when she lost contact with the Wife on 10 July 2022. However, it is not our role to determine whether there was any error made by the PCC. 7. The Law Society submitted that the terms of the Messages were objectively threatening to the recipient and the Husband. The Messages claim that the Girlfriend "is committing [bigamy]" with the Husband because he is legally married to his Wife and he is therefore committing a crime. By saying "We will take action against him" and "Tell your sister to obtain legal advice regarding this matter" and "(the Husband) is a bigamist which is illegal in your country too" the Messages are objectively threatening and intimidating as they make serious allegations that a crime had been committed and that action would be taken. Appending "KR Lawyer and Consultants" in Message 1 in an otherwise informal means of communication implied that the Message had been sent by someone with legal knowledge who was capable of providing legal services and reinforced the potential correctness of the matters alleged and the seriousness of the intent in threatening to "take action against him". Message 2 implied that the action which "we will take against him" in Message 1 could also include the potential involvement of law enforcement authorities in the Philippines or legal recourse pursued in the Philippines either against the Husband, the Girlfriend or the Sister. The words "tell your sister to obtain legal advice" confirms that, viewed objectively, the Messages were threatening and intimidating to the Girlfriend and indirectly through her, to the Husband. 8. We are satisfied that, viewed objectively, on their face the Messages were threatening and intimidating. 9. While the Solicitor has tried to explain each of the phrases used in the messages, we do not accept that this is the appropriate way to decide whether the effect of each of the Messages was to threaten and intimidate. 10. Looking at them as a whole, the Messages have been sent by a lawyer acting for the Wife. They are couched in legal terms and signed by a lawyer. They inform the Sister that the Husband is committing a crime in two countries and his conduct is illegal. Message 1 threatens that action will be taken by the Wife's solicitor against the Husband. It is implied that this will involve the Girlfriend as the Solicitor recommends that she obtain legal advice. Did the Solicitor have any basis for the making of the threat? 1. We are satisfied that the sentence "is committing a crime" did not accord with the Solicitor's instructions because she had not been told that the Husband and the Girlfriend were married. The Solicitor agreed in cross examination before us that she did not believe at the time she sent the Messages that the Husband and the Girlfriend were married. She also said so in her letter to Mr Maatouk the next day and in her affidavit affirmed on 11 July 2024. We are accordingly satisfied that in the Messages the Solicitor made an assertion on a matter of law, that the Husband had committed bigamy, which was not reasonably open. It was also inappropriate to threaten possible "action" without specifying what type of action leaving open the reasonable possibility of legal or other law enforcement action when there was no basis in fact or law to apprehend that a crime had been committed. 1. We are further satisfied that the Solicitor did not believe at the time that there was any "action" available against the Husband and/or the Girlfriend despite making that threat in Message 1. In her own file note the Solicitor said she told the Wife, before she sent the Messages, that she could not do anything from Australia. 2. The solicitor for the Solicitor submitted that the Messages were guided by the extent of the instructions given to her in writing by the Wife and were proportionate to the letter of instruction. We do not accept this submission. We have reproduced above the written instructions from the Wife to the Solicitor. They do not ask the Solicitor to send threatening and intimidating messages which allege the commission of an offence in two countries and a threat of action. In any event, as the solicitor for the Solicitor conceded, a legal practitioner cannot hide behind the excuse that "my client told me to do this", in this case sending correspondence to a person alleging the commission of an offence where there is no proper foundation for the allegation. 1. The solicitor for the Solicitor submitted that the Messages were sent when the Wife was in a state of high distress, crying and refusing to leave unless the Solicitor acted consistently with her instructions. The Solicitor said she felt compelled to send the Messages and was described as having sent the Messages under duress. While we have some sympathy for the position of the Solicitor, a competent and diligent legal practitioner would nevertheless have confined their assistance to actions consistent with their ethical obligations. As submitted by the Law Society, the Solicitor should have told the Wife that she could not do what was being asked of her, and if that was not acceptable, terminated the client-solicitor relationship. 1. We are satisfied that the Solicitor did not have any basis for the making of the threat in the Messages. Findings 1. We are satisfied that the Solicitor included the empty threat of a crime having occurred in respect of which action would be taken in the Messages because she believed it could stop the harassment of the Wife from the Philippines. She has said on many occasions that was the purpose of the Messages. For example, in a letter to the Law Society dated 6 September 2017 the Solicitor relevantly said: My then client [the Wife] was receiving on daily basis abusive messages on her facebook … I was requested to send some form of communication to stop the harassment … The harassment that my client was suffering was significant and ongoing and the messages sent at the behest of my client were an effort to stop the ongoing intimidation and harassment. 1. We find that the Solicitor did not have a subjective belief in the accuracy of the assertions she made on a matter of law in the Messages, nor were they reasonably open. She threatened that a crime will be referred to the appropriate authorities, in circumstances where there was no basis in fact to apprehend that a crime had been committed. The authorities say that practitioners must be extremely careful before resorting to any even arguably threatening conduct and are well advised to err on the side of caution. The Solicitor did not do so. 2. For these Reasons, we find that the Solicitor's conduct in sending the Messages fell well below the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer and is thus unsatisfactory professional conduct as defined in s 296 of the Uniform Law. 3. In relation to the conduct being inconsistent with the Solicitors' Rules: 1. Solicitors' Rule 34.1.1 provides that a legal practitioner must not make a statement which grossly exceeds the legitimate assertion of the rights or entitlements of the client and would have misled and/or intimidated the recipient. We find that the Messages did grossly exceed the legitimate right and entitlements of the Wife and would have misled and/or intimidated the recipient. The Messages are predicated on an assumption that the Husband and Girlfriend were married and the offence of bigamy had been committed, when the Solicitor had in fact only been told that they intended to marry. Message 1 contained a threat to take action. Conduct that "intimidates" another person is conduct that objectively bears that character. The maker of such statements need not subjectively intend to intimidate, and the recipient need not feel subjectively intimidated: Hammond at [70], [84]. We are satisfied that misleading Messages were sent to intimidate the Girlfriend and the Sister so that they would stop sending messages. Thus the sending of the Messages was inconsistent with r 34.1.1. 1. Solicitors' Rule 34.1.3 provides that a legal practitioner must not use tactics that go beyond legitimate advocacy and which are primarily designed to embarrass or frustrate another person. We accept the submission made by the Law Society that "conduct that goes beyond legitimate advocacy" and is "primarily designed to embarrass or frustrate another person" should be construed as conduct directed to the recipient of the communication and any other person that could reasonably be regarded as the intended recipient of the communication. We are satisfied that the Messages went beyond legitimate advocacy and were primarily designed to embarrass or frustrate the recipient, and through them, the Husband. Thus, the Solicitor's conduct was also inconsistent with r 34.1.3. 1. As we have said, practitioners must be extremely careful before resorting to any even arguably threatening conduct and are well advised to err on the side of caution. The Solicitor's failure to do so was in breach of rr 34.1.1 and 34.1.3 and we find that it is unsatisfactory professional conduct: Uniform Law, s 298(b). 2. We are not bound by the PCC's reasons for the Decision: Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286. Accordingly, we may arrive at the same decision for the same or different reasons. 3. We have agreed with the PCC's finding of unsatisfactory professional conduct under s 298 of the Uniform Law and we have, in addition, found the Solicitor guilty of unsatisfactory professional conduct under s 296 of the Uniform Law. Outcome 1. In Law Society of New South Wales v Maharaj [2017] NSWCATOD 79 at [24] the Tribunal set out what we accept to be the principal considerations in respect of the appropriate protective orders to be made, albeit that they do not constitute a closed list. They are: 1. The gravity of the misconduct; 2. The deterrent effect of any protective order on the further conduct of the practitioner; 3. The deterrent effect of any protective order on the conduct of other practitioners; and 4. The enhancement of confidence in the public in the integrity of the profession. 1. We accept the submission made by the Law Society that, on the evidence before us, the Solicitor did not have any diagnosable mental health condition in May 2017 that would warrant any reduction in her moral culpability for her conduct. 2. In deciding on the appropriate protective orders to be made following a finding of unsatisfactory professional conduct, we are obliged to take into account any failure by the practitioner "to understand the error of [their] ways": New South Wales Bar Association v Evatt (1968) 117 CLR 177; [1968] HCA 20, at 184. The Law Society concedes that the Solicitor now appears, to some extent, to understand that her conduct was wrong. The Solicitor says that, at the time, she was passionate about trying to help the Wife who was going through a difficult time and she wanted to assure the Wife that she was on her side. The Solicitor says she now understands she should not get too caught up in a client's affairs. She understands that boundaries need to be drawn and she must employ better measures to work with clients who have complex needs. She said that if she could go back in time, she would have done things differently. The Solicitor had several serious family issues and personal medical issues in 2023 and early 2024 and, during this time, was able to prioritise her health and wellbeing and reflect on her past mistakes. She has been working towards self-improvement by completing courses and prioritising her own health. 1. The Solicitor asks for a caution rather than a reprimand because it is a less serious sanction. 2. However, in our view, the Decision of the PCC to reprimand the Solicitor and impose a $2,500 fine was the correct and preferable decision after taking into account the need for specific and general deterrence in light of the seriousness of the conduct, and to maintain public confidence in the integrity of the legal profession in New South Wales. 3. We accordingly affirm the Decision made by the PCC on 28 April 2022. Non-publication Order 1. At the conclusion of the hearing, the solicitor for the Solicitor sought an order under s 64(1)(a) of the NCAT Act to prohibit the disclosure of the Solicitor's name in these proceedings. A timetable was set for the filing of written submissions in relation to this issue. 2. Those submissions have been received and considered. 3. Section 64 (1)(a) relevantly provides: "(1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders-- (a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal) ...". 1. The grounds for the application were the following: 1. To avoid harm to the Solicitor's continuing deteriorating mental health, as publishing our decision will cause her to be embarrassed. There are in evidence relevant medical reports from a psychiatrist prepared in 2020 and 2021. The 2021 report describes the Solicitor as having had a significant mental health issue in the past. The Solicitor reported ongoing panic attacks and the doctor noted an improvement in her mental state since 2020 and diagnosed her as currently having mild residual anxiety symptoms. There is accordingly no current evidence of any mental health issue. The solicitor for the Solicitor submitted that the Solicitor's doctor had recommended she discontinue practicing in 2023 due to her health circumstances and she had notified the Law Society of her intention not to renew her practicing certificate on that advice. A medical certificate from a general practitioner is in evidence. It certifies the Solicitor as unable to work from 24 May 2023 to 29 May 2023 because she was the carer of her mother who was then in end stage (Palliative care) cancer treatment. The lengthy report from that doctor describes the Solicitor as suffering from a number of physical medical conditions which, together with her anxiety and pain management issues, caused him to recommend she take time off work to undergo surgery and obtain other treatment. 1. The names of the Wife and the Husband are the subject of a non-disclosure Order. For the purpose of this complaint, the Solicitor tried to find the Wife. It was submitted that it is possible that a publication of the Solicitor's name could alert those close to the family law proceedings about this matter. 1. The Law Society submitted that: 1. The word "desirable" should be interpreted having regard to the presumption in favour of open justice: State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69 at [61] (Dezfouli). 2. Having regard to the terms of s 64(1) of the NCAT Act, the Solicitor's name is not of a "confidential nature" and, as such, there must be "any other reason" to make it "desirable" to make an order under s 64. Thus, s 64 confers on the Tribunal a broad discretion to make a non-disclosure order for a broad range of reasons but there must be "good reasons" for such an order: ECR v Public Guardian [2021] NSWCATAD 141 at [20]. 3. Generally speaking, the prospect of damage to reputation or "embarrassment'" affecting a participant in the proceedings will not provide sufficient grounds for an order under s 64 although there may be unusual circumstances where this is the principal consideration underlying an order: Dezfouli at [81]; Council of the New South Wales Bar Association v EFA (No 2) [2021] NSWCATOD 84 at [84]-[85]. The Solicitor has not, it was submitted shown there are unusual circumstances that would warrant this being the main (or even a) reason for a s 64 order. 1. The Solicitor has not filed any evidence from a doctor, counsellor or mental health professional about her current mental health status, treatment, and risk to that mental health arising from the publication of her name in these proceedings. It is on such an evidentiary basis that the Tribunal can assess the calculus of risk to assess the nature, imminence and degree of likelihood of harm to the Solicitor such that it is "desirable" to make an order under s 64(1)(a): Chief Health Officer, NSW Health v FRC (application for continuation of public health order) [2023] NSWCATAD 76 at [11]; Council of the New South Wales Bar Association v EFA [2021] NSWCA 339 at [228]. There is no evidentiary basis provided by the Solicitor to support the desirability of making an order under s 64(1)(a) insofar as it relates to any risk of harm to her mental health. 1. The orders on 29 June 2022 to preserve the anonymity of the Wife and the Husband were made to comply with the requirement in the Family Law Act (Cth) 1975, s 114Q. That section provides that a person commits an indictable offence if the person communicates to the public an account of proceedings under the Act and the account identifies a party to the proceedings. The requirement to preserve the anonymity of parties and witnesses under that Act is not disturbed by publishing the Solicitor's name. Even in family law judgments that anonymise the names of the parties, the parties' legal representatives, including solicitors and counsel, continue to be identified. 1. We are not persuaded to make the order sought by the Solicitor for the following reasons: 1. The principle of open justice. As pointed out by counsel for the Law Society, one of the objects of the NCAT Act in s 3 (f) is to ensure that the Tribunal is accountable and has processes that are open and transparent. In Kostov v Ecclesia Housing Limited (No 3) [2018] NSWCATAP 221, an Appeal Panel of the Tribunal said: 10. In New South Wales there is a system of open justice. From time to time reports of decisions of courts and tribunals reveal circumstances pertaining to parties in proceedings of a personal nature, and some of which deal with a whole range of difficult circumstances. Whilst it is unfortunate that details of this kind are revealed in this way, this is a necessary concomitant of open justice. 11. There are many cases in this Tribunal where non-publication orders have been made under section 64 of the Act, but they are principally directed to ensuring confidentiality with respect to disciplinary proceedings taken against health practitioners or legal practitioners and concern the names and details of persons who are their patients or clients as well as the families of those patients and clients. It is rare indeed that the name of a practitioner against whom disciplinary proceedings are taken will be suppressed. See for example, Health Care Complaint Commission v Vo [2014] NSWCATOD 127. Of course, the circumstances of such proceedings are significantly different from those which apply to these proceedings. 1. In relation to the first reason relied on for the making the Order, that is the effect on the mental health of the Solicitor, we decline to find that there is any reliable current evidence before us supporting the submission that publication of the Solicitor's name would cause a deterioration in the Solicitor's mental health. We accept that publication of the Solicitor's name is likely to cause her embarrassment. However, as pointed out by counsel for the Law Society, this would only be a sufficient ground in unusual circumstances. No such unusual circumstances have been shown. 1. In relation to the second reason relied on for the making of the Order, we accept the submission made by the Law Society that the purpose of the existing non-disclosure orders was to comply with the Family Law Act and that this compliance does not extend to the non-publication of the name of the Solicitor. 1. We have deliberately omitted irrelevant details, such as addresses, as it is not necessary to disclose them for the determination of the matters before us. 2. The parties agreed that, if we decided to refuse the application, they consented to dispensing with a hearing on this issue and to the making of our decision on the basis of their written submissions. Costs 1. No application was made for an order for costs. Orders 1. The Decision of the Professional Conduct Committee, as delegate of the Council of the Law Society of New South Wales on 28 April 2022 is affirmed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 October 2024