CITATION: The Council of the Law Society of New South Wales v Green (No 2) [2009] NSWADT 297 DIVISION: Legal Services Division APPLICANT The Council of the Law Society of New South Wales PARTIES: RESPONDENT Martin Geoffrey Green FILE NUMBER: 072011 HEARING DATES: 4 June 2009 SUBMISSIONS CLOSED: 10 June 2009 DATE OF DECISION: 30 November 2009 BEFORE: ; Riordan M - Judicial Member; Fitzgerald R - Non-Judicial Member CATCHWORDS: Disciplinary - Solicitor LEGISLATION CITED : Legal Profession Act 2004 Briginshaw v. Briginshaw (1938) 60 CLR 336 Council of the Law Society of New South Wales v. Green [2008] NSWADT 149 CASES CITED: New South Wales Bar Association v. Cummins [2001] NSWCA 284 Johns v Law Society of NSW [1982] 2 NSWLR 1 Stanoevski v. The Council of the Law Society of New South Wales [2008] NSWCA 93 Application of Noel Norman Dennis to be Restored to the Roll of Solicitors and in the Matter of The Legal Practitioners' Act New South Wales Court of Appeal CA 367 of 1987 APPLICANT N Beaumont, barrister REPRESENTATION: RESPONDENT P Boulton SC, barrister 1. That upon the respondent making application for grant of a practising certificate in proper form, the applicant shall issue a practising certificate in the name of Martin Geoffrey Green ORDERS: 2. The certificate shall include the following conditions:(a) The respondent shall be entitled to practise as an employed solicitor for 3 years;(b) He shall be employed by Martin Churchill of Martin Churchill Lawyers, or such other practitioner as may from time to time be approved by the Council of The Law Society of New South Wales;(c ) For a period of 12 months from commencing practise, the respondent is to consult regularly with Dr Richard Barnard, or other nominated psychiatrist, such consultations to be not less than once per month. 3. The Tribunal makes no order as to costs of the penalty proceedings. REASONS FOR DECISION 1 At the conclusion of the substantive proceedings in this matter (Council of the Law Society of New South Wales v. Green [2008] NSWADT 149), the Tribunal made the following orders: i)The respondent is guilty of professionals misconduct in respect of Ground 1 (a) and (b) and Ground 2; ii)The respondent is to pay the costs of the applicant in respect of the proceedings; iii)The matter us listed for Directions on 18 June 2008 to determine a timetable for penalty hearing; iv)Penalty hearing listed for 23 July 2008. 2 For reasons that do not attract criticism for either party, the penalty hearing was ultimately heard by the Tribunal on 4 June 2009, following which the parties were required to file any case materials upon which they relied by 10 June 2009. 3 The professional misconduct alleged by the Law Society was in the following terms: Ground 1: (a) That on 14 November 2000 the respondent advised his client, Luke Benbow, ["Benbow"] that the respondent would approach Detective David Patison ["Patison"] about the return of a portion of a sum of $31,000 the subject of a "Goods in Custody" charge against Benbow, in return for the dropping by Patison of the said charge and the retaining by Patison of the balance of the $31,000, the amount of the balance to be negotiated. (b) the respondent would not raise a Tax Invoice for legal services in relation to retrieving the said portion of the $31,000 from Patison, or charge 10 percent GST in respect of those services, but would take a portion (the precise amount to be agreed) of the money which Patison agreed to return to the respondent. Ground 2: On 5 December 2000 the respondent during the course of a conversation advised Benbow that the respondent would discuss with Patison, on behalf of Benbow, what portion of the sum of $31,000 Patison would wish to retain in return for Patison procuring the dropping of the charge of "Goods in Custody". 4 Those allegations arose from recordings made by the New South Wales Crime Commission ["NSWCC"] of conversations between the respondent and his client, Luke Benbow,["Benbow"] and a telephone conversation with David Patison,["Patison"] then a detective working at Many Police Station, who was subsequently convicted and imprisoned for offences of corruption. 5 In the substantive proceedings, the respondent, through his counsel, did not dispute the content of the recorded conversations, however, it was submitted that whilst the words were spoken, they did not reflect the respondent's intentions. 6 The respondent was present in the Tribunal throughout the substantive proceedings but did not give evidence. The Tribunal was, however, informed by his counsel, that he would do so on any subsequent penalty proceedings. 7 The respondent's failure to give evidence was dealt with at length in the Tribunal's decision [paras 77-84 ]. The respondent can have been left in no doubt as to the weight the Tribunal attached to that issue. 8 In making findings against the respondent the Tribunal said: "The respondent and only the respondent was in a position to tell the Tribunal, in evidence, what he intended. He did not give evidence. His words must stand, and the intention expressed in those words must be taken to be his intention at the relevant time." [para 88]. 9 When the proceedings to determine penalty commenced, the respondent's counsel tendered a number of character references, all of which were admitted without objection, together with an affidavit from his treating medical practitioner which was also admitted without objection. 10 Initially, no affidavit evidence was tendered from the respondent, and it became clear that it was not intended to call him to give evidence. Following submissions from counsel for the applicant, the Tribunal made it clear to counsel for the respondent, that it perceived great difficulty in being deprived of hearing sworn evidence from the respondent. Following argument, the Tribunal ruled that failure to make himself available for cross-examination must inevitably lead to a Jones v. Dunkel inference being drawn against him. 11 Following an adjournment, counsel for the respondent sought leave to re-open his case and call the respondent. That was not opposed by counsel for the applicant on condition that any evidence from the respondent should be strictly limited to "matters dealing with what he has done and steps which he says he has taken by way of rehabilitation" and that there should be no "attempt to re-agitate matters found against Mr. Green." Upon those conditions, which were acknowledged by counsel for the respondent as being essential, leave was granted by the Tribunal. 12 The applicant sought an order that the name of the respondent be removed from the Roll of Legal Practitioners pursuant to section 562 (2) (a) Legal Profession Act 2004, ["LPA2004"]and that he be ordered to pay the costs of the applicant pursuant to the provisions of section 566(1) LPA 2004. 13 It was not in dispute that the forensic contest in the substantive proceedings concerned the question whether or not the respondent intended acting upon the recorded words, or was merely "humouring" his client, in other words, deliberately misleading his client. The Tribunal found against the respondent on that issue in finding that he intended to do that which he told his client he would do. 14 The applicant submitted that the respondent's advice to his client concerning attempts to retrieve the $31,000, the subject of a "Goods in Custody" charge, and his apparent intention to engage his client and himself in tax evasion is conduct that strikes at the heart of the justice system. 15 In New South Wales Bar Association v. Cummins [2001] NSWCA 284, a case dealing with a 40 year failure to file tax returns by a member of the Bar, resulting in an assessment by the Australian Tax Office of outstanding taxes in excess of one million dollars, which the respondent avoided by declaring himself bankrupt, Spigelman CJ said: 19 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. 20 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. 16 In the view of the Tribunal it is important to emphasise that the requirement for honesty and integrity in members of the profession is absolute. There are no shades of grey. 17 It was submitted by the applicant and conceded by the respondent, that the evidence before the Tribunal could result in no finding other than that the respondent as at the date of the admitted conduct in November and December 2000 was not a fit and proper person to be permitted to remain upon the Roll of Legal Practitioners. 18 As always, the issue for the Tribunal was whether or not the respondent is presently a fit and proper person to be permitted to engage in legal practice. The applicant was entitled to rely upon the case proved against the respondent in the substantive proceedings. Without further evidence, the presumption of continuity established that the respondent was not a fit and proper person to remain upon the Roll of Legal Practitioners. Thereafter, the evidentiary onus to satisfy the Tribunal that he is a fit and proper person to have that privilege falls squarely upon the respondent. 19 In Stanoevski v. The Council of the Law Society of New South Wales [2008] NSWCA 93, Campbell JA with whom Hodgson JA and Handley AJA agreed pointed out: 58 I accept that the relevant onus of proof of the ultimate issue in the proceedings was on the Law Society. The case it was propounding was that the Appellant was not a fit and proper person to remain on the roll, and it bore the onus of establishing that negative proposition. 59 The starting point of one strand of the reasoning of the Appeal Panel was that the actions of the Appellant that were the subject of the information were all acts of serious professional misconduct. The next step was that the collective effect of the acts of professional misconduct was that, as at the time the last of them had been committed, the Appellant was not fit to remain on the roll. That conclusion was not argued against, nor could it be. I accept that the Appeal Panel then looked to see whether the Appellant had provided any basis for the Appeal Panel believing that the situation had changed. The Appeal Panel was not satisfied that any such basis existed. 60 In my view, in proceeding in this way the Tribunal was not improperly casting an onus of proof onto the Appellant. All it was doing was recognising that the proved facts of the various acts of professional misconduct led to the Appellant being under an onus of adducing evidence. That is an entirely proper way of proceeding. In Johns v Law Society of NSW [1982] 2 NSWLR 1 Moffit P (with whose reasons Hope JA agreed) dealt with a situation where a solicitor had engaged in acts of professional misconduct some years before proceedings for his removal were heard. He said, at 9-10: "Where there is misconduct prima facie requiring at that time a striking off order on the basis of then unfitness, the substance of the question whether when the matter comes for decision some years later is not dissimilar to the question arising upon an application for re-admission, namely whether it appears that there is material before the court to lead it to conclude that the past proved unfitness has been changed to fitness. The ultimate onus is on the Law Society, but where there is admitted professional misconduct and a claim of rehabilitation or of fitness replacing unfitness, the court will look to what evidence there is to establish this change and will expect he who claims there is such a change to point to the evidence that there is." 20 Later his Honour said: "…where the Law Society had the onus of proving a negative proposition, namely that the Appellant was not a fit person to remain on the roll, the evidence it adduced of the various acts of professional misconduct in the period 1991 to 1993 were enough to establish that the Appellant was then unfit. A presumption of continuity would then arise, such that a court or tribunal would be justified in concluding that the Appellant was still unfit, unless the Appellant could produce evidence that gave reason for believing that the situation had changed. That is a totally conventional application of a shifting evidential onus. It involved no error of law by the Appeal Panel." 21 The firm view of the Tribunal was that absent relevant evidence from the respondent, it would not be possible for the Tribunal to be satisfied that he was presently a fit and proper person. 22 Although this was the applicant's application to remove the respondent's name from the Roll of Legal Practitioners, given the lapse of years since the conduct, and the fact that the respondent has not acted as a legal practitioner in almost 9 years, some of the relevant principles are to be found in cases where a former practitioner sought to be restored to the Roll. 23 In In the matter of the Application of Noel Norman Dennis to be Restored to the Roll of Solicitors and in the Matter of The Legal Practitioners' Act New South Wales Court of Appeal CA 367 of 1987, Samuels JA referring to a large number of character affidavits filed on behalf of the applicant said: "I have no doubt that these deponents … have provided their honest opinion of the applicant's character. But such a person as emerges from the pages of these affidavits would have been absolutely incapable of the acts of misconduct, dishonesty and want of candour which the Court found established. …since the deponents had nothing but the highest opinion of the applicant throughout an acquaintance which in many cases commenced well before the events which led to his striking off, it is difficult, from the material supplied, to perceive the radical transformation which lies at the very heart of this application… On the other hand the findings of the Court which, for the purposes of this application must be taken to be correct and immutable, indicate that he was not always a good man and, indeed, acted dishonestly in more than one particular." 24 Later his Honour said: "Acknowledgement of error does not itself displace the unfitness which error manifests. But it is an indispensable starting point." 25 The Tribunal considered the affidavit character evidence, and the criticisms made of that evidence by counsel for the applicant to the effect that the evidence was fundamentally flawed on three bases: (i) that the references proceed upon a false premise in that they accept the assertion by the respondent that he did not actually intend to act in accordance with his spoken words, that being contrary to the finding of the Tribunal in the substantive proceedings; (ii) the referees refer to the respondent's characterisation of his misconduct as "unprofessional", inappropriate" and "unethical", which, it is submitted, falls short of a proper characterisation of his misconduct; (iii) the character evidence fails to address the right question, namely, in the face of the respondent's concession that as at 2000 he was not a fit and proper person to be upon the Roll, what evidence has been adduced to prove that his character has undergone such profound change that he can now be found to be a fit and proper person. 26 It is submitted by the applicant that the character evidence is directed to showing, "in the teeth of the findings of the Tribunal" that the respondent is, and always was a person of good character. 27 The Tribunal finds considerable merit in those criticisms of the character affidavits. Despite the majority of referees being legal practitioners, they appear not to have turned their minds to the question of any change in the respondent which might encourage the Tribunal to find that there has been a substantial alteration in his appreciation of his professional obligations, such that the Tribunal could be satisfied that there would not be a repetition of the conduct found proved against the respondent. 28 The Tribunal has, accordingly, looked with great care at the evidence given at the 11th hour by the respondent, because, ultimately, it is that evidence, primarily, that is capable of satisfying the Tribunal that there has been such reformation of character that he should be permitted to remain on the Roll, albeit, inevitably were that to occur, with stringent conditions upon his right to practise. 29 The Tribunal has also considered the report dated 7 May 2009, of Dr Richard Barnard, consultant psychiatrist. The respondent first consulted Dr Barnard, to whom he had been referred by his general practitioner, in August 2008. 30 Dr Barnard found that prior to the respondent's misconduct coming to light and attracting considerable unfavourable publicity, the respondent had shown no signs of psychiatric illness. He found that at the time he first saw the respondent in 2008, he presented as a "thoughtful, articulate and very contained man." He was diagnosed as suffering from Adjustment Disorder with Depressed Mood and Anxiety, which condition was consequent upon the public disclosure of his misconduct; being brought before the Police Integrity Commission; his trial on criminal charges [of which he was acquitted]; and the loss of his ability to practise as a solicitor. 31 Dr Barnard's prognosis was that having been "greatly traumatised by the events of 2000" the respondent is genuinely remorseful for his actions; that he is presently capable of performing the role of legal practitioner were he granted the right to return to the profession. 32 Nothing in that report suggests that at the time of his misconduct the respondent was suffering under any psychiatric disability that would account for his behaviour. Nor is there anything in Dr Barnard's report to suggest that the respondent sought to attribute his misconduct to psychiatric illness or disturbance. The Tribunal is satisfied that the respondent's misconduct cannot, in any way, be attributed to a psychiatric condition existing at the relevant time. Nor has the respondent sought to suggest that at the relevant time he was suffering a psychiatric condition that might have impacted upon his conduct. 33 The Tribunal accepts that the respondent has experienced some years of psychiatric disturbance resulting from the disclosure of his misconduct and the consequential events. 34 Dr Barnard's prognosis states: "… Mr Green has been greatly traumatised by the events of 2000 and their consequences and that he is genuinely remorseful for his action. I also believe that his approach to dealing with his difficulties, a product of his sense of manliness, and his contrition, has been a contributing factor to the maintenance of his condition, alongside the extended nature of the investigation and trial and the delay in resolution of his circumstances in regard to his right to practise law. Once resolution of the latter is effected Mr Green's already significant improvement should progress. I believe his overall prognosis to be good." 35 It is Dr Barnard's opinion that following treatment, he does not believe that the respondent's illness "precludes him in engaging in any occupation, profession or employment for which he is fit by virtue of his training and education." 36 As was made clear in the Tribunal decision in the substantive proceedings, the findings against the respondent were limited to the events of 14 November and 5 December 2000. There is no evidence to suggest that the respondent has otherwise been guilty of professional misconduct nor that he was generally corrupt. To that extent, the references assist the respondent, and, as the Tribunal noted in its decision, both Benbow and Patison gave evidence in other proceedings that the respondent was not corrupt.[See paragraph 49]. 37 In assessing the weight to be attributed to the statements of Patison and Benbow the Tribunal is mindful of the history of each of those men. 38 The Tribunal proceeds upon the basis that there is no evidence of any other acts of corruption or professional misconduct by the respondent in the course of his practise as a solicitor. 39 The Tribunal notes that there is no evidence of any complaints against the respondent other than those matters dealt with in the Tribunal. 40 The Tribunal accepts that the respondent has suffered significant detriment as a consequence of his misconduct: He has not been able to practise his profession since January 2002 with consequent loss of income; he has been involved in proceedings before the Police Integrity Commission ["PIC"]; he has stood trial, and been acquitted on criminal charges relating to his conduct; he has suffered a psychiatric illness brought about by the consequences of his own conduct; and he has been engaged in these proceedings over an extended period. 41 It is not in dispute that at the time of engaging in these acts of disgraceful and dishonourable conduct amounting to professional misconduct, and at the time his practising certificate was cancelled in January 2002, the respondent was not a fit and proper person to be upon the Roll of Legal Practitioners. The question for the Tribunal is whether or not he is now a fit and proper person to be permitted to practise law. 42 As is frequently pointed out, the role of the Tribunal is not a punitive one. The primary obligation of the Tribunal is the protection of the public, in order to ensure, as far as possible, that those who are permitted to hold themselves out to the public as legal practitioners, are persons in whom the public, the courts and fellow practitioners can repose trust and who can be relied upon to behave with honesty and integrity. Further, decisions of the Tribunal must be concerned with providing an effective deterrent to both the practitioner concerned, and other members of the profession. 43 The respondent gave evidence that shortly after leaving school in 1982 he commenced employment as a Law Clerk and commenced a bachelor of Laws degree at the University of Technology Sydney. He joined the New South Wales Police Force in 1984 working first in general duties before moving to work as a court constable and later a police prosecutor. He remained in the Police Force for 10 years, during which he completed his law degree on a part time basis. He attended the College of Law and in September 1993 was admitted as a Solicitor of the Supreme Court of New South Wales. 44 In 1995 the respondent resigned from the Police Service and took up employment as a solicitor in the Office of the Solicitor for the Police Service. 45 In 1997 he commenced employment with Gary Stewart & Associates, a firm of solicitors in Manly. In September 2000 he accepted an offer of a partnership in that firm which then became Stewart Green Mijovich Solicitors. He remained in that practice until his misconduct came to light. 46 Following the cancellation of his practising certificate in January 2002 the respondent initially undertook night work at Flemington Markets packing fruit. 47 At a later stage he went into business with Mr Gary Stewart in a bottle shop where he has worked for some time. 48 The respondent referred to the impact upon his family, including his wife and children, arising from the very public revelations of his misconduct and the lengthy period over which the matter was the subject of media attention, and the period during which the respondent was engaged in either proceedings before the PIC, in the District Court criminal trial, or before this Tribunal. The Tribunal accepts, that the adverse impact on his family was significant and a matter of additional distress to the respondent, who, rightly, felt a sense of responsibility for this consequence of his professional misconduct. 49 The respondent's evidence was to the effect that from the moment his misbehaviour came to light, he was ashamed and upset at his conduct. He felt that he had let down himself, his family and friends. He had the salutary and discomforting experience of seeing and hearing his misconduct on a nationally televised show whilst in the presence of his family including his parents. 50 The respondent said : A. The whole episode through my hearings and the Integrity Commission of three - three and a half days were constantly feeling ashamed and upset at what I'd said and my conduct and it was replayed and questions asked about what I'd said over the period of those hearings and at every moment I felt very upset with myself and what I'd said and what I'd let lots of people down including my family and friends and myself. Q. Over the years when you have considered the wrongfulness of your conduct, the way that you have explained, how would you describe your emotional response to your consideration of this conduct? A. I guess I'm always valued my reputation and family - and I feel as though I've let down a lot of people including myself and plus I've always worked long and hard to become a solicitor and not let down all my colleagues and friends. Q. If you had to use some terms to describe your attitude and feelings-- A. Yes. Q. --adjectives or adverbs, what ones would you choose in these circumstances? A. Well the conduct is - when viewed in relation to the event is disgraceful and dishonourable conduct which I can't imagine I would ever be involved in ever again. I've draw a line in the sand and move on, it's - it's not the type of conduct that I'm in any way associated with normally and I certainly don't - I'd like to think that I was a proud person and I'm not proud of it at all. Q. In many of the affidavits sworn by your friends, they describe a period of some years after the incident became public where you ceased mixing with them and as it were, withdrew. Is their evidence accurate in that respect? A. It is, many of the people who've come to support me today are friends that I - because are less likely to contact-- Q. Why, why did you withdraw like that? A. I was ashamed what had happened. [ transcript 04/06/09 P33 1-34] 51 The respondent has involved himself in community activities in local sporting associations becoming president of the Manly Junior Rugby Club after disclosing to the club management that he had problems that he feared might reflect badly on that organisation. 52 The Tribunal accepts the respondent's evidence as to his sense of shame and remorse for his conduct. The Tribunal accepted him as a witness of truth within the confines of the evidence that he gave. 53 The hurdle the respondent must jump, is the nub of the issue for the Tribunal to decide, namely, can the Tribunal be satisfied that the respondent is genuinely remorseful and accepting of the totality of the Tribunal's findings against him. 54 The Tribunal has found that not only were the words complained of spoken on 14 November and 5 December 2000, but that the respondent intended to act upon those words, although there is no evidence that he did. 55 Throughout the proceedings before the Tribunal and in what he has said to his various referees, the respondent has always maintained that he said the words, but that it was not his intention to act upon them. He has not given evidence to that effect before the Tribunal because he chose not to give evidence in the substantive proceedings, and such evidence as he gave before the Tribunal was limited because the Tribunal ruled that the findings of the Tribunal on that issue could not be canvassed in cross examination. 56 Thus the Tribunal is faced with the conundrum that whilst it accepts the respondent is remorseful for his conduct, necessarily, the Tribunal cannot extend its acceptance of his remorse to the issue of his intention to act upon the words said. It is limited to an expression of remorse that the words were spoken. 57 As Justice Samuels said in Dennis' case: "Acknowledgement of error… is an indispensable starting point…". Is the respondent's asserted remorse so tainted by the fact that he has never conceded that he did intend to act upon his spoken words, as the Tribunal found, that the Tribunal cannot now accept his remorse as an acceptable, if not entirely satisfactory, start to the process of rehabilitation, nor demonstrative of insight into his wrongdoing. 58 It is self evident that the respondent cannot express remorse for conduct that, on all the evidence available to the Tribunal, he denies. This is, however, a very different case from the facts involved in Dennis where the misappropriation of funds occurred over a period of time, and when uncovered the solicitor gave seriously misleading and dishonest evidence in explanation. The Court found that his inability to come to terms with the findings against him was fatal to the success of his application for re-admission. 59 What is sometimes called the presumption of continuity would lead to a finding that in the absence of a frank admissions by the respondent that he both said the words and intended to act upon them, the flaws in his character which allowed him to act as the Tribunal has found, and which rendered him unfit at that time to be a legal practitioner, remain unaddressed. Thus he must be found to be unfit to now resume practise. 60 Although the respondent's evidence was of short compass, that evidence has satisfied the Tribunal that he is genuinely sorry and remorseful for his misconduct. There is no evidence of wrongdoing by the respondent either before or since his misconduct. 61 It is not sufficient that the Tribunal be satisfied merely that the respondent will not in future engage in conduct of the kind found against him in this instance. The Tribunal must be satisfied that there is such reformation of character that the respondent will not, in the future, engage in conduct that is unacceptable for a Legal Practitioner. 62 The Tribunal is satisfied that from the moment these matters came to light, the respondent has been severely punished for his disgraceful lapse, and that his remorse stems not merely from being found out, but because he recognises the wrongness of his conduct. The Tribunal is, however, mindful of the ever present difficulty that the respondent must surmount, namely, his continued assertion, not in the face of the Tribunal, but to his referees, concerning his lack of intention. 63 There is ample evidence from the respondent and others, that following the disclosure of his misbehaviour he withdrew from social contact due to the level of his shame. A sense of shame is not experienced by those who do not recognise that they have done something of which to be ashamed. The Tribunal is satisfied that the respondent is genuinely ashamed of his conduct. Whilst recognising that such a finding can only extend to the fact of speaking the words, and not to an intention to act upon them. 64 The Tribunal is persuaded that the respondent has demonstrated that he has addressed the causes of the disgraceful and dishonourable behaviour in which he engaged in 2000. His remorse for that behaviour is genuine, and gave him the starting point for the rehabilitation in which he has engaged in the intervening years, through self analysis, psychiatric assistance, and through activities designed to establish him as a worthy member of the community. 65 Whilst the referees suffered from the difficulty identified by Justice Samuels, the respondent is entitled to derive some comfort from them, and their unchallenged assertions that such conduct is out of character as they know the respondent and therefore highly unlikely ever to be repeated. 66 The Tribunal is satisfied that the respondent has discharged the evidentiary onus which fell upon him in light of the findings of the Tribunal and the accepted position that as at 2000 he was not a fit and proper person to be on the Roll of Legal Practitioners. 67 The Tribunal is satisfied to the standard laid down in Briginshaw v. Briginshaw (1938) 60 CLR 336, that the respondent has demonstrated a level of contrition, remorse, and active rehabilitation which justify him being permitted to return to practise. 68 The Tribunal has considered whether or not a fine should be imposed upon the respondent, but has come to the view that in the circumstances of this matter a fine is not warranted. 69 The Tribunal is of the view that such return to practise should be conditional for the first 3 years following the issue of a practising certificate to the respondent. Thereafter, provided the respondent has complied with the conditions imposed upon him for the initial three years, the practitioner will be entitled to apply for an unconditional practising certificate. 70 Pursuant to the provisions of section 562 (2) LPA 2004 the Tribunal proposes to make orders limiting the respondent's right to practise by requiring that he be an employed practitioner for a period of three years, and that for the first year following issue of a practising certificate, he continue to consult with Dr Barnard, or another nominated consultant psychiatrist, on a regular basis, which would require consultations of not less than once per month. It will be for the respondent to satisfy the applicant that he has fulfilled this condition by producing to the applicant a letter or report from Dr Barnard, or other nominated psychiatrist, within 3 months after the expiration of the 12 month period. 71 Within 7 days of the publication of these orders, the respondent is to advise Dr Barnard, in writing, of the orders made, and the requirement for a letter or report to be provided at the expiration of the 12 month period. A copy of that letter to be forwarded to the applicant within 7 days from the publication of these orders. 72 Should the respondent change his treating psychiatrist, notice of that change is to be provided to the applicant within 7 days of any such change. 73 The Tribunal notes that the respondent was ordered to pay the applicant's costs in the substantive proceedings. The Tribunal does not propose to make a costs order in respect of the penalty proceedings. 74 The Tribunal makes the following orders: i. That upon the respondent making application for grant of a practising certificate in proper form, the applicant shall issue a practising certificate in the name of Martin Geoffrey Green; ii. The certificate shall include the following conditions: (a) The respondent shall be entitled to practise as an employed solicitor for 3 years; (b) He shall be employed by Martin Churchill of Martin Churchill Lawyers, or such other practitioner as may from time to time be approved by the Council of The Law Society of New South Wales; (c ) For a period of 12 months from commencing practise, the respondent is to consult regularly with Dr Richard Barnard, or other nominated psychiatrist, such consultations to be not less than once per month. iii. The Tribunal makes no order as to costs of the penalty proceedings. 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.