The Legal Services Tribunal of New South Wales CITATION : Richard Mitry [1997] NSWLST 22 PARTIES : Richard Mitry FILE NUMBER(S) : of 1996 CORAM: Mr J. Stowe QC (Chairman) - Dr A. Bennett SC - Dr M. Costigan CATCHWORDS: :- Alleged Professional Misconduct - withdrew an appeal to the District Court without the authority of his client LEGISLATION CITED: Legal Profession Act 1987 CASES CITED: Bar Association v Livesey (1982) 2 NSWLR 231 at 238) DATES OF HEARING: 23 September 1997 DATE OF JUDGMENT: 09/23/1997 LEGAL REPRESENTATIVES: JUDGMENT: The Bar Association alleged that the barrister was guilty of professional misconduct because he had, allegedly, without instructions withdrawn an appeal to the District Court lodged on behalf of his client in respect of a conviction in the Local Court. It was also claimed that the barrister had created a document purporting to be an authority from his client which he had induced his client to sign in blank. The Tribunal found that it could not rely on the evidence of the complainant client and could not be satisfied to the necessary degree that the barrister had acted in the manner alleged. It, accordingly, dismissed the Information. B y an Information filed with the Tribunal on 25 February, 1997 the Council of the New South Wales Bar Association ("the Council") alleged that Richard Mitry ("the Barrister") was guilty of professional misconduct on or about 22 September, 1995. The substance of the allegation was that upon that date the Barrister, without instructions, withdrew an appeal which had been lodged in the District Court on behalf of his client Mr Nabih Baaini (otherwise known as Neil Baaini). It was further alleged that he had created a false document purporting to record Mr Baaini's instructions to withdraw the appeal. The document in question was written out in longhand and bore Mr Baaini's signature. It was alleged that the Barrister had induced Mr Baaini to sign the relevant piece of paper when it was blank, that he misrepresented the purpose for which Mr Baaini's signature on the piece of paper was required, and that he wrote in the terms of the authority to withdraw the appeal after the piece of paper had been signed in blank. The Information was filed by the Council following an investigation pursuant to Division 5 of Part 10 of the Legal Profession Act, 1987, as amended ("the Act") into complaints by Mr Archie Hallas, Barrister, and a subsequent complaint made by Mr and Mrs Baaini. Both complaints were to the same effect, save that the complaint made by Mr and Mrs Baaini included a claim for compensation which was incorporated into the Council's Information. The background to the complaint In December, 1994 the Barrister accepted instructions to act for Mr Baaini in connection with a proposed appeal by him against a conviction on 8 October, 1994 by a magistrate sitting in St James Local Court for knowingly obtaining the payment of benefits which were not payable, namely a Job Start Allowance and a new Start Allowance, contrary to the Social Security Act, 1991. Following his conviction, Mr Baaini had been sentenced on 12 December, 1994 to 250 hours of community service and ordered to pay reparation to the Social Security Department in the amount of $14,349.26. Mr Baaini instructed the Barrister directly, without the intervention of any solicitor. The instructions were furnished at a date subsequent to the enactment of s 38I of the Act, permitting direct client access to barristers, and subsequent to the commencement on 1 July, 1994 of the New South Wales Barristers' Rules. Arabic is the first language of Mr Baaini. He claimed to have limited oral fluency in English and to be substantially illiterate in written English. The Barrister is fluent in Arabic and it is common ground that oral communication between Mr and Mrs Baaini and the Barrister was principally in Arabic. The course of the appeal proceedings initiated following the instructions given by Mr Baaini to the Barrister, and the course of the dealings between them, may be summarised as follows: (i) Following an initial telephone call Mr and Mrs Baaini conferred with the Barrister in his Chambers in December, 1994. It appears that various papers were left with him, but those papers did not include transcripts and judgment from the Local Court. (ii) On 22 December, 1994 an all grounds appeal was lodged by or on behalf of Mr Baaini at the St James Local Court. (iii) Some months later, Mr Baaini received notice of a callover in relation to the appeal, to take place on 20 July, 1995 in the District Court, Downing Centre. Mr or Mrs Baaini informed the Barrister of the notice of callover and shortly afterwards further documentary material was delivered to the Barrister. (iv) Mr Baaini and the Barrister conferred in the Barrister's Chambers shortly after delivery of the additional material. No instructions were given at that stage, but, according to the Barrister, he advised Mr Baaini that his prospects of success were not good, and that if the appeal failed, it was possible that a gaol sentence might be imposed; Mr Baaini was invited to consider whether he wished to proceed. (v) As he had made arrangements to be overseas on 20 July, 1995, the Barrister asked another barrister on his Floor, Mr Michael Crowley, to appear for Mr Baaini at the callover. There is some contention as to the details of the arrangement made between the Barrister and Mr Crowley and we will return to this later in our reasons. (vi) Mr Crowley appeared at the callover on 20 July, 1995 and arranged to have the appeal stood over, apparently for a further callover on 22 September, 1995. (vii) On 21 September, 1995 Mr Baaini and the Barrister conferred in the Barrister's Chambers. The Barrister claims that at this conference he received instructions from Mr Baaini to withdraw the appeal and that a handwritten note, prepared by the Barrister and confirming those instructions, was signed by Mr Baaini. Mr Baaini denies giving any such instructions and says that the document purporting to contain his written instructions to withdraw the appeal, although signed by him, was signed in blank and that its purpose and the Barrister's intentions as to the future conduct of the appeal were misrepresented to him. The circumstances surrounding the preparation of the written instructions dated 21 September, 1995 give rise to the central issue in these proceedings. (viii) On 22 September, 1995 the Barrister appeared before P J Phelan DCJ at the Downing Centre and informed the Court that Mr Baaini wished to withdraw his appeal. The appeal was accordingly dismissed and the orders of the magistrate confirmed. (ix) On 27 September, 1995 Mr Baaini attended on a Mr Roth at the Department of Corrective Services, Bankstown and after discussions to which we shall return, was referred to see another officer of that department, Frances Langdon, on 16 October, 1995. Little information is available concerning Mr Baaini's meeting with Ms Langdon. (x) On 19 October, 1995 Mr Baaini attended upon Sandra Griffin an officer of the District Court at the Court offices in the Downing Centre. It appears that in the course of that visit, an application was made under s 127A of the Justices Act for the reopening of Mr Baaini's appeal and the application was listed before P J Phelan DCJ on 23 November, 1995. The content of Mr Baaini's discussions with Ms Griffin is material to the determination of these proceedings and we shall return to that topic. (xi) On 20 November, 1995 Mr Baaini and Mrs Baaini each swore an affidavit in support of his application to reopen the appeal, at the offices of Mr Paul Wakim, a solicitor whom Mr Baaini had instructed for the purposes of the application. Before he signed the affidavit, its contents were read over to him in Arabic by Mrs Chayna, a long standing friend of Mr and Mrs Baaini. (xii) On 23 November, 1995 Mr Archie Hallas, Barrister, appeared for Mr Baaini before P J Phelan DCJ. The scope of the appeal was reduced, in the course of the application, to an appeal against severity of sentence only. The application to reopen the appeal was granted, and the appeal was set down for hearing on 13 March, 1996. Mr Hallas was instructed on the application by Messrs Papanicolaou & Antoniou, solicitors, who had been engaged by Mr Baaini in substitution for Mr Wakim. (xiii) On 13 March, 1996 Mr Hallas appeared for Mr Baaini before Viney DCJ on the appeal. It was agreed between the appellant and the Department that the extent of the relevant overpayment had been miscalculated and that the true figure was somewhere in the vicinity of $4,748, which sum had been further reduced by subsequent withholdings of benefit by the Department. His Honour ordered that in lieu of the community service order Mr Baaini pay a fine of $250, and made a substituted reparation order in the sum of $3,880. The proceedings before the Tribunal In the proceedings before this Tribunal the Council tendered statutory declarations of Mr Blanch (the Council's Solicitor), Mr Baaini, Mrs Baaini, Mr Crowley, Mrs Chayna and Ms Shouldice, (a Solicitor employed by the Commonwealth Director of Public Prosecutions). The Barrister, who appeared before the Tribunal in person, cross-examined Mr and Mrs Baaini, and Mrs Chayna, but did not seek to cross-examine Mr Blanch, Mr Crowley or Ms Shouldice. The Barrister tendered his own declaration to which were annexed two letters sent by him to the Council, the first responding to the complaints and the second to further questions raised in relation to his first response. The Barrister was cross-examined by Mr Rushton of Counsel, who appeared before the Tribunal for the Council. The principal issues The primary allegation made against the Barrister is that he withdrew the appeal without the authority of his client to do so. While the allegation that the written authority was signed in blank is intimately connected with that primary allegation, it is nevertheless the case, as Mr Rushton pointed out, that the Tribunal may still be satisfied that the Barrister withdrew the appeal without authority, even if it did not accept Mr Baaini's assertion that the authority was signed in blank. Mr Rushton conceded that there were difficulties in the way of a finding that the authority was signed in blank as Mr Baaini alleges, but he submitted that other considerations nevertheless pointed to a conclusion that the appeal was withdrawn in the absence of instructions to do so. Was the authority signed in blank? The account given by Mr Baaini in his statutory declaration tendered in these proceedings was as follows: 17 On or about 21 September, 1995 I attended Mr Mitry's Chambers. Mr Mitry said to me words to the following effect:- "You don't need to go to court tomorrow. The matter has been settled and the Judge does not want to see you. Everything will be fixed. Sign this paper so I can go to the Court and it will be the end of the case. The case is over. We have reached an agreement with them. You will not be required to make any payment to the Department of Social Security." 18 Mr Mitry then handed me a blank piece of paper and asked me to sign it. I was concerned about signing this document. Mr Mitry said to me words to the following effect: "Don't worry about it. I will write that the case is over". I refused to sign the piece of paper unless I could speak with my wife. 19 Mr Mitry then telephoned my wife and said words to the following effect: "The case has been settled. We have reached an agreement with them. Your husband does not have to go to Court. He must sign this paper for the settlement." Mr Baaini annexed to his declaration the form of authority which his solicitors had subsequently obtained from the Barrister, and declared that he had signed it in blank. He denied that he gave any instructions to Mr Mitry to withdraw the appeal and said that it was his understanding that the matter had been settled and that he would not be required to pay any money to the Department although he believed there was some mention that he might have to carry out a small number of hours of community service. The written authority in issue was in the following terms: To: Richard Mitry I, Nabih Baaini, hereby instruct you to withdraw my appeal against decision of Cater-Smith SM regarding my conviction & sentence for (social security) "obtain benefit". N. Baaini 21/9/95 The Barrister's case was that after he had discussed the matter in Chambers with Mr Baaini in early July, 1995 and had considered the various papers made available to him, he advised Mr Baaini that the prospects of his appeal succeeding were not good and that he should consider withdrawing it. He said that he advised Mr Baaini that even if his appeal was limited to an appeal against the severity of the sentence, it was open to the Judge to increase the penalty and possibly send him to gaol. According to the Barrister Mr Baaini said that he would think about the matter and get back to him. In his letter of 19 February, 1996 attached to his declaration, the Barrister said that when he discussed the matter again with Mr Baaini, on 21 September, Mr Baaini said immediately that he was "sick of all this", and that he did not want to go to court any more, and that Mr Baaini had asked whether Social Security would not let him off the community service order since he believed he had paid all the money back at that stage. Upon the Barrister repeating his view that he could not guarantee that a harsher sentence would not be imposed if the appeal proceeded, Mr Baaini said,:- "OK, I don't want to go to court. I will go and see the community services people later and I am sure they will go easy on me". The Barrister says that he informed Mr Baaini that he would need written instructions and that Mr Baaini agreed to give them. The Barrister says that he then wrote out the form of authority, read it in English to Mr Baaini "which he appeared to understand" and explained it to him again in Arabic. He says that Mr Baaini then signed the document and that he telephoned his wife after signing it, not before. As Mr Rushton conceded, there are major difficulties in the way of accepting of Mr Baaini's version of the signing of the authority. Apart from our reservations about the general reliability of the evidence of Mr and Mrs Baaini, to which we will refer later, the principal difficulty is that Mr Baaini and his wife have made prior statements inconsistent with, or which do not support, the allegations made in his statutory declaration of 17 March, 1997 concerning the signing of the authority. In the first place, in an affidavit which he swore in support of his application to reopen the appeal, on 20 November, 1995, Mr Baaini gave the following account of the events of 21 September, 1995: 12. On 21 September, 1995, I attended Mr Mitry's Chambers. Mr Mitry said to me words to the effect, "You don't need to go to Court tomorrow. The Judge does not want to see you. Everything will be fixed." Mr Mitry then wrote something in the English language on a piece of paper and told me that what he was writing was that I would not be required to attend Court and that I will not be required to make any payments to the Department of Social Security. 13. I did not read this piece of paper as I am illiterate in the English language. There was evidence that the contents of this affidavit were read over to Mr Baaini, translated into Arabic by Mrs Chayna, before he signed it. Moreover, Mr Baaini actually conceded, in the course of cross-examination, that the contents of the affidavit were true. Mrs Baaini also swore an affidavit on the same day. She said nothing in that affidavit of any complaint made by her husband of his having been asked to sign a blank piece of paper. Neither did she report any such complaint in the statutory declaration which she swore in these proceedings on 17 March, 1997. Mrs Chayna said in cross-examination that neither Mr nor Mrs Baaini mentioned the blank piece of paper in her presence, when the three of them attended the office of Mr Baaini's then solicitor, Mr Wakim, on the occasion when the affidavits were sworn on 20 November, 1995 There was tendered in evidence before the Tribunal, as an annexure to the statutory declaration of Mr Blanch, a copy of a handwritten memorandum apparently prepared by the District Court officer, Ms Griffin, which sets out the assertions made by Mr Baaini in support of his application to reopen the appeal, and which is signed by Mr Baaini in two places. This document records a contention that he did not give his barrister permission to withdraw the appeal, but makes no reference to the signature of any blank piece of paper. On the other hand, on 21 March, 1996, Mr and Mrs Baaini were interviewed by Ms Barrett, the Professional Affairs Director of the New South Wales Bar Association. Ms Barrett's handwritten notes of that interview were also in evidence as an annexure to Mr Blanch's affidavit. The notes are signed by Mr and Mrs Baaini and bear the certificate of an interpreter that the foregoing English text is an accurate translation of the answers given during the conference. Those notes do contain the following statements: I signed a blank piece of paper with nothing on it. I am certain of that. Note: PAD showed Mr B a piece of paper with Mr Mitry's writing on it and dated 21/9/95 on which Mr Baaini's signature appears. Mr B confirmed to the PAD that when he signed the paper there was no writing on it at all. However, prior to those statements the following sentence appears in the notes: Mr M was writing in English and he asked me to sign a paper. On 31 May, 1996 Mr and Mrs Baaini signed a complaint under Part 10 of the Act at the office of the Legal Services Commissioner. The written complaint was also in evidence as an annexure to Mr Blanch's statutory declaration. That document, which also bore the certificate of an interpreter stating that it had been interpreted to Mr and Mrs Baaini and that the interpreter was confident they understood it, contained the following sentence: The document I, Mr Baaini signed was in English The allegations made against the Barrister in these proceedings, including the allegation that he procured the signature of the authority in blank, are grave allegations. If accepted, they would probably lead to an order that the Barrister's name be removed from the roll of legal practitioners. Although the allegations need only be sustained to the civil standard of proof, the Tribunal is not satisfied to the comfortable degree of satisfaction required by the gravity of the charge that the written authority was signed in the way that Mr Baaini alleges. (NSW Bar Association v Livesey (1982) 2 NSWLR 231 at 238) Did the barrister withdraw the appeal without authority? Mr Rushton submits that even if Mr Baaini's allegations as to the signing of the authority are not found to have been established, there are a series of facts and circumstances which justify a finding that the Barrister was never authorised to withdraw the appeal. He relies upon the following matters - (a) The consistency of Mr Baaini's claim that he never gave instructions for the withdrawal of the appeal; (b) The corroboration of Mr Baaini's evidence by that of his wife; (c) The evidence of Mrs Baaini and Mrs Chayna as to Mr Baaini's complaints when he returned home on the evening of 21 September, 1995; (d) The proposition that Mr Baaini's attendance at the Court office for the purpose of making an application to reopen the appeal is inexplicable if he had in fact given instructions to withdraw the appeal; (e) Inconsistency in the accounts given by the Barrister; (f) The evidence of Mr Crowley. We will consider each of those matters in turn. (a) The consistency of Mr Baaini's evidence that he gave no instructions to withdraw the appeal It is true that each recorded or reported account of Mr Baaini's complaint is broadly consistent with his denial that he gave any instructions for the withdrawal of the appeal. That denial, viewed in isolation, is not affected by the inconsistency with which his various accounts of the signing of the paper are beset. However, it is unrealistic to consider the denial of instructions in isolation from the remainder of his evidence. The reliability of his evidence denying instructions must be assessed against the background of the perceived reliability of his evidence generally. In that broader context, it is difficult to treat the consistency of his denial of instructions as anything more than a neutral factor. (b) The corroboration of Mr Baaini's evidence by that of his wife In her declaration tendered in these proceedings, Mrs Baaini gave an account of her telephone conversation with the Barrister on the evening of 21 September, 1995, and of a reference made during that conversation to the required signing of a paper "so that your husband need not go to Court and the case is finished". Both her affidavit of 20 November, 1995, and her oral evidence under cross-examination before the Tribunal contain similar accounts. There is no issue that such a telephone conversation took place, although there are issues as to its content and its timing: as to the latter, Mr Baaini says it occurred before he signed while the Barrister says it occurred after Mr Baaini signed. We find Mrs Baaini's accounts of the telephone conversation equivocal as to whether instructions to withdraw had or had not been given. It is true that the statement in her declaration that the Barrister also said, during the conversation: Telephone me on Friday and I will tell you the result. sits uncomfortably with her husband having given instructions for the appeal to be withdrawn, but it sits no more comfortably with the Barrister's statement, as reported by her, that the case was "finished". (c) The evidence of Mrs Baaini and Mrs Chayna as to Mr Baaini's complaints when he returned home on the evening of 21 September, 1995 Mrs Baaini in fact says nothing in her affidavit or in her statutory declaration about what her husband said or did when he returned home on the evening of 21 September, 1995. Far from supporting his case, her omission detracts from the credibility of his account and that of Mrs Chayna, especially when compared with Mrs Chayna's rather colourful account of Mr Baaini's heightened emotions - something, she claimed, she would not forget. Mrs Chayna's account does not corroborate Mr Baaini's account of what happened at the Barrister's Chambers in a strict sense: however, it does report Mr Baaini as making allegations on his return home which are consistent in all material respects with his present allegations as to what happened at the Barrister's Chambers. It is interesting to compare Mrs Chayna's lucid account of what Mr Baaini said about signing the paper on his return home with her statement under cross-examination that when she attended Mr Wakim's office with Mr and Mrs Baaini on 20 November, 1995, to translate the affidavits which they swore that day, neither of them mentioned anything about the signing of a piece of paper. It is also to be noted that Mrs Chayna's statutory declaration was sworn several weeks after Mr and Mrs Baaini swore their declarations. For the reasons which we have given above, we do not accept that the piece of paper was signed in the way Mr Baaini claims it was signed. Neither do we accept Mrs Chayna's account of what Mr Baaini said about it on his return home on 21 September, 1995. (d) Mr Baaini's attendance at the District Court office It appears from the evidence available that Mr Baaini made three relevant visits after the appeal had been withdrawn, as noted in the chronology of events set out above. On 27 September, 1995 Mr Baaini made the first of those visits, to Mr Roth of the Department of Corrective Services at Bankstown. This department was the organisation which would have managed the performance of a community service order. Mrs Baaini suggests that her husband went there because the Barrister told him to. The terms of P J Phelan DCJ's order on 22 September required Mr Baaini to report to the District Court Registry by 4.00 pm on 29 September in order to enter into the formalities referable to his community service order. Consistently with the Judge's order, it was to the Court, not to the Department, that Mr Baaini should have gone. According to Mr Baaini, Mr Roth told him that he did not know why Mr Baaini had called on him on 27 September and Mr Roth's note bears this out. Mr Roth's note of the attendance records his having telephoned the Barrister who then explained to him that the appeal had been withdrawn so that the original orders were to stand and who also referred to Mr Baaini's "numerous health problems". The upshot was that Mr Roth made an appointment for Mr Baaini to see Ms Langdon of his Department on 16 October. In the meantime, according to Mr Roth's notes, he realised that the necessary consent of Mr Baaini to the community service order did not appear to have been given. A discussion between Mr Roth and Mr Lemos of the District Court Registry on 6 October revealed that Mr Baaini had failed to attend at that Registry in accordance with the Judge's directions in order to sign the necessary papers. The District Court records indicate that Mr Baaini attended at the District Court Registry on 19 October (the third relevant visit) and the inference is at least open that he did so as a result of Ms Langdon referring him there when he saw her on 16 October (the second relevant visit). Mr Baaini professed an inability to remember these various attendances otherwise than in the most general terms, and there is no other direct evidence available about the circumstances of Mr Baaini's visit to Ms Langdon; Mr Baaini seemed to have a vague recollection of having seen Ms Langdon. Mr Roth recorded in his notes and in a letter written to the Council that both the Barrister (in the course of Mr Roth's telephone conversation with him) and Mr Baaini had referred to health problems which would make it difficult for Mr Baaini to perform community service work. It is difficult to understand why Mr Baaini would have referred to those problems if he had been of the view that his appeal was still on foot. However, Mr Baaini has sought to explain this circumstance by suggesting that the Barrister told him that the appeal had been "settled" with some possibility of a continuing period of community service. The raising of the issue by Mr Baaini and by the Barrister, is nevertheless consistent with an attempt by Mr Baaini and on his behalf to seek clemency in relation to the original community service order, the appeal having been withdrawn. Such an approach would also be consistent with what, according to the Barrister, Mr Baaini said to him on 21 September - I will go and see the Community Service people later and I'm sure they will go easy on me. The document signed by Mr Baaini at the District Court office on 19 October, 1995 included an assertion that Mr Baaini had not been advised of the Court date. This was not true. The document contains a footnote signed by Ms Griffin in the following terms: "(Neil) Baaini later advised me that he had received a letter advising of his Court date and had given it to his legal representative. When asked why he had previously said he hadn't received notice he replied 'I forgot'." It is unclear whether the correction was initiated by Mr Baaini or by Ms Griffin: presumably there would have been some record on the Court file of the sending of a notice, and the inference is at least open that Ms Griffin herself raised the accuracy of his statement with Mr Baaini. It is not clear on the evidence why Mr Baaini went to the District Court office on 19 October. His own evidence was quite unhelpful in providing an explanation. The inference is at least open that he was initially sent there by Ms Langdon following the discovery that he had failed to sign a consent to the performance of community service. The inference is also open that the making of the section 127A application grew out of that original purpose in the light of Mr Baaini's statements that he had not received notice of the callover and that he had given no permission for his appeal to be withdrawn. It may not be correct to regard his visit to the District Court office as having been made in the first place for the purpose of making the application. We are not in a position to make findings in accordance with the inferences which we have suggested are open. However, the availability of those inferences refutes the contention that Mr Baaini's attendance at the Court and his making the section 127A application are inexplicable if he had authorised withdrawal of the appeal. (e) Inconsistency in the accounts given by the Barrister The inconsistency to which Mr Rushton refers is, he submits, in the two versions given by the Barrister of the circumstances in which he received instructions to withdraw the appeal on 21 September, 1995. In his letter of 19 February, 1996 to the Council, the Barrister said: On 21 September Mr Baani (sic) attended my Chamber at about 5.45 pm. He said as soon as he came into my room that he was "sick of all this, I don't want to go to Court any more. I've paid what I owe the Social Security office. Won't they let me off the community service?" I replied that it was not up to them, but it was up to the Court. He could make application to vary his Appeal to severity only, but I could not guarantee him the sentence would not be harsher. He said, "OK, I don't want to go to Court. I will go and see the Community Services people later and I'm sure they'll go easy on me. I said he would have to give me written instructions, which he agreed to. I wrote the instructions (a copy of which has been provided to you) read it to him in English (which he appeared to understand) and explained it to him in Arabic. He then signed it. Mr Rushton points to the fact that in his oral evidence before the Tribunal he gave the following account : We spent about one and a half to two hours in conference going through his matter. I spoke to him about the pros and cons of him continuing with his appeal. I suggest that the appeal, the sentence could be harsher if he appealed, if he continued with his appeal and was found guilty. I then satisfied myself, I asked him if he wanted to continue with his appeal and he said No. I then said, "Well, you have to provide that in writing". I wrote his instructions out. I read to him those instructions in English and then I translated that English into Arabic in a way that I thought he would understand. Then he signed it. After some discussion, he signed it and then rang his wife and had a conversation with her. Mr Rushton suggests that whereas according to the original account Mr Baaini had decided he did not want to go to Court before entering the Barrister's Chambers, according to the Barrister's oral testimony, there was a long process of discussion before that stage was reached. While there is a difference of emphasis between the two accounts, we do not regard the difference as critical. Mr Baaini's opening statement, according to the letter, was not to the effect that he wanted to withdraw the appeal, but rather that he wanted to come to an arrangement with the Department. The Barrister says he told Mr Baaini that it was not up to the Department but up to the Court. It would not be surprising that this distinction and the anticipated attitude of the Court would require extended explanation and discussion before instructions were finally obtained on the relevant question - whether the appeal was to proceed before the Court. The Barrister's omission, in his letter, to place a time on the length of the discussion or to attempt to reproduce it in full, does not cause us to draw any inference adverse to the Barrister. (f) The evidence of Mr Crowley A statutory declaration of Michael Crowley was tendered without objection and the Barrister did not seek to cross-examine Mr Crowley. In his declaration, Mr Crowley gave the following account of the Barrister's request that Mr Crowley mention the appeal on 20 July, 1995. 2. I represented Mr Baaini on 20 July, 1995 at the request of Mr Mitry, then a member of my Floor. I recall that some time prior to 20 July, 1995, I do not now recall on what date, I was asked by Mr Mitry to attend the callover as he was gong overseas. He gave me some papers. I do not now recall what they comprised. I recall at the time Mr Mitry said words to the effect: "All grounds of appeal are to be withdrawn" I believe he gave me a telephone number for Mr Baaini. 3. Some days before 19 July, 1995, I rang Mr Baaini on that number. I spoke to a man and a woman. I had difficulty communicating with them and I was not able to satisfy myself they knew the appeal was to be withdrawn. I was not able to confirm those instructions. Mr Rushton submitted that this evidence of Mr Crowley is inconsistent with the Barrister's case, since on that case, there is no suggestion that any instructions had been obtained from Mr Baaini in July, 1995 to withdraw the appeal. He also submits that Mr Crowley's evidence shows that even in July the Barrister had decided that the appeal was going to be withdrawn, whatever the client's attitude. The submission is the more significant in the light of the Barrister's omission to cross-examine Mr Crowley. The Barrister's response to Mr Rushton's submission was that the possibility of withdrawal had been squarely raised at his conference with Mr Baaini after the callover notice was received. While he conceded that he had no instructions to withdraw at that stage, he maintained that the issue was under consideration by Mr Baaini, and that he was to provide his instructions in due course. The Barrister said that he regarded it as equally possible that the appeal might proceed as that it might not proceed. As to his conversation with Mr Crowley, he gave the following account: I told him that I thought that this is a matter in which serious consideration should be given to withdrawing an all grounds appeal. I gave him Mr Baaini's phone number and I said: 'Would you mind talking to him and confirming that before you do the mention?'. He pointed to the fact that Mr Crowley did telephone Mr Baaini to seek his instructions before attending at the callover. While the Barrister's omission to cross-examine Mr Crowley causes us some concern, it has to be borne in mind that Mr Crowley's evidence is concerned with the position in July, rather than at the critical date, 22 September. Moreover, the difference between Mr Crowley's account and the Barrister's account of the July arrangement may again be one of emphasis only: the fact is that Mr Crowley did apparently consider that his arrangements with the Barrister required him to obtain instructions from Mr Baaini. It would be most unusual for Mr Crowley to telephone Mr Baaini if he had been informed unequivocally by the Barrister that he had instructions to withdraw the appeal. Such conflict as exists between Mr Crowley's evidence and the Barrister's evidence is not sufficient enable the Council to overcome the difficulties which otherwise exist in its case on the central issue. The reliability of the evidence of Mr and Mrs Baaini We have already referred to the inconsistencies and lack of support between Mr Baaini's present allegation that he was induced to sign a paper in blank, and earlier statements made by himself and his wife. There are other aspects of the evidence of Mr and Mrs Baaini which raise substantial doubts as to whether their evidence in relation to the primary allegation that the appeal was withdrawn without consent, can be relied upon. In particular, Mr Baaini stated repeatedly in the course of his cross-examination that he was unable to remember the relevant events and circumstances. Although he professed to be illiterate in written English, there were a number of occasions during his evidence when he put on his reading glasses and appeared to be reading a document, in English, which had been placed before him. On a number of occasions both Mr and Mrs Baaini bypassed the interpreter and gave direct answers in English with reasonable fluency. Both of them questioned the validity of their signatures on documents which they later admitted signing, and suggested that the documents might have been written or added to after their signatures had been applied. They appeared to adopt this approach when confronted with statements in the documents which were inconsistent with or non-supportive of their present complaints. While we appreciate that both of them may have been under some difficulty in coping with cross-examination, we nevertheless formed the impression that both of them were frequently evasive in their answers and that they exaggerated their difficulties in coping with the questions put to them. In the absence of independent evidence corroborative of their principal allegations, and bearing in mind the inconsistencies in their evidence concerning the signing of the paper, we would not feel completely satisfied in accepting their evidence where it conflicts with that of the Barrister. Motive As we have already said, the complaint made against the Barrister is a very serious one indeed. It is one which would, as the Council submitted, warrant an order striking the Barrister's name from the roll, if it were found to have been established. If the conduct complained of had occurred, it would be probable that a complaint would be made. Such conduct is very unlikely on the part of any reasonably intelligent person in the absence of a powerful motive or reason. No motive or reason for the Barrister engaging in the conduct alleged against him is even suggested. The absence of any demonstration of such a motive or reason is a further basis for scepticism about the allegation made. Conclusion For the foregoing reasons, the Tribunal is not satisfied to the degree required by the gravity of the complaint, that the Barrister withdrew Mr Baaini's appeal without having the appropriate instructions to do so. It follows that the Information should be dismissed. The Tribunal is not presently of the view that any special circumstances exist which would warrant an order for payment of the Barrister's costs from the Statutory Interest Account pursuant of s 171E(2) of the Act, but it will hear argument from the Barrister, and from the Council, if he contends that such circumstances exist. Order Subject to any further order as to costs, the order of the Tribunal is that the Information be dismissed. 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.