Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Council of the New South Wales Bar Association v BRJ [2015] NSWCATOD 73 Hearing dates: 12, 13 February and 10 March 2015 Decision date: 16 July 2015 Jurisdiction: Occupational Division Before: L Robberds QC, Senior Member P Wass SC, Senior Member E Hayes, General Member Decision: 1. For the purposes of these proceedings the name of the respondent is anonymised as BRJ; 2. The disclosure of the respondent's name is prohibited; 3. Pursuant to section 64 of the Civil and Administrative Tribunal Act 2013, and subject to any further order of the Tribunal, access to and disclosure of documents and evidence filed with the Tribunal in this application be restricted to the Legal Services Commissioner, the parties and their respective legal representatives; and 4. The proceedings be listed before the Registrar so that evidence and submissions can be placed before the Tribunal so that it can determine whether an order should be made that the respondent pay the costs of the Council of the New South Wales Bar Association. 5. The application is otherwise dismissed. Catchwords: Unsatisfactory professional conduct – proposed consent orders – consent withdrawn – cognitive impairment at time of unsatisfactory professional conduct – what orders should be made – name of barrister anonymised Legislation Cited: Legal Profession Act 2004 Children and Young Persons (Care and Protection Act) 1998 Civil and Administrative Tribunal Act 2013 Cases Cited: NSW Bar Association v Butland [2008] NSWADT120 Legal Practitioners Conduct Board v Ardalich [2005] SASC 478 Prothonotary of the Supreme Court of New South Wales v McCaffery [2004] NSWCA470 Council of the NSW Bar Association v Power [2008] NSWCA135 Law Society of New South Wales v Foreman (1984) 34 NSWLR408 Category: Principal judgment Parties: Council of the New South Wales Bar Association (Applicant) BRJ (Respondent) Representation: Counsel: K.Williams (Applicant) G. Craddock SC (Respondent) Solicitors: Eakin McCaffery Cox (Applicant) Colin Biggers & Paisley Lawyers (Respondent) File Number(s): 132028 Publication restriction: Pursuant to section 64 of the Civil and Administrative Tribunal Act 2013, a) the disclosure of the respondent's name is prohibited; b) subject to any further order of the Tribunal, access to and disclosure of documents and evidence filed with the Tribunal in this application be restricted to the Legal Services Commissioner, the parties and their respective legal representatives. reasons for decision 1. On 12 February 2015 there was listed for hearing before the Tribunal an application for original decision filed on 12 December 2013 by the Council of the Bar Association of New South Wales (the Bar Council) against the respondent, who will be named BRJ for the purpose of these reasons for decision. 2. The hearing of that application did not commence because the Tribunal was informed that an instrument of consent, made pursuant to s 564 of the Legal Profession Act 2004 (the Act), had been signed by the solicitors for each of the applicant, the respondent and the Legal Services Commissioner. The Tribunal then embarked on the hearing of what will be described as a section 564 application. 3. The instrument of consent was marked exhibit A on that application. The practice of the Tribunal is that an instrument of consent which has been tendered on a s 564 application, is treated as having been filed with the Tribunal (see s 564 (6)). The Tribunal was handed a tender bundle of 3 documents by senior counsel for the respondent. That tender bundle was marked exhibit B and it comprised an affidavit sworn by the respondent on 27 March 2014, a report dated 18 March 2014 by Dr Anne-Marie Rees and a report by Dr V Leow dated 15 August 2014. During the hearing of submissions, the Tribunal was also taken to an affidavit of Dr Yvonne Skinner sworn 3 November 2014. That affidavit became exhibit C. 4. Included in the instrument of consent are agreed statements of facts relating to each of the three grounds in the application for original decision (described as grounds A, B and C). 5. The instrument also contains an agreed statement of facts relating to "Respondent's medical condition and issues that may affect any future application by the Respondent for a local or interstate practising certificate". 6. The balance of the instrument comprises a paragraph which is described as "Disposition of the Application" and paragraphs of consent orders. 7. The consent orders comprised findings that the respondent engaged in unsatisfactory professional conduct in relation to each of the three grounds A, B and C. 8. Consent order 4 stated: "Pursuant to s562 (2) Legal Profession Act 2004 or the equivalent provision of the Uniform Law, the Tribunal orders that the Respondent be reprimanded." 9. Consent order 5 was in these terms: "Pursuant to s581 of the Legal Profession Act 2004, the Tribunal orders that the reprimand shall not be recorded in the Register or otherwise publicised under Part 4 of the Act." 10. Subsections (1) and (2) of s 564 of the Act are in the following terms: 1. The Tribunal may, with the consent of the Australian legal practitioner concerned contained in a written instrument, make orders under this Part without conducting or completing a hearing in relation to the complaint. 2. Consent may be given before or after the proceedings were commenced in the Tribunal with respect to the complaint. 1. The evidence and the submissions on the hearing of the s 564 application were completed and the Tribunal reserved its decision until 2pm on 13 February 2015. 2. The respondent was not ready to proceed until about 2.15pm on 13 February and at that time the Tribunal stated that it proposed to give the Tribunal's reasons for decision. However before that commenced, Mr Craddock SC for the respondent stated that the respondent wanted to make submissions and that they were not submissions that he wanted to make. The Tribunal then asked the respondent whether she wanted to make submissions. She said she did and she said she wanted an adjournment of the proceedings to get further medical advice. She said that: 1. at the time of her conduct that the Tribunal was considering she was suffering from a sub specialty of anorexia nervosa; 2. she was not fully in control of her actions; 3. the Tribunal should not make a finding of unsatisfactory professional conduct; and 4. she admitted the facts in the instrument of consent. She made reference to NSW Bar Association v Butland [2008] NSW ADT 120, para 32. She said she was seeking an adjournment to gather the evidence. She made reference to Legal Practitioners Conduct Board v Ardalich [2005] SASC 478. She handed the Tribunal written submissions. Mr Craddock stated that he heard of the respondent's proposal to make the application at 1.59pm on that day. 1. Counsel for the Bar Council was asked whether she wanted to make some submissions and the matter was adjourned to 3.30pm to allow her to get some instructions. 2. Upon resumption counsel for the Bar Council stated that the Bar Council accepted that the matter could no longer proceed under s 564 as the respondent was not consenting. Counsel said that: 1. the matter should proceed in the usual way on the basis of the facts in the instrument of consent; 2. the Bar Council opposed the respondent's application for an adjournment; and 3. the application was based upon a misconception of the legal principles. Counsel then referred to paragraph 33 of Butland and paragraphs 35, 43 and 45 of Ardalich which are recorded in Butland. 1. Counsel for the Bar Council made the point that with the definition of unsatisfactory professional conduct, if the conduct fell short of the required standard of competence and diligence, then that conduct was unsatisfactory professional conduct and it did not matter that that conduct was brought about because of illness. 2. The respondent submitted that no finding of misconduct should be made and she pressed for an adjournment. The respondent stated that she wanted to find evidence to say that she was not in control of her conduct. 3. The Tribunal adjourned for a short time to consider the authorities and upon resumption of the hearing refused the application on the basis that Butland and Ardalich were against the respondent and that the evidence which she sought to obtain would not be admissible on whether she had engaged in unsatisfactory professional conduct. The adjournment application on that ground was therefore refused. 4. The respondent then said, contrary to her earlier position, that she was prepared to make all the admissions in the instrument of consent. During what followed she appeared to the Tribunal to be changing her position back and forth and the Tribunal was concerned that she had not given proper consideration to her position. The Tribunal adjourned again to 4pm at her request. 5. Upon resumption the Tribunal stated that in view of what the respondent had most recently said the Tribunal did not think it appropriate for the matter to proceed that day and that time ought be afforded to the respondent, in light of what had occurred that day, to consider her position. Counsel for the Bar Council did not want to say anything against that proposal. Directions were then given for both parties to file written submissions. The respondent's written submissions were to include any admissions she was to make and she should make submissions on orders to be made. She was directed to state in her submissions whether she agreed to the s 564 application proceeding. 6. It is unnecessary for the Tribunal to record in these reasons, all of the submissions made in writing by the respondent which were handed to the Tribunal on 13 February 2015. However we note that they included the following: 1. an admission by the respondent of the facts contained in the instrument of consent; 2. submissions that: 1. findings of unsatisfactory professional conduct should not be made; 2. pursuant to Dr Skinner's report, the Bar Council and the Legal Services Commissioner accepted that section 581 (1) of the Act should apply. Given this agreed fact that her conduct was due wholly or principally from infirmity, injury or mental or physical illness, no formal finding of unsatisfactory professional conduct should be made; 3. "here, the mental and physical sequelae of anorexia nervosa (AN) rendered me not in control of my conduct as, inter alia, I was physically weak, suffering from insomnia, dizziness and faintness, and my judgment was impaired. My body was in shutdown mode. The severity of my condition culminated in being admitted to intensive care at St George Hospital in Feb 2012, weight 28kg, BMI 10, in a life-threatening condition." The Bar Council's application and the respondent's amended reply 1. Before we continue recording the subsequent history of the proceedings, we will make reference to the Bar Council's application and the respondent's amended reply. 2. One of the orders sought in the application was that the respondent engaged in unsatisfactory professional conduct. There were three grounds of complaint with extensive particulars in respect of each ground. The three grounds were in the following terms: 1. During the period from about 14 July 2010 until about 21 December 2011, the respondent failed on numerous occasions to attend Court promptly for rostered duty as a Specialist Domestic Violence Panel Practitioner appointed by Legal Aid NSW. 2. On or about 31 May 2011, the respondent (as landlord) entered into a residential tenancy agreement with her client (as tenant), in respect of [certain] premises (the Premises) in breach of the respondent's fiduciary duties owed to her client and in breach of rule 16 of the New South Wales Barristers' Rules (as then applicable). 3. From at least 5 October 2011 until 22 November 2011, the respondent acted for [that client] in proceedings under the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the Care and Protection Proceedings) in circumstances where the client's interest in the matter was in conflict with the respondent's interest in regaining possession of the Premises. The respondent's conduct in acting for [the client] in these circumstances was in breach of her fiduciary duties owed to her client and in breach of rule 95 of the New South Wales Barristers' Rules. 1. By her amended reply filed on 29 May 2014, the respondent admitted in respect of each of the three grounds, that she engaged in unsatisfactory professional conduct. The amended reply also deals in detail with the particulars in the application. The respondent's written submissions dated 19 February 2015 1. The further hearing was adjourned to 10 March 2015 at 2pm. 2. The respondent signed and filed written submissions dated 19 February 2015. In those submissions she withdrew her consent to the Instrument of Consent; she agreed with the Instrument of Consent except for the consent orders; and she consented to paragraphs 4 – 39 of the Instrument of Consent being tendered as evidence of facts admitted by her. Those paragraphs were subsequently retyped as a statement of agreed facts and tendered as exhibit AA in the application for original decision filed by the Bar Council on 12 December 2013. 3. The respondent objected to the Bar Council relying on an affidavit of Alastair McConnachie affirmed 10 December 2013 as being unnecessary, given the facts admitted. Objection was also taken that the affidavit contained irrelevant material and was highly prejudicial. It was submitted that the hearing should proceed on the basis of the agreed facts, with arguments and submissions concerning the orders and concerning costs only. 4. Paragraph 36 of the statement of agreed facts was relevantly in the same terms as paragraph 39 of the instrument of consent and it was as follows: During the period relevant to this proceeding, the Respondent was suffering from anorexia nervosa and Dr Skinner found in paragraph 93 (l) of her report dated 31 October 2014 at page 17 that it is likely that her cognitive functioning was impaired by this condition. In addition, the physical symptoms of the condition caused or contributed to the Respondent's lateness on the occasions referred to in paragraphs 6 and 7 above. 1. In her written submissions, the respondent sought an order that the Bar Council's application be dismissed pursuant to s562 (1) of the Act. The respondent also argued that the Tribunal can be satisfied that a practitioner has engaged in unsatisfactory professional conduct without the requirement to make a finding of unsatisfactory professional conduct. It was sufficient for the Tribunal to be satisfied of the unsatisfactory professional conduct. 2. In support of that submission the respondent argued in her written submissions that the Act referred to "findings" in several sections but omitted reference to a finding in s 562 (1). This is the section which enables the Tribunal to make orders after it has completed a hearing in relation to a complaint. Consequently the respondent argued that the Tribunal's ability to make orders pursuant to s 562 does not rely on a finding of unsatisfactory professional conduct – the Tribunal only needs to be satisfied of unsatisfactory professional conduct. 3. Section 562 (1) is in the following terms: If, after it has completed a hearing under this Part in relation to a complaint against an Australian legal practitioner, the Tribunal is satisfied that the practitioner has engaged in unsatisfactory professional conduct or professional misconduct, the Tribunal may make such orders as it thinks fit, including any one or more of the orders specified in this section. 1. In support of the argument that there was a distinction between being satisfied and making a finding of unsatisfactory professional conduct, the respondent submitted that this distinction was supported by section 576 of the Act. Section 576 provides a definition of "disciplinary action" in Division 2 of Part 4.1 of the Act. 2. Section 576 (e) relevantly provides that disciplinary action against an Australian legal practitioner means "any of the following actions taken under a law of this or another jurisdiction ….: (e) the reprimanding of the practitioner .. by a person or body without a formal finding of unsatisfactory professional conduct …" 1. The respondent submitted that the Tribunal's ability to reprimand the practitioner is derived from s 562 (1) and (2) and that as s 576 provides that a reprimand can occur without a formal finding of unsatisfactory professional conduct, then the "being satisfied" referred to in s 562 (1) does not equate to a formal finding. 2. The Tribunal does not accept these submissions or arguments. In its view s 562 (1) is directed to the situation reached by the Tribunal after it has considered the evidence presented on the hearing of the complaint; after it has applied the relevant law to the findings of fact made by the Tribunal; and after it has drawn its conclusion on whether the Australian legal practitioner has engaged in unsatisfactory professional conduct or professional misconduct. 3. Before the Tribunal can be satisfied that a practitioner has engaged in unsatisfactory professional conduct, it must make its findings of fact upon the evidence presented to it and its findings of law which are applicable in connection with those findings of fact. 4. The Tribunal is of the view that s 576 (e) does not refer to a reprimand made by an order of the Tribunal but to a reprimand made by the Legal Services Commissioner or by a relevant Council pursuant to s 540 (2) (b) of the Act. Cases such as Prothonotary of the Supreme Court of New South Wales v McCaffery [2004] NSWCA 470 at [12] and Council of the NSW Bar Association v Power [2008] NSWCA 135 at [9] and [10] (where the respondent agreed to an order that his name be removed from the roll of legal practitioners) are authority for the proposition that such an order should not be made unless the Court is itself satisfied that the order should be made and the Court records the findings upon which they are made. In Power it was said that the Court should make findings of fact in appropriate detail as to the basis of its orders, particularly as this could be of significance in the event that there is a subsequent application for readmission. Here the respondent does not hold a practising certificate. If she applies in the future for a practising certificate, the findings of fact made by this Tribunal could be of significance. The Tribunal is of the view that this is another reason why it should make findings of fact. 5. Section 62 of the Civil and Administrative Tribunal Act obliges the Tribunal, where it has been requested by a party to provide a written statement of reasons for its decision, if a written statement of reasons has not already been provided to the party, to provide those reasons. They must set out the Tribunal's findings on material questions of fact, the Tribunal's understanding of the applicable law and the reasoning processes that led the Tribunal to the conclusions that it made. This is another reason why the submission made by the respondent should be rejected. 6. Even if the Tribunal has the power to dismiss the application, the Tribunal is of the view that it should not do so. The dismissal of the application where the Tribunal has found that the respondent engaged in unsatisfactory professional conduct would be inconsistent. The respondent's conduct described in the three grounds of complaint fell short of the standard of competence and diligence that a member of the public was entitled to expect of a reasonably competent Australian legal practitioner. That was the case even if that conduct arose wholly or principally from the respondent's psychiatric disorder. What orders should be made 1. In her written submissions dated 19 February 2015 the respondent submitted that the aims of protecting the public and deterring unsatisfactory professional conduct by practitioners do not require findings or orders to be made against a practitioner whose conduct was due to serious illness. The Tribunal does not accept that submission so far as the making of findings is concerned. The Tribunal's reasons for decision will be published and will be available on the internet for anyone, including lawyers, to read. A finding that the respondent's conduct constituted unsatisfactory professional conduct contributes to protecting the public in the future against that type of conduct or similar conduct by other practitioners and informs the public and practitioners alike as to what conduct will be considered unsatisfactory professional conduct (see Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 at 440G – 441C). Foreman was a case where a disciplinary order was made. However the Tribunal is of the view that publication of cases involving findings of unsatisfactory professional conduct also protects the public against similar conduct by other practitioners. 2. In paragraph 16 of her written submissions dated 19 February 2015, the respondent admitted that the conduct complained of satisfied "the objective definition of" unsatisfactory professional conduct. However it was then submitted that the Tribunal should not make a formal finding of unsatisfactory professional conduct and it should dismiss the Bar Council's application because, so it was submitted, the respondent's conduct was wholly or principally due to illness. It was said that this was acknowledged by all parties in the consent order number 5 of the Instrument of Consent and that pursuant to Dr Skinner's report, the Bar Council and the Legal Services Commissioner accepted that s 581 (1) of the Act should apply. 3. Section 581 (1) relevantly provides that disciplinary action taken against a person is not to be recorded in the Register or otherwise publicised under Part 4.10 of the Act if the action was taken because of the person's inability properly to carry out the requirements of legal practice and the inability arises wholly or principally from infirmity, injury or mental or physical illness. 4. As is made clear by New South Wales Bar Association v Butland [2008] NSWADT 120 at [33] – [41] and Legal Practitioners Conduct Board v Ardalich [2005] SASC 478 at [42] – [45], even where mental illness of a practitioner may have caused or contributed towards their commission of acts constituting unsatisfactory professional conduct, this cannot excuse the conduct, but may be a mitigating circumstance in considering what disciplinary order should be made. 5. In paragraphs 12 – 24 of its submissions dated 19 March 2015, the Bar Council summarised what it submitted was the history of the respondent's medical condition and treatment over the period from 2010 to 2012. 6. It was submitted that a reprimand was the appropriate order for two reasons. In paragraph 12 of the submissions, the second reason was described as follows: Whilst the Bar Council has accepted on the basis of Dr Skinner's evidence that the Respondent's conduct is likely to have arisen principally from her medical condition, the evidence before the Tribunal shows that the Respondent knew at the time that she was seriously unwell and that she was suffering from symptoms that affected her ability to practise as a barrister. She nevertheless chose to continue practising. 1. In paragraph 25 it was submitted: Irrespective of when the Respondent's condition was diagnosed as anorexia nervosa, during the relevant period from mid-2010 to the end of 2011 the Respondent knew that she was seriously ill and that the various symptoms of her illness were in fact interfering with her ability to practise as a barrister at least in so far as they were interfering with her ability to present for rostered duty on time. The Tribunal should infer that the Respondent knew that her symptoms, including insomnia and chronic weakness, tiredness and lethargy, were of a kind that would necessarily interfere with her ability to practise as a barrister generally. 1. Paragraph 28 of those submissions was as follows: It is submitted that, having regard to all of these circumstances, the Tribunal should reprimand the Respondent. This penalty conveys to the Respondent and to other barristers reading the Tribunal's reasons for decision that the Tribunal regards conduct falling significantly below the standard that members of the public are entitled to expect as serious. Importantly, such conduct is not regarded as less serious if it occurs in the context of an illness where the barrister ignores the illness or symptoms and their adverse effect on his or her ability to practise, ignores medical advice and relies on illness in the context of a complaint investigation but fails to disclose the nature of the illness to the Bar Council even after it was diagnosed. 1. The respondent's written submissions filed on 7 April 2015 disputed a number of the matters recorded in the Bar Council's written submissions dated 19 March 2015. It is unnecessary for the Tribunal to resolve those disputes (see paragraphs 79 – 85 below). 2. For the reasons set out in paragraphs 79 – 85 below, the Tribunal does not accept the Bar Council's submissions set out in paragraphs 43 – 46 above. The affidavit of Alastair McConnachie 1. The respondent has submitted that this affidavit is unnecessary and that it contains irrelevant material and is highly prejudicial. She has not expanded upon those submissions nor identified the alleged irrelevant and prejudicial material. 2. The Bar Council's written submissions dated 25 February 2015 stated that Mr McConnachie's affidavit is relevant to jurisdiction; that the respondent's admissions in relation to her conduct do not remove the need for the Tribunal to be satisfied that it has jurisdiction in the matter; and that neither the affidavit nor its exhibit AM1 contain material that is prejudicial or that relates to conduct that is not the subject of the proceedings. The Tribunal accepts those submissions. The statement of agreed facts 1. The Tribunal is of the view that the facts recorded in paragraphs 1 – 9 of the statement of agreed facts for ground A, show that the respondent's conduct in presenting late for rostered duty during the relevant period fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner. The Tribunal is of the view that the admissions made in paragraph 9 of the statement of agreed facts were properly made. Paragraph 9 is in the following terms: The Respondent admits that her conduct in presenting late for rostered duty during the relevant period fell short of the standard of competence and diligence that a member of the public is entitled to expect from a reasonably competent Australian legal practitioner. The Respondent therefore admits that she engaged in unsatisfactory professional conduct. 1. The Tribunal is of the view that the facts recorded in paragraphs 10 – 19 of the statement of agreed facts for ground B, show that the respondent's conduct in entering into the lease notwithstanding the conflict of interest, breached her fiduciary duties owed to her client; breached rule 16 of the NSW Barristers' Rules (as applicable as at 31 May 2011) and thus fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner. The Tribunal is of the view that the admission made in paragraph 19 of the statement of agreed facts for ground B was properly made. Paragraph 19 is in the following terms: The Respondent admits that she engaged in unsatisfactory professional conduct by entering into the Lease in breach of her fiduciary duties and in breach of Rule 16. 1. The Tribunal is of the view that the facts recorded in paragraphs 21 – 34 of the statement of agreed facts for ground C show that the respondent's conduct in continuing to act for her client notwithstanding the conflict of interest during the period from 5 October to 22 November 2011 breached her fiduciary duties owed to her client; breached rule 95 (b) of the New South Wales Barristers' Rules (as then applicable) and thus fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner. The Tribunal is of the view that the admission made in paragraph 34 of the statement of agreed facts for ground C was properly made. Paragraph 34 is in the following terms: By acting for [her client] during that period in breach of her fiduciary duties and in breach of Rule 95 (b), the Respondent admits that she engaged in unsatisfactory professional conduct. Subsection 581 (1) Legal Profession Act 2004 1. Subsection 581 (1) of the Act relevantly provides: Disciplinary action taken against a person is not to be recorded in the Register or otherwise publicised under this Part if the action was taken because of the person's inability properly to carry out the requirements of legal practice and the inability arises wholly or partially from infirmity, injury or mental or physical illness. 1. The questions therefore arise whether if the Tribunal takes the disciplinary action which the Bar Council submits it should take, that action would be taken because of the respondent's inability properly to carry out the requirements of legal practice and the inability arose wholly or partially from infirmity, injury or mental or physical illness. The respondent's physical and mental conditions 1. It is accepted by the Bar Council that at the time of the respondent's conduct the subject of its application, she was suffering from anorexia nervosa. 2. At the request of the solicitors for the Bar Council, Dr Yvonne Skinner, a consultant psychiatrist, examined the respondent on 15 October 2014. Attached to the affidavit of Dr Skinner is a report dated 31 October 2014. 3. In paragraph 84 of that report it is stated: Based on the history provided by [the respondent] and the available extracts from medical records, it seems likely that the she was suffering from anorexia nervosa during the period mid-2010 to 2011. Her condition would have been fluctuating. It is likely that she was feeling unwell and had difficulty in performing her activities, and that her psychiatric disorder caused her lateness for Court on the dates listed in your letter of instruction. She was probably suffering from anaemia, low blood pressure and bradycardia around that time, resulting in difficulty getting out of bed and going to work in the morning. I note that Dr Rees took a history that her sleep was poor because [the respondent] was up at night vomiting, and had not eaten during the day. 1. In paragraph 93 of the report, Dr Skinner answered questions asked by the solicitors for the Bar Council. In paragraph 93 (n) the following is recorded: Please make the assumptions set out in Annexure A to this letter. Was [the respondent's] late presentation for duty on the occasions referred to in paragraphs 6 and 7 of Annexure A caused by an inability properly to carry out the requirements of legal practice resulting wholly or principally from any illness suffered by [the respondent] at the time? [Answer] I believe that [the respondent's] lateness can be explained by her psychiatric disorder. She told Dr Rees that she was often vomiting at night and felt tired and weak in the morning and I accept that this would have caused lateness. 1. In paragraph 93 (o) the following is recorded: Please make the assumptions set out in Annexure B to this letter. Was [the respondent's] conduct in entering into the lease referred to in Annexure B caused by an inability properly to carry out the requirements of legal practice resulting wholly or principally from any illness suffered by [the respondent] at the time? [Answer] As discussed above, it is probable that [the respondent's] judgment was affected by frontal lobe dysfunction due to her psychiatric disorder. 1. In paragraph 93 (p) the following is recorded: Please make the assumptions set out in Annexure C to this letter. Was [the respondent's] conduct in continuing to act for [her client] in the Care and Protection Proceedings during the period from 13 July 2011 to 22 November 2011, as referred to in Annexure C caused by an inability properly to carry out the requirements of legal practice resulting wholly or principally from any illness suffered by [the respondent] at the time? [Answer] As discussed above it is probable that [the respondent's] judgment was affected by frontal lobe dysfunction due to her psychiatric disorder. 1. In paragraph 94 the following is recorded: [The respondent] is suffering from a severe and perplexing psychiatric disorder, anorexia nervosa. The condition has been present for years and it appears that her BMI has remained low. She has not engaged in treatment. She does not have insight into the severity of the condition and she lacks motivation to alter her behaviour to regain normal body weight…. It is my opinion that [the respondent] was probably suffering from cognitive impairment at the time of the alleged unsatisfactory professional conduct because of her psychiatric disorder, and her lateness for Court and her poor judgment in relation to the lease to her client occurred because her judgment was impaired, as discussed above. The respondent's affidavit sworn 27 March 2014 1. This affidavit included the following: 3. At the outset I wish to acknowledge that during 2011 I engaged in conduct in connection within my practice of law that fell short of the standard of competence and diligence that a member of the public is entitled to expect from a reasonably competent Australian legal practitioner. 7. I regret and apologise for my actions and also realise that I have caused the Applicant to spend significant time investigating the complaints against me. 9. From late 2010, throughout 2011 and in 2012 I was suffering from a chronic medical condition which, although I did not acknowledge it fully at the time (which is a symptom of the condition), I now recognise as anorexia nervosa. Symptoms that I suffered during this period include weakness, fatigue, insomnia, gastrointestinal complaints. 10. I firmly believe my medical condition contributed to my lack of timeliness attending Court and led to errors of judgment on my part during that time…. 24. As stated above, I accept that I acted in conflict of interest with my client from 5 October 2011. During this period I was very unwell and I believe that this contributed to my errors of judgment and lack of insight at the time. In that regard I refer the Tribunal to the evidence referred to at paragraphs 8 to 12 above. The medical evidence 1. Dr Vincent Leow is a consultant psychiatrist and he signed a report dated 19 March 2014 for the purpose of these proceedings. He stated that the respondent had consulted with him since 2012 for treatment of anorexia nervosa. Two of the paragraphs in that report were in the following terms: [The respondent] instructs that throughout 2011 she experienced insomnia and general weakness and this is in accordance with the level of disorder she experienced. This level of disorder most likely impacted upon her punctuality. I note that the complaints re [the tenant] related to [the respondent's] personal dealings and do not relate to complaints received from clients re her quality of work. It appears that [the respondent] was able to exercise objectivity and good judgment for her clients but was clouded in judgment concerning some of her own matters. Her then level of disorder most likely impacted upon her self-judgment. 1. Dr Anne-Marie Rees is a consultant psychiatrist and the solicitors for the respondent referred the respondent to Dr Rees for psychiatric assessment and report. Dr Rees reported on 18 March 2014. 2. At pages 4 and 5 of that report the following is recorded: When she rented the granny flat to the client, she does not think that her judgment was impaired. She said she hadn't really thought it through, though it could have led to conflict. She said she had never done anything like this before and will never do anything like this again. She noted however that she was working through this period of time and that her cognition appeared reasonable and commented that she was not significantly depressed. 1. On page 7 of the report Dr Rees stated: "[The respondent] presents with a history of Anorexia Nervosa, worsening over the last ten years but likely to have been present prior to this also. Driving factors for this originate in her personality style, being particularly perfectionistic and needing control around stressful situations. I would expect that she was suffering from an Adjustment Disorder with Anxious and Depressed Mood during 2010, 2011 and 2012 in the context of all the stressors outlined above, which would have contributed to her worsening Anorexia and also would have been a symptom of the worsening Anorexia as well. Her insight into how her mental health was affected during this time is likely to be limited because of the particularly low body weight that she had and it is quite common for a person to be depressed at those types of body weights." 2. The solicitors for the respondent asked Dr Rees to answer a number of questions. One of those questions was as follows: The symptoms of anorexia nervosa and any effect this condition may have had on [the respondent's] judgment and ability to perform her duties as a barrister in 2011 and 2012 and whether that may have caused or contributed to the above conduct. 1. Included in Dr Rees' answer was the following: In my opinion her above conduct would have been impacted on by her Anorexia, particularly the very low body weight she had, which can impact on cognitive function and can increase the risk of depression. She identified problems with stress during this time and I have diagnosed an Adjustment Disorder with Anxious and Depressed Mood at this time to best account for these symptoms as a diagnosis. I note that her problems with fatigue and tiredness and lateness would have related to the Anorexia, as outlined above, and this issue of extreme perfectionism, would have caused significant problems with her judgment related to turning up for work in court but not being able to attend to her personal matters. The issue with the tenant for the granny flat and the DA Council issue are however more likely to be matters of general poor judgment, as opposed to issues that her judgment was impaired because of a particular problem with her thinking processes related to her mental health and psychiatric conditions (see pages 7 and 8 of the report). 1. At pages 8 and 9 of her report Dr Rees stated: At this current point in time she could practice as a barrister and there is no evidence of acute psychiatric disorder, such as depression nor anxiety disorder or a psychotic illness, and there is no evidence that she has significant cognitive impairment related to her low body weight from the Anorexia Nervosa. 1. In paragraph 48 of her report, Dr Skinner referred to a report of Dr Leow dated 15 August 2014 (a report to which the Tribunal has also had regard) and correctly summarised part of it in these terms: He stated that anorexia nervosa can lead to a huge array of physical and mental symptoms including insomnia, general weakness, difficulty in dealing with stress, impairment of judgment and reasoning, denial of condition, particularly in cases as severe as [the respondent's] in 2011 and 2012. He believed that where her conduct fell below the standard required, this was due wholly or principally from impairment, infirmity, mental or physical illness. 1. In paragraph 59, Dr Skinner said: "Dr Rees thought there was no evidence that [the respondent] had significant cognitive impairment related to her low body weight from anorexia nervosa." Dr Skinner commented on that statement in these terms: "I do not agree with this opinion. [The respondent] claims that she was cognitively impaired during the period 2010 to 2012 and that her impaired judgment was the reason that she engaged in unprofessional conduct. Dr Rees does not provide any reasons or information about investigations she arranged to exclude cognitive impairment." 2. 73 In paragraph 85 of her report Dr Skinner stated: It is more difficult to explain [the respondent's] conduct in leasing premises to her client and later terminating the lease and seeking orders for payment of outstanding rent. This conduct took place over a prolonged period of months from May until November 2011 and required multiple actions over that time. On 22 November 2011 [the respondent] signed an affidavit stating that her client had secured stable accommodation when she knew that her client did not have stable accommodation. I understand that over the same period of months, [the respondent] was working as a barrister and carrying out her other duties. In my opinion, [the respondent's] cognitive functioning and judgment were possibly impaired during that whole period because of her severe state of malnutrition due to anorexia nervosa. 1. Paragraph 59 of Dr Skinner's report may be a misunderstanding as to the opinion expressed by Dr Rees at pages 8 and 9 of her report. Dr Rees was speaking of the time of her report and not about earlier times. What she said at pages 8 and 9 was as follows: At this current point in time she could practice as a barrister and there is no evidence of acute psychiatric disorder, such as depression, nor anxiety disorder or a psychotic illness, and there is no evidence that she has significant cognitive impairment related to her low body weight from Anorexia Nervosa. 1. As we understand it, Dr Skinner's reasoning process is as follows: 1. she did not perform testing to establish whether the respondent has more subtle cognitive deficits and whether she has deficits with respect to organisation, planning and judgment. This would be important, as the cognitive deficits relevant to the respondent's alleged unsatisfactory professional conduct were impaired judgment, planning and organisation. These functions are performed largely in the frontal lobes of the brain and there are studies that show loss of grey matter in the frontal lobes of persons suffering from anorexia nervosa (para 90); 2. the respondent's cognitive functioning and judgment were possibly impaired during that whole period from May until November 2011 because of her severe state of malnutrition due to anorexia nervosa (para 85); and 3. the brain loses both grey and white matter during severe weight loss as a result of semi-starvation. Weight restoration results in the return of white matter to pre-morbid levels, but some loss of grey matter persists that may be associated with long-term effects on cognitive functioning (para 86). 1. Dr Skinner concluded that in her opinion the respondent was probably suffering from cognitive impairment at the time of the alleged unsatisfactory professional conduct because of her psychiatric disorder, and her lateness for court and her poor judgment in relation to the lease to her client occurred because her judgment was impaired as discussed in her report (para 94). 2. Dr Skinner's explanations (as we understand them) set out in paragraph 75 above, persuade us to accept her final conclusion. In doing so we have taken into account: 1. the statement made by Dr Skinner that the respondent does not have insight into the severity of her condition (paragraph 62 above); 2. the statement by Dr Rees that the respondent's insight into how her mental health was affected during this time is limited (paragraph 67 above); 3. the respondent's statements to Dr Rees (paragraph 66 above); and 4. Dr Rees' view that the issue with the tenant for the granny flat and the DA Council issue, are more likely to be matters of general poor judgment (paragraph 69 above). 1. It is difficult to know exactly what was the opinion expressed by Dr Leow in his report dated 19 March 2014. But what is recorded in paragraphs 64 and 71 above certainly does not express an opinion contrary to that held by Dr Skinner. The summary of Dr Leow's report dated 15 August 2014, which is set out in paragraph 71 above appears to support the conclusion that in 2011 and 2012 the respondent's cognitive functioning was impaired. What follows from this analysis of the medical evidence? 1. Section 581 of the Act operates on the basis that disciplinary action has been taken by the Tribunal (or e.g. the Bar Council). In other words the fact that the practitioner's inability to carry out the requirements of legal practice arose wholly or principally from mental or physical illness, is not a reason why disciplinary action should not be taken. 2. The Tribunal is of the view that the conclusion to be drawn from this medical evidence is that the respondent's psychiatric disorder caused her lateness for court (see paragraphs 58 and 69 above). 3. One would expect that a person who was very fatigued, had poor sleep, was sleep-deprived, struggling to get to work on time and was late for court, would know that her physical condition was preventing her from attending court on time to carry out her duties to her clients. However Dr Rees has expressed the opinion that those problems would have related to the anorexia and that, what Dr Rees described as the respondent's issue of extreme perfectionism, would have caused significant problems with her judgment related to turning up for work in court (see paragraph 69 above). 4. Dr Skinner expressed the belief that the respondent's lateness could be explained by her psychiatric disorder (see paragraph 59 above) that she was probably suffering from cognitive impairment; and that her lateness for court occurred because her judgment was impaired (see paragraph 62 above). 5. The Tribunal concludes from this evidence that the respondent's judgment was affected so that she did not appreciate that her physical disabilities were causing her to be late for court. In those circumstances the Tribunal is of the view that it is not appropriate that the respondent be reprimanded in respect of her conduct the subject of Part A of the complaint detailed in the application for original decision. 6. The Tribunal concludes from the medical evidence that the respondent's judgment and cognition were affected by the anorexia nervosa with the result that she did not have sufficient comprehension of her conduct nor the ability to properly reason in relation to her conduct. In those circumstances the Tribunal is of the view that it would not be appropriate that she be reprimanded for her conduct set out in Part B or Part C of the complaint detailed in the application for original decision. 7. If the respondent's judgment and cognition had not been affected, a reprimand would be an appropriate order to make. Should the Tribunal make a declaration 1. In its written submissions dated 19 March 2015, the Bar Council acknowledged that the facts of this case did not require a declaration to be made but submitted that the utility of a declaration of unsatisfactory professional conduct was to record in a formal and succinct way the basis on which the Tribunal has made any other orders under section 562 of the Act. In her written submissions, the respondent submitted that a declaration was not required to protect the public when the conduct was due to serious illness. 2. As no disciplinary order is being made, the Tribunal is of the view that it is unnecessary to make a declaration particularly having regard to paragraph 90 below. Anonymity of the respondent 1. A letter dated 10 February 2015 written to the Registrar by the lawyers acting for the respondent, referred to proposed consent orders which were awaiting the approval of the Legal Services Commissioner. The letter stated that it was the respondent's wish that the proceedings remain anonymous so as not to compromise the intentions of the parties that the proposed reprimand not be published. 2. On 19 March 2015, the Bar Council made detailed written submissions on whether the proceedings should remain anonymous. The submissions dealt with an assumed position that the Tribunal considered that section 581 of the Act applied to this case. In those circumstances the Bar Council did not oppose an order under s 64 of the Civil and Administrative Tribunal Act 2013 prohibiting or restricting the publication of the name of the respondent in the Tribunal's reasons for decision. It was said that such an order would ensure that the balance that has been struck under Part 4.10 of the Act concerning the publication of "disciplinary action" was not circumvented by the publication of the Tribunal's reasons on the internet. 3. It is clear that a balance has been struck under Part 4.10 of the Act. Because the inability to carry out the requirements of legal practice has arisen from infirmity, injury or mental or physical illness, s 581 provides that the disciplinary action taken against the person is not to be recorded in the register or otherwise publicised under Part 4.10. That gives a measure of privacy to the person who is suffering from the illness. 4. Here the respondent was suffering from such an illness but s 581 will not operate because no disciplinary action has been taken against the respondent. 5. Section 64 of the Civil and Administrative Tribunal Act 2013 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: 1. 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 Tribunal is of the view that had disciplinary action been taken against the respondent the balance struck under Part 4.10 of the Act would have been an appropriate reason why the Tribunal would have made an order under s 64 (1) (a). The Tribunal is of the view that because no disciplinary action has been taken against the respondent, this is a stronger reason for making an order under s 64 (1) (a). 2. The Tribunal is therefore of the view that an order should be made that for the purposes of these proceedings, the respondent's name be anonymised as BRJ and that the disclosure of the respondent's name be prohibited. 3. In its written submissions dated 19 March 2015, the Bar Council stated that it would not oppose an order under s 64 of the Civil and Administrative Tribunal Act 2013 that restricts access to and disclosure of evidence filed with the Tribunal in these proceedings to the Legal Services Commissioner, the parties and their respective legal representatives, subject to further order of the Tribunal. The respondent did not oppose the making of such an order. The Tribunal is of the view that having regard to the respondent's physical and mental conditions which are detailed in these reasons, an order along the lines proposed by the Bar Council should be made. Costs 1. In her written submissions dated 19 February 2015, the respondent sought that no order for costs be made. 2. In its submissions dated 25 February 2015 the Bar Council sought an order for costs stating that if the Tribunal found the respondent engaged in unsatisfactory professional conduct, it must make an order that the respondent pay the Bar Council's costs of the proceedings unless the Tribunal is satisfied that exceptional circumstances exist (s 566 of the Act which continues to apply in this case). It was further submitted that if the respondent claimed that exceptional circumstances exist, it was incumbent on her to identify and adduce evidence of those circumstances. The Bar Council would then wish to adduce further evidence in response and to make submissions in relation to costs. It was submitted that it would be appropriate to defer that evidence and those submissions until after the Tribunal had determined the substantive matters in the proceedings. 3. In her written submissions dated 6 March 2015, the respondent submitted that no costs order should be made against her as no finding of unsatisfactory professional conduct should be made and exceptional circumstances exist namely she was suffering from a severe, life-threatening illness and her conduct was due to this. 4. The Tribunal agrees with the proposal put forward by the Bar Council and an order will be made for the proceedings to be listed before the Registrar so that evidence and submissions can be placed before the Tribunal so that it can determine whether an order should be made that the respondent pay the Bar Council's costs. Findings 1. Having considered all of the evidence and submissions, the Tribunal makes the following findings: 1. The Tribunal finds that the Respondent engaged in unsatisfactory professional conduct by arriving late for rostered duty as a member of the Specialist Domestic Violence Practitioner Panel on 13 occasions during the period 14 July 2010 to 21 December 2011, as set out in paragraphs 1 to 9 of the statement of agreed facts. 2. The Tribunal finds that the Respondent engaged in unsatisfactory professional conduct by entering into a lease on 31 May 2011 with her client in proceedings under the Children and Young Persons (Care and Protection) Act 1998 (NSW), in breach of the Respondent's fiduciary duty and Rule 16 of the New South Wales Barristers' Rules (as then applicable) as set out in paragraphs 10 to 20 of the statement of agreed facts. 3. The Tribunal finds that the Respondent engaged in unsatisfactory professional conduct by acting for her client in proceedings under the Children and Young Persons (Care and Protection) Act 1998 (NSW) during the period 5 October 2011 to 22 November 2011 notwithstanding a conflict between the interests of her client and the interests of the Respondent, in breach of the Respondent's fiduciary duty and Rule 95 of the New South Wales Barristers' Rules (as then applicable) as set out in paragraphs 21 to 34 of the statement of agreed facts. Orders 1. The Tribunal orders that: 1. For the purposes of these proceedings the name of the respondent is anonymised as BRJ; 2. The disclosure of the respondent's name is prohibited; 3. Pursuant to section 64 of the Civil and Administrative Tribunal Act 2013, and subject to any further order of the Tribunal, access to and disclosure of documents and evidence filed with the Tribunal in this application be restricted to the Legal Services Commissioner, the parties and their respective legal representatives; and 4. The proceedings be listed before the Registrar so that evidence and submissions can be placed before the Tribunal so that it can determine whether an order should be made that the respondent pay the costs of the Council of the New South Wales Bar Association. 5. The application is otherwise dismissed. 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: 16 July 2015