Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Council of the NSW Bar Association v Luitingh [2017] NSWCATOD 41 Hearing dates: 13 and 14 March 2017 Date of orders: 14 March 2017 Decision date: 14 March 2017 Jurisdiction: Occupational Division Before: Hon F Marks Principal Member L Robberds QC Senior Member J Schwager Member Decision: The Respondent is found guilty of unsatisfactory professional conduct The Respondent is reprimanded The Respondent is to pay the costs of the Applicant agreed in the sum of $46000.00 Catchwords: Barrister engaged in court proceedings-allegations of serious misconduct made against opposing solicitor conceded without reasonable grounds for belief that true-threat to pursue opposing solicitor for costs order without a reasonable basis-engaged in heated verbal exchange with opposing solicitor-held in the aggregate to constitute unsatisfactory professional conduct- reprimand imposed-costs order made Legislation Cited: Legal Profession Act 2004 (NSW) (now repealed) Category: Principal judgment Parties: Council of the NSW Bar Association (Applicant) Martin Ewald Luitingh (Respondent) Representation: Counsel: D McLure SC (Applicant) P Morris SC (Respondent) Solicitors: Kennedys (Applicant) Moray and Agnew (Respondent) File Number(s): 1620037 reasons for decision 1. These proceedings are constituted by an Amended Application for Disciplinary Findings and Orders filed by the Applicant Council of the New South Wales Bar Association seeking findings of unsatisfactory professional conduct or, in the alternative, professional misconduct against the Respondent Martin Ewald Luiting, who is an Australian legal practitioner.. 2. The parties were able to reach agreement between themselves, and with the concurrence of the Legal Services Commissioner, as to the appropriate disposal of the proceedings. They entered into a signed Instrument of Consent which was prepared having regards to the provisions of section 564 of the Legal Profession Act 2004 ("the Act"), which Act governs these proceedings by reason of the time period when the misconduct complained of occurred. 3. Section 564 of the Act is in the following terms; 564 Consent orders (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. (3) If consent is given before the proceedings were commenced, the requirement to conduct an investigation of the complaint (whether commenced or not) may be dispensed with, and any investigation of the complaint already being conducted may be suspended or terminated. (4) This section does not apply to consent given by the practitioner unless the practitioner, the Commissioner and (if applicable) the relevant Council have agreed on the terms of an instrument of consent. (5) Without limiting what may be included in the instrument of consent, the instrument is to contain an agreed statement of facts (including as to the grounds of complaint) and may contain undertakings on the part of the practitioner. (6) The instrument of consent must be filed with the Tribunal. (7) Nothing in this section affects the procedures regarding the commencement of proceedings in the Tribunal where consent was given before the proceedings are commenced. (8) If consent was given before the proceedings are commenced, the proceedings are nevertheless to be commenced with respect to the complaint in the same way as if the consent had not yet been given. (9) The Tribunal is to be constituted in the same way as for the conduct of a hearing into the complaint. (10) In deciding whether to make orders under this Part pursuant to an instrument of consent, the Tribunal may make such inquiries of the parties as it thinks fit and may, despite any such consent, conduct or complete a hearing in relation to the complaint if it considers it to be in the public interest to do so. 1. Unsatisfactory professional conduct is defined in section 496 of the Act in the following terms; 496 Unsatisfactory professional conduct For the purposes of this Act: "unsatisfactory professional conduct" includes conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner. 1. Professional misconduct is defined in section 497 of the Act in the following terms; 497 Professional misconduct (1) For the purposes of this Act: "professional misconduct" includes: (a) unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence, and (b) conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice. (2) For finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the matters that would be considered under section 25 or 42 if the practitioner were an Applicant for admission to the legal profession under this Act or for the grant or renewal of a local practising certificate and any other relevant matters. 1. During the course of the initial stage of the proceedings, when presented with an earlier draft of the Instrument of Consent, we canvassed a number of issues which arose out of the form and contents of the Amended Application. The Instrument of Consent, in its final form, is annexed to these reasons for Decision. It sets out in summary form the basis for the several allegations of misconduct made against the Respondent, those factual matters which have been resolved, a reference to factual matters which are not the subject of agreement, and the findings which the parties propose might appropriately be made by the Tribunal, as well as consequential orders. Having regard to all of these matters, we are satisfied that it is appropriate to deal with these proceedings in terms of the Instrument of Consent, a signed copy of which was handed up during the course of the hearing. It follows that we are satisfied that it is not necessary to conduct any formal hearing traversing the several allegations of misconduct and the background factual material contained in the Amended Application. 2. Whether misconduct of an Australian legal practitioner is to be characterised as unsatisfactory professional conduct or professional misconduct involves a consideration of each of the definitions set out above and the exercise of a value judgement having regard to the factual circumstances as admitted or proven. In so observing, we are conscious that neither definition is expressed to be exclusive of the behaviour which might be so characterised. The nature and extent of the misconduct of the Respondent as revealed in the Instrument of Consent is not indicative of either of the matters referred to in paragraphs (a) or (b) of the definition of professional misconduct. The behaviour of the Respondent arose out of and is confined to an encounter with another legal practitioner involved in the same proceedings. Whilst the behaviour is regrettable, as acknowledged by the Respondent, it cannot be characterised as professional misconduct. 3. However, the misconduct complained of, and conceded, does, in our opinion fall short of the standard of behaviour that is appropriate to be observed by a legal practitioner dealing with another legal practitioner. We concede that there may be circumstances where a legal practitioner may be justifiably upset by or concerned about the conduct of another practitioner, but even in circumstances of provocative behaviour, legal practitioners must nevertheless conduct themselves in a dignified manner. Furthermore, any allegation of a serious nature levelled against another legal practitioner must have an arguable basis. In our opinion, the circumstances as revealed in the Instrument of Consent justify findings of unsatisfactory professional conduct. 4. We add for completeness that the Agreed Facts relating to Ground C as set out in the Instrument of Consent do not appear to us to be representative of a serious matter. However, we have taken them into account in assessing the overall misconduct of the Respondent in determining, in the aggregate, that it has constituted unsatisfactory professional conduct. So much was contended for by Senior Counsel appearing for the Respondent. 5. Having regard to the nature and extent of the misconduct so found, we are satisfied that a reprimand is an appropriate consequential order to be made under section 562 of the Act. We are also satisfied that in the circumstances it is appropriate to make the costs order agreed to by the parties. 6. The above reasons constitute our reasons for having made the findings which are set out in paragraph 31 (a) to (d) of the Instrument of Consent and for having made the orders set out in paragraph 31 (e) and (f) of that document which we announced at the conclusion of the hearing on 14 March 2017. ********** 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: 24 March 2017