Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Legal Services Commissioner v Potkonyak [2017] NSWCATOD 74 Hearing dates: 13, 14 December 2016, 18 April 2017 Date of orders: 17 May 2017 Decision date: 17 May 2017 Jurisdiction: Occupational Division Before: F Marks ADCJ Principal Member C Ludlow Senior Member M Bolt General Member Decision: The respondent is found guilty of professional misconduct The proceedings are stood over for stage 2 hearing on 22 August 2017 Catchwords: Legal Practitioner-pursuit of arguments before courts having no legal basis-unfounded criticism of judicial officers and legal practitioners-held constitutes professional misconduct-proceedings stood over to determine appropriate orders Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 Legal Profession Act 2004 New South Wales Professional Conduct and Practice Rules 2013 Cases Cited: Briginshaw v Briginshaw [1938] HCA 34; (1983) 60 CLR 336 Clyne v. N.S.W. Bar Association [1960] HCA 40; (1960) 104 CLR 186. Louise v Director General of Community Services [2011] NSW SC1646. New South Wales Bar Association v Cummins [2001] NSWCA 284 Re Felicity; FM v Secretary, Department of Family and Community Services (No 3) [2014] NSWCA 226 Re Felicity; FM v Secretary, Department of Family and Community Services (No 4) [2015] NSWCA 19 Category: Principal judgment Parties: Legal Services Commissioner (Applicant) George Potkonyak (Respondentt) Representation: Counsel: CA Webster SC and PA Madigan (Applicant) Solicitors: Samantha Gulliver (Applicant) George Potkonyak (Respondentt) File Number(s): 2015/00383950, 1520269 Publication restriction: Non-publication order prohibiting the disclosure of the name of any client of the respondent, the name of any child of any client of the respondent and the names of all other parties to any proceedings in which the respondent represented a party, with respect to any proceedings which are the subject of or relate to allegations of misconduct against the respondent made in these proceedings Reasons for decision Background to the proceedings 1. These disciplinary proceedings came on for hearing on 13 and 14 December 2016. A large volume of evidentiary material was tendered on behalf of both parties by consent. The respondent gave evidence and was cross-examined. 2. The parties then commenced submissions. Earlier, the applicant had filed an amended application and leave was granted for the applicant to do so, with the consent of the respondent. Essentially the amended application corrected matters of detail and some typographical errors. 3. During the course of submissions, it became clear that the amended application was itself deficient. In order to explain this, it is necessary to set out briefly some background information concerning these proceedings. In essence, the complaints arise out of two sets of litigation in which the respondent represented a party. The first set of proceedings, which can conveniently be referred to as the Re Felicity proceedings, initially took place in the Children's Court and concerned questions of custody and access to a child, in which the respondent represented the mother. The proceedings, although initially conducted in the Children's Court involved applications being made by the respondent on behalf of his client to the Supreme Court of New South Wales, thence back to the Children's Court, then by way of appeal to the District Court and from there a further appeal to the Court of Appeal. The second set of proceedings also concerned parental care arrangements for the daughter of a mother represented by the respondent. The proceedings were initially conducted in the Children's Court and were later the subject of an appeal in the District Court. For reasons that will become obvious we shall refer to these proceedings as the Judge Knox proceedings. 4. A number of specific allegations of unsatisfactory professional conduct and professional misconduct were contained within the amended application. With respect to the Re Felicity proceedings, in essence it was alleged that the respondent conducted himself inappropriately during the course of the proceedings in the Children's Court and before the District Court. 5. The amended application referred to a ground 5 to the effect that "the solicitor breached his duty to his client." There then followed a number of particulars which were inelegantly framed in that they failed to differentiate with any precision the precise misconduct which was alleged against the respondent arising out of or in connection with each set of proceedings. It became clear during the course of submissions that these particulars would need to be reframed to enable the respondent to be fully informed as to the precise case that he was required to meet and to enable this Tribunal to deal with the matter appropriately. An application for adjournment was made on 14 December, was consented to by the respondent, and was granted on certain conditions. 6. It is also necessary to refer briefly to the provisions of ground 6 which assert that the respondent "consistently engaged in conduct 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." The particulars of this ground were said to include all of the particulars of all of the previous grounds of complaint set out in the amended application. 7. When the proceedings came on for further hearing on 18 April 2017 the applicant sought to amend the proceedings constituted by a Further Amended Application for Disciplinary Findings and Orders which had been filed on 13 January 2017 and to which the respondent had filed a number of Reply documents. The respondent raised no objection to the amendment of the proceedings and by Order made by us they are now constituted by that document. 8. The applicant has helpfully compiled a document which consolidates the Further Amended Application, and the Reply documents which we shall reproduce in these reasons. Consistent with a non publication order which we have made, we have deleted all reference to the real names of any child or family of a child involved in any proceedings which are the subject of these proceedings. This document is in the following terms; Applicant LEGAL SERVICES COMMISSIONER Respondent GEORGE POTKONYAK THIS DOCUMENT CONSOLIDATES: • FURTHER AMENDED APPLICATION FILED 13 JANUARY 2017; • REPLY FILED 1 APRIL 2016; • FURTHER REPLY FILED 31 JANUARY 2017; AND • FURTHER AMENDED REPLY FILED 27 MARCH 2017. ORDERS SOUGHT The Applicant seeks the following orders: 1. A finding that the Respondent is guilty of professional misconduct. 2. In the alternative, a finding that the Respondent is guilty of unsatisfactory professional conduct. 3. The Respondent's name is removed from the roll of lawyers. 4. In the alternative to order 3: a. The Respondent is publicly reprimanded. 5. The Respondent is to pay the costs of and incidental to the filing and hearing of the Application. 6. Such orders as the Tribunal sees fit. GROUNDS FOR APPLICATION (INCLUDING PARTICULARS) Background – Grounds 1 and 2 1. The complaints arise from proceedings relating to a child of (a named father and mother). The facts below have been extracted from judgments delivered in the Children's Court, the District Court and the Supreme Court. Further Reply (31.01.2017): Agreed. Further Amended Reply (27.03.2017): Agreed 2. In January 2005 the father commenced Family Law Act proceedings in the Federal Magistrates Court. In March 2005 interim orders were made that the child reside with the mother, with the father to have generous contact. Further Reply (31.01.2017): Agreed. Further Amended Reply (27.03.2017): Agreed 3. In May 2006 consent orders were made providing that the child reside with the mother and spend time with the father. Further Reply (31.01.2017): Agreed. Further Amended Reply (27.03.2017): Agreed 4. In August 2006 an interim order was made by the Children's Court placing the child in the parental responsibility of the father Further Reply (31.01.2017): Agreed. Further Amended Reply (27.03.2017): Agreed 5. On 16 October 2009 a Children's Court magistrate made final orders allocating parental responsibility (including responsibility for contact) to the Minister until the child attained the age of 8 years. The orders also allocated to the father parental responsibility for all aspects other than contact until she attained 8 years of age (the 2009 Orders). Further Reply (31.01.2017): Agreed. Further Amended Reply (27.03.2017): Agreed 6. Order 4 was in the following terms: "4. Upon the expiration of Orders 1, 2 and 3 and pursuant to Section 79(1)(a)(i), the Court orders that the child be placed under the parental responsibility of the father until the child attains the age of eighteen (18) years." Further Reply (31.01.2017): Agreed. Further Amended Reply (27.03.2017): Agreed 7. The orders contained a "notation" in the following terms: "D. That upon the child attaining the age of eight (8) years that the contact move to an unsupervised arrangement and occur at a frequency and for a duration based upon the child's expressed wishes." Further Reply (31.01.2017): Agreed. Further Amended Reply (27.03.2017): Agreed 8. The child attained the age of 8 years in November 2011. Prior to 22 October 2011 the mother had regular supervised contact with the child approximately once per month. Thereafter, the mother ceased to attend contact visits and made no attempts to contact the child. The mother's position was that she wanted unsupervised access. The father, supported by the Director-General of the Department of Family and Community Services (the DG) and the Independent Legal Representative (ILR) for the child, opposed unsupervised contact. Further Reply (31.01.2017): Agreed. Further Amended Reply (27.03.2017): Agreed 9. On 15 August 2011 the mother filed an Application in the Federal Magistrates Court seeking parenting orders in relation to the child. The DG did not consent to the matter being dealt with by the Federal Magistrates Court and the application was dismissed. Further Reply (31.01.2017): Agreed. Further Amended Reply (27.03.2017): Agreed 10. On 9 October 2011 the mother filed a s90 (Children and Young Persons (Care and Protection) Act (1998) (NSW)) Application in the Children's Court at Parramatta. The mother filed amended Applications on 28 October 2011 and 23 November 2011. On 16 December 2011 each Application was struck out at the Respondent's ("the Solicitor") invitation as the mother's solicitor. Judge Marien SC, the President of the Children's Court, reserved judgment in relation to the father's Application that the Solicitor pay the costs of the proceedings. On 10 February 2012 the Children's Court (Judge Marien SC) decided it had no power to order the Solicitor to pay the costs and ordered that the mother pay the father's costs of the proceedings. (Director General of the Department of Family and Community Services v Amy Robinson-Peters [2012] NSWChC 3) Further Reply (31.01.2017): Agreed, except for the following relevant additions/corrections: (a) Respondent filed s 90 application on behalf of the mother (of Felicity) and another two applications, with identical issues to be dealt with, on behalf of the mother of Allegra and the mother of Nicholas (not real names). (b) Applications were amended twice on the direction by the presiding judge; each amended application superseded its antecedent. (c) It was the final amended application that was struck out at the Respondent's invitation. Further Amended Reply (27.03.2017): Duplicates matters above. 11. On 19 December 2011 the mother filed a Summons in the Supreme Court seeking orders in the Court's parens patriae jurisdiction for contact with the child and prerogative relief in relation to the Children's Court orders made on 16 October 2009. On 22 December 2011 Slattery J dismissed the mother's parens patriae Application and ordered her to pay the defendants' costs of the proceedings. (Louise v Director General of Community Services [2011] NSWSC 1646). Further Reply (31.01.2017): Agreed, with a notation that the prerogative relief sought was by way of number of declarations; and the orders sought in the Court's parens patriae jurisdiction were only for interim relief. Further Amended Reply (27.03.2017): Duplicates matters above. 12. On 10 February 2012 the mother appealed the decision of Slattery J and the costs Order made in the Children's Court. Further Reply (31.01.2017): The statement is in error. On 10 February 2012 Judge Marien made the orders in the Children's Court. There was no appeal filed on that date. Further Amended Reply (27.03.2017): Duplicates matters above. 13. On 1 May 2012 White J dismissed the mother's Application in relation to the costs order and ordered the mother to pay the defendants' costs of the proceedings (Re Felicity [2012] NSWSC 494). Further Reply (31.01.2017): Before the decision of 1 May 2012 his Honour White J heard the mother's notice of motion filed 9 March 2012 seeking (a) that the summons for prerogative relief (referred to at (11) above) be dealt with by way of stated case; and (b) that, if the matter will involve Constitution or its interpretation that it be removed to the Court of Appeal. His Honour dismissed the notice of motion. Otherwise, it is correct that his Honour White J dismissed the mother's application for prerogative relief on 1 May 2012, but there was no cost application before his Honour brought by the mother. There was an oral application by the Director-General for the cost order against the mother's solicitor (Respondent) which was to be dealt with at a later date. Further Amended Reply (27.03.2017): Duplicates matters above. 14. The mother then filed a Notice of Appeal to the Court of Appeal seeking orders to set aside White J's orders of 1 May 2012, the costs orders of Slattery J, the costs order made by Judge Marien SC and seeking an order for costs against the DG. Further Reply (31.01.2017): Agreed. Amended summons filed on 12 June 2012. Further Amended Reply (27.03.2017): Agreed. Amended summons filed on 12 June 2012. 15. White J had reserved his decision as to whether to make an order that the Solicitor pay his client's costs. On 14 December 2012 White J declined to order that the Solicitor pay his client's costs of the proceedings (Re Felicity (No 2) [2012] NSWSC 1561). Further Reply (31.01.2017): Agreed. Further Amended Reply (27.03.2017): Agreed 16. On 10 August 2012 the DG filed an application in the Children's Court seeking to vary the 2009 Orders. Because of the continued operation of order 4, this application was an application for variation of a care order and leave was required under s.90 (1) of the Children and Young Persons (Care and Protection) Act. Further Reply (31.01.2017): Agreed. Further Amended Reply (27.03.2017): Agreed 17. On 27 August 2012 the Court of Appeal (Barrett JA) struck out the mother's Amended Notice of Appeal as incompetent – finding that leave to appeal was required and that there was no right of appeal from a decision of the President of the Children's Court to the Court of Appeal. In considering whether the court should order costs, the court was advised that the mother was in no financial position to meet any costs order and that the Solicitor was acting for her pro bono. The Court noted that the appeal had been wholly unsuccessful and that it had no proper basis. The court ordered the mother to pay the costs of the DG. (Director-General, Family and Community Services re Felicity [2012] NSWCA 272.) Further Reply (31.01.2017): Agreed. Further Amended Reply (27.03.2017): Agreed 18. On 17 September 2012 the Children's Court granted leave to the DG on the basis that there had been significant changes in the relevant circumstances since the orders were made in 2009. The matter was then listed for further hearing on 2 to 4 April 2013 before Magistrate Murphy. Further Reply (31.01.2017): Agreed, except for the fact that the Responded [sic], on behalf of the mother, consented to the granting of leave in order to avoid cost order believing that the leave would be granted anyway by CM Murphy. Otherwise grounds for granting leave as pleaded by Director-General were bound to be dismissed, in the Respondent's opinion/if properly determined in accordance with law. Further Amended Reply (27.03.2017): Duplicates matters above. 18A. On 11 December 2012 the Solicitor filed an affidavit by himself and a Notice of Address for Service of the same date indicating that he acted for (a named person), the daughter of the mother and older half-sister of the child. (the step sister) (i) Affidavit of John McKenzie sworn 18 December 2015 at Annexure JM37 p.344 lines 16 to 45. Further Reply (31.01.2017): Agreed. Further Amended Reply (27.03.2017): Agreed 19. On 8 February 2013 the Court of Appeal delivered judgment refusing the mother's Application for leave to appeal to the Court of Appeal against the decision of White J and against the costs orders made by Slattery J (Re Felicity [2013] NSWCA 21.) Further Reply (31.01.2017): Agreed. Further Amended Reply (27.03.2017): Agreed 19A. On 13 March 2013 the Solicitor filed a Notice of Address for Service indicating that he acted for the mother. Further Reply (31.01.2017): Agreed. Further Amended Reply (27.03.2017): Agreed 19B. The DG's Application was heard by Magistrate Murphy on 2 to 4 April 2013. The Solicitor appeared for the mother and for (the step sister). Further Reply (31.01.2017): Agreed. Further Amended Reply (27.03.2017): Agreed 19C. During the hearing on 2 April 2013, the Solicitor indicate (the step sister) would be withdrawing from the proceedings and withdrawing her affidavit in which case he would seek leave to withdraw as (the step sister's) legal representative. (i) Affidavit of John McKenzie sworn 18 December 2015 at Annexure JM37 p.346 line 3 to p.351 line 39. Further Reply (31.01.2017): Agreed. Further Amended Reply (27.03.2017): Agreed 20. On 24 April 2013 the Children's Court (Magistrate Murphy) varied the 2009 Orders with parental responsibility for contact being allocated to the Minister only until the child attained the age of 14 years and that the father hold all other aspects of parental responsibility to the exclusion of the mother. After turning 14, the Court ordered that all aspects of parental responsibility be allocated to the father to the exclusion of the mother (the 2013 Orders). (Department of Family and Community Services re GKD (Children's Court of New South Wales, unreported, Magistrate Murphy, 26 April 2013)) Further Reply (31.01.2017): Agreed. Further Amended Reply (27.03.2017): Agreed 20A. Magistrate Murphy noted the evidence of the father that he had spent about $200,000 on proceedings involving the child and that the mother had not made any attempts to pay the adverse costs orders made against her. Further Reply (31.01.2017): Agreed. Further Amended Reply (27.03.2017): Agreed 21. The mother appealed this judgment of the Children's Court to the District Court (appeal against the 2013 Orders). The appeal was heard by Judge Olsson. Further Reply (31.01.2017): See (22) below. Further Amended Reply (27.03.2017): See (22) below. 22. On 29 April 2013 the mother filed an appeal to the District Court challenging the grant of leave to seek the 2013 Orders and the orders themselves. The issue concerning the grant of leave was heard before Balla DCJ of the District Court who confirmed the decision to grant leave in her decision dated 7 August 2013. (HK & Anor v Director General, Department of Family and Community Services & Anor (District Court of New South Wales, unreported, Balla DCJ, 7 August 2013)). Further Reply (31.01.2017): There was only one summons commencing an appeal to the District Court, which is not actually an appeal (in classic sense) but rather a new hearing. The first step in any s 90 application is the leave application. It was heard by Balla DCJ who, on 7 August 2013, granted leave to Director-General on most unreasonable "significant change to the relevant circumstances", as being the fact that the order of 16 October 2009 granting parental responsibility to the Minister had expired! The matter proceeded to the substantive (new) hearing of the Director-General's s 90 application by Olsson DCJ, who made the final orders on 11 December 2013 as sought by the Director-General. Further Amended Reply (27.03.2017): Duplicates matters above. 23. On 4 September 2013 the mother filed a summons in the Supreme Court seeking leave to appeal the decision of Balla DCJ. Lindsay J of the Supreme Court refused an application for a stay of the proceedings in the District Court (then yet to be heard before Judge Olsson) and directed that an "amended" summons be filed. (Re Ellen [2013] NSWSC 1573) Further Reply (31.01.2017): Agreed. Further Amended Reply (27.03.2017): Agreed. 24. On 5 November 2013 the mother filed an "amended" summons in the Supreme Court seeking leave to appeal the decision of Balla DCJ. Further Reply (31.01.2017): Agreed. Further Amended Reply (27.03.2017): Agreed. 24A. The mother's appeal against the 2013 orders was heard by Olsson DCJ on 18, 19, 21 and 23 November 2013. The Solicitor appeared for the mother. Further Reply (31.01.2017): Refer (22) above. Further Amended Reply (27.03.2017): Refer (22) above. 24B. The Solicitor's affidavit filed in the Children's Court proceedings was tendered in the proceedings before Olsson DCJ. Further Reply (31.01.2017): Agreed. Further Amended Reply (27.03.2017): Agreed. 24C. The Solicitor was notified on the first day of the proceedings that the father required the Solicitor for cross-examination. (i) Affidavit of John McKenzie sworn 18 December 2015 at Annexure JM41 p.630 lines 23 to 46. Further Reply (31.01.2017): Agreed. Further Amended Reply (27.03.2017): Agreed. 24D. The Solicitor was cross-examined on 19 November 2013. (i) Affidavit of John McKenzie sworn 18 December 2015 at Annexure JM41 p.647 line 17 to p.648 line 4. Further Reply (31.01.2017): Agreed. Further Amended Reply (27.03.2017): Agreed 24E. An order discontinuing the proceedings with respect to (the step sister) was made by Olsson DCJ on the first day of the hearing. (i) Affidavit of John McKenzie sworn 18 December 2015 at Annexure JM41 p.608 at lines 47 and 48. Further Reply (31.01.2017): Agreed. Further Amended Reply (27.03.2017): Agreed 25. The mother's appeal to the District Court against the 2013 Orders was unsuccessful. On 11 December 2013 Judge Olsson of the District Court made certain orders, amongst which was the order that the child be placed under the shared parental responsibility of the Minister of Family and Community Services and the father until she attains the age of 18 years, such parental responsibility to be allocated as follows: 25.1 Parental responsibility for contact be allocated jointly to and exercised jointly between the Minister and the father until the child attains 18 years of age. 25.2 Parental responsibility for all other aspects be allocated solely to the father until the child attains the age of 18 years. (HK v Family & Community Services & Anor (District Court of New South Wales, unreported, Olsson DCJ, 11 December 2013)). Further Reply (31.01.2017): Agreed. Further Amended Reply (27.03.2017): Agreed. 26. The mother filed an appeal to the Supreme Court against the decision of Olsson DCJ. Further Reply (31.01.2017): Agreed; further amended summons filed 31 January 2014. Further Amended Reply (27.03.2017): Agreed; further amended summons filed 31 January 2014. 27. In a decision dated 15 July 2014, the NSW Court of Appeal (Basten JA) noted that the mother sought, amongst other things, a declaration to the effect that the DG had no standing to commence proceedings in the Children's Court pursuant to s.90 of the Children and Young Persons (Care and Protection) Act. The Court held that this ground was without substance. (Re Felicity; FM v Secretary, Department of Family and Community Services (No. 3) [2014] NSWCA 226). Further Reply (31.01.2017): Agreed, except for the Court's statement that the ground was "without substance". Further Amended Reply (27.03.2017): Agreed, except for the Court's statement that the ground was "without substance". 28. The mother's appeal against the orders of Olsson DCJ was dismissed by the NSW Court of Appeal on 15 July 2014 and costs were awarded against the mother. (Re Felicity; FM v Secretary Department of Family and Community Services (No 4) [2015] NSWCA 19). Further Reply (31.01.2017): Agreed; the cost order was in fact against the mother's solicitor (Respondent). Further Amended Reply (27.03.2017): Agreed; the cost order was in fact against the mother's solicitor (Respondent). 28A. The mother's application for special leave to appeal to the High Court of Australia from the decision of the NSW Court of Appeal referred to in paragraph 27 was dismissed with costs (FM v Director-General, Department of Family & Community Services & Ors [2015] HCASL 17). Further Reply (31.01.2017): Agreed. Further Amended Reply (27.03.2017): Agreed 29. The Solicitor acted for the mother in all her unsuccessful applications and appeals. Further Reply (31.01.2017): Agreed. Further Amended Reply (27.03.2017): Agreed Ground 1 The Solicitor conducted himself inappropriately at the hearing in the Parramatta Children's Court from 2 to 4 April 2013. Particulars 1.1 He stated that "whether we consented or not it was already pre-determined that leave would be granted so this was pointless to argue anything and then we wouldn't have right to appeal to the District Court...." despite the fact that the Solicitor had withdrawn the mother's application. (i) Affidavit of John McKenzie sworn 18 December 2015 at Annexure JM37 p.336. Refer to lines 45 to 50 on page 4 of the transcript of the hearing on 2 April 2013 before Magistrate Murphy. REPLY (01.04.2016): I have made the statement to the said effect and will be able to prove that my opinion justified based on my experience in the Children's Court. However, there was no application by the mother in that proceeding so there was nothing to withdraw; it was section 90 application by the Director-General. 1.2 He submitted that the Director-General was engaging in an abuse of process and stated it was below his dignity to take part in proceedings of this kind. (i) Affidavit of John McKenzie sworn 18 December 2015 at Annexure JM37 p.350 at lines 45 to 46, p.351 line 18, and p.352 at lines 15 to 30. (Refer to lines 45 to 46 on page 18, line 18 on page 19 and lines 15 to 30 on page 20 of the transcript for 2 April 2013). REPLY (01.04.2016): I have made the statement to the said effect and will be able to prove that my opinion justified. 1.3 He submitted that the Director-General, the Independent Legal Representative and (the father's) solicitor had a motive to "get rid of me…. because I do not comply with the standard practice in this court by the lawyers who put pressure on their clients to consent to everything what (sic) the Director-General asked for in order to appease" them. (i) Affidavit of John McKenzie sworn 18 December 2015 at Annexure JM37 p.351. (Refer to lines 15 to 28 on page 19 of the transcript for 2 April 2013.) REPLY (01.04.2016): I have made the statement to the said effect and will be able to prove that my opinion justified. 1.4 He submitted to the court that "My impression is that your Honour has really made up his mind and we are wasting our time and money here" and that "overruling my objection so easily off the cuff tells me that well your Honour is bent". (i) Affidavit of John McKenzie sworn 18 December 2015 at Annexure JM37 p.363. (Refer to lines 20 to 32 on page 31 of the transcript for 2 April 2013). REPLY (01.04.2016): I have made the statement to the said effect and will be able to prove that my opinion justified. The quote from the transcript appears to be truncated: I must have said something more after the word "bent". 1.5 He submitted to the court, "Why doesn't your Honour make the orders that we go home, wasting everybody's time" and "I said I have much more to say but I will refrain on this occasion, I will do it somewhere else." (i) Affidavit of John McKenzie sworn 18 December 2015 at Annexure JM38 p.412. (Refer to lines 10 to 40 on page 10 of the transcript for 3 April 2013.) REPLY (01.04.2016): I have made the statement to the said effect and will be able to prove that my opinion justified. 1.6 He stated that the Magistrate had requested Legal Aid to discontinue considering (the step sister's) application for legal aid when he said the following: ...your Honour actually said, if I can recall correctly and if I heard correctly, that you would ask Legal Aid to discontinue considering (the step sister's) application for Legal Aid and that I can represent her. I practically was pushed into it because she had no representative. Your Honour told us here and we can get transcripts, if I understood correctly – again I apologise if I didn't – that your Honour would actually ask Legal Aid to discontinue considering (the step sister's) application for Legal Aid and.." (i) Affidavit of John McKenzie sworn 18 December 2015 at Annexure JM40 p.529. (Refer to lines 10 to 20 on page 9 of the transcript for the hearing on 4 April 2013.) He also stated: "I say again the reason why (the step sister) didn't have her own representation apart from me was that her obligation to Legal Aid has been cancelled, whether by - refused, whether by Legal Aid, whether by information of your Honour or not, I do not know." (ii) Affidavit of John McKenzie sworn 18 December 2015 at Annexure JM40 p.532 to 533. (Refer to lines 50 on page 12 and lines 1 to 2 on page 13 of the transcript for 4 April 2013.) REPLY (01.04.2016): I have made the statement to the said effect and believe that my reference to what his Honour previously stated was true, with a proviso that I could have misunderstood him. The words "her obligation" was wrongly transcribed; it was "her application" [for legal aid]. 1.7 The statements and allegations made by the Solicitor about Magistrate Murphy and the opposing parties as set out in particulars 1.1 to 1.8 inclusive were offensive. (i) Affidavit of John McKenzie sworn 18 December 2015 at Annexure JM24 pp.118 to 120. 1.8 The statements and allegations made by the Solicitor about Magistrate Murphy and the opposing parties as set out in particulars 1.1 to 1.8 inclusive were unsupported by evidence. (i) Affidavit of John McKenzie sworn 18 December 2015 at Annexure JM24 pp.118 to 120. 1.9 The statements and allegations made by the Solicitor about Magistrate Murphy and the opposing parties as set out in particulars 1.1 to 1.8 inclusive were in breach of Advocacy Rule 23, A.36 and A.37 of the Revised Professional Conduct and Practice Rules 1995. (i) Advocacy Rule 23, A.36 provided: A practitioner must not allege any matter of fact in: (a) any court document settled by the practitioner; (b) any submission during any hearing; (c) the course of an opening address; or (d) the course of a closing address or submission on the evidence; unless the practitioner believes on reasonable grounds that the factual material already available provides a proper basis to do so. (ii) Advocacy Rule 23, A.37 provided: A practitioner must not allege any matter of fact amounting to criminality, fraud or other serious misconduct against any person unless the practitioner believes on reasonable grounds that: (a) available material by which the allegation could be supported provides a proper basis for it; and; (b) the client wishes the allegation to be made, after having been advised of the seriousness of the allegation and of the possible consequences for the client and the case if it is not made out. (iii) Affidavit of John McKenzie sworn 18 December 2015 at Annexure JM24 pp.118 to 120. Ground 2 The Solicitor conducted himself inappropriately at the hearing in the District Court on 18, 19, and 21 to 23 November 2013 in that he described the potential disqualification he faced as the solicitor for the mother when he was also a witness as "the plot by the father or the other parties to disqualify me." Particulars 2.1 Affidavit of John McKenzie sworn 18 December 2015 at Annexure JM42 p.647 line 45 to p.648 line 2. (Refer to lines 45 to 50 on page 43 and lines 1 to 2 on page 44 of the transcript of the proceedings on 19 November 2013 before Judge Olsson of the District Court.) REPLY (01.04.2016): I have made the statement to the said effect and honestly believe that it was the case. 2.2 The statement and allegation made by the Solicitor as set out in particular 2.1 was offensive. (i) Affidavit of John McKenzie sworn 18 December 2015 at Annexure JM24 pp.118 to 120. 2.3 The statement and allegation made by the Solicitor as set out in particular 2.1 was unsupported by evidence. (i) Affidavit of John McKenzie sworn 18 December 2015 at Annexure JM24 pp.118 to 120. 2.4 The statement and allegation made by the Solicitor as set out in particular 2.1 was in breach of Advocacy Rule 23, A.36 and A.37 of the Revised Professional Conduct and Practice Rules 1995. (i) Advocacy Rule 23, A.36 provided: A practitioner must not allege any matter of fact in: (a) any court document settled by the practitioner; (b) any submission during any hearing; (c) the course of an opening address; or (d) the course of a closing address or submission on the evidence; unless the practitioner believes on reasonable grounds that the factual material already available provides a proper basis to do so. (ii) Advocacy Rule 23, A.37 provided: A practitioner must not allege any matter of fact amounting to criminality, fraud or other serious misconduct against any person unless the practitioner believes on reasonable grounds that: (a) available material by which the allegation could be supported provides a proper basis for it; and; (b) the client wishes the allegation to be made, after having been advised of the seriousness of the allegation and of the possible consequences for the client and the case if it is not made out. (iii) Affidavit of John McKenzie sworn 18 December 2015 at Annexure JM24 pp.118 to 120. Background – Grounds 3, 4, 5 and 6 30. The Solicitor acted for the mother in a District Court matter (2014/323331) in which the names of the parties have been suppressed by order of Knox SC DCJ. Further Reply (31.01.2017): Agreed. Further Amended Reply (27.03.2017): Agreed 31. The substantive matter concerned parenting and care arrangements for the mother's daughter (the daughter) aged 5.5 years as at the date of judgment on 13 April 2015. Further Reply (31.01.2017): Incorrect. Even though the parenting of the child was an ultimate issue that would have been remitted back to the Children's Court determination had the mother's leave application succeeded, the matter before the District Court was a new hearing of the mother's section 90 leave application which had been refused by the Children's Court. Further Amended Reply (27.03.2017): Duplicates matters above. 32. Final orders were made on 28 May 2010 allocating parental responsibility for the daughter to the paternal grandparents. Further Reply (31.01.2017): Agreed. Further Amended Reply (27.03.2017): Agreed 33. In November 2011 the mother filed a s90 (Children and Young Persons Care and Protection Act) leave application in the Children's Court seeking restoration of the daughter to her care. The application was dismissed and final orders were made on 4 May 2012. Orders were made for the mother to have a minimum of 3 hours contact with the daughter each week. Further Reply (31.01.2017): Agreed. Further Amended Reply (27.03.2017): Agreed 34. On 3 June 2014 the mother filed a further s90 leave application seeking rescission of the previous orders. Leave was refused and the application was dismissed. Further Reply (31.01.2017): Agreed. It was in the Children's Court at Port Kembla where the Respondent became, for the first time, involved in that matter. Further Amended Reply (27.03.2017): Duplicates matters above. 35. On 3 November 2014 the mother filed a summons seeking leave to appeal against the dismissal of the application. Further Reply (31.01.2017): Agreed. It was s 90 leave application that was dismissed in the Children's Court. Further Amended Reply (27.03.2017): Duplicates matters above. 35A. The proceedings were listed for hearing before Knox SC DCJ on 30 March 2015 and subsequently stood over to 2 April 2015. Further Reply (31.01.2017): Agreed. Further Amended Reply (27.03.2017): Agreed 36. Consent orders agreeing to contact were made by Knox SC DCJ on 13 April 2015. Knox SC DCJ ordered that the Solicitor pay the costs of the paternal grandparents and referred the Solicitor's conduct to the Law Society of NSW who, in turn, referred it to the Commissioner who initiated his own complaint. Further Reply (31.01.2017): Agreed, with a note that the consent to the orders was made under duress. Further Amended Reply (27.03.2017): Duplicates matters above. 37. The Solicitor acted for the mother from the filing of the summons on 3 November 2014. Further Reply (31.01.2017): Agreed. Further Amended Reply (27.03.2017): Agreed Ground 3 The Solicitor breached his duty to the administration of justice by criticising the Children's Court Particulars 3.1 By stating at the hearing on 30 March 2015 that the Children's Court engaged in "unlawful practice". (i) Affidavit of John McKenzie sworn 18 December 2015 at Annexure JM25 p.179 line 14. REPLY (01.04.2016): I have made the statement to the said effect and will be able to prove that my opinion justified. Further Reply (31.01.2017): Agreed. Further Amended Reply (27.03.2017): Agreed. 3.2 By stating the Children's Court engaged in "illegitimate practice" (i) Affidavit of John McKenzie sworn 18 December 2015 at Annexure JM25 p.187 line 39. REPLY (01.04.2016): I have made the statement to the said effect and will be able to prove that my opinion justified. Further Reply (31.01.2017): Agreed. Further Amended Reply (27.03.2017): Agreed 3.3 The statements that the Children's Court was engaging in "unlawful practice" and "illegitimate practice" brought the administration of justice into disrepute thereby resulting in a breach of the Solicitor's duty to the administration of justice. (i) Affidavit of John McKenzie sworn 18 December 2015 at Annexure JM31 p.258 and JM34 pp.266-267. Further Reply (31.01.2017): Agreed, with a notation that it is not the Respondent who brought the administration of justice into disrepute but rather the conduct of the judicial officers, lawyers and those that are conducting their training in the interpretation of the child protection laws. The Respondent is not going to get intimidated and abandon his first professional duty, namely his duty to the law, no matter who is trying to intimidate him. Further Amended Reply (27.03.2017): Duplicates matters above. Ground 4 The Solicitor misled the District Court Particulars 4.1 In District Court matter 2014/323331. 4.2 By preparing and filing an affidavit of the plaintiff that did not contain all relevant evidence when he knew or ought to have known that evidence to the contrary was available in the subpoenaed documents of Mr J R David of Hansons Lawyers, the mother's former solicitor. (i) Affidavit of John McKenzie sworn 18 December 2015 at Annexure JM25 p.225 lines 19 to 25. (ii) Affidavit of John McKenzie sworn 18 December 2015 at Annexure JM25 pp.140 to 156 (affidavit of the plaintiff). (iii) Affidavit of John McKenzie sworn 18 December 2015 at Annexure JM25 p.135 at [40] to [42] (judgment of Knox SC DCJ). Further Reply (31.01.2017): Respondent concedes that he made a blunder, an administrative blunder or negligence, but it was under extreme time pressure brought about by the delay of the production of the material in response to the subpoena. The blunder cannot be treated as "professional" misconduct or unsatisfactory conduct; it could have happened to any human, professional or otherwise. There is no way that Respondent could have known that the omitted piece of paper was in the subpoenaed bundle unless he saw it. Furthermore, the omitted file note is totally and utterly irrelevant to the issue to be determined in the District Court. The relevant document (former solicitor's letter to Legal Aid) had been found, copied and filed in the Court. Further Amended Reply (27.03.2017): Duplicates matters above. 4.3 By drafting and relying upon his submissions dated 22 October 2014 and specifically paragraph 12 thereof. (i) Affidavit of John McKenzie sworn 18 December 2015 at Annexure JM25 pp.157 to 161 (submissions) and in particular p.159 at [12]. (ii) Affidavit of John McKenzie sworn 18 December 2015 at Annexure JM25 pp.132 to 133 at [26] (judgment of Knox SC DCJ). Further Reply (31.01.2017): Respondent made it clear in the submission that the issue of whether his client's former solicitor obtained instruction from her or not was irrelevant. The issue was whether the "establishment" finding in the original proceedings in the Children's Court was according to law, namely by proper testing of evidence where the burden of proof was on Director-General, or it was made according to the "unlawful" (read: "not according to law") practice known as "consent without admissions". Further Amended Reply (27.03.2017): Duplicates matters above. Ground 5 The Solicitor breached his duty to his client. Particulars 5.1 In District Court matter 2014/323331 (Matter). 5.2 By pursuing the Matter based upon his personal view of the proper interpretation of the Children and Young Persons (Care and Protection) Act 1998 despite judicial criticism and rejection of his interpretation of the law by other courts including the District Court, the Supreme Court and the Court of Appeal, without proper regard to the interests of his client. (i) Affidavit of John McKenzie sworn 18 December 2015 at Annexure JM25 p.225 lines 41-48, and p.226 lines 15 to 25. REPLY (01.04.2016): The statement by the applicant is somewhat misinformed: I cannot recall that my interpretation of law concerning the practice of "consent without admissions" was criticised in all those courts. In fact nobody criticised it in a direct confrontation in a proceeding, as far as I can recall. It is only that some magistrates in the Children's Court, where I raised that issue, denied the full trial in accordance with law and natural justice, without engaging in any rational legal argument. In fact, I will be able to prove that on .one occasion a judge of the District Court, who must have never received the "training" in the care and protection jurisdiction, agreed with me and allowed full testing of evidence, as the law requires, at the "establishment" state of the proceedings. Just recently I have prepared two papers on the law and practice in the care and protection jurisdiction and distributed it to over 120 lawyers, including about 20 barristers, who regularly practice in that jurisdiction – with not a single word of criticism received to date. Further Reply (31.01.2017): The statement by the Applicant is somewhat misinformed: Respondent cannot recall that his interpretation of law concerning the practice of "consent without admissions" was criticised in all those courts. In fact, nobody criticised it in a direct confrontation in a proceeding, as far as Respondent can recall. Up to that point in time, it was always the Respondent's attempt to reopen the "establishment" hearing which was denied on the ground that "Mr Potkonyak your client was legally represented when she consented." On one occasion a judge of the District Court, who must have never received the "training" in the care and protection jurisdiction, agreed with the Respondent's interpretation of the law and allowed full testing of evidence, as the law requires, at the "establishment" stage of the proceedings. The statement "without proper regard to the interests of his clients" does not resonate with the Respondent's clients: he has been inundated with calls from desperate parents who abandoned their lawyers and are seeking Respondent's help. The rest of the specific matters referred to in the particulars under 5.2 need more elaborate response and will be addressed in the Respondent's submission. Further Amended Reply (27.03.2017): The statement by the Applicant is somewhat misinformed: Respondent cannot recall that his interpretation of law concerning the practice of "consent without admissions" was criticised in all those courts. In fact, nobody criticised it in a direct confrontation in a proceeding, as far as Respondent can recall. Up to that point in time, it was always the Respondent's attempt to reopen the "establishment" hearing which was denied on the ground that "Mr Potkonyak your client was legally represented when she consented." On one occasion a judge of the District Court, who must have never received the "training" in the care and protection jurisdiction, agreed with the Respondent's interpretation of the law and allowed full testing of evidence, as the law requires, at the "establishment" stage of the proceedings. The statement "without proper regard to the interests of his clients" does not resonate with the Respondent's clients: he has been inundated with calls from desperate parents who abandoned their lawyers and are seeking Respondent's help. [NEW MATERIAL] However, if the reference to the Respondent's interpretation of the Children and Young Persons (Care and Protection) Act 1998 ("Care Act") refers to other provisions apart from the "consent without admissions" practice, the following responses may address that complaint. (i) Commissioner refers directly to the words or Judge Knox, who himself was not specific, without seeking some clarification. (ii) Prior to the hearing before Knox SC DCJ, the following decisions had been delivered in which the Solicitor's arguments and interpretation of the Children and Young Persons (Care and Protection) Act 1998 had been rejected, or were otherwise connected with those decisions: (ii) Specific and relevant details follow: (1) Re Allegra [2009] NSWSC 1091. Summons seeking orders made by consent by the Children's Court of NSW to be removed to the Supreme Court of NSW and quashed by an order in the nature of certiorari - dismissed with costs: at [7], [9], [31]-[37], [44]-[45] and [52]. (a) [1] Re Allegra. This proceeding had been split into two parts: the first part dealt with the relief pursuant to the Court's inherent parens patriae jurisdiction sought by the mother. It had been heard and dismissed by Justice McDougall (refer [8]-[9] in Re Allegra). That part of the proceeding did not involve interpretation of the Care Act at all. The second part was heard by Justice Forster and published as Re Allegra; it dealt with the mother's application for prerogative relief. Again, the relief sought by the mother was pursuant to the supervisory jurisdiction of the Supreme Court and has absolutely nothing to do with the Care Act: it applies to any other decisions of the inferior courts in this State except if specifically ousted by legislation. The only connection between the powers of the Supreme Court and the Care Act is s247 of the Care Act, which reads: "Nothing in this Act limits the jurisdiction of the Supreme Court." That is all. (2) KM v Director-General, Family and Community Services [2014] NSWSC 176. Summons seeking judicial review or exercise of parens patriae jurisdiction - dismissed. (a) [2] Without checking the judgment, the very statement by the Commissioner shows that it was an application for relief pursuant to the Supreme Court inherent parens patriae jurisdiction, thus nothing to do with the Care Act or its interpretation. (b) In relation to the child referred to in Grounds 1 and 2 of this Further Amended Application: (b) This refers to the series of decisions involving the child that became known as "Felicity", "Amy Robinson-Peters" and "Louise". Details follow. (3) Director General of the Department of Family and Community Services v Amy Robinson-Peters [2012] NSWChC 3 (see paragraph 10). Application for a personal costs order against the Solicitor by the father dismissed. Substantive proceedings commenced by the mother, the Solicitor's client, were dismissed on his application so an application for prerogative relief could be made in the Supreme Court of NSW. Costs ordered against the mother but not against the Solicitor personally: see [8]-[37], [40], [43], [48]-[52] and [55]. (b) [3] Amy Robinson-Peters. Agree with the facts of the decision. However, the issue was not the Care Act or its interpretation but rather the jurisdictional issue in relation to the interpretation of the Commonwealth Powers (Family Law—Children) Act 1986 and s 69ZK of the Family law Act 1975. The issues have been subsequently decided by Justice White in Re Felicity [2012] NSWSC 494. (4) Louise v Director General of Community Services & Ors [2011] NSWSC 1646 (see paragraph 11). Summons seeking declarations and orders that orders made by the Children's Court were invalid for lack of jurisdiction stood over; application for an interim order under the parens patriae jurisdiction - dismissed with costs: at [3], [16]-[21], [32]-[40] and [44]-[46]. (b) [3] Louise. Agree with the facts of the decision. Again, the issues before the Court were not in relation to the Care Act and its interpretation but rather (a) jurisdictional, even constitutional, issue; and (b) parens patriae jurisdiction of the Supreme Court. (5) Re Felicity [2012] NSWSC 494 (see paragraph 13). Summons, stood over from decision (4), dismissed with costs after hearing: see [26], [42]-[72] and [75]-[76]. (b) [5] Felicity (No.1). As mentioned in (b)[3] above, the issues were not in relation to the Care Act and its interpretation. (6) Re Felicity (No. 2) [2012] NSWSC 1561 (see paragraph 15). No personal costs order made following decision (5): see [5]-[9]. (b) [6] Felicity (No.2). Agree. His Honour Justice White conceded that the Respondent's argument (in (b)[5]) had some merit. As stated, it was not about the interpretation of the Care Act. (7) Re Felicity [2013] NSWCA 21 (see paragraph 19). Summons seeking leave to appeal from decision (5) dismissed with costs. (b) [7] Felicity (No.3). Agree with the facts of the decision. However, the issues dealt were not in reference to the Care Act or its interpretation, as stated at (b)[5] which was the subject of the appeal. (8) Department of Family and Community Services re GKD (Children's Court of New South Wales, unreported, Magistrate Murphy, 26 April 2013) (see paragraphs 20 and 20A). Solicitor's arguments re s90 rejected. (b) [8] GKD. This is decision [sic] of CM Murphy in the Children's Court in relation to the s 90 application by the Director-General. It was an incompetent and biased decision. (9) HK & Anor v Director General, Department of Family and Community Services & Anor (District Court of New South Wales, unreported, Balla DCJ, 7 August 2013) (see paragraph 22). Appeal by mother from decision (8) – mother sought order refusing leave to Director General – leave granted, Solicitor's arguments re s90 rejected. (b) [9] HK (Balla DCJ). This decision deals with granting s 90 leave to the Director-General on the irrational ground that the orders of the Children's Court of 2009 had expired! (10) Re Ellen [2013] NSWSC 1573 (see paragraph 23). Appeal from decision (9), Application for stay of District Court proceedings refused; order that appeal proceedings removed to Court of Appeal and order that mother pay costs. Decision (1) relied upon by Court in rejecting application for stay: see [35]-[42]. (b) [10] Ellen. Agree with the facts of the decision. However, decision was not based on any misinterpretation of the Care Act. (11) HK v Family & Community Services & Anor (District Court of New South Wales, unreported, Olsson DCJ, 11 December 2013) (see paragraph 25). Appeal from decision (8) dismissed: Solicitor's arguments re s90 rejected, see [11], [13], [27]-[34], [55] and [90]. (b) [11] HK (Olsson DCJ). The complaint against this decision is not so much about the rejection of the Respondent's argument in relation to s 90 of the Care Act but much more so about the estoppel principles where the matter had been decided afresh based on the same evidence on which the decision of the Children's Court was made four years earlier. (12) Re Felicity; FM v Secretary Department of Family and Community Services (No 3) [2014] NSWCA 226 (see paragraph 27). Appeal from decision (11). Solicitor's arguments re s90 rejected. Order 1 of Olsson DCJ set aside; further amended summons otherwise dismissed: see [17], [20]- [28], [33]-[42] and [64]-[65]. (b) [12] Felicity (No.3). This is decision [sic] of the Court of Appeal which encompasses all of the issues raised in the preceding decisions involving the child "Felicity" (aka "Amy", "Ellen" "Louise"). All other decisions hang on this one thus it will be vigorously argued. (13) Re Felicity; FM v Secretary, Department of Family and Community Services (No 4) [2015] NSWCA 19 (see paragraph 28). Costs orders made against Solicitor following decision (12): see [6], [29]-[30], [33], [36]-[42], [46]-[48] and [52]. (b) [13] Felicity (No.4). This is cost decision [sic] consequential to the decision at (b) [12] above. (14) FM v Director-General, Department of Family & Community Services & Ors [2015] HCASL 17 (see paragraph 28A). Application for special leave to appeal from decision (12) dismissed with costs: see [7]-[9]. (b) [14] FM (High Court). A failure to obtain special leave to appeal to the High Court cannot be attributed to incompetence of the legal representative. It is on about one in 50 of such applications that are being granted, many if not most of them having been drafted by barristers of some standing. Further, the application made by the Respondent on behalf of the Felicity's mother did not deal with the interpretation of the Care Act. 5.3 By continuing to propound his argument regarding purported "unlawful practice" and "illegitimate practice" by the Children's Court in consent without admissions matters before Knox SC DCJ in court on 30 March 2015 when confronted with his breach of duty to his client. (i) Affidavit of John McKenzie sworn 18 December 2015 at Annexure JM25 pp.200 line 43 to 203. REPLY (01.04.2016): This charge is ridiculous: I have not breached my duty to my client and. More importantly, have not breached my paramount duty, the duty to the law. I will prove it. Further Reply (31.01.2017): This charge is ridiculous: Respondent has not breached duty to his client. The onus of proof is on the Applicant. Further Amended Reply (27.03.2017): This charge is ridiculous: Respondent has not breached his duty to his client. The onus of proof is on the Commissioner who must show, rather than repeat what Judge Knox said, which duty it was that the Respondent breached. 5.4 By failing to adduce relevant evidence on behalf of his client. (i) Affidavit of John McKenzie sworn 18 December 2015 at Annexure JM25 p. 203 lines 3 to 21 and lines 44 to 50; p. 216 lines 37 to 39; p.221 lines 5 to 10 and lines 47 to 50; p. 222 lines 1 to 4, lines 22 and 23 and lines 44 to 47; p. 223 lines 26 to 29. REPLY (01.04.2016): This charge is baseless. I will prove my point. Further Reply (31.01.2017): This charge is baseless. Further Amended Reply (27.03.2017): This charge is baseless. All relevant evidence was there as it come from the Children's Court; there was nothing else left to be adduced. 5.5 By losing objectivity. (i) Affidavit of John McKenzie sworn 18 December 2015 at Annexure JM25 p. 203 lines 44 to 50; p. 204 lines 1 to 4 and lines 21 to 29; p. 216 lines 30 to 35; p. 222 lines 44 to 47; p. 225 lines 41 to 48; p. 226 lines 15 to 25 and lines 44 to 46; p. 227 lines 10 to 41. Further Reply (31.01.2017): Ditto. Further Amended Reply (27.03.2017): Ditto. It is his Honour who lost the objectivity and failed to discharge his own duty to the law and the judicial office. Ground 6 The Solicitor consistently engaged in conduct 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. Particulars 6.1 The particulars to Grounds 1, 2, 3, 4 and 5 are repeated. Further Reply (31.01.2017): Responses above should cover this ground as well. Further Amended Reply (27.03.2017): Responses above should cover this ground as well. The Standard of Proof 1. Before commencing our examination of the evidence given in the proceedings, it is appropriate to set out the relevant principles which will govern our determination of the issues. 2. It is generally accepted that we are required to be "comfortably satisfied" that the matters in the complaints have been established on the balance of probabilities. The well-known principles established in Briginshaw v Briginshaw [1938] HCA 34; (1983) 60 CLR 336 apply. At 361 – 363 Dixon J, as his Honour then was, said: Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency. Thus, Mellish L.J. says: "No doubt the court is bound to see that a case of fraud is clearly proved, but on the question at what time the persons who have been guilty of that fraud commenced it, the court is to draw reasonable inferences from their conduct" (Panama and South Pacific Telegraph Co. v. India Rubber, Gutta Percha, and Telegraph Works Co.). In the same way, in dealing with the question in what county the publication of a criminal libel had taken place, Best J. said: "I admit, where presumption is attempted to be raised, as to the corpus delicti, that it ought to be strong and cogent; but in a part of the case relating merely to the question of venue, leaving the body of the offence untouched, I would act on as slight grounds of presumption as would satisfy me in the most trifling cause that can be tried in Westminster Hall" (R. v. Burdett). It is often said that such an issue as fraud must be proved "clearly", "unequivocally", "strictly" or "with certainty" (Cf. Mowatt v. Blake; Kisch v. Central Railway Co. of Venezuela Ltd.;Lumley v. Desborough). This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained. When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues (Doe d. Devine v. Wilson; Boyce v. Chapman; Vaughton v. London and North Western Railway Co.; Hurst v. Evans; Brown v. McGrath;Motchall v. Massoud; Nelson v. Mutton; Gerder v. Evans; sed quœre as to the statement of Swift J. in Herbert v. Poland see, further, Wigmore on Evidence, 2nd ed. (1923), vol. v., p. 472, par. 2498 (2) (1)). But, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected. (citations omitted) 1. Briginshaw involved a consideration of the proof of adultery in family law proceedings. We find the following observation of Dixon J of assistance, albeit that it is applied to considerations of adultery at 368-369: Upon an issue of adultery in a matrimonial cause the importance and gravity of the question make it impossible to be reasonably satisfied of the truth of the allegation without the exercise of caution and unless the proofs survive a careful scrutiny and appear precise and not loose and inexact. Further, circumstantial evidence cannot satisfy a sound judgment of a state of facts if it is susceptible of some other not improbable explanation. But if the proofs adduced, when subjected to these tests, satisfy the tribunal of fact that the adultery alleged was committed, it should so find. 1. We shall approach the determination of whether the respondent is guilty of misconduct as alleged consistent with this approach. Stage 1 proceedings 1. The parties have agreed that the proceedings be conducted on a two stage process. The second stage has been set down for hearing on 22 August 2017 to consider and determine whether and what orders should be made consequent upon our findings contained in these reasons for decision. The Evidentiary Material 1. Both parties filed affidavit material to which was annexed a considerable volume of documentation, much of it consisting of transcripts of evidence in proceedings in which the respondent participated and which form the basis of the complaints made against the respondent by the applicant. In addition, the respondent gave oral evidence during the course of the earlier hearings and was cross-examined on it. 2. We shall refer to those parts of the evidence where relevant when considering each of the Grounds and Particulars thereof. Ground 1 Particular 1.1 1. This Particular needs to be considered within the context of the hearing which was being conducted. The Director-General had instituted the proceedings under section 90 of the Children and Young Persons (Care and Protection) Act ("the Care Act") seeking a variation of a care order. The application required the leave of the Children's Court. In earlier proceedings in which the respondent had participated as solicitor, leave had been granted on a consent basis. When this point was made by the solicitor appearing for the Director-General the respondent commenced his response to the Court by saying; "yes that's right. We could not resist the application because of the experience in this court which I had in previous – in the same case by way of previous hearing. The Director-General or the other parties would seek costs against the mother and probably costs would be awarded." These words were immediately followed by the words complained of in Particular 1.1, namely: "whether we consented or not it was already pre-determined that leave would be granted so this would be pointless to argue anything and then we wouldn't have right to appeal to the District Court…" 1. In all the circumstances, the statement made by the respondent which is the subject of this Particular constitutes an allegation expressed by him that the Court would grant leave no matter what submissions were made, a matter which asserts serious misconduct against the Magistrate who was hearing the matter. Furthermore, the statement made by the respondent contains an allegation that the presiding Magistrate had already pre-determined to grant leave, which must be a reference to a determination made before hearing submissions. By reason of Particulars 1.7, 1.8 and 1.9 the applicant alleges that the statements which are referred to in Particular 1.1 constitutes a breach of Advocacy Rules 23.A.36 and 23.A.37. These statements prima facie breach Advocacy Rules 23. A .37 and 23. A .36 respectively. 2. Each of these Advocacy Rules contain an exculpatory provision. In the first, it is a belief on reasonable grounds that available material could support the allegation and provide a proper basis for it together with appropriate instructions having been given by the client as detailed in the Rule. In the second, it is a belief on reasonable grounds that there is already available factual material to provide a proper basis for the allegation. Whether the respondent is entitled to avail himself of either of these exculpatory provisions is a matter which is solely in the knowledge of the respondent. Because of the manner in which each of these exculpatory provisions is framed, and the manner in which they operate, we take the view that once the applicant has established a breach of either of these Rules on a prima facie basis, the burden of demonstrating that the exculpatory provision applies will fall on the respondent, to be discharged by him on the balance of probabilities. 3. We shall apply this approach to all matters concerning alleged breaches of these Advocacy Rules. 4. We should add for completeness that whether or not the application by the mother had been withdrawn by the respondent for whom he appears to have acted at some stage and not at others is not, in our opinion, relevant. As the transcript of evidence shows, the respondent announced his appearance at the commencement of the proceedings for both the mother and the older daughter of the mother who was the stepsister of the child whose care was the subject of the proceedings. At the time that he made the statement referred to in Particular 1.1, the respondent was clearly participating in the proceedings and was clearly intending to make submissions about whether the leave had been validly granted, presumably on behalf of both the mother and the stepsister. 5. The respondent relies upon his "experience" in the Children's Court as the basis for the statement made. Whatever his experience, each case determined by the Court must reflect the individual circumstances before the Court. No matter what the experience of the respondent, and there is simply no evidence about this, the allegations made which we have found to be demonstrative of the assertions contained in this Particular cannot be justified by reference to the experience of one practitioner, in circumstances where we are unaware of the nature and extent of that experience. 6. We would add that in the course of giving evidence before us about this matter the respondent said in answer to a question that he believed that Magistrate Murphy was "definitely" biased in favour of the submissions of the Director-General. 7. We are comfortably satisfied that this Particular has been made out. Particulars 1.2 and 1.3 1. These Particulars concern the same proceedings and the matters complained of occurred later on the same day as the matters which are the subject of Particular 1.1. 2. The respondent had announced his appearance for both the mother and stepsister of the child. The stepsister has sworn an affidavit which had been filed in the proceedings. Other parties required her for cross-examination. The respondent said that she was not available for cross-examination and said that he would not read her affidavit so that there was no need for her to attend for cross-examination. The respondent was then asked by the presiding Magistrate whether he was acting for the stepsister. He replied in the negative on the basis that if her affidavit was not read and she withdrew "from the case", he would not be representing her because "there's nothing to represent." The respondent was asked whether he had written instructions that the stepsister wished to withdraw from the proceedings. The respondent replied in the affirmative, but there is no indication that he did have those instructions in writing. 3. The solicitor for the Department of Family and Community Services questioned whether the Court had power to vacate an order previously made that the stepsister be a party to the proceedings. After further discussion, the respondent sought leave to withdraw from the proceedings on behalf of the stepsister. It was then pointed out that her affidavit would remain on the Court file and she would be required for cross-examination. 4. After observing that the legal representatives for other parties had insisted that the affidavit of the stepsister not be read as she was not available for cross-examination but now that he was no longer representing her they would insist on the affidavit remaining part of the evidence in the proceedings, the respondent said the words complained of in these Particulars, namely that this constituted "an abuse of process". 5. After making this comment, the respondent then said that he was "still in" the stepsister's case, and that he was withdrawing her affidavit. The solicitor for the Department then observed that he was still confused because the respondent having said that he was withdrawing his representation of the stepsister would presumably not have instructions concerning the status of the affidavit which she had sworn. He suggested that she either arrange for other legal representation or attend Court in person. 6. It was at this stage that the respondent said the further words complained of. After stating that the stepsister would "probably withdraw affidavit herself and there is nothing to cross-examine her on" he said; "Look these people, I know what they are after. As I said, this is actually below my dignity to take part in a proceedings of this kind. But nevertheless for the sake of these clients I am doing this, I am going through all of this in dignified assault on me personally and your Honour is aware of this from other proceedings and they are questioning my ethical position, professional position, I am questioning theirs." These comments are obviously directed to the other legal representatives in the proceedings who were appearing for the Department, the child and the father of the child. He then continued by asserting that these representatives were motivated to get rid of him, not of the stepsister or the mother. He said; "… they want to get rid of me because I do not comply with the standard practice in this Court by the lawyers, who put pressure on their clients to consent to everything what Director-General asked for in order that to appease some…." The respondent was then interrupted by the objection of the representative for the father. 1. By reason of Particulars 1.7,1.8 and 1.9 the applicant alleges that the statements which are referred to in Particulars 1.2 and 1.3 constitute a breach of Advocacy Rules 23.A.36 and 23.A.37, and were offensive. Particular 1.2 alleges that the reference to an abuse of process was one in which the Director-General was engaging. We do not read the transcript of evidence as evidencing an assertion by the respondent that the Director-General was engaged in an abuse of process. It appears to us that the assertion is directed to the legal representatives. To this extent we are not comfortably satisfied that Particular 1.2 has been made out. However, Particular 1.3 is clearly directed to the position of the other legal representatives, and as it covers the same material we now proceed to deal with this Particular. 2. In his reply document the respondent admitted that he made the statements but said that he would be able to prove that his opinion was justified. Prima facie the statements complained of make allegations of serious misconduct against the other practitioners and assert that the stance taken by them constituted an abuse of process and was motivated by some form of personal vendetta against him. The statements are, per se, offensive. There is no evidence adduced by the respondent that would indicate that there was any belief held by the respondent on reasonable grounds that there was factual material available to him to provide a proper basis for the allegations made by him. No doubt the respondent had a belief that his opponents were not favourably impressed by his competency or the manner in which he was conducting the proceedings on behalf of his clients, but this does not constitute a factual basis for the statements made by him. Furthermore, there is simply no evidence concerning the wishes of the client in this regard, and on the basis of the prevarication which the respondent engaged in, there must be some doubt about the nature and extent of the precise instructions which the stepsister had given the respondent about the matter. 3. We are comfortably satisfied that Particular 1.3 has been made out. Particular 1.4. 1. The subject matter of this Particular occurred later on the same day as the subject matters of the previous Particulars. The mother of the child, the client of the respondent was in the course of cross examination by the solicitor for the Department. The respondent had objected to a question which was being put and the presiding Magistrate told the respondent that the question should be put before he objected. According to the transcript, the respondent said "I really don't know what to do your Honour. My impression that your Honour has really made up his mind and we are wasting our time here and allowing…." The Magistrate interrupted the respondent by saying that he found that observation "to be outrageously offensive." The respondent responded "Overruling my objection so easily off-the-cuff just tells me that, well your Honour is bent." The Magistrate observed that he had found the observations of the respondent "offensive and unprofessional really" and then asked that the proceedings continue. 2. In his evidence before us the respondent vehemently denied that he had accused the presiding Magistrate of being "bent" in the sense of crooked or dishonest. He was sure that a close examination of the transcript would indicate that he said something along the lines that the Magistrate was bent on finding in a particular manner. There has been no attempt in the proceedings to make further enquiries about the accuracy of what is recorded in the transcript, presumably provided by the Court Reporting Service, which has been made available to us. Of course, if the respondent had accused the Magistrate of being "bent" in the sense of the transcript records, this would have been a statement indicating professional misconduct of a most egregious kind. 3. We are content to deal with this matter on the basis that the respondent was asserting that the presiding Magistrate had made up his mind concerning the determination of the proceedings without having heard all of the evidence and the submissions of the parties, and that the Magistrate was determined to ensure that a particular outcome was achieved. An allegation of this kind made about a judicial officer is, prima facie, highly offensive. A reading of the transcript of the proceedings gives no hint that the Magistrate had in any way made up his mind about the outcome of the proceedings and the eventual orders that he would be making. It may be inferred that the conduct of the Magistrate to this stage of the proceedings could have been the only basis for the assertion made by the respondent. In these circumstances, and the respondent having failed to point to any other evidentiary material which could possibly provide reasonable grounds for the assertion made or that the respondent had any belief on reasonable grounds that the Magistrate had engaged in such serious misconduct, it follows that this Particular has been made out to our comfortable satisfaction, and we so find. In so finding we have had regard to Particulars 1.7, 1.8 and 1.9 Particular 1.5 1. The subject matter of this Particular took place on the following day, 3 April 2013. The mother of the child was being cross-examined by the solicitor for the Department. He complained to the Magistrate that the respondent had been unnecessarily and inappropriately objecting to questions and disrupting the flow of the cross-examination. The Magistrate allowed the last question to which the respondent had objected which prompted the respondent to say: "why doesn't your Honour make the orders that we go home, wasting everybody's time." The Magistrate said that that was "an absolutely inappropriate comment" and the respondent replied "I know". The Magistrate observed that the comment made by the respondent was "much less than one might be entitled to expect from a professional." The respondent then said "I know I have much more to say but I will refrain." When asked by the Magistrate what he had said, the respondent said "I said I have much more to say but I will refrain on this occasion, I will do it somewhere else." 2. The solicitor for the Department described the comments of the respondent as being "outrageous". The Magistrate observed "it's much less than the standard behaviour one would expect from a legal representative. That's the way it is. We will move on." 3. The statements made by the respondent, in that they were directed to the Magistrate were clearly offensive. They also clearly breached Advocacy Rules 23. A .36 and 23.A..37. We have previously commented on the manner in which these Advocacy Rules operate and the necessity for the respondent to demonstrate that he comes within the exculpatory provisions. The allegations of fact are clearly and obviously wrong, and allege serious misconduct against the Magistrate. Because the exculpatory provisions have not been satisfied, we are comfortably satisfied that this Particular has been made out. Particular 1.6 1. The relevant extracts from the transcript are set out within this Particular. In his Reply, the respondent said that the allegations made by him that the Magistrate had in some way arranged for the withdrawal of legal aid represented his honest belief of his recollection of what had occurred in earlier proceedings. A perusal of the transcript of those earlier proceedings indicates that the respondent was in error. 2. After the respondent made his allegation for the first time the Magistrate indicated that he was incorrect in his assertion. Notwithstanding this, some little time later on the same day the respondent made the second statement set out in this Particular. By this stage, he was aware that the Magistrate had informed him that he had had no involvement in the withdrawal of legal aid. In these circumstances the second reference by the respondent to the possible cancellation of legal aid by the Magistrate was clearly offensive. Furthermore, he had absolutely no evidence to support the assertion, even if stated on the grounds of possibility only. 3. In their totality, both statements clearly had no evidentiary basis beyond some possible belief by the respondent about what he may have recalled had occurred. In that the statements make allegations of serious misconduct against the Magistrate, the respondent should have had some actual factual basis for the statements made. We take the same approach to the application of both of the Advocacy Rules as previously taken. We are comfortably satisfied that this Particular has been made out. 4. It follows that we are comfortably satisfied that the allegations contained in Particulars 1.7 to 1.9 have been made out, and that Ground 1 has been established save for Particular 1.2. We add for completeness that there is clearly a typographical error in Particular 1.7 which refers to particulars 1.1 to 1.8. This latter reference should be to Particular 1.6. Ground 2 1. The Particulars of this Ground arise out of the appeal brought by the clients of the respondent from the decision of Magistrate Murphy which was heard by Olsson DCJ as referred to in Background facts 24A and following. The respondent was required for cross-examination on an affidavit which he had filed in the proceedings. Prior to giving evidence the respondent asked; "I'm not going to be disqualified as a representative of the mother?" Her Honour said that she was unable to disqualify the respondent but that it would be a matter for him. He then said "Because it would be the plot by the father or the other parties to disqualify me." It is these words on which this Particular is based. 2. The allegations of misconduct are contained in Particulars 2.2, 2.3 and 2.4. They assert that the statement in an allegation set out in Particular 2.1 was offensive, unsupported by evidence and in breach of Advocacy Rules 23.A.36 and 23.A.37. We agree that it was offensive for the respondent to have alleged that the reason he was required for cross-examination on his affidavit was to disqualify him from continuing to act for the mother and, presumably, to have him removed from participating in the proceedings. Furthermore, there being no evidence of any factual basis for the statement, and no evidence of any reasonable grounds existing for the basis of any belief by the respondent that the statement was true, nor any indication that the client wished the allegation to be made, it follows that we are comfortably satisfied that Ground 2 has been made out. Ground 3 1. As the background material commencing at paragraph 30 of the Further Amended Application makes clear, this Ground and Grounds 4 and 5 refer to proceedings before Knox SC DCJ. In describing the nature of the proceedings to His Honour the respondent anticipated a "legal argument" directed to the initial establishment of jurisdiction by the Children's Court which required it to be satisfied that a child was "in need of care and protection." It was in the course of doing so that the respondent described the practice of the Court in the following terms: "Now my understanding is about 95% or probably 90% of cases the parents are advised or sometimes even coerced into consent without admission. My reading of the law it is unlawful practice because if the parent consents that the child is in need of care or protection but without admitting any facts then when we come later on for instance s 90 application or when we come later on for the placement proceeding where the parent has to prove that he or she has addressed all the issues that led to the removal. There are no issues because nothing has been proven by the director-general or the secretary and nothing has been admitted by the mother. So this is my argument." 1. This is the material relied upon by the applicant in asserting the respondent stated that the Children's Court engaged in unlawful practice referred to in Particular 3.1. 2. Particular 3.2 asserts that the respondent made a statement that the Children's Court engaged in "illegitimate practice." The statement made by the respondent to Knox DCJ on which this allegation is based again arose out of an exchange in which the respondent criticised the "establishment proceedings" in the Children's Court. He said; "When I raise at issue it is this illegitimate practice people jump on me straight away, but the client is represented, it is beyond the point. No. Clients can be represented by 16 barristers and God knows how many solicitors…." 1. The respondent then continued by observing that His Honour was "not very familiar with the Act" and proceeded to point out a number of provisions which he thought were relevant. We note for completeness that his Honour appeared to be appropriately familiar with the legislation, because he pointed out to the respondent that the attack on the jurisdiction of the Children's Court should have been directed to orders originally made in 2010 rather than in 2012 and 2014 when the original orders had been varied. 2. In any event, it is clear that the respondent referred to the practice of the Children's Court as being "illegitimate". In evidence he said: "The word that I used, "unlawful", was not in the sense of being criminal offence but rather in a sense that it is not according to law." 3. In his Further Reply document the respondent said that it was not he who had brought the administration of justice into disrepute "but rather the conduct of the judicial officers, lawyers and those that are conducting their training in the interpretation of the child protection laws." Tellingly, the respondent added the following; "The respondent is not going to get intimidated and abandon his first professional duty, namely his duty to the law, no matter who is trying to intimidate him." We shall return to this assertion, which we consider to be significant in the context of these proceedings, later. 4. For present purposes, it is sufficient to note that statements of the kind referred to in Particulars 3.1 and 3.2 have no established factual basis, are based only on an assertion of an "understanding" held by the respondent, and, for reasons which we shall discuss later, bring the administration of justice into disrepute. We are comfortably satisfied that this Ground 3 has been made out. Ground 4 1. In addition to the background information contained in the Further Amended Application concerning this Ground, the context against which the allegations in this Ground are brought are conveniently contained in a Judgment of Judge Knox published on 13 April 2015 in which his Honour made available to the legal representatives of the parties in the proceedings reasons why he had determined to refer the conduct of the respondent to the Law Society of NSW. 2. The proceedings before Knox DCJ concerned parenting and care arrangements for a child. The respondent represented the mother. Orders had been made in the Children's Court in 2010 allocating parental responsibility for the child to paternal grandparents. The mother sought to have these orders rescinded on two occasions, in 2012 and 2014. Both applications were dismissed. The mother filed a summons seeking leave to appeal against the dismissal of the 2014 application, and these were the proceedings which came before his Honour. 3. In the course of the proceedings the respondent filed and read an affidavit of the mother sworn 27 March 2015. At the time that the affidavit was prepared by the respondent he had available to him the file of a solicitor who had previously acted for the mother. In that affidavit, the mother said that she had retained the prior solicitor to assist her in the care proceedings involving her child. She said that in about January 2010 she was transferred to a hospital providing services for mental illness after developing "severe depression." She said she had no recollection of her prior solicitor seeing her "even once" whilst she remained in that hospital. She also stated in her affidavit that she had never asked her prior solicitor to provide an affidavit and she had never instructed him to consent to the fact that the child was at risk of harm and that the child should be removed from her care. Annexed to that affidavit were a number of "relevant file notes and other documents not filed in the court" which had been obtained by subpoena. It is uncontroversial that the annexed documents consisted of extracts from the file of the prior solicitor which he had provided as a result of a subpoena issued by the respondent. 4. As his Honour noted, the respondent had clearly had access to the file of the prior solicitor and he referred to extracts from it in submissions made to his Honour, in terms which were critical of the prior solicitor. This criticism asserted that when the prior solicitor had appeared before the Children's Court on behalf of the mother and had consented to a finding that the child was in need of care and protection "without admission" he had done so without instructions. However, the respondent had spoken to the prior solicitor before receiving his file and the prior solicitor had informed him that he did indeed have those instructions. The respondent chose to ignore what the prior solicitor had told him in favour of the recollection of the mother, and the respondent failed when reading the file of the prior solicitor to see that there was indeed a file note made by the solicitor the day before the hearing in the Children's Court that he had had a personal attendance on the mother in the presence of a support person and had received instructions to consent to a finding that the child was in need of care and protection. 5. When Knox DCJ pointed out to the respondent the omission of this material and the failure of the respondent to draw it to the attention of the Court, the respondent explained that some of the photocopying had not "come through" but in any event his intention was not to criticise the solicitor but to criticise the process of the Children's Court in determining jurisdiction on a consent without admission basis. In terms of the omission the respondent said to his Honour "…. I can apologise and crawl on the ground but the thing will not change because I really do not know how that happened. I mean I would have been an idiot so to speak to deliberately withhold a piece of paper. If I wanted to do that I could have stolen it from there, not leave it in the file. What I did I attached it to the affidavit so the other parties can see what was in the subpoenaed material." Knox DCJ concluded that regardless of the respondent's intention, "it seemed that he had proceeded on the basis of providing what was effectively highly selective evidence to ensure his argument could be raised in the District Court or a higher court when that erroneous evidence was incomplete, misleading in its overall effect, and detrimental to another practitioner." 6. In his Further Reply document, an extract from which has previously been set out, the respondent endeavoured to explain his "blunder or negligence" because he was "under extreme time pressure". He seems to have characterised his conduct as being human error and, in any event, he said that the omitted file note was irrelevant to the issue for determination in the District Court 7. Particular 4.2 refers to the preparation and filing of the affidavit of the mother. Particular 4.3 refers to the reliance upon the submissions made by the respondent which ignored the omitted material. 8. We are not comfortably satisfied that there was any deliberate dishonest attempt by the respondent to conceal the information contained in the file of the prior solicitor from the District Court and the representatives of the parties. However, at its lowest the respondent's conduct is indicative of a lack of care and attention to detail in endeavouring to ensure that an appropriately accurate factual situation concerning a very important matter was put before the Court. 9. It follows that we are comfortably satisfied that the respondent did in fact mislead the District Court as asserted in Ground 4, but we do not conclude that he did so deliberately or intentionally but rather as a result of inappropriate carelessness or lack of attention to detail. Ground 5 1. At the heart of the Particulars which comprise this Ground is an assertion that in the proceedings before Knox DCJ, the respondent maintained a view of the manner in which the Care Act operated which was inconsistent with an overwhelming array of authority, including, particularly, observations made concerning the conduct of the respondent and his view of the operation of that Act by the NSW Court of Appeal. In essence, the allegation is that the respondent did not appropriately and properly represent the interests of his client because he maintained and continued to maintain a view of the relevant legal principles on her behalf which was clearly wrong according to authority. 2. In oral submissions to us the respondent maintained that at all times in the course of the proceedings before Judge Knox in the District Court he acknowledged the authority of the many cases which are set out in the Particulars, and in particular what was said by the Court of Appeal in the Re Felicity matters. This assertion is clearly incorrect. The Transcript of the proceedings before Judge Knox of 30 March 2015 reveals that the respondent attacked the "unlawful practice" in the Children's Court of exercising jurisdiction in care and protection matters upon the basis of a consent by the parent without admitting any particular factual matters that the child is in need of care or protection. The criticism was made in the context that nothing had been proven by the Director-General or the Department concerning the need for care or protection of the child. Later the respondent referred to the need for the Department to act only on a report of exposure to significant harm, and without any report of such harm having been received the Department was without power to become involved in the matter including the making of an application to the Children's Court. In circumstances where his client in those proceedings had not consented and made admissions about the underlying factual situation, the determination originally made by the Children's Court was open to attack. There then followed an interchange between his Honour and the respondent about whether it would have been more appropriate for the original 2010 determination by the Children's Court to have been the subject of proceedings based on alleged lack of jurisdiction or power. In the course of the interchange the respondent raised an argument that the matter should have been determined in the Family Court of Australia, referring to section 69ZK of the Family Law Act and alleging that the Director-General had refused consent for the matter to be determined under that provision. He said he was going to challenge that in the "Tribunal" to see "why they had refused." 3. In the course of the interchange, his Honour mentioned to the respondent the Re Felicity decision in the Court of Appeal as well as other decisions. The respondent said that Re Felicity was relevant concerning whether there were changed circumstances but did not address the other fundamental aspects of that decision. 4. Later, in the course of an interchange his Honour referred to the fact that the respondent had mentioned procedures in the Children's Court "at least seven or eight times, but that's part of your problem, I think….. You are absolutely determined to have that matter ventilated in courts and the seriousness of the matter, or one of the aspects of the seriousness of the matter is that you have involved an innocent lady who was a vulnerable person in the pursuit of what I regard as your overwhelming obsession, that's what you're determined to do, and you have brought her involved with expenses to not only (the grandmother), but also the Department." His Honour then went on to refer to the demands made on the relevant Departments because of their involvement in childcare matters and their limited resources, and concluded; "and we simply cannot have solicitors in these cases misunderstanding their obligations in this most fraught of jurisdictions." 5. Shortly thereafter the respondent said; "I do admit that I am too zealous about a matter and too emotional about where children are involved because of my own situation back many years ago. I was told by a very experienced professional from the Crown Solicitor's Office that in the Children's Court, he told me 95% of cases are decided on consent without admission. I have case after case after case where people come to me after that consent without admission, and say, "George, I was forced into it. They told me if you don't consent, you're not going to see your child again. If you consent, you are going to see him in two or three months time," and to me it is extremely disturbing." 6. When told by his Honour that this is a matter which should be taken up in other forums such as a professional body or in the political forum the respondent said "I am talking about the legal issue on that consent without admission, legally, not morally, not.. [not transcribable]..but legally that it cannot stand. This is my point, and no judge wants to listen to me, so I am stuck." 7. In his submissions, the applicant also relied on the provisions of the New South Wales Professional Conduct and Practice Rules 2013 which applied at the time that the respondent was involved in the proceedings before Judge Knox. The respondent was bound by those rules. Relevantly, Rules 3.1 and 5.1 were in the following terms: 3 Paramount duty to the court and the administration of justice 3.1 A solicitor's duty to the court and the administration of justice is paramount and prevails to the extent of inconsistency with any other duty 5 Dishonest and disreputable conduct 5.1 A solicitor must not engage in conduct, in the course of practice or otherwise, which demonstrates that the solicitor is not a fit and proper person to practise law, or which is likely to a material degree to: 5.1.1 be prejudicial to, or diminish the public confidence in, the administration of justice; or 5.1.2 bring the profession into disrepute. 1. The applicant submitted that the behaviour of the respondent which is the subject of this Ground was in breach of these Rules. The duty to the court and the administration of justice, described as a "paramount" duty extends to upholding the law consistent with principles established by Courts, and in particular appellate courts. Such a duty prevails over any personal or subjective view of the law held by a solicitor. If it were otherwise, clients and the public generally would not be able to receive and act upon relevant and useful advice. Furthermore, it was submitted that the behaviour of the respondent was likely to a material degree and did, in fact, diminish the public confidence in the administration of justice and was prejudicial to that confidence. By doing so it brought the profession into disrepute. We agree with these submissions. 2. There is a reference in Particular 5.2 to the "proper regard to the interests" of the client of the respondent. At no stage in any of the extensive transcripts of evidence that we have read does the respondent make any reference to his client's interests, other than referring to the unlawful and illegitimate practices of the Children's Court. Presumably, this is a reference to practices which the respondent asserts deprived his client of the custody of, or access to, her child, or perhaps the opportunity of seeking either of these by way of relief. However, nowhere has the respondent sought to argue within any of the transcripts of any of the proceedings or before us that in some way there was some factual basis in those proceedings for such an assertion. It is one thing to allege unlawful and illegitimate practices (an allegation which is to be deplored in any event), but it is another thing to allege that in some way the interests of the client have been prejudiced. The respondent seems to have prosecuted proceedings on behalf of his client without regard to any ultimate prospects of success, her personal and individual interests having regard to her mental state, the fact that he has exposed his client to the prospect of adverse costs orders, the possible exposure of his client to the stresses of ongoing litigation, and the possible engendering of false hope of an ultimate outcome based on his "legal" arguments. Nowhere is there any hint that the respondent has discussed any proposed course of action with his client, sought and obtained appropriate instructions to proceed, and given her advice about the state of the law and the fact that in the case of many of the proceedings, his submissions were contrary to principles established by courts. 3. We agree with the observations of Judge Knox that the respondent has sacrificed his client's interests to his overwhelming zeal in pursuing ideologically based arguments. It may be, as he claims, that "desperate parents" are approaching him to overturn care orders to which they consented, but his duty to those clients requires him to take the steps referred to above. We note his evidence that his Children's Court clients were almost all pro bono (which evidence was not challenged by the applicant), but while commendable, this does not affect his duty. 4. Particular 5.2 (ii) and following refer to a series of cases in which arguments advanced by the respondent were generally rejected. This Particular asserts that the subject matter of these decisions was arguments and interpretation of the Care Act or that these matters "were otherwise connected with" these decisions. It was suggested by the respondent in his Reply documents that all of these decisions were concerned only with the interpretation of the Care Act, but the allegations contained in this Particular are not framed in this manner. 5. There is no advantage to be gained in examining in meticulous detail each of the decisions relied upon by the applicant in this Particular. It is sufficient to state that overall all of the submissions and arguments advanced by the respondent in each of these cases were rejected in each of the matters, with reasons which demonstrated a lack of competence, insight and understanding on the part of the respondent. A ready example is the Judgement of the NSW Court of Appeal in Re Felicity; FM v Secretary, Department of Family and Community Services (No 3) [2014] NSWCA 226. The mother of the child whom the respondent was representing appealed from the decision of Olsson SC DCJ which we have earlier referred to in which her Honour had declined to allow an appeal from the decision of Magistrate Murphy, which we have also discussed earlier. 6. The respondent made a number of submissions on behalf of his client, all of which were rejected in the Court of Appeal and which we summarise as follows: 1. that the Director-General had no standing to commence the proceedings in the Children's Court. One of the submissions made by the respondent was said by the Court of Appeal to have appeared to rely "more upon ideology than legal principle." 2. that the Children's Court had no jurisdiction to deal with the matter because there had been no relevant change in circumstances from those which applied at the time of the making of the original care order. It was said by the Court that "neither principle nor authority supports the applicant's contentions." 3. that the District Court was precluded from hearing and determining the matter on the same evidence and issues as were considered in the proceedings in the Children's Court. Part of the submission of the respondent was said to be "confused." 4. that in some way a notation made on the original care orders was indicative of a finding that upon the child attaining the age of eight, there would be no need for the supervision of the contact between her and her mother. This submission was said to be "misconceived on a number of levels." 5. the decision below involved the denial of procedural fairness because her Honour had failed to direct her mind to the merits of the arguments advanced by the respondent. Furthermore, there was said to be some matter of apprehended bias. In rejecting these arguments, the Court of Appeal referred to some "confusion" on the part of the respondent. 6. the respondent made claims for "optional relief" including the joinder of certain proceedings and the reopening of other proceedings. These claims were rejected. 1. In the result, the appeal was dismissed, save for the correction of one of the orders made in the District Court which was not the subject of the appeal instituted by the respondent. The client of the respondent was ordered to pay costs. 2. In later proceedings, bearing citation Re Felicity; FM v Secretary, Department of Family and Community Services (No 4) [2015] NSWCA 19 the Court of Appeal made an order against the respondent personally that he pay the costs of the Secretary of the Department and the father of the child. In determining that matter Basten JA, (with whom Ward and Emmett JJA agreed) said in part: 33 This was a case in which the reasonableness of the proceedings in this Court depended to a significant extent (though not wholly) on the reasonableness of the proceedings commenced in the Children's Court for a variation of the care order to which Felicity was subject in 2011. 34 The factual underpinnings of this case date back to 16 October 2009 when a magistrate in the Children's Court made orders allocating parental responsibility for Felicity to her father, with responsibility for contact with her mother and sister resting with the Minister. That order was made under s 79 of the Care Act. Such orders can be varied pursuant to an application under s 90 of the Care Act. The primary orders continued until Felicity attained eight years of age; in 2012 the Secretary (then the Director General) sought a variation of the orders to extend until Felicity turned 18. 35 The dispute between the parties has turned on the issue of supervision during contact visits. Since 2011 the mother has opposed supervised visits: indeed, since about October 2011, she had refused to participate in arrangements for supervised visits. 36 In the District Court, Judge Olsson SC gave careful consideration to the competing considerations relevant to the orders sought. Because of the need to identify legal error on her part, the submissions in this Court attacked the fact finding process as involving a failure to direct her mind to the merits of the arguments. This was formulated in one part as a complaint of procedural unfairness which was dismissed by this Court. Further, the reasons noted: "The proposition that Olsson DCJ did not give adequate consideration to the submissions on behalf of the applicant was simply a misrepresentation of her reasons for judgment. ... No specific passage in the judgment was relied upon, nor was there reference to specific submissions which were disregarded." 37 In other respects, attempts to identify legal error on the part of the District Court were either misconceived or otherwise lacking in substance. They were of the kind which a competent and responsible legal practitioner should have advised a client were untenable and would certainly lose. 38 If there were evidence that such advice had been given and that the client had nevertheless directed the practitioner to put forward such arguments, a different question would have arisen, as to whether the practitioner should be mulct in costs for having put the other party to expense unnecessarily and inappropriately, albeit in accordance with express instructions. Even if undertaken on instructions, such conduct would constitute a breach of the practitioner's obligations under s 56 of the Civil Procedure Act, as it would the obligations of the litigant under the same provision. It may well be that, in such circumstances, both parties should be liable for the costs thus incurred. However, in the present case, there was no evidence that such advice was given, nor that instructions were given based on such advice, so the issue does not arise. 39 In written submissions in support of the motion, the Secretary made reference to particular findings in the principal judgment at [21], [22], [28], [40], [42], [46], [52], [55] and [56]. (These passages need not be restated here.) The practitioner's submissions in response, so far as they addressed the present proceedings, relied upon two broad propositions. The first was that the Secretary had deemed it appropriate to brief experienced counsel in the matter, thereby implying acceptance of the proposition that there were arguments of substance to support the application. Such a submission is no substitute for a consideration of the actual merits of the case presented. So far as the substantive issues went, the practitioner repeated many of the submissions which had been rejected, in terms which were dismissive of any view to the contrary. Despite the rhetorical strength of some submissions, he accepted that it was only necessary to demonstrate that his arguments "were not hopeless and without merit".[18] He also placed weight on what he described as the Court's refusal to grant relief in terms of the declaration sought in paragraph 2 of the amended summons, which he described as "the pivotal issue in the whole matter", as to which he was left "still wondering" about the Court's conclusion in that regard. 40 Paragraph 2 of the relief claimed sought a declaration that "the matter involving the child [Felicity] ceased to be a care and protection matter on the day [she] attained eight years of age and falls outside of the care and protection jurisdiction". (An alternative, contrary, declaration sought was that "until the orders is rescinded [sic] or the child attains 18 years of age" the matter may be dealt with "in the care protection jurisdiction only ...".) 41 It is true that declarations were not made in the terms sought in any of the paragraphs of the further amended summons. It was, however, noted in the principal judgment that one of the orders made in 2009 operated to confer parental responsibility on the father until the child attained 18 years.[19] If by seeking a declaration that "the matter ... ceased to be a care and protection matter" the practitioner was contending that the child was no longer subject to a court order as to her care after she attained the age of eight years, that was factually wrong. If the declaration sought to identify a limitation on the jurisdiction of the Children's Court, it was legally wrong. That contention, the basis of which was not clearly articulated, was dealt with in the principal judgment at [23]ff. 42 In short, the practitioner's submissions raised no doubt as to the correctness of the conclusions reached in the principal judgment; rather, they support an assessment that the practitioner has a significantly flawed view of the scope of, and the legal principles applicable in, the care and protection jurisdiction. 43 The submissions for the Secretary should be accepted: Mr Potkonyak should bear the costs of the father and the Secretary in this Court. The Court has not been invited to fix the amount of those costs. 1. Ward JA agreed that "the submissions made on the application before this Court were of a kind which any competent and responsible legal practitioner should have advised a client were untenable." 2. The applicant relied on Rule 4.1 of the 2013 Professional Conduct and Practice Rules, previously referred to and submitted that the respondent was clearly in breach of the provisions of this Rule, which is in the following terms: 4 Other fundamental ethical duties 4.1 A solicitor must also: 4.1.1 act in the best interests of a client in any matter in which the solicitor represents the client; 4.1.2 be honest and courteous in all dealings in the course of legal practice; 4.1.3 deliver legal services competently, diligently and as promptly as reasonably possible; 4.1.4 avoid any compromise to their integrity and professional independence; and 4.1.5 comply with these Rules and the law. 1. For reasons which we have previously expressed, the conduct of the respondent complained of in Particular 5.2 demonstrated that he did not act in the best interest of his client, that he was not honest and courteous in all his dealings with Judge Knox, that he did not deliver his legal services in a competent fashion, that he compromised his integrity and professional independence and that he failed to comply with this Rule as well as Rules 3.1 and 5.1. It follows that the respondent was in breach of Rule 4.1, and these are matters which we can take into account in determining whether the respondent is guilty of unsatisfactory professional conduct or professional misconduct. 2. We are mindful that even at this late stage the respondent continues to demonstrate a lack of insight into the matters of concern raised in these proceedings. For example, in his Reply document dealing with proceedings No 8, GKD, the respondent has described the decision of Magistrate Murphy as being "an incompetent and biased decision." We find this to be an astonishing description of a decision of a judicial officer, and inconsistent with the obligation of a legal practitioner to uphold and support the legal system. Whilst there must always be room for measured and constructive criticism, such criticism must be couched in appropriate language. There are comments to similar effect dealing with the judgement of her Honour Judge Balla in HK, in describing the decision to grant leave as having been made on an "irrational ground." 3. We have already referred to the continued reference by the respondent to the unlawful and illegitimate practice of the Children's Court referred to in Particular 5.3. Again, in his Reply document, the respondent has persisted in referring to a paramount duty to the law as overriding the interest of his client. That is no doubt correct in appropriate circumstances, where the duty to the law purports to be exercised by reference to appropriate and established legal principles. In the circumstances of these proceedings the respondent has sacrificed his duty to uphold the law to some misguided and inappropriate concept of what he thinks the law should be. In so stating we should make it clear that we do not regard the respondent as being motivated to act for any malicious purpose, but, to adapt the submissions of senior counsel for the applicant, his "eccentric and wildly idiosyncratic propositions about which [he] is vehement and repetitive" demonstrates that he "continues to display an unqualified confidence in his arguments irrespective of the consequences which have in fact played out." 4. Particular 5.4 refers to a failure to adduce relevant evidence. The first example is the failure of the respondent to adduce evidence before Judge Knox from the prior solicitor about his attendance on the mother and the obtaining of certain instructions. The second example also arose before Judge Knox who referred to the contents of affidavits filed by the respondent on behalf of the mother. His Honour said that the material in the affidavits "was devoted to your pursuit of your particular claim and your argument that these matters are illegitimate, they are inappropriate, they are wrong, they are illegal as a matter of practice seemed to me to be pursuing your argument at her expense….. What you did, as far as I can see – and I want you to address these matters – is really not provide any material on which I could as a court make a finding of a change of circumstances such as to found the leave application under s90…..". Later, Judge Knox raised the third example when he told the respondent that he had failed to file any material in the proceedings which would support contentions raised about the conduct of the grandmother and in support of the submission of his client that there should not be supervised contact. We should add that the respondent responded to this allegation by referring to the fact that the proceedings constituted a leave application only. It is obvious that he misunderstood the nature of the proceedings because his Honour reminded him that an essential matter to consider for the grant of leave was whether there was an arguable case, which would have necessitated the filing of supportive evidentiary material. After further interchange his Honour said to the respondent; "it seems to me, you see, that you filed an affidavit where you did say certain things but you didn't grapple at any stage with the central issue of the case on your client's behalf…" When the respondent then asserted that he would rely on an affidavit of his client sworn in earlier proceedings his Honour reminded him that that affidavit covered matters going back to 2009 and "What was necessary was material relevant to what you were asserting was the change in circumstances between the 2012 date and order and the 2014 application and summons…..and there is nothing there." In his Further Amended Reply the respondent said that this charge is "baseless. All relevant evidence was there as it comes from the Children's Court, there was nothing else left to be adduced." Again, a response such as this demonstrates a lack of insight into the evidentiary material which was required to be adduced by the respondent in support of his client's case and in his failure to do so. We are comfortably satisfied that this Ground has been made out. 5. Particular 5.5 refers to a loss of objectivity. The respondent conceded such before Judge Knox and before us. The Further Amended Reply contains a further outrageous statement "It is his Honour who lost the objectivity and failed to discharge his own duty to the law and the judicial office." There cannot possibly be any basis upon which the respondent could make any assertion of this kind. Again, it demonstrates a lack of objectivity and a lack of insight. However, as this assertion does not form part of the Particulars of any of the Grounds relied upon by the applicant we shall ignore it for the purpose of these reasons for decision and we shall ignore also assertions of a similar kind made by the respondent with respect to decisions of Magistrate Murphy and Judge Balla to which we have made earlier reference. This Ground has been made out. Ground 6 1. In effect, this Ground aggregates all of the instances previously referred to and relies upon a course of action as described. We agree with the characterisation made by the applicant that the respondent continued to display an unqualified confidence in his arguments irrespective of the consequences which had in fact played out. Unsatisfactory professional conduct and professional misconduct 1. Because of the time period during which the misconduct of the respondent is alleged to have occurred, these proceedings are governed by the provisions of the now repealed Legal Profession Act 2004. The proceedings were conducted by the parties on this basis. It is necessary to set out the provisions of that Act as they define the misconduct alleged against the respondent. They are 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. 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. It is also necessary to refer to the provisions of section 498 of that Act which are in the following terms; 498 Conduct capable of being unsatisfactory professional conduct or professional misconduct (1) Without limiting section 496 or 497, the following conduct is capable of being unsatisfactory professional conduct or professional misconduct: (a) conduct consisting of a contravention of this Act, the regulations or the legal profession rules, (b) charging of excessive legal costs in connection with the practice of law, (c) conduct in respect of which there is a conviction for: (i) a serious offence, or (ii) a tax offence, or (iii) an offence involving dishonesty, (d) conduct of an Australian legal practitioner as or in becoming an insolvent under administration, (e) conduct of an Australian legal practitioner in becoming disqualified from managing or being involved in the management of any corporation under the Corporations Act 2001 of the Commonwealth, (f) conduct consisting of a failure to comply with the requirements of a notice under this Act or the regulations (other than an information notice), (g) conduct of an Australian legal practitioner in failing to comply with an order of the Disciplinary Tribunal made under this Act or an order of a corresponding disciplinary body made under a corresponding law (including but not limited to a failure to pay wholly or partly a fine imposed under this Act or a corresponding law), (h) conduct of an Australian legal practitioner in failing to comply with a compensation order made under this Act or a corresponding law. (2) Conduct of a person consisting of a contravention referred to in subsection (1) (a) is capable of being unsatisfactory professional conduct or professional misconduct whether or not the person is convicted of an offence in relation to the contravention. 1. We note that the definitions contained in sections 496 and 497 are inclusive, and not exclusive. 2. Some assistance in considering the relevant principles applying to a determination of what constitutes misconduct by a legal practitioner is provided by observations of the High Court of Australia in Clyne v. N.S.W. Bar Association [1960] HCA 40; (1960) 104 CLR 186. Those proceedings applied to the obligations of a barrister, but we regard them as applying equally to a solicitor, especially while appearing as an advocate before a Court. At HCA [21] and following the Court said: 21. The rules which govern the conduct of members of a body of professional men, such as the Bar of New South Wales, may (though there is, of course, no logical dichotomy) be divided roughly into two classes. In the one class stand those rules which are mainly conventional in character. To say this is not to deny their importance from the point of view of the client. But they are designed primarily to regulate the conduct of members of the profession in their relations with one another. Many of these rules are reduced to writing, and they are from time to time interpreted, and perhaps modified to fit specific cases, by resolutions of the governing body of the profession. Examples of this class in the case of the Bar are the rule which forbids advertising, the rules with regard to retainers, the rule that one of Her Majesty's counsel must not appear without a junior. A breach of any of these rules is treated seriously, but would not warrant disbarment - at least unless it were shown to be part of a deliberate and persistent system of conduct. (at p200) 22. Rules of the other class are not merely conventional in character. They are fundamental. They are, for the most part, not to be found in writing. It is not necessary that they should be reduced to writing, because they rest essentially on nothing more and nothing less than a generally accepted standard of common decency and common fairness. To the Bar in general it is more a matter of "does not" than of "must not". A barrister does not lie to a judge who relies on him for information. He does not deliberately misrepresent the law to an inferior court or to a lay tribunal : cf. Carr v. Wodonga Shire [1924] HCA 15; (1924) 34 CLR 234, at pp 239, 240 . He does not, in cross-examination to credit, ask a witness if he has not been guilty of some evil conduct unless he has reliable information to warrant the suggestion which the question conveys. (at p200) 23. As the learned judges of the Supreme Court have said, a member of the Bar enjoys great privileges both de jure and de facto. In particular his privilege in relation to defamatory statements made by him in court is not qualified but absolute. It is perhaps worth while to quote yet again the oft-quoted words of Lopes L.J. in Royal Aquarium and Summer and Winter Garden Society v. Parkinson (1892) 1 QB 431 . His Lordship said : "This 'absolute privilege' has been conceded on the grounds of public policy to ensure freedom of speech where it is essential that freedom of speech should exist, and with the knowledge that Courts of justice are presided over by those who from their high character are not likely to abuse the privilege, and who have the power and ought to have the will to check any abuse of it by those who appear before them" (1892) 1 QB, at p 451 . The last thing we would wish to do would be to say anything which might be thought to curtail this freedom of speech, which public policy demands. Cases will constantly arise in which it is not merely the right but the duty of counsel to speak out fearlessly, to denounce some person or the conduct of some person, and to use such strong terms as seem to him in his discretion to be appropriate to the occasion. From the point of view of the common law, it is right that the person attacked should have no remedy in the courts. But, from the point of view of a profession which seeks to maintain standards of decency and fairness, it is essential that the privilege, and the power of doing harm which it confers, should not be abused. Otherwise grave and irreparable damage might be unjustly occasioned. The privilege may be abused if damaging irrelevant matter is introduced into a proceeding. It is grossly abused if counsel, in opening a case, makes statements which may have ruinous consequences to the person attacked, and which he cannot substantiate or justify by evidence. It is obviously unfair and improper in the highest degree for counsel, hoping that, where proof is impossible, prejudice may suffice, to make such statements unless he definitely knows that he has, and definitely intends to adduce, evidence to support them. It cannot, of course, be enough that he thinks that he may be able to establish his statements out of the mouth of a witness for the other side… 24. The conduct of the appellant in the proceedings of January 1959 was in breach of a rule which all responsible counsel obey, and the breach was accompanied by aggravating circumstances. He must have known that he was dealing with an obscure offence with which the magistrate could not be familiar and was not likely readily to understand, and it behoved him to be specially cautious and careful in dealing with the law and in stating the facts which he was in a position to prove... 1. Reference should also be made to the observations of Spigelman CJ in New South Wales Bar Association v Cummins [2001] NSWCA 284 (Mason P Handley JA agreeing): 19 Honesty and integrity are important in many spheres of conduct. However, in some spheres significant public interests are involved in the conduct of particular persons and the state regulates and restricts those who are entitled to engage in those activities and acquire the privileges associated with a particular status. The legal profession has long required the highest standards of integrity. 20 There are four interrelated interests involved. Clients must feel secure in confiding their secrets and entrusting their most personal affairs to lawyers. Fellow practitioners must be able to depend implicitly on the word and the behaviour of their colleagues. The judiciary must have confidence in those who appear before the courts. The public must have confidence in the legal profession by reason of the central role the profession plays in the administration of justice. Many aspects of the administration of justice depend on the trust by the judiciary and/or the public in the performance of professional obligations by professional people. 21 As Kitto J said in Ziems v The Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279 at 298: "... the Bar is no ordinary profession or occupation. These are not empty words, nor is it their purpose to express or encourage professional pretensions. They should be understood as a reminder that a barrister is more than his client's confidant, adviser and advocate, and must therefore possess more than honesty, learning and forensic ability. He is, by virtue of a long tradition, in a relationship of intimate collaboration with the judges, as well as with his fellow-members of the Bar, in the high task of endeavouring to make successful the service of the law to the community. That is a delicate relationship, and it carries exceptional privileges and exceptional obligations. If a barrister is found to be, for any reason, an unsuitable person to share in the enjoyment of those privileges and in the effective discharge of those responsibilities, he is not a fit and proper person to remain at the Bar." 22 Even in a period where other values have become of significance to the regulation of the legal profession - I refer particularly to the application of competition principles in professional regulation - the traditional professional paradigm still has a vitality of abiding significance. Neither the relationship of trust between a legal practitioner on the one hand, and his or her clients, colleagues and the judiciary on the other hand, nor public confidence in the profession, can be established or maintained, without professional regulation and enforcement. 1. We regard these comments as also applying to solicitors, and in particular to solicitors when appearing as advocates before Courts. 2. It is clear that the respondent has failed to conduct himself in accordance with these general principles which we regard as applying, and which are permitted to be applied by reason of the inclusive nature of the statutory definitions of unsatisfactory professional conduct and professional misconduct which we have earlier set out. The many examples of the futile proceedings initiated by the respondent on behalf of his clients demonstrate, as has been shown, that he has embarked upon an obsessive pursuit of untenable "legal arguments" at the expense of pursuing a pragmatic and helpful outcome for his clients, and in particular the mother in the Re Felicity litigation. This can be demonstrated by the comments of Slattery J in the Supreme Court of NSW in Louise v Director General of Community Services [2011] NSW SC1646. The respondent had brought an urgent vacation application before the Supreme Court in its parens patriae jurisdiction. The application was dismissed with costs on the basis that the arguments advanced by the respondent on behalf of the mother had no merit. In the course of his reasons for Judgment, Slattery J noted that on the basis of submissions made to him if, instead of making an application to the Supreme Court the respondent had sought leave to bring the proceedings before the Children's Court, that leave would not have been opposed by the independent legal representative of the child, and that representative would have supported the application to allow that Court to investigate the possibility of restoring unsupervised contact between the child and the mother. The application to the Supreme Court had forestalled such an application and distracted the parties from the real matter of concern to the mother. Instead, the respondent embarked upon proceedings which involved a consideration of whether or not the Children's Court did have jurisdiction by reason of a supposed inconsistency between the State law and the Family Law Act of the Commonwealth, which inconsistency was ultimately held by the Court of Appeal not to exist. 3. We have read all of the decisions which have been referred to and which are set out in Particular 5.2 of the Further Amended Application. The "legal arguments" advanced by the respondent on behalf of his unfortunate client have traversed many issues, not one has found favour with any judicial officer of any Court, and the mother has been denied the opportunity of making meaningful attempts to improve the nature and extent of her contact with the child. 4. A ready example of the futility of the approach taken by the respondent on behalf of his client is provided by his insistence that parents are unable to give consent "without admissions" to the exercise of jurisdiction by the Children's Court in the making of an order under section 79 of the Care and Protection Act. In a submission which the respondent filed in connection with these proceedings he annexed a copy of a letter which he had written to the then President of the Children's Court dated 30 January 2012. In that letter the respondent criticised the "consent without admission" process adopted in that Court stating that persons who became his clients told him that they had been put under pressure by former solicitors to make such admissions. He said that the consent given by parents was "invariably interpreted by the solicitors and the Children's Court as being a consent that not only the children are "in need of care and protection" but also that there is "no realistic possibility of restoration." He said that this allowed the Director-General to prepare a care plan that did not "involve restoration, with the typical terms of the child will remain in out-of-home care for the rest of his or her childhood" and the parents would have limited "identification contact" with the child. The respondent accused the "consent without admission" process as being a "stunt … invented by lazy lawyers who could not be bothered by hard work." He cited his attitude, which rejected this approach as constituting a reason why Legal Aid refused to support his clients because he was thus unable to work in a "high-volume environment." The letter then went on to make suggestions to the effect that such a practice should cease in that Court, and contained critical and inflammatory material about certain named magistrates. 5. We have referred to this material as indicating the preconceived mindset of the respondent in approaching matters under the Care Act, without any apparent concern for the underlying interests of the client, or the essential work carried out by that Court under the Care Act. We note that it is a pre-requisite to the exercise of jurisdiction that the Court must find that a child or young person "is in need of care and protection for a period specified in the order." The approach of the respondent seems to be that a basis upon which the Court could determine that a child or young person is in need of care and protection rests upon the evidence of a parent which the respondent says should be freely given, and without any undue pressure from legal representatives or the Court. This approach ignores the fact that applications for orders under section 79 are invariably sought by the Department or Minister upon the basis of information brought to their attention concerning the circumstances of a child or young person. It is that information which, properly put before the Court, is available to found a determination that a child or young person is in need of care and protection. Indeed, most applications are made because of the failure of a parent or other responsible person to have provided the necessary care and protection for the child or young person. Seen in this light, a consent by a parent to the making of a finding by the Court to enable appropriate arrangements for the allocation of parental responsibility to be made, even on a "without admissions basis" will often create a practical and constructive situation to enable the Court to deal quickly with the best interests of the child or young person. The firmly held and obsessive belief of the respondent which appears to have led him inexorably to take the view that he has pursued, is inconsistent with the appropriate practice of law in the interests of the client. 6. His belief and approach also fail to understand the manner in which the Children's Court operates, which may be gleaned from sec 93 of the Care Act, which is as follows; 93 General nature of proceedings (1) Proceedings before the Children's Court are not to be conducted in an adversarial manner. (2) Proceedings before the Children's Court are to be conducted with as little formality and legal technicality and form as the circumstances of the case permit. (3) The Children's Court is not bound by the rules of evidence unless, in relation to particular proceedings or particular parts of proceedings before it, the Children's Court determines that the rules of evidence, or such of those rules as are specified by the Children's Court, are to apply to those proceedings or parts. (4) In any proceedings before the Children's Court, the standard of proof is proof on the balance of probabilities. (5) Without limiting subsection (4), any requirement under this Act that the Children's Court be satisfied as to a particular matter is a requirement that the Children's Court be satisfied on the balance of probabilities. 1. As is obvious from the provisions of section 93, the intention is to eschew legal technicality and form as the circumstances permit. And the approach taken by the respondent as exemplified by the several transcripts which have been made available to us for the purpose of these proceedings, indicates that the respondent appears to have preferred to have the proceedings conducted in an adversarial manner. 2. Often, of course, the best interests of a client are served by not engaging in litigation, or not pursuing technical legal arguments, particularly those with limited or no prospects of success. The sad circumstances of these proceedings demonstrate that the respondent lacked objectivity and insight into his own lack of capacity to formulate and prosecute arguments of law and to understand the law. 3. We repeat the statement made by the respondent to us: "The respondent is not going to get intimidated and abandon his first professional duty, namely his duty to the law, no matter who is trying to intimidate him." As we understand the evidence given by the respondent in these proceedings and his submissions both in written and oral form, he has continued to maintain that his view of the legal principles that apply to the work of the Children's Court under the Care Act are those which he has always maintained, notwithstanding their consistent rejection by the Courts, including, especially, the Court of Appeal in the Re Felicity litigation. Apart from denying that he referred to Magistrate Murphy as being "bent" the respondent has, in general terms, sought to maintain his criticisms of the various judicial officers and legal representatives which are contained within the Particulars of the various Grounds which we have considered and which we have found proven. Indeed, as we have pointed out, the respondent has repeated some of those criticisms in the several Reply documents which he has relied upon in these proceedings. 4. Whether and to what extent the conduct of the respondent which we have found to have been proven to the requisite standard constitutes either unsatisfactory professional conduct or professional misconduct involves the exercise of a value judgement. It should be noted that the definition in section 496 includes a reference to the reasonable expectation of a member of the public. There is a fundamental public interest in the appropriate administration and management of the work of the courts as part of the legal system. We apprehend that it is the reasonable expectation of a member of the public that a professional legal practitioner will do nothing to attack inappropriately the reputation and integrity of the legal system including especially the courts. The scurrilous and ill-considered comments of the respondent in zealously pursuing his ideological approach to the detriment of the application of appropriate legal principles constitutes an attack on the reputation and integrity of the courts with which he was involved. His unfounded criticism of judicial officers and of fellow practitioners also constitutes an attack on the integrity of the legal system. In our opinion this conduct by the respondent set out in the several Grounds and Particulars which we have found to be proven is inconsistent with the reasonable expectation of a member of the public. Members of the public would and do expect that legal practitioners retained by them will furnish them with competent objective advice concerning the state of the law and, if appropriate, any areas of the law which may not be then currently settled, will advise them in pragmatic terms having regard to all of the circumstances of the litigation and their own personal circumstances, and will not incur the displeasure of judicial officers and fellow legal practitioners by making scurrilous and unjustified criticism. A member of the public engaged in costly and protracted litigation would expect that a legal practitioner representing another party in the proceedings would conduct himself or herself in a manner which would ensure the just quick and cost effective disposition of the proceedings. The respondent has breached all of these expectations. It follows that we regard the misconduct of the respondent as proven to constitute unsatisfactory professional conduct. 5. Furthermore, the unsatisfactory professional conduct involves a substantial and consistent failure to reach or maintain a reasonable standard of competence, and justifies a finding, that we make, that the respondent is not a fit and proper person to engage in legal practice. The conduct of the respondent which we have found proven demonstrates that he has engaged in a continued pattern of misconduct over a period of time which excludes any consideration that the respondent was guilty of any momentary lapse of professional judgment, or that there was an isolated instance of professional negligence. The mere recitation of the conduct of the respondent is, without more, sufficient to justify this conclusion. 6. It follows that we find that the respondent is guilty of professional misconduct. In so finding, we should not be taken to pre-empt any consequential order that might be made under section 562 of the Legal Profession Act, a consideration of which must be deferred until after the stage two hearing. Order 1. The respondent is found guilty of professional misconduct 2. The proceedings are stood over for stage 2 hearing on 22 August 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: 08 June 2017