Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Legal Services Commissioner v Paul [2017] NSWCATOD 86 Hearing dates: 26 May 2017 Date of orders: 26 May 2017 Decision date: 31 May 2017 Jurisdiction: Occupational Division Before: Boland ADCJ, Deputy President N S Isenberg, Senior Member E Hayes, General Member Decision: The Tribunal noting the respondent's concession that she is guilty of professional misconduct orders that: 1. By consent the respondent's name be removed from the roll of local practitioners. 2. By consent the respondent is to pay the costs of the applicant as agreed, and failing agreement as assessed. 3. Pursuant to s 64(1) (a) of the Civil and Administrative Tribunal Act 2013 (NSW) publication by any person or entity of the name of the person set out in paragraph 1.2 of the Agreed Statement of Facts and elsewhere in the Exhibits before the Tribunal is prohibited. Catchwords: PROFESSIONS AND TRADES – Where practitioner concedes conduct that amounts to professional misconduct – where parties have executed an Instrument of Consent proposing orders that the practitioner's name be removed from the local roll - where non publication order is made in respect of witness named in Exhibits before Tribunal. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Legal Profession Act 2004 (NSW) (repealed) Legal Profession Uniform Law 2014 Legal Profession Uniform Law Application Act 2014 (NSW) Cases Cited: Allinson v General Council of Medical Education and Registration (1984) 1 KB 750 Council of the Law Society of New South Wales v CZD [2017] NSWCATOD 31 Frugtniet v Board of Examiners [2005] VSC 332 Griffin v The Council of the Law Society of New South Wales [2016] NSWCA 364 Kennedy v The Council of the Incorporated Law Institute of NSW (1939) 13 ALR 56 Prothonotary v Gregory [2017] NSWCA 101 Ziems v The Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279; [1957] HCA 46 Category: Principal judgment Parties: Legal Services Commissioner (Applicant) Nicole Anthea Paul (Respondent) Representation: Counsel: S Odgers SC (Applicant) SJ Stanton (Respondent) Solicitors: Legal Services Commission (Applicant) Carters Law Firm (Respondent) File Number(s): 1620218 Publication restriction: Pursuant to s 64 (1) (a) of the Civil and Administrative Tribunal Act 2013 (NSW) publication by any person or entity of the name of the person set out in paragraph 1.2 of the Agreed Statement of Facts and elsewhere in the Exhibits before the Tribunal is prohibited. REASONS FOR DECISION Introduction 1. In September 2016 the Legal Services Commissioner (the Commissioner) filed an Application for Disciplinary Findings and Orders in the Tribunal against Nicole Anthea Paul (the practitioner). 2. The application asserts, in broad terms, that the practitioner knowingly made a number of false statements to police officers. This occurred in circumstances where the practitioner was employed by the NSW Office of the Director of Public Prosecutions (DPP) and had the conduct of criminal prosecutions of four persons charged with conspiracy to murder. One of the accused persons, Witness A, had made an "induced statement" to the police. The police provided the practitioner with a report requesting the Attorney-General grant immunity from prosecution for Witness A. The practitioner did not provide the report in accordance with the DPP's protocol to the Director for consideration and, if appropriate, forwarding to the Attorney-General. Thereafter, on a number of occasions, the practitioner told the police the Director supported the application to the Attorney-General, and later, that the application was with the Attorney-General. 3. On 30 March 2017 the parties filed an executed Instrument of Consent made under the provisions of s 564 of the Legal Profession Act 2004 NSW (repealed) (the LP Act). The instrument sought orders by consent as follows: 1. The Respondent is guilty of professional misconduct in relation to Ground 1. 2. The Respondent's name be removed from the roll of local lawyers. 3. The Respondent is to pay the costs of the Applicant as agreed or assessed. 1. We determined that the facts set out in an Agreed Statement of Facts grounded a finding of professional misconduct. We found that it was appropriate to make an order removing the practitioner's name from the local roll, a costs order and a non-publication order in respect of Witness A's name. These are our reasons for the orders made at the hearing. Background 1. The background to this matter is conveniently set out in the Agreed Statement of Facts which we now reproduce: GROUND 1 - Unethical conduct – Misleading NSW police as to the status of an application for immunity from prosecution (indemnity application) Particular 1.1 On or about [redacted] 2009, Mr AA, Mr AB and Mr AC were each charged with conspiracy to murder Mr AD. Particular 1.2 On [redacted] 2009, [Witness A] was also charged with conspiracy to murder Mr AD. Particular 1.3 At all material times, the Respondent was an employed solicitor with the NSW Office of the Director of Public Prosecutions ("DPP"). In that capacity, the Respondent had carriage of the criminal prosecution of Mr AA, Mr AB, Mr AC and [Witness A]. Particular 1.4 On or about 23 November 2009, the NSW Police forwarded a report to the Respondent, seeking authority to obtain an induced statement from [Witness A] Particular 1.5 Between 28 January 2010 and 11 March 2010, the NSW Police took all necessary steps to obtain an unsigned induced statement from [Witness A] Particular 1.6 On or about 18 March 2010, the NSW Police handed a report to the Respondent, requesting consideration of immunity from prosecution ("indemnity application") for [Witness A] Particular 1.7 The Respondent did not forward a copy of the report referred to in particular 1.6 to the Director of the DPP ("the Director"). Particular 1.8 On a number of occasions between 18 March 2010 and 13 May 2010, the Respondent indicated to the NSW Police, that the Director had supported the indemnity application and had forwarded it to the NSW Attorney General. On at least one occasion between these dates, whilst speaking with Detective BC, the Respondent stated words to the effect that she had spoken personally with the Director when he signed the documents and that she had a friend who worked with the Attorney Generals Department. Particular 1.9 On each occasion that the Respondent made the representations referred to above at particular 1.8, the Respondent misled or attempted to mislead the NSW Police about the true status of the indemnity application. Particular 1.10 On each occasion that the Respondent made the representations referred to above at particular 1.8, the Respondent knew that the Director had not supported the indemnity application. The Respondent also knew that it had not been forwarded to the NSW Attorney General. Particular 1.11 On 13 May 2010, the Respondent spoke with NSW Police at the [redacted] Local Court about the status of the indemnity application and stated words to the effect: "I will speak to my friend at the AG's and find out what the delay is, it should not be long now." Particular 1.12 When making the statement referred to above at particular 1.11, The Respondent knew that the indemnity application had not been forwarded to the NSW Attorney General. Particular 1.13 On [redacted] 2010, the Respondent spoke with NSW Police at the [redacted] Local Court about the status of the indemnity application and stated words to the following effect: "I have spoken to my friend at the AG's and we will get an answer by next week" "My friend said the indemnity will be signed and sent to the Director by next week." "Don't worry the indemnity will be finished before I leave. I will make another call today to chase it up." Particular 1.14 When making the statements referred to at particular 1.13, the Respondent knew that the indemnity application had not been forwarded to the NSW Attorney General. Particular 1.15 When making the statements referred to at particular 1.13, the Respondent knew that the statement "I have spoken to my friend at the AG's and we will get an answer by next week". was false, as the Respondent had not forwarded the indemnity application, had not spoken to her 'friend' at the Attorney General's office, and was not expecting an answer by 'next week'. Particular 1.16 When making the statements referred to at particular 1.13, the Respondent knew that the statement "My friend said the indemnity will be signed and sent to the Director by next week." was false, as the Respondent had not forwarded the indemnity application, had not spoken to her 'friend' at the Attorney General's office, and was not expecting an answer by 'next week'. Particular 1.17 When making the statements referred to at particular 1.13, the Respondent knew that the statement; "Don't worry the indemnity will be finished before I leave. I will make another call today to chase it up." was false, as the Respondent had not forwarded the indemnity application, therefore there was nothing to 'chase up'. Particular 1.18 Between [redacted] 2010 and [redacted] 2010, the Respondent had not completed or forwarded any report, indemnity application or request for consideration to the Director and / or the NSW Attorney General, in relation to Witness A. Particular 1.19 On or around 4 June 2010, the Respondent resigned from employment with the DPP. Particular 1.20 On each occasion that the Respondent made the representations referred to at particulars 1.8, 1.11 and 1.13, the Respondent knew that the statements were false in a material particular. Particular 1.21 On each occasion that the Respondent made the representations referred to at particulars 1.8, 1.11 and 1.13, the Respondent misled or attempted to mislead the NSW Police. Relevant legislation Transitional provisions 1. Although this matter was commenced in the Tribunal after the commencement of the Legal Profession Uniform Law 2014 (the Uniform Law) and the Legal Profession Uniform Law Application Act 2014 (NSW) it is not in dispute that this matter falls to be determined under the LP Act by reason of the transitional provisions in the Uniform Law (see Griffin v The Council of the Law Society of New South Wales [2016] NSWCA 364). The Legal Profession Act 2004 1. As noted above, the parties executed an instrument of consent under s 564 of the LP Act. That provision is in the following terms: (1)The Tribunal may, with the consent of the Australian legal practitioner concerned contained in a written instrument, make orders under this Part without conducting or completing a hearing in relation to the complaint. (2) Consent may be given before or after the proceedings were commenced in the Tribunal with respect to the complaint. (3) If consent is given before the proceedings were commenced, the requirement to conduct an investigation of the complaint (whether commenced or not) may be dispensed with, and any investigation of the complaint already being conducted may be suspended or terminated. (4) This section does not apply to consent given by the practitioner unless the practitioner, the Commissioner and (if applicable) the relevant Council have agreed on the terms of an instrument of consent. (5) Without limiting what may be included in the instrument of consent, the instrument is to contain an agreed statement of facts (including as to the grounds of complaint) and may contain undertakings on the part of the practitioner. (6) The instrument of consent must be filed with the Tribunal. (7) Nothing in this section affects the procedures regarding the commencement of proceedings in the Tribunal where consent was given before the proceedings are commenced. (8) If consent was given before the proceedings are commenced, the proceedings are nevertheless to be commenced with respect to the complaint in the same way as if the consent had not yet been given. (9) The Tribunal is to be constituted in the same way as for the conduct of a hearing into the complaint. (10) In deciding whether to make orders under this Part pursuant to an instrument of consent, the Tribunal may make such inquiries of the parties as it thinks fit and may, despite any such consent, conduct or complete a hearing in relation to the complaint if it considers it to be in the public interest to do so. 1. Professional misconduct is defined in s 497 as follows: (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. Although the Instrument of Consent contained three proposed orders, we note that the orders a Tribunal may make an the conclusion of disciplinary proceedings under s 562 the LP Act are relevantly as follow: (1)Orders generally If, after it has completed a hearing under this Part in relation to a complaint against an Australian legal practitioner, the Tribunal is satisfied that the practitioner has engaged in unsatisfactory professional conduct or professional misconduct, the Tribunal may make such orders as it thinks fit, including any one or more of the orders specified in this section. (2) Orders requiring official implementation in this jurisdiction The Tribunal may make the following orders under this subsection: (a) an order that the name of the practitioner be removed from the local roll, (b) an order that the practitioner's local practising certificate be suspended for a specified period or cancelled, (c) an order that a local practising certificate not be issued to the practitioner before the end of a specified period, (d) an order that: (i) specified conditions be imposed on the practitioner's practising certificate issued or to be issued under this Act, and (ii) the conditions be imposed for a specified period, and (iii) specifies the time (if any) after which the practitioner may apply to the Tribunal for the conditions to be amended or removed, (e) an order reprimanding the practitioner, (f) an order that the name of the practitioner be removed from the roll of public notaries maintained under the Public Notaries Act 1997 . (3) Orders requiring official implementation in another jurisdiction The Tribunal may make the following orders under this subsection: (a) an order recommending that the name of the practitioner be removed from an interstate roll, (b) an order recommending that the practitioner's interstate practising certificate be suspended for a specified period or cancelled, (c) an order recommending that an interstate practising certificate not be granted to the practitioner before the end of a specified period, (d) an order recommending that: (i) specified conditions be imposed on the practitioner's interstate practising certificate, and (ii) the conditions be imposed for a specified period, and (iii) the conditions specify the time (if any) after which the practitioner may apply to the Tribunal for the conditions to be amended or removed. (4) Orders requiring compliance by practitioner The Tribunal may make the following orders under this subsection: (a) an order that the practitioner pay a fine of a specified amount, (b) an order that the practitioner undertake and complete a specified course of further legal education, (c) an order that the practitioner undertake a specified period of practice under supervision, (d) an order that the practitioner do or refrain from doing something in connection with the practice of law, (e) an order that the practitioner cease to accept instructions as a public notary in relation to notarial services, (f) an order that the practitioner's practice, or the financial affairs of the practitioner or of the practitioner's practice, be conducted for a specified period in a specified way or subject to specified conditions, (g) an order that the practitioner's practice be subject to periodic inspection for a specified period, (h) an order that the practitioner undergo counselling or medical treatment or act in accordance with medical advice given to the practitioner, (i) an order that the practitioner use the services of an accountant or other financial specialist in connection with the practitioner's practice, (j) an order that the practitioner not apply for a local practising certificate before the end of a specified period. Note : This subsection is not an exhaustive statement of orders that must be complied with by the practitioner. (5) Ancillary or other orders The Tribunal may make ancillary or other orders, including an order for payment by the practitioner of expenses associated with orders under subsection (4), as assessed or reviewed in or in accordance with the order or as agreed. (6) Alternative finding The Tribunal may find that a person has engaged in unsatisfactory professional conduct even though the complaint or disciplinary application alleged professional misconduct or may find that a person has engaged in professional misconduct even though the complaint or disciplinary application alleged unsatisfactory professional conduct. (7) Maximum fine The amount ordered by the Tribunal under this section to be paid by way of fines by any one Australian legal practitioner in connection with the Tribunal's findings about a complaint must not exceed in total: (a) $10,000 in the case of unsatisfactory professional conduct not amounting to professional misconduct, or (b) $75,000 in the case of professional misconduct. If the Tribunal finds that the practitioner has engaged in both professional misconduct and unsatisfactory professional conduct not amounting to professional misconduct, the amount must not exceed $75,000 in total. (8) Reprimands If the Tribunal makes an order reprimanding the practitioner, the Tribunal is to publish the order and a statement of its reasons for making the order. (9) It is sufficient compliance with the requirement to publish an order under subsection (8) if the Tribunal provides to the Commissioner sufficient information to enable the Commissioner to exercise the Commissioner's powers or functions in respect of the Register of Disciplinary Action required to be kept under Part 4.10 (Publicising disciplinary action). 1. It will be observed that the Tribunal has no power to make an order as sought in paragraph 1 of the original disciplinary application. Rather, the Tribunal having made a value judgment based on the evidence before it, may make a finding that the conduct alleged in an application constitutes unsatisfactory professional conduct or professional misconduct. 2. In Prothonotary v Gregory [2017] NSWCA 101 the Court of Appeal, in dealing with an application to remove a solicitor from the local roll pursuant to the Court's inherent jurisdiction, noted at [12], even if an order for removal is sought by consent "[it] is, however, well established that the Court must satisfy itself that it is appropriate to make orders removing a legal practitioner's name from the Roll …" Discussion and conclusions – removal from the Roll 1. It was not in dispute before us that the practitioner had commenced work at the DPP in 2001 and by the time of the matters the subject of the agreed statement of facts she had progressed to a Level 3 lawyer category. In her affidavit sworn 9 November 2016 Marianne Carey, (Ms Carey) Policy and Legal Advisor, DPP deposes at [13] to the practitioner's responsibilities at the relevant time. These included the conspiracy to murder prosecution in the Local Court, liaising with the police, writing any reports and submissions and following internal DPP protocols and procedures when doing so. 2. Ms Carey deposes at [18] that, after the practitioner left the employ of the DPP, from her examination of the relevant file, and a search of the practitioner's computer, she was unable to locate any report seeking approval from the Director. 3. The Commissioner, in his report dated 13 May 2016, opined "it is clear from the evidence that [the practitioner] made statements to the NSW Police, on more than one occasion, which were materially false. It is difficult to accept that [the practitioner's] dishonesty was isolated or a 'once off' aberration". He went on to say: [The practitioner] went as far as referring to conversations she said that she personally had with the Director and an unnamed 'friend' at the Attorney-General's Department, when it is clear on the evidence that no such conversations could ever have occurred. In my view, this indicates an increased level of deception, which is relevant to considering whether the conduct is unsatisfactory professional conduct or professional misconduct 1. Having read the affidavit material relied on by the Commissioner we are independently satisfied to the Briginshaw standard that the facts as set out in the Agreed Statement are established. The affidavit of Ms Lisa Munro, who was at the relevant time a solicitor with the DPP, corroborates the evidence of Detective XY, and that of Detective Sergeant BC in respect of the practitioner saying "an application had been made" and that she was waiting for a response. 2. The evidence of Ms Carey cogently demonstrates no reports had been prepared by the practitioner for the Director, or with his approval, forwarded to the Attorney-General for consideration. 3. The undisputed facts in this case demonstrate conduct by the practitioner, on a number of occasions, of making false statements to two senior police officers involved with the investigation of a very serious crime. Her false statements jeopardised the integrity of the DPP as prosecutor and the wider criminal justice system. That system relies, at its heart, on the honesty and integrity of the profession. As the Commissioner records in his letter to the practitioner's legal representative in May 2016 the practitioner was, at the relevant time, a solicitor with the carriage of matters involving a conspiracy to murder on behalf of the Director of the DPP. The Commissioner succinctly and accurately records "This is a position of considerable responsibility". 4. In our view, the importance of the timely and effective conduct of these serious criminal matters was likely to have been impacted by the practitioner's false statements to the police officers. The practitioner's conduct in making her initial statement was compounded when she embellished her conversations with the police by references to being present when the Director authorised the report, and later that she had an unnamed friend working for the Attorney-General. 5. We are satisfied that the practitioner's actions constitute professional misconduct at common law as explained in the oft cited decision of Allinson v General Council of Medical Education and Registration (1984) 1 KB 750. It was conduct which would be regarded as disgraceful and dishonourable by professional brethren of good repute and competency. In reaching this finding we have taken into account the comments of Rich J in Kennedy v The Council of the Incorporated Law Institute of NSW (1939) 13 ALJ 56. We are conscious of the requirement of the duty and requirement that a practitioner act honestly. This is well explained by Gillard J in Frugtriet v Board of Examiners [2005] VSC 332 as follows: All true professions are built on a solid foundation of honesty. The legal profession is no exception. Indeed, the demands of honesty and fair dealing are probably greater in the legal profession than any other profession. There must be honesty and fair dealing between lawyer and client, between lawyers when conducting litigation on behalf of a client, and dealings with any of the courts or tribunals in this State. There must be no hesitation on the part of any member of the legal profession when confronted with a situation which could involve dishonesty to immediately desist from any dishonest conduct. Indeed, the courts and tribunals in this State would not be able to function properly unless the presiding officer was able to rely upon the honesty and reputation of the persons appearing before them or who as solicitors are involved in conducting litigation . Pagone J summarised the obligation in a passage with which I respectfully and fully agree. His Honour said: "The requirement for admission to practise law that the applicant be a fit and proper person, means that the applicant must have personal qualities of character which are necessary to discharge the important and grave responsibilities of being a barrister and solicitor. A legal practitioner, upon being admitted to practice, assumes duties to the courts, to fellow practitioners as well as to clients. At the heart of all those duties is a commitment to honesty and, in those circumstances when it is required, to open candour and frankness, irrespective of self interest or embarrassment. The entire administration of justice in any community which is governed by law depends upon the honest working of legal practitioners who can be relied upon to meet high standards of honesty and ethical behaviour. It is the legal practitioner who is effectively the daily minister and executor in the administration of justice when advising clients, acting for clients, certifying documents, and making presentations to courts, governments, other professionals, and so on. The level and extent of trust placed in what legal practitioners say or do is necessarily high and the need for honesty is self-evident and essential." (Emphasis added.) 1. We independently found that the practitioner's conduct in knowingly making false statements constitutes professional misconduct as defined in s 497 (1) (b) of the LP Act. In those circumstances we were satisfied it was unnecessary in the public interest that we conduct a hearing into the matters set out in the application. 2. We are conscious that although a finding of professional misconduct has been conceded by the practitioner and found by us, it was necessary that we considered at the date of the hearing before us whether the practitioner was a fit and proper person to remain on the roll of practitioners (see Ziems v The Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279; [1957] HCA 46). 3. The practitioner filed a Reply in which she made very limited responses to the particulars pleaded in the application for disciplinary findings and orders but rather relied on her rights against self-incrimination. However, the solicitor chose to file no material in this application. We were advised by her counsel, Mr S J Stanton, from the Bar Table that although she had practised in Queensland after the events the subject of the complaint, she did not currently have a practising certificate in that or any other State. Mr Odgers SC (Mr Odgers) behalf of the Legal Services Commissioner did not seek an order under s 562(3) of the LP Act recommending to an interstate professional body of the removal of the practitioner's name from an interstate roll, or the cancellation of an interstate practising certificate. 4. The absence of any evidence from the practitioner left us with no ability to assess any contrition by the practitioner for her actions, her insight into the matters the subject of the agreed statement of facts or of any rehabilitative steps she may have taken which may support a finding that although professional misconduct is established she was a fit and proper person to remain on the roll at the date of the hearing. Recommendations 1. Mr Stanton told us that the practitioner did not intend to practise as an Australian lawyer in the future. We observe that the practitioner is a relatively young woman, and with time to reflect on her conduct that she may seek to resurrect her legal career. 2. We recommend if the practitioner reviews her current decision not to practise again, she should consider engaging in a course in ethics such as those conducted by Monash University, the St James' Ethics Centre or by the Law Society of New South Wales. Such a course or courses is likely to assist her to gain insight into her conduct, and may lead to understanding and remorse for her actions. Costs 1. As the practitioner has conceded professional misconduct, as prescribed in Schedule 5 of the Civil and Administrative Tribunal Act 2013 (NSW), we ordered that the practitioner pay the Commissioner's costs as agreed or failing agreement as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW). Non-publication order in respect of the name of Witness A 1. We were asked by Mr Stanton to make a non-publication order in respect of Witness A under s 64 of the Civil and Administrative Tribunal Act. That application was not opposed by Mr Odgers on behalf of the Commissioner. 2. The circumstances in which an order may be made under s 64 in disciplinary proceedings are reviewed in Council for the Law Society of New South Wales v CZD [2017] NSWCATOD 31. 3. We were informed that the trial Judge in the District Court, Bennett DCJ had made a non-publication order in respect of Witness A. That information is corroborated by a letter from Ms Carey on behalf of the Director dated 23 March 2011 addressed to Detective BC. Ms Carey notes in the first paragraph of her letter "that there is a non-publication order in place in relation to the identify of witness I have referred to as ...". 4. In these circumstances, in comity with the trial Judge's order, we found it appropriate to made an order under s 64 (1) (a). 5. ORDERS The Tribunal noting the respondent's concession that she is guilty of professional misconduct orders that: 1. By consent the respondent's name be removed from the roll of local practitioners. 2. By consent the respondent is to pay the costs of the applicant as agreed, and failing agreement as assessed. 3. Pursuant to s 64(1) (a) of the Civil and Administrative Tribunal Act 2013 (NSW) publication by any person or entity of the name of the person set out in paragraph 1.2 of the Agreed Statement of Facts and elsewhere in the Exhibits before the Tribunal is prohibited. ********** 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: 31 May 2017