Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Law Society of New South Wales v Huang [2017] NSWCATOD 173 Hearing dates: 27 September 2017 Date of orders: 30 November 2017 Decision date: 30 November 2017 Jurisdiction: Occupational Division Before: S Westgarth, Deputy President C Ludlow, Senior Member B Thomson, General Member Decision: (1) The Tribunal recommends that the name of the respondent, Minkai Huang be removed from the roll; and (2) The respondent is to pay the costs of the applicant as agreed or assessed. Catchwords: Professional misconduct – lack of candour Legislation Cited: Civil and Administrative Tribunal Act 2013 Legal Profession Uniform Law Act (NSW) Cases Cited: Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 Bechara v Legal Services Commissioner [2010] NSWCA 369 Briginshaw v Briginshaw [1938] 60 CLR 336 Kennedy v The Council of the Incorporated Law Institute of NSW (1939) 13 ALJ 56 Law Society of New South Wales v Bannister (1993) 4 LPDR 24 Law Society of New South Wales v Walsh [1997] NSWCA 185 Montenegro v Law Society of NSW [2015] NSWSC 867 Re Davis (1947) 75 CLR 409 The Prothonotary v Del Castillo [2001] NSWCA 75 The Council Of The New South Wales Bar Association v Sahade [2007] NSWCA 145 Texts Cited: Nil Category: Principal judgment Parties: Council of the Law Society of New South Wales (Applicant) Minkai Huang (Respondent) Representation: Counsel: Not applicable Solicitors: Mr Pierotti and Ms Lai (Applicant) File Number(s): 2017/00037793 Publication restriction: Unrestricted reasons for decision The Application – Orders Sought 1. The applicant commenced these proceedings by application received on 6 February 2017 in which the following orders were sought: (1) An order recommending that the Respondent Lawyer's name be removed from the Roll; (2) The Respondent Lawyer pays the costs of the Society as agreed or assessed; (3) Such further or other order as the Tribunal thinks fit. 1. At the hearing, the applicant only sought orders 1 and 2 above and no other order. Application – Grounds 1. The application states that the respondent is guilty of professional misconduct in that he made applications: 1. To MARA for registration as a migration agent that he knew to be false and/or misleading in a material particular. Particulars A. He failed to disclose his own criminal conviction in New Zealand. B. He failed to disclose that he had been struck from the Roll of solicitors and barristers in New Zealand. 2. For the renewal of Practicing Certificates in New South Wales that he knew to be false and/or misleading in a material particulars. Particulars A. He failed to disclose his own criminal conviction in New Zealand. B. He failed to disclose that he had been struck from the Roll of solicitors and barristers in New Zealand. 1. The application contained the following particulars and contentions: In these Particulars: '2015 PC Application' means the application made by the Solicitor to the Society on 12 May 2014 for the renewal of his practising certificate for the year ended on 30 June 2015 '2016 PC Application' means the application made by the Solicitor to the Society on 7 April 2015 for the renewal of his practising certificate for the year ended on 30 June 2016 'MARA' means the Office of the Migration Agents Registration Authority 'MARA Application 1' means the application made by the Solicitor on 2 April 2014 with MARA for registration as a migration agent 'MARA Application 2' means the application made by the Solicitor on 27 March 2015 with MARA for registration as a migration agent 'New Zealand Tribunal' means the New Zealand Lawyers and Conveyancers Disciplinary Tribunal 'the Disciplinary Decision' means the decision made in relation to the Solicitor by the New Zealand Tribunal that the Solicitor be struck off the Roll of barristers and solicitors and pay costs. 'the Society' means the Law Society of New South Wales 'the Solicitor' means Minkai Huang A.The Solicitor made applications to MARA for registration as a migration agent that he knew to be false and/or misleading in a material particular 1. on 14 October 2013, the Solicitor pleaded guilty to an offence against sections 220 and 223(a) of the Crimes Act, 1961 and was duly convicted (the Conviction). 2. On 10 December 2013, the Solicitor was sentenced to 100 hours of community service on account of the Conviction 3. in MARA Application 1, the Solicitor made the following statements to MARA that were, in light of the Conviction, to his knowledge false and/or misleading: (a) he had "not had a finding of guilt against me for a criminal offence (past or present) in any country other than previously declared by me to the Migration Agents Registration Authority". (b) he was "not aware of any finding, conduct or event or fact which would affect my fitness and propriety to provide immigration assistance or which goes to my integrity (other than that which is disclosed herewith or previously disclosed)". (c) the "information I have provided on this form, including the attachments, is complete, correct and up to date in every details". 4. On 26 November 2014, the New Zealand Tribunal made the Disciplinary Decision against the Solicitor. 5. In MARA Application 2, the Solicitor made the following statements to MARA that were, in light of the Conviction, to his knowledge false and/or misleading: (a) he had "not had a finding of guilt against me for a criminal offence (past or present) in any country other than previously declared by me to the Migration Agents Registration Authority". (b) he was "not aware of any finding, conduct or event or fact which would affect my fitness and propriety to provide immigration assistance or which goes to my integrity (other than that which is disclosed herewith or previously disclosed)". (c) "no disciplinary action is being taken (I understand that I must declare any current actions), or has been taken against me (other than previously declared by me to the Migration Agents Registration Authority). (d) "information I have provided on this form, including the attachments, is complete, correct and up to date in every detail". B. The Solicitor made applications for the renewal of practicing certificates in New South Wales that he knew to be false and/or misleading in a material particular 1. Paragraphs A1 and A2 are repeated. 2. In his 2015 PC Application, the Solicitor made the following declaration that he knew to be false and/or misleading: "I declare that I have not been the subject of any disciplinary (professional) proceedings or convicted of or charged with any indictable offence in any jurisdiction which has not previously been disclosed since my last application for a practising certificate". 3. On 26 November 2014, the New Zealand Tribunal made the Disciplinary Decision against the Solicitor. 4. In his 2016 PC Application, the Solicitor made the following declaration that he knew to be false and/or misleading: "I declare that I have not been the subject of any disciplinary (professional) proceedings or convicted of or charged with any indictable offence in any jurisdiction which has not previously been disclosed since my last application for a practising certificate". 5. On 7 May 2015, the Solicitor notified the Society's Registry by email that he had ceased practising on 1 May 2015 and did not wish to proceed with the 2016 PC Application. The Applicant's Evidence 1. The applicant tendered the following evidence: 1. The affidavit of Karl Kenneth Francis Lewis, process server dated 28 April 2017 (marked Exhibit A); 2. The affidavit of Anne-Marie Foord, solicitor dated 3 February 2017 (marked Exhibit B); 3. The affidavit of Glenda Hutch, Director of Professional Standards and Integrity of the office of Migration Agents Registration Authority (MARA) dated 21 December 2016 (marked Exhibit C); 4. A copy letter from the applicant to the respondent dated 14 September 2017 (sent by express post and by email) (marked Exhibit D); and 5. Email from the applicant to the respondent dated 14 September 2017 (marked Exhibit E). Respondent's Participation in these Proceedings 1. The respondent has not filed any documents in these proceedings and did not appear at the hearing. 2. On 7 June 2017 the Tribunal directed the applicant to give to the Tribunal and the respondent a written outline of the applicant's submissions on or before 15 September 2017. We find that the applicant complied with that direction by sending the letter of 14 September 2017 (Exhibit D) and the email of the same date (Exhibit E). 3. The affidavit marked Exhibit A provides sufficient evidence to enable the Tribunal to be satisfied that the respondent was served with a number of documents relevant to these proceedings by personal service effected on 7 April 2017. The documents served on that date include the application, a form of Reply and the affidavits marked Exhibit B and C. It appears from Exhibit A that the respondent is a resident of New Zealand. Relevant Legislation 1. The applicant submitted (and we agree) that the proceedings are to be dealt with under the Legal Profession Uniform Law Act (NSW) (LPUL) as the complaints which are the subject of the application were made after 1 July 2015. It appears from Exhibit B that the complaint against the respondent was first made by an email dated 8 August 2015 from Louise Lazzarino of the office of MARA addressed to the office of the Legal Services Commission. 2. By s 302 of the LPUL, the Tribunal has the power to recommend that the name of a lawyer be removed from a roll kept by a Supreme Court, a register of lawyers kept under jurisdictional legislation or the Australian Legal Profession Register. Section 302(1) provides the following: 302 Determination by designated tribunal—disciplinary matters (1) If, after it has completed a hearing under this Part into the conduct of a respondent lawyer, the designated tribunal finds that the lawyer is guilty of unsatisfactory professional conduct or professional misconduct, the designated tribunal may make any orders that it thinks fit, including any of the orders that a local regulatory authority can make under section 299 in relation to a lawyer and any one or more of the following— (a) an order that the lawyer do or refrain from doing something in connection with the practice of law; (b) an order that the lawyer cease to accept instructions as a public notary in relation to notarial services; (c) an order that the lawyer's practice be managed for a specified period in a specified way or subject to specified conditions; (d) an order that the lawyer's practice be subject to periodic inspection by a specified person for a specified period; (e) an order that the lawyer seek advice in relation to the management of the lawyer's practice from a specified person; (f) an order recommending that the name of the lawyer be removed from a roll kept by a Supreme Court, a register of lawyers kept under jurisdictional legislation or the Australian Legal Profession Register; (g) an order directing that a specified condition be imposed on the Australian practising certificate or Australian registration certificate of the lawyer; (h) an order directing that the lawyer's Australian practising certificate or Australian registration certificate be suspended for a specified period or cancelled; (i) an order directing that an Australian practising certificate or Australian registration certificate not be granted to the lawyer before the end of a specified period; (j) an order that the lawyer not apply for an Australian practising certificate or Australian registration certificate before the end of a specified period; (k) a compensation order against the lawyer in accordance with Part 5.5; (l) an order that the lawyer pay a fine of a specified amount not exceeding $100 000 if the lawyer is found guilty of professional misconduct. 1. The order sought by the applicant is that contained in s 302(1)(f). Applicant's Evidence and Contentions 1. The applicant alleges that the respondent has been guilty of professional misconduct in that he made applications: 1. To MARA for registration as a migration agent that he knew to be false and/or misleading in a material particular, namely: 1. He failed to disclose his own criminal conviction in New Zealand; and 2. He failed to disclose that he had been struck from the Roll of solicitors and barristers in New Zealand. 1. For the renewal of practising certificates in New South Wales that he knew to be false and/or misleading in a material particular, namely: 1. He failed to disclose his own criminal conviction in New Zealand; and 2. He failed to disclose that he had been struck from the Roll of solicitors and barristers in New Zealand. 1. Exhibit B attaches a copy of a certified copy or extract of the permanent court record of the District Court in Auckland dated 29 January 2016. That extract discloses that on 14 October 2013 the respondent pleaded guilty and was convicted on 10 December 2013 of an offence which is described in these terms: An offence against the Crimes Act 1961 sections 220 and 223(a) in that having received property namely $9475.00 in circumstances that he knew required him to deal with the property in accordance with the requirements of any other person namely Evgeny Orlof, he initially dealt with the property otherwise than in accordance with those requirements and thereby committed theft. 1. Exhibit C is the affidavit of Glenda Hutch who is the director of Professional Standards and Integrity of the MARA. Her affidavit annexes a copy of the applications for renewal as a migration agent lodged by the respondent in respect of the periods ending 22 May 2015 and 22 May 2016. The affidavit annexes a copy of an application for renewal as a migration agent lodged by the respondent on 2 April 2014 and a copy of the application lodged by the respondent on 27 March 2015. Both applications contained the following question: Are the following statements true and correct? 1. I have not had a finding of guilt against me for a criminal offence (past or present) in any country other than previously declared by me to the Migration Agents Registration Authority; and... 4. No disciplinary action is being taken (I understand that must declare any current actions), or has been taken against me (other than previously declared by me to the Migration Agents Registration Authority) 1. The respondent provided the answer "yes" to the above two questions and, in addition, stated towards the end of the same form that the information provided on the form is "complete, correct and up to date in every detail". 2. The applicant contends that when the application of 2 April 2014 was lodged with MARA, the respondent had been convicted and sentenced in the District Court at Auckland. 3. The applicant contends that on 26 November 2014, the New Zealand Lawyers and Conveyancers Disciplinary Tribunal (NZ Tribunal) made orders against the respondent, including an order that the respondent be struck off the roll of barristers and solicitors. Evidence in support of that contention is an attachment to the Exhibit B and the attachment is constituted by a document headed "decision record" which appears to be a record of the deliberations of the NZ Tribunal. On page 90 of Exhibit B, there appears the formal record of the NZ Tribunal which includes the order that the respondent is struck off the roll of barristers and solicitors and is ordered to pay the costs of the New Zealand Law Society. 4. The applicant contends that on 27 March 2015 the respondent lodged an application to MARA. That document is an annexure to Exhibit C (see page 11). As stated above, the same two questions quoted above were contained in that application and the respondent has inserted the response "yes". 5. The applicant contends that by the time this second application to MARA had been made the respondent had been convicted and sentenced by the District Court at Auckland and had had his name removed from the roll by the NZ Tribunal. 6. The applicant contends that the respondent lodged an application dated 12 May 2014 with the applicant for a practising certificate for the year ending 30 June 2015 (the 2015 PC Application) and in that application, the respondent made the following declaration that he knew to be false and/or misleading: I declare that I have not been the subject of any disciplinary (professional) proceedings or convicted of or charged with any indictable offence in any jurisdiction which has not previously been disclosed since my last application for a practising certificate. 1. A copy of the 2015 PC Application is an annexure to Exhibit B. 2. The applicant contends that the respondent lodged an application with the applicant dated 7 April 2015 for a practising certificate for the year ended 30 June 2016 (2016 PC Application) and in that application, the respondent made a declaration to the same effect as that quoted above. A copy of this application is also an annexure to Exhibit B. 3. The applicant contends that by the time of the 2015 PC Application the respondent had been convicted and sentenced by the District Court at Auckland and by the time of the 2016 PC Application, the respondent had not only been convicted and sentenced by that court, but also had had his name removed from the roll by the NZ Tribunal. 4. The applicant's evidence also referred to the fact that the respondent notified the applicant by an email dated 7 May 2015 that he had ceased practising on 1 May 2015 and did not wish to proceed with the 2016 PC Application. 5. Based upon the evidence described above, the applicant's submissions may be summarised as follows: 1. The conduct of the respondent evidences a complete lack of integrity and candour to both MARA and to the Law Society of New South Wales. The respondent omitted the true facts; 2. The requirements for truthfulness on the part of a legal practitioner as a prerequisite to the entitlement to practise are best summarised in the decision of re Davis (1947) 75 CLR 409. Notwithstanding that that case (and others which followed it) deal with admission to legal practice, the applicant submitted that the principles set out in that case relate equally to a legal practitioner seeking the right to practice or some other equal right to accreditation. That is, that the body which is being asked to grant such a right should be fully informed of any issue or issues which might otherwise affect that person's entitlement or, at least, warrant consideration by the professional body. Candour is the critical element. How else can the granting body make a determination as to whether, notwithstanding the conduct which might otherwise need to be considered, the legal practitioner is a fit and proper person to be granted a practising certificate/licence or similar qualifications. A legal practitioner must make such disclosure as would put the regulatory body in the position of considering its position; 3. In the decision of the Court of Appeal in The Prothonotary v Del Castillo [2001] NSWCA 75, Heydon JA said that the prudent and desirable course for persons in the position of the opponent in that case would be to disclose at least the fact of the charge and the acquittal and to offer to supply any further details required. That case concerned a solicitor who had been charged and acquitted prior to the application for admission; 4. The applicant submitted that in this case, the respondent had pleaded guilty to a criminal offence and was subsequently struck off. The applicant submitted that these events represented a fundamental disqualifying factor from the solicitor being entitled to hold the right to practice as either a solicitor or migration agent and which conduct should he have pressed his case for the issue of the appropriate practising certificate, he needed to address. He chose not to do so even in the face of the requirements included in the applications for him to make disclosure; 5. The applicant relied upon the decision in Montenegro v Law Society of NSW [2015] NSWSC 867 in which Campbell J said that: In deciding whether a conviction disqualifies a person from holding a practising certificate, the Council, and the Court, is entitled to consider all of the circumstances attending it. 1. The applicant submitted that the respondent's conduct can only be described as deceitful and lacking the necessary candour required of legal practitioners. 1. The applicant made the following further submissions in support of its contention that the Tribunal ought to find that the respondent has been guilty of professional misconduct: 1. Section 297 of the LPUL provides: 297 Professional misconduct (1) For the purposes of this Law, professional misconduct includes— (a) unsatisfactory professional conduct of a lawyer, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and (b) conduct of a lawyer 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 lawyer is not a fit and proper person to engage in legal practice. (2) For the purpose of deciding whether a lawyer is or is not a fit and proper person to engage in legal practice as referred to in subsection (1)(b), regard may be had to the matters that would be considered if the lawyer were an applicant for admission to the Australian legal profession or for the grant or renewal of an Australian practising certificate and any other relevant matters. 1. Section 298 of the LPUL provides that certain conduct may constitute professional misconduct or unsatisfactory professional conduct. The statutory definition is an inclusive one and one must necessarily turn to the common law for guidance; 2. The common law concept of professional misconduct includes conduct in pursuit of professional activities which would reasonably be regarded as "disgraceful or dishonourable by a professional colleagues of good repute and competency": see The Council Of The New South Wales Bar Association v Sahade [2007] NSWCA 145 at [54] (per Basten JA) which notes the adoption for legal practitioners the test propounded in Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 at [763] for medical practitioners; 3. The wide breadth of the concept of professional misconduct can be observed from the judgment of McClellan CJ in Bechara v Legal Services Commissioner [2010] NSWCA 369 at [44]: there are no fixed categories of professional misconduct. Much depends on whether the conduct falls outside "generally accepted standard[s] of common decency and common fairness". Previous examples of professional misconduct have included wilfully misleading the court (New South Wales Bar Assn v Livesey [1982] 2 NSWLR 231); removing documents in contravention of a court order (Howes v Law Society of the Australian Capital Territory (Supreme Court of ACT, Gallop ACJ, Higgins and Crispin JJ, 23 July 1998, Unreported); permitting conflicts of interest to arise (Law Society of New South Wales v Moulton [1981] 2 NSWLR 736); failing to account for money received (Re Walker; Ex parte Kemp (1887) 3 WN (NSW) 123); misleading a client (Hoshott v Council of the Law Society of New South Wales (Supreme Court of NSW, Meagher, Sheller and Stein JJA, 17 December 1997, Unreported); gross neglect and delay (Legal Practitioners Conduct Board v Hay [2001] SASC 322; (2001) 83 SASR 454); failing to adequately supervise an unqualified clerk (Law Society of New South Wales v Foreman (1991) 24 NSWLR 238); breaching an undertaking given to another lawyer (Wade v Licardy (1993) 33 NSWLR 1); and, in certain situations, criminal and/or personal misconduct (Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279). 1. The applicant also referred to the High Court decision in Kennedy v The Council of the Incorporated Law Institute of NSW (1939) 13 ALJ 563 in which Rich J said that a charge of misconduct was enough if it amounted to grave impropriety affecting professional character and was indicative of a failure either to understand or to practice the precepts of honesty or fair dealing in relation to the courts, clients or the public; and 2. The jurisdiction of the Tribunal in proceedings of this kind is protective, not punitive. As was stated in Law Society of New South Wales v Bannister (1993) 4 LPDR 24 per Shellar JA, the primary consideration of the Tribunal is to protect the public by preventing a person unfit to practice from holding himself or herself out to the public as a legal practitioner in whom members of the public might repose confidence. The Tribunal must also act so as to deter the offender in the future and any other practitioner minded to behave in like manner. This was confirmed in Law Society of New South Wales v Walsh [1997] NSWCA 185 in which it was said that the duty to protect the public is not confined to the protection of the public against further misconduct by the particular legal practitioner, but also extends to protecting the public from similar defaults by other legal practitioners. 1. Finally, the applicant contended that having regard to the seriousness of the alleged conduct, the appropriate order in this matter would be for there to be a recommendation that the respondent's name be removed from the roll. Such an order would be consistent with the cases and principles summarised above. 2. The applicant also submitted that its costs should be paid by the respondent. The applicant referred to Sch 5, cl 23(1) of the Civil and Administrative Tribunal Act 2013. That clause states that the Tribunal must make orders requiring a respondent lawyer whom it has found to have engaged in unsatisfactory professional conduct or professional misconduct to pay costs unless the Tribunal is satisfied that exceptional circumstances exist. Consideration 1. We are of the view that the orders sought by the applicant in the application ought to be made. It is unnecessary to restate the facts. They are clearly contained in the application. In addition, the applicant's submissions are accepted. 2. We are comfortably satisfied to the Briginshaw standard (see Briginshaw v Briginshaw [1938] 60 CLR 336) that the facts contended for by the applicant in the application have been proven to our satisfaction. Accordingly, we find that the respondent's application to MARA and to the Law Society contained information which the respondent knew to be false and misleading. We find that the respondent's conduct in relation to the two MARA applications and the two Law Society applications evidence a lack of integrity and candour and contained information which was untrue, and which the respondent must have known was untrue. 3. We find that the conduct of the respondent constitutes professional misconduct. 4. We accept the submissions of the applicant that given the above findings, the appropriate course is to make the orders sought in the application. Orders are made accordingly. Orders 1. The Tribunal makes the following orders: 1. The Tribunal recommends that the name of the respondent, Minkai Huang be removed from the roll; and 2. The respondent is to pay the costs of the applicant as agreed or assessed. ********** 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: 30 November 2017