Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Law Society of New South Wales v Osman [2018] NSWCATOD 75 Hearing dates: 14 March 2018 Date of orders: 23 May 2018 Decision date: 23 May 2018 Jurisdiction: Occupational Division Before: R Titterton, Principal Member L Pearson, Principal Member B Thomson, General Member Decision: 1. The respondent's name be removed from the roll of local lawyers. 2. The respondent is to pay the applicant's costs as agreed or assessed. Catchwords: PROFESSIONS AND TRADES – Solicitor – principal of incorporated legal practice – attempting to mislead Federal Court of Australia – making of false and misleading representations – purporting to act for five organisations or persons when no instructions to do so – swearing an affidavit knowing or ought to have known to be false - serving an affidavit knowing or ought to have known to be false Legislation Cited: Civil and Administrative Tribunal Act 2013 Legal Profession Act 2004 Legal Profession Uniform Law (NSW) Cases Cited: A Solicitor v Law Society of New South Wales (2004) 216 CLR 253 Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 Bowen-James v Walton (NSWCA, 5 August 1991, unrep) Brett v Solicitors Regulation Authority [2014] EWHC 2974 (Admin); [2015] PNLR 2 Council of the Law Society of New South Wales v Ireland [2017] NSWCATOD 85 Council of the Law Society of New South Wales v Wehbe [2018] NSWCATOD 14 Griffin v Council of the Law Society of New South Wales [2016] NSWCA 364 Health Care Complaints Commission v Sheehan [2016 NSWCATOD 89 Law Society of New South Wales v Bannister (1993) 4 LPDR 24 Law Society of New South Wales v MacKenzie [2003] NSWADT 92 Law Society of New South Wales v Shad [2002] NSWADT 236 Law Society of New South Wales v Walsh [1997] NSWCA 185 New South Wales Bar Association v Cummins (2001) 52 NSWLR 279 Prothonotary v Del Castillo [2001] NSWCA 75 Category: Principal judgment Parties: Council of the Law Society of New South Wales (Applicant) Ms Zenah Osman (Respondent) Representation: Counsel: Mr P A Maddigan (Applicant) Mr J T Johnson (Respondent) Solicitors: Law Society of NSW (Applicant) Abbas Jacobs Lawyers (Respondent) Abbas File Number(s): 2017/00143323 REASONS FOR DECISION Introduction 1. By Amended Application for Disciplinary Findings and Orders filed 9 February 2018, the applicant seeks orders: 1. pursuant to s 562 of the Legal Profession Act 2004 (NSW), that the respondent's name be removed from the roll of local lawyers; and 2. pursuant to s 302 of the Legal Profession Uniform Law (NSW), that the Tribunal recommend that the respondent's name be removed from roll of local lawyers. 1. Grounds (1), (4) and (5) of the Amended Application relate to complaints by Mr Dominic Calabria on behalf of Mr Anthony Elkerton, liquidator of SM Project Developments Pty Limited (in liquidation) under the Legal Profession Act 2004 (Legal Profession Act) that the respondent is guilty of professional misconduct because she attempted to mislead the Federal Court of Australia, made false and misleading representations, and purported to act for some five organisations or persons when she had no instructions to do so. 2. Grounds (2) and (3) relate to complaints by the Law Society of NSW under the Legal Profession Uniform Law (NSW) (Uniform Law) that the respondent is guilty of professional misconduct because she swore an affidavit dated 4 September 2014 that she knew or ought to have known was false, and purported to serve an affidavit that she knew or ought to have known was false. 3. The Tribunal finds the three grounds under Legal Profession Act established, and has decided to order that the respondent's name be removed from the roll of local lawyers. 4. The Tribunal also finds that two grounds are established under the Uniform Law. Were there any utility in doing so, the Tribunal would also have recommended, pursuant to s 302 of the Uniform Law, that the respondent's name be removed from the roll of local lawyers. 5. The respondent is to pay the applicant's costs. 6. The respondent's name is Zenah Osman. In the evidence she is also referred to as Zenah Mehajer, which the Tribunal understands was her name prior to her marriage. Background 1. The Amended Application arises from a complaint on 1 August 2014 made by Mr Dominic Calabria of Bridges Lawyers on behalf of Mr Anthony Elkerton, liquidator of SM Project Developments Pty Limited (the Bridges Complaint), referred to the applicant by the Legal Services Commissioner on 5 August 2014. Mr Calabria alleged that the respondent repeatedly made misrepresentations to Bridges Lawyers and the Federal Court of Australia by asserting that she and/or the Mehajer Law Group Pty Ltd (Mehajer Law Practice) acted for ALM Home Products Pty Ltd, Anping Yan, Base 3D Pty Ltd, Nikee Sawyer and Zhinar Architects Pty Ltd in the matter of SM Project Developments Pty Ltd (in liquidation) (Federal Court of Australia proceedings No. NSD 411 of 2014) (Federal Court Proceedings). The Bridges Complaint relates to Grounds (1), (4) and (5) of the Application, and are to be determined under the Legal Profession Act: Griffin v Council of the Law Society of New South Wales [2016] NSWCA 364. 2. In the course of its subsequent investigation, the applicant initiated a complaint against the respondent on 21 June 2016 (the Society Complaint). The Society Complaint arises from an affidavit sworn by the respondent on 4 September 2014 and served on Bridges Lawyers by email on 5 September 2014. The Society Complaint relates to Grounds (2) and (3) of the Amended Application and are to be determined under the Uniform Law. 3. On 2 November 2017, the respondent filed a Reply to the original Application which had been filed on 12 May 2017. That Reply made many admissions of underlying facts, but also did not admit or denied others. However, those admissions/denials have been superseded by the respondent's appearance at the hearing and her admissions, through her counsel, of all five grounds of the Amended Application and to the particulars thereto. 4. The applicant relied on an affidavit sworn by Anne-Marie Foord on 8 May 2017, filed on 14 February 2018. Annexures to that affidavit confirm that the respondent was admitted as a solicitor on 13 February 2009 and was employed in three legal practices before becoming principal of Mehajer Law Group Pty Ltd from 25 November 2013. 5. Ms Osman was represented at the hearing by Mr J T Johnson of counsel. He indicated that the applicant's written submissions "clearly and properly" put the relevant matters to the Tribunal, and that the respondent admitted all the conduct the subject of the Amended Application and the particulars thereto. He said that Ms Osman admitted "liability" for those acts that were undertaken in her name, or that of the Mehajer Law Practice of which she was the principal, and that she had no excuses. He submitted that she did not currently practise, and had no intention to practise. She still holds a practising certificate which expires at the end of June 2018. 6. We noted that the respondent had not filed any evidence or other materials pursuant to the directions of the Tribunal. That is to say, no explanation of her conduct was provided to the Tribunal prior to the hearing, nor any evidence given demonstrating remorse, insight and understanding, or regret. Nor were any references provided of a professional or even a personal nature (see Health Care Complaints Commission v Sheehan [2016] NSWCATOD 89 at [142]). We indicated that we understood that the applicant would ask the Tribunal to draw adverse inferences against the respondent if she did not give any evidence, particularly evidence that could only come from her. As the Court of Appeal noted in Bowen-James v Walton (NSWCA, 5 August 1991, unrep), if a respondent fails to answer by giving his or her account of the matters charged, there can be no complaint if the Tribunal draws the unfavourable evidentiary inference which absence from the witness box commonly attracts (see Sheehan at [81]). 7. In the circumstances, Ms Osman was called and she gave some brief evidence at the hearing, was cross-examined by the applicant's counsel and asked further questions by the Tribunal. We will refer to this evidence immediately. 8. Ms Osman confirmed that she was no longer practising, and had no intention to practise in the next two years. At the time that the conduct giving rise to the complaints occurred, she was pregnant, having medical issues and was in and out of the office, leaving Mr Ahmed Yaseen "in charge" of her practice. Mehajer Legal Group had no employed solicitors, just her as director. Mr Yaseen is not a lawyer. He was the general manager of SM Project Developments Pty Ltd. 9. The respondent accepts she did not look at what was going on, and should have been more responsible. Mr Yaseen was copying on to her letterhead text sent to him by Mr Dev Menon, and signing off on the letters. She did not give him authority to sign documents in her name. She realised this was happening when the complaint came to her attention. 10. The respondent said that she was negligent in allowing this to happen, and when she found out she told him to leave the office. Ms Osman told the Tribunal that she shared her office with her brother Mr Salem Mehajer and other companies, and that her own office was not secure. She said that another solicitor of the Mehajer Law Practice, Mr Dev Menon, was acting for her brother, and that he was the one that contacted Mr Yaseen to use her letterhead. The affidavit of 4 September 2014 was drafted by Mr Menon, and she did not pay attention to the contents. She was "dragged in" to acting for the creditors; it was not her area of law as she did basic conveyancing. All she knew was that the creditors were to be looked after and she had to use her letterhead. She did not get paid, and all she got was complaints. The incorporated legal practice is not active, and there are no books or records as they have been destroyed. 11. The respondent was also asked why she had not filed evidence in accordance with the Tribunal's directions. She had a number of excuses including "the pressure from the case", her pregnancy, her records being lost, that she had "no excuse" and "what was I going to say"? 12. She was asked by the Tribunal when she had stopped practising, but her equivocal answers (such as that she was "only sending "short emails", and that she did "nothing heavy", by which the Tribunal understands to mean to attend to complicated legal matters) did not assure the Tribunal that she had indeed ceased to practise. As noted, she still in fact holds a practising certificate and is entitled to practise. 13. In cross-examination, the issue of who had told the respondent what to do was explored more fully. Here the respondent's attitude was defensive. She said she knew nothing about the liquidation matters, and that "they needed me and my letterhead. I didn't even get paid. They lied to me". She said that she did not want to act in the matter, as she thought it involved "some sort of dodgy deal". She admitted that she had been "very naïve", negligent and stupid. She said that unfortunately, she "can't do nothing", which we understood to be a statement that she is not able to correct her past wrongs. 14. When asked by the Tribunal what she thought was the appropriate disciplinary outcome, the respondent indicated that suspension of her registration would be appropriate. Findings 1. Given the admissions made at the hearing by her counsel, and the uncontested materials filed by the applicant, and the respondent's oral evidence, the Tribunal makes the following relevant findings. 2. The respondent's name was placed on the Roll of the Supreme Court of NSW on 13 February 2009. 3. The respondent held a practising certificate issued by the applicant from 13 February 2009 to 20 February 2013, 1 July 2013 to 8 November 2013, 25 November 2013 to 30 June 2016, and from 8 July 2016 to the present. 4. The respondent is the principal of the incorporated legal practice known as the Mehajer Law Group Pty Ltd trading as MLG Solicitors from 25 November 2013 to 30 June 2016 and from 8 July 2016 to the present. 5. From 1 July 2012 to 1 December 2015, the respondent was the director, secretary and sole shareholder of the company known as A-Link Technology Pty Ltd (A-Link Technology). 6. On 22 February 2013, Mr Anthony Elkerton of Dean-Willcocks Insolvency Solutions was appointed liquidator (Liquidator) of SM Project Developments Pty Ltd (In Liq) (SMPD) in Federal Court of Australia proceedings NSD 411/2014 (the Federal Court Proceedings). 7. Immediately prior to the First Meeting of Creditors of SMPD held on 29 February 2014, the Liquidator received: 1. Various Proofs of Debt including Proofs of Debt for each of the following persons or organizations: the respondent (the Zenah Mehajer Proof of Debt); A-Link Technology (the A-Link Technology Proof of Debt); ALM Home Products, Base 3D Pty Ltd, Nikee Sawyer and Zhinar Architects Pty Ltd. The Proofs of Debt in respect of the respondent and A-Link Technology were each purportedly signed by the respondent; 2. Various Appointments of Proxy including Appointments of Proxy for each of the respondent (the Zenah Mehajer Appointment of Proxy), A-Link Technology (the A-Link Technology Proof of Proxy), ALM Home Products, Base 3D Pty Ltd, Nikee Sawyer and Zhinar Architects Pty Ltd. The Appointments of Proxy in respect of the respondent and A-Link Technology were each purportedly signed by the respondent. 1. The Liquidator retained Bridges Lawyers and Dominic Calabria acted to advise on certain aspects of the liquidation. 2. About 17 May 2014, upon receipt of the Zenah Mehajer Proof of Debt and the Zenah Mehajer Appointment of Proxy (the Zenah Mehajer Documents) and the A-Link Technology Proof of Debt and the A-Link Technology Appointment of Proxy (the A-Link Technology Documents), the respondent approached Mr Ahmed Yaseen and ascertained that he prepared the Zenah Mehajer Documents and the A-Link Technology Documents, that he signed them, and that he caused them to be lodged with the Liquidator. 3. On or shortly after 17 May 2014, the respondent knew that the Zenah Mehajer Documents and the A Link Technology Documents were forgeries, in that Mr Yaseen had forged her signature and that Mr Yaseen had lodged those documents with the Liquidator. 4. The respondent failed to make any reasonable enquiries as to the whether the Proofs of Debt lodged on behalf of any of ALM Home Products, Base 3D Pty Ltd, Nikee Sawyer and Zhinar Architects Pty Ltd was authentic. 5. By letter dated 26 May 2014, the respondent advised Bridges Lawyers that the Mehajer Law Practice had been retained and that she acted for 16 creditors of SMPD who had submitted Proofs of Debt for the following persons for the following amounts: 1. A-Link Technology, $252,450.00; 2. ALM Home Products Pty Ltd, $87,477.50; 3. Anping Yan, $60,500.00; 4. Base 3D Pty Ltd, $16,500.00; 5. Nikee Sawyer, $42,350.00; 6. the respondent herself, $4,550.00; and 7. Zhinar Architects Pty Ltd, $49,500.00 1. By letter dated 13 June 2014 emailed at 3.41pm, faxed at 3.31pm and addressed to the attention of the respondent, Bridges Lawyers wrote to the Mehajer Law Practice in the following terms: We refer to your letter to us dated 26 May 2014 in which you advised that you have instructions to act on behalf of 16 purported creditors of the Company who have formally lodged proof of debts with our client... 1. By the respondent's letter dated 16 June 2014, emailed at 4.59 pm to Bridges Lawyers, the Mehajer Law Practice advised that it was retained and the respondent acted for some 20 clients including ALM Home Products Pty Ltd, Anping Yan, Base 3D Pty Ltd, Nikee Sawyer and Zhinar Architects Pty Ltd and stated: We again reiterate our position that whilst these are genuine debts my clients do not have the time nor resources to procure the necessary voluminous documentation requests. 1. On 17 June 2014, by letter emailed at 3.36 pm, faxed at 3.31 pm and addressed to the attention of the respondent, Bridges relevantly stated: 'We refer to our letter to you dated 13 June 2014 and to your letter dated 16 June 2014. … As a matter of professional courtesy, we advise you that we have been contacted by a number of persons that you purport to act for who have advised us that you do not act for them, nor have they provided you any instructions in relation to the matters that you have repeatedly represented. This is obviously of great concern. We note that you are a close relative of one of the directors of the Company as well as a creditor of the Company in your personal capacity and an officer of the court. In these circumstances, it is appropriate and part of our client's duties and obligations to press for you to provide the previously requested signed undertakings from your clients. 1. The respondent received the letter dated 17 June 2014 from Bridges Lawyers and failed to take any meaningful action in relation to the advice described in the letter. 2. The respondent either knew that the Mehajer Law Practice was not retained by the 18 alleged creditors besides herself and A-Link Technologies or failed to make any reasonable enquiry as to whether it was retained by them. 3. On or shortly after 25 June 2014, Nikee Sawyer informed the respondent that the signatures appearing on the proof of Debt and Appointment of Proxy bearing her name, were not her signature. 4. The Mehajer Law Practice was not retained by and the respondent did not have instructions to act for: 1. ALM Home Products prior to 26 June 2014; 2. Nikee Sawyer before 26 June 2014; and 3. each of Anping Yan, Base 3D Pty Ltd and Zhinar Architects Pty Ltd at all times. 1. By 1 July 2014 the respondent knew: 1. or ought to have known, whether she or A-Link Technologies was owed money by the Company and so could properly be described as creditors; 2. that at least three of the Proofs of Debt, being those of herself, A-Link Technologies and Nikee Sawyer had been fraudulently created by and submitted to the Liquidator by Mr Yaseen. 1. On 1 July 2014, the respondent appeared in the Federal Court Proceedings before Mr G Segal, Deputy District Registrar, and stated: Good morning, your Honour; Ms Osman appearing for the creditors of SM Project Developments I will read them out Ahmad Ghanb, A-Link Technologies, ALM Home Products Pty Ltd, Amal Mehajer, Anping Yan, Aisha Lee Morph, Base 3D Pty Ltd, Downtown Project Developments Pty Ltd, Fatima Mehajer, GMP Plumbing Pty Ltd, Khadyeh Mehajer, Khaled Mehajer, Moshy Furniture Pty Ltd, Nikee Sawyer, Pacific Building Developments Pty Ltd, Tnxie Group Pty Ltd, W & A Adam Excavation, Zenah Mehajer also known as Zenah Osman, Zhinar Projects Development Pty Ltd and Zhinar Architects Pty Ltd. 1. By email sent at 1.55 pm on 4 August 2014 to Bridges Lawyers and Clamenz Evans Ellis Lawyers, the respondent transmitted her letter dated 1 August 2014, stating We confirm that we no longer act for Base 3D P/L. … I can confirm that we continue to act for the following clients … ALM Home Products Pty Ltd … Anping Yan … Nikee Sawyer ... Zhinar Architects Pty Ltd' 1. At 5.08 pm on 5 August 2014 an email was sent to Bridges Lawyers from the Mehajer Law Practice email address stating relevantly: 'Please note we are yet to receive instruction from our client Zhinar Architects P/l [sic] in respect to the lodgement [sic] of production of documents. Please contact me should you require any further quires [sic]. 1. At 12.24 pm on 8 August 2014 an email was sent to Bridges Lawyers from the Mehajer Law Practice email address stating relevantly: 'We advise that our client Zhinar Architects P/L has terminated our retainer and we cease to act...' 1. By letter dated 25 August 2014, emailed at 3.42 pm to Bridges Lawyers and Clamenz Evans Ellis Lawyers, the respondent advised that she acted for 20 creditors. 2. At the time of writing the 25 August 2014 letter, the respondent: 1. had had no contact with Anping Yan, Base 3D Pty Ltd and Zhinar Architects Pty Ltd; 2. knew she was not retained by Anping Yan, Base 3D Pty Ltd and Zhinar Architects Pty Ltd; and 3. knew that in relation to at least herself, A-Link Technologies and Nikee Sawyer, the Proofs of Debt and Appointment of Proxy were forged by Mr Yaseen and were lodged by him without authority. 1. On 4 September 2014, the respondent as director of A-Link Technology affirmed an affidavit in the Federal Court Federal Court Proceedings in which she stated: 1. I am a solicitor in capacity as a creditor ... 8. I have [no] knowledge of who executed the relevant Proof of Debt on my behalf. 1. On 5 September 2014 the respondent drafted an email, attached to it several documents including an unsworn affidavit and the affidavit of 4 September 2014 and sent the email with attachments to Bridges Lawyers at 4.47 pm. In the respondent's unsworn affidavit the respondent stated that: ... I sent the letter to the liquidator's lawyers requesting for the formal withdrawal of the proofs of debts. I herewith annex and Mark with the letter "A" a copy of the letter. 1. Annexed to the respondent's unsworn Affidavit at "A" was a copy of her letter dated 26 May 2014 to Bridges Lawyers. Consideration of Grounds 1. Given our findings in pars [31], [[39], [40], [41] and [42] above, and given the admissions of the respondent, we find Ground (1) established, that is that the respondent attempted to mislead the Federal Court of Australia, in her statement on 1 July 2014 that she acted for a number of identified creditors of SMPD when she knew or ought to have known that was false. 2. Given our findings in pars [30] and [48] above, and given the admissions of the respondent, we find Ground (2) established, that is that therespondent affirmed an affidavit dated 4 September 2014 that she knew or ought to have known to be false. 3. Given our findings in pars [30], [48] and [49] above, and given the admissions of the respondent, we find Ground (3) established, that is that the respondent purported to serve an affidavit which she knew or ought to have known was false. 4. Given our findings in: 1. pars [33], [24], [44], [45] and [46] above in respect of Bridges Lawyers; and 2. in pars [43] and [45] above in respect of Clamenz Evans Ellis Lawyers, and given the admissions of the respondent, we find Ground (4) established, that is that the respondent made false and misleading representations expressly and in writing to Bridges Lawyers and to Clamenz Evans Ellis Lawyers. 1. Given our findings in: 1. in pars [33], [35] and [40(1)] above in respect of ALM Home Products; 2. pars [33], [35], [40(3]), [42], [43], [47(1)] and [47(2)] above in respect of Anping Yan; 3. pars [33], [35], [40(3)], [42], [43], [47(1)] and [47(2)] above in respect of Base 3D Pty Ltd; 4. pars [33], [35], [40(2)], [42] and [43], above in respect of Nikee Sawyer; and 5. pars [33], [35], [40(3)], [42], [43], [47(1)] and [47(2)] above in respect of Zhinar Architects Pty Ltd, and given the admissions of the respondent, we find Ground (5) established, that is that the respondent, without having instructions, purported to act for each of ALM Home Products prior to 26 June 2014, and for each of Anping Yan, Base 3D Pty Ltd, and Zhinar Architects Pty Ltd at all times. Legal Profession Act grounds: Grounds (1), (4) and (5)) 1. It is appropriate to commence with a consideration of whether, the conduct of the subject of the three grounds of the complaint brought under the Legal Profession Act being established, we are satisfied the respondent is guilty of professional misconduct. Is professional misconduct established? 1. Mr Johnson accepted on behalf of the respondent that findings of professional misconduct were an "inescapable conclusion" following from Ms Osman's admissions. 2. We note that professional misconduct for s 497 of the Legal Profession Act defines "professional misconduct" as including: (1)(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. Section 25 of the Legal Profession Act provides: "25 Suitability for admission (1) In deciding if an applicant is a fit and proper person to be admitted, the Admission Board: (a) must consider each of the suitability matters in relation to the applicant to the extent a suitability matter is appropriate, and (b) may consider any other matter it considers relevant. (2) However, the Admission Board may consider a person to be a fit and proper person to be admitted despite a suitability matter because of the circumstances relating to the matter. 1. Section 42 of the Legal Profession Act provides: "42 Suitability to hold local practising certificate (1) This section has effect for the purposes of section 48 (Grant or renewal of local practising certificate) or any other provision of this Act where the question of whether or not a person is a fit and proper person to hold a local practising certificate is relevant. (2) A Council may, in considering whether or not the person is a fit and proper person to hold a local practising certificate, take into account any suitability matter relating to the person,: 1. The suitability matters referred to are set out in s 9 and include at s 9(1): "(a) whether the person is currently of good fame and character". 1. The principles applicable to such matters were considered recently by the Tribunal in Council of the Law Society of New South Wales v Wehbe [2018] NSWCATOD 14 as follows: 1. at common law professional misconduct includes conduct in pursuit of professional activities which would reasonably be regarded as disgraceful or dishonourable by professional colleagues of good repute and competency (see [315]); 2. the concept of professional misconduct has a "wide breadth", and there are no fixed categories of professional misconduct (at [317]); 3. conduct might amount to professional misconduct even though it does not involve deliberate dishonesty (see [318]); and 4. the reference in 497(1)(b) to conduct justifying a finding that the practitioner is not a "fit and proper person" to engage in legal practice is to be understood as the classification of conduct according to the importance of the standard and the seriousness of the breach rather than a prediction as to the actual order the Tribunal would be likely to make. The reference is to misconduct which would justify a particular finding if established regardless of subsequent rehabilitation or reformation of character (see [318]). 1. It is trite to say that a legal practitioner misleading a court in which she or he appears must be amongst the most egregious misconduct that a legal professional can commit. As was stated in Brett v Solicitors Regulation Authority [2014] EWHC 2974 (Admin); [2015] PNLR 2 at [111]: [M]isleading the court is regarded by the court, and must be regarded by any disciplinary tribunal, as one of the most serious offences that an advocate or litigator can commit. It is not simply a breach of a rule of a game, but a fundamental affront to a rule designed to safeguard the fairness and justice of proceedings. Such conduct will normally attract an exemplary and deterrent sentence. That is in part because our system for the administration of justice relies so heavily upon the integrity of the profession and the full discharge of the profession's duties and in part because the privilege of conducting litigation or appearing in court is granted on terms that the rules are observed not merely in their letter but in their spirit. Indeed, the reputation of the system of the administration of justice... and the standing of the profession depends particularly upon the discharge of the duties owed to the court. 1. The conduct is perhaps even more reprehensible when the practitioner involved offers no explanation whatsoever of the misconduct. The respondent's comment, "I don't even deserve to be here to be quite honest", in many respects, summarises the respondent's attitude to and understanding of the disciplinary complaints brought against her. As noted earlier, the respondent has provided no references of any description, either professional or personal, by which we may be able to judge whether her conduct was perhaps an aberration. Save for her limited oral evidence which we have summarised above, we have no explanation for the respondent's conduct. 2. The fact is that the respondent represented to a Registrar of the Federal Court that she acted for Anping Yan and Base 3D Pty Ltd, in circumstances where she relied on apparent instructions from Mr Yaseen and made no attempt to contact either Anping Yan or Base 3D Pty Ltd. She admits that as at 25 August 2014 (which was after the date of her Federal Court appearance), she had had no contact with either. The applicant Society rightly submits that the respondent was reckless as to the truth or correctness of her statement to the Federal Court, and that such conduct would be reasonably regarded as disgraceful or dishonourable by her professional colleagues of good repute and competency and constitutes professional misconduct at common law: Allinson v General Council of Medical Education and Registration [1894] 1 QB 750. 3. In addition, we find that the misconduct found in Ground (4) also satisfies the definition of professional misconduct pursuant to s 497(1)(b) of the Legal Profession Act being conduct occurring in the practice of law that would, if established, justify a finding that the respondent is not a fit and proper person to engage in legal practice. As was stated by the Administrative Decisions Tribunal in Law Society of New South Wales v MacKenzie [2003] NSWADT 92 at [15]: The proposition that, knowingly, and, in some cases, negligently, to mislead another legal practitioner with respect to a matter significantly relevant to professional business is serious professional misconduct needs no judicial authority. Such conduct undermines one of the foundations of trust that the community has to be able to place in legal practitioners, namely, that what one practitioner says to another in the furtherance of practice can be accepted without question as having been made both truthfully and carefully. It is analogous with, the duty of a legal practitioner to avoid misleading a court, or with the duty to adhere to an undertaking given to another practitioner in the course of legal practice. We could wax eloquent about the consequences of legal practitioners being permitted with impunity to mislead other practitioners but such elementary and fundamental matters do not require to be elaborated, especially to the audience by whom these reasons may be read. 1. Further, the conduct the subject of Grounds (4) and (5) also satisfies the definition of professional misconduct pursuant to s 497(1)(b) Legal Profession Act, being conduct occurring in the practice of law that would, if established, justify a finding that the respondent is not a fit and proper person to engage in legal practice. What order should be made? 1. We consider that the relevant principles were accurately stated by the applicant in its submissions. These were accepted by the respondent's counsel as being applicable and we summarise them as follows. 2. First, where an order for removal from the roll is contemplated, the ultimate issue is whether the practitioner is shown not to be a fit and proper person to be an officer of the Supreme Court upon whose roll the local lawyer's name presently appears: A Solicitor v Law Society of New South Wales (2004) 216 CLR 253 at [15]. 3. Secondly, disciplinary proceedings are concerned with the protection of the public. As was stated by Beazley JA in Law Society of New South Wales v Walsh [1997] NSWCA 185 at [40]: The court's duty to protect the public is not confined to the protection of the public against further misconduct by the particular practitioner who is the subject of the disciplinary proceedings. It extends to protecting the public from similar defaults by other practitioners. Thus, it is relevant to take into account the effect the order will have upon the understanding in the profession and amongst the public of the standard of behaviour required of solicitors. 1. Thirdly, the principles which guide the Tribunal in determining whether the Solicitor's name should be removed from the Roll were summarised by Beazley JA in Walsh at [43], as including: 1. the Tribunal's power is discretionary; 2. subject to considerations which would compel the Tribunal to impose a lesser penalty, the protective nature of the jurisdiction calls for the removal of a practitioner's name from the roll when the practitioner has been found not to be of good fame and character; 3. the subjective considerations which might compel a different course are ones which themselves are relevant to and enhance the essential nature of the Tribunal's jurisdiction, which is the protection of the public. An example is where the legal practitioner has reported the subject conduct to the Law Society or Bar Association. The relevance of mitigating conduct of that type is that it encourages practitioners guilty of misconduct promptly to report it; 4. in general, mitigating factors, such as evidence of a respected reputation, no previously found misconduct, or service to the profession "are of considerably less significance than in the criminal sentencing process": Law Society of New South Wales v Bannister (1993) 4 LPDR 24 at 13. 1. Fourthly, the Tribunal is also entitled to take into account the persistence with which the conduct has been pursued and the degree of candour displayed by the practitioner in the course of the disciplinary hearing: Prothonotary v Del Castillo [2001] NSWCA 75. 2. Fifthly, the Tribunal should not make an order for removal unless persuaded of the respondent's "probable permanent unfitness" for practice; unless the court is so persuaded, the proper order to make would usually be one of suspension or fine instead of removal: New South Wales Bar Association v Cummins (2001) 52 NSWLR 279 at [26] per Spigelman CJ. 3. Sixthly, the question for the Tribunal is present fitness; that is whether it can be satisfied now that the respondent is a person who may properly be held out to the public as a fit and proper person to be entrusted with the duties and responsibilities of a solicitor: Del Castillo at [71]. 4. Applying these principles, we are satisfied that: 1. the respondent is not a fit and proper person to be an officer of the Supreme Court of NSW upon whose roll her name presently appears; 2. there is no evidence of mitigating circumstances for the respondent's conduct; 3. there is no evidence demonstrating any remorse, insight, or understanding by the respondent. 1. In our view, establishment of Ground (1), which is admitted, warrants the removal of the respondent from the local roll. There is no evidence that the Tribunal is able to rely upon in order to find that the respondent has learned and changed so much from her mistakes that she is not likely to engage in further professional misconduct or unsatisfactory professional conduct. When considered together with Grounds (4) and (5), (being the making of false and misleading representations to other legal practitioners and acting without instructions) which are also extremely serious matters, and which are also admitted, the case for removal from the local roll is overwhelming. 2. Our conclusion that the appropriate protective order is removal from the roll, and not the alternatives of suspension, reprimand or fine or other available orders under s 562(2) of the Legal Profession Act, is based on our satisfaction that the attempt to mislead the Federal Court (as accepted in Ground 1), and the making of false and misleading representations to other legal practitioners (Ground 4) in particular fall so far short of the degree of integrity expected and assumed of a legal practitioner that it cannot be said that the respondent is a person who can properly be held out to the public as a fit and proper person to be entrusted with the duties and responsibilities of a solicitor. 3. For these reasons, we are therefore satisfied that the appropriate order is that the respondent's name is removed from the roll of local lawyers. Uniform Act grounds: Grounds (2) and (3) 1. Little need to be said about Grounds (2) and (3), save that they are admitted and we find them both to be established. Again, we are satisfied that each constitutes professional misconduct at common law. As to Ground (2), the false swearing of an affidavit has been held to constitute professional misconduct: Council of the Law Society of New South Wales v Ireland [2017] NSWCATOD 85. 2. In addition, the impugned conduct the subject of Grounds (2) and (3) constitutes professional misconduct within the meaning of s 297(1)(b) of the Uniform Law, being 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. 3. In our view, the conduct so found supports an order recommending the removal of the respondent's name from the roll. However, for the reasons advanced by the applicant, as the Tribunal has found the grounds under the Legal Profession Act established and has ordered the respondent's name to be removed from the local roll, there is no utility in making further orders pursuant to s 302 of the Uniform Law. 4. Costs 5. Section 60 of the Civil and Administrative Tribunal Act 2013 provides that costs may only be awarded if special circumstances are established. However, in this jurisdiction, Sch 5, cl 23(1) of the Civil and Administrative Tribunal Act provides: Despite section 60 of this Act, 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 (including costs of the Commissioner, a Council and the complainant), unless the Tribunal is satisfied that exceptional circumstances exist. 1. We raised this issue at the conclusion of the hearing. The respondent's counsel indicated that the respondent did not wish to make submissions on this matter. 2. Accordingly, the respondent must pay the applicant's costs. Orders 1. For the above reasons, the Tribunal makes the following orders: 1. the respondent's name be removed from the roll of local lawyers; and 2. the respondent is to pay the applicant's costs 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: 23 May 2018