Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Council of the Law Society of New South Wales v Jaruwan Tangsilsat [2018] NSWCATOD 138 Hearing dates: 6 August 2018 Date of orders: 20 August 2018 Decision date: 20 August 2018 Jurisdiction: Occupational Division Before: M Schyvens, Deputy President The Hon F Marks, Principal Member E Hayes, General Member Decision: (1) The proceedings are amended to describe the respondent as Jaruwan Tangsilsat. (2) The respondent is found guilty of professional misconduct. (3) The proceedings are stood over to a Stage 2 hearing on 31 October 2018. (4) Liberty to apply in connection with a timetable for preparation for Stage 2 hearing. Catchwords: Legal practitioner – failure to disclose information on application for renewal of practising certificate – held constituted professional misconduct – proceedings stood over for Stage 2 hearing Legislation Cited: Legal Profession Uniform General Rules 2015 (NSW), rr 13, 13(1)(a)-(g) Legal Profession Uniform Law (NSW), ss 45, 45(2), 296-297 Cases Cited: A Solicitor v Council of the NSW Law Society [2004] HCA 1 Prothonotary of the Supreme Court of New South Wales v Montenegro [2015] NSWCA 409 Category: Principal judgment Parties: Council of the Law Society of New South Wales (Applicant) Jaruwan Tangsilsat (Respondent) Representation: Solicitors: L Pierotti (Applicant) Respondent (self represented) File Number(s): 2018/00072556 Publication restriction: Nil reasons for decision Background 1. The applicant, the Council of the Law Society of New South Wales has filed an application for disciplinary findings and orders against the respondent solicitor, Jaruwan Tangsilsat. The first name of the respondent was misspelt in the application. By order made during the course of the hearing we amended the proceedings to reflect the correct name of the respondent. 2. The application alleges that the respondent made a false declaration in her application for renewal of a practising certificate for the 2017/18 year. It was alleged that she failed to disclose that she had been the subject of disciplinary action in another profession or occupation as required by r 13(1)(g) of the Legal Profession Uniform General Rules 2015 (NSW) ("the Rules"). 3. Rule 13 is in the following terms: 13 Consideration of application for grant or renewal of Australian practising certificate (1) For the purposes of section 45 of the Uniform Law, in considering whether an applicant is or is not a fit and proper person to hold an Australian practising certificate, the designated local regulatory authority may have regard to any of the following matters: (a) whether the applicant is currently of good fame and character; (b) whether the applicant is, or has been: (i) an insolvent under administration; or (ii) a director or principal of an incorporated legal practice while the legal practice is or was insolvent; or (iii) a director of a company while the company is or was insolvent; (c) whether the applicant has been convicted or found guilty of an offence in Australia or a foreign country, and if so: (i) the nature of the offence; and (ii) how long ago the offence was committed; and (iii) the applicant's age when the offence was committed; (d) whether the applicant has engaged in legal practice in Australia: (i) when not permitted to do so under a law or previous law of a State or Territory; or (ii) if admitted, in contravention of a condition to which the admission was subject; or (iii) if holding an Australian practising certificate, in contravention of a condition to which the certificate was subject or while the certificate was suspended; (e) whether the applicant has engaged in legal practice in a foreign country: (i) when not permitted to do so by or under a law of that country; or (ii) if permitted to do so, in contravention of a condition to which the permission was subject; (f) whether the applicant: (i) is currently subject to an unresolved complaint, investigation, charge or order under an Australian law relating to the legal profession or under a corresponding foreign law; or (ii) has been the subject of disciplinary action, however expressed, under an Australian law relating to the legal profession, or under a corresponding foreign law, that involved a finding adverse to the applicant; (g) whether the applicant: (i) is the subject of current disciplinary action, however expressed, in another profession or occupation in Australia or a foreign country; or (ii) has been the subject of disciplinary action, however expressed, in another profession or occupation in Australia or a foreign country that involved a finding adverse to the applicant; (h) whether the applicant's name has been removed from: (i) a roll of Australian lawyers, however described or expressed, in any jurisdiction; or (ii) a foreign roll of practitioners; (i) whether the applicant's right to engage in legal practice has been suspended or cancelled in Australia or a foreign country; (j) whether the applicant has contravened, in Australia or a foreign country, a law about trust money or trust accounts; (k) whether, under an Australian law relating to the legal profession or a law of the Commonwealth, a supervisor, manager or receiver, however described, is, or has been, appointed in relation to any legal practice engaged in by the applicant; (l) whether the applicant is, or has been, subject to an order under an Australian law relating to the legal profession or a law of the Commonwealth, disqualifying the applicant from: (i) being employed by, or a partner of, an Australian legal practitioner; or (ii) managing a corporation; (m) whether the applicant is currently unable to carry out satisfactorily the inherent requirements of practice as an Australian legal practitioner; (n) whether the applicant has provided incorrect or misleading information in relation to any application for an Australian practising certificate under an Australian law relating to the legal profession; (o) whether the applicant has contravened a condition of a previous Australian practising certificate under an Australian law relating to the legal profession; (p) whether the applicant has contravened an Australian law relating to the legal profession; (q) whether the applicant has contravened: (i) an order of a court or tribunal made in any proceedings; or (ii) (without limitation) an order of a designated local regulatory authority A Stage 1 hearing 1. The applicant alleges that the respondent is guilty of professional misconduct. This is denied by the respondent who, however, conceded that she was guilty of unsatisfactory professional conduct. Accordingly, the initial matter for consideration is the characterisation of the conduct of the respondent. The respondent asked that these proceedings be confined at this stage to a determination of the characterisation of her conduct. It is not until this has been determined that any consideration can be given to whether any protective orders should be made. The applicant did not oppose this course of action and we agreed during the course of the proceedings that it was appropriate that they should be considered as Stage 1 proceedings, and that a Stage 2 hearing be conducted after our decision has been made available to the parties. The factual matrix 1. The applicant alleges the following background factual matters, which are not in dispute: 1. the respondent was admitted as a solicitor on 13 February 2009 and has held a practising certificate since that date. She has practised as the Principal of a law firm since 1 July 2011; 2. the respondent became registered as a migration agent from 29 May 2009; 3. the Migration Agents Registration Authority ("MARA") suspended the registration of the respondent as a migration agent on 8 May 2017; 4. on 12 May 2017, the respondent submitted an online application for a renewal of her practising certificate as a solicitor by way of electronic transmission forwarded to the applicant; 5. the online application form contained the following question under a heading "Fit and Proper Person"; Is there any matter referred to in rule 13 (1) of the Legal Profession Uniform General Rules 2015 which is applicable to you and which you have not previously disclosed to The Law Society? (see rule 13 (1)) 1. The question contained a hyperlink reference to r 13(1) of the Rules and requested the respondent to select either "Yes" or "No" in response. The respondent replied to this question by selecting "No". 1. The decision of the Professional Standards and Integrity Section of the Office of MARA to suspend the registration of the respondent as a migration agent dated 8 May 2017 was in evidence before us. The Delegate found: 1. that the respondent had demonstrated "disregard of her professional responsibilities" as a migration agent; 2. that the respondent was "not a person of integrity, nor a fit and proper person to provide immigration assistance"; 3. the respondent had engaged in repeated breaches of the Migration Agents Code of Conduct prescribed under Sch 2 of Reg 8 of the Migration Agents Regulations 1998 (Cth); and 4. the respondent had been "unwilling to rectify" her conduct, had "not explained to the Authority how the conduct occurred nor demonstrated an understanding of how her conduct may be a breach of her obligations", and had "failed to properly respond to this complaint" and had not cooperated during the investigation. 1. The Decision of the Delegate noted that the respondent had been registered as a migration agent since 29 May 2009 and had been the subject of complaint during this period. Comment was made that the then current and previous complaint showed that the respondent "lacks an understanding of her professional obligations and lacks sound knowledge of migration legislation resulting in loss to her clients". 2. The Delegate suspended the respondent's registration for a period of 12 months and set a number of conditions which had to be satisfied prior to the suspension being lifted. 3. We must emphasise that we have summarised the matters which concerned MARA in determining to suspend the respondent's registration as a migration agent for the purpose only of identifying matters which must have been in the respondent's mind at the time that she completed the application for renewal of her practising certificate. It is arguable that some of those matters might possibly be relevant to a consideration of the respondent's fitness to practice as a legal practitioner. However, they do not form part of any of the allegations of misconduct made by the applicant in these proceedings and we do not take them into account in any way as forming the basis of any determination concerning the fitness to practice of the respondent. Their consideration is limited, as we have said, in the sense that the respondent must have been aware four days after the date of this decision that findings had been made concerning her fitness to practice as a migration agent. We emphasise also that we do not take into account the findings of the Delegate as proof of the underlying matters to which they refer, but as proof only that such findings were made and of the decision to suspend her registration. The explanations and evidence given by the respondent 1. The respondent filed a Reply document and affidavit and gave oral evidence in the proceedings. In her Reply she said that in giving her incorrect answer in her application to the applicant, she had made "an honest mistake" by not checking all of the provisions of the Rule. Furthermore, at the time that she completed the application she considered herself a fit and proper person to be a solicitor. 2. In her affidavit, the respondent said that she was aware of the decision to suspend her registration as a migration agent on 8 May 2017 and that she had lodged an appeal with the Administrative Appeals Tribunal on 10 May 2017. On 12 May 2017, when she applied for renewal of her practising certificate online she clicked the hyperlink to r 13(1) of the Rules which opened up in a new window on her computer and which displayed only the provisions of rr 13(1)(a)-(f) of the Rules. Presumably, the remaining provisions would be found on the next window and she would have needed to scroll down to access it. She did not proceed to read the remaining provisions of the Rule beyond r 13(1)(f) of the Rules because she had to prepare for a client whom she had to see at 5 PM that day. She said that her answer "no" was given only in response to the provisions of the Rule which she had read. 3. The respondent received a letter on 15 June 2017 from the applicant complaining that she had not made a full declaration in her renewal application. She replied on 19 June 2017 to the effect that she had made an unintentional error, had overlooked r 13(1)(g) of the Rules and said that she had thought the only question was whether she was a fit and proper person. She next received a letter from the applicant dated 10 August 2017 indicating that the Professional Conduct Committee had resolved to commence proceedings alleging professional misconduct on her part and seeking orders that a reprimand together with a fine be imposed as well as a costs order. She was asked to make any further submissions within 21 days. The respondent said that she did not reply because "I thought I have already explained that the declaration was an honest mistake." 4. By way of mitigation the respondent asserted that the applicant would have been informed by MARA of the suspension of her migration agent's licence. She disagreed that the conduct amounted to professional misconduct, and stated that "The question asked for "Fit and Proper Person heading" and declarations are simple question and answer and declaration used for the purpose of renewal practice certificate." Furthermore, she said that her answers were "neither statutory declaration or affidavit sworn under the oath". 5. In oral evidence the respondent confirmed that she had not scrolled onto the next page of the Rule because she was in a hurry and had to see her next client. Furthermore, she had completed applications for renewal over the last eight years, was aware of what she had to declare, and she knew that she was a fit and proper person to practice law because she had no criminal convictions and was not a bankrupt. Professional misconduct – relevant principles 1. The applicant asserted that the respondent was guilty of professional misconduct. The respondent denied that she was so guilty but conceded that she was guilty of unsatisfactory professional conduct. Both these forms of misconduct are defined in the legislation which governs these proceedings namely the Legal Profession Uniform Law (NSW) ("the Uniform Law") as follows: 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. The above definition refers to the definition of unsatisfactory professional misconduct which is found in s 296 of the Uniform Law in the following terms: 296 Unsatisfactory professional conduct For the purposes of this Law, unsatisfactory professional conduct includes conduct of a lawyer occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer. 1. Also of relevance to a consideration of what constitutes professional misconduct for the purpose of these proceedings are the provisions of s 45 of the Uniform Law which deals with the matters that would be considered if the respondent were applying for admission to the Australian legal profession or the grant of renewal of a relevant practising certificate. This section is in the following terms: 45 Prerequisites for grant or renewal of Australian practising certificates in this jurisdiction (1) The designated local regulatory authority may grant or renew an Australian practising certificate only if it is satisfied that the applicant— (a) is an Australian lawyer; and (b) if required by this Law to have professional indemnity insurance—has, or will have on or before the grant or renewal, professional indemnity insurance in accordance with this Law and the Uniform Rules; and (c) has indicated in the application that he or she does not hold (and he or she does not have a current application for) another Australian practising certificate that would be in force concurrently with the certificate whose grant or renewal is sought under this section. Note Section 474(2) contemplates that jurisdictional legislation may fix fees for payment in relation to any function of the Supreme Court, the designated tribunal or a local regulatory authority under this Law or the Uniform Rules. This could, for example, extend to processing an application for a practising certificate. (2) Subject to subsection (4), the designated local regulatory authority must not grant or renew an Australian practising certificate if it considers that the applicant is not a fit and proper person to hold the certificate. (3) In considering whether a person is or is not a fit and proper person to hold an Australian practising certificate, the designated local regulatory authority may have regard to the matters specified in the Uniform Rules for the purposes of this section. (4) A person may be considered a fit and proper person to hold an Australian practising certificate even though the person does not satisfy the requirements for a matter to which the designated local regulatory authority may have regard, if it is satisfied that this action is warranted in the circumstances. Note A person who has been refused the grant or renewal of a certificate is a disqualified person—see the definition of disqualified person in section 6. 1. Of particular relevance is s 45(2) of the Uniform Law which requires consideration of whether the respondent is a "fit and proper person" to hold a practising certificate. 2. Unsatisfactory professional conduct is confined to conduct occurring in connection with the practice of law, which would obviously include the provision of all required information relating to a renewal of a practising certificate. We proceed on the basis that the public would be entitled to expect of a reasonably competent lawyer that he or she would be diligent and careful in providing information required of him or her by the relevant authority relating to renewal of a practising certificate, especially indicative of whether the applicant is a fit and proper person to engage in legal practice. Hopefully, this proposition is so fundamental that it does not require further explanation. We note also in this regard the concession by the respondent that she is guilty of unsatisfactory professional conduct although we acknowledge that such concession does not, per se, constitute a proper basis for a finding of unsatisfactory professional conduct. 3. A consideration of whether the respondent is guilty of professional misconduct will involve a determination of whether there has been either a substantial or a consistent failure by her to reach or maintain a reasonable standard of competence or of diligence. It will also require a determination as to whether the respondent is a fit and proper person to engage in legal practice. 4. For completeness, we acknowledge that any finding which we make must be made consistent with the well-known Briginshaw principles, which for present purposes we shall describe as requiring us to be "comfortably satisfied" to the civil standard concerning any factual matter relevant to a determination. Consideration 1. The determination which we are required to make must have a relevant factual basis. Based on the evidence given in these proceedings, we note that only the respondent was present at the time that she completed the online application for the renewal of the practising certificate. Having regard to the Briginshaw principle, we cannot be comfortably satisfied that the respondent in some way knowingly avoided looking, in particular, at r 13(1)(g) of the Rules which would specifically have required her to make reference to the suspension of her registration as a migration agent and which arguably would have required her to disclose the bases upon which such suspension was made. In the same vein, there can be no suggestion that the respondent was aware of the provisions of this sub-rule and ignored them. Accordingly, the matter must be approached on the basis that the respondent refrained from looking at the remainder of the Rules and in particular at r 13(1)(g). We also approach the matter on the basis that the respondent has not provided any satisfactory explanation or excuse for having failed to look at the remainder of the Rule. Even though she may have been in a hurry to prepare herself for her forthcoming appointment with a client, there is simply no suggestion that she had no time in which to complete her application prior to the closing date for so doing. 2. We conclude that the respondent completed her application without reference to the fact of suspension of her registration as a migration agent and without regard for a consideration of the provisions of the relevant Rule, on the basis that she did not need to look at those provisions, coupled with a mistaken view that all that was relevant was whether she had a criminal conviction or was bankrupt. We are in no doubt that when she completed her application online, the respondent was aware of the fact of her suspension and the reasons therefore. Notwithstanding this, the respondent formed the view that she was in all respects a fit and proper person to practise law. 3. We further conclude that in so completing her application as described above, the respondent acted carelessly, and without a proper and appropriate consideration of all matters relevant to her application. Furthermore, and, significantly, the respondent failed to examine and consider the matters which motivated the Delegate to suspend her registration. She has not demonstrated any insight into or an understanding of the fact that those findings have been made against her, albeit that she rejects them. We add that in the course of the proceedings the respondent informed us that although she had initially instituted an appeal against the decision of the Delegate, she had withdrawn the appeal because she no longer wished to practice as a migration agent. She also said that she now wished to reinstitute the appeal for reasons associated with these proceedings brought against her by the applicant. 4. The respondent must clearly have had the decision to suspend her registration as a migration agent in her mind when she completed the online application for renewal of the registration as a legal practitioner. The decision had been made four days previously, and she had determined to appeal that decision two days previously. The respondent said that she had applied for renewal of her registration as a legal practitioner for many years and was familiar with the information which she had to provide. We do not accept that she could not reasonably have known that the fact of suspension of her registration as a migration agent and the reasons therefore were not relevant to any consideration by the applicant as to whether she was a fit and proper person to have her registration as a legal practitioner renewed. If her failure to disclose these significant matters was the result of blind ignorance, or reckless indifference, this would be indicative of conduct which would indicate that the respondent was not a fit and proper person to be a legal practitioner. In either case the respondent has failed to disclose matters which we find are of significance, not only because they are specifically referred to in the relevant Rule, but because as a matter of general principle they are clearly relevant to an assessment by a regulatory authority of her fitness to have her practising certificate renewed. 5. There is a well-recognised duty of candour to ensure that there is disclosure of all relevant matters when making application for registration as a legal practitioner and when applying for renewal of a practising certificate. An example is provided by the decision of the NSW Court of Appeal in Prothonotary of the Supreme Court of New South Wales v Montenegro [2015] NSWCA 409. The Court ( Meagher JA; Leeming JA; Emmett AJA) said, at [66]; [66] Qualities of honesty and integrity and a preparedness to comply with the law are essential requirements for being a fit and proper person. Their importance in the present context was explained by Spigelman CJ in New South Wales Bar Association v Cummins [2001] NSWCA 284; 52 NSWLR 279 at [19]- [20]: Honesty and integrity are important in many spheres of conduct. However, in some spheres significant public interests are involved in the conduct of particular persons and the state regulates and restricts those who are entitled to engage in those activities and acquire the privileges associated with a particular status. The legal profession has long required the highest standards of integrity. There are four interrelated interests involved. Clients must feel secure in confiding their secrets and entrusting their most personal affairs to lawyers. Fellow practitioners must be able to depend implicitly on the word and the behaviour of their colleagues. The judiciary must have confidence in those who appear before the courts. The public must have confidence in the legal profession by reason of the central role the profession plays in the administration of justice. Many aspects of the administration of justice depend on the trust by the judiciary and/or the public in the performance of professional obligations by professional people. 1. And at [70] to [76] the court said; [70] In such a case at least two considerations arise. The first is referred to by Dixon J in the passage from Re Davis extracted in [8] above. The candidate for admission must have an appreciation of the obligation of candour in relation to any improper conduct and have fulfilled that obligation. It is only if that has occurred that the Court or the admitting authority can be satisfied that the person understands the significance of the deficiencies revealed by the conduct and has undergone a reformation of character in relation to them sufficient to justify a conclusion that he or she is presently a fit and proper person. [71] The reason that is so is explained by White J at [37] in Re Hampton [2002] QCA 129, a case where the applicant for admission had failed to appreciate the need to be frank in his disclosure of past conduct: His failure to disclose his past demonstrates want of understanding of the high degree of trust which the court, of necessity, must repose in a person whom it endorses as a fit and proper person to practise the profession of solicitor. It is his want of understanding of this against the background of his past that raises present doubts about his fitness for practice. [72] The same point was emphasised in Thomas v Legal Practitioners Admissions Board [2004] QCA 407; [2005] 1 Qd R 331, where de Jersey CJ noted at 333: By making candid and comprehensive disclosure of relevant information an applicant demonstrates a proper perception of his or her duty and will thereby seek to demonstrate his or her good character. [73] And McMurdo P said at 335: His lack of disclosure does, however, demonstrate a lack of insight into his serious past misconduct and a lack of understanding of his duty to make full and accurate disclosure to the Board. [74] At this point we record that we are not satisfied that the respondent's failures to make full and frank disclosure were deliberate and designed to mislead the relevant authorities, or reckless in the relevant sense. The respondent denied that his failures were deliberate and the cross-examination did not identify any particular information which it could confidently be concluded he was aware of at a relevant time and deliberately withheld. Whether he was recklessly indifferent to the adequacy of his disclosure was not a topic explored in his cross-examination on behalf of the Prothonotary. [75] In addition the deficiencies in his disclosures were not consistent only with his having decided to provide limited disclosure so as to keep material revealing dishonest or otherwise unsatisfactory conduct from the LPAB or the Law Society. For example, in relation to the October and November 2002 offences, he did disclose that he had given the police a false name, driven whilst his licence was cancelled, and obtained a driver's licence by making a false statement. [76] In our view the respondent's explanations as to why his disclosure was seriously deficient are plausible, and not clearly demonstrated to be untrue. Unfortunately, those explanations do not assist him in relation to the third of the grounds relied upon by the Prothonotary because they support a conclusion that he had no appreciation of the content and importance of his obligation of candour. 1. We also refer to A Solicitor v Council of the NSW Law Society [2004] HCA 1 in the High Court of Australia. The Court (McHugh, Gummow, Kirby and Callinan JJ) said; [30] The Court of Appeal found that this further allegation of professional misconduct was made out. That finding was correct, although the consequences that should follow will require further consideration. In October and November 2000, the appellant was engaged in correspondence with the respondent as to the course it should take in relation to his professional status. Although the specific focus of that correspondence was the conduct of the appellant in 1997, and although the respondent, being unaware of the new allegations, did not ask any questions about them, the appellant's professional obligations to the Law Society required him to disclose facts that were material to the respondent's decision as to what, if any, action to take against him. Giles JA was right to observe that the appellant "succumbed to the temptation of keeping from [the respondent] something clearly relevant to its decisions because he feared that disclosure would be against his interests." It is no excuse that he believed in his own innocence, and that his convictions were ultimately quashed. Frankness required the disclosure of the convictions and sentence, even if he regarded them as unjust, and hoped (or even expected) that they would be overturned on appeal. Furthermore, the appellant's duty of candour in his dealings with the Law Society was a professional duty, and its breach was professional misconduct. It was proper that it should be declared to be such. The appeal against declaration 1(b) must fail. (Citations omitted) 1. It is not necessary that we describe the factual circumstances in the above decision. It is sufficient for present purposes to observe by reference to the above extract that whether or not the respondent believed that the decision of the Delegate and the reasons therefore were justified, her duty of candour required that she disclose the fact of the decision and those reasons, even without reference to the specific provisions of r 13(1)(g) of the Rules. 2. By reference to the above extracts, we conclude that the respondent: 1. did not have an appreciation of her obligation of candour in relation to any improper conduct and; 2. did not fulfil her obligation of candour and thereby demonstrated a want of understanding of the high degree of trust which must repose in a person who asserts that she is a fit and proper person to practise the profession of solicitor; 3. did not understand the significance of the deficiencies revealed by the reasons of the Delegate for the suspension of her registration as a migration agent and thereby demonstrated a lack of insight into her serious misconduct as found and a lack of understanding of her duty to make full and accurate disclosure to the applicant; 4. was recklessly indifferent to the adequacy of her disclosure. 1. Whether our conclusions as to the conduct of the respondent which we have set out above are such that they can be characterised as falling short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer so as to constitute unsatisfactory professional conduct will involve the exercise of a value judgement, and will require us to approach the matter by way of general impression. It is our opinion that the necessity to comply with the duty of candour, which we have described, and the obligations to comply with requirements imposed by the Rules when applying for renewal of a practising certificate, are fundamental to the expectations of the public. Such compliance is basic to the expectations of the public when considering the standard of competence and diligence of a reasonably competent lawyer. We have no hesitation in finding that the conduct of the respondent as we have described it is such that it can be characterised as unsatisfactory professional conduct for the purpose of s 296 of the Uniform Law. The respondent did not argue to the contrary. 2. In the same way a consideration of whether the conduct of the respondent constitutes professional misconduct will be a matter of impression involving the exercise of a value judgement. The definition in s 297 of the Uniform Law refers to a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence. We regard the failure of the respondent to have complied with the fundamental obligations of disclosure in all the circumstances as we have described them, as constituting a substantial failure to both reach and maintain the standard of competence and diligence which we have identified in determining that the respondent is guilty of unsatisfactory professional conduct. Furthermore, the conduct of the respondent as we have described it may be seen as reflecting unfitness to practice law. Whether or not the respondent accepted the findings of the Delegate, and whether or not she intended to institute an appeal to have those finding set aside, their significance is such that there can be no excuse for having failed to disclose them. It beggars belief that even though the respondent failed to have regard to the provisions of r 13(1)(g) of the Rules, she failed to understand that they are matters which went to the heart of her fitness to practice law and needed to be disclosed in any event. They are prima facie matters of significance in the context of fitness to practice as a legal practitioner and should have been regarded as such by the respondent if she had possessed the appropriate insight. These failings constitute professional misconduct. We find accordingly that the respondent is guilty of professional misconduct. The further course of the proceedings 1. Consequent upon the finding of professional misconduct which we have made, the proceedings are stood over for a Stage 2 hearing at 10 AM on 31 October 2018. The respondent should file and serve any evidentiary material upon which she seeks to rely for the purpose of that hearing before 30 September 2018. 2. We expect the parties to reach sensible agreement concerning a timetable for the filing of any evidentiary material by the applicant and by the respondent in response. In the unlikely event that agreement cannot be reached the matter may be relisted before the Presiding Member on short notice pursuant to the liberty to apply which we hereby grant. ********** 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: 20 August 2018