Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Council of New South Wales Bar Association v Kintominas [2018] NSWCATOD 139 Hearing dates: 18 May 2018 Date of orders: 21 August 2018 Decision date: 21 August 2018 Jurisdiction: Occupational Division Before: J O'Meally ADCJ, Principal Member P Durack SC, Senior Member J Schwager, AO, General Member Decision: (1) The Respondent is reprimanded. (2) The Respondent is to pay a fine of $5,000 in respect of the professional misconduct the subject of Ground A of the findings made on 22 November 2017. (3) The Respondent is to pay a fine of $1,000 in respect of the professional misconduct the subject of Ground B of the findings made on 22 November 2017. (4) The Respondent is to pay the Applicant's costs of the proceedings fixed in the amount of $50,000. Catchwords: PROFESSIONAL DISCIPLINE – Legal Profession – Barrister – Disciplinary orders following findings of professional misconduct. Legislation Cited: Legal Profession Uniform Law (NSW) Cases Cited: Council of New South Wales Bar Association v Kintominas [2017] NSWCATOD 167 Council for the New South Wales Bar Association v Quinlivan [2015] NSWCATOD 54 Law Society of New South Wales v Ciampa [1999] NSWADT 13 Law Society of New South Wales v Walsh [1997] NSWCA 185 NSW Bar Association v Meakes [2006] NSWCA 340 Category: Principal judgment Parties: Council of the New South Wales Bar Association (Applicant) Peter Kintominas (Respondent) Representation: Counsel: P Maddigan (Applicant) G McGrath SC and P Macarounas (Respondents) Solicitors: Kennedys (Applicant) File Number(s): 2016/00378771 Publication restriction: None REASONS FOR DECISION Overview 1. These reasons are concerned with the orders that the Tribunal should make following findings by the Tribunal that the respondent barrister was guilty of professional misconduct: Council of New South Wales Bar Association v Kintominas [2017] NSWCATOD 167. 2. As a consequence of those findings, the matter was relisted for a second stage of hearing in relation to the appropriate disciplinary orders to be made. By order of the President made on 18 April 2018 the Tribunal was reconstituted by the appointment of The Hon John O'Meally AM RFD as the presiding member of the Tribunal. 3. For the reasons set out below, we make the orders, ultimately sought by the applicant, save for some adjustment concerning fines to be paid by the respondent and the amount of costs he is required to pay. There was little contest between the parties as to the orders that should be made. The findings of professional misconduct 1. It is unnecessary to repeat in these reasons the detail of the conduct the subject of the findings of professional misconduct which are set out in the above reasons concerning Stage 1 of these proceedings. It is sufficient to record that the conduct was described by reference to Ground A and Ground B of the complaints. 2. The conduct the subject of Ground A was that the respondent misled the Bar Council in two emails he sent to the Deputy Director, Professional Conduct on 12 March 2015 and 30 June 2015. Each of these emails contained false statements about compliance with conditions of his practising certificate. 3. The conduct the subject of Ground B was that the respondent failed to comply with conditions of his practising imposed by the Bar Council on 24 October 2014. These conditions concerned financial conditions concerning tax obligations (and related reporting conditions) and health conditions (and related reporting conditions). Orders sought 1. In its written submissions dated 11 May 2018 the applicant sought orders pursuant to s 302 of the Legal Profession Uniform Law (NSW) (the LPUL) and submitted that the following orders were appropriate: 1. Prior to applying to the Applicant for a practising certificate, the Respondent must provide documentation to the Applicant to demonstrate the following: (a) that he has established a therapeutic relationship with a treating psychiatrist; (b) certification from the treating psychiatrist that he has complied with such clinical advices of the treating psychiatrist as to treatment and/or medication. (c) that, in the opinion of his treating psychiatrist, the Respondent is fit to return to practise as a barrister (and if relevant, whether return to practise should be subject to conditions, and if so, what conditions); (d) he has in operation financial arrangements securing the payment of his taxation obligations; and (e) that he has undertaken 20 hours of face to face continuing professional development activities (as defined by r. 5 of the Legal Profession Uniform Continuing Professional Development (Barristers) Rules 2015 (CPD Rules). 2. Upon demonstrating the matters referred to in paragraph 1 above to the satisfaction of the Applicant, the Respondent may apply to the Applicant for a practising certificate. 3. The Applicant has no obligation to issue a practising certificate to the Respondent. 4. The issue of any practising certificate is subject to Part 3.3 of the Legal Profession Uniform Law (NSW). 5. The Respondent is reprimanded. 6. The Respondent is to pay a fine; and 7. The Respondent must pay the Applicant's costs fixed in the amount of $56,403.36. 1. As referred to in the reasons for the decision concerning the findings of professional misconduct (at [6]), the respondent's application for a practising certificate for the year ended 30 June 2017 was refused by the applicant on the basis of the matters the subject of the first stage of these proceedings. Orders 1 to 4 above were sought in that context. 2. In his Counsels' written outline of submissions dated 15 May 2018, the respondent's concluding submission was: 5. If it is minded to so do in the exercise of its jurisdiction in this case, Mr Kintominas respectfully asks the Tribunal to make the orders proposed by the Applicant, save that he respectfully asks the Tribunal to take account of his circumstances in respect of orders 6 (fine) or 7 (costs). 1. The circumstances that the respondent requested the Tribunal to take into account are set out below. 2. After some debate at the hearing between the Tribunal and Counsel for the applicant, Mr Maddigan, the applicant withdrew the application for Orders 1 to 4 referred to above. 3. At the hearing, Mr Maddigan indicated that $10,000 was the appropriate amount of a fine. Under s 302(l) of the LPUL the maximum fine that the Tribunal can impose is $100,000. 4. As to costs, Mr McGrath SC, who appeared with Mr Macarounas for the respondent, submitted that it was preferable the costs order be for an amount fixed by the Tribunal. He submitted that the amount should be fixed at $45,000. Evidence presented at the hearing 1. At the hearing, the applicant relied upon three affidavits. The first was an affidavit sworn by Philip Alan Selth affirmed on 31 August 2016 which had been received as evidence at the first stage of the hearing. At the time of that affidavit Mr Selth was the Executive Director of the applicant. He deposed to the circumstances concerning the conduct in issue. He also presented evidence concerning the respondent's admission details, including that he was first admitted to the Roll of Barristers (as it then was ) in New South Wales in April 1988 and that he held an unrestricted practising certificate for a lengthy period from 4 July 1989 to 9 July 2010. Mr Selth gave evidence of various financial and medical reporting conditions that were then imposed by the Bar Council on the respondent's practising certificate over the period from 13 August 2010 to 30 June 2016. 2. The conditions imposed on the practising certificate for the year ended 30 June 2016 are set out in the reasons concerning the findings of professional misconduct (at [4]). 3. The second affidavit was an affidavit affirmed on 10 May 2018 by Gregory Tolhurst. Mr Tolhurst is the current Executive Director of the applicant. This affidavit proved that the respondent had been reprimanded on two occasions by the Bar Council prior to the present disciplinary proceedings against the respondent. 4. Those two reprimands were issued on 24 October and 27 November 2014, respectively. They related to complaints by the Bar Council of various breaches of conditions attached to the respondent's practising certificates which occurred in 2012, 2013 and 2014. The breaches concerned reporting obligations to the Bar Council and reporting and payment obligations to the Australian Taxation Office. 5. The third affidavit was an affidavit sworn by Jennifer Gai Bicknell on 17 May 2018. Ms Bicknell was the solicitor with day to day conduct of the matter for the applicant. She deposed that the likely assessed costs would be in the amount sought in Order 7 above in the event of an order being made for the respondent to pay the applicant's costs of the proceedings on an ordinary basis. 6. The respondent adduced documentary evidence as to his current financial circumstances. 7. The respondent also relied upon favourable character evidence from three members of the legal profession. First, there was an affidavit from Waldemar Abramowicz, a solicitor, sworn on 17 May 2018. Next, there was an affidavit from Elias Khouzame, a solicitor, sworn on 17 May 2018. Finally, there was a letter from Phillip Strickland SC signed on the day of the hearing. 8. Mr Khouzame also gave some short oral evidence at the hearing as to his knowledge of the previous reprimands and the professional misconduct and he was, briefly, cross-examined. 9. The thrust of much of the character evidence was that the respondent was a careful, diligent and highly skilled criminal barrister who was very attentive to the needs of his clients and earned their respect. Each had read the reasons for decision in respect of the findings of professional misconduct and each gave evidence that indicated that in their view the conduct was out of character. Only Mr Khouzame addressed the impact on his evidence of knowledge of the two previous reprimands. The applicant's submissions 1. The applicant's written submissions included that: 1. The Tribunal had made findings that the respondent was guilty of professional misconduct in respect of two grounds of complaint. Ground A was concerned with misleading the respondent in two emails sent to the Deputy Director, Professional Conduct on 12 March 2015 and 30 June 2015. Ground B was concerned with a failure to comply with conditions imposed on the respondent's practising certificate on 24 October 2014. 2. The Tribunal had found that the misleading conduct the subject of Ground A involved a grave departure from the standards expected of a practitioner dealing with his or her professional association and that: [50] … the behaviour of the respondent points to a lack of integrity and weaknesses of character of a serious kind. While his misconduct was not nearly as egregious as that seen in some of the cases involving non-compliance by barristers with taxation obligations and conditions imposed by the Bar Council (most notably, Cummins), his failures remain very serious ones. 1. The Tribunal had found that whilst the respondent's conduct the subject of Ground B was less serious than that the subject of Ground A: [59] … the respondent's failure to comply with conditions of his practising certificate is, for present purposes, a more serious matter than the failure to meet the quarterly tax payment obligations involved in this case. [63] … This is not an instance of a one-off or isolated contravention, which might not justify an adverse disciplinary finding. There was a series of contraventions and, as we have said, which occurred over a number of months. 1. Also in relation to Ground B, the Tribunal had found as follows: [70] … We do not see the conduct particularised in Ground B as sufficient to justify a finding based on s 297(1)(b) of the Act, which refers to conduct that demonstrates that the 'lawyer is not a fit and proper person to engage in legal practice'. The contraventions belonged, we acknowledge, to a confined period of time, and so far as his tax obligations were concerned they involved amounts which were not large and he did, by the payment of 13 July 2015, bring himself into a state of compliance. 1. The respondent had been subject to disciplinary orders on two occasions before the present application. Each of these consisted of reprimands under s 540 of the Legal Profession Act 2004, the predecessor to the current legislation. The reprimands were issued for failing to comply with conditions of his practising certificate. They were issued on 23 October 2014 and 27 November 2014. 2. Notwithstanding the serious nature of the complaints established against the respondent, the appropriate order may not be a recommendation for removal from the Roll. In this regard, reference was made to the decision in Council for the New South Wales Bar Association v Quinlivan [2015] NSWCATOD 54 in which the Tribunal did not make an order removing the barrister's name from the Roll. It was pointed out that the Tribunal in this case had found that the respondent's conduct was not nearly as egregious as was found to have occurred in Quinlivan. 3. A reprimand was a serious matter. It marked the disgrace of a member of an honourable profession inherent in the misconduct. 4. The purpose of imposing a fine, and the quantum of the fine, was to mark the Tribunal's disapproval of the respondent's conduct. 1. In oral submissions, Mr Maddigan referred to: 1. The decision of the Administrative Decisions Tribunal in Law Society of New South Wales v Ciampa [1999] NSWADT 13 which he submitted was a comparable decision concerning the imposition and quantum of a fine. This was a case in which a fine of $10,000 was imposed in addition to a reprimand and a period of suspension from practise for professional misconduct in failing to comply with conditions of a practising certificate and attempting to mislead the Law Society in its investigation. 2. The two previous reprimands of the respondent to which we have referred above. 3. The fact that no affidavit from the respondent had been supplied which he submitted was adverse to the respondent. We agree with that submission. In this regard, Mr Maddigan referred to the judgment of Tobias JA in NSW Bar Association v Meakes [2006] NSWCA 340 at [70], and [76] – [78] where reference was made to the expectation that the legal practitioner will provide some explanation of their conduct. Mr Maddigan submitted, and we agree, that it was an unsatisfactory consequence that the Tribunal had no real insight into the reasons for the conduct in issue. 4. The seriousness of the conduct. The respondent's submissions 1. The respondent did not comply with the direction to file and serve any evidence and his written outline of submissions by 13 April 2018. 2. Instead, on the day of the hearing, the respondent provided an outline of submissions which included that: …. [2] Mr Kintominas agrees the orders proposed by the Applicant in its Submissions of 11 May 2018 at [3] are appropriate. [3] Matters, facts and circumstances upon which Mr Kintominas seeks to rely in respect of the Tribunal's determination of stage 2 are: a) At the hearing on 11 September 2017: i) Mr Kintominas did not contest any of the facts recited by the Applicant in Ground A or Ground B of the complaint (Judgment, at [11]), admitting all particulars (Judgment, at [21] and [24]-[26] respectively). ii) Through his counsel, Mr Molomby SC, he conceded the conduct set out in Ground A justified a finding of professional misconduct (Judgment, at [12]) and unreservedly admitted to all matters concerning Ground B (Judgment, at [52]) (which was found to be professional misconduct). b) In his email to the Applicant on 29 July 2015, Mr Kintominas admitted that he had made dishonest statements to the Applicant and matters in his March and June 2015 emails were untrue (Judgment, at [18]). c) Though he had not attended to his tax obligations when he said he had done so he did attend to them on 13 July 2015, which were late payments due on 28 October 2014) ($1,276.00), 3 March 2015 ($3,224.00) and 28 April 2015 ($3,571.00) (Judgment, at [30] and [39]); the said amounts of his tax obligations are set out at Tab 15, page 43 of exhibit PAS-1. d) Mr Kintominas acknowledges his acts or omissions over many months were dishonourable, disgraceful and a grave departure from standards expected of a legal practitioner. He accepts the Tribunal's conclusions as to his conduct in the Judgment at [47]-[50] (concerning Ground A) and at [53], [54], [59], [63], [69] and [70] (concerning Ground B). e) This honourable Tribunal has found that Mr Kintominas' conduct was of a lesser dimension or not nearly as egregious as that it considered in Council of the New South Wales Bar Association v Quinlivan [2015] NSWCATOD 54 (Judgment, at [35]). f) In Mr Kintominas' case, there were no complaints of his practice competence (Judgment, at [36]). g) He has not engaged in practice as legal practitioner nor been permitted to do so since August 2016. h) At the time of the acts or omissions constituting the professional misconduct found against him, Mr Kintominas was subject to conditions on his Practicing Certificate recognising inter alia matters affecting his capacity to manage his affairs and requiring medical treatment (ie. conditions 4-6, set out in the Judgment at [4]). [4] Mr Kintominas respectfully asks this honourable Tribunal to accept his remorse and contrition. CONCLUDING MATTERS [5] If it is minded to so do in the exercise of its jurisdiction in this case, Mr Kintominas respectfully asks the Tribunal to make the orders proposed by the Applicant, save that he respectfully asks the Tribunal to take account of his circumstances in respect of orders 6 (fine) or 7 (costs). 1. In oral submissions at the hearing, Mr McGrath SC submitted that the material adduced concerning the respondent's financial position indicated that the respondent had no readily available funds to pay any fine or costs and that the most likely source of payment would be from the sale of the family home. Mr McGrath SC also pointed to the evidence showing modest amounts of income earned by the respondent. 2. We have considered the documentary evidence that was presented to the Tribunal. Ultimately, Mr Maddigan indicated that the applicant took no issue with the essence of the position concerning the financial position of the respondent as described by Mr McGrath SC, albeit that this was based upon evidence that was less than comprehensive. In the circumstances, we accept as correct the submission made by Mr McGrath SC concerning the financial position of the respondent. Conclusions as to disciplinary orders 1. We have decided that the orders that should be made are as follows: 1. The Respondent is reprimanded. 2. The Respondent is to pay a fine of $5,000 in respect of the professional misconduct the subject of Ground A of the findings made on 22 November 2017. 3. The Respondent is to pay a fine of $1,000 in respect of the professional misconduct the subject of Ground B of the findings made on 22 November 2017. 4. The Respondent is to pay the Applicant's costs of the proceedings fixed in the amount of $50,000. 1. We accept that a reprimand, in combination with the imposition of fines, is appropriate. We have considered all of the matters referred to above. We consider the following to be most pertinent: 1. The jurisdiction of the Tribunal in disciplinary matters is exercised to protect the public, not to punish the practitioner. 2. In connection with this protective purpose, the Tribunal must be concerned with the maintenance of high professional standards within the legal profession and also with the effect that orders will have, not only upon the practitioner, but also upon the understanding in the profession and amongst the public of the standard of behaviour that is required: see per Beazley JA in Law Society of New South Wales v Walsh [1997] NSWCA 185 at [40]. 3. The conduct the subject of Ground A of the findings of professional conduct is the most serious of all of the conduct in issue and conduct of that nature has the potential to have an adverse impact upon the ability of the Bar Council to carry out its functions in the interests of the public. 4. The finding of professional misconduct itself seriously reflects upon the respondent's professional reputation. 5. The Tribunal determined that the respondent's conduct was not as egregious as that which occurred in Quinlivan and yet in that case no order was made removing the practitioner's name from the Roll. 6. Should the respondent apply for a practising certificate in the future it will be open to the applicant to assess the respondent's fitness to practise at such time based upon then current information concerning the respondent's circumstances. 7. No issue has been taken by the respondent about the seriousness of the findings made against him. 8. The respondent had a lengthy, unblemished record of practise from 1988 to 2010. 9. The conduct in issue did not concern the respondent's supply of services to clients. 10. The fines mark the Tribunal's disapproval of the respondent's conduct. In this regard, a distinction has been made between the amount of the fine imposed in respect of Ground A and that imposed in respect of Ground B. This is because of the greater seriousness of the conduct the subject of Ground A. 11. Nevertheless, the total of the fines is less than the single amount sought by the applicant. This is because of the size of financial burden falling upon the respondent given the costs order we make referred to below and having regard to the respondent's financial position referred to in these reasons. 1. As to costs, we have already mentioned that both parties prefer that we make an order fixing the costs. This seems to us to be an efficient and convenient course to take, particularly, in circumstances where we have the benefit of helpful evidence from Ms Bicknell as to the actual costs incurred and as to the likely assessed costs and where the parties are not all that far apart as to the amount of costs the respondent should be ordered to pay. 2. We do not think that the costs should be reduced to the amount of $45,000 as sought by the respondent. In this regard, we note that there was no direct challenge by competing evidence or cross-examination to Ms Bicknell's opinion. We also note that Ms Bicknell's figures include a reduction to 66% of solicitor billed and unbilled costs and a reduction of 10% of barrister billed and unbilled fees. These percentage reductions are the maximum reductions in the range of reductions that according to Ms Bicknell's training and experience could be expected in a costs assessment. 3. On the other hand, we note that Ms Bicknell is not a costs assessor and that the opinion she has provided is not based upon a detailed breakdown of the costs incurred having regard to an itemisation of the work done by the solicitors. In the circumstances, we have decided that the amount of the costs order should be $50,000. ********** 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: 21 August 2018