Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Council of the New South Wales Bar Association v McDonald [2019] NSWCATOD 127 Hearing dates: 21 April and 21 May 2019 Date of orders: 22 August 2019 Decision date: 22 August 2019 Jurisdiction: Occupational Division Before: I H Bailey AM SC, Senior Member G Blake AM SC Senior Member M E Bolt, General Member Decision: 1. So much of the Application filed in these proceedings on 12 June 2018 as sought orders in respect of Grounds 1, 2 and 6 are dismissed. 2. Grounds 3, 4 and 5 of the Application filed in these proceedings on 12 June 2018 are varied in the terms in the Instrument of Consent filed on 13 May 2019. 3. A finding that the Respondent is guilty of professional misconduct as set out below: a) The Respondent did not give proper consideration to the effect, or possible effect, on the recipient of an email he sent on 17 June 2014 at 7.11am to Mr Saso Colevski; b) The Respondent drafted and entered into an agreement with Phase 1 Transport Pty Limited to the effect that Mr Saso Colevski had no complaint against the Respondent, before the Respondent would release the file held; c) The Respondent deployed the Notice of Listing he received from the NSW Supreme Court on 7 May 2014 in correspondence with Mr Saso Colevski sent on 7 May 2014 in an inappropriate manner. 4. Pursuant to section 562(2)(e) of the Legal Profession Act 2004 that the Respondent be reprimanded in respect of each finding of professional misconduct. 5. Pursuant to section 562(5) of the Legal Profession Act 2004 that the Respondent make a formal written apology to Mr Saso Colevski for his professional misconduct referred to in subparagraph (3)(a). 6. The Respondent pay the Applicant's costs as agreed or assessed. Catchwords: Disciplinary proceedings against barrister – parties propose consent orders under s 564 Legal Profession Act 2004 – should Tribunal exercise its discretion and make proposed orders or amend or add to the proposed orders – professional misconduct – reprimand and making an apology are appropriate Legislation Cited: Legal Profession Act 2004 (NSW) Legal Profession Uniform Law Act 2014 (NSW) Legal Profession Uniform Law Application Act 2014 (NSW) Cases Cited: Council of the New South Wales Bar Association v Butland [2009] NSWADT 177 Council of the NSW Bar Association v Breeze [2015] NSWCATOD 153 Griffin v The Council of the Law Society of New South Wales [2016] NSWCA 364 Law Society of New South Wales v Foreman [1994] NSW CA 69; (1994) 34 NSWLR 408 Texts Cited: Robyn Carroll, Apologies as a Legal Remedy, [2013], Vol 35:317, Sydney Law Review Lawyers Professional Responsibility – Dal Pont, 5th edition [23.20 Solicitors Manual – The College of Law – Vol 1 [33,060, F/N3 and 4]). Category: Principal judgment Parties: Council of the New South Wales Bar Association (Applicant) Geoffrey David McDonald (Respondent) Representation: Counsel: P Strickland SC with Georgia Huxley for (Applicant) P Boulten SC for (Respondent) Solicitors: Hicksons (Applicant) Sparke Helmore (Respondent) Ms Garling (Legal Services Commissioner) on 21 May 2019 File Number(s): 2018/00181886 Publication restriction: Nil REASONS FOR DECISION 1. On 12 June 2018 the Council of the New South Wales Bar Association (the Applicant) filed in the Tribunal an application for disciplinary findings and orders against Geoffrey David McDonald (the Respondent). 2. The Applicant sought six orders two of which were: 1. Findings that the respondent is guilty of professional misconduct with respect to the conduct contained in any one or more of the Grounds for Application below. Further or in the alternative: 2. Findings that the respondent is guilty of unsatisfactory professional conduct with respect to the conduct contained in any one of the Grounds for Application below. 1. There were six grounds of the application. Each alleged that the respondent in his dealings with a client, Mr Saso Colevski, (the complainant) was guilty of professional misconduct or unsatisfactory professional conduct. Relevant legislation and regulations 1. Mr Colevski had made a complaint to the Legal Services Commissioner on 30 July 2014 which was withdrawn but resubmitted on 10 October 2014. On 16 October 2014 the complaint was referred to the Applicant for investigation. The complaint insofar as it concerned the grounds in this application, was not finalised by the Tribunal before 1 July 2015. These proceedings were commenced after the completion of the investigation. Consequently the general savings provisions in cl 2 of Part 1 of Schedule 4 of the Legal Profession Uniform Law Act 2014 do not apply and cl 3(3) of Schedule 9 to the Legal Profession Uniform Law Application Act 2014 also does not apply. As a result these proceedings are subject to the Legal Profession Act 2004 (the Act), see Griffin v The Council of the Law Society of New South Wales [2016] NSWCA 364 at [63] – [72] and Council of the NSW Bar Association v Breeze [2015] NSWCATOD 153 at [46]. 2. Section 496 of the Act includes in the definition of "unsatisfactory professional conduct: conduct of an Australian legal practitioner 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 Australian legal practitioner 1. Section 497 of the Act includes in the definition of professional misconduct: (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. of the act 1. Section 498(1) of the Act states that particular conduct which is capable of being either unsatisfactory professional conduct or professional misconduct, apart from being a contravention of the Act, may also be a contravention of legal profession rules. The impugned conduct involved in these proceedings occurred during 2014. The legal profession rules applicable at the relevant time are the NSW Barristers Rules dated 6 January 2014. . 2. Rule 12 of NSW Barristers Rules provided that A barrister must not engage in conduct which is: (a) Dishonest or otherwise discreditable to a barrister; (b) Prejudicial to the administration of justice; or (c) Likely to diminish public confidence in the legal profession or the administration of justice or otherwise bring the legal profession into disrepute." Hearing on 23, 24 and 26 April 2019 1. The hearing of the application was fixed by the Tribunal for 23, 24 and 26 April 2019. The evidence and submissions filed by the parties comprised: 1. Agreed Bundle (2 folders) (including Affidavit of Gregory John Tolhurst of 8 June 2019). 2. Outline of Opening Submissions of Bar Council dated 1 March 2019 3. Outline of Opening Submissions of Respondent dated 25 March 2019. 4. Affidavit of Geoffrey McDonald sworn 18 March 2019. 1. At the commencement of the hearing the Tribunal was advised that the parties had been in discussion and that an application would be made to the Tribunal to consider an agreement. Orders were made: 1. Proceedings adjourned to permit finalisation of terms of agreement and obtaining consents. 2. Applicant to prepare and file a Chronology by 13 May 2019. 3. Parties are to deliver to the Tribunal the terms of agreement for approval by 13 May 2019. 1. The consent referred to in Order 1 was that of the Legal Services Commissioner. 2. On 13 May 2019 the Solicitor for the applicant filed in the Tribunal: 1. Instrument of Consent and Agreed Statement of Facts (signed on behalf of the Applicant and by the Respondent). [A final copy of the document including the execution of the Legal Services Commissioner was filed on 21 May 2019]. 2. Chronology (unsigned Word version) Instrument of Consent 1. The Instrument contained the following consent: The NSW Civil and Administrative Tribunal having found that the conduct of Geoffrey David McDonald described under the heading "Grounds of complaint" and particularised in the annexed Agreed Statement of Facts amounts to professional misconduct makes, by consent, the following orders: 1. pursuant to section 562(2)(e) of the Legal Profession Act the Tribunal orders that the Respondent be reprimanded; 2. the Respondent to pay the Applicant's costs as agreed or assessed. 1. The Instrument also contained the following Agreed Statement of Facts: In respect of the following grounds of complaint GEOFFREY DAVID MCDONALD ["the Respondent"] engaged in professional misconduct: Grounds of complaint GEOFFREY DAVID MCDONALD is guilty of professional misconduct as set out below: The Respondent did not give proper consideration to the effect or possible effect on the recipient of an email he sent on 17 June 2014 to Mr Saso Colevski (Alternative Ground 3). The Respondent drafted and entered into an agreement with Phase 1 Transport Pty Ltd to the effect that Mr Saso Colevski had no complaint against the Respondent, before the Respondent would release the file held (Alternative Ground 4). The Respondent deployed the Notice of Listing he received from the NSW Supreme Court on 7 May 2014 in correspondence with Mr Saso Colevski sent on 7 May 2014 in an inappropriate manner (Alternative Ground 5). The Bar Association withdraws the Grounds of Complaint numbered 1, 2 and 6 in its Application filed on 12 June 2018. Agreed Facts 1. Based on the agreed facts below, the Respondent accepts that his conduct has fallen short of the required standard, that he is guilty of professional misconduct and deserving of a reprimand. Background 2. The Respondent was admitted to the Roll of Barristers on 12 November 1993. At the time of the relevant conduct (2014), he held an unconditional barrister's practising certificate and was an Australian legal practitioner within the meaning of s6 of the Legal Profession Act. 3. The Application arises from a complaint made by Mr Saso Colevski to the Legal Services Commissioner on 30 July 2014 which was withdrawn on the same day but re-submitted on 10 October 2014. 4. Mr Saso Colevski and his brother, Mr Robert Colevski ("the Colevskis"), operated a tyre franchise business called Phase 1 Transport Pty Limited ("Phase 1 Transport"). In March 2013 Phase 1 Transport retained the Respondent, on a direct access basis, to advise and commence proceedings against AAMI. Mr Robert Colevski authorised Mr Saso Colevski to provide instructions in relation to the proposed litigation. In June 2013 a solicitor, Mr Simon Beverly, was retained by Phase 1 Transport Pty Ltd to act in the proceedings. 5. In July 2013 proceedings were commenced in the District Court of NSW and in early April 2014 they were transferred to the Supreme Court of NSW. On 21 April 2014 the Respondent provided the Colevskis a reconciliation of outstanding fees which included an amount owing of $3,396 and enclosing an invoice for $36,692. Shortly thereafter, on 29 April 2014, the Respondent's retainer was terminated and the fees remained outstanding. 6. The Respondent retained the documents held by the Respondent in respect of the litigation between Phase 1 Transport Pty Ltd and AAMI ('the File') from 29 April 2014 to 7 August 2014 (when the File was returned to the Colevskis) in order to secure payment of his unpaid professional fees of approximately $40,000. The Respondent believed that he had a right to exercise a possessory lien over the File for the non-payment of fees. 7. Between 29 April 2014 and 7 August 2014 in communications between Robert and Saso Colevski and the Respondent, the Respondent indicated that he would not release the File until his fees were paid. 8. Between 29 April 2014 and 7 August 2014, the Respondent was aware that the litigation between Phase 1 Transport Pty Ltd and AAMI ('the Litigation') was ongoing. 9. In communications between 29 April 2014 and 7 August 2014 the Respondent indicated to the Colevskis and, later, the new solicitor retained by Phase 1 Transport, that the File the Respondent held included relevant and important documents which were required for the Litigation. 10. The Respondent initially believed that the Colevskis may have had some copies of documents in the File, though came to the belief from at least May 2014 that it was unlikely that the Colevskis had retained copies of all the documents in the File. 11. On or around 23 May 2014 the Phase 1 Transport retained a new solicitor, Steve Rogers from Holman Webb in respect of the Litigation. 12. On 7 August 2014 the File was provided to the Colevskis. Agreed Facts – Ground 3 The Respondent did not give proper consideration to the effect or possible effect on the recipient of an email he sent on 17 June 2014 at 7.11am to Mr Saso Colevski. 13. On 17 June 2014 the Respondent sent Mr Saso Colevski an email with the subject line "See what happens if you don't pay your bills" and the body of the email contained a link to a newspaper article about the murder of Mr John Gasovski, an associate of Mr Saso Colevski. 14. At the time the email was sent the Respondent knew Mr John Gasovski was a friend/associate of Mr Saso Colevski and Mr Saso Colevski had referred John Gasovski to the Respondent in his capacity as a Trustee in Bankruptcy, as a result of Mr Gasovski owing over $1 million to creditors. 15. Later on 17 June 2014, the Respondent sent emails to the New South Wales police and provided documents he had about Mr Gasovski. 16. On about 21 June 2014, the Respondent drafted a Statement for the Police in respect of his dealings with Mr Gasovski. 17. At the time the email dated 17 June 2014 to Mr Colevski was sent, Phase 1 Transport owed the Respondent over $40,000 in outstanding fees. 18. The email was sent following earlier correspondence as follows: (a) On 29 May 2014, the Respondent sent an email to Mr Saso Colevski and Mr Beverly "It was good to hear that the case was adjourned, by consent for 6 weeks through to July. This means that, before any real work can be done, your new funder can come on board and pay out the invoices from me and Simon. That makes things far simpler, for all of us. Good Stuff. Regards". (b) On 9 June 2014, the Respondent sent an email to the Colevskis: "Hi Guys Please call when convenient later in the month to discuss the funds, per below. I will be away on holidays as from 27 June. Regards, Geoffrey" 19. At the time the email was sent, the Respondent understood Mr Saso Colevski wanted to obtain the File. 20. The Respondent admits that the words in the subject heading of the email made light of the death of a person known personally to the sender and recipient of the email. 21. The Respondent failed to give proper consideration to the effect or possible effect of the email sent on 17 June 2014 on the recipient or that Mr Saso Colevski could have felt intimidated or threatened by the email. Agreed Facts - Ground 4 The Respondent drafted and entered into an agreement with Phase 1 Transport to the effect that Mr Saso Colevski had no complaint against the Respondent, before the Respondent would release the file held. 22. From 30 July 2014 to 7 August 2014 the Respondent had been told that the Colevskis were anxious to have the File provided to them. - On 31 July 2014 the Respondent emailed Mr Rogers and stated "the message I received is that your client is anxious to resolve the matter"; - On 4 August 2014 the Respondent emailed Mr Rogers and stated: "Thanks for your email It stands in total contradiction to the recent comments of Mr Colevski. I am very concerned at his mental state. I am aware that he has previously attempted suicide and I was warned that he can become very depressed and erratic. I do care about the man. I have been told that he remains anxious to obtain the relevant files in my possession. I am interested in being paid for my hard work. It is now my opinion that your firm is being paid by a litigation funder. In such case, that funder should make some fair and reasonable offer to settle the unpaid accounts of me and Mr Beverly (as supplied to you recently). I am prepared, on a without prejudice basis and in the spirit of compromise, to accept a reduced sum and end all dealings with the clients. Unfortunately, in view of the recent conduct of Mr Colevski and his role as an important witness in the case, I am far less confident that the Plaintiffs will be victorious. The offer of payment out of the spoils of litigation is, in my opinion, not an offer of any payment, particularly after taking into account costs and litigation funding expenses. These liabilities would, as a matter of principle, have to be deferred and some security granted, before I would regard the position as being worth considering. Therefore, as I don't wish to talk directly to your client and you didn't suggest that I make such direct contact, I ask you to obtain instructions on the concepts discussed herein. - On 4 August 2014 Ms Rebecca Ross, an associate of the Respondent told the Respondent that Mr Saso Colevski was "getting anxious" about a response to his proposal to obtain the File. 23. From 30 July 2014 to 7 August 2014, the Respondent was aware that Mr Saso Colevski had raised the prospect of making a complaint to the police and professional bodies regarding the Respondent's conduct namely, his conduct of sending the email on 17 June 2014 and his holding on to the File. 24. On 6 August 2014 the Respondent wrote to Mr Rogers with a proposed agreement based on an "in principle agreement" for the release of the File and payment of his fees that had been reached on 5 August 2014. 25. The agreement included a term under the heading "Release" in the following terms: "Finally, the clients and their directors agree that, whilst retaining rights to have the fees assessed, there is no reason for them to file any complaint regarding any conduct of Simon nor (sic) me and therefore they agree not to do so. Any previous concerns have arisen as a result of a misunderstanding". 26. The Respondent drafted the agreement. 27. The Respondent acknowledges that an impartial observer may consider the inclusion of this clause was an inappropriate restriction on Mr Saso Colevski's right to make a complaint. 28. On 7 August 2014 the File was provided to the Colevskis. 29. On or about 1 October 2014, the next instalment of $5,000 was due to be paid by the Client under the Instalment Agreement and was not paid at that time or at all. 30. Mr Saso Colevski made a complaint to the Legal Services Commissioner on 30 July 2014 which was withdrawn on the same day but re-submitted on 10 October 2014. Agreed Facts – Ground 5 The Respondent deployed the Notice of Listing he received from the NSW Supreme Court on 7 May 2014 in correspondence with Mr Saso Colevski sent on 7 May 2014 in an inappropriate manner. 31. On 7 May 2014 at 11:58am the Respondent received, unsolicited, a Notice of Listing from the NSW Supreme Court in respect of the Litigation ('Notice of Listing'). 32. On 7 May 2014 at 12:02pm (4 minutes later) the Respondent sent an email to the Colevskis attaching the Notice of Listing and stated "Gents, you are going to have trouble dealing with this without the files". 33. At the time the email was sent, the Respondent was aware that Phase 1 Transport and the Colevskis did not have legal representation. 34. The Respondent had previously informed Mr Robert Colevski that he would not release the File until his fees were paid. 35. The Respondent sent the email with the intention of, amongst other things, placing pressure on the Colevskis to pay the outstanding fees. Hearing on 21 May 2019 1. At the adjourned hearing on 21 May 2019 the Applicant sought leave to amend Grounds 3, 4 and 5 and to withdraw Grounds 1, 2 and 6. Variation of Grounds 3, 4 and 5 1. Section 555 of the Act provides for the Tribunal to vary a disciplinary application: 555 Variation of disciplinary application (1) The Tribunal may vary a disciplinary application, on the application of the person who made the disciplinary application or on its own motion, so as to omit allegations or to include additional allegations, if satisfied that it is reasonable to do so having regard to all the circumstances. (2) The Commissioner is to be regarded as the applicant in connection with a disciplinary application for the purposes of an application by the Commissioner under section 545 (1) (i) (Decision of Commissioner on review). (3) Without limiting subsection (1), when considering whether or not it is reasonable to vary a disciplinary application, the Tribunal is to have regard to whether varying the disciplinary application will affect the fairness of the proceedings. (4) The inclusion of an additional allegation is not precluded on any or all of the following grounds: (a) the additional allegation has not been the subject of a complaint, (b) the additional allegation has not been the subject of an investigation, (c) the alleged conduct concerned occurred more than 3 years ago. 1. The variations to the Application, set out in the Instrument of Consent, are considered in sequence. 2. Ground 3 was amended in that original terms of the Ground "The respondent sent Mr Saso Colevski a threatening email on 17 June 2014", were substituted with: The Respondent did not give proper consideration to the effect, or possible effect, on the recipient of an email he sent on 17 June 2014 at 7.11am to Mr Saso Colevski. 1. The Tribunal advised the parties, that whilst it considered that the amendment was, in all the circumstances appropriate, it was of the view that a further acknowledgement by the Respondent of the impact which the terms of the email would have had upon the recipient and an apology, ought also be provided. 2. Ground 4 concerned an agreement, which the Respondent sought that the complainant execute, as to the absence of a complaint by him against the Respondent. The amended terms of Ground 4 were: The Respondent drafted and entered into an agreement with Phase 1 Transport to the effect that Mr Saso Colevski had no complaint against the Respondent, before the Respondent would release the file held. 1. The Tribunal considers that the amended terms of Ground 4 more accurately reflect the evidence concerning the impugned conduct and the varied Ground should be allowed. 2. Ground 5 concerned the deployment of a Notice of Listing received by the Respondent on 7 May 2014 in correspondence with the complainant. The varied terms of Ground 5 were: The Respondent deployed the Notice of Listing he received from the NSW Supreme Court on 7 May 2017 in correspondence with Mr Saso Colevski sent on 7 May 2019 in an inappropriate manner. 1. The Tribunal considers that as with varied Ground 4 the terms of varied Ground 5 more accurately describes the impugned conduct and that the variation should be allowed. 2. The appropriate order is that Grounds 3, 4 and 5 in the Application be varied in the terms within the Instrument of Consent. Withdrawal of Grounds 1. Ground 1 concerned the reliance by the Respondent upon an alleged possessory lien over the files of the complainant's company. The Respondent had retained the client's files to secure payment of unpaid fees, or to encourage an agreement for the payment of the fees. Ground 2 concerned an alleged misrepresentation as to the significance, or importance, of the retained files. Ground 6 concerned a communication with the then solicitor for the complainant's company advising that he had spoken to the police about what he alleged was blackmail by the complainant. 2. The Applicant advised the Tribunal that the agreement to withdraw Grounds 1 and 2 was based upon an express undertaking given to the Applicant by the Respondent to not rely upon an alleged possessory lien in the course of his practice in the future. The Tribunal accepts that the procedure adopted for the resolution of Grounds 1 and 2 were appropriate in the circumstances. 3. The Applicant advised the Tribunal that as a consequence of consultation by the Applicant's counsel and solicitors with the complainant, and advice provided, it was concluded that Ground 6 should be withdrawn. The Tribunal accepts that the withdrawal of Ground 6 is appropriate. 4. The appropriate order is that the Tribunal dismiss so much of the Application filed on 12 June 2018 as seeks orders in respect of Grounds 1, 2 and 6. 5. Apart from the bundles of documents filed by the parties and the Outline of Opening Submissions for the Applicant and the Respondent, the Legal Services Commissioner appeared at the adjourned hearing and written submissions were provided explaining the basis upon which the Commissioner, pursuant to s 564(4) of the Act, consented to the Instrument of Consent. 6. Senior Counsel for the Applicant addressed the Tribunal by reference to the varied Grounds and the Agreed Statement of Facts. 7. Senior Counsel for the Respondent referred to the Respondent's acceptance that his conduct has fallen short of the required standard, and that he is guilty of professional misconduct and deserving of a reprimand. 8. The Tribunal was advised that the Respondent agreed to deliver a communication to the complainant expressing an acknowledgement and an apology, see [42]. Section 564 Orders. 1. Section 564 of the Act deals with Consent Orders and states: 564 Consent orders (1) The Tribunal may, with the consent of the Australian legal practitioner concerned contained in a written instrument, make orders under this Part without conducting or completing a hearing in relation to the complaint. (2) Consent may be given before or after the proceedings were commenced in the Tribunal with respect to the complaint. (3) If consent is given before the proceedings were commenced, the requirement to conduct an investigation of the complaint (whether commenced or not) may be dispensed with, and any investigation of the complaint already being conducted may be suspended or terminated. (4) This section does not apply to consent given by the practitioner unless the practitioner, the Commissioner and (if applicable) the relevant Council have agreed on the terms of an instrument of consent. (5) Without limiting what may be included in the instrument of consent, the instrument is to contain an agreed statement of facts (including as to the grounds of complaint) and may contain undertakings on the part of the practitioner. (6) The instrument of consent must be filed with the Tribunal. (7) Nothing in this section affects the procedures regarding the commencement of proceedings in the Tribunal where consent was given before the proceedings are commenced. (8) If consent was given before the proceedings are commenced, the proceedings are nevertheless to be commenced with respect to the complaint in the same way as if the consent had not yet been given. (9) The Tribunal is to be constituted in the same way as for the conduct of a hearing into the complaint. (10) In deciding whether to make orders under this Part pursuant to an instrument of consent, the Tribunal may make such inquiries of the parties as it thinks fit and may, despite any such consent, conduct or complete a hearing in relation to the complaint if it considers it to be in the public interest to do so. 1. The approach that the Tribunal should adopt when dealing with proposals for consent orders under s 564 of the Act has been given consideration by the Tribunal in a number of cases, including Council of the New South Wales Bar Association v Breeze [2015] NSWCATOD 152. In that case the Tribunal was of the view that the approach of the predecessor to this Tribunal in Council of the New South Wales Bar Association v Butland [2009] NSWADT 177 remains applicable (see Breeze at [20]). 2. In Butland the Tribunal made the following statements: 29. Section 564 (1) and (10) of the Legal Profession Act makes plain that the Tribunal has a discretion whether or not to make orders consented to in an instrument of consent under that section. The Tribunal does not act, nor should it be seen, as merely a "rubber stamp" ….. Nonetheless, the consents of the parties and the Legal Services Commissioner are matters that deserve significant weight. 30. These circumstances are similar to, and some guidance can be derived from, cases where courts exercising regulatory or disciplinary powers are presented with joint submissions by the parties (often including the relevant regulator) as to the appropriate civil penalties and consent orders which they request the Court to make… … 33. If the necessary adjustments to these principles are made to take into account the express statutory regime under s 564 of the Legal Profession Act and the particular nature of the disciplinary powers being exercised by the Tribunal, we believe they provide useful guidance as to the exercise of the Tribunal's discretion in cases such as the present. 1. In Breeze the Tribunal not only considered the question whether the proposed consent orders were within the permissible range, but also, despite their conclusion that they were within the permissible range, whether there were any public interest factors that would cause the Tribunal to conduct and complete a hearing – see [24]. In our view there are no public interest factors in this case that would cause the Tribunal to conduct a complete hearing. Consideration Statement of Agreed Facts 1. The Tribunal considers that the Statement of Agreed Facts appears to be thorough and consistent. There is no reason for the Tribunal to doubt the accuracy of the Agreed Facts and the Tribunal will proceed on the basis that they are accurate. Grounds 1 & 2 1. As noted at [28] that insofar as the Application filed on 12 June 2018 sought orders in respect of Grounds 1 and 2 the Application is dismissed. Ground 3 1. The Tribunal notes that the Agreed Facts concerning the varied terms of Ground 3 at [13-21], place an emphasis upon a failure to "give proper consideration to the effect or possible effect on the recipient of" the email sent by the Respondent to the complainant on 17 June 2014. 2. We are of the view that the conduct referred to at [13-21] of the Agreed Facts means that the Respondent engaged in professional misconduct within the meaning of s 497 of the Act and will make orders accordingly. 3. The Tribunal also notes that as a consequence of the agreement reached under the Instrument of Consent the Respondent was not required to give evidence at the hearing. The Tribunal considered that it would be appropriate for some communication by the Respondent to the complainant, including an acknowledgement of the failure to "give proper consideration to the effect" which the receipt of the email may have had and the making of a formal written apology to the complainant would be appropriate. 4. Senior Counsel for the Respondent stated that since the original submissions the Respondent had made further concessions in the Instrument of Consent, gained insight into his conduct, which he now accepted was seriously wrong and involved professional misconduct. Senior Counsel for the Respondent also advised that the Respondent accepted that the making of a formal written apology to the complainant suggested by the Tribunal was appropriate and would be made. Ground 4 1. The Tribunal notes that this varied Ground concerns the drafting and entry into an agreement between the Respondent and the complainant's company to the effect that the complainant had no complaint against the Respondent, before the files would be released. 2. We are of the view that the conduct referred to at [22-30] identifies conduct which means that the Respondent engaged in professional misconduct within the meaning of s 497 of the Act and will make orders accordingly. Ground 5 1. The Tribunal notes that The Tribunal notes that the Agreed Facts concerning the varied terms of Ground 5 at [31-35], refers to the deployment by the Respondent in an email to the complainant "in an inappropriate manner". 2. We are of the view that the conduct referred to at [31-35] identifies conduct which means that the Respondent engaged in professional misconduct within the meaning of s 497 of the Act and will make orders accordingly. Ground 6 1. As noted at [28] that insofar as the Application filed on 12 June 2018 sought orders in respect of Grounds 6 the Application is dismissed. Should the Respondent make an apology to the complainant? 1. At [19] and [41] reference is made to the Tribunal's advice to the parties that it considered that the Respondent ought to apologise to the complainant for the conduct involved in Ground 3. 2. At [42] the Tribunal referred to the acceptance by the Respondent of the serious nature of his conduct and further that he accepted that the making of a formal written apology to the complainant was appropriate and would be made. 3. There is no express authority under Part 4.8 'Proceedings in the Tribunal' of the Act, for the Tribunal to make an order for an apology to be made. Subsection 562(5), however, permits the Tribunal to make ancillary orders. (5) Ancillary or other orders The Tribunal may make ancillary or other orders, including an order for payment by the practitioner of expenses associated with orders under subsection (4), as assessed or reviewed in or in accordance with the order or as agreed. 1. In the Abstract to her paper Apologies as a Legal Remedy, Sydney Law Review Vol 35:317, Professor Robyn Carroll observed: An apology is an unorthodox legal remedy. Most likely it is also regarded as unsuitable as a remedy in the eyes of many lawyers. Yet we know that apologies are very important to many people, including complainants, litigants and victims of crime and that there has been increasing attention paid by the law to apologies in recent years 1. The making of an apology is recognised as, at least, a means of acknowledging misconduct in a number of areas of the law. An apology by way of a letter to the Court, along with a plea of guilty to minor offences may have an impact upon the penalty imposed by the Magistrate. 2. In defamation proceedings an apology, whilst not necessarily an admission of liability may have a bearing upon the damages imposed. 3. The Tribunal considers that there will be occasions when an apology by a legal practitioner to a complainant will provide some recompense for a person who has been affected by misconduct on the part of the practitioner. The circumstances associated with the delivery of the email referred to in the Agreed Facts for Ground 3 are, in the opinion of the Tribunal one such occasion. 4. The Tribunal notes that the Respondent acknowledges as much and has agreed to apologise. Should the Respondent be reprimanded? 1. The main purpose served by disciplinary proceedings is protective. Disciplinary proceedings aim to protect members of the public from misconduct by lawyers (Lawyers Professional Responsibility – Dal Pont, 5th edition [23.20]). The protection of the public is not confined to the protection of the public against similar defaults by the lawyer in question. It extends also to the protection of the public against similar defaults by other lawyers and has, in this sense, the purpose of publicly marking the seriousness of what the instant lawyer has done (Law Society of New South Wales v Foreman [1994] NSW CA 69; (1994) 34 NSWLR 408 at 441 per Mahoney JA). 2. A reprimand is a serious matter. It marks the disgrace of a member of an honourable profession inherent in the misconduct (Solicitors Manual – The College of Law – Vol 1 [33,060, F/N3 and 4]). 3. In our view a reprimand should bring home to the Respondent and other members of the profession the seriousness of misconduct by practitioners in support of their entitlement to the recovery of fees, and must have regard to the consequences of actions taken by them and to the appropriate means by which members of the profession may seek to recover payment. We are therefore of the view that reprimands are appropriate in this case. Orders 1. The Tribunal makes the following findings and orders: 1. That so much of the Application filed in these proceedings on 12 June 2018 as sought orders in respect of Grounds 1, 2 and 6 is dismissed. 2. That Grounds 3, 4 and 5 of the Application filed in these proceedings on 12 June 2018 are varied in the terms in the Instrument of Consent filed on 13 May 2019. 3. A finding that the Respondent is guilty of professional misconduct as set out below: 1. The Respondent did not give proper consideration to the effect, or possible effect, on the recipient of an email he sent on 17 June 2014 at 7.11am to Mr Saso Colevski; 2. The Respondent drafted and entered into an agreement with Phase 1 Transport Pty Limited to the effect that Mr Saso Colevski had no complaint against the Respondent, before the Respondent would release the file held; 3. The Respondent deployed the Notice of Listing he received from the NSW Supreme Court on 7 May 2014 in correspondence with Mr Saso Colevski sent on 7 May 2014 in an inappropriate manner. 1. Pursuant to section 562(2)(e) of the Legal Profession Act 2004 that the Respondent be reprimanded in respect of each finding of professional misconduct. 2. Pursuant to section 562(5) of the Legal Profession Act 2004 that the Respondent make a formal written apology to Mr Saso Colevski for his professional misconduct referred to in paragraph (3)(a). 3. The Respondent 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: 22 August 2019