Legal Services Commissioner v Livers [2019] NSWCATOD 180
NSW Caselaw
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Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Legal Services Commissioner v Livers [2019] NSWCATOD 180
Hearing dates: 20 and 21 June and 15 October 2019
Date of orders: 27 November 2019
Decision date: 27 November 2019
Jurisdiction: Occupational Division
Before: The Hon F Marks, Principal Member
P Moran, Senior Member
J Schwager AO, General Member
Decision: (1) The proceedings are stood over to a date to be fixed by the Registrar for a Stage 2 hearing to determine whether and what if any protective orders should be made and to determine whether a costs order should be made.
Catchwords: LEGAL PRACTITIONER – application for legal funding on behalf of client – allegations that practitioner had altered date of audiogram, had created client statement that was false and that application form was misleading all to secure funding – circumstantial evidence – held allegations proven to Briginshaw standard – finding of professional misconduct – proceedings stood over for stage 2 hearing and costs
Legislation Cited: Legal Profession Act 2004 (NSW)
Workers Compensation Act 1987 (NSW)
Cases Cited: Allison v General Council of Medical Education and Registration [1894] QBD 750
Chamberlain v The Queen (No.2) [1984] HCA 7; (1984) 153 CLR 521
Livers v Legal Services Commissioner [2018] NSWCA 319
Murphy v Farmer [1988] HCA 31; (1988) 165 CLR 19
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66
Category: Principal judgment
Parties: Legal Services Commissioner (Applicant)
Peter James Livers (Respondent)
Representation: Counsel:
T L Wong SC (Applicant)
S Prince SC and E Olivier (Respondent)
Solicitors:
Office of the Legal Services Commissioner (Applicant)
Moray & Agnew (Respondent)
File Number(s): 2016/00378739
Publication restriction: Nil
REASONS FOR DECISION
1. These proceedings are constituted by an Application for Disciplinary Findings and for the making of protective orders brought by the applicant The Legal Services Commissioner against the respondent solicitor Peter James Livers.
2. The orders sought as contained in the Application are in the following terms;
The Applicant seeks the following order/s:
1. A finding that the Respondent has engaged in professional misconduct.
2. In the alternative, a finding that the Respondent has engaged in unsatisfactory professional conduct.
3. The Respondent's name is removed from the roll of lawyers.
4. In the alternative, the Respondent is publicly reprimanded.
5. Further, and in the alternative, the Respondent is fined.
6. The Respondent is to pay the costs of and incidental to the filing and hearing of this Application.
7. Such further or other orders as the Tribunal sees fit.
1. The basis of the proceedings is that in the course of his practice as a solicitor the respondent applied for legal funding to assist a client in making a workers compensation claim, and that in doing so he misconducted himself, in that in order to obtain a grant of funding, he furnished incorrect information to a government instrumentality which provided that funding. The particulars of the misconduct as set out in the Application are as follows;
GROUNDS FOR APPLICATION (INCLUDING PARTICULARS)
Ground 1: Misleading and/or attempting to mislead the WorkCover Independent Review Office ("WIRO") to obtain a grant of funding by:
1.1 Altering the date on an audiogram dated 1 March 2012, to read 1 March 2014.
1.2 Drafting and relying on his client's statement dated 1 March 2014, which he knew was false, or he was recklessly careless as to whether or not the statement was false, in a material particular namely that his client did not make a claim earlier for hearing aids.
1.3 Preparing and / or relying on an application for an ILARS Grant dated 19 September 2014, which contained material omissions and/or false assertions.
Particulars
The claim made in 2012
1. In or about 2012, the Respondent was retained by Zouhair Souaid on a claim for industrial deafness arising from Mr Souaid's work.
2. On about 1 March 2012, Mr Souaid signed a statement prepared by the Respondent for his claim. In that statement, Mr Souaid stated that:
2.1 He had worked at North Sydney Tafe from 1985 until 2008.
2.2 He did not make a claim earlier as he was not aware he had industrial deafness until a friend of his introduced him to the Respondent who arranged a hearing test.
3. On or about 19 March 2012, Dr S. Stylis provided a report to the Respondent's law practice, Slattery Thompson, for the purpose of Mr Souaid's claim. The report, titled "Permanent Impairment Assessment & Treatment Recommendations. Industrial Deafness" ("the first report"), relevantly stated that:
3.1 Dr Stylis assessed Mr Souaid's impairment, due to industrial hearing loss only, at 11% of whole person impairment.
3.2 The assessment was based on consideration of the medical history and a physical examination of Mr Souaid and on the characteristics of an audiogram performed on Mr Souaid on 1 March 2012.
3.3 Dr Stylis recommended the fitting of hearing aids.
4. The Respondent subsequently lodged an application with Allianz Australian Insurance ("the insurer") on behalf of Mr Souaid. The covering letter, dated 22 March 2012:
4.1 Enclosed a copy of the first report.
4.2 Claimed compensation under section 66 and 67 of the Workers Compensation Act (NSW) 1987 for 11% whole person impairment and the cost of the manufacture and the fitting of hearing aids as section 60 expenses.
4.3 Enclosed an Industrial Deafness – Notice of Injury Form 1.
5. By letter dated 26 April 2012, the insurer denied liability for Mr Souaid's claim for permanent impairment for industrial deafness and the provision of hearing aids.
6. On or about 4 July 2012, the Respondent lodged an Application to Resolve a Dispute with the Workers Compensation Commission.
7. On 11 June 2013, the Workers Compensation Commission made orders by consent in the matter, including a direction that the matter be referred back to the Workers Compensation Commission following the issue of a Medical Assessment Certificate to determine the question of whether hearing aids were reasonably necessary and as to the question of section 67 entitlements.
8. On 8 November 2013, the Workers Compensation Commission determined the dispute by making consent orders, including orders that Mr Souaid's employer, ISS Facility Services (NSW) Ltd, pay Mr Souaid the sum of $15,400 in relation to an 11% whole person impairment in respect to loss of hearing and $5,000 in respect to section 67 for pain and suffering.
9. By letter dated 20 January 2014 to Stephen Lee Legal solicitors for the insurer, the Respondent sought the insurer's agreement to the provision of hearing aids to Mr Souaid, failing which the Respondent would re-list the question of hearing aids for determination.
10. In or about February 2014, the Respondent prepared a statement for Mr Souaid, which he (Mr Souaid) signed on 1 March 2014, and which stated that:
10.1 Mr Souaid did not make a claim earlier for hearing aids as he was not aware he had industrial deafness until a friend of his introduced him to the Respondent who arranged a hearing test.
10.2 Mr Souaid had not been fitted with hearing aids before.
11. The statement referred to in particular 10 was an identical copy of the statement referred to in particular 2, with hand written amendments made by the Respondent. Mr Souaid initialled some of those handwritten amendments.
12. Following re-listing of the proceedings as referred to in particular 9, on 6 May 2014 the Workers Compensation Commission made an order by consent as a result of Mr Souaid's election to discontinue the Application to Resolve a Dispute relating to the claim for hearing aids. The need to file a Notice of Discontinuance was dispensed with.
The Application for ILARS Grant with WIRO
13. On or about 19 September 2014, the Respondent, on behalf of Mr Souaid, lodged an application for an ILARS Grant with WIRO ("the Application").
14. The Application was signed by the Respondent on 19 September 2014. Attached to the Application and forming part of the Application were documents described as:
14.1 "Dr Stylis' Audiogram" (purportedly dated 1 March 2014), and
14.2 "Statement of Zouhair Souaid" dated 1 March 2014.
15. The Application including the attachments contained the following statements, each of which the Respondent knew was false, or the Respondent was recklessly careless as to whether or not the statements were false, in a material particular:
15.1 Mr Souaid had not made a claim prior to 19 June 2012 relating to the injury the subject of the Application – answer to question 3, page 1 of the Application.
15.2 Mr Souaid's current employer was North Sydney Tafe – answer to Part A question 3 and Part B question 2 of the Application.
15.3 There was no dispute with the insurer – answer to Part B question 1 (c) of the Application.
15.4 No dispute had been notified to the insurer – answer to Part B question 1(d) of the Application.
15.5 Proceedings had not been filed in the Workers Compensation Commission – answer to Part B question 1 (e) of the Application.
15.6 This was a preliminary investigation – answer to Part C question 1 (a) of the Application.
15.7 Mr Souaid wanted to apply for hearing aids only – answer to Part C, question 1(b) of the Application.
15.8 There had not been any past section 66 / 67 claims or payments – answer to Part C, question 3(a) of the Application.
15.9 No prior claims for industrial deafness had been made – answer to Part C, question 3(g) of the Application.
15.10 A recent audiogram from a qualified audiologist was attached – answer to Part C, question 3(g) of the Application.
15.11 No prior claims for industrial deafness had been made – answer to Part C, question 5(e) of the Application.
15.12 A recent audiogram from a qualified audiologist was attached – answer to Part C, question 5(e) of the Application.
15.13 The audiogram attached to the Application was purportedly dated 1 March 2014.
15.14 Mr Souaid had not made a claim earlier for hearing aids as he was not aware he had industrial deafness until a friend of his introduced him to the Respondent who arranged a hearing test – paragraph 7 of the statement of Mr Souaid dated 1 March 2014 (being one of the attachments.)
16. The Audiogram referred to in particulars 14 and 15.13 was an identical copy of the Audiogram referred to in particular 3, however the Respondent altered the date to read "1.3.14".
17. The Respondent certified on 19 September 2014 that the contents of the Application were true and correct and the Respondent was not aware of any other relevant material subject to the Application for an ILARS grant.
18. The statements in the Application set out in particular 15 were false and / or misleading.
19. On or about 24 September 2014, WIRO issued a letter of approval for funding in respect of a preliminary investigation into Mr Souaid's claim for workers compensation as a result of hearing loss.
20. On or about 23 October 2014, Dr S. C Stylis provided a report to the Respondent's law practice, Slattery Thompson, for the purpose of Mr Souaid's claim, titled "Permanent Impairment Assessment & Treatment Recommendations. Industrial Deafness" ("the second report").
21. On or about 28 October 2014, the Respondent on behalf of Mr Souaid, wrote to Allianz Australia Workers' Compensation, claiming $5,534.33 for the manufacture and fitting of hearing aids as section 60 expenses.
22. By letter dated 7 November 2014, Allianz Australia Workers' Compensation (NSW) Ltd wrote to Mr Souaid, care of Slattery Thompson, informing him that under section 59A of the Workers Compensation Act (NSW) 1987, his entitlement to medical and related expenses for industrial deafness ceased on 31 December 2013.
23. On or about 22 January 2015 Slattery Thompson furnished a tax invoice to WIRO for the sum of $3,845.67, and included the second report.
24. Following correspondence with WIRO Slattery Thompson furnished an amended tax invoice for the sum of $2,280.23 together with the second report.
25. By email sent on 29 May 2015, WIRO informed Slattery Thompson that the section 60 expenses ($5,534.55) referred to in particular 20 above had been processed for payment.
1. The respondent provided a detailed response to the complaints and particulars in an Amended Reply, which it is necessary to replicate;
Ground 1
1.1 The respondent denies the facts alleged in paragraph 1.1 of the Grounds.
1.2 The respondent denies the facts alleged in paragraph 1.2 of the Grounds.
1.3 The respondent denies the facts alleged in paragraph 1.3 of the Grounds.
1.4 In answer to the whole of the application the respondent says that he:
(a) believed there was a proper legal basis for the making of the Application to WIRO;
(b) did not access, touch or otherwise deal with the 2012 Audiogram (defined below) once it was received from Dr Stylis' office in or around March 2012 except in the course of preparing his client's claim to the Insurer in or around March 2012;
(c) did not alter, or instruct any employee to alter, the 2012 Audiogram; and
(d) had no reason to alter the 2012 Audiogram having regard to matters referred to in paragraph 16(c)(vi); and
(e) the order sought for removal of the respondent's name from the Roll is inappropriate and disproportionate to the circumstances demonstrated by the evidence.
1.5 In further answer to the whole of the application. the respondent admits that his conduct in being negligent in signing the Application without reviewing the correctness or accuracy of the matters recorded in the application at particulars:
(a) 15.1, 15.2, 15.3, 15.4, 15.5. 15.6, 15.8, 15.9, 15.11. 15.13, 15.14; and
(b) 15.10 and 15.12 to the extent that the audiogram attached to the Application was purportedly dated 1 March 2014; and
(c) the documents annexed to or in support of the Application;
amounts to unsatisfactory professional conduct and the respondent consents to a reprimand.
Particulars
1. The respondent admits the facts alleged in paragraph 1 of the Particulars.
2. In answer to the fact alleged in paragraph 2 of the Particulars, the respondent:
(a) admits the matters in paragraph 2 save for the words 'prepared by the Respondent'; and
(b) says further that the statement by Mr Souaid dated 1 March 2012 ('Statement') was:
(i) to the best of the respondent's recollection, prepared by the respondent's secretary, Ms Patricia Biordi;
(ii) Ms Biordi obtained the information contained in the Statement was obtained from information provided by Mr Souaid to the respondent, including, among other things, an earlier report obtained from Dr Brian J Williams by Mr Souaid's former solicitors;
(iii) Ms Biordi prepared the Statement was prepared for the purpose of:
1. Providing the document to Dr Stylis for the purposes of his report as to his assessment of Mr Souaid's hearing loss and its causes; and
2. Mr Souaid's possible claim for workers compensation to Allianz Australia Insurance ('Insurer'); and
(iv) the Statement also listed Mr Souaid's other places of employment after he first arrived in Australia in 1970, between 1971 and 1972 and 1973 to 1978 and the nature and conditions of that and the work he did at North Sydney TAFE.
3. In answer to the facts alleged in paragraph 3 of the Particulars, the respondent:
(a) admits the matters in paragraph 3; and
(b) says further that Dr Stylis' assessment of Mr Souaid was also based on a detailed history obtained from information in referral documents provided to Dr Stylis, including the Statement.
4. The respondent admits the facts alleged in paragraph 4 of the Particulars.
5. The respondent admits the facts alleged in paragraph 5 of the Particulars.
6. The respondent admits the facts alleged in paragraph 6 of the Particulars.
7. In answer to the facts alleged in paragraph 7 of the Particulars, the respondent:
(a) admits that the Workers Compensation Commission ('WCC') made three substantive orders; and
(b) those orders included:
(i) one order by consent, that the Application to Resolve a Dispute be amended at Part 4 by deleting the stated date of injury and substituting instead '1 February 2008'; and
(ii) two further orders:
1. remitting the matter to the Registrar for referral to the 'AMS'; and
2. directing the matter be referred back to the WCC in the terms outlined in particular 8.
8. The respondent admits the facts alleged in paragraph 8 of the Particulars.
9. The respondent admits the facts alleged in paragraph 9 of the Particulars.
10. In answer to the fact alleged in paragraph 10 of the Particulars, the respondent:
(a) admits the matters in paragraph 10 save for the words 'the Respondent prepared a statement for Mr Souaid, which he (Mr Souaid) signed on 1 March 2014'; and
(b) says further in relation to the statement dated 1 March 2014 ('Second Statement') that:
(i) on Friday, 28 February 2014, the respondent annotated the Second Statement by adding in handwriting at paragraph 7 the words 'For hearinG aiDs' [sic] and at paragraph 9 the words 'I have not been fitted with hearings before' and did not otherwise amend, annotate or mark the Second Statement;
(ii) the respondent was content to leave paragraph 7 of the Second Statement unaltered save for the manner described in the preceding paragraph because he had satisfied himself that there was a fairly arguable construction of s59A(1) of WC Act that did not preclude the making of an Application and that the claim made by Mr Souaid to the Insurer was not a claim of the kind caught by s59A(1) and accordingly there was a proper basis for retaining the words in paragraph 7 of the Second Statement that Mr Souaid 'did not make a claim earlier';
(iii) the respondent gave a copy of the Second Statement to Mr Souaid on 28 February 2014 to take home and consider with the expectation that if he agreed to the amendments he would resign and redate the amended statement;
(iv) on Monday, 3 March 2014, the Second Statement was returned by Mr Souaid in person; and
(v) thereafter did not see the Second Statement again until required to review the document as part of the applicant's investigation of the complaint made against him from which these proceedings are brought.
11. In answer to the facts alleged in paragraph 11 of the Particulars, the respondent:
(a) admits the matters in paragraph 11; and
(b) says further that Mr Souaid:
(i) initialled the annotated amendment in paragraph 7; and
(ii) re-dated the statement by changing the numeral '2' in the year '2012' as it originally was, by adding a short vertical stroke so that it would read '2014'.
12. The respondent admits the facts alleged in paragraph 12 of the Particulars.
13. The respondent admits the facts alleged in paragraph 13 of the Particulars.
14. The respondent admits the facts alleged in paragraph 14 of the Particulars.
15. In answer to the facts alleged in paragraph 15 of the Particulars, the respondent:
(a) admits that the Application contained statements as described in subparagraphs 15.1 to 15.14 of the Particulars;
(b) says further that:
(i) the Application was completed by his secretary, Ms Effie Anthony, who had regard to the information contained in the Second Statement, the audiogram performed on Mr Souaid dated 1 March 2012 ('2012 Audiogram') and the report of Dr Stylis dated 19 March 2012;
(ii) the respondent instructed Ms Anthony to complete the Application after:
1. having learnt, upon reading a WorkCover Fact Sheet titled 'Workers compensation changes: Q&As for workers' of legislative changes made on 3 September 2014 by the introduction of the Workers Compensation Amendment (Existing Claims) Regulation 2014 (relevantly, cl 28(1)(b) of Schedule 1)); and
2. having satisfied himself of the legislative changes referred to the preceding sub-paragraph and also having reviewed s59A of the Workers Compensation Act 1987 (NSW) ('WC Act') and satisfied himself that there was a fairly arguable construction of s59A(1) of WC Act that did not otherwise preclude the making of an Application and that the claim made by Mr Souaid to the Insurer was not a claim of the kind caught by s59A(1);
(iii) by reason of the matters referred to in the preceding sub-paragraphs, believed that there was a proper basis for the statements described in subparagraphs 15.1, 15.2, 15.3, 15.4, 15.5, 15.6, 15.7, 15.8, 15.9, 15.10, 15.11, 15.12 and 15.14 of the Particulars;
(iv) expected Ms Anthony would rely on the 2012 Audiogram as being the 'recent audiogram' for the purposes of question 3(g) of Part C of the Application as:
1. he had relied on an old audiogram dated 8 April 2010 in respect of a similar application for a hearing loss claim to WIRO made on behalf of another client, Mr Vasilis Dmirgelis, dated 15 August 2014, which application was approved in or around 20 August 2014 ('Dmirgelis claim'); and
2. by reason of that previous application and WIRO's past practice approving that application and not raising any concern about the age of the audiogram relied upon as the 'recent audiogram' for the proposes of that Application assumed that the 2012 Audiogram would be acceptable as a 'recent audiogram' for the purposes of Application made in 2014;
(v) he was negligent in signing the Application without reviewing the correctness and accuracy of:
1. the matters recorded in the Application set out in particulars 15.1.15.2. 15.3. 15.4. 15.5. 15.6. 15.8. 15.9. 15.11. 15.13, 15.14; and
2. the matters recorded in the Application set out in particulars 15.10 and 15.12 to the extent that the audiogram attached to the Application was purportedly dated 1 March 2014; and
3. documents annexed to, or in support of, the Application; and
(c) otherwise denies the matters alleged in paragraph 15 of the Particulars.
16. In answer to the facts alleged in paragraph 16 of the Particulars, the respondent:
(a) admits that the 2012 Audiogram (referred to in particulars 14 and 15.13) was an identical copy of the Audiogram referred to in particular 3 but with the date in the latter appearing to read '1.3.14';
(b) otherwise denies the matters alleged in paragraph 15 of the Particulars; and
(c) says in further answer that:
(i) he did not himself access, touch or otherwise deal with the 2012 Audiogram once it was received by fax from Dr Stylis' office in or around March 2012 other than to review the Audiogram and report prior to submitting Mr Souaid's claim to the Insurer in or around March 2012 and at all other times it remained in the respondent's file of Mr Souaid's matter;
(ii) did not instruct any staff member to alter the date of the Audiogram to read '1.3.14';
(iii) he does not know how the date in the Audiogram referred to in particulars 14 and 15.13 came to appear to read as '1.3.14';
(iv) Ms Anthony, when completing the Application, read the date on the Audiogram as '1.3.14' owing to a fine vertical streak marking the number '2' (the last number of the date);
(v) does not know how the vertical streak marking the number '2' came to appear on that document (but the respondent has speculated previously that the vertical streak mark may have been caused by a defective photocopier leaving a streak mark of that kind when the document was photocopied by Ms Anthony);
(vi) had no reason to change the date on the Audiogram to '1.3.14' as prior to instructing Ms Anthony to draft the Application:
1. he was confident that the introduction of the Workers Compensation Amendment (Existing Claims) Regulation 2014 (cl 28(1)(b) of Schedule 1)) meant there was a proper basis for making the Application;
2. he had satisfied himself that there was a fairly arguable construction of s59A(1) of the WC Act that did not preclude making the Application;
3. relied on his previous experience in the Dmirgelis claim;
4. repeats and relies on the matters pleaded in paragraph 15(b)(iv); and
(vii) by reason of the matters referred to in the preceding sub-paragraph a change to the date on the Audiogram to read '1.3.14' would not have conferred any advantage to the Application and accordingly the respondent had no reason to make (or, and which in any event is denied, to instruct an employee of his to make) the purported change to the date of the Audiogram to read '1.3.14'.
17. The respondent admits the facts alleged in paragraph 17 of the Particulars.
18. In answer to the facts alleged in paragraph 18 of the Particulars, the respondent:
(a) denies the matters alleged in this paragraph; and
(b) in further answer, repeats and relies on the matters set out in paragraph 15(b) and 16(c) above.
19. The respondent admits the facts alleged in paragraph 19 of the Particulars.
20. The respondent admits the facts alleged in paragraph 20 of the Particulars.
21. In answer to the facts alleged in paragraph 21 of the Particulars, the respondent:
(a) admits the facts contained in that paragraph; and
(b) says further that:
(i) the letter enclosed two reports from Dr Stylis, one dated 23 October 2014 and an earlier report dated 19 March 2012; and
(ii) included the 19 March 2012 report from Dr Stylis.
22. The respondent admits the facts alleged in paragraph 22 of the Particulars.
23. The respondent admits the facts alleged in paragraph 23 of the Particulars.
24. The respondent admits the facts alleged in paragraph 24 of the Particulars.
25. In answer to the facts alleged in paragraph 25 of the Particulars, the respondent:
(a) admits denies the facts contained in the paragraph; and
(b) says further that by email sent on 29 May 2015, WIRO informed the respondent that his invoice in the sum of $2,280.23 had been processed for payment; and
(c) says further that on 9 September 2016 he wrote to WIRO offering to refund the total amount paid and to date is awaiting a response.
1. It will be noted from the Amended Reply that the respondent denied that he was personally involved in any of the matters contained in grounds 1.1 to 1.3 of the Application. He did, however, admit that his conduct in signing the application for legal funding was negligent because he had failed to review the correctness or accuracy of the matters recorded in the application as generally described in particular 15 of the Application. He also admitted that his conduct amounted to unsatisfactory professional conduct and he consented to a protective order in the nature of a reprimand.
2. In particulars furnished with the Amended Reply the respondent said, in summary terms, that the statement of his client had been prepared by a named secretary. He further stated that the application for legal funding was prepared by another named secretary, Ms Effie Anthony. Significantly the respondent said that there was a proper basis for certain of the statements described in particular 15 of the Application. We shall refer to these matters in more detail later in these reasons for decision.
3. We add for completeness that the Application was previously dealt with by this Tribunal differently constituted ("the earlier hearing"). An appeal was brought successfully by the respondent from the Decision of the Tribunal, and the matter has been remitted back to the Tribunal as currently constituted "to be determined according to law". In addition, the Court of Appeal ordered that the costs of the original proceedings before the Tribunal be determined by the Tribunal upon the remittal. (Livers v Legal Services Commissioner [2018] NSWCA 319).
4. There was initially some controversy between the parties about the manner in which the new hearing before us would be conducted. Fortunately, this controversy evaporated and both parties cooperated in a hearing being conducted having regard to evidentiary material produced for the purpose of the earlier hearing, with some further limited oral evidence given by the respondent, predominantly by way of cross examination.
5. By reason of the period over which the misconduct of the respondent is alleged to have occurred, these proceedings are governed by the provisions of the Legal Profession Act 2004 (NSW) ("the Act").
The factual matrix
1. The parties were able to reach agreement on a Statement of Agreed Facts ("SAF"), which is in the following terms;
1. The practitioner, Peter James Livers, is a legal practitioner who has practised as a solicitor since September 1974, becoming a principal of the firm Slattery Thompson in 1979 and its sole practitioner since 1989, specialising in workers compensation claims.
The 2011-2012 claim
2. In November 2011, the practitioner commenced acting for Mr Zouhair Souaid after an earlier application which Mr Souaid had lodged with the Workers Compensation Commission (the Commission) on 9 August 2011, via his previous solicitors, for an industrial hearing loss claim, was unsuccessful. The practitioner requested a loss of hearing assessment by Dr Stanley Stylis, who conducted an audiogram on 1 March 2012 and prepared a report dated 19 March 2012. The practitioner also drafted a statement for Mr Souaid to sign, which he did on 1 March 2012.
3. On 22 March 2012, the practitioner made a claim on the insurer, Allianz, under ss 66 and 67 of the Workers Compensation Act 1987 (NSW) (the WC Act) for industrial deafness whole person impairment in the sums of $13,750 for permanent impairment and $10,000 for pain and suffering and the cost for the manufacture and fitting of hearing aids under s 60 of the WC Act relating to expenses. That claim was denied by the insurer on 26 April 2012.
4. On 4 July 2012, the practitioner lodged with the Commission on behalf of Mr Souaid an application to Resolve a Dispute. That application, which was in the approved form, had been signed by the practitioner on 5 May 2012. In Pt 1, "Matters in Dispute", under the heading "1.1 Claim to which dispute relates, 1.1A For referral for determination by the Commission", only the box "Lump sum compensation where liability in dispute" was marked with an "X" (referred to as a s 66 claim). The box "Medical expenses" (a s 60 claim) and the box "Compensation for pain and suffering" (a s 67 claim) were left blank. Nonetheless, the later part of the application was completed inconsistently with the markings under heading "1.1A". In Pt 5 of the application under the heading "5.6 Permanent impairment including pain and suffering", a claim was made for industrial deafness whole person impairment of 11 percent and the amount claimed was $13,750. A claim was also made for pain and suffering and the amount claimed was $10,000.
5. On 11 June 2013, an arbitrator gave a direction (in par 3) that the matter be referred back to the arbitrator following the issue of the medical assessment certificate, to determine the question of whether hearing aids were reasonably necessary and the question of the s 67 entitlements.
6. On 8 November 2013, Mr Souaid signed a Complying Agreement under s 66A of the WC Act resolving his claim for permanent impairment ($15,400) and pain and suffering ($5,000). On the same day the Commission issued a Certificate of Determination – Consent Orders in respect of those claims. The Complying Agreement and the Consent Orders did not deal with the claim for hearing aid expenses.
7. The practitioner sought to agitate Mr Souaid's hearing aid claim, first with the insurer's solicitor on 20 January 2014, which the insurer did not accept, relying on s 59A of the WC Act, and then by re-listing the matter before the Commission.
8. Following a teleconference on 30 April 2014, the arbitrator referred the matter back to the Commission as it was determined that the claim for s 60 expenses for hearing aids ceased on 30 December 2013 and accordingly, Mr Souaid was not entitled by law to claim the expense.
9. On 6 May 2014, the Commission issued a further Certificate of Determination – Consent Orders, which noted that the "applicant [Mr Souaid] elects to discontinue the Application to Resolve a Dispute" and dispensed with the need to file a Notice of Discontinuance.
September 2014 – Funding application
10. In or about early 2014 the practitioner prepared a second statement for his client by making the following amendments to the client's statement of 1 March 2012 by hand:
(a) adding the words "for hearings aids" to paragraph 7 so that it reads as follows: "I say I did not make a claim earlier for hearing aids as I was not aware I had industrial deafness until a fiend [sic] of mine introduced me to Peter Livers who arranged a hearing test"; and
(b) adding a new paragraph 9 which stated: "I have not been fitted with hearings [sic] before."
11. The amendments were made at a conference with Mr Souaid on 28 February 2014 at which time Mr Souaid was given the amended statement to take away and consider. The amendment to par 7 was initialled in the margin by Mr Souaid. Mr Souaid returned the signed statement to the practitioner on 3 March 2014. The date of the client statement had been amended such that "1 March 2012" read "1 March 2014".
12. On 19 September 2014, the practitioner made an application to WIRO for ILARS funding on behalf of Mr Souaid in respect of a proposed claim for hearing aids for industrial deafness. Included in that application was:
(a) an audiogram prepared by Dr Stylis purportedly dated 1 March 2014. The audiogram contained an alteration in the form of a mark through the date of the document so that the year "2012" read "2014";
(b) a signed statement of Mr Souaid dated by Mr Souaid 1 March 2014. (The alteration to the date of that document from "2012" to "2014" was made by Mr Souaid and not in the presence of the practitioner).
13. WIRO approved the grant of funding on 24 September 2014. Also on that date, the practitioner sent a letter to Dr Stylis requesting a formal medico-legal report.
14. On 23 October 2014, Dr Stylis examined Mr Souaid and issued a detailed report assessing whole person impairment due to exposure to industrial noise at 12 percent and recommended a hearing aid. That report referred to the previous claim for industrial deafness settled in 2013, and stated that "because of altering regulation and confusion of new laws and their protocol, the question of hearing aids could not be finally concluded".
15. On 28 October 2014, the practitioner made a claim on the insurer for the cost of the manufacture and fitting of hearing aids under s 60 of the WC Act in the amount of $5,534.33. That claim attached copies of the report of Dr Stylis dated 23 October 2014 and his earlier report dated 19 March 2012.
16. The insurer rejected that claim in a letter to Mr Souaid sent, care of the practitioner, on 7 November 2014. In its letter, the insurer drew attention to s 59A of the WC Act and asserted that the entitlement to medical and related expenses for industrial deafness ceased on 31 December 2013, as had previously been conveyed to Mr Souaid in the insurer's letter of 27 August 2013. A copy of that letter was attached.
17. On 21 January 2015, Ms Trish Biordi, a secretary in the employ of the practitioner sent an email to the insurer requesting a response to the practitioner's letter dated 28 October 2014. The insurer responded by email to Ms Biordi on the same day attaching two attachments: a copy of its letter sent to the practitioner on 7 November 2014, and the 27 August 2013 attachment.
18. On 22 January 2015, Ms Biordi sent an email to WIRO attaching a copy of Allianz's letter of 7 November 2014, including the attachment, together with an invoice for the practitioner's costs totalling $3,845.67 and confirmed that the matter "is now closed". WIRO responded in an email to Ms Biordi on 22 January 2015 noting that the prior claim for hearing loss had not been disclosed in the practitioner's funding application, that if the prior claim had been disclosed WIRO would not have provided any funding due to s 59A of the WC Act and requesting that care be taken in future applications to disclose all relevant information.
19. On 3 February 2015 Mr Kim Garling of WIRO wrote to the practitioner, and sought an explanation for what appeared (to Mr Garling) to be "an attempt to defraud the Independent Legal Assistance Review Service".
20. On 16 February 2015 the practitioner responded to WIRO's letter of 3 February 2015.
21. On 9 March 2015 WIRO lodged a complaint about the practitioner's conduct with the Legal Services Commissioner (Commissioner).
22. On 25 May 2015 WIRO asked the practitioner to amend his tax invoice by removing the amount of $714.80 charged for Dr Stylis' report and to resubmit an amended tax invoice.
23. On 25 May 2015 the practitioner submitted an amended tax invoice for $2,280.23 with the report of Dr Stylis dated 23 October 2014 to WIRO. This amount was paid to the practitioner in or about May 2015.
24. On 28 April 2016 and following information and submissions provided by WIRO and the practitioner during the course of the Commissioner's investigation, the Commissioner decided that there was a reasonable likelihood that the Tribunal would find the practitioner had engaged in professional misconduct. The Commissioner subsequently filed an Application for Disciplinary Findings and Orders with the Tribunal on 13 July 2016.
25. On 9 September 2016, the practitioner sent an email to WIRO, authorising WIRO to deduct the sum of $2,280.23, being the fees paid for Mr Souaid's matter from the next payment of fees due to the practitioner.
1. We have been presented with a great deal of documentary evidence. We shall refer to such parts of it as are relevant to the determination of these proceedings.
2. The original statement of the client dated 1 March 2012 named as an employer the Rheem factory where he said he had been exposed to "a lot of industrial noise" during the period 1973 to 1978. He said that he then went on the pension for 4 years and "then I worked at North Sydney Tafe from 1985 until 2008 where (sic) worked as a cleaner using the heavy duty polisher every day for a couple of hours, and the leaves blower gathering leaves and the backpack vacuum cleaner for a couple of hours per day. The heavy duty vacuum cleaner and leaves blower made a large noise." He further said that he had not made a claim earlier as he was not aware that he had industrial deafness until he was introduced to the respondent who arranged a hearing test.
3. The respondent referred the client to Dr CS Stylis an ENT surgeon. A report from Dr Stylis dated 19 March 2012 identified the last employer of the client as "Tempo" and 2008 as being the last day of employment. The client was assessed as having a Whole Person Impairment ("WPI") of 11% due to industrial hearing loss only. The report identified the client as requiring hearing aids in both ears.
4. Annexed to the report of Dr Stylis is an audiogram sheet dated 1 March 2012 disclosing a WPI impairment of 11%. That sheet is in a pro forma presentation. Relevant details, including the date were completed in handwriting.
5. There is a reference in paragraph 3 of the SAF to a denial by the insurer Allianz Australian Insurance ("Allianz") of the client's claim. The basis of that denial was in part the possession by the insurer of an earlier hearing loss assessment by another ENT surgeon provided by another firm of solicitors. Significantly, the letter of denial refers to the client's employer as being ISS Facility Services (NSW) Pty.
6. The application for an ILARS grant made to the WorkCover Independent Review Office ("WIRO") dated 19 September 2014 which is referred to in paragraph 12 of the SAF is in evidence. The errors of which the applicant complains are identified in Particular 15 and are that the application form;
1. denies that the client had made a claim prior to 19 June 2012 relating to "the injury".
2. identifies the employer as "North Sydney Tafe".
3. nominates 2008 as the date of the injury and states that there has been no dispute about the injury with the insurer.
4. states that no proceedings have previously been filed in the Workers Compensation Commission.
5. nominates that the respondent wishes to undertake a preliminary investigation of the matter on behalf of his client and it states that the legal action to be taken is for the cost of hearing aids only.
6. when asked to provide details of any prior Section 66/67 claims and payments for the WPI it responds; "not applicable."
7. when asked to provide details of the worker's occupational history including details of noise exposure, the last noisy employer and date of cessation of employment referable to a hearing loss claim, there is a response that this has been answered on a previous page no 3. That page 3 stated that the client suffers from industrial deafness due to his employment, relies upon the audiogram of Dr Stylis and client statement, and alleges that the hearing loss was due to "the nature and conditions of the applicant's work with the employer in 2008 involving excessive exposure to industrial noise and his employment at North Sydney Tafe sustaining an industrial deafness". There follows a reference to use of a heavy duty polisher and heavy duty backpack vacuum cleaner and leaves blower. All of this material is relevant to prior questions to which we have previously referred concerning the absence of a dispute with the insurer and the lack of prior proceedings, both of which are prima face incorrect.
8. there is a denial of any prior claims for industrial deafness.
9. when asked to attach a recent audiogram, the report of Dr Stylis referred to above was attached. As is known, the original handwritten date on this report is 1 March 2012. On the copy report attached, a line is drawn through the tail of the numeral 2 to make it appear as though it is the numeral 4. The date thereby read 1 March 2014.
10. there is a request contained on the form to "provide details of any prior claims industrial deafness." The response provided by the respondent was "Not Applicable."
1. Significantly for our purposes, the Application concludes with a "Certification" by which the respondent certified that the contents of the application were true and correct "and I am not aware of any other relevant material the subject of this application for an ILARS grant."
2. In a statutory declaration sworn 30 April 2015, given to WIRO for the purpose of providing information concerning a complaint that had been made against him, the respondent said that he had signed the WIRO application on behalf of his client which had been prepared by his secretary "without checking the contents of the application." It is uncontroversial that the secretary was Ms Effie Anthony.
The evidence of Ms Anthony
1. Ms Anthony initially provided a statutory declaration to the applicant sworn 14 July 2015 whilst he was carrying out his enquiries concerning a complaint he had made against the respondent. At that stage she had been employed by the respondent as a legal secretary for nearly 4 years and her role included preparation of WIRO applications.
2. In describing the work performed by her in preparing these applications, she said that the respondent gave her the files and instructed her to prepare the application for the legal costs to claim the cost of hearing aids or permanent impairment claims. She would go through the client file and prepare the application by using information from the client statement. She would then photocopy the statement and the original audiogram and type particulars on the application. She said that she had a standard precedent form which she normally used for hearing aids applications and this is what she used in connection with Mr Souaid's matter.
3. Ms Anthony said that she did not discuss the completion of Mr Souaid's application with anyone. In his statement Mr Souaid had said that there had been no prior claims and she inserted that in the application. She also inserted the name of the employer company mentioned in the client statement and noted that there was no mention made of any insurer. Ms Anthony confirmed that the client statement was dated 1 March 2014. She read the date of the audiogram as 2014 "as there was a line through it making the 12 look like a 14. This occurred when I photocopied the original Audiogram. Sometimes our photocopy has been known to leave marks. I did not alter the date and I read this in error when I typed it on the Application." Ms Anthony then gave the application to the respondent for his signature.
4. Ms Anthony provided a later affidavit sworn 2 November 2016 which was filed in the proceedings on behalf of the respondent. In explaining the pre-populated fields on the template, Ms Anthony said that when asked whether the worker had made a claim prior to 19 June, 2012 relating to the injury the subject of the application she always checked the box "No", "as there is never a situation where a client has made a prior claim, this would have been left the same in relation to Mr Souaid's WIRO application."
5. Ms Anthony said that she would have taken the 2014 dates on the statement and the audiogram at face value. She denied that under any circumstances she herself would have altered any date. She said that the only reason that she would make a copy of either the statement or the audiogram prior to completing the application was if the originals were not "good for scanning." Although she was unable to recall precisely, Ms Anthony said; ".. I do not think that I made copies of his statement…. and the audiogram…". Ms Anthony said that she did not speak with either the client or the respondent when completing the application and it was her practice to rely solely on the information contained in the statement and audiogram "both of which will normally be on the top of the client file, as was the case for Souaid's WIRO Application." Furthermore, Ms Anthony recollected that there was only one audiogram in the file.
6. Ms Anthony was adamant that she did not understand how the date on the audiogram came to be altered so that the 2012 became 2014. She certainly did not do so. She referred to the comment made by her in the statutory declaration of 14 July 2015 concerning the production of a line accidentally by the photocopier. She said that she accepted that this comment constituted speculation only on her part because she was uncertain as to how the change had been made. In any event, we note that it was Ms Anthony's recollection that she had not photocopied the audiogram.
7. Ms Anthony was unable to be present to give oral evidence for personal reasons which were accepted by the Tribunal at the earlier hearing.
The accuracy of the statements contained in the form of application for legal funding by reference to Particular 15
1. It is now appropriate to consider the answers provided in the form to determine whether any of the particulars in paragraph 15 of the application have been made out. We commence our examination of the evidence by reference to the primary position taken by the respondent during the course of giving evidence in the original proceedings before the Tribunal and in the course of giving evidence before us. The respondent contended that the claim originally formulated by him on behalf of his client and the proceedings taken were limited to a claim for a lump sum for hearing loss and a lump sum for pain and suffering. He said that there was no actual claim made for the cost of the provision of hearing aids. It was on this basis that it was said that the answers which were given were predominantly accurate.
2. The respondent has furnished information concerning the circumstances surrounding the making of the ILARS claim on a number of occasions. This information is in evidence before us, and it is instructive to have regard to it.
Letter to Mr Garling 16 February 2015
1. The letter from Mr Garling dated 3 February 2015 referred to in paragraph 19 of the SAF referred to an amended invoice issued by the respondent on 22 January 2015 claiming an additional $714.80 for a report from Dr Stylis showing an examination date of 19 March 2012. That report had attached to it the audiogram dated 1 March 2012. This caused Mr Garling to allege that in the original application for funding, the date of that audiogram had been deliberately altered by placing a mark through the tail of the 2 in 2012 to make it look as though the date was 2014, and that the respondent had sought funding for a report from Dr Stylis which he had already obtained in 2012. The letter also referred to the alteration in the date of the client's statement made in the same manner by changing 2012 to 2014. Mr Garling said that these alterations had been made deliberately with a view to securing funding and that they constituted an attempt to defraud ILARS. The respondent was invited to show cause why he should not be removed as an approved legal service provider from that service.
2. The respondent replied by letter dated 16 February 2015. He set out a "chronology of events" which noted that the respondent had first received instructions from Mr Souaid on 14 November 2011 and that he had forwarded a copy of a statement obtained from the client dated 1 March 2012 to Dr Stylis the same day. The respondent then referred to an examination by Dr Stylis in 19 March 2012 and said "Our client was unsuccessful with his claim for hearing aids on 22.3.12" and enclosed a copy of a letter which he had forwarded to the insurer that day making a claim on behalf of his client said to be employed by "ISS Facility Services" from 2001 to 2008, enclosing the report of Dr Stylis dated 19 March 2012 and making a claim for industrial deafness whole person impairment under sections 66 and 67 of the relevant Act for $13,750 and $10,000 respectively and, significantly "the cost of the manufacture and the fitting of hearing aids under sc. 60 expenses."
3. The respondent then referred to a letter of 25 February 2014 from solicitors presumably acting for the insurer, stating that the respondent's client had no entitlement to claim for the cost of hearing aids because of section 59A of the Workers Compensation Act 1987. The respondent also said that "the insurance company paid for Dr Stylis report dated 19.3.12."
4. The respondent then sought to make a number of "comments" concerning the date of the audiogram. He said that it had not been deliberately altered "but in all probability was created by an innocent pen stroke when the secretary was collating the material together…… the number 2….can be clearly seen and that there is no serious nor determined attempt to completely alter the date. Further the secretary has typed in error the date of the audiogram being 1.3.14 instead of 1.3.12 in the application for legal assistance…. We confirm that we had 2 copies of the audiogram dated 1.3.12 but unfortunately we submitted to you a poor quality diagram with a streak through the number 2 making it look like a four."
5. The respondent then said that "these matters should be checked by Peter Livers in greater detail before he signs the applications and we shall make every endeavour in future to ensure this occurs."
6. The respondent then dealt with the circumstances in which his client's original statement made in 2012 had been altered in 2014.
7. The respondent also denied that he had fraudulently sought funding for the report of Dr Stylis dated 19.3.12 for which he had already received payment, and forwarded an amended invoice reflecting this.
8. Finally, the respondent said that he had been involved in searching for alternative premises since June 2014 and many current files had been packed in boxes for some months and needed to be removed from the boxes when work was to be performed on them. He said that the "marks in the audiogram may have occurred by staff working under altered and unsettled circumstances and once an error is made, it has a flow on effect."
9. We note the several attempts by the respondent to speculate about the manner in which the date of the audiogram could have been altered from 2012 to 2014. We note further that the respondent appears to have conceded that he had already been paid for the 2012 report of Dr Stylis which had included the only audiogram. As is obvious, prima facie the application for funding to WIRO sought the payment of monies relating to that audiogram.
The respondent's statutory declaration sworn 30 April 2015
1. On 31 March 2015 the applicant wrote to the respondent in response to a complaint that he had received from Mr Garling concerning the respondent. That letter set out a detailed background which is substantially similar to the grounds of complaint and particulars which are the subject of these proceedings. The letter alleged that the respondent had misled or attempted to mislead WIRO to secure a grant of funding by altering the date of the audiogram, asserting that his client had not previously made a claim for hearing aids, and by falsely stating and certifying that the contents of the application were true notwithstanding a number of material omissions and/or false assertions the details of which are generally to be found in Particular 15 of the particulars of the grounds of complaint. The letter required that the respondent respond by way of statutory declaration to each of these particulars.
2. The respondent provided a detailed Statutory Declaration sworn 30 April 2015. In that statutory declaration the respondent said inter alia;
1. that he had discontinued the earlier workers compensation proceedings because he had realised his client was not entitled to make a claim for hearing aids
2. when he had stated in the application that his client had not made a claim prior to 19 June 2012 relating to hearing loss, he had intended to say that the client had not made a successful claim for hearing aids
3. he had referred in correspondence to the client's employer as being Sydney Tafe because his client had commonly referred to that organisation as his place of work
4. he had left the name of the workers compensation insurer blank in the application form even though he had previously communicated with Allianz about his client's claim and had a claim number because this was "an error" on his part
5. he had stated in the application that there was no dispute with the insurer and that no dispute had been notified to the insurer because "the law with respect to hearing aids changed in 3 September 2014", and he enclosed a copy of the relevant Regulation
6. he had reviewed the legislation and formed the view that there was an arguable case that his client had a claim for hearing aids to justify his statement in the application for funding that his client had reasonable prospects of success
7. he had replied "not applicable" to a question in the application which had asked him to provide details of any past claims brought under sections 66 and 67 of the workers compensation legislation because "no claim was being made for section 66/67 under this application to WIRO"
8. in indicating in the application that there had been no prior claim for industrial deafness notwithstanding that he had represented the client in relation to such a prior claim he had completed the application incorrectly
1. In general terms the respondent said in his statutory declaration;
I advise that the errors & omissions in the WIRO application were caused because our office uses a generic WIRO application, that relates to applications for industrial deafness by clients making their first claim and due to a lack of attention to detail by myself that application was signed by me in error.
1. In denying that he had amended the date of his client's statement, the respondent said that he had met with his client on 28 February 2014 and discussed the original statement dated 1 March 2012. After that conference he wrote hand-written amendments to the statement which the client took away to discuss with his wife. The client returned the statement on 3 March 2014 and the client had changed the date from 2012 to 2014 by putting a cross through the "2".
2. The respondent denied that he had amended the date of the audiogram. In referring to what he had written in his letter of 16 February 2015 the respondent denied that he had stated positively that the change in date by striking a line through the 2 had been made by his secretary. He said that he had interviewed that secretary, Ms Effie Anthony for the first time on 14 April 2015. She had informed him that her usual practice was to photocopy the original audiogram and that she recalled that there had been marks and lines sometimes in the past in photocopies of audiograms and other documents. He said that Ms Anthony had recalled seeing the line through the 2 in the audiogram when preparing the application which had caused her to show the date as 2014. The respondent then said; "The secretary then says that she has collated the poor quality copy audiogram in error and then typed the incorrect date of the audiogram on the WIRO application." He said that he had then signed the application without checking its contents before it had been submitted by email by his secretary.
3. The respondent then repeated the assertion that he had made in his letter of 16 February 2015 that because of amendments made to the legislation his client was entitled to bring a further claim for hearing aids because he had made an unsuccessful prior claim. To this extent he said that the application should have read that his client did not have a prior "successful claim" for hearing aids. In addition, the respondent said that it was his client's instructions and his intention to include a reference to the prior claim in the application. By way of further explanation, the respondent said; "I submit that we lodged the application with much haste due to the concerns that the amending law may have been further amended without further notice."
4. We note that what the respondent said in this statutory declaration about his discussion with Ms Anthony is contradicted by her own evidence which we have set out above. Ms Anthony said that she would only have copied the audiogram if it was of poor quality, and she recollected that this was not the case concerning this matter. We note also that the excuse of lodging the application "with much haste" because of the respondent's concerns that the amending law might have been further amended without further notice has a hollow ring about it. This is another example of the varied attempts made by the respondent to raise a number of exculpatory excuses concerning the contents of the application for funding assistance from WIRO.
The respondent's letter of 9 September 2015
1. In this letter the respondent replied to comments which had been made to the applicant in correspondence with Mr Garling. This letter is confined to a consideration of the provisions of the workers compensation legislation, and whether they permitted a further claim for hearing aids to be made on behalf of the client. We do not apprehend that there is anything contained in this letter which is relevant to the basic allegations made against the respondent.
The respondent's letter of 11 February 2016
1. On 17 December 2015 the applicant wrote to the respondent expressing a preliminary view that he had misled WIRO in order to obtain a grant of funding by altering the date of the audiogram, and by including incorrect information and omitting other information from the form of the application. Furthermore, the respondent was said to have been dishonest in lodging the application in that form and with those deficiencies or alternatively, the respondent had been reckless as to whether the contents were correct and that he did not care whether or not the application contained correct information. The letter then traversed in some detail the basis for these preliminary views. The respondent was invited to make submissions in reply which he did in a letter of 11 February 2016.
2. In that letter the respondent repeated that the application had been prepared by his secretary using a template which applied to first-time applications, and he had failed to check it before signing it. The respondent also asserted that he had not intended to or deliberately misled WIRO. He also said that the application form was deficient in that it did not allow for submissions to be made in respect of changes to the law and was restrictive in the amount of information which could be included. The respondent apologised and said that he was deeply embarrassed and expressed his remorse for his actions. Furthermore, he said he had implemented practices to avoid a repetition of these events. The respondent repeated that there had been no attempt to mislead WIRO by altering the date of the audiogram. He accepted that he had on this occasion failed to pay proper attention to the detail in the application, had failed to meet his obligations of competence and diligence and accepted that his conduct warranted "the administration of a reprimand."
3. We observe that the tenor of this letter is a concession by the respondent that the information furnished by him in the application was incorrect because the template used was inappropriate, the template did not allow for submissions to be made concerning changes in the law, and he had not attempted to mislead WIRO by reason of the alteration of the date of the audiogram. The thrust of this letter should be compared with the attempts made by the respondent to argue that in general, the information furnished in the application was not false. We shall return to this matter later in these reasons for decision.
The respondent's affidavit sworn 2 November 2016
1. The respondent filed an Affidavit in these proceedings sworn 2 November 2016. We shall refer to those portions of the affidavit as we consider relevant to our determination of these proceedings.
2. The respondent said that after receiving instructions to act for Mr Souaid in connection with his industrial deafness workers compensation claim, he arranged for an audiogram to be carried out by Dr Stylis who provided a report dated 1 March 2012. He then had a statement prepared for Mr Souaid. He said that it was his practice at that time to have client statements prepared by a legal secretary Ms Biordi. That statement was created by the secretary "based on the biographical details contained in an earlier medical report" by another ENT specialist commissioned by solicitors who had formerly represented the client. It was his practice to review such statements and settle them. He arranged for the statement and claim forms to be signed by the client on 1 March 2012. Subsequently, Dr Stylis prepared a report dated 19 March 2012 which was submitted to Allianz, the workers compensation insurer of the employer nominated by the client, ISS Facility Services by whom he was employed as a cleaner.
3. We note specifically that the respondent's firm wrote to Allianz on 22 March 2012 enclosing medical reports, and making claims for industrial deafness based on whole person impairment, a further claim for $10,000 "and the cost of the manufacture and the fitting of hearing aids under sc (sic) 60 expenses." In his affidavit the respondent noted that that claim was eventually settled by the making of consent orders which did not make any reference to the cost of hearing aids. Indeed, the respondent discontinued those proceedings on behalf of the client because he formed the view that as at 30 December 2013 the claim for the cost of hearing aids was time-barred.
4. Subsequently, in about early September 2014 the respondent said he formed the view that his client should make an application for the cost of hearing aids and that he should apply for an ILARS grant to fund the cost of doing so.
5. The respondent then outlined his usual practice in completing WIRO applications. They were completed by his secretary, Ms Anthony based on information contained in any statement made by the client and in any audiogram contained in the file. He said he would ordinarily pull out the statement and audiogram from the file and place them on top of the file to allow Ms Anthony to complete the application based on those documents. He said that he had no particular recall of what occurred in connection with this particular application. He presumed that he would have placed the client's second statement and the audiogram on top of the file. Ms Anthony usually completed applications of this kind "in bulk, usually for a number of clients….. Our firm had a pro forma template application for WIRO, in which the relevant particulars about the client would be adapted for each client, but the details in the application would not otherwise be adjusted."
6. The respondent said that he had no particular concerns about relying on an audiogram dated 3 March 2012 for the purpose of the application and no reason to change the date on that document. He said he did not instruct Ms Anthony to change the date and did not know how the year came to be changed to 2014.
7. The respondent also said that when he signed the application, he did not inspect it "in any detail." He was usually provided by Ms Anthony with a bundle of documents to be signed. He said; "I trusted and relied upon Ms Anthony to diligently complete the application forms, which I had no reason to suspect would not be properly completed. I would then sign the documents without further review. I recognise now that this practice is far from best practice and that I was negligent in signing the WIRO Application without checking the correctness and accuracy of the contents of that application and its associated supporting documentation."
8. Finally, relevantly, the respondent referred to previous explanations concerning the circumstances in which the date of the year of the audiogram may have been changed to read 2014 set out in his statutory declaration of 30 April, 2015 and in particular the possibility of the change having been caused by a mark left on the copy when it was photocopied. The respondent said;
I understand that this explanation was speculation on my part and I cannot definitively know if this was the cause of why the 2012 Audiogram came to appear with a date on it in which the year read "2014". I believed this to be a credible explanation as during that time I had experience with the fax/photocopy machine in our office causing this problem……. In this context of known malfunctions of such a kind by the photocopier I believed Ms Anthony's explanation, which I repeated in my statutory declaration, was a credible explanation of why the date in the 2012 Audiogram read as it did in the version attached to the WIRO Application.
In reality, I do not know how the 2012 Audiogram submitted with the WIRO Application came to have a date that appeared to read "3 March 2014".
What I am certain of is I did not alter or amend the document, nor did I instruct my staff to alter or amend the document.
The evidence of the respondent at the earlier Tribunal hearing on 15 March 2017
1. The respondent gave lengthy evidence under cross examination during the course of the earlier hearing. We shall refer to those parts of the evidence relevant to our determination of these proceedings.
2. The respondent was directed to the answer given to question 3 in the ILARS application form which is referred to in Particular 15.1. He had denied that his client had made a claim prior to 19 June 2012 relating to "the injury" which was the subject of the application. In evidence the respondent said that this answer was correct because the application related to a new injury, being a claim for the cost of hearing aids. The respondent argued that a claim for hearing aids constituted a separate and distinct "injury", notwithstanding that his client's injury was clearly industrial deafness. He denied that the answer given in question 3 was false.
3. We would comment that this evidence given by the respondent is clearly incorrect and cannot be accepted. Part B of the application form which the respondent completed sought details of the injury which was described as being "industrial deafness." It is uncontroversial that the respondent's client had made a claim relating to industrial deafness prior to 19 June 2012.
4. In paragraph 3 (a) of the Application the respondent was asked to provide details of any past Section 66/67 claims and payments and responded; "Not applicable." In cross examination it was put to him that in so responding he had misled WIRO. He denied this, stating that the question was not applicable because he was not applying for any section 66 or 67 benefits. In so stating the respondent said "I'm not misleading them because I didn't say nil, I just said it's not applicable. Maybe I took the wording of the question – I didn't read it – I didn't really read it properly, but what I meant was I am not – I'm not answering that question because I'm not applying for any more section 66, 67." The respondent also denied that in responding in this way he had been recklessly careless.
5. In cross examination the respondent sought to argue that as at the date of the application no claim had previously been made by him on behalf of his client for the cost of hearing aids. This is notwithstanding the contents of his letter to the insurer of 22 March 2012 which are described in paragraph 3 of the SAF. He said that it would still have been necessary for him to file a formal claim for the cost of hearing aids. Again, this is notwithstanding the insurer's letter of 26 April 2012 also referred to in paragraph 3, which is addressed to the client care of the respondent, refers to a claim number, describes the employer as ISS Facility Services (NSW), states the date of injury as being 1 January 2008, contains a heading "Notice of Decision to Decline Liability for your Workers Compensation Claim" and commences with the words "We refer to your claim for permanent impairment for industrial deafness and the provision of hearing aids." The letter continued in part; "Based on the information in your file (outlined below) we have decided to deny liability for your claim for permanent impairment for industrial deafness and the provision of hearing aids." The notice was said to be given in accordance with section 74 of the Workplace Injury Management Act 1998.
6. In cross examination the respondent made much of the fact that the Application which he filed on behalf of his client with the Workers Compensation Commission referred to in paragraph 4 of the SAF did not include a claim for medical expenses under section 60, which was the relevant section referable to a claim for the cost of hearing aids. Notwithstanding this, it is nevertheless clear that the respondent's client had commenced proceedings in the Commission prior to 31 March 2013 and had made a claim prior to 19 June 2012 relating to the injury the subject of the ILARS application rendering the answers to questions 2 and 3 incorrect.
7. Of greater significance is the concession made by the respondent in cross examination in answer to a question from the Tribunal that he had failed to lodge a formal claim on behalf of his client for the cost of hearing aids with the Commission prior to the time-bar taking effect on 30 December 2013. He conceded that this was the reason that his client's claim was ultimately rejected by the insurer.
8. When asked in cross examination why he had not made a claim for the cost of hearing aids in the Commission proceedings, the respondent said that he was concerned because there was a "wide divergence of views" between Dr Williams (a specialist retained by solicitors formerly acting for his client) and Dr Stylis. This was notwithstanding the fact that Dr Stylis supported the provision of hearing aids in his report and the respondent had previously given notice of a claim for the cost of hearing aids to the insurer.
9. We do not accept this explanation given by the respondent as providing any sensible basis for him having failed to include the cost of hearing aids in the original claim brought by him in the Commission. We do not adopt an alternative reasoning postulated by the Tribunal in the course of the respondent's evidence in the earlier hearing that he might wish to bring separate proceedings for the cost of hearing aids in order to increase his costs. There is simply no basis upon which any such motivation could be assigned to the respondent.
10. However, we do take into account the fact that the respondent had failed to include a claim for the cost of hearing aids in the application brought by him before the Commission, and that by the time he completed the ILARS application he was aware that the insurer had expressed the view that such a claim was then time-barred. This is notwithstanding the assertion by the respondent that there might be an arguable legal basis for maintaining such a claim, even though the basis for any such argument appears never to have been pursued by the respondent on behalf of his client. It is arguable that at the time that he completed the ILARS application the respondent had an incentive to pursue a further claim with the Commission for the cost of hearing aids because of his failure to have formally included such a claim in the previous proceedings.
11. The respondent agreed that there was a risk that false statements might be contained within the application if he had signed it without checking it properly. However, he said that he did not know that there was any risk when he signed that document because up to that time he had completed about 200 or 300 of them and they contained no false statements that would "bring me to the Tribunal." When asked how he would know if he did not check the applications he then said; "Well, I did – I did check them." He then said that he did usually check the applications. He also said that he could have checked this particular application and repeated that "if you read the application from start to finish and you put all your questions together then I don't think that – I think that it's true and correct."
12. During the course of cross examination when he was attempting to argue that the answers given in the application were correct, the respondent continually referred to "what I am entitled" to do, "my answers to the application….", "I didn't say nil, I just said it's not applicable….." This evidence and other responses in similar vein were seized upon by the applicant to argue that the respondent had given "contemporaneous consideration" to the information being provided in the application. In view of the overall tenor of all of the evidence, including especially that of Ms Anthony, and in endeavouring to extract from the respondent's often conflicting evidence what we understand to represent what actually occurred, we are unable to conclude that the respondent consciously considered the actual answers which were typed into the application by Ms Anthony. We shall return to this matter later.
13. Later in cross examination the respondent was taken to the naming of Tafe as the employer and the incorrect date of the audiogram. The respondent then prevaricated and concluded his answer by saying "I'm – what I'm really saying there is I didn't review it, that's all."
The evidence of the respondent before us on 20 and 21 June 2019
1. The respondent gave further evidence by way of cross examination during the course of the hearing before us.
2. The respondent was asked whether he recollected the statement made by his client on 1 March 2012. He said that he recollected it only by looking at it and had no independent recollection of its contents other than by reference to reading it. The respondent was referred to his affidavit sworn to November 2016. In it the respondent referred to the usual practice in his office in completing applications for grants from WIRO involving completion by Ms Anthony based on information contained in a client statement and any audiogram. He confirmed that she would complete those applications in bulk and that she used a pro forma template which was pre-populated.
3. The respondent was then asked to give evidence about what parts of the WIRO application would be adapted for each client and which parts would not be changed. He said that a different template would be used depending upon whether the claim was for a lump sum payment or for the cost of a hearing aid. In explanation, however, the respondent said that in reality Ms Anthony did not have a template sitting in her computer, and she used an application form found on the WIRO website.
4. He said that when WIRO first commenced using that form he sat down with Ms Anthony and went through every question in the form with her and told her in general terms what questions would generally have the same answer regardless of who the client might be. However, the respondent was unable to recall what questions and what answers fell into this category. Nor was the respondent able to recall his conversations with Ms Anthony. Once he had gone through the form with Ms Anthony the respondent said that he considered her competent to complete the form for all clients which, it appears from his evidence, she undertook by herself without assistance from him.
5. The respondent was again taken to evidence which he had given before the Tribunal at the earlier hearing which we have referred to at [59] above. He was then asked about his usual practice in checking the applications, having confirmed that it was his usual practice to check them before they were submitted to WIRO. He was asked whether it was his usual practice to particularly be careful to check particular parts of the application form and he responded "no, not really." However, he said that it was his practice to look at every page of the form before he signed it, and to review the questions asked on every page. He said that he "sometimes" reviewed the answers but denied that he reviewed some applications more closely than others.
6. Specifically, the respondent said that it was his usual practice to look at page 3 of the application to make sure that the description of the work was given properly and the description of the injury. He said he told Ms Anthony what to insert in that part of the application which asked for the nature of the legal action being taken, and whether it was a hearing aid claim or a section 66 or 67 claim. When checking the form, he said he was mainly concerned with the contents of page 3.
7. The respondent conceded that the manner in which the form would be filled out by Ms Anthony would differ depending upon the type of legal action being taken. He was unable to say whether he checked the majority of the 200 to 300 applications about which he had earlier given evidence, or what portion or how many of them he had checked. He confirmed that he was mainly concerned with the correctness and accuracy of the information concerning the date of injury, the employer and the kind of work performed.
8. The respondent was taken to a number of matters which were the subject of certification in the application form dated 19 September 2014. We set out below extracts from the transcript.
Q. When you certified this form on 19 September 2014, before you actually signed on the dotted line, so to speak, you decided that the words "not applicable" should be inserted on page 452?
A. No.
Q. It's the case, isn't it, that before you signed this form on that date you turned your mind to the question of whether the words "not applicable" should be included on page 452?
A. No.
Q. When you say in the transcript, "That's why I wrote not applicable", would you agree with me that you turned your mind to whether or not the words "not applicable" should be included in the form?
A. No.
Q. Is it the case you say that you've never turned your mind as to whether the words "not applicable" should be included in the form?
A. I might have done it when we first did the completion of the template with Ms Anthony.
Q. You were aware, weren't you, as a result of your checking process, your usual checking process, do you say, do you, that the words, "not applicable" were always inserted at page 6 of 13 when you checked these forms?
A. No, because if it was a section 66 claim it - they - you wouldn't put it in.
Q. Whether the words, "not applicable" were there or not depended on what claim was being made?
A. I, I - look, I can't recall.
Q. It's the case, isn't it, that if it was, as you just said, it was a section 66 claim you wouldn't put the words, "not applicable" there?
A. Well, Ms Anthony used to answer them.
Q. If it was a section 66 claim you don't know whether or not she put the words, "not applicable", is that what you're saying?
A. I can't - yes, that's right, I can't recall. There was 300 or 400 of them.
Q. It's the case, isn't it, that you, in the ordinary course when engaging in your usual checking process, would have looked at these later parts of the form in order to check whether they were completed in accordance with the legal action that was being taken?
A. Look, I, I really - I can't recall.
Q. You don't know. You can't recall sitting here now what your usual practice was?
A. I do. I mean, but, I mean you're asking me in express detail and it's hard to recall what our practice was because we don't do this work anymore.
……………………………………………………………
Q. It's the case, is it, that you say you didn't turn mind at all to the question of what should be put in part C in response to the question, "Please describe the legal action you wish to take"? You didn't turn your mind to that question?
A. I told the secretary to, to - I gave her the file and said, "Claim hearing aids." She answered the, the questions in the form.
Q. It was your intention though in giving her that instruction that she should fill out part C, question (b) as stated there?
A. Yes.
……………………………………………
Q. When you came to certify this particular form on 19 September it's the case, isn't it, that you leafed through the pages of the form as in you turned the pages and looked at the pages of the form?
A. I can't recall that.
Q. You don't recall whether or not you looked at each page of the form?
A. I couldn't recall that.
Q. In accordance with your usual practice you would have looked at page 449; is that right?
A. I can't recall that.
Q. It was your usual practice, wasn't it, to look at page 3 of the form which is at blue book 449?
A. Yes. I remember doing that sometimes, yes.
Q. You ordinarily would, in your usual practice, check that the details of the injury were correct?
A. Yes.
Q. You have no reason to think that you didn't apply that usual practice here?
A. I - again, the questions were answered by Ms Anthony and I didn't check the form before I certified it.
Q. You said a moment ago that you didn't recall whether or not you looked through the form; is that right?
A. Yes.
…………………………………………
Q. It was a matter of some importance to you, wasn't it, that the form that was sent in relation to Mr Souaid's ILARS grant was completed correctly?
A. Yes.
Q. The references I took you to a moment ago in the transcript, it's the case, isn't it, that you personally turned your mind before certifying the form to the correctness of the answers in this particular form?
A. No. I've already answered that.
Q. It's your evidence that you didn't consider a single answer in this form as to whether or not it was correct or not; is that right?
A. That's right, yes. That's what I've said before.
……………………………………
Q. You gave evidence earlier today that this was an unusual application?
A. Yes.
Q. The reason why it was unusual was because there had been a history of dealings with the insurer and with the Workers Compensation Commission regarding a potential award of hearing aids?
A. Yes.
Q. In circumstances where this was an unusual application, you personally turned your mind, didn't you, to what answers should be given in the form before certifying it?
A. I didn't. That's why I'm saying that I was negligent in not doing that.
Q. When you say at line 26, "That's why I wrote, 'not applicable'" it's the case, isn't it, that you personally instructed Ms Anthony to put the words, "not applicable" in that box?
A. No. And, secondly, I, I didn't write anything.
Q. You personally considered whether or not the answer, "not applicable" was a truthful answer before you certified the form?
A. I've said for the - again, that Ms Anthony answered the questions and I signed the form.
1. It will be remembered that the respondent had consistently argued that the answers given in the ILARS application were correct, having regard to his understanding of the state of the law at the time. During cross examination the respondent was asked when he first turned his mind to the correctness of the statements, bearing in mind the overall thrust of his evidence that the answers had been provided by Ms Anthony and he had not seen them before the application was sent. The respondent said that he first turned his mind to the correctness of the statements after he received the letter from Mr Garling of 3 February 2015.
The standard of proof
1. It Is uncontroversial that the rules of evidence apply to these proceedings, and that the applicant must prove the complaints to the relevant civil standard, namely on the balance of probabilities. However, given the nature of these disciplinary proceedings, it is necessary that we apply what has become known as the Briginshaw standard. Furthermore, the degree of satisfaction that we must reach in determining whether the respondent is guilty of the misconduct alleged against him is also affected by the fact that the applicant alleges that the respondent is guilty of fraudulent conduct in altering the date on the audiogram.
2. The relevant principles have been summarised succinctly in the joint judgement of Mason C.J., Brennan, Deane and Gaudron JJ.in the High Court of Australia in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66. At [2] their Honours said;
2. The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary "where so serious a matter as fraud is to be found". Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. As Dixon J. commented in Briginshaw v. Briginshaw ((7) (1938) 60 CLR, at p 362;
"The seriousness of an allegation made, the inherent
unlikelihood of an occurrence of a given description, or
the gravity of the consequences flowing from a particular
finding are considerations which must affect the answer to
the question whether the issue has been proved ...".
(Citations omitted)
Conclusions concerning the evidence of the respondent about whether he checked the answers to the application before it was forwarded to WIRO and his contribution to its contents
1. The overall effect of the evidence of the respondent contained in his letter to Mr Garling of 16 February 2015, his statutory declaration of 30 April 2015, his letter of 11 February 2016, his affidavit of 2 November 2016 and his evidence before us in June 2019 is that he did not check the answers which had been inserted in the application by Ms Anthony before the application was forwarded to WIRO.
2. The only evidence to the contrary consists of references to the accuracy of the statements contained in the application given during the course of the earlier hearing on 15 March 2017 which we have previously summarised. We regard this evidence as involving an ex post facto rationalisation by the respondent in an endeavour to argue during the course of cross examination that the statements contained in the application were correct.
3. The conclusion which we are about to state is expressed by reference to the totality of the evidence and having regard to the "Briginshaw" standard. We are comfortably satisfied on the basis of the evidence, that the application was completed by Ms Anthony after the respondent had given her the client's file with his most recent statement and the audiogram then dated 2014 placed on top of the file. She did so without reference to any other contribution or oversight by the respondent, and the completed application was then given to the respondent to sign. The respondent signed the application without checking that the details contained in it were correct
4. Furthermore, we conclude on the same basis that the file had physically been given by the respondent in that condition to Ms Anthony with instructions to prepare the WIRO application.
The assessment of the application by WIRO
1. The applicant tendered into evidence an Affidavit of Timera McManis, Principal Lawyer employed by WIRO sworn 29 November 2016. Ms McManis assessed and subsequently managed the application for funding for Mr Souaid lodged electronically by the respondent on 19 September 2014.
2. The relationship between the respondent and WIRO was regulated by a pro forma agreement made on 3 December 2012. That agreement provided, inter alia, that the respondent would "at all times act honestly and in good faith" in his dealings with WIRO.
3. In assessing the application Ms McManis said that she considered as relevant, inter alia the following matters;
1. the noted occupation of cleaner and the employer being North Sydney Tafe
2. the stated date of injury being 2008 and the fact that no claim had been made upon any identified insurer
3. the assertion that Mr Souaid suffered from industrial deafness due to his employment, and that the employment at North Sydney Tafe had involved excessive exposure to industrial noise, relying on the audiogram furnished by Dr Stylis
4. the application was for the cost of hearing aids only
5. the applicant had reasonable prospects of success
6. notification when indicating whether there had been any prior claims for hearing loss and any past claims and payments under sections 66 and 67 of "not applicable."
1. Ms McManis said she noted the date of the audiogram, being 1 March 2014, the quantum of binaural hearing loss of 11%, the history given in Mr Souaid's statement, and the fact that he had not made a claim for hearing aids previously.
2. As a result of considering all these matters Ms McManis approved preliminary funding for professional costs and to obtain a moderately complex medicolegal report. This was communicated by her to the respondent on 24 September 2014.
3. On 22 January 2015 Ms McManis received an email from Trish Slattery, the respondent's secretary stating that the file in this matter was closed, enclosing a copy letter from the insurer, Allianz dated 7 November 2014 and a tax invoice. The Allianz letter was addressed to Mr Souaid care of the respondent and noted that he was not entitled to medical and other expenses because section 59A of the Workers Compensation Act precluded compensation being payable for such monies more than 12 months after a claim for compensation was first made. The letter noted that entitlement to claim these expenses ceased on 31 December 2013 and that this had previously been conveyed to the respondent on 27 August 2013.
4. Ms McManis replied by email the same day addressed to the respondent referring to the Allianz letter which suggested that a prior claim for hearing loss with a deemed date of injury of 2008 had been made. She said that; "This was not disclosed in your initial application. If the prior claim had been disclosed we would not have provided any funding due to section 59 A." The respondent was asked to reduce the professional costs component of his invoice and to provide the report of Dr Stylis, which was attended to.
5. Ms McManis responded to an assertion made by the respondent at paragraph 48 of his affidavit sworn 2 November 2016. In this paragraph the respondent referred to questions of interpretation of the provisions of section 59A(1) of the Workers Compensation Act and said "I expected that in correspondence with WIRO I would be able to make this submission and moreover, qualify that whilst he had made a claim, that claim was not successful, and accordingly, it had not come within section 59 A (1). I expected that I would be able to make these submissions because in my previous experience making applications to WIRO I have engaged in correspondence with WIRO officers clarifying and making submissions in respect of matters contained in the application when called upon by WIRO officers. However in this application WIRO officers made no requisition." Ms McManis said that there was nothing in the contents of the Application which would have led her to correspond with the respondent as it appeared to be a straightforward matter. She accepted the statement that there had been no prior claim for hearing loss and relied upon the supporting documents to this effect. There was no relevant ambiguity or other issue raised in the application which would have led her to have engaged with the respondent. Ms McManis said that the application "failed to disclose material information."
6. The evidence of Ms McManis was not challenged by the respondent.
The whereabouts of the originals of the statements of Mr Souaid and the audiogram
1. The applicant enquired of solicitors formerly acting for the respondent concerning the whereabouts of the originals of the application dated 19 September 2014 and the attachments by letter dated 24 November 2016. By letter received on 5 December 2016 the applicant was informed that the respondent could not locate the documents but would keep searching for them and would make contact if they were located.
2. We proceed on the basis that they have never been located by the respondent.
Did the respondent alter the date on the audiogram as alleged in Ground 1.1?
1. There is no direct evidence that the respondent altered the date on the audiogram. Accordingly, whether we can be satisfied applying the Briginshaw principle that he did so will depend on whether there is relevant circumstantial evidence that he did so.
2. The principles concerning the use of circumstantial evidence are usefully summarised in Chamberlain v The Queen (No.2) [1984] HCA 7; (1984) 153 CLR 521. In their joint judgment Gibbs CJ and Mason J (as his Honour then was) said;
16. It follows from what we have said that the jury should decide whether they accept the evidence of a particular fact, not by considering the evidence directly relating to that fact in isolation, but in the light of the whole evidence, and that they can draw an inference of guilt from a combination of facts, none of which viewed alone would support that inference. Nevertheless the jury cannot view a fact as a basis for an inference of guilt unless at the end of the day they are satisfied of the existence of that fact beyond reasonable doubt. When the evidence is circumstantial, the jury, whether in a civil or in a criminal case, are required to draw an inference from the circumstances of the case; in a civil case the circumstances must raise a more probable inference in favour of what is alleged, and in a criminal case the circumstances must exclude any reasonable hypothesis consistent with innocence (see Luxton v. Vines [1952] HCA 19; (1952) 85 CLR 352, at p 358 ; and Barca v. The Queen [1975] HCA 42; (1975) 133 CLR 82, at p 104 ). The statement by Lord Wright in Caswell v. Powell Duffryn Associated Collieries, Ld. (1940) AC 152, at p 169 , that "There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish" is obviously as true of criminal as of civil cases. The process of reasoning in a case of circumstantial evidence gives rise to two chances of error: "first from the chances of error in each fact or consideration forming the steps and second from the chance of error in reasoning to the conclusion": Morrison v. Jenkins [1949] HCA 69; (1949) 80 CLR 626, at p 644 . It seems to us an inescapable consequence that in a criminal case the circumstances from which the inference should be drawn must be established beyond reasonable doubt. We agree with the statement in Reg. v. Van Beelen (1973) 4 SASR, at p 379 , that it is "an obvious proposition in logic, that you cannot be satisfied beyond reasonable doubt of the truth of an inference drawn from facts about the existence of which you are in doubt". (at p536)
1. We proceed on the basis that in determining this issue we are required to consider all of the evidence which is relevant. We must then ascertain whether we are able to draw an inference from the circumstances of the case which must raise a more probable inference in favour of what is alleged by the applicant, informed by the need to apply the Briginshaw principle.
2. In order to deal with this matter, we note that the respondent commenced acting for Mr Souaid in November 2011, drafted a statement for him, arranged an audiogram, and initiated a claim on the insurer all in March 2012. In July 2012 he commenced proceedings in the Commission which did not resolve until November 2013. The respondent then again commenced to pursue Mr Souaid's claim for the cost of hearing aids in January 2014 which concluded in May 2014 when the client discontinued the proceedings which had then been commenced in the Commission. In early 2014 the respondent prepared a second statement for Mr Souaid by personally making handwritten amendments to the earlier statement during the course of a conference on 28 February 2014. This statement was returned to the respondent on 3 March 2014. The WIRO application was made on 19 September 2014. We infer from this narration that the respondent had a substantial familiarity with this client's matter.
3. We have already referred to the evidence concerning the circumstances in which the WIRO application was prepared. In her original statutory declaration sworn 14 July 2015 Ms Anthony said that she herself would go through the client file and prepare the application by using information from the client statement. In her affidavit sworn 2 November 2016 Ms Anthony was more specific. She said that normally the respondent would give her a file on top of which he had placed the client statement and audiogram to be used in preparing the application. She said specifically that this was the case concerning Mr Souaid's application.
4. In his detailed affidavit sworn 2 November 2016 the respondent said that it was his usual practice for Ms Anthony to complete WIRO applications. Whilst he had no particular recall of what had occurred in connection with Mr Souaid's application he presumed that he would have placed the client's second statement and the audiogram on top of the file.
5. Evidence given by the respondent was that he was at all material times a sole practitioner, and utilised secretarial staff to assist in running his practice. Industrial deafness claims formed a significant part of his practice. There is specific mention made in the evidence of one other staff member whom he used for the purpose of preparing client statements. On the evidence, the only secretarial staff who assisted in the preparation of WIRO applications was Ms Anthony.
6. On the evidence the person who had the overall care and control of Mr Souaid's matter was the respondent. Any of his secretarial staff who performed any work did so on the instructions of the respondent. There is no evidence of any person requiring access to Mr Souaid's file between March 2014 and September 2014 other than the respondent. On the evidence only the respondent was actively concerned with the management and prosecution of Mr Souaid's claim for the cost of hearing aids. There is no evidence that Mr Souaid was given the audiogram, and indeed the evidence is that he took away with him the amended statement only. There is no evidence of any requirement by the respondent or any of his staff to deal with the audiogram document for the purpose of the WIRO application prior to it being removed from the file and being placed on the top of the file, which we conclude on the basis of the evidence was undertaken personally by the respondent. Accordingly, he was the only person with physical access to the audiogram. We accept the evidence of Ms Anthony that she did not alter the audiogram. No one has suggested that she did.
7. We conclude based on the evidence before us that for the purpose of making the application which is the subject of these proceedings, that it was the respondent who personally removed Mr Souaid's second statement and the audiogram from the file, placed these documents on the front of the file and gave it to Ms Anthony in that state to enable her to complete the application on or about 19 September 2014.
8. We conclude that the date on which the audiogram was altered was no earlier than January 2014 when the respondent determined to renew his client's claim for the cost of the hearing aids, and that it had been altered prior to the file being given to Ms Anthony on 19 September 2014 when the application was prepared.
9. Unfortunately, the respondent has been unable to produce the original audiogram. We hold a photocopy of that document. There is no satisfactory evidence which would explain how the date came to be altered from 2012 to 2014 other than by a person making a mark through the tail of the 2 so that it appeared to be a 4. There are simply no other markings on the document which would indicate the presence of any line created by the operation of the photocopier or in any other manner. We repeat that the only mark contained on the audiogram is the line struck through the tail of the handwritten 2 to make it appear to be a handwritten 4.
10. The respondent sought to cast doubt on any assertion that he had himself made that alteration, because he said that there was no reason why he should do so, in all the circumstances pertaining to the application. We disagree. By January 2014 the respondent knew that his client's claim for the cost of hearing aids was time-barred. When he determined to pursue a claim for the cost of hearing aids on behalf of his client in February 2014, and when he determined to make the application on behalf of his client in September 2014, he was aware of the stance that the insurer would take. Furthermore, it would not be in his client's interests to direct attention to the fact that there had been an earlier unsuccessful claim for the cost of hearing aids initiated in 2012. Indeed, the evidence of Ms McManis confirms this.
11. If corroborative evidence of this is required, it is provided by the failure of the respondent to have extracted any material from the file relating to the earlier proceedings. It must be assumed that the respondent was at all times aware of those earlier proceedings at the time that the file was given to Ms Anthony to prepare the application. He had been intimately involved in his client's hearing loss claim over a substantial period of time, between November 2011 and May 2014. There is no evidence that the respondent brought the fact of the earlier proceedings to Ms Anthony's attention in any way. On the contrary, it was his failure to bring those matters to her attention that led to the preparation of an application which was clearly misleading in several significant respects, as we shall later discuss. For present purposes it is sufficient that we conclude that the respondent had a motive to conceal the fact of the earlier proceedings from WIRO, and an opportunity to do so by himself altering the date on the audiogram and taking steps to preclude Ms Anthony from adverting to those matters when she prepared the application. As we have said, on the evidence, the respondent was the only person who physically had access to the original audiogram. He was the only person who could have altered the date in the manner in which it occurred.
12. We add for completeness that the respondent submitted that altering the audiogram would not have logically ultimately assisted his client's case. We observe that matters of logic and what might otherwise be rational behaviour do not necessarily indicate that a person has not engaged in inappropriate conduct. Misconduct is almost always accompanied by illogical or irrational behaviour. We do not regard this submission as sufficient to displace inferences which may otherwise be appropriately drawn from the totality of the evidence.
13. In his Amended Reply the respondent asserted that there was no reason why he would have had any need to change the date on the audiogram by reason of the acceptance by WIRO of another application concerning another client which he said had raised a "past practice" as to what might be considered to be a "recent audiogram." The Amended Reply said in part;
1. he had relied on an old audiogram dated 8 April 2010 in respect of a similar application for a hearing loss claim to WIRO made on behalf of another client, Mr Vasilis Dmirgelis, dated 15 August 2014, which application was approved in or around 20 August 2014 ('Dmirgelis claim'); and
2. by reason of that previous application and WIRO's past practice approving that application and not raising any concern about the age of the audiogram relied upon as the 'recent audiogram' for the proposes of that Application assumed that the 2012 Audiogram would be acceptable as a 'recent audiogram' for the purposes of Application made in 2014;
1. We were not taken to any detail concerning this matter, and without that detail it is impossible to commence to consider whether there was, indeed, some "past practice" which would have impacted upon any need for the respondent to change the date of the audiogram. We reject the relevance of this other matter to the determination of these proceedings.
2. The respondent also sought to argue that his secretary had disclosed the existence of the earlier proceeding in January 2015 when she forwarded copies of letters from Allianz together with an invoice to WIRO. It was said that it would have been "entirely irrational and self-defeating" for the respondent to forward a letter to WIRO notifying it of the earlier claims if the respondent was seeking to conceal them from WIRO. As we have previously observed, questions of irrational behaviour occurring at a later date are not necessarily indicative that the respondent did not have the intention which we have impugned to him.
3. The respondent also submitted that the amount of his professional fees ultimately billed to WIRO, being $2846.25 plus GST was a trivial amount when compared with the risk that the respondent ran of severely impacting on his professional reputation. Again, we observe that explanations of this kind are not generally inconsistent with guilt; we must approach the matter by reference to the totality of the evidence.
4. In circumstances where we infer on the basis of all of the evidence that only the respondent had access to the audiogram before the date was changed to reflect the year 2014, and where we are satisfied that the date was so changed by a person drawing a line through the tail of the 2 so that it looked like a 4, we conclude that we are satisfied that it was the respondent who changed that date.
5. We are satisfied to the Briginshaw standard that this Ground has been made out.
The falsity of the client's statement dated 1 March 2014 as alleged in Ground 1.2
1. The particulars in clause 15.14 asserted that paragraph 7 of Mr Souaid's statement was false as the respondent knew or that he was recklessly careless as to whether or not the statement was false in a material particular namely that the client did not make a claim earlier for hearing aids.
2. Paragraph 7 of that statement which is dated 1 March 2014 says;
I say I did not make a claim earlier for hearing aids as I was not aware I had industrial deafness until a fiend (sic) of mine introduced me to Peter Livers who arranged a hearing test.
The words "for hearing aids" had been inserted in handwriting by the respondent into the original statement made on 1 March 2012.
1. As is clear from the recitation of the facts which we have set out previously Mr Souaid had made a claim for hearing aids earlier whilst the respondent was representing him as his solicitor. In his evidence and by way of explanation the respondent said that the statement was erroneous and should have read; "… I did not make a successful claim earlier for hearing aids….."
2. It was the evidence of Ms McManis that the fact that no earlier claim had been made was one of the significant matters taken into account in determining to grant the application. In any event, it is clear that the statement was to the effect that no earlier claim for the cost of hearing aids had been made, as the respondent conceded. To that extent it was false and, on the evidence of Ms McManis was misleading.
3. At all times the respondent knew that the statement was false. The respondent said that he was negligent only and that he did not intend to mislead WIRO, nor was he recklessly careless in having drafted the client's statement in this manner. Indeed, he sought to justify the presentation of the statement in this form as he described it in his Amended Reply;
the respondent was content to leave paragraph 7 of the Second Statement unaltered save for the manner described in the preceding paragraph because he had satisfied himself that there was a fairly arguable construction of s59A(1) of WC Act that did not preclude the making of an Application and that the claim made by Mr Souaid to the Insurer was not a claim of the kind caught by s59A(1) and accordingly there was a proper basis for retaining the words in paragraph 7 of the Second Statement that Mr Souaid 'did not make a claim earlier';
1. For completeness we set out the provisions of section 59A of the Workers Compensation Act 1987 in the form in which those provisions were found at the relevant time;
Workers Compensation Act 1987 No 70
Historical version for 4 July 2014 to 31 January 2015 (accessed 31 October 2019 at 16:08) Current version
Part 3 Division 3 Section 59A
59A Limit on payment of compensation
(1) Compensation is not payable to an injured worker under this Division in respect of any treatment, service or assistance given or provided more than 12 months after a claim for compensation in respect of the injury was first made, unless weekly payments of compensation are or have been paid or payable to the worker.
(2) If weekly payments of compensation are or have been paid or payable to the worker, compensation is not payable under this Division in respect of any treatment, service or assistance given or provided more than 12 months after the worker ceased to be entitled to weekly payments of compensation.
(3) If a worker becomes entitled to weekly payments of compensation after ceasing to be entitled to compensation under this Division, the worker is once again entitled to compensation under this Division but only in respect of any treatment, service or assistance given or provided during a period in respect of which weekly payments are payable to the worker.
(4) This section does not apply to a seriously injured worker (as defined in Division 2)
1. We observe that there was never any question raised in any of the documentation which became evidence in these proceedings, or indeed in any other evidentiary material before us that in some way Mr Souaid was entitled to payment of weekly compensation or was so paid. Prima facie, his claim for the cost of hearing aids was always time-barred in the manner asserted by the insurer. Indeed, the respondent did not ultimately contend otherwise, and discontinued the proceedings which he had initiated in 2014 on behalf of his client for the cost of hearing aids.
2. We agree with the applicant's submissions that the respondent's assertion that he was merely negligent, or ignorant of the consequences of this admitted false statement cannot be accepted. At the least he was recklessly careless about the falsity of the statement. Furthermore, as we have already pointed out, the respondent had had a significant past involvement with this client's matter since November 2011, and that involvement had included a previous issue concerning the cost of hearing aids, detailed correspondence with the insurer, the matter of hearing aids had been raised by the arbitrator in the compensation proceedings and the respondent had sought to revisit that matter after final consent orders had been issued which did not cover the cost of hearing aids. There can be no doubt that he had a close knowledge of the history of this matter. This would mitigate against the omission in this statement as being a mere careless or "negligent" slip.
3. We agree with the applicant that the amendment made by the respondent to paragraph 7 of the client's statement was a precise one and reflected a consciousness on the part of the respondent to seek to hide this earlier hearing aid claims history from WIRO. This conclusion is reinforced by the failure of the respondent to direct Ms Anthony to any previous claims history and to any previous action taken by the respondent on behalf of Mr Souaid when he restricted her attention to documents confined to the amended statement of the client and the audiogram altered so that it was dated 2014. The respondent must be taken to have known at all times that these would be the only documents to which Ms Anthony would refer in completing the application to WIRO. The respondent was familiar with the form of application used by WIRO, and it was his evidence that when WIRO commenced using it, he went through each of the fields to be completed with Ms Anthony. It may be assumed, therefore, that the respondent would, or at the least should have, been aware that a failure to make any reference to any prior claims history for industrial deafness against a named employer involving a named insurer, resulted in the information being furnished in the application as being false.
4. We regard the attempt by the respondent to justify his conduct by directing attention to his omission to insert the word "successful" as a facile excuse to hide the real history of his client's claims from WIRO.
5. In all the circumstances we are satisfied to the Briginshaw standard that the respondent misled WIRO in order to obtain a grant of funding by drafting and relying on his client's statement dated 1 March, 2014, which he knew to be false. Furthermore, we are so satisfied that in doing so the respondent attempted to mislead WIRO to obtain a grant of funding because the false representation that there had been no earlier claim for hearing aids was a matter significant to WIRO in considering the application, as he must have known. We repeat that the respondent had had many years of experience practising in workers' compensation law.
6. We would add that if we had not so found we would have found that the respondent was recklessly careless as to the consequences of his amendment in the sense that we are satisfied that he did not care whether or not he misled WIRO in the manner in which paragraph 7 was framed. This was because in addition to the client's statement having been false in the manner which we have identified, the respondent had restricted the information which would be contained in the application by failing to direct Ms Anthony's attention to any of the prior history of the client's matter, thus resulting in the totality of the application being misleading, because it contained material omissions and false assertions, as alleged in Ground 1.3, which, for reasons which we shall shortly state, we find proven.
The material omissions and false assertions in the ILARS grant application as alleged in Ground 1.3
1. We have previously summarised the manner in which the application was said to contain material omissions and false assertions, the particulars of which are set out in clauses 15, 16 and 17.
2. By reason of his Amended Reply the respondent admitted that the application contained statements as described in subparagraphs 15.1 to 15.14. However he said that the application was completed by Ms Anthony who had regard to the information contained in the client's second statement, the audiogram and the report of Dr Stylis, and whom he had only asked to prepare the application after learning about changes to the workers compensation legislation made on 3 September 2014 and satisfied himself that there was a fairly arguable construction of his client's entitlement to make the claim by reason of section 59A of that legislation. Accordingly, it was said that there was "a proper basis" for the statements described in the subparagraphs of paragraph 15. He also admitted that he was negligent in signing the application without reviewing the correctness and accuracy of the matters recorded in it and the matters purporting to be shown in the audiogram to the extent that it was dated 1 March 2014.
3. However, the assertions made by the respondent that there was a proper basis for the statements described in paragraph 15 must be considered in light of the evidence which he gave that the first occasion on which he had directed his mind to the correctness of those statements was after he received the letter from Mr Garling dated 3 February 2015. On the basis of the conclusions which we have previously reached concerning the state of the evidence in these proceedings, the respondent's input into the statements contained in the application was restricted to providing Ms Anthony with the client's amended statement and the audiogram with the date changed to read 2014, and the withholding from her of any information concerning the history of the prosecution of his client's claims.
4. We repeat that the respondent should not be regarded as a solicitor lacking in experience in this area. He regarded himself as an expert in the area of workers' compensation law and had been involved in completing between 200 and 300 applications to WIRO for funding.
5. Both parties submitted that when considering whether or not there were material omissions or false assertions in the application, we should have regard to the subjective intentions of the respondent. Both parties referred us to the decision of the High Court of Australia in Murphy v Farmer [1988] HCA 31; (1988) 165 CLR 19. Those proceedings arose out of the provisions of Customs legislation which provided for forfeiture of goods to the Crown in respect of which an entry invoice declaration contained a statement or representation which was "false or wilfully misleading in any particular." In the Supreme Court of NSW, a first instance Judge had held that such a statement or representation could only be false if it was intentionally untrue and thus wilfully false. That decision was unanimously upheld in the NSW Court of Appeal. An appeal to the High Court was dismissed in a majority decision. (Brennan and Toohey JJ dissenting).
6. The majority judgement was of Deane, Dawson and Gaudron JJ: At [4] of their joint judgement their Honours said;
4. It was common ground in argument in this Court, as it apparently was in the Court of Appeal, that the word "false", when viewed in isolation, is a latently ambiguous one. As the dictionaries confirm, it can mean merely "untrue" or "wrong". Or it can involve both subjective and objective elements and mean "purposely untrue".
1. After discussing in some detail the competing arguments in favour of the appropriate meaning to be given to the word "false" their Honours said;
10. The above arguments and presumptions favouring one or other of the permissible meanings of the word false are, in our view, fairly evenly balanced. If it were necessary that we decide the matter by reference to them alone, we would incline to the view that the word "false" in s.229(1)(i) should be read as meaning "purposely untrue". However, we find it unnecessary to dispose of the appeal on that basis. It seems to us that, regardless of what view one takes of the comparative weight of the competing arguments and presumptions, the latent ambiguity of the word "false" remains. Section 229(1)(i) is to be found in Div. 1 ("Forfeitures") of Pt. XIII ("Penal Provisions") of the Act. It imposes forfeiture as the consequence of the giving of "false or wilfully misleading" information in relation to the entry of goods. The provision is, in our view, properly to be seen as penal or quasi-penal in character and as attracting the rule that "(t)hose who contend that a penalty may be inflicted, must shew that the words of the Act distinctly enact that it shall be incurred under the present circumstances. They must fail, if the words are merely equally capable of a construction that would, and one that would not, inflict the penalty" (Dickenson v. Fletcher (1873) 9 LR CP 1, at p 7).
1. Murphy concerned the provisions of Customs legislation. In these proceedings we are dealing with allegations contained in disciplinary proceedings, and it might be thought that the appropriate approach to construction of this part of the Complaint brought against the respondent should by analogy reflect that of the High Court in Murphy. However, considerations of this nature are less relevant in the circumstances of these proceedings. Ground 1.3 is prefaced by alternative allegations contained in the introductory words in Ground 1. Thus the constituent parts of Ground 1.3 are;
1. Misleading WIRO or
2. attempting to mislead WIRO
3. in order to obtain a grant of funding
4. by preparing the grant application which contained material omissions and/or
5. by preparing the grant application which contained false assertions
6. by relying on the grant application which contained material omissions and/or
7. by relying on the grant application which contained false assertions
1. In setting out the constituent parts of this Ground in this manner it will be seen that the decision in Murphy has less relevance because the constituent parts require an assessment to be made of the respondent's subjective intention or, alternatively, whether he acted with reckless indifference with the overall effect of either misleading or attempting to mislead WIRO.
2. We have already concluded that the respondent did not give any considered thought to the accuracy of what had been typed by Ms Anthony when completing the application. We note that this conclusion is consistent with so much of the respondent's Amended Reply as is contained within paragraph 15(b)( v) which conceded that he was negligent in signing the application without reviewing the correctness and accuracy of the matters recorded which are set out in particulars 15.1 to 15.6, 15.8,15.9,15.11,15.13,15.14 and 15.10 and 15.12 to the extent that the audiogram was purportedly dated 1 March 2014.
3. The applicant submitted that the assertion by the respondent that he was negligent in not checking the answers given by Ms Anthony is inconsistent with his statement that there was a proper basis for the answers which were given. Presumably he may be taken to be saying that notwithstanding his negligence in failing to have checked the accuracy of the statements, there was nevertheless a proper basis for making those statements by reason of his understanding of the then current state of the law. We repeat that on the evidence, the first occasion on which he had directed his mind to the correctness of those statements was after he received the letter from Mr Garling dated 3 February 2015.
4. However, even if the respondent were in some way justified in relying on his understanding of the then state of the law in asserting that the answers given were "proper", nevertheless the answers given clearly fail to accurately represent the underlying factual basis for his client's claim as referred to in the application. The details of the answers are set out in Particular 15. Other than the answers in 15.7, 15.10, and 15.12 all answers were false, as we find.
5. If the respondent had deliberately set about ensuring that the answers given were in all the circumstances true, he would need to have qualified the application appropriately by reference to his then understanding of the state of the law notwithstanding the fact that a claim had previously been made for the cost of the hearing aids and ultimately abandoned. The respondent sought to argue that there was no room in the application form to qualify the answers in any way. Such an argument does not displace the necessity for the application to be accurate and to be not misleading, as the respondent was required to certify. It is obvious that an accompanying email would have resolved this issue.
6. Furthermore, any attempt to rely on the answers being "proper" in the circumstances pays no regard to the respondent's failure to alert Ms Anthony to the substantial history of the prior claim made by the respondent on behalf of this client, which included details of the name of the employer, the identification of the insurer, the nature and extent of the claim made and the outcome of the prosecution of the claim by the respondent.
7. And notwithstanding the respondent's assertion that there was some "proper" basis for the application having been formulated in the manner in which it was, this does not explain the answer given to question 1 (a) of Part C of the application which is referred to in particular 15.6. This question asked the applicant to describe details of the matter and the legal action that the respondent wished to take by indicating whether it involved either a preliminary investigation or a desire to challenge the decision of the insurer. The application stated that this was a preliminary investigation. Of course, nothing could be further than the truth, and there was nothing preliminary about the pursuit of a claim for the cost of hearing aids on behalf of this client.
8. None of this information was provided by the respondent to Ms Anthony in circumstances, as we have earlier found, he must have been aware of its existence. As we have earlier found, such conduct by the respondent can only be explained by reference either to a deliberate intention to withhold that information from Ms Anthony and therefore from its inclusion in the application or a reckless carelessness to withhold it on the basis that he didn't care whether or not it was disclosed to WIRO. The withholding of this information must also be seen against the failure of the respondent to check the application prior to it being forwarded electronically to WIRO.
9. In all the circumstances we are satisfied to the Briginshaw standard that this Ground has been made out. We are satisfied that the respondent attempted to mislead WIRO in the manner alleged by having caused his secretary, Ms Anthony to prepare the grant application dated 19 September 2014 which contained omissions which were material and assertions which were false as particularised in Particular 15, and in the alternative by relying on that application containing those material omissions and false assertions, all of which was for the purpose of obtaining a grant of funding for the pursuit of a claim for the cost of hearing aids on behalf of his client Mr Souaid.
Professional Misconduct
1. Having found each of the Grounds of complaint proven it is then necessary to determine whether the respondent is guilty of misconduct as asserted by the applicant. The applicant submitted that the respondent was guilty of professional misconduct within the meaning of the Act.
2. The respondent in his Outline of Closing Submissions document filed on 16 September 2019 submitted that we would make a finding that the respondent "engaged in professional misconduct on the basis of the admissions contained in the Amended Reply." During the course of hearing final oral submissions on 15 October 2019 we raised this submission with Senior Counsel for the respondent. Mr Prince informed us that although the respondent conceded that he was guilty of professional misconduct on the basis of the material contained in the Amended Reply, no complaint had been made by the applicant concerning the nature of the conduct of which the respondent conceded he was guilty. Mr Prince said that his client would resist any attempt by the applicant at that late stage to endeavour to amend the proceedings to include a complaint of this nature. We gave the applicant an opportunity to obtain instructions as to whether he would make an application to amend the proceedings accordingly, and we were later informed after the conclusion of the hearing that no such application would be made.
3. Accordingly, our consideration of whether the respondent is guilty of professional misconduct as alleged by the applicant is confined solely to the matters which are the subject of the Application before the Tribunal in its current form.
4. Professional misconduct is defined in the Act by section 497, which in turn directs attention to the definition of unsatisfactory professional conduct. We set out below the definitions of both of these expressions;
497 PROFESSIONAL MISCONDUCT
(1) For the purposes of this Act:
"professional misconduct" includes:
(a) unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence, and
(b) conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.
(2) For finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the matters that would be considered under section 25 or 42 if the practitioner were an applicant for admission to the legal profession under this Act or for the grant or renewal of a local practising certificate and any other relevant matters.
496 UNSATISFACTORY PROFESSIONAL CONDUCT
For the purposes of this Act:
"unsatisfactory professional conduct" includes 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. Whether and to what extent conduct constitutes unsatisfactory professional conduct or professional misconduct will require attention to the statutory definitions coupled with an evaluative judgment. In making these observations we are cognisant also of the ability to have recourse to the common law definitions of professional misconduct in authorities including Allison v General Council of Medical Education and Registration [1894] QBD 750 to which, in the circumstances of these proceedings, it is not necessary to refer.
2. The starting point is a consideration of whether the conduct falls short of the standard of competence and, diligence that a member of the public is entitled to expect from a reasonably competent Australian legal practitioner. It is a trite observation that the practice of law is an honourable profession and solicitors are expected to act at all times in an honourable fashion.
3. The findings which we have made do not reflect favourably on the respondent. We have found that he had deliberately intended to mislead WIRO in order to obtain public funding to pursue a claim on behalf of a client for the cost of hearing aids which he had previously abandoned, and about which there was, at the least, doubt as to whether it was then time-barred. In the alternative we have found that the respondent was recklessly careless as to whether the contents of the application were true and correct either by way of omission or false statements. All of this conduct took place against the background that the respondent had certified to WIRO as to the accuracy of the information contained in the application. We have also found that the respondent drafted a statement on behalf of his client which he knew to be false and, in the alternative, was recklessly careless as to whether it was false. Furthermore, we have found that he deliberately altered the date of a document for the purpose of misleading or attempting to mislead WIRO to obtain that funding.
4. We have no hesitation in concluding that the conduct of the respondent which we have found proven constitutes unsatisfactory professional conduct and constitutes a substantial failure to maintain a reasonable standard of competence and diligence.
5. The nature and extent of the misconduct of the respondent which we have found is indicative of a substantial failure to adhere to a standard of conduct which the public is entitled to expect of the legal profession. Notwithstanding that the respondent was endeavouring to facilitate his client's claim for the cost of hearing aids, the respondent nevertheless stood to benefit from a grant of legal aid funding. In the aggregate we find that the totality of the misconduct of the respondent would justify a finding that he is not a fit and proper person to engage in legal practice and is thereby also guilty of professional misconduct.
Costs
1. The applicant sought a costs order in his favour. Having made a finding that the respondent is guilty of professional misconduct, we are empowered to make a costs order at this stage of the proceedings. However, given that the proceedings must be adjourned to enable a hearing to be conducted concerning any appropriate protective order that should be made consequent upon this finding, it is more appropriate that costs be considered at the conclusion of that further hearing, as is the usual course in proceedings of this kind before this Tribunal. Accordingly, we shall defer consideration of the applicant's cost application.
Orders
1. Consequent upon the finding of professional misconduct which we have made we make the following order:
1. The proceedings are stood over to a date to be fixed by the Registrar for a Stage 2 hearing to determine whether and what if any protective orders should be made and to determine whether a costs order should be made.
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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: 27 November 2019
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