Council of the Law Society of New South Wales v Zhukovska

1. [1]

   MACFARLAN JA: I agree with Leeming JA although, as the issue is not dispositive, I do not express a final view as to the appropriate test to be applied on appeal.

2. [2]

   LEEMING JA: The Law Society appeals from the orders imposed by the New South Wales Civil and Administrative Tribunal at the conclusion of disciplinary proceedings in that Tribunal brought against Ms Myroslava Zhukovska: Council of the Law Society of NSW v Zhukovska (No 2) [2019] NSWCATOD 196. NCAT ordered that Ms Zhukovska’s practising certificate be cancelled, that she be reprimanded, fined and precluded from receiving any new practising certificate until 5 November 2020, following a series of findings of unsatisfactory professional conduct and professional misconduct occurring in 2013 and 2014.

3. [3]

   The Law Society submits that NCAT erred in failing to order, instead of the suite of orders which it in fact made, that Ms Zhukovska’s name be removed from the roll of practitioners maintained by the Supreme Court of New South Wales.

4. [4]

   The issues which arise are:

   1. (1)

      the nature of the appeal from NCAT to this Court and in particular whether it is necessary to establish House v The King error;

   2. (2)

      whether any of the grounds of appeal relied upon by the Law Society are made out;

   3. (3)

      if so, whether this Court should make more favourable findings as to Ms Zhukovska’s fitness to practise, as sought by her notice of contention, and what orders this Court should make in the re-exercise of discretion.

Factual background

1. [5]

   The starting point is the facts which gave rise to findings by NCAT, none of which is challenged by either side on appeal, of five instances of professional misconduct and five instances of unsatisfactory professional conduct by Ms Zhukovska: Council of the Law Society of NSW v Zhukovska [2019] NSWCATOD 66. That decision was followed by a second, much shorter, hearing concerning penalty. It is as well to observe at the outset that, since 16 October 2014, when the dealings which are the subject of findings of professional misconduct and unsatisfactory professional conduct were uncovered by a Law Society investigation, Ms Zhukovska has not practised as a solicitor. She deposed to having done “child minding, taught French, gardening, delivered marketing materials, letter box drops, strata inspection reports” as well as undertaking some legal education. She said that she investigated doing a master’s degree, but did not enrol because of the Law Society’s application to remove her name from the roll.

2. [6]

   According to the evidence before NCAT, Ms Zhukovska was born in Siberia in 1978, completed primary and secondary schooling in the Ukraine and undertook an undergraduate degree in philology at the University of Ukraine. She moved to Canada in 1998 and studied law in Montreal, in French, and obtained an LLB degree. In early 2005, she moved to Sydney, for family reasons, and over the next four years completed the Legal Professional Admission Board Diploma in Law. On 3 July 2009, she was admitted to practise as a solicitor in New South Wales.

3. [7]

   Ms Zhukovska thereafter worked as an employed solicitor in three small suburban firms between 2009 and 2012 and obtained an unrestricted practising certificate in 2012. On 10 August 2012, she incorporated a law practice known as McMahon Todd Pty Ltd, with the assistance of an accountant, Mr Christopher Charlton of the firm Charltons Accountants.

4. [8]

   In July 2013, Ms Zhukovska made a file note of a telephone call from a neighbour of Ms Dulci Barbara Heane, advising that the neighbour had been asked to be appointed by power of attorney to handle her financial affairs, now that Ms Heane had been placed at a residential aged care facility. Ms Zhukovska spoke with Ms Heane later that day, according to her affidavit and file note, and met with her at the aged care facility on 17 July 2013. She took with her a draft power of attorney, appointing herself as attorney, which appears to have been executed by Ms Heane that day.

5. [9]

   NCAT found that at the time Ms Heane’s assets included a home unit (which was sold the next month for $552,000) and other assets of some $113,000. She had no close relatives, apart from the children of a sister, from whom she had been estranged before she died.

6. [10]

   Thereafter, the Tribunal found that Ms Zhukovska undertook the following work for Ms Heane:

7. [11]

   There was a dispute between Ms Zhukovska and an employee. The employee made a complaint to the Law Society triggering an investigation and these proceedings, in which the Law Society sought orders removing Ms Zhukovska’s name from the roll, identifying 12 grounds which it contended amounted to professional misconduct or unsatisfactory professional conduct. The Tribunal found that 2 of the grounds were not established (these related to taking steps to ensure that Ms Heane understood the nature and effect of a power of attorney, and obstructing or misleading an investigator); they need not be mentioned. The remaining ten grounds are summarised below.

8. [12]

   Ground 11 of the Law Society’s application was based on the fact that Ms Zhukovska’s law practice invoiced fees for work done for Ms Heane, including the non-legal work relating to the renovation of the unit summarised in (3) above, at the hourly rates set out in her costs disclosure. The total fees were estimated in that document as ranging between $12,280 and $21,650. No updated cost estimate was provided. Over the next five months, Ms Zhukovska’s law practice rendered fees in excess of $76,000, based on rates of $310 per hour for Ms Zhukovska, and smaller rates for a junior lawyer and paralegal. The Tribunal recorded that it appeared to be uncontested that a substantial amount of the work performed by the law practice, particularly by the paralegal but to some extent also by the junior lawyer, was not legal work and included supervision of tradesmen at the Collaroy unit.

9. [13]

   The Tribunal referred to concessions made by Ms Zhukovska during cross-examination that she should not have charged at legal rates for the time spent doing non-legal work. The Tribunal also accepted opinion evidence adduced by the Law Society that Ms Zhukovska should not have charged at professional rates for the non-legal work.

10. [14]

    The Tribunal regarded the overcharging of her client as conduct which would be regarded as disgraceful and dishonourable by practitioners of good repute and competency, particularly because her client was considered to be “vulnerable”, relying upon Veghelyi v The Law Society of New South Wales (unreported, Court of Appeal, 6 October 1995) and New South Wales Bar Association v Amor-Smith [2003] NSWADT 239.

11. [15]

    Ms Zhukovska gave evidence that she caused the trust to be established as a result of Ms Heane’s concern that a claim might be made against her estate by her estranged sister’s children. The Tribunal recorded that in cross-examination Ms Zhukovska “left an unclear impression about whether or not she knew the definition of ‘eligible person’ at the time” and agreed with the Law Society that “her testimony in this regard was most unconvincing”. There was evidence that the work had been performed unreasonably, having regard to its extent and the overall lack of benefit to Ms Heane, and that there was no occasion to bring into existence a trust structure, given the size of Ms Heane’s estate. The Tribunal regarded this aspect of the conduct as falling short of the standard of competence and diligence which the public was entitled to expect from a reasonably competent practitioner, and therefore unsatisfactory professional conduct, but which fell short of professional misconduct. This was part of ground 2 of the Law Society’s application.

12. [16]

    A related but separate ground (ground 3) of the Law Society’s application was the direction in the will drafted by Ms Zhukovska that Ms Heane’s residuary estate be transferred to the trustee. The will drafted by Ms Zhukovska, signed by Ms Heane on 1 September 2013, replaced a previous will executed in July 1998 which appointed Permanent Trustee Co Ltd as executor and trustee and recorded Ms Heane’s wishes for her estate to be distributed in equal shares to the Salvation Army and a charity caring for dogs. This was also found to constitute unsatisfactory professional conduct, but not professional misconduct.

13. [17]

    In November 2013, Ms Heane signed the “Successor Appointor Deed”, the effect of which was that Ms Zhukovska was nominated as the new appointor, effective on Ms Heane’s death. The appointor had power to change the discretionary objects of trust. Ground 4 of the Law Society’s application was the failure by Ms Zhukovska to ensure that Ms Heane obtained independent legal advice before conferring that benefit upon Ms Zhukovska.

14. [18]

    The Tribunal was critical of the defence made by Ms Zhukovska to this ground. Its reasons included the following:

15. [19]

    The Tribunal regarded this conduct as professional misconduct.

16. [20]

    Ms Zhukovska acted for Ms Heane on the sale of her Collaroy unit and directed the conveyancers to draw bank cheques in favour of Dulbar in the amount of $420,000 and two cheques to Ms Heane totalling $61,557.58. Ms Zhukovska deposited the cheque in favour of Dulbar into the Dulbar cheque account, rather than into her firm’s trust account. This was done without a written direction from the client, and was alleged by the Law Society to amount to a breach of s 254 of the Legal Profession Act 2004 (NSW) and conceded by Ms Zhukovska to amount to unsatisfactory professional conduct. The Tribunal so found. This was ground 5 of the Law Society’s application.

17. [21]

    Ms Zhukovska also failed to disclose to the Law Society that she had received the proceeds of sale as trust money. Ms Zhukovska conceded the breach, but said it was a “technical” one. The Tribunal found this was unsatisfactory professional conduct (ground 10).

18. [22]

    Grounds 6, 7 and 8 concerned unsecured loans which Ms Zhukovska caused Dulbar to make with the proceeds of sale. Each was different. Dealing with them in chronological order, there was a loan of $40,300 to a Ms McCann, for a period of two months at an interest rate of 8.75% per annum. The loan was documented by a deed, with an equitable mortgage and draft caveat. The minimum period of loan was two months. Dulbar’s bank account showed a debit of $40,300 on 16 December 2013, and the repayment of that sum on 31 January 2014. Thus the loan was repaid in full in less than the two months minimum term. Dulbar’s bank account also shows a credit of $583, reflecting interest for the full two month period.

19. [23]

    In order to make available the $40,300, Dulbar had incurred break fees in relation to a term deposit. The Tribunal recorded that when this was put to Ms Zhukovska in cross-examination, she appeared to minimise its significance by referring to the comparatively low interest rate available on the term deposit.

20. [24]

    The Tribunal also addressed as an issue whether the loan was in fact unsecured. The Tribunal said as follows:

21. [25]

    The Tribunal found that this conduct amounted to professional misconduct. It did so because of its conclusions expressed as follows:

22. [26]

    However, in this Court, the Law Society did not rely upon this finding. It took that view because it accepted that Ms Heane’s consent was not required before the trustee made investments. It may also be noted that the Tribunal appears to have proceeded on the basis that the equitable mortgage constituted by the retention of the title deeds and the obtaining of a draft legal mortgage was not security. The security obtained by an equitable mortgagee is more fragile than a legal mortgage, but a lender with the benefit of an equitable mortgage would nonetheless ordinarily be described as secured. However, before the Tribunal, Ms Zhukovska accepted that the loan was unsecured.

23. [27]

    The second loan took place a few weeks later. This time, the loan was in an amount of $10,000 for a six week period, for which $1,000 interest was to be paid. There was no separate deed; rather, there were exchanges of emails between Mr Sean St Clair and the paralegal in Ms Zhukovska’s office. Dulbar’s bank statements record the $10,000 being debited on 4 March 2014, with repayments of $7,050 on 23 April 2014 and $4,000 on 1 May 2014. Unlike the loan to Ms McCann, the documentation for this transaction consisted merely of email exchanges, and was evidently wholly unsecured. Once again, the Tribunal regarded this conduct as professional misconduct, basing its conclusion on the failure to obtain instructions from Ms Heane and the risks involved. As previously noted, in this Court, the Law Society placed no reliance upon that finding, accepting that instructions were not needed from the trustee.

24. [28]

    The third loan was documented by a single page letter from Ms Zhukovska in her capacity as a director of McMahon Todd Pty Ltd to Mr Charlton, her fellow director of Dulbar, dated 10 March 2014, the whole of which was as follows:

25. [29]

    It will be seen that the letter referred to the loan being paid in full plus interest by 30 June 2015 but also referred to monthly payments on “30 June 2015” (no monthly repayments were in fact made). There was a reference to authorising Dulbar to lodge a caveat, although what the caveatable interest created by the loan was was unexplained. Plainly enough, the loan was stated to be for the benefit of Ms Zhukovska’s wholly owned company McMahon Todd Pty Ltd. This loan was different both in magnitude and because of Ms Zhukovska’s interest in the borrower.

26. [30]

    It was accepted that McMahon Todd drew down amounts of $5,000, $10,000 or $15,000 (and in one case an amount of $16,280) on 13 occasions between 14 March and 29 July 2014. The total amount withdrawn was $116,280. An investigation was made into the practice in early September 2014. Shortly after that occurred, Ms Zhukovska closed the Commonwealth Bank account operated by Dulbar, obtaining a bank cheque in the amount of $85,658.45, which she delivered to Mr Charlton at the same time as resigning as a director of Dulbar. Mr Charlton established a new bank account in the name of Dulbar Investments with ANZ, into which that bank cheque was deposited. That occurred on 16 September 2014. On the following day, 17 September 2014, Ms Zhukovska caused to be deposited the total amount borrowed of $116,280, together with interest in the amount of $4,432.96.

27. [31]

    Once again, Dulbar incurred break fees because a term deposit in the amount of $150,000 was closed before its maturity date in order to permit some of the drawdowns to be made. It was not disputed that Ms Zhukovska had breached r 12.3 of the New South Wales Professional Conduct and Practice Rules 2013 (which prevents solicitors borrowing from their clients), and that the loan had been made without the direct knowledge or proper instructions of Ms Heane.

28. [32]

    The Tribunal accepted that in March 2014, Ms Zhukovska lacked knowledge of r 12. The Tribunal concluded that this ground amounted to unsatisfactory professional conduct, but fell short of professional misconduct, explaining its conclusions as follows:

29. [33]

    The final ground of complaint advanced by the Law Society, ground 12, was a generalised allegation that Ms Zhukovska had preferred her own interests to those of her client. This focussed upon the entirety of the conduct summarised above. The Tribunal found that this amounted to professional misconduct, expressing its conclusion as follows:

30. [34]

    The Law Society did not rely upon that part of the reasoning in [140] which was based on grounds 6 and 7, but maintained that the conclusion of professional misconduct was warranted on the other grounds.

The “stage 2” hearing on 5 November 2019

1. [35]

   The second hearing took place on 5 November 2019. Mr Barnes appeared for the Law Society, Ms Cameron for Ms Zhukovska. Early in that hearing, the Tribunal raised with the parties the possibility that after receiving the evidence and hearing their submissions, it might be possible after an adjournment for the Tribunal to come to a decision on the same day, with reasons to be published separately.

2. [36]

   Ms Zhukovska relied upon some character references, only one of which was from a person with legal qualifications, Ms Kanokwan Subhodyana. Counsel appearing for Ms Zhukovska opposed the making of a strike-off order, acknowledged that the conduct was serious and that disciplinary orders must be made reflecting its gravity, but said there was no longer a need for protection, although because she had been outside the profession for a lengthy period, it would be appropriate that she remain as an employed solicitor for a period of time, suggesting two years. Counsel also proposed that in terms of other conditions there was not “a great concern to the public”, but “if there were an ongoing concern, it would relate to dealing with vulnerable clients”, and stated that “that could be dealt with by way of her being an employed solicitor for a period of time”, an undertaking that she not operate any trust accounts in the immediate future, and that she physically attend some courses in continuing legal education.

3. [37]

   There was an adjournment at around 11:20 am, following which the Tribunal advised counsel appearing for Ms Zhukovska that

4. [38]

   The Tribunal said that that was “obviously entirely her call” and suggested that it be “either sworn evidence or an unsworn statement – as it were, from the bar table”.

5. [39]

   Counsel for the Law Society immediately said that if Ms Zhukovska wished to give further evidence, it should be on affidavit, and provided in time for him to prepare proper cross-examination of her. The Tribunal again referred to the possibility of an unsworn statement, and continued with the following exchange:

6. [40]

   After a further adjournment, Ms Cameron advised that her instructions were to provide the Tribunal with an unsworn statement, and a handwritten statement appears to have been made available. Immediately, Mr Barnes objected and stated that this was not permitted in the proceedings, because (by reason of cl 20 of Sch 5 of the Civil and Administrative Tribunal Act 2013 (NSW)), the rules of evidence applied when the Tribunal was exercising a function for the purposes of the Legal Profession Uniform Law 2014 (NSW). No contrary submission was made by Ms Zhukovska, and the Tribunal indicated that it regarded itself as bound not to accept an unsworn statement.

7. [41]

   Ms Cameron advised that her instructions were to proceed by way of sworn evidence in the witness box, in order to finalise the proceedings on the same day. Mr Barnes objected to that, on the basis that he was not in a position to cross-examine Ms Zhukovska on that day.

8. [42]

   After a further short adjournment, Ms Cameron advised that if “the position is that the proceedings are to be delayed, we would prefer to not put on the further evidence, my instructions are, in order for it to be dealt with today, if that were the position”. The hearing concluded shortly thereafter, and the Tribunal indicated that it was likely that it would be able to make orders that afternoon. It did so, making orders that Ms Zhukovska’s local practising certificate be cancelled, that any new practising certificate should not be issued to her before the end of 12 months from the date of the Tribunal’s orders, that she pay a fine of $9,000, be reprimanded, and pay the Law Society’s costs of and incidental to the proceedings as agreed or assessed.

NCAT’s reasons for the orders

1. [43]

   The reasons for those orders were provided on 2 January 2020: Council of the Law Society of NSW v Zhukovska (No 2). They take the following form.

2. [44]

   First, the Tribunal referred to its earlier decision, and observed that the provision which was central to the proceedings was s 562 of the Legal Profession Act 2004, rather than the Uniform Law. It observed by reference to New South Wales Bar Association v Cummins [2001] NSWCA 284 at [24] that the test for removal from the roll was whether the practitioner was “probably permanently unfit to practise”.

3. [45]

   The Tribunal then summarised the hearing, including the decision by Ms Zhukovska not to provide evidence. It stated that it gave very little weight to the unsworn statements by three of her referees, but gave greater weight to the character statement by Ms Subhodyana, because she appeared to be legally qualified and said she was aware of NCAT’s earlier decision, albeit limited by the fact that the statement was not sworn or affirmed. After summarising the parties’ submissions and authorities, the Tribunal’s dispositive reasons rejecting the Law Society’s application that her name be removed from the roll are relatively brief, at [51]-[54]. It will be more transparent if they are reproduced in their entirety:

4. [46]

   Relevant to ground 1(b) of this appeal, are the following four paragraphs under the heading “Ms Zhukovska’s wish to continue to practise”:

5. [47]

   At [55], the Tribunal recorded a finding following what had been said at [53], that Ms Zhukovska was unfit to hold a practising certificate, and concluded that the public, members of the profession and the courts would be sufficiently protected by an order cancelling the certificate for “at least 12 months”, “together with the other orders discussed below” (this finding is challenged in the notice of contention).

6. [48]

   However, despite the reference to “the other orders discussed below”, and the Tribunal’s observation that it was important as soon as practicable for appropriate conditions to be formulated for any re-issue of the practising certificate and any ongoing practice, the Tribunal did not specify those conditions. It said it was not in a position to do so: at [58]. It said that there had been no submissions at the level of detail, save for a concession that Ms Zhukovska would be prepared to accept a condition as to ongoing practice education and training and some form of supervision. So far as I can see, the Tribunal was correct to say that it had not received submissions on detailed conditions, and the Law Society acknowledged in this Court that it had sought the removal of Ms Zhukovska’s name from the roll, and had not advanced any fallback submission.

7. [49]

   In those circumstances, the Tribunal made a series of recommendations to the Law Society, emphasising that they were not part of the Tribunal’s order and were not intended to limit the Law Society’s discretion: at [59]. The recommendation was expressed thus:

8. [50]

   The Tribunal then issued a public reprimand, imposed a fine and ordered that Ms Zhukovska pay the Law Society’s costs.

The grounds of appeal

1. [51]

   The Law Society appeals on five grounds:

Applicable legislative regime

1. [52]

   It will be convenient to commence with some observations about the orders made by NCAT, those sought by the Law Society, and the nature of this appeal.

2. [53]

   First, in light of the parties’ submissions, it is important to bear steadily in mind the difference between (a) the removal of a practitioner’s name from the roll, (b) the cancellation of a practising certificate, (c) the suspension of a practising certificate for a specified period, and (d) an order that a practising certificate not issue before the end of a specified period.

3. [54]

   Each of those orders plays a part in this appeal.

   1. (1)

      The Law Society sought from the Tribunal, and seeks from this Court, removal of Ms Zhukovska’s name from the roll.

   2. (2)

      The Tribunal made orders cancelling her practising certificate, and preventing any new practising certificate from issuing for 12 months.

   3. (3)

      Ms Zhukovska’s practising certificate had in fact been suspended by the Law Society in October 2014, and, in addition, the Law Society placed heavy emphasis in its submissions on the power to suspend a practising certificate, in contradistinction with the removal from the roll.

4. [55]

   All these powers are sourced in statute. The current legislation is a schedule to a Victorian statute made applicable in New South Wales by s 4 of the Legal Profession Uniform Law Application Act 2014 (NSW). I shall simply refer to the schedule as the Uniform Law. Express provision is made in s 302 of the Uniform Law for all four of those orders: see s 302(1)(f), (h) and (i) of the Uniform Law (with the difference that the power is not to remove a name from the roll, but to recommend the removal of a name – see for a recent example Council of the Law Society of New South Wales v Yoon [2020] NSWCA 141).

5. [56]

   However, because Ms Zhukovska’s conduct took place in 2013 and 2014, aspects of the earlier regime were applicable. How this is so seems to be quite complex. The complaint and the investigation were taken to have been done under the Uniform Law, as explained in Berger v Council of the Law Society of New South Wales [2019] NSWCA 119 at [224]. However, that does not prevent the Legal Profession Act 2004 from applying to proceedings in NCAT. To the contrary, the transitional provisions in cl 21 of Sch 1 of the Civil and Administrative Tribunal Act provide that a reference to the Uniform Law includes where relevant a reference to the Legal Profession Act 2004. The complaint was made in 2014, and had not been disposed of before the commencement of the Uniform Law. Clause 26 of Sch 4 of the Uniform Law provides that the complaint or investigation is to continue to be dealt with in accordance with the provisions of the “old legislation”, which is a reference to the Legal Profession Act 2004. It is possible that other transitional provisions were also involved. None of this was explored in argument, for the good reason that it was common ground, both in NCAT and in this Court, that s 562 of the Legal Profession Act 2004 was the applicable source of power.

6. [57]

   So far as I can see, in only one respect is that significant. Under the Uniform Law, NCAT only has power to recommend the removal of a practitioner’s name from the roll. Under s 562, NCAT had power directly to order that the name be removed from the roll.

7. [58]

   Subsection (1) of s 562 of the Legal Profession Act provided that if the Tribunal was satisfied that a practitioner had engaged in unsatisfactory professional conduct or professional misconduct, then “the Tribunal may make such orders as it thinks fit”, including any one or more of the orders specified in the section. Subsection (2) provided as follows:

8. [59]

   Thus the four orders of especial relevance are found in s 562(2)(a), (b) and (c).

9. [60]

   Subsection (3) of s 562 dealt with other jurisdictions. Subsection (4) authorised the imposition of fines, requirements of further education and supervision during practice, counselling, periodic inspection and the like. Subsection (4)(j) empowered the making of an order “that the practitioner not apply for a local practising certificate before the end of a specified period”. I shall return to subsection (4)(j) below.

10. [61]

    The powers to order the removal from the roll, cancellation of a practising certificate and that a certificate not issue until the expiration of a specified period may be found in earlier regimes: see for example s 163 of the Legal Profession Act 1987 (NSW) as originally enacted and s 171C of that statute after the amendments effected by the Legal Profession Reform Act 1993 (NSW) (which replaced the concept of “serious professional misconduct” by the “professional misconduct/unsatisfactory professional conduct” dichotomy).

11. [62]

    However, it is important to appreciate that the regulation of legal practitioners has altered considerably over the last century, and some earlier authorities need to be read with caution. In particular, as will be seen below, the Law Society relied on Law Society of New South Wales v McNamara (1980) 47 NSWLR 72. Although only reported in the New South Wales Law Reports in 2000, that was a decision of this Court delivered in 1980, hearing an appeal from the Solicitor’s Statutory Committee established under the Legal Practitioners Act 1898 (NSW). Section 77 of that statute conferred powers to strike a solicitor off the roll, suspend a solicitor from practice either conditionally or otherwise and to pay a fine. There was no power to cancel or impose conditions on the terms of the solicitor’s practice. There was a proviso conferring a discretion to dismiss a charge or decline to make a finding of professional misconduct and, if considered appropriate, to make an order reprimanding the solicitor. Hutley JA, after identifying the powers set out above, noted that the Law Society had power to issue a limited practising certificate, and in doing so would give weight to the views expressed by the Statutory Committee, but could not be bound by them, with the result that:

12. [63]

    Mahoney JA made substantially the same point at 82.

13. [64]

    The Law Society relied on the following passage in the reasons of Reynolds JA at 76, after his Honour had rejected the imposition of a fine:

14. [65]

    The distinction between striking-off and suspension reflected the limited powers available to the Statutory Committee some 40 years ago under the 1898 statute. That distinction has, however, continued to prove influential. It may be seen, for example, in the distinction drawn between the main orders addressed in G Dal Pont, Lawyers’ Professional Responsibility (6th ed, Lawbook Co, 2017) at pp 765-768 and in the discussion of “three of the most notorious forms of disciplinary order” (striking off, suspension and reprimand) in chapter 33D “Disciplinary orders” in the New South Wales Solicitors’ Manual (services 58 and 69, current as at July 2020). Neither work has a section on cancellation. Both endorse the passage of Reynolds JA from McNamara, with the Solicitors’ Manual reproducing part of the passage at [33,055.1].

15. [66]

    The same care must also be taken with other passages from decisions involving former regimes. Take for example a familiar passage in the reasons of Dixon CJ, dissenting in the result, in Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279 at 286; [1957] HCA 46, concerning the suspension and disbarment of a barrister, that “it is probably a better course in most cases where room exists for the belief that time may give the barrister a title to resume his place at the Bar to allow him to re-apply at a subsequent time and offer positive evidence of the grounds upon which he then claims to be re-admitted”. That passage remains valuable insofar as it tells against suspension. However, it does not assist when the choice is between cancellation of a practising certificate and removal from the roll, both of which place an onus upon the person to reapply and justify why he or she should be permitted to return to practice.

16. [67]

    The same may be said of passages in Mellifont v The Queensland Law Society Incorporated [1981] Qd R 17 at 31, in Attorney-General v Bax [1998] 2 Qd R 9 at 21-22, and in Re a Practitioner (1984) 36 SASR 590 at 593. The passage in Re a Practitioner was endorsed by Mason P in New South Wales Bar Association v Hamman [1999] NSWCA 404; 217 ALR 553 at [100], but, significantly, that was in a context where the barrister’s practising certificate had already been cancelled (see at [17]), and the only question was whether, in an exercise of this Court’s original jurisdiction supervising legal practitioners, the barrister’s name should be removed from the roll.

17. [68]

    However, while the powers exercised by NCAT (and if the appeal is successful, by this Court) are those under the former regime, the consequences of the exercise of those powers are determined by the current regime. For example, NCAT cancelled Ms Zhukovska’s practising certificate. That was an exercise of the power under s 562(2)(b). If that order stands, and Ms Zhukovska wishes to practise as a legal practitioner, she will have to apply for the grant of a practising certificate under the regime presently applicable.

18. [69]

    Significantly, in light of the Law Society’s submissions based on the power to suspend, s 78 of the Uniform Law provides as follows.

19. [70]

    It follows that if a practising certificate is suspended, then it may be renewed, and when the period of suspension comes to an end, the practitioner will have a practising certificate which is neither suspended nor cancelled, such that the practitioner will be permitted to practise. The right of renewal is subject to the requirements of s 45 of the Uniform Law, which include a prohibition upon renewing a practising certificate if the designated local regulatory authority considers that the applicant is not a fit and proper person to hold the certificate: s 45(2).

20. [71]

    In contrast, if a practising certificate is cancelled, the person will need to make an application to the designated local regulatory authority for the grant of a new practising certificate.

21. [72]

    Section 6(1) of the Uniform Law defines a “disqualified person” to include (inter alia):

    1. (1)

       a person whose practising certificate is suspended;

    2. (2)

       a person whose practising certificate has been cancelled and who has not subsequently been granted another practising certificate, and

    3. (3)

       a person whose name is removed from the Supreme Court roll, until such time as he or she is admitted or readmitted by the Supreme Court of any jurisdiction.

22. [73]

    It will be seen that while the class of “disqualified person” extends to those three categories, each will cease to be a disqualified person in quite different circumstances.

    1. (1)

       In the case of a person whose practising certificate is suspended for a specified period, the person will cease to be a disqualified person when that period expires.

    2. (2)

       In the case of a person whose practising certificate has been cancelled, the person will need to apply for the grant of a new practising certificate. The designated local regulatory authority must be satisfied that the person is a fit and proper person to hold a practising certificate, and may have regard to, inter alia, any previous disciplinary action (see r 13(1)(f) and (g) of the Legal Profession Uniform General Rules 2015 read with s 45(3) of the Uniform Law).

    3. (3)

       In the case of a person whose name is removed from the roll, that person thereupon ceased to be admitted to the Australian legal profession, and will need to reapply to the Supreme Court for admission. That involves a series of steps which need not be summarised (an aspect of which may be seen in Hilton v Legal Profession Admission Board [2017] NSWCA 232); it is sufficient for present purposes to note that it is more arduous than applying for a new practising certificate, and includes complying with the additional requirements imposed by r 14 of the Legal Profession Uniform Admission Rules 2015 (NSW).

23. [74]

    Thus, removal from the roll will prevent Ms Zhukovska from returning to practice until such time as the Supreme Court of this or another State admits her. Cancellation of her practising certificate will prevent Ms Zhukovska from returning to practice until such time as the relevant authority (the Law Society of NSW) grants her a practising certificate.

24. [75]

    The powers to make an order preventing an application from being made, or a practising certificate from being issued, for a specified period provide a minimum period during which the person may not practise. The actual period will depend, of course, on whether and when the person makes an application after the expiry of that period, and also on whether the relevant authority is satisfied that a practising certificate should issue.

25. [76]

    The Law Society’s appeal from NCAT’s orders is as of right, pursuant to cl 29(2) of Sch 5 of the Civil and Administrative Tribunal Act. Subclause (4)(a) provides that the appeal “is an appeal to which section 75A of the Supreme Court Act 1970 applies and, accordingly, is by way of a rehearing rather than a new (de novo) hearing”. Because NCAT was exercising a function for the purposes of the Uniform Law, the appeal is assigned to the Court of Appeal: Supreme Court Act, s 48(1)(a)(viii) and (2)(f).

26. [77]

    Pursuant to s 75A(6) of the Supreme Court Act, this Court has the same powers and duties of the body from which the appeal is brought, including the power to make findings of fact and to draw inferences. It follows that this Court likewise may, if the appeal is allowed, make one or more of the orders in former s 562 of the Legal Profession Act 2004.

First issue: the test to be applied on appeal

1. [78]

   The parties exchanged submissions on the test to be applied by this Court.

2. [79]

   The Law Society denied that it was necessary to establish House v The King error. It maintained that either Ms Zhukovska's name should be removed from the roll or it should not, that while undoubtedly there was an evaluative and multi-factorial process of reasoning, there was a single unique answer, and thus it was not necessary to establish House v The King error.

3. [80]

   The Law Society accepted that there was a range of protective orders which could be made on an application such as the present following findings of unsatisfactory professional conduct or professional misconduct, but maintained that in a case such as the present, the threshold question was whether the Tribunal was satisfied that the solicitor was permanently or indefinitely unfit to practise, to which question there was a single answer. If the Tribunal was not satisfied that the practitioner's name should be removed from the roll, then there was a range of orders which could be made, and the principles of House v The King applied to that decision. But to the threshold question of whether or not the name should be removed from the roll it was submitted that the “correctness standard” (the term used by Gageler J in Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30) applied.

4. [81]

   The Law Society in substance said the principles in Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9 applied, requiring the appellate court to give effect to its own judgment if upon reviewing the trial, and whilst recognising any advantages enjoyed by the primary judge, it considers that the decision of the primary judge was wrong.

5. [82]

   Ms Zhukovska’s invocation of House v The King amounted to insisting upon a requirement of establishing material error (which could be patent or latent) in the exercise of a discretionary power. Ms Zhukovska maintained that the task faced by the Tribunal at the second hearing was a “quintessentially discretionary decision”, that that was borne out by the authorities and was correct in point of principle. The jurisdiction being protective, the question was what orders were necessary to protect the public.

6. [83]

   Ms Zhukovska pointed to some authority supporting her submissions. This Court’s decision in The Council of the Law Society v Doherty [2010] NSWCA 177 proceeded on the basis that the Law Society’s appeal (seeking an order that a solicitor’s name be struck from the roll, as opposed to the cancellation order made by the Administrative Decisions Tribunal) required the identification of House v The King error, in particular the conclusion that the order was “within the range” at [66]. However, there is nothing to suggest that any point was taken in that appeal. There is more elaborate consideration of the evaluative process to be undertaken in such a case by Buss P in Khosa v Legal Profession Complaints Committee [2017] WASCA 192 at [44]-[45], but that did not extend to the decision to remove a name from the roll.

7. [84]

   I doubt whether much is likely to turn on this point in most cases. It remains necessary to identify some legal, factual or discretionary error: Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40 at [23]. Nothing turns on it in the present case, because I am satisfied there has been material error. Nonetheless, it is the starting point, and in deference to the parties’ submissions (which were of a high quality) it is best analysed, although I shall do so concisely.

8. [85]

   There is a helpful summary of principle and authority in Jadwan Pty Ltd v Rae & Partners (A Firm) [2020] FCAFC 62 at [402]-[415], which exposes two distinct but related aspects of appellate restraint. The first concerns the grounds on which a court will intervene, while the second concerns whether the particular ground is one where the appellate court is at a disadvantage compared to the trial judge, or in the same position as the trial judge, or indeed in an advantageous position compared to the trial judge (as Allsop P observed in Yarrabee Coal Co Pty Ltd v Lujans [2009] NSWCA 85 at [3]). Submissions in this appeal were directed to the first aspect.

9. [86]

   The Law Society invoked the analysis of Gageler J in SZVFW, who concluded at [49] that:

10. [87]

    Subsequently, that approach (which had also been stated by Edelman J at [150]) was endorsed by a unanimous High Court constituted by seven Justices in The Queen v Bauer (a pseudonym) [2018] HCA 40; 92 ALJR 846 at [61]:

11. [88]

    Reasoning to similar effect was given by Jordan CJ in In re the Will of F B Gilbert (decd) (1946) 46 SR (NSW) 318 at 323:

12. [89]

    There is a superficial attraction to the Law Society’s submission that there can only be one correct answer to whether Ms Zhukovska’s name should be removed from the roll. However, two more general considerations cast doubt upon the correctness of the submission.

    1. (1)

       First, there is the question of asymmetry. It is to be borne in mind that both parties have a right of appeal from the order imposed. On the Law Society’s case, the Law Society has an appeal on the correctness standard on the issue whether Ms Zhukovska’s name should be removed, but Ms Zhukovska, if she wishes to challenge the conditions imposed upon her resuming practice, needs to establish House v The King error. That seems odd. There would be a similar asymmetry if the Tribunal had made an order removing a practitioner’s name from the roll.

    2. (2)

       Secondly, anything can, in a sense, be turned into a discrete binary question if the issue be sufficiently narrowed and refined. The Law Society’s submissions focussed on the binary question admitting of only one correct answer whether or not a name should be removed from the roll. There are many other ways of framing the question so as to give rise to a binary issue. Should Ms Zhukovska be entitled to practise within the next 12 months? Should Ms Zhukovska be entitled to practise only if she undertakes certain training? Should Ms Zhukovska pay a fine exceeding $10,000? All those questions are binary and have a unique correct answer. Yet the Law Society very properly conceded that a House v The King test applied to the period during which Ms Zhukovska is precluded from applying for a practising certificate, or the fine imposed upon her. Why then is the removal of a name in a different position?

13. [90]

    Those general considerations cast doubt on the correctness of the Law Society’s submission. But the analysis starts with the nature of the power being exercised by the Tribunal, and the nature of the appeal brought to this Court. It is always dangerous to take the words of a judgment which are apt for a particular statutory context, and apply them to a different statutory context. Indeed, to return to In re Gilbert’s Will, Jordan CJ wrote:

14. [91]

    In Bauer the question under the Evidence Act was whether tendency evidence was of “significant probative value”, and in SZVFW the question was whether the lower court had erred in concluding that a tribunal’s decision was legally unreasonable, thereby constituting jurisdictional error.

15. [92]

    In both Bauer and SZVFW, the statutory (and, in the case of SZVFW, the constitutional) context required the resolution of a precisely circumscribed issue, to which there was but one correct answer, albeit which turned on an evaluative determination.

16. [93]

    Those powers may be contrasted with the “two-stage process” described by Mason CJ, Deane and McHugh JJ in Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40 under ss 7 and 9 of the Family Provision Act 1982 (NSW). There, the power in s 7 to make such provision out of an estate as in the opinion of the Court ought to be made for the maintenance, education or advancement of an eligible person was by s 9(2) conditioned upon the Court being satisfied that the provision which had been made was “inadequate for the proper maintenance, education and advancement in life of the eligible person”. Mason CJ, Deane and McHugh JJ said at 208-209 that:

17. [94]

    Their Honours held that the same principles governing review of discretionary decisions applied to an appeal from the jurisdictional question: at 212. Although on one view an eligible person either has or has not been left with adequate provision, Gageler J accepted in SZVFW at [45] that the House v The King standard necessarily applied. So far as I can see, that must be because there is more than one correct answer to the question posed by statute as to whether “inadequate” provision has been made for the “proper” maintenance, education and advancement in life of the eligible person, as was noted in Sgro v Thompson [2017] NSWCA 326 at [86]; see also Strang v Steiner [2019] NSWCA 143 at [78]-[79], [133] and [190].

18. [95]

    Section 562 is very different. Having found five instances of professional misconduct and five instances of unsatisfactory professional conduct in its first decision, the power under s 562 to make any of the orders in that section was engaged. None was mandated. All were discretionary. In principle, except insofar as they were mutually inconsistent, it was open to NCAT to make one or more than one of the orders. In the present case it made four substantive orders (cancellation, fine, reprimand, no certificate to issue within 12 months).

19. [96]

    That suite of orders was to be exercised so as to protect the public from misconduct by lawyers: Wentworth v New South Wales Bar Association (1992) 176 CLR 239 at 251; [1992] HCA 24. The question was which order or orders from the panoply conferred by s 562 were appropriate in order to serve the predominantly protective jurisdiction being exercised. The reasoning in SZVFW and Bauer is inapplicable.

20. [97]

    I conclude that it is necessary for the Law Society to establish House v The King error.

Second issue: errors made by the Tribunal

1. [98]

   Nothing turns on the foregoing, because I am persuaded that the decision of the Tribunal discloses material error. It is preferable to address the remaining grounds by reference to the issues which they raise.

2. [99]

   The starting point is the finding about present unsuitability to practise as a solicitor, reflected in [53] and [55]. (I note that this is the subject of Ms Zhukovska’s notice of contention, to which I shall return.) If the Tribunal were satisfied not only that Ms Zhukovska was presently unfit to practise, but was likely to be unfit for the indefinite future, then it would be appropriate to order that her name be removed from the roll. If the Tribunal were not so satisfied, then such an order should not be made.

3. [100]

   The Law Society submitted that the ultimate issue, in determining whether an order for removal from the Roll should be made, was whether the practitioner is shown not to be a fit and proper person to be an officer of the Supreme Court, to be decided at the time of hearing: A Solicitor v Council of the Law Society of New South Wales (2004) 216 CLR 253; [2004] HCA 1 at [15] and [21]. The Law Society bears the onus of establishing that the solicitor is likely to be unfit to practise for the indefinite future. As Campbell JA explained in Stanoevski v The Council of the Law Society of New South Wales [2008] NSWCA 93 at [53]-[54]:

4. [101]

   The Law Society emphasised that where, as here, there was demonstrated misconduct, and a claim for rehabilitation, then the evidentiary onus shifted to the solicitor: Stanoevski at [60].

5. [102]

   Of the power to suspend, the Law Society submitted:

6. [103]

   The Law Society returned to the power to suspend when addressing grounds 2 and 3. After reproducing [51]-[53] of the Tribunal’s reasons, the Law Society observed, correctly, that there was a positive finding that Ms Zhukovska was presently not a fit and proper person, and no finding as to when or in what circumstances she would become a fit and proper person to practise as a solicitor. The Law Society then cited Reynolds JA in McNamara at 76:

7. [104]

   The Law Society submitted:

8. [105]

   Footnote 6 in that passage was:

9. [106]

   The point was reiterated orally, by reference to the passage from Reynolds JA’s judgment in McNamara reproduced above:

10. [107]

    The distinction between removal from the roll and cancellation of a practising certificate was raised during the hearing:

11. [108]

    In response, the Law Society sought to conflate the principles applicable to suspension with those applicable to cancellation:

12. [109]

    I do not agree that the distinction between suspension and cancellation is “technical”. I do not agree that the principles applicable to the power to suspend extend to the power to cancel.

13. [110]

    Ms Zhukovska’s written submissions pointed out that the Law Society’s submissions that once it was found that she was not presently fit to practise, NCAT was required to determine when and subject to what conditions she would become fit to practise, failing which her name should be removed from the roll, rest on a false dichotomy. I agree.

14. [111]

    There is a third possibility, which is that while NCAT was satisfied that Ms Zhukovska was not presently fit to practise, it was not satisfied that she was permanently or indefinitely unfit to practise. In that case, suspension for a specified period of time is not appropriate. Nor is removal from the roll. Rather, a cancellation order is appropriate, coupled with an order preventing application from being made for at least such time during which NCAT considers that she would not be fit to practise.

15. [112]

    As noted above, the dichotomy posed by Reynolds JA in McNamara turned on a regime where (a) the Statutory Committee lacked power to cancel a solicitor’s practising certificate and (b) it was held wrong for the Statutory Committee to have regard to the limitations imposed by the Law Society upon the solicitor’s practising certificate. It follows that what was said cannot be taken as authority for what is to occur under the regime applicable to Ms Zhukovska.

16. [113]

    It is not to the point to say that the evidence and findings did not support an order which was not made by the Tribunal, namely, an order suspending Ms Zhukovska from practice. The issue is whether there was error in the order which was made, namely, that Ms Zhukovska’s practising certificate be cancelled, with the consequence that she must, if she wishes in the future to return to practice, apply for a new practising certificate and satisfy the Law Society that she has ceased to be a person who was unfit to practise.

17. [114]

    The Law Society’s response was as follows:

18. [115]

    But this reasoning contains a series of errors. First, the legal onus at all times remained on the Law Society to show probable indefinite unfitness to practise. Accepting that the evidentiary onus might shift, it is wrong to reason that the failure to find that a solicitor would be fit to practise in the future entailed that the solicitor would be indefinitely unfit to practise. Secondly, it does not follow that “the only available conclusion” from the absence of a finding as to when she would become fit to practise is that she was indefinitely unfit to practise. If indeed the Tribunal were satisfied that she would likely become fit to practise after a specified period, then an order suspending her practising certificate for that period would be appropriate. If the Tribunal was not satisfied that she was probably permanently unfit to practise, but was unable to determine when she would become fit to practise, then a cancellation order, not the removal from the roll, was appropriate.

19. [116]

    Hence, I reject the principal submission advanced by the Law Society.

20. [117]

    The Law Society complained that while the Tribunal found that Ms Zhukovska was not presently a fit and proper person to practise as a solicitor, there was no basis for the conclusion that she would be a fit and proper person in 12 months’ time, when she might have (although she need not have) complied with the recommendations it made to the Law Society. This was put as a failure to make material findings of fact.

21. [118]

    In its submissions in reply, it said that by failing to make orders concerning the conditions to be imposed, the task fell to the Law Society to do so if Ms Zhukovska reapplied for a practising certificate. The Law Society advanced the following submission:

22. [119]

    While the Law Society accepted that it would assess fitness to practise at the time of any later application, it submitted that “the Tribunal must still consider the minimum conditions and/or re-education that must occur before such fitness has a prospect of being established.”

23. [120]

    Ms Zhukovska sought to draw the inference from the Tribunal’s recommendations that the Tribunal was satisfied that they would be adequate to ensure that she was fit to practise:

24. [121]

    The Law Society responded that the Tribunal’s recommendations did not bind the Law Society, “thereby demonstrating that it had not, itself, formed a final or definite view as to what conditions should be imposed, when it clearly had the power to do so.” The Law Society also asserted that:

25. [122]

    I do not accept the entirety of either side’s submission. I do not accept that the Tribunal impliedly found that compliance with its recommendations would ensure that Ms Zhukovska was fit to practise. I do not accept that a recommendation has no legal effect (for it is plainly a Peko-Wallsend relevant consideration in the exercise of discretion by the Law Society). I also do not accept the implicit submission that it was always for the Tribunal, as opposed to the Law Society, to impose conditions which will reduce the scope for controversy and dispute at a later application for the grant of a practising certificate.

26. [123]

    The Tribunal’s failure to make conditions was attributable to the attitude expressed by both parties, namely, to attempt to make orders immediately on the day if that was possible, and the fact that neither side advanced in any detail conditions which were appropriate. In particular, the Law Society did not propound any alternative regime against the possibility that the Tribunal might not find likely indefinite unfitness to practise.

27. [124]

    In an ordinary case, it would have been open to the Tribunal to seek further submissions on conditions, perhaps after announcing that it was not prepared to make an order removing the name from the roll. That was not possible consistently with orders being made on the day. But short cuts can make long delays.

28. [125]

    In the present case, I am satisfied that there was material error in the Tribunal’s decision, insofar as it made no findings to justify the 12 month period during which Ms Zhukovska would not practise, and there was nothing to justify a reasonable prospect of receiving a practising certificate in 12 months’ time, especially given the fact that its suggestions were non-binding recommendations.

29. [126]

    First and foremost, there was the finding made at [53] and [55] that Ms Zhukovska was, in November 2019, not fit to practise as a solicitor. Yet the Tribunal considered that she might apply for a practising certificate, albeit subject to conditions, after 12 months. That carried with it an implied finding that there was at least a reasonable prospect that she would become fit to practise. But what basis was there for that inference? The answer is that there was none. There had been some five years since Ms Zhukovska’s practice had been suspended, during which time she had, on the evidence, made scant efforts either to maintain her legal education or to fill the evident deficiencies. Most recently, she had paid to “attend” two online courses, each accredited for 1 CPD point (which may have taken an hour, or perhaps less), and had sat in on a single webinar, between the first and second hearings. She also gave evidence in very general terms, that she had taken some steps in early 2017 to maintain her legal education.

30. [127]

    The gap in the past was not necessarily incurable. It might have been possible for Ms Zhukovska to persuade the Tribunal as to her intentions and ability to become a person who was fit to practise as a solicitor. Yet Ms Zhukovska chose not to give evidence before the Tribunal. I acknowledge that the way in which that occurred was unfortunate, insofar as it was the Tribunal which first offered the possibility of an unsworn statement, only to reject it shortly thereafter. The offer should never have been made. Yet while Ms Zhukovska was understandably concerned to finalise the proceedings as quickly as possible, she should have known that it was essential that she persuade the Tribunal of her genuine desire to reform, and her motivation to do so. She had the benefit of counsel appearing for her. The decision not to give evidence must be taken to have been an informed one. In particular, her decision not to supply a further affidavit after the first hearing to be read in support of her case at the second hearing must be taken to have been an informed one.

31. [128]

    The Tribunal itself appreciated that conditions were necessary in order to protect the public. Those conditions included steps which Ms Zhukovska must undertake before applying for a practising certificate, and conditions upon her practice. Yet the Tribunal did not specify those conditions. Rather it made incomplete and non-binding recommendations. It is, with respect, impossible to reconcile the Tribunal’s finding that Ms Zhukovska was presently unfit to practise with its finding that that would change in a 12 month period when what would happen during that period was entirely unknown.

32. [129]

    I conclude that there was material error in this aspect of the Tribunal’s decision.

33. [130]

    My rejection of the Law Society’s case that Ms Zhukovska’s name should be removed from the roll carries with it the appreciable likelihood that there will come a time when she will be fit to practise. The task for the Tribunal in such a case, with the benefit of having reviewed the evidence of professional misconduct and unsatisfactory professional conduct, and Ms Zhukovska’s response to that evidence, is to make such orders as are appropriate, in order to protect the public interest.

34. [131]

    Here, that should have involved a regime for further submissions in relation to steps to be taken which if satisfied would result in Ms Zhukovska’s having a real chance of establishing she was fit to practise. I shall return to those matters below.

35. [132]

    In relation to ground 1, the Law Society is correct to contend that removal from the roll would not, strictly, mean that she was “permanently deprived of the right to practise”. She would, however, be deprived of the right to practise for an indefinite period, and until such time as she had demonstrated she was fit to practise. That is how the Tribunal’s language is to be understood when read fairly. I do not consider that ground 1(a) amounts to an error which is material to the outcome.

36. [133]

    Ground 1(b) complained that the Tribunal wrongly had regard to Ms Zhukovska’s wish to continue to practise. That was not relevant to the question whether she was a fit and proper person, but it was relevant to the other orders which the Tribunal was invited to make. Arguably, the Tribunal may have reasoned from the inference of her wish to return that it might be inferred that she would become of good character. If so, that was wrong. Practitioners facing disciplinary proceedings with the prospect of the suspension or cancellation of their practising certificates, or with removal from the roll, should be in no uncertainty. If they wish to maintain that they will take steps to become fit to practise in the future, the usual if not invariable approach should be to say so under oath or affirmation, and explain the steps they propose to take and why they should be believed, in a way which permits that evidence to be tested by cross-examination if thought appropriate.

37. [134]

    Ground 2(a) draws attention to another minor error in the decision. Ms Zhukovska’s practising certificate had been suspended in 2014, and would have (unless it were renewed) expired years before NCAT’s orders were made. This was not wholly insignificant. The fact that her certificate had been cancelled would be relevant to a decision on any further application by Ms Zhukovska for a practising certificate. However, nothing material turns on this for present purposes.

Notice of contention

1. [135]

   Ms Zhukovska’s notice of contention was as follows:

2. [136]

   It should be said at the outset that it is not much to the point to assert in a notice of contention that “there is evidence available to the Tribunal to support that finding”. When this Court is asked to make a finding of fact for the first time, the question is whether the finding is warranted on the basis of the entirety of the evidence, not whether there was evidence capable of supporting it.

3. [137]

   No oral submissions were made in support of the notice of contention until this was brought to counsel’s attention at the conclusion of her address. Counsel reiterated that this Court should find that Ms Zhukovska was a fit and proper person at the date of the decision, and relied on her written submissions. The written submissions occupied slightly more than half a page, although in part they referred to earlier submissions to which they were linked. It was said that Ms Zhukovska had given “clear and consistent acknowledgements of her shortcomings”.

4. [138]

   At all times, Ms Zhukovska was represented by counsel. She gave evidence and was cross-examined at the first NCAT hearing, which concerned whether any or all of 12 allegations advanced by the Law Society were made out and whether they constituted unsatisfactory professional conduct or professional misconduct. At the second hearing, which concerned orders following the findings of five instances of unsatisfactory professional conduct and five instances of professional misconduct, Ms Zhukovska did not give evidence, in circumstances explained above.

5. [139]

   Moreover, Ms Zhukovska did not give evidence in this Court against the possibility that one or more of the grounds of appeal was made out and this Court might re-exercise the discretion. There was no affidavit analogous to the common practice in sentencing appeals of supplying updated information “on the usual basis” as explained in Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 at [11].

6. [140]

   It follows that the most recent evidence from Ms Zhukovska herself was her cross-examination before NCAT at the first hearing in December 2018, described at [41] as a “properly vigorous cross examination”, on affidavits made by her on 25 January and 10 July 2018.

7. [141]

   Significantly, that led to gaps in evidence as to Ms Zhukovska’s acknowledgement and awareness of her departures from professional standards. Without being exhaustive:

   1. (1)

      Ms Zhukovska maintained that ground 4 (causing herself to become the appointor to the trust) was unsatisfactory professional conduct but not in fact professional misconduct, but NCAT found that it was professional misconduct. What the Tribunal said at [65]-[68] concerning this is reproduced above;

   2. (2)

      Ms Zhukovska denied that ground 11 (overcharging) justified a finding of professional misconduct, which NCAT duly made.

   3. (3)

      Ms Zhukovska maintained that there was no breach of s 254 when she caused the proceeds of sale of Ms Heane’s unit not to be placed in her firm’s trust account. NCAT found that this (ground 5) constituted unsatisfactory professional conduct.

8. [142]

   In those circumstances, contrary to ground 1(a) of her notice of contention, I am entirely unpersuaded that the Tribunal should have found that Ms Zhukovska was a fit and proper person at the date it made orders. There had not been a complete acknowledgement by Ms Zhukovska of the wrongfulness of aspects of her conduct. There was no evidence from Ms Zhukovska of the steps she would take to ensure that such conduct would not be repeated.

9. [143]

   Ground 1(b) of the notice of contention is problematic. A finding as sought, namely, that Ms Zhukovska “would in future be a fit and proper person to practise as an Australian legal practitioner” is too imprecise to be made. In five days or five months or five years?

10. [144]

    Ground 2 of the notice of contention is also problematic. First, the recommended conditions are imprecise, and the “and/or” yields a number of imprecisely defined circumstances. It amounts to Ms Zhukovska asking for findings that she would be a fit and proper person

    1. (1)

       after a “suitable” period of supervision (the duration of which was unspecified) and the “satisfactory” completion of a range of courses on such topics as elder law, powers of attorney, wills and estates practice, ethics and trust accounts;

    2. (2)

       alternatively, after 12 months without any supervision or completion of any course;

    3. (3)

       in the further alternative, after both (1) and (2).

11. [145]

    For the reasons already given, there is no basis for making, here and now, any such finding as to Ms Zhukovska’s fitness in 12 months’ time or at some other unspecified time.

Orders which should be made

1. [146]

   In some respects, Ms Zhukovska’s case is highly unusual. It is not a case of dishonesty or misappropriation which will ordinarily result in removal from the roll. I entirely concur with the statement that “[t]his Court must insist on the maintenance of the highest standards of honesty and integrity in the performance of duties by legal practitioners”: Council of the Law Society of New South Wales v Yoon at [34]. The circumstances in which Ms Zhukovska progressively drew down more than $100,000 of her client’s money for her own benefit, which was repaid at around the same time that the Law Society investigation commenced, are concerning. Yet as it happens this sum, and the other loans, were repaid, and no case of dishonesty was advanced by the Law Society (I am not to be taken as suggesting that one should have been advanced).

2. [147]

   Ms Zhukovska’s conduct also resembles other cases of solicitors abusing elderly and vulnerable clients, which is to be firmly deprecated, but here too some important characteristics are absent. Ms Zhukovska inquired with the Law Society as to the appropriateness of being the donee of her client’s power of attorney, and obtained a trust deed from a reputable firm, and on the advice of an accountant. The overcharging was egregious, but Ms Zhukovska maintained that each invoice was approved by her client.

3. [148]

   Importantly, Ms Zhukovska was relatively recently admitted. She had been in practice for only four years. The misconduct related to a single client, and occurred seven years ago, in Ms Zhukovska’s first and second years as a sole practitioner.

4. [149]

   I am confident that Ms Zhukovska is not presently fit to practise as a solicitor. So far as the evidence discloses, nothing has changed since the Tribunal’s finding last November.

5. [150]

   Will Ms Zhukovska probably be permanently unfit to practise as a solicitor? I join with the Tribunal in not being satisfied that she will probably be unfit to practise for the indefinite future. I have borne in mind the struggles which Ms Zhukovska had endured to obtain legal qualifications in Canada as well as in this State. I am conscious that Ms Zhukovska has followed an arduous route to achieve admission. Leaving Russia to study in Canada in French, followed by the LPAB course in English, demonstrates considerable powers of self-discipline and sustained effort. I would infer that she is enterprising, diligent and self-motivating. There is every reason to think that she might be able to become fit to practise.

6. [151]

   However, I do not see how Ms Zhukovska could have a realistic prospect of persuading the Law Society at some point in the future that she has become fit to practise unless she makes a solemn statement acknowledging the entirety of her conduct, explaining why it occurred, and what steps she has undertaken and will undertake in order to prevent anything like it from happening in the future. That conclusion is confirmed by her decision not to give evidence before the Tribunal at the second hearing, or in this Court.

7. [152]

   I also see no reason why Ms Zhukovska should be permitted to make an application until she has demonstrated a commitment in a formal way to complete her training. I am unattracted by the idea (as was the Tribunal) that this could occur through “attendance” at two or three online courses. I am in broad agreement with the recommendations proposed by the Tribunal. Where I disagree with the Tribunal’s recommendations and the findings proposed by the notice of contention is that I consider it is necessary in order properly to exercise the protective jurisdiction to specify in advance and with precision the subject matter of the courses to attend and the way in which successful completion is to be measured.

8. [153]

   The orders I propose will permit the parties to be heard on those and any other conditions which should be imposed as preconditions to the making of an application by Ms Zhukovska. I am presently minded to impose a condition that no application for a practising certificate be made before satisfactory completion of those conditions and the expiration of 18 months from today: as presently advised, those conditions may be imposed pursuant to s 562(4)(j), as part of “an order that the practitioner not apply for a local practising certificate before the end of a specified period”. I am presently minded to order that any certificate which issues should be subject to the conditions proposed by Ms Zhukovska, namely, not being permitted to hold a principal practising certificate or to become a solicitor/director of any incorporated legal practice until the expiration of two years’ cumulative practice as an employed solicitor. To that I would add that she not hold office as a trustee (or director of a corporate trustee) in relation to client property in that period.

9. [154]

   To be clear, the effect of the orders I have in mind, as to all aspects of which the Court will permit the parties to be heard, will be that if Ms Zhukovska attends and satisfactorily completes appropriate courses and provides evidence by way of statutory declaration formally acknowledging the instances of professional misconduct and unsatisfactory professional conduct found by the Tribunal, and explains the steps she has taken and will continue to take in order to prevent such conduct recurring, then it would be open to the Law Society in determining an application for a practising certificate to conclude that she was a fit and proper person. It would be for the Law Society to make its decision if and when an application is made based on the material before it. As the Law Society points out, that decision would give rise to rights of appeal. But there is no alternative to that course, in the fairly unusual present circumstances where it cannot presently be concluded that Ms Zhukovska will become fit to practise, but where the Law Society has failed to make out a case of probable indefinite unfitness to practise.

10. [155]

    I turn to costs. Neither party has been wholly successful on appeal. I have concluded that the Law Society was justified in bringing this appeal, but I have also rejected its principal submission that Ms Zhukovska’s name be removed from the roll. It may be that an appropriate exercise of the discretion as to costs be that there be no order as to either party’s costs in this Court, with a view that each pays its and her own costs. As presently advised, I see no proper basis to interfere with the orders as to costs made by the Tribunal. However, the orders I propose will permit the parties to be heard as to costs, both in this Court and in the Tribunal.

11. [156]

    The orders for the exchange of submissions below contemplate all remaining issues being heard and determined on the papers. If either side wishes to be heard orally, its or her submissions in chief should so state, and explain the reason for that application and the opposing party should indicate in its or her submissions its attitude to a further oral hearing.

12. [157]

    For present purposes, the only orders I propose are:

13. [158]

    McCALLUM JA: I share Macfarlan JA’s preference not to express a final view as to the appropriate test to be applied on appeal. Subject to that reservation, I agree with Leeming JA.