DEJ v Council of the New South Wales Bar Association

1. [1]

   MACFARLAN JA: I agree with Meagher JA’s judgment and with the orders that his Honour proposes. I add the following further observations.

Whether the appellant’s psychiatric condition caused or materially contributed to his conduct in relation to his financial and taxation affairs of which complaint was made

1. [2]

   There was expert psychiatric evidence before the Tribunal that, if accepted, indicated that the appellant’s conduct was capable of being explained by his psychiatric condition. As the experts who gave that evidence acknowledged, in giving that evidence they were to a significant degree reliant on histories that the Barrister gave them, albeit that to some extent those histories were supplemented by documentary materials.

2. [3]

   It was not for the expert psychiatrists to go further and make factual findings about the circumstances of or reasons for the appellant’s conduct. Those were matters for the Tribunal to determine. In performing that function the Tribunal was not bound to accept any relevant views expressed by the psychiatrists, particularly to the extent that they related to ultimate issues in the proceedings (see Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 at [89]).

3. [4]

   Having reviewed the extensive documentary and testimonial evidence that was adduced before it, the Tribunal made important findings, relating to different parts of the period under consideration, including that it was not, as the appellant asserted, “inertia” that prevented him from meeting his tax obligations, that “his conduct was simply a product of his poor practice and financial management and inability to find a solution to the difficulties he faced” and that the appellant “made a choice to meet his mortgage payments in priority to his tax debts” (Decision at [115]).

4. [5]

   In his judgment Meagher JA addresses specific challenges made to the Tribunal’s reasoning. These apart, the appellant’s case on appeal fails because the identification of the causes of the appellant’s conduct was a factual issue for the Tribunal’s determination, the determination was “likely to have been affected by impressions about the credibility and reliability of witnesses formed by the [Tribunal] as a result of seeing and hearing them give their evidence” (Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 at [55]) and the determination was not “glaringly improbable” or “contrary to compelling inferences” (ibid).

5. [6]

   MEAGHER JA: The appellant (DEJ) was admitted to the Supreme Court roll of barristers in 1984. He appeals from a decision of a (three member) Occupational Division Panel of the NSW Civil and Administrative Tribunal (Tribunal). Following a hearing on 17, 18 and 20 August 2017, which included oral evidence directed to contested questions of fact to which the Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 standard or its statutory equivalent applied, the Tribunal delivered its decision over two years and three months later on 11 December 2019. Order 3 was that the appellant’s name be removed from the roll of lawyers (Council of the New South Wales Bar Association v DEJ [2019] NSWCATOD 186 (Decision)). DEJ’s appeal to this Court from the Tribunal’s orders is brought under Sch 5 cll 29(1)(e) and (2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) and ss 48(1)(viii) and (2) of the Supreme Court Act 1970 (NSW). By Sch 5 cl 29(4)(a) of the former Act, that appeal is one to which s 75A of the latter Act applies, and accordingly is by way of rehearing.

The subject matter of the disciplinary proceedings

1. [7]

   The appellant held an unrestricted certificate entitling him to practise as a barrister continuously from 1988 (when the certificate was first introduced) until 15 October 2012. On 11 October 2012, the respondent Bar Council resolved to attach 11 financial management and reporting conditions to his practising certificate issued for the period 16 October 2012 to 30 June 2013. They were also attached to his annual practising certificates for the years ended 30 June 2014 and 30 June 2015. In each case the conditions were imposed pursuant to Legal Profession Act 2004 (NSW), ss 50(3) and 68(3)(c). Those 11 conditions are summarised below at [45] and set out in the Tribunal’s Decision at [44].

2. [8]

   They were directed to ensuring the appellant’s compliance with his statutory obligations to lodge quarterly business activity statement(s) (BAS) and annual tax returns with the Australian Taxation Office (ATO) and to discharge his ongoing tax liabilities. From 20 July 2015 to 30 June 2016, the appellant’s annual practising certificate included conditions to the same effect, as well as additional conditions requiring that on a quarterly basis he receive specialised medical treatment for his by then diagnosed depressive disorder, and act in accordance with that specialist’s medical advice: see Legal Profession Uniform Law 2014 (NSW), ss 44, 53 and Legal Profession Uniform General Rules 2015 (NSW), r 16.

3. [9]

   The Bar Association refused to renew the appellant’s practising certificate from 1 July 2016, it not being satisfied that he was a fit and proper person by reason of his contravention of condition 6 of his practising certificate issued on 20 July 2015. That condition required his adherence to arrangements made with the ATO in July 2015 for the payment by January 2016 of his then outstanding tax liability.

4. [10]

   Earlier, on 10 July 2014 the Bar Council resolved to make, and thereby made, a complaint about the appellant’s failure to comply with his practice conditions. That complaint was made under Legal Profession Act, s 504. On 11 June 2015 following the completion of its investigation of that complaint the Bar Council resolved to commence proceedings in the Tribunal, as provided by s 537. Notwithstanding the commencement of the remaining parts of the Legal Profession Uniform Law, including Ch 4, on 1 July 2015, the 2004 Act continued to apply to the complaint. See cl 26(2) of Sch 4 to that Law; Berger v Council of the Law Society of New South Wales [2019] NSWCA 119 at [224]; and Council of the Law Society of New South Wales v Zhukovska (2020) 102 NSWLR 633; [2020] NSWCA 163 at [55]-[57].

5. [11]

   The present disciplinary application was commenced under Legal Profession Act, s 551 for breaches of the conditions attached to the three practising certificates current between 16 October 2012 and 30 June 2015. Those breaches were pleaded and particularised as grounds A (condition 1), B (condition 2), C (conditions 3 and 4) and D (conditions 5 to 11). In his reply to that application the appellant admitted the alleged breaches of the conditions but did not admit that they, together or separately, constituted unsatisfactory professional conduct or professional misconduct as claimed.

6. [12]

   In July 2017 a substantive amendment was made to the disciplinary application. That amendment alleged that the appellant had made a knowingly false affidavit or alternatively knowingly false statements and representations to the Bar Council, in each case with respect to the ownership of the appellant’s Sydney home and its being the source of funds which would enable him to repay his liabilities to the ATO. Those amendments were permitted by and made in accordance with Legal Profession Act, s 555.

7. [13]

   As at January 2016 the appellant and his wife were the registered proprietors of their family home in Sydney, and his wife was the registered proprietor of a property in country New South Wales. The sale of the latter was completed in September 2016. At that time, a decision was also made to sell the family home. That sale was completed on 19 December 2016. The net proceeds of sale ($1,726,363) were paid into an account of the appellant’s wife. At that time the ATO was owed in excess of $550,000, including outstanding tax in excess of $425,000.

8. [14]

   In mid-2017 the Bar Council asked the appellant for an explanation as to why the net proceeds of sale had been paid to his wife, rather than first applied to discharge the ATO liability. That request was responded to promptly by the appellant’s affidavit of 6 June 2017. He disclosed, for the first time from the Bar Council’s perspective, that by September 2016 the family home “was owned solely by my wife. I transferred my one half interest in the house to my wife in 1996”. A copy of a transfer was attached. Accordingly the net proceeds were paid to his wife “as proprietor of the property”. In a later affidavit sworn 9 August 2017 the appellant explained that in his earlier affidavit he had “referred to my wife as sole proprietor because by the time I swore that affidavit I had seen the transfer and believed it was effective”. Thus, on the appellant’s version of events, the transfer had been signed in 1996, not registered and forgotten, then found and remembered in mid-2017 after the home had been sold.

9. [15]

   That disclosure caused the Bar Council to amend its disciplinary application to add new grounds E, F and G. The application was first amended on 27 July 2017. It was further amended on 18 August 2017. Those grounds were that the affidavit of 6 June 2017 was knowingly false in asserting that his wife was the owner and sole proprietor of their home (ground E); that if she was the beneficial owner of his half share by reason of the 1996 transfer, the appellant had made statements and representations between 2012 and 2015 which were knowingly false as to he and his wife being joint owners and him having equity in the property (ground F); and that by his conduct in allowing the net proceeds of sale to be paid to his wife, the appellant had acted contrary to a statement made to the Bar Council in September 2014 that, if he was unable to borrow money to discharge his tax liabilities, he would arrange to sell the family home to do so (ground G).

10. [16]

    In further responding to grounds A, B, C and D of the amended application the appellant alleged that he suffered from a psychiatric condition which caused or materially contributed to his breaches of the practice conditions. That was said to provide a reasonable excuse for those contraventions with the result that his conduct was only capable of sustaining a finding of unsatisfactory professional conduct, as provided by Legal Profession Act, s 73(1).

11. [17]

    In responding to grounds E, F and G the appellant denied that paras 18 and 19(g) of the June 2017 affidavit were knowingly false (ground E); denied that the statements or representations made to the Bar Council were knowingly false (ground F); and denied that his conduct in not causing his tax liability to be paid from the proceeds of sale was unsatisfactory professional conduct or professional misconduct (ground G).

The findings of the Tribunal and issues in the appeal

1. [18]

   As to grounds of complaint A, B, C and D the Tribunal held that the appellant’s psychiatric condition did not cause or materially contribute to his breaching the conditions of practice in the respects particularised and accepted (Decision [117]). It followed that those contraventions constituted professional misconduct, s 73(1) providing:

2. [19]

   Grounds 1 and 2 of the amended notice of appeal considered together challenge that holding, alleging error in the Tribunal’s failure to find that the appellant had a reasonable excuse by reason of his psychiatric condition.

3. [20]

   As to grounds of complaint E, F and G, the Tribunal held that grounds of complaint E and G were made out. As to the former, the Tribunal found that the appellant and his wife had signed the transfer in 1996 and they had then changed their minds about the appellant transferring his half share in the family home to her. It followed that the statements in his 6 June 2017 affidavit (being paras 18 and 19(g)) were knowingly false (Decision [166], [170]). Ground F did not then arise (Decision [171]). As to ground G, the Tribunal found that the appellant had represented in September 2014 and intended until June 2016 (when the Bar Council “refused” to renew his practising certificate) that if he could not borrow to pay his tax liability using the family home as security he would arrange to sell it to do so. The Tribunal found that he changed his mind following that refusal to “avoid paying his tax liability” and to secure his financial security in circumstances “where he was no longer able to practise as a barrister with no real prospect of being able to do so in the future”. That conduct was held to constitute professional misconduct (Decision [174]).

4. [21]

   Grounds of appeal 3 and 3A challenge those findings and conclusions, and maintain that although never registered, the 1996 transfer was intended to be effective as a transfer of the appellant’s interest to his wife, and that the transfer was then forgotten by each of them until it was rediscovered in mid-2017.

5. [22]

   Ground of appeal 4 contends that the Tribunal erred in finding that the appellant’s conduct warranted a finding that his name be removed from the roll of lawyers. This ground is pressed in the event that grounds of appeal 1 and 2 or ground 3 or ground 3A are or is upheld.

6. [23]

   Finally, by its notice of contention the Bar Council supports the Tribunal’s conclusions – as to grounds of complaint A to D, E and G respectively by its grounds of contention 1, 2 and 4, and as to its conclusion that the correct protective order was removal from the roll of lawyers, by ground of contention 5. By ground of contention 3 the Bar Council argues that if the appellant’s challenge with respect to ground of complaint E is successful, this Court should uphold the conduct charged by ground of complaint F. If that ground is made out the appellant does not press ground of appeal 4 in the face of a finding of dishonesty in his dealings with the Bar Council, accepting that would justify an order removing his name from the roll of lawyers.

Overview – whether appellant had a “reasonable excuse” by reason of psychiatric condition (grounds of appeal 1 and 2)

1. [24]

   Before the Tribunal the Bar Council accepted, correctly in my view, that it bore the onus of establishing that the appellant did not have a reasonable excuse for the contravening conduct (Decision [56]). Section 73(1)(a) is a provision which relies on an exception in defining when a failure to comply with conditions constitutes “professional misconduct”. Accordingly the Bar Council had to prove that the exception did not apply: see Vines v Djordjevitch (1955) 91 CLR 512 at 519; [1955] HCA 19. A “reasonable excuse” is one which in the circumstances justifies the contravening conduct not being treated as professional misconduct and as sufficiently serious to enliven the power to cancel or suspend the practising certificate: see Prothonotary of the Supreme Court of New South Wales v McCaffery [2004] NSWCA 470; citing Taikato v The Queen (1996) 186 CLR 454 at 464; [1996] HCA 28.

2. [25]

   The Bar Council accepted that if the appellant “was suffering from a psychiatric condition and the symptoms of his psychiatric condition caused or materially contributed to his conduct” he would have a reasonable excuse (Decision [56]). The critical question then became whether the appellant’s depressive disorder caused or materially contributed to his breaches of conditions 1 to 11 (Decision [60]). However as the matter was conducted before the Tribunal the parties focused on the conditions which in terms required timely compliance with the appellant’s reporting and payment obligations. Although not contended by either party in this Court, or dispositive of the appeal on grounds 1 and 2, it is my view that pursuing this narrower inquiry in answering the question as to reasonable excuse involved error. I return to this subject briefly, having considered grounds 1 and 2.

3. [26]

   Three psychiatrists gave written and oral evidence as to the appellant’s depressive disorder and the extent to which it caused or contributed to limited aspects of his contravening conduct – Dr Williamson who first saw him in late October 2016 and continued to see him as his treating psychiatrist at the time of the oral evidence in August 2017; Dr Phillips who assessed the appellant in February 2016; and Dr Brown who assessed him in June 2017.

4. [27]

   With respect to whether the appellant’s disorder began to interfere with the conduct of his everyday life and in particular his capacity to discharge his tax obligations during the period in question, Drs Phillips and Williamson responded in their written reports as follows. What is of particular significance are the assumptions made by each of them (and Dr Brown) as to the level of the appellant’s functioning during the relevant period:

5. [28]

   In her response to the same question, Dr Brown said:

6. [29]

   The expert oral evidence was given in a joint session where each of the psychiatrists was able to ask questions of the others, as well as comment on their answers. It was common ground between them that by mid-2016 the appellant suffered from a mood disorder. Dr Williamson described it as a persistent major depressive disorder, Dr Phillips as a persistent depressive disorder, and Dr Brown as a chronic moderate severity condition of major depression.

7. [30]

   The difference between them was as to the severity of the appellant’s condition in the earlier period from late 2012 to mid-2015, and whether in that period it was likely to have materially impaired his effective functioning in complying with the conditions. The primary condition was that requiring that he meet his ongoing reporting and payment obligations (condition 2). The remaining conditions were directed to ensuring that those obligations were complied with. Those conditions required that on an ongoing basis moneys were set aside to make provision for tax liabilities (conditions 3 and 4), and that the “financial expert” to be retained by the appellant provide to the Bar Council every quarter evidence as to his compliance in fact with the payment and reporting obligations and obligations to set funds aside (conditions 5-11). As will become apparent, timely compliance with the reporting and payment obligations was rare, if it happened at all; and whilst two accountants were retained at different times, apart from a period in early 2015, there was little compliance with the management and reporting obligations. The former required that the appellant put the financial expert in the position where he or she could “control” his financial affairs. That does not appear ever to have happened.

8. [31]

   Before the Tribunal (and in this Court), the Bar Council emphasised two matters as indicating that symptoms of the appellant’s mood disorder did not emerge until mid-2014. The first was his medical history which showed he did not seek or receive psychiatric assistance until September of that year. The Bar Council contended that prior to this time he had a mild to moderate depressive disorder which did not materially affect his functioning. The second was that up until at least late 2014, the appellant had maintained his functionality and capacity to earn substantial income as a barrister and was managing his personal and family financial affairs (though not in a way that enabled him to satisfy his tax liabilities as they arose).

9. [32]

   Supporting that position, Dr Brown’s opinion was that:

10. [33]

    In the joint session it was suggested to Dr Phillips that, having regard to the appellant’s functioning at work and in many aspects of his personal life, through the relevant period he remained physically capable of dealing with his tax obligations if that was his priority. Dr Phillips responded:

11. [34]

    Dr Williamson’s view on that subject was similar:

12. [35]

    Dr Williamson accepted that a reliable assessment of the severity or otherwise of the appellant’s depression and its impact on his functioning in the period from 2012 to 2015 could only be given with the benefit of a detailed history of his “attitudes and feelings” in that period. To the same effect Dr Phillips acknowledged that the three experts had to rely on the material put to them and described as an “absolute truth” that each was limited in their ability to assess the level of the appellant’s depression in that period. He also accepted that the “functional capacity of a person suffering depression of any type will vary enormously”. All of this uncontroversially emphasised the need for close attention to the history of the appellant’s functioning with respect to his taxation and other financial affairs – whether professional or private – during the period in question, especially as revealed by the contemporaneous material.

13. [36]

    However the written reports of the three experts (as well as the much briefer reports or letters of his other treating psychiatrists) do not directly engage with much of the detail of that history. Nor was it pursued in any detail in the oral testimony of the three experts. As explained by the appellant’s counsel in argument in this Court, the experts focused on the Bar Council’s case “that it was unlikely that there was a severe psychiatric condition impeding [the appellant’s] ability to comply because of the fact that he was able to generate revenue of the kind he did and also [its] case squarely put below that he preferred or prioritised other expenses”.

14. [37]

    It is convenient at this point to refer to the reports and correspondence of the other treating psychiatrists – Drs Jurek, Roberts and Melidonis. None of them saw the appellant before September 2014. The first to do so, Dr Jurek, prepared a report in June 2015 in support of the appellant’s application at that time for a further practising certificate: see [8] above. She recorded his reporting that he had not been able to comply (to that time) with the conditions placed on his earlier practising certificates “because of financial hardship and his depressed state”. It is not said which came first. Dr Jurek added “in my opinion, his disorder has contributed to avoidance, procrastination and lack of motivation in managing his affairs”.

15. [38]

    Dr Roberts first saw the appellant in February 2016. In April 2016 he wrote that the appellant’s depression “significantly affects his mood, his ability to concentrate, remember and think. He finds it emotionally difficult to face up to his problems at present”. Dr Melidonis saw the appellant following an incident in June 2016 (which is placed in context in the detailed factual summary that follows). In a letter addressed to “whom it may concern” and dated 14 October 2016, she recorded his history as including that “work scheduled for him did not eventuate due to cases being settled prior to the court date. He has not been able to face the task of completing his tax returns”.

16. [39]

    None of these opinions grapples with the detail of the appellant’s non-compliance with his taxation reporting and payment obligations in the years before 2015. Nor do they explain how his depressive disorder prevented or hindered his discharge of those obligations, or his obligations imposed by the financial management and reporting conditions.

17. [40]

    As will become apparent, from at least 2007 he was not meeting his tax obligations from the income he was generating because his business and household expenditure exceeded his income, after allowing for tax. That position had not changed by the time the practising certificate conditions were imposed in October 2012. It followed that unless there was some change to the way in which the appellant managed and controlled his financial affairs, he would continue to be unable to meet his lodgment and payment obligations. There was no such change, either at the instigation of the appellant or as a result of his retainer of a “financial expert”. In that state of affairs the appellant, as he had done before 2012, delayed the lodging of BAS and income tax returns because he was unable to make the payments required to accompany them, or which would fall due upon their lodgment.

18. [41]

    At this point two further matters should be noted with respect to the psychiatric evidence. First, it was not that the appellant’s depressive disorder was the or a cause of any reduction over time in his gross income or of his continuing to spend more than his disposable income permitted. Nor did that evidence suggest that the appellant’s depressive condition affected his ability in and after 2012 to understand and put in place the financial management structure that the conditions required.

19. [42]

    As the foregoing discussion makes plain, the Tribunal’s reasoning and grounds 1 and 2 cannot properly be addressed without an understanding of the history of the appellant’s dealings with the ATO, his accountants and the Bar Council, as well as the early treatment of his psychiatric condition. That history is taken from the appellant’s tax records, his communications with the Bar Council, records of the Bar Council and reports of his first treating psychiatrists.

The appellant’s tax dealings and psychiatric condition between 2008 and 2016

1. [43]

   The appellant’s reporting obligations were fairly straight forward, although they required his spending time to gather and present business records to his accountant. He was required to lodge quarterly BAS in respect of his practice as a barrister. Those statements were generally due between six and eight weeks after the end of each quarter. Depending on the option chosen by the taxpayer for calculating and paying “pay as you go” (PAYG) instalments, the BAS included a self-assessment of the quarterly PAYG instalment amount as well as of the GST payment due for that quarter. If the taxpayer elected to pay PAYG instalments calculated by reference to information taken from his most recent tax return it was not necessary for the BAS to calculate and self-assess the quarterly income tax instalment due. In either case the BAS was to be accompanied by payment of the quarterly tax instalment, as well as the GST amount assessed as due.

2. [44]

   The appellant was also required to prepare and lodge annual income tax returns. The period for lodging those returns varied, in the appellant’s case between 2 and 11 months after the end of the financial year, depending on whether a tax agent was involved and that agent’s arrangements with the ATO.

3. [45]

   The conditions imposed from 16 October 2012 were the result of action taken by the ATO against the appellant in 2011 and 2012. They were described as financial management conditions and broadly speaking imposed four obligations. Condition 1 required the appellant to lodge then outstanding BAS and income tax returns, and condition 2 to meet all ongoing reporting and payment obligations to the ATO as they fell due, including lodging BAS and income tax returns. Conditions 3 and 4 required the appellant to set aside sufficient funds in a dedicated account to provide for his ongoing tax liabilities. The remaining conditions 5 to 11 required him to retain and properly instruct a financial expert to “control satisfactorily his financial affairs to facilitate compliance with” the foregoing conditions. That expert was required in his or her quarterly report to provide evidence of compliance with the obligations imposed by conditions 2, 3 and 4 as well as confirm that the appellant had “done all things necessary to facilitate and enable the financial expert to satisfactorily control his financial affairs”.

4. [46]

   In this period the appellant was regularly late in lodging his BAS and income tax returns and paying his tax. As a result he incurred general interest charges, in addition to penalties for failing to lodge BAS on time. As at 30 June 2006, the balance owing to the ATO was $144,833. By 30 June 2007 that amount had reduced to $65,604. His income tax return for that financial year was lodged 8 months late in December 2008, and his return for the year ended 30 June 2008 was lodged 10 months late and in August 2009.

5. [47]

   In June 2008 the ATO threatened legal action. As a result on 16 October 2008 the appellant made a payment of $115,000 to satisfy wholly or in part his outstanding tax liabilities. That payment was funded from one or both of two overdraft facilities arranged at that time with the Bendigo Bank and secured by mortgage over his wife’s country property. The first was an overdraft facility in the appellant’s name with a limit of $150,000. The second was an overdraft facility in the joint names of the appellant and his wife. In his oral evidence the appellant agreed that he had to borrow at this time to meet his tax obligations, describing the position as follows:

6. [48]

   It is informative at this point to set out the appellant’s gross and taxable income for the years ended 30 June 2007 to 30 June 2015, that income reported on a received and not accrued basis:

7. [49]

   The appellant’s tax return for the year ended 30 June 2009 and his BAS for the quarter ended 30 June 2009 were lodged on 22 December 2010, the former 9 months and the latter about 16 months late. Those were the last returns and activity statements lodged by the appellant’s then longstanding accountant (Mr Cooney) who retired at about this time. In February 2011 the appellant retained the corporate accounting firm, Fresh Numbers.

8. [50]

   At the time the appellant approached Fresh Numbers, his BAS for the quarters ended 30 September 2009, 31 December 2009, 31 March 2010, 30 June 2010 and 30 September 2010 were outstanding.

9. [51]

   The ATO’s running balance account covering this period indicates that the BAS lodged by Fresh Numbers included a self-assessed amount for GST but did not include a self-assessed PAYG instalment amount. That involved a change from the position in relation to the BAS lodged by Mr Cooney for the periods ended 31 March 2009 and 30 June 2009 which included self-assessed amounts for GST and income tax. In his oral evidence the appellant maintained that he did not appreciate that the amounts he was paying at the time these BAS were lodged were only for the GST component of his liability. As a result he said that in 2011 or 2012 he received “bills from the Commissioner” which he did not expect to get, he not realising that the amounts he was paying were “inadequate”. This subject was not explored in any more detail in the evidence or submissions of the parties. The evidence does not suggest that the BAS lodged by Fresh Numbers did not satisfy the ATO’s requirements, although they were late.

10. [52]

    The business records of Fresh Numbers show that in October 2011, the ATO advised that it proposed to transfer the appellant’s tax file to its “prosecution department” if the BAS and tax returns then outstanding were not lodged “within two weeks”. That threat resulted in the filing on 11 October 2011 of the BAS for the periods ended 30 September 2009, 31 December 2009, 31 March 2010 and 30 June 2010. However it did not stop recovery proceedings being commenced and on 12 October 2011 judgment was entered for unpaid tax of $293,915. That judgment was followed by a bankruptcy notice issued on 6 December 2011. Subsequently a creditor’s petition was filed. A prosecution was also commenced in relation to the non-lodgment of BAS for the five quarters ended between 30 September 2010 to 30 September 2011, and on 30 May 2012 the appellant was convicted and fined $16,000. Those five returns were lodged on 29 May 2012.

11. [53]

    These matters were notified to the Bar Council by letter dated 9 June 2012. The appellant retained solicitors to act on his behalf to resolve the position with the ATO, which maintained that as at February 2012 the outstanding debt was $433,130. On 17 July 2012 the appellant swore an affidavit stating that he and his wife proposed to refinance the two mortgages to Westpac bank over their “jointly owned property”, pay the amount owing to that bank of about $19,000 and mortgage the property to the new lender. That affidavit attached a copy of the certificate of title confirming the appellant and his wife to be the registered proprietors of the Sydney home.

12. [54]

    In that letter the appellant advised:

13. [55]

    In his oral evidence before the Tribunal, the appellant responded to the suggestion that at this time his taxation obligations “seemed to come last in priority after your household spending” as follows:

14. [56]

    A little later the appellant described himself as “somewhat self-delusional” because he “should have known my budgets, that they are made based on my diary were continually falling short because of the work not going through”.

15. [57]

    In mid-July the appellant and his wife applied to RedZed for a loan, the lender and mortgagee being Perpetual Trustee Company Limited. The amount originally sought was $385,000. The amount advanced was $522,725 for a term of 30 years with interest only repayments for the first five years. From those funds, $451,806 was paid to the ATO on 21 September 2012 in satisfaction of its liability. Part of the remaining funds was applied to pay outstanding credit card debts. For the interest only period, the rate was variable and the monthly interest charges and fees were between $3,900 and $4,000.

16. [58]

    In his letter of 19 July 2012 to the Bar Council, the appellant requested it consider imposing financial management conditions on his practising certificate. In his letter of 10 September 2012, he gave the following explanation for his taxation difficulties:

17. [59]

    As at September 2012 the appellant had not lodged BAS for the quarters ended 31 December 2011, 31 March 2012 and 30 June 2012 or his income tax returns for the years ended 30 June 2010 and 30 June 2011. In his letter of 10 September 2012, the appellant responded to an inquiry from the Bar Council as to when these documents would be filed and whether his accountant had sufficient information:

18. [60]

    On 3 October 2012 the appellant advised that he proposed to meet in the following weeks with his new accountant, Ms Rena Ren of Fresh Numbers.

19. [61]

    On 11 October 2012 the Bar Council resolved to issue a practising certificate subject to the financial management conditions. Those conditions as pleaded are set out by the Tribunal at Decision [44] and summarised at [45] above. The appellant wrote to the Bar Council on 15 November 2012 advising that he had now met Ms Ren and provided her with the documents to prepare his outstanding BAS and income tax returns. As a result his income tax returns for the years ended 30 June 2010 and 30 June 2011 were lodged on 4 December 2012. The outstanding BAS for the quarters ended 31 December 2011, 31 March 2012 and 30 June 2012 were lodged earlier on 30 November 2012.

20. [62]

    The assessments in relation to the 2010 and 2011 tax returns were issued on 18 February 2013, and totalled $136,454. The appellant did not have funds to discharge that liability or his estimated liability for income tax for the year ended 30 June 2012 of $60,000, as well as meet his ongoing family and other practice commitments. The latter included interest due to Bendigo Bank on the two overdraft facilities, as well as the interest only payments now due to RedZed. There was also not insignificant private expenditure, including on schooling. In his oral evidence the appellant described the position looking forward at the end of 2012:

21. [63]

    His accountant, Ms Ren, later produced to the Bar Council records of Fresh Numbers’ interactions with him in 2013 and 2014. Those records showed that during 2013 she was continually pressing the appellant to produce information to enable her to prepare and lodge his income tax return for the year ended 30 June 2012 and his outstanding BAS. At the same time it is apparent that she was advised that the appellant could not pay his outstanding tax liability, which with the estimate for the financial year ended June 2012 was now in excess of $200,000. Ms Ren sought to negotiate a payment arrangement with the ATO and applied for the remission of general interest charges. The ATO insisted that the 30 June 2012 tax return be lodged. The deadline for that occurring was initially 30 April 2013, and then 17 May 2013. The return was finally lodged on 23 October 2013, over four months late. In the intervening period information was provided to Ms Ren to enable the lodging of BAS for the quarters ended 30 September 2012 and 31 December 2012 on 25 March 2013; the BAS for the quarter ended 31 March 2013 on 20 May 2013; and the BAS for the quarter ended 30 June 2013 on 15 October 2013, some two months late.

22. [64]

    In May 2013 Ms Ren made a payment arrangement with the ATO requiring three monthly instalments of $5,000 each with the balance of $190,439 to be paid in late August. In this period the appellant made three payments of $2,500 to the ATO – on 17 June, 17 July and 20 August 2013. Ms Ren sent reminders and requests for information in relation to the provision of information to enable preparation of the 2012 tax return, the first on 26 April 2013 and thereafter on 3 May 2013, 7 May 2013, 10 May 2013, 15 May 2013, 22 May 2013, 24 May 2013, 28 May 2013, 4 June 2013, 31 July 2013, 19 August 2013, 11 October 2013, 17 October 2013 and 22 October 2013. In October Ms Ren received a “collection action” letter from the ATO requiring payment by 15 October 2013.

23. [65]

    On 9 October 2013 the appellant had a telephone conversation with the director of professional conduct of the Bar Association. Her note of that conversation records him saying that his “arrangement with ATO to pay $5,000 per month has ended but he has continued to pay” and that the amount “he owes [the] ATO is reducing”. In email exchanges with Fresh Numbers during October 2013 concerning the completion of his 2012 tax return, the appellant queried the deductible expenses claimed:

24. [66]

    Ms Ren responded advising that bank charges and interest charges for financial years 2011 and 2012 had been included as to 100% for his Bendigo overdraft account, 50% for the joint Bendigo overdraft account and 50% for the Westpac account. The appellant replied:

25. [67]

    The accountant responded again pointing out that the two 50% accounts were in the names of the appellant and his wife. The appellant replied, saying that the “name on the account is historical only, they have been my accounts only for many years please claim the full charges”.

26. [68]

    In her email to the Bar Association dated 25 October 2013 (two days after the 2012 tax return was lodged), Ms Ren advised following a meeting with the appellant that the amount currently owing to the ATO was $228,882, all of which was covered by a “remission application and payment arrangement that we applied [for to the] ATO on 24 October 2013” (emphasis added). No doubt that application could not have been made before the already overdue 2012 tax return was lodged on the day before. Looking forward, the income tax return for the year ended 30 June 2013 was due to be lodged on 31 March 2014.

27. [69]

    By early 2014 the appellant had not paid Fresh Numbers’ monthly fees since 1 January 2013. He nevertheless continued to provide his business records to that firm which completed and lodged his BAS for the quarter ended 30 September 2013 on 20 March 2014. The firm did not undertake any work after March 2014 because it had not been paid in accordance with an instalment arrangement requiring the appellant pay $3,000 by early April 2014. According to Ms Ren, at this time the appellant was “in correspondence with a specialist broker to refinance his home” to obtain enough funding to pay off his current tax debt in full. At the end of March 2014 that debt was $172,061.

28. [70]

    In response to a Bar Association letter dated 22 May 2014 referring to breaches of his practising certificate conditions 2, 4 and 8, the appellant advised by email dated 26 May 2014:

29. [71]

    On 10 July 2014 the Bar Council resolved to make a complaint of professional misconduct. The appellant was advised by letter dated 29 July 2014. He responded on 4 September 2014. He confirmed that his financial difficulties had resulted in him not being in a position to pay for Ms Ren’s services since approximately April 2013. He described his relationship with that accountant as “dysfunctional”, acknowledging that a review of his “financial affairs” (including interest charges levied by the ATO) was urgently required. On 3 September 2014 the appellant advised Ms Ren that he would be “taking over” the preparation of his accounts and returns.

30. [72]

    His letter to the Bar Council of 4 September advised that he had retained a new accountant, Mr Pengilly, and already spoken to him “at length”. He continued:

31. [73]

    In mid-June 2014 the Bar Association received a letter from a member of the appellant’s chambers referring to his “emotional and financial concerns”, observing at the same time that the “conduct of his practice is unaffected by his financial concerns, confirmed by the diary entries for the rest of the year. He has plenty of work in progress”. In late August the appellant was encouraged to seek medical assistance and also raised that subject in his letter to the Bar Association of 4 September:

32. [74]

    That psychiatrist was Dr Jurek, whom the appellant first consulted on 4 September 2014. Dr Jurek later wrote in June 2015 (and in support of his then current application to further renew his practising certificate, as to which see [85] below) that the appellant had informed her that he had not sought psychiatric treatment until recently because of shame and embarrassment. She continued:

33. [75]

    The appellant had further consultations with Dr Jurek on 15 and 29 September 2014 and then on 15 June 2015. In October 2014 the appellant had two emergency admissions to hospital. The first was to the Sydney Eye Hospital on 9 October for “throat and right jaw pressure”. The second was to the Hornsby Ku-ring-gai Hospital on 10 October for chest pains “in the context of recent stress”. The opinion of the hospital’s consultant cardiologist was that he clearly had “high stress levels, which are likely driving his hypertension and symptoms of chest discomfort”.

34. [76]

    As at 20 October 2014, the appellant was liable to the ATO for $207,527 in unpaid tax and $32,100 on account of legal action. On 3 November 2014 the appellant notified the Bar Council that Mr Pengilly was his nominated financial expert for the purpose of conditions 5 to 11.

35. [77]

    The appellant also gave an explanation for his not having complied with the financial management conditions. He referred to the reduction in his earnings due to the “large number of hearing days and preparation days lost”; the difficulties in paying Fresh Numbers; his unsuccessful attempts to obtain a temporary overdraft facility from the bank; and his unsuccessful approach to the lender who “helped me get the original debt paid”. Reference was also made to other factors contributing to his financial circumstances and steps taken to address them by moving chambers to reduce costs, selling personal effects and his wife obtaining employment. In his letter of 3 November 2014 he summarised the position as follows:

36. [78]

    Having referred to his retainer of Mr Pengilly, he continued in relation to his emotional state:

37. [79]

    Mr Pengilly completed and lodged the income tax return for the year ended 30 June 2013 on 4 February 2015. He also completed the BAS for the periods ended 31 December 2013, 31 March 2014, 30 June 2014, 30 September 2014 and 31 December 2014, and income tax return for the year ended 30 June 2014, in the period between 10 March and 28 April 2015. By March 2015 his liabilities to the ATO were $272,234 for tax and $32,100 for legal action. In his report to the Bar Association dated 6 March 2015 Mr Pengilly estimated that after the lodgment of all of those returns the amount of income tax and GST owing would be approximately $445,000. Mr Pengilly provided four further quarterly reports to the Bar Council between August 2015 and May 2016, each outside the period to which complaint grounds A to D relate.

38. [80]

    On 30 April 2015 Mr Pengilly wrote to the Bar Association advising that the appellant did not then have any outstanding tax lodgment obligations. His next BAS was due for lodgment and payment on 26 May 2015. On the same day the appellant made a statutory declaration in response to a Bar Council request under Legal Profession Act, s 660(1) for information as to how he expected to meet his tax obligations:

39. [81]

    In an earlier statutory declaration made on 13 April 2015 the appellant explained why he had not been able to set aside moneys to pay his ongoing tax liabilities:

40. [82]

    A Bar Association Conduct Committee draft report of 4 May 2015 proposed that the current complaint against the appellant be referred to the Tribunal under Legal Profession Act, s 537(2) because there was a reasonable likelihood that he would be found to have engaged in professional misconduct. That report noted that there was no current indication that the appellant proposed to sell the family home to meet his tax liabilities although “it appears that he is using his income to meet his loan repayments”.

41. [83]

    In his letter of 19 May 2015 responding to that draft report the appellant wrote:

42. [84]

    The appellant also described his “worsening depression and panic attacks” and their effects on his compliance with the practising conditions:

43. [85]

    On 11 June 2015 the Bar Council resolved that the complaint be referred to the Tribunal. That resolution was advised to the appellant on 12 June 2015. The remaining matter was whether the appellant should be granted a practising certificate from 1 July 2015. In support of that application, Dr Jurek’s report of 22 June 2015 was attached and provided to the Bar Association. It included the following:

44. [86]

    On 16 July 2015 the Bar Council resolved to grant the appellant a practising certificate from 20 July 2015 subject to varied discretionary conditions. Conditions 1 to 5 required that he attend on Dr Jurek or some other specialist medical practitioner for treatment and act in accordance with any advice received, and that the medical specialist report to the Bar Council regarding his attendance and compliance with treatment recommendations. Condition 6 required that he adhere to a payment plan agreed with the ATO. That plan required five monthly repayments of $4,000 with the balance of his tax liability to be discharged by January 2016. The remaining conditions 7 to 15 required the retainer of a financial expert, compliance with reporting and payment obligations to the ATO, and the regular provision of reports of the financial expert to the Bar Council.

45. [87]

    In November 2015, Dr Jurek reported that she had seen the appellant three times since these conditions were imposed, he having sought appointments when he was “distressed”. The appellant reported “symptoms of depression and anxiety” and, as a result of taking antidepressant medication, “some improvement in his mood though anxiety levels remained high”.

46. [88]

    In January 2016 the appellant did not pay the amounts of $158,826 and $298,133 then due to the ATO. Mr Pengilly reported that default to the Bar Association on 19 February 2016, and advised that the appellant was seeking to sell his wife’s country house. As at 18 May 2016 his liability to the ATO was $595,636, including outstanding tax of $426,903. On 23 June 2016 the Bar Council resolved to decline to renew the appellant’s practising certificate for the year commencing 1 July 2016 by reason of his contravention of condition 6 of his expiring certificate. That refusal was advised orally to the appellant, as well as by a letter dated 27 June 2016. On 28 June 2016 he was admitted to Hornsby Hospital following an incident on the previous day. He was discharged some time later. In his report of 23 November 2016 Dr Williamson opined, on the basis of the history recited to him, that the appellant’s “condition worsened 18 months ago and became intolerable about 6 months ago”. He diagnosed him as suffering at that time from a persistent major depressive disorder.

Disposition of grounds 1 and 2

1. [89]

   In answering the question whether the appellant’s depressive disorder caused or materially contributed to his contravening conduct, the Tribunal preferred the evidence of Dr Brown and focused on the appellant’s ongoing breaches of condition 2. There was also reference to conditions 8 and 9, which required the financial expert’s quarterly reporting. As will become apparent, the Tribunal’s references to compliance with conditions 8 and 9 describe the fact of communications and sometimes reports from the appellant’s accountants to the Bar Council. However the Tribunal did not attend to the content of those reports and whether it satisfied the relevant conditions.

2. [90]

   On analysis, the position in fact was that although the two nominated “financial experts” (Ms Ren, and for a much shorter period Mr Pengilly) provided reports to the Bar Council, only Mr Pengilly’s first report of 6 March 2015 substantially complied with condition 8. None of Ms Ren’s reports complied with condition 8. This subject is dealt with in more detail below at [102].

3. [91]

   Dr Brown was not satisfied that the appellant had either a severe persistent depressive disorder or severe depression before mid-2015:

4. [92]

   In preferring Dr Brown’s evidence, the Tribunal reasoned as follows. The appellant’s ability to “comply” with some conditions, albeit late, but not others was a “cogent indication” that his psychiatric condition did not cause or materially contribute to his conduct (Decision [112]). The history given by the appellant to the three psychiatrists was not accurate because it did not indicate that he did regularly comply, albeit late, with conditions 1, 2, 8 and 9 from October 2012 until late March 2014, and in March and April 2015 (Decision [111]). This particularly undermined the opinions of Drs Williamson and Phillips. The break in compliance with those conditions between March 2014 and March 2015 does not indicate that his condition was the cause of that non-compliance, particularly in circumstances where he resumed compliance with the same conditions in March 2015 (Decision [113]).

5. [93]

   The Tribunal found that he “did not have sufficient disposable income both to meet his personal expenditure and his income tax debts” through the period from October 2012 to June 2015. It also regarded the fact that the appellant had borrowed moneys in 2008 and 2012 to meet his then overdue tax liabilities as confirming that in those earlier periods he also did not have sufficient funds to pay his tax from his disposable income (Decision [109]).

6. [94]

   The Tribunal held that his problems throughout the period from October 2012 to June 2015 were due to poor practice and financial management, and that to accommodate his ongoing shortage of funds the appellant “made a choice to meet his mortgage payments in priority to his tax debts”. It concluded that if the appellant had suffered from serious depression as suggested, he would not have “regularly” complied with conditions 1, 2, 8 and 9 during the relevant period (Decision [115]-[116]).

7. [95]

   The appellant challenges the Tribunal’s findings and reasoning. First, it is said that the psychiatrists were not given the opportunity to consider whether any “pattern of regular compliance” with the conditions was an important factor to be taken into account in determining whether his psychiatric condition materially caused or contributed to his conduct. Secondly, it is contended that there was no such pattern of “regular compliance” with conditions 1, 2, 8 and 9. Thirdly, it is submitted that in preferring Dr Brown’s evidence the Tribunal did not give any or any adequate weight to the evidence of the appellant’s treating doctors (other than Dr Williamson), and that it had no proper basis for preferring her evidence to that of Drs Phillips and Williamson.

8. [96]

   It is convenient to commence with the second of these arguments, which directs attention to the conduct described by the Tribunal as having involved “regular albeit late compliance” with conditions 1, 2, 8 and 9 (Decision [111], [113], [115], [116]).

9. [97]

   The Tribunal’s description of the appellant’s satisfaction of conditions 1, 2, 8 and 9 during the period to June 2015 as involving late but “regular compliance” is inaccurate and apt to mislead.

10. [98]

    Condition 1 required that the appellant lodge then outstanding BAS and income tax returns by 8 November 2012. That was done by 4 December 2012. From that time condition 1 ceased to be relevant. In no sense could it be the subject of “regular” compliance.

11. [99]

    Condition 2 required ongoing compliance with reporting and payment obligations. Understood as requiring timely compliance, that rarely occurred if at all. As at 30 April 2015 the appellant had no outstanding tax lodgment obligations. However at that time his unpaid tax liabilities were expected to exceed $445,000. At no time between 16 October 2012 and 30 June 2015 was the appellant not in default of his ongoing payment obligations to the ATO.

12. [100]

    Conditions 3 and 4 required that moneys be set aside to meet taxation obligations. The appellant first nominated an account for that purpose in April 2015. At no time during the relevant period were “sufficient moneys” ever set aside, the appellant accepting that he was never in a financial position to do so.

13. [101]

    Conditions 5 to 11 related to the retainer of a financial expert. As is mentioned earlier, conditions 5 and 6 required that the expert be put in a position to “control satisfactorily [the appellant’s] financial affairs to facilitate [his] compliance” with the other conditions. That never occurred in relation to Ms Ren. Mr Pengilly’s only report during the relevant period (dated 6 March 2015) proposed such an arrangement but did not indicate whether it was in place and being given effect.

14. [102]

    Conditions 8 and 9 required the financial expert to submit quarterly reports providing evidence that the reporting and payment obligations and obligation to set aside funds were being complied with, as well as a statement that the financial expert was in a position to control satisfactorily the appellant’s financial affairs. Although Ms Ren provided reports in the period to March 2014, none provided evidence that sufficient moneys were being set aside, or included a statement that the appellant had enabled her to control his financial affairs.

15. [103]

    Finally condition 10 required that any financial expert retained be informed in writing of the terms and duration of the conditions attached to the practising certificate. It would seem (on the basis of the appellant’s pleaded admission of the Bar Council’s allegation) that neither of Ms Ren or Mr Pengilly was ever informed in writing of the terms and duration of the conditions attaching to his practising certificate, as was required.

16. [104]

    The Tribunal’s short reasons (Decision [112]-[116]) make tolerably clear that the periods of “compliance” to which it referred are those in which there was satisfaction of the appellant’s reporting and lodgment obligations albeit late (the first limb of condition 2), and the submission of reports and provision of information by Ms Ren and Mr Pengilly to the Bar Council (conditions 8 and 9). So understood it is necessary to consider the Tribunal’s analysis and reasoning, accepting that its reference to condition 1 is irrelevant and that the references to “compliance” with conditions 8 and 9 are not correct, other than in a very limited sense.

17. [105]

    The experts agreed that the appellant suffered from a depressive disorder during the period from October 2012 to June 2015. There remained the issue as to its severity and whether it affected his compliance with the conditions and his tax obligations. During part of that period – namely, from October 2012 to March 2014, and at least between February and April 2015 – the appellant did engage with his financial advisor sufficiently to enable reporting and lodgment to occur. The Tribunal reasoned that if his ongoing depressive disorder did not prevent him from complying at those times there was no apparent reason why it should have at other times during the relevant period.

18. [106]

    With respect to the “break in compliance” between March 2014 and March 2015 (understood as referring to a period in which there was little productive activity in satisfaction of reporting and lodgment obligations), the Tribunal concluded that the appellant’s “psychiatric condition did not cause or materially contribute” to that lack of activity (Decision [113]). In support of its conclusion the Tribunal noted that in other respects the appellant had responded sensibly and actively to his predicament – he had taken steps to arrange a loan to discharge his outstanding tax liability, retained Mr Pengilly and continued to conduct his practice.

19. [107]

    Addressing in more detail the position from March 2014, the appellant did not have funds to meet his tax obligations or to pay for Ms Ren’s services, which in turn limited his access to financial records held by her. He sought to refinance the family home, work opportunities were not realised as planned, he “downsized” chambers, his wife obtained a job and the family budget was tightened. All of this caused anxiety and embarrassment, although he continued to “have plenty of work in progress”. In late July 2014, the Bar Council advised that it proposed to make a complaint of professional misconduct. The appellant retained Mr Pengilly who assisted in addressing his financial circumstances and discharging outstanding lodgment and payment obligations. He also sought medical treatment, first seeing Dr Light. In notifying the Bar Council in September 2014 of his retainer of Mr Pengilly, the appellant’s explanation for not complying with the conditions of his practising certificate focused on the reduction in his earnings, his difficulties in paying Ms Ren, and his attempts to obtain a temporary overdraft facility and borrow to pay liabilities in excess of $200,000. He also described himself as simply “unable to address” and respond to the issues which were the subject of the complaint notified in the Bar Council’s letter of 29 July 2014, he being “overwhelmed by inertia”.

20. [108]

    The Tribunal was justified in regarding this sequence of events as consistent with and explained by Dr Brown’s evidence. That evidence was that the mild severity depressive symptoms which the appellant exhibited in mid-2014 resulted from his becoming “progressively more distressed about his failure to meet financial commitments”. However, those symptoms did not restrict his capacity to generate income or limit his ability to comply with the conditions attached to his practising certificate and his tax obligations. He consulted Dr Jurek three times in September 2014. Thereafter he did not consult her again until June 2015, and then in relation to his application for a further practising certificate. From September 2014 he worked with Mr Pengilly to bring his reporting and lodgment obligations up to date. That was achieved by April 2015. In October 2014, as the narrative above records, there were two admissions to hospital, on the face of it each due to “high stress levels”.

21. [109]

    The Tribunal separately considered whether the appellant’s depressive disorder affected his ability to comply with his ongoing payment obligations. It found that at no time during the period from October 2012 to June 2015 did he have sufficient disposable income to satisfy his ongoing business and personal expenditure (Decision [108]). That finding is not challenged. Nor is there a challenge to the finding that during the same period the appellant chose to meet his mortgage payment obligations before his income tax liabilities, hoping that he would eventually generate sufficient income from his practice to meet the latter (Decision [108]). The former include substantial interest payments on the moneys borrowed in 2008 and 2012 to meet earlier overdue tax liabilities (Decision [109]). (The Tribunal’s finding in that paragraph that the appellant borrowed $330,000 in September 2012 is not correct. The amount borrowed was approximately $522,000).

22. [110]

    The Tribunal also rejected “inertia” as being causative of the appellant’s financial circumstances or his failure to meet his ongoing reporting and payment obligations (Decision [115]). The inertia it was addressing was that described by Dr Phillips as “interfering in all areas of life” and resulting in the appellant becoming “demoralised and grossly inefficient in his various activities”; and by Dr Williamson as resulting in a “loss of energy, motivation and capacity to concentrate” which greatly reduced his ability to perform to “stringent requirements”. It was not the mild severity depressive symptoms described by Dr Brown as likely to follow from the appellant’s distress and anxiety arising from his failure to meet financial commitments and comply with the practising certificate conditions; or inertia of the kind described by the appellant in his letter of 4 September 2014. Again the Tribunal’s conclusion was justified by the evidence. The appellant was spending more than his disposable income permitted. In doing so, he deferred paying his tax liabilities, no doubt because doing otherwise would have resulted in defaults under his borrowing facilities and more quickly have put the family home at risk. That in turn lead to the late lodgment of BAS and income tax returns. For a period the position was further complicated because he could not pay his accountants, leading them to withhold their services and access to financial records, in turn making it difficult for the appellant to arrange any refinance. None of this was the result of the symptoms or compromised functionality described by Drs Phillips and Williamson as resulting from a persistent depressive disorder or severe depression.

23. [111]

    The evidence shows that from at least 2008 the appellant had been spending more than his disposable income justified and deferring payment of his tax liabilities to permit that to continue. The circumstances leading to the imposition of the conditions included that he was late in lodging his BAS and income tax returns. As the appellant explained in his letter to the Bar Council dated 9 June 2012, he did not lodge his BAS “hoping [events] would turn around, but they did not”. Thus his failures to lodge statements and returns during this earlier period were not due to any “inertia” resulting from a depressive disorder. Rather the appellant consciously delayed lodging BAS, hoping that his gross income and financial position would improve in the meantime.

24. [112]

    Throughout 2013 the appellant’s inability to pay his tax liabilities continued. Nevertheless he provided information to Ms Ren to enable the completion of his 2012 tax return and an interest remission application and deferred payment arrangement. In his communications with Ms Ren (extracted in the narrative above) there is no suggestion that there was any “blunting and slowing” of the appellant’s cognition (Dr Phillips) or any reduced “ability to perform to stringent requirements” (Dr Williamson).

25. [113]

    In early 2014 the appellant’s fundamental problem remained that he was spending more than his disposable income permitted and, to enable that to occur, deferring payment of his tax liabilities. In June 2014, one of the appellant’s barrister colleagues observed in a letter to the Bar Association that the “conduct of [the appellant’s] practice is unaffected by his financial concerns, confirmed by the diary entries for the rest of the year. He has plenty of work in progress”. That observation is to some extent confirmed by the level of his gross income during the financial years ended 30 June 2014 and 2015.

26. [114]

    All of this is consistent with Dr Brown’s opinion that the “mild severity depressive symptoms which arose” at this time did so “from him becoming progressively more distressed about his failure to meet financial commitments …”, there being “no documentary support for the contention that his mild depression which was documented from August 2014 onwards was of sufficient severity to restrict his earning capacity”.

27. [115]

    Summarising the position in relation to this first argument, the Tribunal’s references to there being a pattern of “regular compliance” in relation to conditions 1 and 8 are not correct. However the Tribunal’s analysis is justified, reasonably understood as directed to the periods in which the appellant provided information and assistance to Ms Ren or Mr Pengilly to enable the completion and lodging of BAS and income tax returns, albeit late. So understood that analysis and the Tribunal’s conclusions are supported by the evidence. It remains to consider the appellant’s arguments directed to the Tribunal’s treatment of the expert evidence.

28. [116]

    In order to address the causation question posed by the parties, it was necessary for the Tribunal to assess from the perspective of the appellant what was required for compliance with the relevant conditions, as well as what the appellant actually did and did not do in seeking to comply with them. It was also necessary for the Tribunal to understand the extent to which in the relevant period the appellant’s depressive disorder was affecting his functioning in his practice and personal affairs, and particularly in relation to his taxation and other financial dealings. Most of these matters involved questions of fact concerning the appellant’s functioning and conduct, as well as his attitudes and feelings, during the relevant period. These were matters about which the experts could do little more than make assumptions, those assumptions informed by the appellant’s history as told to them, or as otherwise communicated in the material provided to them.

29. [117]

    The Tribunal was not foreclosed from taking into account evidence as to the appellant’s functioning and conduct and state of mind, notwithstanding that the relevant evidence, or underlying history, may not have been taken into account by one or more of the experts. It was plain that the admissibility and materiality of their opinion evidence depended to a significant extent on the expert having addressed the appellant’s actual functioning, attitudes and feelings at the relevant times. Furthermore each expert emphasised the need for close attention to the appellant’s history when assessing the severity of his depression and its effect on his functioning.

30. [118]

    The Tribunal found that the history provided by the appellant to the three psychiatric experts was inaccurate because he failed to inform them that whilst late in compliance he did “regularly comply” with conditions 1, 2, 8 and 9. That “inaccurate history” is said to have provided a “misleading picture of the extent to which he was affected by the psychiatric condition from which he was suffering” (Decision [111]). This observation is not valid, based as it is on a wrong characterisation of the appellant’s conduct. Furthermore it was not directed to the central point, which was what was the appellant’s functioning and conduct which the relevant opinions addressed. It was common ground that the appellant had not complied with the conditions, and at the same time obvious and not controversial that over the same period he had retained accountants, lodged BAS and income tax returns and made some payments of tax. Furthermore, it was not necessary for the Tribunal to point out to any of the experts, or to the lawyers qualifying them, that the evidentiary value of their opinions depended on the accuracy of the assumptions made as to the appellant’s history. The question for the Tribunal was whether the opinions sufficiently addressed that history.

31. [119]

    In Dr Phillips’ written report, and in response to the question when the appellant’s disorder began to interfere with the conduct of his everyday life, he said “unfortunately I do not have sufficient information to answer that question with precision”. Nevertheless, in expressing an opinion about that question, he assumed that beginning in approximately 2013 the appellant “was failing to cope adequately within his professional workplace, that he was falling behind in various ways, and that he was failing to meet ATO obligations”. Dr Phillips explained his opinion as to the likely mechanism resulting in the appellant’s failure to meet his obligations to the ATO in the following terms. The appellant would develop a general inertia and lack of initiative interfering in all areas of his life. He would become demoralised and grossly inefficient in his various activities; and there might be a blunting and slowing of cognition all due to his persistent depressive disorder (see [27] above).

32. [120]

    Dr Williamson accepted that a reliable assessment of the severity of the appellant’s depression and its outcome for his functioning could only be given with the benefit of a detailed history of his “attitudes and feelings”. However, in his second written report, when answering the question whether the appellant’s diagnosed condition and symptoms likely caused or contributed to his contravening conduct, he did not set out such a detailed history or any assumptions made concerning the appellant’s functioning, either generally or with respect to his dealings with the ATO and Bar Council. Instead he appears to have made more general assumptions as to the appellant’s functioning involving dysfunction across all areas of life, including marital relationships, family relationships, friendly relations and maintenance of ordinary living functions; emphasising that severe depression involves “the loss of energy, motivation and capacity to concentrate” which “greatly reduce a person’s ability to perform to stringent requirements”.

33. [121]

    The Tribunal was not required to ensure that each of these experts was given the opportunity to consider other assumptions concerning the appellant’s actual functioning. Each described his likely functioning, assuming he had a severe depressive disorder. Nevertheless, during the cross-examination of the experts in joint session, each was given the opportunity to consider specific aspects of the appellant’s functioning and its consequences for his or her opinion. Those aspects included his functioning as a barrister, including practice management, his interactions with his accountants or financial advisors, his managing family expenditure and his negotiating loans with banks and other lenders. The Tribunal did not err in proceeding as it did, and in preferring Dr Brown’s opinion to that of Drs Phillips and Williamson.

34. [122]

    As is noted above Drs Williamson and Phillips acknowledged that a reliable assessment of the appellant’s depressive condition could only be given with the benefit of a detailed history (see [35] above). None of the three treating doctors had the benefit of such a history, and none of them addressed his mental state during the relevant period. In the circumstances there was no error in the Tribunal giving no or no significant weight to the evidence of each of the treating doctors. Furthermore, the appellant’s submissions do not spell out the particular evidence which it is said should have been taken into account, and how it was material to the question before the Tribunal.

35. [123]

    While aspects of the arguments raised in support of grounds 1 and 2 are made out, those arguments have ultimately required that this Court address in more detail the factual matters with respect to the appellant’s functioning in relation to his reporting and payment obligations. Having done so I agree with the Tribunal’s conclusion, based on Dr Brown’s opinion, that the appellant’s psychiatric condition did not cause or materially contribute to his non-compliance, principally with condition 2. That non-compliance ultimately proceeded from the fact, not relied on as due to any psychiatric disorder, that the appellant did not have sufficient disposable income to meet his personal and business expenditure as well as his income tax liabilities throughout the relevant period. That resulted in non-compliance with his payment obligations and led to the appellant delaying the lodging of BAS and income tax returns because he was unable to pay the instalments required to accompany them or the moneys becoming due after they were lodged. His inability to meet those obligations and the Bar Council’s decision in mid-2014 to make a complaint of professional misconduct understandably caused stress and anxiety, as well as professional embarrassment. As the Bar Council submitted, in reliance on Dr Brown’s evidence, the appellant’s mild severity depressive symptoms apparent at that time arose from his becoming progressively more distressed about his inability and failure to meet his tax obligations and the conditions imposed on his practising certificate.

36. [124]

    Accordingly grounds of appeal 1 and 2 should be dismissed and the Tribunal’s finding that the respondent’s conduct in contravening those conditions constituted professional misconduct should be upheld.

37. [125]

    The argument before the Tribunal and in this Court concerning the appellant’s contravening conduct focused on payment, lodgment and reporting conditions 2 and 8, without regard to whether the content of the reports provided satisfied condition 8. However the appellant’s non-compliance included failing to arrange for a financial expert to submit quarterly reports providing evidence of compliance with his reporting and payment obligations, as well as his failing to place his financial affairs in the hands of an expert who was thereby enabled to “control satisfactorily his financial affairs” to facilitate his compliance with the other conditions.

38. [126]

    Had such a regime been set up and enforced from the outset, it would have been apparent within the first six months or so that the appellant was not complying with his reporting and payment obligations and his obligation to set aside moneys. Furthermore, if the appellant had placed his financial affairs under the control of an expert and enabled the expert to exercise that control, it is likely that the underlying financial management difficulties which he encountered from well before the period in question would have been addressed and, perhaps, avoided, irrespective of any underlying depressive disorder from which the appellant suffered.

39. [127]

    In focusing on the narrow question of causation with respect to limited aspects of the appellant’s conduct, the Tribunal did not have regard to all of that conduct or consider whether his depressive disorder could possibly have provided a reasonable excuse for his conduct not being treated as sufficiently serious to enliven the power to cancel his practising certificate. Those conditions were directed to ensuring the appellant would meet his tax obligations and it was not suggested that his psychiatric disorder prevented him from complying with conditions 5 to 10 by retaining a “controlling” financial expert. Had such an expert been retained from the outset it is not obvious that there would have been any ongoing failure to comply with his underlying tax obligations. In those circumstances the psychiatric disorder would not provide a “reasonable excuse” for the breaches of the reporting and payment conditions which would not have occurred if those particular conditions had been complied with.

40. [128]

    As the present case was not conducted on this basis, it does not arise for consideration. However it is mentioned because it illustrates the need, when addressing the question of “reasonable excuse” under s 73(1), for attention to all of the contravening conduct and the circumstances in which it occurred.

Ground 4 (in relation to grounds of complaint A to D)

1. [129]

   The Tribunal concluded (Decision [200]) that taking into account “the nature and extent of the professional misconduct” which it had found, it was appropriate that an order be made under Legal Profession Act, s 562(2)(a) removing the appellant’s name from the roll. Those findings extended beyond the conduct complained of by grounds A to D and included the findings of dishonesty with respect to the June 2017 affidavit and the appellant’s evidence of having forgotten the fact of the transfer (Decision [197]). The Tribunal did not consider separately whether the appellant’s conduct in contravening the practice conditions was itself sufficient to justify that order.

2. [130]

   The power to make such an order was enlivened by the Tribunal’s finding (which in my judgment should be upheld on appeal) that conditions 1 to 11 were contravened without reasonable excuse. Those contraventions constituted professional misconduct (Legal Profession Act, s 73(1)(a)). Where an order for removal is proposed “the ultimate issue is whether the practitioner is shown not to be a fit and proper person to be a legal practitioner of the Supreme Court” (A Solicitor v Council of the Law Society of New South Wales (2003) 216 CLR 253; [2004] HCA 1 at [15]). As the Tribunal noted at Decision [192], the party moving for such an order, here the Bar Council, must establish that the practitioner is unfit to practise and likely to be so for the indefinite future, citing Stanoevski v The Council of the Law Society of New South Wales [2008] NSWCA 93 at [53]-[54]. The Tribunal made such a finding at Decision [196].

3. [131]

   In support of his appeal from that finding and the order removing his name from the roll, the appellant contends that “he tried honestly, but failed, to meet his tax obligations, as opposed to embarking on a deliberate scheme of tax evasion” of the kind in New South Wales Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284. There the barrister had failed to lodge taxation returns for 38 years. That failure was described by Spigelman CJ (at [29]) as involving “an inexcusable pattern of illegal conduct in complete defiance of [the barrister’s] civic responsibilities”. The conclusion that he was not a “fit and proper person” was irresistible.

4. [132]

   The appellant submits that his position is more closely aligned with the facts in New South Wales Bar Association v Murphy (2002) 55 NSWLR 23; [2002] NSWCA 138. The somewhat complex circumstances of that case are briefly summarised by Giles JA at [163]-[172]. In his Honour’s view (agreed in by Spigelman CJ and Ipp AJA) they did not reveal “such deficiency in character or competence as a legal practitioner” that the respondent was not fit to practise as a barrister. He was not dishonest or indifferent to his taxation obligations. His failings were not in the probity required of a legal practitioner but in his ability properly to order his affairs. However they were not such as to reflect upon his ability to act in the affairs of his clients.

5. [133]

   Here the circumstances are somewhat different. The financial management conditions were imposed at the appellant’s request following two show cause events and the entry of judgment on 12 October 2011 in favour of the Deputy Commissioner of Taxation for $293,915. Those events were his conviction on 30 May 2012 for failing to lodge five BAS and the service on 30 June 2012 of a creditor’s petition seeking to enforce the judgment for unpaid tax. The investigations of the Bar Council at that time revealed the extent to which the appellant had knowingly failed to comply with his lodgment and payment obligations. As at September 2012 he had not lodged his returns for the years ended 30 June 2010 and 30 June 2011 and his BAS for the quarters ended 31 December 2011, 31 March 2012 and 30 June 2012. More significantly he had been “late in the lodgment of his BAS since 2001, however, the period of default began to become substantial in 2008”.

6. [134]

   It is apparent that between 2008 and 2012 the appellant was not complying with his obligations to lodge returns and pay income tax. As Spigelman CJ said in Cummins at [19]-[20], there are significant public interests involved in the conduct of members of the legal profession. They include that the public “must have confidence in the legal profession by reason of the central role the profession plays in the administration of justice. Many aspects of the administration of justice depend on the trust by the judiciary and/or the public in the performance of professional obligations by professional people”. Kitto J in Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279; [1957] HCA 46 described (at 298) the barrister as being:

7. [135]

   In New South Wales Bar Association v Hamman [1999] NSWCA 404; (1999) 217 ALR 553, Mason P agreed (at [87]) that the Court’s response to proven and ongoing failures to comply with revenue and tax obligations, whilst not overlooking the need for due proportionality, should be informed by an attitude which “cannot permit the public to gain the impression that [barristers] flout the revenue laws or that it condones or tolerates or belittles the seriousness of crimes against the revenue” (that being a quote from SM Stoddard and CA Stutsman Jr, “Income Tax Offences by Lawyers: An Ethical Problem” (1972) ABAJ 842 at 845). See also per Beazley JA in Davison v Council of the New South Wales Bar Association [2007] NSWCA 227 at [108].

8. [136]

   The significance attached to a legal practitioner’s compliance with income tax obligations is manifest in the provisions of the Legal Profession Act and Legal Profession Uniform Law. Show cause events include “conviction for a serious offence or a tax offence”; and the practice conditions that might be imposed by the Bar Council include requiring the holder of the certificate “to use the services of an accountant or other financial specialist in connection” with the practice or “to provide … evidence as to any outstanding tax obligations of the holder and as to provision made by the holder to satisfy any such outstanding obligations” (Legal Profession Act, ss 4(1), 50(3)(f), (g)).

9. [137]

   In response to show cause events in mid-2012, and as required by Legal Profession Act, s 67(2), the appellant provided by letter dated 10 September 2012 his statement explaining why despite those events, he considered himself to be a fit and proper person to hold a practising certificate. He commenced by describing himself as “a fit and proper person with conditions to be a legal practitioner”. Implicit in that statement is an acceptance that in the period before 2012 he had not been discharging his tax obligations, and to such an extent as to call into question his fitness and propriety to practise. The appellant then explained why he considered himself at that time to be a fit and proper person:

10. [138]

    The practice conditions became effective on 16 October 2012. The contraventions of those conditions started almost immediately and continued throughout the period in which they applied. At the same time the appellant continued to spend more than his disposable income and in doing so deferred payment of his tax liabilities. Notwithstanding that he was still in receipt of significant income the appellant first discharged his chambers and personal expenses including mortgage repayments, consciously prioritising them ahead of his tax liabilities. The appellant did this, at least in part, to avoid the banks and other lenders foreclosing, thereby affecting his credit rating and ability to “borrow again”.

11. [139]

    In the period after December 2012 the appellant paid the ATO $7,500 in mid-2013 and made few significant repayments thereafter. His failure to comply with the practice conditions was not sporadic. From the outset he failed to engage with the critical conditions requiring that he place his financial affairs under the control of a financial expert. In not doing so the appellant confirmed that absent such control he was incapable of observing his legal obligations and civic responsibilities with respect to income tax. At the same time he demonstrated that he was not prepared to comply with the conditions upon which he had been permitted to continue to practise.

12. [140]

    There is in the nature of the appellant’s conduct a flagrant and unacceptable disregard both for his statutory obligation to comply with the financial management conditions (Legal Profession Act, s 58), and his underlying tax lodgment and payment obligations. In the face of that conduct the Tribunal was correct in finding that he was unfit to practise and likely to remain so for the indefinite future. Having made that finding the Tribunal was satisfied, as am I, that the appellant’s name should be removed from the roll of lawyers.

13. [141]

    It follows that the appeal from order 3 made by the Tribunal on 11 December 2019 should be dismissed.

Grounds 3 and 3A and contention 3

1. [142]

   These grounds of appeal challenge the Tribunal’s findings concerning complaint grounds E and G. The respondent’s contention 3 is enlivened if ground 3 is upheld on the basis that the 1996 transfer was effective to create a beneficial interest in the appellant’s wife. In that event it would be necessary to address ground of complaint F.

2. [143]

   This ground alleges that in his affidavit of 6 June 2017 the appellant made false statements concerning the 1996 transfer. The statements said to have been knowingly false are:

3. [144]

   It was common ground that the June 2017 affidavit was produced partly in response to a request from the respondent that the appellant explain “the distribution of the proceeds of the sale of the family home”. That affidavit does not disclose that the appellant rediscovered the 1996 transfer “shortly before” it was sworn. That is first stated in his 9 August 2017 affidavit. In this Court the respondent contended that the information in para 19(g) was “undeniably false” because his wife was not the sole registered proprietor of the property at the time it was sold. It was also contended that para 18 could not explain why the net proceeds of sale were paid to the appellant’s wife in December 2016, because at that time they believed that they were joint owners of the family home.

4. [145]

   The Tribunal recorded the respondent’s submissions concerning ground E as follows (Decision [156]):

5. [146]

   The first of these submissions is consistent with there being an agreement for transfer of the appellant’s interest which remained unregistered. However the respondent’s primary case was that the appellant never “intended to transfer [his] half interest in the home in 1996”. Its alternative case was that although the transfer document was signed “there was no intention to ever register it, and so in effect it is kept in a bottom drawer, it is never registered, never stamped, but is kept in a bottom drawer for when it might be needed in future”.

6. [147]

   Although the statements in the June 2017 affidavit did not in terms refer to the creation of an equitable interest in the property, the appellant’s case before the Tribunal as recorded at Decision [159] was that there was an agreement for transfer and that his affidavit was not deliberately false having regard to the “following evidence of [his] wife”:

7. [148]

   In September 1996, the appellant and his wife agreed that he would transfer his half share in the Sydney home to her. They each signed a transfer document describing the consideration as $115,000. The appellant’s wife paid him that amount. She also paid an amount to their solicitor for stamp duty and his fees. The transfer was never registered. Nor was it stamped. The appellant’s evidence was inconclusive as to whether the transfer found shortly before June 2017 was the one that was intended to be returned to the solicitor for registration or a copy to be kept by the appellant and his wife. Thereafter the appellant apparently proceeded for some time on the basis that the transfer had been “dealt with” by the solicitor. He then forgot completely that these events had occurred and thereafter regarded himself and his wife as joint owners of the Sydney home.

8. [149]

   In cross-examination the appellant gave the following explanation as to his having forgotten about the transfer:

9. [150]

   The appellant referred in para 18 of the June 2017 affidavit to a recommendation from his accountants as to the transfer of his half share. He did not depart from that evidence when asked to explain his solicitor’s later reference to the consideration for the transfer being “nominal”, and denied that there was no intention to register the transfer and just keep it in a “bottom drawer”.

10. [151]

    The appellant’s wife said that they had agreed in 1996 that it was appropriate for the appellant’s share in the Sydney home to be transferred into her name, she having contributed to the purchase of the property and having paid the cost of some extensions and renovations. At about that time she had received a significant sum from the liquidation of her family’s share investment company and paid $115,000 to the appellant for him to transfer his half share to her. She paid the necessary fee to a solicitor to register the transfer and believed that he would do so. She further maintained that until the middle of 2017, she did not recall that the transfer had occurred and was only reminded of it when she found the transfer document itself in an archive box of papers in about May or June 2017. In her evidence in cross-examination she was emphatic that she had forgotten about the transfer. Finally, in response to a question as to whether she had any part in returning the legal documents to the solicitor in 1996, the appellant’s wife responded: “I didn’t have anything to do with it really. [The appellant] handled most of it, I just signed the document”. None of this evidence was challenged in cross-examination.

11. [152]

    Ground of complaint F charges that if the appellant created an equitable interest in his half share in his wife, he thereafter made statements and representations to the Bar Council which were knowingly false, being statements as to his being a joint owner of the Sydney home which was either “unencumbered” or subject to a mortgage that was “almost paid off”. In circumstances where he had no beneficial interest in the property, the appellant’s conduct in not informing the Bar Council of the true position was “misleading and lacked candour”.

12. [153]

    The appellant’s response was that “none of the representations were misleading, false or otherwise lacking in candour at the time they were made” (Decision [119]). Until June 2017 the appellant and his wife “approached their affairs on the basis that they were joint owners” of the family home (Decision [160]).

13. [154]

    This ground alleges that the appellant acted contrary to statements made in 2014 and 2015 concerning the use of the family home, either as security or by its sale, to generate funds to satisfy his outstanding tax liabilities. The respondent’s case as recorded by the Tribunal was (Decision [158]):

14. [155]

    The statements particularised and relied on are set out below. Only one related to the sale of the family home. It was made in the appellant’s letter of 4 September 2014 to the Bar Association. That letter purported to respond to the Bar Council’s complaint notified on 29 July 2014. However, as its later letter of 8 October 2014 pointed out, the appellant’s letter did not address the substance of that complaint:

15. [156]

    At Decision [161] the Tribunal recorded the appellant’s submission in response:

16. [157]

    The sale price was $2,375,000. Settlement occurred on 19 December 2016. The net proceeds of sale, after discharge of the mortgage and costs, were $1,726,368. The purchaser was directed to provide a bank cheque in favour of the appellant’s wife for that amount. The written instructions to that effect were signed by him and his wife.

17. [158]

    In his affidavit of 9 August 2017 the appellant said:

18. [159]

    In cross-examination, the appellant added to his explanation in para 23 that at the time he was “planning self-harm”, which was another reason why he did not approach his family and seek to use the proceeds of sale to discharge his tax liability. When that question was pressed, a further answer to the same effect was given. In a later answer the appellant said that: “… at the time I thought we both owned it, that she as proprietor or one of the proprietors, was entitled to … the proceeds on sort of an equitable basis as well, although I’m not an equity lawyer so I probably should have set that out more clearly”.

19. [160]

    In her affidavit of 9 August 2017, the appellant’s wife maintained at para 17:

20. [161]

    The Tribunal upheld ground E, concluding that in 1996 the appellant and his wife had changed their minds and decided not to proceed with the transfer. The matters relied on by the Tribunal as supporting that conclusion included: (1) their knowledge that for the transfer to be effective it had to be stamped and then registered; (2) their failures to make any inquiries of the solicitor about registration of the transfer; (3) their failures to return the signed transfer and declaration to the solicitor; (4) the non-payment of stamp duty on the transfer; and (5) the importance of registration for the protection of the appellant and his family from claims made against him (Decision [166]).

21. [162]

    The Tribunal rejected as “inconceivable” the appellant’s evidence that he had forgotten that he had “previously transferred” his interest to his wife. In so concluding the Tribunal made findings as to the circumstances which it considered supported that conclusion. Those findings included that his wife had paid $115,000 as consideration for the transfer and (implicitly, having regard to Decision [164]) that she had paid the solicitor $26,000 on account of stamp duty and legal costs and understood that the solicitor would do what was necessary for the transfer to be stamped and registered.

22. [163]

    Another of those circumstances was the appellant and his wife’s supposed “purpose of the transaction” (Decision [167]) being or including to protect the appellant and his family by transferring his interest to his wife (Decision [166(8)]); the risk being protected against having been identified at Decision [162] in the following terms:

23. [164]

    As the Tribunal found that the appellant and his wife had abandoned any agreement to transfer his interest in the family home to her, ground of complaint F did not arise for consideration (Decision [171]).

24. [165]

    The Tribunal upheld ground of complaint G. In doing so, it rejected the respondent’s submission that the appellant never intended to borrow money using the family home as security. It found that in the period from September 2014 to 27 June 2016 the appellant did intend to do so, and that if he was unable to do so he also intended to arrange to sell the property to pay his outstanding tax. The Tribunal did not otherwise find that the appellant acted contrary to the statements relied on during that period. However it held that on or shortly after 27 June 2016, being the date on which he was notified of the Bar Council’s refusal to renew his practising certificate from 1 July 2016, the appellant “changed his mind” and that he did so “to avoid paying his tax liability and to secure his financial future in circumstances where he was no longer able to practise as a barrister” (Decision [173], [174]).

25. [166]

    The appellant’s fundamental contention is that the Tribunal’s finding that he and his wife “changed their minds and decided not to proceed” with the transfer was not open because it was not directly put to either of them, and certainly not put to his wife. Furthermore it is submitted that whilst the appellant’s evidence that he had forgotten about the transfer was challenged as “not believable” and “false”, there was no challenge whatsoever to his wife’s evidence that they had agreed to transfer his interest, that she paid consideration of $115,000 as well as the solicitor’s fees and stamp duty, and that she then believed that the transfer would be registered. That belief was said to be inconsistent with her having changed her mind. In that context there was also no challenge to her evidence that at some later stage she had forgotten about the transfer.

26. [167]

    The respondent Bar Council submits that it was open to the Tribunal to find that the appellant and his wife started the process of transferring his interest and then changed their minds, that being the reasonable inference to be drawn from the matters referred to by the Tribunal at Decision [166]. In addition it is said that the Tribunal’s finding was consistent with the respondent’s primary case that the appellant never intended to transfer the property in 1996 and therefore could not thereafter have forgotten that he had done so.

27. [168]

    The immediate difficulty for this last submission is that the Bar Council’s primary case did not contemplate that at some point the appellant and his wife intended that there be a transfer and later changed their minds. The Bar Council’s so called “alternative case” was in substance to the same effect as its primary case but more specific, namely that the transfer was signed, but there was no intention to register or stamp it at that time, the intention being that it be kept it in the “bottom drawer”.

28. [169]

    The Tribunal implicitly rejected both of the respondent’s cases. Having accepted the appellant’s wife’s evidence as to the payments she had made (see Decision [164], [167]), the Tribunal proceeded to find, notwithstanding her evidence that there was an agreement and that the foregoing steps had been taken, that the appellant and his wife had changed their minds and decided not to proceed with the transfer. That was a finding of a conscious and deliberate decision on the part of each of them (the finding in terms being that they “changed their minds”).

29. [170]

    One of the Tribunal’s reasons for inferring that they had decided not to proceed with the transfer and registration, rather than overlooked checking or ensuring that registration had occurred, was that the latter was unlikely in view of the importance of the “protection” against claims which registration of the transfer was intended to provide. That reasoning was also based on a finding that was not open to the Tribunal. That being a purpose of the transfer was not established by the appellant’s evidence, and not suggested as being a relevant consideration to him or his wife.

30. [171]

    The rule in Browne v Dunn (1893) 6 R 67 requires that where it is intended to submit that a witness is “not speaking the truth” on a particular matter, the witness must be given the opportunity to deal with that matter. As Lord Herschell expressed it (at 71):

31. [172]

    If the rule is breached in relation to the making of a particular allegation (being one the acceptance of which necessarily involves the rejection of a particular witness’s evidence as not to be believed), it is not open to counsel to seek a finding in the terms of that allegation. Nor is it open to the Court, without having given notice to the parties, to make such a finding: per Heydon, Crennan and Bell JJ in Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 at [71], [72]. Their Honours continued at [75]:

32. [173]

    This rule of practice applies to any witness, whether a party or not: Bale v Mills (2011) 81 NSWLR 498; [2011] NSWCA 226 at [66]-[67]; and State of New South Wales v Hunt (2014) 86 NSWLR 226; [2014] NSWCA 47 at [39]. It does not apply where the witness has “full notice beforehand that there is an intention to impeach the credibility of the story which he [or she] is telling”, in which event it may not be necessary to “waste time in putting questions” upon it (Lord Herschell at 71). See also Seymour v Australian Broadcasting Commission (1990) 19 NSWLR 219 at 224-225 (Glass JA).

33. [174]

    The appellant’s evidence was that he gave instructions to have the transfer registered, “believed that [the solicitor] did all that was necessary” and that, having believed for a period “that [the solicitor] had taken all steps necessary”, he “just totally forgot about it”. The respondent was justified in being at least sceptical about the veracity of that evidence. It put to the appellant in cross-examination that his evidence in this respect “cannot be accepted to be true”, it earlier having been put to him that his evidence that he had forgotten what occurred in September 1996 was “not believable” and “false”. Whilst it was not put that the appellant had changed his mind about having the transfer registered, it was fairly plain that his evidence that he believed the solicitor was in a position to have the transfer stamped and registered was challenged as false.

34. [175]

    The same cannot be said about his wife’s evidence, which included that she had paid an amount to the solicitor for stamp duty and legal fees, her understanding being that the solicitor would “file the documents and register the transfer, as necessary”. Her evidence did not suggest that there was any change of mind. To find that there had been a change of mind to which she was party was plainly to suggest that she was not speaking the truth by suppressing a material fact, thereby giving a materially false version of the relevant events. In this respect, the position in relation to her evidence was not significantly different from that of the plaintiff in Kuhl (at [71]).

35. [176]

    There is another respect in which the Tribunal’s findings also necessarily involved the rejection of the appellant’s wife’s evidence. The Tribunal did not expressly reject her evidence that she had forgotten the fact of the transfer. However it is implicit in its finding that she and her husband had changed their minds that the appellant’s wife also could not have “genuinely” forgotten something that she had joined in deciding would not proceed.

36. [177]

    The appellant’s wife’s evidence cannot be dismissed as irrelevant, or as having no weight, in the resolution of the question on which the determination of ground of complaint E turned. Although she did not have anything to do with returning the transfer to the solicitor, the appellant’s wife gave evidence of an agreement for which consideration was paid, and as to her belief that agreement would be given effect by the solicitor stamping and registering the transfer. The Tribunal accepted the first part of this evidence. It was not open to it to reject the second without her being given the opportunity to address the allegation, not made by the respondent, that thereafter they had changed their minds.

37. [178]

    Because the finding that they had done so was not open, the Tribunal’s conclusion that this ground was made out cannot stand. I have already adverted to a further reason why this conclusion involved error. It depended on the finding as to the importance to the appellant and his wife of registration of the transfer. That finding was not reasonably available on the evidence.

38. [179]

    The appeal to this Court is by way of rehearing under Supreme Court Act, s 75A. In the face of these errors the immediate question is whether the Court should proceed to make its own findings as to the issues raised by ground of complaint E. The parties urge the Court to do so, it having the power to make any finding or assessment that ought to have been given or made on the evidence before the Tribunal (s 75A(10)). The appellant accepts however that the Court may not be in a position to do so.

39. [180]

    In my view the Court is not in a position to decide the central question which must be reconsidered; namely whether in 1996 there was a binding agreement for transfer which resulted in the appellant’s wife having a beneficial half interest in the Sydney home. First, the Court does not have the benefit of the appellant’s wife’s evidentiary response to the suggestion that there was a change of mind in relation to the implementation of the transfer. The correction of the Tribunal’s error requires that she be given the opportunity to respond to that allegation. Secondly, this is not a case where the evidence otherwise points clearly to only one conclusion. The resolution of this issue is likely to be influenced by an assessment of the reliability and credibility of the evidence of the appellant and his wife. This Court has not seen or heard those witnesses and is not in a position to form a view about their demeanour. Thirdly, the factual issue to be reconsidered arises in disciplinary proceedings where findings as to a legal practitioner’s honesty and candour assume particular significance. Those findings must be made on the balance of probabilities, taking into account the serious nature of the allegations made. See Evidence Act 1995 (NSW), s 140 and Briginshaw v Briginshaw.

40. [181]

    Finally, in Anderson v Anderson (2017) 94 NSWLR 591; [2017] NSWCA 131 at [35], Leeming JA observed that “it is no small thing for this Court to be invited to make a finding of fraud or other serious misconduct on appeal where one has not been made at first instance”. Whilst the Tribunal did make such a finding, that finding falls to be reconsidered in circumstances where there is a real question as to whether the Tribunal took advantage of its opportunity in seeing the witnesses to assess their demeanour. The Tribunal delivered its decision over 2 years and 3 months after the conclusion of the hearing. In addition on 9 August 2019, less than two months before that decision was delivered, the Tribunal was reconstituted and Senior Member Robberds was replaced by Senior Member Blake, all of this happening in accordance with Civil and Administrative Tribunal Act, s 52(1) and (2). Accordingly one member of the Tribunal did not see the witnesses give evidence. The others presumably brought their judgment to bear in relation to credibility questions over two years after the evidence was given. Any advantage that existed was by then significantly weakened: see Laminex (Australia) Pty Ltd v Smeeth [1999] NSWCA 462 at [8]; and Monie v Commonwealth (2005) 63 NSWLR 729; [2005] NSWCA 25 at [43].

41. [182]

    Ground of complaint G is in a different position. Because the disposition of the net proceeds of sale occurred at a time when the appellant and his wife had “forgotten” the fact of the transfer, whether the appellant’s wife acquired a beneficial interest by reason of the transfer is not relevant to the disposition of that ground of complaint. Accordingly ground of appeal 3A can and should be dealt with by this Court.

42. [183]

    There remains the question whether, having upheld appeal ground 3, the Court should remit grounds of complaint E and F to the Tribunal for determination, the latter only if necessary. The Court’s power to make such an order must not be exercised unless it appears that a “substantial wrong or miscarriage” has been occasioned by the errors resulting in the success of the upholding of that ground (Uniform Civil Procedure Rules 2005 (NSW), r 51.53(1)).

43. [184]

    The appellant contends that if this Court is not in a position to address grounds of complaint E and F it should not remit those complaints to the Tribunal for a “retrial”. The appellant’s psychiatric condition tells against exposing him to a further hearing, particularly where it is over three years since the first hearing which proceeded over three days. The appellant’s practising certificate has been suspended since that time and it is most unlikely that he will again apply for admission as a lawyer. In reply the respondent submits that serious allegations such as those made by grounds of complaint E and F should not be left undetermined particularly in circumstances where there remains a possibility that the appellant may apply for readmission and a practising certificate in the future.

44. [185]

    The Tribunal’s error in determining ground of complaint E affected the outcome of a ground which in turn provided a freestanding basis for the Tribunal’s order that the appellant’s name be removed from the roll. However because the Tribunal’s findings on grounds of complaint A to D should be upheld and those findings separately justify the Tribunal’s order removing his name from the roll, the appeal from that order will be dismissed irrespective of whether the Tribunal is required to reconsider ground of complaint E and, if necessary, decides ground of complaint F.

45. [186]

    It follows that no miscarriage of justice or substantial wrong has been occasioned by the Tribunal’s errors in dealing with ground of complaint E. The appeal from the Tribunal’s order 3 should be dismissed, notwithstanding that this Court has not determined complaint E. It is not necessary for that complaint to be resolved, and doing so would almost certainly subject the appellant to further and avoidable anxiety and distress.

46. [187]

    The Tribunal found that this ground of complaint was made out and that it constituted professional misconduct (Decision [173], [174]). No reasons are given for the conclusion that the appellant’s conduct in respect of this complaint justified a finding that he was not a fit and proper person, and accordingly was professional misconduct within Legal Profession Act, s 497(1)(b). That absence of reasons is not a ground of appeal.

47. [188]

    The appellant’s statement about arranging for the sale of the property was made in September 2014 around the time he first sought psychiatric assistance and retained Mr Pengilly. The Tribunal found that the statement reflected his intention at the time it was made and that he continued to have that intention until late June 2016.

48. [189]

    In the intervening period the Bar Council resolved to commence proceedings in the Tribunal (11 June 2015); on 16 July 2015 the appellant was granted a further practising certificate to 30 June 2016; the appellant was diagnosed by Dr Roberts as suffering from a major depressive disorder (February 2016); the appellant was advised that the Bar Council had resolved not to renew his current practising certificate (23 June 2016); and following an incident involving the police which resulted in his being “scheduled”, the appellant was admitted to Hornsby Hospital (28 June 2016) where he remained as an inpatient until 14 October 2016. During this period the appellant underwent electroconvulsive therapy which affected his short term memory. Contracts for the sale of the family home were exchanged on 13 October 2016.

49. [190]

    The gravamen of the Tribunal’s finding is that in circumstances where the appellant had no real prospect of again practising as a barrister he decided not to insist that his tax liability be discharged from proceeds of sale to which he was entitled. That conduct was also found to “secure his financial future”, in the sense that an amount of $1.7 million remained available to his wife and family in circumstances where he may never be able to work again. There was no allegation that his conduct in relation to the net proceeds of sale was dishonest and no finding that it was misleading or unlawful. Nor was it in breach of any practice condition or undertaking given to the Bar Council. Nevertheless it had the consequence that he would not discharge his significant taxation liability.

50. [191]

    The question is whether that conduct in the circumstances in which it occurred was of such gravity as to constitute professional misconduct. The appellant’s work and financial circumstances, his depressive disorder and his wife’s opposition to the use of the funds to pay his tax liability, whilst not excusing his conduct, certainly mitigate the seriousness with which it might otherwise be regarded. It was not sufficiently serious to constitute professional misconduct.

51. [192]

    For these reasons ground of appeal 3A should be allowed in part. The Tribunal should have held that his conduct was unsatisfactory professional conduct which did not by itself justify a finding that he was not a fit and proper person.

Conclusion

1. [193]

   In the result the appellant has failed on grounds 1 and 2 and partially succeeded on grounds 3 and 3A. The finding that grounds of complaint A to D were made out justifies the order for removal of the appellant’s name from the roll. It follows that the appellant’s partial success on grounds 3 and 3A could not justify the setting aside of that order. In the circumstances no substantial wrong or miscarriage has been occasioned by the errors leading to the upholding of ground 3 which would permit this Court to remit complaints E and F to the Tribunal for further hearing.

2. [194]

   Some allowance should be made with respect to the costs of the appeal to take account of the appellant’s partial success on grounds 3 and 3A.

3. [195]

   Doing so, the orders I propose are:

   1. (1)

      Dismiss the appeal against order 3 made by the Tribunal on 11 December 2019.

   2. (2)

      The appellant pay 80% of the respondent’s costs of the appeal.

Suppression and Non-publication orders

1. [196]

   By a notice of motion filed 8 September 2020 the appellant seeks orders under the Court Suppression and Non-publication Orders Act 2010 (NSW) requiring the use of pseudonyms for him and his wife in the proceedings in this Court, as well as orders prohibiting the disclosure of their identities or any information tending to reveal their identities in connection with these proceedings, by publication or otherwise in Australia for a period of 20 years. The Bar Council does not oppose the making of the orders sought.

2. [197]

   With respect to the proceedings before it, the Tribunal ordered pursuant to Civil and Administrative Tribunal Act, s 64 that the appellant and his wife be referred to by the pseudonyms DEJ and DEK respectively and prohibited, subject to exceptions similar to those proposed in this Court, the disclosure of their names, without any temporal limitation (Decision [6]-[14]). It follows that the context in which the present application is made includes that the Tribunal’s reasons for its decision are available electronically and accordingly able to be freely searched and read. It does not however follow that the circumstances which justified the making of such orders in the Tribunal will justify the making of orders to the same effect by this Court pursuant to s 8 of the Court Suppression Act: see Misrachi v Public Guardian [2019] NSWCA 67 at [17].

3. [198]

   The pseudonym and prohibition orders are sought on the ground that they are necessary “to protect the safety of any person”, the appellant being that person (s 8(1)(c)). In support of his application the appellant relies on two reports of a senior consultant psychiatrist, Dr Llewellyn-Jones, the first dated 25 April 2019 and the second dated 4 September 2020. Those reports describe his psychiatric condition and provide an explanation for why the existing use of pseudonyms and application of non-publication orders should be continued with respect to the proceedings in this Court. In the following paragraph Dr Llewellyn-Jones’ evidence is described in more detail. That paragraph will be redacted in the version of these reasons which is published.

4. [199]

   [Redacted]

5. [200]

   In these exceptional circumstances I am satisfied that there is a sufficiently realistic prospect of harm to the appellant to justify the making of orders under s 8(1)(c) in the terms summarised above, notwithstanding the public interest in open justice and the nature of these disciplinary proceedings, which ordinarily would require that the Court’s orders and reasons be published in full. Apart from [199] above, the orders proposed do not contemplate that any parts of the Court’s reasons will be redacted (and accordingly not published generally). Unlike the Tribunal’s orders, this Court’s orders must specify the period during which they are to operate. That period is 20 years which takes account of DEJ’s age.

6. [201]

   Accordingly the suppression orders that I propose be made are:

   1. (1)

      Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) and on the ground specified in s 8(1)(c):

   2. (2)

      Orders (1)(a) and (1)(b) do not apply to the respondent, or any member of the Bar Council or the New South Wales Bar Association, or any of their officers or employees, from disclosing:

   3. (3)

      Orders (1)(a) and (1)(b) do not preclude the respondent, or any member of the Bar Council or the New South Wales Bar Association, or any of their officers or employees, from disclosing:

   4. (4)

      Orders (1), (2) and (3) be subject to any further orders of this Court and any other court.

7. [202]

   WHITE JA: I agree with Meagher JA.

   1. (1)

      The Supreme Court of New South Wales;

   2. (2)

      The Supreme Court of the Australian Capital Territory;

   3. (3)

      The Legal Services Council, and any member, committee, or delegate of the Legal Services Council;

   4. (4)

      The Commissioner for Uniform Legal Services Regulation, and any delegate of the Commissioner;

   5. (5)

      A local regulatory authority or corresponding authority within the meaning of the Legal Profession Uniform Law 2014 (NSW), and any member, committee, or delegate of any such authority;

   6. (6)

      A person who is a member of the staff of, or acting at the direction of, any of the entities or persons referred to in (1) to (3) above;

   7. (7)

      Any Australian or foreign authorities or courts as referred to in ss 436 and 437 of the Legal Profession Uniform Law (NSW);

   8. (8)

      Any Australian government authorities, professional associations or educational bodies as referred to in s 441 of the Legal Profession Uniform Law (NSW);

   9. (9)

      Any medical practitioner and/or health professional nominated by the Bar Council, a local regulatory authority or corresponding authority within the meaning of the Legal Profession Uniform Law (NSW) for the purposes of s 95 of the Legal Profession Uniform Law (NSW) or any equivalent legislative provision, regulation or rule in any other State or Territory;

   10. (10)

       Any person who, for the purpose of s 95(1) of the Legal Profession Uniform Law (NSW) or any equivalent legislative provision, regulation or rule in any other State or Territory, is identified as being in a position to provide documents or information to a local regulatory authority or corresponding authority within the meaning of the Legal Profession Uniform Law (NSW);

   11. (11)

       Any person, body or entity to the extent that disclosure is permitted by ss 462(2) and (3) of the Legal Profession Uniform Law (NSW); and

   12. (12)

       The appellant’s trustee in bankruptcy.

   13. (1)

       Any costs consultant, solicitor, counsel or process server engaged by or on behalf of the Bar Council, the New South Wales Bar Association or the appellant;

   14. (2)

       The Manager, Costs Assessment within the meaning of the Legal Profession Act 2004 (NSW) and/or the Legal Profession Uniform Law Application Act 2014 (NSW);

   15. (3)

       Any costs assessor (whether acting alone, or as a member of a review panel);

   16. (4)

       Any court in which any appeal from a determination of a review panel is instituted (including, for the avoidance of doubt, judges, officers and employees of such courts);

   17. (5)

       Any court in which a certificate issued by a costs assessor or review panel is filed (including, for the avoidance of doubt, judges, officers and employees of such courts);

   18. (6)

       The Office of the Sheriff of New South Wales, and any officer or employee of that Office, and the equivalent Office in each State or Territory of Australia;

   19. (7)

       The Official Receiver and any court with jurisdiction under the Bankruptcy Act 1966 (Cth) (including, for the avoidance of doubt, judges, officers and employees of such courts); and

   20. (8)

       Any other person, body or entity to whom it is necessary to disclose the information, decisions, documents, or evidence referred to in Orders (5)(a) to (d) of the Court for the purpose of the legislation, regulation and rules that apply from time to time to the assessment of costs and enforcement of judgments.