Potkonyak v Legal Services Commissioner (No 2)

BEAZLEY P: This case is an appeal by the appellant, George Potkonyak, from a decision of the Civil and Administrative Tribunal of NSW (the Tribunal), comprising F Marks ADCJ, C Ludlow and M Bolt, delivered on 17 May 2017: Legal Services Commissioner v Potkonyak [2017] NSWCATOD 74 (referred to by the Tribunal, and in these reasons, as the Stage 1 proceedings). In that decision, the Tribunal found that the complaints made by the Legal Services Commissioner (the Commissioner) against the appellant had been made out and that the appellant was guilty of professional misconduct. On 9 January 2018, the Tribunal ordered that the appellant’s name be removed from the roll of lawyers of the Supreme Court of NSW: Legal Services Commissioner v Potkonyak (No 3) [2018] NSWCATOD 8 (the Stage 2 proceedings).

On 16 January 2018, the Tribunal’s orders were stayed by an order made by McColl JA pending the determination of the appellant’s appeal from the Tribunal’s orders: Potkonyak v Legal Services Commissioner [2018] NSWCA 1.

On 13 December 2016, the Commissioner commenced disciplinary proceedings against the appellant in respect of complaints made about him in relation to two sets of proceedings.

The first, referred to as the Re Felicity proceedings, concerned a series of cases about a mother’s custody of and contact with her child. The appellant represented the mother in the proceedings, which were commenced in the Children’s Court and subsequently in the Supreme Court of NSW, and were the subject of appeals to the District Court and this Court.

The second, referred to as the Judge Knox proceedings, also concerned parental care arrangements for the child of a mother represented by the appellant. The Judge Knox proceedings were commenced in the Children’s Court and were then the subject of an appeal to the District Court.

The Commissioner’s first complaint was that the appellant “conducted himself inappropriately at the hearing in the Parramatta Children’s Court from 2 to 4 April 2013”. The substance of this complaint was that the appellant made the following offensive and unsubstantiated statements to the presiding magistrate, Magistrate Murphy:

Before the Tribunal, the appellant, in large part, accepted that he had made these statements, but stated that he could prove that they were justified.

The Commissioner particularised the statements and allegations made by the appellant as both “offensive” and “unsupported by evidence”. The Commissioner also alleged that the effect of these statements was that the appellant breached the Revised Professional Conduct and Practice Rules 1995 (NSW), Advocacy Rules 23, A.36 and A.37, which each relate to matters of fact.

The second ground of complaint was that the appellant:

The substance of this complaint was that this statement was both “offensive” and “unsupported by evidence”. A breach of Advocacy Rules 23, A.36 and A.37 was also alleged. Before the Tribunal, the appellant accepted that he “made the statement to the said effect and honestly believe that it was the case”.

The third ground of complaint was that the appellant “breached his duty to the administration of justice by criticising the Children’s Court”. The substance of this complaint was that the appellant made statements that the Children’s Court was engaging in “unlawful practice” and “illegitimate practice”, and thereby brought the administration of justice into disrepute, in breach of his duty to the administration of justice. Before the Tribunal, the appellant accepted that he made these statements, but contended that:

The fourth ground of complaint was that the appellant “misled the District Court”. The substance of this complaint was that the appellant prepared and filed an affidavit sworn by his client, the mother, which did not contain all relevant evidence in circumstances where he knew or ought to have known that evidence to the contrary was available in the subpoenaed documents of the mother’s former solicitor. Before the Tribunal, the appellant accepted that this was a “blunder”, but that it was made “under extreme time pressure brought about by the delay of the production of the material in response to the subpoena”.

The fifth ground of complaint was that the appellant “breached his duty to his client”. The substance of this complaint was that the appellant pursued proceedings based upon:

The Commissioner submitted that the appellant continued to propound his argument regarding the purported “unlawful practice” and “illegitimate practice” of the Children’s Court in “consent without admissions” matters, failed to adduce relevant evidence on behalf of his client, and had lost objectivity. Before the Tribunal, the appellant replied, in essence, that each complaint was “ridiculous” or “baseless”. The appellant contested this complaint ground largely on the basis that other courts had allegedly supported his interpretation of the Care Act.

The sixth ground of complaint was that the appellant:

The particulars of complaint grounds 1 to 5 were repeated.

On 17 May 2017, the Tribunal delivered its reasons as follows:

As a result of the above findings, the Tribunal found that the appellant was guilty of professional misconduct. The Tribunal stood over the proceedings for the Stage 2 hearing to 22 August 2017.

On 11 September 2017, the Tribunal granted an adjournment of the Stage 2 hearing until 13 November 2017, to accommodate the appellant’s pro bono counsel (who did not ultimately appear for the appellant at the Stage 2 hearing), and made an interim order imposing certain practice conditions on the appellant: Legal Services Commissioner v Potkonyak (No 2) [2017] NSWCATOD 134. The Tribunal dismissed an application made by the appellant to refer the matter to the Supreme Court concerning a question of law.

On 9 January 2018, the Tribunal delivered judgment in the Stage 2 proceedings. The Tribunal found that the appellant was not a fit and proper person to engage in legal practice because he had engaged in conduct which demonstrated a substantial and consistent failure to reach and maintain a reasonable standard of competence and diligence.

In determining the consequences of that finding under the Legal Profession Act 2004 (NSW), s 562, the Tribunal ordered that the appellant be removed from the roll of lawyers of the Supreme Court of New South Wales. The Tribunal found that the appellant had no insight, comprehension or understanding of the misconduct findings made against him, particularly because he continued to argue that his interpretation of the Care Act was correct. The Tribunal found that the appellant:

On this basis, the Tribunal concluded that the appellant’s unfitness to practise law was “probably permanent” and, accordingly, the appropriate protective order was his removal from the roll.

On 19 January 2018, the appellant filed a notice of appeal. The grounds of appeal were as follows:

The appellant seeks orders that the appeal be allowed and that the orders and findings of the Tribunal be set aside. The appellant also seeks that the Court declare that he is a fit and proper person to practise law. In addition, the appellant seeks the following declarations:

A party has a statutory right to appeal to the Supreme Court in respect of a “profession decision” under the Civil and Administrative Tribunal Act 2013 (NSW), Sch 5, cl 29(2). A “profession decision” includes a decision for the purposes of the Legal Profession Uniform Law (NSW): the Civil and Administrative Tribunal Act, Sch 5, cl 29(1)(e).

Under the Civil and Administrative Tribunal Act, a reference to the Legal Profession Uniform Law includes a reference to the Legal Profession Act: the Civil and Administrative Tribunal Act, Sch 1, cl 21(a). The Legal Profession Uniform Law, Sch 4, cl 2 provides, in substance, that things done under provisions of the Legal Profession Act that correspond to provisions of the Legal Profession Uniform Law that were done before the commencement of the Legal Profession Uniform Law continue in effect as if they were done under the Legal Profession Uniform Law. Hence an investigation that commenced before 1 July 2015 is taken to have been done under the Legal Profession Uniform Law. It is by virtue of the Legal Profession Uniform Law, Sch 4 that provisions in the Legal Profession Act continue to apply.

The matter is assigned to this Court under the Supreme Court Act 1970 (NSW), s 48(1)(a)(viii): Konstantinidis v Council of the Law Society of New South Wales [2018] NSWCA 59 at [15]. The appeal to this Court is by way of rehearing under the Supreme Court Act, s 75A: the Civil and Administrative Tribunal Act, Sch 5, cl 29(4)(a).

It is also desirable to record that in conducting the rehearing, the Court must be astute to ensure that evidence and submissions made by the appellant in this Court, which on one view may have supported the findings of the Tribunal, are not taken into account in reaching any decision adverse to the appellant as to do so, in the absence of a clear warning from the Court, would amount to a denial of procedural fairness: Smith v New South Wales Bar Association (1992) 176 CLR 256; [1992] HCA 36 at 267-269 per Brennan, Dawson, Toohey and Gaudron JJ.

It is also appropriate, at this point, to make the following further observation. The right of a practitioner to challenge the law as it has been interpreted and applied is fundamental to the common law system and its evolving nature. However, there are accepted and legally competent ways in which that may be done. If the law, including the proper construction of a statute, has been determined by a court, that decision must be followed by other courts lower in the legal hierarchy. Critically, so far as the complaints about the appellant’s conduct here are concerned, it is not acceptable professional conduct for allegations of bias or impropriety to be made against judicial officers and fellow practitioners merely for adhering to decisions of courts in the judicial hierarchy whose decisions bind them. A challenge may be made to an existing statement of the law, but in accordance with well-established legal principle and procedures.

The way in which the appellant’s written and oral submissions were structured tended to focus upon what he asserted was the correct interpretation of the Care Act. In this regard, the appellant’s overarching complaint about the manner in which the Tribunal came to its determination of professional misconduct was that he should have been permitted to explain to the Tribunal why various judicial decisions on the construction and application of the Care Act were wrong and why his construction should be accepted. He sought to explain his conduct by saying that while his manner of expression may not have been appropriate, his view of the law was correct and the views of the judicial officers before whom he appeared were not. He contended that his appeal from the Tribunal’s orders would enable this Court authoritatively to declare the law in relation to the Care Act.

At best for the appellant, however, his arguments in respect of the Care Act are ultimately a peripheral issue and tended to obscure the real issues in this case. A review of the correctness of the authorities relating to care matters is not the subject of this appeal. Rather, what is in issue is whether the appellant has established error in the Tribunal’s findings. Even if the appellant’s construction of the Care Act were correct, I would have concluded that it did not provide an adequate excuse or even an adequate explanation for his conduct.

As a result of his focus upon the wrong issues, the appellant addressed the reasons of the Tribunal and the grounds of appeal in a confusing and unhelpful way. In order to give my reasons a cohesive structure, I have found it convenient to address the grounds of appeal in the following order: first, appeal ground 4(a); secondly, appeal grounds 3 and 4(b) to the extent that those grounds overlap; thirdly, appeal ground 5; and fourthly, the balance of the appeal.

Appeal ground 4(a) challenged the Tribunal’s determination in respect of complaint grounds 1 and 2, which related to the manner in which the appellant had conducted himself in the Parramatta Children’s Court from 2 to 4 April 2013 and in the District Court on 18, 19 and 21 to 23 November 2013 in the Re Felicity matter.

The appellant submitted that the Tribunal could not determine the Commissioner’s disciplinary application without considering his interpretation of the Care Act, s 90. He submitted that “the ‘applicable’ law in this unusual case turned out not to be the law and rules governing the legal profession but the law totally foreign to the Tribunal”. However, as I have already indicated, that was neither the nature of the disciplinary proceedings, nor was it the function of the Tribunal to do so in the determination of the Commissioner’s disciplinary application. What was in issue before the Tribunal was the appellant’s conduct in failing to represent his clients having regard to the law as it has been determined by this Court and applied in other courts, and whether the appellant engaged in the inappropriate conduct particularised in the Commissioner’s disciplinary application.

Contrary to the appellant’s submissions, it was not necessary for the Tribunal to undertake for itself the construction of the Care Act in addressing the Commissioner’s complaints. The construction of the relevant provisions of the Care Act have been determined by this Court.

Accordingly, appeal ground 4(a) is rejected.

In appeal ground 3, the appellant contended that he was denied procedural fairness on the basis that his evidence and submissions were ignored by the Tribunal. In appeal ground 4(b), the appellant challenged the Tribunal’s determination on the basis that the Tribunal ignored the appellant’s evidence and submissions, specifically in respect of complaint grounds 1 and 2. As the Tribunal dealt with each particular separately in its reasons, it is appropriate to take the same approach on the appeal.

The incident the subject of this particular occurred during the course of a hearing of an application pursuant to the Care Act, s 90, in the Children’s Court on 2 April 2013. Section 90 provides that an application for the rescission or variation of a care order may be made with the leave of the Children’s Court.

The Tribunal considered that the appellant’s statement the subject of this particular implied that Magistrate Murphy was biased in favour of the Director-General. The Tribunal noted that the appellant relied upon “his ‘experience’” in the Children’s Court as the basis for making this statement. The Tribunal also referred, at [22], to the appellant’s evidence before it and observed that, in that evidence, the appellant said that he believed that Magistrate Murphy was “definitely” biased in favour of the submissions of the Director-General.

The Tribunal considered that not only did the appellant’s statement constitute an allegation of serious misconduct against Magistrate Murphy, it also constituted a breach of Advocacy Rules 23, A.36 and A.37.

The Tribunal noted, at [20], that at the time that the appellant made the statement the subject of this particular, he was:

With respect to the appellant’s reliance on his “experience”, the Tribunal stated, at [21], that:

The appellant’s first submission was that he had reasonable grounds upon which to make the statement the subject of this particular, as evidenced by the fact that a costs order was made by Magistrate Murphy against his client, paying “lip service” to the principles governing the requirement of “exceptional circumstances” under the Care Act, s 88. The appellant contended that an understanding of the facts in the matter justified his making the statement. He submitted that this was demonstrated by the circumstance that the Children’s Court had allowed the Director-General’s s 90 application, but had declined leave to the mother, the appellant’s client, to bring an application based on the same facts. Secondly, the appellant submitted that “there is not one word about my evidence and written submissions” in the Tribunal’s reasons. He contended that by ignoring his evidence, the Tribunal created a “false premise for its decision”.

The appellant’s first submission should be rejected. The Care Act, s 88 provides that the Children’s Court “cannot make an order for costs in care proceedings unless there are exceptional circumstances that justify it in doing so”. The father of the child, who had retained lawyers to appear for him in the proceedings before Magistrate Murphy, sought an order that the mother pay his costs of the s 90 proceedings in the sum of $3,900. Magistrate Murphy heard the costs application on 24 June 2013 and gave judgment on 17 July 2013, making the order sought by the father.

Magistrate Murphy found that while the mother had been unsuccessful in seeking orders pursuant to s 90 from the Children’s Court, the Supreme Court and this Court, that did not cause her to reflect “that she was not going about things the right way”. Magistrate Murphy found that the mother’s evidence was “lacking credibility and honesty” and that “not … a single argument advanced by [the appellant had] found favour at any level of court”.

The Tribunal was not concerned with a review of or an appeal from Magistrate Murphy’s decision. Nor is this Court concerned with such a review or appeal. Rather, the matter in issue is the appellant’s submission that he had reasonable grounds upon which to make the impugned statement. He did not. The appellant did not adduce evidence before the Tribunal to support his allegation that the Director-General “was merely doing the father’s bidding” or that Magistrate Murphy was biased. I have referred to Magistrate Murphy’s costs judgment as that was the focus of the appellant’s submissions on particular 1.1. Magistrate Murphy had regard to the evidence, the submissions of the parties and the relevant legislation. Nothing in his Honour’s judgment indicates that he had pre-determined the matter.

The appellant’s second complaint, that the Tribunal failed to have regard to his evidence and submissions, should also be rejected. An application under s 90 for rescission or variation of a care order requires the leave of the Children’s Court. In the proceedings before Magistrate Murphy, the appellant’s client had consented to the grant of leave in respect of the Director-General’s application. Although the Tribunal did not set out the appellant’s evidence about the allegation of bias, it is apparent from its reasons, at [21]-[22], that it had regard to his evidence. Relevantly, the Tribunal referred to his evidence that “he believed that Magistrate Murphy was ‘definitely’ biased in favour of the submissions of the Director-General”. Further, as I have noted, the Tribunal referred, at [21], to the appellant’s “reli[ance] upon his ‘experience’ in the Children’s Court”, but noted that the appellant had not adduced any evidence in that regard. It is also apparent from the Tribunal’s reasons, at [20], that it had regard to the transcript of the proceedings before Magistrate Murphy. The Tribunal determined that there was no justification for the serious allegation of bias made against Magistrate Murphy, based as it was on the appellant’s own view of the conduct of the Magistrate in care matters involving the Director-General.

The Tribunal was correct to conclude that there was no basis or justification for the statement made by the appellant.

The Tribunal dealt with particulars 1.2 and 1.3 together. As the Tribunal was not satisfied that particular 1.2 was made out, it is not necessary to consider it.

In respect of particular 1.3, the Tribunal observed that the appellant admitted he made the statement, but said that he would be able to justify it. The Tribunal considered, at [31], that prima facie, the statement involved an allegation of serious misconduct against the other practitioners in the matter, namely, that they were motivated by a personal vendetta against him. The Tribunal stated that the appellant’s comment was “per se, offensive” and that he did not have reasonable grounds for his belief that there was material available to provide a proper basis for the allegations: see Advocacy Rule 23, A.37. The Tribunal continued:

The appellant submitted that, as was apparent from the transcript in the Children Court’s proceedings, “no matter what option I offered they wanted something different”. The appellant again submitted that his evidence and arguments had been ignored by the Tribunal, thus creating a false premise upon which the Tribunal found that he had no reasonable grounds to say what he did.

The evidence upon which this particular was based was accurately summarised by the Tribunal at [25]-[29]. However, having regard to the appellant’s submissions, I consider it appropriate to examine the transcript where the impugned comment (being the bolded portion in the extract below) was made.

The matter that was being agitated before Magistrate Murphy at the time that the appellant made the particularised statement related to two questions: first, whether the appellant’s client and the child’s step-sister were available for cross-examination; and secondly, whether the appellant acted for the step-sister. Related to the latter question was whether an affidavit of the step-sister could be “withdrawn” by the appellant. The relevant parts of the transcript were as follows:

This transcript demonstrates that the legal representative for the Director-General had indicated to the appellant that the mother and step-sister were required for cross-examination on their respective affidavits. Whilst the Children’s Court is not bound by the rules of evidence, unless it determines otherwise, in a contested case relating to contact with a child who has been removed from the care of a parent, it would be expected that a party seeking an order for contact would give evidence, including by way of cross-examination. The step-sister, whose affidavit was the subject of the exchange extracted at [53], had initiated the s 90 application. As the legal representative for the Director-General made apparent to Magistrate Murphy, his position was that if the step-sister’s affidavit was to be read in the proceedings, he would seek to cross-examine her.

There is nothing in the exchange from which it could be inferred that the position being taken by the other practitioners, to require the mother and step-sister for cross-examination, was designed to “get rid of” the appellant. What is apparent is that the legal representative for the Director-General was seeking clarification as to whether the appellant was withdrawing as the step-sister’s solicitor, or whether the step-sister was withdrawing her application.

The appellant has failed to establish that the Tribunal erred in finding that the statement the subject of particular 1.3 was “per se, offensive” and that he had adduced no evidence to demonstrate that his belief was held on reasonable grounds that there was factual material available to him to provide a proper basis for the allegations made by him.

Finally, contrary to the appellant’s submission that the Tribunal did not refer to his evidence and submissions, the Tribunal expressly referred, at [31], to the appellant’s submission contained in his “reply document”, that although “he made the statements … he would be able to prove that his opinion was justified”.

The appellant’s challenge to the Tribunal’s finding in respect of particular 1.3 is therefore rejected.

The Tribunal, after setting out the context in which the remark the subject of this particular, as recorded in the transcript, was made, referred, at [34], to the appellant’s evidence that he vehemently denied accusing Magistrate Murphy of being “bent”, in the sense of being “crooked or dishonest”, and to the appellant’s contention that an examination of the transcript would reveal that the assertion was to the effect that the magistrate was “bent on finding in a particular manner”.

Although this particular was based on the transcript as recorded, the Tribunal, at [35], proceeded on the basis that the appellant had asserted that Magistrate Murphy:

The Tribunal found that, so understood, the statement was “highly offensive”, and that a reading of the transcript gave no hint that the magistrate had predetermined the matter. The Tribunal found that, in circumstances where the appellant had failed to point to any other evidentiary material which could provide reasonable grounds for the assertion or that he had any belief on reasonable grounds that the magistrate had engaged in such serious misconduct, it was comfortably satisfied that this particular had been made out.

The appellant’s submissions to this Court sought to take issue with the Commissioner’s argument before the Tribunal that as a matter of “common knowledge”, the word “bent” means “dishonest”. As that is not the basis upon which the Tribunal determined the allegation in this particular, it is not necessary to deal further with this aspect of the appellant’s submissions.

Although the appellant accepted that the Tribunal referred, at [34], to his evidence in relation to the meaning of the word “bent”, he submitted that there was no further mention of his submissions. In his written submissions to the Tribunal, after stating that he “must have been interrupted while trying to say that [Magistrate Murphy] was ‘bent on determining the matter in favour of the Director-General’”, the appellant added “I suppose, the rest of my arguments will show that I was justified in concluding that the matter had been pre-determined”.

The appellant also referred to another of his appearances before Magistrate Murphy. He contended that Magistrate Murphy’s “repeated remarks” during those proceedings may be interpreted as “Who are you, Mr Potkonyak, to question the competence of an experienced solicitor and barrister?”. The “remarks” to which the appellant referred to, as I understand it, are as follows:

Having referred the Tribunal to the transcript of the proceedings before Magistrate Murphy extracted above, the appellant concluded this aspect of his written submissions to the Tribunal with the comment, “That is the attitude of CM Murphy”.

Accepting, as the Tribunal found, that the appellant’s intended meaning was that Magistrate Murphy had pre-determined the matter, such a remark made about a judicial officer is, as the Tribunal found, “prima facie, highly offensive”. As the Tribunal observed, at [35], the appellant adduced no evidence to support his view that Magistrate Murphy had in fact pre-determined the matter. A consideration of the transcript of the proceedings and Magistrate Murphy’s reasons for judgment on the s 90 application makes any such allegation untenable.

The appellant’s challenge to the finding in respect of particular 1.4 is therefore rejected.

The statement the subject of this particular was made in proceedings before Magistrate Murphy on 3 April 2013, when the appellant objected to a question asked by the legal representative for the Director-General during cross-examination. The relevant portion of the transcript is as follows:

The Tribunal found, at [38], that the appellant’s statements directed to Magistrate Murphy were clearly offensive and breached Advocacy Rules 23, A.36 and A.37. It further found that the appellant had not satisfied the exculpatory provisions of the Advocacy Rules. Accordingly, the Tribunal was comfortably satisfied that the particular had been made out.

The appellant’s submissions addressed both particulars 1.4 and 1.5 together. However, the submissions did not specifically refer to the appellant’s statement the subject of particular 1.5. The appellant also contended that the Tribunal failed to consider his evidence and submissions.

It is sufficient to observe that the remarks made about Magistrate Murphy were “prima facie, highly offensive”. The appellant adduced no evidence to support his view that his Honour had in fact pre-determined the matter. Accordingly, the appellant’s challenge to particular 1.5 is rejected for the same reasons as I have set out above in relation to particular 1.4.

The Tribunal, after referring to the extracts of the transcript upon which particular 1.6 was based, referred, at [39], to the appellant’s reply to the Commissioner’s disciplinary application, which was in the following terms:

The Tribunal noted, at [40], that in the proceedings before Magistrate Murphy, after the appellant had made reference for the first time to his Honour asking Legal Aid to discontinue considering the step-sister’s application for legal aid, Magistrate Murphy suggested to the appellant that he had not heard him correctly. The Tribunal considered that, in circumstances where that had been drawn to the appellant’s attention, the appellant’s second reference to Magistrate Murphy’s involvement in the cancellation of legal aid “was clearly offensive”. The Tribunal further noted, at [40], that the appellant “had absolutely no evidence to support the assertion, even if stated on the grounds of possibility only”.

The appellant’s submission to this Court in support of his challenge to the Tribunal’s finding in respect of particular 1.6 was as follows:

The discussion regarding legal aid contained in the transcript of the proceedings before Magistrate Murphy, to which the appellant referred in support of his submission, arose in circumstances where the appellant was acting for the child’s step-sister. There was no appearance by the mother on that occasion and the appellant informed the court that the mother’s Legal Aid solicitor had “quit on her”. There was further discussion as to whether the hearing should be adjourned, as the mother had not filed her evidence as directed. The exchange between Magistrate Murphy, the appellant and the legal representative for the father, continued as follows:

Contrary to the appellant’s submission, an examination of the transcript reveals that Magistrate Murphy did not direct anyone to inform Legal Aid of the matter. Rather, the legal representative for the Director-General indicated that he proposed to inform Legal Aid that the cases of the mother and step-sister were identical. It is apparent that Magistrate Murphy was seeking to ensure that the position was clear, that is, that the cases were identical. Magistrate Murphy’s remarks cannot sensibly be understood as indicating that he was going to report the matter to Legal Aid.

As the appellant has not established that the Tribunal erred in its finding in respect of particular 1.6, this challenge to the Tribunal’s reasons is rejected.

Particulars 1.7, 1.8 and 1.9 were catch-all grounds based on particulars 1.1 to 1.6. Based on its findings in respect of those particulars, the Tribunal was comfortably satisfied that particulars 1.7 to 1.9 were also made out. The appellant did not separately challenge these findings.

Particular 2.1 related to statements made by the appellant during the course of the District Court appeal, which was heard by Olsson DCJ, from Magistrate Murphy’s decision on the s 90 application. The context in which the appellant made the remark was that the father had sought to cross-examine the appellant in circumstances where the appellant had filed an affidavit in the Children’s Court proceedings which had been included in the tender bundle on the appeal to the District Court.

The Care Act, s 91(1) provides for appeals to the District Court as follows:

Section 91(2) provides that any appeal is to be by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence on which the order was made, may be given on the appeal. Instead of taking fresh evidence, and without limiting s 91(2), the District Court may, pursuant to subs (3), decide to admit as evidence the transcript of proceedings before the Children’s Court and any exhibit tendered during those proceedings. Accordingly, the appellant could be cross-examined on his affidavit filed in the Children’s Court, as the affidavit had been admitted in the District Court.

The appellant’s affidavit was sworn and filed in the Children’s Court on 19 October 2011. The appellant deposed in his affidavit that he was the solicitor on the record for the mother and was also the solicitor on the record for the mother in intended proceedings in the Federal Magistrates Court. The appellant further deposed that his attempt to commence proceedings in the Federal Magistrates Court without a certificate under the Family Law Act, s 69ZK had failed and that he had been unable to obtain such a certificate. Section 69ZK provides that an order must not be made under the Family Law Act unless, relevantly, the order is made in proceedings to which a child welfare officer has given written consent. The appellant concluded his affidavit with a “submission” that the orders made by the Children’s Court on 16 October 2009 “will no longer be valid after 5 November 2011 and must be rescinded”.

The relevant portion of the transcript that was the basis of complaint ground 2 is bolded in the extract below:

The Tribunal dealt, at [43]-[44], with particulars 2.1 to 2.4 together. The Tribunal found that the appellant’s comments the subject of this complaint ground were offensive. The Tribunal also found that there was no evidence of any factual basis for the statement. Further, it concluded that there was no evidence of any reasonable grounds for a belief that the statement was true, and no indication that the appellant’s client wished the allegation to be made. It followed on the Tribunal’s reasoning that complaint ground 2 had been made out.

The appellant invited the Court to read the cross-examination conducted by the child’s father, the child’s legal representative and counsel for the Director-General. His complaint was threefold in respect of this cross-examination: first, he contended that the cross-examination had little or no relevance to the content of his affidavit; secondly, he said that the cross-examination by counsel for the Director-General demonstrated his “contempt of a ‘mere’ solicitor”; and thirdly, he claimed that the cross-examiners pursued irrelevant questions designed to intimidate and embarrass him. The appellant contended that a fair reading of the transcript led to the conclusion that his “‘insight’ into the purpose and intent of the pending cross-examination was correct”.

That submission must be rejected. Although it is difficult to discern the relevance of the appellant’s affidavit, Olsson DCJ expressly stated that any potential conflict created by the appellant being both a witness in the proceedings and the solicitor on the record was a matter for him. No application was made by the father or the other parties to “disqualify” the appellant as the solicitor on the record. Whilst it is apparent from the transcript that counsel were seeking to cast doubt upon the appellant’s competence, there is nothing in the cross-examination to indicate any “plot by the father or the other parties to disqualify [the appellant].”

The appellant has not demonstrated any error in the Tribunal’s determination of complaint ground 2 and it follows that appeal ground 4, insofar as it relates to complaint ground 2, is rejected.

Appeal ground 5 related to complaint grounds 3 to 5, which concerned the Judge Knox proceedings. The appellant made both general submissions in respect of this appeal ground and specific submissions in respect of each of the complaint grounds. It will be convenient to deal first with the specific challenges to the Tribunal’s findings in respect of complaint grounds 3 to 5 before dealing with the appellant’s overall submission.

The appellant contended that appeal ground 5 and the complaint grounds to which it was directed went “to the core of the issues raised in the Tribunal and its utter disregard for [his] submissions”. The appellant’s submissions continued:

The Tribunal identified, at [45]-[47], the particular submissions that the appellant made to Knox DCJ in the District Court, in which the appellant made the statements the subject of particulars 3.1 and 3.2 respectively. The Tribunal observed, at [45], that the appellant, in describing the nature of the proceedings before Knox DCJ, had anticipated a “legal argument” directed to the jurisdiction of the Children’s Court, which was required to be satisfied that a child was “in need of care and protection”.

It was in the course of that argument that the appellant described the practice of the Children’s Court in the following terms:

The Tribunal noted, at [48], that the appellant had stated to Knox DCJ that his Honour was “not very familiar with the [Care Act]”, before referring his Honour to a number of provisions of the Act. The Tribunal commented that contrary to the appellant’s surmise as to his Honour’s unfamiliarity with the Act, it appeared from the transcript that his Honour was aware of the relevant provisions of the legislation, as he pointed out to the appellant that the attack on the jurisdiction of the Children’s Court should have been directed to the orders that had originally been made in 2010, rather than in 2012 and 2014 when those orders had been varied.

The Tribunal referred, at [49], to the appellant’s explanation that he had used the word “unlawful” not in the sense of being a criminal offence, but rather in the sense that it was contrary to law. The Tribunal then referred, at [50], to the appellant’s statement in his further reply, as follows:

The Tribunal noted, at [51], that statements of the kind referred to in particulars 3.1 and 3.2 had no factual basis and were “based only on an assertion of an ‘understanding’” held by the appellant. The Tribunal further observed that it was satisfied that such statements “bring the administration of justice into disrepute”, for reasons that it gave later in its decisions and was “comfortably satisfied” that complaint ground 3 had been made out.

The appellant submitted in respect of this complaint ground that:

The appellant then referred to his submissions before the Tribunal. In those submissions, the appellant referred to papers he had written on the proper interpretation of the Care Act, as well as what had occurred during the hearing of another care matter in which he had appeared. Rather than summarise the appellant’s submissions, the paragraphs set out below indicate the manner in which he approached this allegation before the Tribunal:

The appellant added “some statistics” to his argument. He contended that “only 28% of ROSH [Risk of Significant Harm] reports receive face to face contact with parents” and that they were “the ‘investigations’ that the Secretary is to make”. This material was derived from an annexure to his affidavit dated 11 April 2017 which had been rejected by the Tribunal. The appellant further submitted:

The appellant concluded his submission to this Court on complaint ground 3 as follows:

The statistics quoted in this submission were again those derived from the annexure to the appellant’s affidavit which was rejected by the Tribunal.

Considered in isolation, the appellant’s statement to the Court, whilst not well expressed, if understood in the way he contended, may have been within the appropriate limits of permitted advocacy on behalf of a client. However, I do not consider that the statements bear that character. To describe the practices of a tribunal as “unlawful” and “illegitimate” without an arguable basis to do so falls outside the permitted bounds of advocacy. The Tribunal was correct so to conclude.

The Tribunal held, at [60], that it was “comfortably satisfied” that the appellant misled the District Court, but concluded that he did not do so deliberately or intentionally. Rather, the Tribunal characterised the appellant’s conduct as being “a result of inappropriate carelessness or lack of attention to detail”.

As I understand the Tribunal’s reasons, the appellant’s “inappropriate carelessness or lack of attention to detail” was not a matter that it took into account in making its finding of professional misconduct. Accordingly, it is not necessary to consider the appellant’s challenge to this complaint ground further.

The Tribunal characterised, at [61], the essence of complaint ground 5 as being:

The Tribunal rejected, at [62], the appellant’s assertion that in the proceedings before Knox DCJ, he had acknowledged the authority of the cases which were set out in particular 5.2 and, in particular, what had been said by this Court in the Re Felicity matters. As the Tribunal noted:

The Tribunal referred, at [67], to the Commissioner’s reliance upon the Professional Conduct and Practice Rules 2013 (NSW) (the Solicitors’ Rules), r 3.1, which applied at the time the appellant was involved in the proceedings before Knox DCJ. Rule 3.1 provided that a solicitor’s duty to the court and the administration of justice is paramount and prevails to the extent of any inconsistency with any other duty.

The Tribunal also observed, at [69], by reference to particular 5.2, that at no stage in the extensive transcripts of evidence had the appellant made any reference to his client’s interests, other than by referring to the “unlawful and illegitimate practices of the Children’s Court”. The Tribunal expressed the view that the appellant had seemed to prosecute proceedings on behalf of his client:

The Tribunal further commented that there was no “hint” that the appellant had sought and obtained appropriate instructions or given his client advice about the state of the law and the fact that his submissions were contrary to principles established by the courts in the many cases in which he had appeared. This led the Tribunal to express, at [70], its agreement with the observations of Knox DCJ that the appellant had “sacrificed his client’s interests to his overwhelming zeal in pursuing ideologically based arguments”.

The Tribunal then referred to the 14 decisions that had been listed in particular 5.2, in which various courts had rejected the appellant’s submissions in respect of the construction and application of the Care Act. The Tribunal considered that nothing was to be gained from examining in detail each of the decisions, but to demonstrate the point, focused on this Court’s decision in Re Felicity and the Court’s rejection of the appellant’s arguments in that case. The Tribunal also referred to later Re Felicity proceedings, in which the appellant had been ordered to bear the costs of the proceedings personally. The Tribunal referred, at [76], to the observation of Ward JA in that case, that:

The Tribunal held, at [78], that the appellant breached the Solicitors’ Rules, r 4, which provided as follows:

The Tribunal, at [79], also referred to the appellant’s reply in respect of the decision of Department of Family and Community Services re GKD (Children’s Court of New South Wales, unreported, Magistrate Murphy, 26 April 2013), being one of the decisions particularised in particular 5.2. In his reply, the appellant described the decision of Magistrate Murphy as being “an incompetent and biased decision”. The Tribunal noted that the appellant had made a similar comment regarding the decision of HK v Director General, Department of Family and Community Services (District Court of New South Wales, unreported, Balla DCJ, 7 August 2013), in which he described the decision of Balla DCJ to grant leave as having been made on an “irrational ground”. The Tribunal observed, at [80], that the appellant had “sacrificed his duty to uphold the law to some misguided and inappropriate concept of what he thinks the law should be”.

The Tribunal examined the appellant’s conduct which was the subject of particular 5.4 by reference to the proceedings before Knox DCJ, where his Honour had pointed out to the appellant his failure to adduce relevant evidence. The Tribunal concluded, at [81], that the appellant’s response in his further amended reply that the charge was “baseless” demonstrated a lack of insight into the evidentiary material required to support his client’s case and his failure to adduce such evidence.

Particular 5.5 contended that the appellant had lost objectivity in conducting cases in circumstances where he continued to propound his view of the law. In support of this particular, the Commissioner relied upon the transcript of the proceedings before Knox DCJ in which his Honour repeatedly sought to point this out to the appellant. The Tribunal noted, at [82], that the appellant had conceded as much before Knox DCJ and the Tribunal, but that in his further amended reply, the appellant had stated “[i]t is his Honour who lost the objectivity and failed to discharge his own duty to the law and the judicial office”. The Tribunal stated that this statement was “outrageous” and demonstrated “a lack of objectivity and a lack of insight”, but that as it did not form part of the particulars of any of the complaint grounds, the appellant’s comment would be ignored.

The Tribunal otherwise found that complaint ground 5 had been made out.

The appellant’s submissions in respect of this complaint ground referred first to his submissions before the Tribunal. The appellant then made submissions by reference to a matter in the Children’s Court in which he had appeared and to proceedings in which he appeared before Magistrate Murphy in relation to the same matter, which, he submitted:

The appellant submitted that the Tribunal’s reasons at [61]-[63] and [72] in relation to this Court’s decision in Re Felicity; FM v Secretary, Department of Family and Community Services (No 3) [2014] NSWCA 226, contained imprecise statements and were based on the equally imprecise statements in the complaint made by Knox DCJ in relation to that matter. The appellant submitted that as the Tribunal considered that the decision in Re Felicity; FM v Secretary, Department of Family and Community Services (No 3) was an example of the “consistency of his alleged incompetence”, it was necessary for him to address that decision in some detail. He did so by reference to his submissions to the Tribunal.

The appellant then referred to three decisions “of some interest” subsequent to this Court’s decision in Re Felicity; FM v Secretary, Department of Family and Community Services (No 3). He sought to support the approach he had taken in care matters as being correct by reference to the observation of McColl JA in JL v Secretary, Department of Family and Community Services [2015] NSWCA 88, at [123], that:

The appellant submitted that this was the exact argument that he had advanced in Re Felicity; FM v Secretary, Department of Family and Community Services (No 3) and for which he had “been condemned for it as being incompetent”. The appellant referred to the meaning of “relevant circumstances” in the Care Act, s 90(2) and the status of a ‘notation’ to orders made by the Children’s Court. The appellant submitted a number of times that when the Children’s Court made a ‘notation’ to its orders, the notation itself constituted a finding.

A significant focus of the appellant’s submissions was a practice that he contended was prevalent in the Children’s Court, whereby a party would “consent without admissions” to a care order sought by the Director-General in relation to a child. The appellant’s stated concern with this practice was that it meant that the Director-General did not have to establish the basis for a care order. It also meant, according to the appellant, that no findings would have been made as to the relevant circumstances at the time that an order was made. This had the consequence that it could not be established that there was ever a relevant change of circumstances for the purposes of an application for an order for rescission or variation under the Care Act, s 90. That essential argument was put and rejected by this Court in Re Felicity; FM v Secretary, Department of Family and Community Services (No 3) as follows:

As the Tribunal observed, the appellant sought to deal with this complaint ground by again advancing his own view of the law. However, as the Tribunal found, in each of the 14 particularised decisions, the appellant’s interpretation of the law had been rejected. It is unnecessary to address each of those cases in detail.

For the reasons given by the Tribunal, it was entitled to be comfortably satisfied that this particular had been made out. The appellant has failed to demonstrate any error made by the Tribunal. It follows that the appellant’s challenge to the Tribunal’s findings in respect of complaint ground 5 must be rejected.

I have considered the appellant’s complaints that the Tribunal failed to consider his evidence and submissions in respect of complaint grounds 1 and 2 above. In relation to the remaining complaint grounds, the Commissioner referred the Court to where, in the Stage 1 judgment, the Tribunal referred to the appellant’s evidence and submissions. It is not necessary to reproduce those references. It is sufficient to note that a consideration of each of the references establishes that this appeal ground is not made out in respect of complaint grounds 3 to 6.

The appellant did not advance any submissions in respect of this ground of appeal. It is sufficient, therefore, to observe that legal professional disciplinary proceedings are concerned with the protection of the public. As the High Court observed in Clyne v New South Wales Bar Association (1960) 104 CLR 186; [1960] HCA 40, at 201-202:

This statement has been cited with approval and reiterated in a number of decisions: see New South Wales Bar Association v Evatt (1968) 117 CLR 177; [1968] HCA 20 at 183-184; Weaver v Law Society of New South Wales (1979) 142 CLR 201; [1979] HCA 35 at 207; Walter v Council of Queensland Law Society Inc (1988) 77 ALR 228; [1988] HCA 8 at 235; Wentworth v New South Wales Bar Association (1992) 176 CLR 239; [1992] HCA 24 at 251; Law Society of New South Wales v Walsh [1997] NSWCA 185 at 40; New South Wales Bar Association v Meakes [2006] NSWCA 340 at [113]-[114].

It follows that appeal ground 6 is rejected.

Before turning to consider appeal grounds 7 and 8, it is appropriate to consider whether the appellant has demonstrated that the Tribunal erred in finding that his conduct amounts to professional misconduct or unsatisfactory professional conduct.

The Tribunal, at [98]-[99], made the following findings: that the appellant’s conduct amounted to unsatisfactory professional conduct pursuant to the Legal Profession Act, s 496; that his conduct demonstrated a substantial and consistent failure to reach or maintain a reasonable standard of competence and justified a finding that he was not a fit and proper person to engage in legal practice; and that the conduct particularised demonstrated that he had “engaged in a continued pattern of misconduct” that could not be excused as a momentary lapse of professional judgment or as an isolated incident of professional negligence. The Tribunal concluded, at [100], that the appellant’s conduct amounted to professional misconduct.

The Tribunal based its findings on the following matters. First, the Tribunal referred, at [90], to the many examples of futile applications made by the appellant on behalf of his clients. The Tribunal considered that this demonstrated that the appellant had “embarked upon an obsessive pursuit of untenable ‘legal arguments’ at the expense of pursuing a pragmatic and helpful outcome for his clients”. The Tribunal cited the Re Felicity proceedings as a principal example. In Louise v Director General of Community Services [2011] NSWSC 1646, for example, the appellant’s client had brought an urgent vacation application before the Supreme Court in its parens patriae jurisdiction. Slattery J held that the arguments advanced by the appellant on behalf of the mother were without merit. His Honour also observed that the mother should have sought leave to bring the application for contact in the Children’s Court and that a leave application would have been supported by the child’s legal representative. Slattery J considered that the Supreme Court proceedings distracted from the real matter of concern, which related to the restoration of unsupervised contact between the child and the mother.

Secondly, the Tribunal stated, at [91], that none of the arguments advanced by the appellant in the 14 decisions particularised in particular 5.2 had found favour with any judicial officer.

Thirdly, as an example of the appellant’s insistence in pursuing a futile approach in his conduct of care matters, the Tribunal, at [92], identified his argument that parents in the Children’s Court are unable to give “consent without admissions” to the exercise of jurisdiction by the Children’s Court in making an order under the Care Act, s 79.

Fourthly, the Tribunal referred to a letter written by the appellant to the then President of the Children’s Court, in which, among other matters, he described the “consent without admission” process as being a “stunt … invented by lazy lawyers who could not be bothered by hard work”. The Tribunal noted that the letter included critical comments about certain named magistrates.

Fifthly, the Tribunal considered, at [93], that the matters to which it had referred indicated “the preconceived mindset of [the appellant] in approaching matters under the Care Act”. The Tribunal considered that the appellant’s approach was “without any apparent concern for the underlying interests of the client, or the essential work carried out by [the Children’s Court] under the Care Act”. The Tribunal continued:

Sixthly, the Tribunal considered, at [94], that the appellant’s belief and approach failed “to understand the manner in which the Children’s Court operates”, which, in accordance with the Care Act, s 93, was with as little legal technicality and formality as the circumstances permitted. The Tribunal considered, at [95], that the appellant’s approach indicated that he “preferred to have the proceedings conducted in an adversarial manner”.

Seventhly, the Tribunal considered, at [96], that the manner in which the appellant acted in the various proceedings demonstrated that he “lacked objectivity and insight into his own lack of capacity to formulate and prosecute arguments of law and to understand the law”.

Eighthly, the Tribunal referred, at [97], to the appellant’s submission that he was “not going to get intimidated and abandon his first professional duty, namely his duty to the law, no matter who is trying to intimidate him”. The Tribunal stated that as it understood the appellant’s evidence and his written and oral submissions, he continued to assert that the correct view of the law relating to the Care Act was as he espoused it, despite the views to the contrary of judicial officers whose views were binding on those to whom the submissions were advanced.

Ninthly, the Tribunal considered, at [97], that the appellant had sought to maintain his criticisms of the judicial officers and legal practitioners particularised in the Commissioner’s disciplinary application.

As mentioned above, the Tribunal referred, at [98], to the Legal Profession Act, s 496. It stated that “[t]here is a fundamental public interest in the appropriate administration and management of the work of the courts as part of the legal system”. The Tribunal expressed the view that it was:

The Tribunal considered that, in the ways identified below, the appellant had failed to meet the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner:

The Tribunal concluded, at [99], that the appellant’s conduct had involved a substantial and consistent failure to reach or maintain a reasonable standard of competence and justified a finding that he was not a fit and proper person to engage in legal practice.

The appellant did not directly address these portions of the Tribunal’s reasons, although he sought a declaration that he was a fit and proper person to practise law.

Unsatisfactory professional conduct and professional misconduct were defined in the Legal Profession Act, ss 496 and 497 as follows:

Section 498 is also relevant, and provided as follows:

Relevantly, the Solicitors’ Rules provided as follows:

Although unsatisfactory professional conduct and professional misconduct are defined in the legislation, the terms, as defined, are open-ended, thus requiring the decision-maker to make an evaluative determination as to whether the impugned conduct “falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner”, or whether the “the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence”. As this Court observed in Griffin v Council of the Law Society of New South Wales [2016] NSWCA 364 at [91]:

In Bechara v Legal Services Commissioner (2010) 79 NSWLR 763; [2010] NSWCA 369, this Court noted, at [44], that:

Further, the Solicitors’ Rules, upon which the Tribunal relied and to which we have referred to above, have not been promulgated in a vacuum. The courts have always placed particular store on the need for legal practitioners to present cases to the court in a legally competent and professional manner. Insofar as it is relevant to this matter, the professional obligations of a lawyer include an obligation to practise law according to established legal principles and in conformity with the professional conduct rules, including in the giving of advice and in the conduct of cases. This is integral to the administration of justice, of which legal practitioners form a constituent part in the discharge of their duties, both to the court and to their clients.

It is also integral to the administration of justice in an adversarial system that legal practitioners are permitted and, indeed, obliged, to represent their clients fearlessly and courageously. However, that permissive obligation is neither free-ranging nor untrammelled. As Spigelman CJ said in New South Wales Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284 at [20]:

In that case, Spigelman CJ also quoted the well-known observation of Kitto J in Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279; [1957] HCA 46, at 298, that:

These observations have been held to apply to solicitor advocates: Griffin v Council of the Law Society of New South Wales at [105].

The balance that must be maintained between the courageous representation of a client and compliance with the obligations of the legal practitioner to the court, as encompassed both in the Legal Profession Act and the Solicitors’ Rules, is sometimes a fine one, as was explained by the High Court of the United Kingdom in Ellis v Law Society [2008] EWHC 561. In that case, a solicitor conducted “inappropriate, offensive and derogatory correspondence directed to and about the Law Society, [a litigant], members of the judiciary and others”. Leveson LJ (Lloyd Jones J agreeing) stated:

In Griffin v Council of the Law Society of New South Wales, Sackville AJA agreed, at [107], with the expectation expressed in the passages quoted above, that judges will be robust and that disciplinary action ought not be taken lightly, solely on the basis of offensive or derogatory comments to or about a judge. However, as his Honour also recognised, there is a point at which a line may be crossed such that conduct may be capable of constituting professional misconduct.

The appellant submitted that his “first duty [is] to the law” and that is so even if to pursue that duty on the basis of his own view of the law, the client is thereby prejudiced. However, a legal practitioner does not have a “duty to the law” in the terms stated by the appellant. Rather, a legal practitioner has a duty to the administration of justice, which must be adhered to and practised, insofar as it is relevant to the present matter, within the context and constraints to which I have referred. The appellant’s conduct in the various proceedings particularised in the Commissioner’s disciplinary application did not adhere to that standard of conduct and demonstrated a lack of understanding of the processes in which a legal practitioner should engage when seeking to challenge settled law.

One of the effects of the appellant’s approach to care matters in the face of contrary binding authority is that his clients have been subjected to orders for costs. A competent solicitor ought not, in the pursuit of views that have been held to be legally untenable, to expose a client to such an order. In this case, the appellant’s impugned conduct has also had a detrimental effect on other parties, particularly the father in the Re Felicity proceedings, who has had to bear his own costs of the proceedings in a not inconsiderable sum.

In my view, the Tribunal’s finding that the appellant’s conduct constituted professional misconduct was, having regard to the appellant’s proven conduct, inevitable. I have come to this conclusion notwithstanding that complaint grounds 1 to 5 involved two sets of proceedings only. I should add that while the appellant’s derogatory remarks about the other legal practitioners, which I consider to be highly inappropriate, may not have been sufficient on their own for a finding of professional misconduct to be made, those remarks were made it the context of the appellant’s legal incompetence, to which I have referred, and in association with the scurrilous remarks the appellant made about Magistrate Murphy.

This ground of appeal challenged the Tribunal’s reference to three prior complaints against the appellant in its judgment in the Stage 2 proceedings. It appears that the previous complaints were first raised in the proceedings before the Tribunal by the appellant in his affidavit sworn 20 October 2016, in which he referred to “the earlier disciplinary decisions by [the Commissioner]”. The Commissioner responded to that affidavit in an affidavit dated 9 November 2016, in which evidence of the conduct complained of, the findings made and the determination of the complaints was adduced.

The complaints related to conduct which occurred in 2011 and 2012. It is not necessary to set out the details of the complaints. It is sufficient to observe that they arose out of complaints as to: deficiencies in applications brought by the appellant in various courts; the filing of incompetent submissions, which contained a reference, inter alia, to an order made by the Children’s Court as constituting “a mockery of the law”; and the filing of submissions in which the appellant contended the father in the relevant proceedings was “either lying, cheating on child support and cheating on his tax or all of the above” in circumstances where he had not cross-examined the father to that effect or otherwise adduced evidence that would support the submission. The appellant was reprimanded in respect of two of the complaints and cautioned in respect of the third. One aspect of these previous complaints related to the Re Felicity matter.

The Tribunal, after summarising the nature of the complaints and the outcome in each matter, observed, at [23], that the appellant had not exercised any right to challenge the determinations made against him. The Tribunal then made the following observation, at [37]:

The Tribunal stated, at [38], that its observations were supported by the findings made by the Commissioner with respect to the three prior complaints, which it had summarised at [13]-[23].

At the Stage 2 hearing, the appellant, in response to a question from the Tribunal as to what he had to say about the previous complaints and findings, said:

The appellant complained that when he raised the prior complaints before the Tribunal, he was met “with an ‘irrelevant!’ objection” but that nonetheless, the Tribunal published the Commissioner’s findings in respect of the prior complaints and thus denied him procedural fairness.

The appellant also complained that he had been denied his request to present evidence and arguments in relation to the prior complaints, and particularised what he would have been able to prove in relation to each complaint had the Tribunal permitted him to adduce evidence and make submissions. Those particulars were as follows:

The import of those particulars was that the material he would have adduced would exonerate him from the findings that had been made against him.

The appellant indicated in his written submissions to this Court that there may be a need for further evidence in relation to these matters if leave was granted to adduce it. On 16 January 2018, McColl JA granted the appellant the opportunity to file a notice of motion and submissions as to why leave should be granted for him to adduce further evidence. On 6 February 2018, the appellant filed a notice of motion, supported by an affidavit, and submissions. He filed further submissions in support of his notice of motion on 23 February 2018.

The Commissioner submitted that this Court should not receive the appellant’s further evidence, pursuant to the Supreme Court Act, s 75A.

In my opinion, the Tribunal did not err by not permitting the appellant to adduce evidence in relation to these complaints. Determinations had been made in respect of them and the appellant had not exercised his rights of appeal in relation to them.

The Court may receive further evidence on appeal pursuant to the Supreme Court Act, s 75A, which provides, relevantly:

The further evidence the appellant apparently wanted to lead was concerned with matters which occurred before the hearing on the merits before the Tribunal. The application is founded on s 75(8). Accordingly, although the categories are not closed, there are three conditions that must usually be satisfied in order for “special grounds” under s 75A(8) to be established: see Akins v National Australia Bank (1994) 34 NSWLR 155 at 160; Tjiong v Tjiong [2012] NSWCA 201 at [166]; and Lawrence v Gunner (No 3) [2016] NSWCA 18 at [24]. Those conditions are as follows:

In Preston v Green (1944) 61 WN (NSW) 204, the source of the three conditions, Jordan CJ referred to the third condition slightly differently as being whether “the new evidence [is] prima facie likely to be believed”.

As recognised by the plurality in McCann v Parsons (1954) 93 CLR 418; [1954] HCA 70, these conditions:

The appellant’s application to adduce further evidence in this Court should be rejected. The appellant has not clearly identified the additional evidence he sought to adduce, or established that such evidence could not have been obtained with reasonable diligence for use at the hearing before the Tribunal. Given that the additional material was alleged to support his interpretation of the law and what, on his view, were the wrong practices of the Children’s Court, the appellant has not demonstrated that such evidence could possibly have led to a different verdict. Finally, given that determinations had already been made in respect of the prior complaints and the appellant had not exercised his rights of appeal in relation to them, how the further evidence was admissible, let alone credible or likely to be believed was not identified by the appellant.

Accordingly, appeal ground 7 is rejected.

The appellant, in his written submissions to this Court, complained that the Tribunal had, at [41] of the Stage 2 judgment, severely criticised him such that the two judgments were “defamation published under the judicial immunity”. His submission continued:

This ground of appeal must be rejected. It is framed in the language of a reasonable apprehension of bias, not actual bias. The test for apprehended bias is well established. The Court must be satisfied that “a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63. The “double might” test is future looking, about a decision to be made in the future. However, in this ground, the matters about which the appellant complains derive from a decision already made.

The Tribunal was required to determine what order it ought to make having regard to the conduct that it had found proved. The Legal Profession Act, s 562 provided for the orders that the Tribunal could have made. These ranged from an order that the name of the practitioner be removed from the roll to an order that the practitioner be reprimanded. The proper characterisation of the conduct found to constitute professional misconduct was important to the Tribunal’s determination as to the order it ought to make. The Tribunal’s finding that the appellant was probably permanently unfit to practise law was a finding that was not only available to it on the evidence, but was integral to its determination in relation to penalty. The Tribunal’s observation in relation to the appellant’s lack of “insight, comprehension and understanding … concerning the misconduct” found to have been proven was a permissible, logical and inevitable train of reasoning.

As I have explained in addressing the earlier appeal grounds, the decision of the Tribunal was not “a rebuke [of the appellant] for … daring to express [his] own independent professional judgments”. Rather, it was an exercise in the proper characterisation of the conduct found to constitute professional misconduct.

The final statement about which the appellant complained was the comment that the appellant was “[s]uch a person [who] is unlikely to change his beliefs without encountering something in the nature of an epiphany”. This finding was open to the Tribunal on the evidence before it.

It follows that appeal ground 8 is rejected.

As indicated at the outset, the structure of the appellant’s submissions did not conform to the grounds of appeal. For that reason, I approach appeal grounds 1 and 2 at the end.

The appellant paid scant attention to appeal ground 1 in both his written and oral submissions. He submitted that, in respect of his allegations of an appearance of bias on the part of Magistrate Murphy, the allegations were supported by “evidence available to [the appellant]”, particularly in relation to the appellant’s contention that Magistrate Murphy failed to refer to the mandatory considerations in the Care Act, s 90(2A).

The appellant also submitted that the Tribunal did not have jurisdiction to “confirm” or “contradict” the decision of this Court in Re Felicity; FM v Secretary, Department of Family and Community Services (No 3) because that case did not involve questions of professional misconduct. Further, the appellant submitted that the evidence of the Judge Knox proceedings was “obiter dicta” because those proceedings also did not involve questions of professional misconduct.

In addition, the appellant submitted that the Tribunal should have conducted the proceedings in an adversarial manner. Instead, the appellant submitted, the Commissioner merely repeated the allegations made against the appellant and he, in effect, had no adversary in the proceedings. The result, the appellant submitted, was that “[t]he outcome could have been only biased one, in favour of one party or the other.”

While the appellant’s conduct occurred during proceedings concerning the interpretation of the Care Act, the Tribunal’s decision the subject of the present appeal was to be determined pursuant to the Legal Profession Act. In circumstances where the appellant essentially accepted that he had engaged in the conduct complained of, but argued that such conduct was justified, the Tribunal’s task was to determine: first, whether the conduct alleged had been proven; secondly, whether the appellant’s conduct was justified; and, thirdly, if it wasn’t justified, whether the appellant’s conduct amounted to unsatisfactory professional conduct or professional misconduct.

As I have stated earlier, the Tribunal was not required to conduct a review of the correctness of the various decisions that have dealt with the proper construction and application of the Care Act. Nor was the Tribunal tasked with considering the correctness of the decisions out of which the complaints arose. It was not for the Tribunal to pronounce upon the law in care matters.

No error has been shown in the way the Tribunal approached its task. First, the Tribunal found, as was essentially common ground, that the conduct alleged by the Commissioner had been proven. Secondly, the Tribunal concluded that the appellant’s conduct was not justified. Thirdly, the Tribunal concluded that the appellant’s conduct amounted to professional misconduct. The orders of the Tribunal were not based on false premises. Those orders were not “void ab initio”.

Accordingly, appeal ground 1 is rejected.

In appeal ground 2, the appellant submitted that the Tribunal did not make its own determination of whether the statements made “by various judicial officers in the matter where I was involved” were “facts” for the purposes of the misconduct proceedings and, as the appellant submitted in appeal ground 3, ignored the appellant’s evidence and submissions. The appellant also submitted that the Tribunal had “zero” understanding of the applicable law.

Further, the appellant contended that the Tribunal had failed to give adequate reasons for most of its findings in the Stage 1 proceedings, alleging that the reasons were a mere repetition of what the judicial officers conducting the proceedings from which the complaints arose had stated.

The Commissioner did not dispute the appellant’s submission that the Tribunal was required to give reasons for its decision. The requirement to do so, if a party requests a written statement of reasons, is prescribed by the Civil and Administrative Tribunal Act, s 62(2). The Tribunal may also give reasons even where no request is made. Section 62(3) provides, for the purposes of the section, that a written statement of reasons must set out:

The Tribunal dealt with the substance of each complaint ground and had regard to the evidence and the submissions of the parties. It made findings of fact in respect of the material questions of fact. I note in this regard that the primary facts were not in contention, being contained for the most part in the transcripts of proceedings. The Tribunal determined the matter on the basis of the applicable law, namely, the Legal Profession Act and the Solicitors’ Rules. It was apparent from the Tribunal’s reasons in respect of each particular why it came to the conclusion that it did. In doing so, it complied with its obligation to give adequate reasons. I have already explained why the Tribunal was not only permitted, but also required to base its consideration of the Commissioner’s disciplinary application on what had occurred in the proceedings out of which the complaints arose, and was also required to accept the law as it has been stated in the various authorities that were the subject of consideration.

Accordingly, appeal ground 2 is rejected.

The appellant did not specifically contend, in his appeal grounds, that the Tribunal erred in making the order that his name be removed from the roll of lawyers of the Supreme Court of NSW. However, given the seriousness of this order and the fact that it is potentially implicit in the order that the appellant seeks in his notice of appeal that he be declared a “fit and proper person to practice law”, the Court will consider the matter.

The appellant, in the Stage 2 proceedings, relied substantially upon the contention that his proven misconduct arose out of two sets of proceedings only. In this regard, the Tribunal accepted, at [25], that only two sets of proceedings were the subject of the complaint grounds. However, the Tribunal observed, at [26], that the professional misconduct occurred over a lengthy period. In respect of the Re Felicity proceedings, the appellant’s professional misconduct occurred in April and November 2013, and in respect of the Judge Knox proceedings, the conduct occurred in March 2015.

The Tribunal summarised the inappropriate conduct of the appellant in the Re Felicity proceedings as involving “disparaging and offensive comments” concerning the presiding judicial officer, the Director-General and the other legal representatives, and also involved breaches of the advocacy and professional conduct rules by which the appellant was bound.

The Tribunal then summarised, at [27], the appellant’s inappropriate conduct in the Judge Knox proceedings as involving “disparaging and offensive comments” made about the practice of the Children’s Court, his misleading of the court in connection with certain evidence, and his pursuit of:

The Tribunal observed that this demonstrated “a loss of objectivity coupled with a failure to adduce relevant evidence by reason of his misunderstanding of the relevant [legal] principles”. The consequence, on the Tribunal’s finding, was that the appellant had prosecuted proceedings on behalf of a client without appropriate regard to the ultimate prospects of success, or the prospect of an adverse costs order.

The Tribunal observed, at [28], that during the Stage 1 proceedings, it was demonstrated that the appellant’s misconduct “was not symptomatic of any isolated occurrence, and did not represent an aberration in an otherwise proper and appropriate course of conduct”. For that reason, the Tribunal considered that the nature and extent of the appellant’s misconduct enabled it to find that complaint ground 6 had been proved, namely, that he had:

The Tribunal then considered, at [32], the orders that ought to be made. The Legal Profession Act, s 562 provided that after making a finding of, relevantly, professional misconduct, the Tribunal may “make such orders as it thinks fit”, including any of the orders specified in subs (2) as follows:

The Tribunal determined, at [33]-[34], that the appropriate order was that the appellant’s name be removed from the roll, as it considered that he was “not a fit and proper person to engage in legal practice”. The Tribunal considered that the appellant had engaged in conduct that involved “a substantial and consistent failure to reach and maintain a reasonable standard of competence and diligence”. The Tribunal stated that this created a “significant basis” for removing him from the roll as his conduct was “incompatible with the qualities expected of a legal practitioner by the courts, the public and fellow practitioners”.

As I have already determined, the Tribunal’s finding of professional misconduct was not only open to it, but was inevitable. The question then arises whether there was any error in the order made by the Tribunal that the appellant’s name be removed from the roll of lawyers of the Supreme Court of NSW.

It is well established, as mentioned earlier at [122]-[123], that the purpose of the orders that the Tribunal may make if a finding of professional misconduct or unsatisfactory professional conduct is made is that of protecting the public. The power to do so is appropriately exercised where a person has been found to be not a fit and proper person to practise law. However, as the Court held in New South Wales Bar Association v Cummins at [26], following a long line of prior authority including Ex parte Lenehan (1948) 77 CLR 403; [1948] HCA 45, an order that a practitioner be removed from the roll should only be made if the Tribunal is persuaded that the practitioner is probably permanently unfit to practise law.

The Tribunal considered whether the appellant had the “insight, comprehension and understanding … concerning the misconduct” found to have been proven. It concluded that he had no such insight, comprehension or understanding.

Although a finding that a person is not a fit and proper person to practise law is a finding of the most serious kind, I consider that the Tribunal’s findings, that the conduct the subject of the complaints constituted professional misconduct and that the proven conduct warranted the appellant’s name being removed from the roll of lawyers of the Supreme Court of New South Wales, were each correct.

It follows that the appeal must be dismissed with costs.

PAYNE JA: I have read the judgment of the President in draft. I agree with her Honour’s reasons and the orders she proposes. I have also read the judgment of Simpson AJA in draft. Save that I would prefer to reserve my position about the subject matter of paragraphs [306]-[309] of her Honour’s draft, which deal with issues not raised by the notice of appeal, I also agree with her Honour and in particular her Honour’s conclusion at paragraph [342].

SIMPSON AJA: On 17 May 2017, on the application of the Legal Services Commissioner (“the Commissioner”) and after a hearing (“the Stage 1 proceedings”) in the Civil & Administrative Tribunal (“the Tribunal”), the appellant (a solicitor) was found guilty of professional misconduct: Legal Services Commissioner v Potkonyak [2017] NSWCATOD 74. On 9 January 2018, after a further hearing (“the Stage 2 proceedings”), the Tribunal ordered that the name of the appellant be removed from the roll of lawyers of the Supreme Court of NSW, with effect from 16 January 2018: Legal Services Commissioner v Potkonyak [No 3] [2018] NSWCATOD 8.

By Notice of Appeal filed on 24 January 2018 the appellant appeals against each decision. Such an appeal lies to this Court by virtue of the Civil & Administrative Tribunal Act 2013 (NSW), schedule 5, part 6. The appeal is subject to s 75A of the Supreme Court Act 1970, which, relevantly, provides:

On 16 January 2018 McColl JA granted a stay of the Tribunal’s orders pending determination of this appeal: Potkonyak v Legal Services Commissioner [2018] NSWCA 1.

The following background, which emerges from the voluminous material put before the Tribunal, needs to be explained in order to facilitate a full understanding of the proceedings in the Tribunal and the matters raised on appeal.

As indicated above, the appellant is a lawyer. He was admitted to practice in NSW on 5 December 2008 under the provisions of the Legal Profession Act 2004 (“the 2004 Act”). The 2004 Act has been repealed, but its provisions are taken to continue to apply to these proceedings: Legal Profession Uniform Law (NSW) 2014, Schedule 4, cl 2.

The appellant has practised as a solicitor since the date of his admission. A significant component of his practice has been in proceedings under the Children & Young Persons (Care & Protection) Act 1998 (NSW) (“the Care & Protection Act”), involving (inter alia) applications “for or with respect to the care and protection of a child or young person” (as defined). By s 61 an application for “a care order” may be made only by the Secretary (previously called “the Director-General”) of the Department of Family & Community Services, with certain presently irrelevant exceptions.

Chapter 4 of the Care & Protection Act contains detailed provisions with respect to applications for, and the making of, care orders. It is not necessary to explain those provisions further, except to note that s 90 provides that application may be made (with leave) to the Children’s Court for rescission or variation of a care order. By subs (2) the Children’s Court may grant leave if it appears that there has been “a significant change in any relevant circumstances” since the care order was last made or varied. For the purposes of the present appeal, the requirement for “significant change in any relevant circumstances” has some importance.

In the course of his practice the appellant appeared in proceedings under the Care & Protection Act in the Children’s Court, the District Court, the Supreme Court and this Court, and developed a firm conviction that courts exercising jurisdiction under the Care & Protection Act consistently misconstrued and erroneously applied its provisions, and that legal practitioners practising in the jurisdiction misunderstood their role and gave erroneous advice to clients. He developed a particular aversion to one aspect of practice, in which, he claimed (and continues to claim), practitioners advised clients to consent, without admissions, to applications for care orders. This, he contends, makes it impossible for those clients subsequently to seek rescission or variation of the orders, because they would be unable to demonstrate a “significant change in relevant circumstances” for the purposes of s 90, the relevant circumstances underlying the care order not having been proved to the satisfaction of the Children’s Court, or judicially found to have been established.

On 30 January 2012 the appellant wrote to the President of the Children’s Court of NSW, outlining his position in respect of proceedings under the Care & Protection Act. The letter was included in the documentation submitted by the appellant to the Tribunal. He also made his position clear in those proceedings in which he appeared. It is his conduct of proceedings involving two children the subject of care applications that was the subject of the proceedings in the Tribunal. It will be necessary to refer in more detail to these proceedings, and the appellant’s conduct of them.

On 20 February 2014, the father of one of the children wrote a letter of complaint to the Commissioner, outlining a number of aspects of the conduct of the appellant, who had represented the mother of the child in the proceedings. He urged the Commissioner to investigate the appellant’s conduct.

There followed extensive correspondence between the Commissioner and the appellant. The Commissioner particularised the allegations of the complaint, which, pursuant to s 526 of the 2004 Act, he then investigated. He determined, with respect to certain of the particulars, that the complaint should be dismissed. With respect to seven allegations he considered that there was a reasonable likelihood that the appellant would be found to have engaged in unsatisfactory professional conduct, or professional misconduct.

In those circumstances, by s 537(2) of the 2004 Act, the Commissioner was required to commence proceedings in the Tribunal.

On 20 April 2015, in respect of proceedings concerning a different child, Judge Knox of the District Court referred the appellant to the Law Society of NSW “for its determination as to whether there has been any breach of professional standards”. He identified five decisions in which this Court, the Family Court of Australia, the District Court and the Children’s Court had made costs or other orders against the appellant, in one case describing the appellant’s conduct of the case as :

On 25 May 2015 the Commissioner, under s 504 of the 2004 Act, initiated a complaint concerning the appellant’s conduct of the proceedings, stating five separate grounds of the complaint. The appellant responded to the complaint.

On 22 December 2015 the Commissioner filed a “Disciplinary Application” in the Tribunal, under s 551 of the 2004 Act. As finally formulated (in a Further Amended Application filed on 13 January 2017), the Commissioner sought orders:

The application was founded on the appellant’s conduct of the two proceedings referred to above. All the Commissioner’s complaints in the Tribunal were based on the manner in which the appellant had conducted the proceedings, with particular emphasis on the manner in which he addressed judicial officers, which, the Commissioner claimed, included “offensive and unsubstantiated” statements, was inappropriate, was in breach of his duty to the administration of justice, was misleading, and was in breach of his duty to his clients, and, as a result, the appellant:

This complaint adopts and follows the language of the definition of “professional misconduct” in the 2004 Act to which reference will be made below.

The evidence presented to the Tribunal on behalf of the Commissioner was in the form of two affidavits affirmed by the Commissioner, John McKenzie. Annexed to the affidavits was a large volume of documentation, including extracts from transcripts of the proceedings the subject of the complaint. The appellant relied on three affidavits sworn by himself to which were also annexed a large volume of documentation. The appellant gave oral evidence and was cross-examined at some length. Notwithstanding the length of the cross-examination, there was little dispute about the factual base for the Commissioner’s complaints; rather, the area of dispute revolved around the characterisation of the appellant’s conduct, and the consequences that should follow.

As indicated above, the complaints were based upon the appellant’s representation of clients in care proceedings involving two children, although there were many appearances in a number of different courts.

The evidence discloses the following.

The first proceedings involved a child who was given the pseudonym name “Felicity”. These were the proceedings that gave rise to the first complaint to the Commissioner, mentioned at [10] above. On 23 March 2007 the Children’s Court made orders concerning the allocation of parental responsibility for Felicity.

On 19 October 2011 Felicity’s mother filed, under s 90 of the Care & Protection Act, an application for rescission of the care order.

The “Felicity proceedings” had a complex history, not all of which is fully revealed in the evidence. For present purposes, it is sufficient to note that, in October 2009, the Children’s Court made final orders in respect of the care and protection of Felicity, one of which allocated parental responsibility to her father from November 2011 to November 2021 (when she would turn 18). Various applications were thereafter made by Felicity’s mother in different courts, all without success. On each occasion she was represented by the appellant. On 10 August 2012 the Director-General (as the Secretary was then called) applied, under s 90 of the Care & Protection Act, for leave to apply for variation of the orders. Leave was granted on 17 September 2012, on the basis that there had been a significant change in circumstances since the order was originally made. The appellant, acting on behalf of Felicity’s mother, consented to the grant of leave.

The application eventually came before Magistrate Murphy on 2 April 2013 and proceeded on that and the following 2 days. The appellant announced that he appeared to represent the mother, and an older (half) sister of Felicity.

The transcript records that on the first day of the hearing, there was some discussion concerning the nature of the proceedings, during which it was asserted (without demur from the appellant) that he had, on behalf of the mother, consented to leave being granted. The transcript then records the following exchange between Magistrate Murphy and the appellant:

Later on the same day confusion arose as to whether the appellant continued to represent Felicity’s sister. The transcript records the following exchange:

A little later the appellant is recorded as saying:

The following day (3 April) again in the context of an objection by the appellant to a question asked of the mother in cross-examination, the following exchange is recorded:

On the last day of the hearing, 4 April, a further discussion took place about the position of the appellant, whether he represented Felicity’s sister, and the circumstance that he had filed an affidavit in support of the mother’s case.

The appellant is recorded as saying:

Finally, on that day, the appellant was asked to comment on a submission that had been made, to which he is recorded as replying:

This conduct gave rise to Ground 1 of the Commissioner’s application (of inappropriate conduct).

Although the evidence does not reveal the precise outcome of the proceedings, it is apparent that the orders gave parental responsibility to Felicity’s father, an outcome that was unfavourable to Felicity’s mother. She therefore appealed to the District Court. The appeal came on for hearing before Olsson DCJ in November 2013. The appellant again represented the mother. The appellant had filed an affidavit that he had sworn or affirmed, it seems in Supreme Court proceedings, and was to be subject to cross-examination by Felicity’s father who, apparently, was representing himself. The transcript records the following exchange:

This comment gave rise to Ground 2 of the Commissioner’s application (also of inappropriate conduct).

The second set of proceedings involved a child in respect of whom parental responsibility had previously been allocated to the paternal grandparents. An application by the mother under s 90 of the Care & Protection Act had been dismissed in the Children’s Court and the mother appealed to the District Court. The appellant represented her. For the purposes of the appeal the appellant prepared an affidavit that was sworn by the mother. Included in the affidavit was a statement by the mother that she had no recollection of having seen her former solicitor, notwithstanding that she had been in receipt of a grant of legal aid. A number of documents were annexed to the affidavit, including some correspondence with a solicitor who had previously represented the mother.

The preparation of the affidavit gave rise to Ground 4 of the Commissioner’s application which asserted that the appellant had misled the District Court. The misleading of the Court appears to have been from the impression given in the affidavit (contrary to facts known to the appellant) that the mother’s former solicitor had neglected to attend upon her while she was a patient in a psychiatric unit.

The appeal came on before Knox DCJ on 30 March 2015. The proceedings commenced with a discussion about the admission of the affidavit which, it was said, contained serious allegations about the conduct of her previous solicitor.

The respondent is then recorded as saying:

After further discussion, the following is recorded:

This comment gave rise to Ground 3 of the Commissioner’s application, which alleged that the appellant breached his duty to the administration of justice by criticising the Children’s Court. The Commissioner specifically relied on the appellant’s assertions of “unlawful” and “illegitimate” practice.

Knox DCJ addressed the appellant about some aspects of his conduct generally, not limited to the case then before him, and included reference to the appellant’s conduct in the Re Felicity proceedings. The appellant is recorded as responding by saying:

As finally formulated, the Commissioner’s application asserted six grounds. Grounds 1 and 2 related to the Re Felicity proceedings. Each asserted that the appellant “conducted himself inappropriately” in specified ways in the hearings in April 2013 before Magistrate Murphy, and in the appeal proceedings in November 2013 before Olsson DCJ. The Commissioner placed specific reliance on those portions of the transcript, extracted above, that have been italicised.

As indicated above, grounds 3, 4 and 5 concerned the proceedings before Knox DCJ. They asserted (ground 3) that the appellant “breached his duty to the administration of justice by criticising the Children’s Court”; (ground 4) that the appellant misled the District Court; and (ground 5) that the appellant breached his duty to his client(s).

Grounds 1, 2 and 3 were particularised by reference to the italicised passages from the transcripts set out above. By ground 4 the Commissioner alleged misleading conduct on the part of the appellant in the preparation and filing of the affidavit referred to above. It will be necessary to return to this allegation.

By ground 5 the Commissioner asserted that the appellant pursued the proceedings before Knox DCJ based on his own personal view of the proper interpretation of the Care & Protection Act:

The Commissioner cited a number of decisions of the Children’s Court, the District Court, the Supreme Court and this Court that, he asserted, rejected the appellant’s interpretation of the Care & Protection Act or were otherwise connected with such decisions. All were cases involving the Care & Protection Act in which the appellant had unsuccessfully appeared. It may here be observed that not one of the decisions cited dealt with the appellant’s construction of the Care & Protection Act although all were decisions in relation to applications under that Act made by the appellant on behalf of clients.

By ground 6 the Commissioner contended, in reliance on the particulars to all previous grounds:

Each stated ground was accompanied by particulars. For example, ground 2, which was that the appellant conducted himself inappropriately in the Felicity proceedings in the District Court, specified the inappropriate conduct as:

Ground 1 concerned the Re Felicity proceedings before Magistrate Murphy. Each of the six statements made by the appellant in the extracted passages above was cited as a separate particular of inappropriate conduct.

Specifically, in relation to both grounds 1 and 2, the Commissioner contended that remarks made by the appellant in the Re Felicity proceedings before Magistrate Murphy and Olsson DCJ were “offensive” and “unsupported by evidence”. He also contended that the statements were made in breach of Advocacy Rules made under the 2004 Act. He cited Rule 23, A.36 and A.37 of the Revised Professional Conduct and Practice Rules 1995, which provided as follows:

Ground 5, which alleged that the appellant had breached his duty to his client, was particularised as:

A number of the decisions to which the Commissioner referred concerned the child Felicity. On each occasion the appellant represented Felicity’s mother. On her behalf he made applications to the Supreme Court, asserting, inter alia, that the Children’s Court lacked jurisdiction to make orders under s 90 of the Care & Protection Act, and raising constitutional issues concerning the interaction of Federal and State jurisdiction with respect to custody arrangements for children: Louise v Director-General of Community Services [2011] NSWSC 1646 per Slattery J. On 22 December 2011 Slattery J expressed concern about the course the litigation had taken.

The appellant then brought a further application before White J, which was heard on 1 May 2012, in which the appellant again challenged the jurisdiction of the Children’s Court to make orders with respect to the care or custody of Felicity (see [5]).

White J dismissed the application. Before hearing the parties on the question of costs, he said:

He then ordered that Felicity’s mother pay the costs of the first and second defendants, and indicated that he intended to give consideration to ordering the appellant personally to pay the costs, exercising the power conferred by s 99 of the Civil Procedure Act 2005.

In that respect, however, it should be noted that, having heard the parties, he declined to make such an order, saying:

He described one of the arguments as “arguable” and another as having “some support”. Others were “more problematic, but “barely arguable rather than unarguable”: Re Felicity (No 2) [2012] NSWSC 1561.

Eventually, the proceedings came before this Court: Re Felicity; FM v Secretary, Department of Family & Community Services (No 3) [2014] NSWCA 226, on appeal from the decision of Olsson DCJ. The appellant sought a declaration to the effect that the Director-General had no standing to commence proceedings in the Children’s Court under s 90 of the Care & Protection Act. Basten JA, with whom Ward JA and Emmett AJA agreed said:

His Honour also rejected all other submissions of the appellant, describing one as “confused” ([30]), another as “misconceived on a number of levels” ([42]), another as “simply a misrepresentation of [Olsson DCJ’s) reasons for judgment” ([50]). In a subsequent judgment: (Re Felicity; FM v Secretary, Department of Family & Community Services (No 4) [2015] NSWCA 19) this Court ordered that the appellant personally pay the costs of the proceedings, noting a number of decisions that demonstrated the views expressed as to the lack of merit in the proceedings brought on behalf of the mother (at [30]). Basten JA then said:

Basten JA then referred to its previous judgment, and said:

The other particulars subscribed to ground 5 were:

The Commissioner then contended that the statements of the appellant in the proceedings before Knox DCJ on 30 March 2015, to the effect that the practice of consenting to care orders without admissions was “unlawful practice” or “illegitimate practice” constituted a breach of his duty to the administration of justice.

The appellant filed a Reply to the Further Amended Application. In large part, he did not contest the factual allegations against him. He supplemented his Reply as the Application was amended. In some respects he added detail to the background facts alleged by the Commissioner. In respect of the proceedings before Magistrate Murphy, the subject of Ground 1, he agreed (with limited exceptions) that he had made the various statements attributed to him in the transcript, but added that he would be able to prove that the opinions expressed were justified. One exception concerned the comment ([26] above) that “overruling my objections so easily off-the-cuff tells me that well your Honour is bent”: of this, the appellant said that the passage in the transcript appeared to have been “truncated” and that he ‘must have said something more after the word bent’.” (In his oral evidence, he claimed that what he intended to say was that Magistrate Murphy was bent on deciding the matter as the Director-General wanted, but that he had been interrupted). He noted that his suggestion that Magistrate Murphy had interfered in a legal aid application by Felicity’s sister was expressly qualified by the proviso that he (the appellant) might have misunderstood.

With respect to ground 3, the appellant agreed that he had made the remarks attributed to him, but added:

With respect to ground 4, the appellant conceded that he had made “a blunder” but said that he did so under extreme time pressure and that it could not be treated as professional misconduct or unsatisfactory professional conduct.

The appellant took issue with the Commissioner’s characterisation of the various decisions cited under Ground 5. With respect to the decision in GKD, he said:

In respect of another decision of a District Court judge, he said:

Notwithstanding the significant volume of evidence before the Tribunal, the issues were quite narrow. Accordingly, the Tribunal was not called upon to resolve any significant factual dispute. Rather, its task was to determine whether the appellant’s conduct constituted either unsatisfactory professional conduct (as defined in s496 of the 2004 Act) or professional misconduct (as defined in s 497 thereof).

The reasons of the Tribunal generally follow the structure of the Further Amended Application. As a consequence, the Tribunal dealt separately with each “particular” to each ground.

It found that each of the statements on which the Commissioner relied had been made, and that each was offensive and unsubstantiated.

Particular 1.6 related to the applicant’s statement which, in effect, accused the Magistrate of taking steps to achieve the termination of any consideration of Felicity’s sister’s application for legal aid. Of this, the Tribunal said:

The Tribunal took a similar approach to Ground 2.

In relation to each of Grounds 1 and 2, the Tribunal accepted that the statements had been made in breach of the Advocacy Rules on which the Commission relied.

Ground 3 was that the appellant had breached his duty to the administration of justice by criticising the Children’s Court. The criticisms asserted were that, in the hearing of 30 March 2015, the Children’s Court engaged in unlawful and illegitimate practice. It was asserted that these statements brought the administration of justice into disrepute thereby resulting in a breach of the appellant’s duty to the administration of justice.

Of this, the Tribunal said:

Ground 4 was the allegation that the appellant had misled the District Court by filing an affidavit which he had prepared but which contained relevant omissions. Of this ground, the Tribunal said:

Of Ground 5, which asserted that the appellant breached his duty to his client by pursuing the proceedings based upon his personal view of the proper interpretation of the Care & Protection Act despite judicial authority to the contrary, by failing to adduce relevant evidence, and by losing objectivity, the Tribunal said:

At [70], the Tribunal said:

Later, the Tribunal said:

Of ground 6 the Tribunal said:

The Tribunal then considered what should follow from the conclusions it had drawn. The issue was whether the conduct of the appellant constituted, under the 2004 Act, either unsatisfactory professional conduct or professional misconduct.

Section 496 of the 2004 Act provided as follows:

The Tribunal then referred to Clyne v NSW Bar Association (1960) 104 CLR 186; [1960] HCA 40 and NSW Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284 and said:

The Tribunal therefore found the appellant guilty of professional misconduct.

It then became necessary that the Tribunal proceed to determine what consequences should follow its conclusions. This was the stage 2 proceeding which (after some delay) took place on 13 November 2017. Section 562 of the 2004 Act left it open to the Tribunal to “make such orders as it thinks fit”, but specified a number of available orders, including an order that the name of the practitioner be removed from the local roll, suspension of a practising certificate, and that specified conditions be imposed on a practising certificate or that the practitioner be reprimanded.

The Commissioner sought an order of the first kind, that is that the appellant’s name be removed from the local roll.

As recorded by the Tribunal in its Stage 2 decision, the appellant tendered twenty character references, provided principally by clients or former clients, and a statutory declaration provided by the convenor of what appears to be a support group for persons involved in care and protection cases. These, it seems, (they are not reproduced in the appeal papers), uniformly spoke glowingly of the appellant and the legal service he provided.

In addition, the appellant called nine witnesses to give oral evidence, some of whom (it seems) were those who had provided documentary material. The Tribunal noted that, although most of the witnesses were aware that the appellant was in danger of being disciplined, there was no evidence that any of them were informed about the nature and extent of the complaints brought against the appellant, or of the findings contained in the Stage 1 decision.

The Tribunal then referred to a number of prior complaints made against the appellant.

The Tribunal then said:

The Tribunal went onto make similar observations about conduct the subject of Grounds 3, 4, 5 and 6.

The Tribunal described the appellant’s conduct as involving “a substantial and consistent failure to reach and maintain a reasonable standard of competence and diligence” and concluded that “his conduct justifies a finding that he is not a fit and proper person to engage in legal practice.” (at [31]). The Tribunal went onto hold that those findings:

The Tribunal recognised (at [36]) that removal of the name of a practitioner from the roll should occur only if it was persuaded that the practitioner was probably permanently unfit to practise law.

The Tribunal then said:

The Tribunal then extracted transcripts of oral submissions made by the appellant during the Stage 2 hearing, in which the appellant is recorded as saying, inter alia:

He went onto say that his first duty was to the law.

As a consequence of the conclusions extracted above, the Tribunal ordered that the appellant’s name be removed from the roll of lawyers of the Supreme Court of NSW.

It is necessary to set out, in full, the grounds pleaded in the Notice of Appeal filed by the appellant.

He sought orders that the appeal be allowed and the orders and findings of the Tribunal be set aside. Significantly, he also sought the following declarations and orders:

Before proceeding to deal with the pleaded grounds of appeal, it is appropriate to make some general observations about the conduct of the proceedings in the Tribunal and the reasons of the Tribunal.

First, the manner in which the application was presented was cumbersome and confusing. It can readily be seen from what has been said above that the nub of the Commissioner’s case was that the appellant had shown himself, in a series of instances, over a course of conduct, to be incompetent – that is, in the language of s 497 of the 2004 Act, to have consistently demonstrated that his practice of the law falls short of the standard of competence expected of a reasonably competent practitioner (it will be observed that “diligence”, which also appears in s 496, is omitted. There has never been any suggestion that the appellant lacks diligence).

That contention could be assessed on the totality of the conduct as particularised by the Commissioner. It was unnecessary, and confusing, to plead separately six grounds of the application. It was confusing because it deflected attention from the totality of the appellant’s conduct, and compartmentalised that conduct, such that it might be thought that any of the “grounds”, if factually proven, would support a finding of professional misconduct or unsatisfactory professional conduct.

Yet, it must be stated, the separate instances of conduct particularised in ”Ground 1” and “Ground 2”, while rude, discourteous and sometimes offensive, could hardly, in isolation, be held to reach the threshold required for a finding of professional misconduct, and may not have reached the threshold for a finding of unsatisfactory professional conduct.

Nor could the conduct particularised as “Ground 3” be so characterised. It is not unsatisfactory professional conduct or professional misconduct to contend that practices, even long standing practices, are contrary to law. Indeed, it is sometimes the duty of a practitioner to do so, although standards of professional courtesy ought always to be observed. Fearless advocacy sometimes requires the advocate to advance an unpopular or novel proposition, and even to assert entrenched error. No better example can be found than the decision of the High Court in Mabo v Queensland (No 2) (1992) 175 CLR 1; [1992] HCA 23, in which advocates urged the reversal of decades of accepted law. To do so is not, as the Tribunal said, necessarily “deplorable”. The advocate who makes such a submission must, of course, keep a firm eye on the doctrine of stare decisis.

A further observation concerns the reliance by the Commissioner, adopted by the Tribunal, on “the Advocacy Rules”. It is at least arguable that those rules are directed to the assertion of factual matters relevant to the litigation between the parties involved. Yet the Commissioner asserted, and the Tribunal accepted, that the various statements attributed to the appellant in the proceedings before Magistrate Murphy and Olsson DCJ were in breach of those rules. By way of example, whether the statement:

It is necessary to flag this as a matter of concern, lest it be concluded that this Court accepted that the Advocacy Rules extended so far. But it is neither necessary nor appropriate to go further, because:

Those observations having been made, the grounds of appeal pleaded may be disposed of succinctly.

Just what is intended by Ground 1 is obscure. On one available interpretation, Ground 1(a) appears to assert that the findings of the Tribunal depend substantially, if not exclusively, on the previous decisions of the various courts referred to above, decisions not related to professional conduct; by Ground 1(b) the appellant appears to contend that the Commissioner and the Tribunal were not competent to determine issues concerning the appellant’s professional conduct, presumably because that conduct involved the specialised care and protection jurisdiction. By Ground 1(c) the appellant appears to contend that the consequence of the first and second propositions is that the decision of the Tribunal is “invalid”.

The first proposition is simply incorrect. There are passages in the Tribunal’s reasons where the previous decisions are discussed but that discussion relates only to “ground 5” and “ground 6” of the Commissioner’s application. The balance of the reasons is directed to the discourteous and offensive content of the appellant’s submissions, and his stubborn refusal to accept the rulings of superior courts. Indeed, the appellant opened his written submissions in respect of Ground 1 of the appeal by conceding “several allegations of improper language used by me”, which, he accepted, “border on unacceptable”.

In his written submissions the appellant argued that the Tribunal was “jurisdictionally incompetent” to deal with matters arising out of the Care & Protection Act. Of course, the Tribunal was not making determinations under the Care & Protection Act. It was dealing with the appellant’s conduct of proceedings under that Act. Specifically, the Tribunal recognised that, whatever was his own view of the construction of the Care & Protection Act, the appellant was bound by decisions of superior courts (as were all courts lower in the judicial hierarchy) and that he was obliged to advise his clients accordingly, and to limit any action he took on their behalf in accordance with those decisions. This is not to say that as an advocate, he was not entitled, appropriately, to challenge the decisions he contended were erroneous; but, as a qualified lawyer, he ought to have known that he could do so only in a court of equivalent or superior jurisdiction.

Ground 1 of the appeal should be rejected.

By Ground 2 of the appeal the appellant asserts a failure on the part of the Tribunal to provide adequate reasons for “most of the findings at the Stage 1 hearing”. He asserts that the reasons were “were repetition” of findings of the judicial officers in the proceedings under consideration.

In his written submissions directed to Ground 2 the appellant acknowledged that the fundamental facts were not generally in dispute, since they were either recorded in transcripts or given in judgments of the courts where the proceedings were conducted. His complaint of inadequate reasons was not of failure by the Tribunal to explain why it had made the decisions it did, but was of failure to determine issues of construction of the Care & Protection Act. Those issues were not before the Tribunal.

The appellant asserted that:

In other words, the appellant asserted that the role of the Tribunal was to make determinations with respect to the construction and application of the Care & Protection Act. This is fundamentally wrong.

Examination of the reasons given by the Tribunal establishes clearly that the Tribunal did explain the reasons for its decision. It is true, as the appellant acknowledges, that the underlying facts were not in dispute. It was the characterisation of the conduct revealed by those underlying facts, and the conclusions that should be drawn from that conduct, that were in issue. As to these, the Tribunal gave comprehensive reasons, in the passages extracted above, specifically, paras 90, 92, 93, 98 and 99 of the Reasons.

There was no failure to give adequate reasons for the decision. This ground must be rejected.

In his written submissions the appellant pointed out that the first “twenty or so” pages of the Tribunal’s reasons set out the application by the Commissioner and the appellant’s responses.

The appellant’s complaint in respect of this ground is that, although the Tribunal then proceeded to set out the Commissioner’s complaint, it did not also set out his response.

By way of example, at [16]-[23] the Tribunal considered the allegation contained in ground 1, particular 1.1 (referred to above). As indicated, there was no dispute that the appellant had made the remark attributed to him.

The appellant’s response was that he would be able to prove that his opinion was justified, based on his experience in the Children’s Court. He added that, as there was no application by the mother in that proceeding, there was nothing to withdraw. The application was an application under s 90 of the Care & Protection Act by the Director-General.

It is not correct to say, as the appellant does, that:

At [21] the Tribunal said:

It would not be productive to go through the same exercise in relation to each of the particulars pleaded in the application. It is clear that the Tribunal gave appropriate consideration to everything raised by the appellant, both in his written submissions, and in his evidence.

Ground 4 concerns the Re Felicity proceedings.

It can be seen from the way in which Ground 4(a) is framed that the appellant again contends that at least part of the task of the Tribunal was to consider the meaning of s 90 of the Care & Protection Act. This has been dealt with above.

The appellant’s written submissions throw no light at all on this ground. For example, in relation to the complaint that the appellant had asserted that the Director-General and other practitioners had a motive to “get rid of him” because he did not comply with the standard practice in the Children’s Court, the appellant submitted:

The position adopted by the appellant is patently wrong. It is unnecessary to add anything to what has been said above. This Ground should be rejected.

This Ground concerns the reference by Judge Knox. As formulated it is difficult to interpret. However, the appellant filed lengthy (10 plus pages) submissions in relation to this ground, which he described as:

He went on:

The appellant then embarked on a lengthy discussion of “the process in care proceedings”.

Ground 5, as explained by the submissions, is plainly misconceived. To repeat – the role of the Tribunal was not to determine or re-determine the construction of any provision of the Care & Protection Act, or practice thereunder, and it was certainly not to rule on the correctness or otherwise of decisions of the Supreme Court or this Court. Nor, for that matter, in these proceedings is it the role of this Court to do so.

The appellant did not address any submissions to Ground 6. That ground may be disposed of by noting that it was not necessary that the Tribunal identify any member or class of members of the public who were or were likely to be adversely affected by the appellant’s conduct. Section 496 of the 2004 Act defined unsatisfactory professional conduct by reference to the expectations of “a member of the public”, but that does not mean that a finding under s 496 or 497 must identify any such member of the public. This Ground should be rejected.

In this Ground of appeal as pleaded, the appellant appears to suggest that the outcome of previous complaints against him was incorrect. In his written submissions he suggested that “there may be a need for further evidence and submissions” with the leave of the court. He did in fact make an application for such leave, but it was unsupported by adequate material to establish the proper basis for the exercise of discretion in his favour. This Ground should be rejected.

This Ground of appeal appears to contend that the Tribunal’s reasons indicated prejudice on the part of its members. In his written submissions the appellant complained that the reasons were “full of criticism” of the way he occasionally related to others, but “insulted” him in the findings it made.

The Ground and the submissions again demonstrate misunderstanding of the nature of the role of the Tribunal. It was the task of the Tribunal to determine whether the appellant had engaged in professional misconduct and was thus not fit to practise law. Such a decision sometimes involves making judgments that appear harsh to the subject of the findings, but which are necessary in the exercise of the jurisdiction invoked. There is no prejudice disclosed.

Ground 8 should be rejected.

There is no substance to any of the appellant’s grounds of appeal.

Since this appeal is by way of rehearing and having regard to the provisions of s 75A of the Supreme Court Act, notwithstanding the conclusion that no ground of appeal should succeed, it is appropriate to note that the conclusions of the Tribunal are fair, appropriate and entirely justified. The evidence amply discloses, for the purposes of s 496 and 497 of the 2004 Act, that the appellant’s conduct in the practice of law fell short of the standards of competence and diligence expected, and justified a finding that he is not a fit and proper person to engage in legal practice.

The appeal should be dismissed with costs.