BRJ v Council of the New South Wales Bar Association

The plaintiff appeals, by summons filed on 24 August 2015, against the decision of the Civil and Administrative Tribunal (the Tribunal) made on 16 July 2015. The plaintiff does not challenge any of the orders made by the Tribunal (which did not include disciplinary action within the meaning of s 576 of the Legal Profession Act 2004 (NSW) (the 2004 Act)). However, she challenges the Tribunal’s findings that she engaged in unsatisfactory professional conduct in three respects that are set out in more detail below.

The first defendant, the Council of the NSW Bar Association (the Bar Council), is the only active contradictor, the second defendant (the Tribunal) having filed a submitting appearance.

The 2004 Act was repealed by s 167 of the Legal Profession Uniform Law Application Act 2014 and replaced by that Act and the Legal Profession Uniform Law (NSW) with effect from 1 July 2015. However, its provisions largely applied at times relevant to the facts with which this appeal is concerned.

Section 494(1) of the 2004 Act, identifies as one of the purposes of Ch 4 (which is entitled “Complaints and Discipline”):

Section 496 defines “unsatisfactory professional conduct” in the following terms:

Section 497(1) defines “unsatisfactory professional misconduct” in the following terms:

Section 498 relevantly provides:

Part 4.2 deals with complaints about Australian legal practitioners. A complaint may be made about the conduct of an Australian legal practitioner: s 503(1). It may be made by any person: s 503(1)(d). Each complaint must be investigated under Pt 4.4: s 525(1). After completion of an investigation the Bar Council must do one of three things, including commencing proceedings in the Tribunal under Ch 4: s 537(1)(a). Part 4.8 provides for hearings in the Tribunal. The Tribunal is obliged, by s 553, to conduct a hearing into each allegation particularised in the application.

Section 562(1) provides that:

Section 562(2)(e) identifies an order reprimanding the practitioner as one of the orders that can be made by the Tribunal. If the Tribunal makes such an order, it must publish the order and a statement of its reasons for making the order: s 562(8).

Section 564(1) provides:

Part 4.10, entitled “Publicising disciplinary action” defines “disciplinary action” in the following terms in s 576 as follows:

Section 577 provides for a Register of disciplinary action, which is to include details such as the full name of the practitioner and particulars of the disciplinary action taken. However, under s 581(1) certain disciplinary action is not to be recorded in the Register if “the action was taken because of the person’s inability properly to carry out the requirements of legal practice and the inability arises wholly or principally from infirmity, injury or mental or physical illness”.

Section 702(1) of the 2004 Act conferred power on the Bar Council to make rules for or with respect to engaging in legal practice as a barrister. Pursuant to s 702(1), the Bar Council made rules which are referred to as the NSW Barristers Rules.

Section 729A relevantly provided, until its repeal on 1 January 2014:

After the repeal of s 729A of the 2004 Act on 1 January 2014, provision for appeals against decisions of the Tribunal was made by the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act), which is addressed below.

Clause 2 of Sch 1 of the CAT Act defines “existing tribunal” as including the Administrative Decisions Tribunal (the ADT) established under the Administrative Decisions Tribunal Act 1997 (NSW) (the ADT Act).

Clause 6 of Sch 1 of the CAT Act defines “unheard proceedings” as meaning, relevantly, pending proceedings that had not been heard by the ADT before 1 January 2014. Clause 7 of Sch 1 provides as follows:

Section 64 of the CAT Act relevantly provides:

Part 4 of Sch 1 of the CAT Act provides, by cl 21, that a reference to the Legal Profession Uniform Law includes a reference to the 2004 Act and a provision of that law includes a reference to the corresponding provision of the 2004 Act.

Schedule 5 of the CAT Act, headed “Occupation Division”, provides, by cl 4, that the functions of the Tribunal under the Legal Profession Uniform Law are allocated to the Occupation Division. Division 4 of Sch 5 relevantly applies to lawyers. Part 6 of Sch 5 relevantly provides that a decision for the purposes of the Legal Profession Uniform Law is a “profession decision”. As such, it is not appealable internally within the Tribunal. A party to a profession decision has a right of appeal to this Court: cl 29(2), Sch 5. Leave, however, is required to appeal against an interlocutory decision of the Tribunal, a consent decision or a decision as to costs: cl 29(6), Sch 5.

Clause 29(4) of Sch 5 relevantly provides:

As referred to above the Bar Council made rules for barristers in the exercise of its power under s 702(1) of the 2004 Act.

Rule 16 of the NSW Barristers Rules is contained within “ADVOCACY RULES” under the heading “Duty to client”. At the relevant time (31 May 2011) it provided:

Rule 95 of the NSW Barristers Rules is contained within the section entitled “BRIEFS” under the heading, “Briefs which must be refused or must be returned”. It relevantly provided:

On 12 December 2013 the Bar Council commenced proceedings against the plaintiff in the ADT pursuant to s 551 of the 2004 Act by filing an application in which it sought an order that the plaintiff (the respondent in the Tribunal) had engaged in unsatisfactory professional conduct; orders pursuant to s 562; and costs. The grounds for the complaint were pleaded as follows:

The application contained extensive particulars of each of these three grounds.

By her amended reply filed on 29 May 2014 (which dealt in detail with the particulars in the application), the plaintiff admitted in respect of each of the three grounds, that she engaged in unsatisfactory professional conduct.

The application was heard by the Tribunal over three days: 12 and 13 February and 10 March 2015. The plaintiff was represented by Mr Craddock SC of counsel on the first day. An instrument of consent pursuant to s 564 of the 2004 Act was tendered. It included the plaintiff’s admission that she had engaged in unsatisfactory professional conduct as alleged. The instrument of consent also contained various proposed consent orders.

The evidence and the submissions at the hearing of the s 564 application were completed on 12 February 2015. The Tribunal reserved its decision and stood the matter over to 2pm the following day, at which time it expected to make orders and give reasons.

When the matter resumed on 13 February 2015 Mr Craddock announced that the plaintiff wished to make an application to the Tribunal in which he did not join. The plaintiff (on her own behalf) applied for an adjournment of the proceedings so that she could obtain further medical evidence in support of the submissions as follows:

The plaintiff relied on two decisions: NSW Bar Association v Butland [2008] NSWADT 120 at [32] (Butland) and Legal Practitioners Conduct Board v Ardalich [2005] SASC 478 (Ardalich). The Bar Council opposed the adjournment and contended that the matter ought proceed in the usual way on the basis of the facts in the instrument of consent. Ms Williams, who appeared on behalf of the Bar Council both in these proceedings and in the Tribunal, submitted that the plaintiff had misapprehended the effect of Butland and Ardalich. The Tribunal made directions as to the further conduct of the proceedings, including for written submissions and adjourned the proceedings for further hearing on 10 March 2015 at 2pm.

The plaintiff filed an outline of submissions dated 19 February 2015 in which she admitted (in [16]) that “the conduct complained of satisfies the objective definition of UPC [unsatisfactory professional conduct]” but submitted that the Tribunal ought not make findings to that effect because the conduct was wholly or principally caused by her mental illness. Her admission, in substance, reiterated earlier admissions she had made that her conduct, in respect of each ground in the application, amounted to unsatisfactory professional conduct.

At the adjourned hearing on 10 March 2015 the principal issue for the Tribunal was whether it ought make a finding of unsatisfactory professional conduct (as contended for by the Bar Council) or whether it ought refuse to make such a finding and dismiss the application pursuant to s 562(1) (as contended for by the plaintiff) by reason of her mental condition at the relevant time.

The Bar Council tendered the agreed facts (which were marked Exhibit AA). The agreed facts contained statements that the plaintiff admitted that she had engaged in unsatisfactory professional conduct as alleged in the three grounds in the application.

The relevant agreed fact regarding the plaintiff’s mental state (from which she did not resile and on which she relied) was, as expressed in Exhibit AA:

At the conclusion of the hearing on 10 March 2015, the Tribunal reserved its decision. It made orders and published its reasons on 16 July 2015.

Having addressed the submissions of the parties, the Tribunal made findings to record its satisfaction pursuant to s 562 of the 2004 Act, as follows:

The Tribunal found, in respect of Part A of the complaint, that the plaintiff’s psychiatric disorder “caused her lateness for court” ([80]).

The Tribunal then addressed the question whether, if it took “disciplinary action” against the plaintiff, s 581(1) would prevent its being recorded in the Register. This required a determination whether the action was taken because of the plaintiff’s inability, which arose wholly or partially from “infirmity, injury or mental or physical illness”. After summarising the medical evidence, the Tribunal expressed its conclusions, which included its reasons for not making a reprimand, as follows:

The Tribunal decided that, as no disciplinary action was being taken (within the meaning of s 576 of the 2004 Act), it was not necessary to make a declaration that the plaintiff was guilty of unsatisfactory professional conduct. It decided to make an order under s 64 of the CAT Act “having regard to the respondents’ [plaintiff’s] physical and mental conditions”.

The reasons of the Tribunal concluded with the following findings and orders:

The Tribunal found that the plaintiff’s mental condition (and associated physical symptoms) caused her lateness for Court (Ground A) and that her judgment and cognition were affected by her mental condition such that she did not sufficiently understand her conduct and was not able to properly reason in relation to it. However, the Tribunal found that the conduct alleged in Grounds A, B and C in the application amounted to unsatisfactory professional conduct. It took into account the plaintiff’s mental condition in deciding: not to reprimand her; that the conduct would not appear on the Register; that her name ought be anonymised; and that the material ought not be published.

In the “Statement of the Grounds Relied on” filed in support of the summons, the plaintiff stated that she appealed “against the findings in the decision of unsatisfactory professional conduct”. She set out the following grounds:

At the hearing of the summons the plaintiff no longer pressed the sixth ground. The first five grounds are related, in that each turns on the meaning of “unsatisfactory professional conduct” and whether, and to what extent, a psychiatric condition is relevant to the question whether conduct amounts to unsatisfactory professional conduct.

The plaintiff ultimately submitted in this Court that:

I propose to address the question whether it is open to the plaintiff to argue on this appeal that her conduct did not amount to unsatisfactory professional conduct before addressing the substance of the submissions.

The plaintiff accepted in the Tribunal that her conduct amounted to unsatisfactory professional conduct but resisted the making of findings to that effect. The plaintiff made the new submission for the first time in a written document entitled “Further Plaintiff Submissions” which was served on the Bar Council late on the evening before the hearing in this Court and which she handed up at the outset of the hearing. She said, in the written submission:

The plaintiff contended that the characterisation of her conduct was a matter of law (the underlying facts being largely agreed) or a matter which could be considered on an appeal pursuant to s 75A of the Supreme Court Act. She submitted that, in those circumstances, she ought be permitted to withdraw her admissions in the Tribunal.

Ms Williams accepted, in the Tribunal, and in this Court, that, notwithstanding the plaintiff’s admissions recorded in the agreed facts, the Tribunal was obliged to satisfy itself that it was appropriate to make findings of unsatisfactory professional conduct: Prothonotary of the Supreme Court (NSW) v McCaffery [2004] NSWCA 470 at [12]; Council of the New South Wales Bar Association v Power [2008] NSWCA 135; 71 NSWLR 451 at [9]-[12] per Hodgson JA (Beazley and McColl JJA agreeing). This obligation applies even where the parties have agreed on the orders to be made by the Tribunal (which did not occur in the present case) if the Tribunal “considers it to be in the public interest” to complete a hearing in relation to the complaint: s 564(10).

On this basis, Ms Williams accepted that the admissions the plaintiff had made in the Tribunal were pieces of evidence which could be reviewed by this Court on this appeal, since the appeal was to be conducted in accordance with s 75A of the Supreme Court Act. Accordingly, although Ms Williams noted the plaintiff’s change in position, she acknowledged that, this matter having been raised by the plaintiff, this Court ought determine, as a matter of fact and law, whether the Tribunal was in error in finding that her conduct in Grounds A, B and C of the complaint amounted to unsatisfactory professional conduct.

In these circumstances, I am satisfied that it is necessary to address the substantive question: whether the plaintiff was guilty of unsatisfactory professional conduct. In this respect I am not at a disadvantage relative to the Tribunal in hearing the appeal since no oral evidence was called in the Tribunal. Although the plaintiff’s affidavits were read, she was not cross-examined.

As referred to above, the plaintiff also put the submission on appeal that, even if her mental condition was irrelevant to the characterisation of her conduct, it still did not amount to unsatisfactory professional conduct. She relied, in support of this submission on Council of the New South Wales Bar Association v Ghabrial [2010] NSWADT 306 (Ghabrial) and contended that her conduct was not as bad as the conduct in Ghabrial, which had not been found to be unsatisfactory professional conduct.

I propose to address first the plaintiff’s primary argument that her conduct, even taken objectively, and excluding consideration of her mental condition, did not amount to unsatisfactory professional conduct.

A single instance of lateness for court could be regarded as unfortunate and would not necessarily bespeak unsatisfactory professional conduct, particularly where it could be explained by an isolated or unforeseen event such as an accident or vehicle breakdown. In the present case, the sheer number of occasions on which the plaintiff arrived for court late required explanation.

The plaintiff’s failure to attend Court punctually had the effect of depriving her clients of the opportunity of giving her instructions and obtaining advice in a timely way in advance of their matters being called (and deprived the court of the assistance that such time might have afforded). It also meant that those who arranged the Women’s Domestic Violence Court Advocacy Service (which was funded by Legal Aid) were left in a position where the scheme was not operating as intended on the days when the plaintiff arrived late.

As emerged from the evidence before the Tribunal, the plaintiff was late because of physical consequences of her mental condition. I do not consider that the cause of her lateness (repeated as it was) deprived her conduct of its character as unsatisfactory professional conduct.

Members of the public are entitled to expect, as a base standard, that a legal practitioner will attend court at the appointed time. A repeated failure to do so falls short of the standard of diligence required. Although the plaintiff was not responsible for her mental condition, she was responsible for accepting the position as Duty Barrister for particular days and the corresponding obligation to arrive at court at the appointed time for the purpose of pre-hearing consultations. No error has been shown in the Tribunal’s finding.

Ground B involved a breach of rule 16 of the New South Wales Barristers Rules. Conduct consisting of a breach of these rules is capable of being unsatisfactory professional conduct or professional misconduct: s 498(1)(a). In my view, no error has been shown in the Tribunal’s approach. Rules 16 and 95 are contained in the Barristers Rules for good reason: a barrister is required to be independent and to give independent, dispassionate advice to a client. The barrister must act in the interests of the client.

On 27 May 2011 the plaintiff was instructed by a client who was involved in proceedings under the Children and Young Persons (Care and Protection) Act in relation to the client’s child. Whether the client had stable accommodation was likely to be an issue in the proceedings. The client was endeavouring to demonstrate to the court that she had stable accommodation. On about 31 May 2011 the plaintiff, as landlord, granted to the client a six-month lease of premises at the rear of a residence which she owned. The premises did not have development consent for dual occupancy. Moreover, their use as a dual occupancy constituted a breach of an order made on about 29 December 2010 which required the plaintiff to stop using the room attached to her house for dual occupancy and to reinstate the room to its original state by 7 February 2011. The leased premises did not provide stable accommodation to the client.

There was in my view a clear conflict between the client’s interest in having stable accommodation and the plaintiff’s interest in earning income from the lease of the premises. I am satisfied that the plaintiff was in breach of rule 16. No error has been shown in the Tribunal’s approach to the question. Although the plaintiff’s medical condition may provide some explanation for her conduct (since it compromised her judgment), it did not deprive her conduct of its character as unsatisfactory professional conduct.

Members of the public are entitled to expect a barrister to act in the interests of their clients. They are also entitled to expect that a barrister will not exploit the client’s position (which in many cases, as here, is a relatively vulnerable one) for the barrister’s own advantage. The barrister’s conduct fell short of the standard of diligence required.

In the period from at least 5 October 2011 until 22 November 2011 the plaintiff continued to act for the client (to whom she had leased the premises) in the proceedings under the Children and Young Persons (Care and Protection) Act. At the same time she was seeking to terminate the lease and evict the client from the premises. The plaintiff was obliged by rule 95 to return the brief (which she ought not to have accepted or retained once the lease of the plaintiff’s premises to the client was proposed). Once again, the compromise of the plaintiff’s judgment by reason of her mental condition may explain her breach of the NSW Barristers Rules. However, her mental condition was not such as to render it any less a breach, or to deprive it of its character as unsatisfactory professional conduct.

As referred to above, the plaintiff relied on Ghabrial in support of the proposition that conduct arguably worse than hers was found not to amount to unsatisfactory professional conduct. In my view, comparisons between the facts of disciplinary cases tend not to be of assistance. The question in any case whether conduct amounts to unsatisfactory professional conduct (or, indeed, professional misconduct) turns on a consideration of the conduct by reference to the applicable statutory wording. Ghabrial involved facts very different from those alleged in Grounds A, B and C. That Ghabrial was found not to be guilty of unsatisfactory professional conduct provides no support for the plaintiff’s contention that her own conduct ought not be regarded as such.

In the present case, the plaintiff’s conduct as alleged in each of the three grounds plainly fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner. I am satisfied that no error has been shown in the Tribunal’s approach. Having conducted the matter as a rehearing, I am satisfied, on the basis of the primary facts set out in the agreed facts (and disregarding the plaintiff's admissions that her conduct constituted unsatisfactory professional conduct, which have been withdrawn), that the plaintiff was guilty of unsatisfactory professional conduct in the three respects alleged in Grounds A, B and C.

The plaintiff submitted that her mental condition was relevant to the characterisation of her conduct as unsatisfactory professional conduct and that, by reason of the causal connection between her mental condition and the conduct, it did not amount to unsatisfactory professional conduct.

In support of this submission, she argued that, given that professional misconduct could be constituted by unsatisfactory professional conduct “where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence or diligence” (s 497(1)(a)), it would be both artificial and nonsensical to allow a mental condition to bear on whether conduct was professional misconduct, but exclude it from consideration on the question whether the conduct amounted to unsatisfactory professional conduct. The plaintiff relied on s 33 of the Interpretation Act 1987 (NSW) in support of the proposition that a construction ought be preferred that would promote the purpose. She submitted that such a distinction would not advance the purpose of the legislation.

Further, the plaintiff submitted that the Tribunal had not been referred to several authorities, which were in her favour, and which, properly analysed, had the effect that her mental condition deprived her conduct of the character of unsatisfactory professional conduct. She specifically relied on New South Wales Bar Association v Butland [2008] NSWADT 120 (Butland), Council of the Law Society of New South Wales v Kay [2009] NSWADT 139 (Kay) and Council of the New South Wales Bar Association v Fitzgibbon [2012] NSWADT 56 (Fitzgibbon). Although the Tribunal had been referred to Butland, it had not been referred to either Kay or Fitzgibbon.

In order to address this submission it is necessary not only to review the authorities referred to in the submissions but also to consider the statutory background against which the decisions are to be read and the legislative history of the provisions in the 2004 Act which are germane to the appeal.

The statutory predecessors of the 2004 Act are, relevantly, the Legal Profession Act 1898 (NSW) (the 1898 Act) and the Legal Profession Act 1987 (NSW) (the 1987 Act).

The 1898 Act made provision, in Part X, for a “Solicitors’ Statutory Committee”: s 75. Section 76 provided that the Court or the council (of the Law Society) could refer to the Statutory Committee for enquiry “any question as to the professional misconduct of any solicitor”. Section 77 conferred jurisdiction on the Statutory Committee to hear the charge, and if made out, to make an order as to striking off the roll or suspending from practice, or imposing a fine or reprimand. The inherent jurisdiction of this Court over legal practitioners was preserved by s 79.

The 1898 Act made no provision for “unsatisfactory professional conduct” and did not define “professional misconduct”. Professional misconduct at common law was understood as connoting conduct that would reasonably be regarded as disgraceful or dishonourable by one’s peers. This definition derived from Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 (Allinson), which concerned a statutory term that applied to the medical profession, but was adopted by the common law for professional misconduct in the legal profession: see the summary in New South Wales Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279 at [36]-[51] per Spigelman CJ (Mason P and Handley JA agreeing).

The 1987 Act, which repealed and replaced the 1898 Act, introduced the concept of unsatisfactory professional conduct, being conduct that fell short of professional misconduct but which was nonetheless unsatisfactory and could give rise to disciplinary sanctions. Section 127 of the 1987 Act relevantly provided:

The 1987 Act expressly preserved the inherent jurisdiction of this Court over legal practitioners.

The 2004 Act, which repealed and replaced the 1987 Act, preserved the distinction created by the 1987 Act between professional misconduct and unsatisfactory professional conduct in the definitions (as set out above) in s 496 (unsatisfactory professional conduct) and s 497 (professional misconduct). It added s 498 which listed categories of conduct said to be capable of being either unsatisfactory professional conduct or professional misconduct.

Section 171M of the 2004 Act expressly preserved the inherent power or jurisdiction of the Supreme Court with respect to the discipline of legal practitioners.

It is convenient to address the decisions referred to by the parties and the Tribunal in chronological order.

In Robinson v The Law Society of New South Wales (Supreme Court of New South Wales, Court of Appeal, unreported, 17 June 1977) (Robinson) the Court of Appeal heard an appeal under the 1898 Act from the Statutory Committee which had found Robinson guilty of professional misconduct. The Court held that, although it was entitled, in the exercise of its inherent jurisdiction, to consider fitness to practice even in the absence of professional misconduct, the Statutory Committee’s powers depended on its being satisfied that the practitioner was guilty of professional misconduct, by reason of the wording of the Act that conferred jurisdiction on the Committee (see s 76 of the 1898 Act, referred to above).

The Court of Appeal allowed Robinson’s appeal on the basis of his mental impairment (arising from alcohol intoxication). Chief Justice Street (Moffitt P and Glass JA agreeing) said:

In Robinson the practitioner’s mental condition was relevant to whether conduct constituted professional misconduct since the definition depended on the view of others (in the profession) that the conduct was dishonourable or disgraceful. Robinson illustrates the relevance of subjective matters such as mental illness which are capable of preventing conduct that is objectively reprehensible from being classified as “professional misconduct” where the moral culpability of the proponent is thereby reduced.

Legal Practitioners Conduct Board v Ardalich [2005] SASC 478 (Ardalich) concerned an application by the Legal Practitioners Conduct Board (the Board) to the Full Court for an order that Ardalich’s name be removed from the roll. The Board had received reports from the Legal Practitioners Disciplinary Tribunal which had found the practitioner guilty of 27 counts, some of which involved misappropriation of client’s money. It was common ground that the practitioner had committed the acts said to constitute unprofessional conduct.

The Legal Practitioners Act 1981 (SA) (the SA Act) referred neither to professional misconduct nor to unsatisfactory professional conduct. Rather it referred to “unprofessional conduct” which was defined, by s 5(1) of the SA Act, to mean:

The Full Court held as follows (per Perry ACJ, Duggan and Anderson JJ agreeing):

The Full Court agreed to order that Ardalich’s name be struck from the roll.

Butland concerned an application to the ADT by the Bar Association under the 2004 Act concerning complaints that were alleged to amount to professional misconduct or, in the alternative, unsatisfactory professional conduct. Butland accepted that the conduct amounted to unsatisfactory professional conduct but denied that it amounted to professional misconduct. Accordingly, the issue for the ADT was whether, as the Bar Council contended, the conduct amounted to professional misconduct, or whether, as Butland contended, the conduct amounted only to unsatisfactory professional conduct.

The barrister sought to excuse his conduct on the basis that it resulted, at least in part, from Borderline Personality Disorder which made him more inclined to act impulsively or carelessly and to react poorly to stress.

The ADT noted that the medical evidence did not go as far as to suggest that the barrister’s mental condition was such that he was not able to control his actions. The Bar Association submitted, on the basis of Ardalich, that the barrister’s mental condition was irrelevant to the question whether he was guilty of professional misconduct or unsatisfactory professional conduct. The ADT rejected this submission, commenting that it went too far, and referred to Allinson and considered that the judgment whether conduct would reasonably be regarded as disgraceful or dishonourable would need to take into account all relevant factors, including the mental state of the perpetrator.

At [41] the ADT referred to the “primary function” of disciplinary proceedings as:

In Kay the ADT heard an application by the Law Society under s 562 of the 2004 Act in which it was alleged that Kay, a solicitor, was guilty of professional misconduct in that he had misappropriated trust funds and wilfully breached s 255 of the 2004 Act (which makes provision for holding, disbursing and accounting for trust money).

The evidence established that, in 2003, Kay was the victim of a violent, life-threatening assault, as a result of which he suffered depression and other psychiatric injuries. The ADT expressed its conclusion on the medical issue relevantly as follows:

The ADT then addressed (in observations which can only be regarded as obiter) an argument by the Law Society that, if it was satisfied that the practitioner did not have the requisite intent, it could not find professional misconduct and would not have jurisdiction but would have to refer the matter to the Supreme Court (see [48]). The ADT, in [49]-[50], referred to s 562 and the circumstance that its jurisdiction to make orders depended on a finding of professional misconduct or unsatisfactory professional conduct. The ADT said, in conclusion, at [50]:

Paragraph [50] may be regarded as unexceptional, save for the final sentence, which I consider to be incorrect. As appears from the reasons given above, Robinson concerned only professional misconduct (unsatisfactory professional conduct not having been introduced until the 1987 Act commenced) in respect of which it was accepted that impaired judgment was relevant, since the common test for professional misconduct (which applied under the 1898 Act) depended on the views of one’s peers. In so far as the last sentence of [50] says, or suggests, that no finding of professional misconduct (as presently defined in the 2004 Act) or unsatisfactory professional conduct can be made if there is a “degree of permanent impairment” it is incorrect; inconsistent with authority and with the decision of the ADT in Butland; and ought not be followed.

Fitzgibbon concerned an application by the Bar Council in the ADT alleging that Fitzgibbon was guilty of unsatisfactory professional conduct in connection with preparation of submissions (ground 1) and an appearance in the Court of Criminal Appeal (ground 2).

Fitzgibbon relied, in part, on evidence from his treating psychiatrist to the effect that at the time of the oral hearing he suffered a temporary impairment of brain function due to the rebound effect of Ritalin, a drug which he was prescribed for Attention Deficit Hyperactivity Disorder (ADHD).

The ADT found that the barrister was guilty of unsatisfactory professional conduct with respect to the first ground but otherwise dismissed the application.

When considering the first ground, the ADT said, of present relevance:

Although the ADT cited Butland as standing for the proposition that mental ill health could be relevant to whether a finding of professional misconduct ought be made, this question did not arise for consideration in Butland since the only question was whether the conduct amounted to professional misconduct, it being accepted that it amounted to unsatisfactory professional conduct. If the words “unsatisfactory professional conduct” in [56] were intended to read “professional misconduct”, then the sentence correctly reflects what was said by the ADT in Butland. If it stands as reported, it is incorrect.

Each case must turn on its facts and the application of the statutory words. In endeavouring to draw some principles from these decisions, I am conscious of the warning given in New South Wales Bar Association v Cummins by Spigelman CJ (Mason P and Handley JA agreeing) who said:

Having regard to the importance of context and the need to avoid pedantry (both of which are emphasised in the passage set out above), the following principles can be derived from the wording of the 2004 Act and the decisions referred to above.

The language of the definition of “unsatisfactory professional conduct” is apt to connote that the test is an objective one. In these circumstances the objective conduct, rather than the professional culpability of the practitioner, is of prime, if not sole relevance. Therefore, generally speaking, any mental affliction which the practitioner may suffer is irrelevant to the characterisation of conduct as unsatisfactory professional conduct. However, where the conduct contains a mental element (such as in Kay where the allegation in the complaint was that he had “wilfully” breached s 255 of the 2004 Act), the test is not entirely objective, since a mental condition may affect the question whether conduct is “wilful”.

Where the question is whether certain conduct amounts to “professional misconduct”, the relevance of a mental condition will depend on the species of professional misconduct. For example, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence (in s 497(1)(a)), the practitioner’s mental condition may not be relevant.

The mental condition of a practitioner, if it is relevant to the conduct, will generally be relevant to the question what orders ought be made as a consequence of a finding of professional misconduct or unsatisfactory professional conduct.

The plaintiff accepted that the primary purpose of disciplinary proceedings was to protect the public but argued that the making of findings in her case (by reason of her mental condition) did not advance that purpose. She submitted that, with respect to a practitioner who suffered from a mental condition, the appropriate way of dealing with conduct affected by the mental condition was at the stage of determining whether to issue a practising certificate, or suspending the right to practise or imposing conditions on the right to practise.

In my view, no error has been shown in the Tribunal’s approach. It was obliged to conduct a hearing in relation to the Bar Council’s complaints against the plaintiff and to determine, pursuant to s 562(1) of the 2004 Act, whether it was satisfied that the practitioner had engaged in unsatisfactory professional conduct, as alleged in the complaint. If satisfied, it was required to consider whether to make orders under s 562, which include, in s 562(6) making an alternative finding (professional misconduct when only unsatisfactory professional conduct alleged; or vice versa). Although the Act does not, in terms, oblige the Tribunal to express its determination in terms of a “finding” (or, indeed, to make a declaration, which the Tribunal was not disposed to do in the present case), the Act contemplates that it will do so, as a necessary step to invoke its power under s 562 to make other orders, consequent on its determination.

I do not accept the plaintiff’s submission that there was no purpose to be served by the Tribunal’s making of findings in accordance with its reasons. As referred to above, one of the purposes of the discipline of the legal profession, as expressly provided for in s 494(1) of the 2004 Act, is “for the protection of . . . the public generally”. The “protection of the public” is regarded as the principal purpose of disciplinary proceedings, which are sui generis: Wentworth v New South Wales Bar Association (1992) 176 CLR 239 at 250-251.

The protection of the public is advanced, not merely by regulating those who are entitled to practise and removing from practise those who are no longer fit, but also by educating the profession, and the public, as to the applicable standards of professional conduct (and personal conduct where it bears on the profession); and maintaining public confidence in the legal profession: New South Wales Bar Association v Cummins at [22]. The making of findings serves an important educative role, particularly where, as here, no disciplinary action is taken notwithstanding that a practitioner has been found guilty of unsatisfactory professional conduct.

I note for completeness (although it does not arise in the present case) that where a barrister’s name is removed from the roll the making of findings has additional importance since, if the barrister ever applies for readmission, the Court which considers that application will have available to it all relevant findings: see the authorities summarised in New South Wales Bar Association v Cummins at [24]-[26] and Council of the New South Wales Bar Association v Power at [9]-[12].

I am not persuaded that this Court should set aside the findings of the Tribunal. It was appropriate that they be made to record formally the Tribunal’s satisfaction that the plaintiff had engaged in unsatisfactory professional conduct as particularised in the application. Their making was consistent with, and advanced, the purposes of protection of the public in that the findings served to educate the public and the profession as to the appropriate standards, as well as to restore public confidence in the profession.

Because I consider the grounds of appeal to overlap, I have dealt with them compendiously in the reasons set out above. However, I propose to set out, in summary form, my conclusions with respect to each ground, notwithstanding the inevitable repetition.

This ground has not been made out. In the circumstances of this case, the Tribunal was entitled to consider that the plaintiff’s mental condition was not such as to deprive the alleged conduct of the character of unsatisfactory professional conduct, since the statutory test is an objective one. The Tribunal made it clear in [38] that it was satisfied that the plaintiff’s conduct as alleged in the application fell short of the requisite standard “even if that conduct arose wholly or principally from the [plaintiff’s] psychiatric disorder”. To that extent, the Tribunal took into account the medical evidence.

The Tribunal considered that the conduct comprised in Ground A was caused by her psychiatric disorder ([80]). It considered that the conduct in Ground B and C resulted from her compromised judgment and cognition as a consequence of her psychiatric condition ([84]). These matters did not bring her conduct outside the definition of unsatisfactory professional conduct. This ground has not been made out.

In my view the Tribunal’s interpretation of Butland was orthodox and correct. It was entitled to take the medical evidence into account in determining whether to make an order under s 562, but disregard it when determining whether the plaintiff was guilty of unsatisfactory professional conduct. In any event, as I have said with respect to the first ground of appeal, the Tribunal did have regard to it but did not consider that it affected the characterisation of the plaintiff’s conduct.

For the reasons given above, Ardalich is of illustrative significance only because of the different wording of the relevant legislation in South Australia. To the extent to which the Court regarded mental condition as irrelevant, its approach was consistent with Butland. No error has been shown.

For the reasons given above, Kay and Fitzgibbon (to which the Tribunal was not referred) do not, properly analysed, support the proposition for which the plaintiff contended. In so far as the plaintiff relied on the final sentence of [50] in Kay, I have already explained why I consider that sentence not to state the law correctly. The reasons of the ADT in Fitzgibbon appears to contain an error, or misreading, with respect to Butland but this is sufficiently clear from a fair reading of Butland. No error in the Tribunal’s approach has been shown. This ground has not been made out.

I make the following orders: