| CITATION: | New South Wales Bar Association v Howen [2008] NSWADT 147 | |
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| DIVISION: | Legal Services Division |
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| PARTIES: | APPLICANT Council of the New South Wales Bar Association RESPONDENT Alexander Stanislaw Howen |
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| FILE NUMBER: | 062009 |
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| HEARING DATES: | 15-19 October 2007, 22-23 October 2007, 7-8 April 2008 |
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| SUBMISSIONS CLOSED: | 8 April 2008 |
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| DATE OF DECISION: |
22 May 2008 |
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| BEFORE: | Karpin A - ADCJ (Deputy President); Macfarlan R QC - Judicial Member; Bennett C - Non Judicial Member |
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| CATCHWORDS: | Barrister – disciplinary application - knowingly making misleading statements to the Australian Industrial Relations Commission - failing to advance and protect client's interests |
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| MATTER FOR DECISION: | Principal matter |
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| LEGISLATION CITED : | Legal Profession Act 1987 Legal Profession Act 2004 |
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| CASES CITED: | Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 Kyle v Legal Practitioners Complaints Committee (1999) 21 WAR 56 The Council of the New South Wales Bar Association v Sahade [2007] NSWCA 145 at [54] |
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| REPRESENTATION: | APPLICANT P Mahoney SC, barrister P Nolan, barrister RESPONDENT In person |
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| ORDERS: | A hearing as to penalty has been fixed to occur on 27 June 2008. |
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1 In these proceedings the Council of the New South Wales Bar Association (the “Bar Association”) alleges that a barrister, Alexander Stanislaw Howen (the “Barrister”), engaged in professional misconduct or alternatively unsatisfactory professional conduct in the following respects:
(ii) The Respondent failed to advance and protect his client’s interest when he appeared in the Australian Industrial Relations Commission before Commissioner Raffaelli on 22 December 1999 in the matter of Iverson v Qantas Airways Limited.” 2 The proceedings arise out of the following factual circumstances. 3 On 26 November 1998, Mr Michael Iverson was suspended from his employment by Qantas Airways Limited (“Qantas”) as a flight service director on international services. Qantas alleged that he had stolen company stores and that he had breached one of its pre-flight briefing patterns. Mr Iverson denied the allegations and wished to be reinstated. 4 On the day of his suspension, Mr Iverson sought advice from his friend Mr Colin Davis who was an accountant. Mr Davis recommended that Mr Iverson obtain legal advice from the Barrister. Mr Davis is the father in law of the Barrister. 5 Mr Davis arranged a conference, which was held, at his office on 29 November 1998, with the Barrister being in attendance by conference phone. Mr Iverson gave evidence that the Barrister said, amongst other things:
7 Shortly thereafter Mr Vouroudis sent to Qantas a letter on Mr Iverson’s behalf, which had been drafted by the Barrister. 8 On 5 April 1999 Mr Iverson attended a conference with the Barrister at the Barrister’s residence. Mr Vouroudis was also in attendance. 9 On 28 April 1999, Mr Iverson received a letter from Qantas advising him that he had been dismissed. 10 On the same day, he copied the letter to the Barrister and Mr Vouroudis and asked:
17 On 5 May 1999 he sent another detailed fax saying that “I thought you may find the following useful in my case with Qantas”. 18 Mr Iverson says that on 11 May 1999, the Barrister rang him and said:
19 On 19 May 1999, Mr Iverson sent a fax to the Barrister in which he reported on a conversation which he had had with one of his colleagues from Qantas and said:
21 On 4 June 1999, Mr Iverson sent a fax to the Barrister informing the Barrister of something and asking “Will this make a difference to my case? Or do you want to see how they fare at Court and to use whatever eventuates on that day in my case before you lodged my application?”. 22 On 10 June 1999, Mr Iverson sent a facsimile to the Barrister with some updated information and said:
24 On 23 June 1999, Mr Iverson sent to the Barrister a fax which concluded by saying:
27 On 20 July 1999, Mr Iverson sent a fax to the barrister which included the following:
I said: “Of course I am.” Lawyer: “You’re too late. You have only got 21 days to lodge your application.” 31 At 9.00 o’clock that evening he says that he rang the Barrister again and the Barrister said words to the following effect:
35 Mr Iverson says that on 5 October 1999, the Barrister rang and advised him that he had spoken to Dr Blows and that the Barrister said:
37 Mr Iverson says that at some time between 4 and 8 November 1999 he had a telephone conversation with the Barrister to the following effect:
The Barrister: “We have to show them a reason for the delay.” 39 The affidavit described the circumstances leading up to and following Mr Iverson’s suspension and then dismissal by Qantas. It included reference to limited employment that Mr Iverson obtained after his dismissal and included the following:
… 35. There were times last year and this year when I felt suicidal. I have had the benefit of seeing Dr Laurence Blows, a psychiatrist. I commenced seeing him just after I was suspended and I continued doing so during 1999. … 36. During 1999 I also sought counselling to help me with my predicament. … 37. I now feel well enough to deal with the pressure and anxiety of litigation against Qantas.” 41 Dr Blows’ report, which was annexed by Mr Iverson to his affidavit, included the following:
… Summary: Mr Iverson first presented in an extreme state of anxiety, which deteriorated into a major depression, for which medication and constant follow up was necessary. He settled to a point, but at no time was he in a state one could consider at all well. He became worse in April, following in May when he learnt more specific information about allegations and his employer made specific moves. This led him to a crisis of feeling empty, without self-esteem and unappreciated. Gradually he obtained employment and began to work longer hours. This began to give him a feeling anew that he was able to do a job well. … His mental state when last seen was fair, I noted that sleep and appetite had returned towards normal. However his overall emotions are frustration, anger and uncertainty.” 43 On 22 December 1999, Mr Iverson’s application for an extension of time came on for hearing before Commissioner Raffaelli in the AIRC. The Barrister appeared on Mr Iverson’s behalf. Mr Vouroudis was not in court. Nor was anyone else from his office. 44 Amongst the matters said at the hearing were the following:
… The principles in the Kornicki matter, the four relevant principles to which I shall address the structure of my submission, first of all is there an acceptable explanation for the delay … … I am now going to address what happened from May onwards in relation to the explanation for the delay. From May onwards there’s a continuation of a deterioration in his health, which slowly turns around. … As his position improved, that he could cope with this application he starts taking steps to do something about it. He instructs his solicitors. The dates show that the reports were sought in about September, so there’s about approximately a three month period during which Mr Iverson was working to get to a position where financially he could cope, emotionally he could cope, medically he could cope, physically he could cope and he did it. Now, it’s to his credit that he went from a nadir to the depths of despair, the black dog was chasing him as Churchill used to refer to, the black dog of depression, and began to come out of it and when he came out of it he dealt with it and made an expeditious application. … Is there an acceptable explanation for delay? Sometimes people come before the Commission and say, my solicitor did nothing for nine months. My union did nothing for nine months. That is one set of excuses given. Another set is, I don’t know my rights. Another set is, I couldn’t speak English. These are the themes one finds in these applications. Another one is, I went to the wrong jurisdiction. … When he was terminated he went through the trough, dealt with the medical issues, came out and depression is a very real thing. … One looks at the acceptable explanation for delay, even if you say, Mr Commissioner, that he could have done it quicker, even if you say, well he filed in November, why couldn’t he have done it a month after he started improving? That may well be an issue that my friend will address. If she addresses that the argument response is relatively simple. Qantas were tardy by any analysis. They can’t stand on their hind quarters now and say Mr Iverson has to be perfect, when they couldn’t get their act together. Secondly, they were on notice all the way through this could be litigious. … So I ask you on the balance of the material and on the taking into account the submissions I have been granted extensively today to give to you in detail – that on the basis of a fair go all around Mr Iverson be allowed in to make the application even though on a technical level it is well outside the period and the termination was in April so 21 days would take it into May 1998, would have been the cut off time. But the medical evidence shows that in fact it was at that period he commenced a further decline after the termination. So we are looking at a period of about six months out of time and I have addressed what has happened in that six months and unless I can assist the Commissioner in any other way I am grateful for the extensive opportunities for the submissions.” Ms. Downey: “… In relation to the explanation for the delay, we submit that the applicant has not provided an acceptable explanation for the delay. The Applicant’s employment was terminated on 28 April 1999. He did not file his application until 23 November 1999, seven months later. The Applicant was legally represented throughout the period of investigation at least from 8 December when Qantas received a letter from the solicitors acting for him and he continues to be represented by that solicitor and by Mr Howen today. … It is also incorrect for Mr Howen to submit that the medical evidence provided by the Applicant states that the Applicant was not in a fit state to file the application. … None of the reports says that his condition was such that he could not either make an application on his own behalf or instruct his solicitors to make an application on his behalf. … The Applicant also has not given any evidence that he instructed his solicitors to file an application but they didn’t do so. There is no evidence of any delay on the part of his solicitors or barrister, so that is also not an issue in relation to this matter before you today. The Applicant simply has no explanation for the delay, Commissioner. There’s nothing in his evidence to support the submission of Mr Howen that the Applicant was so depressed and in such a state of mind that he could not file an application. There’s just no support for that submission. … MR HOWEN: … Thirdly, I did not say that Mr Iverson came out of his depression in November, I said in the months after May he did so, and the evidence shows that actions were being taken by his solicitor from around the September point. … THE COMMISSIONER: Yes, Mr Howen, can I just ask you this? Mr Iverson was represented by solicitors and I think you had some involvement prior to it all, and yet after 28 April, or whenever that date was, nothing was done. Why weren’t the solicitors, presumably aware of the provision of the Act, not hedge their bets a little bit or hedge Mr Iverson’s bets a little bit by doing something, particularly by lodging an application? If not within 21 days, certainly within a shorter period? MR HOWEN: I can respond to that. I am not giving evidence at the Bar table but I would like to respond to that. It is a fair enough question. Applications are often made with little or no preparations in this jurisdiction. They are often even handwritten by an employee without the benefit of legal advice. The medical evidence shows that for the period of April/May, Mr Iverson again went backwards in his mental state as a result of depression. Once Mr Iverson was outside of that time, instructions were then required. You can’t simply file an application without filing an application for an extension of time as well. To file an application for an extension of time requires material and that requires instructions and Mr Iverson was in a position whereby on his evidence, he placed a priority on his health and his capacity to keep on going at life. So, yes, Mr Commissioner, it might have been possible to simply file any old application in the 21 days. But that was his worst period on the evidence before you and if an application is then filed after the 21 days, which is a very short space of time, very short. If an application is filed after that time it just simply can’t be – wouldn’t accept it without an application for an extension of time as well. It is always a difficult thing when people are ill and people face life hurdles, as to what’s the exact point when one says he was OK. I cannot give you a day, Mr Commissioner, I cannot give you a day. All I can say is an application after the 21 days would require a version of what you got and if there is any period there it would be the period around the September period. It might have been possible to file it perhaps a month earlier. Possibly. One looks at those periods of time and I suppose it might have been possible to get the reports quicker from some but it still placed it months after the event. Once it is several months after the event, another month in terms of collecting the material doesn’t change the case significantly. He’s still outside the time and he still has to explain to the Commission why he is outside of time. I am not trying to duck your question, Mr Commissioner, but it is a difficult area because once he has that problem, is there a day or a month or a week when either side of it is fair or unfair, as to what he did? I hope that has addressed what you have asked me to address.” (sic)
… That satisfies me that his state was not such that he was incapable of taking action or have others take action on his behalf in this Tribunal.” 47 On 10 August 2001, the Full Bench of the AIRC allowed Mr Iverson’s appeal on the ground of representative error. The Full Bench said, inter alia:
49 Subsequently the Legal Services Commissioner initiated complaints in relation to the Barrister’s conduct. 50 Save in limited respects, the occurrence of the factual circumstances described above was not in issue. 51 The Barrister did not deny receipt of the faxes exhibited to Mr Iverson’s affidavit or deny, in any respect, which we regard as significant, the conversations to which Mr Iverson deposed. However, unsurprisingly as the events in question occurred in 1998 and 1999, there were matters of detail, which the Barrister said he could not recall. 52 The diary, the authenticity of which has not been challenged, gives substantial and detailed support to Mr Iverson’s account of the events. The diary was kept on a day by day basis. Indeed on many days there are three or four or more entries at particular times of day. 53 It was not suggested to Mr Iverson that he had, at the time of making the day by day entries in the diary, any motive to falsify them. Whilst appreciating that the entries could not be exhaustive and are understandably charged with a degree of emotion and subjectivity, we accept the diary as an accurate record of the main dealings Mr Iverson had with the Barrister. More generally we accept Mr Iverson’s evidence as to his dealings with the Barrister. 54 The Barrister’s response dated 10 October 2004 to a section 152 Notice issued by the Bar Association and to the Bar Association’s Professional Conduct Committee Report included the following:
… After Mr Iverson’s employment was terminated on 28 April 1999 I provided advice as to Mr Iverson’s options and commenced working with Mr Iverson and Mr Vouroudis on collecting and preparing material for a case against Qantas. (v) … I do not recall Mr Iverson ever giving a direct instruction” (to make an application to commence reinstatement proceedings) “before the expiration of the 21 day period to commence proceedings either to myself or to Mr Vouroudis in my presence. I received no instructions from Photios Vouroudis & Co. along these lines. On 28 April 1999 I received a fax from Mr Iverson (Annexure MI4 p.70) asking whether we should lodge an appeal with the IRC. This fax led to a lengthy meeting with Mr & Mrs Iverson, Frank Vouroudis and myself. I acknowledge that I received two faxes 5 May 1999 and 19 May 1999. These faxes are referred in Mr Iverson’s chronology in Annexure MI4 (pp. 85/86 & 89). Orally Mr Iverson often spoke to clearing his name, however in those same conversations he also spoke of whether he could cope with the process. Mrs Iverson expressed even more concern. … 11. Mr Iverson’s diary notes and correspondence did not however reveal the complete nature of his presentation to me. From the beginning in November 1998 I was aware that Mr Iverson was suicidal. His reaction to the manner in which he was being treated by his employer was extreme. When Colin Davis referred him to me I was told by Mr Davis that he had real concerns that Mr Iverson may have ended his life a few days earlier. Apparently Mr Davis had spent the night with his friend. … 17. During March, April & May 1999 I saw a deterioration in Mr Iverson’s mental state. In February/March 1999 Mr Iverson’s mother died after what I recall was a lengthy period of ill health. Mr & Mrs Iverson provided support to Mr Iverson’s father who I recalled lived on the South Coast. In the period immediately after Qantas terminated his employment, I saw Mr Iverson’s mental state deteriorate even further, especially at the 30 April 1999 conference. … 21. I do not recall nor do I have a record of a conversation with Mr Iverson on 11 May 1999. I agree that if I spoke to Mr Iverson on that day it was within the 21 day period, but only just. The 21 day period ran out the following week on 19 May 1999. I may have spoken to Mr Iverson about Mr Vouroudis filing an application either that week or the next. I do not recall precisely what I said on that subject. I was certainly considering what to do with Mr Iverson. I do not recall now specifically what I said either to Mr Iverson or Mr Vouroudis about the deadline for filing an application. Mr Vouroudis did not correspond with me on that issue. That Mr Iverson says I spoke to him about filing an application (even though I do not file anything – rather Mr Vouroudis would attend to that task) suggests that I was in contact with Mr Iverson on the subject of filing the application. 22. I recall that in the period after Mr Iverson was dismissed, I believe that his health and physical well being came before any other consideration. I expressed this view both to Mr Vouroudis and Mrs Iverson. I believed that Mr Iverson’s situation was critical and Mrs. Iverson was not much better. I formed a view that his application should not be commenced until his condition stabilised. I was very worried about Mr Iverson’s well being. That he sent me faxes did not reflect the reality of speaking with him. I believed that commencing any proceedings with Mr Iverson in his then mental state would only place further pressure on my client. 23. … I recall speaking to Mr Iverson about the process and principles about an application for extension of time. I believe that I raised the extension of time issue before 30 August 1999 as I knew this would be necessary. … I agree that in August 1999 (and back as far as May 1999) I had formed a view that Mr Iverson would have no difficulty in getting an extension of time. … Given that I was aware of the 21 day provision, my usual practice would have been to speak to both my instructing solicitor and client about this issue. I am missing part of my brief, so I cannot say whether I have a file note of such conversations. Mr Iverson called so often and his conversations were so convoluted, I may not have file noted each conversation. It may have been Mr Iverson’s perception that he did not know about the 21 day deadline. That does not mean that I did not have a conversation with him about that. 24. I perceived that from about August or September 1999 Mr Iverson’s mental state and communications with me improved. With his condition improving (as confirmed by Dr Blows) Mr Vouroudis and I worked towards preparing his application (including for extension of time). I agree that in mid-1999 I had a period during which I was grossly overloaded with court work. There was a period during which I found it difficult to keep up with the workload. This caused me to be difficult to contact in that period. Mr Iverson is correct in saying he had difficulty in speaking to me at that time. I am accused of misleading the AIRC in that rather than place before the AIRC that the failure to file an application within time was caused “representative error”. I mislead the court by providing a false explanation based on Mr Iverson’s mental state. I deny that allegation. What I said to the Commissioner was truthful. I did not set out to mislead the Commission. I considered at the time and still do that I had a legitimate reason for taking the course I did. The reason the Workplace Relations Act contains a provision to seek and grant an extension of time is to deal with those situations in which there is a legitimate reason as to why an application is not filed within time. Medical conditions are I submit one of the classes or reasons acceptable according to the authorities. I believe that Mr Vouroudis was also concerned about Mr Iverson’s condition. 26. … I do not say that Mr Iverson never spoke about wanting to take Qantas on to vindicate his position. What I say is that there was an enormous difference between Mr Iverson’s written and personal communications. I noticed an increase in the quality of Mr Iverson’s instructions from about June/July 1999 onwards. It was my opinion based on my dealings with Mr Iverson that Mr Iverson was not coping at all with this situation notwithstanding that he was doing some temporary work. It appeared that long term, this work helped him recover some of his equilibrium. … 27. I have reviewed the Commissioner’s question and my reply reproduced at paragraph 16 and 17 of the draft report. Looking at it now, I can see that I did not answer the Commissioner’s question. I did not have a instructing solicitor present in court to instruct me. The Commissioner’s question was directed to the state of knowledge of Mr Vouroudis. My reply to the Commissioner again referred to Mr Iverson’s state rather than the awareness or otherwise of the solicitor.” 55 The Barrister’s principal affidavit included the following:
91. At paragraph 21 of my letter to the Bar Association in October 2004 I said I did not recall specifically what I either said to Mr Iverson or Mr Vouroudis about the deadline for filing an application. That is still my position, particularly now some eight years after the event. As to Mr Vouroudis, I may have assumed he knew. I have no recollection nor any record of Mr Vouroudis ever asking me anything about a time limit within which to file an application. 92. In his diary note for 11 May 1999 (Exhibit MI3) Mr Iverson says I said something about lodging the application with the court by the end of “this week”. I do not recall saying this. When I wrote to the Bar Association at paragraph 21 of the letter referred to above, I said I may have spoken to Mr Iverson about Mr Vouroudis filing an application either that week or the next. My recollection is no better on this issue now. 105. I do not recall when I first started discussing extensions of time with Mr Iverson. I believe I raised the extension of time issue before 30 August 1999, possibly as early as June 1999. In June/July and into August 1999 I believe that Mr Iverson’s state of mental state fluctuated. Mr Iverson’s diary entries for these months in Exhibit MI3 do not reflect my experience of speaking with him. … I had no doubt that Qantas would argue that even if he had been unfairly terminated he was not fit to fly”. “132. The affidavit drafted for Mr Iverson’s’ application and sworn 17 November 1999 reflected the truth of Mr Iverson’s experience and mental state … I did not intend … to convey a meaning that Mr Iverson had never communicated anything about proceedings in the AIRC. Neither did I intend to convey an impression, directly or indirectly, that Mr Iverson could not give instructions in the period between termination and commencing work on the application. 134. … The first problem was the view I had arrived at that he should not make his application due to his condition was that I did not sit down with Mr Iverson and work through that proposition. I was of the view that Mr Iverson was seriously unwell and to put it bluntly, may have died by his own hand. I thought I would do more harm than good if I did that. The second problem was that I did not write to Mr Vouroudis saying that. I know I spoke to Mr Vouroudis about this question but I do not recall how direct I was. The third problem was how could I place my opinion or judgement before the AIRC. I thought I could not be a material witness and the advocate. I believed it would be sufficient to set out what Mr Iverson experienced and what the health professionals concluded. I concede that the affidavits do not include evidence as to the fact of and role of my decision-making. I did not intend to convey the impression that Mr Iverson had been too ill to instruct his lawyers. What I thought at the time was that Mr Iverson was too ill to cope with the court process. 137. … I believe now that it would have helped Mr Iverson’s case if the Commissioner had known Mr Iverson wanted something commenced in the AIRC but there were reasons why it was not done. This is not something I realised at the time because at the time I did not see it as a default, rather I believed I was protecting Mr Iverson and not able to disclose what I had seen in Mr Iverson. I believed that the evidence as adduced met the tests of the authorities for an extension of time to be granted. 151. … It was my view at the time that engaging with Mr Iverson while he was unwell, notwithstanding his faxes, would have been dangerous and against his interests. I did not set out to mislead the Commissioner. I did not seek to paint a picture in my submissions that was at variance with the facts, as I knew them to be. I appreciate from reading Commissioner Rafaelli’s judgement that the Commissioner interpreted my submissions at paragraph 33 to mean that Mr Iverson instructed his solicitors to commence proceedings once he was strong enough to do so in September 1999. That finding shows how the Commissioner understood my submissions. It was not my intention to encourage or persuade the Commissioner to come to that conclusion. I did not set out to do so. Particulars of Charges 57 The allegation in the Application that the Barrister made knowingly misleading statements to the AIRC is particularised in the Application by the assertion that “the Barrister sought to explain the delay in the lodgement of the application by reference to severe emotional and physical trauma experienced by the client following the termination of his employment” and that “the Barrister knew, and it was the case, that a substantial reason for the delay in the lodgement of the application was the conduct of the Barrister, with whom the client had been in continuous contact since the termination of his employment on 28 April 1999, from whom the client had repeatedly sought legal advice, and to whom the client had given instructions to file an application for reinstatement in the Commission”. 58 It is also alleged that “the Barrister did not seek to place before the Commission, or have his client place before the Commission, any material in relation to the Barrister’s own role in the delay in the lodgement of the client’s application for reinstatement”. Complaints then followed as to deficiencies in the draft affidavit prepared by the Barrister principally on the basis that the affidavit “made no reference to the client’s repeated attempts to have his legal representatives file an application in the Commission” and “contained no reference to the circumstance, of which the Barrister was aware, that on 30 August 1999 the client first became aware of the statutory period of 21 days for lodgement of an application for reinstatement”. 59 The second principal ground of complaint against the Barrister appearing in the application relates, as pointed out above, to an alleged failure by the Barrister to advance and protect his client’s interests in the matter before Commissioner Raffaelli. The particulars for the first ground are repeated and it is also alleged that “the Barrister knew or ought to have known, and it was the case, that the prospects of success of the client’s application for an extension of time would be significantly enhanced if there was material before the Commission as to the role of the client’s legal representatives in the delay”, that “at no time did the Barrister advise the client that the client’s attempts to have his legal representatives file an application for reinstatement, and the circumstances in which the client became aware of the statutory period of 21 days for lodgement of an application for reinstatement, could or should be disclosed in his affidavit, or be the subject of submissions to the Commission” and that “at no time did the Barrister advise the client that the Barrister bore substantial responsibility for the delay in filing the client’s application for reinstatement, and that this was a matter that should be before the Commission, thereby placing the Barrister’s own interest in avoiding exposure of his dilatory personal attention over his duty to put his client’s application for an extension of time as well as possible”. Findings as to Barrister’s conduct 60 We have already said earlier that we accept Mr Iverson’s account of his dealings with the Barrister but it is necessary still to make findings as to the Barrister’s state of mind in the relevant period. We now proceed to do this. 61 We accept that when the Barrister saw Mr Iverson on 30 April 1999, two days after Mr Iverson’s employment by Qantas had been terminated, the Barrister was, as he has asserted, concerned about Mr Iverson’s mental condition, the possibility of him committing suicide and the possibility that a court application might exacerbate his condition (for example see paragraphs 17 and 22 of his letter of 10 October 2004 quoted in paragraph 54 above). This conclusion is supported by Mr Iverson’s diary entry for 2 May 1999 (see paragraph 14 above) in which he recorded concern being expressed by the Barrister about “litigation anxiety” and that Mr Iverson should be “100% psychologically fit” for the prospective case. Further, the entry for that day quoted at paragraph 15 records Mr Iverson’s suicidal thoughts at that time and it can readily be concluded that, expressly or impliedly, Mr Iverson’s state of mind was communicated to the Barrister during their telephone conversation on that day and/or at the meeting they had two days earlier. 62 We cannot however accept that the Barrister’s conduct thereafter in not causing Mr Vouroudis to file an application for reinstatement and (later) an application for extension of time was motivated by these considerations. 63 We say this, first, because the communications, which we have found, the Barrister made showed a contemplation on his part from at least 11 May 1999, that an application would be filed, (when the matter might be brought to hearing perhaps being a separate question). As to this, we refer to paragraph 18 above. 64 Further, on 10 June 1999 the Barrister apologised for “the delay” and gave his busyness as an excuse (see paragraph 23 above). This comment of the Barrister conforms with his statement in paragraph 24 of his letter of 10 October 2004 (see paragraph 54 above) that “in mid-1999 I had a period during which I was grossly overloaded with court work”. Additionally, on 2 July 1999, the Barrister spoke to Mr Iverson of wanting to get his case “up and running” (see paragraph 26 above). 65 Secondly, on many occasions in the period from 28 April to 30 August 1999 Mr Iverson expressly or impliedly made it clear to the Barrister that he wanted proceedings commenced on his behalf. On our count there were 13 such occasions (see paragraphs 10, 13, 16, 17, 19, 20, 21, 22, 24, 25, 26, 27 and 28 above). Yet on Mr Iverson’s evidence, which we accept, the Barrister did not, at least after 2 May 1999, indicate that his view was that proceedings should not be commenced until Mr Iverson’s mental condition improved. 66 We cannot accept it as credible that the Barrister held that view but did not communicate it to Mr Iverson in response to the very clear express and implied instructions emanating from Mr Iverson. Rather, the explanation for proceedings not being commenced is, we conclude, to be found in the Barrister’s dilatoriness and distraction by other work. 67 We accept Mr Iverson’s evidence that it was not until he was told by a former colleague’s lawyer on 30 August 1999 that he was aware that there was a 21 day time limit on lodgement of his application. Earlier knowledge of that would in our view be inconsistent with the tenor of his diary entries and his communications with the Barrister. Mr Iverson’s meticulousness and his concern about his prospective proceedings against Qantas would in our view have inevitably led to some reference to that time limit being made earlier in his diary entries and/or in his communications with the Barrister if he had been aware of that matter prior to 30 August 1999. 68 The Barrister said he believed that he raised the extension of time issue with Mr Iverson before 30 August 1999 (paragraph 23 of his letter of 10 October 2004 quoted in paragraph 54 above and in paragraph 105 of his principal affidavit quoted in paragraph 55 above) but was unable to give any details. For the reasons given in the previous paragraph, we do not accept that he did do that. 69 The comments made by the Barrister to Mr Iverson as quoted in paragraphs 35 and 37 above reflected his appreciation of the obvious fact that for the purpose of obtaining an extension of time to make an application for reinstatement it would be appropriate, if not necessary, to explain the delay which had occurred. 70 The draft affidavit of Mr Iverson prepared by the Barrister (see paragraph 39 above) gave a most misleading description of the events, which had occurred. Whilst the references in paragraphs 31 and 35 of that draft to Mr Iverson’s anger and distress and to his thoughts of suicide had some basis (see for example paragraphs 14 and 15 above), the draft wholly omitted reference to the repeated express and implied instructions of Mr Iverson to the Barrister as to the commencement of proceedings (see paragraph 65 above). It did not attribute the delay to conduct on the part of the Barrister. 71 Even if the Barrister’s evidence in these proceedings to the effect that the reason the application was not lodged was his view that Mr Iverson was not fit to withstand the pressure and anxiety of litigation were accepted, the evidence, which the Barrister put together for the application for extension of time, was misleading in not referring to that matter. 72 A fair and accurate explanation for the delay would not have omitted reference to the repeated urgings by Mr Iverson of the Barrister to commence proceedings and Mr Iverson’s contention (which we have found to reflect the fact) that he was unaware of the statutory period of 21 days for lodgement of an application for reinstatement until 30 August 1999. 73 The same conclusions as to the misleading nature of the explanation for the delay are applicable to the Barrister’s presentation of the application for extension of time to Commissioner Raffaelli sitting in the AIRC. The matters referred to above in paragraphs 70 to 72 were not put before the Commission, with the result that the Commission was given a most misleading picture of what had occurred. 74 Further, the interests of Mr. Iverson, the Barrister’s client, were severely prejudiced because what was relied upon did not constitute an acceptable explanation for the delay. Arguably, it did not provide an explanation at all. 75 What was put forward by the Barrister, both orally and through the affidavit of Mr Iverson, is said by the Barrister to have been intended to suggest to the Commission that Mr Iverson was for the period of delay medically unfit to cope with the pressure and anxiety of litigation. However, the way in which the rather amorphous case to this effect was liable to be understood, and was in fact understood by Commissioner Raffaelli (see paragraph 45 above), was that it was being contended that Mr Iverson was for the relevant period unable to give instructions to his lawyers. This was not the fact because Mr Iverson repeatedly gave clear and adamant instructions. 76 Another notable feature of the hearing before Commissioner Raffaelli was that the Barrister, in his address in chief, himself referred hypothetically to delay of an applicant’s solicitor being an acceptable explanation for delay justifying the grant of an extension of time. The Barrister’s opponent also specifically mentioned that there was “no evidence of any delay on the part of (the applicant’s) solicitors or barrister”. As well, the point was raised by Commissioner Raffaelli in the course of the Barrister’s address in reply. The question on this topic from Commissioner Raffaelli led the Barrister to include in his response a statement that incorporated within it implicit propositions that were plainly false. The statement was:
78 It follows from what we have said above that our view is that, as alleged by the Bar Association, the Barrister knowingly made misleading statements to the AIRC on 22 December 1999. This conclusion is not solely founded upon the particular statement made by the Barrister quoted in paragraph 76 above. It is based also and more generally upon the content of the submissions put by the Barrister to the Commission, which presented a misleading explanation for the delay in commencement of proceedings (see paragraph 73 above). It also follows from what we have said that the particularised matters to which we have referred in paragraphs 57 and 58 above have been established. 79 For the reasons already given (see particularly paragraphs 69 to 76 above), we find in addition that the second ground relied upon by the Bar Association has been established. That ground is to the effect that the Barrister failed to “advance and protect his client’s interests” when he appeared before Commissioner Raffaelli on 22 December 1999 (see paragraph 1 above). As well, we should note that the particulars to which we have referred in paragraph 59 above concerning the Barrister’s knowledge of the utility of additional material and the Barrister’s failure to give relevant advice to Mr Iverson have been established. The establishment of these matters follows from our more detailed findings above as to the factual circumstances, which occurred. 80 The particulars of the second ground which we have quoted above in paragraph 59 include the allegation that the Barrister placed his “own interest in avoiding exposure of his dilatory personal attention over his duty to put his client’s application for an extension of time as well as possible”. It is implicit in this allegation that it was the Barrister’s intention to prefer his own interest in this matter. 81 We find that this aspect of the particulars has also been established. The Barrister said in paragraph 134 of his Principal affidavit in these proceedings (see paragraph 55 above) that he did not see how he could place his “opinion or judgment before the AIRC”. He said that he thought he “could not be a material witness and the advocate”. What the Barrister chose to do was to retain his role, as Mr Iverson’s advocate in the case and to avoid exposing his dilatory conduct, in preference to placing material before the Commission, which he cannot have failed to appreciate, was significant. He knew the material was significant because it constituted the true explanation for the delay, which the Barrister sought to explain in a misleading fashion. As his submissions to the Commission indicated, he was well familiar with the fact that an application for extension of time could be based upon delay attributable to an applicant’s legal representatives. We find the conclusion that the Barrister knowingly preferred his own interests inescapable. Characterisation of the Barrister’s conduct 82 The conduct of a barrister constitutes professional misconduct if the conduct “would reasonably be regarded as disgraceful or dishonourable by his professional brethren of good repute and competency” (Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 and decisions such as The Council of the New South Wales Bar Association v Sahade [2007] NSWCA 145 at [54]). We have no hesitation in concluding that the conduct which we have found established, amounting to a breach of the Barrister’s duty of honesty and candour to the court (as to which see Kyle v Legal Practitioners Complaints Committee (1999) 21 WAR 56) and an intentional preferring of his own interests over those of his client, would be regarded by the Barrister’s colleagues of good repute and competency as both disgraceful and dishonourable. We accordingly conclude that the Barrister has engaged in professional misconduct in the respects alleged by the Bar Association and as identified in paragraph 1 above. Legal Profession Act 2004 83 The complaints giving rise to these proceedings were made by the Legal Services Commissioner to the Bar Association on 25 February 2002. This was prior to the commencement of the Legal Profession Act 2004 on 1 October, 2005. 84 Proceedings in this Tribunal were not however commenced until after the commencement of the 2004 Act. 85 As a result, Chapter 4 of the 2004 Act applies to these proceedings subject to the caveat that the Tribunal may not make any determination or order of a disciplinary nature that is more onerous than could have been made under the Legal Profession Act 1987 (paragraph 16, Schedule 9, of the 2004 Act). 86 The application to the present proceedings of the 2004 Act rather than the 1987 Act is not of significance as the conclusions at which we have arrived are based upon the general law concept of professional misconduct which is a concept applicable under both the 1987 Act and the 2004 Act. Orders
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