1 On 15 June 2009, the Tribunal made the following orders:

(a) An order that the name of the Barrister be removed from the local roll.

(b) An order that the Barrister’s local practicing certificate be cancelled.

(c) An order that the Barrister pay the Bar Associations’ costs of the proceedings in the Tribunal.

2 At that time, we indicated that we would publish later our reasons for making these orders. We do so now.

The Earlier Hearings and Findings

3 On 23 September 2008, after hearings extending over 6 days in February and August 2008, the Tribunal handed down its decision, NSW Bar Association v Butland [2008] NSWADT 120, in relation to three applications for original decision (file numbers 072012, 072013 and 072014) and one amended application for original decision (file number 072046) brought by the Council of the NSW Bar Association (the ‘Bar Association’) against a Barrister, Jan Peniston Butland (the ‘Barrister’).

4 With the agreement of the parties, those reasons for decision dealt only with the question of whether the Barrister had been guilty of professional misconduct or alternatively unsatisfactory professional conduct as alleged in each of those matters. The question of the appropriate orders to be made was to be left to a further hearing.

5 In those reasons for decision referred to above, we concluded that the Barrister was guilty of professional misconduct in respect of the conduct alleged in the Client 1 matter, the 16 November 2005 letter matter, the Client 3 matter and the Bar Association investigation matter (using the designations adopted in those reasons for decision). In addition, we concluded that he was also guilty of unsatisfactory professional conduct in respect of the matters alleged in the Client 2 matter. The actual order made on 23 September 2008 was simply that the proceedings be listed for directions at a specified time and date for the purpose of fixing a date for a hearing on the appropriate orders to be made. The matters were eventually listed for hearing on 15 June 2009.

The Instrument of Consent and the Making of the Orders

6 Prior to that hearing, on 2 June 2009, the parties informed the Tribunal that they and the Legal Services Commissioner had reached agreement in principle as to the dispositive orders to be made and that it was proposed to tender an Instrument of Consent pursuant to s.564 of the Legal Profession Act 2004 (NSW). When the matter came before us on 15 June 2009, an Instrument of Consent was, by leave, filed during the hearing.

7 The Instrument of Consent was signed by the legal representatives of the Bar Association and the Barrister as well as by the Legal Services Commissioner.

8 The Instrument of Consent was in the following terms:

The Application

By way of application for original decision filed in proceedings 072012 and 072013 on 10 April 2007, in proceedings 072014 on 12 April 2007 and in proceedings 070246 on 7 December 2007 the applicant sought the following orders:

1. That Jan Peniston Butland is guilty of professional misconduct.

2. In the alternative to 1, that Jan Peniston Butland is guilty of unsatisfactory professional conduct.

3. Such further or other orders as are provided for in s.562(2)(a)-(e) or s.562(4)(a)-(j) or the Legal Profession Act 2004 as the Tribunal thinks fit.

4. That Jan Peniston Butland pay the applicant’s costs of the proceedings.

5. Liberty to apply.

The Reply

6. By way of Reply to an Application filed in proceedings 072012, 072013 and 072014 on 8 August 2007 and in proceedings 072046 on 5 February 2008 the respondent:

(a) Said he was not guilty of professional misconduct;
(b) Admitted that he was guilty of unsatisfactory professional conduct;
(c) Provided ‘particulars’ of his conduct;
(d) Agreed to the Tribunal making orders identical to the current conditions placed upon his practice certificate by the applicant on 5 April 2007 and any other appropriate and reasonable conditions, provided that his right to practice is retained;
(e) Sought orders that each party pay his and its own costs of the proceedings.

Agreed Facts

7. Following hearing of the proceedings on 25-27 February 2008 and 27-29 August 2008 the Tribunal published its reasons for decision.

8. The parties agree that the relevant facts and findings are those set out in the reasons for decision published 23 September 2008.

Consent to Orders

9. The respondent consents to the Tribunal making orders under Part 4.8 of the Legal Profession Act 2004 without completing any further hearing.

10. The Legal Services Commissioner, the applicant and the respondent have agreed on the terms of this Instrument of Consent.

11. The Commissioner, the applicant and the respondent agree to the Tribunal making the following orders:

(a) An order that the name of the respondent be removed from the local roll;

(b) An order that the respondent’s local practicing certificate be cancelled;

(c) An order that the respondent pay the applicant’s costs of the proceedings in the Tribunal.

9 Section 564 of the Legal Profession Act permits the Tribunal to make orders under Part 4.8 of that Act without conducting or completing a hearing in relation to the matter. The section relevantly provides:

(1) The Tribunal may, with the consent of the Australian Legal Practitioner concerned contained in a written instrument, make orders under this Part without conducting or completing a hearing in relation to the complaint.

(2) Consent may be given before or after the proceedings were commenced in the Tribunal with respect to the complaint.

…

(4) This section does not apply to consent given by the Practitioner unless the Practitioner, the Commissioner and, if applicable, the relevant Counsel have agreed on the terms of an Instrument of Consent.

(5) Without limiting what may be included in the Instrument of Consent, the Instrument is to contain an agreed statement of facts (including as to the grounds of complaint) and may contain undertakings on the part of the Practitioner.

(6) The Instrument of Consent must be filed with the Tribunal.

…

(9) The Tribunal is to be constituted in the same way as for the conduct of a hearing into the complaint.

(10) In deciding whether to make orders under this Part pursuant to an Instrument of Consent, the Tribunal may make such enquiries of the parties as it thinks fit and may, despite any such consent, conduct or complete a hearing in relation to the complaint if it considers it to be in the public interest to do so.

10 We are satisfied that the Instrument of Consent is one to which s.564 applies. We also accept that the incorporation by reference of the Tribunal’s relevant facts and findings from its earlier reasons for decision satisfies the requirement of s.564(5) that the Instrument of Consent contain “an agreed statement of facts (including as to the grounds of complaint)”. It would have been inefficient and was unnecessary for the complete reasons for decision or even a summary of them to be physically included in the Instrument of Consent. Incorporating them by reference in the circumstances of this case where a hearing on liability had already been completed and reasons for decision had been delivered was appropriate. As noted above, the instrument was filed with the Tribunal.

11 After the filing of the Instrument of Consent, no further evidence was adduced by either party but the parties made oral submissions on the appropriate orders and the procedures that might be adopted in the light of the Instrument of Consent. At that stage, the Tribunal adjourned to consider the most appropriate course.

12 Upon resuming and after hearing submissions on the course proposed to be taken by the Tribunal, the Tribunal indicated that it considered it appropriate to make the orders consented to in the Instrument of Consent immediately and to publish its reasons for so doing in the near future.

13 The orders in the Instrument of Consent and set out in [1] above were made by the Tribunal on 15 June 2009.

14 We set out in the following paragraphs the reasons why we considered these orders appropriate in the circumstances. In reaching our decision, we took into account matters including the following:

(a) the purposes to be served by making orders under Part 4.8 of the Legal Profession Act;

(b) the nature and extent of the conduct found to be professional misconduct or unsatisfactory professional conduct;

(c) the Barrister’s mental condition;

(d) the Instrument of Consent;

(e) other relevant circumstances.

The Purpose of Orders Under Part 4.8

15 The making of orders by the Tribunal under Part 4.8, and in particular, s.562, of the Legal Profession Act serve primarily to protect the public – Wentworth v New South Wales Bar Association (1992) 176 CLR 239 at 250-1. Further, however, these orders may be used to mark the community’s disapproval of lapses from the high standard legitimately expected by the public of legal practitioners. Moreover, it will usually follow that orders under Part 4.8 also act as a specific deterrent to the legal practitioner involved as well as a general deterrent to all other practitioners. Thus, orders under Part 4.8 also assist to maintain proper standards in the legal profession – Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 at 441, New South Wales Bar Association v Hamman [1999] NSWCA 404 at [21].

16 Having regard to these matters, where the conduct found to have been engaged in by a legal practitioner is serious, for example because it involves dishonesty and it is not a single, isolated incident, orders under s.562(2)(a) that the name of the practitioner be removed from the local roll and s.562(2)(b) that the practitioner’s local practicing certificate be cancelled may be appropriate. We take into account that this disciplinary jurisdiction remains concerned with whether the legal practitioner is a fit and proper person to be held out as such to the public - Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 at 444 and see generally at 440 – 446.

The Nature and Extent of the Conduct

17 The details of the nature and extent of the Barrister’s relevant conduct are set out in our reasons for decision published on 23 September 2008. In relation to the Client 1 matter we concluded that the Barrister had on 22 July 2005 knowingly submitted an electronic invoice claiming sums for ‘preparing court documents’ and ‘disbursements general’ to which he was not entitled. Notwithstanding the relatively modest amounts of money involved, this amounted to professional misconduct.

18 In the 16 November 2005 letter matter, we found that the Barrister had made statements to the Bar Association in his letter of 16 November 2005 which he knew to be false and, in the circumstances, we concluded that sending the letter including that material amounted to engaging in professional misconduct.

19 In relation to the Client 2 matter, we decided that the Barrister’s conduct in June 2006 in overclaiming for the time spent on a matter constituted unsatisfactory professional conduct in the circumstances.

20 In relation to the Client 3 matter, we held that for a legal practitioner to advise a client to act in a dishonest manner for the purposes of obtaining an advantage from lawful authorities is little, if at all, different from the practitioner himself so acting for that purpose. We found that the conduct which occurred in October 2004 was deliberate and constituted, in the circumstances, professional misconduct.

21 Finally, in the Bar Association investigation matter, we found that in May 2005 the Barrister made knowingly false statements to the Bar Association in the course of the Bar Association’s investigation of the Client 3 matter and that he was, as a result, guilty of professional misconduct.

22 Even from this summary of our findings, it is clear that the Barrister deliberately engaged in conduct which involved elements of dishonesty on a number of different occasions, and in various contexts.

23 Repeated conduct of this character tends to demonstrate a lack of fitness to practice as a barrister and should, in the absence of weighty countervailing considerations, attract orders such as those under s.562(2)(a) and (b) of the Legal Profession Act.

The Barrister’s Mental Condition

24 During the hearing on the issue of whether the Barrister had engaged in professional misconduct or unsatisfactory professional conduct, there was considerable evidence led as to the Barrister’s mental condition. We accepted that the Barrister had, at all relevant times, and perhaps still had, Borderline Personality Disorder. We also accepted that the Barrister’s conduct, which amounted to professional misconduct or unsatisfactory professional conduct, could be understood to have resulted, at least in part, from his Borderline Personality Disorder and, in particular, from his being more prone to act impulsively or carelessly and reacting poorly to stress.

25 In relation to all of these findings, we note that the Instrument of Consent states in paragraph 8:

The parties agree that the relevant facts and findings are those set out in the reasons for decision published 23 September 2008.

26 No new evidence or agreed facts have been put before us which would establish that the Barrister was no longer suffering from Borderline Personality Disorder or that he was unlikely, in the future, to act impulsively or carelessly or react poorly to stress. Nor was a submission to that effect put on his behalf.

27 Indeed, the Barrister has expressly consented to the orders made and his Counsel acknowledged that the orders were appropriate for the Respondent.

28 On that basis, we do not believe that consideration of the Barrister’s previous or present mental condition would militate against making the orders consented to by the parties and the Legal Services Commissioner.

The Instrument of Consent

29 Section 564(1) and (10) of the Legal Profession Act makes plain that the Tribunal has a discretion whether or not to make orders consented to in an instrument of consent under that section. The Tribunal does not act, nor should it be seen, as merely a “rubber stamp” – see the comments of the Federal Court in a similar context in Australian Communications and Media Authority v WE.NET.AU Pty Ltd [2008] FCA 1530 at [8]. Nonetheless, the consents of the parties and the Legal Services Commissioner are matters that deserve significant weight.

30 These circumstances are similar to, and some guidance can be derived from, cases where Courts exercising regulatory or disciplinary powers are presented with joint submissions by the parties (often including the relevant regulator) as to the appropriate civil penalties and consent orders which they request the Court to make. These often occur in matters under the civil penalty regimes such as those established by the Trade Practices Act 1974 (Cth) or the Corporations Act 2001 (Cth) and involving, respectively, the Australian Competition and Consumer Commission or the Australian Securities and Investments Commission.

31 Barrett J set out the Supreme Court’s approach to consent orders in regulatory matters (including orders in relation to disqualification from management) under the Corporations Act and related legislation in Australian Securities and Investments Commission v Elm Financial Services Pty Ltd (2005) 55 ACSR 411; [2005] NSWSC 1020, as follows:-

9 The parties have, in each case, agreed the duration of the disqualification. That, however, does not absolve the court of its duty to consider the appropriateness of the penalty in the light of the agreed facts and the surrounding circumstances. This is made clear by the decisions of the Full Federal Court in NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134 ; (1996) 71 FCR 285 and, more recently, Minister for Industry Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72; [2004] ATPR 41-993 (and see, in the present statutory context, Australian Securities and Investments Commission v Vizard (2005) 54 ACSR 395). In the Mobil Oil case (at [51]) the following propositions were seen as emerging from the reasoning in NW Frozen Foods:
“(i) It is the responsibility of the Court to determine the appropriate penalty to be imposed under s 76 of the TP Act in respect of a contravention of the TP Act.

(ii) Determining the quantum of a penalty is not an exact science. Within a permissible range, the courts have acknowledged that a particular figure cannot necessarily be said to be more appropriate than another.

(iii) There is a public interest in promoting settlement of litigation, particularly where it is likely to be lengthy. Accordingly, when the regulator and contravenor have reached agreement, they may present to the Court a statement of facts and opinions as to the effect of those facts, together with joint submissions as to the appropriate penalty to be imposed.

(iv) The view of the regulator, as a specialist body, is a relevant, but not determinative consideration on the question of penalty. In particular, the views of the regulator on matters within its expertise (such as the ACCC’s views as to the deterrent effect of a proposed penalty in a given market) will usually be given greater weight than its views on more “subjective” matters.

(v) In determining whether the proposed penalty is appropriate, the Court examines all the circumstances of the case. Where the parties have put forward an agreed statement of facts, the Court may act on that statement if it is appropriate to do so.

(vi) Where the parties have jointly proposed a penalty, it will not be useful to investigate whether the Court would have arrived at that precise figure in the absence of agreement. The question is whether that figure is, in the Court’s view, appropriate in the circumstances of the case. In answering that question, the Court will not reject the agreed figure simply because it would have been disposed to select some other figure. It will be appropriate if within the permissible range.”

10 There has been some criticism of this approach as involving “platitudes”: see per Weinberg J in Australian Prudential Regulation Authority v Derstepanian [2005] FCA 1121. And in Vizard (above), the court imposed a higher penalty than that agreed by the partiers and sought by the regulator.

11 It is clear that the court is in no way constrained by the parties’ agreement and that, having made the declaration of contravention, it must exercise its discretion as to penalty. In the present case, the factual background does not, to my mind, indicate that the respective periods of disqualification proposed by the parties are inadequate. ...

32 This approach was subsequently adopted by Brereton J in Australian Securities and Investments Commission v Maxwell (2006) 59 ACSR 373, [2006] NSWSC 1052.

33 If the necessary adjustments to these principles are made to take into account the express statutory regime under s.564 of the Legal Profession Act and the particular nature of the disciplinary powers being exercised by the Tribunal, we believe they provide useful guidance as to the exercise of the Tribunal’s discretion in cases such as the present.

Other Relevant Circumstances

34 We note that, by reaching agreement with the Bar Association and obtaining the consent of the Legal Services Commissioner well before the hearing date, the Barrister had contributed to a saving of most of the two days set aside for the hearing on the appropriate orders. Agreed resolution of disciplinary proceedings utilising the regime established under s.564 of the Legal Profession Act is to be encouraged, where appropriate. This consideration favoured making the orders sought by the parties.

35 Having regard to all the facts and findings made by us in our previous reasons for decision, the Instrument of Consent and the submissions made by the parties, we did not and do not perceive that there was any additional material which should have been before the Tribunal before it could reach a decision on whether it was appropriate to make orders (a) and (b) referred to above.

Orders (a) and (b)

36 In all the circumstances, we considered orders (a) and (b) consented to by the parties and by the Legal Services Commissioner were appropriate and within the permissible range of orders that could legitimately have been made.

Order (c) - Costs

37 In addition to the orders that the name of the Barrister be removed from the local roll and that his local practising certificate be cancelled, the Instrument of Consent also proposed an order that the Barrister pay the Bar Association’s costs of the proceedings in the Tribunal.

38 Section 566(1) of the Legal Profession Act provides:

The Tribunal must make orders requiring an Australian legal practitioner whom it has found to have engaged in unsatisfactory professional conduct or professional misconduct to pay costs (including costs of the Commissioner, a Council and the complainant), unless the Tribunal is satisfied that exceptional circumstances exist.

39 The parties and the Legal Services Commissioner have consented to an order such as that required by s.566(1) and the Tribunal had no basis for concluding that exceptional circumstances exist that would make such an order inappropriate. Accordingly, the Tribunal made order (c) referred to above.

Conclusion

40 As noted in our earlier reasons for decision at [6], in respect of the Client 1 matter, the Client 3 matter and the Bar Association Investigation matter, because these all arose out of conduct occurring before the commencement of the present Legal Profession Act, we were not permitted to make an order of a disciplinary nature against the Barrister that was more onerous than that which could have been made under the previous Act, the Legal Profession Act 1987 (NSW) (the “1987 Act”). This follows from the dates on which the relevant conduct occurred and the terms of cl.17 of Schedule 9 of the present Legal Profession Act.

41 Under s.171C(1)(a) and (b) of the 1987 Act, the Tribunal could have ordered that the Barrister’s name be removed from the roll of legal practitioners (he having been found guilty of professional misconduct) and could have order that his practising certificate be cancelled, respectively. Further, under s.171E(1) the Barrister could have been ordered to pay the Bar Association’s costs.

42 On this basis, it was our view that the orders that we made under the present Legal Profession Act were not more onerous than those which could have been made under the 1987 Act.

43 For these reasons, the Tribunal on 15 June 2009 made the orders consented to by the parties and the Legal Services Commissioner without completing the hearing in relation to the complaint.