In Mendez v Trustees of the Roman Catholic Church for the Diocese of Parramatta [2025] NSWSC 912 (14 August 2025), Coleman J – sitting in the Common Law Division of the Supreme Court of New South Wales – followed the line of authority established in Meggit Overseas Ltd & Ors v Grdovic (1998) 43 NSWLR 527 (NSWCA) to the effect that the court ought set down and decide cases on the existing law. Specifically, there ought be eschewed, ordinarily, the prospect of retroactive legislative change – even if broadly in prospect, after recommendation by eminent legal bodies – which would yield a different result from that existing law. Coleman J wrote:
Background
[1] By statement of claim filed 24 July 2023, the plaintiff, Raymond Mendez, brings proceedings against the defendant alleging he suffered personal injury as a result of sexual abuse at the hands of a Father Brian Rooney. The abuse allegedly occurred in the 1980s when the plaintiff was a student at the Holy Spirit Primary School, St Clair and surrounding church grounds.
[2] The plaintiff alleges the defendant is liable in negligence but also on the basis that it is vicariously liable for the wrongdoing of Father Rooney as an agent or employee of the Diocese.
[3] In its defence filed 18 December 2023, the defendant, inter alia, did not admit to the abuse, the risk of harm alleged or that the risk of harm was foreseeable and not insignificant. It denied any breach of duty of care and denied causation. It did not admit Father Rooney was its employee or agent. The defendant denied that it was vicariously liable for the criminal acts of Father Rooney, should those acts be established.
[4] On 13 November 2024, the High Court handed down its decision in Bird v DP (pseudonym)(2024) 419 ALR 552; [2024] HCA 41 (“Bird”).
[5] In Bird, the High Court held that the concept of vicarious liability did not apply to circumstances “akin to employment”. The plaintiff accepts that he must therefore prove that Father Rooney was an employee of the defendant. Whilst it is pleaded that Father Rooney was an employee or agent of the defendant (see [23] of the statement of claim), the plaintiff accepts that as a priest, without a contract of employment, a finding of an employment relationship is unlikely (CB 3 at [6]).
[6] The proceedings have been listed for hearing on 27 October 2025 with an estimate of 7 days.
The motion
[7] By notice of motion filed 25 June 2025, the plaintiff now seeks the following orders:
(1) The hearing date of 27 October 2025 be vacated;
(2) The proceedings be adjourned to 5 February 2026 for directions;
(3) Liberty to apply on three days’ notice;
(4) In the alternative to orders 1–3 above, the plaintiff have leave to discontinue the proceedings with an order that the parties’ costs of these proceedings be costs in the cause of any further proceedings commenced by the plaintiff in this Court and otherwise no order as to costs of these proceedings save for existing costs orders already made in the proceedings;
(5) No order as to costs of this notice of motion.
[8] In support of the motion the plaintiff reads the following affidavits:
(1) Tobias Julian Tancred sworn 25 June 2025;
(2) Tobias Julian Tancred sworn 3 July 2025; and
(3) Tobias Julian Tancred sworn 12 August 2025.
[9] The defendant reads the affidavit of Jacqueline Peta Waugh sworn 11 July 2025.
…
The plaintiff’s evidence and submissions
[20] Mr Tancred deposes to the state of proposed legislative amendments, or the stated desire to amend the law, in New South Wales, Victoria and Western Australia to address the consequences of the High Court’s decision in Bird.
[21] In New South Wales, questions were raised in parliament in February 2025 as to the desirability of legislative reform to address the issue of vicarious liability. In March 2025 the Civil Liability Amendment (Organisational Child Abuse Liability) Bill 2025 (“the 2025 Bill”) was introduced as a private member’s bill to the New South Wales Legislative Council. Amongst other things, if enacted, the bill would make ss 6G and 6H of the Civil Liability Act 2002 (NSW) operate retrospectively. Those provisions were introduced by the Civil Liability Amendment (Organisational Child Abuse Liability) Act 2018 (NSW). Those provisions implemented recommendations made in the Redress and Civil Litigation Report issued by the Royal Commission into Institutional Responses to Child Sexual Abuse dealing with vicarious liability. The provisions in the 2018 amendment only operate prospectively.
[22] The 2025 Bill did not pass the New South Wales parliament.
[23] Mr Tancred also referred to the debate in the Victorian parliament about the Wrongs Amendment (Vicarious Liability) Bill 2025. That bill, if passed, would have similarly sought to address from a plaintiff’s perspective, issues arising from Bird. That legislation was also defeated on the floor of parliament.
[24] Mr Tancred wrote to the solicitors for the defendant referring to these legislative proposals. He noted that if the law was changed with the passing of the 2025 Bill, the proposed expert report the plaintiff had intended to serve with respect to the relationship between the defendant and Father Rooney would not be required. He suggested an adjournment of the hearing to await the legislative changes, or their discontinuance as is now sought in the motion. No response was received at the date the affidavit was filed and the motion now before the Court was subsequently filed.
[25] Mr Tancred also refers to the Standing Council of Attorneys-General’s (“SCAG”) proposal to consider the implications of the High Court’s decision in Bird and any consequent legislative reform. He also says he has spoken to two members of parliament who have suggested they will continue to press for legislative amendments as set out in the 2025 Bill.
[26] Mr Tancred annexes a statement from the Attorney-General of Victoria dated 18 June 2025 stating it is her priority to have her department develop options, including the introduction of legislation, to address the issues arising from the High Court decision in Bird.
[27] Mr Tancred also annexes a statement from the Western Australian government published 3 July 2025. In that statement the Western Australian government states that it intends to legislate to address the impact of the High Court decision in Bird and that it would work with SCAG to advocate for consistent national reform in this regard.
[28] In his most recent affidavit, Mr Tancred deposes that the plaintiff is presently incarcerated. He says he has spoken to the plaintiff about the impact of the High Court’s decision in Bird and the plaintiff has confirmed his instructions to seek the vacation of the hearing date.
[29] There was also before me two medical reports relating to the plaintiff, the first by consultant psychiatrist Dr Jeff Bertucen dated 24 October 2022 and the second by forensic psychiatrist Dr Alan D Jager dated 19 March 2024. The relevance of these reports was to indicate that the plaintiff has a long history of psychological problems, drug abuse and criminal offending. It is the plaintiff’s case that the issues he has, and continues to suffer from, stem from the sexual abuse he suffered.
[30] Counsel for the plaintiff submitted that the proceedings were commenced when it was anticipated by reason of the Victorian Court of Appeal decision in Bird v DP (pseudonym) and decisions in other common law countries such as the United Kingdom and Canada, that the law of vicarious liability in Australia was developing. Counsel accepted that the plaintiff “took a punt” (to use my words exchanged with counsel in submissions) that the development would expand the concept of vicarious liability to include relationships that were akin to employment.
[31] The plaintiff submits that the High Court itself in Bird stated that reform of the law with respect to vicarious liability was a matter for the legislatures. It is submitted that the material referred to by Mr Tancred indicates the named legislatures’ intention to soon address those issues by amendment to the relevant legislation. Counsel submitted that it is probable such changes will be made and, if they are, will be retrospective. That is because the 2018 amendments (which address the issue of vicarious liability) are prospective and do not solve the issue raised by Bird for historical abuse matters. It was accepted that it could not be said when those legislative changes may occur. Counsel carefully took me through the second reading speeches in the New South Wales Legislative Council with respect to the 2025 Bill and the material going to the desire of other states and SCAG to implement uniform (or at least nationally consistent) reforms to deal with the issues arising from Bird.
[32] The plaintiff submits that if the amendments are passed, they could significantly affect the resolution of the proceedings. He submits that prematurely resolving the proceedings could lead to a substantial injustice, including for the plaintiff to be shut out from potential success.
[33] The plaintiff submits that the proposals put forward in the motion before the Court mean that the plaintiff’s position is preserved and the proceedings can be heard, or recommenced, in due course. As there is no applicable limitation period, it is submitted that this effectively achieves a just outcome and alleviates the burden of the plaintiff having to run a case where the applicable law could change during or shortly after the resolution.
[34] Counsel for the plaintiff also submitted that the fact of the plaintiff being able to be released to parole in April 2026 is also relevant. If the hearing is to run when the plaintiff is still incarcerated, he submitted that it would be very difficult for counsel and solicitors to get full, proper and timely instructions from the plaintiff.
[35] Counsel for the plaintiff appropriately recognised that the path sought by way of the relief in the motion is against a significant line of authority which establishes a general principle that the role of the Court is to determine cases before it according to the existing law (see for example Meggitt Overseas Ltd v Grdovic(1998) 43 NSWLR 527 (“Meggitt”) and the other authorities referred to CB 4 at [11]). Counsel for the plaintiff submits, however, that those cases deal with expressions of general principle which may be displaced in an appropriate case.
[36] Counsel submitted that this is such an appropriate case where the Court can exercise its very broad discretion in case management having regard to the overriding purpose of the Civil Procedure Act 2005 (NSW). It is submitted that that purpose, combined with the abolition of any limitation period, means that issues of delay are of less significance in cases of this kind as opposed to cases of the type referred to in the authorities cited. Additionally, it is submitted that the evidence in this case is, for all intents and purposes, complete such that any prejudice that may be attendant upon the passing of time, fading memories and loss of records is (for the most part) crystallised.
[37] Recognising that the decision of the Supreme Court of Victoria in Taylor v Trustees of Christian Brothers[2025] VSC 25 (“Taylor”) is squarely against the plaintiff’s position, counsel submits that the proposed legislative reform is now more significantly progressed and likely than was the case when that decision was handed down. Indeed, it was submitted that the Court could conclude that it is probable that legislative reform will be introduced which will cure the vicarious liability issue arising from Bird, although it was conceded that the timing and exact nature of any such amendments is not known.
[38] Counsel submitted that the combination of the likely legislative reform and the fact that the plaintiff will not be incarcerated if the trial is vacated together make this case an appropriate one to exercise the discretion to grant the relief sought.
[39] In the alternative, Counsel for the plaintiff submitted it would be appropriate to allow the plaintiff to discontinue the proceedings but order that the question of costs of these proceedings be costs in the cause of any fresh proceedings commenced by the plaintiff. He submitted that the Court could infer that the plaintiff is impecunious having spent multiple periods of time in prison. The plaintiff would be unable to meet any costs order if made now, or later, so there was no prejudice to the defendant if the proceedings were discontinued with the order sought and decided at a later date.
[40] During submissions, when it became apparent that I was concerned with the unfairness to the defendant if order 4 in the motion was made, counsel sought to proffer a different form of that order. That was that the plaintiff have leave to discontinue the proceedings with a drop dead date set (say one year to allow the legislative reforms) by which the plaintiff must commence fresh proceedings. In terms of the costs of these proceedings, the plaintiff could bear those costs, but they would not be enforceable before the drop dead date, or determination of the fresh proceedings. I do not think this assists the plaintiff in light of the submission by his counsel that he is impecunious and could not meet any costs order in any event. If no fresh proceedings were commenced by the date set, or if the plaintiff was unsuccessful in any fresh proceedings, the defendant would potentially be left with two costs orders that could not be satisfied.
The defendant’s evidence and submissions
[41] The affidavit of Ms Waugh sets out the procedural matters that I have referred to above. She also lists the witness statements served by the defendant in answer to the plaintiff’s evidence. After referring to similar legislative proposals to that mentioned in the plaintiff’s affidavits, she noted the fact that the 2025 Bill was negatived on its second reading on 4 June 2025.
[42] Ms Waugh also attaches a communiqué from the SCAG dated 21 February 2025. Amongst other things, with respect to vicarious liability, that communiqué refers to the High Court decision in Bird and the agreement of the attorneys-general to work together to further consider the impacts of that decision and potential reform options.
[43] The defendant opposes the relief sought in the motion.
[44] The defendant refers to the line of authorities stating the general principle referred to in [35] above. It was noted that in Meggitt, the Court of Appeal overturned the primary judge’s decision to vacate a hearing on the basis of foreshadowed legislative amendments. Counsel for the defendant took me through Meggitt and authorities referred to in it. She submitted that this case does not fall out of the ordinary principle that cases should be decided on the law as it exists and not be delayed on the basis of proposed legislative reforms.
[45] Reference was also made to the decision of the Supreme Court of Victoria in Taylor referred to in [37] above. In that case, Forbes J at [7] referred to the line of authorities that states cases must be determined according to the existing law. Whilst her Honour accepted that the general principle may be displaced in an appropriate case, she was not satisfied that it was appropriate to do so in that matter noting that potential legislative change remains a matter of general application in many cases.
[46] The defendant submits that the general principle referred to should not be displaced for five reasons.
[47] Firstly, the plaintiff already pleads that Father Rooney was an employee or agent of the defendant. The plaintiff had indicated he intended to put on expert evidence on this matter. He does not wish to do so now because of the proposed legislative reforms which may mean that the cost of that expert report would be wasted. In other words, the defendant submits that the plaintiff could still pursue all aspects of his claim but does not want to incur the costs associated with doing so.
[48] Secondly, the defendant submits any legislative changes are entirely speculative both in terms of their nature (and therefore whether they will assist the plaintiff) and their timing. In this regard, the defendant made reference to the Royal Commission Report, referred to at [21], which did not recommend retrospective changes to any extension of the principles of vicarious liability. Additionally, the 2025 Bill referred to by the plaintiff did not pass the NSW Legislative Council on its second reading. As noted, neither the nature nor the timing of any legislative changes being discussed at SCAG are known.
[49] Thirdly, the plaintiff pleads his claim against the defendant on other bases, including agency and breach of a non-delegable duty of care. These aspects of the claim are ready to proceed. In terms of the timing of the filing of the statement of claim, counsel submitted that the submission by the plaintiff that the law of vicarious liability was developing and could have been anticipated to include “akin to employment” situations goes nowhere because it also pleads that the defendant is liable on other bases not impacted by the decision in Bird.
[50] Fourthly, the defendant submits that whilst there is no limitation period applicable to the plaintiff’s claim, bearing in mind the overriding purpose of the Civil Procedure Act — the just, chick and cheap resolution of proceedings — the matter should not be delayed. Witness statements have been served, but not tested in cross-examination, and there remains a risk of prejudice from an impoverishment of the evidence by reason of delay.
[51] Fifthly, litigation does pose a strain on litigants and witnesses. Several of the witnesses to be called by the defendant have had significant allegations made against them and any delay would serve to only accentuate the strain on those witnesses.
[52] With respect to the plaintiff’s alternative prayer for relief, namely, that the proceedings be discontinued with no order as to costs until any further proceedings have been resolved, the defendant submits that the usual rule where a plaintiff discontinues proceedings is that the costs of the defendant should be paid: UCPR 42.19 (2). Additionally, the plaintiff does not specify a time in which any further proceedings, the outcome of which would determine the cost of these proceedings today, should be brought. This would mean the defendant bears its own costs unless and until at some unspecified day in the future the plaintiff commences further proceedings. Even if a drop dead date was set, if the plaintiff was impecunious the defendant could not recover any costs.
[53] The defendant submits that the plaintiff has not discharged the burden of establishing any positive ground or good reason for departing from the ordinary course. It submits the plaintiff commenced these proceedings knowing that the common law with respect to vicarious liability was still developing. The defendant submits the notice of motion should be dismissed
Determination
[54] In my opinion, the submissions of the defendant should be accepted. I do not consider that the plaintiff has established a good reason to depart from the long line of authorities which establish that a court is to determine cases according to the existing law.
[55] Reference has been made to the decision of the New South Wales Court of Appeal in Meggitt. In that decision, Mason P found that a trial judge had erred in vacating the trial so that a plaintiff could avail itself of proposed legislative changes which would reform damages available for dust diseases. The relevant parts of that decision, and related authorities were summarised by Forbes J in Taylor where from [7]–[9] her Honour said:
7. There is a long line of authority establishing the general principle that the role of the Court is to determine cases according to the existing law. The comments apply whether the contemplated changes derive from a court appellate process or a legislative process. In Meggitt Oversesas Ltd v Grdovic, Mason P found that a trial judge had erred in vacating a trial so that a plaintiff could rely on proposed legislative changes to reform available damages for dust diseases. It was argued that proceeding to trial before the foreshadowed amendments would seriously prejudice the plaintiff. In finding that the trial judged had erred in exercising this discretion, his Honour said:
In my view, the discretion miscarried. The learned judge erred in taking into account the prospect of legislative amendment as a controlling factor in the decision granting the adjournment. The error was compounded by the apparent intent that the hearing date will, as presently advised, be deferred until the amending legislation is passed and the plaintiff becomes thereby entitled to take advantage of it.
8. The announcement of a decision to introduce particular legislation, and any retrospective operation of such legislation, may impact pending proceedings. But, as Mason P went on:
Does the announcement qualify in any way the judicial branch’s obligation to uphold the existing — I emphasis the word “existing” — law? And does it enliven a power to grant a contested adjournment of proceedings fixed for hearing so as to enable one party to gain the benefit of proposed legislation to the detriment of another party? The answer to each question must be a categorical “no”.
9. These comments in turn relied on a line of authority based upon the comments of Starke J:
Courts of law, however, can only act upon the law as it is, and have no right to, and cannot, speculate upon alterations in the law that may be made in the future.
[56] I do not think it necessary to canvass in detail the other decisions to which I was taken and which are referred to in Meggitt (for example Willow Wren Canal Carrying Co Ltd v British Transport Commission[1956] 1 WLR 213 [1956] 1 All ER 567 referred to in Meggitt at 532). Each of them recite with approval the general principle referred to. If there are exceptions to the application of that general principle (see for example Re Minister for Minerals and Energy; Ex parte Wingate Holdings Pty Ltd [1987] WAR 190 (“Wingate Holdings”) referred to in Meggitt at 533–534) those exceptions are distinguishable from this case. In Wingate Holdings, the relevant minister had announced in parliament his intention to introduce a bill to validate the impugned decision at the opening of parliament. The majority held that because there was a clear probability that the legislation would be passed and its curative effect known, and there was no prejudice to the respondent, the relief by way of adjournment ought to be granted.
[57] Whilst there has been some progress with proposed legislative reform dealing with the impact of Bird since the decision in Taylor, not all of it has been positive from the perspective of the plaintiff. As noted, the 2025 Bill was not passed on its second reading in the NSW Legislative Council. The Victorian bill amending the Wrongs Act 1958 (VIC) also failed to pass parliament. It appears from the materials placed before me that there may be political will to make legislative reforms with respect to the effect of Bird and the application of vicarious liability. However, those materials also recognise that such reforms, particularly if retrospective legislation is involved, require widespread consultation to relevant stakeholders and, to be most effective, national consistency. The SCAG has agreed to consider what reforms can be implemented. The timing of any further legislative reforms, either in New South Wales alone or if co-ordinated nationally through SCAG, is uncertain. So too is the nature of any such reforms (in the event they are made). Whether they would operate retrospectively is a matter of conjecture.
[58] Whilst there are other aspects of the plaintiff’s claim as presently pleaded that are ready to proceed and can be run unaffected by the decision in Bird, I do not doubt the legal and evidential difficulties the plaintiff (and all plaintiffs in historical abuse cases) may face. I say nothing about the strength or weakness of the plaintiff’s evidence to establish that the abuse occurred, as I am unaware of it. I accept that the non-delegable duty of care claim as pleaded would most likely fail in so far as it seeks to hold the defendant liable for breach of a non-delegable duty based on an intentional (and criminal) wrong committed by Father Rooney as its delegate (see, for example Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle v AA[2025] NSWCA 72 at [156]–[168] per Leeming JA with whom on this point Bell CJ and Ball JA agreed).
[59] Nevertheless, it was said by those acting for the plaintiff that there would be an amended pleading. None came forth. I infer this is because of the foreshadowing of this motion. Also, directions were sought and made for the plaintiff to serve expert evidence on the relationship between the defendant and Father Rooney in support of the pleaded claim. Mr Tancred says he has done this in other similar cases. I do not know the result of those cases if they have been decided, or whether any such expert reports were deployed in them. No such expert reports were served, it was said because if the legislative reforms were made this would involve wasted costs. It was not said that the reports could not be obtained to provide the opinions sought.
[60] I accept the defendant’s submissions that any delay of an uncertain period as proposed by the plaintiff would cause putative prejudice of the kind identified by the defendant in its written submissions. Despite the service of witness statements and the preparations for hearing that have occurred, there remains a natural decay of memories and other evidence which may support the plaintiff or be exculpatory for the defendant. Witnesses will face further delays in coming to court and giving (and being challenged on) their evidence. Even if, as the plaintiff’s counsel submitted, this prejudice is de minimis, I do not think it is an irrelevant factor.
[61] I do not consider the fact of the plaintiff being incarcerated at the time the matter is listed for hearing alters the position. The Court conducts many proceedings in both the civil and criminal jurisdictions where a party is incarcerated. In this case, appropriate orders would be made to have the plaintiff in court each day. Whilst perhaps not as convenient as if he was not incarcerated, his lawyers could confer with him before and after court. Instructions could be taken whilst he is in court.
[62] In the application of the overriding purpose of the just, quick and cheap resolution of proceedings, absent some appropriate and compelling reason, in my opinion this Court ought not tailor the timetabling of matters, or the hearing of matters once prepared, on the basis that the law may be changed by the passing of legislation at an uncertain time and in an uncertain way. This is so even if it may be thought that the proposed change in the law would result in a reform or removal of an anachronistic and arcane legal principle that in some cases may result in an injustice to one party. Parties coming to this Court either as plaintiffs or defendants are entitled to expect that the proceedings will be commenced, prepared and prosecuted according to the law as it stands. The Court will then determine the dispute between them based on the pleaded issues in dispute, making findings on the relevant and admissible evidence presented and applying the existing law.
[63] This ordinary approach can be departed from in appropriate cases in the exercise of the Court’s discretion in the management of the business before it. However, without seeking to limit the exercise of that discretion which depends on the facts of each case, in my opinion for the proper exercise of that discretion there must be more than speculation as to the timing and nature of any proposed changes to the law.
[64] It was acknowledged by counsel for the plaintiff that he took a risk and commenced the proceedings at a time when it was thought that the law with respect to vicarious liability was developing to include relationships that were “akin to employment”. In other words, it must have been accepted that at the time the statement of claim was filed that the pleading with respect to vicarious liability would face (perhaps insurmountable) difficulties unless that development occurred. The High Court has unequivocally rejected the development in the law the plaintiff hoped for. His pleading, with the other asserted bases of liability mentioned, can still be prosecuted — or not. That is a matter he will need to take advice on and decide based on the law as it exists.
[65] I do not consider the plaintiff has established that this case is an appropriate one to depart from the usual rule that the proceedings are to be determined according to the law as it presently stands.
[66] The orders seeking the vacation of the hearing date must be refused.
[67] I also do not consider it would be appropriate to make the order sought by the plaintiff allowing him to discontinue the proceedings but delay the resolution of the question of costs as is proposed. As the plaintiff notes, there is no limitation period with respect to his claim and if he chooses to discontinue the proceedings (with the usual attendant costs consequences) he can commence fresh proceedings in the future. I do not see any reason why the defendant should have to bear its own costs in the circumstances of the plaintiff choosing to discontinue the proceedings on the chance that there would be, at an uncertain time, positive legislative reform and which may result in the plaintiff bringing fresh proceedings at a later date.
[68] In any event, if as counsel for the plaintiff submitted, the plaintiff is impecunious, I see no reason to make the discontinuance orders sought which may have the effect of meaning the defendant incurs additional costs that cannot be recovered.
[69] The plaintiff’s claim for relief in the motion is refused. It will be a matter for the plaintiff to take advice from his lawyers as to what, if any, next steps he wishes to take in these proceedings.
[70] I see no reason why costs should not follow the event.
ORDERS
[71] The orders I make are:
(1) The plaintiff’s notice of motion is dismissed; and
(2) The plaintiff is to pay the defendant’s costs of the notice of motion
(emphasis added)
In two recent appellate decisions of the Courts of Appeal of Western Australia and the New South Wales respectively, there was considered the admissibility of expert evidence containing, in part, factual evidence derived by the reporting and testifying expert from another source (not just an assumption of fact the expert was asked to make and which the tendering party otherwise needed to prove). Dehors the Uniform Evidence Act and the common law, the reader ought also take account – in civil causes – the provisions of the Evidence Act 1977 (Qld) ss 33 and 129A, the latter being set out further below.
In Fitzroy River Ltd Liability Company v Tucker (as Joint and Several Administrator of Yeeda Pastoral Company Pty Ltd) [2025] WASCA 118 (28 July 2025), the Court of Appeal of the Supreme Court of Western Australia addressed a ground of appeal concerning the admissibility, or alternatively weight, to be attributed to expert valuation evidence tendered at trial, pertaining to the value of certain assets. The expert evidence contained some hearsay components in relation to the comparative transactions utilised for valuation. Useful comments were made in relation to the principles pertaining to expert evidence bearing such attributes, generally and where the reports were such evidence, subject to qualification, is adduced without objection. The court (Mitchell and Vaughan JJA and Musikanth J) wrote:
…
Overview
[2] The appellant (Fitzroy) holds approximately 20% of the issued shares in Yeeda Pastoral Company Proprietary Limited (Yeeda). Yeeda runs a pastoral operation in the Kimberley region of Western Australia and is the parent company of several wholly owned subsidiaries. Yeeda’s subsidiaries include Kimberley Meat Co Pty Ltd (KMC) which owns and operates an abattoir located in the north of Western Australia (Abattoir).
[3] In late February 2024, the first, second and third respondents were appointed as joint and several administrators of Yeeda and its subsidiaries (including KMC).
[4] On 30 July 2024, Yeeda’s creditors resolved that Yeeda and its subsidiaries should enter into five interdependent deeds of company arrangement (DOCAs). The proponent of the DOCAs was the fourth respondent (TLP4). The DOCAs, which were executed on 16 and 17 August 2024, contain several conditions precedent. One of those conditions is that the court make an order, pursuant to s 444GA of the Corporations Act 2001 (Cth) (Act), for leave to transfer all issued shares in Yeeda (Shares) to TLP4.
[5] On 31 October 2024, the first, second and third respondents as deed administrators (Deed Administrators) filed originating process in the General Division of this court seeking such an order.
[6] On 1 April 2025, the primary judge made an order granting leave to transfer the Shares to TLP4 together with ancillary orders. Her Honour relevantly did so on the strength of a finding to the effect that the transfer of the Shares to TLP4 would not unfairly prejudice the interests of the members of Yeeda because there was no residual value in the Shares.1
[7] Fitzroy, which had appeared by counsel in the proceedings before the primary judge as an interested party with leave to be heard, now appeals her Honour’s orders. It advances a single ground of appeal boiling down to this: the primary judge incorrectly found that the Deed Administrators had adduced admissible evidence concerning the value of the Abattoir and impermissibly relied on such evidence in concluding that the transfer of the Shares would not unfairly prejudice the interests of Yeeda’s members. There is otherwise no challenge to any ruling or finding of fact made by the primary judge.
[8] The Deed Administrators and TLP4 each seek to uphold the primary judge’s orders on grounds not relied upon by her Honour.
Leave to appeal
[9] Fitzroy contended that it did not require leave to appeal against the orders of the primary judge. According to Fitzroy, its position was the same as the appellant in Kipoi;2 having not been a party to the primary proceedings but having participated as an interested non-party with leave to be heard under r 2.13(1) of the Supreme Court (Corporations) Rules 2004(WA).
[10] The Deed Administrators made no submissions as to whether Fitzroy required leave to appeal.
…
[28] After referring to authorities,16 engaging with the evidence,17 and addressing various alleged ‘discrepancies’ identified by Fitzroy,18 the primary judge concluded:
(1)The Deed Administrators had ‘now’ adduced admissible evidence of each of the comparable sales referred to in the Pastoral leases valuation report.19
(2)On that basis, the value of the Yeeda pastoral leases was not more than $30.25 million, and between $24.2 million and $27.225 million in a liquidation scenario.20
(3)The Deed Administrators had also adduced admissible evidence to support the conclusion in the Abattoir valuation report as to the value of the Abattoir of $7.5 million.21
(4)Consequently, the Deed Administrators had discharged their onus and proved that there was a ‘very significant’ shortfall between the assets and liabilities of Yeeda (of at least $66 million) and, therefore, there was no residual value in the Shares.22
(5)There was no reasonable prospect that the Shares would obtain some value within a reasonable period.23
…
Ground of appeal
[63] Fitzroy’s ground of appeal reads as follows:
1. The primary judge erred in law at [64]-[95] of the [Further reasons]:
(a)in finding that the [Deed Administrators] had adduced admissible evidence of the comparable sales used for the valuation of [the Abattoir] owned by [KMC], a wholly owned subsidiary of [Yeeda], sufficient to support the conclusion as to the value of the Abattoir;
Particulars
The [Productive Unit method] involves analysis of sales evidence for properties the subject of comparable transactions and comparison with the subject property.
(ii) The sale price is an essential element of the sales evidence for properties used for the [Productive Unit method] valuation.
(iii) For two of the three properties relied on for the [Productive Unit method] valuation of the Abattoir, there was no admissible evidence of the sale price.
(b)and holding that the transfer of the shares in Yeeda (Shares) would not unfairly prejudice the interests of Yeeda’s members, without adequate admissible evidence as to the value of the Shares.
Particulars
The primary judge found that the transfer of the Shares would not unfairly prejudice the interests of members of Yeeda because the Shares had no residual value.
(ii) To arrive at this conclusion, there needed to be an admissible valuation of the Abattoir which was missing.
(emphasis added)
[64] Despite the presence of the words ‘sufficient’ and ‘adequate’ in pars (a) and (b) of its ground, Fitzroy’s ground was ultimately concerned with admissibility not weight.76 That is, the appeal ground depended on a proposition to the effect that in concluding that the Shares had no residual value, the primary judge relied upon a ‘view’ about the value of the Abattoir that was ‘inadmissible in its entirety’.77
[65] Moreover, Fitzroy’s challenge was confined to the admissibility of the evidence relating to but one aspect of only two of the comparable sales referred to in the Abattoir valuation report: the sale price for each of V & V Walsh and Tabro Meats.78
Expert valuation evidence and hearsay: applicable legal principles
[66] Fitzroy’s ground of appeal falls to be considered against the backdrop of the principles which govern the admissibility of evidence about comparable sales specifically relied on by an expert in reaching an opinion as to the value of a particular asset.
[67] The principles were summarised by Megarry J in English Exporters (London) Ltd v Eldonwall Ltd,79 who concluded that such an expert may:80
(1) Express the opinions he or she has formed as to values even though substantial contributions to the formation of those opinions have been made by matters of which the expert has no first-hand knowledge.
(2) Give evidence as to the details of any transactions within the expert’s personal knowledge, in order to establish them as matters of fact.
(3) Express an opinion as to the significance of any transactions which are or will be proved by admissible evidence (whether or not given by the expert) in relation to the valuation with which the expert is concerned.
(4) Not, however, give hearsay evidence stating the details of any transactions not within his or her personal knowledge in order to establish them as matters of fact.
[68] Megarry J’s summary was referred to with approval by this court in Clack,81 with his reasons in English Exporters having previously been approved by this court’s predecessor in Pownall v Conlan Management Pty Ltd.82
[69] In Pownall, Ipp J had also highlighted the distinction between two types of hearsay in the context of expert valuation evidence involving comparable transactions: non-specific hearsay and specific hearsay. As his Honour explained:83
(1) Non-specific hearsay consists of ‘information obtained by a valuer from others, relating to particular transactions’, which forms part of the valuer’s general experience, knowledge and expertise.84 ‘Hearsay information of this kind may be used by a valuer, for example, to give a general exposition of the subject, to assess market trends, or to determine whether a particular transaction is aberrant or consistent with overall market conditions’.85
(2) Specific hearsay, on the other hand, consists of evidence of particular comparable transactions that are used to infer the value of the property that is directly in issue.86 Evidence of this kind cannot be used by the valuer unless otherwise proved by direct evidence. 87
[70] Ipp J’s reasoning was cited with approval by this court in Clack.88 The court in Clack also approved Megarry J’s earlier observations, in English Exporters, to the following effect concerning what was later termed ‘specific hearsay’:89
[D]etails of comparable transactions upon which a valuer intends to rely in his evidence must, if they are to be put before the court, be confined to those details which have been, or will be, proved by admissible evidence, given either by the valuer himself or some other way.
[71] It may therefore be accepted, as Fitzroy correctly submits, that where an expert valuer relies on specific comparable transactions to infer the value of a particular asset, those transactions must be proved:
(a) by direct evidence given by the valuer, if the valuer has personal knowledge of the transaction; or
(b) by direct evidence of another witness having such personal knowledge; and/or
(c) by admissible documentary evidence proving the relevant details of the transaction.
[72] The mere fact that an expert opinion may in part be based on inadmissible hearsay does not necessarily mean the entirety of the expert’s opinion must be rejected. As Ipp J observed in Pownall, where expert evidence ‘contains a mixture of objectionable hearsay and legitimate material, obviously there may be instances where the evidence will be trimmed, with the objectionable material being discarded so that the legitimate evidence remains’.90
[73] The relevant principles were summarised by his Honour as follows:91
(1) Expert opinion based entirely on inadmissible evidence is itself inadmissible and there is no discretion to admit it.
(2) On the other hand, where the expert opinion is based only partly on inadmissible testimony and that inadmissible testimony can readily be ascertained and discarded, the opinion should be admitted subject to weight.
(3) However, the evidence should be excluded where the expert opinion is based on a combination of admissible and inadmissible material, and it is impossible to determine:
(a) what conclusions are based on the expert’s own observations and what conclusions are based on what the expert has been told; or
(b) to what degree the expert has been influenced by the hearsay material.
[74] To the above may be added the observation that if no objection is taken to expert evidence, and such evidence is already before the court, the issue is not one of admissibility but rather one of weight,92 noting these questions will often overlap when it comes to expert evidence.93
…
[104] It follows, in our view, that the ‘evidence’ concerning the sale price relating to the V & V Walsh transaction in the Productive Unit method of valuation was legally inadmissible. The primary judge erred in concluding that Mr McKinnon’s evidence and knowledge of the V & V Walsh abattoir provided a basis for his opinion as to its productive unit rate, and in concluding that Mr McKinnon’s evidence was sufficient to prove the ‘underlying facts’ of the sale relating to the transaction for the purposes of applying the Productive Unit method of valuation.133
Tabro Meats
[105] As noted earlier, the Deed Administrators accepted there was no admissible evidence of the sale price relating to the Tabro Meats transaction.
[106] While conceding that without proof of the relevant sale price the productive unit rate for Tabro Meats was derived from inadmissible hearsay, the Deed Administrators nonetheless submitted that the opinion as to valuation based on the Productive Unit method of valuation (and the Abattoir valuation itself) was not entirely inadmissible.134 In short, the Deed Administrators contended that the information relating to Tabro Meats was capable of ‘severance’ from the report.135
[107] The difficulty with this submission is that once it is accepted the ‘evidence’ of the sale price relating to V & V Walsh was legally inadmissible, and was an ‘essential element’ of its corresponding productive unit rate, it necessarily follows there could have been no admissible evidence of that productive unit rate.
[108] That consequence, coupled with the Deed Administrators’ concession concerning the inadmissibility of the authors’ evidence of the sale price (and, therefore, also the productive unit rate) relating to Tabro Meats, means there remained only one transaction, involving an abattoir processing ‘big’ or ‘large’ stock, for which legally admissible evidence of a sale price (and therefore a productive unit rate) had been adduced: Hilltop Meats.
[109] It is in our view difficult to see how any expert adopting a method of valuation premised on ‘direct comparison’ might have reasonably considered a single transaction to be a sufficient dataset for the purposes of any reliable application of such a method.
Conclusionary remarks — ground of appeal
[110] As noted earlier, Fitzroy did not object to the reception of the Abattoir valuation report into evidence. To the contrary, then senior counsel for Fitzroy informed the primary judge, unequivocally, that there were no objections to the trial bundle.136 Mr McKinnon’s affidavit sworn 3 January 2025 verifying the Abattoir valuation report was part of the trial bundle. As such the affidavit (and the Abattoir valuation report) was received into evidence, without any objection as to its admissibility, as exhibit 23.
[111] As no objection was taken to the Abattoir valuation report, it might be thought that the only issue for this court ought to be the weight to be given to the opinion.137
[112] In this respect it is necessary to distinguish between the significance of the non-objection to the admissibility of the Abattoir valuation report for the purposes of trial and for the purposes of appeal. For the purposes of trial, it is commonly said that, once expert evidence is tendered without objection, it is admissible for all purposes.138 That can only be taken so far. The better view as to the effect of the admission, without objection, of inadmissible evidence in a civil case is that expressed by Gibbs J in Hughes v National Trustees, Executors and Agency Company of Australasia Ltd:139
There are no doubt some cases in which inadmissible evidence, having been admitted, may be treated as evidence for all purposes; for example, where one party by his conduct at the trial has led the other to believe that evidence, although hearsay, may be treated as evidence of the facts stated, and the other in reliance on that belief has refrained from adducing proper evidence, the former party is precluded from objecting to the use of the evidence to prove the facts stated. However, in general it is the duty of a judge to reach his decision on evidence that is legally admissible, and to put evidence only to those uses which the law allows. When a statement is admitted, not as evidence of its truth but simply as original evidence, the mere fact of its admission cannot enable it to be given an additional probative value which the law denies it.
See also Jones v Sutherland Shire Council,140Ritz Hotel Ltd v Charles of the Ritz Ltd141 and Auxil Pty Ltd v Terranova.142
[113] Hence why, in some cases, it is said that expert evidence — admitted without objection — can carry no weight where in fact inadmissible for want of exposed reasoning.143 This also explains why, where expert evidence is uncontradicted and not challenged in cross-examination, it nevertheless may not be accepted where the assumptions on which it is founded are not established: Hull v Thompson.144
[114] The admission at trial, without objection, of inadmissible expert evidence in a civil case has implications for the grounds that may be advanced on appeal. A trial judge does not make an error of law in accepting the tender of inadmissible evidence to which no objection is made.145 However, it may be permissible — depending on the appellant’s conduct at the trial — to contend on appeal that it was not open as a matter of law to accept the expert opinion. A ground to that effect was upheld in Kipoi in circumstances where the appellant argued at trial that ‘no weight’ should be given to purported valuation evidence because of the witness’s lack of any relevant expertise.146 Ordinarily, however, in a civil case it will be untenable for an appellant who did not object at trial to the admission of expert evidence to pursue a ground on appeal to the effect that the trial judge erred in law in admitting the expert opinion in evidence as it was inadmissible. The appellant will be bound by the conduct of its case at trial.147
[115] The point is well illustrated by the decision of this court’s predecessor in Hankinson v Brookview Holdings Pty Ltd.148 In that case an accountant gave expert evidence quantifying a claimant’s damage as a result of a breach of a contractual restraint of trade. The opinion was based on an examination of the claimant’s books and records. Those materials were not tendered at trial. At trial there was no objection as to the admissibility of the accountant’s evidence. On appeal it was alleged that the accountant’s opinion was inadmissible as the underlying facts had not been proved. In the alternative it was asserted that, if the opinion was admissible, no or negligible weight should have been placed on the opinion as it was based on hearsay evidence. Both grounds were rejected.
[116] Wheeler J (Simmonds J agreeing) referred to Suttor v Gundowda Pty Ltd149 and Coulton v Holcombe.150 It was said that, had objection been taken, it was clear from the course of the trial that the claimant would have been likely to have produced the underlying records.151 Her Honour also referred to the reasons of Gibbs J in Re Montecatini’s Patent Application.152 There, in relation to a failure to verify books and statements on which an accountant had based his views, his Honour observed that so far as a party sought to raise this as an issue on appeal ‘by failing to make early objection to the evidence … [the party must] be taken not to have insisted upon any requirement that the records be tendered or that their contents be proved in some other way’.153 E M Heenan J thought that, in the circumstances of the case, the failure to object constituted a waiver of the right to object to admissibility.154
[117] In the present case Fitzroy did not object to the Abattoir valuation report being received in evidence. However, in its initial written submissions Fitzroy contended that there were material deficiencies in the Deed Administrators’ valuation evidence such that the evidence ‘should be given very little weight’.155 Fitzroy also expressly raised a contention that Mr McKinnon did not depose to having personal knowledge of the values of the comparable properties referred to in the LAWD reports.156 And, after the primary judge raised the evidentiary issue in the Initial Reasons (albeit in the context of the pastoral leases) and the Deed Administrators were given leave to file and serve further affidavits going to the transactions referred to in the Abattoir valuation report, Fitzroy submitted that157
in relation to four of the five comparative sales referred to in the [Abattoir valuation report], Mr McKinnon does not depose to having personal knowledge of the sale, and the other evidence relied on is either inadmissible or otherwise problematic, such that it should not be accorded much, if any, weight. (emphasis added)
[118] Fitzroy made the latter submission in a context where it had also contended that ‘the remaining question for the Court is whether the [Deed Administrators] have now adduced admissible evidence of the comparable sales referred to in the [Abattoir valuation report] and the [Pastoral leases valuation report]‘158 (emphasis added). Accordingly, while at one juncture the opposition was advanced in terms of weight, it was also put in terms of admissibility.
[119] The further hearing before the primary judge was conducted on the basis that it was necessary for the Deed Administrators to address the matter from the perspective of admissibility notwithstanding the earlier admission of the Abattoir valuation report into evidence without objection. The Deed Administrators did not contest the hearing proceeding in that manner. The Deed Administrators were provided with ample opportunity to deal with the admissibility point insofar as the primary judge’s orders of 5 March 2025 permitted them to adduce further affidavit evidence.
[120] In the circumstances, while ordinarily the question of the admissibility of the underlying facts for the purpose of the Abattoir valuation report could not have sustained a successful appeal given the admission into evidence of the report without objection, we are satisfied that this is not an ordinary case. In the unusual circumstances of the present case Fitzroy’s failure to object to the admissibility of the Abattoir valuation report does not preclude it pursuing its single ground of appeal.
[121] The practical consequence of our conclusion that the evidence of the V & V Walsh sale price was legally inadmissible, coupled with the Deed Administrators’ concession that there was no admissible evidence of the Tabro Meats sale price, means that the material before the primary judge relating to those matters carried no weight at all as a matter of law.
[122] In circumstances where no weight could be attached to that evidence, where each sale price was an ‘essential element’ of the productive unit rate for each corresponding abattoir, and where no adequate dataset remained for the purposes of any reliable application of the Productive Unit method, there was in our view no evidence before the primary judge capable of supporting a conclusion as to the value of the Abattoir by application of that method. It necessarily follows that we would uphold Fitzroy’s single ground of appeal.
1Re Yeeda Pastoral Company Pty Ltd (Subject to Deed of Company Arrangement) (ACN 094 819 717) [No 2] [2025] WASC 109 (Further reasons) [106] read with [65] and [95].
2Kipoi Holdings Mauritius Ltd v Kirman and Brauer as joint and several administrators of Tiger Resources Ltd (subject to deed of company arrangement) [No 4][2024] WASCA 145[448] –[463].
…
16 Further reasons [17]-[18]: English Exporters (London) Ltd v Edonwall Ltd[1973] 1 Ch 415, Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370 and Clack v Murray[2018] WASCA 120.
90Pownall (376). For a useful illustration of this approach see Automasters Australia Pty Ltd v Bruness Pty Ltd[2004] WASCA 229[32] (Steytler J, Murray & Wheeler JJ agreeing).
91Pownall (377–378). See alsoSteffen v Ruban [1966] 2 NSWR 662 (1966) 84 WN (Pt 1) (NSW) 264, 269.
92Makita (Australia) Pty Ltd v Sprowles[2001] NSWCA 305; (2001) 52 NSWLR 705[86] (Heydon JA); Hevi Lift (PNG) Ltd v Etherington[2005] NSWCA 42[27] (McColl JA, Mason P & Beazley JA agreeing); Kipoi [542] (Vaughan JA, Buss P & Mitchell JA agreeing).
93Kipoi [542] (Vaughan JA, Buss P & Mitchell JA agreeing), referring to Lang v R[2023] HCA 29; (2023) 97 ALJR 758 [221].
154Hankinson v Brookview Holdings Pty Ltd [43] (see also [44]).
155 Fitzroy’s initial submissions filed 27 January 2025 [8] (Blue AB 102).
156 Fitzroy’s initial submissions filed 27 January 2025 [16] (Blue AB 104).
157 Fitzroy’s further submissions filed 21 March 2025 [22] (Blue AB 154).
158 Fitzroy’s further submissions filed 21 March 2025 [12] (Blue AB 150).
The second case is Netdeen Pty Ltd t/as GJ Gardner Homes v Lindfield NSW Pty Ltd (2025) NSWCA 196 (28 August 2025). There the expert report in question was an expert valuation report of a Mr Potter – an expert charactered accountant – going to the assessment of damages. The court wrote (“MBA referring to the Master Builders’ Association and “HIA” referring to the Housing Industry Association, whose published data and industry outlook material Mr Potter sourced and adopted in his report):
THE COURT: The central issue in this appeal is whether the appellant, Netdeen Pty Ltd trading as GJ Gardner Homes (Netdeen), the Franchisor under a national home building franchise known as GJ Gardner Homes, was entitled to refuse to renew a Master Franchise for New South Wales and the Australian Capital Territory granted to the respondent, Lindfield NSW Pty Ltd (Lindfield), under a Master Franchise Agreement entered into on 1 July 2014 (MFA). Related issues arise as to whether the primary judge erred in his findings as to unconscionability, repudiation of the MFA, the admissibility of expert valuation reports of Mr Michael Potter (an expert chartered accountant retained by Lindfield) and in the assessment of damages. The primary judge, Elkaim AJ, found that in refusing to renew the Master Franchise Netdeen was in breach of the MFA and acted unconscionably contrary to s 21 of the Australian Consumer Law (ACL), being Sch 2 of the Competition and Consumer Act 2010 (Cth), and awarded Lindfield damages of $20 million and costs.
…
Issue 6: Damages and admissibility of the Potter reports
As noted above, the primary judge awarded Lindfield damages in the amount of $20 million, representing what his Honour found to be the loss of the value of the renewal term. In arriving at that figure, the primary judge referred to the evidence of both Mr Potter and Mr Ross. Mr Potter had prepared expert evidence as to the valuation of the opportunity that Lindfield lost. Mr Ross was not instructed to, and in his reports did not, prepare his own valuation. Rather, he was instructed to, and did, identify what were said to be errors in Mr Potter’s reports.
As also noted above, his Honour explained in PJ2 why he rejected Netdeen’s challenge to the admissibility of Mr Potter’s reports. On appeal, by ground 29 of the notice of appeal, Netdeen challenges that evidentiary ruling. It renews its claim that the materials from the HIA and MBA relied upon by Mr Potter regarding forecasts were themselves inadmissible and could not be relied upon by Mr Potter. Netdeen also contends that if the Potter reports had been ruled inadmissible, it would not have called Mr Ross as a witness, with the consequence that there would have been no evidence to support Lindfield’s primary damages claim. (For completeness, it should be noted that, on appeal, Netdeen did not press its challenge at ground 41 of the notice of appeal to the primary judge’s alternative damages assessment at PJ3[266]-[271].)
Netdeen further contends in grounds 30 to 40 of the notice of appeal that, even if the primary judge was correct to admit the Potter reports, there were other matters raised by it below which rendered the reports an unacceptable basis for calculating the primary damages claim. Those criticisms include Mr Potter’s assumption that, for the next 10 years, there would be 35 Sub‑Franchisees, notwithstanding that he was not instructed to assume that number and there was evidence that, as at the end of May 2024, there were only 30 Sub‑Franchisees. Netdeen also points out that Mr Potter himself had acknowledged that, if his estimate was based on there being 30 Sub‑Franchisees, he would get a different result.
Netdeen also contends that, in arriving at a figure of $20 million as representing the value of the business Lindfield lost because of non-renewal, the primary judge erred in not using an annual profit figure which took into account the liability of the company to pay income tax.
Netdeen contends that the primary judge erred in not accepting Netdeen’s criticisms of the Potter reports. Paradoxically, however, it then contends that ultimately the primary judge did not in fact rely upon the Potter reports as the basis for his assessment of damages.
To the extent that the primary judge’s assessment of damages was based on Mr Ross’s evidence (as referred to at PJ3[247]-[259]), Netdeen challenges that approach on several grounds, claiming that the primary judge erred in:
misstating Mr Ross’s evidence at PJ3[248] in finding that Mr Ross “suggested that there was a simpler and alternative method of valuing the business”, being the “multiples” approach; and
not proceeding on the basis that any “multiple” had to be applied to after‑tax income and that, if a multiples approach was applied to after-tax profit, it would produce a sum substantially less than $20 million.
Lindfield defends the ruling that Mr Potter’s reports were admissible, as well as the primary judge’s quantification of damages.
Essentially there are two issues:
the correctness of the primary judge’s ruling that Mr Potter’s two expert reports were admissible; and
the correctness of the primary judge’s approach to quantification of damages.
For the following reasons, we consider that Netdeen has failed to establish any appealable error regarding the primary judge’s ruling on admissibility, but we find that his Honour’s quantification of damages is flawed.
Admissibility of Mr Potter’s two expert reports
Netdeen contends that the primary judge wrongly admitted two reports by Mr Potter, one dated 3 May 2024, which is Mr Potter’s primary report, and one dated 17 July 2024, which replies to Mr Ross’s report dated 3 July 2024.
As we have explained, two consequences are said to follow from the wrongful admission of Mr Potter’s reports. First, to the extent that the primary judge relied on Mr Potter’s reports in concluding that Lindfield’s damages were $20 million, that reliance was misplaced. Secondly, Netdeen submits that if Mr Potter’s report dated 3 May 2024 had been rejected, it would not have relied on the report of Mr Ross. Consequently, Mr Ross’s report would not have been in evidence and, to the extent that the primary judge relied on that report or oral evidence given by Mr Ross, he would not have been able to do so, with the result that there would have been no evidence before the primary judge concerning the quantification of damages and Lindfield would have failed to prove its loss.
Mr Potter’s reports were said to be inadmissible because they depended on unproven assumptions and in substantial respects were not based on his relevant expertise. To understand those criticisms, it is necessary to say something more about the valuation methodology adopted by Mr Potter.
Mr Potter was asked to prepare an expert report which “assesses the value to Lindfield of a ten-year renewal term from 1 July 2024 to 30 June 2034 (Renewal Term)”. He was asked to make several assumptions including that the “Essential Financial Arrangements between Lindfield, the Sub–Franchisees and Netdeen will remain unchanged during the Renewal Term”.
Mr Potter was also asked to adopt the following “approaches”:
“a. ‘An integer to forecast expected future cash flows over the Renewal Term will necessarily be the future volume of contracts. The volume of contracts that could be expected to be undertaken by the sub-franchisees over the Renewal Term should be based on the historical actual volume and market share obtained by reference to ABS approval data and a reasonable high and low estimated range of expected future approvals in the areas for each sub-franchisee having regard to publicly available home building industry forecast data you have been able to obtain’; and
b. ‘If, in the course of providing your opinion, you rely on any external data or assumptions, please identify that data or those assumptions’.” [footnotes omitted]
In his primary report, Mr Potter set out both historical and forecast information in relation to the house construction industry in Australia and in New South Wales and the ACT. The information in relation to Australia is taken from the IBISWorld Report, House Construction in Australia, October 2023. The information in relation to NSW and the ACT is taken largely from the August 2022 and April 2024 versions of an MBA publication titled “Building and Construction Forecasts NSW”. However, Mr Potter also says that he had regard to “ABS data as to the volume of detached house approvals granted per month from FY2019 to January 2024, by local government area (LGA)”.
Mr Potter also had regard to data provided by the HIA. He summarised the information obtained from the sources he referred to in the following terms:
“a. IBISWorld predicts an increase in housing industry revenue over the next several years, before declines in FY2029 and FY2030;
b. MBA predicts an increase in build start volume in FY2024, decline in FY2025, increases in FY2026, FY2027 and FY2028 before a decline in FY2030; and
c. HIA predicts a decline in build start volume in FY2024 followed by increases in FY2025 and FY2026.”
Mr Potter explained that in undertaking the requisite task he regarded the most appropriate methodology as a DCF (discounted cash flow) methodology. This involved estimating the expected cash flows that Lindfield would have derived from the MFA from 1 July 2024 and discounting those cash flows to obtain their present day value applying an appropriate discount rate.
In estimating cash flows, Mr Potter adopted what he described as a “bottom‑up” approach, which involved estimating the number of houses that would be built (or, more accurately, the number of slabs that would be laid) by each Sub‑Franchisee and the income (royalties less expenses) that would be earned by Lindfield from the construction of those houses.
In order to do that, Mr Potter sought to estimate the total size of each Sub‑Franchisee’s market and the expected market share of each Sub‑Franchisee. He also needed to make an assumption about the number of Lindfield’s Sub-Franchisees.
To estimate the total size of each Sub-Franchisee’s market, Mr Potter started with the historical ABS data (from which the market size for each Sub‑Franchisee area could be determined) and applied percentage increases or decreases using data available from MBA and HIA (which he preferred to “the revenue‑based outlook published by IBISWorld”). Two points may be made about Mr Potter’s approach. First, although he was instructed on the approach that he should take, it seems clear that he used his own judgment in selecting which data to use and what adjustments should be made to them. Secondly, and relatedly, it could not be said that Mr Potter made any assumption about the accuracy of the data that he chose to use. The most that could be said is that, as an expert, he considered it appropriate to use the data, making adjustments he considered relevant, to derive figures that he used in the analysis in his report.
Netdeen makes two broad criticisms of Mr Potter’s approach. First, it is said that Mr Potter assumed the accuracy of the data contained in the reports from MBA and HIA. However, the accuracy of those data could not be proved by the reports (since the reports were inadmissible hearsay and could not be admitted as business records). Consequently, Mr Potter’s reports depended upon unproved assumptions and were therefore inadmissible. Secondly, it is said that Mr Potter was not an expert in the housing market and therefore he was not qualified to express an opinion on the likely size of the market in the franchise areas over the following 10 years.
In considering these criticisms, it is convenient first to set out the relevant principles relating to the admission of opinion evidence.
Section 56 of the Evidence Act 1995 (NSW) (Evidence Act) provides:
“56 Relevant evidence to be admissible
(1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.
(2) Evidence that is not relevant in the proceeding is not admissible.”
Evidence is relevant if, if it were accepted, it “could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding” (s 55(1)).
Section 76 of the Evidence Act provides:
“76 The opinion rule
(1) Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.
(2) Subsection (1) does not apply to evidence of an opinion contained in a certificate or other document given or made under regulations made under an Act other than this Act to the extent to which the regulations provide that the certificate or other document has evidentiary effect.”
Section 79(1) creates the following exception to the opinion rule in respect of expert evidence:
“If a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.”
Pausing there, it is apparent that expert evidence is admissible if (1) it is relevant to an issue in the proceeding; and (2) it is wholly or substantially based on specialised knowledge that the expert has gained from his or her training, study or experience. If the underlying facts in respect of which the opinion is expressed are sufficiently different from the facts of the case, the opinion may not be relevant, although whether the proved facts are sufficiently different from the assumed facts to render the opinion irrelevant may itself be a matter of expert opinion. For example, the relevance of particular facts to a medical diagnosis may itself be a matter of expert opinion.
Section 135 of the Evidence Act provides:
“135 General discretion to exclude evidence
The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might—
(a) be unfairly prejudicial to a party, or
(b) be misleading or confusing, or
(c) cause or result in undue waste of time.”
An expert report which fails to comply with the principles set out in cases such as Makita at [85] per Heydon JA concerning the need of an expert to identify the assumptions on which his or her opinion is based and the expert’s reasoning may be excluded under s 135 if the requirements of that section are met.
Section 59 of the Evidence Act sets out the general principle relating to hearsay evidence. It relevantly provides:
“59 The hearsay rule—exclusion of hearsay evidence
(1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.
(2) Such a fact is in this Part referred to as an asserted fact.
(2A) For the purposes of determining under subsection (1) whether it can reasonably be supposed that the person intended to assert a particular fact by the representation, the court may have regard to the circumstances in which the representation was made.
Note—
Subsection (2A) was inserted as a response to the decision of the Supreme Court of NSW in R v Hannes (2000) 158 FLR 359.
(3) …”
The Evidence Act contains a number of exceptions to s 59. Relevantly, s 60 provides:
“60 Exception: evidence relevant for a non-hearsay purpose
(1) The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of an asserted fact.
(2) This section applies whether or not the person who made the representation had personal knowledge of the asserted fact (within the meaning of section 62 (2)).
Note—
Subsection (2) was inserted as a response to the decision of the High Court of Australia in Lee v The Queen (1998) 195 CLR 594.
(3) …”
It is well accepted that to be admissible an expert opinion itself does not need to be based on admissible evidence. The nature of the material the expert relies on will be relevant to the weight that should be placed on the expert opinion. It does not go to the admissibility of the opinion. The position was explained by the Full Court of the Federal Court (Finn, Sundberg and Mansfield JJ) in Bodney v Bennell (2008) 167 FCR 84; [2008] FCAFC 63 at [92]-[93] in these terms:
“Before the Evidence Act it was well established that experts are entitled to rely upon reputable articles, publications and material produced by others in the area in which they have expertise, as a basis for their opinions. In Borowski v Quayle [1966] VR 382 at 386 (Borowski) Gowans J, quoting Wigmore on Evidence (3rd ed) vol 2 at 784-785, said that to reject expert opinion because some facts to which the witness testifies are known only upon the authority of others, ‘would be to ignore the accepted methods of professional work and to insist on finical and impossible standards’. Experts may not only base their opinions on such sources, but may give evidence of fact which is based on them. They may do this although the data on which they base their opinion or evidence of fact will usually be hearsay information, in the sense they rely for such data not on their own knowledge but on the knowledge of someone else. The weight to be accorded to such evidence is a matter for the court: see generally Borowski [1966] VR at 385-387; PQ v Australian Red Cross Society [1992] 1 VR 19 at 34-35; H v Schering Chemicals Ltd [1983] 1 WLR 143 at 148-149; Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 161-163 and Jango (No 4) 214 ALR 608 at [8].
There is nothing in the Evidence Act that displaces this body of law. The Australian Law Reform Commission, on whose report the Act was based, said:
‘Under existing law hearsay evidence that is admissible for a non-hearsay purpose is not excluded, but may not be used by the court as evidence of the facts stated. This involves the drawing of unrealistic distinctions. The issue is resolved by defining the hearsay rule as preventing the admissibility of hearsay evidence where it is relevant by reason only that it would affect the court’s assessment of the facts intended to be asserted. This would have the effect that evidence relevant for a non-hearsay purpose — eg to prove a prior consistent or inconsistent statement, or to prove the basis of the expert’s opinion — will be admissible also as evidence of the facts stated.’
See Interim Report No 26, Evidence (1985) vol 1 at para 685.”
Although the Full Court was concerned with the Evidence Act 1995 (Cth), its comments apply equally to the Evidence Act.
The High Court in Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 at [41] adopted an approach consistent with that set out above. There, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said:
“Contrary to submissions on behalf of Mr Hawchar, this analysis does not seek to introduce what has been called “the basis rule”: a rule by which opinion evidence is to be excluded unless the factual bases upon which the opinion is proffered are established by other evidence. Whether that rule formed part of the common law of evidence need not be examined. It may be accepted that the Law Reform Commission’s interim report on evidence denied the existence of such a common law rule and expressed the intention to refrain from including a basis rule in the legislation the Commission proposed and which was later enacted as the Evidence Act 1995 (Cth) and the Evidence Act 1995 (NSW). What has been called the basis rule is a rule directed to the facts of the particular case about which an expert is asked to proffer an opinion and the facts upon which the expert relies to form the opinion expressed.” (footnotes omitted)
That approach was applied by this Court in Cambridge v Anastasopoulos [2012] NSWCA 405. That case relevantly concerned the value of a motorboat. In finding that expert evidence given by the witness Captain Kysil was inadmissible, Meagher JA (Barrett JA and Sackville AJA agreeing) said at [40]:
“In cross-examination, Captain Kysil said that he had searched a number of websites to inform himself about the Donzi motorboat. That he did so was consistent with his having no relevant training, study or experience to express a view about the correct description of the vessel or as to its rarity. He explained that his conclusion that the vessel “may be rare” was due in part to the fact that the “information [he] received off the Internet was insufficient to give … a more fulsome research background on the boat because there was insufficient evidence of the type of boat I was looking for” (Black 580). Captain Kysil did not identify or adopt as correct any information obtained from any particular website. Nor was it suggested or established that any of the websites to which he referred were sources of information which experienced valuers of Donzi motorboats treated as reliable and used when forming opinions as to value: as to the possible admissibility of such information, see English Exporters (London) Ltd v Eldonwall Ltd [1973] Ch 415 at 420; PQ v Australian Red Cross Society [1992] 1 VR 19 at 34-36; R v Fazio (1997) 69 SASR 54 at 63-64; Woods v Director of Public Prosecutions [2008] WASCA 188; 38 WAR 217 at [55]-[58]; Bodney v Bennell [2008] FCAFC 63; 167 FCR 84 at [92]-[93].”
See also Fuller v Avichem Pty Ltd (t/as Adkins Building & Hardware) [2019] NSWCA 305 at [89] (Payne JA, White JA agreeing).
It may be accepted that the reports from the MBA and HIA were hearsay and were inadmissible to prove the truth of the data they contained. However, the question was not whether the reports from the MBA and HIA were admissible. Rather, it was whether Mr Potter’s evidence was admissible because he relied on those reports. For the reasons given, they were. What made the reports from the MBA and HIA admissible was that they were part of the material relied on by Mr Potter to form his expert opinion, with the result that they were admissible under s 60 of the Evidence Act (see Malone v Queensland (No 3) [2022] FCA 827 at [58] per O’Bryan J).
It was not disputed that the valuation of the cash flows of a business is an area of specialised knowledge that Mr Potter had. In considering whether the opinion expressed by Mr Potter was based wholly or substantially on that specialised knowledge, it is important to bear in mind what Mr Potter did. Mr Potter was required to value the future cash flows that Lindfield would derive from the MFA had it been renewed for a period of 10 years. In order to value those cash flows, Mr Potter selected a particular valuation methodology that required him to reach conclusions about the likely size of the market for home building in various geographic areas. In order to do that, he identified what he considered to be the most relevant publicly available data and derived predicted increases (or decreases) in the size of the market over time using those data. The adjustments he made did not depend on his own knowledge of the relevant markets but rather on the adjustments that he thought were appropriate having regard to the different industry data and the fact that the industry data only covered some of the years in question.
In essence, then, Mr Potter relevantly did the following:
He selected the appropriate valuation methodology.
He selected the appropriate industry data to rely on.
He decided how to use that data and how to extrapolate from the data he had to derive figures for the 10 years.
He performed the necessary calculations.
The tasks referred to in (1) and (4) were plainly within Mr Potter’s specialised knowledge. Although perhaps not as obvious, the same is true of the tasks referred to in (2) and (3).
In the case of (2), it is to be expected that a valuer would have general knowledge of the sources of publicly available data, or how to go about finding the sources of publicly available data, relevant to general business activity, such as information about interest rates, inflation, employment and economic growth. Housing construction is such an important area of economic activity, that the same is true of it. Mr Potter gave unchallenged evidence that he had done “a number of analyses and reports in [the house building] industry” and that the reports that he identified were “widely used”. The same reports were used by Mr Ross; and it was not suggested that there were more reliable industry data.
As to (3), those tasks involved a combination of what might be thought of as common sense – for example, averaging the figures obtained from the HIA and MBA reports – together with specialised knowledge concerning appropriate projections that can be made from historical and industry data. They did not depend on detailed knowledge of the house building industry as such but on expert accounting and valuation knowledge on what conclusions can reasonably be drawn from industry specific data. They are the types of tasks undertaken by valuers both in projecting the future income of a business and selecting an appropriate discount rate.
It follows that the primary judge was correct to admit Mr Potter’s reports. It is unnecessary, therefore, to consider what the position would be in relation to Mr Ross’s report or the evidence he gave if Mr Potter’s primary report had not been admitted.
In addition there ought be kept in mind, in this regard, the provisions of the Evidence Act 1977 (Qld) which, relevantly, provides:
129A Order that evidence may be given in a different way
(1) This section applies in a proceeding that is not a criminal proceeding if either—
(a) the fact in issue is any of the following—
(i) the proof of handwriting;
(ii) the proof of documents;
(iii) the proof of the identity of parties;
(iv) the proof of authority; or
(b) a court considers—
(i) a fact in issue is not seriously in dispute; or
(ii) strict proof of a fact in issue might cause unnecessary or unreasonable expense, delay or inconvenience in a proceeding.
(2) The court may order that evidence of the fact may be given at the trial, or any other stage of the proceeding, in any way the court directs.
(3) Without limiting subsection (2), the court may order that evidence of a fact be given by—
(a) a statement on oath of information and belief; or
(b) the production of documents or entries in records; or
(c) the production of copies of documents or copies of entries in records.
(4) The court may at any time vary or revoke an order made under this section.
See also s 92 of the Evidence Act.
Betty Quelhurst: The convenience store, Breakfast Creek 1955
The above Exhibition is on display at GOMA until January, having commenced in early August, comprising a collection of paintings, sculpture and photographs of Queensland from 1930 to 1960.
For the reader, it represents a nostalgic snapshot of Queensland – not just Brisbane, but Queensland a as a whole – apropos of that important period in the State’s social and economic development.
Included are works by Charles Blackman, Ray Crooke, Margaret Cilento, Max Dupain, Vida Lahey, Daphne Mayo, Sidney Nolan, Margaret Olley, Betty Quelhurst and Joy Roggenkamp.
Vida Lahey: Sultry noon [Central Station, Brisbane] 1931
The Exhibition booklet is well worth the cost. In a Foreword thereto, instructively, Chris Saines, the director of the Queensland Art Gallery – Gallery of Modern Art – says of the Exhibition:
The Queensland sun not only sustained the state’s flourishing rural and agricultural industries, but also fostered a new urban artistic milieu, not least in Brisbane. European modernism, which spanned the late-nineteenth to mid-twentieth centuries, was an artistic response to the period’s astonishing rate of industrialisation, urbanisation and technological change. The first seeds of Australian Modernism, however, were planted later and from a distance by a small group of artists who travelled to Europe, mainly France and England, in the early years of the twentieth century. Working in the progressive European schools and academies of the time, such as the Slade School of Fine Art in London and the Academie de la Grand Chaumiere in Paris, artists learned to reject tradition and to strive for more dynamic simplified and subjective responses to the modern era. The movement would not take root in Queensland until after World War Two.
The Exhibition attendee can spend 30 minutes or a couple of hours enjoying the delights of this exhibition. Barristers practising in Brisbane – with chambers on or near North Quay – can readily access GOMA across the Kurilpa Bridge at lunchtime with 5 minute walk, and be back in time for afternoon conferences. Entry is free.
The writer recommends a visit, if not at lunchtime, then at the weekend. It is a joyous Queensland experience.
The 2024 French legal drama ‘The Thread’ (in French ‘Le Fil’) – is hardcore legal drama, albeit set more outside than inside the court room.
The outstanding French actor Daniel Auteuil plays the lead character – but he also co-wrote and directs the movie – in the legal case of an ostensible family man, with no prior convictions, who is accused of the savage murder of his spouse.
Auteuil plays Jean Monier, a criminal lawyer who has not appeared for an accused for 15 years after an earlier unsuccessful defence, leading to that accused being guillotined. On the back of that sad event, he becomes obsessed with the defence of the accused Nicolas Milik, played by Gregory Gadebois.
This reviewer – used to the adversarial system operating in countries with the legal system with genesis from the United Kingdom – is placed on edge by the French inquisitorial system, and thereby legal dramas based on the same, as is on display here. The gravamen of the latter system is an official inquiry to ascertain the truth. The latter sounds fine in theory but it is irksome to be confronted by the court being involved in active investigation of the facts of the case. So much, however, enhances the attraction of this cinema offering.
While film noir in style, for this reviewer this film is well worth the attendance fee and cost of the popcorn.
Despite being sublimely shot in and around the Draguignan courts, not far from Saint Tropez, this is a south of France few will recognise. Like the brutalist steel and concrete prisons, cul de sacs and courtrooms of its aimless characters, there’s not a lot of warmth, hope and humanity on display.
Instead of wealth, there’s poverty, instead of light there is only the cold grey of an apparently perpetual winter. Instead of (a young) Depardieu, there is only Auteuil.
Empathy, honesty, evidence and reason are notable largely by their absence. The ensuing journey through guilt and innocence is a ponderous, inevitable dice roll. Monier himself is a shadow of a man, but what a shadow.
The film was released in 2024, debuted at the 2024 Cannes Film Festival and is 115 minutes in length.
As is common in French films, there are outstanding performances by the supporting actors. Gadebois – as the accused Milik – is a sad bear of a man, conscious of the shortcomings of his deceased wife – who he vehemently denies murdering – and devoted to his family. Other notable performances are Sidse Babette Knudsen, who plays the role of Monier’s spouse and herself a lawyer, and also Alice Belaidi who plays the role of the prosecutor Adele Houri.
The movie was only released in Australia in late August this year, so can be accessed in cinemas, and no doubt upon streaming services within a short time thereafter.
25 August 2025 was the fiftieth anniversary of the release, in 1975, of the song ‘Born to Run’, and the album of the same name, by Bruce Springsteen (born 23 September 1949). The album was released by Columbia Records, and was Springsteen’s third. It features the E Street Band, his backing band since 1972.
Springsteen is a songwriter – and in many respects a poet – positioned in the sphere of heartland rock. The song is hardcore Springsteen. I defy anyone to listen to the song – on the link below – without tapping their toes and nodding their head to the beat and lyrics.
Coinciding with the anniversary, Peter Ames Carlin – who wrote an authorised biography of Springsteen, ‘Bruce’, in 2012 – this year released a shorter tome focused on the album: ‘Tonight in Jungle Land: The Making of Born to Run’. A relatively short book – of less than 300 pages – it makes for an interesting read, with much more detailed focused information on such time, and such song and album.
Carlin writes that apparently, at the time, Columbia had placed Springsteen on a list of performers that they were giving consideration to cutting. Fortunately that did not occur, but the song ‘Born to Run’ probably had much to do with that.
Writing in the New York Times on 7 August 2025, John Pareles – reviewing Carlin’s book – wrote of the making of the album:
The album was forged with idealism and fearlessly guarded amateurism. Instead of hiring proven hitmakers, Springsteen insisted on working with his own young guys: his band members and his co-producers (Springsteen’s early manager, Mike Appel, and the critic turned producer John Landau). For a year he agonised over every sound and every note, trying all sorts of alternatives, pressuring himself and the band to make a great album, take after take after take.
As they say, the rest is history. Springsteen went on to release another 20 albums and is still active performing live. The writer’s favourite album – and that of many – is ‘Born in the U.S.A.’ which was released in 1984. His next favourite is ‘Only the Strong Survive’ released in 2022.
Springsteen’s latest tour is the ‘Springsteen and E Street Band 2023-2025 Tour’.
In Di Carlo v Bar Association of Queensland [2025] QCA 143 (1 August 2025), the Queensland Court of Appeal upheld the decision of the Judicial Member of the Queensland Civil and Administrative Tribunal which confirmed a decision of the respondent to refuse to renew the applicant’s practising certificate as a barrister. The court wrote:
[1] The applicant seeks leave to appeal a decision of the Queensland Civil and Administrative Tribunal (QCAT) confirming the decision of the respondent to refuse to renew the applicant’s practising certificate.
[2] The applicant submits that leave ought to be granted, having regard to the consequences to the applicant’s ability to practice and what are said to be errors of fact and law, warranting intervention by this Court.
Background
[3] The applicant was admitted as a barrister in 1991. He practised that profession, at the private Bar, continuously from 1991 until 28 August 2024.
[4] The respondent is the local regulatory authority under the Legal Profession Act 2007 (Qld) (LPA). Relevantly, it has responsibility for the issuing of local practising certificates. A legal practitioner must be the holder of such a certificate in order to practise as a barrister. A practising certificate must be renewed for each financial year.
[5] On 28 August 2024, the respondent gave the applicant an information notice advising that the respondent had decided to suspend the applicant’s practising certificate, after being advised of the applicant’s bankruptcy.
[6] On 2 October 2024, the respondent gave the applicant an information notice advising that the respondent had decided to refuse to renew the applicant’s practising certificate for the 2024/2025 practising year.
[7] On 14 October 2024, the applicant applied to QCAT for a review of the decision to refuse to renew his practising certificate. At issue, on that review, was whether the applicant remained a fit and proper person to hold a practising certificate, and whether an order should be made requiring the respondent to issue the applicant with a practising certificate.
[8] On 9 December 2024, a Judicial Member of QCAT found that there could be no confidence that the applicant would follow the appropriate course of action in the future, nor that he could properly be entrusted to undertake the tasks that attach to the practice of a barrister in accordance with the demanding requirements under the LPA.
[9] QCAT ordered that the respondent’s decision to refuse to renew the applicant’s practising certificate be confirmed, that the applicant’s application for review be dismissed and that there be no order as to costs.
Leave to appeal
[10] Section 149 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) provides for an appeal to this Court from a decision of a Judicial Member of QCAT, in respect of errors of law. Leave to appeal is required if the error asserted is an error of fact or an error of mixed fact and law.
[11] The applicant seeks leave to appeal on 12 grounds. Some of those grounds assert errors of law only, others rely on errors of fact and/or errors of mixed fact and law.
[12] Having regard to the consequences of the decision to the applicant’s ability to practice as a barrister, in circumstances where he has been a practising barrister for in excess of three decades, the Court grants leave to appeal.
Grounds of appeal
[13] The applicant’s grounds of appeal are:
1. Ground one: the Tribunal erred in law in failing to carry out its statutory duty under section 20(2) of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) which was to conduct a review of the decision of the Respondent by way of a fresh hearing on the merits. The Tribunal failed to properly carry out a fresh hearing on the merits for three reasons:
(i) the Tribunal’s reasoning is wrong with respect to the relevant period of time during which the Applicant’s impugned conduct is said to have occurred;
(ii) the personal situation of the Applicant did not receive any adequate or rigorous analysis in the reasons for the purpose of examining circumstances of mitigation, and, indeed, explanation for errors made by the Applicant;
(iii) the Tribunal failed to consider much of the uncontradicted evidence that supported the case of the Applicant. This overlaps with ground two.
2. Ground two: the Tribunal erred in law in failing to conduct the proceedings fairly, and thus failed to discharge its duty pursuant to s 28(2) of the QCAT Act. The lack of fairness arises from the failure of the Tribunal to consider important and relevant unchallenged evidence. The Tribunal’s reasoning is also wrong in important respects and contrary to uncontradicted evidence.
3. Ground three: the Tribunal denied the Applicant procedural fairness and thereby failed to discharge its duty under s 28(3)(a) of the QCAT Act. This relates to the making of adverse and serious findings against the Applicant which he had no opportunity to deal with either in cross-examination, or by his being examined by the Tribunal (which had this power). This failure is particularly significant in circumstances where the Tribunal made adverse findings about the integrity and sincerity of the Applicant which are matters which assume particular significance in disciplinary proceedings.
4. Ground four: the Tribunal erred in law by failing to give proper consideration to whether conditions proposed by the Applicant, which were not before the Respondent on its original decision, would have been adequate to overcome alleged problems with granting him a practising certificate. This was a serious error. It also underscores the fact that the Tribunal did not conduct a rehearing on the merits.
5. Ground five: the Tribunal erred in law in its application of the principle from Wardell v the New South Wales Bar Association[2002] NSWSC 548 at [52] in its limited reference to a ‘right thinking’ person. The Tribunal adopted the notion of a ‘right thinking’ person who would look at fault but would not take a fair look at the circumstances in which faults occurred, contrary to the authorities. In so doing, the Tribunal failed to take proper account of the Applicant’s exculpating features and his personal circumstances.
6. Ground six: the Tribunal’s reasoning about the Applicant’s trip to the People’s Republic of China (China) just before he filed for bankruptcy is wrong in fundamental ways. This episode attracted serious censure from the Tribunal but its reasons about it were wrong, in not just one, but several key respects. The Tribunal erred in finding:
(i) at [64] of the Tribunal’s reasons that the Applicant never explained the purpose of his travel;
(ii) at [72] of the Tribunal’s reasons that the Applicant represented that he had filed an application for bankruptcy before he flew out of Australia on 17 August 2024;
(iii) at [80] of the Tribunal’s reasons that even by the end of the hearing before the Tribunal, ‘it seems to have escaped the Applicant’s attention that what he did was wrong’.
7. Ground seven: the Tribunal erred in its approach to the Applicant’s evidence concerning his previous contempt conviction by:
(i) misrepresenting the Applicant’s written submission at [40] that his failure to disclose his conviction and punishment for contempt was of no significance;
(ii) rejecting the Applicant’s evidence that the conviction and punishment for contempt ‘slipped his mind’ at the time of applying to renew his practising certificate, or, in the alternative, finding that the fact that it had ‘slipped his mind’ was evidence of a ‘staggering lack of regard for the significance of the conviction’.
8. Ground eight: The Tribunal’s rejection of the Applicant’s submission that the hospitalisation did not ‘cross his mind’ when he was applying for his practising certificate was unfair for three reasons:
(i) the evidence gave rise to a number of explanations for why the matter may have in fact did not cross his mind.
(ii) The Tribunal gave no regard to the Applicant’s unsworn evidence that it was not intentional and that due to his health issues he found it difficult to concentrate on his own personal affairs and prioritised his client’s interests.
(iii) The Tribunal made a finding that there was a ‘continuing lack of candour’ by the Applicant concerning the hospital confinement but the Applicant was not cross-examined about his evidence and he was therefore not afforded an opportunity to respond to this assertion.
9. Ground nine: the Tribunal erred in its approach to the Applicant’s failure to pay tax in that the Tribunal:
(i) adopted an unfair and overly simplistic approach to this matter which ignored the Applicant’s personal circumstances, the fact that he was not evading tax but had numerous voluntary interactions with the Australian Tax Office (ATO) seeking temporary relief from payment, and that he was spending a lot of money on serious criminal charges that had been brought against him, including a trial of eight days which miscarried and is in the process of being heard again. The other charges were not proceeded with against him, but it was an expensive exercise for the Applicant to defend himself;
(ii) gave insufficient weight to the repeated, genuine, and unchallenged steps taken by the Applicant to engage with the ATO.
10. Ground ten: The Tribunal erred when it found at [106] that the Applicant ‘was more fortunate than others. He did not have to deal with adversity alone’.
11. Ground eleven: the Tribunal erred at law and fact in both misconstruing and giving insufficient weight to the Applicant’s apology.
12. Ground twelve: the Tribunal erred in failing to give proper analysis to the character references filed in support of the Applicant.”
Tribunal hearing
[14] The hearing was conducted on the basis that the facts were set out in extensive affidavit material. No deponent was required for cross-examination. The parties agreed that at issue was the applicant’s reasons for having engaged in the conduct set out in the second information notice, which formed the basis for the respondent’s decision to refuse to renew the applicant’s practising certificate.
[15] It was agreed that the base facts were not in contest with the applicant’s explanation to be “examined in light of the evidence and it can be determined whether the explanation is consistent with the evidence, is contradicted by the evidence or is not supported by the evidence …”.1
[16] It was also agreed that QCAT’s role was to review the respondent’s decision and to make the correct and preferable decision. Central to that decision was whether the applicant remained a fit and proper person to hold a practising certificate. A practising certificate is not to be renewed unless the holder of that practising certificate is a fit and proper person to continue to hold the practising certificate.
Information notice
[17] The information notice given on 2 October 2024 stated that, in the opinion of the respondent, a number of matters, when viewed together, compelled the conclusion that the applicant was not a fit and proper person within the meaning of s 51(5) of the LPA. Those matters were:
(a) On 29 August 2017, the applicant had been punished for contempt of the Magistrates Court of Queensland, a fact that was a suitability matter within the meaning of s 9 of the LPA, but the applicant did not disclose it in his application to renew his practising certificate on 1 June 2018.
(b) The applicant was a defendant in civil proceedings, the trial of which had been adjourned by reason of the applicant experiencing mental health difficulties which had led to his hospitalisation on 11 May 2023, but the applicant did not disclose mental health difficulties in his application to renew his practising certificate on 28 May 2023.
(c) When the respondent became aware of the applicant’s mental health difficulties, it required the applicant to attend a health assessment by a psychiatrist who reported, among other things, that the applicant had stated that he had not had negative feedback from clients, solicitors or the judiciary, that the applicant was unaware that he had to report an episode of ill health and that his application for renewal was managed by his wife as he had been too unwell in May 2023. The respondent recorded that the statement that the applicant had not had negative feedback from clients was inaccurate, as he had been the subject of a complaint; that the statement that the applicant was unaware that he had to report an episode of ill health was difficult to accept, given the seriousness of his ill health and the fact that every barrister is asked every year, as part of the renewal process, to state any matters which may affect their fitness; that the statement that his wife had managed his application raised whether the statutory declaration given as part of the renewal process, was in fact given by him; and that if the applicant in fact remained incapacitated at the date of applying for renewal, that itself should have been disclosed.
(d) The applicant had been notified, on 19 January 2023, by the Legal Services Commission, that a client had lodged a complaint against the applicant, but the applicant did not disclose that complaint in his application to renew his practising certificate on 28 May 2023.
(e) The applicant, on 12 September 2023, was informed by the Legal Services Commission of its intention to commence a disciplinary procedure in relation to that complaint, but the applicant did not disclose to the respondent that he had received such notice, in breach of an undertaking the applicant had given by email on 21 July 2023, to inform the respondent of the status of the complaint against him “when requested to do so, and upon any event that would reasonably prompt an update”.
(f) As a result of a judgment given against the applicant in the civil proceeding, a summons was issued on 24 July 2024, requiring the applicant to attend an enforcement hearing in the District Court on 22 August 2024. Despite the applicant knowing that he was obliged by summons to appear, the applicant departed Australia on 17 August 2024 and travelled to the People’s Republic of China, where he intended to stay past the date of the enforcement hearing.
(g) As a result of becoming bankrupt, the applicant had provided to the respondent a statement as to why he remained fit and proper despite bankruptcy. That statement brought to the respondent’s attention that the applicant had not paid any substantial amount of tax for at least two years and had an outstanding debt to the Australian Tax Office of $398,392.
[18] The information notice recorded the respondent’s conclusions:
45. On the basis of the above matters, the Association is satisfied that you are not a fit and proper person to hold a practising certificate and that it is therefore bound to refuse to renew your practising certificate. In particular, the Association notes that, in the period since you last made an application to renew your practising certificate (on 28 May 2023, for the 2023/24 practising year):
(a) you failed to disclose the fact that the LSC had informed you of its intention to commence a disciplinary proceeding against you to the Association, in breach of your undertaking to the Association, and against a backdrop of several previous disclosure failures;
(b) you failed to comply with your obligations regarding the statement of financial position;
(c) you failed to comply with the summons to attend the Enforcement Hearing and produce documents; and
(d) you entered into bankruptcy and you informed the Association of your failure to pay:
(i) all but a nominal contribution to historical tax debts due as at August 2022; and
(ii) make any payment of income tax in the 2022 and 2023 financial years despite having been assessed as owing amounts of $37,059.45 and $45,037.45. respectively in those years.
46. The Association considers that the conduct surrounding the various Disclosure Failures indicates that you have not treated your disclosure obligations under the Act with the seriousness required of a barrister. When they occur, you express contrition and explain those failures by reference either to forgetfulness or by reference to the various stressors present in your professional and personal life (or some combination of those). You do not appear to have been able to re-arrange your affairs so as to be able to comply with those various obligations.
47. Of particular concern with respect to the Disclosure Failures are the most recent ones. Disclosure Failure 4 occurred in circumstances where you had led evidence in the Civil Proceeding that you were probably cognitively unfit to give instructions to defend that proceeding. Disclosure Failure 5 occurred less than two months after you had given a written undertaking to keep the Association informed of developments with respect to the Habchi Complaint, the very subject matter of Disclosure Failure 5.
48. As to the failure to appear at the Enforcement Hearing, submissions made on your behalf are to the effect that you had an honest belief that you did not need to attend because you accepted the advice of Mr Dimond that the debtor’s petition, if lodged online, would be processed within 48 hours, and you believed that once the petition had been accepted, that would bring the enforcement proceedings to an immediate end and relieve you of the obligation to answer the summons.
49. As to the advice from Mr Dimond, we note that you are a very experienced barrister and it must surely have occurred to you that, regardless of what are the usual times for processing debtors’ petitions online, there must have remained the risk that yours would not be processed in time.
50. As to the belief that, if the petition was processed in time, you would not be required to appear and the enforcement proceedings would be at an immediate end, it is to be noted that:
(a) you make no direct submission that you in fact received legal advice to that effect;
(b) it is difficult to accept that a competent legal advisor would have informed you that it was sensible to travel overseas rather than take the less risky approach of attending at the Enforcement Hearing;
(c) it is submitted by Potts Lawyers on your behalf that you had no real familiarity with the Bankruptcy Act 1966;
(d) there was therefore no basis for you to be confident that your bankruptcy would have the effect you assumed; and
(e) it cannot be accepted that an experienced, competent barrister would think it appropriate to travel overseas and ignore an extant summons in those circumstances.
51. Further, it cannot be accepted that a competent legal practitioner would think it appropriate to travel overseas and essentially run the risk of not appearing in answer to the summons (and not producing the documents required to be produced under the summons) if the debtor’s petition was not processed prior to the time you were required to appear, or if it were not accepted.
52. This failure to appear in answer to the summons has occurred consequently upon your:
(a) failure to provide a completed statement of financial position within 14 days of being served on 25 June 2024, as required by rule 807 of the UCPR; and
(b) provision of only an unsigned statement of financial position on 15 August 2024.
53. The Association also notes that there is no suggestion that your travel to China was urgent. Potts Lawyers submits on your behalf that you took the caution of arranging plane tickets that would allow you to cancel and obtain a refund if necessary so that ‘you could appear in Court if [your] bankruptcy was not to proceed for any reason’. It is difficult to see how this ameliorates the position at all. You waited until two days after you had departed to lodge the petition, and, on your submission, you were acting on the assumption that the petition would be processed by 21 August 2024.
54. Your conduct of your taxation affairs is considered to be unacceptable. Barristers are officers of the Court. They are expected to comply with the law, including laws in relation to the payment of tax. Whilst the various stresses you have experienced are severe and unusual, their existence does not relieve a barrister of such basic obligations. Of particular concern is your decision to eschew an offer from the ATO to enter into what appears, considering the size of your debt, to have been an eminently reasonable payment plan. The Association notes your explanation in your statement that you did not want to set yourself up for failure, but does not consider that this is a sufficient excuse simply to refuse to enter into such a plan, much less to fail to engage in such circumstances to see if some more lenient plan could be achieved.
55 .Further, the failure by you to pay any tax at all for the 2022 and 2023 financial years, in the Association’s view, reflects an utter disregard on your behalf for the requirement to comply with fundamental tax obligations.
56. In the Association’s view, your conduct in connection with the Disclosure Failures, the Enforcement Hearing, your taxation affairs, and your bankruptcy demonstrates a poor attitude towards your responsibilities as a citizen and as an officer of the Court. When taken together, that conduct, and the disrespect to the Court, the profession, and the community that it entails, demonstrates that you are no longer ‘able to command the confidence and respect of the court, of [your] fellow counsel and of your professional and lay clients’.
…
QCAT decision
[46] Relevantly, QCAT found:
(a) When the applicant applied for renewal of his practising certificate for the 2018/2019 year, he was required to answer a question to the following effect: “In the past 12 months have you been or are you currently subject to any of the suitability matters listed in sections 9 and 46 of the LPA which may affect your eligibility or fitness to hold a practising certificate”, in response to which the applicant did not disclose his conviction and punishment for contempt on 2 August 2017. QCAT had been told that it “slipped his mind”. QCAT said, “If this was true, it evidenced a staggeringly lack of regard for the significance of the conviction”.
(b) In written submissions for the applicant it had been contended that the omission was of no importance because the applicant had disclosed the fact of a contempt charge when he applied for renewal of his practising certificate in 2017 and 2018. That submission reflected “a failure to take the contempt conviction seriously. It was also misleading and disingenuous”. In 2017, the applicant had disclosed the contempt charge telling the respondent that he intended “to vigorously defend this matter” and in 2018 he had informed the respondent that the matter was “still before the courts” and that “the date for the final resolution of the matter is yet to be made”. QCAT said that as a barrister of many years’ experience, the applicant appreciated the significant difference between being charged with an offence, which one intends to vigorously defend and being convicted and punished for committing the offence and that a conviction for contempt of court, for a barrister, is a serious matter.
(c) It had also been submitted for the applicant that there was “no attempt to hide” the fact that he was convicted of contempt. However, when the applicant completed each application to renew his practising certificate in each of the following five years, he never disclosed the conviction for contempt. If the applicant did not intentionally leave the contempt conviction out of his answer to the direct question in 2019 and did not intentionally omit to disclose it, it was more likely than not “he continued to treat it with the same lack of regard”.
(d) That on or about 28 May 2023, when the applicant applied to the respondent for renewal of his practising certificate for the 2023/2024 year, the applicant did not disclose that in the opinion of the treating medical specialist placed before the District Court, his mental health difficulties had made him so unwell that he could not defend a civil proceeding in which he was a party and that he had been hospitalised with that condition for nine days from 11 to 19 May 2023. Although the applicant later relied on these mental health difficulties to explain his failure to disclose another matter in the same renewal application, the applicant did not contend they were an explanation for the non-disclosure of an apparently acute mental health situation and hospitalisation, less than two weeks before his renewal application. The applicant, in the review application, denied that he remained incapacitated at the time he applied for renewal of his practising certificate, stating that he was in recovery and following medical advice in relation to a gradual return to work, such that there was no current incapacity that he had failed to disclose.
(e) The applicant’s submission that the apparently acute medical episode had passed from his memory, could not be accepted as the applicant had been discharged from hospital only eight days before he submitted the renewal application, having spent nine days in hospital. In the circumstances, the applicant displayed a lack of candour in his explanation for his failure to disclose this relevant matter and the applicant did not rectify this lack of candour during the hearing.
(f) Also on about 28 May 2023, in answer to the same question, the applicant did not disclose that on 19 January 2023, he had been advised by the Legal Services Commission that a client had lodged a complaint about the applicant’s conduct as a legal practitioner, a disclosable suitability matter.
(g) On 21 July 2023, the respondent wrote to the applicant requesting an explanation for not disclosing the complaint in his renewal application. On the same day, the applicant had replied that the complaint had completely slipped his mind; that nothing had occurred with respect to the complaint; and there was no follow up from the Legal Services Commission. The applicant undertook to inform the respondent of the status of the new complaint, “when requested to do so, or upon any event that would reasonably prompt an update”.
(h) This was not a trivial complaint. The client had alleged that the applicant had demanded to be paid $5,000 in advance for professional work as a barrister, had been paid that sum, had not performed the work and had refused to refund the payment. The applicant’s apparent disregard of the complaint indicated an inappropriate attitude towards complaints about his professional conduct and the processes of the Legal Services Commission. Due to the applicant’s disregard, he had misled the respondent by answering the renewal question as if there was no such complaint. If the complaint had not come to the attention of the respondent in some other timely way, the applicant’s practising certificate renewal would have been decided on that false basis.
(i) On 12 September 2023, the applicant received a letter from the Legal Services Commission setting out its intention to commence a disciplinary proceeding in relation to that complaint. Whilst that letter was received about eight weeks after the applicant had given the undertaking to inform the respondent, the applicant did not inform the respondent of this letter, in breach of that undertaking. The applicant was in breach of his undertaking for about eight and a-half months, until 27 May 2024 when the respondent wrote to the applicant, having become aware of the matters by other means. This lengthy period of default was more remarkable because the respondent on 9 February 2024, wrote to the applicant seeking his confirmation that the undertaking continued for the duration of his 2023/2024 practising certificate and the applicant, by his solicitors on 20 February 2024, had confirmed his obligation.
(j) On 27 May 2024, the respondent wrote to the applicant inviting him to provide reasons as to why he had failed to comply with his undertaking. On 28 May 2024, the applicant replied advising that he was seeking legal advice and stating that he was not a person who intentionally ignores undertakings, “either to the courts my colleagues the Bar Association or for that matter anyone”.
(k) On 28 May 2024, the respondent replied, referring to the exchange of correspondence in February 2024 and stating that it was imperative that the respondent be provided with a clear explanation as to his reasons for not informing it of the change in status in respect of the complaint matter. The applicant did not respond until 24 June 2024 when, through a new firm of solicitors, he confirmed that he did not advise the respondent of the correspondence from the Legal Services Commission as required by the undertaking and further, disclosed for the first time that he had, through other solicitors, “filed a submission with the Legal Services Commission in response on 31 October 2023”. The applicant’s response included an apology for his failure to comply with the undertaking, stating that the failure was a reflection upon the applicant’s lack of personal administration and his individual distressed personal circumstances, rather than any deliberate disrespect or malfeasance directed towards the respondent. The applicant had been facing criminal charges since 2017, there had been media publications about him in August 2023, there was a personal civil trial on 23 October 2023 and there was a direction from the respondent on 30 October 2023 that the applicant attend an independent medical specialist to assess his ability to perform as a barrister and “personal medical issues”. Those factors had a significant compounding effect from a personal health perspective and also from a professional administrative perspective.
(l) By 31 October 2023, the applicant had given his solicitors instructions to make a written submission to the Legal Services Commission about its intention to commence disciplinary proceedings, based on the client’s complaint and that when his attention was focussed on that change of status of the complaint, the applicant ought to have honoured his undertaking to the respondent. By then, the civil trial had been adjourned, the media publications about him were some months in the past, and the respondent had directed the applicant to attend an assessment by an independent medical specialist, for advice on his contention that he had fully recovered from his May 2023 acute mental health episode.
(m) The independent specialist who saw the applicant on 4 December 2023, diagnosed the applicant with two disorders in remission and residual features of a third; opined that the applicant had recovered almost completely from the acute episode in May 2023 and opined that the applicant had shown an ability to comply with treatment and seek additional assistance when there was a worsening; and that by his account, there were no other issues threatening his psychiatric health, such as substance abuse or cognitive decline in the absence of active psychiatric symptoms. The independent specialist further opined that the applicant “does not currently have a psychiatric, cognitive or substance use disorder that would prevent him from satisfactorily carrying out” the work of a barrister, or that would prevent the applicant from “making satisfactory disclosures” to the respondent.
(n) In the all now known circumstances, the applicant had capacity to receive and understand the Legal Services Commission’s 12 September 2023 communication and to give instructions to respond with a submission on 31 October 2023, such that he did not lack capacity to honour his undertaking to update the respondent in either respect for more than eight months and that the applicant’s lengthy breaches of his undertaking indicated that he continued to give little respect to the complaint and that he gave even less respect to his undertaking to the respondent.
(o) On 24 June 2024, the District Court gave judgment against the applicant in an amount of $240,000 and made directions for the parties to seek agreement on the interest to be included in the judgment. After judgment was entered, the plaintiff as enforcement creditor, had given written notice to the applicant requiring him to complete and return a Statement of Financial Position as an enforcement debtor, which the applicant was obliged to complete and return within 14 days, but did not do so. Although the applicant sought an extension of time, he never completed and returned the signed Statement of Financial Position as an enforcement debtor.
(p) When the time for its return had lapsed, the enforcement creditor applied to the District Court for an enforcement hearing. An enforcement hearing summons in the approved form was issued by the Registrar, with the applicant’s solicitors accepting service of the summons on his behalf on 24 July 2024. By the summons, the District Court required the applicant to attend an enforcement hearing on 22 August 2024, to provide information, answer questions and to produce documents before the Registrar in Brisbane.
(q) On 29 July 2024, the applicant sent an email to his solicitor stating that, should he decide to go bankrupt before the enforcement hearing, an issue was whether the bankruptcy would put an end to that hearing, which would involve the applicant’s wife as well. Whilst the applicant later told the respondent that he was “made aware” of the summons “around early August”, as the applicant had been communicating with his solicitor about putting an end to the enforcement hearing as early as 29 July 2024, it seems likely that the applicant was aware of the summons closer to the date it was served, 24 July 2024, and had given the solicitor instructions to accept service.
(r) On 4 August 2024, the applicant sent his solicitor an unsigned incomplete draft of the Statement of Financial Position, instructing that he wanted to go ahead with the plan “that we made”. The solicitor replied on 5 August 2024, “will do”.
(s) On 9 August 2024, the applicant purchased plane tickets to travel out of Australia. The applicant had sworn that he arranged tickets that “would have allowed me to cancel and obtain a refund for the tickets, if necessary, so that I could appear in Court if my bankruptcy was not to proceed for any reason”.
(t) On 15 August 2024, the applicant’s then-solicitor sent the enforcement creditor’s solicitors a copy of the unsigned Statement of Financial Position with supporting material on a without prejudice basis, making an offer to compromise the judgment debt which was open for acceptance until 4.00 pm that day, after which the offer was withdrawn completely.
(u) On 17 August 2024, the applicant left Australia for China, remaining there until he returned on 2 September 2024. QCAT said the applicant “never explained the purpose of this travel”.
(v) On 23 August 2024, the applicant, through his solicitors, wrote to the respondent to give notice of his bankruptcy. The solicitors confirmed that judgment had been entered against the applicant and that the decision was under appeal. The letter further stated:
An Enforcement Summons was served on [the applicant] to produce documentation. Without prejudice negotiations then ensued and these failed and accordingly [the applicant] filed an Application for Bankruptcy.
[The applicant] departed Australia on Saturday 17 August, 2024. At that time he was suffering a great deal of stress because of all of these economic matters and his pending criminal proceedings of which you are aware and has been visiting his psychiatrist … .
When he departed he was of the honest belief that the Certificate of Appointment of a Trustee would be issued well prior to the Enforcement Proceedings on 22 August, 2024 and that they would be stayed.
We requested an adjournment prior to that date and that was rejected and [the solicitor] appeared before the Registrar in the District Court on 22 August to advise the Registrar and at that stage it was understood that [the applicant] would be returning on 29 August and the hearing was adjourned to that date.
On the same day, 22 August 2024 the Certificate of Appointment was issued and we promptly gave notice to the solicitors for the enforcement creditor. There was no intention by [the applicant] to abuse the process or not respect his obligations but that has to be understood in the context of all of the matters with which he is now dealing.5
(w) The applicant’s solicitors adopted the same sequential description of the events in correspondence on 16 September 2024, as had the applicant in his affidavit sworn 4 August 2025. Each of these narratives represented that the applicant had filed an application for bankruptcy before he flew out of Australia on 17 August 2024, when the applicant had in fact agreed not to file it, to allow time to reach a settlement. These misrepresentations made more plausible, assertions that at the time he left Australia, the applicant was of the honest belief that a certificate of appointment of a trustee would be issued well prior to the enforcement proceedings on 22 August 2024 and that his bankruptcy would be processed prior to that enforcement hearing.
(x) Whilst the applicant had, in his affidavit, later sworn that the debtor’s petition was lodged electronically on 19 August 2024; that he had taken the enforcement proceedings very seriously and was not careless or reckless with respect to his obligations; and that he had erred in assuming that his bankruptcy would be made official before the enforcement hearing, “a person served with a summons to appear can hardly have been less cautious or more reckless than to purchase an airline ticket 16 days after service of the summons and fly out of Australia to China three days before the date they are commanded to appear, intending to be absent from the country on that date”.
(y) Whilst the applicant seemed to accept, on the final day of the hearing, this proposition, telling the Tribunal in a voluntary, unsworn statement from the Bar table that he had acted “cavalierly” in leaving Australia whilst the enforcement summons was pending, the applicant said:
I have always had respect for the courts, my colleagues, and will always have respect for the courts, the colleagues, the clients. I’ve never made, in my life, a misrepresentation to the court or to misled colleague or a court, and I pride myself in that. What I’ve done though is that I stupidly went to China. I have no idea what I was thinking at that particular time. I can’t even comprehend the nature of my thought. It was — to say it was cavalier is being generous to me in those circumstances. It was wrong and I apologise sincerely for that conduct. It was an affront to the court. I accept that. And one of the things I’ve learnt is that it doesn’t matter who’s on the bench, our duty is to the court, because that is justice and that’s what we’re looking at.6
(z) Even by the end of the Tribunal hearing, it seemed to have escaped the applicant’s attention that what he did was wrong:
The steps he took to prepare to lodge a bankruptcy application (and apparently lodge it electronically from outside Australia) were expressly aimed at preventing the judgment creditor (…) from taking further steps against him consequent upon his failure to comply with the summons. Simply put, the applicant planned and intended to disobey the summons issued by the District Court on 24 July 2024: a command that he appear and produce material to the Court on 22 August 2024. The discussions he had with his proposed trustee, with other accountants and advisers, with a colleague, and with his solicitor, were about how he might immunise himself from any ill-effect of his defiance of the Court’s summons.7
(aa) The applicant was not a teenager, unfamiliar with the role and authority of a court. By leaving the country shortly before the enforcement hearing, he showed a public disrespect for the District Court and its processes. His apparent lack of understanding and appreciation of the nature and effect of his conduct, marks his character.
(bb) Whilst the applicant had stated to the respondent that the reason he went bankrupt was because he could not afford to pay the judgment debt, such a subjective reason for filing a bankruptcy application, overlooked the other significant liabilities that had been accruing over the preceding five years, with the applicant’s taxation returns produced on the last day of the Tribunal hearing, making it likely he was unable to meet his debts as and when they fell due, long before that judgment debt.
(cc) Those returns revealed that the applicant had not paid any income tax, or remitted any GST he had collected to the ATO, since 1 August 2022 and likely not since 2019. Whilst in the review application the applicant stated that he had maintained constant contact with the ATO and was endeavouring to enter into an achievable payment plan, the applicant’s sworn evidence and the documents he produced, did not make good that contention. The applicant was behind in the payment of his taxation liabilities since about 2019. His accountant had negotiated two payment plans, counselling the applicant to pay them on time, but the applicant rejected both payment plans. The applicant also accepted that since December 2022, he had made only occasional contact with the ATO by telephone.
(dd) Although the applicant did not consciously decide to cease paying tax or remitting GST indefinitely, he knew he was not paying those sums and he knew the money he spent on any other thing was money he was denying to the ATO. That was at best irresponsible and reckless, as “[m]ost right-thinking members of the community expect people to honour their obligations to meet their debts, if they can. The applicant’s failure to do so, over a long period, would lead most people to conclude he was not a fit and proper person to hold a [practising certificate]”.
(ee) References supportive of the applicant continuing to hold a practising certificate contained opinions expressed by solicitors, which were confined to the applicant’s work and that the matters going to the applicant’s fitness to practise, did not concern in any substantial way, his ability to act as a representative of persons before the courts, charged with offences. They were character matters, rather than competency issues.
(ff) Weight was to be given to the opinions expressed by two King’s Counsel, but QCAT’s decision must be the correct and preferable decision based on all of the evidence before it. QCAT concluded:
[106] A person’s initial response to an adverse event (or a series of adverse events) likely indicates something of the person’s character. Due allowance should be made for the rawness of an initial reaction. It is likely to be more driven by emotion than by reason. The course a person has adopted with the benefit of time and professional advice is likely more representative of their character. The applicant was more fortunate than others. He did not have to deal with adversity alone. He had representatives and advisers for each of his various fields of tribulation. His conduct over time, with the benefit of professional advice, is likely a better gauge of his character than his initial untutored responses.
[107] The Tribunal has evidence of the applicant’s conduct over a reasonable period of recent time. This covers the period from August 2017, when he was convicted of and punished for contempt, from 2019, when he seems to have stopped paying income tax and ceased remitting GST to the ATO, from 2023, when he was less than frank with the Association about his mental health, failed to disclose a formal professional complaint, and breached his undertaking to the Association for an extended period, to August 2024, when he defied the enforcement summons.
[108] There was a pattern to the applicant’s conduct. It has marked his responses from the contempt in 2016 to the Association’s decision to suspend his practising certificate in August 2024. With the contempt charge, he retained leading counsel and was to vigorously defend himself. At the hearing, he admitted his guilt and submitted to the penalty.
[109] In the most recent iteration of this cycle, the applicant began the hearing on 2 December 2024 denouncing the Association’s decisions. His failure to disclose the contempt conviction was ‘of no significance’. The Association’s concern that he may have remained incapacitated nine days after being discharged from hospital for an acute mental health episode ‘cannot be sustained.’ His failure to disclose a complaint about his professional conduct and his subsequent breach of the related remedial undertaking did not reflect upon his fitness to practise law. His failure to appear in response to a court summons was ‘regrettable’, but not ‘careless’ or ‘reckless’. It was due to his ‘honest and mistaken belief’. By 5 December 2024, he was proposing to submit to five conditions if granted a PC. These included 12 months’ mentoring under a leading counsel, three-monthly reporting by his trustee in bankruptcy, six-monthly reporting from his private accountant, completing a Queensland Law Society Legal Ethics Course, and an additional five hours of professional development focussed on tax accounting and management.
[110] In his voluntary unsworn statement to the Tribunal, the applicant said it was only in the ‘last 90 days’ when he had been unable to practise as a barrister that he came to realise ‘it was also important that [he] look after [his] own affairs.’ Even so, the applicant was unable to explain his conduct or identify what he would actually do differently in the future. He offered nothing in respect of his history of failures to disclose suitability matters to the Association. He had ‘no idea’ what he was thinking when he flew to China a few days before the summons required him to appear in the District Court. He could not ‘begin to think’ why he did not make a payment arrangement with the ATO. In the end, the applicant described his conduct as ‘stupidity’. He concluded:
And so essentially, what I want to do is apologise to the court and just put on the record that … I’d like to think I’m not bad intentioned, but I made bad mistakes and I apologise to the court and to the Bar Association and my colleagues and to the public at large for my stupidity. And I don’t know that I can say much more, your Honour. That is my apology. If I could be excused. … that’s all I have to say.
[111] The applicant continues to be subject to criminal charges, which were first pressed against him in 2017. So, he continues to be on the ‘rollercoaster’ he has been riding for about seven years.
[112] The courts are experienced in assessing the genuineness of human sentiments including remorse and resolutions to make amends. The courts make these assessments every day in sentencing offenders. The conduct of a person is the surest guide. Words unsupported by action leave unproven the genuineness of an expressed desire to change. The applicant’s recent remorse has this difficulty.
[113] Considering the matter afresh, on the merits, and using the evidence before it of the applicant’s previous behaviour and its causes, so far as is reasonably possible, the Tribunal cannot be confident the applicant will follow the appropriate course of action in the future, nor that he could properly be entrusted to undertake the tasks that attach to the practise of a barrister in accordance with the demanding requirements under the LPA.
[114] By this conduct, he showed himself unsuitable to share what Kitto J called the privilege of the delicate relationship and intimate collaboration with the courts and with fellow members of the Bar.8
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Conclusions
[105] The applicant has not established any error of fact or law in QCAT’s decision.
[106] Further, a consideration of the evidence as a whole supports a conclusion that QCAT’s decision that the applicant was not a fit and proper person to hold a practising certificate as a barrister, was the correct and preferable decision.
[107] As no error has been shown and a real review of the record as a whole supports a conclusion that QCAT’s decision was correct, the appeal must be dismissed.
[108] The applicant submits that having regard to the evidence that since QCAT’s decision, the applicant’s serious outstanding criminal charges have been resolved either by acquittals, or withdrawal of the charges, this Court ought to find that the applicant is now a fit and proper person to hold a practising certificate, as the stressors said by QCAT to still exist in the applicant’s life, now no longer exist.
[109] Whilst this Court can receive and act on that evidence,14 it is not appropriate for this Court to determine that the change of circumstances supports a conclusion that the applicant is now a fit and proper person to hold a practising certificate.
[110] The change of circumstances, although significant and resulting in the removal of what were significant stressors said to have led to the applicant having such a chaotic personal and professional life, does not mean automatically that the applicant would now be found to be a fit and proper person to hold a practising certificate as a barrister.
[111] Such a conclusion is properly to be made by the respondent, upon application in the approved form and having regard to the disclosure of any relevant suitability matters. One such suitability matter may be the outcome of any report by the applicant’s trustee in bankruptcy, as to the circumstances of that bankruptcy.
In May v Costaras [2025] NSWCA 178 (8 August 2025), Bell CJ – Payne and McHugh JJA agreeing – wrote:
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[12] After acknowledging that “[a]rtificial intelligence is likely to have a continuing and important role in the conduct of litigation in the future”, Dame Victoria Sharp, President of the King’s Bench Division of the High Court of Justice has recently observed, in delivering the reasons of the Court in Ayinde v The London Borough of Haringey [2025] EWHC 1383 (Admin) at [5] –[9] (Ayinde) (omitting footnotes):
This comes with an important proviso however. Artificial intelligence is a tool that carries with it risks as well as opportunities. Its use must take place therefore with an appropriate degree of oversight, and within a regulatory framework that ensures compliance with well-established professional and ethical standards if public confidence in the administration of justice is to be maintained. As Dias J said when referring the case of Al-Haroun to this court, the administration of justice depends upon the court being able to rely without question on the integrity of those who appear before it and on their professionalism in only making submissions which can properly be supported.
In the context of legal research, the risks of using artificial intelligence are now well known. Freely available generative artificial intelligence tools, trained on a large language model such as ChatGPT are not capable of conducting reliable legal research. Such tools can produce apparently coherent and plausible responses to prompts, but those coherent and plausible responses may turn out to be entirely incorrect. The responses may make confident assertions that are simply untrue. They may cite sources that do not exist. They may purport to quote passages from a genuine source that do not appear in that source.
Those who use artificial intelligence to conduct legal research notwithstanding these risks have a professional duty therefore to check the accuracy of such research by reference to authoritative sources, before using it in the course of their professional work (to advise clients or before a court, for example). Authoritative sources include the Government’s database of legislation, the National Archives database of court judgments, the official Law Reports published by the Incorporated Council of Law Reporting for England and Wales and the databases of reputable legal publishers.
This duty rests on lawyers who use artificial intelligence to conduct research themselves or rely on the work of others who have done so. This is no different from the responsibility of a lawyer who relies on the work of a trainee solicitor or a pupil barrister for example, or on information obtained from an internet search.
We would go further however. There are serious implications for the administration of justice and public confidence in the justice system if artificial intelligence is misused. In those circumstances, practical and effective measures must now be taken by those within the legal profession with individual leadership responsibilities (such as heads of chambers and managing partners) and by those with the responsibility for regulating the provision of legal services. Those measures must ensure that every individual currently providing legal services within this jurisdiction (whenever and wherever they were qualified to do so) understands and complies with their professional and ethical obligations and their duties to the court if using artificial intelligence. For the future, in Hamid hearings such as these, the profession can expect the court to inquire whether those leadership responsibilities have been fulfilled.
[13] I would endorse these observations. The great care that is required by, and responsibility of, legal practitioners in New South Wales in the use of Generative AI is reflected in Practice Note SC Gen 23 — Use of Generative Artificial Intelligence (Gen AI).
[14] The appendix to the judgment in Ayinde contains non-exhaustive examples from England and Wales, the United States, Australia, New Zealand and Canada of material being placed before courts that has been generated by an artificial intelligence tool, but which is erroneous. At least two of those cases involved unrepresented litigants: Olsen v Finansiel Stabilitet A/S [2025] EWHC 42 (KB); Zzaman v Commissioners for His Majesty’s Revenue and Customs [2025] UKFTT 539 (TC). The list of such cases continues to grow.
[15] The problems of unverified use of artificial intelligence in the preparation of submissions are exacerbated where the technology is used by unrepresented litigants who are not subject to the professional and ethical responsibilities of legal practitioners and who, while subject to the Practice Note SC Gen 23, may be unaware of its terms. All litigants are under a duty not to mislead the court or their opponent: Vernon v Bosley (No 2) [1999] QB 18 at 37 , 63, cited in Burragubba v Queensland(2016) 151 ALD 471; [2016] FCA 984 at [228]; see also, in relation to the obligations of unrepresented litigants, Barton v Wright Hassall LLP [2018] UKSC 12 [2018] 1 WLR 1119 at [18] (Barton). As Lord Sumption observed in Barton at [18], in a passage quoted in Mohareb v Saratoga Marine Pty Ltd [2020] NSWCA 235 at [39], “[u]nless the rules and practice directions are particularly inaccessible or obscure, it is reasonable to expect a litigant in person to familiarise himself with the rules which apply to any step he is about to take.”
[16] It is and will remain important for judicial officers to be conscious of the potential use of Generative AI by unrepresented litigants in legal proceedings and it is legitimate to inquire, as the Court did of the respondent in the present case, whether Generative AI has been used in the preparation of materials placed before the Court. Such use may introduce added cost and complexity to the proceedings and, where unverified, add to the burden of other parties and the Court in responding to it.
[17] At least at this stage in the development of the technology, notwithstanding the fact that Generative AI may contribute to improved access to justice which is itself an obviously laudable goal, the present case illustrates the need for judicial vigilance in its use, especially but not only by unrepresented litigants. It also illustrates the absolute necessity for practitioners who do make use of Generative AI in the preparation of submissions — something currently permitted under the Practice Note — to verify that all references to legal and academic authority, case law and legislation are only to such material that exists, and that the references are accurate, and relevant to the proceedings.
In Council of the Law Society of New South Wales v Buckley [2025] NSWCATOD 95 (29 July 2025), the Civil and Administrative Tribunal of New South Wales (Seiden SCDCJ, Deputy President, AR Boxell, Senior Member, and Emeritus Professor PJ Foreman AM, General Member) found the plaintiff guilty of both professional misconduct and unsatisfactory professional conduct in relation to, inter alia, his social media posts pertaining to NSW Supreme Court litigation involving Covid vaccination. The Tribunal also recommended that the respondent’s solicitors name be struck from the roll. The reasons are long, and somewhat complex, but portions thereof are worthy of reference in this section of Hearsay:
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Background
Disciplinary history of the respondent
The respondent was admitted as a lawyer in New South Wales on 7 July 2006. From around that time, until November 2021, he held a practising certificate issued by the applicant and practised as a solicitor at various law practices, including as a partner of G&B Lawyers (the Law Practice), from around May 2016. On 12 November 2021, the applicant resolved to suspend the respondent’s practising certificate until 30 June 2022 (the Suspension Decision) on the ground that the applicant reasonably believed that the respondent was unable to fulfil the inherent requirements of an Australian legal practitioner: Uniform Law, ss 82(1)(d) and 84.
The respondent sought judicial review of the Suspension Decision, which was dismissed: Buckley v Council of the Law Society of New South Wales [2022] NSWSC 328.
The respondent has not applied for a practising certificate since the expiry of the suspension period on 30 June 2022.
Despite not currently holding a practising certificate, the respondent is nevertheless amenable to disciplinary proceedings: Uniform Law, s 262(4).
Orders sought and response
The applicant contends that the alleged failures are of a sufficiently serious and persistent nature to constitute professional misconduct; and, or in the alternative, it is contended that as a result of the alleged failures, the respondent is not a fit and proper person to engage in legal practice.
In the event that it is found that the respondent engaged in professional misconduct as alleged, the applicant seeks an order under s 302(1)(f) of the Uniform Law, recommending that the respondent’s name be removed from the roll kept by the Supreme Court of New South Wales, pursuant to s 22 of the Uniform Law.
The respondent, on the other hand, save in respect of one course of conduct concerning comments in relation to a decision of the Supreme Court of NSW in Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320 (the Kassam Judgment) for which he has apologised (as detailed below), considers that there have been no breaches of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) (Conduct Rules). With respect to the conduct in relation to the Kassam Judgment, at worst, it is submitted to be unsatisfactory professional conduct.
For the reasons set out below, we have found that the respondent has engaged in both unsatisfactory professional conduct and professional misconduct under the Uniform Law, and the appropriate order is one recommending that he be removed from the roll of Australian lawyers maintained by the Supreme Court of New South Wales.
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The Kassam Judgment
Before moving to the next set of grounds, it is relevant to set out some background to the Kassam Judgment.
Broadly speaking, the conduct with which the Social Media Application is concerned, arises in the context of various orders (and challenges to those orders), made pursuant to s 7(2) of the Public Health Act, in response to the COVID-19 pandemic; and more particularly, in response to what became known as the Delta variant. The impugned conduct also includes what might broadly be described as the respondent’s reaction to the decision of Beech-Jones CJ at CL (as his Honour then was) dismissing a challenge to those orders in the Kassam Judgment. That Judgment deals with applications made by two sets of plaintiffs known as the Kassam plaintiffs and the Henry plaintiffs, giving rise to separate proceedings dealt with together, in the one Judgment. The respondent’s involvement in the Henry plaintiffs’ proceedings, Henry & Ors v Bradley Ronald Hazzard (the Henry Proceedings), is particularly relevant to the Complaints as the Law Practice was the solicitor on record for the Henry plaintiffs.
In the Kassam Judgment, it was said at [1]:
“The highly contagious variant of COVID-19 known as the Delta variant was first detected in the community in New South Wales in June 2021. Since that time, it has spread rapidly. In response to the threat to public health it poses, the Minister for Health and Medical Research, the Honourable Bradley Hazzard, (the “Minister”), made various orders under s 7(2) of the Public Health Act 2010 (the “PHA”) which on any view significantly affect the freedoms of the citizens of this State and impose greater burdens on those who are not vaccinated. The main focus of the two proceedings the subject of this judgment is those aspects of those orders which prevented so called “authorised workers” from leaving an affected “area of concern” that they resided in, and prevent some people from working in the construction, aged care and education sectors, unless they have been vaccinated with one of the approved COVID-19 vaccines.”
The plaintiffs were not vaccinated and sought declarations that the Public Health (Covid 19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 (NSW) and various other public health orders (the impugned orders), were invalid. It was contended, amongst other things, that because of their effect on rights and freedoms, the impugned orders were beyond the scope of s 7(2) of the Public Health Act.
As identified (at [7] of the Kassam Judgment), the question for the court concerned the legal validity of the impugned orders; including whether it was shown that no Minister, acting reasonably, could have considered the impugned orders necessary to deal with the identified risk to public health. The proceedings were dismissed: Kassam Judgment at [294]. Further, an appeal against the Henry Decision was unsuccessful: Kassam v Hazzard; Henry v Hazzard [2021] NSWCA 299.
The Henry plaintiffs relied on multiple grounds in the proceedings, one of the main grounds shared with the Kassam plaintiffs concerning the effect of the impugned orders on the rights and freedoms of persons who chose not to be vaccinated, especially their “freedom” or “right” to their own bodily integrity: Kassam Judgment at [8].
Another ground relied upon by both plaintiffs was that the impugned orders contravened s 51(xxiiiA) of the Commonwealth Constitution, with the Henry plaintiffs contending that in making the impugned orders, the Minister failed to take into account a relevant consideration; that is, the individual’s implied right under the Constitutionnot to be conscripted to take part in a vaccination program amounting to a medical service provided to the public: Kassam Judgment at [227].
The Court clarified with respect to the constitutional point that s 51(xxxiiA) proscribes the compulsory provision of medical services, as opposed to the compulsory acquisition of medical services. No part of the impugned orders involves any element of coercion on a doctor or other medical practitioner to vaccinate anyone: at [271]-[272]. Moreover, even if the impugned orders imposed a form of civil conscription, which they do not, they would not be rendered invalid by the operation of s 51(xxxiiA) because that provision is a prohibition on the exercise of the legislative power of the Commonwealth, not the states: Kassam Judgment at [275]-[277].
The Henry plaintiffs asserted that the impugned orders were unreasonable in light of the evidence (including expert evidence) adduced pointing to the “uncertainty surrounding the safety and efficacy of vaccines especially so far as the Delta variant is concerned”: Kassam Judgment at [140]. The Court found the evidence adduced concerning the effectiveness of vaccines, which could only go so far as to negative the “absolute certainty” of their safety, was not enough to establish that the differential treatment of unvaccinated people in the impugned orders was an approach that no Minister acting reasonably could have considered to be necessary to deal with the identified risk to public health: Kassam Judgment at [239]-[240].
Posts in connection with the Kassam Judgment (Grounds 6 and 7)
Ground 6 provides:
“The Respondent made public statements regarding the Judgment of Beech-Jones CJ at CL in the Kassam Judgment, which conduct was contrary to the Respondent’s paramount duty to the administration of justice under r 3 of the Conduct Rules.”
The Kassam Judgment Twitter and Facebook posts (Grounds 6 and 7)
Particulars 29-32 concern posts about the Kassam Judgment made by the respondent on Twitter and provide:
“29. Onor around 15 October 2021, the Respondent caused to be published a post on the Twitter platform stating, ‘So Justice Beech-Jones today said that no one in NSW has any rights. No one has a right to bodily integrity. He basically said it is ok to kill anyone you like. No one has any rights’.
30. The post referred to at [particular] 29 above was published on the Twitter account of the Law Practice, of which the Respondent was a partner at the time, and which Law Practice acted as the solicitors on the record for the Henry plaintiffs in the proceedings the subject of the Kassam Judgment.
31. In the Kassam Judgment:
a. the plaintiffs argued that one of the public health orders under challenge violated a person’s right to bodily integrity (Kassam Judgment at [55]);
b. Beech-Jones CJ at CL rejected the plaintiffs’ argument at (a) above, finding that the order did not violate a person’s bodily integrity (Kassam Judgment at [56]); and
c. Beech-Jones CJ at CL held, among other things, that, while persons may consent to being vaccinated to avoid restrictions on their movement or to obtain access to a work site, that did not result in their consent being vitiated (Kassam Judgment at [63], [83] and [135]).
32. The respondent’s statement referred to at [particular] 29 above:
a. did not honestly or accurately characterise the effect of the Kassam judgment;
b. criticised the Kassam Judgment based on facts that were not accurately stated;
c. was likely to mislead persons as to the effect of the Kassam Judgment; and/or
d. was likely to undermine confidence in the authority of Beech-Jones CJ at CL and/or the Supreme Court of NSW.”
Particulars 33-34 are in relation to the respondent’s posts about the Kassam Judgment on Facebook:
“33. Onor around 15 October 2021, the Respondent caused to be published a post on the Facebook platform stating, ‘So Justice Beech-Jones today said that no one in NSW has any rights. No one has a right to bodily integrity. He basically said it is ok to kill anyone you like. No one has any rights’.
34. The post referred to at [particular] 33 was published bon the Facebook page of the Law Practice, of which the Respondent was a partner at the time, and which acted as the solicitor for the Henry plaintiffs in the proceedings the subject of the Kassam Judgment.”
The applicant repeats in particular 35 the findings made by Beech-Jones CJ at CL in the Kassam Judgment set out in particular 31.
The applicant repeats in particular 36 the alleged effect of the respondent’s statement set out in particular 32.
Breach of the Conduct Rules: The Kassam Judgment Twitter and Facebook posts (Grounds 6 and 7)
The applicant’s contention that, by posting the Twitter and Facebook posts, the respondent breached the Conduct Rules, is set out in Ground 6 (particular 37) and Ground 7 (particular 39).
By particular 37 the applicant contends:
“The Respondent’s conduct referred to in the following [particulars] was contrary to his paramount duty to the administration of justice as required under r 3 of the Conduct Rules:
a. [particulars] 29 to 32 above;
b. [particulars] 33 to 36 above;
c. [particulars] 29 to 32 and [particulars] 33 to 36 above, when considered together.”
Ground 7 alleges:
“By engaging in the conduct referred to in:
a. [particulars] 29 to 32 above;
b. [particulars] 33 to 36 above;
c. [particulars] 29 to 32 and [particulars] 33 to 36 above,
when considered together, the Respondent acted in a manner which, contrary to r 5 of the Conduct Rules, was likely to a material degree to:
d. be prejudicial to, or diminish the public confidence in, the administration of justice; and/or
e. bring the legal profession into disrepute.”
By particular 39 the applicant repeats particulars 29-32 and particulars 33-36 above.
The applicant’s submissions as to factual findings and breach of the Conduct Rules
Briefly summarised, the applicant makes the following submissions in relation to Grounds 6 and 7:
On no view did the Kassam judgment stand for any of the propositions made by the respondent in his posts. The focus of those proceedings was on aspects of Public Health Orders (introduced in response to COVID-19) that prevented “authorised workers” from leaving an affected “area of concern” that they resided in, and prevented some people from working in the construction, aged care and education sectors, unless they had been vaccinated with one of the approved COVID-19 vaccines (Kassam Judgment at [1]).
The Kassam Judgment did not say that nobody has a right to bodily integrity. A person was still required to give consent to a COVID-19 vaccine before it could be administered. The Public Health Orders did not purport to confer authority on any person, including any medical practitioner, to administer a vaccine without consent – to do so forcefully would still constitute a battery (Kassam Judgment at [55]-[56]).
The respondent did not honestly or accurately characterise the effect of the Kassam Judgment. His public statements were likely to mislead persons as to the effect of the judgment by representing that individuals’ bodies were not legally protected from harm (or at least, that was the finding of the Court, so mischaracterised).
In light of his paramount duty contained in r 3 of the Conduct Rules, the respondent, as the solicitor on the record for the Henry plaintiffs in the Kassam proceedings, should have been familiar or familiarised himself with the facts of the case and the arguments raised in it to ensure he had a proper basis for the content of his posts.
The administration of justice requires that judicial determinations should retain authority and influence and that there be public confidence in the courts’ judgments. While it is expected that those judgments may be subject to fair and robust criticism, the respondent’s statement struck at the legitimacy of the Supreme Court of NSW without an arguable basis for doing so and fell outside the bounds of permissible advocacy, contrary to his paramount duty in r 3: see Potkonyak v Legal Services Commissioner (No 2) [2018] NSWCA 173 (Potkonyak).
The respondent’s post was made in circumstances where it was apparent (or at least very likely) that he was a legal practitioner, whose analysis and opinion would likely be given greater weight by members of the public, and who would not expect the respondent to make statements without arguable basis. The statements were thus likely to mislead and detract from the proper administration of justice and to encourage groundless misgivings about the integrity, propriety or impartiality of the judicial officer of the relevant court. Their effect was to undermine confidence in the administration of justice contrary to r 5 of the Conduct Rules.
The further statements by the respondent that “[h]e basically said it is okay to kill anyone you like. No one has any rights” exacerbated the misleading nature of the first two statements. Using inflammatory language, those further statements conveyed that Beech-Jones CJ at CL had delivered a judgment that condoned serious violence analogous to murder.
The respondent’s position as to factual findings and breach of the Conduct Rules
The respondent admits to making the statements.
The respondent contends in his Reply and his written submissions that the statements were never intended or meant to:
criticise the Henry or Kassam judgments based on facts that were not accurately stated;
be a description of, characterisation of the effect, or case analysis, of the Henry or Kassam judgments;
mislead persons as to the effect of the Henry or Kassam judgments;
undermine confidence in the authority of Beech-Jones CJ at CL or at the Supreme Court of New South Wales;
be prejudicial to, or diminish the public confidence in the administration of justice and or bring the legal profession into disrepute.
The respondent says that rather, the statements were meant to highlight the political position that the NSW Government could mandate lethal injections upon individual citizens or the broader NSW public through the use of public health orders.
Evidence given by the respondent
The respondent repeatedly denied in cross examination that his post was addressing the Reasons for Judgment published by Beech-Jones CJ at CL earlier that day. He instead characterises what he said as “simply rants” made at a “very stressful time”. Set out below are extracts from cross examination on this point:
“Q. Mr Buckley, do you accept that what you were making a post about were reasons that Justice Beech-Jones had delivered that day? Do you accept that?
A. No.
Q. You don’t accept that?
A. I’ve already said that doesn’t refer to the reasons.
Q. I’m asking you a different question. Do you accept that what you were actually posting about were what Justice Beech-Jones had said in reasons that he had delivered that day, correct?
A. It doesn’t say “reasons” anywhere. He could have said it in the street.
Q. I’m going to be making submissions about your insight into this conduct. Are you seriously suggesting that it is not clear what you were posting about? Is that your evidence on oath to this Tribunal?
A. That’s always been my evidence, that these are just random rants. There was never any case analysis done in this post, which is what you’re trying to suggest.”
The respondent conceded in cross examination in relation to his statements that Beech-Jones CJ at CL had said that “It’s okay to kill anyone you like” was “potentially misleading”.
The following exchange occurred in cross examination in relation to the likely effect of the posts given the accounts they were made from:
“Q. What I want to suggest to you – and I’ll just ask whether you agree with it – that where you as a lawyer, who was a solicitor on the record in particular proceedings, makes a post on your law firm’s social media account about what the judge said that day, that’s likely to be given an additional weight by people reading it because it’s coming from a solicitor who was on the record in the proceedings? Can you agree with that?
A. Perhaps.
Q. Well, the answer’s ‘Yes’, isn’t it?
A. I can’t speak for everybody who read the Twitter posts. I don’t know.”
Insight and contrition of the respondent
The respondent makes the following submissions:
The statements have been misconstrued by the Applicant and, although it doesn’t justify their being made, were simply rants in “frustration and anger” during a stressful time, a “once in a lifetime event for all Australians”.
With the benefit of time and self-reflection, he could see that “the statements should have never been made in the first place. It was wrong to make those statements.”
The respondent apologised in an email of 19 March 2023 (the Apology) and in the 19 February 2023 email.
Further evidence of insight into his conduct is his enrolment in the College of Law’s ‘Ethics and Professional Responsibility’ course as part of the online Practical Legal Training Program which he intends to complete successfully.
He otherwise replies that the making of the statements referred to in Grounds 6 and 7 amounts to, at most, unsatisfactory professional conduct.
The applicant makes the following submissions in relation to the respondent’s explanation for his conduct:
It was inappropriate for the respondent to gloss over the statements he made as merely “rants”. Such a minimisation reflects the respondent’s lack of insight into the seriousness of the statements.
It does not matter that the respondent did not subjectively intend to do any of the things the applicant contends he did. What is relevant is the objective result of his conduct, and whether it is caught by the relevant conduct rule.
The various explanations proffered by the respondent for his conduct reflect a lack of insight into the seriousness of that conduct.
The fact that the respondent was conducting himself during what he contends was a “stressful time” should be afforded little weight because he was not suffering from any particular health issue, and furthermore, “[c]haracter is tested not by what one does in good times but in bad.”: citing Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 (Foreman) at 449 (Mahoney JA).
Determination: the Kassam Judgment Twitter and Facebook posts (particulars 29 to 36)
The Tribunal is satisfied of the following matters:
The respondent made the posts using the Twitter Page of the Law Practice and the Facebook page of the Law Practice respectively, as admitted by him.
On readily available information it could be gleaned that the Law Practice acted for the Henry plaintiffs in the Kassam proceedings. The publicly available Judgment named the Law Practice as the solicitors for the Henry plaintiffs in the Kassam Judgment.
The posts mischaracterised the effect of the Kassam Judgment. The Judgment found that the impugned health orders forming part of the Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No 2)(NSW) did not authorise the involuntary vaccination of anyone and thus could not have violated their right to bodily integrity: Kassam Judgment at [55]-[70].
The respondent was wrong to suggest that the upshot of the Judgment was that nobody had any rights, including the right to bodily integrity, or that “it is okay to kill anyone you like.” The only ‘right’ at issue was the curtailment of the freedom of movement from the impugned orders affecting one’s ability to work and socialise, which varied according to whether a person was vaccinated or unvaccinated: Kassam Judgment at [9]. In the context of the pandemic, those limitations were found to be in line with the object of public safety contained in the Public Health Act from which the Health Minister derived the power to make such orders (s 7(2)): Kassam Judgment at [10]-[11].
The statements were therefore likely to mislead persons as to the effect of the Kassam Judgment.
The statements used inflammatory language and imputed that the Supreme Court irrationally condoned the violation of bodily integrity and violence.
The statements were extremely derogatory and related to the Court’s institutional integrity.
The statements cannot be easily dismissed as mere rants. The fact that the Law Practice acted for the Henry Plaintiffs gave the post more legitimacy.
For the above reasons, the Tribunal finds that particulars 29 to 36 of Ground 6 are made out.
Determination: Breach of the Conduct Rules (Grounds 6 and 7)
In light of his paramount obligation under r 3 of the Conduct Rules, the respondent, as a solicitor, should have known or made himself aware of the operative effect of the Kassam Judgment and not made public statements so clearly mischaracterising it. By posting under the name of the Law Practice, who acted for the Henry plaintiffs, the respondent was sending a message that was misleading and at the same time cloaked in legitimacy. This was contrary to his paramount obligation to the court and the administration of justice. The respondent therefore breached r 3 of the Conduct Rules.
Even if we are to accept the comments as mere “rants”, as the respondent describes them, we do not accept that they would be readily dismissed by readers. The publication of the statements by the Law Practice and the available knowledge that the Law Practice represented the Henry plaintiffs in the Kassam proceedings imbues those statements with a degree of legitimacy when they:
had no arguable basis;
mischaracterised the Kassam Judgment; and
risked undermining the authority of the Supreme Court of NSW.
The statements posed a material risk to, and were liable to detract from, the proper administration of justice because they were highly misleading to viewers of those statements, suggesting that the Court had acted irrationally and condoned violence. Therefore, the respondent contravened r 5 of the Conduct Rules.
The statements were likely to undermine public confidence in the authority of Beech Jones CJ at CL and/or the Supreme Court of NSW, given the inflammatory contents of the post and the extreme effects alleged to arise from the Judgment, coupled with the association between the post and the Law Practice.
The Apology
The respondent refers in his submissions to the email sent to the Law Society and to Beech-Jones CJ at CL on 19 March 2023 in which he apologised for making the statements and noted that he should not have made the statements contained in Grounds 6 and 7 and in Grounds 8 and 9 (the Apology).
The Apology was in the following terms:
“Dear Law Society of NSW and Beech-Jones CJ at CL,
The purpose of this email is to apologise for the social media posts that I made on or around 15 October 2021 relating to the effect of the first instance decision of Beech-Jones CJ at CL in the Henry and Kassam and Ors v Hazzard proceedings, which are subject to a current disciplinary investigation and which I understand the Law Society of NSW intends to prosecute me for.
As I mentioned in my recent email of 19 February 2023, I should have never written these social media posts.
On reflection, the stresses of covid lock downs, vaccine mandates, restrictions on movement and widespread discrimination of unvaccinated people negatively impacted my judgment at the time.
With the benefit of time and self-reflection, I accept that I should not have made these social media posts.
I sincerely apologise.
Regards, Nathan Buckley”
The respondent submits that this Apology:
was genuine and sincere;
was written “during the Applicant’s investigation, several months prior to the commencement of the Social Media Application”;
“certainly is very useful to the Tribunal in the Tribunal’s assessment of any orders to be made by the Tribunal”; and
highlights the respondent’s insight into the seriousness of his own conduct and the fact that he accepts responsibility for his conduct, especially in the sense that he recognises he should not have made the social media posts in the first place.
The respondent rejects the applicant’s submission that the respondent, by making the Apology, was seeking to avoid or mitigate the consequences of the proceedings proposed to be commenced against him by the Council.
In cross examination, the respondent accepted that the 19 March 2023 Apology was sent one month after he had been informed that disciplinary proceedings would be commenced against him in relation to his posts.
The Apology includes a reference to the respondent’s email of 19 February 2023 sent by the respondent to the Law Society only. It is submitted by the respondent that the email highlights further insight into the seriousness of his conduct.
The email of 19 February 2023 was in the following terms:
“Dear Ms McAndrew,
I refer to your letter dated 17 February 2023.
I have considered Attachment A.
Whilst I believe that I have already been significantly disciplined by virtue of a near 8 month suspension period and an inability to work in the legal profession since 12 November 2021, I do not wish to contest any further matters.
What I will say is that at the time of making a number of public statements (referred to in allegations 1 to 6), the context and the dates when those statements were made should be taken into consideration.
These were very difficult times for me personally. At the height of lockdowns, restrictions on movement, covid-19 vaccine mandates, vaccine passports and vaccine discrimination. It should be noted that I have not submitted to any covid-19 injections and this impacted me personally greatly during these times.
At the time of making the public statements, I was also discriminated against and cast aside by the broader community. All of the comments made by me were made in frustration and anger. Anger at what our society and Australia had become.
The statements were never intended to suggest to anyone any analysis of a judgment or decision. They were simply comments made in frustration and anger. With the benefit of hindsight, I should have never written them.
I have always acted in the best interests of my clients. I have always had the best intentions.
Expert evidence was relied upon by the Henry and Kassam plaintiffs highlighting the health risks of the covid-19 injections, which included amongst other things, immune system related issues, myocarditis, heart failure and death arising from immunodeficiency related diseases. All of these things have proven to be true. People have died already. Millions globally have suffered numerous heart related issues, including myocarditis and pericarditis. This evidence was ultimately ignored by the Court. This is the background context to the statement referred to in paragraph 14 of your letter. In my view, it is not misleading. The decision of upholding the vaccine mandates ultimately meant that if a person wanted to leave their home or go to work and earn a living, then they had to submit to 2 doses of a covid-19 injection. That meant that the person waived any right to bodily integrity. Knowing what we knew then by way of expert evidence and what we know now, the covid-19 injections do kill people. Accordingly, it followed that by upholding the vaccine mandates, it must have also followed that the NSW Health Minister had the power to force individuals to submit to experimental injections ultimately leading to a risk of their death in order to participate in society and earn a living. That is the gist of the comment referred to in paragraph 14. You may disagree with that analysis, however, that is my view and it is not misleading. It was supported by the independent expert evidence relied upon. Vaccine mandates and any right to bodily integrity are incongruous. They cannot operate together.
What must also be considered in this context is that the decision of Beech-Jones J was taken on appeal to the Court of Appeal. No mention of that was made in your letter. It is important to note this context because at the time (15 October 2021), the view was that the Beech-Jones J decision had reasonable grounds of appeal, including with respect to human rights to bodily integrity.
Ultimately it comes down to a difference of opinion on the interpretation of the Beech-Jones J decision at first instance. The only real arbiters of that are the Court of Appeal. That was where it was tried and tested. Your failure to consider this must be reconsidered.
This context also applies to allegations 3 to 6. Effectively, the gist of the Beech-Jones J decision reflected the position that the Health Minister could order any person to submit to an injection in order to go to work and or leave their home and or participate in society. Even if that ultimately resulted in their eventual death. As noted above, people have died of heart failure and other immunodeficiency related issues arising out of the covid-19 injections. Otherwise healthy people now dying ‘suddenly and unexpectedly’. How often do we see these words splashed across news websites daily? The independent expert evidence said this was going to happen. Beech-Jones J ignored it. Considered it irrelevant. This context must be taken into consideration. Particularly since you haven’t provided one piece of evidence to establish that anything I have ever written is misleading. As a prosecutor you have a duty to establish that these statements are or were misleading.
It is clear that based on the Beech-Jones J decision, the NSW Health Minister could order anyone to do anything so long as it was made under section 7 of the Public Health Act 2010 (NSW). That is a dangerous and serious outcome. One that raises any number of human rights issues. Issues that have been ignored and or considered irrelevant.
The statements made by me did not condone individuals to perpetrate violence on anyone. Quite the opposite. They were to highlight that the NSW Government (via the Health Minister) can perpetrate medical rape and ultimate death on people under the guise of a public health order or direction. This is not misleading. It is in fact the reality of section 7 of the Public Health Act 2010 (NSW).
Turning to allegations 7 and 8, I did not endorse anything. A like is a like of someone’s comment. That’s the end of it. It doesn’t endorse anything. As a prosecutor, this would fail. You have to establish that I endorsed anything. A like on Facebook falls short of that.
If I am right as to the gist of the Beech-Jones J decision, then I will also be right regarding allegations 9 and 10.
…
I am willing to provide a written apology to the NSW Law Society for the public statements that I made. I am also prepared not to apply for a practising certificate for a certain period of time and undertake any required course work.
I am embarrassed that the statements I made ultimately ruined my professional career. The stresses of lockdowns, restrictions on movement, vaccine mandates and vaccine discrimination negatively impacted my judgment at the time and whilst that is no excuse for my actions, I wish to make amends. The benefit of hindsight and time that has elapsed has assisted.
I am not a bad person. I admit that I have made mistakes. Like all humans, we make mistakes. In this light, I ask that you reconsider commencing an application in NCAT but rather explore an undertaking or deed with some agreed alternatives as suggested above. It should be self evident that an undertaking and or deed will provide a more certain regulatory outcome that you can enforce should there be a breach.
Regards, Nathan Buckley.”
The following exchange occurred in cross examination of the respondent regarding the time at which the email was sent:
“Q. So do you agree with me, the context in which you sent the 19 February 2023 email was that you had recently been informed by the Law Society that it would be commencing disciplinary proceedings against you?
A. Yes, because the first sentence of my email says, ‘I refer to your letter dated 17 February 2023’.
Q. So do you agree with me that the context in which you sent the 19 February email, and the apology of 19 March, was that you had recently been informed by the Law Society that it would be commencing disciplinary proceedings against you?
A. No. The 19 February email was in response to the letter dated 17 February. The apology was separate and unrelated, but it’s connected by reference to the 19 February email.”
The respondent stood by the contents of the 19 February 2023 email although parts of it were no longer relevant.
The following exchange occurred in cross examination of the respondent regarding the email’s capacity to reveal insight into the respondent’s conduct:
“Q. In this email, you were setting out your response to various allegations set out in the reasons which start at TB204. I want to suggest to you that at no point in the matters you put forward in that email, do you express any analysis or insight as to why your conduct was wrong?
A. And it didn’t because that was dealt with in the subsequent emails and the apology of 19 March 2023. Aside from, no, that’s actually, it does actually show insight and I, I can refer you to the bottom of page 466, where it says
‘I’m willing to provide a written apology to the NSW Law Society for the public statements that I made. I’m also prepared not to apply for a practising certificate for a certain period of time and undertake any required coursework.’
And then it goes on to say:
‘I’m embarrassed by the statements that I have made. They may have ultimately ruined my professional career. The stresses of lockdowns, restrictions on movement, vaccine mandates and vaccine discrimination negatively impacted my judgment at the time. Whilst that is no excuse for my actions, I wish to make amends. The benefit of hindsight and the time that has elapsed has assisted.’
Then it goes on to say ‘I’m not a bad person. I admit that I’ve made mistakes like all humans, we make mistakes.’ That’s, that’s insight.
Q. Well, I want to suggest to you that that’s not insight. That’s expressing a wish that something hadn’t happened and hoping that proceedings wouldn’t be commenced. Can you point to anywhere in this email where you expressed views or put forward any analysis addressing the allegations against you that describes or shows an understanding as to why your conduct was wrong?
A. I’ve just written it, written, read it out to you.
Q. It’s the bits you pointed to?
A. And the apology of 19 March 2023.”
The applicant notes the following matters in relation to the Apology:
The Apology was made approximately a year and a half after the respondent first made the Twitter and Facebook posts in relation to the Kassam Judgment, and in the intervening period his practising certificate had been suspended.
The Apology was made in circumstances where the respondent was seeking to mitigate the consequences of proceedings proposed to be commenced against him.
The Apology did not set out detail as to why the conduct was wrong and reflects a lack of insight from the respondent.
The existence of the Apology does not alter the proper characterisation of the conduct for which the respondent apologised.
A letter was sent by the Law Society to the respondent on 17 February 2023 notifying him of the Council’s decision to commence proceedings, sent two days before the 19 February 2023 email and around one month before the Apology was sent by the respondent on 19 March 2023, which incorporates the 19 February 2023 email.
The substantial focus of the 19 February 2023 email was on defending the respondent’s conduct and “would not provide the Tribunal comfort” that the respondent has gained insight in respect of Grounds 6 and 7.
Consideration: The Apology and the email of 19 February 2023
The Tribunal is satisfied of the following matters:
The Apology and email demonstrate that the respondent is remorseful in relation to his conduct. The respondent admits he should never have made the statements the subject of Grounds 6, 7, 8 and 9. As he stated, his judgment was negatively impacted by the stresses surrounding the pandemic.
The respondent genuinely accepts that the comments should not have been made.
The conduct was, at least in part, the product of the extreme stress the respondent felt concerning the pandemic; the risks with vaccinations and the outcome of the Kassam Judgment.
There is nevertheless nothing to indicate that the respondent, yet, has insight into the severity of his wrongful conduct in light of his obligations as a legal practitioner.
The respondent was aware from the 17 February 2023 email sent by the Law Society that the Professional Conduct Committee of the Law Society had resolved to initiate proceedings against him for the alleged conduct. The respondent’s knowledge of this must be taken into account when considering the force of his 19 February 2023 email and the Apology sent one month later. Those explanations and apologies were given and made while the respondent was aware he was being prosecuted for his conduct. There can be no suggestion that the timing was coincidental. The conduct occurred more than a year and a half earlier.
The 19 February 2023 email is heavily focussed on explanations for the respondent’s conduct including “frustration and anger” and “the stresses” of the pandemic while maintaining that it has not been established “that anything I have ever written is misleading.” The respondent expressed that: “whilst that is no excuse for my actions, I wish to make amends.”
The Tribunal considers that, while the email demonstrates embarrassment and contrition on the part of the respondent, it does little to persuade the Tribunal that the respondent truly understands all the reasons why his conduct was wrong.
The respondent, while accepting that the conduct was wrong, does not accept it was misleading or might be treated by readers as a comment on the Reasons for Judgment. He maintains that his comments were an accurate representation of the effect of the Kassam Judgment.
The respondent does not show any true insight into his obligations as a legal practitioner or to the administration of justice that may arise from the conduct, dismissing it as a rant.
Notwithstanding his subjective impression of the realities of vaccine mandates and the powers of the government during the pandemic, the respondent had a professional obligation to refrain from making intemperate, unjustifiably critical and inflammatory comments.
Ultimately, the Apology and the 19 February 2023 email go some way to demonstrating that the respondent is aware he acted contrary to his professional obligations. However, he does not seem to appreciate how far from professional standards he strayed; even taking into account the extra stress he felt in the circumstances.
Unsatisfactory professional conduct and professional misconduct
In Ground 16 of the Complaint, the applicant contends that taken individually, the conduct referred to in Ground 6 or Ground 7 amounts to professional misconduct within the meaning of s 297(1)(a) of the Uniform Law.
The respondent concedes that “at most” the conduct referred to in Grounds 6 and 7 amounts to unsatisfactory professional conduct.
While the respondent relies on his Apology in reply, which we apprehend is done so partially on the basis that it shows the respondent’s behaviour was out of character because of the pandemic-related stresses he refers to, we consider that the personal circumstances of the respondent do not affect the characterisation of his conduct as professional misconduct under s 297(1)(a).
Even accepting that the events surrounding the post were objectively stressful and that the respondent was subjectively negatively affected by the outcome of the Kassam Judgment, the conduct departed from the appropriate standard.
As the Tribunal has found a breach of rr 3 and 5 of the Conduct Rules, the respondent’s conduct is capable of constituting unsatisfactory professional conduct under ss 296 and 298(b) of the Uniform Law.
The Tribunal is satisfied that the respondent’s public statements relating to the Kassam Judgment represent a substantial failure to maintain the requisite standard for the following reasons:
His failure was directly relevant to his ability to practise law: Asuzu at [40]. The respondent used the Facebook and Twitter pages of the Law Practice of which he was principal.
The statements were erroneous and highly misleading to viewers of those statements especially where it was public knowledge that the Law Practice represented the Henry plaintiffs in the Kassam proceedings.
As the Law Practice represented the Henry plaintiffs in the Kassam proceedings there was an even greater onus on the respondent to take care when commenting on the Kassam Judgment. What the respondent said was cloaked with the authority of a solicitor connected to the proceedings.
As a lawyer himself and one connected with the Kassam proceedings there was a greater ability and therefore greater onus to take care when making comments, irrespective of whether readers knew the post was his responsibility.
The statements cast aspersions against the institutional integrity of the Supreme Court of NSW by suggesting that Beech-Jones CJ at CL condoned serious violence.
The fact that the respondent characterises these as mere rants demonstrates his inattention to his professional obligations.
These factors constitute a fundamental lack of regard for the administration of justice of which the respondent forms part. They represent a substantial failure because the respondent did not direct his mind to the potential that he was mischaracterising the Kassam Judgment, and the severe implications of his public mischaracterisation and disparaging comments. As an officer of the Court, the respondent’s blatant lack of regard for the Court and for the administration of justice, and his lack of regard for the consequences of his actions, is serious. The respondent allowed his professional obligations to be overborne by his personal grievances.
The Tribunal finds that the conduct alleged in Ground 6 and 7 warrants a finding of professional misconduct under s 297(1)(a) of the Uniform Law.
Comments in relation to the Kassam Judgment (Grounds 8 and 9)
Ground 8 alleges:
“The Respondent made public comments in connection with the Kassam Judgment, which conduct was contrary to the Respondent’s paramount duty to the administration of justice under r 3 of the Conduct Rules.”
The Kassam Judgment Twitter and Facebook comments (Particulars 41 to 49:)
The applicant contends by particular 41 that on or around October 2021, the Respondent caused to be published the following comments on the Twitter platform which followed his Twitter post about the Kassam Judgment (the Twitter Comments):
“a. In response to the following comment by Darren@NonlinearDarren:
‘I think we are able to cut the Testicles of pedos seeing as they don’t have rights protected by the govt or 90 yr suppression order anymore. Would I be correct in this assumption?’,
on 15 October 2021, the Respondent stated:
“You’re correct based on today’s judgment. Go for it. Pedos have no rights.”
b. In response to the following comment by Whats Your Thoughts@colleenmenzies:
‘Does that mean I can go on a rampage? I have a few people I dislike & that have wronged Me!’),
on 15 October 2021, the Respondent stated:
‘Yeah. Beech-Jones said no one has any rights in New South Wales. Do as you please.’
c. In response to the following comment by Kezza Ray @kezzaRay666:
‘Can I go inject heroin into people?’),
on 16 October 2021, the Respondent stated:
‘Solong as it’s done under apublic health order under section 7 of the Public Health Act, yes’,”
By particular 42 the applicant contends:
“The Twitter Comments were posted on the Twitter account of the Law Practice, of which the Respondent was a partner at the time, and which Law Practice acted as the solicitors on the record for the Henry plaintiffs in the proceedings the subject of the Kassam Judgment.”
The Applicant repeats in particular 43 the contents of particular 31 above (at [190]) as to the findings made by Beech-Jones CJ at CL in the Kassam Judgment.
The Applicant contends by particular 44 that the Twitter Comments:
“a. did not honestly and fairly describe the effect of the Kassam Judgment;
b. criticised the Kassam Judgment based on facts that were not accurately stated;
c. were likely to mislead persons as to the effect of the Kassam Judgment; and/or
d. were likely to undermine confidence in the authority of Beech-Jones CJ at CL and/or the Supreme Court of NSW.”
The applicant contends by particular 45 that in or around October 2021, the Respondent caused to be published the following comments on the Facebook platform which followed his Facebook post about the Kassam Judgment (the Facebook Comments):
“a. In response to the comment:
‘That’s great news, I know some right asshole pedo pollies who shouldn’t be breathing’,
the Respondent stated:
‘… do your best.’
b. In response to the comment:
‘So I can rape anyone? Not that I’m going to but this is what your status is saying. Anything is possible. ff death is possible, so is rape, sexual harassment, emotional abuse already exists and many people get away with it. Fathers have no rights when it comes to court proceedings. It is not about blaming the government but the people that support the government. People are greater than the government. We the people are meant to win this’,
the Respondent stated:
‘... ask Beech-Jones. In NSW no one has any rights to bodily integrity. That’s what his judgment says.’
c. In response to the comment:
‘Anyone know his phone number. Prank him 24/7?’,
the Respondent stated:
‘it’s on the website’ and posted a link to the Supreme Court website contacts page.
d. In response to the comment, “We won’t forget what he said!”, the Respondent stated:
‘Hopefully he has a very short career as the CJ at CL.’
e. The Respondent posted the comment referred to at [particular] 45.d above:
‘... my point was you want to get somewhere in the legal world you have to give up everything that you ever believed in and wanted when you set out on your journey to be a lawyer. It’s all bullshit. Unless you are in a position of power, you‘re not getting anywhere. If you want to be a controlled muppet. Then you’ll go far. If you want to represent people on your own, you‘ll get nowhere. As soon as you take on the establishment, the Law Society will be all over your arse like a wet dildo.’
f. In response to the comment:
‘I hope that judge never sleeps another night knowingly he just consciously played his part in the murder of many Australians’,
the Respondent stated:
‘with the [image of fish emoji]?’”
The applicant contends by particular 46:
“The Facebook comments were posted on the Facebook Page of the Law Practice, of which the Respondent was a partner at the time, and which Law Practice acted as the solicitors on the record for the Henry plaintiffs in the proceedings the subject of the Kassam Judgment.”
By particular 47 the applicant repeats particular 31 above (at [190]) as to the findings made by Beech-Jones CJ at CL in the Kassam Judgment.
The applicant contends by particular 48 that the Facebook Comments at particular 45(a) and/or (b) above:
“a. did not honestly and fairly describe the effect of the Kassam Judgment;
b. criticised the Kassam Judgment based on facts that were not accurately stated; and/or
c. were likely to mislead persons as to the effect of the Kassam Judgment.”
The applicant contends by particular 49 that further or alternatively, the Facebook Comments at particular 45(a), (b), (c), (d), (e) and/or (f) above were likely to undermine confidence in the authority of Beech-Jones CJ at CL and/or the Supreme Court of NSW.
Breach of the Conduct Rules: Grounds 8 and 9 (the Twitter and Facebook comments)
The applicant’s contention that, by posting the Twitter and Facebook Comments, the respondent breached the Conduct Rules, is set out in Ground 8 (particular 50) and Ground 9 (particular 52).
The applicant contends by particular 50 that the Respondent’s conduct referred to in the following particulars was contrary to his paramount duty to the administration of justice as required under r 3 of the Conduct Rules:
“a. [particulars] 41 to [44] above;
b. [particulars] 45 to 49 above;
c. [particulars] 41 to [44] and [particulars] 45 to 49 above, when considered together.”
Ground 9 contends that:
“By engaging in the conduct referred to in:
a. [particulars] 41 to [44] above;
b. [particulars] 45 to 49 above;
c.[particulars] 41 to [44] and particulars 45 to 49 above, when considered together;
the Respondent acted in a manner which, contrary to r 5 of the Conduct Rules, was likely to a material degree to:
d. be prejudicial to, or diminish the public confidence in, the administration of justice; and/or
e. brings the legal profession into disrepute.”
By particular 52 to Ground 9 the Applicant repeats:
“a. [particulars] 41 to 44 above; and
b. [particulars] 45 to 49 above.”
The applicant’s submissions as to factual findings and breach of the Conduct Rules
Briefly summarised, the applicant made the following submissions in relation to Grounds 8 and 9:
By posting the Twitter comments, the respondent suggested that the effect of the Kassam Judgment was that the extraordinary and violent actions that had been described by users (such as cutting off someone’s testicles, going “on a rampage” and injecting people with heroin) were rendered permissible.
By posting the Facebook comments, the respondent suggested that extraordinary and violent steps could be taken because they were effectively condoned by the Kassam Judgment, as no one in NSW had “any rights” to bodily integrity.
The respondent’s conduct in authoring the comments on the Twitter and Facebook platforms was “particularly egregious” as they were made on the social media pages of the Law Practice which had represented one of the parties in the proceedings, meaning the comments were likely to be given greater weight.
The comment made on Facebook set out in particular 45(f) had the potential to convey (and appears to have been taken by some users as conveying) that Mr Buckley was recommending that Beech-Jones CJ at CL “sleep with the fishes” (being a reference to being murdered).
The respondent’s comments on the Facebook platform that the Chief Judge would have a “short career” and “sleep with the [fishes]” were personal attacks aimed at a judicial officer and likely to impair the authority of Beech-Jones CJ at CL and the Supreme Court of NSW. The respondent’s explanation regarding his use of the fish emoji does not make any sense – any alternative suggestions of the intended meaning of that comment would lead to an absurd result understood in context.
The comment in particular 45(e) suggested that the position of his Honour (and the Law Society) was morally compromised.
The respondent’s criticisms of Beech-Jones CJ at CL, and the legal profession more generally, were inappropriate and groundless. They had the effect of undermining the confidence in the integrity and propriety of the legal profession.
For those reasons, the respondent engaged in conduct that was contrary to his paramount duty to the administration of justice (r 3) and which was likely to be prejudicial to, or diminish public confidence in, the administration of justice, and/or bring the profession into disrepute (r 5).
The respondent’s position as to factual findings and breach of the Conduct Rules
The respondent admits to making the statements and admits that he should not have made the statements.
The respondent contends that the statements made by him have been misconstrued by the applicant in a similar fashion to the statements particularised in Grounds 6 and 7 (the Kassam Facebook and Twitter statements).
Evidence and submissions given by the respondent
The Twitter comments
The respondent accepted in cross examination that the comments he made on the Twitter platform related to the Kassam Judgment delivered that day in which he was a lawyer on the record, and he was expressing his opinion based on that Judgment.
The respondent denies that the comments made on the Twitter platform were in any way condoning violence. Set out below are various extracts from cross examination of the respondent to this effect:
“Q. So do you agree you were expressing your opinion based on Justice Beech-Jones’ judgment that day–
A. Yes. Q. –that a person would be able to cut the testicles off a paedophile?
A. That’s what it said.
Q. That’s what you said, correct?
A. Yes.
Q. Do you agree with me that by making a comment to that effect on your law firm’s Twitter account you were condoning violence by that person?
A. No. No, it’s just banter.
Q. Is that your evidence this is just banter?
A. Yes.
…
Q. And that you are again condoning violence there because this person has said she wants to go on a rampage and you’ve said, ‘Do as you please’? A. Again, it’s not condoning violence.
Q. Do you agree that she’s asked you a question, ‘Does that mean I can go on a rampage?’ and you’ve answered, ‘Yes. Do as you please’? Do you agree that you’re condoning violence by her?
A. No. Rampage could be anything. It could be, you know, going for a walk, going for a run. She hasn’t described what a rampage means.
Q. Mr Buckley, you’re making submissions you’ve got insight into this conduct. Are you seriously suggesting that when someone says, ‘Can I go on a rampage,’ and you say, ‘Do as you please,’ that maybe she’s talking about going for a walk. Is that really your evidence? A. Yeah. I don’t know what she was meaning when she said rampage.”
When cross examined on his suggestion that it was permissible for people to “go inject heroin into people” if it was done under the Public Health Act, the respondent maintained that “[i]t’s just frustration and banter.”
The respondent appeared to accept in cross examination that his comments were misleading though maintained that they did not condone violence:
“Q. You responded to his post about ‘Would I be correct in this assumption?’ The assumption that you’re able to cut the testicles off paedos. You responded ‘You’re correct. Based on today’s judgment, go for it. Pedos have no right.’ You made that post, correct?
A.Yes.
…
Q. Do you agree with me that it is a misleading characterisation of Justice Beech-Jones that the judgment gave licence to individuals to perpetuate forms of violence?
A. I accept that it was potentially misleading, I don’t accept that it had any connotations of violence.
Q. Just listen to my question, do you accept that it would be a misleading characterisation of Justice Beech-Jones’s judgment to suggest that it gave licence to individuals to perpetuate various forms of violence. Do you agree with that?
A. No, I don’t.
Q. You don’t agree that that would be a misleading characterisation of Justice Beech-Jones’ judgment?
A. I accept that. No, I don’t accept that it had any further element of violence associated with it.”
The respondent conceded that it was possible his comments would be given greater weight as they were made from the Twitter account of the Law Practice, though considered that viewers would not necessarily make a connection between “G&B Lawyers” and the respondent himself being the solicitor on record in the proceedings:
“Q. Do you accept that you are actually in a different position because you’re the solicitor on the record in the proceedings and judgment had been delivered that day? Do you see that you’re not just anyone? Do you agree with that?
A. People reading it might not have known that.
Q. Can you engage with my question? Do you accept that you’re in a different position? You’re not just anyone. You’re the solicitor on the record in proceedings of great public interest that were delivered that day. You’re not just anyone bantering on social media. Do you agree with that?
A. Possibly.
Q. Do you accept that in fact you’re in a different position because you’re the solicitor on the record and that things that you write on social media are likely to be given greater weight? Do you accept that?
A. It’s possible too.
Q. Do you accept it or not?
A. It depends on the reader. The reader might not know who posted this. It just says G&B Lawyers. They might not know that I was the – the person writing the post was the solicitor on the record. It just says G&B Lawyers.”
The Facebook comments
The respondent accepted in cross examination that the comments he made on the Facebook platform related to the Kassam Judgment delivered that day in which he was a lawyer on the record, and he was expressing his opinion based on that Judgment.
The respondent denies that the comments made on the Facebook platform were in any way condoning violence. He indicates his acceptance that at least some of those comments were potentially misleading as to the true effect of the Kassam Judgment. Set out below are various extracts from cross examination of the respondent to this effect:
“Q. I want to suggest to you that by posting that in response to a question from someone, “Can I rape anyone?” that you were condoning violence?
A. No. It’s preceded by the words, “Ask Beech-Jones.”
Q. I want to suggest to you that you were condoning violence and suggesting that that was an effect of what Justice Beech-Jones had said that day?
A. No. I wasn’t condoning violence.
…
On the following page, a woman asks you “I know some arsehole pedo pollies who shouldn’t be breathing” and you responded “Do your best.” What I want to suggest to you is that you were, by making those posts, affirming a misleading characterisation of Justice Beech-Jones’s judgment?
A. Yes.
Q. That’s what you were doing in making those posts?
A. Potentially, that was the outcome, yes. But there’s no evidence to prove that.”
The respondent states in his submissions that the reference to a fish emoji does not convey anything of the description suggested by the applicant. The respondent suggests that the use of the emoji and the subsequent question mark leaves a number of potential possibilities open for what this means.
The following exchange occurred in relation to the respondent’s Facebook comment allegedly recommending that Beech-Jones CJ at CL “sleep with the fishes”:
“Q. You’re aware, aren’t you, that a post of “fishes” in that context, that that is a mob term for someone who’s been killed?
A. No. Don’t know that at all.
Q. Are you aware of that?
A. No.
…
Q. I want to suggest to you that by posting the ‘with the fishes emoji’ in the context in when (as said) you posted, that you were encouraging personal attacks aimed at a judicial officer?
A. No, I reject that.”
Set out below are extracts from cross examination of the respondent in relation to what the applicant contends are personal attacks contained in the respondent’s Facebook comments aimed at Beech-Jones CJ at CL:
“Q. And I want to suggest to you – if you go back to 156 – that when you posted ‘Hopefully he has a very short career as the Chief Justice at Common Law’ and when you posted his phone number of his website in response to a ‘Prank him 24/7’, that you were encouraging or assisting people to engage in personal attacks aimed a judicial officer?
A. I reject that.
Q. And that you were doing that in the context of encouraging or assisting people in relation to personal attacks at a judicial officer, motivated by the mere performance of his judicial function?
A. I reject that
Q. Do you accept that for a person to prank call a Supreme Court judge 24/7 after they deliver reasons in a proceeding, that that is likely to impair the authority of that Supreme Court judge?
A. I didn’t do that.
…
Q. I want to suggest to you that your conduct in doing so is likely to undermine confidence in that judge and the Supreme Court by assisting in conduct that would involve the harassment of that Supreme Court judge as part of them undertaking their judicial function?
A. No, I didn’t do any of that. All I did was post a link to the website.
…
Q. Mr Buckley, I want to suggest to you that for you as a solicitor, being the solicitor on the record of proceedings in which a judgment had been delivered that day in a contentious judgment with a lot of public interest and someone says, ‘Prank the judge 24/7,’ that for you to provide the phone number for that judge on a website was contrary to your duty to the administration of justice?
A. No, I disagree
…
Q. What I want to suggest to you is the fact that you as a solicitor, the solicitor on the record in these very proceedings, were providing a phone number that a person could use to prank call Justice Beech-Jones, the fact that you did it, not anyone else, the fact that you did it would be likely to diminish public confidence in the administration of justice. Do you agree with that?
A. No. All I did was post a link to a website. That’s all.”
The respondent accepted that by providing the link to the publicly available phone number of the chambers of Beech Jones CJ at CL he was providing assistance to those seeking to contact him, though denied that this extended to assistance for those seeking to prank call him. The following exchange occurred in cross examination:
“Q. Mr Buckley, you don’t even accept that what you did involved some assistance that you provided to this person who was seeking the phone number of a Supreme Court judge, correct? You deny that you were even providing assistance?
A. I gave assistance. I gave him the phone number via a link to a website which is publicly available.
Q. So do you agree you gave him assistance should he wish to prank call Justice Beech-Jones?
A. Not to prank call. I gave him assistance by giving him the phone number. I didn’t assist him to prank anybody. I didn’t give him any devices to do, you know, continuous phone calls or – there’s no assistance done in that regard. All I did was I posted a link to a website which had information that was freely available to the public.
Q. Do you accept the context in which you provided the assistance was someone saying to you, ‘Prank him 24/7,’ and that’s relevant to the assistance you provided, correct?
A. No. The pranking, I didn’t do any assistance in regard to. All I did was I gave a phone number.”
The respondent denied in cross examination that by suggesting Justice Beech-Jones would have a short career as Chief Judge at Common Law, the respondent was impugning his Honour’s authority.
Insight and contrition of the respondent
The respondent relies on the submissions made as to his insight and contrition for the original statements made which are the subject of Grounds 6 and 7, which includes his reliance on the Apology.
Determination: the Facebook and Twitter comments (particulars 41 to 49)
The Tribunal is satisfied of the following matters:
The respondent made the Twitter and Facebook comments using the social media pages of the Law Practice.
It was easily ascertainable to Facebook and Twitter users that the Law Practice acted for the Henry plaintiffs in the Kassam proceedings.
It was not necessarily apparent to users on Facebook and Twitter that the respondent was a solicitor. However, the statements were made by the respondent through the Law Practice and the respondent is responsible for them. Moreover, the statements would have been accorded authority by viewers in a similar way because they were made by the Law Practice.
The Twitter comments did not accurately describe the effect of the Kassam Judgment. On no reasonable reading did the Kassam Judgment suggest that the impugned Public Health Orders violated the right to bodily integrity. The respondent said “Beech-Jones said no one has any rights in New South Wales. Do as you please” and then agreed with Twitter users that they could “cut the testicles of pedos” and “go on a rampage” and “inject heroin into people”.
The Twitter comments were therefore misleading as to the effect of the Kassam Judgment, which did not condone any violence or interference with bodily integrity.
The Facebook comments made by the respondent were a misleading characterisation of the Kassam Judgment which was used to condone the violent acts suggested by various commenters on the basis that “In NSW no one has any rights to bodily integrity. That’s what his judgment says.”
An obvious consequence of the respondent’s mischaracterisation of the effect of the Kassam Judgment on both the Facebook and Twitter platforms is that public confidence in the authority of Beech-Jones CJ at CL and the Supreme Court of NSW would tend to be undermined.
Aside from their obvious inappropriateness, the comments by the respondent expressing hope that Justice Beech-Jones has a short career as Chief Judge at Common Law, and what the Tribunal accepts are suggestions that the Law Society lacks integrity, could undermine confidence in the administration of justice and the legal profession. Rather than taking a microscope to their individual meanings, the Tribunal has satisfied itself that the cumulative effect of these comments could undermine confidence in the integrity and propriety of the legal profession, and that on a reasonable reading, a selection of those Facebook comments constituted a personal attack on Beech-Jones CJ at CL.
By providing a link to the Supreme Court of NSW’s judicial officer contacts list, the respondent was assisting people in contacting the chambers of Beech-Jones CJ at CL. Although users could have accessed this public list themselves, the respondent was assisting users by removing a step in the process of ascertaining the relevant phone number. The Tribunal finds that the context in which the link was posted – in response to the comment ‘Prank him 24/7?’ – connects the respondent’s behaviour with the suggestion to prank call the Chief Judge at Common Law and therefore he was assisting them to prank call the chambers.
Further, it was easily ascertainable that the respondent’s Law Practice, which posted the comments, was the solicitor on record in the Kassam proceedings, giving further credence to the mischaracterisation contained in the comments.
We reject the respondent’s characterisation that the posts were “mere banter”. The comments were inflammatory, derogatory and, in context, not able to be dismissed as mere banter. They were more pernicious than mere banter. Whilst they might be seen as hyperbole, this is not sufficient for them to be entirely negatived.
For the reasons given above, the Tribunal is satisfied that particulars 41 to 49 have been made out.
Determination: Breach of the Conduct Rules (Grounds 8 and 9)
Viewed in the context of the respondent’s role as principal of the Law Practice on record in the proceedings, the above findings satisfy the Tribunal that the respondent overlooked his responsibility to familiarise himself with the true implications of the Kassam Judgment and instead facilitated the spread of misinformation about the Judgment and criticism of Beech-Jones CJ at CL and the Court. He has therefore breached r 3 of the Conduct Rules. Contrary to r 3, the respondent has denigrated instead of upheld his paramount duty to the Court and the administration of justice.
The Tribunal is satisfied that the respondent has undermined public confidence in the administration of justice contrary to r 5 of the Conduct Rules. The respondent’s comments on both the Twitter and Facebook platforms have the effect of implicating Justice Beech-Jones and the Supreme Court of NSW in the curial approval of violence from an erroneous reading of the Kassam Judgment published on the Twitter and Facebook accounts of the Law Practice, which would have lent the interpretation legitimacy. This is especially so where it was publicly available information that the Law Practice represented the Henry plaintiffs in the Kassam proceedings.
The Tribunal is satisfied that the respondent was acting contrary to his duty to the administration of justice by purporting to assist users in the Facebook comments to contact the chambers of Justice Beech-Jones and ‘Prank him 24/7’ by providing a link to access his number. The respondent’s overall involvement in what was likely to practically interfere with the daily functioning of the chambers of Beech-Jones CJ at CL was contrary to r 5 of the Conduct Rules.
The parties’ submissions and the Tribunal’s consideration of the Apology is set out above. The existence of the Apology does not alter the proper characterisation of the conduct for which the respondent apologised.
Unsatisfactory professional conduct and professional misconduct
In Ground 16 of the Complaint, the applicant contends that taken individually, the conduct referred to in Ground 8 or Ground 9 amounts to professional misconduct within the meaning of s 297(1)(a) of the Uniform Law.
The respondent relies on the Apology in response and contends that “at most” his conduct in making the comments amounted to unsatisfactory professional conduct.
As the Tribunal has found a breach of the Conduct Rules, the respondent’s conduct constitutes unsatisfactory professional conduct under ss 296 and 298(b) of the Uniform Law.
Although fair and robust criticism of the Court is permissible, the conduct of the respondent could not be so described. That conduct is capable of constituting professional misconduct after it crossed the line and passed fair and robust criticism: Potkonyak at [150].
The Tribunal is satisfied that the respondent’s comments in connection with the Kassam Judgment represent a substantial failure to maintain the requisite standard for the same reasons articulated in Grounds 6 and 7 above. In addition:
The comments inappropriately challenged the integrity of the Law Society and the legal profession.
The comments constituted a personal attack on Beech-Jones CJ at CL.
The comments facilitated interference with his Honour’s chambers by providing a link to the chambers’ contact number.
Taken together, the Facebook and Twitter comments by the respondent suggesting that the Supreme Court of NSW had condoned “extraordinary and violent steps” by the government pursuant to a Public Health Order are sufficiently serious to be a substantial failure to maintain the requisite standard. As has been established, they were posted by the respondent using the social media accounts of the Law Practice and their impact is heightened by this fact. The respondent did not turn his mind to the severity of his repeated suggestion to Twitter and Facebook users that the Kassam Judgment rendered legally valid a broad range of illegal acts. The conduct falls dramatically short of the respondent’s professional obligations toward the administration of justice.
The Tribunal finds that the conduct contained in Grounds 8 and 9 warrants a finding of professional misconduct under s 297(1)(a) of the Uniform Law.
Endorsement of public comments: the Facebook likes (Grounds 10 and 11)
Ground 10 provides:
“The Respondent endorsed public comments on the Facebook platform which conduct was contrary to the Respondent’s paramount duty to the administration of justice under r 3 of the Conduct Rules.”
By particular 54 the applicant contends:
“In or around October 2021, the Respondent clicked the ‘like’ button on the Facebook platform (Liked) in relation to the following public comments, as a result of which an image of a thumbs up appeared on the comment, together with the words ‘G&B Lawyers’, which were visible to the viewers of the comment and conveyed that the Law Practice supported and/or endorsed the comment:
a. comment from Sean O’Sullivan stating, among other things, ‘you are a legend Nathan, way to raise hell, so we can freeze it over and be done with the pedos, they seriously are now on record defending pedos, that alone is worth the price of admission…’;
b. comment from Megan Bliss stating, ‘I hope this cracks the injustice system. A court that validates medical rape is invalid’;
c. comment from Brad Marks stating, ‘Can we ask for an independent audit of the justice’s and his families finances???? Any large government transfers lately???’
d. comment from Marieanne Winspear stating, ‘They are showing their hand at how corrupt and evil they are’;
e. comment from Colin Laraine Bunt stating, ‘Really, OMG what sort of soulless man is he?’; and
f. comment from Deborah Eagles stating, ‘Our Parliament and overseeing legal system is corruptly privatised. They don’t like fair and just lawyers, standing for the rights of the people, under the Commonwealth of Australia…’.”
By particular 55 the applicant contends that the comments referred to in particular 54:
“a. did not constitute fair and legitimate criticism of the Kassam Judgment;
b. were published on the Facebook page of the Law Practice;
c. were made in response to the Respondent’s post at [particular] 33 above, which used inflammatory language that was likely to encourage adverse commentary; and
d. were Liked using the Facebook account of the Law Practice.”
The applicant contends by particular 56 that by Liking the comments referred to in particular 54, the respondent:
“encouraged and/or publicly condoned the making of public statements that were likely to undermine confidence in the authority of Beech-Jones CJ at CL and/or the Supreme Court of NSW.”
The applicant’s contention that, by liking the Facebook comments on his post, the respondent breached the Conduct Rules, is set out in Ground 10 (particular 57) and Ground 11.
The applicant contends by particular 57 that the respondent’s conduct referred to in particulars 54 to 56 above was contrary to his paramount duty to the administration of justice as required under r 3 of the Conduct Rules.
Ground 11 alleges that:
“By engaging in the conduct referred to in [particulars] 54 to 56 above, the Respondent acted in a manner which, contrary to r 5 of the Conduct Rules, was likely to a material degree to:
a. be prejudicial to, or diminish the public confidence in, the administration of justice; and/or
b. bring the legal profession into disrepute.”
The applicant’s submissions as to factual findings and breach of the Conduct Rules
Briefly put, the applicant makes the following submissions in relation to Grounds 10 and 11:
The respondent did not take any steps to remove, delete or conceal the adverse comments. Instead, he ‘Liked’ them.
The act of ‘liking’ a post would naturally be understood by users, given the “ubiquitous nature of social media and reactive actions”, as the respondent endorsing or at least publicly condoning the comments he had liked.
The respondent’s liking of the comments would naturally have been perceived as a form of approval for the sentiments expressed in those comments and a criticism of Justice Beech Jones CJ at CL and the Kassam Judgment.
The comments appeared in response to the respondent’s post in connection with the Kassam Judgment using the Facebook of the Law Practice, which had represented the Henry plaintiffs in the proceedings.
The proper administration of justice requires that there be public confidence in the courts’ judgments. It is contrary to that objective for a legal practitioner to publicly endorse or condone the making of public statements that undermine the authority of a judicial officer and the court. The respondent’s conduct in ‘Liking’ the comments undermined the administration of justice, contrary to his paramount duty under r 3 of the Conduct Rules.
The respondent’s conduct in endorsing or publicly condoning the statements set out above was likely to undermine confidence in the administration of justice and to bring the profession into disrepute contrary to r 5 of the Conduct Rules.
The respondent’s position as to factual findings and breach of the Conduct Rules
In his submissions and reply, the respondent:
admits to the act of liking the comments using the Facebook page of the Law Practice but denies that the effect of this was to endorse those comments;
contends that there is “no evidence whatsoever” to support the applicant’s conclusion that the act of clicking a ‘like’ button on Facebook amounts to an endorsement of any third party’s public statement made on Facebook; and
asserts that clicking ‘like’ did not amount to any criticism of the Kassam Judgment, nor did it amount to the endorsement or condoning of the comments relied upon by the applicant in support of this ground.
Evidence given by the respondent
In cross examination, the respondent disagreed with the proposition that a comment he ‘liked’ suggested the Kassam Judgment was motivated by an improper purpose:
“Q. Down the bottom of 161, Brad Marks asked, ‘Can we ask for an independent [audit] of this justice’s and his family’s finances?’ You understood that to be a reference to Justice Beech-Jones, correct?
A. Yes.
Q. “Any large government transfers in lately?” Do you see that?
A. Yes.
Q. Do you agree with me that the impression or the gist of Brad Marks’ post was that Justice Beech-Jones’s judgment was motivated by an improper purpose or corruption?
A. No, it doesn’t actually say that at all
…
Q. Just look at the post. Do you accept that for a person to react to a judgment that’s been delivered by a judge by asking, “Can we get an independent audit of his and his family’s finances”, and whether there’s been large transfers, is to raise a question about the propriety of the judge?
A. No.
Q. You don’t agree with that?
A. No.
Q. Isn’t that the obvious gist of what that person is posting? They’re querying: is this judgment – are there questions we need to analyse about Justice Beech Jones’ finances?
A. As I said, I don’t know. You’d have to ask Mr Marks.
Q. You’re unable to engage with my question about that?
A. Cause I didn’t write it, so I don’t know what Mr Marks was intending to infer when he wrote that.”
The respondent agreed in cross examination that the comment of Megan Bliss was a misleading characterisation of the Kassam Judgment:
“Q. Do you agree with me that to characterise Justice Beech-Jones’s judgment as “validating medical rape”, that that would be a misleading characterisation of that judgment?
A. It would depend on the situation. If there was a public health order that did that, then it would not be misleading.
Q. I’ll ask my question again. Do you accept that to characterise Justice Beech-Jones’s judgment as “validating medical rape”, that would be a misleading characterisation of his Honour’s judgment?
A. Yes.”
However, the respondent disagreed that his interaction with the post affirmed the allegedly misleading nature of the Judgment:
“Q. And that by liking that post, you were expressing a form of view that that was an available inference of what the judgment stood for?
A. No, you’re, you’re overreading into the whole meaning of likes.
Q. And that by liking posts of that nature, you were affirming or encouraging someone to have a wrongheaded impression about what Justice Beech-Jones’s decision actually stood for. Do you agree with that?
A. No. They might not have the notifications on; they may never have seen that I liked the post.”
The respondent did not accept that by liking a comment alleging corruption he was reflecting his support for that idea:
“Q. Then can you look please at page 162 towards the middle of the page. Marianne Winspear(?) says, “They are showing their hand at how corrupt and evil they are”?
A. Yes.
Q. And you liked that post as well?
A. Yes.
Q. So that by liking that post, you were showing a form of support for an idea or speculation that Justice Beech-Jones or the judgment was corrupt?
A. No.”
In cross examination, the respondent denied that the ‘liking’ of the Facebook posts by him, specifically those of Sean O’Sullivan and Megan Bliss, had the effect that the applicant contended it did:
“Q. I want to suggest to you that using a like button on Facebook, that that’s an action that you have to take, to press a button, correct?
A. You press a button, yes, but you don’t use Facebook, do you, counsel? So you’re not familiar with the purpose and how Facebook works and how people interact with it, are you?
Q. Mr Buckley, just listen to my question.
A. I’m asking you a question.
Q. You accept that, in order to like a post, I want to suggest to you that by liking a comment on Facebook, a person is conveying some type of positive action or endorsement?
A. Wrong.
Q. That they like that post in the sense of agreeing with it or that the post is a good thing, do you agree with that?
A. No, I could have also done a love heart or a care emoji, or I could’ve done a smiling emoji, I could’ve done a sad emoji.
Q. Mr Buckley, you didn’t, did you? You used the like button?
A. Yes, I liked it. That’s all it is. It doesn’t have any further meaning to it.
Q. I want to suggest to you it does have meaning, and it’s a type of positive affirmation or endorsement as to what the person has said?
A. No. I do not accept that.
Q. So, it is your evidence on oath to this Tribunal that for you to press the like button on a post that says, “A court that validates medical rape is invalid” has no meaning?
A. It has none whatsoever.
Q. None whatsoever?
A. Just a like.”
The respondent ultimately denied that his interaction with selected comments expressed any view on the comment even if the respondent agreed with the applicant’s view on the ‘gist’ of a comment:
“A. No, I don’t support anyone’s ideas when I click like.”
The following exchange occurred in cross examination with respect to the applicant’s submission that the respondent’s conduct was more serious due to his affiliation with G&B Lawyers:
“Q. I want to suggest to you that the fact that the like is coming from G&B Lawyers, which is a law firm, makes the liking of these posts more serious?
A. No, not at all, no.
Q. I want to suggest that the fact that the liking is being done by G&B Lawyers makes it more serious, because people are likely to give greater weight to the fact that it’s a lawyer or a firm of lawyers expressing this type of liking support. Do you agree with that?
A. No.”
The respondent contended in his cross examination that the conduct of then-NSW Premier Gladys Berejiklian was relevant to the Tribunal’s assessment of his conduct in the proceedings. The respondent contended it is relevant:
“A. Because, because all of the things that her government did should be – particularly in the context of the subject matter of this proceedings, is tainted in corruption and should be considered in that light.”
The respondent submits that since none of the likes amount to an endorsement of a third party’s public statements made on Facebook, that his conduct was not contrary to rules 3 and 5 of the Conduct Rules.
Determination: the Facebook likes (Ground 10, particulars 54 to 57)
The Tribunal is satisfied of the following matters:
The respondent “liked” the comments using the Facebook account of the Law Practice. It was clear to Facebook users that the Law Practice was liking the comments, although not necessarily that the respondent was doing so.
The respondent was interacting with the comments on a public forum.
The original post upon which the comments were posted, the subject of Grounds 6 and 7, was likely to encourage adverse commentary because it was a gross mischaracterisation of the Kassam Judgment which could reasonably lead to serious misgivings about the nature of the Judgment and the Supreme Court of NSW given the respondent’s status as a lawyer, which gave his statements a higher degree of legitimacy.
The comments set out in particular 54 were not fair and legitimate criticism of the Kassam Judgment. They suggest the following:
A consequence of the Judgment was that the Supreme Court of NSW and/or Justice Beech Jones CJ at CL were “on record defending pedos”.
The Judgment “validated medical rape”.
The comments attack the integrity of Beech-Jones CJ at CL and/or the Supreme Court of NSW. They suggest as follows:
Beech-Jones CJ at CL should be subject to an independent audit.
The Court and/or Justice-Beech Jones CJ at CL is “corrupt” and “evil” and “corruptly privatised”.
Beech-Jones CJ at CL is a “soulless man”.
The Parliament and legal system “don’t like fair and just lawyers”.
On no reasonable reading of the Kassam Judgment did it have the effect suggested by those commenting on the respondent’s post.
The Tribunal was not taken to any evidence on the usage of the like button on the Facebook platform or other forms of social media. The symbol is ubiquitous but does not necessarily have a settled meaning in all contexts to all people. We infer that it may have different connotations to different people and be context dependent; it may be an express approval of the sentiment contained in the post, or something more nuanced.
Nevertheless, the action of “liking” a post on Facebook is not an expression of complete neutrality. We are satisfied that the action of “liking” is not an expression of disapproval. It has a positive connotation. We note that the extract of the cross examination of the respondent set out above reveals that he is aware other reactions were available to him on the Facebook platform when interacting with comments. If he wished to express disapproval of those comments, he could have chosen a different reaction. As to whether the ‘like’ reaction conveyed an approval of the comments made, we would infer that at least some readers would take it as a positive to some extent, as its name suggests.
Some members of the public would view the liking of various comments by the Law Practice, on a post published by the Law Practice, as an indication that the Law Practice approved or endorsed the content of those comments.
The respondent, therefore, encouraged and/or publicly condoned the making of public statements that were likely to undermine confidence in the authority of Beech-Jones CJ at CL and/or the Supreme Court of NSW.
For the above reasons, the Tribunal finds that particulars 54 to 57 of Ground 10 are made out.
Determination: Breach of the Conduct Rules – The Facebook likes (Grounds 10 and 11)
The Tribunal is satisfied of the following:
The respondent’s public endorsement of the comments was contrary to the respondent’s paramount duty to the Court and to the administration of justice pursuant to r 3 of the Conduct Rules. The respondent should have familiarised himself with the true implications of the Kassam Judgment instead of endorsing numerous misgivings about the effect of the Judgment and propriety of the Court. The respondent’s lack of regard for the seriousness of his endorsement of these inflammatory comments runs contrary to his paramount obligation in r 3.
The conduct was likely to undermine confidence in the administration of justice and to bring the profession into disrepute contrary to r 5 of the Conduct Rules. It was clear that the Law Practice was liking the comments, which makes the endorsements more serious. As the respondent was acting through the account of the Law Practice, he is responsible for the likes. The nature of the comments was injurious to the institutional integrity to the Court and its Judges, and the respondent has directly involved himself in this dialogue by “liking” them.
Unsatisfactory professional conduct and professional misconduct
In Ground 16 of the Complaint, the applicant contends that taken individually, the conduct referred to in Ground 10 or 11 amounts to professional misconduct within the meaning of s 297(1)(a) of the Uniform Law.
The applicant submits:
“a. Mr Buckley endorsed public statements by others in connection with the Kassam Judgment which were likely to impair the authority of Beech-Jones CJ at CL and/or the Supreme Court of NSW. Members of the public place their trust in members of the legal profession who, in turn, provide representation and advice to them according to the law. It is fundamental that the legal profession be seen as facilitating, rather than detracting from, the administration of justice. Mr Buckley’s conduct was contrary to rules 3 and 5 of the Conduct Rules.
b. Mr Buckley’s conduct was sufficiently serious to be described as a ‘substantial failure’ for the purposes of s 297(1)(a). It also demonstrated ‘consistent failure’, involving endorsement of multiple problematic comments on Facebook. Therefore, the conduct in each of grounds 10 and 11 constituted professional misconduct under s 297(1)(a).”
The respondent submits that the clicking of a ‘like’ button in respect of a comment made by a third party on Facebook cannot amount to an endorsement of any views expressed and did not constitute criticism of the Kassam Judgment or encourage any adverse commentary by other third parties. Accordingly, no order should be made in relation to this conduct.
As the Tribunal has found a breach of the Conduct Rules, the respondent’s conduct constitutes unsatisfactory professional conduct under ss 296 and 298(b) of the Uniform Law.
The Tribunal is satisfied there is a sufficient connection with the practice of law since the respondent was using the Facebook page of the Law Practice to ‘like’ the relevant Facebook comments. The Tribunal is satisfied that this form of interaction with the various comments criticising the Kassam Judgment amounts to a ‘substantial’ failure to maintain the requisite standard of competence or diligence. Instead of upholding the integrity of the administration of justice, it encouraged abusive and offensive comments.
While the respondent has ‘liked’ multiple comments on the Facebook platform, they are confined to one primary post made by the respondent (see particular 33) and the Tribunal is not prepared to brand the conduct specified in Ground 10 as a “repeated” or “persistent” failure across different occasions to maintain the requisite standard: Webb at [26].
The Tribunal finds that the respondent’s conduct referred to in Grounds 10 and 11 constitutes professional misconduct within the meaning of s 297(1)(a) of the Uniform Law because it presents a ‘substantial’ departure from the requisite standard.
In Council of the Law Society of New South Wales v Sideris [2025] NSWCA 159 (18 July 2025), the NSW Court of Appeal upheld a finding of the NSW Civil and Administrative Tribunal, and followed its recommendation that the respondent be struck off for professional misconduct. The court found that the respondent – who had been admitted as solicitor in 1987, was not a fit and proper person. His breaches of the conduct rules, the court found, were coupled with a lack of insight into his professional shortcomings. He had engaged in grossly discourteous, course, disrespectful, gratuitously offensive, improperly threatening and wholly unprofessional communications, communicated directly with the opposing client communicated and had made false statements as to his residence to avoid service of the proceedings. The court wrote:
…
Background and overview
[10] The Respondent was admitted to the legal profession in New South Wales on 3 July 1987, and held a practising certificate in each year from 13 July 1987 to 30 June 2022. The Respondent has not held a practising certificate from 20 October 2022 to the present date.
[11] The origin of this application lies in actions by the Respondent in acting for his elderly mother-in-law, Mrs Norma Sim, in her dealings with the Salvation Army (TSA) and its then solicitor, Mr Luke Geary of the firm Mills Oakley, in relation to the mother-in-law’s liability to pay a Refundable Accommodation Deposit and the balance of that deposit. TSA was the provider of Mrs Sim’s aged care accommodation.
[12] On 18 May 2021, Mr Geary sent an email to the Respondent stating that he acted for TSA, was in the process of confirming TSA’s instructions, and to “Please direct any further correspondence concerning this matter to my office”.
[13] By email dated 5 July 2021, Mr Geary again requested that the Respondent direct any correspondence concerning the dispute to his office, as opposed to TSA directly. This request was repeated by Mr Geary in what the Tribunal described as “increasingly direct terms” by emails on 8 July 2021, 30 August 2021, 6 September 2021, 19 October 2021 and 29 October 2021: TD1 [19].
[14] The Respondent was and remains adamant that, in his dealings with TSA, he was acting in his capacity solely as a caring son-in-law and not in his capacity as a solicitor. This founded his argument that the conduct of which Mr Geary ultimately complained to the Law Society, and which underpins the Tribunal’s recommendation and the Council’s application, did not involve the Respondent acting in his capacity as a solicitor and thus did not entail a breach of rr 33 and 4.1.2 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) (Conduct Rules). The relevant version of r 33 is quoted below (at [24]). Rule 4.1.2 provided (and still provides) that a solicitor must “be honest and courteous in all dealings in the course of legal practice”.
[15] The Tribunal disagreed with the Respondent’s contention as to the capacity in which he acted, following a close analysis of the facts and the terms of the very great deal of correspondence sent by the Respondent directly to TSA, including that bypassing its then solicitor, Mr Geary: Council of the Law Society of New South Wales v Sideris[2024] NSWCATOD 3 at [98]–[147] (Stage 1 Decision or TD1). The Respondent was found to be acting as a legal practitioner in the course of the dispute between his mother-in-law and TSA from 1 July 2021 to 17 February 2022: TD1 [129]. It is apparent from the correspondence detailed in the decision that the finding was soundly based. As the Tribunal held, the Respondent referred to himself both explicitly and implicitly as a solicitor in his correspondence with TSA and Mr Geary on multiple occasions.
[16] The “no contact” rule, as r 33 is sometimes known, has a long pedigree in the legal profession; direct contact by one party’s solicitor with the other party rather than through his, her or its solicitor, being described as “extremely unprofessional” as long ago as 1847: Jones v Jones (1847) 5 Notes of Cases in the Ecclesiastical and Maritime Courts 134 at 140. In Re Margetson and Jones[1897] 2 Ch 314 at 318 –19, Kekewich J described this professional rule as “highly consonant with good sense and convenience, because otherwise solicitors cannot really do their duty, and it is impossible for business to be properly conducted unless the solicitors have the full confidence of their clients and are enabled to communicate the one with the other upon that footing”. In Legal Practitioners Conduct Board v Wharff[2012] SASCFC 116, the Full Court of the Supreme Court of South Australia stated that:
[11] It is unethical and improper for a legal practitioner to communicate with an opposing party whom he or she knows to be represented by another legal practitioner in the matter without the latter’s consent.
[12] The rationale for this principle includes protecting the opposing party against the solicitation of information by the opposing legal practitioner contrary to that party’s interests, as well as preventing the undermining of the other party’s trust and confidence in his or her own legal practitioner.
[17] In the present case, each breach of the no contact rule was found to be unsatisfactory professional conduct and, by reason of persistent breaches of r 33, after Mr Geary had requested that the Respondent deal directly with him as TSA’s solicitor, the Tribunal at TD1 [167]–[168] characterised the conduct considered cumulatively as professional misconduct, being conduct which involved a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence: LPUL s 297(1)(a).
[18] When Mr Geary raised his complaint with the Respondent and requested that he deal with him as TSA’s solicitor rather than directly with TSA, the manner and tone of the Respondent’s correspondence with him and later the Law Society deteriorated to such an extent that the Tribunal also found that the Respondent had breached r 4.1.2 of the Conduct Rules. Indeed, the Tribunal (at TD1 [188]) characterised the Respondent’s breaches of the rule as “deliberate and wilful” after Mr Geary had written to him saying:
I do not think it is appropriate for solicitors to use language of the kind you have used, in professional communications … please ensure your compliance with the Solicitors’ Rules regarding communications between practitioners.
[19]Courtesy and civility by and between practitioners are critical to the administration of justice, respect for and the reputation of the legal profession and ultimately, respect for the rule of law. “The importance of courtesy in the legal system, and in the relationship between the legal profession, the court system, and general public should not be understated”: Legal Profession Complaints Committee v in de Braekt[2013] WASC 124 at [28] (de Braekt). The Full Bench of the Western Australian Supreme Court in de Braekt at [30] also referred to the admonition of Benham CJ of the Supreme Court of Georgia in Butts v State 546 SE 2d 472 at 486 (2001):
Civility is more than just good manners. It is an essential ingredient in an effective adversarial legal system such as ours. The absence of civility would produce a system of justice that would be out of control and impossible to manage: normal disputes would be unnecessarily laced with anger and discord; citizens would become disrespectful of the rights of others; corporations would become irresponsible in conducting their business; governments would become unresponsive to the needs of those they serve; and alternative dispute resolution would be virtually impossible.
This same passage was quoted with approval by the Full Court of the Supreme Court of the Australian Capital Territory in Lander v Council of the Law Society of the Australian Capital Territory[2009] ACTSC 117; (2009) 231 FLR 399 at [23].
[20] The importance of legal practitioners displaying an appropriate standard of courtesy and civility was emphasised by Allsop J in Barghouthi v ING Custodians Pty Ltd [2003] FCA 636 at [16] who said “[c]ourtesy and civility are not bourgeois affectations. They are not the mark of the effete or inept litigator. They are part of a practitioner’s overriding duty to the court, indeed to the standards of the profession and to the public.” We agree.
[21] Other authorities are to like effect: Garrard (t/as Arthur Anderson & Co) v Email Furniture Pty Ltd(1993) 32 NSWLR 662 at 667; Griffin v Council of the Law Society of New South Wales[2016] NSWCA 364 at [105] –[106]; McDonald v Legal Services Cmr (No 2)[2017] VSC 89 at [6]; Barkla v Allianz Australia Insurance Ltd[2018] FCA 2070 at [79]; see also G E Dal Pont, Lawyers’ Professional Responsibility (Lawbook Co, 8th ed, 2025) at 767; FT Horne, Cordery on Solicitors (Butterworths, 8th ed, 1988) at 273.
[22] As will be seen, the Respondent’s correspondence both before and indeed after the Tribunal’s decisions was grossly discourteous, coarse, disrespectful, gratuitously offensive, improperly threatening and wholly unprofessional. Its continuation after the Tribunal’s decisions also rendered the Respondent’s apology to the Tribunal on 24 August 2024, shortly after the Stage 2 Decision recommending his removal from the Roll, utterly hollow and disingenuous. This apology is extracted at [49] below and is dealt with in greater detail later in these reasons.
…
[99] The Respondent’s conduct before, during and after the Tribunal’s two hearings has been the very antithesis of the professional courtesy that is required of legal practitioners, as reflected in r 4.1.2 of the Conduct Rules. To a large extent, the Respondent has made the case for his lack of current and continuing fitness to practice out of his own mouth as the sustained verbal barrage set out at length above makes apparent. It reveals a complete lack of understanding or appreciation of what is expected and required of a legal practitioner admitted to the Roll. It is not just that the language is consistently coarse but it also discloses a complete absence of respect for individuals, institutions and the Tribunal. The extreme lack of courtesy and understanding is matched by a wholesale absence of any self-discipline by the Respondent in his professional communications.
[100] The Respondent sought to explain at least some of his language by saying he had been “under a heck of a lot of stress”, including because of his concern about his mother-in-law’s accommodation with TSA and various claimed concerns about other relatives. Even if the Respondent is given the benefit of the doubt as to the existence of such concerns, this does not come close to explaining, let alone excusing, his conduct. It is the nature of legal practice that practitioners may be interacting in the course of disputes whilst under personal or professional strain. That fact is itself connected to the importance of maintaining civility in discourse so as ensure that disputes can be managed and resolved professionally, in the interests of both clients and the community. Sometimes great personal pressure can lead to intemperate or ill-judged behaviour, later regretted, and this may be called in aid by way of explanation and mitigation. The concerns raised by the Respondent were of a vague and generalised kind. Moreover, the long period over which the Respondent’s impugned conduct has occurred undermines any attempt to rely on any such explanation. So, too, does his lack of insight or genuine remorse.
[101] Beyond that, no excuse for the Respondent’s conduct has been proffered and, in point of fact, the Respondent emphasised that he had been given a clean bill of psychiatric health by Dr Samuels when examined in 2023. He also relied upon his wife’s positive medical assessment of him: see [70] above. In many respects, that makes his conduct even more egregious in that it establishes that he was not labouring under any medical condition when conducting himself as he has over the last several years. We have already pointed out that Dr Samuels’ understanding and positive prediction in relation to the Respondent in the final paragraph of his report has not been vindicated.
[102] Nor is it to the point that the Respondent may be (or has in the past been) a technically competent lawyer. We infer that this was the purpose of the tender of a testimonial from Mr Jonathan Park, set out at [68] above. The Respondent’s fitness to practise is not a function of any technical competence (upon which we make no comment); rather it is a matter of whether this Court, in exercising what is a protective jurisdiction, considers that his conduct renders him unfit to remain on the Roll.
[103] What emerged during the hearing as the Respondent’s attempts to evade service of these proceedings and the false statements made as to his whereabouts, his requirements for physical service in Filia, Greece, and the reasons proffered to the solicitors for the Council for his asserted absence from the jurisdiction and other priorities (see [56]–[63] above) have also factored into our assessment. This Court must insist on the maintenance of the highest standards of honesty and integrity in the performance of duties by legal practitioners: Yoon at [34].
[104] Admission to legal practice and presence on the Roll of Australian lawyers is a privilege and not a right. Admission is contingent upon continuing adherence to a lawyer’s oath or affirmation sworn or made on admission to the legal profession: Council of the Law Society of New South Wales v Croke[2024] NSWCA 195 at [11]. That oath or affirmation, sworn or made at the outset of a lawyer’s career, is one of a continuing and critical nature and significance. The privilege of admission will be withdrawn in cases where a lawyer is established not to be a fit and proper person to continue in practice.
[105] In its current form, the oath or affirmation requires lawyers admitted to the Roll maintained by the Court to undertake “truly and honestly [to] conduct yourself in the practice of a lawyer of the Supreme Court of New South Wales and faithfully to serve as such in the administration of the laws and usages of this State”. That form has not in substance changed since the Respondent’s admission to practice in 1987. The laws and usages of this State include the Conduct Rules, faithful and continuing adherence to which is fundamental to the good standing of the legal profession and to an individual’s current and continuing fitness to practice as a lawyer of this Court.
[106] Breach of the Conduct Rules and findings of professional misconduct will not necessarily result in the removal of a person’s name from the Roll. That is a very serious and very public consequence for any legal practitioner. The Court is aware of the reputational consequences of this course for any legal practitioner but its responsibility is to ensure, in the public interest, and for the protection of the public, that only practitioners who are fit and proper to practise law are permitted to do so.
[107] The ultimate question for this Court, as Gleeson JA recently said in de Robillard at [236], is whether the Respondent is a fit and proper person to remain on the roll. As noted above, that involves consideration of whether the lawyer is presently not fit to practise and is likely to be unfit for the indefinite future. As his Honour continued:
Given that legal practitioners have heavy responsibilities and particular privileges which must be properly exercised in the interests of justice and of maintaining public confidence in the legal profession, the Court is concerned to ensure that only fit and proper persons, once admitted, continue in practice as officers of the Court.
[108] Regrettably, we have come to the clear conclusion, based upon the materials before us and in light of submissions made to us, including in response to questions from the Bench, that the Respondent does not meet the description of a fit and proper person to remain on the Roll. We also consider that he is likely to remain unfit to practise for the indefinite future.
[109] In our assessment the Respondent’s conduct “betoken[s] unfitness to be held out by the court as a member of a profession in whom confidence could be placed”: Kennedy v The Council of the Incorporated Law Institute of New South Wales (1940) 13 ALJ 563 at 563 –564 per Rich J.
[110] We would make the following orders:
(1) Declare that the Respondent, Mr George Sideris, is not a fit and proper person to remain on the Roll of Australian lawyers maintained by the Supreme Court of New South Wales, pursuant to s 22 of the Legal Profession Uniform Law (NSW);
(2) Order that the name George Sideris be removed from the Roll; and
(3) Order that the Respondent pay the Applicant’s costs of the proceedings.
In Legal Services Commissioner v Lawler [2025] QCAT 260 (10 July 2025) the Queensland Civil Administrative Tribunal made an order under s 256 of the Legal Profession Act 2007 (Qld) recommending that the name of the respondent be removed from the local roll. There were a number of charges – the factual issues not being in dispute – which founded such orders. The principal charges concerned the respondent solicitor appearing for a client in the Magistrates Court when adversely affected by alcohol (only to be stopped and then charged with drink driving after leaving court), later upon his own sentence for drink driving misleading the court as to the factual circumstances pertaining to the events in question and repeatedly breaching domestic violence orders. It was accepted the respondent was suffering alcoholism. The Tribunal – consisting of judicial member the Honourable Duncan McMeekin KC, assisted by Richard Barnes (practitioner panel member) and Dr Julian Lamont (lay panel member) – wrote:
[1] There are two discipline applications before the Tribunal brought pursuant to s 452 of the Legal Profession Act2007 (Qld) (‘the Act’). In each application, the Legal Services Commissioner alleges that Neil Robert Lawler (‘the respondent’) engaged in professional misconduct and/or unsatisfactory professional conduct and seeks that disciplinary orders be made against Mr Lawler pursuant to s 456 of the Act.
Jurisdiction
[2] The respondent was admitted to the legal profession in Queensland on 13 July 1998. At all material times he was an Australian lawyer pursuant to s 5(1) of the Act and until 27 November 2020 held an unrestricted practising certificate. The respondent was then also a legal practitioner director of Bell Miller Pty Ltd, trading as Lawler Magill Lawyers.
[3] As mentioned, there are two applications before the Tribunal. The respondent’s practising certificate was cancelled by the Queensland Law Society (‘the Society’), effective from 27 November 2020. Thereafter, the respondent remained an Australian lawyer but not an Australian legal practitioner as those terms are defined in the Act. The distinction is relevant to note regarding conduct the subject of the second application (between 22 October 2020 and 28 June 2021) that took place after his practising certificate was cancelled.
[4] Despite losing his practising certificate the respondent remained subjected to the disciplinary legislative scheme. Section 417(1) of the Act provides that Chapter 4 of the Act (wherein ss 452 and 456 appear) applies to Australian lawyers in relation to conduct happening while they were Australian lawyers (but not Australian legal practitioners) in the same way it applies to Australian legal practitioners, and with any necessary changes. Thus, ss 452 and 456 of the Act, under which these applications are heard and under which disciplinary orders can be made, apply.
A change in approach
[5] The second application was made after the first application had been part heard and adjourned at the respondent’s request to enable him to obtain further evidence. Following the filing of the second application the parties agreed that the applications should be heard together, that the parties did not require to be further heard at an oral hearing, and consented that the Tribunal hear and determine the matters on the papers.
[6] That change of approach was adopted as the respondent determined that he would not contest any factual issue, accepted the Commissioner’s submission as to the characterisation of his conduct, and accepted that the Tribunal ought to recommend that his name be removed from the roll. Nonetheless, it remains necessary for the Tribunal to be satisfied that the charges are established to the requisite standard, that the conduct should be so characterised as agreed, and that the sanction should be as agreed.
[7] Given the parties’ agreed position it is not necessary to detail the charges to any great degree.
The first application
[8] The first discipline application, in summary form, concerned these five charges:
(1) engaging in conduct that fell short of the standard of competence expected of a legal practitioner;
(2) bringing the profession into disrepute;
(3) making misleading statements to a court;
(4) failure to be open and frank with regulatory authorities; and
(5) failure to correct misleading or inaccurate statements made to the court.
Charge (1)
[9] On 29 January 2020, the respondent appeared before a Magistrates Court for a client when he, the respondent, was grossly intoxicated. He was observed to be red and flushed, unsteady on his feet, and there was the smell of liquor in the courtroom. After the sentence concluded, the respondent returned to his vehicle and was intercepted by police. He was unsteady on his feet and slurring his words. His roadside breath test blood alcohol reading was 0.274%, while his formal breath analysis was 0.27%.
Charge (2)
[10] On 5 March 2020, the respondent entered a plea of guilty to one offence of being in charge of a motor vehicle while under the influence of liquor and over the high alcohol limit, the subject of his conduct under charge (1). The respondent was convicted and sentenced to 12 months’ probation and 100 hours community service. A conviction was recorded. The details of the charge and conviction were published in the media. This conduct was contrary to r 5 of the Australian Solicitors Conduct Rules2012 (‘the Rules’).
Charge (3)
[11] At his sentence on 5 March 2020, the respondent represented himself and conveyed the following misleading information to the Court, either knowingly or recklessly:
(1) he had purchased alcohol after leaving the courthouse and then drunk that alcohol;
(2) he had returned to his vehicle to charge his phone and had no intention of driving his vehicle; and
(3) he was intending to stay the night in Maroochydore.
[12] The only disputed issue between the parties at the initial hearing, which is no longer disputed, was whether the misleading information was conveyed knowingly or recklessly.
Charge (4)
[13] Following the conduct comprising charges one to three, the Legal Services Commission (‘the Commission’) commenced an investigation into the respondent’s conduct. The Commission sought a full explanation from the respondent and made several specific enquiries in correspondence. The Society also sought information from the respondent under the Act, before sending him a show cause notice that contended he was no longer a fit and proper person to engage in legal practice, and invited a response. Throughout his communications with the Commission and the Society the respondent failed to be open and frank about the conduct under investigation, contrary to r 43 of the Rules.
Charge (5)
[14] To date, the respondent has taken no steps to correct the misleading statements he made to the Magistrates Court on 5 March 2020, the subject of charge three.
The second application
[15] The charges in the second application include four charges of bringing the profession into disrepute contrary to r 5 of the Rules, and one charge of failing to give notice of a conviction.
[16] The charges arise out of the respondent’s conduct between 22 October 2020 and 28 June 2021. The first four charges involved the respondent breaching a domestic violence order made under the Domestic and Family Violence Protection Act 2012 (Qld) on six separate occasions, each of which resulted in a conviction for contravening a domestic violence order under s 177 of that Act. The order contained a mandatory condition requiring the respondent to be of good behaviour and not commit domestic violence towards the aggrieved. The order was varied on occasion, including on 21 October 2020, when conditions were added that required the respondent to refrain from contacting the aggrieved or approaching within 100 metres of her or her residence. The six breaches involved the respondent contacting the aggrieved in a harassing manner, attending the aggrieved’s home when intoxicated, and communicating in an abusive and demeaning manner towards the aggrieved.
[17] The fifth charge relates to the respondent’s failure to declare his first conviction, with respect to contravening the domestic violence order, to the Society.
Characterisation of the conduct
The relevant tests
[18] The Tribunal’s power to make a disciplinary order is dependent on a finding that the respondent has engaged in ‘unsatisfactory professional conduct’ or ‘professional misconduct’.[1] The statutory definitions are set out in ss 418 and 419 of the Act. They are inclusive in their terms and hence recourse to common law tests is permissible, if helpful.
[19] Section 418 provides:
Unsatisfactory professional conduct includes conduct of an Australian legal practitioner happening in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.
[20] Section 419 provides:
(1) Professional misconduct includes –
(a) unsatisfactory professional conduct of an Australian legal practitioner, if the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and
(b) conduct of an Australian legal practitioner, whether happening in connection with the practice of law or happening otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.
[21] The dictum of Thomas J in Adamson v Queensland Law Society Incorporated(1990) 1 Qd R 498at 507 is often cited:
The test to be applied is whether the conduct violates or falls short of, to a substantial degree, the standard of professional conduct observed or approved by members of the profession of good repute and competency.
[22] Contravention of a regulation or legal profession rules (such as rr 5 and 43 of the Rules) is capable of amounting to unsatisfactory professional conduct or professional misconduct.[2]
Discussion
[23] There is no dispute as to the facts that underlay the charges under both applications. The evidence gathered by the applicant is uncontroverted and compelling.
The first application
[24] It hardly needs to be said that for a legal practitioner to attend court intending to represent a client when grossly intoxicated justifies a finding that the practitioner is not a fit and proper person to engage in legal practice. However, the respondent’s conduct went further, following the court appearance he operated a vehicle, which resulted in a criminal conviction because of his intoxication level, and then mislead the court as to his movements surrounding the conviction in what is a blatant attempt to minimise the seriousness of his conduct. The respondent’s conduct violated the standard of professional conduct observed or approved by members of the profession of good repute and competency.
[25] The debate at the hearing of the first application concentrated on the distinction between whether the misleading information the subject of charge (3) was conveyed knowingly or recklessly. The applicant referred to the helpful discussion of the distinction in this context by Martin CJ in Giudice v Legal Profession Complaints Committee [2014] WASCA 115 where the Chief Justice concluded, at [8]:
… if, assessed subjectively, the practitioner is either aware that the statement or information is false or misleading, or wilfully indifferent to its truth, in the absence of special circumstances one would ordinarily expect a finding of either category of conduct to be characterised as a substantial departure from the standards of conduct reasonably expected of a practitioner such as to constitute professional misconduct, within the taxonomy of the Act.
[26] There are no special circumstances here justifying any different approach. At the first hearing, the respondent admitted, as he does now, that the providing of misleading statements to the Court should be characterised as professional misconduct. The intent of the respondent’s submissions was to argue that the misleading of the Court fell into the less serious category, that is recklessly made statements, and sought a downgraded sanction of a suspension for a specific period. That is no longer pursued. How the respondent did not know that his statements about his own movements and intentions were false was explained, it was submitted, by his then gross intoxication. That argument had its difficulties, and they were considerable, but it is now moot.
[27] Nonetheless, it is worth recording too that the conduct the subject of charge (4)—not being frank and open with the Society and the Commissioner—reflects in some ways the nature of the misleading information provided to the Magistrate. The respondent made the misleading statements to the Court some five weeks after his arrest. These statements shared similarities with the respondent’s different and misleading account of the conduct provided to the Commissioner via a letter dated 21 April 2020, some six weeks after the respondent’s court appearance. If this is explained by a wilful indifference to the truth, then that indifference consisted in different forums, over an extended period, with substantial time to reflect, and despite the fact the misleading nature of his statements had been drawn to his attention.
[28] The respondent’s claim to the investigative bodies that he had ‘co-operated with all parties and gave the best of my recollections at the time’[3] cannot be accepted. The respondent failed to discharge the duty of honesty and frankness that the authorities assert extend to the investigative steps anterior to the consideration of the case by the court or tribunal.[4] That duty is justified by reference to the lawyer’s duty as an officer of the court as regulatory bodies are statutorily appointed to perform an aspect of the court’s disciplinary (protective) function.[5]
[29] The remaining charge is that the respondent has not asked for his criminal conviction to be re-opened to permit him to inform the Magistrate of the more accurate account of his actions. He remains sentenced on a false basis. His conduct is tied in with the charge of making misleading statements and should be similarly characterised.
The second application
[30] The subject of the second application, the repeated offending against the Domestic and Family Violence Protection Act resulting in criminal convictions,can only be described as disgraceful and involved a substantial departure from the standard expected of members of an honourable profession. The seriousness of these convictions is evidenced by the maximum penalty imposed for breaching domestic violence orders of five years’ imprisonment. These offences did not involve actual physical violence but did cause the aggrieved justifiable distress. As the Magistrate commented, the respondent came very close to a term of actual imprisonment. Such repeated offending demonstrates a lack of respect for the law.
[31] As the Commissioner submitted repeated breaches of the law are inherently serious and in this case:
(i) involved contraventions of a domestic violence order, and some of the individual charges involved instances of grossly demeaning behaviour that amounted to domestic violence;
(ii) such breaches compromised the respondent’s position as an officer of the court whose duty is to obey and uphold the law; and
(iii) when lawyers do not uphold the law, this is likely to lead to a loss of confidence in the profession from members of the public.[6]
[32] Plainly the conduct should be characterised as professional misconduct.
[33] The fifth charge, relating to the respondent’s failure to declare his first conviction to the Society, should be characterised as unsatisfactory professional conduct. His obligation to inform the Society of his conviction arises under s 57(1)(a) of the Act. It is only relevant to the first conviction as he held a practising certificate only until then and not after that time. He well knew of the obligation as he had reported his conviction to the Society following the drink driving offence some months before. His failure to report his conviction seriously impairs the Society’s duty to properly regulate the profession and so undermines the public policy that underlines these requirements of protecting the public and the public trust in the profession.
[34] His failure is best described as falling short of the standard of competence and diligence a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.
Sanction
The applicable principles
[35] It is well established that the purpose of making an order pursuant s 456 of the Act is not to punish the respondent, but to protect the public.[7]
[36] In seeking to protect the public principles of personal and general deterrence are relevant.[8] The need to deter both the respondent and other practitioners from engaging in similar conduct also protects the public. As well, the removal of the name of an unfit practitioner from the local roll serves the interest of the public by ‘the preservation of the good standing of the legal profession and of the Roll as the Court’s endorsement of the fitness of those enrolled’.[9]
[37] The removal of the practitioner’s name from the roll requires that the Tribunal reaches the view that the respondent is permanently unfit to practise. Justice Philip McMurdo (with the agreement of Morrison JA and Brown J) pointed out in Attorney-General v Legal Services Commissioner & Anor; Legal Services Commissioner v Shand that because the roll represents the Court’s endorsement of the fitness of those who are enrolled, if a practitioner is not a fit and proper person to engage in legal practice, then:
… all of the purposes which I have described required that his name be removed from the Roll, absent something which indicated that he was likely to become a person who was fit to be a legal practitioner.[10]
[38] In reaching the view that the respondent in this matter is permanently unfit to practice, the Tribunal needs to bring into account the mitigating features both in relation to the conduct itself and the events that have taken place since the conduct in question.[11]
The mitigating features
[39] The mitigating features that are advanced, the accuracy of which can be accepted, are:
(a) The respondent expressed to the Tribunal, both in his affidavit and in the submissions made, his remorse and shame for his conduct.
(b) The respondent has admitted all disciplinary charges. He accepts the gravity and seriousness of his misconduct. He accepts that his conduct amounts to a significant departure from the standards expected of a member of the legal profession.
(c) The respondent has no prior disciplinary history over his 20-year career as a legal practitioner.
(d) The respondent was suffering from a alcohol use disorder at the time of the conduct underpinning the disciplinary charges. He was also dealing with a number of personal and professional stressors.
(e) The respondent offered significant cooperation in these proceedings by admitting all charges at an early stage, limiting the issues in dispute for the first hearing, and ultimately conceding all issues following the filing of the second disciplinary application.
(f) The respondent has suffered significant loss as a result of his conduct and the disciplinary charges. He had his practising certificate cancelled on 27 November 2020. He has lost his career, his firm, and his reputation.
(g) The respondent has suffered public shaming and humiliation as a result of his conduct and the disciplinary charges, including being the subject of a number of media articles.
Conclusion
[40] The conduct the subject of the two applications involving repeated offending against the law and the respondent’s very poor behaviour in his dealings with the Court and the regulatory authorities justifies him being struck off the roll.
[41] It is evident that the respondent’s conduct is very much explained by his alcoholism. The psychiatrists explain that the respondent has an alcohol use disorder for which he has long sought treatment. He accepts that his rehabilitation from his disorder is ongoing. As the evidence presently stands he is unfit to practise. To address the issue identified by McMurdo JA in Shand: there is no reason to think that he is likely to become a person who is fit to be a legal practitioner. The mitigating features do not address that critical issue.
[42] The parties now agree that the proper course is to have an order made recommending that the name of the respondent be removed from the local roll.
Costs
[43] The Commissioner seeks an order, pursuant to s 462 of the Act, that the respondent pay the Commissioner’s costs of and incidental to the two discipline applications. That is the usual order unless it can be shown there are exceptional circumstances. The respondent does not oppose the order.
Orders
[44] The orders are:
(a) pursuant to s 456(2)(a) of the Legal Profession Act 2007 (Qld), an order is made recommending that the name of the respondent be removed from the local roll; and
(b) the respondent pay the applicant’s costs of and incidental to the two discipline applications, such costs to be agreed or assessed on the standard basis in the manner in which costs would be assessed if the matter were in the Supreme Court of Queensland.
[6] Applicant’s Outline of Submissions dated 27 May 2025, [32].
[7]Legal Services Commissioner v Madden (No 2)[2008] QCA 301, [122] (‘Madden’) citing Harvey v Law Society of NSW (1975) 49 ALJR 362; Attorney-General v Legal Services Commissioner & Anor; Legal Services Commissioner v Shand [2018] QCA 66 (‘Shand’); Adamson v Queensland Law Society Inc[1990] 1 Qd R 498 , 504.
