Misconduct Finding Against Barrister Making Unfounded Fraud Allegation About Deponent’s Evidence

Invoice produced upon taxation – barrister alleging invoice “false and fraudulent” – barrister found guilty of professional misconduct (matter on appeal).

In Victorian Legal Services Commissioner v Sandbach [2022] VCAT 1477 (22 December 2022), President of the Victorian Civil and Administrative Tribunal, Justice Quigley, made a finding of professional misconduct against an experienced barrister concerning statements made by him upon a mention upon costs’ reviews apropos of his characterisation of the opposing client’s evidence as fraudulent. The decision is on appeal. The decision is salutary as to the obligations of barristers where a submission of fraud or deceit ins in prospect. Rules 65 and 66 of the Legal Profession Uniform Conduct (Barristers) Rules2015 (Vic) reflect analogues in rr 64 and 65 of the Barristers Rule 2011 (Qld). Quigley J wrote:

BACKGROUND

[1]          This disciplinary proceeding relates to one charge of legal professional misconduct brought by the Applicant against the Respondent.

[2]          The Respondent was admitted to practice in the State of Victoria on 1 May 1981 and signed the Victorian Bar Roll on 17 May 1984. The Respondent practised as a barrister in Victoria until December 2018, primarily specialising in taxation matters.

Relevant facts

[3]          This proceeding arises out of a complaint about the Respondent’s conduct in a proceeding in the Costs Court in 2016, Mathieson Nominees Pty Ltd & Anor v AJH Lawyers, SCI 2015 05894 (the Costs Proceeding). The Costs Proceeding stemmed from a costs agreement pertaining to a liquidation matter. The Costs Proceeding was for the quantification of costs awarded in favour of Mathieson Nominees (Mathieson) against AJH Lawyers (AJH). On 16 February 2015, in the related taxation proceeding, McDonald J had made the relevant costs order.

[4]          During the Costs Proceeding, the Respondent appeared for AJH and Mr Sergey Sizenko (the Complainant) was the instructing solicitor for Mathieson.

[5]          A party/party bill in taxable form dated 16 November 2015 and in the sum of $421,109.43 (the taxable bill) was filed by Mathieson on 17 November 2015.

[6]          On 30 June 2016 a mention hearing was convened before Gourlay JR (the 30 June mention), at which a key issue was a potential interim order for costs, following orders made on 20 June 2016 requiring the parties to produce certain documents pertaining to costs and retainer (the 20 June orders). The Complainant produced a solicitor/client invoice dated 15 February 2016 for legal costs in the sum of $352,000 (incl GST) (the 15 Feb invoice) and a covering email of the same date (the 15 Feb email). This email was from the Complainant to the directors of his client Mathieson and stated:

…I will try to seek an Interim Order for costs. In order to rebut a “indemnity principle” presumption, I issued to [Mathieson] and (sic) invoice for fees as per [the taxable bill], less counsel fees, as we do have a separate invoice for it.

The conduct of the Respondent

[7]          At the 30 June mention, the Respondent alleged that the 15 Feb invoice was false and fraudulent being designed to defeat the indemnity principle  (which had been raised previously by AJH in late 2015) and these allegations were repeated multiple times throughout the duration of the Costs Proceeding.

[8]          In particular, the conduct was repeated at a mention on 20 July 2016 (the 20 July mention). Gourlay JR stated to the Respondent that the allegation of fraud was “made on a basis without any evidence”, “absolutely contrary to the Bar Rules”, and “outrageous”.  Despite these warnings, the Respondent continued to repeat the allegations of fraud.

[9]          Gourlay JR, in response to the discussion at the 30 June mention, required by orders that Mathieson swear an affidavit as to the validity of the retainer of the Complainant’s firm. Ultimately two affidavits were sworn by Mr Alan Mathieson on 15 and 27 July 2016 that such retainer existed and was valid.

[10]        On 31 August 2016, Gourlay JR handed down her decision in the Costs Proceeding, which included a finding that the Respondent’s submissions concerning the indemnity principal were contrary to the obligations under the Civil Procedure Act 2010 (Vic) (CPA).

[11]        Mathieson subsequently brought an application pursuant to the CPA in relation to the conduct (the CPA Application). At the hearing of the CPA Application on 1 and 2 March 2017 (the CPA Hearing) the Respondent continued to allege that the invoice was false or fraudulent.

[12]        On 27 June 2017, Efthim AsJ handed down his decision in the CPA Application and found:

In my view, allegations of improper billing practices… had no foundation and should not have been made. Further, the invoice, whether it is false or not, has no bearing on whether the indemnity principle has been breached. The respondent must have known that raising allegations about a false Invoice would do nothing more than delay the taxation of the bill of costs and incur further costs.

…

LEGAL FRAMEWORK

Relevant legislative provisions

[30]        Section 297(1)(a) of the Uniform Law provides:

(1)          For the purposes of this Law, “professional misconduct” includes—

(b)          unsatisfactory professional conduct of a lawyer, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; …

[31]        Section 298(b) provides:

Without limitation, the following conduct is capable of constituting unsatisfactory professional conduct or professional misconduct—

…

(b)          conduct consisting of a contravention of the Uniform Rules;

[32]        There are various forms of the Uniform Rules which may be relevant under s 298(b) depending upon the situation at hand. Relevantly in the present matter, r 65 of the Legal Profession Uniform Conduct (Barristers) Rules 2015 (Vic) (Barristers Rules) provides:

A barrister must not allege any matter of fact amounting to criminality, fraud or other serious misconduct against any person unless the barrister believes on reasonable grounds that:

(a)          available material by which the allegation could be supported provides a proper basis for it, and

(b)          the client wishes the allegation to be made, after having been advised of the seriousness of the allegation and of the possible consequences for the client and the case if it is not made out.

[33]        Rule 66 of the Barristers Rules provides:

A barrister may regard the opinion of the instructing solicitor that material which is available to the solicitor is credible, being material which appears to the barrister from its nature to support an allegation to which rules 64 and 65 apply, as a reasonable ground for holding the belief required by those rules (except in the case of a closing address or submission on the evidence).

…

ANALYSIS AND FINDINGS

[62]        Underpinning the admission to practice of any legal practitioner is the concept that they must be ‘fit and proper’ to practice in the legal profession. As enunciated by Dixon J in the recent case of Re: Zita:

In order for a person to be ‘fit and proper’ to become, or remain, a legal practitioner, they must be honest, independent, able to judge what ethical conduct is required of them, and then be capable of diligently discharging the responsibilities of their office.

[63]        The two primary responsibilities of the office of a legal practitioner are their duty to the court and their duty to the client. Barristers and solicitors are officers of the court and this duty is paramount; if a conflict arises between these two duties, the responsibility to the court must be respected above all else.  The charge alleged against the Respondent exemplifies this conflict, and what can occur if the wrong choice is made.

[64]        In the 1967 House of Lords case of Rondel v Worsley,  Lord Reid articulated this concept:

Every counsel has a duty to his client fearlessly to raise every issue, advance every argument, and ask every question, however distasteful, which he thinks will help his client’s case. But, as an officer of the court concerned in the administration of justice, he has an overriding duty to the court, to the standards of his profession, and to the public, which may and often does lead to a conflict with his client’s wishes or with what the client thinks are his personal interests. Counsel must not mislead the court, he must not lend himself to casting aspersions on the other party or witnesses for which there is no sufficient basis in the information in his possession…

[65]        Thus it has been long established that the making of unsubstantiated allegations by a legal practitioner is contrary to their role and office.

[66]        This doctrine has arisen from a balancing of two key factors.

[67]        First, a barrister’s right of audience grants him or her complete immunity from liability for defamation.  However, as Gray J of the Supreme Court made plain in Strange v Hybinett, “with every substantial right, there is a corresponding duty to ensure that the privilege is not abused”.

[68]        The High Court has expressed this balancing factor, which is to be metered against any instruction of a client, as the duty “to press such rational considerations as the evidence fairly [gives] rise”.

[69]        It becomes a matter of public confidence in the legal system and the administration of justice.  Lord Macmillan, writing extra-curially, was quoted with support by Gray J in Strange v Hybinett:

For an advocate to allow such charges to be launched with his name attached to them without the fullest investigation would be to abuse the absolute protection against actions for slander which the law affords to counsel. Counsel is not worthy of that protection unless he justifies it by the most scrupulous care in his written or oral attacks on character. He must insist upon being supplied with all the information which is thought by his client to justify the attack, and then he must decide for himself whether the charges made are such as can be justifiably made. In exercising his judgment in such a matter the advocate is fulfilling one of the most delicate duties to society which his profession casts upon him. It is no small responsibility which the State throws upon the lawyer in thus confiding to his discretion the reputation of the citizen.

[70]        That this behaviour constitutes professional misconduct (or unsatisfactory professional conduct) has been a feature of the statutes and other legislative instruments pertaining to the regulation of the legal profession, in the various iterations which have existed over time in this jurisdiction.

[71]        At present, this is codified by the combined effect of s 298(b) of the Uniform Law and r 65 of the Barristers Rules (extracted above at [31] and [32]). The parallel rule for solicitors is found at r 21.2 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (Vic).

…

[77]        For the Tribunal, there is no doubt in this case that the Respondent alleged in court that the Feb 15 invoice was fraudulent and falsified. Thus s 298(b) of the Uniform Law and r 65 of the Barristers Rules are enlivened in the preliminary sense.

[78]        Whilst the Respondent in his submissions has attempted to cast doubt on this preliminary issue, I am not persuaded by those submissions.

[79]        It is necessary at this point to address the Respondent’s submission that Charge 2 was incorrectly worded or did not reflect the words of r 65. In my view, this does not change the threshold which must be considered. The charge clearly refers to r 65 and this is enough for the Tribunal to then look to the exact text of r 65 (extracted above at [32]) as establishing the relevant threshold.

[80]        Further, the Respondent’s contention that he was “making a submission” rather than “alleging a matter of fact”, when he stated in court that the 15 Feb invoice was fraudulent, is not of any utility to the Tribunal. It is a pointless distinction. Submissions to a court generally fall into one of two categories: submissions of law or submissions of fact.

[81]        The Respondent’s submission that the allegations made before Gourlay JR “were not such as to invite her to reach any final conclusion on the question but rather to show that further investigation was warranted” is also an unhelpful distinction.

[82]        Regardless of the precise legal context in which the allegation was made, it ultimately must be two things to enliven r 65: (a) an ‘allegation’, and (b) ‘of fact’. These words can be given their plain meaning, as is the starting point with any exercise of statutory interpretation. The Macquarie Dictionary defines these terms as follows:

82.1        allegation – “a mere assertion made without proof”.

82.2        fact – “what has really happened”, is “known to have happened”, or “something said to be true or supposed to have happened”.

[83]        The following are some examples of the utterances made by the Respondent in the Costs proceeding which the Applicant says amount to allegations of fact:

83.1        “That is plainly a false invoice”;

83.2        “What I’m implying is – well there is a fraud here. It’s not in relation to that [costs agreement and disclosure], but there is a fraud here in relation to the purported invoice produced to defeat the indemnity principle…”;

83.3        “In my submission it is most certainly fraud”;

83.4        “Produce a false document, that’s what he’s done”;

83.5        “This document I say unequivocally is a false document”;

83.6        “That’s precisely right. It’s a false document”;  and

83.7        “…the means that were used by Mr Sizenko to persuade the court that there was no issue in respect of the indemnity principle involve the fraudulent use of what is a false document…”

[84]        On any reasonable interpretation, these sentences both (a) are allegations/assertions and (b) relate to something the Respondent says has happened or that he believes has happened. I do not see how any other conclusion on this issue could be drawn.

[85]        What remains is whether the allegations made by the Respondent can reasonably be substantiated (per r 65(a) and (b)) and, if not, whether this behaviour constitutes professional misconduct (as opposed to unsatisfactory professional conduct) pursuant to ss 298(b) and 297(1)(a).

[86]        Through the combined effect of s 297(1)(a), s 298(b), and r 65, in order to determine whether the Respondent is guilty of professional misconduct per Charge 2, the questions for the Tribunal are thus:

(A)          Did the Respondent believe on reasonable grounds that:

(i)            the available material by which the allegation could be supported provided a proper basis for that allegation, and

(ii)           the client wished the allegation to be made, after having been advised of the seriousness of the allegation and of the possible consequences for the client and the case if it was not made out?

If not, then:

(B)          Was the conduct substantial or consistent?

[87]        It may appear that this synthesis of questions ignores the second part of s 297(1)(a), that there is a “failure to reach or maintain a reasonable standard of competence and diligence” in the eyes of the public (the competence and diligence requirement). However, if the answer to question (A) is ‘no’, the Respondent will be taken to have made unsubstantiated allegations of fraud in the context of his duties of office. This will be enough to demonstrate the competence and diligence requirement, given:

87.1        The authorities I have discussed above concerning the betrayal of public confidence where unsubstantiated allegations are made by a barrister (see in particular [69] above); and

87.2        The fact that if s 298(b) is enlivened by a breach of r 65 (or any relevant rule), s 298(b) assumes that the conduct is at least unsatisfactory professional conduct and thus by definition the competence and diligence requirement is made out; and

87.3        The reference to “unsatisfactory professional conduct” at the beginning of s 297(1)(a) in that “substantial or consistent” is the only additional requirement to reach the threshold of professional misconduct.

[88]        Therefore, it is not necessary to separately address the competence and diligence requirement under s 297(1)(a).

Question (A) – Reasonable belief [r 65]

[89]        In the context of r 65, what can be considered ‘reasonable’ is an objective test. The standard required for the formation of a reasonable belief is not that of the ordinary ‘reasonable person’, but that of a ‘reasonable legal practitioner’. I consider it appropriate at this juncture to repeat the words of Lord Macmillian from his seminal text:

He must insist upon being supplied with all the information which is thought by his client to justify the attack, and then he must decide for himself whether the charges made are such as can be justifiably made.

[90]        This underpins the first element of the defence inherent in r 65, in that the evidence available must be capable of providing a proper basis for the allegation (r 65(a)). In the present case, this raises the question: Did the evidence available to the Respondent at the time the allegations were made suggest on an objectively reasonable construction that the 15 Feb invoice is fraudulent?

[91]        It is important to emphasise the temporal aspect of r 65(a), particularly in the present case where the Respondent sought access to additional documents (via the summons set aside on 18 November 2022) that were not available to him at the time he made the allegations.

The evidence and the 15 Feb invoice

[92]        The Respondent raised several factors which he submitted supported the conclusion that the 15 Feb invoice was fraudulent (see above at [57], [58], and [60]). I will address each of these in turn.

[93]        I am not satisfied that the Complainant falsified the 15 Feb invoice in order to rebut the presumption of the indemnity principle, as alleged by the Respondent. Whilst the 15 Feb email mentions the rebuttal of the indemnity principle, it is not entirely clear what the Complainant meant in the email in reference to this principle and he may have misunderstood the onus of the indemnity principle. Regardless, as the Applicant pointed out at the hearing, the indemnity principle operates “the other way around”. During the Costs Proceeding, the onus was on the respondent party (AJH, for whom Mr Sandbach appeared) to rebut the indemnity principle. 

[94]        In her decision on the Costs Proceeding, Gourlay JR helpfully summarised the indemnity principle, with reference to key authorities, and the application of the principle to that proceeding.

[95]        A costs order had already been made against AJH by McDonald J on 16 February 2016. The indemnity principle, as summarised by the Court of Appeal, is as follows:

In broad terms, the indemnity principle is that, as between party and party, the party ordered to pay the other party’s costs is obliged to pay only those costs which the other party is legally obliged to pay to his or her solicitor.

[96]        Therefore, the onus is on the party ordered to pay the costs to establish that there was no legal obligation borne on the opponent’s client to pay those costs in the first place. This was made plain by the Court of Appeal in Shaw v Yarranova, and stems from the “strong presumption of a retainer” with which comes the obligation to pay legal costs.

[97]        Even if the Complainant was under the misapprehension that the onus was on his client to rebut the indemnity principle, it is contrary to any reasonable interpretation of the relevant facts to conclude that the Complainant falsified the 15 Feb invoice to prove his retainer by Mathieson and thus his firm’s entitlement to legal fees, particularly when the Complainant also gave the Respondent copies of the actual retainer letters between his firm and Mathieson.  As the Applicant pointed out at the hearing, liability is not created by the sending of an invoice, it must have already existed by way of the retainer or costs agreement. Further, upon the orders of Gourlay JR, Mr Alan Mathieson swore by affidavit (on both 15 and 27 July 2016) that such retainer existed and was valid.  These affidavits were also available to on the Respondent at the relevant time.

[98]        The most sensible conclusion as to why the Complainant created and issued to Mathieson the 15 Feb invoice at the time that he did, was to provide additional evidence to Gourlay JR on top of the existing costs agreement. It is reasonable, given the unconditional nature of the costs agreement, that the Complainant had not created the invoice at an earlier stage, as it is natural that additional fees would accrue due to the ongoing nature of the relevant proceedings. This is why, at page 214 of the taxable bill, there are items specified for future work such as attendance at the taxation proceedings.

[99]        On this note, I do not accept the Respondent’s submission that there has been a delay of some 2 years between when the invoice could have been created and when it was created. The taxable bill, to which the invoice refers, was created on 16 November 2015 and the invoice was created three months later on 15 February 2016. Even if the relevant delay can be considered to be approximately 2 years, in my view this is not a proper basis for alleging fraud.

[100]      Therefore, even if the timing of the creation of the 15 Feb invoice was somewhat convenient to the Complainant and his clients regarding the indemnity principle, this is not sufficient in all of the relevant circumstances to suggest that the invoice was fraudulent. This appears to have been the view of Gourlay JR, which is echoed by this Tribunal, when she stated at the 30 June mention:

I don’t accept that [allegation]. I understand the purpose the invoice was produced for and I understand – I don’t believe that it is a fraud.

[101]      The Respondent continued to repeat the allegation despite hearing these words from Gourlay JR.

[102]      In my view, the Respondent, in alleging that the invoice was falsified for purposes relating to the indemnity principle, was grasping at straws in a misguided attempt to avoid or mitigate the costs order against AJH. He put his client’s desires before his dignity as a legal practitioner and before his paramount duty to the court.

…

[111]      The Respondent’s submissions at the hearing and in particular his cross-examination of the Complainant have not persuaded the Tribunal that the 15 February invoice was fraudulent nor that the Respondent could have had a reasonable belief in this allegation at the time it was made.

[112]      In his cross-examination of the Complainant, the Respondent regularly attempted to lead the witness down unnecessary and even inappropriate paths. The crux of the Respondent’s submissions at the oral hearing, and in his questions put to the Complainant, was that the documents available to the Tribunal were not the “correct” or “safe” documents in order to establish a proper basis for the reasonableness of his allegation. I consider this to be an attempt to undermine the Tribunal’s orders dated 18 November 2022 to set aside the summons of the Complainant. The Respondent repeatedly suggested that the Complainant was in possession of the “correct” documents and that he should have brought them to the hearing despite the 18 November orders. Further, this is contrary to the temporal requirement of r 65(a), that the Respondent must have had the requisite reasonable belief on the basis of the material available to him at the time he made the allegations.

[113]      The Respondent also attempted to challenge the Complainant’s accounting of the Mathieson file and asserted that the Tribunal was not aware of the entire factual matrix in this context. The Complainant was temporarily excused from the witness box for the Tribunal and the parties to discuss this issue and the Tribunal ultimately ruled that there was no utility or relevance in the line of questioning and directed the Respondent to move on.

[114]      The Respondent also suggested, during cross-examination, that the Complainant allowed Alan Mathieson to file his affidavits knowing that they were false. The Complainant unequivocally stated that nothing was false in the affidavits.

[115]      Ultimately, the Tribunal found the Complainant to be a reliable witness.

[116]      The various pieces of evidence in this matter available at the time the allegations were made – including the 15 Feb invoice, the taxable bill, the affidavits of Alan Mathieson, the Respondent’s awareness of the costs agreement and continual representation of Mathieson by the Complainant, and the initial comments of Gourlay JR made prior to the repetition of the allegations – all lead to the conclusion on an objectively reasonable construction that the 15 Feb invoice was not fraudulent. There was no proper basis for the Respondent to hold any contrary belief.

[117]      The Respondent’s reliance on Darnell v Stonehealth Pty Ltd does not give me any pause. Regardless of the understanding that multiple inferences can be drawn from a given set of facts, in the present case the conclusion by the Respondent that the 15 Feb invoice was fraudulent was not a reasonable inference.

[118]      Given that, on the construction of r 65, both sub-ss (a) and (b) of that rule must be established in order for the accused practitioner to rely on the inherent defence against a breach of the rule, I am satisfied that the defence is not available to the Respondent at this point. However, for completeness, I will consider the issues pertaining to sub-s (b). More importantly, given the Respondent in his submissions relied upon r 66 of the Barristers Rules, it is necessary to consider that rule.

The client’s wishes and whether appropriate advice was given

[119]      In the present case the Respondent’s client was a solicitor and thus the role of client and instructing solicitor were merged. This therefore makes both r 65(b) and r 66 of the Barristers Rules relevant to the issue of the Respondent’s instructions and whether such instructions could provide a proper basis for the allegation.

[120]      The Respondent’s instructor and solicitor client was Mr Richard Cormie of AJH.

[121]      I accept the point made by the Applicant at the commencement of the oral hearing that given the nature of the allegations made, in that they relate to the internal dealings of the Complainant and Mathieson who were AJH’s opponent in the Costs Proceeding, there is no way that Mr Cormie or anyone at AJH could have had any knowledge that the 15 Feb invoice was fraudulent and thus there was no basis to provide such an instruction.

[122]      Whilst Mr Cormie gave evidence under cross-examination at the CPA Hearing that he believed the allegations to be true, when pressed as to the basis for such a belief he referred only to the fact that “it was a substantial invoice that – at the time it had been rendered, it certainly hadn’t been paid” and that “[t]he hearing was not long after”.  Further, Mr Cormie also gave evidence that at the time the allegations were made (30 June and 20 July 2016) he had no way of knowing whether or not the invoice had in fact been paid.  This undermines his belief in the allegations.

[123]      Further, and significantly, Mr Cormie gave evidence as follows:

Mr Williams (Barrister for Mathieson):  At the moment that Mr Sandbach made those submissions, that the invoices had not been paid, he was making a submission about which you had no knowledge?

Mr Cormie:  Apart from the fact that the invoice itself said that there was no amount paid.

[124]      This implies that the Respondent, in making the allegations at the 30 June mention and 20 July mention, went beyond the matters he was instructed about by Mr Cormie. In these circumstances, it is not apparent that Mr Cormie was given any advice as to the potential consequences of the making of the allegations.

[125]      Pursuant to r 65(b), I have determined that there was not enough evidence upon which the Respondent could reasonably conclude that the client wished the allegation (in the form that it was made) to be made, after having been advised of the seriousness of the allegation and of the possible consequences for the client and the case if it was not made out.

[126]      Similarly, I am not persuaded that r 66 provides the Respondent in this case with any protection from a breach of r 65. Rule 66 (extracted above at [33]), provides that a barrister may rely on the opinion of their instructing solicitor as to the credibility of material to support the making of allegations that might otherwise be a breach of r 65. However, r 66 expressly states that such material must be “material which appears to the barrister from its nature to support an allegation”. Therefore, an independent consideration by the barrister is still required. It cannot be a case of blindly following instructions without consequence.  This is consistent with r 42 of the Barristers Rules which provides that:

A barrister must not act as the mere mouthpiece of the client or of the instructing solicitor and must exercise the forensic judgments called for during the case independently, after the appropriate consideration of the client’s and the instructing solicitor’s wishes where practicable.

[127]      For the reasons I have just detailed (at [92]-[118]), there is no reasonable basis for the conclusion that the 15 Feb invoice was fraudulent. Even if r 66 requires a less detailed consideration by a barrister as to the evidence supporting an allegation (due to the words “from its nature”), for the same reasons, there is nothing on the face of the invoice or in the 15 Feb email to support the allegation made.

[128]      I am satisfied that neither of the elements of the defence inherent in r 65 of the Barristers Rules (r 65(a) and (b)) can be made out in this case. Rule 66 is not invoked to the aid of the Respondent. Therefore, the Respondent’s conduct in making unsubstantiated allegations of fraud against another legal practitioner constitutes a breach of r 65.

Question (B) – Substantial or consistent [s 297(1)(a)]

[129]      Now that I have established that the Respondent breached r 65 of the Barristers Rules, thus enlivening s 298(b) of the Uniform Law, for Charge 2 as brought to be made out I must consider whether the conduct rises to the level of professional misconduct pursuant to s 297(1)(a). As indicted, this requires consideration of whether the conduct was “substantial or consistent”.

[130]      The allegations made by the Respondent were repeated several times throughout the 30 June mention, the 20 July mention, and the CPA Hearing. However, whether this repetition elevates the conduct to the statutory threshold of “substantial or consistent” is a question of fact and degree, taking into account all of the circumstances.

[131]      Whilst s 297(1)(a) requires the Tribunal to establish only one of these alternative conditions, in my view the conduct of the Respondent was both substantial and consistent.

[132]      The conduct was consistent, in that the allegation was repeated beyond a mere incidental or minor repetition. In fact, the allegation was repeated on at least 10 occasions. At least 6 times at the 30 June mention, at least twice at the 20 July mention, and at least twice at the CPA Hearing.

[133]      Moreover, the Respondent continued to repeat the allegations after the considerable warnings given by Gourlay JR.

[134]      Gourlay JR very clearly stated to the Respondent that the allegation of fraud was “made on a basis without any evidence”, “absolutely contrary to the Bar Rules”, and “outrageous”.  Despite these warnings, which would indicate to any reasonable practitioner a need to proceed with caution, the Respondent did not yield or curtail his conduct. This adds greatly to the seriousness of the conduct, to the point that it becomes ‘substantial’. It demonstrates a blatant disrespect, not only for the Complainant as the Respondent’s fellow legal practitioner, but ultimately a disrespect for the Court. This strikes at the heart of the duties of a legal practitioner as an officer of the Court and is, most certainly, substantial.

[135]      Adding to this is the fact that the Respondent repeated the allegation despite the affidavits of Alan Mathieson (see above at [103]).

[136]      The fact that Efthim AsJ commented on the unsubstantiated and inappropriate nature of the allegation, in his 27 June 2017 decision on the CPA Application, also demonstrates the substantial and egregious nature of the Respondent’s conduct (see quotation above at [12]).

[137]      In Rees v Bailey Aluminium Products Pty Ltd,  it was expressed that unsubstantiated allegations which relate to fraud should be treated with the utmost concern. As put by the Court of Appeal: “An allegation of fraud, when there is no factual basis for it, constitutes a serious dereliction of duty and misconduct by counsel.”

[138]      This is the level of concern invoked by the Respondent’s behaviour in this case. The conduct was substantial and consistent and amounts to professional misconduct.

Finding as to liability

[139]      I am comfortably satisfied on the balance of probabilities that the evidence in this case supports a finding that the Respondent is guilty of Charge 2, being professional misconduct within the meaning of both ss 297(1)(a) and 298(b) of the Uniform Law.

(footnotes deleted, emphasis added)

The decision is on appeal by the respondent Mr Sandbach.