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FEATURE ARTICLE - Issue 96: June 2024, Professional Conduct and Practice

Barrister Guilty of Professional Misconduct for Sexual Harassment of Part-Time Research Staff

BY Hearsay

997 Views

In Council of the New South Wales Bar Association v Waterstreet [2024] NSWCATOD 47 (12 April 2024), the Appeal Division of the Civil and Administrative Tribunal of New South Wales (Cole DCJ, H Dickson SC – Senior Member; and M Bolt – General Member) found the respondent barrister, Charles Waterstreet, guilty of professional misconduct in respect of what was found to be sexual harassment of part-time research staff. The court wrote (analogous statutory provisions enacted in Queensland) :

[1] The Council of the New South Wales Bar Association (“the Council”) filed an Application for Disciplinary Findings and Orders under the Legal Profession Uniform Law (NSW) (‘the Uniform Law’) in the Tribunal on 27 October 2021, which was superseded by an amended Application filed on 27 January 2022 (‘the Application’).

[2] The Application alleges that Mr Waterstreet engaged in unsatisfactory professional conduct and professional misconduct in relation to three complainants. Disciplinary orders are sought pursuant to s 302 of the Uniform Law. This decision deals only with the issue of whether the allegations in the Application have been proven. The question of disciplinary orders will be the subject of a further hearing.

[3] The hearing in relation to the allegations took place over 6 days. Oral evidence was given by nine witnesses, and voluminous documentary evidence was tendered.

[4] The Council bears the onus of proving the allegations which form the basis for the Application. The standard of proof is proof on the balance of probabilities. Having regard to the nature of the allegations, and bearing in mind the range of possible consequences of adverse findings, only clear and cogent evidence will be capable of meeting the standard of proof required (see Briginshaw v Briginshaw (1938) 60 CLR 336 ). Where, in this decision, a finding is made as to whether or not a fact has been proven, it should be assumed that the finding has been made on the balance of probabilities on clear and cogent evidence.

The Complaint

[5] It is agreed that Mr Waterstreet, at all material times, was a lawyer within the meaning of s 261 of the Uniform Law. Mr Waterstreet was admitted to the Roll of Barristers of the Supreme Court of New South Wales, as it was then called, on or about 8 March 1974. He was issued with a practising certificate as a barrister in New South Wales when practising certificates were introduced on 25 May 1988. He held a practising certificate without restrictions from that date until 8 October 2018. From 9 October 2018, he held a practising certificate with discretionary conditions attached. That was his last practising certificate. He does not presently hold a practising certificate as a barrister.

[6] The Application is based upon three separate complaints, from three unrelated complainants, on 19 February 2018 (Complaint One, which comprises Ground One and Ground Two), 25 June 2018 (Complaint Two, which comprises Ground Three) and 25 February 2019 (Complaint Three, which comprises Ground Four and Ground Five). The names of the complainants are the subject of non-publication orders, and we will refer to them as C1, C2 and C3. Non-publication orders have also been made with respect to other witnesses. The setting out and numbering of the allegations in the complaint by the Council is unusual, but we have, of course, followed it.

…

Applicable Law

[28] As we have said, the Application has been brought under the Uniform Law.

[29] The Uniform Law came into operation on 1 July 2015. The Legal Profession Act 2004 was repealed on the same day (see the Legal Profession Uniform Law Application Act 2014 No 16 (NSW) as made).

[30] C1’s complaint in relation to Mr Waterstreet was made on her behalf to the Office of the Legal Services Commissioner on 19 February 2018. C1’s complaint was subsequently referred to the Council.

[31] As a result of C1’s complaint having been made after the commencement of the Uniform Law, the Uniform Law is the applicable law, notwithstanding that all of the alleged conduct the subject of C1’s complaint is alleged to have occurred prior to the Uniform Law coming into operation. The transitional provisions in Schedule 4 of the Uniform Law provide for the continuation of disciplinary complaints and investigations commenced under the Legal Profession Act 2004 (see Schedule 4 clause 26 of the Uniform Law and Taylor v Council of the Law Society of New South Wales [2020] NSWCA 273 at [24]). However, the Uniform Law provides that, where the conduct is alleged to have occurred prior to 1 July 2015, and could have been, but was not, the subject of a complaint under the Legal Profession Act 2004 , then the complaint is to be made under the Uniform Law (Uniform Law, Schedule 4, clause 27(1) and (2)). The Uniform Law says, in Schedule 4, clause 27:

27 Complaints and investigations under this Law of prior conduct

This clause applies to conduct that —(a) happened or is alleged to have happened before the commencement day; and(b) could have been, but was not, the subject of a complaint (or, if relevant, a request for dispute resolution) under old Chapter 4.
A complaint may be made under this Law on or after the commencement day in relation to the conduct, even if the conduct could not be the subject of a complaint under this Law if it had happened on or after the commencement day.
An investigation may be commenced under this Law on or after the commencement day in relation to the conduct, so long as the same conduct had not been, or had not commenced to be, investigated before that day under the old legislation.
The complaint may be made, or the investigation may be commenced, even if the conduct could not be the subject of a complaint under this Law if it had happened after the commencement day.
This Law applies (with the necessary modifications) in relation to the conduct.
However, disciplinary action may not be taken against a person under this Law in relation to the conduct if it is more onerous than the disciplinary action that could have been taken against the person under the old legislation in relation to the conduct.
This clause does not authorise an investigation to be commenced after the commencement day in relation to the conduct if an investigation of the relevant kind could not have been commenced under the old legislation in relation to the conduct had the old legislation not been repealed.

[32] The Uniform Law provides, in Chapter 9, for the making of Legal Profession Uniform Rules (see Uniform Law, s 419).

[33] The Uniform Law provides, in s 296:

296 Unsatisfactory professional conduct

For the purposes of this Law, unsatisfactory professional conduct includes conduct of a lawyer occurring 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 lawyer.

297 Professional misconduct

For the purposes of this Law, professional misconduct includes –(a) 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; and(b) conduct of a lawyer whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the lawyer is not a fit and proper person to engage in legal practice.
For the purpose of deciding whether a lawyer is or is not a fit and proper person to engage in legal practice as referred to in subsection (1)(b), regard may be had to the matters that would be considered if the lawyer were an applicant for admission to the Australian legal profession or for the grant or renewal of an Australian practising certificate and any other relevant matters.

298 Conduct capable of constituting unsatisfactory professional conduct or professional misconduct

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

(a)…

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

…

[34] The reference to the Uniform Rules in s 298(b) of the Uniform Law in the context of this matter is a reference to the Legal Profession Uniform Conduct (Barristers) Rules 2015 (‘the Uniform Barristers Rules’).

[35] The Uniform Barristers Rules 2015 provide, in r 123:

123 Anti-discrimination and harassment

A barrister must not in the course of, or in connection with, legal practice or their profession, engage in conduct which constitutes:(a) discrimination,(b) sexual harassment, or(c) bullying.
For the purposes of subrule (1), conduct in connection with a barrister’s profession includes, but is not limited to:(a) conduct at social functions connected with the bar or the legal profession, and(b) interactions with a person with whom the barrister has, or has had, a professional relationship.

[36] Rule 117 of the New South Wales Barristers’ Rules 2014 (which were in operation from 6 January 2014 to 1 July 2015) provides that a barrister must not, in the course of practise, engage in conduct which constitutes sexual harassment.

[37] Rule 8(c) of the Uniform Barristers Rules 2015 provides:

8 General

A barrister must not engage in conduct which is:

…

(c) likely to diminish public confidence in the legal profession or the administration of justice or otherwise bring the legal profession into disrepute.

[38] The New South Wales Barristers Rules 2014 (‘the 2014 Rules’) contained an identical provision in rule 12(c).

[39] In the context of this matter, the relevant provisions of the Uniform Barristers Rules 2015 are, for all practical purposes, the same as the corresponding provisions of the 2014 Rules and are, therefore, no more onerous than those Rules. In these circumstances, it is arguable that the effect of Schedule 4, clause 27 (5)-(7) of the Uniform Law, is that the Uniform Barristers Rules 2015 apply to C1’s complaint, despite the fact that the conduct alleged in the complaint pre-dates the Uniform Law (see also Part 5.4, Division 3, and Schedule 4 clauses 2 and 5 of the Uniform Law and the Legal Profession Uniform Law Application Act 2014, Part 2). We acknowledge that there is an argument to the contrary, which was put by the respondent in written submissions on 17 November 2023. Among other things, the respondent submitted that s 27(5) of the Uniform Law should be confined to the Legal Profession Uniform Law (NSW) and should not be read as referring to the rules under that Law. That argument would result in the 2014 Rules applying to C1’s complaint. The argument has some force, but we find it difficult to reconcile with clause 27 of Schedule 4, read as a whole. As the outcome of this matter will not be affected by the resolution of the issue, we will not consider it further.

Sexual harassment

[40] The Uniform Barristers Rules 2015 (see also Rule 119 of the 2014 Rules) define ‘sexual harassment as follows:

‘Sexual harassment’ means sexual harassment as defined under the applicable state, territory or federal anti-discrimination or human rights legislation.

[41] At all relevant times, the Anti-Discrimination Act 1977 (NSW), in s 22A has defined “sexual harassment” in the following way:

22A Meaning of “sexual harassment”

For the purposes of this Part, a person sexually harasses another person if —

(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person, or

(b) the person engages in other unwelcome conduct of a sexual nature in relation to the other person,

in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated.

[42] The Applicant has expressly based its case, in so far as it relates to allegations of sexual harassment, on s 22A(b) alone.

unwelcome

[43] The word “unwelcome” is not defined in the Anti-Discrimination Act 1977 .

[44] In Vitality Works Australia Pty Ltd v Yelda (No 2) [2021] NSWCA 147 (‘Vitality Works’), Bell P and Payne JA (with whom McCallum JA agreed) said, in relation to the word “unwelcome” is s 22A, at [34]:

…Whether the conduct is “unwelcome” is a subjective question, judged from the point of view of the person subjected to the conduct….

[45] At [82], Bell P and Payne JA said:

We agree with McCallum J in Styles v Clayton Utz (No 3) [2011] NSWSC 1452 at [177] at [181], that “the sexual conduct must be subjectively unwelcome to the complainant” and that “the phrase ‘unwelcome conduct’ plainly means conduct perceived by the complainant as unwelcome”. We also agree with Bromberg J, who held in Ewin v Vergara (No 3) [2013] FCA 1311; (2013) 307 ALR 576 , at [27], that “‘unwelcome’ simply means conduct that is disagreeable to the person to whom it was directed” and that “[t]he requirement that the impugned conduct be unwelcome raises a subjective test” (see further Kraus v Menzie [2012] FCA 3 at [22] per Mansfield J).

conduct of a sexual nature

[46] Regarding the question of whether conduct constitutes “conduct of a sexual nature” for the purposes of s 22A of the Anti-Discrimination Act 1977 , Bell P and Payne JA said, in Vitality Works, at [34]–[35]:

34.…Whether the conduct is “conduct of a sexual nature” is a question of fact, ascertained objectively.

35. The breadth of the conduct amounting to “other unwelcome conduct of a sexual nature” should not be read down or confined by reference to limits or restrictions which do not appear in the statute….

[47] McCallum JA said, in Vitality Works at [125]:

125.…Innuendo, insinuation, implication, overtone, undertone, horseplay, a hint, a wink or a nod; these are all devices capable of being deployed to sexualise conduct in ways that may be unwelcome. The power of implication is well understood in the field of defamation: cf Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186; [2005] HCA 5 2 at [8]–[12]. In the nature of things, sexual implication is perhaps the most powerful of all. The suggestion that conduct cannot amount to sexual harassment unless it is sexually explicit overlooks the infinite subtlety of human interaction and the historical forces that have shaped the subordinate place of women in the workplace for centuries. The scope of the term “conduct of a sexual nature” in s 22A of the Anti-Discrimination Act is properly construed with an understanding of those matters.

other unwelcome conduct of a sexual nature

[48] Regarding the phrase “other unwelcome conduct of a sexual nature”, Bell P and Payne JA said, in Vitality Works, at [97]–[98]:

97. As to the words of s 22A of the Anti-Discrimination Act, they are clear and sufficient to encompass the present conduct. The phrase “other unwelcome conduct of a sexual nature” is not a term of art but, rather, an ordinary English expression in common usage. It is a term of broad import that should not be narrowly construed. The breadth of the conduct amounting to “other unwelcome conduct of a sexual nature” should not be read down or confined by reference to limits or restrictions which do not appear in the statute.

98. As to the subject matter, scope and purpose of the Anti-Discrimination Act, it cannot seriously be suggested that the subjective intention of the alleged perpetrator has anything to do with proof of the statutory prohibition. If it were otherwise, an important societal norm would rest on the subjective opinions of the putative sexual harasser. In effect, the greater the subjective tolerance of sexually inappropriate conduct on the part of the sexual harasser, the more difficult sexual harassment would be to prove. That conclusion needs only to be stated to be rejected.

[49] The point in time at which the conduct must have been subjectively unwelcome to the complainant for the purposes of s 22A of the Anti-Discrimination Act 1977 is the time at which that conduct was experienced by the “other person” referred to in s 22A. There may be incidents in which conduct of a sexual nature is not subjectively perceived as unwelcome by a person in relation to whom that conduct is engaged in (‘the other person’) at the time that the conduct comes to the other person’s attention. Subsequently, after the conduct has ceased (perhaps months or years after), that conduct may come to be thought of by the other person, in retrospect, as unwelcome, on account of a change to the framework within which the other person has come to think about the conduct. In those circumstances, the conduct would not constitute sexual harassment within the meaning of s 22A (see Styles v Clayton Utz (No 3) [2011] NSWSC 1452 at [205]–[206]; Hughes (T/as Beesley and Hughes Lawyers) v Hill (2020) 382 ALR 231; [2020] FCAFC 126 at [23] (‘Hughes’)).

[50] Bell P and Payne JA said, in Vitality Works, at [100]–[101]:

100. …To be clear, “other unwelcome conduct of a sexual nature” includes sexually suggestive “jokes” and comments, including “jokes” and comments containing a double meaning.

101. As to whether as a matter of objective fact particular conduct meets the description of “other unwelcome conduct of a sexual nature”, context is everything. The meaning of language changes over time. Language falling within the concept of “other unwelcome conduct of a sexual nature” may change over time. Societal norms, including the common understanding about what is and is not conduct of a sexual nature, change. Analysing decisions from 20 years ago about what was or was not conduct of a sexual nature is fraught with risk. With those caveats in mind, some assistance may be gleaned from previously decided cases.

in relation to the other person

[51] This phrase does not appear to have been the subject of any judicial consideration. In our view, in context, it means that the unwelcome conduct of a sexual nature must, on an objective view, at least partly, have been directed to, or pertain to, the “other person” referred to in s 22A. Of course, conduct can be directed towards more than one person at a time.

in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated

[52] Bell P and Payne AJ said, in Vitality Works, of this part of s 22A:

37. The second element of sexual harassment is that a reasonable person, having regard to all the circumstances, would have anticipated that Ms Yelda would be offended, humiliated or intimidated by the proved conduct. This is an objective test. …

Consistent with that statement, in relation to a very similar clause in s 28(1) of the Sex Discrimination Act 1986 (Cth), Perram J said, in Hughes, at [25]–[26]:

25. …the objective standard is applied to a new issue — that of whether a reasonable person would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.

26. In answering this question, the reasonable person is assumed by the provision to have some knowledge of the personal qualities of the person harassed. The extent of the knowledge imputed to the reasonable person is a function of the ‘circumstances’ which the provision requires be taken into account. Mention has already been made of the nature of the relationship between the harasser and the harassed. It is convenient also to note that the circumstances will include any disability the harassed person is suffering from (subs (1A)(c)) as well as matters such as sex, age, religious belief or sexual orientation (subs (1A)(a)). But the list in subs (1A) is merely inclusive so that other unspecified but relevant circumstances may also be taken into account. The canvas is broad.

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Complaint Three, Ground Five — Professional Misconduct

[291] Complaint Three, Ground Five, is as follows:

18. In respect of the conduct identified at Grounds 1 to 4 above the respondent engaged in professional misconduct, in that:

(a) His conduct involved a substantial or consistent failure to reach or maintain a reasonable standard of competence or diligence, and/or

(b) His conduct occurring in the practice of law is such that it would justify a finding that the respondent is not a fit and proper person to engage in legal practice.

Particulars

The particulars for Grounds 1 to 4 are repeated.

19. In the alternative to paragraph [18], in respect of the conduct identified at Grounds 1 to 4 above the respondent engaged in unsatisfactory professional conduct in that his conduct fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer.

Particulars

The particulars for Grounds 1 to 4 are repeated.

[292] We have dealt with the substance of paragraph 19 of the complaint above.

[293] The remaining question is whether all of the conduct which has been established amounts to professional misconduct. As we have said, the definition of professional misconduct is:

297 Professional misconduct

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

(a) 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; and

(b) conduct of a lawyer whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the lawyer is not a fit and proper person to engage in legal practice.

(2) For the purpose of deciding whether a lawyer is or is not a fit and proper person to engage in legal practice as referred to in subsection (1)(b), regard may be had to the matters that would be considered if the lawyer were an applicant for admission to the Australian legal profession or for the grant or renewal of an Australian practising certificate and any other relevant matters.

s 298 Conduct capable of constituting unsatisfactory professional conduct or professional misconduct

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;

Professional misconduct under s 297(1)(a)

[294] The following concession was made in the Respondent’s case:

300. As to PM [professional misconduct] under the first limb of s 297, the conduct in grounds one to four, by reference to the particulars the respondent submits is capable of being proved, viewed collectively: is capable of constituting a “substantial” failure as it conduct that is failure to meet the required standard in a way that is large and considerable, and does constitute a ”consistent” failure in that the inappropriate conduct is repeated and persistent in a variety of situations [sic].

[295] We accept that, in the context of s 297(1)(a) of the Uniform Law, “substantial” means a departure from the reasonable standard of competence and diligence which may be sufficiently serious, or large or considerable enough, to raise questions as to the lawyer’s competence and diligence ( Council of the Law Society of New South Wales v Webb [2013] NSWCA 423 (“Webb”). We further accept that “consistent” refers to a repeated departure from that standard (Webb; Xu v Council of the Law Society of New South Wales [2009] NSWCA 430 at [59]).

[296] In relation to that part of the complaint concerning Mr Waterstreet’s conduct towards C1, we have found that the following conduct constitutes the sexual harassment of C1 and is in breach of rule 117(b) of the 2014 Rules (rule 123(1)(b) of the Uniform Barristers Rules):

(1) Saying, in October 2014, about the female partner of a client who had attended at chambers “I want to rub her all over”. (Complaint One, paragraph 9(iv)).

(2) Viewing a pornographic video in chambers in C1’s presence in December 2014 (Complaint One, paragraph 9(v)).

(3) Drawing C1’s attention to a framed pencil drawing of a flaccid penis on one of the internal walls of the chambers and saying “This is a drawing of my beautiful penis” (Complaint One, paragraph 9(vii)).

[297] We have determined that the conduct referred to in [296], above, also constituted a breach of rule 12(c) of the 2014 Rules (rule 8(c) of the Uniform Barristers Rules), in that it was likely to diminish public confidence in the legal profession. The allegations in [296] also bring the legal profession into disrepute. The assumption, by a barrister, of the conduct of a client’s case is a very serious undertaking. A client commonly has at stake their liberty, their financial prosperity and/or their family or business relationships. The public rightly expects that barristers will go about the practice of their profession in a manner consistent with their ethical obligations and the law. Chambers are expected to be conducted in a serious, diligent and productive way. Public confidence in the maintenance of the high standards of conduct by the Bar also relies upon the fostering of the professional development of law students or recent graduates, where such fostering is undertaken, in a manner conducive to the students’ or graduates’ future contribution to the profession as ethical, confident and competent practitioners. The creation of a working environment which places law students or graduates under pressure by subjecting them to sexual harassment is inconsistent with the reasonable expectations of barristers by the public. It may also, of course, have a serious adverse impact upon the student or graduate. Workplaces, including chambers, should be safe places for all of the people who work or visit them.

[298] We have determined that the following further conduct by Mr Waterstreet constitutes a breach of rule 12(c) of the 2014 Rules (rule 8(c) of the Uniform Barristers Rules):

(1) Showing C1 a picture of a woman in lingerie on his phone, in October 2014, and saying “Look at this woman’s ass. Don’t you think she is incredibly good looking” and “She’s your type, isn’t she” (Complaint One paragraph 9(iii)).

(2) Showing C1 photographs of a woman in lingerie on his phone and saying words to the effect of “This is the woman I met with last night. She is wearing lingerie from Baby Like to Pony that she bought with the voucher you organised” in May 2015. (Complaint One paragraph 9(ix)).

(3) On 16 June 2015, sending C1 an email containing an eBay advertisement for a “mankini” with a picture of a man wearing the product (Complaint One paragraph 9(x)).

[299] We have determined that the conduct referred to above in [296] and [298] above constitutes unsatisfactory professional conduct. Taken together, the conduct was a substantial and consistent departure from the expected standard of conduct of a barrister. The conduct constitutes professional misconduct under s 297(1)(a) of the Uniform Law.

[300] It was conceded, and we have found, that Mr Waterstreet has failed to pay C1 $1580 owing to her on account of wages due since June 2015 (Complaint One paragraph 10). At [166], above, we set out why we have determined that this conduct constitutes unsatisfactory professional conduct.

[301] In context, the sum of $1580 is a considerable sum. In June of 2015, C1 was a law student who was reliant upon her employment with Mr Waterstreet for her livelihood. It is clear from the emails between them in 2015 that C1’s need to earn an adequate amount of money to support herself was a source of anxiety to her, and Mr Waterstreet knew that. Mr Waterstreet’s failure to prioritise his legal and personal obligation to pay C1 her wages was a substantial departure from the standard of behaviour expected from a barrister. Mr Waterstreet exploited C1 by having her assist him to earn fees and then failing to pay her what she was due for doing so. The sum owing is three week’s pay, so the departure from the standard is consistent as well as substantial. C1’s resentment about the unpaid wages was partly informed by the knowledge that, in May 2015, Mr Waterstreet had bought a bottle of Moet and a $400 lingerie voucher as a gift for a woman with whom he was meeting. C1’s resentment was obviously justified.

[302] The conduct in paragraph 10 of Complaint One is professional misconduct under s 297(1)(a) of the Uniform Law.

[303] Mr Waterstreet’s conduct in relation to C2 all occurred in the course of a job interview on 20 September 2017. We have found that the following conduct occurred and constituted a breach of rules 123(1)(b) and 8(c) of the Uniform Barristers Rules.

(1) Mr Waterstreet showed C2 a sex toy and asked her if she knew what it was. (Complaint Two, paragraph 15(ii)).

(2) Mr Waterstreet introduced the Client to C2 and described him as a “porn star” and said that he had “the biggest cock in Australia” (Complaint Two paragraph 15(iii), first two of three alleged comments).

(3) Mr Waterstreet said, in the course of the interview, words to the effect that female orgasms are more volcanic and far more powerful than men’s. (Complaint Two, paragraph 15(iv)(d)).

[304] We have determined that the conduct in [303] above constituted unsatisfactory professional conduct. It was also a substantial departure from the standard of conduct expected from a barrister. When interviewing a candidate for a position, in all cases, but especially for a position at entry level to the legal profession, it is wholly inappropriate to subject that candidate to sexual harassment or unethical conduct of any kind. The position was described in the advertisement on CareerHub as “Paralegal and personal assistant”, clearly indicating that it was primarily to assist with Mr Waterstreet’s work as a barrister. Reference, during the interview, to matters outside of the work which would be done by the successful candidate, should have been confined to matters in keeping with Mr Waterstreet’s position as a barrister. The format of the interview, which took place in tandem with interactions with the Client and the Solicitor about their unrelated matters, in small chambers which also accommodated the Assistant and the Paralegal was fundamentally inappropriate.

[305] Complaint Three, in paragraph 16 and 17, was conceded, and we have determined, that Mr Waterstreet’s conduct on 22 February 2019, in trying to engage C3 in an interaction about the relative attractiveness to her of four men and a woman in a lift, constituted unsatisfactory professional conduct under s 296 and s 298(b) of the Uniform Law. C3 was going about her tasks as a legal assistant when, by chance, she found herself in a lift with Mr Waterstreet and he chose to engage with her in an exchange about her preferences in a relationship partner, seemingly for the entertainment of himself and others in the lift. C3 handled Mr Waterstreet’s conduct very well as it occurred, but it understandably induced in her feelings of distress and discomfort, which remained with her for more than two years after the incident. She found that being in the location of the incident triggered those feelings again and put arrangements in place in her office so that she could avoid the location. Mr Waterstreet’s conduct in the lift displayed a total lack of consideration for the feelings of a young woman, in a professional setting, and was a substantial failure to maintain a reasonable standard of diligence in his behaviour as a barrister. It was a serious failure, with predictable, lasting impact on C3.

Professional misconduct under s 297(1)(b)

[306] As to the allegation in paragraph 18(b) of the complaint that Mr Waterstreet is not a fit and proper person to engage in legal practice, in Council of the New South Wales Bar Association v EFA [2021] NSWCA 339 (‘EFA’), the Court of Appeal said:

122. Professional misconduct at common law, the Council asserted, is as stated by the English Court of Appeal in Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 at 760–761, 763 and 766. Although the term “professional misconduct” was not used in Allinson, that decision is, undoubtedly, the source of the concept on which the Council relies. The Court of Appeal in Allinson was called upon to consider whether it was open to the General Council of Medical Education and Registration to find that Dr Allinson was “guilty of infamous conduct in any professional respect” (the terminology of the relevant statute). The Court unanimously adopted as a definition of at least one kind of “infamous conduct in any professional respect” the following at 760–761:

‘If it is shewn that a medical man, in the pursuit of his profession, has done something with regard to it which would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency’, then it is open to the General Medical Council to say that he has been guilty of ‘infamous conduct in a professional respect.’

123. Allinson was, as is apparent, a decision concerned with the supervision of the medical profession. The test, or definition, devised by the Court of Appeal was accepted as referable to supervision of the legal profession in Myers v Elman [1940] AC 282 . As will be seen it has similarly been applied in this State to the legal profession: Council of NSW Bar Association v Sahade [2007] NSWCA 145 at [54]–[55].

…

156. There is, in NSW, no category of professional misconduct constituted by conduct that would reasonably be regarded (by professional peers) as “disgraceful or dishonourable”.

157. That is not to say that the Allinson formulation is irrelevant; as can be seen from the cases discussed above, it has been treated as a useful test in the determination of the fitness of a legal practitioner to remain on the roll. It does not, however, as the Council would have it, create or constitute a category of professional misconduct independent of, and different from, that class of conduct contemplated as rendering the legal practitioner “not a fit and proper person” to remain on the roll of legal practitioners.

158. There is also this to be considered: the Allinson formulation is directed solely to the conduct under consideration. As the judgment of Kitto J in Ziems demonstrates, the issue of fitness encompasses more than mere conduct. The “fit and proper person” test is directed to character, which may be determined by conduct alone, but which may also take into account other circumstances.

159. One of the statutory definitions (s 297(1)(b) of the Uniform Law) of “professional misconduct” is “conduct … that would, if established, justify a finding that the lawyer is not a fit and proper person to engage in legal practice”.

160 “Professional misconduct” determined against the “critical criterion” of “a fit and proper person” is indistinguishable from “professional misconduct” as defined in s 297(1)(b) of the Uniform Law. There was therefore nothing to be achieved by the Tribunal approaching its determination on the basis that professional misconduct at common law is something different from professional misconduct as defined in s 297(1)(b).

…

163. By ground 4 the Council complains of error in the Tribunal’s finding, at [77] of the Stage 1 reasons, that the Council had failed to prove professional misconduct within the s 297(1)(b) definition on the basis that it had not established that the respondent “is not a fit and proper person to engage in legal practice …”. In other words, the attack was on the reasoning process to the conclusion. The Council pointed out, correctly, that what it needed to prove to establish professional misconduct under s 297(1)(b) was that the respondent’s conduct (as found) would justify a finding that he was not a fit and proper person to engage in legal practice. It is not necessary that the Council establish that the respondent was, in fact, not a fit and proper person.

164. We accept that, in rejecting the Council’s contention that the respondent’s conduct constituted professional misconduct within the meaning of s 297(1)(b), on the basis that it was not established that he was not a fit and proper person, the Tribunal applied a more rigorous test than is called for by the provision. Conduct that would justify a finding of unfitness is not necessarily conduct that must result in such a finding: there is a range of conduct that would justify, but not necessarily result in, such a finding; there is a range of conduct with respect to which reasonable minds might differ on whether it did, in fact, demonstrate unfitness. Section 297(1)(b) is concerned with the capacity of the conduct to constitute unfitness. We accept that the reasoning of the Tribunal was, in this respect, flawed. That does not mean that the ground must be upheld. Flawed reasoning does not necessarily mean that the conclusion reached is incorrect; a correct conclusion may be drawn notwithstanding flaws in the reasoning process.

…

169. There is something of a paradox in s 297(1)(b). On a literal interpretation the paragraph focuses on the objective circumstances of the conduct found (“conduct of a lawyer whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law”). Yet, as the majority judgments in Ziems, (particularly that of Kitto J), show, a finding of unfitness involves more than an objective analysis of the impugned conduct, absent other relevant (often extenuating) circumstances. The question of fitness to engage in legal practice focuses not only on the objective circumstances of the conduct in question but also on the personal qualities of the lawyer in question, and other circumstances that bear upon the conduct. Unfitness is ultimately a finding about character, although conduct plays an important role in the evaluation of character.

[307] To summarise, the question of whether the conduct which has been established would justify a finding that Mr Waterstreet is guilty of professional misconduct on the basis of not being a fit and proper person to engage in legal practice must be decided in the context of the circumstance of the conduct together with Mr Waterstreet’s personal qualities and other circumstances which bear upon the conduct. The exercise involves a finding about character, with conduct playing an important role, but not the only role, in the evaluation of character.

[308] It is argued, on behalf of Mr Waterstreet, that he is not guilty of professional misconduct under s 297(1)(b) of the Uniform Law. We understand his argument to be that, in the event that we determine that the conduct which has been proven, considered without reference to the psychiatric evidence, would justify a finding that Mr Waterstreet is not a fit and proper person to engage in legal practice, in that the conduct, viewed in context, shows that his character is such as to render him unfit, we should then consider the evidence of Dr Ryan and Dr Sippe. It is further argued that the evidence of Dr Ryan and Dr Sippe should be accepted, and should cause us to find that critical elements of Mr Waterstreet’s conduct were a manifestation of his mental illness rather than being an expression of his character, and that, therefore our assessment of his character, in the context of the proven conduct, would not justify such a finding.

[309] The question of whether Mr Waterstreet is guilty of professional misconduct under s 297(1)(b) involves the consideration of whether his conduct, viewed in context, would justify a finding that he is not a fit and proper person to engage in legal practice. The question of whether the conduct proven should result in a recommendation that Mr Waterstreet’s name be removed from the roll is a separate question, to be decided at a later stage.

Psychiatric Evidence

[310] As we have said, it was argued in the respondent’s case that the evidence of Dr Sippe and Dr Ryan, both of whom are psychiatrists, is relevant to the question of Mr Waterstreet’s character in the consideration of whether the adverse findings made would justify a finding that Mr Waterstreet is not a fit and proper person to engage in legal practice (and thus constitute professional misconduct under s 297(1)(b) of the Uniform Law). It was submitted that (written submissions on behalf of the respondent):

202. …The psychiatric evidence is not relevant to an assessment of the conduct in question such as by way of exculpation of the conduct….That is, the psychiatric evidence is not relevant to negativing this finding that the conduct is regarded as disgraceful and dishonourable…but is relevant to the wider inquiry of character that takes in other considerations including, but not limited to, the conduct in question.

203. Even if the conduct does satisfy the Allinson test that is not the end of the inquiry as to whether the respondent engaged in professional misconduct within the meaning of s 297(1)(b). The ultimate question is one of fitness and to that end the Tribunal must make a determination of the respondent’s character. It is to that end that the psychiatric evidence is directed. If the psychiatric evidence is accepted by the Tribunal, it should take that evidence into account in assessing the extenuating circumstances bearing on the respondent’s character — his psychiatric condition — such that, when the conduct is seen in this context, it does not amount to conduct that would justify a finding that the respondent is not a fit and proper person to practice within the meaning of s 297(1)(b).

…

A report from an independent psychiatrist

[333] The hearing in this matter began on 26 July 2022. Dr Ryan’s affidavit was filed in the Tribunal on the 14 July 2022. Dr Sippe’s affidavit was filed in the Tribunal on 4 July 2022. It can be inferred from the dates of the affidavits and the reports of both psychiatrist that they were provided to the Council close to the time at which they were filed.

[334] After receiving the affidavits of Dr Ryan and Dr Sippe, shortly before the hearing, the Council sought to have Mr Waterstreet examined by an independent expert psychiatrist of its choosing, with a view to a report being prepared and tendered.

[335] At that time, Mr Waterstreet declined to undergo assessment by the independent expert psychiatrist prior to the beginning of the hearing. Mr Strickland said, at the hearing, that Mr Waterstreet would agree to an independent psychiatric assessment prior to the Stage 2 hearing (transcript 26 July 2022 p 26 lines 12–21).

[336] The Tribunal has no power in disciplinary matters to compel anyone to undergo a psychiatric assessment.

[337] It became clear, in the course of the hearing, that Mr Waterstreet had a history of psychiatric diagnoses and treatment going back many years prior to the events the subject of these proceedings. However, on the evidence before us at the end of the hearing in August 2022, he had never been diagnosed with bipolar disorder prior to seeing Dr Ryan and Dr Sippe. Neither Dr Ryan nor Dr Sippe had been given access to Mr Waterstreet’s past psychiatric records, and neither had they had any contact with his past treating psychiatrists.

[338] As we have said, in considering whether professional misconduct under s 297(1)(b) of the Uniform Law has been established, we must view the relevant conduct in the context of the circumstances in which it occurred, together with a consideration of Mr Waterstreet’s personal qualities and other circumstances which bear upon the conduct. We must make a finding about Mr Waterstreet’s character, with conduct playing an important role, but not the only role, in the evaluation of his character.

[339] As we have said, Mr Strickland indicated that Mr Waterstreet would submit to an independent psychiatric assessment with the psychiatrist nominated by the Council for the purposes of Stage 2. We were concerned that a new psychiatric report might provide further evidence relevant to the issue of Mr Waterstreet’s diagnosis and the relationship between any diagnosis and the relevant conduct. We were concerned that some of the content of the report would be relevant to the issue to be decided under s 297(1)(b) of the Uniform Law, but would be adduced after that issue had been decided. We foresaw that Mr Waterstreet’s past psychiatric medical records, or some of them, may be obtained and tendered. Past treating psychiatrists may provide relevant material.

[340] It had been argued, in Mr Waterstreet’s case, that the psychiatric evidence of Dr Ryan and Dr Sippe is relevant to the assessment of Mr Waterstreet’s character as it relates to the question of whether or not we should determine that Mr Waterstreet is not a fit and proper person to engage in legal practice for the purposes of s 297(1)(b). It had been argued that some of the conduct which we have found to constitute sexual harassment and/or a breach of the Uniform Barristers Rules was a manifestation of Mr Waterstreet’s bipolar disorder, and therefore did not reflect adversely upon his character.

[341] We have referred to the Tribunal’s practice, in appropriate matters, of hearing an Application for disciplinary findings and orders in two parts: Stage 1, which deals with culpability, and Stage 2, which deals with disciplinary orders. There is nothing in the Uniform Law which mandates this practice; it has simply been a suitable way in which to arrange the hearing of disciplinary matters under the Uniform Law and the legislation it superseded. The practice is also frequently adopted in disciplinary proceedings in the Tribunal under the Health Practitioner Regulation National Law (NSW).

[342] In EFA, the Court of Appeal said, at [171]–[172]:

171 To justify a finding of unfitness the conduct in question must be seen in context. But, in the two-stage process by which disciplinary proceedings are ordinarily conducted in the Tribunal, much of that which properly informs a holistic assessment of the character of the lawyer concerned, and therefore his or her fitness to engage in legal practice, will not be known until Stage 2 — by which time the conduct has been characterised as unsatisfactory professional conduct or professional misconduct. It does not seem right to characterise conduct as professional misconduct merely because, objectively speaking, it would justify a finding of unfitness if, after consideration of other relevant factors, such a finding would not be justified or warranted. It is only necessary to look at the facts in Ziems and A Solicitor to see that unfitness is not measured by the objective circumstances of the conduct alone.

172 A finding that the impugned conduct would justify a finding of unfitness needs to be made in the context of all available evidence at the time of Stage 1 of the proceeding. It may be, in some cases, that the Commissioner or the relevant professional association has available to it evidence of other instances of conduct similar to, or equally discreditable as, that under consideration; clearly that would be a relevant factor in the determination of whether the conduct in question (not being isolated) was such as to justify a finding of unfitness. That is not this case: so far as the evidence (at the Stage 1 hearing) goes, this was indeed an isolated instance of appalling conduct on the part of the respondent. (At this point, the evidence given at the Stage 2 hearing that adds weight to that inference must be ignored).

[343] In Health Care Complaints Commission v Robinson [2022] NSWCA 164 , which dealt with an Application for disciplinary findings and orders under the National Law, the issues were considered by Leeming JA, Kirk JA and Simpson AJA:

Per Simpson AJA

56 While the bifurcated two stage procedure has, it seems, been generally adopted in and by the Tribunal, and is plainly a convenient means by which the Tribunal deals with the disciplinary issues presented to it for determination, it is not a statutory requirement, nor does it have statutory recognition. As will be seen below, it is capable of giving rise to some complexity.

…

110 Ground 2, however, potentially raises a question about the two stage procedure commonly adopted in disciplinary proceedings in the Tribunal. In EFA, at [171]–[172] this Court commented on the anomaly (in the context of LPUL proceedings) of determining the professional misconduct question prior to the issues that will be illuminated in Stage 2 of an inquiry. While those observations were made in the particular context of findings of unfitness to be a member of the legal profession, some of the same issues arise in the determination of whether conduct comes within s 139E of the National Law so as to result in a finding of professional misconduct. By s 38 of the CAT Act, subject to any legislative prescription, the Tribunal may determine its own procedure. It may, as in this case, do so by deciding to adopt a two stage procedure. That does not necessarily entail a rigid division of the issues into (i) whether unsatisfactory professional conduct or professional misconduct is established (as Stage 1) followed by (ii) an inquiry into what consequential orders ought to be made (as Stage 2). There may be occasions where a more satisfactory course would be to decide any disputed factual issues at Stage 1, and defer the characterisation of the conduct so found to Stage 2. That is a matter for the Tribunal’s own determination in the particular circumstances of any particular case.

Per Kirk JA

38 As Simpson AJA points out, in the National Law there is no express statutory requirement for, or recognition of, the two stage approach adopted here. It may be that the approach adopted here is not the only way that a first stage hearing could have been conducted. It is arguable that it would have been open to limit the issue to factual determination of the allegations made and consideration of whether or not they could be characterised as unsatisfactory professional conduct, leaving for later determination whether or not the conduct fell within the further category of professional misconduct together with the issue of what if any remedies should be ordered. Although that may mean the parties are making submissions on remedy prior to knowing the final characterisation of the conduct, they are still doing so knowing what conduct founds the claim for the remedies. Taking that approach would avoid considering the issue of potential remedies twice. However, it is possible that such an approach conflicts with what was stated in Lucire at [54]–[65]. That being said, it is also possible that the discussion there should be understood not as stating some obligation that the parties know whether the conduct is characterised as professional misconduct before remedies are decided, but rather as reaffirming that what procedural fairness requires is to be assessed in all the circumstances of the particular case: note at [60]–[61]. This case does not present the appropriate vehicle for determining the issue.

Per Leeming JA

3 I also agree with the judgment of Kirk JA, in particular the desirability of the parties and the Tribunal identifying with precision what is to be determined at a “Stage 1” hearing, bearing in mind that a delineation which facilitates the just, quick and cheap resolution of the real issues in one proceeding might not be the delineation which gives effect to that guiding principle in s 36 of the CAT Act in some other proceeding. In each case, whether there is a staged hearing and the matters to be resolved at each stage will depend upon the nature of the case, the seriousness of the conduct alleged, and the matters in issue.

[344] The Uniform Law, in s 3(b)-(d), says, relevantly:

3 Objectives

The objectives of this Law are to promote the administration of justice and an efficient and effective Australian legal profession, by—

…

(b) ensuring lawyers are competent and maintain high ethical and professional standards in the provision of legal services; and

(d) empowering clients of law practices to make informed choices about the services they access and the costs involved; and

…

The psychiatric evidence and s 297(1)(b)

[358] We accept the evidence of Dr Sippe, Dr Ryan and Dr Martin that Mr Waterstreet, at all relevant times, suffered from bipolar II disorder. We find that a diagnosis of bipolar II disorder was not made until 2022, when both Dr Sippe and Dr Ryan made that diagnosis. Dr Martin and Professor Mitchell both agree with the diagnosis. Until 2022, Mr Waterstreet’s diagnosis was major depressive disorder and generalised anxiety with mild ADD symptoms and his treatment was based on that diagnosis.

[359] We accept that Mr Waterstreet was experiencing both major depressive episodes and shorter hypomanic episodes periodically throughout the period of time in which the conduct complained of occurred (September 2014 to 22 February 2019). We note that the Diagnostic and Statistical Manual of Mental Disorders, fifth edition (DSM-5), says, in the entry for bipolar II disorder (Exhibit R12), under the heading “Diagnostic Features”:

Individuals with bipolar II disorder typically present to a clinician during a major depressive episode and are unlikely to complain initially of hypomania. Typically, the hypomanic episodes themselves do not cause impairment. Instead, the impairment results from the major depressive episodes or from a persistent pattern of unpredictable mood changes and fluctuating, unreliable interpersonal or occupational functioning. Individuals with bipolar II disorder may not view the hypomanic episodes as pathological or disadvantageous, although others may be troubled by the individual’s erratic behaviour. Clinical information from other informants, such as close friends or relatives, is often useful in establishing the diagnosis of bipolar II disorder.

[360] DSM-5 sets out the following criteria for a hypomanic episode:

A. A distinct period of abnormally and persistently elevated, expansive, or irritable mood and abnormally and persistently increased activity or energy, lasting at least 4 consecutive days and present most of the day, nearly every day.

B. During the period of mood disturbance and increased energy and activity, three (or more) of the following symptoms have persisted (four if the mood is only irritable), represent a noticeable change from usual behaviour, and have been present to a significant degree:

1. Inflated self-esteem or grandiosity.

2. Decreased need for sleep (eg feels rested after only 3 hours of sleep).

3. More talkative than usual or pressure to keep talking.

4. Flight of ideas or subjective experience that thoughts are racing.

5. Distractibility (ie, attention too easily drawn to unimportant or irrelevant external stimuli) as reported or observed.

6. Increase in goal directed activity (either socially, at work or school, or sexually) or psychomotor agitation.

7. Excessive involvement in activities that have a high potential for painful consequences (eg, engaging in unrestrained buying sprees, sexual indiscretions, or foolish business investments).

C. The episode is associated with an unequivocal change in functioning that is uncharacteristic of the individual when not symptomatic.

D. The disturbance in mood and the change in function are observable by others.

E. The episode is not severe enough to cause marked impairment in social or occupational functioning or to necessitate hospitalisation. If there are psychotic features, the episode is, by definition, manic.

F. The episode is not attributable to the physiological effects of a substance (eg a drug of abuse, a medication or other treatment).

[361] All of the conduct alleged in relation to C1 in Complaint One, Ground One, particular 9, which we have found to have been proven involved inappropriate sexual conversation (in the context of a workplace), disinhibition, and overfamiliarity on the part of Mr Waterstreet, which Dr Martin said are consistent with ‘a bipolar picture’. Dr Ryan said that disinhibition, impulsivity verbally and behaviourally, and increased sexual interest are symptoms of hypomania. Dr Ryan described a predisposition to making “inappropriate, disinhibited comments with a sexual focus and preoccupation” as a “hallmark feature of bipolar 2 in a hypomanic phase”. Dr Sippe said that in bipolar II disorder, in the hypomanic phase, “Optimism is marked and judgment is impaired. Impairment of judgement and impulsivity often lead to foolish financial decisions and inappropriate sexual behaviour”.

[362] Complaint One, Ground Two, concerns the underpayment of C1 by Mr Waterstreet. This complaint is associated with Mr Waterstreet’s reckless and impulsive spending, disorganisation and lack of empathy or consideration of others, which can occur during hypomanic episodes, on the evidence of Dr Martin. Dr Ryan also identified Mr Waterhouse’s ‘impulsive and undisciplined spending’ as an aspect of his mood disorder.

[363] All of the conduct alleged in Complaint Two, Ground Three, particular 15 which we have found to have been proven involves inappropriate sexual conversation (in the context of a workplace interview), disinhibition and overfamiliarity on the part of Mr Waterstreet, again consistent with ‘a bipolar picture’ on the evidence of Dr Martin and with the evidence of Dr Ryan and Dr Sippe referred to above.

[364] The conduct alleged in Complaint Three, Ground Four, and admitted by Mr Waterstreet, displayed many aspects of a hypomanic episode , including a flight of ideas, excessive talking, disinhibited and hypersexual behaviour, impaired judgement and a lack of empathy or consideration of others, again consistent with the symptoms of bipolar II disorder.

[365] We accept the evidence of Dr Martin, Dr Sippe and Dr Ryan that the conduct of Mr Waterstreet which is the subject of the complaint was behaviour which is symptomatic of a poorly controlled mental illness, namely bipolar II disorder.

[366] The DSM-5 entry on bipolar II disorder makes it clear that the episodes of depression and hypomania which comprise the disorder are intermittent. It follows that there will be periods of time during which a person with bipolar II disorder will not be experiencing depression or hypomania. However, DSM-5 says:

The interval between mood episodes in the course of bipolar II disorder tends to decrease as the individual ages.

[367] It seems to us that the conduct alleged in the complaint which has been proven was a product of Mr Waterstreet’s then undiagnosed, and therefore poorly controlled, bipolar II disorder, in combination with being an expression of some of his personality traits, such as his desire to entertain, his self-centeredness and his tendency to prioritise his own needs over the needs of others. Hypomania is expressed differently in different people.

[368] Bearing in mind that impaired judgment is a feature of bipolar II disorder, particularly in the hypomanic state, we find that we are unable to attribute Mr Waterstreet’s offending conduct to his character for the purposes of s 297(1)(b) of the Uniform Law. Whilst attributes of his character influenced aspects of the way in which he behaved whilst hypomanic, the uncontrolled hypomania was the force that caused him to take his behaviour to the point where he fell foul of his professional and personal obligations to other people who were involved or present in his workplaces.

[369] We decline to find that Mr Waterstreet, by reason of the conduct proven against him in this matter, is not a fit and proper person to engage in legal practice under s 297(1)(b) on account of attributes of his character. The Council has not established that Mr Waterstreet’s character played a sufficient role in his offending conduct for an adverse finding to be made under s 297(1)(b), and the psychiatric evidence, which we accept, indicates that Mr Waterstreet’s then undiagnosed and poorly controlled bipolar II disorder was the dominant causal factor in his offending conduct.

Summary and Conclusion

Complaint One Ground One

[370] Particulars 9(iv), (v) and (vii) of Complaint One, Ground One, have been established. They constitute sexual harassment and are to be dealt with as breaches of rule 117(b) of the 2014 Rules (rule 123(1)(b) of the Uniform Barristers Rules). The conduct alleged in particulars 9(iii), (iv), (v), (vii), (ix) and (x) constitutes conduct likely to diminish public confidence in the legal profession, and we are dealing with those particulars as breaches of rule 12(c) of the 2014 Rules (rule 8(c) of the Uniform Barristers Rules).

[371] Together, the rule breaches alleged in Complaint One Ground One which have been established constitute unsatisfactory professional conduct under ss 296 and 298(b) of the Uniform Law.

Complaint One Ground Two

[372] Particular 10 of Complaint One, Ground Two, which relates to the underpayment of wages to C1, has been established. It is to be dealt with as a breach of rule 12(c) of the 2014 Rules (rule 8(c) of the Uniform Barristers Rules). The conduct constitutes unsatisfactory professional conduct under ss 296 and 298(b) of the Uniform Law.

Complaint Two Ground Three

[373] The allegations of sexual harassment in particulars 15(ii), (iii) (as to the first two alleged comments, but not the third) and (iv)(d) have been proven. Each of them constitutes a breach of rule 8(c) and rule 123(1)(b) of the Uniform Barristers Rules. They constitute unsatisfactory professional conduct under ss 296 and 298(b) of the Uniform Law.

Complaint Three, Ground Four

[374] The allegations in paragraphs 16 and 17 of the complaint were conceded and proven. The conduct constitutes sexual harassment, in breach of rule 123(1)(b) of the Unform Barristers Rules. It is also a breach of rule 8(c) of the Uniform Barristers Rules as conduct likely to bring the legal profession into disrepute. It constitutes unsatisfactory professional conduct under s 296 of the Uniform Law.

Complaint Three, Ground Five

[375] Complaint Three, Ground Five alleges that the conduct alleged in Grounds One to Four constitute professional misconduct and unsatisfactory professional conduct. We have found that such of the conduct as has been established in each of Grounds One to Four constitute unsatisfactory professional conduct.

[376] All of the conduct which has been proven, taken together, constitutes professional misconduct under s 297(1)(a) of the Uniform Law.

[377] Professional misconduct has not been made out under s 297(1)(b) of the Uniform Law.

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(emphasis added)

The full decision is to be found here: https://www.caselaw.nsw.gov.au/decision/18ecc082a9cb371d4a46d67e