(1) The solicitor Michael Anthony Griffin is guilty of Professional Misconduct. (2) The solicitor is reprimanded (a) The Solicitor, at his own expense, is to undertake within 6 months of the date of the orders made by the Tribunal [and during which the Solicitor holds a current practising certificate], a course in Legal Ethics that is approved by the Manager of the Professional Standards Department and therein achieve a pass mark of not less than 50% (Pass Mark). (b) The Solicitor will, within seven (7) days of receipt of the result of the course in Legal Ethics, provide the Manager of the Professional Standards Department the original result notification from the provider of the course in Legal Ethics. (c) Should the Solicitor fail to achieve the Pass Mark, he shall complete any further course in Legal Ethics as approved by the Manager of the Professional Standards Department until such time as he achieves the Pass Mark. (d) Should the Solicitor fail to achieve the Pass Mark within the time period in 2 above, his practising certificate shall be suspended until such time as he achieves the Pass Mark. (3) That the solicitor pay the Council’s costs on a party and party basis as agreed or assessed

Reasons for Decision

By its application in this matter filed 4 March 2015 the Council of the Law Society of NSW (the Council) seeks a finding of professional misconduct against Michael Anthony Griffin (the Solicitor) and consequential orders. The underlying facts are not in dispute. The solicitor acted for the applicant Richard John Shears in proceedings in the Federal Court against the Deputy Commissioner of Taxation. The proceedings were case managed and heard by Foster J. His Honour published a reserved decision on 30 July 2014 dismissing the application. On 31 July 2014 the Solicitor sent an email to Foster J’s associate:

From: Michael Griffin

Sent: Thursday, 31 July 2014 12:11 PM

To: Associate FosterJ

Cc; Michael Griffin

Subject: Variations to Judgements & Orders Shears v DCT

Please bring the attached correspondence to attention of Justice Foster

Michael Griffin’

Solicitor

The People’s Solicitors

Attached to the email was a letter on the letterhead of “The People’s Solicitors Pty Ltd”.

Michael Griffin

BA(Hons-First Class) LLB(withHons) Solicitor

CI- The People's Solicitors 19 Lethbridge St Penrith NSW 2750

M:0405294409

E:

31 July 2014

Re: Richard John Shears v Deputy Commissioner of Taxation $SD 454 of 2014

Justice Foster,

As solicitor for the Applicant in this matter, I have serious concerns about your conduct and decision in this matter. These are:

1. The somewhat immature and inappropriate comments you made to me at the first directions hearing when you responded to an innocent reference to yourself by me as 'registrar' suggest that your displeasure in being referred to in that way may have impacted upon your ability to exercise the degree of objectivity required of an officer in your position in determining this matter.

2. The interest in identifying me as solicitor for the Applicant on the judgement contrary to usual convention indicates you may have acted with some vindictiveness in regard to my client and myself in response to my innocent reference to you as registrar at the first directions hearing.

3. Your own and your Associate's obvious familiarity with Counsel for the Respondent at the hearing.

4. The fact that Counsel for the Respondent had a copy of the decision when he arrived at court.

5. The unusual, impermissible and ambiguous award of costs' incidental' to the application to the Respondent - whatever that may entail - and,

6. The unusual attendance by Counsel at court to accept the judgement on behalf of the Respondent together with the solicitor of the Respondent which may be considered an 'incidental' cost, which, when 5 & 6 above are taken together,

7. Give rise to the inference or perception that the Respondent was aware of your decision before it was handed down and, hence, that you and/or your Associate had some disallowable communications with the Respondent and his representatives relating to this matter before the judgement was handed down that may have impacted upon your ability to act objectively in deciding this matter.

8. Your identification of the writer by name and not the solicitor for the Respondent combined with your interest in making unwarranted and irrelevant statements in your reasons such as those at para 19,21 and 24.

9. Your failure to sign the reasons indicating that the judgement may have been made by your Associate and not by you at all.

10. Your imposition of requirements to be satisfied upon the Applicant that are more strict than are required by like applications and by r 31.2 Federal Court Regulations.

11. Your refusal to allow the Applicant the opportunity to amend what is only a daft (sic) application, as is only required by the rules, and as required of such applications and contrary to the authority relied upon by the Applicant.

12. Your unreasonable rejection of the Applicant's reasons for delay in bringing his application and which is, I contend, against established principles.

13. The numerous errors of law in the reasons including, inter alia, determining that a decision with respect to a party being in a partnership was an 'assessment decision' when it is clearly one relating to the determination of the underlying state of facts from which an assessment can follow as it is obvious that a decision on whether a person is in partnership or not will need to be made before an assessment is even undertaken as only then can the person's income be identify (sic) and distinguished from that of his partners - indeed up until that time it is not even possible to ascertain what a person's income for tax purposes would be. And further, proceeding to hear the Applicant's ground regarding his hardship application at an extension of time application before he was required to produce evidence of that application and when the only evidence available to you from which a decision could be made regarding that issue was that a hardship application had been made; deciding issues that were not appropriate for an extension of time application including whether the Applicant had adduced evidence to indicate that his hardship application had been made which is appropriate for a substantial hearing of the matter NOT for an extension of time application. Moreover, in determining; this issue you completely ignored the relevant provisions regarding 'failures' to make decisions and with respect to reviewable decisions that do not require a time limit.

On that basis, notwithstanding that I consider that our client has grounds to appeal your decision -and that I consider that your conduct in this matter is questionable and further that the Australian public and democratic values require and deserve a higher standard of decision making in regard to reviewing decisions of political officers and their agents than that evinced by your reasons, I consider that many of the points raised above indicate that your decision was likely made without good faith and with bias. On that basis, in reliance upon r 39.041 consider that I should extend you the courtesy of varying your judgement before it is entered and before I submit it to appeal. Hence, I request that you consider varying your judgement, the orders and reasons before they are entered and before an application for appeal is made by:

1. Removing my name from the decision as solicitor for the Respondent at the front page;

2. Removing the irrelevant paragraphs and references from your decision at para 19,21,24;

3. Varying the cost order to remove the unlawful part of the order that reads 'and incidental to';

4. Removing the words 'and other errors of expression' at par 21 as no such thing exists given that whether something is an 'error of expression' is a subjective opinion and given that you are not an expert in the English language and not qualified to make such a comment or give such an opinion while I have an Honours degree with distinction including honours cognates in English. I consider that this comment is clearly vindictive and naive and contrary to current theory regarding what non-erroneous expression is or what 'correct' expression should be. Neither you nor your Associate are qualified to make this comment and it displays infant school and pedantic understanding of what language actually is. I also consider that this comment evinces a purile and petty intention to belittle a person which is an attitude that has no place in the administration of justice.

If I do not have a response from you with regard to this request within seven days of the date above the judgement will be filed as it stands in the appeal process notwithstanding any embarrassment it may cause to you and your Associate and I will need to seek other legitimate methods of addressing what I consider to be your vindictive, unreasonable and unnecessary expressions of opinion.

Faithfully,

Michael Griffin

Solicitor

Foster J caused the letter to be referred to the Council by way of complaint as to the Solicitors conduct. In turn the Processional Standards Committee of the Law Society wrote to the solicitor on 19 September 2014:

Dear Mr Griffin

Complaint by Law Society against you

The Society has resolved to make a complaint against you under section 504 of the Legal Profession Act, 2004. The complaint arises from your letter to his Honour Justice Foster dated 31 July 2014.

Enclosed for your information are brochures entitled "Senior Solicitors' Scheme" and "Complaints Process Information".

The complaint raises the following conduct issue;

The solicitor engaged in grossly discourteous behaviour to a judicial officer by letter dated 31 July 2014.

To enable the Professional Conduct Committee to fairly consider the complaint, you must provide me with your written response to the complaint by 3 October 2014. You should include copies of any document that may support your account.

Yours faithfully

MICHELLE LAI

Solicitor

Professional Standards

The solicitor sought further particulars of the allegation:

Dear Ms Lai,

Re: Complaint number 40966

I acknowledge receipt of your correspondence dated 19September2014 by email on that day. I seek further particulars of the complaint. These are:

1. In what way is it contended that the facts alleged constitute 'discourtesy'. For clarity, what in particular is discourteous to his Honour Foster J.

2. In what way is it contended that the facts alleged constitute 'gross discourtesy'. For clarity, what in particular is 'grossly discourteous' to his Honour FosterJ.

3. Upon what facts is the LS relying to assert that I am a 'senior lawyer, if that is being asserted;

4. Please provide a copy of any documents or statements you rely upon to determine that I am a 'senior lawyer';

5. Please provide a copy of the letter as alleged to have been written by me and that Foster J considers to be 'grossly discourteous'.

I will reserve the right to delay my response to your correspondence until I have been provided with the documents and particulars requested above and until after 3 October 2014 should that be necessary.

In the meantime, please ensure you forward all correspondence to me at the email address you have for me as well as at the address above.

Yours Faithfully,

Michael Griffin

And the Professional Standards Committee replied:

Dear Mr Griffin

Complaint by Law Society against you

I acknowledge receipt of your letter dated 19 September 2014 and respond as follows (adopting the numbering in your letter):

1. I draw your attention to the NSW Professional Conduct and Practice Rules 2013

(Solicitors' Rules) which, generally, deal with courtesy in the practise of law.

Your letter to his Honour Justice Foster dated 31 July 2014 raises, on its face, serious issues of alleged conduct relative to the earlier proceedings before him.

Any criticism that you may have had of his Honour Justice Foster or his Court staff should have been addressed in the appropriate manner, not in direct communication with him and, on its face, without reference to the Defendant.

As an example, you allege "I have serious concerns about your conduct and decision in this matter". You then go on to highlight various complaints.

2. I refer to paragraph 1 above and his Honour's Associate's letter of 1 August 2014.

3. The Society has not suggested that you are a "senior lawyer".

The brochure enclosed with my earlier letter and entitled "Senior Solicitors' Scheme" is simply forwarded to Solicitors the subject of complaint - it nominates solicitors who have had experience in complaints investigations and who you may contact for assistance.

4. See paragraph 3 above.

5. Attached is a copy of your letter of 31 July 2014 [ sent via e-mail ] to his Honour Justice Foster and a copy of which has been provided to the Society. If you have written more than one (1) letter to his Honour on the same date, please provide me with a copy of that additional correspondence.

Please ensure your response is provided in writing by 30 October 2014.

Yours faithfully

MICHELLE LAI

Solicitor

Professional Standards

The solicitor being unhappy with that reply sent an email to Ms Lai:

Ms Lai,

Sorry but your response is still unclear.

Are you saying that the words used are discourteous and not the fact that the letter was sent to his Honour?

In what way is conduct complained of 'grossly' discourteous? Given that there is no definition of what that is in any applicable law or rule and no mention of this in the rules but only of 'discourtesy' are you saying that this is open to subjective opinion - that is, what some one finds grossly discourteous - rather than some objective facts in case law or in previous cases? Are you also implying that you are inventing a new ground of complaint not yet known to law? That ground being 'gross' discourtesy as distinct from ordinary discourtesy? If so could you please indicate and direct me to any authority that you, the LS or his Honour has to invent new grounds of complaint and law?

Please provide me with a copy of the complaint by his Honour at your earliest convenience. I am most certainly entitled to that yet you have not provided it and this gives rise to concerns.

For clarity, by 'Defendant' at para 1 (sub para 3) do you mean the Deputy Commissioner of Taxation? Are you saying that my correspondence should not have made reference to the Defendant at all? If so, how is this discourteous to his Honour Foster? It may be discourteous to the Defendant but he has not made a complaint.

I am not able to respond to your allegations until clear answers and particulars, to which I am entitled, are given.

I therefore reserve the right not to respond until proper particulars are provided to me.

That email resulted in a letter signed by Mr Pierotti the Litigation Manager Professional Standards:

Dear Mr Griffin

Re; Complaint by Law Society against you

I acknowledge receipt of your email dated 30 September 2014 addressed to Ms Lai and take the opportunity of responding to your various concerns.

The Society's initial letter to you dated 19 September 2014 indicated that the complaint was made by the Society pursuant to section 504 of the Legal Profession Act, 2004. The relevant material which falls to be considered is your letter to his Honour dated 31 July 2014. I am enclosing a further copy of your letter and his Honour's Associate's reply of 1 August 2014.

Notwithstanding the manner in which the contents of your letter were conveyed to his Honour, the Society is concerned with the contents of your letter to his Honour. For example, you use the following words:

"somewhat immature and inappropriate comments you [ his Honour ] made to me..."

"...may have impacted upon your ability to exercise the degree of objectivity required of an officer in your position..."

"...you may have acted with some vindictiveness in regard to my client and myself..."

"The unusual, impermissible and ambiguous award of costs....whatever that may entail..."

"...inference or perception that the Respondent was aware of your decision before it was handed down you and/or your Associate had some disallowable communications with the Respondent and his representatives relating to this matter before the judgment was handed down that may have impacted upon your ability to act objectively in deciding this matter."

"...your interest in making unwarranted and irrelevant statements in your reasons..."

"the judgment may have been made by your Associate and not by you at all." (

"Your unreasonable rejection of the Applicant's reasons for delay..:'

"the numerous errors of law in the reasons..."

"…I consider that your conduct in this matter is questionable and further that the Australian public and democratic values require and deserve a higher standard of decision making. ..than that evidenced by your reasons.."

".. indicate that your decision was likely made without good faith and with bias."

"I consider that this comment is clearly vindictive and naive..."

"Neither you nor your Associate are qualified to make this comment and it displays infant school and pedantic understanding of what language actually is.."

"I also consider that this comment evinces a puiile and petty intention to belittle a person which is an attitude that has no place in the administration of justice."

"...I will need to seek other legitimate methods of addressing what I consider to be your vindictive, unreasonable and unnecessary expressions of opinion."

The Society is not 'inventing' any new ground of complaint. The complaint is as made by the Society. Please let me have such submissions as you may wish to make as to why the above words (in your letter dated 31 July 2014) and direct communication with his Honour should not be considered to be 'grossly discourteous'.

For clarity, the defendant referred to at numbered paragraph 1 of the Society's letter to you dated 29 September 2014 is the Deputy Commissioner of Taxation [through his then legal representative]

I again refer you to the NSW Professional Conduct and Practice Rules 2013 (Solicitors' Rules). Specifically, I draw your attention to Rule 22.5.

I require your full response to the complaint by 30 October 2014. Your attention is drawn to the following part of Smart J's judgment in Council of the Law Society of New South Wales v Veghelyi, Supreme Court (NSW), 6 September 1989, unreported:

It is important that solicitors respond promptly to the Society when it asks for a reply in response to complaints which have been made. It will be an unusual and complex case when a delay of more than 14 days is acceptable and often the reply should be delivered within a shorter period such as 7-10 days. Replies to the Law Society in respect of complaints warrant a high priority. Such replies must be full and complete and deal directly with the complaints made.

Please address your further correspondence to my attention.

Yours faithfully

LOUIS PIEROTTI

Nearly four weeks later on 29 October the Solicitor delivered his substantial response to the allegations against him. In fairness we reproduce that response in full:

29 October 2014

Your Ref: 40966

Attn: Louise Periotti,

Re the Law Society's Complaint Against Me

SUBMISSIONS OF RESPONDENT

Preliminary Matters

I put you on notice that I am a junior solicitor who was subject to supervision at the People's Solicitors.

Mr Kingsley Liu, principle at the People's Solicitors, was aware of my junior status as I sent him a text mag in late 2013 seeking work he may have available. I have not deceived or mislead Kingsley Liu about my status. I consider that the law society is discriminating against me because I am not a full member of that organisation and because it is seeking a vulnerable scape goat and test case for a hitherto unheard of complaint of 'gross discourtesy'. Attached hereto and marked 'Exhibit MG 1' is a copy of the text message I sent to Kingsley Liu of the People's Solicitors in December in 2013.

Further, I do not believe that I have been provided with adequate particulars in this complaint. I have not been able to locate any law relating to a complaint of 'gross discourtesy' and I do not believe that any such ground of complaint exists. I do not consider that the Law Society has power to invent grounds of complaint as it suits them. On that basis, I deny that the correspondence and its contents are 'grossly discourteous' to anyone and I submit that the failure to provide me with proper particulars, for instance, in relation the party to whom the alleged discourtesy has been expressed, is a denial of the procedural fairness I am entitled to in this process.

Further again, I put the complainant on notice that I my employment with the People's Solicitors has been terminated due to this complaint and I am now without resources to obtain assistance in address this complaint.

Notwithstanding that I am unsure of the substance of the complaint and that I consider the particulars given to be vague making me unsure of what principle or provision I am alleged to have breached, I make the following response to the complaint.

I also need to inform you that an appeal has been brought before the Federal Court from the decision of Foster J which is the subject of my communication. A ground of that appeal is the apprehended and actual bias of his Honour Foster J in hearing the matter. The matter before his Honour which provided the context of the statements complained of was an administrative law judicial review matter in which the decisions of a Commonwealth Officer - the Deputy Commissioner of Taxation - were being judicially reviewed. The ground of bias arises from comments made by his Honour Foster J at a directions hearing and which are evident on the transcript of those proceedings the relevant page for which I attach to these submissions and mark 'Exhibit MG 2' and which is now before the appellant court.

I also put you on notice that I intend to lodge my own complaint about Foster J's treatment of me in this directions hearing in the appropriate forums. I consider Foster J's treatment of me was bullying in the workplace, which is systemic in Australian courts in relation to junior lawyers in particular and lawyers more generally, and the statements made by him in his Reasons For Judgement support my claim that his intentions were to humiliate and denigrate me at my place of work which I consider to be unacceptable of any person even a judge. I found Foster J's statements, gestures and tone at that directions hearing intimidating and abusive and I will be lodging this complaint with the Chief Justice of the Federal Court, as I believe that is the avenue of complaint against judicial offices in the Federal Court, with the Bar Association NSW, with Fair Work Australia and with the Human Rights Commission. If my complaints are not dealt with properly and fairly I intend to agitate my complaint in international forums.

On the basis of the above, I consider that it may be inappropriate to deal with this complaint at this stage given that an appeal raising issues dealt with in my correspondence is currently on foot and before the Federal Court. I leave this to you but will raise it if necessary in future. It is for this reason that I have also delayed making a complaint to the CJ of the Federal Court at this stage - that is, in order not to influence the decision of the Appellant court.

The Complaint

First, I admit that I sent the correspondence the subject of this complaint to his Honour Foster J's Associate. I did not sent it to his Honour but it was provided to his Honour by his Associate

Second, I submit that the transcript exhibited as 'Exhibit MG 2' above evinces the reasonableness of my statement regarding the bias of his Honour Foster J. On that basis, a reasonably held belief that has a grounding in objective fact and truth can only be discourteous to someone who seeks to cacoon themselves from the truth or to a person who has an unusually fragile constitution or to one who seeks to protect their own prestige, person and reputation. I refer to the passages of his Honour Cummins J in Anissa Pty Ltd v Parsons (on application of the Prothonotary of the Supreme Court of Victoria) [1999] VSC 430 (8 November 1999) at para 18 & 19 when, in dismissing a contempt charge brought against a solicitor for calling a Judge a 'wanker', his Honour Cummins J quoted Rich J in R v Dunbabin & anor; ex parte Williams [1935] HCA 34; (1935)53 CLR434where his Honour Rich J at 442 stated:

The jurisdiction is not given for the purpose of protecting the Judges personally from imputations to which they may be exposed as individuals.

His Honour Cummins J in that case went on to state at par 19 that:

From the authorities three basal principles emerge. First, proceeding for contempt of court is not and must not be in diminution of free speech. Second, proceeding for contempt of court is to preserve the administration of justice. Third, proceeding for contempt of court is not to protect the individual person of the judge.

Hence, I deny the claims of bias and the other statements particularised by you are 'grossly discourteous' or even discourteous to His Honour Foster J as they have an obvious founding in fact to support them. I contend that this complaint arises from Foster J's concern for his own person rather than from concern for the solemn office which he holds. In essence, the person Lionel (sic) Foster who is a judge in the Federal Court may find it personally offensive, but the Judicial Officer has no basis for doing so because the statements arise from a concern for the administration of justice as dispensed in this instance by the individual holding the office and are not offensive to the office or court itself but relate to what I consider were inappropriate applications of principles of justice and the role of the Court. In this respect, my communication was made in discharge of my paramount duty as a lawyer - that is, to the administration of justice - and with the objective of rectifying that problem in a manner that was convenient, inexpensive and sensitive to all parties involved. The statements particularised and communication itselfare rooted in a deep concern for the administration of justice and respect for the Federal Court and disappointment with the administration of justice by a particular individual on this occasion.

As stated in John Holland Rail Pty Ltdv Comcare [2011] FCAFC 34 at par 22, the rule is that a judge should not receive any communication from anyone concerning a case that the judge is to decide, made with a view to influencing the conduct or outcome of the case: Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 ("ReJRL") at 346 (Gibbs CJ) and 350 (Mason J), both citing Kanda v Government of Malaya [1962] UKPC 2; [1962] AC 322 at 337 and Reg. v Magistrates' Court at Lilydale; Ex parte Ciccone [1973] VR 122 at 127.

In reliance upon the ratio in John Holland above, Foster J was obligated to refuse to accept the communication from his Associate if he thought it was inappropriate. This he did not do. I contend that this complaint arises now because Foster J is attempting to shift responsibility for his own failure to undertake his obligations onto a junior lawyer, myself, in an effort to evade responsibility for his conduct particularly that which occurred at the directions hearing.

Third, it is regrettable that this complaint has been made and I have apologised to his Honour Foster's Associate Ms Hannah Clue Saunders for involving her in this matter. In respect to involving the Associate I concede that the correspondence was potentially discourteous to her as it may have put her in a compromising position but in this regard I again rely on John Holland Rail Pty Ltd v Comcare [2011] FCAFC 34in which the court held that it is the function of chambers staff and Judges Associates to screen communications to judges. If Ms Saunders found the correspondence offensive it was her obligation to refuse to provide it to his Honour Foster J in accordance with her duties. In John Holland, the Full Federal Court stated that:

22 As already stated, the authorities do not support the proposition that there is any necessary impropriety if a party or practitioner communicates unilaterally with a judge's chambers. Whether or not such a communication is improper depends on all the circumstances, including, principally, its nature, subject matter, and perhaps, its sequence and extent. There is no impropriety in a party's unilateral communication with chambers in relation to procedural, administrative or practical matters, although a sustained sequence of communications not circulated to the other parties, even in relation to matters of this kind, could, at a certain point, become unprofessional or improper in the absence of some good reason: see, for example, Carbotech-Australia Pty Ltdv Yates [2008] NSWSC 540.

23. On the other hand, save in the unusual circumstances warranting an exparte application, it is clearly improper for parties or their practitioners to attempt to communicate unilaterally with a judge's chambers in relation to the substantive issues in the litigation. Every communication of this kind must be circulated to, or made in the presence of, the other parties (unless the other parties have previously consented to its unilateral communication to the judge: see Fisher at 352). Breach of that principle is not only an impropriety on the part of the party making the communication but may, in certain circumstances, found, or be a factor contributing to, a reasonable apprehension of bias, alternatively, lack of procedural fairness, on the part of the judge. It does not follow from this, however, that the mere making of a unilateral communication raises a presumption of impropriety (as John Holland's argument assumed), thereby casting on the parties involved (including the practitioner, chambers staff who received or engaged in the communication and, in some cases, the judge) an onus to prove the contrary by means of affidavit or a similar level of proof. In the present case, moreover, the mere fact that Comcare's solicitor declined to make an affidavit setting out his conversation with the judge's associate could not make out a case for apprehended bias that did not otherwise arise.

……..

26. Under the docket system prevailing in the Federal Court, effective communication between the parties, their legal representatives and the court is fundamental for efficient case management by the docket judge. Chambers staff are, in the ordinary course, well aware of the need to assess communications forwarded to chambers and to manage the transmission or, where necessary, interception of, material and information directed to the judge, to avoid the actual or apprehended compromising of the judge's impartiality.

27. In this context, the receipt of an improper unilateral communication by an associate or other member of chambers staff is, from time to time, unavoidable; and does not, in itself, involve any impropriety or breach of duty on the part of chambers staff, although their continued engagement or participation in, or transmission to the judge of, such communications may, of course, involve impropriety or misjudgement. [Emphasis added].

Given the above, I consider that the Law Society should bring a complaint against Ms Saunders for transmitting the communication to the judge as it is an instance of bad judgement and impropriety. Failing to do so will render the complaint against me discriminatory on gender grounds and offensive to a fundamental principle of law that parties be treated equally before the law and will substantiate my claim above that the objective of this complaint is to target a vulnerable junior lawyer in order to establish a precedent regarding a ground of complaint that has no objective basis in law, i.e. 'gross discourtesy'.

In John Holland at [22] the Full Court of the Federal Court held that there was nothing per se improper about unilateral communications with the court by a practitioner but also spoke approvingly of the reasoning of Brereton J in Carbotech-Australia Pty Ltd v Yates [2008] NSWSC 540 and considered that "a sustained sequence of communications not circulated to the other parties, even in relation to matters of this kind, could, at a certain point, become unprofessional or improper in the absence of some good reason".

The Respondent submits that there was not a 'sustained sequence of communications' in this instance that could become unprofessional or that could properly influence the considerations of a judicial officer in a matter that had not yet been heard or that was in process of being heard. In fact, the matter had already been heard and determined and the communication was merely an effort to ascertain the judicial officer's readiness to hear an application to vary non- substantial aspects in his judgement without resort to an inconvenient and costly formal application. In that way, the communication related to a procedural matter. Should his Honour have expressed a willingness to do this, the Respondent, as a matter of course, and as he, in any event, was, would have given notice to the Defendant of his Honours willingness to undertake such a hearing. Given that the communication is in regard to a procedural matter relating to his Honour's willingness to hear an application to vary non-substantive parts of his judgement in chambers, no impropriety can arise as no effort v/as made to influence the determination of the substantive issues.

In John Holland, the court largely adopted the position

R v Fisher (2009) 22 VR 343. In Fisher the court held that the docket system allows unilateral communication with the associate to the docket judge.In Fisher their Honours Redlich and Dodd Streeton JJA in the Victorian Court of Appeal said at [20], in reference to communications with judges in chambers, that:

It is an undoubted principle that a judge's decision should be made on the basis of the evidence and arguments in the case, and not on the basis of information or knowledge which is acquired out of court. In Re Media, Entertainment and Arts Alliance; Ex parte Hoyts Corporation Pty Ltd, Mason CJ and Brennan, Deane, Dawson and Gaudron JJ described it as an aspect of "the rule against bias". Their Honours said that this aspect of the rule is similar to the rule of procedural fairness, but not identical because the question is whether in the circumstances, the parties or the public "might entertain a reasonable apprehension that information or knowledge which has been independently acquired will influence the decision.

At [38 & [30] their Honours further stated that:

The circumstances in which direct communications may be made to the judge's associate are subject to important qualifications. Written communications between a party to litigation and the judge's associate should normally be confined to matters concerning practice or procedure. Communications including emails containing allegations, matters of substance or requests for substantive advice should not be forwarded to a judicial officer without the party's express agreement (save in an exceptional case warranted for example by an ex parte application).

Unless the subject of express prior consent of the other parties, written communications should not include information or allegations which are material to the substantive issues in the litigation. In all circumstances, the other parties to the litigation should be copied in on any such correspondence. If a communication which apparently fails to comply with those requirements is received in chambers, it would be for judicial staff promptly to inquire whether the other party has been notified before engaging in any further exchanges with the sender.

Attention is drawn to the seminar paper of the Hon Justice John Griffith entitled Ethics Forum LS NSW 13 August 2012 in which his Honour considers unilateral communication with chambers in the Federal Court under the docket system and reiterates the position in John Holland that only if communications with judge's chambers deal with substantive issues that are TO BE DECIDED or that are as yet undecided are those communications improper. Clearly, in this instance the decision had already been made in this matter so the communication came after that decision so there was no way it could impact on the decision to be made by his Honour as that decision had already been made. As his Honour's response at the final paragraph of his communication indicates, 'the proceeding has been finalised'.

Attention is also drawn to the Federal Court website at this link:

http://www.federalcircuitcourt.gov.au/practice/html/chambers.html

Here the court relates that it is not improper to communicate with Judges Chambers on procedural and non-substantive issues. It is to this website that I referred when drafting the communication. As I did not consider the communication sought to influence a determination that was to be made or a substantive issue that had been or was to be determined, I considered at the material time of drafting and sending the emailed communication that the communication was not improper. The communication did not seek to adduce further evidence against the other party.

Hence, in sum this communication was made to ascertain his Honours preparedness to hear an application for variation of non-substantive issues and obiter dicta in chambers in order to save costs and inconvenience to both the court and the parties that a formal application to vary or an appeal would necessitate. This is the purposes of the docket system adopted in the Federal Court. As also indicated by my communication it was also done for the purpose of saving any embarrassment to his Honour. The points made and particularised in the communication are also reiterated to provide the judge with some information as to why he should consider agreeing to hearing the application to vary in chambers and the likely grounds that could be used to justify doing so. These statements were not intended as a discourtesy to a Judge of the Court or to the court itself but to provide reasons that could be relied upon to justify why an informal application to vary should be allowed.

The communication did not seek to influence the decisions on the substantive issues but only to ascertain whether the judge would consider varying the judgement in chambers rather than by formal application and only in relation to matters that were not substantive issues such as in relation to the language used in the judgement and the cost orders. Cost orders are not substantive issues as they follow the event or the determination of the substantive issues and can only be made after the substantive issues are decided.

Fourth, given that the communication was intended to ascertain his Honours preparedness to hear an application in chambers pursuant to s 17 Federal Court Act 1976 rather than by costly formal application, I submit that the communication, and my intention at the time of making it, was to give effect to the paramount and overarching duty at ss 37M & 37N Federal Court Act 1976. That is to the cheap efficient resolution of disputes. The communication was in furtherance and discharge of this obligation in accordance with s 37N not to gain some advantage or pervert the course of justice.

Fifth, with respect to any discourtesy to the opposing party - referred to as the 'Defendant' in the complainant's correspondence although that party was the respondent in the material proceedings. The Defendant was put on notice of my client's concerns with the judgement and of his interest in appealing it or in having it varied by way of letter to them on 14 August 2014. The Defendant did not respond to this correspondence until some weeks later necessitating the formal appeal. Notwithstanding that the Defendant's attention had not been brought to the communication with Chambers during that correspondence to them the Defendant nevertheless was given notice of the issues raised in the impugned communication shortly after the communication was made and are now very much more aware of those issues as they are raised in the appeal documents with which they have been served and to which they have submitted responses: the Defendant has not been subjected to any unfairness or disadvantage and no bias against him has resulted.

Sixth, all of the statements particularised in your response to my request for further particulars relate to a political opinion by me that, in this instance, his Honour had breached the separation of powers doctrine as it operates within the Constitution (Cth). It was this concern that motivated the whole communication. On that basis, the implied guaranteed freedom of political communication in the Constitution(Cth) as determined by the High Court in Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 applies and the Solicitor's Rules have no operation except to the extent that they are consistent with that principle and with valid common law on the subject matter. Put concisely, the Rules are invalid to the extent of their inconsistency with the constitutional principle. On that basis, the Respondent submits that the scope of the applicable Solicitor's Rules is confined to that of the common law as recited above and the operation of the Rules is restricted to the scope of common law principles so far as that common law is consistent with the constitutional principle: in this instance, the Rule relied upon by the complainant is inconsistent with the constitutional principle in its practical effect and is invalid.

It is evident from my correspondence at the bottom paragraph on the second last page that the correspondence arises from a concern that a fundamental democratic principle relating to the independent functioning of courts in democracies and under the Constitution (Cth), that is, the separation of powers doctrine and principle as embodied in the Constitution (Cth), had been breached in this instance. In that respect I consider this complaint is an attempt to suppress my freedom of speech and enjoyment of a right conferred by the Constitution (Cth) and I rely upon the implied guaranteed freedom of political communication under the Constitution (Cth) in regard to those statements. I submit that, in reliance upon s 109 the Constitution (Cth), the operation of the Solicitors' Rules relied upon in the complaintare invalid to the extent of the inconsistency with that implied guaranteed freedom of political communication and with the common law as explicated above as my statements are all expressions of political opinion and the letter itself a communication within the meaning of that term in Lange.

The Federal Court is a judicial arm of government in the arrangements set up by the Constitution (Cth). As stated by Kirby J in APLA Ltd v Legal Services Commission (NSW) [2005] HCA 44; 224 CLR 322 at 347:

Communication about access to courts is communication about government and political matters. The courts are part of government. They resolve issues that are, in the broad sense, political, as this case clearly demonstrates.

In Cunliffe v The Commonwealth [l994] HCA 44; (1994) 182 CLR 272 Mason CJ referred to the role of freedom of communication in relation to the Judicature in sustaining the representative democracy and government envisaged in the Constitution:

That freedom necessarily extends to the workings of the courts and tribunals which administer and enforce the laws of this country. The provision of advice and information, particularly by lawyers, to, and the receipt of that advice and information by, aliens in relation to matters and issues arising under the [Migration] Act falls clearly within the potential scope of the freedom.

Hence, it cannot be doubted that the implied guaranteed freedom of political communication applies to communications regarding the functions of the judicial arm of government and the provisions relied upon in the complaint restrict the application of that right in this instance. It would be only necessary for the rule and provisions relied upon to have the same ambit as the common law principles referred to above and not go beyond the operation of the common law provided that common law is also valid.

I also rely upon the statement of his Honour Cummins J above in that the jurisdiction should not be used as a means of supressing freedom of speech and I submit that, in this instance, this complaint is being used in this way.

Conclusion

I submit that this complaint is misconceived, otiose and has no basis in law. It is relevant to this submission that his Honour Foster J has blocked any possibility of an apology from either myself or from the People's Solicitors by way of his direction at the end of his letter in response in which his associate states that: His Honour has also instructed me to inform you that you should not communicate further with his Honour's chambers concerning this matter'. Hence, any opportunity for an apology has been denied myself and the People's Solicitors. That, I submit, supports my submission that this complaint is designed to attack a vulnerable junior lawyer in order to seek a test case for a ground of complaint that has no objective basis in law. On that basis the complaint should be withdrawn. That notwithstanding, I am open to a mediated settlement of this matter.

Yours Faithfully,

Michael Griffin

For completeness we also reproduce the transcript of proceedings before Foster J referred to in the Solicitors letter. We interpolate the comment that on our reading of it, his Honour far from displaying animosity at the Solicitors mistaken address ‘Registrar’ responded in a light hearted fashion:

MR M. GRIFFIN: Registrar, if it please, my name is Griffin. I appear for Mr Shears. I have had no news from —

HIS HONOUR: Have you served this?

5

MR GRIFFIN: Yes, I have. I have got a -I served it personally at the office of the Deputy Commissioner on Goulburn Street.

HIS HONOUR: Right.

10

MR GRIFFIN: And at the time I served it, I got a signed document acknowledging service from a legal officer. It's the only copy I have, unfortunately, so a legal officer at the

15 HIS HONOUR: With---

MR GRIFFIN: Sorry, did I say "your Honour", did I - - -

HIS HONOUR: No. You said "registrar" and I have never been a registrar.

20

MR GRIFFIN: Sorry, sorry, sorry.

HIS HONOUR: That's all right. That's just put you about 20 metres behind the mark.

25

MR GRIFFIN: Sorry.

HIS HONOUR: That's all right. Don't worry about it.

30 MR GRIFFIN: Apologies.

HIS HONOUR: No, officer. Would you please call the matter outside three times please.

35 COURT OFFICER: Have appearance, your Honour.

HIS HONOUR: Good.

MR……… ….

40

MR Y. ACHEAMPONG: If it please the court, it's Acheampong - A-c-h-e-a-m-p-o-n-g. I appear for the Deputy Commissioner.

HIS HONOUR: All right. Would you mind filling out an appearance slip for me.

45

MR ACHEAMPONG: Certainly.

Following the solicitors “Submissions” of 29 October 2014 further emails passed between him and Mr Pierotti which it is unnecessary to reproduce although we note, that they included a most extraordinary “formal complaint” against Foster J’s Associate and a response by Mr Pierotti pointing out that as the Associate was not a legal practitioner the Law Society had no jurisdiction in respect of her. On 20 November 2014 the solicitor was informed that subject to any further submissions he wished to make the matter was to be referred to this Tribunal. Within the time allowed for submissions the Solicitor made them in a document of some seven pages. The submissions again took issue with an alleged failure to particularise the complaint and asserted, that whereas now the solicitor understood that discourtesy to Foster J was asserted, previously he had believed that the complaint was of discourtesy to the respondent in the Federal Court proceedings. The submissions denied that what the solicitor had done could in law amount to professional misconduct and claimed that the Council was “giving effect to unreasonable subjective opinion and indulging the interests in a judicial officer part (sic) on protecting his own personal reputation and self-esteem”. He claimed that his demands were not aggressive or threatening and did not seek to canvass substantive issues in the proceedings which had been decided before his letter of 31 July 2014. He further submitted that his conduct was consistent with principles laid down by the Federal Court itself as appropriate to guide a practitioner’s approach to the chambers of a judge. He submitted that on no basis did his conduct involve a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence within S497 of the Legal Profession Act. He referred to Council of the Law Society v Beazley [2012] NSWADT153 and Donaghy v Council of Law Society (No2) [2012] NSWADT170 as authority for the proposition that a finding of misconduct is at least unlikely where the evidence relied on is a single act not involving dishonesty. Notwithstanding these submissions the matter was in due course referred to the Tribunal and was heard by us on 7 September last. Mr Pierotti appeared for the Council and the solicitor appeared in person. In the meantime the solicitor had filed a formal Reply to the Application and on 16 July an Amended Reply. Neither of these documents with one exception raises issues not previously canvassed in the Solicitors correspondence. The exception arises from paras 7.1 and 7.2 of the amended Reply:

7.1 The Applicant seeks orders from the Tribunal that are unlawful byway of the lack of jurisdiction in the Tribunal to make orders inconsistent with Federal Law and on that basis the Application should be dismissed or struck out with costs to the Respondent.

7.2. The Applicant has failed to give the requisite notices to Attorney's General regarding issues involving s 109 of the Constitution (Cth) and on that basis the Application should be struck out with costs to the Respondent as misconceived.

At the hearing Mr Pierotti read the affidavits of Anne-Marie Foord sworn 3 March 2015 and the solicitor read his own affidavit sworn 4 May 2015 upon which he was cross examined. In his affidavit the solicitor denied that his conduct amounted to professional misconduct and generally maintained the position stated in his correspondence. He said that he was admitted to practice as a solicitor on 2 October 2011 having qualified as a mature age student. He had previously worked for some 20 years in the entertainment industry in a variety of roles including Director, actor and writer. The solicitor also relied upon a second affidavit sworn by him on 7 September 2015. The affidavit annexed a reference in favour of the solicitor by a Mr Rocco Ardino who described himself as “Principle (sic) solicitor Morgon Ardino & Co”. The affidavit was irregular in that these proceedings are conducted upon affidavits. Mr Ardino should have sworn an affidavit on which he could be cross examined. However, we decided to allow the reference to be admitted into evidence and we give it weight bearing in mind that we did not have the opportunity to see Mr Ardino. In his closing submissions Mr Pierotti emphasised that he does not put the Council’s case on a higher basis than gross discourtesy. In other words he does not assert that the letter to the judge of itself was capable of constituting misconduct. It follows that the case does not involve any assertion which could arguably affect the rights of the Solicitor under the Constitution of the Commonwealth or conflict with any Federal Law. As to gross discourtesy, Mr Pieortti referred to assertions in the letter including that the judge made “somewhat immature and inappropriate comments”, that reflected upon the judges ability to exercise an appropriate degree of objectivity, that suggested the Judge may have acted with vindictiveness towards him and his client, that suggested that the judge had given advance notice of the contents of his judgment to the other party, that the judgment, not having been signed, may have been written by someone other than the judge himself, (an assertion which reveals ignorance of the procedures regularly adopted by Judges of Superior Courts in publishing reserved decisions) that the judge had made numerous errors, that the judges conduct was “questionable”, and that the decision was made without good faith and with bias. As to whether this could constitute misconduct as a single act not involving dishonesty Mr Pierotti referred us to a number of authorities including the frequently quoted passage from Allinson v General Council of Medical Education and Registration [1894] 1QB750 at 763:

“If it is shown that a medical man, in the pursuit of his profession, has done something with regard to it which would be reasonably regarded as disgraceful and 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.””

As evidencing the wide range of conduct which may constitute professional misconduct Mr Pierotti referred to the following passage taken from the judgment of McClellan CJ at CL in Bechara v Legal Services Commissioner [2010] NSWCA 369 at [44]:

44As Clyne [Clyne v NSW Bar Association (1960) 104 CLR 186] made plain, there are no fixed categories of professional misconduct. Much depends on whether the conduct falls outside "generally accepted standard[s] of common decency and common fairness". Previous examples of professional misconduct have included wilfully misleading the court (New South Wales BarAssn v Livesey [1982] 2 NSWLR 231); removing documents in contravention of a court order (Howes v Law Society of the Australian Capital Territory (Supreme Court of ACT, Gallop AC J, Higgins and Crispin J J, 23 July 1998, Unreported); permitting conflicts of interest to arise (Law Society of New South Wales v Moulton [1981] 2 NSWLR 736); failing to account for money received (Re Walker; Ex parte Kemp (1887) 3 WN (NSW) 123); misleading a client ( Hoshott v Council of the Law Society of New South Wales (Supreme Court of NSW, Meagher, Shelter and Stein J J A, 17 December 1997, Unreported); gross neglect and delay (Legal Practitioners Conduct Board v Hay [2001] SASC 322; (2001) 83 SASR 454); failing to adequately supervise an unqualified clerk (Law Society of New South Wales v Foreman (1991) 24 NSWLR 238); breaching an undertaking given to another lawyer (Wade v Licardy (1993) 33 NSWLR 1); and, in certain situations, criminal and/or personal misconduct ( Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279).

We also quote the passage reffered to by Mr Pierotti taken from the judgment of Rich J in Kennedy v The Council of the Incorporated Law Institute of NSW (1939) 13 ALJ 563:

"... a charge of misconduct as relating to a solicitor need not fall within any legal ' definition of wrong doing. It need not amount to an offence under the law. It was enough that it amounted to grave impropriety affecting his professional character and was indicative of a failure either to understand or to practise the precepts of honesty or fair dealing in relating to the courts, his clients or the public. The particular transaction the subject of the charge must be judged as a whole and the conclusion whether it betokened unfitness to be held out by the court as a member of a profession in whom confidence could be placed, or on the other hand, although a lapse from propriety, was not inconsistent with general professional fitness and habitual adherence to moral standards, was to be reached by a general survey of the whole transaction."

The solicitor in his submissions to us in effect maintained the position expressed in his letters and Reply. In so far as those submissions were directed to the act of writing the letter itself as pointed out earlier they were irrelevant. The Council does not assert that this amounted to misconduct. As to the language he employed, the solicitor claims that he sent the letter “out of concern for the integrity of and respect for the Court and the administration of justice which is a lawyers highest duty”. How these legitimate aims could be achieved by the use of offensive language is not clear to us. Conceding that the letter may have been “rude” the solicitor submitted that it was not gross discourtesy but at the worst a breach of legal etiquette. In our opinion the terms of the Solicitor’s letter go far beyond a mere breach of etiquette. We would characterise them as grossly offensive. Whether they amounted to professional misconduct is a matter of judgment which we approach taking into account that solicitors as officers of the Court are required to uphold the law and its institutions. This includes in our view a duty to exhibit appropriate respect for judicial officers and their decisions not for any personal benefit but out of regard for the institutions they represent. If it were not so public confidence in those institutions may be undermined. We are comfortably satisfied that by writing a letter couched in the terms of the letter under discussion in this case the solicitor departed so far from the conduct expected of a solicitor of good reputation and repute that he was guilty of professional misconduct. We find accordingly. We should mention that on 25 November 2015 while this case was under judgment the solicitor purportedly gave notice to the Attorneys-General of the Commonwealth, NSW and Victoria pursuant to section 78B of the Judiciary Act (Cth). The notice was misconceived as this Tribunal is not a Court within the section (Sunol v Collier (2011) 81 NSWLR 619). These proceedings were commenced under the Legal Profession Act 2004 which was repealed by the Legal Profession Uniform Law Application Act 2014 as from 1 July 2015. It was replaced by the Legal Profession Uniform Law (NSW) (the Uniform Law). Savings and transitional provisions are contained in both Schedule 4 of the Uniform Law and Schedule 9 of the Legal Profession Uniform Law Application Act 2014 (NSW) by which the Uniform Law was introduced as part of the law of New South Wales. Schedule 4 of the Uniform Law provides, in cl 26, for proceedings commenced under the 2004 Act to continue to be dealt with in accordance with the provisions of that Act and by the entity responsible for dealing with it under those provisions. Hence this Tribunal has jurisdiction to determine these proceedings. Having found professional misconduct against the solicitor the consequential orders available to the Tribunal are those provided for by s562 of the 2004 Act. In deciding what order we should make we take into account what we regard as the total absence of any insight by the Solicitor into how far he departed from the norms of professional conduct. We say this despite the fact that he acknowledged the terms of his letter were at least “rude” and that under cross examination he expressed a measure of regret at the language he used. In our opinion although the conduct stops short of requiring a finding of present unfitness to practice, something more than a reprimand (although that should be given) is needed. In that circumstance we accept the submission of the Council that the Solicitor be required to undertake further education in the ethics of the Legal Profession. The Solicitor’s assertion that he would not benefit from such further education in our view reinforces his need for it. No exceptional circumstances exist within s566 of the 2004 Act and accordingly we are required to order the Solicitor to pay the Council’s costs.

Orders

We make the following finding and orders:

The solicitor Michael Anthony Griffin is guilty of Professional Misconduct. The solicitor is reprimanded

The Solicitor, at his own expense, is to undertake within 6 months of the date of the orders made by the Tribunal [and during which the Solicitor holds a current practising certificate], a course in Legal Ethics that is approved by the Manager of the Professional Standards Department and therein achieve a pass mark of not less than 50% (Pass Mark). The Solicitor will, within seven (7) days of receipt of the result of the course in Legal Ethics, provide the Manager of the Professional Standards Department the original result notification from the provider of the course in Legal Ethics. Should the Solicitor fail to achieve the Pass Mark, he shall complete any further course in Legal Ethics as approved by the Manager of the Professional Standards Department until such time as he achieves the Pass Mark. Should the Solicitor fail to achieve the Pass Mark within the time period in 2 above, his practising certificate shall be suspended until such time as he achieves the Pass Mark.

That the solicitor pay the Council’s costs on a party and party basis as agreed or assessed

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Amendments

03 May 2016 - Removal of email address in paragraph 3.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.