The Tribunal having found Mark Gerard Ireland (the Respondent) guilty of professional conduct orders that: (1) The name of the Respondent Mark Gerard Ireland be removed from the local Roll; and (2) The Respondent (Mark Gerard Ireland) is to pay the costs of the Council of the Law Society of New South Wales (the Applicant) as agreed or assessed.

reasons for decision

Introduction

The Applicant, the Council of the Law Society of New South Wales, filed on 2 August 2016 an Application for Disciplinary Findings and Orders in the Occupational Division. The Applicant asserts that the Respondent, a solicitor Mark Gerard Ireland, was guilty of professional misconduct in that he affirmed an affidavit on 28 April 2013 in Local Court Proceedings containing evidence that was, to his knowledge, false. The Applicant sought orders that the Respondent's name be removed from the Roll; the Respondent pay the Applicant's costs as agreed or assessed, and such further or other orders as the Tribunal thought fit. Mr L Pierotti appeared, with Ms Lai, for the Applicant. There was no appearance by or on behalf of the Respondent other than a telephone discussion to which we refer below. A Reply to Application dated 15 November 2016 was filed by the Respondent. He then had solicitors acting for him - Greg Walsh & Co, however those solicitors had informed the Tribunal prior to the hearing that they were no longer acting. Following the conclusion of the evidence and after Mr Pierotti had outlined his submissions the Tribunal adjourned at approximately 11.30am. At approximately 11.35am a Tribunal Officer informed the Members that Mr Pierotti requested them to return to the hearing room. On doing so, Mr Pierotti informed that, following the Tribunal's adjournment, he noticed on his mobile phone a record of two incoming telephone calls at 10.23am and 10.25am earlier that day from the Respondent. Mr Pierotti advised the Tribunal of the telephone number of the Respondent as recorded in his telephone messages. The Tribunal called the number provided. The person answering the telephone call identified himself as the Respondent. The Tribunal informed him that the Application had been heard, evidence concluded and oral submissions received. Enquiry was made of the Respondent as to whether he wished to make any application in respect of the hearing or otherwise put any submission to the Tribunal. The Respondent stated that:

he maintained reliance upon the Reply to Application (filed on his behalf and dated 15 November 2016); he was aware that the Application was listed for hearing on that day; he had nothing further to say or submit other than to apologise for his conduct and that it had ruined his career; he had handed in his practicing certificate and sold his legal practice; he had apologised to the complainant Mr Pike; he had no explanation for his conduct; he conceded the relief sought in the Application; he was aware of the Tribunal having previously made an order for the filing of any affidavit on which he sought to rely, and that he did not file or seek to rely on any such affidavit.

Background

We find the conduct alleged by the Applicant proved, and that the practitioner (Respondent) is guilty of professional misconduct. Following are our reasons for that decision. Unless otherwise stated the following facts are established to the requisite civil standard based upon the evidence submitted by the Applicant, namely the affidavit of Anne-Marie Foord dated 1 August 2016 (Exhibit A). The Respondent was admitted to practice as a solicitor on 19 April 1996, such that at the time of events giving rise to the Application he had been admitted to practice for approximately 17 years [1] . In February 2006, a Daryl Pike commenced employment as a solicitor with Mark Ireland Lawyers Pty Ltd; the terms of the offer of employment being as outlined in a letter of Mark Ireland Lawyers Pty Ltd to Mr Daryl Pike ("Mr Pike") of 28 March 2006 [2] . At the time of Mr Pike's employment the Respondent was a director of Mark Ireland Lawyers Pty Ltd [3] . The employment relationship eventually ended resulting in litigation. Local Court Proceedings (Bathurst Registry Case No. 2012/00052821) between Mr Pike as Plaintiff and Mark Ireland Lawyers Pty Ltd as Defendant ("the Local Court Proceedings") were heard by Bradd LCM on 29 & 30 April 2013 [4] . At the time of the hearing of the Local Court Proceedings the Respondent was a solicitor and a Director of Mark Ireland Lawyers Pty Ltd [5] . The Statement of Claim and Amended Defence filed in the Local Court Proceedings are annexed to the Affidavit of Anne-Marie Foord sworn 1 August 2016 [6] . In his Statement of Claim Mr Pike asserted that it was an express term of his employment agreement with Mark Ireland Lawyers Pty Ltd that, inter alia, he would be paid $30,000 gross per annum, plus 50% of all nett monies received by Mark Ireland Lawyers Pty Ltd from the Receiver/Manager of the business formerly conducted by Mr Pike representing work in progress, plus 50% of all nett monies received from that Receiver/Manager from debtors of that business. In its Amended Defence the Defendant disputed all of the terms of the agreement as alleged by Mr Pike. Mr Pike further contended that the Defendant as his former employer had failed and/or refused to pay to him the remuneration referred to in sub-paragraphs (ii) and (iii) of paragraph 4 of the Statement of Claim, being the 50% payments referred to in [17] above. The Defendant denied that Mr Pike was entitled to such remuneration and further pleaded that:

The contract of employment between the company and Mr Pike was constituted wholly by a verbal agreement which did not require the employer to make the 50% payments referred to above; The letter of 28 March 2006 from Mark Ireland Lawyers Pty Ltd to Mr Pike made "…an offer to vary the terms on which [Mr Pike] was employed" but that Mr Pike did not accept the offer; and The Defendant paid to Mr Pike all monies and entitlements due to him in accordance with the contract of employment.

Prior to the commencement of the hearing before Bradd LCM the Plaintiff had served a Notice to Produce [7] . The Notice required the Defendant to produce for inspection documents relating to its employment of the Plaintiff, documents relating to the Plaintiff's remuneration by the Defendant, and documents between the Defendant and the Receiver/Manager of the business previously conducted by the Plaintiff. On 27 April 2013, the Respondent created the letter referred to below. The Respondent annexed the letter to an affidavit that he drafted and affirmed on 28 April 2013. The affidavit, including the annexures to it, was provided to the office of the Legal Services Commissioner by the complainant Mr Pike by letter of 18 June 2014 and forms part of annexure "A" to the affidavit of Anne-Marie Foord sworn 1 August 2016. We will refer to it hereafter as "the 28 April affidavit". The letter being annexure "B" to the 28 April affidavit commences at page 39 of Ms Foord's affidavit. We will refer to it as "the 20 February 2006 letter". The Applicant asserts that the 28 April affidavit was affirmed by the Respondent and that it contained evidence that was, to his knowledge, false; and that affirming the Affidavit in those circumstances was professional misconduct. The Respondent deposed in the 28 April affidavit:

Annexed to this Affidavit and marked "B" is a copy of letter dated 20 February 2006 which is required to be produced under the Notice to Produce referred to in the preceding paragraph of the Affidavit. I handed this document to the Plaintiff Mr Pike when he commenced employment with the Defendant Mark Ireland Lawyers Pty Ltd on 20 February 2006. I had forgotten about the letter until my memory was prompted by its discovery.

The 28 April affidavit further deposed to the 20 February 2006 letter being discovered by the Respondent the previous day on a review of the files of the firm; that the reason the 20 February 2006 letter had not been previously discovered was because the Respondent's secretary had electronically filed it in a "miscellaneous" file which had a 2005 year number; that on the previous day he had noticed that the "miscellaneous" file contained documents which were generated in the 2006 year; and that when the Respondent called up the index to the "miscellaneous" file that index - which is annexure "C" to the affidavit - recorded the 20 February 2006 letter. Annexure "C" to the Respondent's 28 April affidavit includes the words:

Letter to Daryl Pike 20/02/06 RJ

The Respondent in his affidavit deposed to the initials "RJ" being the code name used by his then secretary Rachel Jones; further, that the 20 February 2006 letter was entered into the "miscellaneous" file by Ms Jones. In about December 2015, the Respondent retained Greg Walsh & Co solicitors to act on his behalf in the disciplinary proceedings. The Respondent instructed Mr Walsh to write to the Applicant. The circumstances surrounding the creation of the 28 April affidavit and the 20 February 2006 letter are described in Mr Walsh's letter of 10 December 2015 annexed to the affidavit of Anne-Marie Foord ("Mr Walsh's letter"). Paragraph 17 (page 5) of Mr Walsh's letter states:

The 20 February 2006 letter was created in the Respondent's office before he left to confer with counsel representing the Defendant in the Local Court Proceedings in Sydney; and The 20 February 2006 letter was produced to Counsel.

The circumstances surrounding the creation of the 20 October 2006 letter are also found in the Respondent's response to a Notice issued under S 660 of the Legal Profession Act 2004 (LP Act) served by the Applicant [8] . That Notice required the solicitor to produce, amongst other things, documents referred to in Schedule 2 [9] . Paragraph 2 of Schedule 2 of the Notice said:

Please provide a copy of a printout from your electronic data base setting out the content information concerning the Letter

The document produced by the Respondent in response to the Notice is found at page 254 of Ms Foord's affidavit. The words "created 27/04/2013" suggest that the 20 February 2006 letter was in fact created on 27 April 2013. The Respondent's 28 April affidavit was filed in Court at the commencement of the hearing of the Local Court proceedings on 29 April 2013 by counsel for the Defendant. It was admitted without objection and marked Exhibit 1. A transcript of the hearing was attached to the affidavit of Ms Foord. It discloses that the Respondent gave the following sworn evidence before Bradd LCM:

Q Mr Ireland, you caused to be produced yesterday, did you not, a document which appears annexed to your affidavit at annexure "B". Is that correct?

A That is correct

Q It is your evidence, is it, that that document was discovered by you yesterday, being 28 April 2006?

A That is correct

Q Sorry, 28 April 2013

…..

Q What I put to you, Mr Ireland, is the document that is Annexure B to your affidavit is not a document that was created during the period of Mr Pike's employment with your firm?

A It was

Q Are you certain of that?

A Yes

Q Is it possible that this was a document that was created subsequent to Mr Pike's employment at your firm?

A No

Q Are you certain of that?

A Yes

Q You are the author of this letter, aren't you, 20 February 2006?

A That is correct

….

Q It is written on the face of the document that it was hand delivered to Daryl?

A That's right

Q Should we understand from that that you hand delivered this document to Mr Pike?

A That is correct

Q What date did you do that on, sir?

A 20 February.

The Respondent was asked questions concerning whether he had a recollection of giving the 20 February 2006 letter to Mr Pike, and as to paragraph 3 of the 28 April affidavit deposing to the Respondent having handed the letter to him. He was then asked about the Legal Services Award 2010, and the reference to that Award in the letter, and gave the following evidence:

Q Can you tell his Honour how, on 20 February 2006, you were prescient enough to know that the Commonwealth Government would pass the Fair Work Act in 2009 and develop the Legal Services Award in 2010, and that is recorded in paragraph 4 of the letter you wrote to Mr Pike that you can't remembering delivering to him on 20 February 2006?

A I don't know how that happened.

Q The document is a forgery, isn’t it, Mr Ireland?

A No, it is not

Q How do you explain a reference to an Award that did not exist for another 3 1/2 years at the time of this letter's creation?

A I can't, I don't know.

The Respondent was questioned further about the reference in a 2006 letter to a 2010 Award. The transcript records:

Q Mr Ireland this document is not a document created in February 2006 is it?

A As far as I understand it, it was

Q Mr Ireland, is that a serious answer?

A Well, I understand what you are saying there. I appreciate the difference in the dates. I can't explain that but after all these years, I can't explain it …

Q Do you still tell his Honour on your oath, as a solicitor of the Supreme Court of New South Wales, that this document was created to your understanding on 20 February 2006?

A That is my understanding

Bradd LCM delivered his judgment in the Local Court Proceedings on 4 June 2013 [10] . The Court found:

The 20 February 2006 letter was not drafted on or before that date because it refers to the Legal Services Award of 2010 [11] . The 20 February 2006 letter must have been drafted after publication of the Legal Services Award 2010 [12] . The evidence of the Respondent regarding the letter (the Magistrate referring to the Respondent's 28 April 2013 affidavit where he deposes to having handed the 20 February 2006 letter to Mr Pike on that date) must be false [13] . The only reason why the Respondent would falsely swear an affidavit would be to bolster his case. The fact that the Respondent had falsely sworn an affidavit rendered his evidence unreliable [14] .

Bradd LCM entered judgment in favour of the Plaintiff in the sum of $13,303.88 together with interest. The Defendant was ordered to pay the Plaintiff's costs on an indemnity basis. Mr Pike by letter of 18 June 2014 [15] submitted a complaint to the Office of the Legal Services Commissioner. In it Mr Pike listed the issues he was complaining about to include:

…the solicitor [referred to earlier in the complaint as the Respondent] engaged in the drawing and swearing of a falsified and fraudulent affidavit…

The Office of the Legal Services Commissioner referred the complaint to the Applicant for investigation [16] . There then followed an exchange of communications between the Applicant and the Respondent concerning the complaint. During the period from 10 July 2014 when the Applicant first communicated with the Respondent until 26 June 2015, the Respondent did not concede that the 20 February 2006 letter was in truth created on a much later date, nor that he had affirmed the 28 April affidavit at a time when it contained evidence that was, to his knowledge, false. It was only after some 11 months of correspondence between the Applicant and the Respondent did the Respondent, by letter of 26 June 2015 say [17] :

….. I make full admissions to the complaint.

Prior to this point the Respondent:-

Said in a letter to the Applicant of 12 August 2014 [18] that the 20 February 2006 letter was a document that he discovered prior to the Local Court Proceedings on 29 & 30 April 2013; that following service of a Notice to Produce, and on the advice of his Counsel, he conducted a search of old files and that the letter was found during the search of 2005 and 2006 Miscellaneous and Administration files. In the same letter denied the contention of Mr Pike in his complaint that he had, in the Local Court proceedings, affirmed a false affidavit and gave false evidence. Said [19] that the evidence he gave in the Local Court Proceedings was substantially based on documents that were discovered from 6 to 7 year old administration files. In answer to the Applicant's request for him to provide any further submissions he wished to make in respect of paragraph 3 of the 28 April affidavit, said that he believed he handed Mr Pike the 20 February 2006 letter on that date. Executed on 14 July 2015 a Statutory Declaration [20] in which he declared that he believed that the 20 February 2006 letter was created on that day; further, that he affirmed the 28 April affidavit in good faith based on a deduction that the 20 February 2006 letter had been hand delivered to Mr Pike. In the same Declaration he said [21] that he "found" the letter on or about 27 April 2013; further that he was not aware how the letter came into existence at the Local Court hearing.

On 3 September 2015 the Respondent informed the Applicant [22] that he was at that point emotionally unwell; that he had scheduled a consultation with a clinical psychologist Ms Arlington-Watt and that he was seeking the assistance of Greg Walsh from the Law Society's Senior Solicitor Scheme. Ms Arlington-Watt appears to have been consulted by the Respondent on 10 September 2015. An email of that date [23] suggested that the Respondent was at that time experiencing elevated stress levels and symptoms characteristic of severe anxiety and depression. She recommended that he consult with his general practitioner for further assessment of his psychological state, to obtain confirmation of diagnosis and to discuss treatment options. Greg Walsh & Co informed the Applicant by letter of 15 September 2015 [24] that the Respondent was at that time suffering from depression, was receiving treatment from Ms Arlington-Watt, was to be the subject of a referral to a forensic psychiatrist, Dr Neilssen, and had attended upon a Dr Useelanenthon whose certificate - attached to the letter - was to the effect that he had a medical condition and required a psychiatric and medical review. The Applicant then received Mr Walsh's letter [25] , indicating that the firm had been retained by the Respondent and recorded in paragraph 17(i):

The solicitor concedes that he created the letter [being a reference to the 20 February 2006 letter] and swore an affidavit on 28 April 2013 which was false

Paragraph 17(iii) of the letter said:

The solicitor well knew that his affidavit would be relied upon in the subject proceedings and further that he would be giving evidence in such proceedings before the Local Court.

Paragraph 17(viii) of the letter said:

The solicitor unreservedly accepts that Mr Pike quite properly raised the solicitor's misconduct and that he, the solicitor, will convey shortly to Mr Pike his apology for his misconduct towards him and the Court and the profession.

The Respondent then wrote to the complainant, Mr Pike, by letter of 24 December 2015 [26] . In it he said to Mr Pike:

I'm taking the opportunity of writing to you belatedly to convey to you my sincere apology for what I have done..

I accept unreservedly the high standards of conduct that are essential to the practice of a legal practitioner

I accept unreservedly that I have seriously breached those standards of conduct towards you, the court, the legal profession and the community. I am deeply ashamed of my conduct.

Application

The Applicant's Grounds for Application asserts that the Respondent is guilty of professional misconduct in that he affirmed an affidavit on 28 April 2013 in Local Court Proceedings No. 2012/00052821 containing evidence that was, to his knowledge, false. The particulars set out in the Application refer to the Statement of Claim filed in the Local Court Proceedings, the Notice to Produce, the 28 April 2013 Affidavit, paragraphs 3 & 4 of the Affidavit, Annexure B to the Affidavit - being the letter bearing the date 20 February 2006 - and the fact that that annexure referred to a 2010 Award. The Application contends that the 28 April Affidavit was, to the solicitor's knowledge, false in that:

The letter referred to an Award which did not come into existence until some 4 years after the date it bore. The letter was created at 3.34pm on 27 April 2013.

The Application also refers to correspondence that it received from the Respondent in June, August and December 2015 whereby he confirmed that the Affidavit was affirmed despite containing evidence that was, to his knowledge, false.

Reply

In his Reply dated 15 November 2016 the Respondent says he:

Does not oppose an order that his name be removed from the Roll; and Does not oppose an order that he pay the Applicant's costs as agreed or assessed.

The Respondent admits particulars 1 to 7 inclusive contained under "Grounds for Application (Including Particulars)". The Reply, under a heading "Subjective Issues", makes contentions as to the Respondent's suffering "throughout the time whereby he was guilty of the conduct admitted to a major depressive illness that had not be diagnosed or treated". Particulars are then set out including reference to a report of Dr Neilssen of 26 March 2016; the Solicitor's father being diagnosed with a serious disease in or about 2003; changes to the employment conditions of the Respondent's wife in the period 2012 to 2013 resulting in his wife suffering from extreme stress and anxiety; the conduct by the Respondent of his legal practice; the Respondent's personal circumstances; and having undertaken what is described as "ongoing psychiatric assessment and treatment". The Reply then seeks to rely upon Mr Walsh's letter. That letter is attached to the Reply as is a report of a psychiatrist Dr Nielssen dated 26 March 2016 - as to which comment will be made below under Evidence in these reasons.

Jurisdiction

This is an Application made under the Legal Profession Act 2004 ("2004 Act"). The 2004 Act was repealed as from 1 July 2015 by the Legal Profession Uniform Law Application Act 2014 (NSW) ("the Application Act"), the effect of which may be summarised as follows:

Schedule 2 of the Legal Profession Uniform Law Application Legislation Amendment Act 2015 ("Uniform Law Amendment Act 2015") made a range of consequential amendments as from 1 July 2015, including to the Civil and Administrative Tribunal Act 2013 ("NCAT Act") reflective in the commencement of the Legal Profession Uniform Law 2015 (NSW) ("the Uniform Law") from 1 July 2015; and As a consequence of the transitional provisions the law to be applied in these proceedings is the 2004 Act. As the complaint in this matter was made under Chapter 4 of the 2004 Act and was not disposed of before 1 July 2015 (the complaint having been made on 18 June 2014) it must continue to be dealt with under the 2004 Act: Schedule 4 of the Uniform Law Amendment Act.

The Tribunal's power to make orders, having made a finding of professional misconduct, is found in section 562 of the 2004 Act. That section relevantly provides:

562 Determinations of Tribunal

(1) Orders generally

If, after it has completed a hearing under this Part in relation to a complaint against an Australian legal practitioner, the Tribunal is satisfied that the practitioner has engaged in unsatisfactory professional conduct or professional misconduct, the Tribunal may make such orders as it thinks fit, including any one or more of the orders specified in this section.

(2) Orders requiring official implementation in this jurisdiction

The Tribunal may make the following orders under this subsection:

(a) an order that the name of the practitioner be removed from the local roll,

(b) an order that the practitioner’s local practising certificate be suspended for a specified period or cancelled,

(c) an order that a local practising certificate not be issued to the practitioner before the end of a specified period,

(d) an order that:

(i) specified conditions be imposed on the practitioner’s practising certificate issued or to be issued under this Act, and

(ii) the conditions be imposed for a specified period, and

(iii) specifies the time (if any) after which the practitioner may apply to the Tribunal for the conditions to be amended or removed,

(e) an order reprimanding the practitioner,

(f) an order that the name of the practitioner be removed from the roll of public notaries maintained under the Public Notaries Act 1997.

Section 497 of the 2004 Act provides:

497 Professional misconduct

(1) For the purposes of this Act:

professional misconduct includes:

(a) unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence, and

(b) conduct of an Australian legal practitioner whether 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 practitioner is not a fit and proper person to engage in legal practice.

Evidence

The evidence before the Tribunal comprised the affidavit of Anne-Marie Foord, sworn 1 August 2016, much of which - including the annexures to it - having been referred to extensively earlier in these reasons. Mr Pierotti objected to the Tribunal relying on the report of a Psychiatrist, Dr Nielssen dated 26 March 2016 on the basis that it was not a report that was sought to be tendered in the proceedings, rather, was merely an annexure to the Respondent's Reply to Application. The Respondent was not present at the hearing and there was no application by him during the telephone communication referred to earlier in these reasons that Dr Nielssen's report be tendered. The Tribunal, noting the objects of the Civil & Administrative Tribunal Act 2013 set out in Section 3 of that Act to resolve issues and proceedings justly, quickly, cheaply and with as little formality as possible determined that Dr Nielssen's report be admitted. We find though that little, if any, weight can be placed on the report. This is because:

what the doctor has been asked to report upon and assume is not before the Tribunal. The doctor's report refers to letters of Greg Walsh & Co dated 24 November 2015 and 23 March 2016, which are not in evidence; it is not clear whether the doctor was specifically informed of the issues that were sought to be determined by the Tribunal; the Application for Disciplinary Findings being filed on 2 August 2016, some five months after Dr Nielssen examined the Respondent and prepared his report; the report is not sworn – that is to say it is not annexed to an affidavit by which the authors swears it to be true and correct; the report mentions what is described in it as an "incident" that "took place on 28.4.13". One is left to speculate as to whether the doctor is referring to the creation of the 20 February 2006 letter, in which case that appears to have occurred the day prior to 28 April. The doctor may be, rather, referring to the Respondent swearing on 28 April 2013 of the affidavit. Alternatively, the doctor could be referring to the evidence that the respondent gave under oath to the Magistrate on 29 April 2013, or possibly (but less likely) the content of correspondence with the Law Society after Mr Pike's complaint was submitted in June 2014, or the content of the Respondent's 14 July 2015 Statutory Declaration; as one is left to speculate as to precisely what Dr Nielssen was asked to comment upon, and as to what he understood was said to be the incident the subject of the misconduct allegation, there is no forensic use that can be made of the doctor's opinion expressed on page 5 that the "the episode of misconduct" occurred in the course of a depressive illness; the doctor's comment on page 6 of his report that:

There were no objective signs of impairment in cognitive function during the two interviews, and Mr Ireland's recent presentation did not raise concerns about his fitness to practice as a solicitor

appears to be at odds with the Respondent's own position as stated in his Reply to Application that he does not oppose an order that his name be removed from the Roll, and also with the statement made during the Tribunal's telephone discussion with him as referred to earlier in these reasons that he had handed in his practising certificate and sold his legal practice;

The Applicant and the Tribunal have not been afforded the opportunity to cross examine the doctor.

Submissions

The Applicant contended that the Affidavit of Anne-Marie Foord of 1 August 2016 (Exhibit A), constitutes sufficient evidence that the Applicant's Grounds for Application, namely that the Respondent affirmed an Affidavit on 28 April in the Local Court Proceedings containing evidence that was, to his knowledge, false; further, that doing so constituted a professional misconduct. Mr Pierotti submitted that it was clear on the authorities that in the discharge of their functions, legal practitioners have an obligation of complete honesty to the Court, and that affirming, as he did, the Affidavit at a time when it contained evidence that was to his knowledge false was a failure by the Respondent to exercise such honesty. Mr Pierotti further submitted that the material attached to the Reply to Application (being the letter of Greg Walsh & Co solicitors dated 10 December 2015 and the report of Dr Nielssen referred to earlier in these reasons) was not evidence on which the Tribunal should rely. There was no evidence - Mr Pierotti submitted - that the Respondent was fit to practice as a legal practitioner at the time of the hearing, nor any evidence as to the truth of the matters set out in the Reply under "Subjective Issues". Mr Pierotti referred the Tribunal to the following authorities:

Ian David Plowes (1996) NSW LST 23 pages 4, 5, 7, 8 and 9 Coe v NSW Bar Association [2000] NSW CA 13 paras 4, 10, and 11 Barrister's Board v Darveniza [2000] QCA 253 paras 4, 19 and 45; and Legal Practitioners' Complaints Committee v Palumbo [2005] WASCA 129 paras 22 to 24.

As we noted earlier in these reasons, when we spoke to the Respondent by telephone during the latter part of the hearing he told us he relied on his Reply, had nothing further to say, nor did he wish to adduce any evidence on which he sought to Rely.

Decision

In Ian David Plowes [1996] NSW LST 23 the then Legal Services Tribunal of NSW found professional misconduct in the signing of a solicitor's certificate on a mortgage when the solicitor had not seen the mortgagor nor explained the document. In subsequent proceedings between the mortgagor and the mortgagee the solicitor was served with a subpoena to produce his file. The Tribunal found that the solicitor fabricated two copy letters purported to have been written by him to the mortgagor and the guarantors, inserted the fabricated copy letters in a mortgage file, then produced those documents, within the file, in answer to the subpoena. The solicitor was later joined as a party to the proceedings by the mortgagee. The Tribunal found that the solicitor then mislead the solicitors and counsel who had been appointed by Lawcover to represent his interests in the proceedings as to the authenticity of the letters in question. Additionally, the Tribunal found the solicitor in the proceedings swore a defence which he subsequently admitted was false; further, swore an affidavit verifying his list of documents in which he included the fabricated copy letters. On finding the solicitor guilty of professional misconduct the Tribunal ordered that his name be removed from the Roll. It had been submitted for the solicitor in that matter that it was not a deliberate course of action planned well in advance by the solicitor but rather a panic step by step reaction and that the conduct should be viewed as in effect one incident. The Legal Services Tribunal had a different view and said:

…the actions of the solicitor cannot be regarded as one series of related events but are properly categorised as separate and distinct breaches of professional misconduct of a very serious nature. The creation of the two false letters can only be regarded as quite deliberate and created with, not only an intention to protect the solicitor himself, but also with the intention to deceive both the parties to the litigation and the Supreme Court. The production of the file on subpoena was also a quite deliberate act [27]

Similar considerations apply in the creation by the Respondent of the fabricated letter on 27 April 2013, the deliberate affirmation of the Affidavit on 28 April 2013 containing information that was to his knowledge false, then the giving of false evidence before the Magistrate. The NSW Court of Appeal in Coe v NSW Bar Association [2000] NSWCA 13 dismissed an Appeal of a barrister who had challenged a finding of professional misconduct by the then Legal Services Tribunal for falsely swearing an affidavit. The Tribunal had ordered that the Appellant's name be removed from the Roll of Legal Practitioners. Mason P (with whom Priestley JA agreed) said [28]

The Tribunal was, in my view, clearly entitled to conclude that the affidavit had been sworn falsely and knowingly so. Given that the Barrister did not give evidence before the Tribunal, despite the most explicit warning of the risk he was taking, the conclusion [that the barrister was guilty of professional misconduct and that his name should be removed from the Roll] was well neigh inevitable.

His Honour went on to say [29] :

If (which I doubt) there are exceptional cases where a practitioner who knowingly swears a false affidavit that is filed in court could be regarded as fit to practice, this is not one of them. The underlying purpose of the disciplinary jurisdiction over practitioners is discussed in this court's recent decision in the NSW Bar Association v Hamman [1999] NSWCR 404.

In re B [1991] 2 NSWLR 372 at 382 Moffitt P said:

It is of the utmost importance that this court can order its procedures and give its decisions in the confidence that the barristers appearing before it will not mislead it, will conduct themselves in accordance with the law and discharge their duty even when not subject to scrutiny.

The Supreme Court of Queensland in Barristers' Board v Darvenzia [2000] QCA 253 was dealing with an application for the removal of a barrister's name from the Roll of Barristers in the State of Queensland. The application was brought following the barrister's conviction by a magistrate on two offences referable to the supplying of a dangerous drug. The Judgment [30] records that after final submissions the barrister sought and was granted leave to file a further affidavit. The Court found that the affidavit was a deliberate attempt to present an untrue picture to the Court; it being described as designed to suggest disinterest in drugs and a cessation of association with those with whom he had been involved in relation to his earlier offences. The Court said in relation to the affidavit:

…the swearing of the respondent's supplementary affidavit was a deliberate attempt to present an untrue picture to the Court. Quite apart from any question of perjury, "a barrister does not lie to a judge who relies on him for information" [31] . Such a rule is fundamental. His deception in the context of the present application is no less serious than deceptions in the course of practice that are condemned in the above statement.

The Supreme Court of Western Australia in the Legal Practitioners Complaints Committee v Palumbo [2005] WA SCA 129, whilst not dealing with a case involving a practitioner who had sworn or affirmed an affidavit knowing it to be false, nevertheless cited authorities concerning occasions where practitioners had done so in its consideration of the conduct of a legal practitioner who falsely asserted that a relative was the driver of a motor vehicle that had driven through a red light, denied when interviewed by police that he was the driver of the vehicle, and nominated three other persons who could possibly have been the driver at the time. The practitioner subsequently admitted the truth to the police when he was informed that his telephone calls had been intercepted [32] . The Court summarised the authorities as follows:

Conduct involving dishonesty has generally been regarded very seriously by the Courts, even where it occurs outside professional practice. In Coe v NSW Bar Association [2000] NSW CA 13, a barrister was struck off the Roll for falsely swearing an affidavit with intent to mislead the Family Court in a matter in which he was a party. The Affidavit was knowingly false as regards his financial circumstances. In the Barristers' Board v Young [2001] QCA 556, a barrister was struck off the Roll for intentionally giving false evidence to the Criminal Justice Commission's enquiry into electoral fraud. In re A Practitioner; ex parte Legal Practitioner's Disciplinary Tribunal [2004] 145 A C RIM R557, a solicitor was struck off the Roll after committing four counts of perjury. He had made false statements in affidavits in court proceedings in order to conceal his dereliction of duty in allowing a judgment to be entered against his client in default of defence. He had also committed a minor offence of shoplifting and had offered no adequate explanation in respect of it.

Honesty and integrity are essential prerequisites to a right to practice law. In the Barrister's Board v Darveniza [2000] 112 A C RIM R438 (a case involving the supply of drugs by the practitioner and his subsequent filing of dishonest affidavits denying his use of illegal drugs), Thomas JA (with whom McMurdo P and White JA were in agreement) said, at 445 [33]:

"Generally speaking, the quality most likely to result in striking off is conduct which undermines the trustworthiness of the practitioner, of which suggests a lack of integrity or that the practitioner cannot be trusted to deal fairly with the system [in] which he or she practices.

To similar effect is the observation of Wright J in Howes v Law Society of Tasmania [1998] TASSC 112. His Honour there referred with approval to what had been said by Crawford J at first instance as follows:

"….honesty and candour are essential attributes for a legal practitioner and certainly so when dealing with the Court and his or her professional body. The deliberate making of untrue statements on oath in particular reveals a person lacking in qualities essential for a practitioner…."

The Tribunal finds that in affirming the affidavit on 28 April in the Local Court Proceedings which contained evidence that was, to his knowledge, false the Respondent is guilty of professional misconduct. Creating a letter known to contain false information; annexing that false letter to an affidavit; affirming the Affidavit when what was said in it was knowingly false and when it attached a fabricated document were serious and wilful departures from standards of behaviour that members of the public, the courts, and fellow practitioners are entitled to expect of legal practitioners. A practitioner swearing or affirming an affidavit containing information that, to his or her knowledge, is false is a glaring example of conduct which undermines the trustworthiness of the practitioner, suggests a lack of integrity, and suggests that the practitioner cannot be trusted to deal fairly with the system of justice in which he or she practices - to quote the views of Thomas JA (with whom McMurdo P and White JA agreed) in Barristers' Board v Darveniza [2000] 112 ACRIN R438. The deliberate making of untrue statements on oath reveals a lack in qualities of honesty and candour that are essential attributes for a legal practitioner [33] . Our conclusions are consistent with the way in which the then Legal Services Tribunal of NSW considered a matter of conduct not dissimilar to what we are concerned with: see Ian David Plowes [1996] NSW LST 33. The Respondent in his Reply [34] concedes that the conduct was "clear serious wrongdoing" on his part; further that he had "….breached his clear professional obligations to the Court, the law and the community". The letter of his then solicitors to the Applicant of 10 December 2015 conceded the solicitor's actions as "very serious misconduct" [35] . We agree with the sentiments expressed by the Respondent above and in his letter to the complainant Mr Pike of 24 December 2015 where he accepts "….unreservedly the very high standards of conduct that are essential to the practice of a legal practitioner" and concedes that he has "seriously breached" those standards of conduct to Mr Pike, the Court, the legal profession and the community. The Respondent does not, in his Reply to Application, oppose orders that his name be removed from the Roll nor that he pay the Applicant's costs as agreed or assessed. Being cognisant of Court of Appeal authority [36] requiring the primary consideration of the Tribunal being the protection of the public by preventing persons unfit to practice from holding himself or herself out as a practitioner in whom members of the public might repose confidence, and to deter not only the practitioner from behaving in future in like manner but also deterring any other practitioner from so behaving, our determination is that per s562(2)(a) of the 2004 Act the Respondent's name be removed from the local Roll. In doing so we agree with the view of Mason P in Coe v NSW Bar Association [2000] NSW CA13 that is doubtful that there could be an exceptional case where a practitioner who knowingly swears a false affidavit that is filed in Court could be regarded as fit to practice. Further, there is no evidence upon which we can rely that the Respondent is now a different person from the person he was in 2013. Given that we have found professional misconduct the Tribunal makes an order for costs in favour of the Applicant: Schedule 5 of the NCAT Act.

Orders

The Tribunal having found Mark Gerard Ireland (the Respondent) guilty of professional conduct orders that:

The name of the Mark Gerard Ireland be removed from the local Roll; and The Respondent (Mark Gerard Ireland) is to pay the costs of the Council of the Law Society of New South Wales (the Applicant) as agreed or assessed.

**********

Endnotes 1. Affidavit of Anne-Marie Foord 1 August 2016 para 2 2. Pike v Mark Ireland Lawyers Pty Ltd, Judgment of Magistrate Bradd 4 June 2013 paras 28 & 29; Affidavit of Anne-Marie Foord 1 August 2016 para 3 and page 28 3. Affidavit of Anne-Marie Foord 1 August 2016 para 3 and pages 20, 24 and 26; The Statement of Claim in Local Court proceedings case no 2012/00052821 Pike v Mark Ireland Lawyers Pty Ltd, Amended Defence in those proceedings and Affidavit of the Respondent verifying; Affidavit of Anne-Marie Foord 1 August 2016 para 3 and page 33 being Affidavit of the Respondent 28 April 2013 4. Affidavit of Anne-Marie Foord 1 August 2016 para 3; page 18, 43 and 71 [his Honour's primary judgment indicates a hearing date solely of 30 April 2013 - this must be typographical error given the clear transcript reference to evidence being given on 29 April 2013] 5. Affidavit of Anne-Marie Foord 1 August 2016 para 3; page 34 6. Affidavit of Anne-Marie Foord 1 August 2016 Pages 19 & 24 7. Affidavit of Anne-Marie Foord 1 August 2016 para 3 and pages 34 and 36 8. Annexure K to Affidavit of Anne-Marie Foord 1 August 2016 9. Page 159 of Ms Foord's affidavit 10. Affidavit of Anne-Marie Foord 1 August 2016 para 3; page 43 and 51 11. Judgment para 24 12. Judgment para 24 13. Judgment para 26 14. Judgment para 26 15. Affidavit of Anne-Marie Foord 1 August 2016 para 3 and page 11 16. Affidavit of Anne-Marie Foord 1 August 2016 para 3 and page 10 17. Affidavit of Anne-Marie Foord 1 August 2016 Annexure K, page 161 18. Affidavit of Anne-Marie Foord 1 August 2016, Annexure C, page 55 19. Affidavit of Anne-Marie Foord 1 August 2016, Page 65 20. Affidavit of Anne-Marie Foord 1 August 2016, Annexure "P" para 19, page 166 21. Paragraph 12 22. Affidavit of Anne-Marie Foord of 1 August 2016, Annexure "U", page 296 23. Affidavit of Anne-Marie Foord of 1 August 2016, Annexure "W", page 302 24. Affidavit of Anne-Marie Foord of 1 August 2016, Annexure "W", page 299 25. Affidavit of Anne-Marie Foord of 1 August 2016, Annexure "Y", page 304 26. Affidavit of Anne-Marie Foord of 1 August 2016, Annexure "AB", page 313 27. Judgment page 8 28. Judgment paragraph 4 29. Judgment paras 10 and 11 30. Judgment para 5 31. Citing Clyne v NSW Bar Association [1960] 104 CLR 186, 200 per Dixon CJ, McTiernan, Fullagar, Menzies and Windeyer JJ 32. Paragraphs 23 to 24 33. Wright J in Howes v Law Society of Tasmania [1998] TASSC 112 34. Paragraph 4.6 35. Paragraph 17 page 5 36. Law Society v Bannister [1993] 4 LPDR

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

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.