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Legal Services and Complaints Committee and Abou Haidar [2023] WASAT 23

Decision Published: 29 March 2023

On 29 March 2023, the State Administrative Tribunal of Western Australia (Tribunal) published its decision in disciplinary proceedings commenced by the Legal Services and Complaints Committee (Committee) against Mr Abou Haidar, who was admitted to the legal profession in Western Australia but had never held a practising certificate.

The parties filed the agreed orders below with the Tribunal designed to dispose of the proceedings (Agreed Orders).

The Tribunal made orders which, in substance, were the same as the Agreed Orders finding Mr Haidar engaged in professional misconduct, in respect of the following conduct:

  • Sending an unsolicited email on 20 September 2019 (20 September 2019 email) to Ms C and Mr A, legal practitioners, which:
    1. made sexually explicit comments about the client of Ms B, another legal practitioner;
    2. included a postscript which contained grossly explicit and sexually demeaning comments about Ms C;
    3. attached a screenshot of the results of an internet search about Ms B which contained reference to Ms B’s historical criminal conviction;
    4. attached a screenshot of Ms B’s LinkedIn profile
    5. attached an image which, in the context of the 20 September 2019 email, could be taken to be a pictorial representation of the grossly explicit and sexually demeaning comments the Lawyer made about Ms C; and
    6. was sent to members of the legal profession and contained inappropriate comments about other members of the legal profession.
  • Sending unsolicited emails on 27 September 2019 (27 September 2019 emails) to Ms B and Mr A which:
    1. contained inappropriate comments about the client of Ms B; and
    2. did not acknowledge or apologise for the inappropriateness of the 20 September 2019 email;
  • Sending an email on 15 October 2019, in response to a letter dated 27 September 2019 of the Committee, in a manner which:
    1. failed to meaningfully address the conduct issues raised in relation to the 20 September 2019 email;
    2. reiterated inappropriate sexual matters;
    3. trivialised the conduct; and
    4. was discourteous;
  • Sending an unsolicited email on 16 October 2019 (16 October 2019 email) to Ms E, Mr D, Ms C and Dr H, legal practitioners, which was sexually explicit, demeaning and humiliating towards Ms E, grossly unprofessional, disrespectful, offensive, embarrassing and discourteous, in that the 16 October 2019 email:
    1. disclosed the Lawyer’s sexual fantasies towards Ms E;
    2. contained obscene language; and
    3. was targeted at Ms E and was sent to three other legal practitioners,

in circumstances where the conduct was of a similar nature as the 20 September 2019 email and where the Committee, by its letter dated 27 September 2021, had already raised concerns with the Lawyer; and

  • Sending on 16 October 2019, a further email to Mr D and Ms E requesting that the 16 October 2019 email be kept confidential.

As a consequence of the above findings, the Tribunal made the following additional orders:

  • The issuing of a reprimand on Mr Haidar;
  • An order precluding Mr Haidar from being granted a practising certificate for nine months from the date of the orders; and
  • An order requiring Mr Haidar to pay the Committee’s costs fixed at $5,000.

The Tribunal opined as follows:

“[6] …The conduct engaged in by the Lawyer can only be described as both bizarre and disgusting. Having considered the facts, we are satisfied that the Lawyer’s conduct amounts to professional misconduct. Disgraceful and dishonourable are adjectives that well describe his behaviour in this case. His conduct was undoubtedly disrespectful, highly offensive and embarrassing to those about whom he was speaking and to others who received his communications. His repetition of the offensive comments and the trivialising of his conduct in his response to the Committee’s communications with him and his failure to meaningfully respond to their communication was also extremely inappropriate.”

Victorian Legal Services Board v Ansell [2023] VSC 62

Decision Published: 21 February 2023

On 11 November 2022, the Supreme Court of Victoria (Supreme Court) made orders in respect of proceedings commenced by the Victorian Legal Services Board (Board) against Mr Peter Hartley Ansell.

In the proceedings, the Board alleged that Mr Ansell, who was admitted to legal practice, was guilty of contempt on the basis he breached an order compelling him to be interviewed by its investigator who was making enquiries into whether his practice was a ‘front’ for an unqualified person or persons to carry on a legal business.

The Supreme Court found Mr Ansell had breached that order on the basis he failed to attend the examination with the Board’s investigator and made an order, inter alia, requiring Mr Ansell to attend an examination with the Board’s investigator at a later date. Mr Ansell did attend the later examination.

On 21 February 2023, the Supreme Court published its decision on penalty and made orders requiring that Mr Ansell pay the Board’s costs of and incidental to the proceedings, on an indemnity basis.

Justice Forrest opined as follows:

“[48] As an experienced legal practitioner, he must have known that once the orders were made, absent their dissolution or an order permitting non-compliance, he was required to comply with them. As Mr Cooper pointed out to him — the order for the examination remained in force; as anyone with any legal training should have known. His explanation for not attending was disingenuous.

 [49] Mr Ansell’s complaint about the Prothonotary and the VLSB was irrelevant, as was his ‘justifiable reluctance’. Whatever his motivation, I am satisfied beyond reasonable doubt that Mr Ansell’s conduct in not attending the examination was deliberate and violated the clear terms of an order of the Court.

 [50] However, and with some hesitation, I do not accept that Mr Ansell’s conduct can be characterised as a criminal contempt. Whilst I consider that he made a conscious decision not to comply with an order of the Court, having observed him in Court and having heard his submissions, I cannot be satisfied beyond reasonable doubt that he made a deliberate determination to defy the Court or that his breach involved a perverse or obstinate resistance to authority. Rather, I think that he misguidedly believed that by attempting at the last moment to defer the examination (and consequentially not complying with the order) this would benefit his cause and his wider battle with the VLSB. The end result is that I am not satisfied beyond reasonable doubt that the contempt can be categorised as criminal.

 [51] Therefore, I propose not to impose a conviction, but merely to confirm order 2 of the November Orders (see above at [36]).

…

 [70] As I indicated in oral discussion with the parties, I consider that Mr Ansell should pay the VLSB’s costs of the proceeding on an indemnity basis. The VLSB’s submissions in relation to Mr Ansell’s conduct should be accepted on this point — it was obdurate and unnecessary. Particularly so for a solicitor faced with an investigation by the regulator. Mr Ansell should have complied with the original request and notices of the VLSB and attended the interview or the examination. It should not have been necessary for the VLSB to initiate and continue with this proceeding. In those circumstances, it is appropriate to order that the costs of the proceeding be paid by Mr Ansell on an indemnity basis.

 [71] Given that I have already found (by order 2 of the November Orders) that Mr Ansell committed a contempt of court by failing to attend the examination, it is not necessary to make any further order on this point.”

Victorian Legal Services Board v Nida [2023] VSC 25

Decision Published: 7 February 2023

On 19 November 2021, the Supreme Court of Victoria (Court) made orders requiring Ms Roona Nida (who did not hold a current practising certificate as a result of a determination made on 19 August 2021 by the Victorian Bar Association to refuse to renew her practising certificate) not to engage in legal practice or represent that she was entitled to engage in legal practice (November Orders).

On 7 February 2023, the Court published its decision in proceedings commenced by the Victorian Legal Services Board (Board) against Ms Nida (First Judgment). In the proceedings, the Board alleged that Ms Nida was guilty of contempt on the basis she breached the November Orders restraining her from engaging in legal practice, in particular, by purporting to act as the legal representative for both her sons, who were litigants in two separate proceedings and representing an entitlement to engage in legal practice by identifying herself as a barrister.

The Court determined that it would in due course make declarations that Ms Nida was guilty of contempt of court but refused to make its determination a criminal conviction. To allow the parties a further opportunity to address the Court’s finding of civil contempt, the Court allowed the parties to make further submissions as to appropriate orders.

Justice Gorton opined as follows:

“[81] I am not satisfied that Ms Nida was deliberately defiant of the Court’s authority or that she acted contumaciously. I accept her evidence that she was experiencing very real stress and concern about her sons when she breached the Order. There is no suggestion that she disobeyed the Order by providing legal services to anyone other than her two sons. In my judgment, she acted whilst in some form of denial: she failed to give proper thought to whether or not she was breaching the Order, or perhaps persuaded herself that she was not acting in breach of the Order by telling herself that she was acting only as her sons’ mother and that everyone knew that she was their mother. In this way, she did not, in her own mind to herself, acknowledge that what she was doing was in breach of the Order. I do not consider that her conduct amounted to ‘wilful blindness’.[40]  This does not, of course, excuse her conduct, or prevent a conclusion that her actions were in contempt of court.  But it does mean, as I see it, that she was not deliberately defying the Court’s authority or acting contumaciously.

[82] Similarly, I do not consider that the substantive purpose of this proceeding is, or of any orders should be, to punish Ms Nida for her conduct in a way necessary to vindicate the Court’s authority. Rather, I see the substantive purpose of the proceeding and of any consequential orders to be to bring home to Ms Nida the seriousness and unlawful nature of what she has done, with a view to ensuring that she does not repeat that conduct in the future. In this way, it is more coercive than punitive. Accordingly, in my judgment, Ms Nida’s contempts are civil contempts rather than criminal contempts.”

Victorian Legal Services Board v Nida (No 2) [2023] VSC 154
Decision date: 31 March 2023

On 31 March 2023, the Court published a further decision following the First Judgment, making declarations that Ms Nida was in contempt of Court by breaching orders made by Justice O’Meara on 19 November 2021 and by doing the following whilst she did not hold an Australian practising certificate:

  1. between 2 and 4 March 2022, and by her email communications and appearances in court, engaging in legal practice, and implying that she was entitled to engage in legal practice, in connection with an interpleader summons proceeding in the Melbourne Magistrates’ Court; and
  2. on various dates between 2 and 15 March, representing an entitlement to engage in legal practice by identifying herself as a barrister at the Victorian Bar in her email communications.

The Court also ordered Ms Nida to pay the Board’s costs in the amount of $110,000 and dismissed a summons filed by Ms Nida during the proceedings.

Victorian Legal Services Commissioner v Sandbach (Legal Practice) [2023] VCAT 177

Decision date: 23 February 2023

On 23 February 2023, the Victorian Civil and Administrative Tribunal (VCAT) published its decision on penalty in respect of proceedings that the Victorian Legal Services Commissioner (Commissioner) commenced against Alan Walter Sandbach (Respondent).

Background
On 22 December 2022, VCAT found the Respondent guilty to one charge of professional misconduct under section 297(1)(a) and section 298(b) of the Legal Profession Uniform Law (VIC) (Uniform Law) by engaging in conduct which constituted:

  1. a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and
  2. a contravention of Rule 65 of the Legal Profession Uniform Conduct (Barristers) Rules 2015 (Vic) (the Barristers’ Rules);

by alleging fraud without reasonable grounds to believe that there was available material to support and give proper basis to the allegation; and without instructions from the client that the client wished to have the allegation made after the Respondent had advised the client of the possible consequences for both the client and the matter if the allegation was not made out.

Decision
VCAT found that the appropriate penalty was a combination of a reprimand and prohibition on practice. VCAT made the following orders:

  1. The Respondent is reprimanded.
  2. The Respondent is prohibited from applying for an Australian practising certificate for a total period of 12 months commencing 16 April 2023 (inclusive).
  3. The Respondent is to pay the Applicant’s costs at 80 per cent of the Supreme Court scale to be assessed by the Costs Court on the standard basis in default of agreement.

In its decision, VCAT considered established case principles when applying penalties (at [35]-[38]):

“The purpose of penalties imposed by the Tribunal in legal practitioner disciplinary proceedings is primarily protective, targeted at ensuring that the community does not suffer from this kind of conduct again and that the reputation of the profession is maintained…

Whilst this protective purpose is paramount, in discharging that duty, specific and general deterrence become relevant – that is, deterring both the offending legal practitioner and all other legal practitioners from similar conduct. To effectively serve the principles of deterrence, penalties must be seen to punish the offender…

This is particularly important in the present case where I have formed the view that the Respondent has shown no insight or remorse…

Further, the nature and seriousness of the conduct will inform the extent to which general deterrence should be taken into account.”

In assessing the “gravity of the conduct”, VCAT held (at [49]):

“Overall, I am of the view that the gravity of the offending conduct of itself in this matter is closer to the lower to moderate position of the scale in terms of professional misconduct. However, that being said, there are aspects of the Respondent’s behaviour which aggravate the seriousness of the conduct to a degree. In this sense, whilst it may be at the lower end of the scale in terms of all of the possible types of professional misconduct, it is not necessarily at the lowest end of the possible examples of a breach of r 65 of the Barristers Rules.”

VCAT also highlighted the significance of the Respondent’s lack of insight and remorse (at [58]-[63]):

“In my view, the Respondent has demonstrated a lack of insight and remorse and an inability to rehabilitate or otherwise curtail his behaviour following the warnings and reactions of the Bench…

…the Respondent’s inability to comprehend the unethical nature of the conduct is evident in and aggravated by the ongoing nature of the conduct over an extended period of time…

…The lack of insight and remorse in the present case is rather alarming and is a primary aggravating factor in the penalty exercise before me, particularly given the Respondent has over 35 years of experience in the legal profession. He is a very experienced barrister and should have a solid and nuanced understanding of the ethical landscape of the profession. This is particularly so given his experience in professional conduct proceedings to which I have already referred.”