Tuesday, 20 October 2009

Most American children exposed to violence on a daily basis: researchers

American researchers have concluded in groundbreaking research that most American children are exposed to violence in their daily lives. More than 60% of the children surveyed were exposed to violence in the past year, either directly or indirectly (i.e., as a witness to a violent act; by learning of a violent act against a family member, neighbor, or close friend; or from a threat against their home or school).

The research, funded by the US Department of Justice, also found:
  • Nearly one-half of the children and adolescents surveyed (46.3 percent) were assaulted at least once in the past year;
  • More than 1 in 10 (10.2 percent) were injured in an assault;
  • 1 in 4 (24.6 percent) were victims of robbery, vandalism, or theft;
  • 1 in 10 (10.2 percent) suffered from child maltreatment (including physical and emotional abuse, neglect, or a family abduction);
  • 1 in 16 (6.1 percent) were victimized sexually;
  • More than 1 in 4 (25.3 percent) witnessed a violent act;
  • Nearly 1 in 10 (9.8 percent) saw one family member assault another;
  • More than one-third (38.7 percent) experienced 2 or more direct victimizations in the previous year;
  • More than 1 in 10 (10.9 percent) experienced 5 or more direct victimizations in the previous year;
  • More than 1 in 75 (1.4 percent) experienced 10 or more direct victimizations in the previous year;
  • Nearly seven in eight children (86.6 percent) who reported being exposed to violence during their lifetimes also reported being exposed to violence within the past year, which indicated that these children were at ongoing risk of violent victimization;
  • Nearly one in five girls ages 14 to 17 (18.7 percent) had been the victim of a sexual assault or attempted sexual assault; and
  • More than one-third of all 14- to 17-year-olds had seen a parent assaulted.

The report states:

Too little is known about the numbers of children exposed to violence. Although
several studies have attempted to measure children’s exposure to violence, these
estimates have varied greatly and have often measured only a subset of that
exposure. Not only does this partial measurement fail to reveal the full extent
of violence against children, it also fails to account fully for the multiple
victimizations that many children experience; the co-occurrence of certain types
of violence (for example, intimate partner violence and child maltreatment or
neglect within a household); the extent to which exposure to one type of
violence may make a child more vulnerable to other types of violence and
victimization; and the cumulative effects of repeated exposure to violence as
both a direct victim and a witness. Basic epidemiological data are important to
determine the extent of the public health problem, the need for services, and a
baseline for evaluating progress.

The report comments on the effects of exposure of children to violence:

Children react to exposure to violence in different ways, and many children show
remarkable resilience. All too often, however, children who are exposed to
violence undergo lasting physical, mental, and emotional harm. They suffer from
difficulties with attachment, regressive behavior, anxiety and depression, and
aggression and conduct problems. They may be more prone to dating violence,
delinquency, further victimization, and involvement with the child welfare and
juvenile justice systems. Moreover, being exposed to violence may impair a
child’s capacity for partnering and parenting later in life, continuing the
cycle of violence into the next generation.

For the full report, click here [pdf].

Thursday, 15 October 2009

I am now the subject of a White Ribbon Day poster campaign in Queensland http://ow.ly/uy4Q

White Ribbon Day poster for Queensland

I have now discovered that I am the subject of a White Ribbon Day poster to be distributed throughout Queensland by the White Ribbon Day campaign. White Ribbon Day is on 25 November each year and is the UN's International day for the Elimination of Violence to Women.


If you think property settlement is bad in Australia, try England: Australian Divorce Blog http://ow.ly/uxZq
Family Court starts using its domestic violence best practice principles : Australian Divorce Blog http://ow.ly/uxYY
Gya couple allowed to go to court about lesbian's child, who was not genetically theirs: Aust Gay and Lesbian Law Blog http://ow.ly/uxX1

You think property settlement is bad here, try England

For all those who think that property settlement rules in Australia are hard to understand, be thankful you don't live in England or Wales.

Here the rules are relatively simple:
  1. identify the property and value it
  2. assess financial and non-financial contributions of each of the parties
  3. weigh up any future factors under section 75(2) of the Family Law Act
  4. come up with a just and equitable (or fair) result

Sometimes, just sometimes there might also be an order for spousal maintenance. In the scheme of things these are pretty rare. Section 81 of the Family law Act makes plain that there should be a clean break principle after people split up. This in itself helps discourage spousal maintenance claims.

And while individual judges might come up with different results, above all of them sit the august members of the Full Court of the Family Court (and above them also sit the High Court) hearing appeals and giving guidance to all family law judges and magistrates about how they should decide their cases.

Contrast this with the position in England and Wales, where according to The Times:

  • there is no real distinction between property settlement and spousal maintenance, meaning that any result is possible.
  • the north of the country is seen as favourable to men, and the south to women.
  • lawyers are forum shopping- so if you are a man you might try your luck in the north, but if a woman, try your luck in London.

Family Court Family Violence Best Practice Principles Applied

Back in May the Family Court publicly released its Family Violence Best Practice Principles. These principles are aimed at assisting Family Court judges and Federal Magistrates in how to respond to family violence.

In the first reported case, the Full Court of the Family Court has now used these best practice principles. In Oakley and Cooper, the Full Court had this to say:


The appeal book did not contain a notice ...asserting abuse of the children
or that there had been family violence by the mother. On 6 March 2009, that
is, after the completion of the proceedings before his Honour, the
Attorney-General, the Honourable Robert McClelland MP launched the Family Court of
Australia’s “ Best Practice Principles
for use in Parenting Disputes when Family Violence or Abuse is Alleged”. The
principles in that document are relevant to situations where abuse is alleged to
have occurred regardless of whether a notice [of child abuse or family violence]
has been filed.

Section F of the principles sets out a number of matters which may be
considered where the Court orders that a child should spend time with a parent
against whom findings have been made that allegations of family violence or
abuse are proven.

We accept, of course, that the Federal Magistrate did not have the
benefit of guidance from the document now published. But, the issue of family
violence is, as is made abundantly clear by the Act, extremely important.
Highlighting, some of the recommended considerations in the document just
referred to, as we will now do, serves to illustrate how they might be of
assistance to courts in framing orders which could assist the future well being
of children in cases whose facts are similar to those before the Federal
Magistrate in this case. For example:
...
(iii) What conditions (for
example by way of seeking advice or treatment) should be complied with by the
party in whose favour the order has been made.
...
(vi) Whether the order
should be supervised by a Family Consultant for a limited period of time or
referred to an external Parenting Orders Program for longer term supervision and
support.
(vii) Whether a Family Consultant should be directed to give one or
both parties assistance to comply with the parenting order.
(viii) Whether
any parenting order or injunction is inconsistent with a family violence order
and the extent of any inconsistency.

Wednesday, 14 October 2009

Online resource for US law students: course outlines for free http://ow.ly/ukgP

Online resource for US law students course outlines

Back in the dim, dark ages, yes when I went to law school, there was this tendency on the part of the academics to guard the course outlines jealously. To obtain the external notes was like hitting the jackpot. External students might have been deprived in many ways, but at least they managed to get an outline of what they were being taught.

Those days are hopefully well behind us. I recalled them when I came across a US website, outlinesumo.com recently which lists outline after course outline of many law schools in the US. It's all free, and unfortunately mainly only available to US law students. They can download the course outlines for free in turn for uploading other course outlines from their courses.

Yes, the site does have limitations: by nature it is largely limited to US law students, and it is only marginally relevant to Australian law. However, it is an amazingly innovative idea, and many of the course outlines are available by previewing them. I was quite interested in several about family law.
ADF fails women and court orders in domestic violence cases: Australian http://ow.ly/ukcx

ADF fails domestic violence orders: Australian

Today I was contacted by the Domestic Violence in the Australian Army Group. I must admit that I had never heard of this group before. This Group drew my attention to an article in the Australian of a couple of days ago, talking about domestic violence in the army.

Unfortunately, having acted for soldiers and airmen in Brisbane, and the wives or partners of soldiers and airmen in Brisbane, I am all too aware that domestic violence can occur when one or both of the spouses are in the services.

I was alarmed at the story in the Australian of 2 days ago, where Tony Koch reports that two soldiers were allowed by the army to keep weapons in their positions, even though domestic violence protection orders had been made against both of them. One of the men is alleged to have attempted to stab his partner with a screwdriver to her neck after he returned from a tour of duty in East Timor.

This type of behaviour is not surprising. There has been plenty of literature from the US, for example of service personnel returning from Iraq and Afghanistan, exposed to the full horrors of war, and then committing acts of domestic violence to their wives and girlfriends once they get home.

Queensland's domestic violence legislation is quite clear that a mandatory condition of an order is that the respondent to the order is not allowed to possess any weapon, and any weapon's licence is revoked.

We then start getting into difficult areas of law, as Federal legislation makes it quite clear that service personnel can possess weapons. In general terms, Federal laws override State laws. Therefore, while a respondent might not be able to possess a gun for any other reason, while at work, in the army, the soldier might well be able to keep a gun.

It would appear from Tony Koch's story that much depends on the commanding officer. In one of the cases, the commanding officer (who appears to have only heard the soldier's point of view and had not investigated what the wife had said):

I hope that the upper echelons of Defence do not inadvertently act to
disadvantage the member due to unproven and sensationalist claims. My
personal opinion is that (the woman) has attempted to make (the soldier's)
deployment untenable to either damage his reputation in the army or have him
returned to Australia so that legal issues between the two can be finalised. I
have little doubt that this latest instance is simply a continuation of this
course of action.


By comparison, I recall one occasion when I acted for a reservist who had been subject to terrible domestic violence by her partner- whom she had met in the reserves, and who served in the same unit. He was subject to a no contact order, which was impossible to implement if they were in the same unit together. If he remained int he same unit, he was committing an offence, and army personnel may have been committing offences by allowing him to remain there (because they would have been aiding and abetting the committing of that offence). Their commanding officer moved him to a different unit.

Good news

The army is keen to be involved with White Ribbon Day, 25 November, when men say that they are opposed to violence to women. Units of the army, including at Townsville, Canungra and Canberra are all involved with promoting White Ribbon Day this year.

Monday, 12 October 2009

High Court gives special leave in relocation case

Justices Hayne and Kiefel have given special leave to the mother to appeal to the High Court against the refusal of the Full Court of the Family Court to overturn a decision of Federal Magistrate Coker which provided that she and the father were to have equal time of their daughter. Federal Magistrate Coker's decision was to reject the mother's application to return to Sydney with the child. The result was that the mother was unable to work and lived in Mt Isa in a caravan.

Caroline Overington in the Australian was particularly critical of the earlier decisions.

Special leave is required to appeal to the High Court: appeals are not a matter of right. Special leave is rarely given.

Justice Hayne commented that the case seemed to be one of general application as to what was meant by "reasonable practicability" contained in s.65DAA(5) of the Family Law Act, the section that deals with shared care. His Honour commented:

But a complaint made in this matter is that the Act required consideration of
reasonable practicability in circumstances where the parents of the child,
putting it as neutrally as I can, appeared likely to be living at a distance,
and reasonable practicability then injects questions about, does that mean
somebody has to move, or does it mean nobody has to move? Where does all that
take us? It seems at least at first blush to present issues of a kind that this
Court should look at...


Justice Hayne stated that the mother's case at first dealt with "reasonable practicality" and:

There are then some related issues about what might be called the process of
assessment, namely whether best interests is a matter to be considered separately from reasonable practicability, whether best interests are matters that fall within section 60CC(3)(m), any other fact or circumstance, but the central issue that [the wife] would seek to tender is this issue concerning the application of reasonable practicability.


His Honour further stated in response to the counsel for the father:

I suspect, but do not know, that that comes close to a central part of the
argument that is advanced against you, that practicability does encompass such
issues [ that the wife has to remain in Mt Isa and is on welfare] and that
it is that kind of issue which is presented by the legislation.


The mother argued that s.65DAA(1)(b), which required a consideration of whether spending equal time was reasonably practical, was a mandatory provision, which the Federal Magistrate was required but did not adequately consider.

High Court rejects special leave: Gomes v Gomes

Justices Gummow and Kiefel of the High Court have rejected the wife's application for spedical leave to appeal the decision of the Full Court of the Family Court in Gomes v. Gomes. Mushin J had found that there was a distinct lack of credibility of both the wife and the husband.

The wife, who received 65% of the property pool, appealed to the Full Court. Although managing to have some variation of Mushin J's orders, she was dissatsified and applied to the High Court for special leave to appeal to that court. It is not possible to appeal to the High Court as of right: special leave to appeal is required. It is granted sparingly.

Justices Gummow and Kiefel said that the application for leave to appeal:

fails to identify a question of law that would justify the grant of special
leave. The applicant's written case is aimed at the treatment of various aspects
of the case by the Full Court and the primary judge, without directing attention
to any specific legal error or a question of principle arising out of the Full
Court's decision. These complaints are replicated, in substance, in the
applicant's draft notice of appeal. The applicant does not enjoy sufficient
prospects of success in this Court to warrant a grant of special leave.

Sunday, 11 October 2009

Brisbane LGBTI legal service meet & greet to be held on 4 Nov for interested lawyers: Australian Gay and Lesbian Law Blog http://ow.ly/tMo6

UK Litigation funder to provide no win no fee funding in property settlement case

The UK Mail Online is reporting that an English commercial litigation funder, in a first, is to provide no win no fee funding, similar to personal injuries matters, to a wife of a tycoon who alleges that he has lost his GBP400 million fortune.

I am not aware of any litigation funder in Australia who is prepared to do this. Some provide funding, but with interest to be paid on the borrowed funds. Some family law solicitors are willing to defer their fees until property settlement is achieved, but no one that I am aware of in family law in Australia is prepared to say that they will wait on a no win no fee basis.
Uruguay permits same sex adoptions, already permits civil unions: Aust Gay and Lesbian Law Blog http://ow.ly/tMnU
Obama pledges to scrap don't ask, don't tell http://ow.ly/tN8L
Family Court- notice to practitioners- Justice Murphy's list: Australian Divorce Blog http://ow.ly/tMlI
UK: Transgender woman wrongly held in male prison- to be sent to women's prison: Australian Gay and Lesbian Law Blog http://ow.ly/tMnt
US man obtains $10million from insurer as health insurance wrongly cancelled: Aust Gay and Lesbian Law Blog http://ow.ly/tMn9
Human rights commission recommends a human rights act, and audit of all federal legislation: http://ow.ly/tMlx

Family Court new listing procedures in Justice Murphy's list

NEW TRIAL LISTING SYSTEM – MURPHY J
1.
I intend implementing a new trial listing system for matters within my docket.
2.
I am doing so having consulted with a number of members of the profession
and other judges, including judges in other States.
3.
Despite the increasing complexity of matters being dealt with by this court,
matters continue to settle at, or very close to, “the door of the court” or which
adjourn. Under the current system, that has the potential to result in “judicial
downtime”. That “downtime” is almost always used for judgment writing.
But, as a result, this fundamentally important task occurs unpredictably and is
dependant upon the uncertainty of cases settling. This situation is not
desirable; nor is allocated hearing time not being utilised for hearings.
4.
There can be little doubt that the most efficient means of dealing with this
problem is overlisting within a running list with separate, pre-allocated
judgment writing time.
5.
That, though, creates other difficulties for parties, practitioners and witnesses,
not the least of which is uncertainty. Also, such a system can, as it seems to
me, only work efficiently when applied registry-wide so that judges whose
cases settle or adjourn can take up other cases awaiting trial within the
running list.
6.
My new listing system attempts to strike a balance between, on the one hand,
minimising inconvenience to parties, practitioners and witness and, on the
other hand, maximising throughput of cases.
7.
The proposed new listing system will apply only to matters within my
docket.
8.
It will commence with trials to be listed for final hearing as and from 1
February, 2010. It will continue until further notice.
9.
The system will apply to all trials listed for final hearing irrespective of the
nature of the application/s.
OVERVIEW
10.
My work will be divided into four-week cycles commencing 1 February, 2010.
During the first three weeks of each cycle, I will sit only in trials. In the fourth
week of each cycle I will sit in all other judicial work, viz: Magellan Directions;
duty lists (if any); first days; continuation days; short cause hearings etc.
11.
Leave, Full Court commitments, necessary commitments to other Registries
and the like will be accommodated as and when each falls within each four-
week cycle.
12.
Trials will be allocated into each four-week cycle at a callover. I will monitor
the need for callovers by reference to the number of matters in my docket that
are ready in all respects for a hearing. The “lead time” between callover and
the trial listing will attempt to balance not only the number of matters
awaiting trial, but also to facilitate parties having their trial counsel of choice.
13.
Similarly, the number of four-week cycles to which trials will be listed will
vary, but will, it is anticipated, usually be two. The first callover will be held
at 9.00am on 12 October, 2009. All parties and practitioners required at that
callover will be (or have been) notified. Cases at that callover will be listed
into two four-week cycles, commencing 1 February, 2010.
14.
Trials will be listed, one following the other, according to their allocated
estimate of length with the addition of an extra day (or part of a day). That
extra day (or part of the day) will be used to either deliver the judgment or to
write a draft of a judgment to be delivered on a later date. Accordingly, it
may not be uncommon for trials to commence, for example, on a Thursday or
Friday, and it may be that, in some cases, a trial will commence at 2.15pm.
15.
At each callover, once all available trial days are allocated, the additional
matters will be placed on a reserves list. The purpose is to have matters ready
to proceed, necessarily on short notice, in the event that an allocated trial
settles or adjourns.

16.
The list is voluntary – that is, no trial will be “forced” on. But, it is vital to note
that “reserve lists” have been tried in the past and have failed utterly. Parties
and practitioners will be asked to indicate whether their case is suitable or not
for listing on that reserve list, bearing in mind that any such trial will be called
on with short notice. Shorter matters, matters where there are issues of law or
discrete issues, and cases where parties and witnesses can be marshalled at
relatively short notice might be considered suitable. Obviously, as much
notice as possible will be given. A genuine attempt will be made to give
matters on the reserve list but not reached priority at the next callover.
17.
In large measure, avoiding a future overlisting / running list system will
depend on the success of the reserve trials list.
18.
Cases in the Magellan List are readied for trial by the issue of a trial notice by
Registrar Turner and allocated as evenly as possible to all trial judges within
the registry. Those allocated to me will be included in my callovers.
19.
It is highly desirable that the legal practitioners (if any) who will actually
conduct the trial be present at the callover. In any event, those who attend the
callover MUST be fully conversant with all issues relevant to the matter and
the prospective conduct of the trial.
20.
Not later than 48 hours prior to the callover, all practitioners or self
represented parties involved will be expected to have completed the attached
Callover Document and to have e-mailed it my associate (and
contemporaneously to the other side/s) at brisbane@familycourt.gov.au .

GETTING TO A CALLOVER
21.
I will manage all cases in my docket in the usual way. (See generally Chapters
12 and 16 Family Law Rules 2004).
22.
My usual practice is to assume that legal practitioners do not need to be
“spoon fed” directions for trial.
A legal practitioner’s professional responsibilities include readying the matter for trial in an intelligent, appropriate and cost-effective way consistent with the needs of the particular
case.
23.
Accordingly, I frequently (but not always) make orders that assume a process
whereby directions will be made by consent. An example of the order made is
attached. At a point when directions for final hearing are contemplated as
appropriate, an assessment will be made by the parties, together with me, of
the likely approximate date of hearing so that directions can be framed
accordingly.
24.
At that time, assuming an order is made in terms similar to that contemplated
above, the orders will include an order that the parties shall appear at a
callover at a time and date to be advised and also an order for the parties to
file by e-mail with my associate the Callover Document not later than 48 hours
prior to that callover. Failure to do so will likely result in the matter losing its
place and being adjourned to a Registrar for directions.
25.
An order will also be made that a compliance check will be held by a Registrar
at a date and time to be advised (approximately four weeks prior to the
allocated trial dates) and, unless considered inappropriate by the Registrar, by
telephone.
26.
If at the compliance check the Registrar is satisfied that the matter is ready for
trial, the Registrar will notify me and the parties in writing of that fact.
27.
In the event that the Registrar has concerns about a matter’s readiness for trial,
those concerns will be raised with one or both parties, as the case may be, with
a view to them being remedied.
Assuming proper professional responsibilities are being exercised, attention is being given to the matters raised, and appropriate co-operation is being exhibited, the process will be
facilitative, not punitive.
28.
If the Registrar has serious concerns that the matter cannot be ready for final
hearing on the allocated dates, those concerns will be raised with the parties
with a view to them being remedied. They will also, in that case, be raised
with me.
29.
If the Registrar, after consultation with the parties, remains of the view that
the matter cannot be readied for final hearing, the matter will (irrespective of
the views of the parties) be listed for mention before me at the earliest
opportunity with a view to vacating the trial dates.
30.
I am hopeful that this system will assist in the efficient use of judicial time and
facilitate a greater “throughput” of hearings.
31.
I seek the assistance of the legal profession in implementing it and welcome
considered and constructive feedback in respect of its perceived strengths and
weaknesses.
Murphy J
23.9.09



MATTERS IN THE DOCKET OF JUSTICE MURPHY
SAMPLE DRAFT ORDERS



...IT IS ORDERED THAT:

1. This matter be listed at a callover of matters awaiting trial before Justice Murphy at 9.00am on a date to be advised or [specify date].
2. Upon receiving written notification of the date of the said callover, the parties, or their legal practitioners as the case may be, shall:
(a) confer as soon as reasonably practicable with a view to settling such directions for trial applicable to their matter as are necessary for the efficient disposition of the hearing; and
(b) within 28 days of the said written notification, forward those agreed directions by e-mail, agreed to by all parties, to the associate to Justice Murphy at brisbane@familycourt.gov.au.
3. The said directions shall include the following:
(a) Not later than 2 days prior to [the callover date] each of the parties shall file, by forwarding same by e-mail to the associate to Justice Murphy at brisbane@familycourt.gov.au (and contemporaneously to the other side/s), a duly completed and signed “Callover Document” (a copy of which is annexed to these orders);
(b) Not later than 14 days prior to the first day of trial to be allocated at the said callover, the parties shall file:
(i) A joint chronology of relevant events and, in the event that a relevant date is not agreed, the chronology shall be in the form “husband alleges”; “wife alleges” or as the case may be;
(ii) In a case in which an order pursuant to s 79 of the Act is sought, an updated joint agreed balance sheet which shall indicate any areas of disagreement and reason/s for same;
(iii) A minute of the precise orders sought. In the event that those orders are in accordance with a document previously filed, that minute shall be in the form: “As contained in [insert document] filed on [insert date of filing];
(iv) A short outline of argument outlining the relevant issues of fact and law and the findings sought in respect of same said to justify the orders sought in the said minute;
(v) A list of documents to be relied upon at the trial.
4. A compliance check shall be held by a Registrar at a date and time to be advised, approximately four weeks prior to the allocated dates of trial, and, unless the Registrar shall advise in writing otherwise, such compliance check shall be by telephone.
5. In the event that the said directions are considered appropriate, an order by consent shall issue in chambers incorporating those agreed directions.
FAMILY COURT OF AUSTRALIA

MATTERS IN THE DOCKET OF JUSTICE MURPHY
CALLOVER DOCUMENT

Filed by:
Applicant Respondent ICL Other party
Matter:

File no.

Callover date:

Estimated no of days:


Practitioner conducting trial (if any)
Name


Family Consultant
Name
Unavailable from (date)
to (end date)




Expert witnesses (attach additional page if necessary)
Name
Area of expertise
Unavailable from (date)
to (end date)













Lay witnesses (attach additional page if necessary)
Name
Purpose of evidence
Unavailable from (date)
to (end date)













CERTIFICATION

I, _______________________________, legal practitioner, represent the Applicant Respondent in this matter before Justice Murphy and HEREBY CERTIFY TO THE COURT THAT:

1. I am fully conversant with the issues in these proceedings.

2. I have complied with Rule 19.04 of the Family Law Rules 2004 with respect to notification of costs in so far as it applies to the other side and will comply with the Rule in so far as it applies to notification to the Court at the callover. My estimate of costs so provided includes the estimated costs of trial.

3. I have conferred with the legal practitioner named in this document who is conducting the trial on behalf of my client and, after such consultation:
(a) my best estimate of the likely length of this trial is as provided earlier in this document;
(b) in my professional judgment, this matter is ready in all respects to proceed to trial.

4. I will advise the court in writing immediately I become aware of any issue, whether within my control or not, that might result in this trial not being ready to proceed on its allotted dates or if the matter may resolve or of any matters likely to result in the trial proceeding for a shorter or longer time than its current estimate.

Signed: ______________________________ Date: ___________________
Legal Practitioner

Family Court- notice to legal practitioners Murphy J's list

Justice Murphy of the Brisbane registry of the Family Court has issued the following notice:



NOTICE TO LEGAL PRACTITIONERS
COMMUNICATING WITH JUDGES - MATTERS IN MURPHY J’S DOCKET
Now that the docket system is in place in respect of all matters, it is timely – particularly given that many litigants appear for themselves – to remind all parties and practitioners of a number of matters relevant to communications with me when I am allocated as the docket Judge for a matter.

I seek to encourage intelligent and common sense management of cases within my dockets. As a result, it is recognised that formal and procedural matters can be dealt with by informal processes with significant savings in court time and expense to the parties. For that reason, I frequently order that consent minutes, consent adjournments and the like can be the subject of joint e-mail communication with my associate.

However, it is vital that all parties and practitioners understand the basis upon which contact with me (via my associate) about substantive matters should – or should not - occur.
It is never appropriate for any party, or any legal practitioner, to attempt to contact me about a matter for which I am responsible.
It is not usually appropriate for any party, or any legal practitioner, to contact my associate about a matter for which I am responsible unless all parties are in agreement that this should occur and then only for good reason.

Those instances should be uncommon.

Should it become necessary to contact me (through my associate) about any substantive issue relating to a matter, I expect that:

The party and/or practitioner seeking to contact my associate will first contact each other party or practitioner involved in the case. Any necessary communication will thereafter be joint and in writing.

In the event that genuine urgency, or other good reason, is said to prevent a joint written
communication occurring, the person seeking to contact my associate should first seek, in writing, consent from each other party/practitioner to contact being made and provide full details of the reason for, and nature of, the intended communication.

In cases of genuine urgency or in the event that consent is not forthcoming within a reasonable period of time, contact with my associate should be made, in writing, and – contemporaneously - a copy of that communication forwarded to each other party / practitioner.

A party should not seek to have oral communication with my associate about any substantive issue save in appropriate, extraordinary circumstances.

In all cases, except in appropriate, extraordinary circumstances, all communications from my associate to parties and/or practitioners about a matter will occur in writing and be sent contemporaneously to all parties / practitioners.

Case managers and docket registrars will be reminded of these arrangements and, similarly, those taking calls at the National Enquiry Centre.

Human Rights Commission recommends Human Rights Act

Frank Brennan's Human Rights Commission enquiry into how Australia responds to human rights has recommended that there be a human rights culture in Australia, starting with schools, and that there be a Commonwealth Human Rights Act. It has also recommended that there be a full scale audit of Commonwealth legislation, irrespective of whether a Human Rights Act is enacted, to see if the legislation complies with international human rights treaties signed by Australia.

From a family law perspective, the report also recommends a right to marry, which will mean, if a Human Rights Act is enacted, that sooner or later, there will be a legal challenge to the Marriage Act which restricts marriage to heterosexual couples only.

Here is the full list of recommendations:


Recommendation 1
The Committee recommends that education be the highest priority for improving and promoting human rights in Australia.

Recommendation 2
The Committee recommends as follows:
that the Federal Government develop a national plan to implement a comprehensive framework, supported by specific programs, of education in human rights and responsibilities in schools, universities, the public sector and the community generally that human rights education be based on Australia’s international human rights obligations, as well as those that have been implemented domestically (whether in a Human Rights Act or otherwise), and the mechanisms for enforcement of those rights that the Federal Government publish a readily comprehensible list of Australian rights and responsibilities that can be translated into various community languages that any education and awareness campaign incorporate the experiences of Indigenous Australians—with a particular focus on recent and historical examples of human rights concerns that the Federal Government collaborate with non-government organisations and the private sector in developing and implementing its national plan for human rights education.


Recommendation 3
The Committee recommends that its proposed readily comprehensible list of Australian rights and responsibilities include commitments such as the responsibility:

  • to respect the rights of others
  • to support parliamentary democracy and the rule of law
  • to uphold and obey the laws of Australia
  • to serve on a jury when required
  • to vote and to ensure to the best of our ability that our vote is informed
  • to show respect for diversity and the equal worth, dignity and freedom of others
  • to promote peaceful means for the resolution of conflict and just outcomes
  • to acknowledge and respect the special place of our Indigenous people and acknowledge the need to redress their disadvantage
  • to promote and protect the rights of the vulnerable
  • to play an active role in monitoring the extent to which governments are protecting the rights of the most vulnerable
  • to ensure that we are attentive to the needs of our fellow human beings and contribute according to our means.

Human rights in policy and legislation
Recommendation 4

The Committee recommends as follows:
that the Federal Government conduct an audit of all federal legislation, policies and practices to determine their compliance with Australia’s international human rights obligations, regardless of whether a federal Human Rights Act is introduced. The government should then amend legislation, policies and practices as required, so that they become compliant
that, in the conduct of the audit, the Federal Government give priority to the following areas:

  • anti-discrimination legislation, policies and practices
  • national security legislation, policies and practices
  • immigration legislation, policies and practices
  • policies and practices of Australian agencies that could result in Australians being denied their human rights when outside Australia’s jurisdiction.

Recommendation 5
The Committee recommends that the Federal Government immediately compile an interim list of rights for protection and promotion, regardless of whether a Human Rights Act is introduced. The list should include rights from the International Covenant on Civil and Political Rights as well as the following rights from the International Covenant on Economic, Social and Cultural Rights that were most often raised during the Consultation:

  • the right to an adequate standard of living (including food, clothing and housing);
  • the right to the highest attainable standard of health;
  • the right to education.


The government should replace the interim list of rights with a definitive list of Australia’s international human rights obligations within two years of the publication of the interim list.


Recommendation 6
The Committee recommends that a statement of compatibility be required for all Bills introduced into the Federal Parliament, all Bills before the third reading (so as to allow scrutiny of amendments) and legislative instruments as defined by the Legislative Instruments Act 2003 (Cth). The statement should assess the law’s compatibility with the proposed interim list of rights and, later, the definitive list of Australia’s human rights obligations.

Recommendation 7
The Committee recommends that a Joint Committee on Human Rights be established to review all Bills and relevant legislative instruments for compliance with the interim list of rights and, later, the definitive list of Australia’s human rights obligations.


Human rights in practice
Recommendation 8

The Committee recommends as follows:

  • that the Federal Government develop a whole-of-government framework for ensuring that human rights—based either on Australia’s international obligations or on a federal Human Rights Act, or both—are better integrated into public sector policy and legislative development, decision making, service delivery, and practice more generally
  • that the Federal Government nominate a Minister responsible for implementation and oversight of the framework and for annual reporting to parliament on the operation of the framework.


Recommendation 9
The Committee recommends that the Federal Government incorporate human rights compliance in the Australian Public Service Values and Code of Conduct.


Recommendation 10
The Committee recommends that the Federal Government require federal departments and agencies to develop human rights action plans and report on human rights compliance in their annual reports.


Recommendation 11
The Committee recommends that the Administrative Decisions Judicial Review Act 1975 (Cth) be amended in such a way as to make the definitive list of Australia’s international human rights obligations a relevant consideration in government decision making.


Recommendation 12
The Committee recommends that, in the absence of a federal Human Rights Act, the Acts Interpretation Act 1901 (Cth) be amended to require that, as far as it is possible to do so consistently with the legislation’s purpose, all federal legislation is to be interpreted consistently with the interim list of rights and, later, the definitive list of Australia’s human rights obligations.


Recommendation 13
The Committee 3recommends that the functions of the Australian Human Rights Commission be augmented to include the following:
to expand the definition of ‘human rights’ in the Australian Human Rights Commission Act 1986 (Cth) to include the following instruments:
the International Covenant on Civil and Political Rights
the International Covenant on Economic, Social and Cultural Rights
the Convention on the Elimination of All Forms of Racial Discrimination
the Convention on the Elimination of All Forms of Discrimination against Women
the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment
the Convention on the Rights of the Child
the Convention on the Rights of Persons with Disabilities
the Declaration on the Rights of Indigenous Peoples.
to examine any Bill at the request of the federal Attorney-General or the proposed Joint Committee on Human Rights for the purpose of ascertaining if any provision in the Bill is inconsistent with or contrary to any human right in the interim list and, later, the definitive list of Australia’s human rights obligations
to inquire into any act or practice of a federal public authority or other entity performing a public function under federal law that might be inconsistent with or contrary to any obligation in the interim list of human rights and, later, the definitive list of Australia’s human rights obligations
to provide the same remedies for complaints of human rights violations and International Labour Organization Convention 111 complaints as for unlawful discrimination, permitting determination by a court when settlement cannot be reached by conciliation—except in relation to complaints of violations of economic, social and cultural rights, in which case there should be no scope to bring court proceedings where conciliation has failed.


The Federal Government should be required to table a response to any Australian Human Rights Commission report on complaints within six months of receiving that report.


Recommendation 14
The Committee recommends that the Federal Government develop and implement a framework for improving access to justice, in consultation with the legal profession and the non-government sector.


Human rights and Indigenous Australians
Recommendation 15

The Committee recommends that a ‘statement of impact on Aboriginal and Torres Strait Islander peoples’ be provided to the Federal Parliament when the intent is to legislate exclusively for those peoples, to suspend the Racial Discrimination Act 1975 (Cth) or to institute a special measure. The statement should explain the object, purpose and proportionality of the legislation and detail the processes of consultation and the attempts made to obtain informed consent from those concerned.


Recommendation 16
The Committee recommends that, in partnership with Indigenous communities, the Federal Government develop and implement a framework for self-determination, outlining consultation protocols, roles and responsibilities (so that the communities have meaningful control over their affairs) and strategies for increasing Indigenous Australians’ participation in the institutions of democratic government.


A Human Rights Act
Recommendation 17

The Committee recommends that the Federal Government operate on the assumption that, unless it has entered a formal reservation in relation to a particular right, any right listed in the following seven international human rights treaties should be protected and promoted:
the International Covenant on Civil and Political Rights
the International Covenant on Economic, Social and Cultural Rights
the Convention on the Elimination of All Forms of Racial Discrimination
the Convention on the Elimination of All Forms of Discrimination against Women
the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment
the Convention on the Rights of the Child
the Convention on the Rights of Persons with Disabilities.

Recommendation 18
The Committee recommends that Australia adopt a federal Human Rights Act.


Recommendation 19
The Committee recommends that any federal Human Rights Act be based on the ‘dialogue’ model.


Recommendation 20
The Committee recommends that any federal Human Rights Act protect the rights of human beings only and that the obligation to act in accordance with those rights be imposed only on federal public authorities—including federal Ministers, federal officials, entities established by federal law and performing public functions, and other entities performing public functions under federal law or on behalf of another federal public authority.


Recommendation 21
The Committee recommends that any federal Human Rights Act protect the rights of all people in Australia and all people who are overseas but subject to Australian jurisdiction.


Recommendation 22
The Committee recommends that, if economic and social rights are listed in a federal Human Rights Act, those rights not be justiciable and that complaints be heard by the Australian Human Rights Commission. Priority should be given to the following:
the right to an adequate standard of living—including adequate food, clothing and housing
the right to the enjoyment of the highest attainable standard of physical and mental health
the right to education.


Recommendation 23
The Committee recommends that a limitation clause for derogable civil and political rights, similar to that contained in the Australian Capital Territory and Victorian human rights legislation, be included in any federal Human Rights Act.


Recommendation 24
The Committee recommends that the following non-derogable civil and political rights be included in any federal Human Rights Act, without limitation:

  • The right to life. Every person has the right to life. No one shall be arbitrarily deprived of life. The death penalty may not be imposed for any offence.
  • Protection from torture and cruel, inhuman or degrading treatment. A person must not be
    subjected to torture or treated or punished in a cruel, inhuman or degrading way
    or subjected to medical or scientific experimentation without his or her full, free and informed consent.
  • Freedom from slavery or servitude. A person must not be held in slavery or servitude.
    Retrospective criminal laws.
  • A person must not be found guilty of a criminal offence as a result of conduct that was not a criminal offence when the conduct was engaged in.
  • A penalty imposed on a person for a criminal offence must not be greater than the penalty that applied to the offence when it was committed.
  • If a penalty for an offence is reduced after a person committed the offence but before the person is sentenced for that offence, the reduced penalty should be imposed.
  • Nothing in the foregoing affects the trial or punishment of any person for any act or omission that was a criminal offence under international law at the time the act or omission occurred.
  • Freedom from imprisonment for inability to fulfil a contractual obligation. A person must not be imprisoned solely on the ground of inability to fulfil a contractual obligation.
  • Freedom from coercion or restraint in relation to religion and belief. No person will be subject to coercion that would impair his or her freedom to have or to adopt a religion or belief of his or her choice.
  • The right to a fair trial should also not be limited.

Recommendation 25
The Committee recommends that the following additional civil and political rights be included in any federal Human Rights Act:
the right to freedom from forced work
the right to freedom of movement
the right to privacy and reputation
the right to vote
the right to freedom of thought, conscience and belief
freedom to manifest one’s religion or beliefs
the right to freedom of expression
the right to peaceful assembly
the right to freedom of association
the right to marry and found a family
the right of children to be protected by family, society and the State
the right to take part in public life
the right to property
the right to liberty and security of person
the right to humane treatment when deprived of one’s liberty
the right to due process in criminal proceedings
the right not to be tried or punished more than once
the right to be compensated for wrongful conviction.


Recommendation 26
The Committee recommends that any federal Human Rights Act require statements of compatibility to be tabled for all Bills introduced into the Federal Parliament, all Bills before the third reading (so as to allow scrutiny of amendments) and legislative instruments as defined by the Legislative Instruments Act 2003.


Recommendation 27
The Committee recommends that any federal Human Rights Act empower the proposed Joint Committee on Human Rights to review all Bills and the relevant legislative instruments for compliance with the human rights expressed in the Act.


Recommendation 28
The Committee recommends that any federal Human Rights Act contain an interpretative provision that is more restrictive than the UK provision and that requires federal legislation to be interpreted in a way that is compatible with the human rights expressed in the Act and consistent with parliament’s purpose in enacting the legislation. The interpretative provision should not apply in relation to economic, social and cultural rights.

Recommendation 29
The Committee recommends that any federal Human Rights Act extend only to the High Court the power to make a declaration of incompatibility.
(Should this recommendation prove impractical, the Committee recommends alternatively that any federal Human Rights Act not extend to courts the formal power to make a declaration of incompatibility.)


Recommendation 30
The Committee recommends that any federal Human Rights Act require Commonwealth public authorities to act in a manner compatible with human rights (other than economic and social rights) and to give proper consideration to relevant human rights (including economic and social rights) when making decisions.


Recommendation 31
The Committee recommends that under any federal Human Rights Act an individual be able to institute an independent cause of action against a federal public authority for breach of human rights and that a court be able to provide the usual suite of remedies—including damages, as is the case under the UK Human Rights Act. The independent cause of action should not be available in relation to economic, social and cultural rights.

Tuesday, 6 October 2009

Should doctors and nurses screen for domestic violence? UK researchers say no

UK researchers, published in the British Medical Journal asked the question about whether health professionals should screen for domestic violence. Screening is compulsory, for example in parts of the US. Their conclusion was that doctors and nurses should not screen.

The researchers reviewed a number of research papers about the topic of whether screening increases the chances of detecting whether women have been subject to domestic violence.

Their conclusions:
  • Screening by health professionals increases the identification of domestic violence, and many women do not object to being asked
  • Up to 2/3's of doctors and half of Emergency Department nurses surveyed do not agree with screening of women in healthcare settings
  • Insufficient evidence exists to show whether screening and intervention can lead to improved outcomes for women identified as abused
  • Implementation of screening programmes in healthcare settings is not justified by current evidence

Monday, 5 October 2009

Do family report writers/custody evaluators ignore science?

When I attended the Queensland Family Law Residential recently, basically a bunch of family lawyers, social workers and the like getting together at a conference, one of the most challenging presentations was by Stephen Ralph, a psychologist from Darwin. His presentation, "Family Violence and Children: Considering the Best Interests of Children" challenged the accepted view that family report writers, or custody evaluators as they are known in the US, get it right.

These experts are engaged to make recommendations to the court about what is in the best interests of children.

Mr Ralph, citing research, noted the following:
  • assessments in family reports are mostly reliant on interviews and observations
  • are based on the untested information supplied by the parties
  • seldom include reliable collaborative data
  • are conducted in a narrow window of time, ie a snapshot
  • are often reliant on logic and reason v. expert knowledge
  • in the making of recommendations, the report writers may be ethically and empirically unsound, particularly when the report writers do not acknowledge the limitations in their knowledge and methods

Mr Ralph cited research by well-known researchers Joan Kelly and Janet Johnston who stated in 2005:

Our own observations and reviews of evaluations over several decades lead us
to the same conclusion- that custody evaluators are more likely to make inferences and recommendations from unsubstantiated theory, personal values and experiences, and cultural and personal biases.

This view is reflected in a recent article in Newsweek "Why psychologists reject science", in which the author, Sharon Begley states:

When confronted with evidence that treatments they offer are not supported by
science, clinicians argue that they know better than some study what works. In
surveys, they admit they value personal experience over research evidence...

which, if accurate for family report writers here, is frightening stuff for those who have an "expert" write a report about their family, which may quite profound implications for their family, but who decides to ignore the research in favour of their own biases and opinions.

Sunday, 4 October 2009

Child Support Agency gives out mental health tips! Australian Divorce Blog http://ow.ly/sz1d

CSA gives out mental health tips

Mental health tips for separated and separating parents
2/10/2009

Mental Health Week (4-10 October) is an opportunity to increase awareness of important emotional wellbeing issues parents face if their family breaks up. Mental Health Week (4-10 October) is an opportunity to increase awareness of important emotional wellbeing issues parents face if their family breaks up.

Assistant Secretary for Parent Support at the Child Support Agency, Katrina Baird, said separation was a common experience for many families. Gaining access to quality resources and support services early could make a big difference to how separated families fared in the long term.

"In many cases, seeking support early can reduce conflict and result in positive outcomes for everyone involved - parents as well as children," Ms Baird said.

"There is a wide variety of government and support services available for newly separating families and the Child Support Agency's advice and referrals can make it easier for separated families to find crucial support services as soon as possible.

"Each month the CSA directly connects about 25-30 parents who are distressed and wanting help to deal with the emotional issues arising from separation to trained counsellors at specialist parent support service, Parentline ACT.

"According to the Australian Government report*, Families in Australia: 2008, one in five families with children under the age of 18 are single or separated. While around 7 per cent of all families with children aged under 18 live in step or blended families.

"There is life after marriage breakdown. It helps to ask for help early. If you can get to a point where you can look outside your own needs, the children can and should benefit. I have always said to my children that I left the dwelling, I never left the children. It is an important message they need to know. It is because of this and being honest with them that our relationship remains strong." ­- Separated dad

The Department of Human Services recently launched a new product: My family is separating, what now? http://familyseparation.humanservices.gov.au. The new website simplifies the process of trawling through multiple websites looking for information on what to do when going through family separation.

For further information about the Child Support Agency support services go to www.csa.gov.au and follow the links to the Community Services Directory.* Families in Australia: 2008 - published by the Department of the Prime Minister and Cabinet http://www.pmc.gov.au/publications/families/

Mental Health tips for newly separated parents:

1. Be informed There are a range of child support options and support services for single and separated families. If you are newly separated, or thinking about separating, call the Child Support Agency on 131 272 or visit www.csa.gov.au.

2. Ask for support early and develop a workable relationship Parents are more likely to develop a workable relationship with their ex if they seek support early. Support services available for separated families include:

These organisations provide counselling, family mediation, anger management workshops, parenting plans, agreements, financial counselling and more.

3. Keep conflict away from your kids Discuss separation with your kids in a positive way. There are a number of resources available to help support kids through separation. Family Relationships Australia has a children's book Question and answers about separation for children which can be downloaded from www.familyrelationships.gov.au

Kids can call the Kids Help Line 1800 55 1800 for free confidential anonymous support.

Lifeline 13 11 14.

4. Seek additional advice if necessary Parents can find out about legal, financial and community support services in their area by visiting CSA's new website http://familyseparation.humanservices.gov.au or the Community Services Directory at http://csd.csa.gov.au.

Support services include:

  • LawAccess Hotline on 1300 888 529
  • Mensline on 1300 789 978
  • National Domestic Violence Line 1800 200 526
  • Centrelink Social Workers offer confidential support for individuals experiencing family violence 13 61 50

5. Try managing your child support privately. Private Collect is the most popular option for CSA customers because it is flexible and requires little CSA involvement. Separated parents can register with the CSA, use the child support assessment to determine the amount of child support to be paid but manage the actual transfer of child support themselves. CSA research has shown parents on Private Collect are more likely to have successful workable relationships with their ex, post- separation.

6. Keep your information current· Changes in your circumstances may affect your child support assessment. · Lodge tax returns on time.· Update personal information such as income and employment status. · Notify the CSA of any changes in living arrangements, care, new children or private payments (if on CSA Collect).

7. Take charge Call 131 272 between 8.30am and 4.45pm Monday to Friday (except public holidays) if you have any questions or concerns regarding child support.

Source: CSA Media release

NT government gives $245,000 to strong men's council: Australian Divorce Blog http://ow.ly/syYU

NT government gives $245,000 to strong men's council

NT Minister for Children and Families Malarndirri McCarthy announced $245 000 in funding for the NT Strong Men’s Council as apart of the NO MORE Domestic Violence Campaign.

Announcing the funding at TIO Stadium Marrara ahead of the Defence Jobs AFL Carnival this weekend, Minister McCarthy spoke of the NT Government’s commitment to ending family violence.

“The NT Government is committed to supporting families and communities tackle domestic violence,” Ms McCarthy said. “The NT Government has introduced legislation to make it mandatory for all adults to report serious domestic assaults.

“The NT Strong Men’s Council is led by Charlie King who has campaigned strongly against domestic violence in our community and is facilitated by Catholic Care NT.

“The group is made up of 16 representatives from communities around the Territory. “This additional funding will provide the opportunity for the group to meet more regularly and develop action plans on issues surrounding domestic violence.

“Our children deserve a future without violence and this can only be achieved with strong men and women spreading the message together that domestic violence will not be tolerated. “The No More campaign has seen men across the Territory link arms and show their commitment to saying no to domestic violence.

“This will continue this weekend with teams encouraged to link arms before the Defence Jobs Umpire Carnival matches to show their support for the campaign.” The NT Government has committed $15 million over three years to expand domestic violence prevention and intervention services.

Source: Ministerial Media Release
New LGBTI legal service in Brisbane is one step closer to fruition: Aust Gay and Lesbian Law Blog http://ow.ly/syY1

Friday, 2 October 2009

ACT Supreme Ct: lawyers can be rude to other side if need to do so to act for client : Australian Divorce Blog http://ow.ly/scHa
Family Court: open ended spousal maintenance orders can be made, don't need automatic limit : Australian Divorce Blog http://ow.ly/scEB

Family Court says long term spousal maintenance orders can be made

When do periodic spousal maintenance orders end? Can a court make an open ended order, so that seemingly spousal maintenance can go on forever? On Tuesday the Full Court of the Family Court made a major pronouncement on the issue of long term spousal maintenance orders. The case is currently unreported and has not yet appeared on Austlii.

The husband had appealed to the Full Court of the Family Court from a Federal Magistrate's decision to make an open ended spousal maintenance order, in circumstances where the wife was a university student. The husband was unsuccessful on appeal.

The Full Court held:

A court making a spousal maintenance order often has a choice between, on the
one hand, leaving the order to operate for an indefinite period, knowing that s.83
of the Act
provides for variation if circumstances so change that variation
is justified or, on the other hand, fixing a date of cessation, which often
involves a prediction, albeit on the balance of probabilities, about future
events. Even if the latter course is chosen, an application to vary by way of
removing or extending the date fixed for cessation, is possible. The major
difference between the choices is simply that in the first instance either party
may be as likely as the other to wish to apply for variation, whereas in the
second instance, only the payee is likely to want a variation and if so, must
seek it.


Disclosure: Harrington Family Lawyers acted for the wife.

Duty of lawyers in advocating for clients

As an advocate for clients, family lawyers are often accused of standing on toes, or at times of making unnecessarily provocative statements in letters or court submissions. But how far is too far? If instructed by clients as to appalling things that have happened in a relationship, should a solicitor back off in fear of the professional consequences that might flow if the other side complains?

I am thankful to my friend Eugene White for drawing to my attention a recent case from the ACT where a solicitor, David Landers, had some difficulties in dealing with ACT authorities on behalf of his client, a teacher who wanted to retire and get a payout due to illness.

Because of the significance of this decision, I have set out the judgment in full.

DAVID LANDER v COUNCIL OF THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY
[2009] ACTSC 117 (11 September 2009)


APPEAL – Appeal against finding of the Legal Practitioners Disciplinary Tribunal – appeal upheld – orders of the Tribunal set aside

LEGAL PROFESSION ACT 2006 – unsatisfactory professional conduct – whether non compliance with the Legal Profession (Solicitors) Rules 2006 necessarily results in ‘unsatisfactory professional conduct’ – discourteous, offensive or provocative conduct – relations with other practitioners – relations with third parties – whether practitioners have an obligation of courtesy to third parties – whether the criticisms made were false or without foundation – knowledge of practitioner – reasonable basis – the effect of the Human Rights Act 2004 on the Rules

Legal Profession (Solicitors) Rules 2006 (ACT), R 25
Legal Profession Act 2006 (ACT)
Human Rights Act 2004 (ACT), s 8, s 16, s 28



Clyne v NSW Bar Association (1960) 104 CLR 186
Law Society of New South Wales re Constantine Karageorge Solicitor’s Statutory Committee (15 July 1987)



ON APPEAL FROM THE LEGAL PRACTITIONERS DISCIPLINARY TRIBUNAL


No. SCA 89 of 2008

Judge: Higgins CJ, Gray and Refshauge JJ
Supreme Court of the ACT
Date: 11 September 2009
IN THE SUPREME COURT OF THE )
) No. SCA 89 of 2008
AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE LEGAL PRACTITIONERS DISCIPLINARY TRIBUNAL

BETWEEN: DAVID LANDER

Appellant

AND: COUNCIL OF THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY

Respondent

AND: ATTORNEY GENERAL FOR THE AUSTRALIAN CAPITAL TERRITORY

Intervener




ORDER

Judge: Higgins CJ, Gray and Refshauge JJ
Date: 11 September 2009
Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be upheld with costs.

1. This is an appeal by Mr David Lander (the solicitor) against a finding of the Legal Practitioners Disciplinary Tribunal handed down on 30 July 2008 and of the orders made on 24 September 2008.
2. That decision followed a complaint by Mr Michael Bateman, Director, Human Resources of the ACT Department of Education and Training (the Department) concerning a letter the solicitor had written to the Chief Executive of the Department on 24 October 2006.
3. The solicitor was acting for an officer of the Department in connection with a potential invalidity retirement. The client, Mr Boutsis, was employed as a teacher by the Department, as was the solicitor’s wife.
4. The letter written by the solicitor was in the following terms:
...
CONDUCT OF YOUR AGENCY AND MR BOUTSIS
Your Department has a long history of failing to communicate at all or to communicate substantively and honestly.
This has been documented in hundreds of cases and shows no sign of improvement.
I act for Mr Boutsis. In my brief encounters with officers of your agency, they have been rude, unhelpful, obsessive and compulsive in relation to their own ego and their own self-importance and otherwise unresponsive.
This persists to the present time.
Mr Boutsis has been the subject of a recommendation which your Department has that he be promptly medically retired and despite the fact that your Department has had that report for about six weeks, it has not communicated to Mr Boutsis; or, at his specific request, to his solicitor, this firm, what it is doing about having him medically retired or arranging pre-retirement payment or anything else.
This is consistent as we say with years of malpractice and maladministration by your organisation. It appears that nothing will change that conduct and that the Department bears grudges against people who engage lawyers, particularly competent ones.
We ask that you please immediately summons the people in your case management area and ask them why it is that they have refused to correspond with me in accordance with Mr Boutsis’ directions and requests, refused to provide reports to me, refused to progress his retirement and otherwise behaved in a shamefully non-communicative and disinterested fashion. The practices of people in your case management area are by and large consistent with Mr Boutsis and my experiences and were documented in several Commonwealth AAT proceedings including that of my wife.
My wife remains a teacher in your system and I ask that no recriminations be taken against her because her husband happens to be a solicitor acting for teachers.
Would you please respond to this correspondence, a copy of which is being forwarded to your Minister who seems to mistakenly believe that there is no cause for any intervention or concern with the conduct of your Department.
Thank you,
Yours sincerely
LANDER & CO
David Lander

c.c. Minister
ACT Department of Education, Youth and Family Services
c.c. Client
(- by email-)

5. In a reply dated 7 December 2006, Mr Bateman advised as follows:

Dear Mr Lander
Thank you for your letter of 24 October 2006 to the Chief Executive, Dr Michele Bruniges about processes surrounding the invalidity retirement of Mr Boutsis. Dr Bruniges has asked me to reply to your letter on her behalf.
The issues raised in your letter have been investigated.
The department received the report of Health Services Australia recommending the invalidity retirement for Mr Boutsis in late September 2006. Relevant Comsuper papers were included which allowed the department to prepare a case for Comsuper, seeking approval for invalidity retirement for Mr Boutsis. The department prepared the submission and forwarded this case to Comsuper on 12 October 2006. Approval for invalidity retirement and pre-assessment payments have been received from Comsuper.
Regarding the issue of providing medical reports to you. Mr Boutsis requested an earlier medical report in June 2006 be sent to you or himself. The department replied to Mr Boutsis that such medical reports were only forwarded to the treating medical practitioner and promised to send the report to the treating specialist. This was promptly sent to the doctor that same day.
I am advised that the invalidity retirement of your client, Mr Boutsis is proceeding through Comsuper.
In your letter you have also made a number of general statements about the Department of Education and Training and its staff failing to communicate, being dishonest, rude, unhelpful, obsessive and compulsive, bearing grudges against people who engage lawyers, as well as general allegations of “malpractice” and “maladministration”. Your comments are totally inappropriate and it is impossible to respond in any meaningful way to such generalised and unsubstantiated allegations. Nonetheless, the Department of Education and Training wholly rejects those allegations.
You have also implied that the Department of Education and Training may engage in recriminations towards your wife, who is a teacher in the Territory, an employee of the department, and who has no involvement in Mr Boutsis’ case. The department takes your implication very seriously. To suggest that this department or any of its officers would engage in such behaviour is totally inappropriate and is rejected in the strongest possible terms.
It is my intention to refer your letter to the ACT Law Society for investigation as to whether your conduct has breached the standards expected from a legal practitioner.
Yours sincerely,
Michael Bateman
Director
Human Resources
7 December 2006

6. Mr Bateman’s letter of complaint to the Law Society of 15 December 2006 was in the following terms:
Mr Rob Reis
Professional Standards Director
The Law Society of the Australian Capital Territory
GPO Box 1562
Canberra ACT 2601
Dear Mr Reis
I write to draw your attention (sic) a course of conduct by a legal practitioner in a recent matter, and to ask that you investigate whether that conduct breaches the professional standards expected of a legal practitioner in the Territory.
Mr David Lander, acts on behalf of an employee of the Department of Education and Training in relation to his potential invalidity retirement. On 24 October 2006 Mr Lander wrote a letter to the Chief Executive of the Department of Education and Training about his client’s retirement. A copy of that correspondence is attached to this letter.
The issues raised in the letter were investigated, and a reply sent to Mr Lander.
In his letter, Mr Lander made a number of general statements about the Department of Education and Training and its staff failing to communicate, being dishonest, rude, unhelpful, obsessive and compulsive, bearing grudges against people who engage lawyers; as well as general allegations of “malpractice” and “maladministration”.
Mr Lander also implied that the Department of Education and Training may engage in recriminations against his wife, who is a teacher in the Territory, an employee of the Department, and who has no involvement in the matter addressed in the letter.
In my reply of 7 December 2006 to Mr Lander, I warned him that it was my intention to refer his letter to The Law Society of the Australian Capital Territory for investigation as to whether his conduct has breached the standards expected from a legal practitioner. I have attached a copy of my letter.
Departmental staff have been offended by Mr Lander’s accusations and feel that they have been unfairly targeted by his derogatory and slanderous remarks. Additionally, it is impossible for the Department to respond to any meaningful way to such serious yet non-specific accusations.
I request that you consider the matter, and investigate whether Mr Lander has behaved in a way contrary to that expected of an experienced legal practitioner.
If you require further information about this matter, please contact me.
To ensure the privacy of our employee, Mr Lander’s client, I have obscured identifying references to the client.
Thank you for your assistance in this matter.
Yours sincerely
Michael Bateman
Director
Human Resources
15 December 2006

7. To that letter the solicitor responded by letter dated 8 January 2006:

Dear Mr Reis
RE: COMPLAINT BY MR MICHAEL BATEMAN OF THE ACT DEPARTMENT OF EDUCATION AND TRAINING
I refer to your correspondence of 22 December 2006 received over the Christmas/New Year holiday period.
I respond as follows.
I enclose some documents which will give the context in which I acted for Mr Tim Boutsis. I identify him with his permission and advise that at all times I acted on his instructions.
The documents enclosed are copies of the following:-
· My letter to Ms Anne Thomas of the Department of Education dated 4 May 2006;
· My client’s email to Ms Martin of 25 May 2006;
· My letter to Ms Martin of the Department of 28 July 2006;
· My letter of 8 August 2006 to Ms Elissa Clarke of the ACT Government Solicitor;
· Her response to that and other letters of 11 September 2006;
· Medical report on Mr Timothy Boutsis from Dr Peter Smith, consultant psychiatrist dated 11 September 2006;
· My client’s correspondence to me dated 20 December 2006.
I have the right and the duty as a solicitor to draw on my experience, skill, knowledge and experience when acting for clients. They arise in part because I have had 30 years of experience with ACT Education as a parent, citizen and lawyer. I have acted for many clients, both students and teachers in respect of ACT Education matters.
I am entitled to draw and am expected to draw on those skills, that knowledge and that experience. To seek to isolate a lawyer’s credentials and to seek to tie their hands behind their back as your solicitor recently suggested in advice to the Society’s Council is, with respect, improper.
The ACT Government has legislated The Human Rights Act 2004. Section 16 of that Act reads as follows:-
Freedom of Expression
(1) Everyone has the right to hold opinions without interference.
(2) Everyone has the right to freedom of expression. This right includes the freedom to seek, receive and impart information and ideas of all kinds, regardless of borders, whether orally, in writing or in print, by way of art or in any other way chosen by him or her.
I am a citizen before I am a lawyer. I am ‘a person’ as defined in The Human Rights Act.
The Human Rights Act (sic) overrides any Rule which may be in conflict with a statutorily prescribed freedom of expression.
Nothing I wrote to the Department was other than based on my knowledge, experience, skills and the facts of the case. I ask you to look at the experience of the client and my own in trying to deal with the Department.
I say as a lawyer and a citizen that my experience, knowledge and skills lead me to believe that the ACT Department of Education systemically engages in maladministration, in cover-ups of wrong doings and in abuses of power. Neither the Department nor the Society can or should prevent citizens or lawyers from expressing such views.
We live in an age where lawyers either stand up against the abuses of the State or we succumb to those abuses. It is not the society’s role to censor or to adjudicate on these fundamental freedoms and duties, but to defend them.
Yours sincerely,
LANDER & CO
David Lander

8. There was further correspondence, not presently relevant, and on 10 April 2006, Ms Anne Thomas wrote to the solicitor on behalf of the Department:
Mr David Lander
Lander & Co
Barristers & Solicitors
P O Box 3243
BMDC ACT 2617

Dear Mr Lander

RE: CLAIM FOR COMPENSATION – MR TIM BOUTSIS
(Your Reference – DL:CF: BOUTSIS: L3205)

Thank you for your letter of 31 March concerning your client, Mr Tim Boutsis.
In your letter you formally make a claim for compensation on behalf of Mr Boutsis for discrimination based on gender, ethnicity and age. The Department of Education & Training (the department) does not automatically accept liability in respect of such claims. The Territory meets such claims where there is a legal liability to do so. The department is an agency of the Territory which has insurance arrangements in place in order to meet such liabilities. Your claim for compensation on behalf of Mr Boutsis will therefore be referred to the ACT Insurance Authority (ACTIA) for consideration. I understand ACTIA’s usual practice is to seek the advice of the ACT Government Solicitor in relation to such claims.
In your letter you also state that Mr Boutsis is seeking medical retirement on the basis of total incapacity for work. This request has been forwarded to the relevant sections of the department for appropriate action.
Yours sincerely

Anne Thomas
Executive Director
Resource Management
10 April 2006

9. The solicitor responded by a letter dated 4 May 2006:

Ms Anne Thomas
Executive Director
Resource Management
Department of Education & Training
P O Box 1584
TUGGERANONG ACT 2901

Dear Madam
RE: MR TIM BOUTSIS : MEDICAL RETIREMENT
Thank you for your correspondence of 10 April 2006.
Would you please provide us as soon as possible with a copy of the medical report obtained at the behest of your Department (Ula Martin’s letter of 29 March 2006 refers) from a medical officer who examined our client on 18 April 2006 in Melbourne.
It would not be sufficient for someone to write to our client advising of the finding and recommendations and any proposed action. We require a full copy of the report.
Would you please have someone acknowledge receipt of my letter at first instance.
Many thanks.

Yours sincerely
LANDER & CO

David Lander
c.c. Client
(-by email-)

10. Although Mr Bateman had asserted that the Department had taken the action required of it, the solicitor had, at the date of the subject letter (24 October 2006), not received a response to his letter of 4 May 2006 requesting a copy of the medical report following an examination of Mr Boutsis in Melbourne on 18 April 2006.
11. There was further correspondence as follows:
Email of 23 May 2006 by the Solicitor to Mr Boutsis -
Mr Tim Boutsis
(-by email-)

Dear Tim

RE: MEDICAL REPORT

I had a call from Pat Shaw of the Department on 22 May saying that the Department had not received at that time the report from the doctor who examined you although it was “in the mail”.
She said she did not wish to release the report to me or to you but only to your GP as the contents may cause harm, as a policy of the Department.
I told her that such policy was a nonsense and that you would send an email saying that you required her to release the report to me as soon as it is received without reference to your GP.
Would you please promptly send an email to Pat Shaw at the Department (and copy it to me) along those lines if you are happy to do so.
Many thanks
David

12. Next, there was an email of 25 May 2006 from Mr Boutsis to the Department:
Dear Ula,
I am requesting the release of my latest medical report to be sent asap to my solicitor Mr David Lander when it is received without reference to my GP.
Will you please give this request to Pat Shaw today?
His details:
Mr David Lander
….
13. There was a further letter of 28 July 2006 from the Solicitor to the Department which was unanswered.
14. The solicitor copied that last letter to the ACT Government Solicitor. Ms Elissa Clarke of that office responded on 7 August 2006. That letter is not exhibited. The solicitor sent a further letter of 8 August 2006 to the ACT Government Solicitor’s office in the following terms:
Ms Elissa Clark
ACT Government Solicitor
DX 5602 CANBERRA

Dear Ms Clark

RE: TIM BOUTSIS

Thank you for your letter of 7 August 2006 and the information it contained. We assume your client is the ACT Department of Education and Training.
With respect, one of the issues I addressed to you in my correspondence of 28 July was seeking your assistance in relation to your derelict client, the ACT Department of Education, in having my client assessed for medical retirement.
I outlined to you the experience I have had with the ACT Department of Education over many years and I am willing to give you further evidence should you need persuading that your client is regularly derelict and uncooperative and in breach of the Territory Model Litigant Guidelines. The Department has ignored my client’s request to be referred to the ComSuper Panel for assessment.
You have, with respect, failed to address the issue of medical retirement and I ask you to please seek instructions.
In the interim, I have taken on board your other comments and will seek instructions. It may be that your client will again defeat justice by wearing my client out, given particularly that he has poor health and very little money.
I look forward to hearing from you relation to the issue of having my client medically retired.
Thank you.
Yours sincerely
LANDER & CO

David Lander
c.c. Client

15. Ms Clarke responded on 11 September 2006:

Dear Mr Lander

Tim Boutsis – claim for compensation
I refer to your letters dated 28 July (2 letters) and 8 August 2006.
In those letters you asked that I seek my client’s instructions about referring Mr Boutsis to a ComSuper panel for an assessment of his suitability for invalidity retirement, as well as in relation to the Territory making an act of grace payment to him under the Financial Management Act 1996.
In relation to Mr Boutsis’ retirement, I repeat the comments set out in my letter dated 7 August 2006. This office is instructed to act on behalf of the Territory in relation to Mr Boutsis’ claim for compensation only. Any correspondence related to the issue of his retirement should be directed to the Department of Education and Training.
In relation to your request for an act of grace payment, the Territory can see nothing in Mr Boutsis’ claim that could be considered “special circumstances” for the purposes of the act of grace payment scheme in the Financial Management Act 1996. Accordingly the Territory declines Mr Boutsis’ request that he be paid an act of grace payment.
I look forward to receiving Mr Boutsis’ properly particularised claim.
Please contact me if you wish to discuss the matter.
Yours sincerely
ACT Government Solicitor
Elissa Clarke
Solicitor

16. There had in fact been a report dated 1 September 2006 forwarded to the employing Department which had recommended the retirement of Mr Boutsis.
17. The perspective of Mr Boutsis was represented by his letter dated 20 December 2006 to the solicitor on being informed of the complaint:

Dear David,

Thank you so much for your letter & receipt.
I was very disturbed to read the communication you received from the ACT Department of Education & Training regarding my invalidity retirement case. I am also shocked that Michael Bateman has declared his intention to approach the ACT Law Society with an alleged breach of standards!
I wish to state emphatically that if you had not legally represented me in such a pro active & fearless manner, I believe I would still be in a state of limbo, waiting for the ACT Department of Education to communicate with me regarding my employment status, bearing in mind that it is now 2 years since I became ill, and my situation has only recently been resolved, thanks, I believe, to your intervention.
The frustration of being persistently ignored and the consequent prolonged financial anxiety, prompted me to authorise you to represent me in the strongest possible terms in order to gain a response and have my situation resolved.
I am relieved that I can now put this behind me. I can only describe the Department’s response to my predicament as tardy and neglectful, but I have no way of knowing whether I alone have been treated in this evasive manner or whether invalidity cases are routinely dealt with this way.
I wish to express my gratitude to you for the effectiveness of your legal representations on my behalf and only regret that it has been so unnecessarily protracted and unpleasant. If you require any further testimony of my high opinion of your professional expertise and conduct, I am more than willing to oblige.
With kind regards,

TIMOTHY BOUTISIS

18. Mr Bateman was invited by the Law Society of the Australian Capital Territory to respond to the solicitor’s reply to his complaint. He did so on 1 February 2007:

Dear Mr Reis

Complaint against Mr David Lander

Thank you for the opportunity to respond to Mr Lander’s letter to the ACT Law Society dated 8 January 2006. I will address his comments in the order in which they appear in his letter.
The ACT Department of Education and Training (“the Department”) does not contend that in dealing with Mr Boutsis’ matter, Mr Lander identified Mr Boutsis without his permission or that he acted without instructions.
I have read the documents that you have provided and can see nothing in those documents that could possibly demonstrate any “maladministration, cover-ups of wrong doings and … abuses of power” of which Mr Lander accuses Departmental staff.
The Department agrees that Mr Lander has “the right and duty as a solicitor to draw on [his] experience, skill, knowledge and experience [sic] when acting for clients”. It is unclear how this is proposed to be a response to the Department’s concerns as set out in my letter dated 15 December 2006.
In relation to Mr Lander’s comments about the Human Rights Act 2004 (“the Human Rights Act”), the Department contends that Mr Lander is incorrect in asserting that “the Human Rights Act overrides any Rule which may be in conflict with a statutorily prescribed freedom of expression”. In this regard I draw your attention to paragraph 6 of the preamble to the Human Rights Act, which provides:
Few rights are absolute. Human rights may be subject only to the reasonable limits in law that can be demonstrably justified in a free and democratic society. One individual’s rights may also need to be weighed against another individual’s rights.
Paragraphs 115(b) and (c) of the Civil Law (Wrongs) Act 2002 provide some of the objects of Chapter 9 of that Act, entitled Defamation: namely, to ensure that the law of defamation does not place unreasonable limits on freedom of expression and, in particular, on the publication and discussion of matters of public interest and importance, as well as to provide effective and fair remedies for persons whose reputations are harmed by the publication of defamatory matter. It is clearly contemplated that the general right to freedom of expression should be balanced against an individual’s right not to have his or her reputation harmed by the publication of defamatory matter.
The Department is genuinely concerned about the welfare of the staff who are the subject of Mr Lander’s allegations, that their reputations may be harmed, and that they may be distressed by such serious yet unsubstantiated allegations. The Department contends that Mr Lander’s right to freedom of expression is not absolute, as he contends, but must be balanced against the rights of Departmental staff to perform their work without fear of having their reputations harmed by repeated serious yet unsubstantiated accusations.
In relation to Mr Lander’s repeated claim that the “ACT Department of Education systemically engages in maladministration, in cover-ups of wrong doings and in abuses of power” I repeat the concerns set out in my earlier letter to you dated 15 December 2006: The Department takes allegations such as these very seriously, but it is impossible to respond to them as they are generalised, vague and unsubstantiated.
Yours sincerely
Michael Bateman
Director
Human Resources
1 February 2007

19. The solicitor’s response, unsurprisingly truculent, was dated 9 February 2007:
Mr Robert Reis
Professional Standards Director
ACT Law Society
DX 5623 CANBERRA

Dear Mr Reis

RE: COMPLAINT BY ACT DEPARTMENT OF EDUCATION & TRAINING
I refer to your letter of 5 February and the letter attached from Mr Michael Bateman of the ACT Department of Education and Training.
Mr Bateman alleges that I have defamed the Department’s staff and that their reputations may be harmed.
The Society is aware and has repeatedly told complainants (except to-date for this complainant) that defamation (matters going to the reputation of people) are not the province of Law Society complaints and that they should seek legal advice.
Mr Bateman, presumably on legal advice, has made a big issue about the reputations of people within his Department but fails to produce an Affidavit or Statutory Declaration from any such person.
As the Society must know, an organisation (government agency) does not have a character or persona and its reputation cannot be defamed.
As I explained to you on the telephone, what I have written to the Department I can write to the Canberra Times, I can say publicly on the airwaves, I can distribute to my friends and colleagues and the Law Society would express no interest in the tone or content of such correspondence and nor should it. Likewise, my client could publish in a newspaper similar complaints alleging the same things, subject to reprisal.
I note that the Department’s persistent gripe is that I allegedly fail to produce evidence. The Department’s files are full of evidence they refuse to address.
Let me repeat one singular example of that evidence here because the Department does not tell the Society the truth.
The Minister, Mr Andrew Barr, when confronted with a dossier of material recently in the Xirakis case, explained away all the allegations about school-based discipline and the corruption and cover-ups that go under that process as being justified because that is ‘the procedure’. In short, Mr Barr and his Department are not interested in examining complaints of the nature made. To then assert that I provide no evidence when the Department and its Minister hold such material is, with respect, hypocritical.
I remind the Society that both the President of the Appeal Court of our Supreme Court and the Chief Judge have repeatedly urged solicitors when entering the profession to remember to act upon the most solemn duty of all lawyers. That solemn duty as I have brought to the Society’s attention before and do so again is to represent people against abuses of power by the State.
The complaint is vexatious, designed to silence a critic and should be dismissed.
Yours sincerely
LANDER & CO
David Lander

20. On 8 May 2007 the solicitor wrote to the Law Society seeking a resolution of the complaint:

Dear Mr Reis

RE: COMPLAINT BY ACT DEPARTMENT OF EDUCATION & TRAINING
Thank you for your letter of 7 May 2007.
Would you please have the Council of the Law Society attend to the complaint forthwith as you will appreciate that I have been waiting a long time for this vexacious complaint to be dismissed; were I a solicitor in a large firm, that is what would have happened by now.
Yours sincerely
LANDER & CO

David Lander

21. The next document was an application by the Council of the Law Society of the Australian Capital Territory dated 31 October 2007, filed on 1 November 2007 to the Tribunal.
22. The essence of the complaint about the letter of 24 October 2006 was contained in the following paragraphs of that application:
4. Despite the letter suggesting in the fifth paragraph that the Department was dilatory in responding to the medical recommendation, the Department in fact had acted on the recommendation and was required to and did liaise with ComSuper to provide pre-assessment payments and to otherwise approve invalidity retirement. This was explained to the Respondent in a letter to him dated 7 December 2006 from Mr Michael Bateman, Director, Human Resources of the Department.
5. By letter dated 15 December 2006, Mr Bateman wrote to the Professional Standards Director of the Applicant and complained about the conduct of the Respondent in respect to his letter of 24 October 2006.
6. The Respondent was requested, by letter dated 22 October 2006 from the Professional Standards Director on behalf of the Applicant, to provide a response to the Applicant in light of the complaint made by Mr Bateman. In particular, the Professional Standards Director informed the Respondent that the grounds of complaint raised by the Department were:
(i) unsubstantiated statements about the Department and its staff; and
(ii) the tone of the correspondence.
7. The Respondent provided his response by letter dated 8 January 2006 and included copies of various correspondence relating to the case.
8. In summary, the Respondent denied any wrongdoing by him. He submitted that s 16 of the Human Rights Act 2004 in expressing the general principle underlying freedom of expression overrode any rules such as, by implication, any Professional Conduct Rules that may seek to govern legal practitioners. He further stated that the Department “systematically engages in mal-administration, in cover-ups of wrongdoings and in abuses of power”.
The Applicant relies upon the whole of that letter and enclosures.
9. The Applicant provided the Respondent’s response to Mr Bateman for further comment. Mr Bateman did so by letter to the Department dated 1 February 2007 which, in turn, was forwarded to the Respondent for further comment.
10. The Respondent in his further letter of 9 February 2007, by way of reply, did not resile from the response put in his earlier letter of 7 January 2007. He denied any wrongdoing and did not concede that the tone of his correspondence was in any way objectionable. In particular, in neither letter did he assert that any of the subject matter of the correspondence was sent under instructions from his client, although his client had authorised him to “represent me in the strongest possible terms”.
11. The Respondent has not provided any substantive evidence in support of the broad allegations against governmental officials.
The Legal Profession (Solicitors) Rules
12. The Rules were revised and notified on 1 October 2007. The Rules constitute binding obligations under the Act (s.585(1)).
13. The statement of principles prefacing the section headed “Relations With Third Parties” contained in the Rules provides:
‘Practitioners should, in the course of their practice, conduct their dealings with other members of the community, and the affairs of their clients which affect the rights of others, according to the same principles of honesty and fairness which are required in relations with the courts and other lawyers and in a manner that is consistent with the public interest.’
14. Rule 25 provides:
‘A practitioner, in all of the practitioner’s dealings with other practitioners must take all reasonable care to maintain the integrity of the legal profession by ensuring that the practitioner’s communications are courteous, and that the practitioner avoids offensive or provocative language or conduct’.
The Applicant contends that in light of the recitals set out in paragraph 15 above, Rule 25 has equal application in relation to a practitioner’s communications with other members of the community. The Applicant further contends that there is a fundamental ethical obligation upon a practitioner to maintain due courtesy and civility when dealing with, inter alia, the other party and broader members of the public, particularly in the course of conducting one’s practice.
Charges
15. The Applicant contends that the letter referred to in paragraph 3 above, in respect of its overall tone and, in particular, to the criticism of the departmental officials and the suggestion that there might be recriminations against the Respondent’s wife constitutes:
(a) discourteous, offensive or provocative conduct; and/or
(b) conduct which was capable of bringing the legal profession into disrepute; and/or
(c) a breach of the obligation to act with honesty and fairness and in a manner that is consistent with the public interest; and
(d) a breach of his ethical duty to act courteously in respect to his dealings with third parties.
16. The Applicant contends that:
(a) either all or any one or more of the breaches referred to in paragraph 15 constitutes unsatisfactory professional conduct; and
(b) such conduct warrants the Disciplinary Tribunal making one or more orders under s.430 of the Act.

23. The Tribunal, comprising the Hon J F Gallop AM QC and Messrs R Watch and G Wright, found the appellant guilty of unsatisfactory professional conduct for reasons published on 30 July 2008. Those reasons were expressed as follows:
1. The Council of the Law Society of the Australian Capital Territory has applied to the Legal Practitioners Disciplinary Tribunal pursuant to s 419 of the Legal Profession Act 2006 (ACT) regarding the professional conduct of the respondent in the circumstances which we shall set out.
2. The Council contends that in a letter sent by the respondent to the Executive Officer of the ACT Department of Education, Youth and Family Services, the respondent, in respect of the terms of that letter and in particular the criticism of the departmental officials and the suggestion that there might be recriminations against the respondent's wife, has been guilty of:
(a) discourteous, offensive or provocative conduct; and/or
(b) conduct which was capable of bringing the legal profession into disrepute; and/or
(c) a breach of the obligation to act with honesty and fairness and in a manner that is consistent with the public interest; and
(d) a breach of his ethical duty to act courteously in respect to his dealings with third parties.
3. The facts giving rise to the proceedings are that the respondent is, and was at all material times a barrister and solicitor of the Supreme Court of the Australian Capital Territory practising under the name and style of Lander & Co, Solicitors, and was the holder of an unrestricted practising certificate.
4. The respondent acted for a Mr T Boutsis, an employee of the ACT Department of Education, Youth and Family Services (the Department) in relation to a potential invalidity retirement.
5. In the course of representing his client, the respondent wrote to the Chief Executive Officer of the Department on 24 October 2006. The terms of the letter were as [set out in [4] of these reasons].
6. By letter dated 15 December 2006, Mr Michael Bateman, Director, Human Resources of the Department, wrote to the Professional Standards Director of the applicant and complained about the conduct of the respondent in respect his letter of 24 October 2006.
7. By letter dated 22 December 2006, the respondent was requested by the Professional Standards Director on behalf of the applicant to provide a response to the applicant in the light of the complaint made by Mr Bateman. In particular, the Professional Standards Director informed the respondent that the grounds of complaint raised by the Department were:
(i) unsubstantiated statements about the Department and its staff; and
(ii) the tone of the correspondence.
8. The respondent provided his response by letter dated 8 January 2007 and included copies of various correspondence relating to the case. In summary, the respondent denied any wrongdoing by him. He submitted that s 16 of the Human Rights Act 2004 (ACT), in expressing the general principle underlying freedom of expression, overrode any rules such as, by implication, any Professional Conduct Rules that may seek to govern legal practitioners. He further stated that the Department "systematically engages in mal-administration, in cover-ups of wrong doings and in abuses of power".
9. The applicant provided the respondent's response to Mr Bateman in the Department for further comment. Mr Bateman did so by letter dated 1 February 2007 which, in turn, was forwarded to the respondent for further comment.
10. The respondent, in his further letter of 9 February 2007 by way of reply, did not resile from the response put in his earlier letter of 8 January 2007. He denied any wrongdoing and did not concede that the tone of his correspondence was in any way objectionable. In particular, in neither letter did he assert that any of the subject matter of the correspondence was sent under instructions from his client, although his client had authorised him to "represent me in the strongest possible terms”.
11. The Legal Profession (Solicitors) Rules (2006) (ACT) were made as part of the Legal Profession Act 2006 (ACT). Those Rules were repealed by r 3 of the Legal Profession (Solicitors) Rules 2007 which commenced on 1 October 2007. However, the 2007 Rules repeated the provisions of the 2006 Rules with respect to "Relations with Third Parties" and "Relations with Other Practitioners". The statement of principles prefacing the category of the Rules headed "Relations With Third Parties" provides:
Practitioners should, in the course of their practice, conduct their dealings with other members of the community, and the affairs of their clients which affect the rights of others, according to the same principles of honesty and fairness which are required in relations with the courts and other lawyers and in a manner that is consistent with the public interest.
12. The Introduction to the 2006 Rules states that the statement of general principle preceding the Rules in the category,
... is not intended to constitute by itself a Rule, but is intended to describe the underlying principles and objectives of the Rules which follow.
13. Rule 24, which is within the category of the Rules headed "Relations with Other Practitioners", provides:
A practitioner, in all of the practitioner's dealings with other practitioners, must take all reasonable care to maintain the integrity and reputation of the legal profession by ensuring that the practitioner's communications are courteous and that the practitioner avoids offensive or provocative language or conduct.
14. The applicant contended that in the light of the recitals set out in the Rules, r 24 has equal application in relation to a practitioner's communications with other members of the community. The applicant contended that there is a fundamental ethical obligation upon a practitioner to maintain due courtesy and civility when dealing with, inter alia, the other party and broader members of the public, particularly in the course of conducting one's practice.
15. We think there is much force in that submission and it should be adopted. In applying the general principle set out above to r 24, practitioners should, in the course of their practice, conduct their dealings with other members of the community according to the same principles of honesty and fairness which are required in relations with the courts and other lawyers namely, to take all reasonable care to maintain the integrity of the legal profession by ensuring that the practitioner's communications are courteous and that the practitioner avoids offensive or provocative language or conduct.
16. That the language of the respondent's letter of 24 October 2006 contains in several paragraphs discourteous remarks and offensive and provocative language cannot be doubted. This Tribunal has to determine whether, by the terms of the letter and the whole transaction, the respondent has been guilty of unsatisfactory professional conduct or professional misconduct.
17. In Clyne v NSW Bar Association (1960) 104 CLR 186, the Full Court of the High Court (Dixon CJ, McTiernan, Fullagar, Menzies and Windeyer JJ) at 199-201:
The rules which govern the conduct of members of a body of professional men, such as the Bar of New South Wales, may (though there is, of course, no logical dichotomy) be divided roughly into two classes. In the one class stand those rules which are mainly conventional in character. To say this is not to deny their importance from the point of view of the client. But they are designed primarily to regulate the conduct of members of the profession in their relations with one another. Many of these rules are reduced to writing, and they are from time to time interpreted, and perhaps modified to fit specific cases, by resolutions of the governing body of the profession. Examples of this class in the case of the Bar are the rule which forbids advertising, the rules with regard to retainers, the rule that one of Her Majesty's counsel must not appear without a junior. A breach of any of these rules is treated seriously, but would not warrant disbarment--at least unless it were shown to be part of a deliberate and persistent system of conduct.
Rules of the other class are not merely conventional in character. They are fundamental. They are, for the most part, not to be found in writing. It is not necessary that they should be reduced to writing, because they rest essentially on nothing more and nothing less than a generally accepted standard of common decency and common fairness. To the Bar in general it is more a matter of "does not" than of "must not". A barrister does not lie to a judge who relies on him for information. He does not deliberately misrepresent the law to an inferior court or to a lay tribunal: cf. Carr v. Wodonga Shire (1920) 34 CLR 234, at pp 239, 240. He does not, in cross-examination to credit, ask a witness if he has not been guilty of some evil conduct unless he has reliable information to warrant the suggestion which the question conveys.
As the learned judges of the Supreme Court have said, a member of the Bar enjoys great privileges both de jure and de facto. In particular his privilege in relation to defamatory statements made by him in court is not qualified but absolute. It is perhaps worth while to quote yet again the oft-quoted words of Lopes LJ in Royal Aquarium and Summer and Winter Garden Society v. Parkinson (1892) 1 QB 431. His Lordship said: "This 'absolute privilege' has been conceded on the grounds of public policy to ensure freedom of speech where it is essential that freedom of speech should exist, and with the knowledge that Courts of justice are presided over by those who from their high character are not likely to abuse the privilege, and who have the power and ought to have the will to check any abuse of it by those who appear before them" (1892) 1 QB, at 451. The last thing we would wish to do would be to say anything which might be thought to curtail this freedom of speech, which public policy demands. Cases will constantly arise in which it is not merely the right but the duty of counsel to speak out fearlessly, to denounce some person or the conduct of some person, and to use such strong terms as seem to him in his discretion to be appropriate to the occasion. From the point of view of the common law, it is right that the person attacked should have no remedy in the courts. But, from the point of view of a profession which seeks to maintain standards of decency and fairness, it is essential that the privilege, and the power of doing harm which it confers, should not be abused. Otherwise grave and irreparable damage might be unjustly occasioned. The privilege may be abused if damaging irrelevant matter is introduced into a proceeding. It is grossly abused if counsel, in opening a case, makes statements which may have ruinous consequences to the person attacked, and which he cannot substantiate or justify by evidence. It is obviously unfair and improper in the highest degree for counsel, hoping that, where proof is impossible, prejudice may suffice, to make such statements unless he definitely knows that he has, and definitely intends to adduce, evidence to support them. It cannot, of course, be enough that he thinks that he may be able to establish his statements out of the mouth of a witness for the other side.
18. In Kennedy v The Council of the Incorporated Law Institute of New South Wales reported in Vol 13 of the Australian Law Journal at 563, Rich J said,
... that 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 relation 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.
19. McTiernan J said, at 564,
... that it was a proposition which admitted of no debate that a solicitor for a party in an action was not at liberty to employ whatever tactics he thought might contribute to his client's success. A solicitor, like anybody else, was liable to be prosecuted if with the object of winning the case he did anything which was a criminal offence. As a solicitor he had an additional and particular responsibility. His professional status, which he derived from being accredited by the court as a fit and proper person to practise, laid upon him the strict obligation not to interfere or attempt to interfere with the course of justice under any pretext. If he violated that duty he was guilty of professional misconduct.
20. In the Reports of the Solicitors' Statutory Committee (NSW) in respect of one Constantine Karageorge on 15 July 1987,
It may be that the conduct complained of would merely amount to reprehensible rudeness or churlish discourtesy if it were conduct on the part of someone other than a solicitor. There may be some acts which, although they would not be disgraceful in any other person, yet if they are done by a solicitor in relation to his profession may be fairly considered disgraceful and dishonourable conduct: See Lord Esher MR in Allinson v General Council of Medical Education and Registration (1894) 1QB 750 at 760. Clearly, such acts may include acts perpetrated towards members of the public. It has long been the view of the profession that only the very highest conduct is consistent with membership of the profession ... ... Clearly, the use of insulting language or behaving offensively towards members of the public is not conducive to the maintenance of the good name of the profession.
21. In Cordery on Solicitors, 8th Ed at 272-274,
It is a rule of conduct that a solicitor must act towards other solicitors with complete frankness and good faith consistent with his overriding duty to his client. Another facet of the duty to act with frankness and good faith is that a solicitor should not resort to writing offensive letters to other members of the profession.
The wide ambit of r 1 of the Solicitors Practice Rules 1987 means that a solicitor must not act towards any person in a way which is fraudulent, deceitful or otherwise contrary to his position as a solicitor nor may he use his position as a solicitor to take unfair advantage of a third party for his own benefit or for the benefit of any other person. Thus, great care has to be exercised when dealing with an unrepresented third party.
22. Counsel for the applicant also relied upon some statements of principle from the Utah Bar Journal,
A lawyer can be firm and tough-minded while being unfailingly courteous. Indeed, there is a real power that comes from maintaining one's dignity in the face of a tantrum, from returning courtesy for rudeness, from treating people respectfully who do not deserve respect, and from refusing to respond in kind to personal insult.
(See Justice Matthew B Durant, Views from the Bench: Civility and Advocacy, (2001) Utah Bar J 35.)
23. As Chief Justice Robert Benham of the Supreme Court of Georgia in Butts v State 546 SE 2d 472 (GA 2001) commented,
... civility, which incorporates respect, courtesy, politeness, graciousness, and basic good manners, is an essential part of effective advocacy. Professionalism's main building block is civility and it sets the truly accomplished lawyer apart from the ordinary lawyer.
... Civility is more than just good manners. It is an essential ingredient in an effective adversarial legal system such as ours. The absence of civility would produce a system of justice that would be out of control and impossible to manage: normal disputes would be unnecessarily laced with anger and discord; citizens would become disrespectful of the rights of others: corporations would become irresponsible in conducting their business: governments would become unresponsive to the needs of those they serve; and alternative dispute resolution would be virtually impossible.
24. In applying those principles, we are firmly of the view that the respondent has been guilty of unsatisfactory professional conduct. We turn to consider whether the matters raised by him exculpate him from that conclusion.
25. First, the respondent submitted that there is nothing discourteous or offensive in his letter. He relied upon a letter from his client, Mr Boutsis, in which he said that the respondent had represented him "admirably" and that, accordingly, the terms of the letter were justified in the circumstances. We reject Mr Boutsis' assessment of the respondent's conduct. It is objectively of no value whatever. The whole tone of the respondent's letter is objectively discourteous.
26. Secondly, the applicant relied upon s 16 of the Human Rights Act 2004 (ACT). It reads,
16 Freedom of expression
(l) Everyone has the right to hold opinions without interference.
(2) Everyone has the right to freedom of expression. This right includes the freedom to seek, receive and impart information and ideas of all kinds, regardless of borders, whether orally, in writing or in print, by way of art, or in another way chosen by him or her.
27. The respondent contended that the Human Rights Act 2004 is unqualified in preserving freedom of expression subject only to s 28 which reads,
28 Human rights may be limited
(1) Human rights may be subject only to reasonable limits set by Territory laws that can demonstrably justified in a free and democratic society.
(2) In deciding whether a limit is reasonable, all relevant factors must be considered, including the following:
(a) the nature of the right affected;
(b) the importance purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relationship between the limitation and its purpose;
(e) any less restrictive means reasonably available to achieve the purpose the limitation seeks to achieve.
28. He did not refer to paragraph 6 in the preamble to the Act which reads,
Few rights are absolute. Human rights may be subject only to the reasonable limits in law that can be demonstrably justified in a free and democratic society. One individual's rights may also need to be weighed against another individual's rights.
29. In our view, 16 does not avail the respondent to excuse unsatisfactory professional conduct in the circumstances of the subject letter.
30. We confirm our conclusion that he has been guilty of unsatisfactory professional conduct.
31. We shall list the matter for further hearing.

Date of decision: 30 July 2008

24. We would support and endorse the general principles that the Tribunal adopted in its consideration of this matter.
25. After submissions with respect to penalty on 11 August 2008, the Tribunal, on 24 September 2008, ordered that:
1. The Respondent legal practitioner David Lander pay a fine of $2,500.00 to the Council of the Applicant Law Society within one month of the date of these Orders.
2. The Respondent be publicly reprimanded.
3. The Respondent pay the costs of the Council of the Law Society of the Australian Capital Territory in these proceedings on a solicitor/client basis as agreed or taxed within three months of agreement or taxation.
4. That the Respondent within six months (or such other period as may be approved by the Professional Standards Director of the Law Society of the Australian Capital Territory, or the Tribunal) undertake at his own expense and successfully complete with a pass mark of not less than 75% a course of education in legal ethics conducted by the Australian National University Legal Workshop or (if such course is discontinue or otherwise becomes unavailable) complete such other course conducted by another body as approved by the Director of Professional Standards of the Law Society of the Australian Capital Territory or the Tribunal.
5. In default of compliance with Orders 1, 3 and 4 the Respondent’s Practising Certificate be immediately suspended pursuant to Section 430(4)(b) of the Legal Profession Act 2006 until he complies with the Orders.
26. It was contended by the Law Society that the Tribunal was correct in finding that the letter of 24 October 2006 was –
(a) discourteous, offensive or provocative conduct; and/or
(b) conduct which was capable of bringing the legal profession into disrepute; and/or
(c) a breach of the obligation to act with honesty and fairness and in a manner that is consistent with the public interest; and (sic)
(d) a breach of [the Solicitor’s] ethical duty to act courteously in respect to his dealings with third parties.

27. The Tribunal focussed on the provisions of the Legal Profession (Solicitors) Rules 2006 (ACT) (the Rules) enacted as part of the Legal Profession Act 2006 (ACT). That Act was in force as from 1 July 2006. The Rules were repealed and re-enacted on 1 October 2007 but relevantly the provisions relating to “Relations with third parties” and “Relations with Other Practitioners” were repeated.
28. Rule 25 was particularly referred to. That rule provides:
A practitioner, in all of the practitioner’s dealings with other practitioners, must take all reasonable care to maintain the integrity and reputation of the legal profession by ensuring that the practitioner’s communications are courteous and that the practitioner avoids offensive or provocative language or conduct.

29. As noted above, the Tribunal concluded at [16]:
That the language of the respondent’s letter of 24 October 2006 contains in several paragraphs discourteous remarks and offensive and provocative language cannot be doubted.

30. The Tribunal then considered whether that constituted unsatisfactory professional conduct or professional misconduct. It concluded that it was the former rather than the latter.
31. The issue thus raised was highlighted in Clyne v NSW Bar Association (1960) 104 CLR 186 (Clyne’s case), where in considering the conduct of Mr Clyne, who had launched an extravagant and highly defamatory attack on a solicitor accusing Mr Clyne of fraud, perjury and blackmail. It was apparently done for the purpose of persuading the solicitor to cease acting for a lady who was then pursuing divorce proceedings against Mr Clyne’s client. It was apparent that the accusations against the solicitor were baseless, though there was, also, at the time, a view that a solicitor was acting improperly if he or she funded a litigant on a “no win no fee” basis. That was what the solicitor in the case before us is reasonably believed to be doing. The High Court rejected that view which, in any event, could not have justified the accusations made by Mr Clyne. The scope of a legal practitioner’s privilege, even duty, to make defamatory statements in the course of litigation was referred to, as the Tribunal noted, at 200-1 (per Dixon CJ, McTiernan, Fullagar, Menzies and Windeyer JJ):
The last thing we would wish to do would be to say anything which might be thought to curtail this freedom of speech, which public policy demands. Cases will constantly arise in which it is not merely the right but the duty of counsel to speak out fearlessly, to denounce some person or the conduct of some person, and to use such strong terms as seem to him in his discretion to be appropriate to the occasion.

32. But, of course, it is misconduct to abuse that privilege by making unfounded accusations knowing that there was no reasonable basis for them, worse if done gratuitously or even more pertinently, if it were to be shown for a collateral purpose.
33. In the context of rudeness or discourtesy, the respondent made specific reference to a decision of the Solicitor’s Statutory Committee (15 July 1987) in Law Society of New South Wales re Constantine Karageorge (Karageorge).
34. The solicitor’s comments in that case were undoubtedly gratuitously offensive. For example, he referred to another solicitor in conversation with him about a matter as, “you fucking Arab”. He demonstrated even-handed offensiveness referring to another solicitor in conversation with him as “a fucking Jew”. He similarly abused members of the public who had dealings with him.
35. Clearly, those comments and other like comments were extraneous to the matters legitimately being pursued and, as the Committee observed “the use of insulting language or behaving offensively towards members of the public is not conducive to the maintenance of the good name of the profession”.
36. That view must be supported emphatically. However, it seems to us that that principle in no way diminishes the right, indeed the duty, of a solicitor to represent his or her client’s interests forthrightly and without fear or favour. If the conduct of public officials adversely impacting on a client is considered on reasonable grounds to be “rude, unhelpful” or any similar characterisation, it is no breach of the obligation of courtesy to point that out to those in authority, even though those criticised, may consider the criticism unwarranted and offensive. Such communication may well be regarded as discourteous and provocative but, nevertheless, a subject that needs to be raised in the interests of the client as well as generally.
37. It is apparent that Rule 25 of the Rules does, as the Attorney-General submits in his written submission, engage s 16 (freedom of expression) and s 8 (recognition and equality before the law) of the Human Rights Act 2004 (ACT) (the HR Act).
38. We accept that it is not inconsistent with those rights to place limits on professional behaviour, provided, such limits are compatible with a solicitor’s duty to his or her client, to the Courts and the public and can be justified in a free and democratic society. That is, of course, the effect of s 28, HR Act.
39. It is a relevant matter that the impugned comments were not made in a public forum. They were made to the Department head concerning a matter that was properly the concern of the Department and, indeed, of its Minister. It was the solicitor’s contention that the comments were based on reasonable grounds and were a fair comment on a matter that was, or ought to have been, a legitimate concern of the Department and its Minister.
40. Nevertheless, the Tribunal found that the letter, both in tone and content, was “objectively discourteous” and not excused by reference to s 16 of the HR Act.
41. On 24 September 2008, the Tribunal handed down its decision on penalty. On two previous occasions, the solicitor had, admitted to discourtesy in correspondence. The most recent of those occasions resulted in a reprimand given on 28 August 2007. The solicitor had on that occasion apologised in writing to Mr Bateman and to another officer. The terms of that correspondence are not in evidence.
42. The Tribunal rejected a submission that the obligation of courtesy was different when the “other member of the community” was indeed the opponent of the solicitor’s client.
43. The Tribunal noted, correctly in our view, that there is an obligation on a practitioner to deal with all persons, practitioners or not, opponents or not, with honesty and fairness. The question of courtesy is more difficult to assess. Courtesy connotes politeness. That clearly varies depending on the circumstances.
44. In light of the two prior matters, the Tribunal ordered that the solicitor pay a fine of $2,500, be publicly reprimanded, pay the Law Society’s costs and undertake remedial courses in legal ethics.
45. On 7 October 2008, the solicitor filed a notice of appeal.
46. Mr Burnside QC, for the solicitor, submitted that there was a contrast between the terms of the Rules relating to dealings with other practitioners and those relating to third parties. The difference is that an obligation of courtesy is expressed in relation to dealings with other practitioners, as well as the obligation to act with honesty and fairness and to avoid “offensive or provocative language or conduct”.
47. That there is a difference is, as Mr Burnside QC submitted, not surprising. It may be necessary to write a letter of demand accusing the recipient of fraud or other misconduct. The recipient, particularly if the accusation is untrue, will be offended, even outraged. He or she may well regard it as provocative. Yet, if the solicitor had received apparently reasonable information supporting such an accusation, he or she is bound to put it to the recipient. Nor is the mere fact that the accusation is made robustly a valid cause for complaint.
48. The question of his honesty was not raised, so far as appears, against Mr Lander. In contrast with Clyne’s case, he was not alleged to have made any accusation that he knew to be untrue or for which he knew there was no reasonable basis. He was not alleged to have had a collateral purpose to be served by the accusations he made.
49. It is true, as Mr Burnside QC conceded, that the Department had progressed the claim of the solicitor’s client, albeit that it took nearly seven months to do so. However, the relevant officers, despite correspondence seeking action, had not informed the solicitor, or his client, of that fact before the solicitor wrote the letter complained of.
50. That conduct in itself, could have no other consequence than to provoke the solicitor into writing under the influence of a belief that his client’s claim was being contemptuously ignored. Out of that context that could not justify a response that made unfounded accusations of misconduct against departmental officers.
51. However, Mr Burnside’s submission is that the complaint concerning the past conduct of departmental officers, including allegations of reprisals against the solicitor’s wife were not disputed by the Department save in terms of a general denial. In particular, Mr Bateman’s affidavit makes it plain that the Department had not, in fact, been as dilatory as it permitted the solicitor to believe that it had been. His affidavit did not address the allegation of failure to inform the solicitor of the action it had taken.
52. The essence of the respondent’s contention, which must be rejected, is that there is a general obligation on a solicitor to refrain from that which the recipient might find to be discourteous, offensive or provocative statements. That is too broad and a sweeping proposition.
53. If the criticisms the solicitor levelled at the Department were true or, at least, fair comment as understood in defamation law, it could not be misconduct or unsatisfactory conduct to draw them to the attention of the relevant officers of the Department and its Minister. That is not an issue which those considering the statements should have to concern themselves. The fact that it was perceived as discourteous and offensive, even provocative, to parties to whom it is directed, is beside the point. In contrast with Karageorge (supra) the terms of the solicitor’s complaint were not, if the allegations were soundly based, gratuitously insulting or offensive.
54. It may well be the case that the choice of confrontation rather than persuasion was not effective advocacy on the part of the solicitor. That is not for us to say. What is important is that it is not unsatisfactory professional conduct to choose a less effective option in representing a client to one which others might choose. Clearly, as the client’s response shows, he approved of the solicitor’s mode of representation, although the Tribunal rightly observed, that could not excuse, for example, the making of false and defamatory statements without a reasonable basis for doing so.
55. It is also true, as Mr Burnside QC submitted, that Mr Bateman could have sought further details of what he described as the ‘general statements’ about the Department to enable him better to respond and overcome the disadvantage of which he complained. He would have been entitled to be provided with those details, though it may not have been at a cost that the solicitor’s client should have to bear.
56. Of course, the fact that Rule 25 requires that practitioners ensure courtesy and the avoidance of offensive or provocative language does not of itself make an apparent non-compliance unsatisfactory professional conduct. To make it so, however, it is not sufficient that the client did not specifically instruct the solicitor to make those comments. The question is whether the solicitor had a reasonable basis for them. He said there was. That was not a contention that was examined.
57. If the HR Act, s 16(2) has a role to play, it super imposes itself on the Statement of Principles to be found in the Rules and it is to allow lawful criticism by a solicitor of the performance of public officials.
58. In our view, the real issue was not that the solicitor made the comments complained of in the course of correspondence concerning his client’s claim, but whether the accusations and criticisms he made were false or without foundation, to his knowledge. If that were to be made out, then the finding of unsatisfactory professional conduct should be upheld. However, it seems to me that particular issue was not addressed by the Tribunal.
59. In other words, the true complaint should have been in terms of the kind of misconduct alleged in Clyne’s case, not in terms of a breach of Rule 25 which was, on its face, inapplicable.
60. The hearing did not address the correct issue. The finding of unsatisfactory professional conduct was, therefore, based on an erroneous assumption and must be set aside as must be the consequential orders on penalty.

61. The appeal should be upheld with costs.

I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Date: 11 September 2009




Counsel for the Appellant: Mr J W K Burnside QC with Mr T Crispin
Solicitor for the Appellant: Lander & Co
Counsel for the Respondent: Mr D J C Mossop
Solicitor for the Respondent: Dibbs Abbott Stillman
Counsel for the Intervener: Mr P Garrison
Solicitor for the Intervener: ACT Government Solicitor
Date of hearing: 13 February 2009
Date of judgment: 11 September 2009