ACT CIVIL & ADMINISTRATIVE TRIBUNAL
COUNCIL OF THE LAW SOCIETY OF THE ACT v NICHOLL (Occupational
Discipline) [2022] ACAT 56
OR 20/2020
Catchwords: OCCUPATIONAL DISCIPLINE – legal practitioner –
unsatisfactory professional conduct – where solicitor borrowed
money from a client – where solicitor and client also maintained
an ongoing friendship – whether solicitor was providing ‘legal
services’ in the course of ‘legal practice’ to the client at relevant
times – solicitors duties and obligations to clients – standards of
competency and diligence – solicitor’s conduct brings profession
into disrepute – breaches of the Legal Profession Solicitors
(Conduct) Rules 2015 – solicitor found guilty of unsatisfactory
professional conduct due to breaches of the rules – penalty yet to
be determined – matter listed for further hearing on penalty
Legislation cited: Evidence Act 2001 s 55
Legal Profession Act 2006 ss 16, 386, 387, 389, 419, 420,
Dictionary
Subordinate
Legislation cited: ACAT Procedures Rules 2020 rr 133, 135
Legal Profession (Solicitors) Conduct Rules 2015 rr 4.1.1,
4.1.4, 5, 5.1.2, 12.3.1
Legal Profession Uniform Conduct (Barristers) Rules 2015
(NSW) r 8
Cases cited: Allinson v General Council of Medical Education and
Registration [1894] 1 QB 750
Briginshaw v Briginshaw [1938] HCA 34
Chamberlain v Law Society of the Australian Capital Territory
(1993) 118 ALR 54
Council of the Law Society of the ACT v Legal practitioner ‘S’
(Steven Gavagna) [2016] ACAT 72
Council of the NSW Bar Association v EFA (a pseudonym)
[2021] NSWCA 339
Council of the NSW Law Society v McEnroe [2015]
NSWCATOD 109
Legal Practitioner 202021 v Council of the Law Society of the
ACT [2021] ACAT 74
Legal Practitioner v Council of The Law Society of The
Australian Capital Territory [2014] ACTSC 13
McDonald v Grech; Bank of Western Australia Ltd v McDonald
[2012] NSWCA 717
Moss v Eagleston [2014] NSWSC 6
Tribunal: Senior Member T Warwick
Date of Orders: 7 April 2022
Date of Reasons for Decision: 7 April 2022
Date of Publication: 24 June 2022
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) OR 20/2020
BETWEEN:
COUNCIL OF THE LAW SOCIETY OF THE ACT
Applicant
AND:
JOHN NICHOLL
Respondent
TRIBUNAL: Senior Member T Warwick
DATE: 7 April 2022
ORDER
The Tribunal finds that the respondent’s conduct in breach of rules 4.1.4, 5.1.2 and
12.3.1 is unsatisfactory professional conduct.
The Tribunal orders that:
1. The matter is listed for further hearing on 24 May 2022 at 10:00am and submissions
in relation to penalty.
2. These reasons are to be released only to the parties until further order.
The Tribunal notes that:
Charges 1, 2 and 3 all arise from the same facts and circumstances, and the elements of
the charges overlap. I will hear the parties as to whether one or more charge should be
dismissed as duplicitous.
………………………………..
Senior Member T Warwick
1
REASONS FOR DECISION
The proceedings
1. The applicant is the Council of the Law Society of the ACT.
2. The respondent is John Nicholl, a legal practitioner (the LP).
3. On or about 25 October 2019, the applicant received information regarding the
conduct of the LP and his dealings with the late Mr Patrick Maher. On
4 December 2019, the applicant raised an own-motion complaint concerning the
conduct of the LP. By letter dated 10 December 2019, the applicant notified the
LP of the complaint. Between about 11 December 2019 and 10 August 2020, the
applicant investigated the complaint, including requesting information from the
LP. On 14 January 2020, the LP provided his response. On 16 September 2020,
the applicant resolved to file an application for disciplinary action pursuant to
section 419 of the Legal Profession Act 2006 (the Act).
1
4. On 28 October 2020, the solicitors for the applicant filed the present application
in the tribunal.
5. The application contains three charges, as follows:
Charge 1 – borrowing money from a client
The respondent borrowed money from a client in breach of Rule
12.3.1.
…
Charge 2 – failing to act in the best interests of his client
The Respondent failed to act in Mr Maher’s best interests and failed to
avoid any compromise to his integrity and professional independence
in breach of Rules 4.1.1 and 4.1.4.
…
Charge 3 – Conduct which would bring the profession into disrepute
The respondent engaged in conduct which either demonstrates that
he is not a fit and proper person to practice law or, alternatively,
which is likely to a material degree to bring the profession into
disrepute in breach of Rule 5.
1
Affidavit of Robert Reis sworn 2 February 2021 at [4]-[8], exhibit RR1 page 7
2
6. The particulars relied upon are set out in paragraphs [98], [108] and [116] below.
The hearing
7. The matter proceeded to hearing on 10 May 2021. The Tribunal received oral
evidence from the LP in cross examination. The Tribunal received the following
documentary evidence:
(a) Exhibit 1 – affidavit of Robert Reis, Professional Standards Manager of the
Law Society of the ACT, sworn 2 February 2021, and attachment Exhibit
RR1, bundle of documents comprising 158 pages.
(b) Exhibit 2 – bundle of emails, between the LP and relatives of Patrick Maher
regarding the estate of Patrick Maher, between 1-30 November 2019.
(c) Exhibit 3 – affidavit of John David Nicholl, dated 16 March 2021.
(d) Exhibit 4 – Affidavit of Amanda Maher, dated 15 March 2021.
(e) Exhibit 5 – will of Patrick Maher and accompanying email.
8. Counsel for the applicant, Ms Thomas, filed very helpful written submissions on
22 March 2021 and 28 June 2021.
9. Counsel for the respondent, Mr Archer, filed very helpful written submissions on
29 April 2021 and 19 July 2021.
The response
10. At the conclusion of the hearing, Counsel for the applicant sought to tender the
response filed on 12 January 2021 as an exhibit in the proceedings. The Tribunal
reserved to consider its ruling on the admissibility of the response.
11. The ACAT Procedures Rules 2020 part 3.6 contains ‘Rules for Applications’ for
occupational discipline. The applicant is required to file an application using the
approved form.
2
The respondent is not required to file a response until directed
by the tribunal.
3
There is no prescribed form for a response.
2
ACAT Procedures Rule 2020, rule 133
3
ACAT Procedures Rules 2020, rule 135
3
12. Counsel for the respondent was not notified before the hearing that Counsel for
the applicant proposed to tender the response. Counsel for the respondent had
conducted his case on the basis that the evidence would comprise the witness
statements and exhibits as filed, and oral evidence. In all the circumstances, there
is a risk of procedural unfairness.
13. The evidence that is relevant in a proceeding is evidence that, if it were accepted,
could rationally affect (directly or indirectly) the assessment of the probability of
the existence of a fact in issue in the proceeding.
4
14. Counsel for the applicant said that she made the application “for abundance of
caution”. Counsel did not identify the relevance (if any) of the response to the
facts in issue. For instance, Counsel did not identify any matter in the response
that the LP had contradicted or resiled from at the hearing. In cross examination,
Counsel asked the LP to confirm that the contents of the response were correct.
But she did not otherwise cross examine the LP in relation to the response.
15. In all the circumstances, the relevance of the document is not established, and I
reject the tender.
The burden and standard of proof
16. Section 420 of the Act provides that the Tribunal is bound by the rules of evidence
in hearing an application. The applicant bears the onus of proving its case on the
balance of probabilities.
17. In Legal Practitioner 202021 v Council of the Law Society of the ACT,
5
Senior Member Orlov said:
In that context, it is useful to remind oneself of what the High Court said in
Briginshaw. Latham CJ said that “The standard of proof...will naturally
vary in accordance with the seriousness or importance of the issue.” Rich J
said, “The nature of the allegation requires...the careful weighing of
testimony, the close examination of facts proved as a basis of inference and
a comfortable satisfaction that the tribunal has reached both a correct and
just conclusion”. Dixon J said:
...The truth is that, when the law requires the proof of any fact, the
tribunal must feel an actual persuasion of its occurrence or existence
4
Evidence Act 2011 section 55
5
[2021] ACAT 74
4
before it can be found. It cannot be found as a result of a mere
mechanical comparison of probabilities independently of any belief
in its reality. No doubt an opinion that a state of facts exists may be
held according to indefinite gradations of certainty; and this has led
to attempts to define exactly the certainty required by the law for
various purposes. Fortunately, however, at common law no third
standard of persuasion was definitely developed. Except upon
criminal issues to be proved by the prosecution, it is enough that the
affirmative of an allegation is made out to the reasonable satisfaction
of the tribunal. But reasonable satisfaction is not a state of mind that
is attained or established independently of the nature and
consequence of the fact or facts to be proved. The seriousness of an
allegation made, the inherent unlikelihood of an occurrence of the
given description, or the gravity of the consequences flowing from a
particular finding are considerations which must affect the answer to
the question whether the issue has been proved to the reasonable
satisfaction of the tribunal. In such matters “reasonable satisfaction”
should not be produced by inexact proofs, indefinite testimony, or
indirect references.
6
18. I note that these are disciplinary proceedings. Bearing in mind the range of
possible consequences of adverse findings, only clear and cogent evidence will
be capable of meeting the standard of proof.
19. I find that the facts and circumstances set out below have been proved on the
balance of probabilities. In reaching this conclusion I have kept in mind the
requirement in Briginshaw v Briginshaw.
7
The legal practitioner’s practice history
20. In 1990, the respondent was admitted as a solicitor of the Supreme Court NSW,
and as a legal practitioner of the Supreme Court of the ACT.
21. From 21 July 1992 to 14 October 1997, the legal practitioner held a restricted
practicing certificate. He worked as a lawyer in private practice.
22. From 15 October 1997 to 20 June 2018, the LP held an unrestricted practicing
certificate. He continued to work as a lawyer in private practice.
8
6
Legal Practitioner 202021 v Council of the Law Society of the ACT [2021] ACAT 74 at [42]
7
[1938] HCA 34
8
Exhibit 3 at [3]
5
23. From 1 July 2007 to 11 May 2018, the legal practitioner was the sole director of
an Incorporated Legal Practice. The company was John Nicholl & Co. The
company traded as Nicholl & Co, and as Canberra Legal Group. On 11 May 2018,
the LP placed his company in liquidation.
9
24. From 23 July 2018 to 30 June 2019, the legal practitioner held a restricted
practicing certificate. He was employed under a contract with Tuggeranong
Legal.
10
25. From 29 September 2019 to 21 March 2020, the legal practitioner held a restricted
practicing certificate. He was employed under a contract with Pinto Lama
Lawyers and Advisers.
26. In very general terms, the terms of both above contracts were:
(1) The consultant would issue an invoice for professional fees plus GST to the
client.
(2) The consultant would issue an invoice to the principal for 70% plus GST of
the professional fees invoiced to clients.
(3) Upon the client making payment of the client’s invoice, the consultant’s
invoice would be paid by the principal to the consultant.
11
27. On 21 March 2020, the LP became bankrupt.
The friendship and the wills
28. In about 2000, the LP was a member at the Royal Canberra Golf Club (the Golf
Club). He met Mr Patrick Maher, who was the Director of Golf at the Golf Club.
The two men became good friends.
29. Mr Maher was the father of three children. His first wife, was Nadia Maher, died
shortly after the birth of their daughter Olivia in about 2004. His second wife,
Ms Reed, is the mother of their two younger boys.
9
Exhibit RR1 page 97, 150, exhibit 3 at [4]
10
Exhibit RR1 page 88
11
Exhibit RR1 page 31
6
30. In around 2012, Mr Maher and Ms Reed separated. They commenced family law
proceedings. The LP acted for Mr Maher in these proceedings. In about 2013, the
family law matter in relation to property were finalised by consent orders.
31. In about 2014, the family law matter in relation to parenting proceeded to hearing.
The Court orders included that Mr Maher and Ms Reed would have shared
parental responsibility for all three children. From the perspective of Mr Maher,
the outcome of the parenting proceedings was disappointing. The LP issued
invoices for the legal work, although he discounted the invoices “to reflect our
friendship”.
12
32. In about 2016, there were rumours that the Golf Club might restructure including
reducing staff numbers. In conversation at the Golf Club, Mr Maher sought advice
from the LP. The LP suggested various claims that might be available, against the
employer, if Mr Maher’s employment was terminated. They did not discuss the
matter again. The LP did not open a file, did not conduct any research, and did
not charge fees, for this advice.
13
33. Similarly, from time to time, the LP sought advice from Mr Maher regarding golf.
34. In about September 2018, Mr Maher was diagnosed with pancreatic cancer. In
time, the LP became aware of the diagnosis. In about November or December
2018, the LP offered to prepare a will for Mr Maher. The LP said words to the
effect of “have you got a will? Let’s get that sorted out. I’ll do it for you. I won’t
charge you.”
14
35. On 4 December 2018, Mr Maher sent an email to the LP, thanking him for his
offer to help with his will. The LP had expertise in drafting wills. From previous
conversations at the Golf Club, the LP had sufficient knowledge of Mr Maher’s
testamentary intentions and assets to draft a will.
15
12
Exhibit RR1 page 151, exhibit 3 at [10], transcript of proceedings dated 10 May 2021 page of
proceedings 10 May 2021 page 9
13
Transcript of proceedings 10 May 2021 pages 23, 67, exhibit 3 at [13]
14
Transcript of proceedings 10 May 2021 page 17, exhibit RR1 pages 12, 15, 151
15
Transcript of proceedings 10 May 2021 pages 18, 19
7
36. On 14 December 2018, the LP was present when Mr Maher signed the will at the
Golf Club. The will was witnessed by the LP and Mr Smith, a golf pro. At this
time, the LP was working with Tuggeranong Legal. The LP did not open a file or
charge professional fees. The LP kept the original of the will, and gave Mr Maher
copies.
16
37. In about 2018 and 2019, the LP and Mr Maher had one or more conversations
regarding Mr Maher’s intention to sell his house and place the proceeds in trust
for his children.
17
38. In about June 2019, Mr Maher told the LP that the above will contained a simple
error, in that his step mother, Ms Amanda Maher, was incorrectly described as
his sister. Mr Maher requested that the will be amended to correctly refer to
Ms Maher as his step mother. The LP had an electronic copy of the previous
will. The LP amended the will as requested. On 4 June 2019, the LP was present
when Mr Maher signed the will at the Golf Club. The will was witnessed by the
LP and Mr Smith. The LP did not open a file or charge professional fees. The LP
kept the original of the will, and gave Mr Maher copies.
18
39. In about September 2019, the LP and Mr Maher discussed the sale of his house.
At that time, the LP’s practice did not include conveyancing. The LP said that he
could not act on the conveyance, and recommended Les Klekner of Tuggeranong
Legal. In the course of their conversation, the LP suggested that Mr Maher create
a trust for his children.
19
40. In about September 2019, Mr Maher contacted the LP to request further
amendments to his will. The contact was by telephone or text (no
contemporaneous records are available). On 14 September 2019, the LP sent an
email to Mr Maher, enclosing a copy of the will executed on 14 December 2018.
On 15 September 2019, the LP sent an email to Mr Maher, including “this is the
16
Exhibit RR1 pages 121, 126, 151, 152, transcript of proceedings dated 10 May 2021 page 20,
exhibit 3 at [14]
17
Transcript of proceedings dated 10 May 2021 pages 30, 31
18
Exhibit RR1 page 137, 152, transcript of proceedings dated 10 May 2021 page 22, exhibit 3 at
[15]
19
Exhibit RR1 page 152, transcript of proceedings dated 10 May 2021 page 27
8
corrected will. You signed it earlier this year. Give me a call if you want to
discuss”. The LP attached an unexecuted version of the will of 4 June 2021.
20
41. A few days before 20 September 2019, the LP and Mr Maher spoke by phone.
Mr Maher said he had received some superannuation funds. He said –
spontaneously – “mate I can help you out if you need a hand, let me know how
much you need …” The LP said “but it would be a while before you get it back”.
The LP subsequently suggested the sum of $10,000 by email or text (no
contemporaneous records are available).
21
42. On 20 September 2019, the LP sent an email to Mr Maher, including “Patrick, if
you are liquidating your assets you might want to consider settling those into a
trust to protect the money from your children, we can talk about this”. The email
attached a copy of the executed will of 4 June 2019.
22
43. As at 20 September 2019, the LP was in significant financial difficulty (discussed
below). He was not employed. He did not hold a practicing certificate. The LP
had discussed his financial circumstances with Mr Maher at the Golf Club over
the preceding months.
23
44. Over the period 20-22 September 2019, the LP prepared another amended will.
In that period, the LP and Mr Maher spoke by telephone. The LP provided advice,
and Mr Maher provided instructions. Mr Maher was lucid during these
discussions.
24
45. On Sunday 22 September 2019, the LP and Mr Maher exchanged SMS messages,
including:
LP Pat, I sent another version. A loan would be nice if still available.
Talk anytime
PM Thanks John. I’ll amend soon and get it back to you. I don’t think I
can do $10K but happy to help you out mate
20
Exhibit RR1 pages 128-130
21
Exhibit 3 at [16]; transcript of proceeding 10 May 2021 pages 42, 43, 45
22
Exhibit RR1 pages 128, 136, 152; transcript of proceedings 10 May 2021 page 26, 27, 29, 62
23
Exhibit RR1 page 153; transcript of proceedings 10 May 2021 page 57
24
Exhibit RR1 pages 119, 152; transcript of proceedings 10 May 2021 pages 38-39
9
PM Just transferred 4K
PM Please let me know when it hits your account [smiley emoji]
LP Bless you anything is good. Did you get the new will?
PM Yes mate. Can I call you in about 2 hours to talk through the changes
…
25
46. On 22 September 2019, the LP sent an email to Mr Maher, attaching a draft will,
and including a request for further instructions regarding the disposition of the
body.
26
47. Importantly, the above loan was not documented. The terms were not discussed
or agreed, for instance, the date for repayment or interest. The loan was without
security. The LP did not advise Mr Maher to obtain independent legal advice.
27
48. On Monday 23 September 2019, the LP was present at Mr Maher’s home, when
Mr Maher signed the will. The will was witnessed by the LP and a neighbour.
The LP was satisfied that Mr Maher was competent. At this time, the LP was
working with Pinto Lama. The LP did not open a file or charge professional fees.
The LP kept the original of the will, and gave Mr Maher copies.
28
49. The will of 23 September 2019 contained the following amended or new clauses.
Clause 8. It is my express wish that upon my death I be cremated.
29
Clause 9. It is my express wish that my daughter Olivia live primarily with
her auntie Megan Granger and her uncle Lachlan Granger and that they
be her primary carers and guardians.
I expressly wish that my sons Cooper and Bailey continue to live under the
care of their mother Katherine Reed. It is my hope that Olivia will spend as
much time as she likes with her brothers and Katherine Reed.
30
50. On 23 September 2019, the LP and Mr Maher discussed other matters, including
Mr Maher’s intention to sell his house.
25
Exhibit RR1 page 2, 3
26
Exhibit 5; transcript of proceedings 10 May 2021 page 62
27
Exhibit 3 at [16]; transcript of proceedings 10 May 2021 page 53
28
Exhibit RR1 pages 12, 105; exhibit 3 at [17]
29
Note: the previous wills contained his express wish to be buried.
30
Exhibit RR1 pages 110, 129-134
10
51. On 23 September 2019, the bank credited the payment to the LP’s account. The
account transaction list includes the following entry:
31
Date
Description
Credit
23/9/19
Direct credit Patrick Maher loan John Nicholl
$4000
52. On Thursday 26 September 2019, Mr Maher died. On 3 October 2019, the LP
attended the funeral and wake for Mr Maher.
32
53. On 3 August 2020, the Executor of the Estate of Patrick Maher, advised that the
estate would not seek repayment of the loan, in recognition of the long-standing
friendship and support afforded by the LP to Mr Maher.
33
54. The above facts and circumstances are taken from the LP’s documents, and his
oral evidence, and are corroborated by the available contemporaneous
documents. There is no evidence to the contrary. I find these facts and
circumstances proven.
The legal practitioner’s financial difficulties as at September 2019
55. The relevant period for the charges is 14 to 23 September 2019. The relevant
events in this period include Mr Maher’s request to revise his will, Mr Maher’s
offer of a loan, the LP’s work on the will, the LP’s acceptance of a loan, the
execution of the will, and the bank transfer.
56. In the relevant period, the legal practitioner was in strained financial
circumstances with debts including:
(a) REDACTED
(b) REDACTED
(c) REDACTED
(d) REDACTED
31
Exhibit RR1 page 15
32
Exhibit 3 at [17]; transcript of proceedings 10 May 2021 page 63
33
Exhibit RR1 page 158
11
57. In the relevant period, the legal practitioner’s income was unreliable:
(a) His contract at Tuggeranong Legal ended on 30 June 2019.
(b) In an email dated 7 May 2019, the LP described his income as “broadly
equal to his living expenses”.
34
(c) His contract at Pinto Lama commenced on 20 September 2019, when his
restricted certificate was issued.
35
58. In the relevant period, the legal practitioner’s potential sources of funds included:
(a) REDACTED
REDACTED
(b) REDACTED
Note, if the application was successful, the LP’s client would have funds
from which to pay the LP in respect of legal costs. However, the application
failed in early September 2019.
36
59. REDACTED
60. REDACTED
The disputed allegations
61. On 10 December 2019, the applicant wrote to the LP, advising that the
Law Society had raised an own-motion complaint based on information received.
The Law Society asked a number of questions regarding the above loan and
surrounding circumstances. On 14 January 2020, the LP provided his answers.
The relevant questions and answers are as follows:
Question 1. When do you commence acting for Mr Maher in relation to the
will?
Answer 1. I offered to help Mr Maher with his will in November or
December 2018.
Question 2. Did you charge Mr Maher for your services? If so please
provide a copy of your invoices/receipts issued.
34
Exhibit RR1 page 54; transcript of proceedings dated 10 May 2021 pages 48; exhibit 3 at [5]
35
Exhibit RR1 page 47; exhibit 3 at [6]-[7]
36
Exhibit RR1 pages 22, 47, 55, 94; transcript of proceedings dated 10 May 2021 page 25
12
Answer 2. I did not charge Mr Maher for the Will or any of the
attendances. I helped him produce a will as his friend.
Question 3. What advice did you provide Mr Maher in relation to
borrowing funds from him? If any of this advice was in writing
please provide a copy of the advice.
Answer 3. I did not provide any advice about borrowing money from him.
He was aware of my financial position and knew that the
monies would be repaid eventually.
Question 4. Mr Maher states in an SMS that the amount of $4000 was
transferred to your account. Please provide a copy of the bank
statement to which the $4000 was transferred. Please also
advise what account this is ie. general office, trust or personal.
Answer 4. $4000 was transferred to my personal account on 23 September
2019. I enclose a copy of the statement.
Question 5. Were you aware when you sought the loan from Maher, that he
was gravely ill?
Answer 5. I was aware that Mr Maher was gravely ill when he offered to
lend me money.
Question 6. Was it your intention when you sought the loan from Mr Maher
to repay the loan to him? If so, please provide evidence of that
intention.
Answer 6. Mr Maher was aware that I [might] not be able to pay the loan
for some time. There was no discussion about terms.
37
[errors
in original]
…
62. Counsel for the applicant, in the course of cross examining the LP, advanced a
number of inferences and allegations that the LP denied.
63. Counsel for the applicant suggested that, in the relevant period, the LP was aware
that Mr Maher had only a few days to live. The LP denied that proposition.
No, that’s not right. I was aware he had cancer; I didn’t know how sick he
was until I saw him.
38
…on reflection, it seems that the word ‘not’ is missing …
39
37
Exhibit RR1 pages 4-6, 11-12, Law Society letter to LP dated 10 December 2019; LP letter to
the Law Society dated 14 January 2020
38
Transcript of proceedings 10 May 2021 page 45
39
Transcript of proceedings 10 May 2021 page 45 (in cross-examination about Question and
Answer 5 above)
13
I didn’t understand how ill until I saw him on Monday. So I was aware he
had a condition. He sounded quite normal to me.
40
I knew he had cancer; I didn’t realise his death was imminent until I saw
him on 23 September.
41
64. Counsel for the applicant suggested that, in the relevant period, the LP did not
inform Mr Maher of his perilous financial situation. The LP denied that
proposition:
… He was aware of my financial demise and that I was having great trouble
getting employment through conversations we had in the preceding months
at the golf club. He was also aware of the event that had occurred to me
since my business was put into liquidation in May 2019.
42
… At the point at which the loan was advanced I had just obtained
employment with Pinto Lama and it was my intention to repay the loan.
43
Patrick was aware from discussions between them that the Respondent was
having difficulties getting employment and that financially things were
tight. He was aware that the Respondent had an ongoing family law case
with his former partner Ms Hicks. At the time that the Respondent accepted
the loan the Respondent had every expectation of being able to repay the
loan in a short period of time.
44
65. Counsel for the applicant suggested that bankruptcy was inevitable. The LP
denied that proposition. REDACTED
66. Counsel for the applicant suggested that the LP had no means of repaying the loan
from Mr Maher. The LP denied that proposition. The LP said that, if he was made
bankrupt, he would repay the loan to Mr Maher or his estate. The LP said he
would earn income from Pinto Lama.
45
He might also receive payment of fees
from his previous contract at Tuggeranong Legal.
46
67. Counsel for the applicant invited the Tribunal to draw inferences and to make
findings in accordance with the above disputed allegations. The disputed
allegations are significant in the context of the charges brought against the LP. If
accepted, the disputed allegations would increase the objective seriousness of the
40
Transcript of proceedings 10 May 2021 pages 31
41
Transcript of proceedings 10 May 2021 pages 46
42
Exhibit 3 at [16]
43
Exhibit 3 at [16]
44
Exhibit RR1 page 153; transcript of proceedings 10 May 2021 page 51
45
Transcript of proceedings 10 May 2021 pages, 48, 51
46
Transcript of proceedings 10 May 2021 pages 51, 52
14
charges, and the moral culpability of the LP for his conduct. The allegations
require proof to a commensurate degree.
68. The LP denied the above allegations, and his denials are not contradicted. I have
also taken into account the decision of Mr Maher’s family not to recover the debt.
I accept the LP’s evidence and his denials as above.
69. I reject the above inferences and suggestions advanced by Counsel for the
applicant. I decline to make the findings advanced by Counsel for the applicant.
The work involved in drafting or amending a will
70. In cross examination, the LP described his “usual practice” in relation to a will at
Tuggeranong Legal as the following:
(a) Fact finder – document sent to the client to obtain the relevant names,
addresses, assets, liabilities, and “all manner of things”.
(b) Obtain instructions as to the client’s testamentary intentions – in person or
by telephone.
(c) Consider whether the LP is satisfied that the testator has sufficient
testamentary capacity.
(d) Prepare the draft will, based on the practitioner’s precedents, and applying
the practitioner’s expertise.
(e) Attending on the client, and confirming the draft is appropriate for the
testator’s testamentary intentions.
(f) Ensure testator signed the will in the presence of two eligible witnesses.
(g) The original will kept by Tuggeranong Legal.
47
71. In cross examination, the LP agreed that his work in drafting the amended will of
23 September 2019 included the above tasks, albeit only to the extent necessary
for a simple amendment to a simple will. The LP agreed that his work included:
(a) Attending on Mr Maher by telephone, taking instructions, preparing a draft
will.
47
Transcript of proceedings dated 10 May 2021 pages 13-14, 29
15
(b) Carrying out the above work with skill and care, and acting in the client’s
interests.
(c) Keeping the client’s information confidential.
48
72. I find that, in preparing the will that was executed on 23 September 2019, the LP
performed the necessary work for a simple amendment to a simple will.
73. In cross examination, the LP conceded that, when preparing a new will or
amending a will, he was providing legal services to clients of Tuggeranong Legal.
He qualified this concession with “in that context”. He also conceded that he
performed similar work for Mr Maher, but qualified this concession with “in
friendship”. The LP described Mr Maher as “a very special client and friend … it
was more, a friendship … he was both”.
49
I will consider this qualification below.
Was Mr Maher a client as at 23 September 2019?
74. The Legal Profession (Solicitors) Conduct Rules 2015 sets out the definitions that
apply to the rules in the glossary, including:
(a) ‘client’ with respect to the solicitor or the solicitor’s law practice means a
person (not an instructing solicitor) for whom the solicitor is engaged to
provide legal services for a matter.
(b) ‘engagement’ means the appointment of a solicitor or of a solicitor’s law
practice to provide legal services for a matter.
(c) ‘legal services’ means work done, or business transacted, in the ordinary
course of legal practice.
75. The Legal Profession Act 2006, section 16, prohibits a person engaging in legal
practice if the person is not entitled. The section contains examples of engaging
in legal practice. The section provides a number of defences and exceptions:
Examples of engaging in legal practice
1. Preparing a will or other testamentary instrument
48
Transcript of proceedings dated 10 May 2021 pages 54, 59, 61, 64, 65
49
Transcript of proceedings 10 May 2021 pages 14, 56, 59, 64
16
76. The Dictionary to the Legal Profession Act 2006 sets out definitions that apply to
the Act, including:
client–
(a) for this Act generally – includes a person to whom or for whom legal
services are provided
…
Legal services means work done, or business transacted, in the ordinary
course of legal practice including disbursements but not including interest.
77. A retainer can be inferred or implied from the state of affairs between the parties.
78. In McDonald v Grech; Bank of Western Australia Ltd v McDonald,
50
Justice
Ward said:
… [counsel] submits that whether a retainer exists for the provision of legal
or other professional services is to be judged objectively from the state of
affairs between the parties, referring to the statement by Giles JA in
Hendriks v McGeoch [2008] NSWCA 53 at [11] to the effect that the status
of the parties, the relationship between them and the nature of the putative
contract will bear upon whether a contract should be inferred to have been
made. It is noted that factors which have been recognised as indicative of
the existence of a retainer include the following:
• acceptance by the solicitor of responsibility to prepare documents or
do professional work without any indication that he cannot fully
discharge his professional duties to the client (Pegrum v Fatharly
(1996) 14 WAR 92 at 102, where it was said that in such a case there
is a strong bias towards finding that the solicitor tacitly agrees to act
and to undertake the usual professional responsibilities);
• consultation by the alleged client with the solicitor or evidence of
reliance by the alleged client on the solicitor (Pegrum at 102);
• the fact that the solicitor has acted for the alleged clients on previous
occasions (Hendriks at [12]);
• the giving by the solicitor of the impression of acting in the alleged
clients’ interests (Hendriks at [12]);
• payment of legal fees by the alleged clients (Pegrum at 6);
• the undertaking by the solicitor of work which appears to be in the
alleged clients’ interests (IGA Distribution Pty Ltd v King & Taylor
Pty Ltd and Anor [2002] VSC 440 at [234]), and/or which appears
to be legal in nature and goes “beyond the provision of casual
assistance” (Fleeton v Fitzgerald unreported, NSW Court of Appeal,
18 December 1998 per Beazley JA at 11);
50
[2012] NSWSC 717
17
• the fact that the solicitor does not make clear that he or she is not
acting for the alleged clients (Hendriks at [12]);
• knowledge of the solicitor that the alleged clients are not represented
by another solicitor (IGA at [234]);
• knowledge of the solicitor that the alleged clients would be at risk of
loss if their interests were not looked after (IGA at [234]);
• the unlikelihood, given the alleged clients’ inexperience or inability,
that they “would undertake and complete the proposed transaction
without the benefit of legal assistance” (Jeandin v Tzovaras [2011]
NSWSC 1254 at [62]-[65]).
51
79. I have found that, in preparing the will that was executed on 23 September 2019,
the LP performed the necessary work for a simple amendment to a simple will. I
make the following findings regarding the circumstances of the preparation of the
will:
Factor (1) The LP accepted responsibility to prepare the amended will, without
any indication that he could not fully discharge his professional duties
to the client.
Factor (2) Mr Maher asked the LP to prepare an amended will, Mr Maher relied
on the LP to prepare an amended will.
Factor (3) The LP has acted for Mr Maher on previous occasions.
Factor (4) The LP was acting in Mr Maher’s interests, the LP understood that
Mr Maher’s instructions were confidential.
Factor (5) The LP did not request payment of legal fees from Mr Maher.
Factor (6) The work involved in preparation of the amended will was legal in
nature, notwithstanding the work involved a simple amendment of a
simple will; the preparation of the amended will was in Mr Maher’s
interests, the preparation of the amended will goes “beyond the
provision of casual assistance”.
Factor (7) The LP did not make it clear that he was not acting for Mr Maher.
Factor (8) The LP was not aware of any other solicitor who was engaged by
Mr Maher.
51
McDonald v Grech; Bank of Western Australia Ltd v McDonald [2012] NSWCA 717 at [80]
18
Factor (9) The LP was aware that Mr Maher’s estate would be at risk of loss if
its interests were not looked after.
Factor (10) Although this was a simple amendment to a simple will, Mr Maher
was unlikely to prepare an amended will himself, given his
deteriorating health.
80. Relevant to Factor (5), Justice McCallum said in Moss v Eagleston:
52
The degree of care and skill required in the performance of a professional
task cannot logically be informed by the extent of renumeration which the
lawyer agrees to accept for the task. The task is the same in any case. No
lawyer is obliged to undertake work on a pro bono basis, but those who
choose to do so must in my view by held to the same standard of care as
those who request payment for their services.
53
81. Counsel for the respondent submitted that the following characteristics indicated
there was no solicitor-client relationship as at September 2019:
Factor (A) This was a simple amendment to a simple will. The LP did not open
a file. The task of amending the will was “administrative”.
Factor (B) The LP did not request payment of legal fees from Mr Maher.
Factor (C) The LP and the testator were good friends.
82. I have considered the above factors (1) to (10), and factors (A) to (C). In all the
circumstances, I find that, in the period 20 to 23 September 2019, the LP was
engaged and appointed by Mr Maher to provide legal services. I find that the LP
accepted that engagement and appointment, and provided the said legal services
for Mr Maher.
83. I find that the work was a simple amendment to a simple will. I find that the LP
did not request payment of legal fees. I find that that the LP carried out the work
in the context of his friendship with Mr Maher. I find that the Mr Maher was both
a friend and a client when the LP carried out the work.
52
[2014] NSWSC 6
53
Moss v Eagleston [2014] NSWSC 6 at [81]
19
84. I find that a solicitor and client relationship existed in the period 20 to
23 September 2019.
Characterisation
85. The Act contains two grounds for disciplinary action – unsatisfactory
professional conduct and professional misconduct – they are both defined in the
Act as follows:
386 What is unsatisfactory professional conduct?
In this Act:
unsatisfactory professional conduct includes conduct of an Australian
legal practitioner happening in connection with the practice of law that
falls short of the standard of competence and diligence that a member of
the public is entitled to expect of a reasonably competent Australian legal
practitioner.
387 What is professional misconduct?
(1) In this Act:
professional misconduct includes—
(a) unsatisfactory professional conduct of an Australian legal
practitioner, if the conduct involves a substantial or consistent
failure to reach or maintain a reasonable standard of
competence and diligence; and
(b) conduct of an Australian legal practitioner whether happening
in connection with the practice of law or happening otherwise
than in connection with the practice of law that would, if
established, justify a finding that the practitioner is not a fit and
proper person to engage in legal practice.
(2) For finding that an Australian legal practitioner is not a fit and
proper person to engage in legal practice as mentioned in subsection
(1), regard may be had to the suitability matters that would be
considered if the practitioner were an applicant for admission to the
legal profession under this Act or for the grant or renewal of a local
practising certificate.
86. Without limiting section 386 or section 387, section 389 prescribes conduct by
an Australian legal practitioner that can be ‘unsatisfactory professional conduct’
and ‘professional misconduct’, including:
(a) conduct consisting of a contravention of the LPA, and the admission rules,
and the Court Procedures Rules 2006;
(b) charging of excessive legal costs in connection with the practice of law;
20
(c) conduct in relation to which there is a conviction for – a serious offence; a
tax offence; or an offence involving dishonesty;
(d) conduct as or in becoming an insolvent under administration;
(e) conduct in becoming disqualified from managing or being involved in the
management of any corporation under the Corporations Act 2001;
(f) conduct in failing to comply with an order of the ACAT made under this
Act or an order of a corresponding disciplinary body made under a
corresponding law (including but not limited to a failure to pay all or part
of a fine imposed under this Act or a corresponding law);
(g) conduct in failing to comply with a compensation order made under this
Act or a corresponding law.
87. In Legal Practitioner v Council of The Law Society of The Australian Capital
Territory
54
, Justice Refshauge said:
In brief, [the complaint by the Law Society] referred to the definitions of
“unsatisfactory professional conduct” and “professional misconduct” in
ss 386 and 387, respectively, of the Legal Profession Act. As the definition
of the latter term is an inclusive definition, it pointed out that the general
law as to the meaning of “professional misconduct” as set out in Allinson
v General Council of Medical Education and Registration [1894] 1 QB 750
at 763-7 applied, namely that where a professional engages in behaviour
that would reasonably be regarded as disgraceful or dishonourable by
professional colleagues who are of good repute and competency that
constitutes professional misconduct. That approach has been followed in
Australia: Re Veron; ex parte Law Society of New South Wales [1966] 1
NSWR 511 at 515; Re A Solicitor [1960] VicRp 96; [1960] VR 617 at 620;
Prothonotary of the Supreme Court of New South Wales v Costello [1984]
3 NSWLR 201 at 203; Adamson v Queensland Law Society Inc [1990] 1 Qd
R 498 at 507. It has expressly been held applicable in this Territory in
Chamberlain v Law Society of the Australian Capital Territory [1993] FCA
527; (1993) 43 FCR 148 at 153, 168. Such conduct requires more than
mere negligence, though it may be constituted by gross negligence or
recklessness.
…both are “inclusive” definitions. In my view, that means that the common
law definitions are not necessarily excluded, unless, of course, they are
inconsistent with the statutory definitions.
54
[2014] ACTSC 13
21
I have referred earlier (at [77]) to the common law, where professional
misconduct has been defined in Allinson v General Council of Medical
Education and Registration, an approach followed in Australia.
55
88. In Council of the Law Society of the ACT v Legal practitioner ‘S’ (Steven
Gavagna)
56
Senior Member Lunney SC said:
The LPA gives the Tribunal power to make orders to discipline legal
practitioners where the Tribunal is satisfied that a practitioner is guilty of
either unsatisfactory professional conduct or professional misconduct.
These terms are defined in sections 386 and 387 of the LPA respectively.
The definitions are inclusive definitions. They add to the relevant common
law rather than replace it.
The statutory definition of unsatisfactory professional conduct set out in
section 386 includes conduct that falls short of the standard of competence
and diligence that a member of the public is entitled to expect of a
reasonably competent practitioner.
It is described in Riley Solicitors Manual in this way:
These standards are not to be determined by reference to lawyers who
are without fault, but of the reasonably competent lawyer. As such,
the standard of reasonableness invoked by the definition aims to
distinguish between conduct that falls within a tolerable range of
human error and bad professional work which falls below reasonable
standards of competence and diligence.
89. ‘Professional misconduct’ is defined in section 387 as including unsatisfactory
professional conduct that involves a substantial or consistent failure to reach or
to maintain a reasonable standard of competence and diligence. It also includes
conduct that justifies a finding that the practitioner is not a fit and proper person
to engage in legal practice.
90. The common law definition of ‘professional misconduct’ is drawn from a test
formulated in the English medical profession case of Allinson v General Council
of Medical Education and Registration.
57
In summary, the test provides that a
professional engages in professional misconduct if his or her behaviour would
reasonably be regarded as disgraceful or dishonourable by professional
colleagues who are of good repute and competency. The test has been recognised
55
Legal Practitioner v Council of The Law Society of The Australian Capital Territory [2014] ACTSC 13 at
[77], [307]-[308]
56
[2016] ACAT 72 at [111]-[113]
57
[1894] 1 QB 750 at 763.5-7
22
as applying to Australian legal practitioners in a long line of authorities, such as
Chamberlain v Law Society of the Australian Capital Territory.
58
91. In Council of the NSW Bar Association v EFA (a pseudonym) (EFA),
59
the Court
of Appeal said:
To justify a finding of unfitness the conduct in question must be seen in
context. But, in the two-stage process by which disciplinary proceedings
are ordinarily conducted in the Tribunal, much of that which properly
informs a holistic assessment of the character of the lawyer concerned, and
therefore his or her fitness to engage in legal practice, will not be known
until Stage 2 – by which time the conduct has been characterised as
unsatisfactory professional conduct or professional misconduct. It does not
seem right to characterise conduct as professional misconduct merely
because, objectively speaking, it would justify a finding of unfitness if, after
consideration of other relevant factors, such a finding would not be justified
or warranted. It is only necessary to look at the facts in Ziems and A
Solicitor to see that unfitness is not measured by the objective
circumstances of the conduct alone.
A finding that the impugned conduct would justify a finding of unfitness
needs to be made in the context of all available evidence at the time of Stage
1 of the proceeding. It may be, in some cases, that the Commissioner or the
relevant professional association has available to it evidence of other
instances of conduct similar to, or equally discreditable as, that under
consideration; clearly that would be a relevant factor in the determination
of whether the conduct in question (not being isolated) was such as to justify
a finding of unfitness. That is not this case: so far as the evidence (at the
Stage 1 hearing) goes, this was indeed an isolated instance of appalling
conduct on the part of the respondent. (At this point, the evidence given at
the Stage 2 hearing that adds weight to that inference must be ignored).
“Poorly judged, vulgar, and inappropriate” as the Tribunal correctly
found the conduct to be, we are not persuaded that the Tribunal was wrong
to decline to characterise it as conduct that would (of itself) justify a finding
of unfitness. There was nothing to add to that conduct to warrant a finding
of unfitness.
Consideration of Charge 1 – borrowing money from a client.
92. Charge 1 alleges that:
The respondent borrowed money from a client in breach of Rule 12.3.1.
Particulars
(a) The respondent was delivering legal services to Mr Maher in
September 2019, namely preparing and witnessing a will.
58
(1993) 118 ALR 54, 58-59
59
[2021] NSWCA 339
23
(b) Mr Maher was a current client of the Respondent between 20
September 2019 and 23 September 2019
(c) During the course of delivering those legal services, the respondent
borrowed money in the sum of $4,000 from Mr Maher.
Rule 12.3.1 relevantly provides
A solicitor must not borrow any money … from … a client of the solicitor
or of the solicitor’s law practice …
93. I make the following relevant findings of fact. Shortly before 20 September 2019,
Mr Maher asked the LP to prepare an amended will. At about the same time,
Mr Maher told the LP that he had received a superannuation payment, and offered
a loan. Over the weekend 21-22 September 2019, the LP revised the will. On
22 September 2019, the LP accepted the offer of a loan. On the same day, the LP
provided a draft will – including a request for further instructions. On the same
day, Mr Maher sent a message to the effect that he had deposited $4,000. On
23 September 2019, the LP attended Mr Maher’s home, and the final version of
the will was executed. On the same day, the amount of $4,000 was credited to the
LP’s personal bank account.
94. I am satisfied that Mr Maher was a client of the LP. I am satisfied that the LP
borrowed money from Mr Maher, when the LP was providing legal services to
Mr Maher, and when Mr Maher was a client of the LP.
95. I am satisfied that the LP has breached rule 12.3.1. I find this charge proved.
96. Counsel for the applicant referred to Council of the NSW Law Society v
McEnroe
60
(McEnroe). In that decision, the NSW Civil and Administrative
Tribunal (the NSW Tribunal) held that a solicitor who borrowed from a
longstanding client and friend was guilty of professional misconduct.
97. In McEncroe, the NSW Tribunal observed that the solicitor’s case, as contained
in the solicitor’s submissions, included the following assertion:
(g) There is no evidence that Mr McEncroe solicited the loan. The only
evidence is that of Mr McEncroe, which was to the effect that (the
client) wanted to lend money to Mr McEnroe, and Mr McEncroe
accepted the offer as much to accommodate the wishes of his friend
60
[2015] NSWCATOD 109
24
as for any other reason. He was not stressed financially and had no
particular need of the loan.
98. Importantly, the NSW Tribunal does not make express findings consistent with
paragraph (g) above. The NSW Tribunal considers a number of decisions relating
to solicitors obtaining loans from clients, with various aggravating features (for
instance, the solicitor had solicited the loan from the client, and/or appropriated
the client’s funds without the client’s knowledge or permission, and/or misled the
client). In all the circumstances, I find that the decision in McEncroe may be
distinguished from the present matter.
99. I make the following relevant findings of fact. Mr Maher spontaneously and
independently offered to make a loan to the LP. The LP accepted Mr Maher’s
offer of a loan. The LP did not initiate the loan, and did not exercise improper
influence. Mr Maher deposited the funds into the solicitor’s personal bank
account (not a practice account). At the time of making the loan, Mr Maher was
fully aware of the LP’s strained financial circumstances.
100. In accordance with EFA, I have taken into account the objective and subjective
circumstances in considering the characterisation of the conduct.
101. I find that the LP’s conduct in breach of rule 12 is unsatisfactory professional
conduct.
Consideration of Charge 2 – failing to act in the best interests of his client
102. Charge 2 alleges that:
The Respondent failed to act in Mr Maher’s best interests and failed to
avoid any compromise to his integrity and professional independence in
breach of Rules 4.1.1 and 4.1.4
Particulars
(a) The respondent was delivering legal services to Mr Maher in
September 2019, namely preparing and witnessing a Will.
(b) Mr Maher was current client of the Respondent between
20 September 2019 and 23 September 2019
(c) During the course of delivering those legal services, the Respondent
borrowed money in the sum of $4000 from Mr Maher
(d) The Respondent did not advise Mr Maher to obtain independent
advice in relation to the loan.
25
(e) The respondent did not document the terms of the loan.
103. Rule 4.1 relevantly provides:
4 Other Fundamental Ethical Duties
4.1 A solicitor must also:
4.1.1 act in the best interests of a client in any matter in which the
solicitor represents the clients
4.1.4 avoid any compromise to their integrity and professional
independence; …
104. I make the following relevant findings of fact. In September 2019, Mr Maher was
aware of the LP’s financial difficulties. The loan was offered by Mr Maher in the
context of a long-standing friendship, and his imminent death. I take into account
that the beneficiaries of Mr Maher’s estate have forgiven the loan.
105. Rule 4.1.1 refers to best interests of a client. Best interests is not necessarily
limited to financial considerations, but may include more general considerations.
Mr Maher, on the basis of the information available to him, was competent to
determine his best interests. I am not satisfied that the loan was contrary to
Mr Maher’s best interests generally.
106. I find that the LP accepted and received a loan from his client, at a time that the
LP was performing legal services. I am satisfied that, to some extent, the LP’s
integrity and professional independence was compromised in the circumstances.
107. I am satisfied that the LP failed to avoid any compromise to his integrity and
professional independence in breach of rule 4.1.4 I find this charge proved.
108. In accordance with EFA, I have taken into account the objective and subjective
circumstances in considering the characterisation of the conduct.
109. I find that the LP’s conduct in breach of Rule 4.1.4 is unsatisfactory professional
conduct.
Consideration of Charge 3 – Conduct which would bring the profession into
disrepute
110. Charge 3 alleges that:
The respondent engaged in conduct which either demonstrates that he is
not a fit and proper person to practice law or, alternatively, which is likely
26
to a material degree to bring the profession into disrepute in breach of Rule
5.
Particulars
(a) The respondent was delivering legal services to Mr Maher in
September 2019, namely preparing and witnessing a Will.
(b) During the course of delivering those legal services, the Respondent
borrowed money in the sum of $4000 from Mr Maher
(c) The Respondent did not advise Mr Maher to obtain independent
advice in relation to the loan.
(d) The respondent did not document the terms of the loan.
(e) Mr Maher was extremely ill and highly vulnerable at the time that he
agreed to lend money to the Respondent.
111. Rule 5 relevantly provides:
Rule 5 Dishonest and Disreputable Conduct
5.1 A solicitor must not engage in conduct, in the course of practice
or otherwise, which demonstrates that the solicitor is not a fit
and proper person to practice law, or which is likely to a
material degree to: …
5.1.2 bring the profession into disrepute
112. In EFA, the practitioner’s conduct at a Barristers and Clerks’ Dinner was
described as “poorly judged, vulgar and inappropriate”. The barrister’s conduct
was found to be “discreditable” and “conduct likely to bring the profession into
disrepute”. Further, the conduct by EFA was found to be unsatisfactory
professional conduct, because the conduct was in breach of NSW Bar Rule 8,
which prescribe conduct that brings the Bar into disrepute.
113. I have taken into account all the facts and circumstances of the loan of 22-23
September 2019. In particular, I have taken into account the long standing
friendship between the LP and Mr Maher. I note the affidavit of Ms Amanda
Maher and that she was not required for cross-examination. I am not satisfied that
the conduct of the LP in September 2019 demonstrates that he is not a fit and
proper person to practice law.
114. In accordance with EFA, I have taken into account the objective and subjective
circumstances in considering the characterisation of the conduct. In all the
circumstances, I am satisfied that the LP’s conduct in accepting the loan from a
client is likely to a material degree to bring the profession into disrepute.
27
115. I find that the LP’s conduct in breach of rule 5.1.2 is unsatisfactory professional
conduct.
Orders
116. The matter is listed for further hearing on 24 May 2022 at 10:00am and
submissions in relation to penalty.
117. I note that charges 1, 2 and 3 all arise from the same facts and circumstances, and
the elements of the charges overlap. I will hear the parties as to whether one or
more charge should be dismissed as duplicitous.
118. These reasons are to be released only to the parties until further order.
………………………………..
Senior Member T Warwick
Date(s) of hearing:
10 May 2021
Counsel for the Applicant:
Ms V Thomas
Solicitors for the Applicant:
Ms K Binstock, McInnes Wilson Lawyers
Counsel for the Respondent:
Mr K Archer
Solicitors for the Respondent:
Mr R Barnett, Graeme C Nettle & Associates
