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13.02.2009 General News

Ruling: New South Wales Bar Association v Osei-Ameyaw

By Australasian Legal Information Institute
Ruling: New South Wales Bar Association v Osei-Ameyaw


Ex-Deputy Minister for Tourism, Kofi Osei-Ameyaw, won a legal suit in which the New South Wales (NSW) Bar Association in Australia had dragged him to court for an alleged unsatisfactory professional misconduct and also for allegedly providing two misleading and false responses to the Association.

The court, in its final ruling, dismissed both counts, acquitted Osei-Ameyaw of any illegal conduct and further ordered that Kofi Osei-Ameyaw should make any application he may wish to make in relation to the costs of these proceedings within a short but reasonable time.

Below is the Court's ruling.
New South Wales Bar Association v Osei (No 2) [2008] NSWADT 324 (5 December 2008)

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL
CITATION:
New South Wales Bar Association v Osei (No 2) [2008] NSWADT 324

DIVISION:
LEGAL SERVICES DIVISION
PARTIES:
APPLICANT
Council of the New South Wales Bar Association

RESPONDENT
Kofi Ameyaw Osei

FILE NUMBERS:
042039, 042040
HEARING DATES:
17, 18, 19 November 2008

SUBMISSIONS CLOSED:
19 November 2008
DATE OF DECISION:
5 December 2008
BEFORE:
Blacket P SC - Judical MemberWright R, SC - Judical MemberHayes E - Non-Judicial Member

LEGISLATION CITED:
Legal Profession Act 1987 (NSW)
Legal Profession Act 2004 (NSW)
Migration Act 1958 (Cth)

CASES CITED:
A Solicitor v Council of the Law Society of New South Wales (2004) 126 CLR 253
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
New South Wales Bar Association v Cummins (2001) 52 NSWLR 279

TEXTS CITED:
APPLICATION:
Barrister – Disciplinary application

MATTER FOR DECISION:
REPRESENTATION:
APPLICANT
P G Mahony SC
P Skinner, barrister
RESPONDENT
B Walker SC
T Williams, solicitor

ORDERS:
1 Each of Informations 042039 and 042040 be dismissed.
2 The Respondent have leave to make any application in relation to the costs of these proceedings within 14 days of the date of these orders.

Reasons for Decision:
1 The Tribunal has before it two informations filed by the Council of the New South Wales Bar Association (the 'Bar Association') against a Barrister, Mr Kofi Ameyaw Osei (the 'Barrister').

2 In the first information, number 042039, the Bar Association alleges that the Barrister provided two misleading and false responses to the Bar Association in his letter dated 28 June 2002 and by so doing was guilty of professional misconduct in respect of each response.

3 In the second information, number 042040, it is alleged that the Barrister was guilty of unsatisfactory professional conduct by failing to advance and protect the interests of his clients when the Barrister appeared on their behalf in the Refugee Review Tribunal on 10 September 2001.

4 Each of the informations was filed on 24 December 2004 and relates to conduct which occurred prior to that date. By operation of Schedule 9, Clause 15 of the Legal Profession Act 2004 (NSW) and as each proceeding was pending immediately before the commencement date of that Act, namely 1 October 2005, the complaints the subject of the informations fall to be dealt with as if the Legal Profession Act 2004 had not been enacted. Thus, in all relevant respects, the informations are to be considered under the Legal Profession Act 1987 (NSW).

Background
5 The Barrister was admitted to the Bar in New South Wales in 1992 and obtained his practicing certificate on 8 May 1992. He continued to hold a practicing certificate until 30 June 2004. He did not, however, renew his New South Wales practicing certificate after that date because he had returned permanently to Ghana.

6 At the times relevant to the informations before the Tribunal, the Barrister practiced from Downing Chambers at Level 9, 307 Pitt Street, Sydney.

7 From 1992, the Barrister was also a Director of Caprock International Pty Ltd ('Caprock') which was a company formed by the Barrister and his wife, Liba Osei. Among other things, Caprock conducted an immigration consultancy business and both the Barrister and his wife were, at the relevant times, registered migration agents under the Migration Act 1958 (Cth).

8 It was as a result of the immigration consultancy business of Caprock, that the Barrister and his wife came into contact with Mr & Mrs Bautista. Mr & Mrs Bautista and their children had arrived in Australia on a three month tourist visa in late 1999. This tourist visa was extended for six months with an expiry in June 2000.

9 According to the chronology tendered by the Bar Association without objection, the Bautistas met the Barrister through a friend whose brother had been assisted by the Barrister's wife to obtain New Zealand citizenship.

10 On 16 February 2000, Mr Bautista signed an agreement under which he retained Caprock as immigration consultants. This was initially for the purpose of the Bautistas applying for a temporary long stay business (sub class 457) visa.

11 On 22 June 2000, the sub class 457 visa application was lodged with the Department of Immigration & Multicultural Affairs (the 'Department') on behalf of the Bautistas. This visa application was refused by the Department on 18 January 2001. The Bautistas were informed of the Departmental refusal on 22 January 2001.

12 On 16 February 2001, Caprock received instructions from Mr Bautista to prepare an urgent protection visa application for himself and his family. The letter confirming those instructions also contained confirmation of the advice in conference that such an application was not likely to succeed in the absence of evidence in support of the Bautistas' claims.

13 It appears that Mr Bautista spent approximately 1.5 hours in conference with the Barrister on 16 February 2001 and, on that same day, the Barrister prepared a handwritten document on paper headed 'Caprock Immigration Consultants – Client Discussion/File Notes and Costs Sheet'. That document was titled 'Draft Statement of Claim' and recorded information as to Mr Bautista's connection with the family of former President Estrada of the Philippines and related matters.

14 On 20 February 2001, Mr Bautista and his wife and at least one of their daughters made statutory declarations before the Barrister's wife and it appears these statutory declarations were in support of, and part of, the application for protection visas to be lodged on the Bautistas' behalf. The next day Mr Bautista signed a Department of Immigration & Ethnic Affairs form headed 'Appointment of Person to Act as Agent' in which the Barrister's wife was specified as the migration agent acting on the Bautistas' behalf.

15 The Tribunal had before it what appeared to be an incomplete copy of documents constituting the application for protection visas lodged on behalf of the Bautistas' on 22 February 2001 (the 'Application'). The pages included Part B headed "Persons included in this application and family composition" and "Application for a Protection Visa (866)", Part C headed "Application for an applicant who wishes to submit their own claim to be refugee" and "Application for a Protection Visa (866) which was completed for Mr Bautista and 4 Parts D each headed "Application for a member of the family unit" and "Application for a Protection Visa (866)" completed for Mrs Bautista and their 3 children. It appears from the numbering of the pages (where this can be discerned) and the numbering of the items in the various Parts of the form that the photocopy before the Tribunal only included every second page. There was no Part A. There appeared to be before us 16 pages of the Application. We have no way of knowing how many pages were included in the Application (composed of the relevant parts of the departmental forms and supporting documentation) actually lodged on the Bautistas' behalf.

16 In Part B of the Application, the Barrister's wife was named at the migration agent who assisted in preparing the Application and she was also identified as the migration agent who represented all of the Bautistas in relation to the Application.

17 In Part C of the Application in response to the question 'What do you fear may happen to you if you go back to that country?' are the words 'Please refer to my Statement of Claim', and similarly, in response to another question in that part 'Do you think the authorities of that country can and will protect you if you go back? If not, why not?' are the words 'Please see the Statement of Claim attached'.

18 The Statement of Claim referred to appears to be a type written document headed 'Statement of Claim' signed by Mr Bautista and dated 21 February 2001. The contents of the typed Statement of Claim are substantially similar to the hand written draft prepared by the Barrister on 16 February 2001 but there are significant additions and a number of emendations of style and content. It can be inferred that further work was done on the Draft Statement of Claim before it took the final form of the typed document which was referred to in Part C of the Application.

19 In addition the statutory declarations already referred to appear to have been prepared for the purposes of the Application and may have been submitted with the forms identified above.

20 The Barrister did not dispute that he had indeed prepared the handwritten notes headed 'Draft Statement of Claim'. There was, however, no evidence to suggest that the Barrister had any involvement, apart from that, in preparing, obtaining or completing any of the forms and other documents which were submitted to the Department on 22 February 2001 as part of the Application.

21 Indeed, in cross examination, the Barrister drew a distinction between "my handwritten notes the draft [statement of claim] that I made" and "the application which went to the Department of Immigration, which had the statement of claim and other documents attached to it". He acknowledged he prepared the former but in relation to the latter said:

'the application for protection visa, which went to the minister [sic, this should be the Department] at the time, ... I did not prepare that document ...'.

22 We have no basis on which to reject that evidence and indeed it is consistent with the notation on the application form that it was the Barrister's wife who was the registered migration agent who assisted the Bautistas to prepare the Application. It is also consistent with the evidence of the Bautistas that it was Ms Mary Choi, an employee of Caprock, who typed up much of the documentation.

23 On 7 June 2001, the Department refused the Bautistas' application for protection visas. An application for review by the Refugee Review Tribunal ('RRT') of that refusal to grant protection visas was subsequently lodged on the Bautistas' behalf.

24 On 10 September 2001, the application for review came on for hearing before the RRT. Mr Bautista was present and he was accompanied by the Barrister, who appeared in his capacity as a registered migration agent and Mr Bautista's advisor. It was common ground between the parties before us that the Barrister had no right of appearance before the RRT in his capacity as a barrister and only registered migration agents may 'appear' for or 'act as an advisor' to applicants for review in the RRT.

25 During the hearing in the RRT, the following exchanges occurred between Mr Russell, the member of the RRT hearing the matter, and the Barrister (as set out in the transcript):

Mr Russell: Mr Bautista, I don't accept your claim that this individual was murdered in November 2000 because according to the information that was sent to you in [sic] your advisor by the Tribunal on 20 August this year, according to the son of one of the - sorry, to one of the son's [sic] of Estrada, Estrada's family has received death threats but there was no documentation that any murders or death threats occurred with respect to any of the immediate or extended family of Estrada and therefore, I suggest that your claims are at odds with that independent evidence. Would you like to comment?

Mr Bautista: I have some documents here with me. I'll like to show the document, please.

Mr Russell: That's fine, but first of all, could you please reply to my comment?

Mr Osei, please, I'll wait.
Mr Osei: No, no, but you mentioned ---
Mr Russell: Mr Osei, please.
Mr Osei: But you mentioned advisor. Excuse me, sir.

Mr Russell: Excuse me, I gave you leave to make representations at the end ---

Mr Osei: Well, I'm seeking leave because ---
Mr Russell: No ... No, it's refused ---
Mr Osei:--- because you mentioned my name - you mentioned advisor and you had sent documents to him - an adviser. I would like to ---

Mr Russell: Mr Osei! Excuse me - I'll wait - you can make your representations at the end.

Mr Osei: If you are not going to give me an opportunity then I will be submitting that these proceedings ---

Mr Russell: Excuse me!
Mr Osei: --- are not being held fairly.
Mr Russell: That's fine.
Mr Osei: I would like to take my leave. Can you give us time so I can seek instructions from my client. You don't want to give me ---

Mr Russell: No.
Mr Osei: Excuse me.
Mr Russell: The hearing is proceeding. I will give you representation time at the end of the hearing as indicated.

Mr Osei: Then don't make assertions that you have send documents to the adviser without me having the opportunity to comment. This is a denial of the rules of natural justice. You are denying us procedural fairness, sir.

Mr Russell: Well, guess what?
Mr Osei: What.
Mr Russell: Documents were sent to you and the applicant on 20 aug. Do you deny that?

Mr Osei: No, but I would like to comment on that.
Mr Russell: You will have a chance at the end of the hearing. Thank you! Could you please answer my question?

Mr Osei: You are putting things to the applicant - I am sitting here - you are making claims for the applicant ---

Mr Russell: Mr Osei! One more statement and you will leave the rooms.

Mr Osei: I am quite happy to go if you give me an opportunity to confer with my client. Now ---

Mr Russell: No.
Mr Osei: --- is this going to be a kangaroo tribunal or are you going to give us, the applicant, a fair opportunity to state his case?

Mr Russell: Mr Osei, I have given you a chance.
Mr Osei: You aren't giving me a chance
Mr Russell: Okay. Would you please leave.
Mr Osei: You haven't given me ---
Mr Russell: Would you please leave.
Mr Osei: Can I have opportunity with my client?
Mr Russell: No.
Mr Osei: Why not?
Mr Russell: No.
Mr Osei: This is my application to the Tribunal. You, you are ---

Mr Russell: Can you please leave Mr Osei?
Mr Osei: You are holding this - can I have an opportunity with my client?

Mr Russell: No, Mr Osei.
Mr Osei: This is an application.
Mr Russell: Mr Osei! Do you want me to have a hearing officer remove you?

Mr Osei: I don't want you to ---
Mr Russell: Can you please leave then because you are disturbing this hearing.

Mr Osei: Well - can I seek some instructions from my client?

Mr Russell: No, that is denied.
Mr Osei: It is denied?
Mr Russell: Uh hmm.
Mr Osei: Well, he doesn't want to attend this hearing.

Mr Russell: Could you please leave, Mr Osei?
Mr Osei: Yes, but I just want an opportunity ---
Mr Russell: No, that's refused. The hearing will proceed

Mr Osei: This is not fair.. What you are doing is not fair.

Mr Russell: That's right.
Mr Osei: And you are exceeding the powers, sir ---
Mr Russell: Could you please leave Mr Osei? I have given you enough opportunity ---

Mr Osei: You haven't given me an opportunity to answer the questions that you are putting to my client that affects me.

Mr Russell: I gave you the opportunity to do that at the end of the hearing. If you don't like that, you can leave.

Mr Osei: Okay, I will take that, but I think that if you are going to put things to my client ---

Mr Russell: Mr Osei, you have disturbed this hearing, please leave.

Mr Osei: I am taking that. I am taking that, to respond to that ---

Mr Russell: I have asked you to leave. Do you want me to get the hearing officer?

Mr Osei: No, I don't want you, but you said - no - if you don't want me to stay I will leave - but at the end of the day ---

Mr Russell: Could you please send the security guard to room number 9 to have an adviser removed, thank you.

Mr Osei: You are not giving me the opportunity to respond?

Mr Russell: Could you please answer my question, Mr Bautista?

Mr Bautista: Could you please repeat the question?
Mr Russell: As I suggested to you before, documents were sent to your advisor on 20 August this year which indicate that only the son of Mr Estrada has indicated that the immediate family has received death threats. There is no evidence that either the immediate family members or extended family members have in fact been murdered or received any death threats, and therefore I suggest to you that your claims are at odds with that evidence. Would you like to comment?

Unknown: We don't actually have a security guard here at the moment?

Mr Russell: Well, I would like somebody then to remove the advisor because he has disturbed the hearing and he has refused to leave when I asked him to leave.

Mr Osei: For the purposes of the record, I have sought - you have sought - you have sought ---

Mr Russell: Mr Osei, could you please leave - I have asked you many times.

Mr Osei: Yes, I will leave - but for the purposes of the record I want to state unequivocally to ---

Mr Russell: You have already made your representations.

Mr Osei: Please, can you let me ---
Mr Russell: No, Mr Osei, that is refused. Could you please leave?

Mr Osei: I will leave but I just want to state on the record ---

Mr Russell: Could you please answer my question.
Mr Osei: I would like to seek opportunity to speak to my client ---

Mr Russell: That has been refused.
Mr Osei: Can you seek leave that you would like to speak to your advisor?

Unknown: Please can you leave the room?
Mr Osei: Yes, I am leaving.
(A number of transcription errors were noted on listening to the tape recording but none appeared to us to be of any significance for present purposes).

26 The Barrister thereafter withdrew from the hearing and took no further part in it.

27 As it happens, the RRT by facsimile dated 10 September 2001 sent to Caprock, invited Mr Bautista to make any further written submissions he wished to the Tribunal before a specified date. Further, on the same day as the hearing, the Barrister prepared a letter of complaint concerning what had occurred in the RRT for Mr Bautista to sign and send. The Barrister's evidence was that if he had received instructions from Mr Bautista to make written submissions on Mr Bautista's behalf, he would have done so. We have no reason to doubt such evidence.

28 On 16 October 2001, the RRT handed down its decision upholding the Department's refusal to grant protection visas to the Bautistas. Thereafter, a number of steps were taken which are not relevant to the present proceedings.

29 By 21 December 2001, it had been decided that the Bautistas should make a submission to the Minister seeking ministerial intervention. Mrs Bautista prepared a form of statement for herself to be used in this regard. It was not in dispute that she had discussed this document with the Barrister and that he had made some limited changes to that document in his own handwriting.

30 It appears that the document was then re-typed in the form of a statutory declaration with numbered paragraphs and the appropriate form of declaration and subscription. Mrs Bautista actually made the declaration on 21 December 2001 before the Barrister's wife, as a Justice of the Peace.

31 This statutory declaration together with a statutory declaration by Mr Bautista, were enclosed with a letter dated 21 December 2001 addressed to the Minister for Immigration & Multicultural Affairs and headed 'Submissions on behalf of Mr Alberto Bautista and his Family ... Request to Exercise your Discretionary Power under s. 417 of the Migration Act 1958'. The letter itself contained detailed submissions as to why the Minister should exercise his discretion in favour of the Bautistas.

32 The letter appears to have been signed by or on behalf of 'Caprock Immigration Consultants' but under those words in small print is recorded 'Agent No. 71062'. This is in fact the Barrister's migration agent number and not that of his wife. This was described as an "administrative error" in the Barrister's letter of 28 June 2002.

33 There was no evidence to suggest that the Barrister's involvement in the preparation of the submission to the Minister was any greater than his making the handwritten amendments to the document prepared by Mrs Bautista.

34 The Barrister's evidence in cross examination was that he had no role in putting together what finally went to the Minister by way of submissions in the 21 December 2001 letter or the material submitted with that letter beyond making the handwritten notes on Mrs Bautista's document when he saw her in conference.

Complaints
35 In February 2002, Mr Bautista made a complaint to the Legal Services Commissioner about the conduct of the Barrister.

36 On 12 April 2002, the Legal Services Commissioner made five complaints against the Barrister under s.134(2) of the Legal Profession Act 1987 and referred them to the Bar Association for investigation.

37 The Bar Association wrote to the Barrister on 23 May 2002 enclosing a copy of the Legal Service Commissioner's complaint and letter of 12 April 2002.

38 In numbered paragraph 10 of that letter, the Barrister was required to provide 'copies of all applications made by you on behalf of the Bautistas'. The Barrister responded to the Bar Association on 6 June 2002 and raised the issue of the competency of the complaint by the Commissioner. The Barrister said in the letter:

'It is my respectful and primary submission that, in relation to all action on my part, this work did not involve any work as a legal practitioner, it was not legal work as defined or contemplated by s.4E, LPA, and I had no obligation to comply with s.175 or s.177 of the Act. Furthermore, I was not engaged on a direct access basis and in respect of my action, I was not subject to Bar Rule 74 or 75.'

39 While this issue was raised in his letter, the Barrister also said:

'No disrespect, lack of co-operation and non compliance with my obligations as a legal practitioner is intended to (sic) taking this preliminary point ... However, if I am wrong in this regard, would you please inform me forthwith.'

40 On 17 June 2002, the Bar Association responded that the Bar Council took the view that there were no jurisdictional impediments to its investigation and required the Barrister to respond to the request for information by 1 July 2002.

41 The Barrister responded to the letter of 17 June 2002 and, in effect, the Bar Association's letter of 23 May 2002 in his letter of 28 June 2002. It was in this letter that the Barrister made the statements alleged in information 042039 of 2004 to be misleading and false.

42 The first such statement appears under the heading:

'COMPLAINT 5
Failure to properly or adequately advise Mr & Mrs Bautista in relation to rights and options for successful migration applications.'

43 The particular sentence appears at numbered paragraph 5.3:

'I did not personally prepare any of the applications or the submissions to the Minister.' (underlining in original)

44 The second sentence relied upon by the Bar Association as being false and misleading is found under the same heading but in numbered paragraph 8:

'I did not draft or settle the ministerial submission.'

Information No. 042039 – Ground 1
45 In this ground, the Bar Association alleges that the Barrister was guilty of professional misconduct upon the following basis:

Ground 1
The practitioner provided a misleading and false response to the Bar Council by stating in his letter dated 28 June 2002 that he did not take part in the preparation of the application for a protection visa made by Mr Alberto Bautista and his wife and three daughters in February 2001 when in fact he drafted the Statement of Claim that formed the basis of that application.

Particulars
(a) As at 22 February 2001 and all material times Caprock International Pty Ltd, ACN 060 771 556, ('Caprock') conducted a business known as Caprock Immigration Consultants, principally from Level 9, 37 Pitt Street, Sydney.

(b) Prior to 27 February 2001 the practitioner owned one of the two ordinary shares issued in Caprock.

(c) As at 22 February 2001 and all material times the practitioner was a director of Caprock.

(d) As at 22 February and all material times the practitioner was a registered Migration Agent.

(e) As at 22 February 2001 and all material times Mr Alberto Bautista and Ms Jocelyn Bautista were clients of Caprock Immigration Consultants. As at 22 February 2001 their immigration status in Australia was that they and their three daughters held a Bridging Visa valid for 35 days from 18 January 2001, the date of a letter to them from the Department of Immigration and Multicultural Affairs ("the Department") advising them of the refusal of their application for a Temporary Business Entry (Class UC) visa, lodged on their behalf with the Department by Caprock Immigration Consultants on 22 June 2000.

(f) On 22 February 2001 Caprock Immigration Consultants lodged on behalf of Mr Bautista and his family an application for a Protection (Class XA) Visa. The application was in the form of a three page document entitled 'statement of claim'.

(g) The practitioner had taken instructions from Mr Bautista and his family in a conference on 16 February 2001, making a file note of those instructions.

(h) The practitioner acknowledged to the Migration Agents Registration Authority when being investigated in relation to the application for protection visa that he had taken part in assisting the drafting of the statement of claim.

(i) In a letter from the practitioner to Bar Council dated 28 June 2002 the practitioner stated:

'5.3 I did not personally prepare any of the applications ...'

46 In his amended reply, the Barrister denied that he provided a misleading and false response to the Bar Council in this regard and further denied that he asserted to the Bar Council that 'he did not take part in the preparation of the application'. The Barrister further pointed out that his words were 'I did not personally prepare any of the applications ....'. Nonetheless, the Barrister admitted each of the particulars (a) to (i).

47 There are two issues that arise out of the pleading of this ground which require comment. First, the allegedly false and misleading response is not one expressly made by the Barrister. As his amended reply made clear, the Barrister's actual words were different from the response alleged. It appears to us that in order for the Bar Association to be successful on this ground, it must establish on the balance of probabilities, bearing in mind the seriousness of the allegation and the other factors referred to in Briginshaw v Briginshaw, that the express words relied upon impliedly conveyed the allegedly misleading response. We consider this issue below.

48 Secondly, the formulation of Particular (f) by the Bar Association and the Barrister's admission of that particular are problematic. The second sentence of paragraph (f) of the Bar Association's particulars of Ground 1 is as follows:

'The application was in the form of a three page document entitled Statement of Claim.'

49 On the evidence before us, this is clearly not the case. Nor did the Bar Association open on the basis that the relevant 'application' referred to in the Barrister's letter of 28 June 2002 was the 3 page document entitled 'Statement of Claim' which was incorporated by reference on two pages of Part C of a Department of Immigration & Ethnic Affairs form headed 'Application for a Protection Visa (866)'. Neither the Bar Association nor the Barrister conducted their cases at the hearing before us on the basis that the relevant application was in the form of or limited to the 3 page document entitled 'Statement of Claim'.

50 It should also be noted that the Bar Association, in its letter of 22 November 2002, sought clarification of what the Barrister was referring to in his 28 June 2002 letter by the term "applications". The Barrister replied on 2 December 2002 saying that he intended to refer to "the applications for various visas completed and lodged by the Bautistas in Australia and submitted to DIMA". This is consistent with the Barrister's evidence before us and with the terms and context of his letter of 28 June 2002. To the extent we may, we accept the Barrister's statement in his letter of 2 December 2002 referred to above and reject the submission that "application" in the letter of 28 June 2002 refers only or primarily to the 3 page statement of claim document.

51 As paragraph (f) appears under the heading 'Particulars', as the Tribunal is not a court of strict pleading and as the case was not conducted on the basis that the application in question was actually constituted by the 3 page document entitled 'Statement of Claim', we do not believe that these particulars and the terms of the amended reply should deflect us from holding that the word "applications" in the Barrister's letter of 28 June 2002 refers not to the 3 page "statement of claim" document but rather to the Application constituted by the relevant departmental forms, statutory declarations and other documents attached and incorporated by reference including the "statement of claim". With this in mind, we intend to address the substantive issue of whether the Barrister did in fact make a misleading and false response to the Bar Council by his statement 'I did not personally prepare any of the applications...' taking into account the actual nature of the Application.

52 There is no doubt nor is it disputed that the Barrister wrote in his letter of 28 June 2002 to the Bar Association the words 'I did not personally prepare any of the applications...'. As noted above, the issue is whether the allegedly false and misleading representation set out in Ground 1 is to be implied from those words. The Bar Association contended that, while not the only way in which to understand the statement, the 'appropriate reading' was that the Barrister was stating that he did not take part in the preparation of the application for protection visas made by the Bautistas in February 2001.

53 We do not accept this submission. The Barrister's statement in paragraph 5.3 of his letter of 28 June 2002 should be seen in its context. It was part of the Barrister's response to the Bar Association's letter of 23 May 2002 and appears to be most directly related to paragraph 10 of that letter, which said:

'Please provide copies of all applications made by you on behalf of the Bautistas'.

54 The Bar Association's request appears to proceed on the assumption that applications on behalf of the Bautistas were made by the Barrister. This misapprehension by the Bar Association is understandable in the circumstances. Nonetheless, it is a misapprehension.

55 The Immigration Consultants retained by the Bautistas in relation to their applications for visas were Caprock and the Migrant Agent who assisted them to complete their relevant forms of application was stated on the application forms to be the Barrister's wife. Accordingly, it can be accepted that the Barrister was attempting in paragraph 5.3 of his letter of 28 June 2002 to convey that he was not the Bautistas' migration agent who assisted them in completing the application forms nor was he the person who prepared the application forms or obtained and collated the attached documentation. This is how we understood the Barrister's evidence in cross examination referred to above.

56 It does not appear to us that the Barrister was seeking to convey that he had taken no part whatsoever in any early stage of preparation of a document which, in a final and different form, was submitted as part of the documentation in support of the application recorded on the Departmental application form. The words "I did not personally prepare [certain identified documents]" do not exclude the possibility that the person assisted in the preparation of an earlier version of a document referred to in the identified documents.

57 Accordingly, we do not accept that the Barrister impliedly or effectively represented in his letter dated 28 June 2002 that he did not take part in the preparation of the application for a protection visa made by the Bautistas in February 2001, that is the Application.

58 For completeness and given the somewhat unsatisfactory state of the pleading and particulars, we next turn to the question of whether the Barrister's words 'I did not personally prepare any of the applications...' were in any event false or misleading.

59 The role actually played by the Barrister in the preparation of the handwritten document headed 'Draft Statement of Claim' which, in a typed format with modified content was incorporated by reference into part of the Departmental application form submitted by the Bautistas in February 2001, was not in dispute. We find that the Barrister had no further participation in the preparation of the Departmental application forms or the documentation submitted with those forms as part of the Application.

60 There is no evidence before us to suggest that the Barrister participated to any significant extent in the preparation of any other application made on the Bautistas' behalf nor was any submission made by the Bar Association that the Barrister did so. In the circumstances, therefore, we find that the Barrister's statement that he did not personally prepare any of the applications was neither misleading nor false.

61 Further, if we are wrong and the Barrister's words in paragraph 5.3 of his letter of 28 June 2002 do convey the representation, as alleged by the Bar Association, that he did not take part in the preparation of the application for a protection visa made by the Bautistas in February 2001, we nonetheless find that this representation was not, in the circumstances, false or misleading.

62 Whilst the Barrister prepared a handwritten draft of a document which he knew was likely to be used in support of an application for protection visas, the Barrister did not prepare or assist the Bautistas to complete the Departmental application forms, nor did he obtain, type or collate the documentation referred to in or accompanying those application forms. Accordingly, in our view, it is correct to say that he did not prepare the application as submitted, even though he prepared a first draft of a document which, after amendment, typing and finalisation, accompanied the Departmental application forms and formed part of the overall application.

63 Finally, it is accepted by the Bar Association that it must prove that the Barrister provided a misleading and false response to the Bar Council, intentionally or wilfully, if the conduct is to amount to professional misconduct. In other words, the Barrister's conduct will not amount to professional misconduct unless he knew that the statement he made was misleading and false and nonetheless submitted it to the Bar Council.

64 Having considered the documentary evidence and having observed the Barrister in the witness box, we accept his evidence that in writing the first sentence of paragraph 5.3 of his letter of 28 June 2002 and submitting it to the Bar Association, he did not believe it to be false or misleading nor did he have any intention of providing a misleading or false response to the Bar Association.

65 For all of these reasons, we find that Ground 1 in information 042039 has not been made out on a factual level.

Information No. 042039 – Ground 2
66 The second allegation of professional misconduct is set out in Information 042039 as follows:

Ground 2
The practitioner provided a misleading and false response to the Bar Council by stating in his letter dated 28 June 2002 that he did not take part in the preparation of the submissions by Caprock Immigration Consultants to the Minister for Immigration dated 21 December 2001 when in fact he participated in the preparation of a statutory declaration of Ms Jocelyn Bautista in support of the submissions.

Particulars
(a) Particulars (a) to (f) in Ground 1, above, are repeated.

(b) On 7 June 2001 the application was refused by the Department.

(c) On 16 October 2001 an appeal by the Bautistas to the Refugee Review Tribunal was rejected.

(d) By letter dated 22 December 2001 to the Minister for Immigration and Multicultural Affairs submissions were made on behalf of the Bautista family by Caprock Immigration Consultants.

(e) In a letter from the practitioner to Bar Council dated 28 June 2002 the practitioner stated:

'5.3 I did not personally prepare any of the applications nor the submissions to the Minister.'

and later in the same letter:
'I did not draft or settle the ministerial submission. By administrative error the submission went over my number 71062.'

(f) In a letter on behalf of the practitioner by his solicitors to Bar Council dated 7 May 2004 it was acknowledged however that the practitioner took instructions from Mr and Mrs Bautista in relation to the preparation of that letter, and that he:

'... was only involved in settling part of the drafts of the material to be the basis for the statutory declarations which accompanied the submission itself.'

67 The Barrister in his Amended Reply denied both that he provided a misleading and false response to the Bar Council and that he stated that he '... he did not take part in ...' the relevant conduct. Otherwise, the substratum of facts alleged in the particulars was not in dispute.

68 The pleading of Ground 2 suffers from at least one of the problems encountered in the pleading of Ground 1. In the Barrister's letter of 28 June 2002, he did not expressly state that he 'did not take part in' the preparation of the submissions to the Minister dated 21 December 2001. Accordingly, we are required to consider the evidence before us to determine whether the statement alleged in Ground 2 has been made impliedly by the Barrister.

69 In his letter of 28 June 2002, the Barrister made two relevant statements:

'5.3 I did not personally prepare any of the applications nor the submissions to the Minister'

and later in the same letter:
'I did not draft or settle the ministerial submissions'.

70 An initial issue is, therefore, what the word "submissions" refers to in each case. Once again it should be noted that the Bar Association, in its letter of 22 November 2002, sought clarification of what the Barrister was referring to in his letter of 28 June 2002 by the term "submissions". The Barrister replied on 2 December 2002 saying that he intended to refer to the "contents in the letter forwarded in December 2001". This is consistent with the Barrister's evidence before us, the actual contents of the letter to the Minister of 21 December 2001 and with the terms and context of the Barrister's letter of 28 June 2002. We accept that this is what the word "submissions" refers to in each sentence relied upon by the Bar Association.

71 In the light of the express terms of the Barrister's letter, we find that the Barrister did not expressly state that he '... did not take part in ...' the preparation of the submissions to the Minister dated 21 December 2001. Nor on the balance of probabilities can it be found that the Barrister's words impliedly contained the response alleged in Ground 2. The Barrister's express statements were more precise, namely that he did not personally prepare those submissions contained in the letter of 21 December 2001 to the Minister nor did he draft or settle them. Thus, the Bar Association has failed to establish the allegedly false or misleading response.

72 Further, the evidence established that Mrs Bautista and her daughter prepared the statements which later became the statutory declarations submitted in support of, and, in a loose sense, as part of, the ministerial submissions in December 2001. Mrs Bautista's daughter typed up the documents. The Barrister agreed that he had made a number of handwritten corrections to Mrs Bautista's document when he had discussed it with her at Caprock's offices some time prior to the letter to the Minister being prepared and sent. The statutory declaration, based upon Mrs Bautista's document and the Barrister's handwritten notes but differing from them in various respects, was not prepared in final form or typed by the Barrister.

73 The letter of 21 December 2001 which contains the submissions to the Minister is a 5 page document which sets out in some detail the submissions that the Bautistas wished the Minister to consider. There were various documents enclosed with the letter, including statutory declarations by Mr and Mrs Bautista, bank statements and 'evidence of the shareholder documents'. It was not submitted nor was it established on the evidence that the Barrister had done any more than make the handwritten notes on the document prepared by Mrs Bautista which eventually became her statutory declaration. In these circumstances, we cannot conclude that the statement 'I did not personally prepare ... the submissions to the Minister' is false or misleading. Nor do we consider that it is false or misleading for the Barrister to have stated that he did not 'draft or settle the ministerial submissions'.

74 Further, if our reading of the letter of 28 June 2002 is incorrect and it does impliedly contain a statement that the Barrister did not take part in the preparation of the submissions to the Minister, we do not accept that making a number of amendments to a document prepared by another person which is eventually incorporated in a statutory declaration accompanying the submissions to the Minister where the submissions are themselves fully set out and elaborated in the letter, amounts to taking part in the preparation of the submissions. Accordingly and even on this basis, we would not find that it was misleading and false if the Barrister had stated that 'he did not take part in the preparation of the submissions ... to the Minister for Immigration dated 21 December 2001'.

75 Moreover and once again, having regard to the documents and the evidence of the Barrister in the witness box, we do not accept that the Barrister knew that his statements in his letter of 28 June 2002 to the Bar Association, which have been quoted above, were false or misleading. Nor do we accept that he intended to provide a false or misleading response to the Bar Association by his letter of 28 June 2002 as alleged in Ground 2.

76 For these reasons, we find that the allegation of professional misconduct contained in Ground 2 of Information 042039 has not been made out on a factual level.

Information No. 042040
77 In Information 042040 the Bar Association alleged that the Barrister had been guilty of unsatisfactory professional conduct as follows:

Ground
The practitioner failed to advance and protect the interests of Mr Alberto Bautista and Mrs Jocelyn Bautista when, on 10 September 2001, he appeared with them and on their behalf in the Refugee Review Tribunal.

Particulars
(a) The practitioner was engaged for a fee by Mr and Mrs Bautista to appear with them and on their behalf in the hearing by the Refugee Review Tribunal on 10 September 2001 of the Bautistas' application for review of the decision by the Department of Immigration and Multicultural Affairs refusing to grant to them protection (Class XA) visas.

(b) In the hearing the practitioner interjected when warned not to by the Tribunal, and when warned that his leave to appear would be withdrawn if he continued to interject, continued to do so. When his leave to appear was then withdrawn he initially refused to depart the hearing room, only doing so upon the intervention of an officer of the Tribunal at the request of the Tribunal.

(c) Once ejected from the hearing room the practitioner departed the building leaving the Bautistas unrepresented and unable to be advised by him.

(d) After the hearing on 10 September 2001, the Tribunal faxed to the practitioner a letter giving him until 14 September 2001 to lodge final written submissions on behalf of his clients. He did not do so.

(e) Nonetheless, he charged the Bautistas a fee for his acting for an [sic] on their behalf.

78 The Bar Association's case was that the Barrister's conduct in the hearing before RRT on 10 September 2001 was unsatisfactory professional conduct within the definition in s.127(2) of the Legal Profession Act 1987. That subsection provides, in part:

'Unsatisfactory professional conduct' includes conduct (whether consisting of an act or omission) occurring 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 Save draft a reasonably competent legal practitioner.'

79 It is not in dispute that when the Barrister appeared for and acted as an advisor to Mr Bautista at the RRT hearing, he was not acting as a Barrister or legal practitioner but was only appearing and advising in his capacity as a registered migration agent.

80 The relationship between migrant agents and lawyers is clarified to some extent in s.280 of the Migration Act 1958 (Cth). Subsections (1) and (3) of s. 280 provide as follows:

(1) Subject to this section, a person who is not a registered migration agent must not give immigration assistance.

...
(3) This section does not prohibit a lawyer from giving immigration legal assistance.

81 The definition of giving 'immigration assistance' in s. 276(1) of the Migration Act includes:

(d) Representing the visa applicant or cancellation review applicant in proceedings before a Court or review authority in relation to the visa application or cancellation view application.

82 Section 277 of the Migration Act defines what constitutes 'immigration legal assistance' in the following terms:

(1) For the purposes of this Part, a lawyer gives immigration legal assistance if the lawyer:

(a) acts for a visa applicant or cancellation review applicant in preparing for proceedings before a court in relation to the visa application or cancellation review application; or

(b) represents or otherwise acts for a visa applicant or cancellation review applicant in proceedings before a court in relation to the visa application or cancellation review application; or

(c) gives advice to a visa applicant or cancellation review applicant in relation to the visa application or cancellation review application that is not advice for the purpose of any of the following:

(i) the preparation or lodging of the visa application or cancellation review application;

(ii) proceedings before a review authority in relation to the visa application or cancellation review application;

(iii) the review by a review authority of a decision relating to the visa application or cancellation review application.

(2) For the purposes of this Part, a lawyer also gives immigration legal assistance if the lawyer:

(a) represents or otherwise acts for a person in proceedings (or in preparing for proceedings) before a court that relate to the visa for which the person was nominating or sponsoring a visa applicant (or seeking to nominate or sponsor a visa applicant) for the purposes of the regulations; or

(b) gives advice to a person about nominating or sponsoring a visa applicant for the purposes of the regulations (except advice described in subsection (3)).

(3) A lawyer does not give immigration legal assistance in giving advice to a person about nominating or sponsoring a visa applicant for the purposes of the regulations if the advice is for the purpose of:

(a) the preparation or lodging of an approved form putting forward the name of a visa applicant; or

(b) the preparation or lodging of an approved form undertaking sponsorship; or

(c) proceedings before a review authority that relate to the visa for which the person was nominating or sponsoring a visa applicant (or seeking to nominate or sponsor a visa applicant); or

(d) the review by a review authority of a decision relating to the visa for which the person was nominating or sponsoring the visa applicant (or seeking to nominate or sponsor the visa applicant).

(4) A lawyer does not give immigration legal assistance in giving advice to another person that is for the purpose of the preparation or making of a request to the Minister to exercise his or her power under section 351, 391, 417, 454 or 501J in respect of a decision (whether or not the decision relates to the other person).

(5) A lawyer does not give immigration legal assistance in giving advice to another person that is for the purpose of the preparation or making of a request to the Minister to exercise a power under section 195A, 197AB or 197AD (whether or not the exercise of the power would relate to the other person).

(underlining added)
83 From these provisions, it appears that the Barrister was prohibited from appearing in and acting as an advisor in the RRT in his capacity as a lawyer and his conduct in the RRT can only have been as a registered migration agent.

84 On this basis, it would be reasonable to conclude that the Barrister's conduct, the subject of information 042040, was conduct as a migration agent and not conduct 'occurring in connection with the practice of law' within s.127(2) of the Legal Profession Act 1987.

85 In this regard, however, the Bar Association argued that the Barrister's role in appearing before the RRT was 'sufficiently closely connected with actual practice' that it should be held as being 'in connection with the practice of law'. This submission was based upon certain comments of Spigelman CJ in New South Wales Bar Association v Cummins (2001) 52 NSWLR 279 at [56] and by the High Court in A Solicitor v Council of the Law Society of New South Wales (2004) 126 CLR 253 at [20] to the effect that when dealing with the expression 'professional misconduct', not under statute but under the general law, that even though conduct is not engaged in directly in the course of professional practice, it may be so connected to such practice as to amount to a professional misconduct.

86 Whilst this is undoubtedly so in relation to the general law concept of 'professional misconduct', this principle has no direct or specific application to the concept of unsatisfactory professional conduct which is a creature of statute. Further, we note that the Migration Agents Regulation Authority ("MARA") already exists to deal with unsatisfactory conduct by registered migration agents in the performance of their duties.

87 Given the statutory scheme which excludes lawyers from appearing and acting as an advisor in the RRT, the existence of MARA and the fact that there appears to be no connection between the Barrister's legal practice and the services he, as a Director of Caprock and a registered migration agent, provided for the Bautistas before the RRT, we reject the submission that his conduct before the RRT was sufficiently closely connected with his actual legal practice that it should be held as being 'in connection with the practice of law'. The mere fact that some similar skills may be deployed in the RRT by a migration agent as are commonly employed by lawyers appearing in Courts or other Tribunals is not to the point. The connection must be between the conduct of the lawyer and the lawyer's legal practice. It is not sufficient that the nature of the conduct in question is such that it is of a type that might be engaged in by a lawyer in legal practice.

88 Accordingly, we find that the Barrister's conduct was not in connection with the practice of law and accordingly did not constitute unsatisfactory professional conduct within s.127(2) of the Legal Profession Act 1987.

89 In case we are wrong, however, in that conclusion, we shall also consider whether the Barrister's conduct would amount to unsatisfactory professional conduct if it were accepted that the conduct was in connection with the practice of law..

90 It appears to us from the transcript of the proceedings in the RRT (part of which is quoted above) and from listening to the tape of those proceedings, that the Barrister was faced with an extremely difficult situation. The Tribunal member forcefully expressed the view that he did not accept the Barrister's client's claim because of information contained in documents which the Tribunal member said had been sent to both Mr Bautista and his advisor and suggested that the claims were 'at odds with that independent evidence' and then invited Mr Bautista to comment.

91 The RRT member's summary of the information that had been sent was far from clear. At this point, the Barrister attempted to make a point of clarification concerning the suggestion that the information had been sent to and presumably received by Mr Bautista and his advisor. It is open to infer that the Barrister was seeking to correct a misapprehension inherent in the RRT member's statement in relation to which he was pressing for Mr Bautista's comment. Indeed, during cross examination before us it was conceded to be common ground that the Barrister had sought to interject in the proceedings to draw to the attention of the RRT member that the document or information to which he was referring had not been received. Whilst it is the case that the RRT member had indicated to the Barrister that he could make representations at the end of the hearing and restated this during their exchange, the Barrister gave evidence, which we accept, that his belief was that if he did not overcome the misapprehension upon which the RRT was basing its stated conclusions, then there would be nothing he could say at the end which would adequately address the matter.

92 Later in cross examination, the Barrister said:
A. My difficulty at the time was there was, if I can put it this way, an interlocutory issue, which we needed to deal with before we moved on and that was all I was seeking to do and in fact I thought that point could have even been taken up. If he had allowed me to make that point, we would have - it would have been quite--

Q. It was - sorry?
A. He may not have questioned him on that very issue that he questioned him on.

Q. It was clear that at that point that he was not going to grant you leave to do that, wasn't it?

A. I pressed. As a migration agent there, I had some duty because at that particular point he had taken me there to assist him. So what else could I have done, but to press that point?

Q. It was clear to you, from the conduct of the tribunal member, that he was not going to allow you to do that?

A. Oh I thought I could persuade him. I was trying to get him to understand the point I was seeking to make.

Q. But at no point did he acknowledge that he was going to allow you to do so, did he?

A. Well, I could only try.
93 We believe these attitudes and beliefs on the part of the Barrister were reasonable in the circumstances and are not such as to warrant criticism as being unsatisfactory from a professional perspective.

94 During the exchange between the Barrister and the RRT member, the Barrister said:

'Is this going to be a kangaroo tribunal or are you going to give us, the applicant, a fair opportunity to state his case?'

95 We agree that the expression 'a kangaroo tribunal' will in many circumstances be discourteous and may well be unprofessional when used of a tribunal in front of which a legal practitioner is appearing. In this case, however, it should be borne in mind that the expression was used not as a description of the RRT but in a question which contrasted a tribunal which gave the Applicant a fair opportunity to state his case with a 'kangaroo tribunal'.

96 In his cross examination, the Barrister said:
'Q. And in trying, you used the words, on p 240, "Is this going to be a kangaroo tribunal?"

A. It was only a question.
Q. Did you not regard that as a derogatory term?
A. I ask a question. I thought it was going to be fair, just and reasonable. I asked him a question.. I didn't think there was anything derogatory about that question.'

97 The Barrister was not accusing the RRT directly of being a kangaroo tribunal. He was asking a question, even if the question utilised a potentially provocative term. While use of such language in Courts or Tribunals, even in questions, is not to be encouraged, we do not believe in all the circumstances that the Barrister's use of the expression 'kangaroo tribunal' either alone or together with his other conduct before the RRT on 10 September 2001 should be classified as unsatisfactory professional conduct.

98 The main thrust of the Bar Association's submissions in relation to the Barrister's conduct before the RRT, however, was that the Barrister created a situation where his client was left without representation or assistance. The unsatisfactoriness of the conduct was said to lie in the fact that, when it should have been clear to the Barrister that he was not going to obtain leave from the RRT member to make any submissions, make an application or take instructions from this client, the Barrister failed to protect his client and his client's interests, by pressing on and this had the inevitable result that he had to withdraw from the RRT hearing. By having himself ejected, the Barrister had put himself in a position where he could no longer protect and defend his client's interests. Even though the Barrister did not leave voluntarily, by seeking to press his points when the outcome was obvious he was responsible for putting himself in a position which disadvantaged his client.

99 Whilst we accept that this argument may be valid where the Barrister does not hold a reasonable belief that he can persuade the RRT to change its mind or grant his application, that is not the case here. As noted above, the Barrister reasonably believed that if he did not clarify the matter at this point there was little he could say or do later to retrieve the situation and he believed he could still persuade the RRT member to hear his submissions or application.

100 Accordingly, we do not accept that the Barrister's conduct can be described as unsatisfactory professional conduct on the ground that by being ejected, he failed to advance and protect the interests of his client.

101 We note both from the transcript and the tape recording of the hearing, that while the Barrister was faced with a situation that was difficult to handle, he generally maintained a calm and composed manner and spoke respectfully to the RRT and eventually withdrew when he had done all that he perceived he could do on behalf of his client.

102 For all these reasons, we find that the allegation in information 042040 has not been made out.

Earlier Proceedings
103 We note that this is not the first time on which these matters have been heard by the Tribunal, see New South Wales Bar Association v Osei [2006] NSWADT 35 (3 February 2006). On the previous occasion, however, there was no appearance for the Barrister nor was any evidence called on his behalf. Nor was the evidence led by the Bar Association on that occasion the same as was before us.

104 On the evidence before us and in the light of the submissions made and the way in which the hearing was conducted, we have reached different conclusions from the conclusions reached by the Tribunal on the previous occasion.

Conclusions
105 As the Bar Association has failed to make out any of the grounds in either of the informations, we propose to dismiss both informations.

106 On the question of costs, in the light of section 171E of the Legal Profession Act 1987, we believe the most appropriate course is to grant leave to the Respondent to make any application he may wish to make in relation to the costs of these proceedings within a short but reasonable time.

107 Accordingly, our orders are:
1 Each of Informations 042039 and 042040 be dismissed.

2 The Respondent have leave to make any application in relation to the costs of these proceedings within 14 days of the date of these orders.

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