WASCA on the kind of recklessness in making statements which amounts to conduct warranting discipline

Traditionally, the law of professional discipline has differed from the law of negligence in three profound ways.  First, its aim is the protection of the public (though the policy in favour of protecting the reputation of the profession grossly infects the purity of this proposition in most analyses).  Secondly, it is about personal wrongdoing.  Statute aside, there is no law of attributed liability in contrast to doctrines such as vicarious liability in the law of negligence.  And thirdly, simple as opposed to gross negligence was never considered to warrant discipline.  Things got messed up by the introduction into disciplinary statutes of a concept of unsatisfactory professional conduct defined in terms identical to the test for simple professional negligence.

Disciplinary tribunals (and, in my experience, disciplinary investigators and prosecutors) seem to lapse from time to time into the language of ‘should have known’ even outside the prosecution of that species of unsatisfactory professional conduct which is defined by reference to the test of simple professional negligence.  Two practitioners had to go to two Courts of Appeal to reverse decisions on dishonesty charges which were horribly infected by objective reasoning:  Legal Services Commissioner v Brereton [2011] VSCA 241 and Giudice v Legal Practitioners Complaints Committee [2014] WASCA 115.  Surprisingly, the former decision did not get a guernsey in the latter.  The law of recklessness is authoritatively restated in the three separate judgments in Giudice and I have set the whole lot out below along with some observations about Brereton’s Case.

In Brereton’s case, the Commissioner alleged misappropriation of trust funds.  Though the Court of Appeal found that there is doubt about whether it is an essential element of a charge of misappropriation that the conduct was dishonest, the Commissioner had gone to the trouble of alleging a dishonest misappropriation and so had to prove it to succeed.  VCAT’s findings were in terms that

‘Given the intermingling of his business interests and his role as a lawyer responsible for trust money, he well knew (or ought to have known) his legal and fiduciary responsibilities to those beneficially entitled to the invested funds, and on whose behalf he and GDK were ostensibly managing those funds. He also well knew (or ought to have known) his obligations to properly account for the trust money.’

The Court of Appeal approved the trial judge’s reversal of VCAT’s conviction of the practitioner for professional misconduct.  Tate JA with whom Nettle and Ashley JJA agreed found that VCAT had misconceived the test for dishonesty by making a finding of dishonesty predicated in the alternative not on actual subjective knowledge of the facts by reference to which the conduct could be judged by an ordinary man to be dishonest but predicated on the proposition that he should have known those facts.  (Furthermore, her Honour said at [75] et seq, the Commissioner had argued the case in a way which reversed the onus of proof, by saying it was for the practitioner to establish an honest intent.) And the Court refused to remit the matter back to VCAT for a new hearing of the dishonesty charge because the Commissioner had argued his case and lost and had he argued it in the manner which was legally appropriate, the practitioner may well have conducted his case differently.  So there is in fact a shadow of the criminal law’s concept of autrefois acquit in disciplinary proceedings which is food for a whole new blog post…

And so it was again in Giudice v Legal Practitioners Complaints Committee where the practitioner was convicted of misconduct constituted by settling a client affidavit knowing it contained a false statement, or reckless to that possibility.  The Court reversed WASAT’s conviction of the practitioner on that charge.  Once again, the disciplinary prosecutor had nailed its colours to the mast and put the case squarely as a dishonesty case so no finding of conduct warranting discipline based on even gross negligence was possible. Once again, however, the findings were predicated on ‘ought to have knowns’ rather than ‘knowns’ despite the Tribunal purporting in terms to apply a subjective test.

Martin CJ said:

‘8 As this court has pointed out5, when a practitioner provides information or makes a statement to a court which is false or misleading, there are (at least) three categories of case in which that conduct will constitute either professional misconduct or unsatisfactory professional conduct.6 First, the practitioner might know that the statement or information is false or misleading. Second, the practitioner might have a reckless disregard to the question of whether the statement or information is false or misleading, and third, the practitioner might be negligent or careless. Because the first two categories will only apply if, assessed subjectively, the practitioner is either aware that the statement or information is false or misleading, or wilfully indifferent to its truth, in the absence of special circumstances one would ordinarily expect a finding of either category of conduct to be characterised as a substantial departure from the standards of conduct reasonably expected of a practitioner such as to constitute professional misconduct, within the taxonomy of the Act. In cases falling within the third category – that of negligence or carelessness – whether or not the practitioner’s conduct is either unsatisfactory professional conduct or professional misconduct will depend upon the nature and degree of negligence or carelessness involved.

42 The word ‘reckless’ is used in many different legal contexts. A useful review of those differing contexts is provided by the decision to which the Tribunal referred: Pollard v Commonwealth Director of Public Prosecutions.21 Although the word has been described as ambiguous22 and as ‘imprecise in ordinary parlance’,23 I would prefer to say that the word is capable of bearing different meanings, and that the particular meaning to be applied is to be ascertained from the context in which the word is used.

43 In one context, the word is capable of connoting a particular characterisation of conduct objectively assessed, without regard to the state of mind of the person responsible for that conduct. So, s 60 of the Road Traffic Act 1974 (WA) provides that the offence of reckless driving is committed by wilfully driving a motor vehicle in a manner that is inherently dangerous or that is, having regard to all the circumstances of the case, dangerous to the public or to any person. In that context, the only state of mind which must be proven to establish the offence is to the effect that the driving of the motor vehicle was wilful, and the word ‘reckless’ is used to characterise objectively the degree of risk created by the manner in which the vehicle was driven. The section does not require the prosecution to establish that the driver was aware of the risk which was created, or was wilfully indifferent to that risk. Section 62 of the Road Traffic Act provides that the offence of careless driving is committed by a person who drives a motor vehicle without due care and attention. So, in the context of the Road Traffic Act, the word ‘reckless’ is used to connote driving which creates risks of a particular character and which is, for that reason, more culpable than careless driving.

44 In other legal contexts, the word ‘reckless’ requires that a particular state of mind be subjectively established. In Fidock v Legal Professional Complaints Committee24 this court held that an allegation of reckless disregard of the truth by a legal practitioner could only be made out if it was established that the practitioner’s actual state of mind was that of indifference to the truth of the relevant statement25 or, in the more colourful language of Le Lievre v Gould:26

… not caring in the man’s own heart and conscience whether it was true or false – and that would be wicked indifference and recklessness.

45 The court cited the observation of Bowen LJ in Angus v Clifford that, in this context, not caring did not mean not taking care.

46 In this case the only express finding made by the Tribunal with respect to the practitioner’s state of mind was that it was unlikely that the practitioner was actually aware that the statement in par 20 of the affidavit was false at the time when he settled its terms.27 The Tribunal made no express finding to the effect that at the time the practitioner settled par 20 of the client’s affidavit he was indifferent to its truth or falsity, in the sense that he did not care whether it was true or false. The question posed by the second aspect of the amended ground of appeal is whether such a finding is implicit in the Tribunal’s reasons. Unless such a finding is implicit in the reasons of the Tribunal, it cannot be concluded that the Tribunal correctly addressed and answered the critical question which it was required to answer, having regard to the LPCC’s allegation that the practitioner recklessly disregarded the truth or falsity of par 20 of the client’s affidavit. Such a failure would constitute an error of law and would, in the circumstances of this case, also constitute a substantial miscarriage of justice.

47 I have set out above all relevant portions of the Tribunal’s reasons relating to the issue of reckless disregard. At the commencement of that portion of the reasons, reference is made to two authorities28 in which a subjective approach was taken to the question of ‘reckless disregard’ and the Tribunal expressly acknowledged that a subjective approach was required.

48 However, the process which follows strongly suggests that in fact the Tribunal adopted an objective approach to the question which it was required to resolve.

49 In [70] of its reasons, the Tribunal expresses the obligation which the LPCC had to discharge in order to establish the practitioner’s guilt in objective terms – namely, that the practitioner ‘should have been aware that the statement might be untrue’ rather than in terms of whether the practitioner was aware that the statement might be untrue. In the next paragraph of its reasons [71], the circumstances to which the Tribunal refers are entirely objective. The first sentence of the next par [72] expresses a finding in objective terms – namely, that the practitioner ‘should have considered’ that the words of the affidavit warranted some further inquiry. Significantly omitted is any finding that the practitioner did in fact consider that the words warranted further inquiry but made no such inquiry because he was indifferent to their truth. The last sentence in [72] strongly suggests that the Tribunal adopted an objective approach to the characterisation of the practitioner’s conduct. The Tribunal found that ‘the practitioner was more than careless and showed a culpable indifference as to whether it was true’. The process of reasoning elucidated by that observation appears to involve a conclusion driven by an objective assessment of the practitioner’s conduct, and a characterisation of that conduct as involving a greater degree of culpability than mere carelessness. Put another way, the observation suggests that the Tribunal approached the question of recklessness on the basis that it might be established by careless conduct of a particular quality or character, such that it could be characterised as culpable, rather than by reference to a finding of fact as to the practitioner’s state of mind.

50 The conclusions which I have drawn from this analysis of the Tribunal’s reasons are reinforced by the Tribunal’s conclusion that the practitioner was not guilty of professional misconduct, but only of unsatisfactory professional conduct, because his conduct did not involve a substantial failure to comply with the standards of competence that might be expected. As I have already indicated, that would be a surprising conclusion if the Tribunal had found that the practitioner was wilfully indifferent to the truth or falsity of the paragraph in the affidavit which he settled.

51 The construction which I place upon the portions of the Tribunal’s reasons to which I have referred is reinforced by the portion of the Tribunal’s reasons with respect to penalty which I have set out above. In those reasons, the Tribunal reiterated its finding that the practitioner ‘acted in a way which was more than careless and that he showed a culpable indifference as to whether or not the affidavit was true’.29 As I have already observed, a finding expressed in those terms suggests an objective approach to the characterisation of conduct by reference to the quality or character of the culpability involved, rather than by reference to the practitioner’s actual state of mind.

52 When leave is sought to appeal to this court from the Tribunal, it is not appropriate to scrutinise the reasons of the Tribunal with a fine-tooth comb and an eye keenly attuned to the perception of error.30 I do not exclude the possibility that the Tribunal may have addressed the correct question and in fact determined that the practitioner’s state of mind at the time he settled par 20 of the client’s affidavit was that he did not care whether its terms were true or false, but omitted to express such a finding in its reasons. However, for the reasons I have given, a finding as to the practitioner’s state of mind cannot be extracted from the reasons given by the Tribunal. To the contrary, those reasons strongly suggest that the Tribunal proceeded by way of an objective assessment of the practitioner’s conduct, and a characterisation of the relative culpability of that conduct.

53 As the reasons of the Tribunal do not demonstrate that it addressed and determined the question which had to be determined with respect to the practitioner’s state of mind, it follows that an error of law is revealed which, in the circumstances of this case, if uncorrected, would be the cause of substantial injustice. Leave to appeal should be granted in respect of the second aspect of the amended ground, and that ground should be allowed. The decision of the Tribunal should be set aside and the matter remitted to the Tribunal for further consideration and determination in accordance with the reasons of this court. It is therefore neither necessary nor appropriate to consider the grounds of appeal relating to the penalty imposed by the Tribunal, as the Tribunal’s decision with respect to penalty must necessarily be set aside.

54 In the course of argument on the appeal, counsel for the LPCC suggested that it would have been open to the Tribunal to find the practitioner guilty of unsatisfactory professional conduct on the basis of negligence or carelessness in relation to the settlement of par 20 of the client’s affidavit, because the LPCC’s allegation of more culpable conduct should be taken to incorporate an allegation of less culpable conduct. However, as the LPCC did not propose such a finding at any point during the proceedings before the Tribunal, nor did the Tribunal make such a finding, it would not be appropriate for this court to purport to determine that question in the course of an appeal on a question of law from the decision which the Tribunal did make. If the LPCC move for a finding on that alternative basis when the matter is reconsidered by the Tribunal, it will be a matter for the Tribunal to determine whether such a finding is open, having regard to the manner in which the proceedings were conducted before the Tribunal, and to any potential prejudice which the practitioner might suffer if the LPCC were permitted to, in effect, amend the grounds of its application against the practitioner at that stage in the proceedings.’

Buss JA said:

’80 The respondent alleged in the proceedings before the Tribunal, relevantly, that the appellant ‘recklessly disregarded whether the statement [in par 20 of the client’s affidavit] was true or false’.

81 The word ‘reckless’ has a broad connotation. Its meaning may vary in colour and content according to the context in which it is used. See, for example, the range of meanings identified by Abadee J in Pollard v Commonwealth Director of Public Prosecutions (1992) 28 NSWLR 659, 669 – 675.

82 Gummow, Hayne and Heydon JJ noted in Banditt v The Queen [2005] HCA 80; (2005) 224 CLR 262 that the word ‘reckless’ has various uses as a criterion of legal liability [1]. Their Honours gave these illustrations by reference to the civil law [2]:

(a) when ‘reckless’ is used in the application of the principles of the tort of negligence, the standard is objective rather than subjective;

(b) in an action in deceit:

[F]raud is proved when it is shown ‘that a false representation has been made (1) knowingly, or (2) without belief in its truth, or (3) recklessly, careless whether it be true or false’ (the formulation is that of Lord Herschell in Derry v Peek(1889) 14 App Cas 337 at 374). But (3) is but an instance of (2) because, as Lord Herschell put it in Derry v Peek((1889) 14 App Cas 337 at 374): ‘[O]ne who makes a statement under such circumstances can have no real belief in the truth of what he states.’ This reasoning is akin to that which supports the evidentiary inference explained by Lord Esher MR as being that one who wilfully shuts his eyes to what would result from further inquiry may be found to know of that result (English and Scottish Mercantile Investment Co Ltd v Brunton[1892] 2 QB 700 at 707-708).

83 A criminal offence may be created by statute with a criterion of intention, knowledge or awareness, recklessness or reckless indifference, or foresight with respect to some act, circumstance or consequence. See La Fontaine v The Queen [1976] HCA 52; (1976) 136 CLR 62, 75 – 76 (Gibbs J); Kural v The Queen [1987] HCA 16; (1987) 162 CLR 502, 504 – 505 (Mason CJ, Deane & Dawson JJ); Banditt [6] – [8].

84 In Pollard, Abadee J considered the proper construction and application of s 178BB of the Crimes Act 1900 (NSW) which provided, relevantly, that a person who, ‘with intent to obtain for himself or another person any money or valuable thing or any financial advantage of any kind whatsoever, makes or publishes, or concurs in making or publishing any statement … which is false or misleading in a material particular and is made with reckless disregard as to whether it is true or is false or misleading in a material particular shall be liable to imprisonment for 5 years’. His Honour held that the word ‘reckless’ in s 178BB, when used in relation to a false statement, means ‘without an honest belief as to its truth’ or, in other words, ‘dishonest’ (674 – 675).

85 In Gillard v The Queen [2014] HCA 16, the appellant was convicted after a trial on three counts of having sexual intercourse with the complainant, without the complainant’s consent, knowing that she was not consenting or being reckless as to her consent, contrary to s 92D of the Crimes Act 1900 (ACT). The appellant was also convicted after a trial on one count of committing an act of indecency in the presence of another complainant, without the complainant’s consent, knowing that she was not consenting or being reckless as to her consent, contrary to s 92J of the Crimes Act. The word ‘reckless’ was not defined for the purposes of s 92D or s 92J. French CJ, Crennan, Bell, Gageler and Keane JJ referred to the joint reasons of Gummow, Hayne and Heydon JJ in Banditt in which their Honours had approved various formulations by the House of Lords in Director of Public Prosecutions v Morgan [1976] AC 182 of the concept of recklessness as a state of mind in the context of the mens rea of the common law offence of rape [26]. These formulations were that the requisite state of mind was ‘at least indifference as to the woman’s consent’ (Lord Cross of Chelsea at 203), ‘the equivalent intention of having intercourse willy-­nilly not caring whether the victim consents or no’ (Lord Hailsham of St Marylebone at 215) and ‘without caring whether or not she was a consenting party’ (Lord Edmund-Davies at 225). French CJ, Crennan, Bell, Gageler and Keane JJ said the formulations of the House of Lords, as approved in the joint reasons in Banditt, were ‘equally apt to proof of recklessness’ for the purposes of s 92D and s 92J of the Crimes Act [26].

86 Numerous cases have examined the distinction between recklessness and negligence. In Kane v Dureau [1911] VLR 293, Cussen J said that ‘”recklessness”, which is characterised by indifference to consequences, is to be distinguished in this respect from “negligence”, in which the consequences are as a rule not expected at all’ (297). In Thompson v Copeland [1936] SASR 45, Murray CJ observed that ‘recklessness implies that the possible consequences which may ensue from [a person’s] act are adverted to by the actor, but he is indifferent whether those consequences occur or not’ (47 – 48). See also Lederer v Hitchins [1961] WAR 99, 101 (Virtue J).

87 So, on those authorities, to be reckless as distinct from negligent, conduct must be such as to evince a disregard of or an indifference to consequences. A reckless disregard or indifference involves, at least, a subjective element of actual conscious disregard of or indifference to the risks created by the conduct.

88 In Commissioner of Metropolitan Police v Caldwell [1982] AC 341, the House of Lords considered the proper construction and application of s 1 of the Criminal Damage Act 1971 (UK), which provided, relevantly:

(1) A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence.

(2) A person who without lawful excuse destroys or damages any property, whether belonging to himself or another – (a) intending to destroy or damage any property or being reckless as to whether any property would be destroyed or damaged; and (b) intending by the destruction or damage to endanger the life of another or being reckless as to whether the life of another would be thereby endangered; shall be guilty of an offence.

89 Lord Edmund-Davies (Lord Wilberforce agreeing), who dissented, emphasised that recklessness, in the context of s 1 of the Criminal Damage Act, involved foresight of consequences:

It has therefore to be said that, unlike negligence, which has to be judged objectively, recklessness involves foresight of consequences, combined with an objective judgment of the reasonableness of the risk taken. And recklessness in vacuo is an incomprehensible notion. It must relate to foresight of risk of the particular kind relevant to the charge preferred, which, for the purpose of section 1(2), is the risk of endangering life and nothing other than that.

So, if a defendant says of a particular risk, ‘It never crossed my mind’, a jury could not on those words alone properly convict him of recklessness simply because they considered that the risk ought to have crossed his mind, though his words might well lead to a finding of negligence. But a defendant’s admission that he ‘closed his mind’ to a particular risk could prove fatal, for ‘A person cannot, in any intelligible meaning of the words, close his mind to a risk unless he first realises that there is a risk; and if he realises that there is a risk, that is the end of the matter’: (see Glanville Williams, Textbook of Criminal Law (1978), p 79) (358). (original emphasis)

90 The majority in Caldwell held that, for the purposes of s 1 of the Criminal Damage Act, to decide whether a person had been reckless as to whether harmful consequences of a particular kind would result from his or her act, it was necessary to consider the mind of ‘the ordinary prudent individual’ (354). Lord Diplock (Lord Keith of Kinkel & Lord Roskill agreeing) then said:

In my opinion, a person charged with an offence under section 1(1) of the Criminal Damage Act 1971 is ‘reckless as to whether any such property would be destroyed or damaged’ if (1) he does an act which in fact creates an obvious risk that property will be destroyed or damaged and (2) when he does the act he either has not given any thought to the possibility of there being any such risk or has recognised that there was some risk involved and has nonetheless gone on to do it (354).

91 In R v G [2004] 1 AC 1034, the House of Lords unanimously overruled the majority decision in Caldwell. Lord Bingham of Cornhill (Lord Browne-Wilkinson & Lord Hutton agreeing) stressed that he was not addressing the meaning of ‘reckless’ in any other statutory or common law context than s 1 of the Criminal Damage Act 1971 (UK). After an extensive review of the case law and academic writings concerning the concept of ‘recklessness’ in the criminal law, his Lordship concluded that a person acts recklessly within the meaning of s 1 of the Criminal Damage Act with respect to:

(a) a circumstance, when he or she is aware of a risk that it exists or will exist;

(b) a result, when he or she is aware of a risk that it will occur,

and it is, in the circumstances known to him or her, unreasonable to take the risk [41].

92 In the present case, the word ‘recklessly’ must not be considered in isolation. It is necessary to construe the phrase ‘recklessly disregarded whether the statement [in par 20 of the client’s affidavit] was true or false’ as a whole and in the context of the respondent’s assertion, made in professional disciplinary proceedings, that the appellant’s alleged reckless disregard constituted professional misconduct or, as the Tribunal concluded, unsatisfactory professional conduct.

93 The object of disciplinary proceedings against a legal practitioner is the protection of the public and the maintenance of proper professional standards. The maintenance of proper professional standards is conducive to the protection of the public. Disciplinary proceedings are not designed to punish the person who is disciplined even though the decision of the disciplinary tribunal may involve the imposition of sanctions on, and great deprivation to, that person. See New South Wales Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177, 183 – 184 (Barwick CJ, Kitto, Taylor, Menzies & Owen JJ); Paradis [25]. The powers that are exercisable by the Tribunal where it has found a legal practitioner guilty of professional misconduct or unsatisfactory professional conduct are set out in s 438 – s 441 of the Act.

94 In my opinion, the allegation that the appellant ‘recklessly disregarded whether the statement [in par 20 of the client’s affidavit] was true or false’ comprises two subjective elements.

95 The appellant will have recklessly disregarded whether the statement was true or false if:

(a) the appellant was aware, when he settled the statement in par 20 and caused the affidavit to be sworn, filed and served in the Family Court proceedings, that there was a risk that the statement was untrue or false; and

(b) the appellant consciously disregarded the risk.

96 Those elements are subjective in that they are concerned with the appellant’s actual state of mind.

97 The notion of ‘conscious disregard’ by the appellant of the risk, being the second element, connotes that the appellant wilfully or deliberately shut his eyes to, or excluded from contemplation, the risk that the statement was untrue or false. See PES v The State of Western Australia [2013] WASCA 202 [22] (Buss JA, McLure P & Mazza JA agreeing).

98 If the Tribunal, having found that the statement was false, were to find that the subjective elements had been made out and that the appellant had therefore ‘recklessly disregarded whether the statement was true or false’, those findings would not resolve the matter. It would then be necessary for the Tribunal to consider whether it should be concluded that, in all the circumstances, the appellant had engaged in professional misconduct or, alternatively, unsatisfactory professional conduct.

99 The Tribunal would be bound to consider that issue by reference to all the circumstances, including the relevance and materiality of the statement, the magnitude of the risk, the duties owed by the appellant as a legal practitioner to the court and the intended use (to the appellant’s knowledge) of the affidavit in the Family Court proceedings. All the circumstances, including those I have specified, must be evaluated, on an objective basis, to determine whether the appellant’s actual awareness of the risk and his actual conscious disregard of it in those circumstances require the conclusion that he engaged in professional misconduct or unsatisfactory professional conduct.

100 A legal practitioner owes duties of candour and honesty to the court. Indeed, the duty of a legal practitioner not to mislead the court is at the heart of his or her duty as an officer of the court. See Vogt v Legal Practitioners Complaints Committee [2009] WASCA 202 [61] (Owen, Wheeler & Newnes JJA).

101 In Kyle v Legal Practitioners’ Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56, the appellant was a legal practitioner who had deliberately or knowingly misled the court. It was not a case where a legal practitioner had ‘recklessly’ misled the court. In Kyle, Ipp J said:

It is the essence of a charge of unprofessional conduct involving misleading the court that the practitioner concerned is guilty of having done something dishonourable: see Re Cooke (1889) 5 TLR 407 at 408, per Lord Esher MR, (with whom Fry and Lopes LJJ agreed). The dishonourable quality lies in knowingly misleading the court: Tombling vUniversal Bulb Co Ltd [1951] 2 TLR 289 at 297, per Denning LJ; Vernon v Bosley (No 2) [1997] 3 WLR 683; [1997] 1 All ER 614. A practitioner who knowingly misleads a court will do so dishonestly. Therein lies the unprofessional conduct. There can be no professional misconduct where a practitioner innocently misleads a court; that is, without knowledge that the court is being misled. I accept, therefore, the submissions made by senior counsel that an intention to deceive, or dishonesty, is a necessary element of misleading the court [6].

102 However, as Martin CJ, Newnes and Murphy JJA explained in Fidock v Legal Profession Complaints Committee [2013] WASCA 108, a legal practitioner who misleads the court may engage in professional misconduct even though the practitioner did not knowingly mislead the court [100]. Their Honours gave, as an example, ‘a solicitor [who] swears an affidavit recklessly, careless whether it be true or false in the sense discussed in the authorities on fraudulent misrepresentation’ [100]. In these circumstances, the practitioner’s conduct ‘will generally properly be characterised as professional misconduct’ [100]. Their Honours added that ‘there is no reason in principle why conduct which can be classified as negligent cannot amount to professional misconduct’ [101], and then provided the following example:

Thus, for example, a misleading statement to the court made by a practitioner on a matter of importance to the disposition of the case, where the misstatement is made as a result of gross carelessness, may, depending on all the circumstances, involve a ‘substantial … failure to reach or maintain a reasonable standard of competence and diligence’ and thereby constitute professional misconduct within the meaning of s 403 of the 2008 Act. The importance of practitioners providing reliable information to the court applies with heightened force to a solemn occasion such as the swearing of an affidavit by a solicitor. Its significance is underscored where the affidavit is in support of an ex parte application [102].

103 In Fidock, the Tribunal found that the appellant, who was a legal practitioner, had engaged in professional misconduct in three respects including, relevantly, by swearing misleading affidavits containing misleading statements ‘and [making] those misleading statements recklessly’ [1]. This court criticised the Tribunal’s approach to the issue of ‘recklessness’ by reference to a line of authority, including Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378, which was concerned with the nature of dishonesty and recklessness in the context of accessorial liability for breach of trust [93], [103]. Martin CJ, Newnes and Murphy JJA said ‘the authorities dealing with reckless misstatement would have provided a more pertinent source of guidance to the Tribunal in relation to the misleading affidavits’ [93]. Nevertheless, this court dismissed the appeal. The Tribunal’s findings of primary fact were sufficient to justify its conclusion of professional misconduct. Martin CJ, Newnes and Murphy JJA said:

[T]he effect of the findings is that [the appellant] knew sufficient to indicate that Mrs Argentieri may have a claim to the money and he was thereby reckless or indifferent to the importance of the truth in swearing his affidavits in support of his application for probate. Even if, as the Tribunal found, [the appellant] did not actually know that the affidavits were false, that was sufficient to warrant the finding of professional misconduct, either by reference to Kyle or to s 403(1)(a) of the 2008 Act [106].Section 403(1)(a) of the Act defines ‘professional misconduct’ to include ‘unsatisfactory professional conduct … where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence’.

104 In the present case, I am satisfied that, despite a reference in its reasons to a ‘subjective approach’ being necessary in assessing ‘whether or not an act was done with “reckless disregard”‘ [68], the Tribunal applied the wrong test in deciding that the appellant had recklessly disregarded whether the statement was true or false. The Tribunal did not focus on the appellant’s actual state of mind in relation to the false statement in par 20. This is apparent from a number of passages in the Tribunal’s reasons.

105 In its reasons:

(a) the Tribunal found that in the circumstances ‘the [appellant] ought to have known that the statement was false’ [5];

(b) the Tribunal said ‘the [respondent] must show that in all the circumstances the [appellant] should have been aware that the statement might be untrue’ [70]; and

(c) the Tribunal said the appellant ‘should have considered that the words of the affidavit … warranted at least some further inquiry’ [72].

106 The findings and comments that the appellant ‘ought to have known’, ‘should have been aware’ and ‘should have considered that the words … warranted at least some further inquiry’ connote negligence or carelessness. They are inconsistent with the notion of an actual ‘awareness’ of a risk and an actual ‘conscious disregarding’ of the risk.

107 Also, the Tribunal’s observation, at [71] of its reasons, that ‘the words in paragraph 20 of the affidavit were settled by a very senior practitioner with some 30 years’ experience who knows the importance of the document being complete, accurate and having no potential to mislead’ are concerned with relevant objective circumstances and not the appellant’s actual state of mind. Similarly, the Tribunal’s statement, at [72] of its reasons, that ‘[b]y not making further inquiry, the [appellant] was more than careless and showed a culpable indifference as to whether it was true and to the consequences’ indicates that the Tribunal made an objective appraisal of the appellant’s conduct and the degree of his culpability, rather than undertake an inquiry as to his actual state of mind, in deciding that the appellant had recklessly disregarded whether the statement was true or false.

108 The Tribunal did not in its reasons mention any of the appellant’s evidence that was of direct relevance to his state of mind. Also, the Tribunal did not in its reasons make any express findings of fact as to the appellant’s actual state of mind in the context of the alleged reckless disregard. No implication can properly be made to overcome this omission.

109 At the hearing of the appeal, counsel for the respondent submitted that leave to appeal should be refused and the appeal dismissed because it was open to the Tribunal to find that the appellant had been negligent or careless in his conduct concerning par 20 of the client’s affidavit and because an allegation of less egregious conduct of this kind was subsumed within the respondent’s assertion of reckless disregard. I do not accept that submission. The proceedings before the Tribunal were fought on the basis that the issues as between the appellant and the respondent were whether the appellant had engaged in professional misconduct in that he knew the statement in the affidavit was false or, alternatively, he recklessly disregarded whether the statement was true or false. Negligence or carelessness was not in issue between the parties. The Tribunal did not base its decision on negligence or carelessness. In these circumstances, and in view of the proceedings in this court being in the nature of judicial review, it would not be appropriate for this court to endeavour to resolve the case in the manner submitted on behalf of the respondent.

110 Paragraph (b) of the new ground has been made out. It is in the interests of justice to grant leave to appeal on par (b). The Tribunal made a material error of law. This court is not able to conclude that the error did not affect the Tribunal’s fact finding process or its conclusion that the appellant had engaged in unsatisfactory professional conduct.

Edelman JA said:

‘129 The question raised by this ground of appeal was introduced by amendment during the course of oral submissions. The question is whether the Tribunal made an error of law in its application of the test of ‘recklessness’.

130 I agree with the Chief Justice, for the reasons he gives, that the meaning of ‘reckless’ will be coloured by the context in which that term is used. I also agree with the Chief Justice’s reasons at [44] that the context of the allegation of recklessness, involving a complaint against a legal practitioner,32 was an allegation of subjective recklessness in the sense of the practitioner being indifferent to the truth of the statement or ‘not caring in the [practitioner’s] own heart and conscience whether it was true or false’.33 As the High Court of Australia, quoting from various judgments in the House of Lords, recently expressed the common law concept of recklessness in criminal law, it involves ‘at least indifference’ or ‘not caring’.34 This was also the sense in which the case was run. The case was opened on the basis that the practitioner knew that the statement was false or was ‘reckless as to whether [the statement] was true’.35

131 The question is whether the Tribunal properly applied this legal test.

132 The Tribunal started with the correct test at [68]. The Tribunal cited pages from the decision in the New South Wales Court of Appeal decision in Pollard v Commonwealth Director of Public Prosecutions.36 At those pages, Abadee J discussed the concept of recklessness at length before concluding that it was a subjective concept.

133 The Tribunal also defined ‘reckless’ from the Shorter Oxford English Dictionary in terms that were concerned with subjectivity: ‘heedless of the consequences of one’s action or of danger’: [69].

134 Despite these references to subjectivity, there are five other matters that suggest that the Tribunal applied a test which was not subjective and which suggest that the Tribunal considered that recklessness could also be proved without making a determination about the actual state of the practitioner’s mind (which it could not).

135 First,there are the remarks by the Tribunal in [70] and [72].

136 At [70], the Tribunal says that the Committee was required to show that ‘in all the circumstances the Practitioner should have been aware that the statement might be untrue and made that statement without satisfying himself that it was true and regardless of the consequences’ (emphasis added).

137 At [72], the Tribunal said that the practitioner ‘should have considered that the words of the affidavit … warranted at least some further inquiry’ (emphasis added).

138 It is possible that the references by the Tribunal to ‘should have been aware’ and ‘should have considered’ might be read as shorthand references to

A matter that any reasonable practitioner would have been aware so that the inference to draw from the circumstances was thatthis practitioner wasaware that the statement might be untrue and made that statement without satisfying himself that it was true and regardless of the consequences.

139 By themselves, it is possible that these references might have been capable of being understood in this way, especially since in ‘appeals’ of this nature a court should not be ‘concerned with looseness in the language … nor with unhappy phrasing’ of the decision-maker, and the reasons for the decision under review should not be ‘construed minutely and finely with an eye keenly attuned to the perception of error’.37

140 However, these references to ‘should have’ must also be considered in the context that the Tribunal made no express conclusion that the practitioner’s state of mind was one of indifference, or not caring, about the truth of par 20 of the affidavit. Further, for the four additional reasons below, the references to ‘should have’ cannot be attributed to mere looseness in language.

141 Secondly, the Tribunal made no reference to any of the practitioner’s evidence that was directly relevant to his state of mind. If the Tribunal’s focus in its reasons was on the subjective state of mind of the practitioner then an important consideration ought to have been the practitioner’s direct evidence about his state of mind.

142 In cross-examination, the practitioner’s evidence was that what ‘was in [his] head’ was that the ‘bail conditions were varied’ to enable ‘supervised contact under an order of a family law magistrate’.38 He reiterated that his understanding at the time he settled the affidavit was that ‘bail was varied enabling [the client] to have supervised contact by order of a Family Court magistrate’.39 The practitioner then said that this was how he had read par 20 of the affidavit at the time.40

143 If accepted by the Tribunal, this evidence from the practitioner might have invited the conclusion that the practitioner, however carelessly, had incorrectly formed the opinion that par 20 was true. More precisely, to put the matter in terms of the burden of proof upon the LPCC and the context in which that burden needed to be satisfied,41 unless the practitioner’s evidence were rejected by the Tribunal, his evidence might have prevented the inference that he was indifferent about whether par 20 was true or false.

144 Thirdly, the issue of recklessness also appears to have been conflated with carelessness in closing submissions of counsel for the respondent (who was not counsel on this appeal). Although the submissions of counsel are not directly relevant to construing the reasons of the Tribunal, those submissions provide relevant context to the Tribunal’s decision.

145 Counsel for the respondent opened the respondent’s case on the basis that actual knowledge of falsity or recklessness as to truth was alleged.42 In dealing with this charge in closing submissions, counsel submitted that the practitioner knew that par 20 of the affidavit was false (which the Tribunal rejected). But then counsel expressed the alternative in terms that ‘he merely believed genuinely that it truly reflected the information he had’ and was ‘a substantial and culpable [sic] failure of professional competence’.43 This alternative is not an expression of subjective recklessness.

146 The manner in which counsel for the LPCC closed the case of the LPCC lends further force to the conclusion of the Chief Justice at [49] that the Tribunal approached the question of recklessness on the basis that it might be established by careless conduct of a particular quality or character.

147 Fourthly,there is an apparent error of comparison in the statement by the Tribunal at [69] that recklessness involves ‘more than carelessness and more than negligence’. Negligence is an objective concept. Recklessness in the context of this case is subjective. Describing recklessness as ‘more than’ negligence suggests that the matters might be comparable on the same scale.

148 The later repetition of this remark by the Tribunal at [72] is also consistent with an objective approach to recklessness. At that paragraph the Tribunal says that the practitioner was ‘more than careless and showed a culpable indifference as to whether [the statement in par 20] was true and to the consequences’. The reference to what the conduct of the practitioner showed suggests an objective characterisation of recklessness rather than the attempt to draw an inference about the state of mind of the practitioner.

149 Fifthly,there is, at least, an incongruity between a finding of recklessness by the Tribunal and the conclusion of the Tribunal that the unsatisfactory professional conduct of the practitioner did not involve a ‘substantial’ failure to reach or maintain a reasonable standard of competence and diligence.

150 Putting aside any issue, which was not argued on this appeal, concerning whether or not a legal characterisation of ‘substantial failure’ was open under s 622 of the 2008 Act, the conclusion of the Tribunal that the conduct of the legal practitioner did not satisfy this test of ‘substantial’ failure suggests that the Tribunal did not consider the conduct to be reckless in a subjective sense.

151 A finding of subjective recklessness would have been an extremely serious finding that a legal practitioner settled an affidavit without caring about the truth of an assertion by his client that ‘my bail conditions were varied so that I may spend time with the children supervised’. The finding would be even more serious in circumstances in which the client had informed the practitioner two months earlier that the client intended to plead guilty to seven charges of indecently dealing with a child under the age of 13 years, and two charges of sexual penetration of a child under the age of 13 years. It is difficult to see how a finding of recklessness, if intended in a subjective sense, could have been considered to involve a failure to reach or maintain a reasonable standard of competence and diligence but not to involve a ‘substantial’ failure.

152 Although there are references to subjectivity in the reasons of the Tribunal, the five matters referred to above illustrate why, when read as a whole, the Tribunal’s reasons determined the question of recklessness of the practitioner without drawing any inference concerning the practitioner’s state of mind that the practitioner did not care whether the statement in par 20 was true or false.

153 For these reasons, I agree with the Chief Justice that the decision of the Tribunal should be set aside and the matter remitted to the Tribunal for further consideration and determination in accordance with the reasons of this Court. I also agree that as the Tribunal’s decision in relation to penalty must be set aside, it is neither necessary nor appropriate to consider the grounds of appeal in relation to the penalty imposed by the Tribunal.’

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