CITATION: New South Wales Bar Association v Osei

DIVISION: Legal Services Division

PARTIES:

APPLICANT The Council of the New South Wales Bar Association
RESPONDENT Kofi Ameyaw Osei

FILE NUMBER: 042010, 042039 and 042040

HEARING DATES: 15/08/2005-18/08/2005

SUBMISSIONS CLOSED: 09/12/2005

DATE OF DECISION: 02/03/2006

BEFORE: Officer D QC - Judicial Member; Robinson WL QC -Judicial Member; Mara A - Non Judicial Member

APPLICATION: Professional Misconduct - improperly induce client to invest funds - Professional Misconduct - mislead client - Professional Misconduct - mislead Law Society/Bar Association/LSC - Unsatsifactory Professional Conduct - fail to advance and protect the interests of client

MATTER FOR DECISION: Principal matter

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

CASES CITED: A Solicitor v Council of the Law Society of New South Wales (2004) 216 [...] REPRESENTATION: APPLICANT P Skinner, Barrister

RESPONDENT No appearance

ORDERS:
1. Information 042010 is dismissed;

2. The Respondent is guilty of professional misconduct in providing false and misleading responses to the Bar Council by letter dated 28 June 2002 as particularised in Grounds 1 and 2 of Information 042039;

3. The Respondent is guilty of unsatisfactory professional conduct in failing to advance and protect the interests of his clients when he appeared for them in the Refugee Review Tribunal on 10 September 2001 as particularised in Information 042040; 4. The matters 042039 and 042040 are listed on Thursday, 2 March 2006 at 9.30a.m. for directions in relation to penalty

PUBLISHED DATE: 03/02/2006

REASONS FOR DECISION Background

1 Kofi Ameyaw Osei was admitted as a barrister of the Supreme Court of New South Wales on 7 February 1992. He was issued with a Practising Certificate on 8 March 1992 and held a Practising Certificate continuously until 30 June 2004 when his Practising Certificate expired. It has not been renewed.

2 At all relevant times the Barrister carried on his practice from premises known as Downing Chambers, 9th Floor, 307 Pitt Street, Sydney. That was his Chambers address as notified to the Bar Association, that appeared on his Barrister's letterhead and stationery, that appeared on the Chambers and in the foyer of the building and was otherwise so utilised by him as the relevant address for his practice as a barrister.

3 The Barrister was also a registered Migration Agent under the Migration Act 1958. The Barrister and his wife were shareholders and directors in Caprock International Pty Limited which, at least from 1997 to 2004, also carried on business from Level 9, 307 Pitt Street, Sydney. Its business included carrying on business as Caprock Immigration Consultants.

4 Lloyds International College was an educational institution owned and operated by Caprock International Pty Limited. It was a college which operated in Sydney for international students and, apparently, was a fully accredited English college and a fully accredited business and information technology college. Courses were delivered to a large number of overseas students and it operated its classrooms, laboratories, IT workshop, offices and other facilities out of premises, including at 307 Pitt Street, Sydney.

5 Alberto Bautista, aged 43, his wife Jocelyn, aged 40, and their three teenage children arrived in Sydney from the Philippines on 1 November 1999. They possessed three month tourist visas which were due to expire in January 2000. In January 2000 their tourist visas were extended until 30 June 2000. The Bautista family consulted Mr Osei/Caprock International Pty Limited/Caprock Immigration Consultants. There is an issue in this case as to the capacity in which Mr Osei acted from time to time, and whether it was as a barrister or as a migration agent.

Grounds of Complaint

6 There are three Informations by the Council of the New South Wales Bar Association against Mr Osei. The first is No. 042010 and alleges that the practitioner was guilty of professional misconduct on two grounds, which were particularised as follows:

"Ground 1 The practitioner knowingly and deliberately mislead Mr Alberto Bautista and Ms Jocelyn Bautista when, on or about 22-27 February 2001, he advised them that investment in the organisation Lloyds International College in which the practitioner held an interest would assure Mr and Mrs Bautista of success in their migration applications.

Particulars

(a) As at 22 February 2001 and all material times Lloyds International College was a business conducted under that name by Caprock International Pty Limited, ACT [sic] 060 771 556, ("Caprock"). Its principal place of business was level 9, 37 Pitt Street, Sydney.
(b) As at 22 February 2001 and all material times Caprock also conducted a business known as Caprock Immigration Consultants, principally from Level 9, 37 Pitt Street, Sydney.
(c) Prior to 27 February 2001 the practitioner owned one of the two ordinary shares issued in Caprock.
(d) As at 22 February 2001 and all material times the practitioner was a director of Caprock.
(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.
(g) At all material times the practitioner let it be known to Mr and Mrs Bautista that he was a barrister, as well as a registered Migration Agent.
(h) On or about 22 February 2001 the practitioner advised Mr and Mrs Bautista that investment in Lloyds International College by purchasing a 10% interest in the business would ensure that the Department would grant to them and their family a Visa allowing them to stay in Australia.
(i) Acting upon the advice of the practitioner, on 27 February 2001 Mr an Mrs Bautista purchased from their bank and provided to the practitioner a bank cheque for the sum of $150,000.00 payable to Lloyds International College.
(j) After appropriate process in respect of the application for a Protection Visa and a further application by Caprock Immigration Consultants for the exercise of the Minister's discretion, the Department rejected all Visa applications by and on behalf of Mr and Mrs Bautista and their family.

Ground 2

The practitioner improperly induced Mr Alberto Bautista and Ms Jocelyn Bautista, on or about 22-27 February 2001, to invest funds in the sum of $150,000.00 for which they received 150,000 shares in Caprock International Pty Limited, ACN 060 771 556, a company in which the practitioner and his wife held a controlling interest.
Particulars
(a) Particulars (a) to (j) in Ground 1, above, are repeated.
(b) The bank cheque provided to the practitioner on 27 February 2001 specified the payee as Lloyds International College. Without the informed consent of Mr and Mrs Bautista the cheque was applied to the capital of Caprock by way of the issue of 150,000 ?A' Class shares in Caprock to Mrs Bautista."

7 In relation to this Information the Barrister, through his then solicitor, Mr Cuddy, filed a Reply dated 7 May 2004 in the following terms (relevantly):
"Ground 1 The practitioner denies this ground.
The practitioner admits particulars subtended to this ground, as follows:
(a) that at February 2001, Caprock was the proprietor of the College, but not otherwise,
(b), (c), (d),
(e) but only as at 22 February 2001,
(f)
(i) that Mr and Mrs Bautista provided a bank cheque for the sum of $150,000 payable to the College, but not otherwise,
(j) The practitioner does not admit particulars (g), (h) subtended to this ground. The practitioner denies that the purchase of the shares in Caprock was done with his advice or that he received the subscription price for the shares.

Ground 2

The practitioner denies this ground.
The practitioner repeats his answers given in respect of particulars repeated from
Ground 1 in (a).
In answer to particulars (b), the practitioner admits:-
3. The cheque was applied to the capital of Caprock, and paid into the Lloyd International College account.
150,000 A Class shares in Caprock were issued to Mrs Bautista
The practitioner denies he was the payee of the cheque, and otherwise does not admit this particular."

8 By Information 042039 the Bar Association alleged that the practitioner was guilty of professional misconduct upon two further grounds particularised as follows:

"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 ...?

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.'

9 By a further Information No. 042040 the Bar Association alleged that the practitioner had been guilty of unsatisfactory professional conduct on the grounds particularised 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."

The Hearing - in the Absence of Mr Osei 10 Matter No. 042010 was originally listed for hearing in the Tribunal over three days commencing 14 December 2004. Mr Cuddy, solicitor, represented Mr Osei in those proceedings.

11 The Bar Association then wished to file fresh Informations, involving a further three complaints and wished to lead evidence from five fresh witnesses. Their witness statements were provided to Mr Cuddy.

12 The Informations in No. 042039 and 042040 were filed on 24 December 2004 and sent to Mr Cuddy as solicitor for Mr Osei, upon the assumption that he had instructions to accept service. He did not suggest otherwise, and never has done.

13 On 16 February, Mr Cuddy appeared for the Respondent at a directions hearing in the Tribunal and consented to the said two new Informations being joined to the hearing of Information 042010 and he consented to the three Informations being set down for hearing on 15 August 2005. He further consented to replies being filed for the two new Informations by 8 April and that the Respondent's affidavits be filed by 27 May.

14 By letter dated 8 April 2005 Mr Cuddy advised the Registrar and the solicitors for the Applicant that: "We did not file responses in relation to the two later Informations as we have not received instructions from our client and we have given him notice that we cease to act on his behalf. Please remove this firm as the address for service of Mr Osei."

15 By letter dated 19 April 2005 to the Tribunal, Mr Osei, then apparently Deputy Minister for Trade and Industry, Republic of Ghana, asserted that the proceedings by the Bar Association involved conduct by Mr Osei in his capacity, not as a barrister, but as a Migration Agent and that the very same complaints had been investigated by the Migration Agents Registration Authority ("MARA") and he had been cleared of any wrongdoing. He asserted that he did not hold a Practising Certificate in New South Wales or elsewhere within the Commonwealth of Australia and he did not propose to apply for one, either then or at any time in the future. He indicated that he was prepared to undertake, as appropriate, that he would not then or in the future seek to practise as a barrister, solicitor or legal practitioner in New South Wales or anywhere else within the Commonwealth of Australia. He asked that on that basis the then current proceedings be terminated.

16 By letter dated 22 April 2005 the Ghana Consulate General, Sydney, asserted that Mr Osei "asserts and claims diplomatic immunity in respect of the proceedings in the Tribunal". The Department of Foreign Affairs and Trade, by letter of 27 April 2005, advised the solicitors for the Bar Association that Mr Osei had not been accredited to Australia as a diplomat and that accordingly, "it is very unlikely that he enjoys any diplomatic privileges or immunities in Australia". The said letter advised that pursuant to Convention:

"An honorary consular officer enjoys immunity from jurisdiction of the judicial or administrative authorities of Australia in respect of acts performed in the exercise of consular functions, with limited exceptions."

The letter further advised that "the entitlement to claim immunity generally ceases when the person leaves the territory".

17 In the present case, it is noted that no-one appeared before this Tribunal on behalf of Mr Osei to advance any claim for diplomatic immunity. It is also noted that none of the conduct complained of was in any way linked to or associated with the performance by any person of any consular function and indeed, on the evidence before this Tribunal, the complained of conduct occurring as alleged in 2001 and 2002 was at a time when Mr Osei had no consular status at all. Any claim for diplomatic immunity is rejected. 18 On 19 May 2005 this Tribunal made orders permitting the Bar Association to proceed with the said hearing and for it to be conducted despite the Barrister's foreshadowed failure to appear.

19 When the matter came on for hearing on 15 August 2005 Mr Osei did not appear and the hearing proceeded in his absence.

20 The Tribunal received some 28 exhibits (including affidavits) and heard oral evidence from Alberto Bautista, Hyun Ya Kim, Roderick James Murray, Jocelyn Bautista and Messrs Seo and Karamoah. .... click here to continue