Low level BAS drama for NSW brief … Tax obligations … Psychological reporting … Subeta Vimalarajah at the Bureau de Spank
Kintominas was admitted to practise in 1988 and held an unrestricted practising certificate until June 2010. From August 2010 onwards, his certificate was made subject to various financial and medical reporting requirements.
This included meeting any obligations to the Australian Taxation Office, attending a psychologist for regular treatment, and reporting on both to the Bar Association.
In August 2016, the association refused his application for a certificate claiming that he had made false and misleading statements in relation to the conditions attached to his previous practising certificate and breached some of the conditions.
The Bar Association applied to the tribunal for disciplinary findings and orders in relation to the alleged conduct.
Kintominas did not contest the Bar Association’s asserted facts as to his conduct. He accepted that he had falsely represented that he had lodged his Business Activity Statements with the ATO, that he did not owe any tax, and that he had complied with all the conditions of his practising certificate.
Although Kintominas conceded that the first ground of misleading the Bar Association justified a finding of professional misconduct, he disputed that the second ground – his failure to comply with the conditions – amounted to professional misconduct.
NCAT agreed that the conduct establishing the first ground clearly constituted professional misconduct, considering his behaviour involved “a grave departure from the standards expected of a practitioner” that pointed “to a lack of integrity and weaknesses of character of a serious kind”.
On the second ground, Kintominas’ counsel, Tom Molomby SC, submitted that his failures to report to the ATO were not as serious as those in other recent cases, in which non-compliance with tax obligations continued over a longer period of time and the sums owing were significantly larger.
The tribunal accepted that Kintominas’ case was not as egregious as those cited by Molomby. The quarterly amounts owed by Kintominas for the 2014-15 financial year totaled $11,511, with professional income of $27,000 for that year. By way of comparison, in Quinlivan’s case the barrister owed the ATO $850,000.
However, the tribunal did not accept that Kintominas’ failure to comply with the conditions attached to his ticket amounted to less than professional misconduct.
Molomby submitted that the failures to comply with treatment conditions were matters related to health and personality disorders and were not “venal” failures.
The tribunal did not give weight to psychological reports at this stage. Rather, it assessed the objective seriousness of the the relevant conduct and found that Kintominas’ failures to comply with his psychological treatment conditions were “repeated” and amounted to “an almost total disregard” for his obligations, satisfying the standard for professional misconduct.
Although the tribunal found Kintominas guilty of professional misconduct in relation to both grounds, his conduct in the second ground was not considered so egregious as to warrant a finding of not being “fit and proper”.
The matter is to be re-listed for disciplinary orders to be made following a further submissions.