IN THE LEGAL PRACTITIONERS DISCIPLINARY TRIBUNAL ACTION NO. 9 OF 2012 IN THE MATTER OF: THE LEGAL PRACTITIONERS ACT and IN THE MATTER OF:

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1 IN THE LEGAL PRACTITIONERS DISCIPLINARY TRIBUNAL ACTION NO. 9 OF 2012 IN THE MATTER OF: THE LEGAL PRACTITIONERS ACT 1981 and IN THE MATTER OF: VICTOR KUDRA 1. The Practitioner is charged with unprofessional conduct on or about 2 December 2010 arising out of the facts particularised in the Charge dated 20 July The Charge arises out of an interview between the Practitioner and the complainant that occurred at the Practitioner's office. 2. In his Reply to Charge dated 20 October 2012, the Practitioner admits most of the conduct particularised in the Charge. 3. At the healing, three issues were identified as being the subject of disagreement between the Board and the Practitioner. The first related to a factual matter, the second related to the practitioner's motive for his conduct and the third concerned the issue of whether the conduct was unsatisfactory or unprofessional. 4. The standard of proof to be applied is the civil standard but the degree of satisfaction of proof depends upon the gravity of the fact to be proved: Briginshenv v Briginshaw (1938) 60 CLR The parties provided the Tribunal with a Book of Agreed Documents Exhibit B1 upon which the Tribunal has relied. The Board, represented by Mr Michael Barnett, called the complainant to give evidence. The Practitioner, represented by Ms Lindy Powell QC, called six witnesses - the Practitioner, the Practitioner's personal assistant, Dr Carol Cayley (consulting psychologist) and character witnesses to give evidence. Closing submissions were received in writing. The practitioner's admitted conduct 6. The following facts are admitted by the Practitioner. 7. In the afternoon of 2 December 2010, the complainant arrived for her appointment with the Practitioner. She had not previously met him. She was seeking legal advice about issues arising from breast enlargement surgery she had in Following that surgery, her right breast was larger than her left breast and was painful and hard. She had a second operation in 2010 to try and fix those problems but there was no improvement in her condition. 8. At the time of the appointment, the Practitioner's personal assistant and a junior practitioner employed by the Practitioner were working at the premises.

2 2 9. The Practitioner and the complainant went into an office together, the door was shut and each sat at opposite sides of the Practitioner's desk. 10. The Practitioner took a history from the complainant and made notes. The history included the complainant's personal details including her age(34), information about the surgery being an enlargement of both breasts, the cost of the surgery ($8,000), the nature of the second operation, the cost of the second operation (nil) and the complainant's symptoms. 11. The Practitioner then asked the complainant whether he could "have a look". The complainant said "yes". She then removed her upper clothing, including her bra. The Practitioner then cupped her right breast with his hand, pushed the breast upward and into the centre of the complainant's chest. 12. The Practitioner then touched the complainant's left breast. The nature of that touching is in dispute. 13. There was some further discussion, the complainant then put her bra and upper clothing back on and signed some medical authorities. The complainant left. 14. The complainant did not make an immediate complaint about the Practitioner's conduct. A couple of weeks later she was doing casual work on an onion farm before Christmas. She spoke to some of the women working with her. The feedback that she received was that "that's not right, he can't do that". The complainant made a phone call to get legal advice from the Legal Services Commission. Following that advice, she contacted the Conduct Board. Her written complaint to the Conduct Board is dated 17 January The factual dispute 15. The conduct the Practitioner disputes is that alleged by the complainant in paragraph 1.10 of the Charge namely that After touching [the complainant's] right breast, the practitioner then with his same hand, touched [the complainant's] left breast by pinching the nipple of her left breast with his thumb, index and middle finger. The pinching was deliberate and neither accidental nor incidental to his touching of [the complainant's] right breast or for any reason connected with giving legal advice to [the complainant]. 16. In his reply to paragraph 1.10 of the Charge, the Practitioner pleads that The practitioner admits touching the left breast of [the complainant] to compare the hardness of the breast to the right breast. The practitioner denies intentionally pinching the nipple of the left breast and farther states that any contact with the left breast was for the purpose of comparison to enable the practitioner to advise [the complainant] in relation to the potential negligence claim. 17. The complainant gave evidence that after the Practitioner used his left hand to cup her right breast and push it towards the centre of her chest, he then reached over to her left breast with his left hand and squeezed and pulled her nipple with his thumb and index finger.

3 3 18. There were a number of minor factual discrepancies between the complainant and the Practitioner as to the circumstances of the complainant's visit to his offices and the manner in which the consultation between solicitor and client occurred. Those differences relate amongst other things to the layout of the Practitioner's offices (in respect of which we accept the Practitioner's description of the office premises), the hair colour of the Practitioner's receptionist, whether or not the Practitioner took notes at the time of the interview (which we accept he did) and which hand the Practitioner used to "palpate" the complainant's breasts. 19. We accept that the complainant's recollection of the layout of the offices and the visual appearance of the Practitioner's receptionist is likely to be imperfect. Her lack of recollection in respect of these matters and other associated matters (eg whether or not the Practitioner took notes at the time of the meeting) did not detract from the open and honest way in which she gave her evidence. 20. The complainant gave her evidence in an open and straightforward manner which the Tribunal accepts as truthful and an accurate reflection of her recollection. She readily admitted when she did not recall an event or a circumstance. She did not appear to be attempting to falsely reconstruct the events or give a coloured version of the facts. She did not appear to harbour any animosity towards the Practitioner. 21. Can the complainant be accepted as reliable in regard to the touching of her left breast? 22. The Practitioner points to a number of factors against this. 23. First, the complainant's evidence about which hand the Practitioner used to touch her breasts. In her evidence she said that he used his left hand. In his written submissions, the Practitioner refers to the complainant's statement to the Board signed on 21 March 2011 when she referred said that he used his right hand. We find that is an inconsistency. We note that the complainant was not cross-examined about that inconsistency. The Practitioner also notes that in her statement to the police on 18 February 2011, the complainant said he used his left hand. 24. Second, the complainant's evidence about the fingers used to pull her nipple and the duration of the pulling. In cross-examination, the complainant said that the pulling occurred for a few seconds. She agreed that a few seconds could mean up to ten seconds. She accepted that she told the police on 18 February 2011 that the practitioner used his thumb and middle finger (as opposed to her evidence that he used his thumb and index finger) and that the pulling happened for one second. When asked to explain the inconsistencies, she said "all I know is that he grabbed the nipple". It was put to her that she may be mistaken and that it was the practitioner's hand pressed against the left breast over the nipple. She denied being mistaken, saying "big difference between a hand and fingers". She thought the grabbing of her nipple was "a bit weird" but readily admitted that she did not complain at the time. 25. Despite these differences, we find that the complainant was honest, credible and reliable about the Practitioner pulling the nipple of her left breast. 26. The Practitioner bears no onus in regard to this matter. In giving evidence, he denied pulling the nipple. He stated that he used his right hand (he is right handed) to cup and palpate the right breast of the complainant. There was no explanation as to whether this required him to reach across the desk and rotate his right arm and hand so that he could

4 4 cup the breast and push it towards the centre of the complainant's chest or alternatively position his body in such a way to be able to do that. 27. On his evidence, he then reached towards the complainant's left breast with the back of his hand towards himself and "squeezed her left breast from the front". He did not attempt to cup it and push it towards the centre of her chest in the same way as he had palpated her right breast. He concedes he may in the course of this squeezing of her right breast have made contact with her nipple. Motive 28. Both the complainant and practitioner gave evidence that the contact with the complainant's left breast was different to the touching of the right breast. Both agreed that the "hardness" of the breasts could be compared by feeling both. 29. The Practitioner's description of his examination of the left breast of the complainant was not entirely convincing and was acknowledged by him to have been done in a very different manner to the palpation of the right breast. The reason for the difference was not satisfactorily explained. 30. It is common ground that the complainant made no complaint at the time, was not visibly or otherwise distressed as a result of the examination, did not react or respond to the pinching of the nipple and believed at the time that the examination was something that her lawyer needed to do for the purposes of the examination and interview. 31. In considering the totality of the evidence, we are satisfied to the relevant standard of proof that the practitioner did touch the complainant's left breast differently to the right breast and did deliberately pinch the nipple of the complainant's left breast. 32. The Board did not positively assert an indecent or lewd motive on the part of the Practitioner but submitted that it would be a finding open to the Tribunal. On the basis of the conduct itself, an inference could be drawn as to an improper and indecent motive on the part of the Practitioner. The Practitioner denied an indecent or lewd motive. 33. We accept the evidence of the Practitioner's good character which was given by the Practitioner's personal assistant, a senior solicitor and two senior members of the South Australian Bar. The Board did not challenge the evidence. The Practitioner is a wellregarded and respected member of the local community. He has engaged in voluntary community activities. On the basis of the evidence before us, this conduct is out of character both professionally and personally. 34. The Practitioner did not give a satisfactory or compelling explanation for his conduct. 35. The Practitioner gave evidence that he acted for personal injury complainants on a no win no fee basis. During this consultation, he had to make a decision about whether he would act for the complainant on that basis. He had to make an informed decision about whether his client had a reasonable chance of success and whether her injuries had been exaggerated by her or not. 36. The Practitioner had been practising for over 20 years. His conduct in asking to "look" at his client's breasts and then touching them cannot be characterised as simply "an error of judgment". It is conduct undoubtedly outside the boundaries of what is appropriate.

5 5 The practitioner was well aware that the procedure was to have the complainant examined by a qualified medical practitioner who would then provide a report. He estimated that cost to be $800 to $900 and payable by the client. 37. In his evidence, the Practitioner said that his admitted conduct should not have happened at all. We do accept that this is now his view. We do not accept that this was always his understanding. In his solicitor's letter to the Conduct Board dated 18 August 2011and to the psychologist Dr Cayley on 24 September 2012 he is recorded as expressing the view that he ought to have had a female solicitor present during the examination. His explanation of this was that the presence of a female solicitor would have been corroborative evidence that would have assisted him resisting the allegation that he had some lewd or lascivious intent at the time of the examination. 38. The Practitioner also suggests that his "error of judgement" arose out of stress and distress from which he was suffering as a result of the recent illness of one of his four children. In September 2010, the practitioner's 9 year old son was admitted to hospital and diagnosed with micoplasm encephalitis. The Practitioner believed that he was "watching my son slowly die". His son was discharged from hospital in late September and fortunately made a full recovery. 39. The Practitioner saw Dr Carol Cayley on 24 September The Tribunal was supplied with a report form Dr Cayley which was supplemented by evidence. She observed that the practitioner appeared to still be affected by what had happened to his son he was extremely tearful and distressed and could not speak for several minutes - even though it occurred a few years before. 40. In her report, Dr Cayley expressed the opinion that "it is likely that his judgement was affected by the likely ongoing distress about his son's wellbeing and the stress of trying to catch up the work that he had left unattended during the time that he was in hospital". 41. Evidence was led from two legal practitioners of their observations of the practitioner's work following the son's illness. One practitioner had visited the office on a monthly basis over many years to attend to family law files. She observed how upset the practitioner was when he and his wife told her about their son. She said that he had fallen behind with his billings to such an extent that she had to stay over to the weekend to assist him. Another senior practitioner gave evidence that during a court healing when the practitioner was instructing him, the practitioner was not functioning in the same organised and routine way that he had always done in the past. We accept their evidence. 42. We accept that the Practitioner suffered considerable stress and distress because of his son's illness. However, the connection between the stress associated with the illness of his son and the conduct in question was not compelling. Falling behind in billings and a reduced concentration on work is in an entirely different category to a request to see a client's breasts and subsequent examination of them. 43. Despite the unsatisfactory nature of the explanation given by the Practitioner for his conduct, we are not prepared to make a finding of indecent or lewd motive. Whatever the explanation for his conduct on this occasion, we accept his behaviour was out of character.

6 6 44. Ultimately, it is not necessary for us to make a finding as to motive. Even if the practitioner genuinely but mistakenly believed that the examination was necessary to help him to decide whether to act for the complainant and even if the stress caused by his son's illness did in some way help to explain his conduct (neither of which we accept), neither would not mitigate its seriousness. The objective conduct, whatever the reason or explanation, is in itself very serious. Unprofessional conduct 45. In the course of opening addresses, the Practitioner's counsel informed the Tribunal that the Practitioner accepted that his admitted conduct was "unsatisfactory conduct" but submitted that it did not amount to unprofessional conduct within the meaning of Section 5 of the Legal Practitioners Act 1981 (SA) ("the LPA"). 46. We have considered the Practitioner's written closing submissions in regard to this issue. 47. The Tribunal finds that the whole of the Practitioner's conduct on 2 December 2010 amounts to unprofessional conduct within the meaning of the LPA. We have found that the Practitioner deliberately pulled the complainant's nipple. Even if we had not made that finding, our view would still have been that the conduct was unprofessional conduct. 48. In our view, the practitioner's request to "have a look" at the complainant's breasts and his subsequent physical examination of the complainant amounts to a "substantial...failure to meet the standard of conduct observed by competent legal practitioners of good repute". 49. We are satisfied that the Practitioner is guilty of unprofessional conduct. 50. The Practitioner is an admitted legal practitioner who has been practising since the late 1980s. For most of his career he has been practising in the country area as a salaried solicitor, a sole practitioner or principal of a small firm. His own practice includes personal injury matters, wills and estates and some commercial matters. 51. We have considered our powers pursuant to section 82(6) of the LPA. 52. This conduct was out of character. It was a single incident. However, because of the seriousness of the conduct and the magnitude of the departure from the standard of conduct observed by competent legal practitioners of good repute, we recommend that disciplinary proceedings be com_menced against the Practitioner in the Supreme Court. LJ Chapman SC RL Kennett CJ D'Arcy Chairperson Member Member