Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Konstantinidis v Council of the Law Society of New South Wales [2020] NSWCA 227 Hearing dates: On the papers Decision date: 23 September 2020 Before: Macfarlan JA at [1] Gleeson JA at [2] N Adams J at [28] Decision: (1) Appeal allowed as to grounds 1 and 3. (2) Set aside the decisions made by the New South Wales Civil and Administrative Tribunal (the Tribunal) on 3 July 2019 and 20 February 2020 and in their place order that: (a) the disciplinary application made by the respondent on 7 January 2016 be dismissed; and (b) each party pay its own costs of the proceedings in the Tribunal. (3) The respondent pay the appellant's costs of the appeal as agreed or assessed. Catchwords: PROFESSIONS AND TRADES – legal practitioner – where disciplinary application against practitioner in New South Wales Civil and Administrative Tribunal – where Law Society did not first comply with Legal Profession Act 2004 (NSW) ss 537(2) and s 540 – whether Tribunal lacked jurisdiction to hear complaints – where no objection to new point being raised on appeal – where parties seek consent orders – whether desirable to make anonymisation order relating to the Tribunal's decisions Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 49(1), 64(1)(a), cls 29(1)(e) and (4) of Sch 5 Civil Procedure Act 2005 (NSW), s 56(3) Court Suppression and Non-publication Orders Act 2010 (NSW), s 8 Legal Profession Act 2004 (NSW), ss 255, 537(2), 540 Supreme Court Act 1970 (NSW), s 75A Cases Cited: Council of the Law Society of New South Wales v Levitt [2018] NSWCA 247 Council of the Law Society of New South Wales v Konstantinidis v The Council of the Law Society of New South Wales [2018] NSWCA 59 Council of the Law Society of New South Wales v Levitt [2019] HCATrans 78 Council of the Law Society of New South Wales v Konstantinidis [2019] NSWCATOD 104 Council of the Law Society of New South Wales v Konstantinidis (No 3) [2020] NSWCATOD 91 DRJ v Commissioner of Victims' Rights [2020] NSWCA 136 Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344; [2004] NSWCA 324 John Fairfax & Sons v Police Tribunal of New South Wales (1986) 5 NSWLR 465 Konstantinidis v The Council of the Law Society of New South Wales [2018] NSWCA 59 Law Society of New South Wales v Konstantinidis [2017] NSWCATOD 105 Levitt v Council of the Law Society of New South Wales [2017] NSWSC 834 Minister for Immigration and Citizenship v SZMTA (2019) 264 CLR 421 Misrachi v The Public Guardian [2019] NSWCA 67 Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598 Category: Principal judgment Parties: Simon Konstantinidis (Appellant) Council of the Law Society of New South Wales (Respondent) Representation: Counsel: P Lowson (Appellant) T Wong SC / S Jeliba (Respondent) Solicitors: Carneys Lawyers (Appellant) Law Society of New South Wales – Professional Standards Department (Respondent) File Number(s): 2020/87185 Decision under appeal Court or tribunal: New South Wales Civil and Administrative Tribunal Jurisdiction: Occupational Division Citation: [2019] NSWCATOD 104 [2020] NSWCATOD 91 [2020] NSWCATOD 59 Date of Decision: 3 July 2019 20 February 2020 14 August 2020 Before: D Fairlie, Senior Member P Moran, Senior Member J Schwager, General Member File Number(s): 2016/378572 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. MACFARLAN JA: I agree with Gleeson JA. 2. GLEESON JA: Shortly prior to the hearing of this appeal the parties asked the Court to make consent orders in the following terms: 1. Appeal allowed. 2. Set aside the decisions made by the New South Wales Civil and Administrative Tribunal (the Tribunal) on 3 July 2019 and 20 February 2020 and in their place order that: (a) the disciplinary application made by the Respondent on 7 January 2016 be dismissed; and (b) each party pay its own costs of the proceedings in the Tribunal. 3. The Respondent pay the Appellant's costs of the appeal as agreed or assessed. 4. The reasons for decision known as: (a) Council of the Law Society of New South Wales v Konstantinidis [2019] NSWCATOD 104; and (b) Council of the Law Society of New South Wales v Konstantinidis (No 3) [2020] NSWCATOD 91 (and [2020] NSWCATAD 59) (the decisions) be removed forthwith from the New South Wales Caselaw website. 5. The registrar or other appropriate officer of the Court request legal publishers AustLii, LexisNexis, Thomson Reuters Westlaw and JADE to remove the decisions from their websites. 6. Before being republished on New South Wales Caselaw, the decisions be anonymised as follows: (a) the name of the Appellant be replaced with letters; (b) the name of the legal practice Konstan Lawyers be anonymised. 1. Whilst the Court undoubtedly has power to dispose of an appeal by consent, the Court requested written submissions from the parties as to why the consent orders were appropriate. After receipt of those submissions the Court informed the parties that it was prepared to deal with the matter on the papers and make orders in terms of orders 1 (subject to the addition of the words "as to grounds 1 and 3"), 2 and 3, but was not disposed to make orders 4, 5 and 6, nor remit the matter to the Tribunal, as the parties had requested, if the Court did not make those other orders. The Court offered the parties an oral hearing if they wished to argue to the contrary. The parties declined that opportunity. 2. It is appropriate that the Court give brief reasons for its decision, given that the subject matter of the appeal involves disciplinary proceedings against a legal practitioner and the ground on which the appeal has succeeded was not raised in the proceedings below. Background 1. After investigating complaints received about the professional conduct of a legal practitioner, Mr Simon Konstantinidis, in mid-2012 and May 2013, the Council of the Law Society of New South Wales (the Council) filed an application in the Tribunal on 7 January 2016 seeking disciplinary findings and orders alleging that the legal practitioner was guilty of professional misconduct in respect of the two complaints. One complaint concerned an alleged failure to account for the balance of settlement monies on the sale of a property in Earlwood and breach of s 255 of the Legal Profession Act 2004 (NSW) (LPA 2004); the other concerned an alleged failure to comply with undertakings given to another solicitor in relation to a workers' compensation matter. 2. The Tribunal dealt with preliminary jurisdictional issues in a decision delivered on 4 July 2017. [1] An appeal by the legal practitioner against that decision was dismissed by this Court on 27 March 2018. [2] 3. The proceedings were heard by the Tribunal on 29 and 30 August 2018 and 11 and 12 December 2018. The Tribunal delivered its decision on 3 July 2019 [3] finding the legal practitioner guilty of professional misconduct in two respects and guilty of unsatisfactory professional conduct in one other respect. In its reasons, the Tribunal recorded its concern that its ability to resolve and determine the disciplinary proceedings justly, cheaply and quickly had not been assisted by the manner in which the proceedings had been approached and conducted by the parties. [4] 4. On 20 February 2020, the Tribunal delivered its decision on penalty: the legal practitioner was reprimanded and ordered to pay a fine of $8,000 within 60 days, to undergo a specified education course, and to pay the Council's costs of the proceedings. [5] 5. The notice of appeal filed 18 May 2020 challenged both decisions of the Tribunal. One basis of that challenge (grounds 1 and 3) was that the Tribunal lacked jurisdiction to hear and determine the complaints made by clients against the legal practitioner due to the Council's failure to comply with the compound exercise required by ss 540 and 537(2) of the LPA 2004. Those provisions have since been repealed. 6. In support of the jurisdictional argument, the legal practitioner relied upon the decision of this Court in Council of the Law Society of New South Wales v Levitt (Levitt) [6] and that of Wilson J, the primary judge in that case. [7] An application by the Council for special leave to appeal from the decision of this Court in Levitt was refused by the High Court on 12 April 2019. [8] The legal practitioner submitted that when the Council resolved in the present case to commence proceedings in the Tribunal, the Council misapprehended the requirements of s 537(2) and failed to apply itself to the questions which it prescribed. The essential complaint was that the Council failed to consider the possible summary conclusion of the complaints pursuant to s 540. [9] 7. The legal practitioner also submitted that: As a model litigant, the Council should have drawn the judgment (of this Court in Levitt) to the attention of the Tribunal and Mr Konstantinidis. 1. The Council did not contest that it had not drawn the decision of this Court in Levitt or that of the primary judge, Wilson J, to the attention of the Tribunal or the legal practitioner. In its written submissions relating to the proposed consent orders, the Council acknowledged that: * the Tribunal lacked jurisdiction to hear and determine the complaints made by the two clients due to the Council's failure to comply with the compound exercise required by s 540 and s 537(2) of the LPA 2004; * there is no evidence that it engaged with s 540 of the LPA 2004 prior to making its decisions to commence proceedings against the legal practitioner in relation to the two client complaints; and * this failure was material, such as to constitute jurisdictional error. [10] 1. The Council noted that it had determined that it was not in the public interest to continue with the complaint investigation against the legal practitioner pursuant to s 537(2) and for this reason the Council consented to orders not only allowing the appeal, but also dismissing the application made on 7 January 2016 in the Tribunal. Disposition of the appeal 1. It is most unfortunate that the Council did not bring the jurisdictional point to the attention of the Tribunal and the legal practitioner immediately after the decision of Wilson J on 29 June 2017, or indeed the decision of this Court on 26 October 2018. As at both those dates the Tribunal was part-heard in relation to Stage 1 of the disciplinary proceedings. The written submissions of the Council did not provide any explanation for that omission. 2. Further, once the appeal was filed in this Court, the Council should not have waited until the legal practitioner had filed its written submissions before conceding the point. The delay in making that concession was not consistent with the obligations of a party in civil proceedings to assist the court to further the overriding purpose of facilitating the "just, quick and cheap" resolution of the real issues in the proceedings [11] . 3. Although the jurisdictional argument was not relied upon by the legal practitioner in the Tribunal, I am satisfied that this is an exceptional case where the appellant should be permitted to rely upon a new point on appeal, given that the Council accepts that the new point could not possibly have been met by further evidence in the Tribunal. [12] 4. Since the Council has only conceded the jurisdictional point, it is appropriate that proposed order 1 be qualified to make this clear. Anonymisation and ancillary orders 1. The legal practitioner submitted that the Court should make the anonymisation order in terms of proposed order 6 because the published decisions of the Tribunal had significant adverse consequences to his professional and personal reputation. Orders 4 and 5 are said to be necessary and ancillary orders to the anonymisation order in order 6. 2. As to the question of power to make such orders, the appeal is a rehearing pursuant to s 75A of the Supreme Court Act 1970 (NSW) [13] and this Court may give any judgment, make any order or give any direction which ought to have been given or made or which the nature of the case requires. [14] The legal practitioner submitted that this Court should exercise the Tribunal's power to restrict disclosures concerning the proceedings in the Tribunal exercising the power conferred by s 64(1) of the NCAT Act which is in the following terms: 64 Tribunal may restrict disclosures concerning proceedings (1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders— (a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal), (b) an order prohibiting or restricting the publication or broadcast of any report of proceedings in the Tribunal, (c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal, (d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings. 1. It has been said in relation to non-publication orders that there is a sharp contrast between the relatively onerous requirement of s 8 of the Court Suppression and Non-publication Orders Act 2010 (NSW) [15] in relation to court proceedings and s 64(1) of the NCAT Act. The power in s 8 of the Court Suppression Act requires the court's satisfaction about what is "necessary", whereas the power under s 64(1) requires the Tribunal's satisfaction about what is "desirable". 2. I am not persuaded that the proposed anonymisation order is desirable. 3. First, the hearing before the Tribunal was conducted in public [16] and no order was made by the Tribunal under s 64(1) of the NCAT Act for the non-publication of the name of the legal practitioner. Further, the appeal to this Court in 2018 was heard in open court, and no application has been made in relation to this appeal for any non-publication order under the Court Suppression Act. 4. Second, the onus is on the legal practitioner to demonstrate that an order is "desirable". The bare assertion of significant adverse consequences to his professional and personal reputation was not supported by any evidence. 5. Third, the appeal has been allowed on a limited basis, and the reasons and orders of this Court may be referred to and relied upon by the legal practitioner to vindicate his success on the jurisdictional ground on appeal. It would be inconsistent with the principle of open justice, which applies in relation to court proceedings, [17] if the legal practitioner is identified by name in this Court, but at the same time this Court, exercising the powers of the Tribunal, made a non-publication order retrospectively anonymising the legal practitioner's name in the reported decisions of the Tribunal. There should be transparency in relation to the outcome of the disciplinary proceedings in the Tribunal. The proposed order is not desirable to achieve the due administration of justice in those proceedings. 6. In the circumstances, it is not necessary to separately consider whether the ancillary orders sought in orders 4 and 5 are appropriate. Those orders are dependent on the Court making order 6. 7. Given the above reasons for refusing to make proposed orders 4, 5 and 6, it is not appropriate to accede to the parties' alternative submission that this Court remit the matter to the Tribunal with a view to the parties asking the Tribunal to make those orders. Orders 1. I propose the following orders: 1. Appeal allowed as to grounds 1 and 3. 2. Set aside the decisions made by the New South Wales Civil and Administrative Tribunal (the Tribunal) on 3 July 2019 and 20 February 2020 and in their place order that: 1. the disciplinary application made by the respondent on 7 January 2016 be dismissed; and 2. each party pay its own costs of the proceedings in the Tribunal. 1. The respondent pay the appellant's costs of the appeal as agreed or assessed. 1. N ADAMS J: I agree with Gleeson JA. ********** Endnotes 1. Law Society of New South Wales v Konstantinidis [2017] NSWCATOD 105. 2. Konstantinidis v The Council of the Law Society of New South Wales [2018] NSWCA 59. 3. Council of the Law Society of New South Wales v Konstantinidis [2019] NSWCATOD 104. 4. Ibid, [2019] NSWCATOD 104 at [5]. 5. Council of the Law Society of New South Wales v Konstantinidis (No 3) [2020] NSWCATOD 91. 6. [2018] NSWCA 247. 7. Levitt v Council of the Law Society of New South Wales [2017] NSWSC 834 (Wilson J). 8. Council of the Law Society of New South Wales v Levitt [2019] HCATrans 78. 9. Appellant's written submissions filed 13 August 2020. 10. Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [30] (Kiefel CJ, Gageler and Keene JJ); Minister for Immigration and Citizenship v SZMTA (2019) 264 CLR 421 at [2]-[3] (Bell, Gageler and Keene JJ). 11. Civil Procedure Act 2005 (NSW), s 56(3). 12. Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598 at [51]. 13. Clause 29(1)(e) and (4) of Sch 5 to the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). 14. Section 75A(1), Supreme Court Act. 15. Court Suppression Act; Misrachi v The Public Guardian [2019] NSWCA 67 at [13] (Bell P and Emmett AJA). 16. NCAT Act, s 49(1). 17. John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344; [2004] NSWCA 324 at [18], [21], [99] (Spigelman CJ); John Fairfax & Sons v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 476-477 (McHugh JA, Glass JA agreeing), and 472 (Mahoney JA); DRJ v Commissioner of Victims' Rights [2020] NSWCA 136 at [24]-[25] (Leeming JA, Bell P and Meagher JA agreeing). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 September 2020