Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Council of the Law Society of New South Wales v DRM [2021] NSWCATOD 105 Hearing dates: On the papers Date of orders: 30 July 2021 Decision date: 30 July 2021 Jurisdiction: Occupational Division Before: The Hon J Boland AM, Deputy President Decision: (1) Pursuant to s 147(2) of the Legal Profession Uniform Law Application Act 2014 (NSW) leave is granted to the applicant to withdraw the Application for Disciplinary Findings and Orders filed 10 February 2020. (2) Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) the name of the respondent is to be anonymised in any published decision. (3) Pursuant to s 64(1)(c) and (d) of the Civil and Administrative Tribunal Act an order is made restricting publication of the evidence of witnesses and other material which may identify the respondent. (4) Notwithstanding Orders 2 and 3: (a) the applicant, the Law Society of New South Wales, and any of their officers or employees, may provide a copy of the orders made and any documents and evidence filed in these proceedings, the reasons for decision, and related information to the following, in connection with the applicant's exercise of its functions under the Legal Profession Uniform Law (NSW), the Legal Profession Uniform Law Application Act 2014 (NSW) (together, the Legal Profession legislation) and the regulations and rules made under those Acts, as in force from time to time: (i) a designated tribunal as defined in the Legal Profession legislation or its equivalent under a corresponding law; (ii) the designated local roll authority as defined in the Legal Profession legislation or its equivalent under a corresponding law; (iii) the Legal Services Council and any member, committee or delegate of the Council; (iv) the Commissioner for Uniform Legal Services Regulation and any delegate of the Commissioner; (v) a local regulatory authority within the meaning of the Legal Profession legislation or its equivalent under a corresponding law, and any member, committee or delegate of any such authority; (vi) a member of staff of, or person acting at the direction of, any of the persons or entities referred to in (i)-(v); (vii) any Australian or foreign authorities or courts as referred to in ss 436 and 437 of the Legal Profession Uniform Law (NSW); (viii) any Australian government authorities, professional associations or educational bodies as referred to in s 441 of the Legal Profession Uniform Law (NSW); and (ix) any person, body or entity to the extent that disclosure is permitted by s 462(2) and (3) of the Legal Profession Uniform Law (NSW); (b) the applicant, the Law Society of New South Wales, the Legal Services Commissioner, and any of their officers or employees, may disclose to any person or entity, as they consider appropriate: (i) the terms of the undertaking given by the respondent to the applicant and the President of the Law Society of New South Wales, dated 22 February 2021; and (ii) that the applicant sought leave to withdraw these proceedings because of the undertaking provided. Catchwords: OCCUPATIONS — legal practitioners — misconduct and discipline — disciplinary proceedings — application for withdrawal of proceedings — whether in public interest for proceedings to be withdrawn Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Legal Profession Act 2004 (NSW) (repealed) Legal Profession Uniform Law Application Act 2014 (NSW) Legal Profession Uniform Law (NSW) Cases Cited: Council of the Law Society of New South Wales v DWO [2020] NSWCATOD 123 Council of the Law Society of New South Wales v Konstantinidis (No 4) [2021] NSWCATOD 94 Council of the Law Society of NSW v DXW [2019] NSWCATOD 101 Council of the NSW Bar Association v Thorpe [2020] NSWCATOD 133 Health Care Complaints Commission v Grygiel (Termination Application) [2020] NSWCATOD 53 Health Care Complaints Commission v XC [2015] NSWCATOD 9 Kirby v Health Care Complaints Commission [2021] NSWCA 139 Texts Cited: American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th ed, 2013, American Psychiatric Association Publishing) Category: Procedural rulings Parties: Council of the Law Society of New South Wales (Applicant) DRM (Respondent) Representation: Counsel: P A Maddigan (Applicant) Solicitors: Law Society of New South Wales (Applicant) Respondent (self-represented) File Number(s): 2020/00043345 Publication restriction: On 30 July 2021 non publication orders were made pursuant to s 64(1)(a), (c) and (d) of the Civil and Administrative Tribunal Act 2013 (NSW). REASONS FOR DECISION Introduction 1. On 1 February 2020 the Council of the Law Society of New South Wales (the Law Society) commenced disciplinary proceedings in the Tribunal against [redacted] (the practitioner). These proceedings were to "re-commence" proceedings commenced in 2019 but affected by the error identified in Council of the Law Society of NSW v DXW [2019] NSWCATOD 101. The proceedings were brought under the Legal Profession Uniform Law (NSW) (the Uniform Law). 2. On 26 February 2021 the Law Society caused an email to be sent to the Registrar, Occupational Division of the Tribunal. The email noted that the Law Society proposed to apply to the Tribunal for leave to withdraw the proceedings, and sought orders by consent including orders for the filing of any withdrawal application and submissions in support of the application. On 2 March 2021 Cole J made the orders sought, adding to Order 11: "This order is made at the request of the parties". 3. The Law Society's email also noted that the practitioner sought anonymisation/non-publication orders which would be addressed separately by the practitioner. 4. On 26 March 2021 the Law Society filed a General application form seeking orders under s 147(2) of the Legal Profession Uniform Law Application Act 2014 (NSW) (the Application Act) to withdraw the Application for Disciplinary Findings and Orders filed 10 February 2020. The application also sought that there be no order as to costs. In support of the application the Law Society relies on the affidavit of Anthony James Lean, Director, Legal Regulation of the Law Society. 5. On 27 April 2021 the practitioner filed a Reply to the Law Society's General application. The practitioner consents to orders sought by the Law Society and additionally seeks orders prohibiting the publication of these reasons, restricting publication of the evidence in the matter and, in the alternate, an order that his name be anonymised as "DRM". The practitioner relies on his affidavit sworn on 21 April 2021 in support of the orders sought. The issues 1. The principal issue to be determined in this application is whether or not it is in the public interest for the disciplinary proceedings to be withdrawn. An ancillary issue is whether: 1. the publication of these reasons should be restricted or whether the principles of open justice should prevail; and/or 2. the practitioner's name should be anonymised. Background 1. The practitioner practised for over 30 years [redacted]. 2. The practitioner attained specialist accreditation in areas in which he practised. He was involved in community activities including [redacted]. 3. In 2014 the practitioner was admitted to a psychiatric clinic for treatment for severe mental health issues. He continues to suffer major depressive illness and is under the care of a psychiatrist. 4. [Redacted] 5. On 29 June 2017 the practitioner's practising certificate was suspended and an administrator was appointed to his practice. The practitioner says that on 30 June 2017 his office closed. The practitioner has not held a practising certificate since 2017. 6. In March 2018 the practitioner was again admitted to the psychiatric hospital. After treatment he was discharged on 6 April 2018. 7. [Redacted]. On [redacted] the practitioner was made bankrupt and a trustee of his estate was appointed. 8. On 12 June 2019 the Law Society commenced proceedings against the practitioner in the Tribunal. The Law Society alleged the practitioner had: 1. taken costs and disbursements without first issuing a tax invoice; 2. delayed in providing a tax invoice to the client; and 3. [redacted] 1. After the proceedings were dismissed for jurisdictional error, on 10 February 2020 the Law Society re-commenced the proceedings in the Tribunal. 2. The practitioner and the Law Society engaged in an exchange of correspondence throughout 2020, including provision by the practitioner of reports from his treating psychiatrist. 3. On 6 October 2020 the practitioner filed an application in the Tribunal to stay the proceedings. The application was supported by a report from the practitioner's treating psychiatrist. 4. On 19 January 2021, at the request of the Law Society, the practitioner attended an appointment with the Law Society's appointed expert psychiatrist, Dr A Samuels. Dr Samuels provided a report, relied on by the Law Society in this application, on 1 February 2021. 5. On 18 February 2021 the Law Society resolved if the practitioner provided an undertaking that he would not apply to be entitled to practise as either a solicitor or barrister anywhere in Australia, or undertake employment in any capacity in a legal practice, give legal advice to any person or hold himself out as having legal qualifications, that it would seek the Tribunal's leave to withdraw the proceedings under s 147(2) of the Application Act. 6. On 22 February 2021 the solicitor provided a signed copy of the undertaking sought to the Law Society. Relevant statutory provision and authorities on withdrawal 1. The Law Society brings this application pursuant to s 147(2) of the Application Act. That section provides as follows: 147 Early termination of proceedings before Tribunal (1) Proceedings before the Tribunal with respect to a complaint cannot be terminated, whether by withdrawal of the disciplinary application or otherwise, before the Tribunal makes its final decision about the complaint, without the leave of the Tribunal. (2) The Tribunal may give leave for the purposes of this section if it is satisfied that continuation of the proceedings is not warranted in the public interest. 1. This application was listed before me for determination. Schedule 5, Part 4, Division 4 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) sets out the constitution requirements of the Tribunal determining matters under the Uniform Law as follows: 18 Division functions under Legal Profession Uniform Law (NSW) (1) The Tribunal, when conducting a hearing into a complaint for the purposes of the Legal Profession Uniform Law (NSW), must be constituted with Division members in accordance with whichever of the following constitutions the President determines as being appropriate for the particular case— (a) in the case of a complaint against a barrister— (i) one member with a judicial qualification, one member with a professional qualification who is a barrister and one general member, or (ii) 2 members with a professional qualification who are barristers and one general member, (b) in the case of a complaint against a solicitor— (i) one member with a judicial qualification, one member with a professional qualification who is a solicitor and one general member, or (ii) 2 members with a professional qualification who are solicitors and one general member, (c) in the case of a complaint against a respondent lawyer who is neither a barrister nor a solicitor—any constitution specified in paragraph (a) or (b). (2) The Tribunal, when exercising any other of its Division functions for the purposes of the Legal Profession Uniform Law (NSW) (including making ancillary or interlocutory decisions of the Tribunal), is to be constituted by any one or more of the following Division members— (a) a member with a judicial qualification, (b) a member with a professional qualification. 1. Section 135 of the Application Act, which is found in Division 11 of Part 9, provides as follows: 135 Purpose of this Part and definitions (1) The purpose of this Part is to provide for the procedures of the designated tribunal as contemplated by section 301 of the Legal Profession Uniform Law (NSW). Some procedures are covered by the Civil and Administrative Tribunal Act 2013. (2) In this Part— disciplinary application means an application made to the Tribunal (as designated tribunal) under section 300 of the Legal Profession Uniform Law (NSW) with respect to a respondent lawyer. Tribunal means NCAT. (3) A reference in this Part to the NSW Commissioner (as designated local regulatory authority) in a particular context includes, where relevant in that context, a reference to a delegate of the NSW Commissioner. 1. Section 301 of the Uniform Law is found in Division 2 of Part 5.4 and provides as follows: 301 Procedure of designated tribunal (1) Proceedings initiated under this Chapter in the designated tribunal are to be dealt with in accordance with the procedures of the designated tribunal. (2) Subject to any procedural requirements, the designated tribunal may determine proceedings without conducting a formal hearing, but is bound by the rules of procedural fairness. (3) It is intended that jurisdictional legislation may determine whether the designated tribunal is bound by the rules of evidence in conducting a hearing in relation to an allegation of professional misconduct, but the designated tribunal is otherwise not bound by those rules in relation to matters arising under this Chapter. 1. Division 6 of Part 2 of the NCAT Act deals with the "Constitution of the Tribunal". Section 27(1)(d) and the notes to the section are relevant to this application and provide as follows: 27 Constitution of Tribunal (1) The Tribunal is to be constituted as follows— … (d) in the case of any other proceedings—by one or more Division members of the Division to which the function of dealing with the proceedings is allocated. Note— … A Division Schedule for a Division may, in some cases, make special provision for the constitution of the Tribunal when exercising functions allocated to that Division (including the qualifications of members to sit in specified kinds of proceedings). It may also provide for certain Division functions to be exercised by a registrar and for the constitution of Appeal Panels in internal appeals against decisions made in the Division. The procedural rules may also authorise a registrar to make ancillary or interlocutory decisions of the Tribunal on behalf of the Tribunal. See section 23(6). 1. The Application Act is not specifically referred to in Division 4 of Schedule 5 to the NCAT Act. Notwithstanding the Uniform Law is a schedule to the Application Act it is not an Act listed in Part 3, cl 4(1). 2. It may be argued that s 135 of the Application Act provides a link to s 301 of the Uniform Law, by the use of the words "the purpose of this Part". If that is the case, cl 18(2) of Sch 5 to the NCAT Act enables a matter under s 147(2) of the Application Act to be determined by a member with a judicial qualification (or one or more members having a judicial qualification and a professional qualification). 3. However, both provisions (s 135 of the Application Act and s 301 of the Uniform Law) deal with the procedures of the Tribunal, not its constitution. I consider the constitution provisions set out in Division 6 of Part 2 of the NCAT Act (s 27(2)) are applicable to this application. Thus, as a member with a judicial qualification appointed by the President, I am empowered to determine this application which involves the making of an interlocutory order as a single member. I pause to note that any ambiguity in the composition of the Tribunal for the purposes of the Application Act (particularly the review power set out in Part 10) may require amendment of Division 4 of Schedule 5 to the NCAT Act to put the matter beyond doubt. 4. However, I note I did not have the benefit of any submissions on the appropriate constitution of the Tribunal to hear this application. If I am wrong in my conclusion about the wording of s 135 of the Application Act and s 301 of the Uniform Law, and have inappropriately given a narrow or restrictive interpretation to the words "procedure" (see Kirby v Health Care Complaints Commission [2021] NSWCA 139), that does not detract from my conclusion that I may hear this matter as a single member having a judicial qualification. 5. Mr P A Maddigan (Mr Maddigan) of counsel prepared submissions relied on by the Law Society. In those submissions Mr Maddigan referred to the very few decisions made under s 147 of the Application Act where a regulatory body has sought termination of disciplinary proceedings against a lawyer (Council of the Law Society of New South Wales v DWO [2020] NSWCATOD 123; Council of the NSW Bar Association v Thorpe [2020] NSWCATOD 133). The submissions helpfully referred to decisions of the Administrative Decisions Tribunal (repealed) and this Tribunal determined under s 568 of the Legal Profession Act 2004 (NSW) (repealed). I note that s 568 was in identical terms to s 147(2). 6. In DWO the Tribunal discussed the purpose of disciplinary proceedings at [36]-[37] as follows: [36] The utility of the continuation of the proceedings is relevant to the question of whether the continuation of the proceedings is in the public interest (see Council of the New South Wales Bar Association v DBW [2017] NSWCATOD 71 at [36]-[41]) [37] Disciplinary proceedings in relation to a legal practitioner are pursued for a number of purposes, including the protection of the public from misconduct by the legal practitioner in question and from the misconduct of other legal practitioners who might conduct themselves in a similar way. Such proceedings also seek to set, clarify and maintain the appropriate standard of conduct for legal practitioners and to denounce, publically, misconduct, and, in doing so, maintain public confidence in the legal profession." 1. The Tribunal in DWO concluded that continuation of the proceedings would not achieve the objectives referred to in [37]. 2. The question of what constitutes "public interest" is discussed in Health Care Complaints Commission v Grygiel (Termination Application) [2020] NSWCATOD 53 at [145]-[151]. Although the authorities are discussed in the context of termination of disciplinary proceedings involving a medical practitioner, the public interest considerations are broadly analogous to the legal profession and this application. Those interests involve the need for the maintenance of high standards in the respective professions, the need for integrity in such practitioners because of the trust placed in them, and deterrence to other practitioners from engaging in like conduct. In Health Care Complaints Commission v Grygiel the relevant principles from a number of authorities are set out as follows at [145]-[151]: [145] In Hogan v Hinch [2011] HCA 4 the High Court discussed the words "public interest" in the context of s 42 of the Serious Sex Offenders Monitoring Act 2005 (Vic) in circumstances where it was asserted a journalist had breached a suppression order made by a trial Judge. French CJ explained: "Section 42 requires that the court, before making an order under that section, be satisfied that "it is in the public interest to do so". The term "public interest" and its analogues have long informed judicial discretions and evaluative judgments at common law. Examples include the enforceability of covenants in restraint of trade[67], claims for the exclusion of evidence on grounds of public interest immunity[68], governmental claims for confidentiality at equity[69], the release from the implied obligation relating to the use of documents obtained in the course of proceedings[70], and in the application of the law of contempt[71]. When used in a statute, the term derives its content from "the subject matter and the scope and purpose" of the enactment in which it appears[72]. The court is not free to apply idiosyncratic notions of public interest. In exercising its powers under s 42, the court must assess public interest by reference to the place of the section in the statutory scheme, the purpose of the Act as a whole and the purposes of extended supervision orders. In determining whether to make a suppression order with respect to identification of an offender, the court must consider the extent, if any, to which the order would enhance the protection of the community. It must also consider its effect upon the offender's prospects of rehabilitation. Rehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection and is clearly in the public interest. A court considering such an order must also look to the larger constitutional and legal context which informs the interpretation of the statute, having regard to the effect of the order upon the open justice principle, on common law freedom of speech, and on the human rights guaranteed by the Charter. The application of a public interest criterion may require a balancing of competing interests and "be very much a question of fact and degree."[73] [footnotes omitted]" [146] In the earlier case of O'Sullivan v Farrer (1989) 168 CLR 210 the High Court explained, when dealing with the words in the context of the granting of a liquor licencing statute, as follows: "Indeed, the expression 'in the public interest', when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only 'in so far as the subject matter and the scope and purpose of the statutory enactments may enable ... given reasons to be (pronounced) definitely extraneous to any objects the Indeed, the expression 'in the public interest', when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only 'in so far as the subject matter and the scope and purpose of the statutory enactments may enable ... legislature could have had in view': Water Conservation and Irrigation Commission, per Dixon J. at p 505." [147] In McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423 at [55] the High Court observed: "It may readily be accepted that most questions about what is in 'the public interest' will require consideration of a number of competing arguments about, or features or 'facets' of, the public interest. As was pointed out in O'Sullivan v Farrer. …" [148] These principles were relied on in Duncan v Independent Commission Against Corruption [2016] NSWCA 143 at [226]. [150] In Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91] Basten JA explained: "The purpose of any order made upon a finding that a complaint has been proved, is said to be protective of the interests of the public at large, but more particularly patients or potential patients of the practitioner concerned. However, the public interests include, indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards of medical practitioners. There is also an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so." [150] Also relevant to this matter is the decision of the Tribunal in Hill v Medical Council of NSW [2019] NSWCATOD 97. In this matter the Tribunal heard appeals under s 159 and s 159B of the National Law (against a decision of the Medical Council of NSW (the Council) suspending a doctor's registration). The Tribunal adopted the submissions made by the Council about the words "public interest" in the context of s 150. The Council's submissions on the topic of public interest were recorded by the Tribunal as follows: "The Council argued that consideration of the public interest must involve consideration of matters which impact upon the honour and integrity of the medical profession generally. No actual harm needs to be demonstrated. The following passage from Crickitt v Medical Council of NSW (No 2) [2015] NSWCATOD 115 at paragraph 56 was cited: 'A consideration of the public interest will always include the need for patients to have confidence in the competence of medical practitioners and that medical practitioners will exhibit traits consistent with the honourable practice of an honourable profession. Integrity, trustworthiness and high moral and ethical values are an integral part of the practice of medicine, as is compliance with regulatory requirements and codes of practice established by those responsible for the administration of the medical profession. The public must have confidence that medical practitioners who treat them exhibit these traits.' It was submitted that the scope and purpose of the legislation was the only confining factor in the interpretation of 'the public interest'. Our attention was drawn to Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657, where Wilcox CJ and Keely J said, at p 681: 'The purpose of the reference to 'public interest' is to ensure that private interests are not the only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner's consideration. The effect of the reference is to amplify the 'scope and purpose' of the legislation.' In Director of Public Prosecutions v Smith (1991) 1 VR 63, the Court said: 'The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well-being of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals.' [151] I note that the adoption by the Tribunal in Hill v Medical Council of NSW of the authorities relied by the Council on the topic of public interest was in the context of proceedings under s 150 of the National Law. Although it may be argued that public interest connotations have a different focus given the nature of proceedings under s 150 to the instant proceedings, nevertheless I find those authorities emphasise a number of matters relevant to the scope and purpose of the legislation by which I must determine this application. Those factors include the high moral and ethical obligations on practitioners, the need to comply with regulations, and the confidence of the public in those who treat them. I find the remarks of Basten JA in Prakash v Health Care Complaints Commission very relevant to this application. 1. Thus, in considering in the context of this application whether it is in the public interest for the application to be withdrawn I have taken into account not just the private circumstances affecting the practitioner but broader matters of public interest including the reputation of the profession, community expectations and the deterrent effect of disciplinary proceedings to minimise like conduct by other practitioners. Evidence in support of the application 1. As earlier noted, the Law Society relies on the affidavit of Anthony James Lean. It is unnecessary I repeat the history of the proceedings as chronicled in the affidavit. Of relevance are the medical reports annexed to the affidavit. These reports include reports of the practitioner's treating psychiatrist dated 31 May 2017, 1 May 2020, 20 November 2020 and 21 April 2021. The last report supports the practitioner's application for a non-publication order. 2. The Law Society's expert, Dr Samuels' report dated 19 January 2021 is of significant relevance to the present application. 3. The practitioner's psychiatrist's initial report reveals that the practitioner first came under his care when admitted to a psychiatric clinic on 7 July 2014. The practitioner remained an in-patient at the clinic until 6 August 2014. The psychiatrist explained that "[the practitioner's] admission was due to the occurrence of a severe Major Depressive Disorder and comorbid Alcohol Dependence". The report goes on to note that the practitioner was "detoxified from alcohol in hospital and has remained sober since". However, the psychiatrist explained that the practitioner's Depressive Disorder "required aggressive treatment and has not fallen into complete remission". 4. The psychiatrist opined that "[redacted]". In commenting on the symptoms the practitioner has experienced during the periods of his mental illness the psychiatrist noted: "[the practitioner] has experienced a severely depressed mood in a pervasive and sustained manner, usually worse in the morning. His thinking has been markedly depressive with themes of hopelessness, pessimism, and suicide. His thinking has never reached delusional intensity. His vegetative functioning has been disturbed with abnormalities of sleep, weight, energy and concentration" 1. In his report of 1 May 2020 the psychiatrist noted that he had continued to be consulted by the practitioner for several years. After explaining that the practitioner's mental health had been impacted by [redacted] the psychiatrist opined: "Regrettably, his depressive disorder and PTSD has shown a very limited response to treatment and this has been worsened substantially by the allegations of professional misconduct against him". 2. The psychiatrist reported: "[the practitioner] is severely depressed and anxious, traumatised and fragile and is on multiple courses of antidepressants, repeated hospitalisations including brain stimulation treatments. I respectfully advise that he remains severely unwell". 1. In his report dated 20 November 2020 the psychiatrist referred to a reformulation of the practitioner's diagnosis to include Post Traumatic Stress Disorder. 2. The psychiatrist opined: "[the practitioner's] condition has deteriorated substantially in the setting of the Law Society pursuing a claim of misconduct against him. As one can imagine, with any PTSD case, re-exposure to events that remind the patient of the original trauma reactivates trauma symptoms in a profound way. This is patently evident in [the practitioner's] response to the Law Society's allegations. Involvement in defending himself against the process is a highly charged matter emotionally and he struggles, as a result of his chronic illness, to manifest the resilience and capacity necessary in order to defend himself or indeed to instruct others to defend him in this setting". 1. As noted above, the practitioner was assessed by Dr Samuels whose report is relied on in support of this application by the Law Society. 2. Dr Samuels prepared a detailed report setting out the background material provided by the Law Society. He then set out a summary of correspondence and investigations conducted by the Law Society. He further recorded the practitioner's history of relevant matters as provided to him by the practitioner. 3. Significantly, for the purpose of this application, he responded to a question posed by the Law Society about the practitioner's capacity to represent himself or give instructions to a legal representative to do so on his behalf. 4. At par 103 of his report Dr Samuels opines: "In my view, [the practitioner] is currently not fit to participate in the Disciplinary Proceedings by representing himself either now or in the future. He does have a severe depressive illness but not at the level of severity that he would not be able to instruct a solicitor to act for him but he indicates that he does not have the money to arrange this." 1. Dr Samuels goes on to explain at par 104 of his report that "[p]articipating in the NCAT process is likely to increase his level of depression and anxiety but delaying the process will also further exacerbate the situation". 2. At par 107 of his report Dr Samuels explains that, in his opinion, the practitioner is suffering from a Persistent Depressive Disorder with features of chronic major depression. He records although the practitioner reports at times he has felt suicidal, that he currently denies suicidality. However, the practitioner had referred to a solicitor who killed himself under similar circumstances. 3. Dr Samuels regards the practitioner's symptoms as moderately severe and he certainly would not regard him being in remission. He did not however conclude that the practitioner meets all the diagnostic criteria in the DSM-5 (Diagnostic and Statistical Manual of Mental Disorders, 5th ed) for Post-Traumatic Stress Disorder (PTSD). 4. Dr Samuels does refer to other treatments which could be explored to treat the practitioner's conditions but his opinion was necessarily guarded that such other modalities would be effective and, in any event, he opined that, even if beneficial, it would be likely to be 12 months before the practitioner could participate in disciplinary proceedings. 5. Although Dr Samuels did not concur with the treating psychiatrist's amended diagnosis which included PTSD, he did agree with the psychiatrist that the practitioner has a severe depressive illness and that "participating in disciplinary proceedings will have a negative effect on his mental state, and as a consequence of his depressive condition I do not think [the practitioner] has the cognitive capacity to adequately represent himself". 6. Dr Samuels concludes his report noting that the practitioner's diagnosis is guarded and that even if he undertook other more assertive treatments he was not confident that within the 12-month time frame he would be fit to represent himself in disciplinary proceedings. 7. Dr Samuel's concludes his report at par 119 as follows: "Going through the hearing even if he is represented will be very difficult for him and is likely to worsen his mood state, however further delays in the process and continuing uncertainty will also be detrimental for him". The practitioner's evidence 1. The practitioner relies on his affidavit sworn on 21 April 2021. In his affidavit the practitioner refers to his Reply to ground 4 of the complaint. In the Reply to the substantive proceedings the practitioner relates to his exhaustion [redacted] in 2009. 2. The practitioner says that he was not well and in 2014 he was admitted as an involuntary patient to a psychiatric clinic. He states that throughout 2014 and 2015 [redacted] although he was not well. 3. The practitioner relates that he suffered further stress in 2016 when [redacted]. 4. [Redacted]. He states that after proceedings were commenced in the Tribunal that his practising certificate was suspended "on the grounds of mental illness". [redacted] 5. The practitioner makes a number of assertions about the Law Society's conduct of the proceedings, including principally the Law Society's asserted failure to assist solicitors suffering mental health issues. He denies that he is guilty of professional misconduct. He explains: "[redacted]" 1. In his affidavit in support of these proceedings the practitioner refers to originally being represented by Mr [redacted] on a pro bono basis, but that Mr [redacted] was unable, by reason of volume of work, to continue to appear for the practitioner when the proceedings were re-commenced. 2. The practitioner deposes to being unable to obtain alternate representation and that he has endeavoured "to represent myself as best I can". 3. The practitioner also deposes: 1. that he has been unable to earn income from June 2017 when his practising certificate was suspended and that he is not qualified to follow any other trade or profession; 2. [redacted]; 3. that he became a bankrupt in [redacted]; 4. [redacted]; 5. [redacted]; 6. that his mental health has been severely and negatively affected by the proceedings; and 7. that he is a burden on his family "were [sic] once I was the protector and provider". 1. 56 The practitioner's affidavit focusses on his criticisms of the Law Society's conduct of these proceedings. It is unnecessary that I address those criticisms. It is clear that the practitioner's mental health diagnoses colours his perception of aspects of the proceedings. However, of relevance to the non-publication order sought is the following statement of the practitioner: "Even though I will not be able to practice my chosen and only profession ever again, I can't take any more. I am hanging on by a thread and I fear the airing of confidential medical material concerning me and the evidence submitted to the Tribunal may break that thread. The publication of this material will further detrimentally affect my health and hinder my hopes of recuperation from this horrible illness." 1. The balance of the affidavit summarises roles undertaken by the practitioner during his professional career, aspects of which I have set out above. 2. The practitioner annexes to his affidavit references from a number of referees including two members of the bar, a local general practitioner, and a local solicitor. 3. In considering the present application I have not given any significant weight to references dated 2 February 2004, 4 February 2004 and 13 February 2009 as although those references refer to the practitioner's high standing in the community and speak to his work as a solicitor they do not address the current complaint. I accept they do demonstrate the high regard in which he was held at the time the references were provided. 4. I have given weight to and taken into account the references provided by Mr [redacted], a long-standing member of the New South Wales Bar and Mr [redacted], barrister-at-law. 5. Mr [redacted] sets out the history of his interaction with the practitioner who regularly briefed him. Mr [redacted] relates that in 2011 the practitioner related to him that he was experiencing [redacted]. [redacted]. Mr [redacted] states that he saw a change in the practitioner's demeanour in about 2012. 6. In 2014 when the practitioner had been admitted to the psychiatric clinic Mr [redacted] states that he twice visited the practitioner and was shocked at his appearance and state of health. He also refers to visiting the practitioner on his second admission to the clinic in 2018 and explains: "He was in a truly pitiful state in my lay assessment". 7. Mr [redacted] eloquently makes the following submission on the practitioner's behalf: "That the situation of the Respondent has come to such a sad state is, from my point of standpoint, one of the most tragic occurrences I have [ever] encountered in my 50 years of legal practice. The Respondent was a good man, an exemplary family man, a highly acclaimed and respected solicitor – and a very good friend to have. That his circumstances have been reduced largely by him succumbing to mental ill-health (in my lay opinion) is tragic and deeply regrettable." 1. Mr [redacted] submits that the interests of the profession and the community would be best served by the Law Society's application being granted. Consideration ‑ withdrawal of proceedings 1. The disciplinary proceedings which are sought to be withdrawn are brought pursuant to the Uniform Law. As the authorities make clear, in considering "public interest" that phrase must be construed in the context of the statute in which it appears. 2. The objectives of the Uniform Law are set out in s 3. Relevant to this application are the following: 3 Objectives The objectives of this Law are to promote the administration of justice and an efficient and effective Australian legal profession, by— … (b) ensuring lawyers are competent and maintain high ethical and professional standards in the provision of legal services; and (c) enhancing the protection of clients of law practices and the protection of the public generally; and .. (e) promoting regulation of the legal profession that is efficient, effective, targeted and proportionate; and … 1. Further specific objects for matters falling under Chapter 5 of the Uniform Law are found in s 260 as follows: 260 Objectives The objectives of this Chapter are— (a) to provide a framework for the timely and effective resolution of disputes or issues between clients and lawyers or law practices; and (b) to provide a scheme for the discipline of the Australian legal profession, in the interests of the administration of justice and for the protection of clients of law practices and the public generally; and (c) to monitor, promote and enforce the professional standards, competence and honesty of the Australian legal profession. 1. The reasons advanced by the Law Society as to why it is in the public interest for the proceedings to be terminated are set out at par 41 of the Law Society's submissions. Essentially, the Law Society submit four reasons why it says the proceedings should be terminated: 1. that the practitioner's persistent depressive illness renders the practitioner incapable of participating in the proceedings; 2. that the practitioner's illness renders him a significant risk of suicide; 3. the fact that the practitioner has provided an undertaking to the Law Society about future practice so there is no risk to the public; and 4. continuation of the proceedings will not achieve the objectives of disciplinary proceedings. 1. I am satisfied that the medical evidence from both the practitioner's treating psychiatrist and the expert report support the Law Society's submissions that the practitioner is presently unfit to represent himself in disciplinary proceedings. I accept that he has been made bankrupt and has not earned an income from legal practice since 2017. In these circumstances, I accept that even if he could give instructions, he cannot afford legal representation. 2. Of more relevance, however, is the detriment to the practitioner's mental health if he was required to attend proceedings and be cross-examined, even if legally represented. I accept requiring the practitioner to participate in disciplinary proceedings could have severe adverse effects on his mental health. 3. I also find that because the practitioner does not hold a practising certificate and has given an undertaking to the Law Society that he will not practise again, there is no risk to the public from any improper conduct by him. 4. I turn then to the purpose of disciplinary proceedings as set out in the objects of the Uniform Law. One, but not the only purpose of disciplinary proceedings is to act as a deterrent to other practitioners to engage in like conduct. Another purpose is to uphold the high standards of the profession. 5. While the conduct set out in the complaint, in particular [redacted], is a significant and relevant matter, I find that all steps which could be taken to [redacted]. 6. I accept that if the withdrawal application is not granted, then the Tribunal will be required to hear and determine the Stay Application. On the evidence adduced in this application there are significant prospects a stay would be granted. This would result in indefinitely delayed proceedings involving the expenditure of Tribunal resources and costs to the Law Society. 7. I have carefully balanced those matters against factors militating against the disciplinary proceedings continuing. I am satisfied that continuation of the proceedings in all the circumstances would not be just or proportionate. Consequently, I am satisfied in the unique circumstances of this case it is appropriate for the proceedings to be withdrawn. The non-publication order Relevant statutory provision 1. The practitioner seeks orders under s 64 of the NCAT Act. That section provides as follows: 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. (2) The Tribunal cannot make an order under this section that is inconsistent with section 65. (3) The Tribunal may from time to time vary or revoke an order made under subsection (1). (4) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. Evidence in support of the application 1. I have earlier set out the principal matters referred to by the practitioner in support of his application seeking the non-publication order. I note that the practitioner seeks an order prohibiting publication of any report of the proceedings, and an order restricting publication of the evidence in these proceedings. Authorities in respect of non-publication orders 1. The authorities in respect of s 64 in the context of disciplinary proceedings have been considered in a number of decisions of the Tribunal. In Health Care Complaints Commission v XC [2015] NSWCATOD 9, the Tribunal in making a non-publication order relied on expert evidence from the medical practitioner's treating specialist about the risk of her suicide if the Tribunal's reasons were published. That factor overrode the general principle of "open justice" in disciplinary proceedings. 2. The relevant principles to be applied when determining whether it is desirable in a particular circumstance or circumstances to make a non-publication order were discussed by me in the recent decision of Council of the Law Society of New South Wales v Konstantinidis (No 4) [2021] NSWCATOD 94. Such an order will only be made if the circumstances on which a party relies are special or "out of the ordinary". Consideration ‑ non-publication orders 1. In this case the expert psychiatric evidence overwhelmingly supports the practitioner's application for restricting the publication of his name. I am further satisfied that any reference in these reasons to the medical evidence or the practitioner's history which would lead to his identification could also be of great detriment to his mental health. I find this is a special circumstance which makes it desirable to anonymise the practitioner's name. 2. Balancing the need to uphold the principles of open justice while protecting the practitioner's mental health in this case favours the making of substantial redactions in the published version of these reasons so that the practitioner's mental health is not further adversely affected because relevant information, including information about his professional history, could readily identify him. 3. The Law Society seeks orders which permit release of these reasons to named regulatory authorities including the Legal Services Commissioner. It appears to me that the restricted publication sought by the Law Society will not cause harm to the practitioner but will assist the Law Society in fulfilling its statutory role under the Application Act and the Uniform Law. Orders 1. Pursuant to s 147(2) of the Legal Profession Uniform Law Application Act 2014 (NSW) leave is granted to the applicant to withdraw the Application for Disciplinary Findings and Orders filed 10 February 2020. 2. Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) the name of the respondent is to be anonymised in any published decision. 3. Pursuant to s 64(1)(c) and (d) of the Civil and Administrative Tribunal Act an order is made restricting publication of the evidence of witnesses and other material which may identify the respondent. 4. Notwithstanding Orders 2 and 3: 1. the applicant, the Law Society of New South Wales, and any of their officers or employees, may provide a copy of the orders made and any documents and evidence filed in these proceedings, the reasons for decision, and related information to the following, in connection with the applicant's exercise of its functions under the Legal Profession Uniform Law (NSW), the Legal Profession Uniform Law Application Act 2014 (NSW) (together, the Legal Profession legislation) and the regulations and rules made under those Acts, as in force from time to time: 1. a designated tribunal as defined in the Legal Profession legislation or its equivalent under a corresponding law; 2. the designated local roll authority as defined in the Legal Profession legislation or its equivalent under a corresponding law; 3. the Legal Services Council and any member, committee or delegate of the Council; 4. the Commissioner for Uniform Legal Services Regulation and any delegate of the Commissioner; 5. a local regulatory authority within the meaning of the Legal Profession legislation or its equivalent under a corresponding law, and any member, committee or delegate of any such authority; 6. a member of staff of, or person acting at the direction of, any of the persons or entities referred to in (i)-(v); 7. any Australian or foreign authorities or courts as referred to in ss 436 and 437 of the Legal Profession Uniform Law (NSW); 8. any Australian government authorities, professional associations or educational bodies as referred to in s 441 of the Legal Profession Uniform Law (NSW); and 9. any person, body or entity to the extent that disclosure is permitted by s 462(2) and (3) of the Legal Profession Uniform Law (NSW); 1. the applicant, the Law Society of New South Wales, the Legal Services Commissioner, and any of their officers or employees, may disclose to any person or entity, as they consider appropriate: 1. the terms of the undertaking given by the respondent to the applicant and the President of the Law Society of New South Wales, dated 22 February 2021; and 2. that the applicant sought leave to withdraw these proceedings because of the undertaking provided. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 30 July 2021