Hagan v Council of the Law Society of New South Wales [2022] NSWCATOD 76

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Hagan v Council of the Law Society of New South Wales [2022] NSWCATOD 76 Hearing dates: 28 March 2022 Date of orders: 7 July 2022 Decision date: 07 July 2022 Jurisdiction: Occupational Division Before: Armstrong J, President A Suthers, Principal Member P Foreman, General Member Decision: (1) The decision of the Council of the Law Society of New South Wales dated 25 June 2021 is varied as follows: (a) Anthony Mark Hagan has engaged in unsatisfactory professional conduct in respect of the conduct described in these reasons for decision as "the Correspondence Conduct" only. (b) Anthony Mark Hagan is cautioned pursuant to s 299(1)(a) of the Legal Profession Uniform Law (NSW); and (c) Anthony Mark Hagan is required to provide a written apology to the complainant in a form that is approved by the Director, Legal Regulation, Council of the Law Society of New South Wales, within 21 days of the date of these orders, pursuant to s 299 (1)(c) of the Legal Profession Uniform Law (NSW). In the event that the parties cannot agree upon the terms of that apology, the parties have liberty to apply. (2) Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW), publication of evidence given in the proceeding and documents lodged with the Tribunal which identify the executrix, the complainant, her siblings or her deceased father (the testator) is prohibited. Catchwords: OCCUPATIONS – legal practitioners – unsatisfactory professional conduct - protective orders – caution – apology to complainant required ADMINISTRATIVE LAW – particular administrative bodies – NSW Civil and Administrative Tribunal - administrative review of decision of local regulatory authority under s 299 of the Legal Profession Uniform Law (NSW) – effect of client legal privilege or duty of confidentiality on legal practitioner's case – effect of s 211 of the Life Insurance Act 1995 (Cth) Legislation Cited: Administrative Decisions Review Act 1997 (NSW) s 63, 66 Civil and Administrative Tribunal Act 2013 (NSW) s 36, 38, 60 Legal Profession Uniform Law Application Act 2014 (NSW) s 126 Legal Profession Uniform Law (NSW) s 34, 138, 299, 301, 314, 321, 371, 466 Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 (NSW) s 4, 8, 9 Probate and Administration Act 1898 (NSW) s 44, 61, 92 Life Insurance Act 1995 (Cth) s 211 Cases Cited: Byers v Overton Investments Pty Limited (2001) 186 ALR 280; [2001] FCA 760 Carolyn Deigan as executrix for the estate of the late James Boyd Lockrey v Barnard James Fussell [2019] NSWCA 299 Council of the New South Wales Bar Association v EFA (a pseudonym) (2021) 106 NSWLR 838; [2021] NSWCA 339 Council of the Law Society of NSW v Butt [2012] NSWADT 47 Council of the Law Society of New South Wales v Diaz [2021] NSWCATOD 9 Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543; [2002] HCA 49 Donaghy v The Council of the Law Society of New South Wales [2013] NSWCA 154 Drake v Minister of Immigration and Ethnic Affairs (1979) 2 ALD 60 ; [1979] FCA 39 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; [2003] HCA 26 Garde Wilson v Legal Services Board [2007] VCAT 1406 Hall v Council of the Law Society of New South Wales [2020] NSWCATOD 96 In the matter of Spero Pitsikas (No 1) (1995) 1 LPDR 5 Kerin v Legal Practitioners Complaints Committee (1996) 67 SASR 149; [1996] SASC 5650 Law Society of New South Wales v Maharaj [2017] NSWCATOD 79 Legal Services Commissioner v Shulsinger [2010] VCAT 965 Legal Services Commissioner v Livers [2017] NSWCATOD 117 Lucatonio v Kleinert [2009] NSWSC 853 McDonald v Director-General of Social Security (1984) 1 FCR 354; [1984] FCA 57 Medcalf v Mardell [2002] UKHL 27; [2003] 1 AC 120 New South Wales Bar Association v Evatt (1968) 117 CLR 177; 1968 HCA 20 Re Stanhill Consolidated Ltd [1967] VR 749 Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31 Smith v New South Wales Bar Association (1992) 176 CLR 256 Spalding v Radio Canberra Pty Ltd (2009) 166 ACTR 14; [2009] ACTSC 26 Youssef v NSW Legal Services Commissioner [2020] NSWCATOD 85 Youssef v NSW Legal Services Commissioner (Costs) [2020] NSWCATOD 115 Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 270; [1957] HCA 46 Texts Cited: None cited Category: Principal judgment Parties: Anthony Mark Hagan (Applicant) Council of the Law Society of New South Wales (Respondent) Representation: Counsel: A McGrath (Respondent)