Council of the Law Society of New South Wales v Judah [2022] NSWCATOD 89

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Council of the Law Society of New South Wales v Judah [2022] NSWCATOD 89 Hearing dates: 30 September 2021, 13 October 2021 and 9 March 2022; further written submissions received 16, 23 and 30 March 2022; 27 May 2022 and 10, 17 June 2022 Date of orders: 11 August 2022 Decision date: 11 August 2022 Jurisdiction: Occupational Division Before: Armstrong J, President J S Currie, Senior Member Prof P Foreman AM, General Member Decision: (1) Mr Albert Judah's application for summary dismissal of the application for disciplinary findings and orders dated 11 May 2020 and lodged with the Tribunal by the Council of the Law Society of New South Wales is dismissed. (2) Mr Albert Judah is reprimanded. (3) Mr Albert Judah is to pay the costs of the Council of the Law Society of New South Wales. (4) Mr Albert Judah's application for costs in relation to his summary dismissal application is dismissed. (5) Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW), publication of evidence given in the proceedings, and documents lodged with the Tribunal, which identifies the person referred to as the Accused in these reasons for decision is prohibited. (6) Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW), publication of evidence given in the proceedings, documents lodged with the Tribunal and/or material contained in those documents, that refers to any medical, psychiatric or personality-related condition associated with Mr Judah is prohibited, except as referred to in these reasons for decision. (7) Order 6 above does not prohibit or otherwise restrict the disclosure of any documents or information: (a) within or between the Council of the Law Society of New South Wales, the Law Society of New South Wales, the New South Wales Legal Services Commissioner or his office, and the New South Wales Bar Association and its Council; (b) in proceedings in any court or tribunal relating to Mr Judah's practice of law. (8) The parties have liberty to apply with respect to Orders 5, 6 and 7 above. Catchwords: OCCUPATIONS – legal practitioners – misconduct and discipline– whether failure to comply with conditions of solicitor's practising certificate – whether reasonable excuse for failure to comply with condition – whether condition impossible to perform – finding of professional misconduct - protective orders – reprimand – costs award in favour of applicant ADMINISTRATIVE LAW – particular administrative bodies – NSW Civil and Administrative Tribunal –– claim of federal jurisdiction – whether Tribunal has authority to decide disciplinary proceedings initiated under Legal Profession Uniform Law (NSW) ADMINISTRATIVE LAW – particular administrative bodies – NSW Civil and Administrative Tribunal –whether Tribunal has jurisdiction to determine validity of practising certificate condition – collateral review Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Evidence Act 1995 (NSW) Health Practitioner Regulation National Law (NSW) Home Building Act 1989 (NSW) Legal Profession Uniform Law (NSW) Legal Profession Uniform Law Application Act 2014 (NSW) Legal Profession Uniform Law General Rules 2015 (NSW) Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 (NSW) Health Practitioner Regulation National Law (Victoria) Act 2009 Commonwealth Constitution Corporations Act 2001 (Cth) Disability Discrimination Act 1992 (Cth) Cases Cited: Albarran v Members of the Companies Auditors and Liquidators Disciplinary Board (2007) 231 CLR 350; [2007] HCA 23 Alexander v Minister for Home Affairs [2022] HCA 19 Attorney-General (Cth) v Breckler (1999) 197 CLR 83 Attorney General v Gatsby (2018) 99 NSWLR 1; [2018] NSWCA 254 Australian Press Council Inc v Southey [2022] NSWCATAP 127 Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation Ltd (1987) 18 FCR 212 Buckley v Council of the Law Society of New South Wales [2022] NSWSC 328 Burns v Corbett (2018) 265 CLR 304; [2018] HCA 15 Bale v Mills (2011) 81 NSWLR 498; [2011] NSWCA 226 Carr v Council of the Law Society of New South Wales [2020] NSWCA 276 Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16 Council of the New South Wales Bar Association v EFA (a pseudonym) (2021) 106 NSWLR 383; [2021] NSWCA 339 Council of the Law Society of New South Wales v Cummins [2018] NSWCATOD 185 Council of the Law Society of New South Wales v Diaz [2021] NSWCATOD 9 Council of the Law Society of New South Wales v DWO [2020] NSWCATOD 123 Council of the Law Society of NSW v DXW [2019] NSWCATOD 101 Council of the Law Society of NSW v Fisher [2021] NSWCATOD 73 Council of the Law Society of New South Wales v Gallego [2014] NSWCATOD 102 Council of the Law Society of New South Wales v Judah [2019] NSWCATOD 135 Council of the Law Society of New South Wales v Parente [2019] NSWCA 33 Council of the Law Society of New South Wales v Walsh [1997] NSWCA 185 Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57 Director of Housing v Sudi (2011) 33 VR 559; [2011] VSCA 266 Dydlam Developments Pty Ltd v The Owners – Strata Plan 85305 (2020) 104 NSWLR 19; [2020] NSWCA 327 Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318 Ex parte Macaulay (1930) 30 SR (NSW) 193 Felton v Mulligan (1971) 124 CLR 367 Frugtniet v Attorney-General (NSW) (1997) 41 NSWLR 588 Gaynor v Attorney General of New South Wales (2020) 102 NSWLR 123; [2020] NSWCA 48 Gautam v Health Care Complaints Commission [2021] NSWCA 85 Greyling v Nursing and Midwifery Board of Australia [2014] NSWCATOD 52 GS v MS [2019] WASC 255 Health Care Complaints Commission v Murray [2018] NSWCATOD Jacobs v OneSteel Manufacturing Pty Ltd (2006) 93 SASR 568 John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131 Kelly v Jowett (2009) 76 NSWLR 405; [2009] NSWCA 278 Legal Services Commissioner v Michael Vincent Baker [2005] LPT 2 M1-202 v Minister for Home Affairs [2022] HCA 17 McArdle v Legal Services Board (Legal Practice) [2021] VCAT 743 Medical Board of Australia v Kemp (2018) 56 VR 51; [2018] VSCA 168 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 NT Power Generation Pty Ltd v Power and Water Authority (2004) 219 CLR 90 Ousley v The Queen (1997) 192 CLR 69; [1997] HCA 49 Papadimitropoulos v The Queen (1957) 98 CLR 249; [1957] HCA 74 Precision Data Holdings Ltd v Wills (1992) 173 CLR 167; [1991] HCA 58 Tangsilsat v Council of the Law Society of New South Wales [2019] NSWCA 144 Wilson v Chan & Naylor Parramatta Pty Ltd (2020) 383 NSWLR 140; [2020] NSWCA 213 Texts Cited: Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability, 6th ed, 2017 United Nations Convention on the Rights of Persons with Disabilities Category: Principal judgment Parties: Council of the Law Society of New South Wales (Applicant) Albert Judah (Respondent) Representation: Counsel: G Johnson (Applicant)