SEDGWICK v LAW SOCIETY OF NEW SOUTH WALES [1993] NSWCA 245

SEDGWICK v LAW SOCIETY OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P 30 March 1993, 13 April 1993

[1993] NSWCA 245

LEGAL PRACTITIONERS — discipline — solicitor — name ordered to be removed from Roll — appeal to Supreme Court — stay of proceedings granted pending appeal — appeal by way of "new hearing" under s164(4) Legal Profession Act 1987 — management of hearing of appeal — determination of multiple factual disputes — desirability of such determination being conducted by a single Judge — whether may be assigned to a single Judge of Appeal — held: The determination of disputed factual questions should be remitted to the Common Law Division to be constituted for the remittal by a single Judge of Appeal sitting as a Judge of the Supreme Court. Need for legislative reform or enlargement of the Rules of Court referred to.

PRACTICE and PROCEDURE — Court of Appeal — legal professional discipline — hearing of appeal by way of "new hearing undesirability of hearing before three Judges — desirability of hearing before single Judge — power to assign or remit proceedings to a single Judge — express provisions of legislation and apparent purpose thereof — held: As a matter of practice, to conserve the available time of the Judges of Appeal, disputed factual questions in appeals from the Disciplinary Tribunal under the Legal Profession Act 1987 should, in cases such as the present, be remitted to a single Judge for the determination of such disputes before the appeal to the Court of Appeal is heard.

LAW REFORM — legal professional discipline — appeal from Disciplinary Tribunal — appeal by way of new hearing under s164(4) of Legal Profession Act 1987 — assignment of appeal to the Court of Appeal — disadvantages of hearings by three Judges of Appeal — disputed factual questions requiring hearing of more than four days — held: Consideration should be given by Parliament to reform of s164(4) Legal Profession Act 1987 to provide for such appeals to be conducted in accordance with s75A Supreme Court Act 1970 — alternatively, consideration should be given by the rule-maker to enlarging the Rules of the Supreme Court, pursuant to s51(8) Supreme Court Act 1970, so far as may be lawful, to provide for removal or remission of proceedings in such appeals to a single Judge of Appeal to resolve disputed factual questions.