CARSON v LEGAL SERVICES COMMISSIONER (NO 2) SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL SHELLER JA, STEIN JA and GILES AJA 29 August 1997 [1997] NSWCA 62 Sheller JA, Stein JA and Giles AJA. On 4 February 1997 the claimant, Nicholas Roderick Carson, began these proceedings by filing a summons seeking relief by way of declarations against the first opponent, the Legal Services Commissioner, and orders prohibiting or otherwise restraining the second opponent, the Legal Services Tribunal, from proceeding to conduct a hearing into allegations, particularised in an information, against the claimant in proceedings number 43 of 1996 before it, or, alternatively, staying the proceedings permanently. Section 48 (2) of the Supreme Court Act 1970 assigns to the Court of Appeal proceedings in theCourt for prohibiting or otherwise restraining the Legal Services Tribunal from proceeding in any matter before it. The claimant filed an affidavit sworn on 28 February 1997. The summons was listed for mention on 3 March 1997. According to the Court file, the proceedings were mentioned on more than one occasion before the Registrar or a Deputy Registrar and timetables set for the filing of written submissions and affidavits. On 12 May 1997 the Registrar specially fixed the proceedings for hearing on 26, 27 and 28 August 1997. On 23 June 1997 the first opponent was ordered to file a notice of motion setting out orders and directions he required, returnable before the Registrar on 7 July 1997. On 27 June 1997 the first opponent filed a notice of motion seeking to have the dates for hearing vacated and directions as to the admissibility of paras 18 to 40 and 44 to 90 of the claimant's affidavit of 28 February 1997 determined as a separate question prior to the hearing of the case. The motion went on to seek an order, conditional upon the Court ruling that the evidence was admissible, that the taking of such evidence and the balance of other evidence in the claimant's case be remitted under s 51 of the Supreme Court Act to a single Judge prior to the further hearing of the case or, alternatively, if the Court ruled the evidence inadmissible, the case to be re-listed for hearing for three days. This notice of motion was referred by the Registrar for hearing by Stein JA on 14 July 1997. When the matter came before Stein JA on that day the firstopponent handed up an amended notice of motion which contained a further or alternative order that the whole of the case be remitted under s 51 to the Administrative Law Division of the Court. Stein JA refused to vacate the hearing dates but otherwise stood over the notice of motion to the hearing of the appeal. On 26 August 1997, at the beginning of the hearing of the proceedings, the first opponent moved on the notice of motion to have the proceedings remitted under s 51 to a Division of the Court for determination. The claimant opposed the application and sought to have the matter proceed over the three days for which it had been set down in the Court of Appeal. The second opponent had filed a submitting appearance. After hearing argument the Court decided to remit the 2 UNREPORTED JUDGMENTS proceedings to the Common Law Division and ordered that the costs of the notice of motion should be costs in the proceedings. The Court said that it would give its reasons later. The principal ground put by the first opponent for remitting the proceedings to a Division was the inconvenience of this Court, consisting of three members, hearing oral evidence, for the most part cross-examination, over a period of several days. Mr Kenzie QC, who appeared for the first opponent, estimated that the oral evidence could occupy as much as ten hearing days. Mr Brereton, who appeared for the claimant, did not accept this estimate. Each party took us to the evidence in affidavit form to support their submission. Six affidavits have been filed on behalf of the claimant, none on behalf of the first opponent. The longest affidavit was Mr Carson's of 28 February 1997. The other affidavits related to the practices of other tribunals or committees concerned with professional misconduct by solicitors and barristers, to the alleged failure of the Commissioner to approach a number of identified people to obtain information about the matters raised in the complaint and to a brochure issued by the first opponent's office. While the first opponent's counsel proposes to cross-examine at least some of these deponents, this cross examination is not likely to be lengthy. Mr Carson's affidavit consisted of one hundred and three paragraphs spread over twenty-three pages. For present purposes it can usefully be divided into sections. The first nine paragraphs consisted of formal background unlikely to be controversial. The second section, paras 10 to 40, concerned Mr Rajski's complaint which is exhibited to the affidavit. The complaint was dated 8 July 1994 and ran to twenty-seven pages. There were seventy annexures. This section of Mr Carson's affidavit also exhibited correspondence from and to the first opponent by Mr Carson, Blake Dawson Waldron and Mr Rajski and chronicled events leading up to 17 December 1996 when the State Crown Solicitor served an information and statutory declaration, copies of which were exhibited, on Mr Carson. By the information, the first opponent complained that the claimant, in relation to seven stipulated grounds, was guilty of conduct between 1985 and 1989 which constituted either professional misconduct or unsatisfactory professional misconduct. The grounds contained the following allegations: 1. Improper approaches made by Mr Carson to witnesses for Mr Rajski and Raybos Australia Pty Limited in proceedings in the Supreme Court to which they were parties. The witnesses concerned were Messrs Wood and Donaldson; 2. Seeking to procure the termination of Mr Rajski's grant of legal aid for an improper purpose; 3. Taking action against a firm of solicitors designed to wrongfully intimidate that firm; Improperly inviting a witness to change his evidence; Improperly attempting to intimidate a witness; Knowingly giving false and misleading evidence during a trial; Conducting certain litigation in such a way that his behaviour would reasonably be regarded as disgraceful or dishonourable. In addition to relying on the matters alleged in 1, 2, 3, 4 and 5 the Commissioner relied upon three further matters. NAMA JOBNAME: No Job Name PAGE: 3 SESS: 1 OUTPUT: Tue Feb 26 12:30:21 2008 /reports/caseml]/case/urj/9708258 WRRSON v LEGAL SERVICES COMMISSIONER (NO 2) (Sheller JA, Stein JA and GileS AJA) The particulars of the complaint ran to forty-three pages in relation to the seven grounds and involved a distillation of one hundred and fifty-three documents. Correspondence followed and was exhibited to Mr Carson's affidavit. Mr Carson deposed to the general history of the litigation between Tectran Corporation Pty Limited and Raybos and Mr Rajski and proceedings commenced by Mr Rajski against various parties including what were described as the 'First' to 'Fourth' contempt actions in each of which Mr Carson was a defendant or respondent. The events described in this section of Mr Carson's affidavit were, for the most part, recorded and may not be controversial. The third section of Mr Carson's affidavit, paras 41 to 43, deposed to the lack of communication between him and the first opponent after 30 March 1995, when the claimant first received notification from the first opponent that he had decided to accept Mr Rajski's complaint out of time, until he was served with the information on 17 December 1996. This may not be controversial. The section also deposed to the fact that the information included complaints additional to those raised by Mr Rajski. The fourth section of Mr Carson's affidavit, paras 44 to 90, deals with each of the grounds of the complaint, suggesting on their face an answer to each of them. For example, in para 56 Mr Carson deposed in relation to the first ground: The approaches which were made to each of Mr Wood and Mr Donaldson were not for the purpose of attempting to influence them to give false evidence or to refrain from giving evidence adverse to my clients.""In para 68, in relation to the second ground of complaint, Mr Carson deposed: I did have available objective material to warrant my claim that Rajski and Raybos had not made a complete disclosure of their assets and financial position. As the LSC did not interview me nor give me the opportunity to respond to the complaint, he did not learn of the fact that I had the information concerning the transfer of the proceeds of the sale of Raybos to Mr Rajski's mother and to an aunt in South America or that Mr Rajski was able to travel to the USA. In relation to the fourth ground of complaint, in para 82 Mr Carson deposed to a particular conversation with Mr Yerushalmy and in para 83 deposed as follows: I did not intend to convey to Mr Yerushalmy that he should give false evidence on this or any other issue; on the contrary I sought to stress the need for him to give accurate evidence. I deny the allegation that I improperly invited Mr Yerushalmy to change the evidence he might give. The fifth and final section of Mr Carson's affidavit, paras 91 to 103, dealt with the provenance of various documents referred to in the particulars of complaint, as we understand it, in support of an argument that the first opponent was not entitled to rely upon such documents to consider the complaint or lay the information. It is not difficult to imagine that what we have called sections four and five of Mr Carson's affidavit, to the extent that they are admitted in evidence, would lead to extensive cross-examination. JOBNAME: No Job Name PAGE: 4 SESS: 1 OUTPUT: Tue Feb 26 12:30:21 2008 /reports/caseml]/case/urj/9708258 UNREPORTED JUDGMENTS The present proceedings are, in part, in the nature of proceedings for prerogative relief. Counsel for Mr Carson accepted that the merits of the complaint would not be relevant except to the extent that it could be demonstrated that taken at face value and at their highest, the charges in the information were foredoomed to fail; Walton v Gardiner (1993) 177 CLR 378 at 393. Counsel rightly eschewed any attempt to have this Court try the merits of the complaint. Rather, it was said that central to Mr Carson's claim for relief was a denial of procedural fairness and, in particular, of the opportunity, that should have been given to him, to explain, and the lack of proper inquiry before the proceedings in the Tribunal were begun. Mr Brereton indicated that Mr Carson would give evidence to limit those parts of the affidavit which seemed on their face to be in answer to the complaint, so as to make it plain that all he sought to do was to indicate the explanations he would have given if the opportunity had been given. On this basis, it was said that any attempt to cross examine on the merits would be an abuse and not permitted. All this was said in the context that the first opponent had not put on any affidavit evidence within the time that the Registrar directed. We find it difficult to see that the scope for cross-examination on the material in Mr Carson's affidavit would be thereby necessarily greatly reduced. If Mr Carson gives evidence about an explanation he would have made, had he had the opportunity, we are not, at the present time, persuaded that the firstopponent is precluded from questioning him about that explanation. However, this is rather beside the point. On this application it is not appropriate to express any view about the admissibility of Mr Carson's evidence, the purposes for which it may be used, if admitted, or the limits of cross-examination. Experience suggests that the controversial nature of the material is likely to give rise to extensive cross examination. The claimant presses this evidence on the Court. The first opponent has the right to cross-examine. This being So, it is not possible to gainsay experienced senior counsel's estimate of the time required for the hearing of oral evidence. Of course, the parties should be encouraged to pursue any avenues available for reducing the area of controversy by agreed facts, and we shall return to this. In opposing the first opponent's application, Mr Brereton, in addition to saying that the oral hearing of evidence would not be as long as the first opponent said, relied upon the following matters: 1. The legislature had assigned these proceedings to the Court of Appeal. However, counsel correctly conceded that s 51 (4) of the Supreme Court Act empowered the Court to remit the proceedings, on application by a party or of its own motion either in whole or in part, to a Division for the determination of the proceedings or any question arising in the proceedings. The complaints made by the first opponent are most serious. The charges made by Mr Carsonagainst the first opponent involve breaches of his statutory duty in a number of respects, oppression, delay, failure properly to investigate the charges before laying them and denial of procedural fairness. Stripped of the need to hear lengthy oral evidence, the proceedings are obviously proceedings appropriate to be heard by the Court of Appeal. On the other hand, remission of the proceedings to a Division gives to JOBNAME: No Job Name PAGE: 5 SESS: 1 OUTPUT: Tue Feb 26 12:30:21 2008 /reports/caseml]/case/urj/9708258 WRRSON v LEGAL SERVICES COMMISSIONER (NO 2) (Sheller JA, Stein JA and GileS AJA) a party, dissatisfied with the result, the right to appeal to this Court from the decision. If the matter proceeded before the Court of Appeal, the only avenue to a party dissatisfied with the result is appeal by special leave to the High Court. . The complaint made by Mr Rajski and filed in 1994 still awaits resolution after three years. There is further prejudice to the claimant with additional delay before these proceedings are heard. It is a matter of regret that the probable length of hearing was not appreciated by the parties when the Registrar fixed the dates for hearing. The Court was of the opinion that the inconvenience of having three Judges sitting for several days listening to evidence far out-weighed any matters which indicated that the matter should proceed in the Court of Appeal. In this regard, it is appropriate to refer to what was said by the then President, Kirby J, in Sedgwick v Law Society of New South Wales (unreported) 13 April 1993, on an application for directions about the hearing of an appeal from the Disciplinary Tribunal constituted under the Legal Profession Act 1987, at 6 and following. To this we would add that the Judge hearing the proceedings will be able to take any appropriate preliminary steps to identify which factual matters are agreed and which are not, before the hearing begins. Various courses were open to the Court. However, it seemed undesirable to divide the hearing into parts remitting one part to the Division and leaving the other with the Court itself to be dealt with after the Divisional Judge gives a decision. Thus, inevitably, the whole proceedings would be brought back before this Court. If the proceedings are remitted to a Division and a decision given, that may be the end of the matter. If a party appeals it will be clear precisely what is before the Court and the manner in which it should proceed to deal with it. Accordingly, the Court remitted the whole proceedings to the Common Law Division. The claimant having quite properly begun the proceedings in the Court of Appeal and the first opponent having quite properly sought to have the proceedings remitted to a Division, the appropriate order for costs was that the costs of the application for the remission be costs in the proceedings. The case is obviously a serious and important one where any further delay is undesirable. The Court, without in any way attempting to bind any Judge who considers the matter, regards the proceedings as proceedings which should be expedited. 1. That pursuant to s51 (4) of the Supreme Court Act the whole of the proceedings be remitted to the Common Law Division for determination. 2. The costs of the notice of motion be costs in the proceedings.