CITATION: Law Society of New South Wales v Khera [2005] NSWADT 277 DIVISION: Legal Services Division APPLICANT PARTIES: Council of the Law Society of New South Wales RESPONDENT Jaswant Khera FILE NUMBER: 052024 HEARING DATES: 21/11/2005 SUBMISSIONS CLOSED: 11/21/2005 DATE OF DECISION: 12/02/2005 BEFORE: Karpin A - ADCJ (Deputy President); Barnes M - Judicial Member; Hayes E - Non Judicial Member APPLICATION: Jurisdiction - permanent stay of proceedings MATTER FOR DECISION: Preliminary matter LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Legal Profession Act 1987 Director of Public Prosecutions v. Shirvanian and Another (1998) 44 NSWLR 129 CASES CITED: Lindsay v. Health Care Complaints Commission [2005] NSWCA 356 Strong v. The Law Society of NSW & Anor [2001] NSWCA 311 APPLICANT REPRESENTATION: I Wales, SC RESPONDENT In person ORDERS: That the Tribunal has jurisdiction to hear and determine the Respondent's Notice of Motion seeking a permanent stay or Dismissal of the Information filed by the Applicant REASONS FOR DECISION 1 By application filed in the Tribunal on 5 October 2001 the Law Society of New South Wales seeks an order that the name of the Respondent be removed from the Roll of Solicitors/ Legal Practitioners; that the Respondent pay the costs of the application; such other or ancillary orders as the Tribunal might determine. 2 That application was listed for hearing for 5 days commencing 21 November 2005. 3 On 19 October 2005 the Respondent filed Notice of Motion with supporting affidavits, seeking the following orders: 1. The Information filed by the Law Society be dismissed. 2. Alternatively, the Information filed by the Law Society be stayed permanently. 3. Costs. 4. Any other orders the Tribunal deems appropriate. 4 On 21 November 2005, the Respondent filed an Amended Notice of Motion, in which he sought the same orders, but substantially augmented the material in support of the Notice of Motion, including a medical report from Professor Denis Wakefield dated 11 November 2005, detailing the Respondent's current medical condition. 5 Counsel for the Applicant Law Society, Mr. I Wales, informed the Tribunal at the commencement of the hearing, that the Amended Notice of Motion had only just been handed to him; that those instructing him had previously received a portion of Professor Wakefield's report; and that if the Respondent sought an adjournment based upon that report, the Applicant would not seek to force the Respondent on to a hearing, but that he understood the Respondent was not seeking an adjournment, which was confirmed by the Respondent. 6 Counsel for the Applicant brought to the attention of the Tribunal the decision of the New South Wales Court of Appeal in the matter of Lindsay v. Health Care Complaints [2005] NSWCA 356, in which judgment was delivered on 8 November 2005. In the opinion of Counsel, that decision raised an issue as to whether or not the Tribunal had the power to order a permanent stay of proceedings. 7 The Tribunal determined that before the Respondent's Notice of Motion could proceed, the primary issue of the power of the Tribunal to hear and determine such an application required to be decided. 8 In Lindsay v. Health Care Complaints Commission, the Court of Appeal considered a number of grounds of appeal. The decision of the Court was delivered by Hunt AJA, with whom both Hodgson JA and Mason P agreed. Mason P, however, reserved his views on the issue of the Medical Tribunal's power to stay proceedings for abuse of process. Neither party to the appeal disputed the jurisdiction of the Medical Tribunal to grant the stay of proceedings which had been sought by the medical practitioner and refused by the Tribunal. However Hunt AJA said: 73 …it is by no means self-evident that the Tribunal does have the power to do so. No authority has been cited which upholds the existence of such a power in the Tribunal. In Gill v Walton (1991) 25 NSWLR 190 at 195, reference was made by this Court, without demur, to the fact that the Tribunal constituted under the Medical Practitioners Act 1938 had stayed the proceedings against one doctor after this Court had stayed the proceedings against two other doctors arising out of the same complaints. A similar reference was made by the High Court to that fact, again without demur, in Walton v Gardiner (1993) 177 CLR 378 at 385, 400. That was the appeal against the decision of this Court in Gill v Walton . See also Herron v Sheahan , Supreme Court (Maxwell J), 29 April 1987, unreported (at 3-4). 74 Australian superior courts of record possess an inherent power permanently to stay further proceedings before them which are an abuse of process: Jago v District Court (NSW) (1989) 168 CLR 23 at 25 et seq. Statutory courts such as the District Court have such power only if given to them expressly or by implication in their statute: Ibid at 38, 56. A Local Court magistrate conducting a summary trial of an information also has such a power: DPP v Shirvanian (1998) 44 NSWLR 129 at 134-137. In Grassby v The Queen (1989) 168 CLR 1, the High Court held (at 10, 18) that a magistrate conducting committal proceedings in the Local Court does not have that power. Such a magistrate performs an administrative or ministerial function, and not a judicial one (see 18-19). 75 The Tribunal is not a court in the strict sense (Walton v Gardiner at 395), although it has many features of a court. It has the power to deregister or suspend a medical practitioner (Medical Practice Act, s 64) and therefore to affect his or her rights. It has the power to fine (s 62) and to impose conditions on the medical practitioner's registration (s 61). The Tribunal does therefore perform some judicial functions. The Chairperson may be a District Court judge (s 148), and s 150 appears to assume that only a judge may be the Chairperson. The District Court judge (described as the "judicial member") is given the same protection and immunity as a judge of the Supreme Court (s 151). There is an analogy between the concept of abuse of a court's process in relation to criminal proceedings and the concept of abuse of the Tribunal's process in relation to disciplinary proceedings: Walton v Gardiner (at 395). 76 The Tribunal's power to grant a stay is said to be implied by ss 159, 161 and 164 of the Medical Practice Act. … 77 Neither s 159 nor clause 10 of Schedule 2 is merely a statement of the Tribunal's specific jurisdiction to conduct (or hear) an inquiry into a complaint. Both provisions express the obligation of the Tribunal to exercise that jurisdiction in unusually mandatory terms, notwithstanding s 146 (the provision establishing the Tribunal) which, in subs (2), states in more general terms "The Tribunal has and may exercise the jurisdiction and functions conferred or imposed on it by or under this or any other Act" (I have added the emphasis). This Court has interpreted s 159 as imposing a duty on the Tribunal to conduct the inquiry; the Tribunal does not have a discretion: HCCC v Litchfield, Court of Appeal, 8 August 1997, unreported (at 10-11). The same approach has been taken in Victoria where the legislation is analogous, but not identical: XD v Johnson (2002) 6 VR 372 at [26]–[27]. The power to adjourn proceedings in s 164 does not imply a power to refuse to conduct (or hear) an inquiry on the basis that the complaint is an abuse of process. Section 161(1) does not add anything to the sum total of the other provisions. 78 There appears to be no need to imply a power in the Tribunal to stay its proceedings on the basis that they are an abuse of process when the Supreme Court has the power to stay those proceedings in such a case. This Court has held that the Supreme Court does have that power, under the exercise of its supervisory jurisdiction pursuant to s 23 of the Supreme Court Act 1970: Herron v McGregor (1986) 6 NSWLR 246 at 250-252; Gill v Walton at 201, 210 (these two cases arose out of the same matter, and may conveniently be grouped as "the Chelmsford cases"). The High Court (by majority) refused special leave to appeal in Herron v McGregor on the bases that it saw no reason to doubt the correctness of the conclusion reached by this Court in relation to the Supreme Court's jurisdiction, and that for other reasons it was not a suitable vehicle in which to decide the issue of that jurisdiction (see (1993) 177 CLR 378 at 391). Because of the particular circumstances of delay surrounding the Chelmsford cases, the High Court subsequently declined to revisit the issue of this Court's jurisdiction to stay proceedings in the Tribunal in Walton v Gardiner (at 390-391). 9 Assuming, but not deciding, that the Medical Tribunal had the jurisdiction to entertain the application for a stay of proceedings, his Honour concluded that the power had been properly exercised. 10 A comparison of the powers and responsibilities of the Medical Tribunal and this Tribunal, demonstrates that they are substantially analogous. 11 In Strong v. The Law Society of NSW & Anor [2001] NSWCA 311 Mason P, dealing with an application by the Claimant to stay proceedings in the Administrative Decisions Tribunal , said: 17 However, … I express no concluded opinion about this aspect of the matter given the fact that the tribunal itself has power to entertain an application for a permanent stay (see Director of Public Prosecutions v Shirvanian (1998) 45 NSWLR 129). 22 … I am not persuaded that it is appropriate for this Court to exercise any extraordinary jurisdiction to intervene in the proceedings below. The Tribunal has full power to do justice in the matter. Its decision is itself subject to internal appellate review within the Administrative Decisions Tribunal and to further appellate supervision in this Court. 12 In DPP v. Shirvanian and Another the Court of Appeal in a majority decision, held that a Local Court has the power to permanently stay criminal proceedings where there is an abuse of process. In delivering the majority decision (with which Beazley JA concurred, and from which Powell JA dissented), Mason P said: No court in Australia has unlimited jurisdiction, and all courts in Australia are concerned with issues of fairness, avoidance of oppression, and the maintenance of general confidence in legal process. The last-mentioned goal itself imposes severe limits upon the power to stay proceedings, because a court that itself abuses the power to grant a permanent stay transgresses the separation of powers by trenching upon the proper function of the executive arm and declining its own constitutional function of determining disputes. [at 134] The duty to observe fairness, at least in its procedural sense, is a universal attribute of the judicial function. Those aspects of a fair trial known as the principles of natural justice apply by force of common law and the presumed intent of parliament unless clearly excluded in a particular context. In my view the same can be said about the power to prevent abuse of process as n incident of the duty to ensure a fair trial. And I can see no principled ground for excluding a power to grant a stay to prevent or nullify other categories of abuse of process. [at 135] Earlier in this judgment I have endeavoured to show why the implication of a power to stay for abuse of process is correct in point of principle and authority. Recognising that the task is one of implying the relevant power, I see no reason why it must be implied from the very nature of the exercise of jurisdiction as a court of trial. Very clear language would be required to deprive the Local Court, alone of all court in New South Wales, of this tool designed to achieve the fundamental objectives of the abuse of process doctrine. [at 136-137] 13 Mason P dealt with the submission that the power to order a permanent stay of proceedings did not reside in the Local Court because the Supreme Court had the power as part of its supervisory jurisdiction, thus: In my view, the submission that the power does not exist because it also resides elsewhere is not conclusive, and fails to meet the weight of the countervailing statements expressed with generality in the recent High Court decisions. In my view a magistrate is as well equipped to detect and remedy abuse of process in all its manifestations as a reviewing judge of the Supreme Court. Indeed the former has the advantage of seeing the matter in immediate context and ….the opportunity to remedy it before prejudice is suffered. If the power is exercised in a way that attracts criticism, then it is subject to review in the Supreme Court…[at 138]. 14 Section 73 of the Administrative Decisions Tribunal Act 1997 relevantly provides: 73 (1) The Tribunal may, subject to this Act and the rules of the Tribunal determine its own procedure. … (5)(h) may dismiss at any stage any proceedings before it if it considers the proceedings to be frivolous or vexatious or otherwise misconceived or lacking in substance. 15 Pursuant to section 73 the Tribunal is accorded broad powers to regulate it's own proceedings. Relevantly it is given the power to dismiss proceedings at any stage. It is difficult to reconcile this extensive power with an acceptance that the Tribunal is not, by implication, empowered to order a permanent stay of proceedings. The dismissal power arises, inter alia, where the proceedings are adjudged to be misconceived or lacking in substance. In practical terms, a permanent stay of proceedings acts as a de facto dismissal, and accordingly may be seen as tantamount to dismissal. In the view of the Tribunal, the powers contained in section 73, by implication, extend to ordering that proceedings be permanently stayed if the Tribunal is satisfied that they constitute an abuse of process. The present Notice of Motion seeks that the proceedings commenced by the Applicant be dismissed or permanently stayed. Depending upon the bases upon which the Respondent mounts his case, the Tribunal may or may not be satisfied that the proceedings should be dismissed pursuant to the provisions of section 73 (5) (h). Alternatively, the Tribunal may be required to determine whether or not it has power to permanently stay the proceedings if the grounds have been established. Whilst not finally deciding that issue, the Tribunal has reached the conclusion that the Respondent's Notice of Motion should be heard and determined. 16 The Tribunal notes the position adopted by Mason P in Lindsay v. Health Care Complaints Commission, however, the Tribunal is satisfied, in the light of the decision in Strong v. The Law Society of New South Wales, supported by the reasoning of Mason P in DPP v. Shirvanian, that the Tribunal has jurisdiction to entertain the Respondent's application for a permanent stay of proceedings. This Tribunal also places reliance upon the broad powers contained in section 73 Administrative Decisions Tribunal Act 1997. 17 The order of the Tribunal is that the Respondent's application for dismissal, or, alternatively, a permanent stay of proceedings, should proceed before the Tribunal. 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