Law Society of New South Wales v Phillips [2006] NSWADT 311

CITATION: Law Society of New South Wales v Phillips [2006] NSWADT 311

DIVISION: Legal Services Division

APPLICANT PARTIES: Council of the Law Society of New South Wales RESPONDENT Brian Arthur Phillips

FILE NUMBER: 062005

HEARING DATES: 04/10/06

SUBMISSIONS CLOSED: 10/16/2006

DATE OF DECISION: 11/07/2006

BEFORE: Karpin A - ADCJ (Deputy President)

CATCHWORDS: Application for permanent stay

MATTER FOR DECISION: Preliminary matter

LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Legal Profession Act 2004

CASES CITED: Law Society of New South Wales v Khera [2005] NSWADT 277

APPLICANT L Pierotti, solicitor REPRESENTATION: RESPONDENT In person

ORDERS: 1. Application Dismissed; 2. Respondent to pay the Society's costs on the respondent's application for a permanent stay. Those costs to be as agreed or assessed.

REASONS FOR DECISION 1 By application filed on 6 February 2006, the applicant Law Society seeks a finding that the respondent Australian Legal Practitioner is guilty of professional misconduct and seeks orders that he be reprimanded; pay a substantial fine; and pay the costs of the Society. 2 On 6 July 2006, the respondent filed an application seeking: '1. An Order granting leave for the termination of these proceedings on the ground that continuation of the proceedings is not warranted in the public interest. 2. A stay of the substantive proceedings until this Application has been heard and determined. 3. An Order that the Applicant pays the Respondent's costs of these proceedings …' 3 The parties were ordered to file and exchange written submissions on the issues raised by the respondent's application. 4 The respondent was also required to file a reply in the substantive proceedings, with which he complied on 4 October 2006. In that reply the respondent admits some of the matters asserted by the applicant and denies others. Thus there are matters of fact and law upon which the parties take issue. 5 As a preliminary matter, an issue arose as whether or not this present interlocutory application could be dealt with by a Presidential Judicial Member sitting alone. That issue appears to be answered in the affirmative on the basis of s 24A of the Administrative Decisions Tribunal Act 1997 (ADT Act) which provides: ' 24A Constitution of Tribunal for exercise of interlocutory functions (1) In this section: interlocutory function means the making of any order or other decision by the Tribunal (including an Appeal Panel of the Tribunal) in proceedings in respect of any of the following: (a) stays or adjournments, (b) prohibition or restriction of the disclosure, broadcast or publication of matters by order under section 75, (c) summonses, (d) extensions of time for any matter (including for the lodgment of applications or appeals), (e) evidential matters, (f) disqualification of members, (g) joinder of parties to proceedings, (h) summary dismissal of proceedings, (i) any other interlocutory issue before the Tribunal. (2) In exercising any of its interlocutory functions, the Tribunal may be constituted by: (a) in the case of a function of the Tribunal in relation to an internal appeal or external appeal—one presidential judicial member who is assigned by the President for the purpose of exercising the function, or (b) in the case of a function of the Tribunal otherwise than in relation to an internal appeal or external appeal—one judicial member of the Division to which the function concerned is allocated who is assigned by the President or (subject to any direction of the President) the Divisional Head for the purpose of exercising the function. (3) Nothing in this section prevents a differently constituted Tribunal from exercising an interlocutory function or any other function of the Tribunal if the Tribunal is duly constituted to exercise that function apart from this section. (4) This section has effect despite any other requirement of this Act or any other enactment relating to the constitution of the Tribunal for the exercise of its functions.' 6 The initial question is whether or not the respondent has properly on foot, an application to permanently stay these proceedings. Does he, as a matter of law, have a substantive application before the Tribunal? 7 The respondent submitted that the Tribunal has power to entertain an application for a permanent stay of proceedings based upon s 568(2) of the Legal Profession Act 2004 (LPA). Section 568 provides: ' 568 Early termination of proceedings before Tribunal (1) Proceedings before the Tribunal with respect to a complaint cannot be terminated, whether by withdrawal of the disciplinary application or otherwise, before the Tribunal makes its final decision about the complaint, without the leave of the Tribunal. (2) The Tribunal may give leave for the purposes of this section if it is satisfied that continuation of the proceedings is not warranted in the public interest.' 8 Two issues are raised by this application: Firstly, whether or not the Tribunal has jurisdiction to entertain the respondent's application for a permanent stay; and secondly, whether the initial issue may be dealt with by the Head of Division alone. 9 The respondent relied upon the decision of Law Society of New South Wales v Khera [2005] NSWADT 277 paras 14-17. The Law Society does not dispute that authority, submitting, however, that the respondent's application as framed, purporting to rely upon the provisions of s 568 of the LPA, does not attract the jurisdiction of the Tribunal. 10 The basis upon which the respondent makes his application is a submission that the continuance of these proceedings is not in the public interest, pursuant to the provisions of s 568(2). 11 The respondent submits that one of the specific purposes of Chapter 4 of the LPA which deals with complaints and discipline, is as set out in s 494(1)(a) 'for the protection of clients of law practices and the public generally'. 12 He argues that in the present case there are no clients to be protected and never will be because the 'present and future status of the respondent is as an in-house corporate lawyer'. 13 The respondent relies upon the provisions of s 568(2) 'because of the affidavit evidence sworn 28 June 2006, 6 July 2006, 9 August 2006 and 23 August 2006 in support of the application on 6 July 2006'. 14 The essence of those affidavits is that the respondent will never resume private practice as a solicitor and will never again act as a solicitor for the 'public generally' or for 'any member of the public' in the sense in which these expressions are used in ss 494(1)(a) and 496 of the LPA. The respondent reiterates his request that the proceedings be terminated pursuant to the provisions of s 568(2) of the LPA on the grounds that proceedings are not warranted in the public interest. He asserts that given the nature of his present and intended future employment, there is no public interest to be protected. In summary, the respondent's submission is that his application attracts the provisions of s 568(2) because no useful purpose would be served by hearing the application because, he argues, the evidence establishes that there is no public interest that requires protection. 15 In summary, the respondent asserts that there is no public interest because the respondent is employed as an in-house lawyer; that he is bound by his undertaking of 9 August 2005 to the applicant Society 'not to practise as a solicitor during the period 1 July 2005 to 30 June 2006 otherwise than in the course of my employment under a contract with BP Costing Services Pty Ltd and to practise only as a solicitor for that employer and not as a solicitor for any person who is not my employer'. 16 Further, the respondent submits that his practising certificate which is classified 'unrestricted corporate' precludes him from practising as a solicitor for any member of the public or for the public generally. 17 The respondent notes that BP Costing Services Pty Ltd is not an incorporated legal practice and does not provide legal services to members of the public or to the public generally. 18 Although the respondent's application makes no reference to delay as a factor warranting a stay of proceedings, he nonetheless seeks to rely upon an affidavit setting out the fact that the applicant has been aware of the complaint since February 1998. He contends 'that the applicant has failed for 8 years 5 months to properly protect public interest in respect of its own Complaint by reason of its neglect, inordinate delay and unreasonable delay'. 19 The respondent's concluding submissions are that the Tribunal has jurisdiction to make an order for permanent stay of the proceedings and is entitled to make such order relying upon s 568(2) of the LPA because the Tribunal should be satisfied that continuation of the proceedings is not warranted in the public interest having regard to the permanent status of the respondent as an in-house corporate lawyer since 9 August 2005. 20 The applicant concedes that the Tribunal has jurisdiction to hear a properly based application for a stay of proceedings. The Society submits, however, that the application as framed, relying on the provisions of s 568(2) of the LPA, does not raise that jurisdiction. 21 The applicant submits that the respondent's application is without foundation at law and should be dismissed without addressing the question of merit. 22 Section 568 must be read in its totality. It deals with early termination of proceedings before the Tribunal in circumstances where the Tribunal has not made a final decision. It prohibits termination of proceedings by withdrawal of the disciplinary application or any other means before the Tribunal makes its final decision concerning the complaint unless with leave of the Tribunal. Sub-section (2) provides that that leave may be given if the Tribunal is satisfied that continuation of the proceedings is not warranted in the public interest. 23 The applicant submits that the section is directed to circumstances in which the informant seeks to terminate proceedings, which may only be terminated with the leave of the Tribunal. A pre-condition for exercise of the Tribunal's discretion requires a finding that the Tribunal is satisfied that, pursuant to s 568 (2), the continuation of the proceedings is not warranted in the public interest. 24 On a reading of the provisions of Part 4.8 of the LPA, there appears to be merit in the applicant's submissions that an application under s 568 is an application open to the informant but not to the respondent. 25 That is not to say, however, that a respondent is deprived of the right to seek a permanent stay of proceedings. A mere assertion, however, that it is not in the public interest relying upon the provisions of s 568(2) is not a proper ground upon which to make an application for a permanent stay or dismissal. The sub-section does not provide the basis for a substantive application. 26 It is clear from the pleadings that there are issues to be litigated between the parties. The role of the Tribunal is to preside over the substantive proceedings presently on foot, unless there is a basis in law for terminating those proceedings. 27 The LPA, inter alia, provides a scheme for the laying of complaints; investigations of those complaints, and, where the investigating Council of Commissioner comes to the view that the conduct complained of may amount to professional misconduct, the laying of an information for determination by the Tribunal. 28 Whilst the act provides for the Tribunal making consent orders in certain circumstances, that option does not arise here. Nor is the respondent assisted by s 73 of the ADT Act which provides: ' 73 Procedure of the Tribunal generally (1) The Tribunal may, subject to this Act and the rules of the Tribunal, determine its own procedure. (2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. (3) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. (4) The Tribunal is to take such measures as are reasonably practicable: (a) to ensure that the parties to the proceedings before it understand the nature of the assertions made in the proceedings and the legal implications of those assertions, and (b) if requested to do so—to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and (c) to ensure that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings. (5) The Tribunal: (a) is to act as quickly as is practicable, and (b) is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and (c) may require evidence or argument to be presented in writing and decide on the matters on which it will hear oral evidence or argument, and (d) in the case of a hearing—may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases, and (e) may require a document to be served outside the State, and (f) may adjourn proceedings to any time and place (including for the purpose of enabling the parties to negotiate a settlement), and (g) may dismiss at any stage any proceedings before it if the applicant withdraws the application to which the proceedings relate, and (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. (6) A judicial member may: (a) hold a directions hearing in relation to any proceedings before the Tribunal, or (b) authorise a non-judicial member, the Registrar or a Deputy Registrar to hold a directions hearing in relation to any proceedings before the Tribunal.' 29 The right to seek a permanent stay of proceedings is available to the respondent upon the well-recognised common law principles. The respondent has not sought to avail himself of those bases for termination of proceedings, and nothing has been brought to the attention of the Tribunal which suggests he has or does not have grounds for so doing. 30 The requirement in s 568(2) that the Tribunal in arriving at a decision pursuant to s 568(1) may give leave for the purposes of this section if it is satisfied that continuation of the proceedings is not warranted in the public interest, does not provide a substantive basis for the discontinuance of proceedings. It is merely a pre-condition to the exercise of the power contained in s 568(1). 31 To simply argue that the continuation of the proceedings is not in the public interest, because the respondent, in his current employment, will not be dealing with members of the public, but only acting as an in-house corporate lawyer, does not establish proper grounds for the Tribunal to consider an application on the merits for a stay of proceedings. ORDERS 1. Application Dismissed. 2. Respondent to pay the Society's costs on the respondent's application for a permanent stay. Those costs to be as agreed or assessed.