Law Society of New South Wales v Carver [2004] NSWADT 275

CITATION: Law Society of New South Wales v Carver [2004] NSWADT 275 DIVISION: Legal Services Division APPLICANT PARTIES: Council of the Law Society of New South Wales RESPONDENT Peter George Star Carver FILE NUMBER: 042003 HEARING DATES: 29/04/2004 SUBMISSIONS CLOSED: 06/07/2004 DATE OF DECISION: 12/17/2004

BEFORE: Barnes M - Judicial Member; Durbach A - Judicial Member; Kirkby E - Non Judicial Member APPLICATION: Order for dismissal MATTER FOR DECISION: Principal matter LEGISLATION CITED : Legal Profession Act 1987 Administrative Decisions Tribunal Act 1997 CASES CITED: APPLICANT REPRESENTATION: P Boyd, solicitor RESPONDENT In person ORDERS: Information dismissed. Each party to pay their own costs.

REASONS FOR DECISION 1 The Council of the Law Society of NSW (hereafter Law Society) initiated proceedings by Information filed pursuant to 167 of the Legal Profession Act 1987 on 6 February 2004. 2 The Information alleged that Peter George Star Carver (hereafter the Solicitor) was guilty of professional misconduct. 3 The grounds relied upon, were the Solicitor having been served with a notice pursuant to s.152 of the Legal Professions Act had without reasonable excuse failed to comply with requirements of the Notice. 4 Section 152 states: (1) For the purpose of investigating a complaint, a Council or the Commissioner may, by notice in writing served on any legal practitioner, require the legal practitioner to do any one or more of the following: (a) to provide written information, by a date specified in the notice, and to verify the information by statutory declaration, (b) to produce, at a time and place specified in the notice, any document (or a copy of any document) specified in the notice, (c) to otherwise assist in, or cooperate with, the investigation of the complaint in a specified manner. (1A) A Council or the Commissioner may inspect any document produced before the Council or Commissioner under this section and may retain it for such period as the Council or Commissioner thinks necessary for the purposes of an investigation in relation to which it was produced. A Council or the Commissioner may make copies of the document or any part of the document. (2) If a legal practitioner against whom a complaint is made claims a lien over documents relating to the matter the subject of the complaint, the Council or the Commissioner may, by notice in writing served on the legal practitioner, require the legal practitioner to waive the lien if satisfied it is necessary for the orderly transaction of the client's business. (3) A notice is served under this section on a legal practitioner if: (a) it is served personally on the practitioner, or (b) it is sent by post to the practitioner's place of practice, business or residence last notified by the practitioner to a Council. (3A) A notice under this section is to specify a reasonable time for compliance with the requirement. (4) A legal practitioner who, without reasonable excuse, fails to comply with such a requirement is guilty of professional misconduct. (5) A legal practitioner must not mislead or obstruct a Council or the Commissioner in the exercise of any function under this Division. The wilful contravention of this subsection is capable of being professional misconduct. Note: "Documents" has a wide meaning. The term is defined in the Interpretation Act 1987 to mean any record of information. The term would include any file that was itself a record of information. 5 Putting to one side the particulars of the allegations, the Law Society sought significant orders against the Solicitor and such orders were: a) The Solicitor pay a substantial fine. b) The Solicitor's practising certificate be suspended and no further practising certificate be issued to him until such time as he has complied with the notice pursuant to s.152 served on 2 September 2003. c) The Solicitor pay the costs of the Informant of and incidental to the proceedings. 6 The Solicitor filed a Reply in which no admissions were made as to any breach of s.152 and he further filed in support a Statutory Declaration. 7 The Solicitor filed an Amended Reply of 31 March 2004. 8 The Tribunal will turn to the substance of the Reply and Amended Reply in the course of this decision. 9 The matter was listed for contested hearing before the Tribunal on 29 April 2004 and the Tribunal file shows that the matter had been listed in a procedurally regular way to be heard on that day. 10 On 8 April 2004 the Law Society submitted a letter to the Registry which relevantly provided: "As a matter of courtesy to the Tribunal, I can advise that the matter has been resolved on the basis that the Society will offer no evidence. Thereupon the Tribunal we ask to dismiss the Information and make an Order that each party pay their own costs or alternatively no Order for costs. This action has been agreed to by Mr. Carver to whom a copy of this letter is being sent." 11 The matter remained in the hearing list for 29 April and consistent with the aforesaid letter the foreshadowed application was made which essentially was a joint consent application. 12 The Tribunal at that time was concerned that no grounds and or reasons were advanced in support of the consent proposal for dismissal. 13 The Tribunal was mindful of s.73 of the Administrative Decisions Tribunal Act 1997.The Tribunal was further mindful of public interest considerations, which are cornerstone considerations in any of the deliberations of this particular Tribunal. 14 Accordingly the Tribunal was not prepared to grant the Orders sought at that time, which did no more than reflect an inter party agreement. The Tribunal was concerned the public interest had to also be considered. Certainly no Tribunal decision was made that the orders sought would not be made at all. 15 The parties were invited to file and serve submissions in support of their in summary consent position and any supporting Affidavit material. 16 A timetable was laid down in this regard and whilst there was an amendment to the timetable, such documentation has in substance been filed. 17 The Tribunal has received Law Society submissions filed 6 May 2004 with a supporting Affidavit of Mr. Collins filed 6 May. Submissions were filed by the Solicitor on 7 June 2004. 18 The Law Society relies upon s.73(5)(g) of the Administrative Decisions Tribunal Act 1997 which provides: The Tribunal: may dismiss at any stage any proceedings before it if the applicant withdraws the application to which the proceedings relate. 19 The Tribunal considers that it is vested with a discretion to be exercised as the sub-section refers to "may dismiss at any stage". 20 The Tribunal is not satisfied it exists to act at the whim of the parties or makes decisions solely influenced by what are the decision making processes and rationales of the parties. 21 The public interest must loom large in the exercise of the Tribunal's discretion. 22 As noted significant orders were sought against the Solicitor, for alleged professional misconduct. Yet the proposed orders to finalise the proceedings provided no insight as to the potential merits of the orders sought in the Information. Section 73(2) provides: 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. and s.73(5) which provides: 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. 23 It is clear there is scope for the Tribunal to adopt an inquisitorial approach, at least to some extent in the conduct of the proceedings. 24 In this matter the Tribunal considers there is a real need to consider the actual nature of the application before the Tribunal. 25 The Information was filed in anticipation of a substantial hearing on the merits and a determination as to the appropriate orders. 26 The application that was foreshadowed in correspondence and pressed on the allocated hearing date was that the proceedings be dismissed. 27 The Tribunal considers that the actual application was interlocutory in character, although in being granted it does involve a final determination of the proceedings. 28 This determination is relevant in the Tribunal's discretion both under s.73 referred to above and s.168 of the Legal Profession Act which provides: (1) For the purpose of conducting a hearing into a question of professional misconduct, the Tribunal is to observe the rules of law governing the admission of evidence despite any contrary provisions of section 73 (Procedure of the Tribunal generally) of the Administrative Decisions Tribunal Act 1997 . (2) In relation to the conduct of any other hearing of a matter allocated to the Legal Services Division of the Tribunal by the Administrative Decisions Tribunal Act 1997, section 73 of that Act applies to the determination of that matter. 29 Under 168(1) the emphasis is upon for the purpose of conducting a hearing into a question of professional misconduct the Tribunal is to observe the rules of law governing the admission of evidence. 30 The nature of the application pressed by the parties did not involve the conducting of a hearing into the question of professional misconduct. 31 In entertaining the interlocutory application to by consent dismiss the Information the Tribunal does not consider itself bound by s.168 to limit itself by the rules of evidence. 32 The Tribunal whilst not operating completely at large, operates within the bounds in considering this application, of s.73. 33 The Tribunal in considering the Information and Affidavit in Support of Mr. Collins of 5 February 2004 notes no supporting material were filed to prove when the s.152 notice was served. 34 The Solicitor in the Reply made no concessions and in particular stated: "In respect of all the requests made pursuant to the s.152 notice the respondent says that he has provided all the information and documents contained in the said notice to the complainant over the period of 2001 to 2003, full details of which ware contained in the Statutory Declaration the respondent served (by fax) on the complainant on 8 March 2004." 35 The Statutory Declaration identifies clearly a past history of dealings between the Law Society and the Solicitor involving a complaint lodged by Mr. & Mrs. J.& A. Jbarrah. 36 It is further clear from that Statutory Declaration that the Solicitor dealt with a range of issues which the Solicitor addressed in a letter of 22 May 2003. At no time before the Tribunal has the Law Society disputed the accuracy of that Statutory Declaration. 37 The Solicitor in the Amended Reply admitted that he was served with the s.152 notice on 2 September 2003 and contested the validity of the notice, given it was based upon documents which were already in the possession of the Law Society in respect of which a complaint had been dismissed by the Law Society, in part on 27 November 2002. 38 Further the Solicitor contends that all the information and documents required to be produced in the notice of 2 September 2002 had already been produced to the Law Society. 39 The Society in its written submissions of 6 May in summary contends: a) On 6 February 2004 the Information was filed. b) The supporting particulars of the Information were grounded in a complaint by the Society and not by a member of the public. c) The Society had given the matter further consideration since commencement of the proceedings and determined the proceedings should not be proceeded with (this submission was not elaborated on in terms of specific grounds and reasons as to how that determination was made). 40 The Society also confirmed that it would offer no evidence in the proceedings and submitted the Tribunal could not be satisfied on the Briginshaw test that the Solicitor had been guilty of conduct amounting to either professional misconduct or unsatisfactory professional conduct. 41 Further the Tribunal in the circumstances would not be able to conduct a hearing as required by s.167 and thus empowered it to make orders which would within sections 171C and E. 42 It was submitted it was in the public interest for the Tribunal to make the orders sought as the Society, no longer wished to pursue the complaint and no other person would otherwise be disenfranchised by that decision. 43 The Solicitor filed Submissions which included certain copy correspondence and in particular a letter from the Law Society of 5 April 2004 which provided: "I acknowledge receipt of your letter of 2 April 2004. The matters raised in your letter have been fully considered. Without accepting everything that you say in your letter under reply, I can see that you may have a reason to believe that the Section 152 Notice issued by the Society should not have been issued because of the earlier resolution of the Professional Conduct Committee. However, the Society does not necessarily accept that the issues raised by you would, even if correct, lead to the setting aside of the Notice which [and I note you have not otherwise suggested] complies with the relevant statutory requirements. I am informed that, in any event, you have now complied with the requirements of the Notice. In the circumstances, and so as to avoid further expense on the public purse, I am prepared to suggest that the present proceedings be terminated on the basis that the Society would offer no evidence in the proceedings and thus leaving the Information to be formally dismissed. I would further propose that each party to pay its own costs." 44 It is clear from the Solicitor's Submission the investigation of the complaint made by Mr. & Mrs. Jbarrah dated back to July of 2001 and that complaint had been resolved on or about 27 November 2002, although it was noted by the Solicitor that Mr. & Mrs. Jbarrah had lodged an appeal to the Legal Services Commission. 45 The Law Society's notice served on 2 September 2003 upon the Solicitor noted on 29 May 2003 the Professional Conduct Committee resolved: " RESOLVED that pursuant to Section 152 of the Legal Profession Act, 1987, the legal practitioner is required: (a) To provide, verified by statutory declaration, the information set out in Schedule 1 hereto to the Manager of the professional Standards Department, Law Society of New South Wales within fourteen (14) days of the service of this Notice. (b) To produce, within fourteen (14) days of the service of this Notice, the documents specified in Schedule 2 hereto to the Manager of the Professional Standards Department at the office of the Department, 7th Floor, Law Society Building, 170 Phillip Street, Sydney. SCHEDULE 1 This Notice relates to a complaint made by the Law Society and notified to you on 15 October 2001 that you failed to disclose in writing your proposed costs in relation to a conveyance undertaken by your firm on behalf of Mr and Mrs Jamal and Aida Jbarah. Did you disclose in writing to Mr and Mrs Jbarah your proposed costs as required by Section 179 of the Legal Profession Act? Your attention is drawn to the requirements as to costs disclosure set out in S175 of the Act and to S182 of the Act which renders any failure to disclose costs as required by S175 capable of amounting to unsatisfactory professional conduct or professional misconduct. It is noted that in responding to complaint made by Mr and Mrs Jbarah, you have stated that you advised your clients that you proposed to charge then according to the "Old Scale" of costs. Was this disclosure made orally or in writing? Did you at any time give Mr and Mrs Jbarah a copy of the "Old Scale" upon which you intended to rely or any written record of its contents? If not, why not? SCHEDULE 2 Please provide copies of all documents which in your view amount to written disclosure as required under the Act. Please provide all file material relating to any conveyances or proposed conveyances carried out by your firm on behalf of Mr and Mrs Jbarah. FURTHER RESOLVED that if the legal practitioner is unable to comply with the preceding resolution, the legal practitioner must provide a statutory declaration to the Manager of the Professional Standards Department, Law Society of New South Wales within fourteen (14) days of the service of this Notice, stating the reasons for the inability to comply with this resolution." 46 It was alleged the Solicitor did not respond by 16 September 2003 or provide reasons of any inability to respond. 47 It is clear that this request for information and/or documentation pursuant to s.152 was intimately linked to the complaint that had already been determined. 48 The Tribunal considers it a rather unusual practice for the Society to have resolved a complaint and then to be making further demands subsequently, in relation to areas that at the very least significantly overlap. 49 The Tribunal considers without judging the matter on its merits that the Solicitor had a legitimate basis for the framing of his Reply and Amended Reply. 50 Turning to the Society's specific application, it relies upon s.73(5)(g). 51 The sub-section states: The Tribunal may dismiss at any stage any proceedings before it if the applicant withdraws the application to which the proceedings relate. 52 It is clear that the applicant must withdraw the application as a condition precedent to the dismissal, or at least seek leave to withdraw the application. The reference to "application" in the sub-section is sufficiently broad to encompass the initiating process in these proceedings, being the Information. 53 In express words the Respondent has not done so, however the Tribunal is also mindful of 73(b)(f) which provides: The Tribunal: (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. (f) may adjourn proceedings to any time and place (including for the purpose of enabling the parties to negotiate a settlement). 54 Here it is clear that there have been negotiations which are consistent with the Administrative Decisions Tribunal Act 1997 in its broader sense. 55 The Law Society by implication has sought to withdraw the Information and it has given clear notice that it proposes to call no evidence. 56 The Tribunal in the circumstances of this particular matter is prepared to grant the orders sought and it finds: a) In relying upon s.73(5)(g) the Law Society was by implication giving notice that it was seeking to withdraw the application to which the proceedings relate. Such application being the Information filed 6 February 2004. b) There has been a genuine re-evaluation by the Law Society as to the prospects of success. c) There was a genuine contest in the event the matter was to proceed. d) There is no member of the public claiming compensation arising out of any alleged act of professional misconduct particularised in the Information. 57 There is a discretion to be exercised and, in the circumstances of this matter the Tribunal accordingly grants leave for the Law Society to withdraw the Information and dismisses the proceedings for all purposes. 58 The Tribunal orders for each party to pay their own costs.