Law Society of New South Wales v Khera (No 2) [2006] NSWADT 297

CITATION: Law Society of New South Wales v Khera (No 2) [2006] NSWADT 297

DIVISION: Legal Services Division

APPLICANT PARTIES: Council of the Law Society of New South Wales RESPONDENT Jaswent Khera

FILE NUMBER: 052021

HEARING DATES: 6 & 7/03/2006

SUBMISSIONS CLOSED: 03/07/2006

EXTEMPORE DECISION DATE: 10/10/2006

DATE OF DECISION: 09/11/2006

BEFORE: Karpin A - ADCJ (Deputy President); Barnes M - Judicial Member; Hayes E - Non Judicial Member

CATCHWORDS: Application for permanent stay - Dismissal of information - frivolous, vexatious, misconceived or lacking in substance

MATTER FOR DECISION: Preliminary matter

LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Legal Profession Act 1987

CASES CITED: Law Society of New South Wales v. Jaswent Khera [2005] NSWADT 277 Lindsay v Health Care Complaints Commission [2005] NSWCA 356

APPLICANT I Wales SC REPRESENTATION: RESPONDENT In person

ORDERS: Respondent's application for Dismissal or Permanent Stay of proceedings is refused

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 Solicitor be removed from the Roll of Solicitors/Legal Practitioners; that the Solicitor 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 Solicitor 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 Solicitor filed an Amended Notice of Motion. 5 At the commencement of the hearing, 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 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. 6 The Tribunal, accordingly, determined to deal with the issue of jurisdiction before considering the respondent's application. 7 On 2 December 2005 the Tribunal published its decision, holding that it had power to entertain the respondent's application for a stay of proceedings. Law Society of New South Wales v. Jaswent Khera [2005] NSWADT 277. 8 On 6 and 7 March 2006, the Tribunal heard argument on the further interlocutory issue, as to whether the application should be dismissed or permanently stayed. 9 At the conclusion of the hearing, the parties were given further time within which to file written submissions. The timetable allowed the solicitor to file submissions not later than 21 April; the applicant by 26 May, and an opportunity for the solicitor to make any further submissions by 9 June 2006, a period 3 months after the date of hearing. The solicitor was granted a substantially greater period within which to make submissions, in order to allow for the possibility of periods in which he might be limited in his capacity due to ill health. When no further submissions were received from the solicitor, the Law Society sought to have the matter re-listed for further directions. On 9 August the solicitor was present at the Directions Hearing. The Tribunal directed that the solicitor file his submissions by 23 August, and the Law Society to file any further submissions by 30 August. The solicitor was advised that no further time would be permitted. The hearing date for the substantive proceedings was confirmed to commence on 18 September, and the parties informed that the matter would proceed on that date unless the solicitor's application for permanent stay of proceedings had been granted in the interim. No further submissions were received from the solicitor. 10 On 11 September the Tribunal made an order refusing the solicitor's application for Dismissal or Permanent Stay of Proceedings. That order was communicated to the parties in order to facilitate their preparation for hearing of the substantive proceedings which had been listed for 5 days commencing 18 September 2006. The Tribunal proposed providing written reasons to the parties at a later date. 11 On 14 September 2006 the solicitor sought written reasons pursuant to s. 89 Administrative Decisions Tribunal Act 1997. 12 This matter has a lengthy history. It is now a considerable time since the events that gave rise to the original complaints. For reasons that will appear later in this decision, the Tribunal is satisfied that mere effluxion of time, in this case, does not provide the solicitor with grounds for a permanent stay of proceedings. 13 The essence of the decision to permanently stay proceedings is a determination that the continuation of those proceedings constitute unfairness or injustice of such magnitude, that to allow them to proceed would be an abuse of the Tribunal's process. 14 It is necessary to consider the nature of the complaints and the evidentiary material by which it is proposed to prove those complaints, as well as any potential evidence upon which the respondent may rely. It is well recognized that the duty to ensure procedural fairness is an essential element of the discharge of proper judicial function. The power to stay proceedings permanently should be used sparingly. The applicant for such an order must demonstrate that the continuation of the proceedings is oppressive, and/or unfair to the point where to continue would be contrary to the maintenance of community confidence in the judicial system. 15 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. 16 In determining that it had power to entertain an application for a stay of proceedings, this Tribunal said: 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. [ Law Society of New South Wales v. Khera [2005] NSWADT 277 para.15] 17 It is necessary to look at the grounds of complaint relied upon by the Law Society; and the matters raised by the solicitor as constituting the matters which would deprive him of a fair hearing. 18 The solicitor alleges that the Law Society has caused him severe prejudice which he particularizes as: "For want of prosecution, laches and/or significant delays in investigating then filing the information and/or abuse of the process causing sever (sic) prejudice to the Respondent's defense.(sic)" 19 The solicitor then sets out examples, which may be summarized as: i. Files are missing which include materials that would "establish the Respondent's innocence" ii. The solicitor does not know the whereabouts of former staff members. iii. Various complaints regarding the asserted inadequacy of the investigation undertaken by the Law Society. iv. Allegations that the Law Society persuaded a witness to alter her evidence in a material particular. v. Allegations that the law Society colluded with Mr. Jones, a former partner of the solicitor, and with a former client, Mrs. Narayan, and encouraged the latter to "prosecute" the solicitor in the District Court and in the ADT, and to give false evidence in those proceedings. vi. An allegation that "The Society colluded with Mrs. Narayan and Mr. Jones to 'get' the Respondent." vii. Allegations concerning the conduct of Mr. I Wales of Senior Counsel, in relation to his conduct of the proceedings against the solicitor. Allegations that Mr. Wales engaged in "unfair and improper conduct" That in his submissions Mr. Wales made an allegation which is "blatantly untrue, false, deceitful, dishonest and malicious." viii. The solicitor asserts "The Society has engaged in carrying out threats and vendetta against the Respondent, harassed the Respondent and targeted the Respondent." He particularizes this allegation extensively, by naming a number of members of the Professional Standards Department of the Law Society, with allegations in relation to the conduct of those persons in the course of the investigation of matters relating to the solicitor. ix. The solicitor makes a number of serious allegations against the previous Tribunal, for example, an allegation that those members "lied", and that their conduct has "brought the ADT into disrepute and caused irreparable damage to the ADT." x. Allegations that the Law Society has withheld "important documents which go to the Respondent's defense." In particular, notes made by the Trust Account Inspector, Mr. Howarth. 20 In support of his application for a permanent stay of proceedings, the solicitor also relies upon his poor state of health, which is set out in considerable detail in his affidavits, and supported in some respects by the Medical Report of Dr. Denis Wakefield dated 11 November 2005. 21 Dr. Wakefield is Professor of Pathology and Director of Immunopathology with the South Eastern Sydney Area Health Service. He has treated the solicitor since 1994, when he was diagnosed as suffering from chronic fatigue. In 1998/99 the solicitor developed respiratory problems which have deteriorated over the intervening years, despite various treatments. 22 Under the heading " Present State of Health", Dr. Wakefield says in part: Mr. Khera continues to be severely debilitated as a result of his complex medical problems. In particular he has great difficulty with his fatigue as well as ongoing problems with memory and concentration, sleep disturbance and intermittent despondency. Mr. Khera suffers from chronic fatigue with associated asthma, bronchiectasis and respiratory failure." 23 The Tribunal accepts the diagnoses and prognosis contained in Dr. Wakefield's report. These opinions relate to the solicitor's medical condition as at November 2005. The solicitor's capacity to engage in the pursuit of his profession and in the present legal proceedings, must be judges, taking Dr. Wakefield's opinion into account. 24 Dealing with the issue of the solicitor's capacity to represent himself in proceedings before the Tribunal, Dr. Wakefield says: "I do not think he would be able to carry out this function at this point in time or in the foreseeable future." 25 Dr. Wakefield notes that the solicitor had been admitted to hospital for assessment for possible lung transplant, which, however, he does not believe would alleviate the solicitor's chronic fatigue syndrome. 26 The solicitor's affidavit sworn 6 May 2002, filed on 21 November 2005, sets out his state of health in detail, together with a detailed account of his limited capacity to work. The Tribunal, from the outset, of the hearing of his application, advised him that the Tribunal would adjust the sitting hours to permit him to have such rest as he required. That offer was made at various times throughout the proceedings. In the event, the solicitor managed to sit through the proceedings over 2 days, and give his evidence, with little in the way of extended or additional breaks in proceedings, in order to meet his health requirements. 27 The solicitor has indicated his capacity to work at his professional activities 2 to 3 days per week, for a few hours each day. The Tribunal is satisfied that provided appropriate adjustments are made to hearing days and times, the solicitor is capable of appearing before the Tribunal to deal with the substantive application. 28 The first ground in the application brought by the Law Society is an allegation that the solicitor appeared as a material witness in legal proceedings, and thereafter appeared as an advocate for a party to those proceedings, in contravention of Rule 26 of the Professional Conduct Rules. 29 The solicitor does not dispute either that he appeared as a witness or an advocate. He argues that the evidence he gave was not material to his client's case. 30 Given there is no factual dispute, merely an issue about whether or not the evidence was material to a fact in issue, there can be no unfairness is permitting that matter to go to hearing. Nor is it an onerous matter to deal with, from the point of view of the solicitor's health. 31 Grounds 2, 8 and 9 relate to proceedings involving an action for damages for personal injury in which the solicitor acted for the plaintiff. In the previous proceedings before the Tribunal, counsel involved in that matter was cross examined by the solicitor at some length. The Tribunal is assured that witness is available if required. However, it is open to the solicitor to deal with the matter on the basis of the evidence previously given. Advice given by the solicitor is contained in correspondence, which is available. 32 The Tribunal is unable to see that the solicitor will suffer any unfairness in answering that allegation. Nor that it will constitute a particular burden on his health. 33 Ground 3: the evidence relied upon to substantiate this allegation includes a costs agreement which, it appears, the respondent does not dispute, together with evidence from a former partner of the respondent, and from the client, Mrs. Narayan. 34 The Tribunal is unable to detect any unfairness in this ground proceeding. Again, the solicitor can choose to rely upon evidence previously adduced from the former client, but may choose to have that person made available for cross examination. 35 The fourth ground is an allegation that upon settlement of a purchase of land, the solicitor failed to obtain a deed removing a covenant affecting the right of the registered proprietor to erect a building on the subject land. That document was in the possession of the vendor's solicitors. There is a dispute between the solicitor and his former clients as to the circumstances in which the conveyance was settled without that document being obtained. Both the solicitor and his former client gave evidence concerning this matter at the earlier Tribunal hearing. The vendors solicitors file was produced to the Tribunal. That material is available. The transcript of the client evidence is available in the event that she cannot be located, or should the solicitor prefer to proceed upon the transcript. 36 Counts 5 & 6 relate to a matter involving failure to pay counsels fees after receiving funds from the client for that purpose. There is documentary evidence relating to the rendering of, and payment of statements of account, and the failure to pay counsel. The whereabouts of the client involved in that matter is known to the solicitor, who has consistently chosen not to divulge his address. In evidence the respondent concedes that he has the capacity to contact that client, Mr. Punja. 37 The Tribunal is satisfied that no unfairness or injustice will be imposed upon the respondent if that matter is litigated before the Tribunal. 38 The 7th ground concerns allegations of overcharging arising out of the factual matrix of other matters of complaint. Whether or not there has been overcharging will emerge from the material adduced in relation to those matters. It is not a matter which gives rise to unfairness or prejudice to the respondent. It is simply a matter to be determined consequent upon findings of fact emerging from other complaints. 39 Having regard to the totality of the matters upon which the Law Society relies, the Tribunal is satisfied that nothing inherently oppressive or unfair emerges from that material. Much of the documentary evidence is not in dispute. There has been no suggestion that recollections of the relevant events have been diminished in an appreciable manner, or to an extent that a fair hearing of the issues in dispute cannot be conducted before the Tribunal. 40 The Tribunal will take into account the solicitor's health problems, and accommodate any needs he has for extra breaks from proceedings. Additional days will be set aside for the hearing in order to accommodate his needs. 41 So far as the numerous matters of complaint raised by the solicitor are concerned: Those against the previous Tribunal are not relevant to the current proceedings. 42 The solicitor's serious allegations against Mr. I Wales SC, appear to arise from the solicitor's subjective assessment of the conduct of the proceedings. It is not difficult in such circumstances for a party to advance general recriminatory comments on the conduct of opposing parties. Insofar as they are general, they can be dealt with only generally. When assessed objectively, the Tribunal is satisfied that those generalised criticisms and aspersions should be rejected. The Tribunal finds that there has been nothing in the manner in which Mr. Wales performed his duties as Senior Counsel for the Law Society, deviating from the proper, fair and professional standards of conduct. 43 The difficulty with the balance of the solicitor's complaints, is also the generalized and scatter-gun character of those complaints. Nothing is identified that demonstrates an inability in the solicitor to deal with the specific matters the subject of complaint. For example only, allegations of collusion between the Law Society and witnesses, does not overcome the evidentiary material that the Law Society proposes to tender at hearing. 44 The role of the Tribunal is to deal with the evidentiary material, whether documentary or oral, as it emerges; to determine what facts are proved by that evidence; and thereafter apply the relevant law to the proved facts. Nothing raised in the solicitor's voluminous complaints has persuaded the Tribunal that a state of affairs exists which would prevent the matter unfolding in that fashion. 45 Whilst it is a considerable time since the events occurred which give rise to these proceedings, there has been a vast amount of correspondence and evidence concerning those events. Insofar as there has been a considerable lapse of time since the matters first came to the attention of the Law Society, a perusal of the history of the matter, and its history before the Administrative Decisions Tribunal; the Court of Appeal, and back before the Administrative Appeals Tribunal, does not demonstrate a failure to conduct the Law Society case in a timely fashion. There have been substantial delays occasioned by the Solicitor, the majority of which arise from his asserted inability to comply with procedural matters, consequent upon his state of health. The Tribunal is not persuaded that the period that has elapsed since first these matters were raised, warrants a stay of proceedings. 46 The Tribunal orders accordingly that the matter should proceed to hearing. The respondent's application for Dismissal or Permanent Stay of the Law Society's application is refused.