CITATION: Council of the Bar Association of NSW v Fitzgibbon [2010] NSWADT 291 DIVISION: Legal Services Division APPLICANT Council of the New South Wales Bar Association PARTIES: RESPONDENT David Claude Fitzgibbon FILE NUMBER: 092042 HEARING DATES: 16 and 17 November 2010 SUBMISSIONS CLOSED: 17 November 2010 DATE OF DECISION: 7 December 2010 BEFORE: Norton S, SC - Judicial Member; Wright R, SC - Judical Member; Fitzgerald R - Non-Judicial Member CATCHWORDS: Disciplinary action unsatisfactory professional conduct – strike out application LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Legal Profession Act 2004 CASES CITED: Council of the New South Wales Bar Association v Archer (No. 2) [2004] NSWADT 78 Council of the New South Wales Bar Association v Bland [2010] NSWADT 34 APPLICANT C A Webster, Barrister REPRESENTATION: RESPONDENT M S Jacobs QC 1. Interlocutory application dismissed ORDERS: 2. Costs of the application be reserved 3. Matter be relisted on 2 February 2011 at 10am for further directions and the allocation, if appropriate, of a hearing date for the substantive application. REASONS FOR DECISION APPLICATION FOR ORIGINAL DECISION 1 On 18 December 2009 the Council of the New South Wales Bar Association ("the Applicant") filed in the Tribunal an application for original decision which sought findings that David Claude Fitzgibbon ("the Respondent") had been guilty of unsatisfactory professional conduct. The application sought consequential orders and contained two grounds. In brief the first ground was that the Respondent prepared various written submissions on behalf of Mr Bernard Hardt who was an Appellant in proceedings in the Court of Criminal Appeal and these submissions failed to reach a standard of competence and diligence that could be expected by a member of the public and breached the Respondent's duty to the Court and to his client. 2 Ground 2 related to oral submissions made by the Respondent when the matter was listed for hearing in the Court of Criminal Appeal on 29 November 2007. Again it is alleged that those submissions failed to reach a standard of competence and diligence that could be expected by a member of the public and were in breach of the Respondent's duty to the Court and to his client. 3 The Application for Original Decision contained background narrative and particulars with respect to each ground. 4 The Respondent has filed three replies to that Application for Original Decision. The first was received at the Tribunal on 18 May 2010, the second on 5 August 2010 and the third or further amended reply on 17 August 2010. 5 The Application for Original Decision was supported by the Affidavit of Philip Alan Selth affirmed 25 September 2009. 6 After a number of direction hearings the matter was listed for hearing on 16 and 17 November 2010. The present application 7 On the first morning of the hearing the Respondent field in Court an application requesting that the Application for Original Decision be struck out. 8 By way of explanation of the late service of this application the Respondent submitted that because of changes in legal representation the solicitors now appearing for the Respondent did not receive all the documentation in the matter until late on Friday 12 November 2010. 9 The strike out application did not refer to any provision under which it was made but counsel for the Respondent accepted that the application was based on section 73(5)(g)(ii) of the Administrative Decisions Tribunal Act 1997 (NSW) ("the ADT Act"). That section provides: "The Tribunal: … (g) May dismiss at any stage any proceedings before it in any of the following circumstances: ... (ii) If the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance." 10 It was accepted by the parties that the Tribunal had the power to make such a determination in the present case and the Applicant acknowledged that it was in a position to deal with the strike out application during this hearing. It was also agreed by the parties that the hearing of the substantive matter could not, for a number of reasons, be completed within the two days presently fixed for the hearing, 16 and 17 November 2010. In these circumstances, the Tribunal determined that it would hear the strike out application and in so doing would follow a procedure similar to that followed in Council of the New South Wales Bar Association v Archer (No. 2) [2004] NSWADT 78 in that we should take the case as alleged in the Application for Original Decision against the Respondent at its highest. Further, as the Application for Original Decision relates to an allegation of unsatisfactory professional conduct, section 73 of the ADT Act provides that the rules of evidence do not apply and the Tribunal is to act with as little formality as the circumstances of the case permit and to act as quickly as practical. The Strike Out Application 11 The Respondent argued two grounds on which he said we should strike out the Application for Original Decision. 12 The first is that the application was filed out of time in contravention of Section 552 of the Legal Profession Act 2004 (NSW) ("the LPA"). 13 The second ground was that the allegations made against the Respondent as particularised could not as a matter of law amount to unsatisfactory professional conduct. 14 The Respondent tendered certain evidence in relation to the timing of various decisions by the Legal Services Commissioner and the Bar Council in relation to the Respondent as well as evidence going to other matters. 15 In relation to the evidence on the strike out application, the Respondent also submitted that the onus was on the Applicant to show it had evidence capable of supporting the grounds of the Application for Original Decision and it had failed to discharge that onus. We do not accept this submission. In an application relying on s 73(5)(g)(ii) of the ADT Act, the moving party cannot seek to argue that there is no evidence to support the grounds set out in the Application for Original Decision simply because the Applicant on the Application for Original Decision has not adduced, at the hearing of the application under s 73(5)(g)(ii), all the evidence upon which it intends to rely at the substantive hearing. To adopt such an approach would be inefficient and would potentially require the Applicant to prove its case twice: once on a "strike out" application and once at the substantive hearing. 16 As the Application for Original Decision concerns allegations of unsatisfactory professional conduct it is necessary to consider what constitutes conduct of that nature. Unsatisfactory professional conduct 17 Section 496 of the Act defines unsatisfactory professional conduct as follows: "Includes conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner". 18 The legislative history of this provision was considered in detail in New South Wales Bar Association v Bland [2010] NSWADT 34 at paragraphs 185 to 197. The definition in Section 496 is similar to the definition contained in Section 123 of the Legal Profession Act 1987. Prior to the insertion of this concept into the legislation, conduct of lawyers falling short of serious professional misconduct, such as delay and negligence, could not be subject to disciplinary action. 19 Section 496 is contained in Chapter 4 of the Act. One of the purposes of that Chapter is: "(b) To promote and enforce the professional standards, competence and honesty of the legal profession". 20 Unsatisfactory professional conduct includes conduct which falls short of the requisite standard of competence and diligence but is not limited, by the terms of the Act, to such conduct. First Ground: Is the application out of time? 21 Section 552 of the Act provides as follows: "(1) A disciplinary application may be made to the Tribunal at any time within 6 months after the Council or Commissioner decides that proceedings be commenced in the Tribunal with respect to the complaint concerned. (2) Despite subsection (1), the Tribunal may, on application in writing by the Council or the Commissioner, as the case may require, extend time for making disciplinary application. ... (6) For the purposes of subsection (1), a decision that proceedings be commenced is made when: (a) The Council or Commissioner decides that there is a reasonable likelihood that the legal practitioner concerned will be found by the Tribunal to have engaged in unsatisfactory professional conduct or professional misconduct, as referred to in Section 537(2) (decision of the Commissioner or Council after investigation) or Section 538(1) (decision of the Commissioner or Council without investigation). (b) The commissioner decides to commence proceedings in the Tribunal against the legal practitioner concerned under Section 545(1)(h) (decision of commissioner on review). (7) An official record or notification of a decision referred to in subsection (6)(a) or (b) and stating the date the decision was made is evidence that the decision was made and of the date the decision was made." 22 Section 537 provides: "(1) After completion of an investigation of a complaint against an Australian legal practitioner, the Commissioner or Council must: (a) Commence proceedings in the Tribunal under this Chapter, or (b) Dismiss the complaint under this part, or (c) Take action under Section 540 (summary conclusion of complaint procedure by caution, reprimand, compensation order or imposition of conditions). (2) Unless Section 540 (summary conclusion of complaint procedure by caution, reprimand, compensation order or imposition of conditions) applies, the Council or the Commissioner must commence proceedings in the Tribunal with respect to a complaint against an Australian legal practitioner if satisfied there is a reasonable likelihood that the practitioner would be found by the Tribunal to have engaged in unsatisfactory professional conduct or professional misconduct. (3) Nothing in this section affects Section 512 (withdrawal of complaints)." 23 Section 540 provides: "(1) This section applies if: (a) Either: (i) The commissioner or a Council completes an investigation of a complaint against an Australian legal practitioner, or (ii) the report of an independent investigator is given to the Commissioner, and (b) The Commissioner or Council (as the case requires): (i) Is satisfied that there is a reasonable likelihood that the practitioner would be found by the Tribunal to have engaged in unsatisfactory professional conduct (but not professional misconduct), and (ii) Is satisfied that the practitioner is generally competent and diligent, and (iii) Is satisfied that the taking of action under this section is justified having regard to all the circumstances of the case (including the seriousness of the conduct concerned and to whether any other substantiated complaints have been made against the practitioner. (2) The Commissioner or Council may do any or all of the following: (a) Caution the practitioner, (b) reprimand the practitioner (c) Make a compensation order under Part 4.9 if the complainant requested a compensation order in respect of the complaint, (d) Determine that a specified condition be imposed on the practitioner's practising certificate. (3) Failure to attend as required by the Commissioner or Council to receive a caution or reprimand is capable of being professional misconduct. (4) If action is taken under subsection (2), no further action is to be taken under this Chapter with respect to the complaint. (5) If the Commissioner or Council decides to reprimand or make a compensation order against an Australian legal practitioner under this section, or that a condition be imposed on an Australian legal practitioner's practising certificate under this section, the practitioner may apply to the Tribunal for a review of the decision. (6) If the Commissioner determines that a specified condition be imposed on a practising certificate, the appropriate Council is required to impose and maintain the condition. The condition may be amended, suspended, reinstated or revoked with the concurrence of the Commissioner." 24 The Respondent submitted that a decision referred to in s 552(6)(a) had been made both by the Council and the Commissioner longer than 6 months before 18 December 2009 when the Application for Original Decision was filed. 25 In relation to the decision by the Legal Services Commissioner, the Respondent relied on a letter from the Legal Services Commissioner dated 17 January 2008 to Miss Anne Sinclair, Director Professional Conduct New South Wales Bar Association as establishing that a decision for the purposes of s 552(6)(a) had been made as early as 17 January 2008. Reliance was placed on the second paragraph which reads: "The Commissioner has now initiated a complaint in relation to Mr Fitzgibbon's conduct. A copy of his record of decision pursuant to Section 504 of the Act along with the papers referred by the Registrar of the Court of Criminal Appeal are enclosed". 26 The Tribunal was then referred to that record of decision and in particular to the opening paragraph of that document which provided: "(i) Stephen Mark, Legal Services Commissioner, hereby determines to initiate the following complaints in accordance with Section 504 of the Legal Profession Act, 2004 against Mr David Claude Fitzgibbon, barrister". 27 The first complaint alleged that the Respondent had failed to reach a standard of competence and diligence with respect to drafting of submissions and appearing in the Court of Criminal Appeal in the matter of Hardt v Environmental Protection Authority [2007] NSWCCA 338. Complaint two alleged that the Respondent had failed his duty to the Court, relying on the same particulars. Ground three alleged the barrister had failed his duty to the client and relied on the same particulars. Complaint four alleged the barrister had been grossly negligent in his preparation and presentation to the Court of Criminal Appeal. 28 The Respondent also relied on a record of decision modifying the complaint dated 27 April 2009. That modified complaint contained two grounds. The first relating to the preparation of written submissions and the second relating to oral argument in the Court of Criminal Appeal. 29 The Respondent submitted that the only reasonable inference to be drawn from those documents was that that the Legal Services Commissioner had decided that there was a reasonable likelihood of a finding of unsatisfactory professional conduct being made by the Tribunal. Otherwise, it was said, the Commissioner would not have been justified in initiating the complaints. Thus, it was argued that on or about 17 January 2008 the Commissioner had decided by implication that: "There was a reasonable likelihood that the legal practitioner concerned will be found by the Tribunal to have engaged in unsatisfactory professional conduct". (Section 552(6)(a)). 30 As to the decision of the Bar Council relied upon by the Respondent, he referred the Tribunal to the report to the Bar Council from the Professional Conduct Committee dated 23 October 2008 (Exhibit AP2). In particular our attention was directed to paragraph 50 of that report where it was noted: "The Committee remains of the view that the conduct, preparation and presentation of appeal was so deficient that it constitutes conduct that is capable of amounting to conduct that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner and to the fact that the Committee recommended". On 23 October 2008 the Bar Council considered the Committee's report and resolved that: "Based on the material then available to it, the Bar Council was minded to form the view that there is a reasonable likelihood that Fitzgibbon will be found by the Administrative Decisions Tribunal to have engaged in unsatisfactory professional conduct". 31 Reference was also made to a supplementary report to the Bar Council dated 12 October 2009 which reviewed further submissions made by the Respondent before concluding "Nothing in the further submissions received from Fitzgibbon suggests to the Committee any reason why the Bar Council should take a different view of the conduct now than was reflected in the Bar Council's "minded to" resolution made on 23 October 2008. The Committee recommends the Bar Council resolve to commence proceedings against Fitzgibbon in the terms of the disciplinary application provided to Fitzgibbon (see Annexure "C") subject only to the addition of the compensation order now sought by the LSC". 32 On 29 October 2009 the Bar Council resolved that the modified complaint against the Respondent be referred to the Administrative Decisions Tribunal pursuant to Section 537(2) of the Legal Profession Act 2004 on the basis that, after completion of an investigation of the modified complaint, the Council is satisfied that there is a reasonable likelihood that Fitzgibbon will be found by the Tribunal to have engaged in unsatisfactory professional conduct (Annexure "D" to the Affidavit of Philip Alan Selth affirmed 15 December 2009). 33 On behalf of the Respondent it was submitted that the Applicant had made a decision within the meaning of Section 552(6) when it made the resolution referred to above on 23 October 2008. Submissions of the Applicant 34 On behalf of the Applicant it was submitted that what occurred up until the resolution made on 29 October 2009 by the Council of the New South Wales Bar Association was the initiation of a complaint and the carrying out of an investigation in accordance with Chapter 4 of the Act. It was submitted that not only did the Bar Council not make the relevant decision on 23 October 2008 it would have been improper of them to make such a decision without giving the respondent a further opportunity to be heard. In support of this submission the Tribunal was referred to the decisions of Barwick v Law Society of New South Wales [2000] 74 ALJR 419 and Murray v Legal Services Commissioner [1999] NSWCA 70. 35 The Respondent submitted that those cases were of little assistance as they related to the Legal Profession Act 1987 and not the current Act, the LPA. Conclusion 36 While acknowledging the wording of the 2004 Act differs in some respect from the wording of the earlier Act, we find that the Act still allows the Commissioner and/or the Applicant to investigate complaints in the manner they have in this case. 37 Section 552(6)(a) specifically refers to the relevant decision being made when "the Council or Commissioner decides that there is a reasonable likelihood that the legal practitioner concerned will be found by the Tribunal to have engaged in unsatisfactory professional conduct or professional misconduct, as referred to in section 537 (2) (Decision of Commissioner or Council after investigation) …" (emphasis added). Thus it is not every decision made along the path by either the Commissioner or the Applicant which results in the time limit in Section 552(1) commencing to run. It is only a decision "as referred to in section 537(2)". It might be noted here that the other decision referred to in s 556(2)(a), namely a decision under s 538(1) of the LPA is not relevant in the present case. In all the circumstances, we think it clear that the Commissioner's decisions and the decisions of the Bar Council prior to 29 October 2009 were not intended to be, nor were they, decisions as referred to in s 537(2). 38 The Commissioner's decisions sought to be relied upon by the Respondent were on a fair reading of the documents decisions to initiate a complaint and then to modify a complaint. The document suggests no more than that the Commissioner had made a prima facie decision that conduct had occurred which may amount to unsatisfactory professional conduct and which warranted further investigation. We reject the submission that the only or most reasonable inference available is that the Commissioner had decided that there was a reasonable likelihood that the legal practitioner concerned would be found by the Tribunal to have engaged in unsatisfactory professional conduct. 39 The Council's resolution of 26 October 2008 on its face uses the words "is minded to". According to the Macquarie Dictionary this means "inclined or disposed" to. The use of this expression indicates that a final decision had not in fact been made. Further, the resolution of the Bar Council on 26 October 2008 contained two parts. A report of the first part is set out at paragraph 31 above. The second part contained a further resolution whereby the Council expressly resolved "to adjourn further consideration of the matter until" certain further steps including giving the Respondent a further opportunity to provide submissions had been taken. Read as a whole the resolution of 23 October 2008 was but a step in the investigation process and it was quite appropriate for the Applicant to give the Respondent the opportunity to make further submissions prior to making a determination, in effect, that proceedings should be commenced. 40 It should also be noted at this point, that even if the Commissioner or the Applicant forms an opinion that the Tribunal may find a practitioner to have engaged in unsatisfactory professional conduct, s537 specifically reserves the right to bring the complaint to a summary conclusion in accordance with s540 of the Act. 41 For these reasons, we find that a decision that proceedings be commenced in the Tribunal with respect to the complaint or complaints concerned was not made prior to 29 October 2009 and accordingly the Application for Original Decision was not filed out of time. We dismiss the strike out application in so far as the first ground relied upon by the Respondent is concerned. Second Ground: Are the matters alleged in the Application for Original Decision capable in law of constituting unsatisfactory professional conduct? 42 The Respondent in written and oral submissions argued that the definition of unsatisfactory professional conduct in Section 496 required that a practitioner's conduct must fall below the appropriate standard of both competence and diligence before it could at law amount to unsatisfactory professional conduct. 43 The Further Amended Reply filed on 17 August 2010 admitted that the Outline of Submissions drafted by the Respondent and the oral submissions made in the Court of Criminal Appeal failed to reach a standard of competence that a member of the public was entitled to expect of a reasonably competent Australian barrister. In support of the present application it was submitted that there was no suggestion that the Respondent had not been diligent and therefore the Application for Determination should be struck out. It was argued that to do otherwise would be to read "and" as if it were "or". 44 Our attention was directed to the second reading speech presented to the New South Wales Legislative Assembly by the Attorney General on 7 December 2004: "Professional misconduct is defined in Clause 497 as conduct that involves a substantial or consistent failure to reach or maintain a reasonable standard of competence or diligence occurring in the practice of law. Unsatisfactory professional conduct is the lesser offence and is defined in Clause 496 as conduct occurring in connection with the practice of law that falls short of the standard of the competence and diligence that a member of the profession is entitled to expect from a reasonably competent legal practitioner...". 45 The alteration between "or" with respect to professional misconduct and "and" with respect to unsatisfactory professional conduct was said to be telling. 46 It was further argued that the Application for Original Decision should be looked at paragraph by paragraph and that as no one paragraph could, by itself, be said to describe conduct which was beneath the standard of competence and diligence required then the application was defective and should be struck out. 47 In its submissions on these points the Applicant argued that the relevant standard of conduct required both competence and diligence and that failure to achieve either one of these could be sufficient to constitute unsatisfactory professional conduct. Further, in relation to the form of the Application for Original Decision and whether it should be read as a whole or paragraph by paragraph, the Applicant pointed out that the Respondent had been able to prepare three replies without finding the need to request any further particulars. It was stressed that the purpose of particulars generally is to make the other party aware of the nature of the case he or she is required to meet and the present application was sufficient for those purposes. The Tribunal was referred to the provisions of Section 73 of the ADT Act and the fact that the rules of evidence do not apply to proceedings with respect to unsatisfactory profession conduct. Counsel for the Applicant pointed out that the definition of unsatisfactory professional conduct in Section 496 of the Act is an inclusive one and maintained that it was inappropriate to look at each paragraph of the application in isolation. Taken as a whole the information set out in grounds 1 and 2 of the application for original decision could as a matter of law amount to unsatisfactory professional conduct. Conclusions 48 Despite the words used in the second reading speech the definition of unsatisfactory professional conduct in Section 496 and the definition of professional misconduct in Section 497 both use the expression "reasonable standard of competence and diligence". 49 As has been noted above, the definition of "unsatisfactory professional conduct" includes: "conduct … that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner". 50 We do not accept that in order to have a proper allegation of unsatisfactory professional conduct falling within this definition, it is necessary to allege both incompetence and lack of diligence. What the definition refers to is a standard of competence and diligence. That is a single standard which has two components. If either component is missing, there has been a failure to achieve the required standard. 51 For the Respondent's argument to be successful the definition would have to read as if the words "falls short of the standard of competence and diligence" were replaced by the words "falls short of both the standard of competence and the standard of diligence". We can see no reason to read the definition in this manner especially given the protective function of the Act. To read the definition in this way would suggest that the public is not entitled to expect both competence and diligence from an Australian legal practitioner but rather should be satisfied with incompetent diligence or competence unaccompanied by diligence. Such an approach would not be sound. 52 We should also note here that the definition found in s496 is inclusive and it has been held that conduct that does not fall within that definition can still amount to unsatisfactory professional conduct. Thus, even if the Respondent's argument on the construction of the definition were accepted, it would not follow that the conduct alleged in the Application for Original Decision could never amount to unsatisfactory professional conduct. 53 As to the form of the Application for Original Decision and whether it should be read paragraph by paragraph, we accept that some of the information listed under the heading "Particulars" is really no more than factual background or a narrative of events. Read as a whole, however, the document contains sufficient allegations which, if made out by the evidence, could lead to a finding of unsatisfactory professional conduct. 54 We can see no reason why each paragraph should be read separately and struck out if standing alone it is not sufficient to support such a finding. It should be noted that under the heading "Ground 1" the relevant subparagraphs are linked by the conjunction "and" which forcefully indicates that the allegations in subparagraphs 1.1 to 1.5 were intended to read as constituting unsatisfactory professional conduct when taken together rather than separately. Similarly, on a fair reading of the Application for Original Decision it does not appear that subparagraphs 1.31 to 1.52 were intended to be separate allegations of unsatisfactory professional conduct but rather were to be taken together and cumulatively as matters which rendered the preparation and filing of the written submission in question unsatisfactory professional conduct. Essentially the same observations can be made concerning the allegations under the heading "Ground 2" which concern the making of oral submissions in the Court of Criminal Appeal. 55 All of this is not to say that the Tribunal did not find considerable force in some of the submissions made in this regard by counsel for the Respondent. The Tribunal accepts that the question of whether or not such conduct may be found eventually to constitute unsatisfactory professional conduct is a difficult one and will involve questions of judgment and degree upon which minds may reasonably differ. We accept that we have not been referred to any case where mere incompetence has been found to amount to unsatisfactory professional conduct. Consideration of those matter must, however, in our view, await the final hearing at which the evidence of what occurred, its context and consequences can be fully examined. We cannot find that as a matter of law such conduct as is alleged in the Application for Original Decision could never amount to unsatisfactory professional conduct. 56 Accordingly, the application to strike out on the basis that the Application for Original Decision fails to allege matters that could ever amount to unsatisfactory professional conduct should also be dismissed. Conclusion and Further directions 57 Consequently, the Tribunal orders that the Respondent's strike out application be dismissed. The costs of this application will be reserved. 58 The matter is relisted on 2 February 2011 at 10am for further directions and the allocation, if appropriate, of a hearing date for the substantive application. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.