CITATION: Carney v Council of the New South Wales Bar Association [2009] NSWADT 275 DIVISION: Legal Services Division APPLICANT 1. Niall M Carney 2.Christopher M Adamson PARTIES: RESPONDENT 1. Council of the New South Wales Bar Association 2. Niall M Carney FILE NUMBER: 062033, 072031 HEARING DATES: 23 and 24 February 2009 SUBMISSIONS CLOSED: 13 March 2009 DATE OF DECISION: 3 November 2009 BEFORE: ; Robberds L QC- Judicial Member; Bubniuk L - Non-Judicial Member CATCHWORDS: Disciplinary proceedings - alleged breach Rule 35 - NSW Barristers' Rules - Council NSW Bar Association reprimand - review - setting aside Tribunal power to remit to administrator - publication of orders on website. Legal Practitioners Act 2004 LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 New South Wales Barristers' Rules CASES CITED: Clyne v. New South Wales Bar Association (1966) 104 CLR 186 The Port of Melbourne Authority v. Anshun Pty. Ltd. (1980-81) 147 CLR 589. APPLICANT J Horowitz, barrister for Niall M Carney REPRESENTATION: Mr Adamson in person RESPONDENT G Gregg, barrister 1. The decision of the Council of the New South Wales Bar Association made on 30 November 2006 that Niall Matthew Carney be reprimanded is set aside. ORDERS: 2. The Tribunal makes no order as to costs except that leave is granted to any party to list the matter before the Tribunal within 14 days on the question of costs. 3. The Council of the New South Wales Bar Association publish the above orders on its website within 14 days of the publication of these orders, together with a link, from the publication on that website of the resolution made on 30 November 2006 that Niall M Carney be reprimanded, to the publication of these orders. REASONS FOR DECISION 1 On 29 December 2006, the applicant in matter 062033, Niall M Carney, filed an Application for a Review of a Reviewable Decision being a decision made by the respondent Council of the New South Wales Bar Association ("the Bar Council) at a meeting on 30 November 2006, which decision was communicated to the applicant by letter dated 18 December 2006. 2 The initiating complaints were made by Mr C Adamson to the Legal Services Commissioner ("the Commissioner") who referred them to the Bar Council. 3 At the meeting on 30 November 2006, the Bar Council considered two complaints made against the applicant by Mr Adamson [the applicant in matter 072031] on 10 March 2006 [the first complaint] and 12 April 2006 [the second complaint]. 4 The Bar Council resolved to dismiss the first complaint. 5 The second letter of complaint contained the following allegations: "The affidavits contain a series of irrelevant, scandalous and vexatious unsubstantiated and/or irrelevant allegations including bankruptcy, fraud, duress, undue influence and forgery." "The affidavit sworn 7 April 2005 has little or no relevance to the alleged set off agreement being the basis of the plaintiff's claim in Forster Local Court…" "…there is also an allegation that the defendant is intimidating the solicitor for the plaintiff…by making allegations to the Law Society about his conduct." "Indeed, much of the affidavits material above appears to be not for the purpose of providing evidence on relevant issues but for the sole purpose defaming the defendant and damaging the defendant's credit." 6 The complaint was summarised by Mr Adamson thus: "The specific complaint is that Counsel has breached the following NSW Barrister's Rules: 1. Rule 35. Making allegations or suggestions under privilege against the defendant (a) mot(sic) reasonably justified by the material then available; (b) not appropriate for the robust advancement of the client's case on its merits; and (c) made principally in order to harass or embarrass the Defendant; and (d) made principally in order to gain some advantage for the client out of Court namely to influence and bias the Magistrate against the Defendant in committal proceedings against the defendant which it was known would be heard by the same Magistrate. 2. Rule 36: Drawing or settling an affidavit and submissions alleging criminality, fraud or other serious misconduct without having any reasonable grounds for that: (a) The factual material available to the barrister proper basis for the allegations; and (b) The allegations will be material and admissible in the case as an issue or to credit as the nature of the document properly requires. In addition to seeking disciplinary action be taken against Mr Carney, I am also seeking compensation from the barrister for costs and expenses and for personal injury and distress caused to me by the conduct." 7 The complaint was investigated by the Professional Conduct Committee [PCC] which recommended to the Bar Council that in respect of the second complaint: "In the above circumstances, the Committee is of the view that Carney, by putting the contents of the affidavit of Mr Ede sworn on 7 April 2005 in the Supreme Court proceedings before the Local Court on 18 January 2006 and 9 March 2006, breached Rule 35 of the New South Wales Barristers' Rules (and, more particularly, subparagraphs (b),(c ),and/or(d) of Rule 35)." [paragraph 72 PCC Report] 8 Rule 35 New South Wales Barristers' Rules provides: " A barrister must, when exercising the forensic judgments called for throughout the case, take care to ensure that decisions by the barrister or on the barrister's advice, to invoke the coercive powers of a court or to make allegations or suggestions under privilege against any person: (a) are reasonably justified by the material already available to the barrister; (b) are appropriate for the robust advancement of the client's case on its merits; (c ) are not made principally in order to harass or embarrass the person; and (d) are not made principally in order to gain some collateral advantage for the client or the barrister or the instructing solicitor out of court." 9 In respect of the second complaint, the Bar Council resolved that : "…the Bar Council is satisfied there is a reasonable likelihood that Carney will be found by the Legal Services Division of the Administrative Decisions Tribunal to have engaged in unsatisfactory professional conduct." 10 Pursuant to s 540(2)(b) of the Legal Profession Act 2004, [LPA 2004] on 30 November 2006, the Bar Council resolved that Mr Carney be reprimanded and that the disciplinary action against him be published on the website of the New South Wales Bar Association in the following terms: On 30 November 2006 the Bar Council considered a complaint made against Niall Matthew Carney that he breached New South Wales Barristers' Rule 35 (b), (c) and/or (d). On 30 November the Bar Council resolved it is satisfied: (i) there is a reasonable likelihood that Carney would be found by the Administrative Decisions Tribunal to have engaged in unsatisfactory professional conduct (but not professional misconduct); (ii) that Carney is generally competent and diligent; and (iii) the taking of action under s540 is justified having regard to all the circumstances of the case (including the seriousness of the conduct concerned) and that no other substantial complaints have been made against Carney. 11 Section 540 [LPA 2004] relevantly 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) …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) … (b) reprimand the practitioner, 12 Following a finding that there is a reasonable likelihood that the practitioner would be found by the Tribunal to have engaged in unsatisfactory professional conduct, and provided it is satisfied as to the requirements of section 540 1 (b) (i)-(iii), the Bar Council is empowered to summarily dispose of complaints by caution, reprimand or compensation order. 13 The applicant sought a review on the grounds that the Bar Council decision had been made prematurely; that it was against the evidence and the weight of the evidence; and the full circumstances had not been investigated. 14 On 12 September 2007, Mr Adamson filed an application pursuant to s 67 (4) Administrative Decisions Tribunal Act 1997 [ADT Act] seeking to be joined as a party to the proceedings on the grounds that he was the complainant in the proceedings before the Bar Council; and that "The applicant (sic) own interests including his own reputation are likely to be affected by this decision and the proceedings .." 15 Section 67 of the ADT Act relevantly provides: (2) The parties to proceedings before the Tribunal for a review of a reviewable decision are: (a) any person who, being entitled to do so, has duly applied to the Tribunal for a review of the decision, and (b) the administrator who made the decision, and (e) any person specified by or under any enactment as a party to the proceedings. 16 Section 559 of the LPA 2004 relevantly provides: (2) The complainant is entitled to appear at the hearing in respect of the following aspects: (a) those aspects of the hearing that relate to a request by the complainant for a compensation order, (b) without limiting paragraph (a), those aspects of the hearing that relate to a review of decision made under section 540 (Summary conclusion of complaint procedure by caution, reprimand, compensation order or imposition of conditions) to reprimand or make a compensation order against the practitioner, (5) Any person who appears at a hearing (otherwise than as a witness) is taken to be a party to the proceedings concerned. 17 The combined effect of those sections provided legal sanction for Mr. Adamson to be joined as a party to the proceedings as of right. 18 On 5 March 2008 the Tribunal ordered that Mr Adamson be joined as a party to the proceedings. He was, however, advised that his participation in the proceedings would be limited, and would not extend, inter alia, to issues concerning his reputation, or any other issues not relevant to the proceedings between Mr Carney and the Bar Council. 19 There were a number of Directions hearings primarily concerned with issues of access to documents; the provision of further and better particulars, and the joinder of Mr. Adamson. The Tribunal is satisfied that Mr Carney's concerns regarding the dissemination of some sensitive information, had validity in the context of the ongoing litigation between Mr Adamson and Mr Ede, and no criticism is made of Mr Carney in that regard. 20 On 20 January 2009 the affidavit of Niall Matthew Carney, sworn that day, was filed in the Tribunal. On 27 January 2009 the applicant's outline of submissions was filed in the Tribunal. 21 Pursuant to the obligations imposed on it by S. 58 ADT Act the respondent filed all relevant documentation in its possession. Section 58 relevantly provides: (1) An administrator whose reviewable decision is the subject of an application for review to the Tribunal must, within 28 days after receiving notice of the application, lodge with the Tribunal: (a) a copy of any statement of reasons given to the applicant under section 49 (or, if no such statement was given to the applicant, a statement of reasons setting out the matters referred to in section 49 (3)), and (a1) a copy of any statement of reasons for a decision in an internal review conducted in respect of the reviewable decision, and (b) a copy of every document or part of a document that is in the possession, or under the control, of the administrator that the administrator considers to be relevant to the determination of the application by the Tribunal. 22 Submissions from the respondent note that although Mr Carney provided an initial response to the complaint by letter to the Bar Association dated 29 June 2006, he failed to respond to the draft report of the PCC which was forwarded to him under cover of a letter dated 18 October 2006. 23 The Tribunal accepts Mr Carney's explanation that he was absent from chambers and did not receive the draft report until after the expiration of the period stipulated within which any response was to be received by the Bar Association, at which point he believed he was precluded from responding. 24 The Tribunal is empowered to deal with this matter pursuant to section 63 ADT Act. 25 In dealing with this review the Tribunal was referred to material in the following additional proceedings: (a) Forster Local Court case Ede v. Adamson No 95 of 2005; (b) Criminal charges (133) against Mr Adamson listed in the Forster Local Court, being charges laid following an investigation of complaints made by Mr Ede. ( c) Supreme Court Equity Division case CAN 097590 819 Pty Limited v. Ede No 6285 of 2003. 26 These matters had their genesis in the breakdown of a relationship between Kevin John Ede, a builder resident in Queensland, and Christopher Michael Adamson, a qualified solicitor. 27 The two men met in 1994 at Coolangatta. At that time Mr Ede was involved in litigation with a finance company, Esanda. Mr. Adamson did not hold a current practising certificate after becoming bankrupt pursuant to a business venture. It appears that Mr Adamson volunteered to assist Mr Ede with his litigation in return for certain benefits. 28 The matrix of facts and allegations found by the PCC to be relevant to its consideration of the complaints from Mr Adamson is set out in paragraphs 34-41 of the PCC report. Those findings were extracted from material filed in the Equity Division of the Supreme Court of New South Wales (No. 6285 of 2003) in proceedings commenced by Mr Adamson. Those findings, somewhat abbreviated were: In relation to the allegations made by Mr Adamson in Amended Statement of Claim (dated 20 February 2006): - 1995: Ede ("E") & Adamson ( "A") entered into a deed pursuant to which A acquired an interest in real property owned by E - 2000: A assigned that interest to a company ("ACN") in which he held the sole interest - 2001: A and/ or ACN agreed to lend monies to E secured over the real property - 2001: A & E agreed that A and ACN would forego entitlement to repayment of loan monies in return for a transfer of a 2/3rd interest in E's real property -July 2001: A ( on behalf of ACN) loaned $80,000 to E. - 2003: A (on behalf of ACN) loaned a further $16,000 to E - 2003: E lodged a caveat on the title of the real property and asserted he was the sole proprietor of that land - 2003: A lodged a caveat over the land claiming a 2/3rd equitable interest, plus 2/3rd agistment fees earned since 2001 In relation to Mr Ede, the allegations were derived from a Further Amended Cross-Claim ( filed 20 December 2005): - 1995 (approx.) E engaged A as his solicitor in respect of litigation (the "Esanda" matter and the "Matrimonial" matter) - A insisted that they execute the deed previously referred to as a condition of A acting for E. - In about 2003 A entered into occupation of the real property which constituted a trespass - No deed existed whereby E agreed to transfer 2/3rd of his real property to A - Any purported transfer document was obtained by A from E by misrepresentation 29 In the course of the Equity Division proceedings Mr Ede swore 2 affidavits on 7 April 2005.One is a 58 paragraph affidavit that was before the PCC, the other a brief one page document which is not relevant to these proceedings. The long affidavit purported to set out a history of Mr Ede's relationship with Mr Adamson. The PCC noted the following allegations by Mr Ede: - A was paid his costs from settlement of the Esanda case - Esanda was settled on the basis that E would pay Esanda $78,000 - E was unaware of a $10,000 debt allegedly due to A - A offered to lend money to E (secured by unregistered mortgage over E's real property) to assist E in the matrimonial matter - A settled the matrimonial matter as solicitor for E on terms that A would pay E's wife the sum of $80,000 for her share of the property - E acknowledged he was indebted to A in the sum of $80,000 - 2001: E, who was grieving over the death of his de facto wife, provided A with 9 (approx) blank cheques in order for A to assist E by paying council rates and similar expenses. - E alleged that: A forged his signature on cheques drawn on that bank account ; A forged his signature to gain internet access to that account; A without E's authority, put 2 telephone accounts in E's name; A lodged an application for subdivision of the real property in a document that was purportedly signed by E but was not E's signature; A had, in relation to a number of other documents, forged E's signature 30 The PCC also had before it an affidavit filed in the Supreme Court proceedings, sworn by Christopher Ian Anderson, a forensic document examiner who had examined a number of documents purportedly signed by Mr Ede and concluded that there was "very strong support" for the proposition that Mr Ede did not write the signatures appearing on those documents. 31 The precise nature of the complex relationship between the two men, and issues as to whether or not agreements were reached between them concerning, inter alia, certain property, and alleged agreements for each to perform work for the other [ the "tit for tat"] arrangements ultimately became the source of a substantial amount of litigation between them, which has been ongoing for many years and in a number of jurisdictions. 32 The proceedings which gave rise to the complaints to the Bar Association arose from a case in the Local Court at Forster in which Mr. Ede sued Mr. Adamson for work allegedly undertaken by Mr. Ede for Mr Adamson, which work included clerical assistance and the preparation of a Building Report for a case in which Mr. Adamson was acting for a litigant. 33 These proceedings were commenced after Mr. Adamson rendered an account for fees alleged to be due by Mr. Ede to Mr Adamson for legal costs in relation to Mr. Ede's divorce proceedings in the Family Court. The bill of costs was rendered more than 2 years after the completion of those proceedings. 34 Mr. Ede asserted an agreement with Mr Adamson that the costs associated with his Family Law proceedings would be offset against his costs in performing clerical work and preparation of the Building Report, pursuant to the tit for tat arrangement. 35 That arrangement was denied by Mr Adamson, who also denied that Mr Ede had performed unpaid work for him except in relation to the Building Report which he alleged was a favour to him and to his client for whose litigation the report was required. 36 In the course of the extensive litigation between the two men, Mr Adamson obtained an order for costs against Mr Ede. The amount of the costs was assessed by a costs assessor, and Mr Adamson sought to enforce the order. Mr Ede sought a stay to permit him to file a cross claim. 37 The affidavit of 58 paragraphs, sworn 7 April 2005,["the affidavit"] referred to above, sets out Mr Ede's summary of the relevant dealings between the two men since they first met, and makes reference to a number of complex and somewhat unusual arrangements. It is this affidavit that Mr Carney handed to the Magistrate at Forster Local Court on 18 January 2006. 38 On 27 April 2005 Mr Ede filed a Statement of Liquidated Claim in Forster Local Court claiming a sum of approximately $25,000 for work of a clerical nature performed by Mr Ede for Mr Adamson and for a Building Report prepared by Mr Ede on instructions from Mr Adamson. 39 Mr Adamson's Notice of Grounds of Defence filed on 27 July 2005 denied any agreement for Mr Ede to undertake clerical work on his behalf and denied that such work had been performed; admitted the preparation of the Building Report but asserted there was an agreement that it would be done without charge; and claimed that the fees charged were unreasonable. 40 When the matter came before the Magistrate in Forster Local Court on 18 January 2006 and 9 March 2006, Mr Adamson sought in two Notices of Motion, inter alia, security for costs and an order that Mr Ede's claim be struck out based on a defence of res judicata, which he argued flowed from the failure of Mr Ede to raise his claim before the costs assessor. He also argued that it offended the principles laid down by the High Court in Port of Melbourne Authority v. Anshun Pty. Ltd. (1980-81) 147 CLR 589. 41 Those two motions were before the magistrate on 18 January 2006. Mr Carney appeared for Mr Ede and Mr Adamson appeared in person. 42 The proceedings before the Magistrate on that day were variously characterised by Mr Adamson as a res judicata or strike out application. The inevitable consequence of a finding in favour of Mr Adamson at that point would have led to the striking out of Mr Ede's claim. 43 The transcript of the proceedings on 18 January 2006 discloses that when the Magistrate came to deal with the matter some time after 2pm, the matter having been mentioned earlier in the day when the Magistrate was clearly dealing with a heavy list of matters, he identified the two Notices of Motion before him. Mr Adamson submitted that the Notice of Motion to strike out the statement of claim should be heard first which was agreed by both Mr Carney and the Magistrate. 44 Mr Adamson read his affidavit sworn 10 November 2005 (18.1.06 T2\44 – T3\26). 45 Mr Adamson then commenced to read some of the paragraphs in his affidavit sworn 17 January 2006. The applicant said that he objected to parts of the affidavit (18.1.06 T4\25 – 29). Mr Adamson stated that he was only reading paragraphs 2 and 3 of that affidavit (18.1.06 T4\36 – 41) and the applicant objected to those paragraphs (18.1.06 T4\43 – 45). 46 The applicant explained his reason for his objection and the magistrate asked him what was dealt with in the Supreme Court. The applicant gave a response but the magistrate said to him that the applicant was attributing to him a knowledge and understanding of what had been going on between the parties prior to the current proceedings and it was very difficult to glean from what he had before him what had happened. He said that if the applicant had a chronology of events that would be of most assistance (18.1.06 T4\49 – T5\40). 47 The applicant said that he had an outline of submissions in relation to (one of the pieces of litigation between the parties) and suggested that he could hand it to the magistrate. The magistrate asked Mr Adamson whether he had any objection to his looking at the submissions. Mr Adamson said that he could not see that any of this was relevant and he objected. The magistrate's response was that he would look at the document and decide whether it was relevant and of assistance to him in relation to what appeared to be fairly convoluted and complex issues. Mr Adamson again submitted that the document was not relevant to the res judicata issue and the magistrate responded saying that he had to look at the document in order to make a decision (18.1.06 T5\35 – T6\27). 48 The magistrate apparently read those submissions and asked the applicant how on earth they had any relevance to the issues he was required to determine (18.1.06 T6\35). 49 The next two pages of transcript reveal that the applicant attempted to explain the relevance and the magistrate asked him a number of questions and then at T8\16, the magistrate asked the applicant what happened after that. 50 The applicant then said: "What I will do is ask you to read, by way of background, an affidavit that Mr Adamson refers to in his affidavit dated 7 April 2005 by my client in relation to the cross-claim in the Supreme Court proceedings, that's probably the best background you could get, you needn't read all the annexures." [T 8.20] 51 Asked by the Magistrate if he objected Mr Adamson said: "Yeah, I object, it's a very long affidavit." [T 8 . 27] 52 After further objecting on the grounds of relevance Mr Adamson said: "If your Honour wants to read it, I think the only objection I have is that all I'm trying to do now is deal with an objection to these two paragraphs in my affidavit…. I'm raising a res judicata argument … I would give you the full story in my submissions as part of my case, but if you Honour feels that you need to have a look at that affidavit well I'm not going to suggest that I know better than your Honour."[T9.48] 53 The Magistrate reiterated a view he had already expressed: "If I am going to make a decision about this res judicata objection that you are raising, I've got to be comfortable that I understand what I am making an order about. For me to do that I have to understand what the matter is about". [T10 .12] 54 Mr Adamson responded, inter alia: "If your Honour just bears one thing in mind…there is a great deal of scandalous and vexatious material in there…" [T 10 . 21] 55 The applicant said: "… I would still invite you to – despite what Mr Adamson says, to read that affidavit by way of background,…it will give you a better idea of the full picture… and that material would be a very useful background in understanding the whole position. Now I would invite you to read it…" [T13.4-13] 56 The applicant gave evidence in the hearing before the Tribunal. The Tribunal is satisfied that Mr Carney was a truthful, thoughtful and reliable witness whose evidence is accepted in its entirety. 57 The Tribunal accepts, that on 18 January he proposed to tender (or read as evidence) the affidavit of Mr Ede sworn in the Supreme Court proceedings on 7 April 2005 (23.2.09 T67\37 – 46). However he did not get the opportunity to do that because the magistrate concluded that the hearing would not finish that day and that he wanted a further affidavit from Mr Adamson setting out his position. He also wanted written submissions from the applicant setting out in clear terms the basis why he said that res judicata had no application to the notice of motion (18.1.06 T14\2 – 29). An order was then made that Mr Adamson file and serve an affidavit in support of his application on or before 3 February 2006 and that the plaintiff file a reply on or before 24 February 2006. The matter was then listed for further consideration of the notice of motion on 9 March 2009 on which day the motion would be finally determined (18.1.06 T15\31 – 58). 58 Pursuant to those orders Mr Ede filed an affidavit sworn by him on 22 February 2006. Annexed to that affidavit was a copy of the affidavit sworn by him on 7 April 2005 in the Supreme Court proceedings. 59 On 9 March 2009 the further hearing of the notice of motion commenced and the magistrate stated that the documentation which he had ordered to be filed had been brought to the Court and that he had the benefit of reading all of that material (9.3.06 T2\5 – 23). The magistrate said that he proposed to make his decision based on that material. He said that the material certainly assisted him and he thought it placed the respective positions of the parties in very clear and unequivocal terms (9.3.06 T2\43 – 46). 60 Mr Adamson protested about the content of Mr Ede's affidavit, stating that it distressed him greatly and that the matters were not proven and that he was entitled to the presumption of innocence. 61 The applicant confirmed that he was relying upon Mr Ede's affidavit sworn 22 February 2006 and the submissions which he had filed. He said that was the material he wished to put before the Court (9.3.06 T6\22 – 37). 62 On 18 January 2006 Mr Adamson stated his res judicata argument as follows: During assessment proceedings any issues as to the liability for those costs are to be raised in those assessment proceedings. That didn't happen, what happened was, after the assessment proceedings and the judgment was entered for my costs in that Family Law matter that was mentioned a moment ago, the Statement of Claim was issued against me for 23 or $24,000 for alleged building report and some clerical work. In the Statement of Claim that the plaintiff filed, he alleges an agreement to set off his building report cost and his clerical work against my existing judgment in the Supreme Court. In a nutshell that's the res judicata argument. He's just simply not entitled to do that. He should have done that before the assessor (18.1.06 T10\53 – T11\9). 63 On 9 March 2006 Mr Adamson referred to a number of identified paragraphs in the Statement of Claim and said that those paragraphs specifically raised what he submitted was "offensive to Anshun, the High Court decision in Anshun as it has explained res judicata, as there are matters which should have been raised, which were obviously relevant, which weren't raised" (9.3.2006 T3\35 – 50). 64 The Tribunal is of the view that Mr Adamson's notice of motion to strike out the Statement of Claim was bound to fail because it was quite clear that the principle of res judicata had no application to Mr Ede's claim nor was there any occasion for the application of the principles stated by the High Court in Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589. 65 As the onus was upon Mr Adamson to satisfy the Court that the res judicata or Anshun principle applied, it appears to the Tribunal that as it was quite clear that neither principle applied, it was unnecessary for any evidence to be filed on behalf of Mr Ede in defence of the notice of motion. 66 The Tribunal is unable to see how the material in the affidavit of Mr Ede sworn 7 April 2005 was relevant to the strike out notice of motion. In the Tribunal's view, the applicant appears to have wrongly concluded that it was necessary for him to lead evidence, which he considered, strengthened Mr Ede's case that there did exist a tit for tat agreement. He also incorrectly concluded that this affidavit was relevant to prove the existence of that tit for tat agreement. 67 During the oral submissions made to the Tribunal, the position taken by counsel for the Bar Council was that if on 9 March 2006, Mr Ede's affidavit had been read, that would have been Mr Ede making the allegations and not the applicant and that there would not have been a breach by the applicant of Rule 35 (24.2.09 T54\1 – 14). 68 Furthermore counsel for the Bar Council took up the position that during the hearing of the notice of motion on 9 March 2006, Mr Ede's affidavit may have been relevant and he was not saying that it was not relevant (24.2.09 T52\13 – 27). He was then asked: if the affidavit were relevant, what was the prohibition on the applicant's tendering it. The answer given was that it was a question whether the applicant needed to go that far to deal with the strike out application (24/2/09 T52\29 – T53\1). 69 Counsel for the Bar Council made a submission that there were differences between what occurred on 18 January and 9 March 2006. He submitted that on 18 January the affidavit of Mr Ede had not been filed in the proceedings, had not been tendered, was not read as part of the evidence and that Mr Adamson did not have an opportunity to cross examine Mr Ede on it (24.2.09 T31\23 – 25; T30\43 – 47 and T53\18 – 38). Rule 35 (b) 70 In order to determine the circumstances in which Rule 35 (b) operates, it is useful to consider the following: (a) If a barrister seeks to read an affidavit which contains statements that are damaging to a person's reputation and are irrelevant to the proceedings, does the barrister thereby breach Rule 35 (b). (b) Normally those statements would be objected to and struck out or alternatively struck out even if not objected to. They would then not become part of the record nor part of the evidence 71 The Tribunal is of the view that in neither case would there be a breach of Rule 35 (b) because the barrister would not have made the allegations contained in the affidavit. Those allegations were made by the deponent of the affidavit. 72 At the end of Rule 35 (d) there is a footnote reference directing a comparison of Clyne v New South Wales Bar Association (1960) 104 CLR 186 at 200 – 1. What is set out on those pages indicates to the Tribunal that the footnote is intended to have relevance for the whole of Rule 35 and not only Rule 35 (d). 73 That passage from the High Court judgment is directed to the absolute privilege which members of the Bar enjoy in relation to defamatory statements made by them in court. A reading of that passage leads the Tribunal to the view that Rule 35 (b) is not directed to allegations made in affidavits filed in court. If a barrister attempted to read an affidavit which contained irrelevant, scandalous and reputation damaging statements, that conduct might amount to unsatisfactory professional conduct or professional misconduct. The circumstances in which the conduct occurred would be all important. However as the Tribunal reads Rule 35, it is of the view that an attempt to read such an affidavit or the reading of such an affidavit would not be a breach of Rule 35 (b). 74 The Tribunal is of the view that the statements contained in Mr Ede's affidavit of 7 April 2005 were statements made by Mr Ede and that they did not become statements made by the applicant within Rule 35 (b) simply because on 18 January 2006 he handed the affidavit to the magistrate before he tendered it. Before he handed the affidavit to the magistrate, the applicant had formed the intention to tender it. He was prevented from doing so because the magistrate adjourned the hearing and gave directions for the filing of further affidavits and submissions. In those circumstances the Tribunal is of the view that in handing the affidavit to the magistrate, the applicant did not make allegations within the meaning of Rule 35(b). 75 The Tribunal is of the view that counsel for the Bar Council was correct when he said that if the affidavit sworn 7 April 2005 had been read on 9 March 2006 that would not have been a breach by the applicant of Rule 35 because it would have been Mr Ede making the allegations (24.2.09 T54\1 – 14). 76 The Tribunal is of the view that the affidavit of 7 April 2005 was in effect formally read on 9 March 2006 as part of Mr Ede's defence to the notice of motion. On 18 January the magistrate had ordered further affidavits to be filed. A further affidavit sworn by Mr Ede on 22 February 2006, which attached the affidavit of 7 April 2005 was filed. The magistrate had read that affidavit prior to his commencing the hearing on 9 March and he stated during the hearing that he proposed to make his decision based on the material which had been filed. Furthermore the applicant stated that he was relying upon that affidavit. 77 The Tribunal is therefore of the view that the applicant did not make any allegations on 9 March 2006 within the meaning of Rule 35 (b). The Issues at hearing. 78 Pursuant to directions given by the Tribunal the applicant and the Bar Council filed written submissions prior to the commencement of the hearing. In the final paragraph of his submissions, counsel for the applicant submitted that the Tribunal should find that the applicant did not breach Rule 35 and the decision of the Bar Council to reprimand the applicant should be set aside. The final paragraph of the Bar Council's submissions stated that it was submitted that the applicant had failed to demonstrate that the decision of the Bar Council should be disturbed. Neither of those written submissions addressed the question whether the applicant had engaged in unsatisfactory professional conduct. 79 Prior to any evidence being placed before the Tribunal, counsel for the applicant gave a brief opening address and in doing so stated that there was a real question whether it could be said that the applicant breached Rule 35 simply by putting an affidavit to the Court (23.2.09 T8\22). He also said: So, the most that Mr Carney can be said to have alleged or suggested, by handing up the affidavit, is, in my submission, simply that Mr Ede had made allegations of fraud and to sheet home Mr Ede's allegations and say that they are allegations of Mr Carney, in my submission, is not within Rule 35. It may be that there are separate restrictions on barristers in tendering material that is scandalous or vexatious but, in my submission, any such prohibition would come down to the general standard that a barrister is required to observe and it is not something that is set out specifically in Rule 35. This complaint was limited to Rule 35 and the decision was limited to Rule 35 and this appeal is limited to Rule 35 (23.2.09 T8\42 – T9\1). 80 Nothing was said by counsel for the Bar Council to dispute that last sentence until the very end of the hearing on the second day. 81 At the beginning of his closing address, counsel for the applicant stated that the case came down to one single issue and that was whether the material contained in Mr Ede's affidavit of 7 April 2005 was relevant to Mr Ede's case against Mr Adamson in the Local Court. He stated that if the answer was yes, it was relevant then the applicant must succeed on the review. He said that if the answer was no, that the material was not relevant, then the applicant will fail (24.2.09 T7\26 – 31). 82 At the close of his final submissions, counsel for the applicant submitted that by tendering an affidavit which contained allegations of fraud against Mr Adamson, the applicant could not be said to have made allegations or suggestions under privilege (the words used in Rule 35). He drew the Tribunal's attention to the words of the High Court in Clyne v the New South Wales Bar Association (1960) 104 CLR 186 at 201: "The privilege may be abused if damaging irrelevant matter is introduced into a proceeding." He then submitted that: It may be that that is really what Mr Carney should have been charged with, if I may use that term, rather than Rule 35. It may be that the introduction of damaging irrelevant material is really what the PCC thought Mr Carney had done wrong but in my submission Rule 35 does not go to that, it goes to the making of allegations or suggestions under privilege. To say that Mr Carney made allegations of fraud against Mr Adamson when Mr Ede swore evidence in my submission goes beyond Rule 35. And in that regard I would simply say that the complaint in this matter was that Mr Carney breached Rule 35 and 36 and the determination of the Professional Conduct Committee was that he breached Rules 35 and 36 (sic) so that when this Tribunal reviews that decision in my submission it's not open for the Tribunal to say that there's a basis for some other complaint that has not been made against Mr Carney. 83 That submission was not dealt with by counsel for the Bar Council in his closing submissions. That is not a criticism. It merely illustrates what were the issues during the hearing before the Tribunal. 84 In his final submissions, Mr Adamson did not make any submissions as to whether the applicant's conduct constituted unsatisfactory professional conduct. 85 In his final submissions, counsel for the Bar Council dealt with the facts and responded to most of the submissions made by counsel for the applicant. He addressed a number of the submissions concerning Rule 35. 86 Before going to the factual matters he took the Tribunal to the wording of Rule 35 and said: The Bar Council as you know found there were reasonable prospects of there being found to be a breach of Rule 35, in particular subparas (b), (c) and/or (d) … (24.2.09 T32\15- 18). 87 This is an illustration of the prominence that Rule 35 played in the hearing. 88 He did not make any submissions as to whether the applicant's conduct constituted unsatisfactory professional conduct. 89 After the closing submissions had been completed, the Tribunal raised with counsel for the applicant that if Rule 35 had no application but the applicant's conduct amounted to unsatisfactory professional conduct, could the Tribunal make a decision about that conduct (24.2.09 T59\50 – T60\2). Counsel for the applicant then made submissions as to why the Tribunal could not and in doing so the Tribunal raised the question of what exactly was the complaint made by Mr Adamson to the Commissioner. Counsel for the applicant submitted that the actual complaint made by Mr Adamson was a very specific one namely a breach of Rules 35 and 36. He submitted that the investigation of the PCC was directed to whether or not there was a breach of those rules and that the decision of the PCC was based on those rules (24.2.09 T62\5 – 36). 90 Counsel for the Bar Council was given the opportunity to respond to these further submissions and in doing so he submitted that Mr Adamson's second letter of complaint, properly construed, should be seen as a complaint about a set of factual circumstances and that was the conduct complained of. Furthermore the letter of complaint should be seen as a submission that the complaint involved a breach of Rules 35 and 36. It was submitted that the particular reference to Rules 35 and 36 did not constrain the Bar Council and that it did not provide any grounds for constraint of the Tribunal. He submitted that the factual circumstances set out in the PCC report was the gravamen of the complaint (24.2.09 T66\15 – 24). 91 Towards the end of the hearing the Tribunal asked counsel for the Bar Council this question: if the Tribunal were to find that there was no breach of Rule 35, but that the conduct was unsatisfactory professional conduct, what is the appropriate order to make, a caution or a reprimand? The parties were given leave to file written submissions on that question. 92 The written submission of counsel for the applicant was in these terms: In the absence of particulars as to how the Applicant's conduct, if it does not constitute a breach of Rule 35, is said to amount to unsatisfactory professional conduct, the Applicant is unable to make submissions as to what penalty would be appropriate. Indeed, the Applicant has not even been heard on the issue of whether his conduct constitutes unsatisfactory professional conduct other than by reason of it being a breach of Rule 35. 93 The written submission of counsel for the Bar Council was that a reprimand would be appropriate. 94 Counsel for the applicant submitted that an error of judgment as to the relevance of various paragraphs of an affidavit does not constitute unsatisfactory professional conduct and that the applicant should not be exposed to any penalty. 95 Section 555 of the LPA 2004 provides for the variation of disciplinary proceedings. In such proceedings the Tribunal is invested with very wide powers. That is not, however, applicable to the present proceedings which is an application for review of a reviewable decision. 96 Section 63 (3) ADT Act provides: (3) In determining an application for the review of a reviewable decision, the Tribunal may decide: (a) to affirm the reviewable decision, or (b) to vary the reviewable decision, or (c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or (d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal. 97 The Tribunal has considered whether it should exercise the powers contained in that section. 98 Absent a breach of Rule 35 (b), it is inappropriate for the Tribunal to consider the question whether the applicant engaged in unsatisfactory professional conduct and then decide whether the decision of the Bar Council to reprimand was the correct and preferable decision. Two reasons for this are: (a) the applicant has not been given notice that that question was to be considered by the Tribunal; and (b) the parties have not made any submissions on the question. Furthermore the Tribunal has not received any submissions from the parties as to whether or not the applicant's conduct amounted to unsatisfactory professional conduct in those circumstances. 99 Counsel for the Bar Council submitted that it was appropriate that the applicant be reprimanded. 100 Section 540 (5) of the LPA 2004 relevantly provides that if the Council decides to reprimand, the practitioner may apply to the Tribunal for a review of the decision. 101 Section 63 (1) of the ADT Act relevantly provides that in determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it. 102 Paragraph 542 (1) (c) of the LPA 2004 relevantly provides that a legal practitioner is entitled to receive a statement of reasons from the Council in relation to a decision to take action under section 540. 103 On 30 November 2006 the Bar Council resolved pursuant to paragraph 540 (2) (b) of LPA 2004 that the applicant be reprimanded in respect of the second complaint made 12 April 2006. 104 On 18 December 2006 the Bar Council provided a statement of reasons under section 542 of the LPA 2004. That statement relevantly provided: The reasons for the Bar Council's decision made 30 November 2006, pursuant to s540 of the Legal Profession Act 2004, to reprimand you in respect of the second complaint made 12 April 2006 are set out in the report of the Professional Conduct Committee to the Bar Council dated 6 November 2006 (Report). A copy of the Report dated 6 November 2006 is attached to this statement. 105 A critical reason in the PCC report was set out in paragraph 72 of the report in the following terms: In the above circumstances, the Committee is of the view that Carney, by putting the contents of the affidavit of Mr Ede sworn on 7 April 2005 in the Supreme Court proceedings before the Local Court on 18 January 2006 and 9 March 2006, breached Rule 35 of the New South Wales Barristers' Rules (and, more particularly, sub-paragraphs (b), (c),and/or (d) of Rule 35). 106 As the Tribunal is of the view that the applicant did not breach Rule 35 it therefore follows that the Tribunal is of the view that a critical reason for the Bar Council's decision to reprimand the applicant was incorrect. 107 Based on the reasons set out in the PCC report, the correct and preferable decision to have been made was not to reprimand the applicant. The Bar Council provided to the applicant a copy of the relevant parts of the PCC report dated 6 November 2006 but it did not give any notice to the applicant that if there was no breach of Rule 35, the PCC was of the view that the applicant had engaged in unsatisfactory professional misconduct. 108 In those circumstances the Tribunal is of the view that the decision of the Bar Council to reprimand the applicant should be set aside. However having regard to the submissions made by counsel for the Bar Council and referred to above it appears to the Tribunal that there may be a question which the Tribunal should consider, namely, whether the Tribunal should also order that the matter be remitted for reconsideration by the Bar Council. As this question was not raised during the hearing, it is not an order that the Tribunal can presently make. 109 The original complaint by Mr Adamson was particularised as constituting breaches of Rules 35 and 36. The PCC considered that complaint and formed the view that the applicant had breached Rule 35. The Bar Council resolved to reprimand the applicant for the reasons set out in the PCC report. It appears that at no time was consideration given to the possibility that the conduct complained of constituted unsatisfactory professional conduct, but not a breach of Rule 35 or 36. 110 These proceedings have extended over several years, and the major issue has always been whether the applicant breached Rule 35. 111 In considering whether the Tribunal should invite further submissions on the question whether the matter should be remitted to the Bar Council in the event that the Tribunal determines that there was no breach of Rule 35 (b), the Tribunal has taken into account the nature of the conduct the subject of the original complaint; the circumstances in which that conduct occurred; the desirability of bringing litigation to finality; the lapse of years since the conduct occurred; the fact that the proceedings have over a number of years been conducted on the basis that the only orders sought were an order setting aside the decision or an order that it be affirmed; and importantly that neither Mr Adamson nor the Bar Council at any time sought an alternative order that the matter be remitted to the Bar Council for reconsideration. 112 The Tribunal has also borne in mind that these proceedings are disciplinary in nature, and the role of both the Bar Council and this Tribunal in ensuring the maintenance of standards of conduct amongst members of the profession. 113 Having taken the above matters into consideration, the Tribunal has determined that it is not appropriate to invite further submissions from the parties on the question whether the Tribunal should consider whether it should remit the matter to the Bar Council. 114 The Tribunal is, accordingly, of the view that an order should be made that the decision of the Bar Council made on 30 November 2006 be set aside. 115 The issue of costs was not argued before the Tribunal. In those circumstances the Tribunal will not make an order as to costs except that leave will be granted to any party to list the matter before the Tribunal within 14 days, on the question of costs orders. 116 The Tribunal makes the following orders: 1.The decision of the Council of the New South Wales Bar Association made on 30 November 2006 that Niall Matthew Carney be reprimanded is set aside. 2.The Tribunal makes no order as to costs except that leave is granted to any party to list the matter before the Tribunal within 14 days, on the question of costs. 3.The Council of the New South Wales Bar Association publish the above orders on its website within 14 days of the publication of these orders, together with a link, from the publication on that website of the resolution made on 30 November 2006 that Niall M Carney be reprimanded, to the publication of these orders. I HEREBY CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF THE ADMINISTRATIVE DECISIONS TRIBUNAL. REGISTRAR 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.