Patel v The Law Society of NSW [1999] NSWCA 372

New South Wales Court of Appeal CITATION : Patel v The Law Society of NSW [1999] NSWCA 372 FILE NUMBER(S) : CA 40630/99 HEARING DATE(S) : 1 October 1999 JUDGMENT DATE : 1 October 1999

Shushil Ramanbhai Patel PARTIES : v The Law Society of New South Wales JUDGMENT OF : Mason P at 1; Meagher JA at 19; Davies AJA at 20

COUNSEL : C: TA Williams O: R Bellamy SOLICITORS : C: TA Williams, Sydney O: RJ Collins, Sydney CATCHWORDS : Summons for order to stay any suspension of right to practise as a legal practitioner in NSW - Whether prohibition of reinstatement of claimant on the Roll of Solicitors of the Law Society of England and Wales is equivalent to suspension or removal from the roll for the purposes of Pt 65A r 3 of the NSW Supreme Court Rules. ACTS CITED : Solicitors Act 1974 (UK) Supreme Court Rules DECISION : Summons dismissed, no order as to costs.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA40630/99

MASON P MEAGHER JA DAVIES AJA

Friday, 1 October 1999

Shushil Ramanbhai PATEL v THE LAW SOCIETY OF NEW SOUTH WALES

JUDGMENT

1 MASON P: The claimant was admitted to the Roll of Solicitors of the Supreme Court of England and Wales in 1977. That roll is kept by The Law Society of England and Wales (see Solicitors Act 1974 (UK) s6). He practised as a solicitor in London between May 1980 and about November 1987. He sold his practice and moved to Canada in mid 1988 and did not practise law in that country. In March 1990 he moved to Australia and applied for admission as a solicitor of the Supreme Court of New South Wales. He was duly admitted in May 1990 and obtained a practising certificate. 2 In support of his application for admission here, he obtained a letter from the Law Society of England and Wales which confirmed that no disciplinary proceedings were recorded against him and that there was nothing to his discredit. 3 Despite this letter and apparently unknown to the claimant, disciplinary proceedings were afoot in the United Kingdom. Formal notice of these proceedings was served on the claimant in July 1997. The proceedings were listed for hearing before the Solicitors' Disciplinary Tribunal of England and Wales on 7 August 1997. 4 Not long after being served with the process, the claimant wrote to the Solicitors' Disciplinary Tribunal disputing the allegations but indicating that he would not be appearing to defend the charges. 5 On 7 August 1997 the Tribunal ordered that the claimant's name be struck off the Roll of Solicitors. However, it subsequently became known to the Tribunal that the claimant's name had already been removed from that roll as part of an ordinary administrative process. Apparently the claimant had, when he left Britain, ceased to pay appropriate fees and his name was consequently removed. 6 On 7 October 1997 the Tribunal published its reasons, finding the allegations of misconduct brought against the claimant to have been substantiated. The Tribunal indicated, however, that because it had come to its notice that the claimant's name had already been removed from the roll, it made an order in substitution to striking off, to the effect that it prohibited the reinstatement of the claimant on the roll without the consent of the Tribunal first being obtained. The source of that power is s 47(2)(g) of the Solicitors Act 1974 (UK). 7 In January 1998 the Law Society of New South Wales resolved to institute a complaint against the claimant in respect of the matters arising from the United Kingdom Tribunal findings. However, nothing much seems to have happened to date with respect to the proceedings here. 8 The claimant has worked as a solicitor in this State in various positions. He commenced as an employed solicitor for the Aboriginal Legal Service in January 1999. 9 On 29 July 1999 the Law Society directed the claimant's attention to Part 65A r3 of the Supreme Court Rules. That rule provides: 3(1) Any legal practitioner: (a) whose name is removed from a roll kept outside the State that corresponds to the Roll of Legal Practitioners in the Court; or (b) who is suspended from practising as a lawyer (whether known as a barrister, a solicitor, a barrister and solicitor, an attorney, a legal practitioner or otherwise) outside the State, for misconduct, is suspended from practice: (c) in the case of removal - unless the Court otherwise orders; (d) in the case of suspension - during the period of suspension, unless the Court otherwise orders. (2) This rule does not apply to a cancellation or suspension: (a) in Australia under the Mutual Recognition Act; or (b) in New Zealand under the Trans-Tasman Mutual Recognition Act. 10 The missive from the Law Society prompted the claimant to move this Court by summons filed on 24 August 1999 for an order that any suspension of his right to practise as a legal practitioner caused by the operation of r65A(3) be stayed until 29 February 2000 or until further order. The summons is supported by affidavits disclosing the claimant's intention to move expeditiously in England to challenge the orders of the tribunal made there in 1997. The summons seeks permission to continue practising as an employed solicitor in the meantime. 11 The summons joined The Law Society of New South Wales as an opponent. It seems to me that this was entirely appropriate, given the role of the Society generally, the position it had already adopted towards the claimant and the fact that it was the Society that drew the claimant's attention to Pt 65A r3. (See also Wentworth v New South Wales Bar Association (1992) 176 CLR 239.) 12 The Law Society filed a notice of motion seeking an order that it ceased to be a party to the proceedings. It was entitled to take that position, although in the light of the stance which it adopted today, it seems a little curious that it maintained that position. 13 At the commencement of the proceedings today, the Court drew the attention of the parties to the possibility that r3 was not engaged in the present situation, because the claimant had not had his name removed from the roll, nor had he been suspended from practising as a lawyer in the United Kingdom for misconduct as required by the rule. Somewhat reluctantly, the claimant's solicitor eventually embraced this proposition. Curiously, in the light of its wish to be removed as a party, the Law Society opposed it. 14 The opponent submitted that the practical effect of the order made by the Tribunal in London was that the claimant should be treated as falling within either or both of paragraphs (a) and (b) of r3(1). This was a difficult task in which the Court was in effect invited to take a very broad purposive approach to the rule notwithstanding its fairly precisely drawn terms. The task becomes even more difficult in the light of the provisions of s47 of the Solicitors Act 1974 (UK) which clearly distinguishes between striking off and suspension from practice on the one hand (see s47(2)(a) and (b)) and the type of order made in the present case on the other (see s47(2)(g)). 15 Rule 3 might have been drawn differently and perhaps in the light of the experience of this case consideration should be given to expanding its terms. But it is a provision that applies automatically and, given that it would be a serious matter indeed for a legal practitioner to practise if the rule had automatically suspended him or her from the right to practise, then it seems to me that everything points to the rule being interpreted literally in accordance with its terms. Any number of disciplinary steps can be taken against practitioners for misconduct. Removal and suspension are but two of the variety of sanctions that may be applied generally and in the case of solicitors from England and Wales, particularly having regard to s47(2) of the Solicitors Act 1974 (UK). 16 In my view, the position in which the claimant finds himself as regards his right to practise in England and Wales does not fall within Pt 65A r3. For that reason and that reason alone, the summons should be dismissed. 17 This finding says nothing in relation to this Court's inherent powers to order suspension or removal of a practitioner, nor does it say anything about any powers that any other Tribunal in this State may have to bring about the same result in the present situation. I also must not be taken to be expressing any view either way about the merits of the present application. 18 But for the reasons that I have indicated, it is my view that the summons should be dismissed. I would make no order as to costs in view of the fact that the opponent was in one sense the initiating party in this application which should not have been made in the terms it was made. 19 MEAGHER JA: I agree. 20 DAVIES JA: I agree with the President. 21 MASON P: Those are the orders of the Court. Summons dismissed. No order as to costs. * * * * * * * * *