Doherty v The Law Society of New South Wales [2003] NSWSC 105

New South Wales Supreme Court

CITATION : Doherty v The Law Society of New South Wales [2003] NSWSC 105 revised - 03/03/2003 HEARING DATE(S) : 17-19 February 2003 JUDGMENT DATE : 28 February 2003 JURISDICTION: Common Law JUDGMENT OF : Studdert J DECISION : See para 99

CATCHWORDS : Legal practitioners - appeal against resolution of Law Society refusing application for practising certificate - whether certificate should, if granted, be conditional, and if so upon what conditions. LEGISLATION CITED : Legal Profession Act ss 37, 38B, 61, 62, 134, 139, 140, 171C CASES CITED : New South Wales Bar Association v Murphy (2002) 55 NSWLR 23 Peter Doherty (Plaintiff) PARTIES : The Law Society of New South Wales ACN 000 000 699 (First Defendant) Andrew Stuart Brown (Second Defendant) FILE NUMBER(S) : SC 13117/02 COUNSEL : I.M. Wales SC (Plaintiff) R.I. Bellamy (Defendants) SOLICITORS : Stewart Cuddy & Mockler (Plaintiff) Raymond John Collins (Defendants)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

STUDDERT J

Friday 28 February 2003

13117/02 PETER DOHERTY v THE LAW SOCIETY OF NEW SOUTH WALES ACN 000 000 699 & ANOR

JUDGMENT 1 HIS HONOUR: The plaintiff, Peter Doherty, is a solicitor by profession and as at 2 August 2002 he was carrying on practice at addresses at Belgrave Street, Kogarah and 182 Forest Road, Hurstville. On 2 August 2002 the Law Society resolved: "1. That the Practising Certificate of Peter Doherty be cancelled pursuant to Section 37(1)(f) of the Legal Profession Act, 1987. 2. The Council, having cancelled the Practising Certificate of Peter Doherty, by virtue of the provisions of Section 114B of the Legal Profession Act appoints Andrew Stuart Brown Manager of the practice of Peter Doherty, Solicitor, at a remuneration equal to the cost of his employment at the Society." 2 Section 37(1)(f) of the Legal Profession Act 1987 empowers the Law Society to cancel a practising certificate where the holder of such certificate has contravened a provision of the Act, and the Law Society determined that there had been such a contravention by the plaintiff. Subsequently, on 22 August 2002, the Society further resolved that the plaintiff's application for a practising certificate for the year beginning 1 July 2002 should be refused. That resolution again was based upon s 37(1)(f) of the Legal Profession Act. 3 Following those resolutions, the plaintiff, by amended summons filed in this court, seeks these orders: "1. The decisions of the First Defendant of 2 and 22 August 2002 pursuant to Section 37(1)(f) of the Legal Profession Act 1987 cancelling the practising certificate of the Plaintiff and refusing to issue a practising certificate to the Plaintiff be set aside. 2. The First Defendant issue to the Plaintiff a practising certificate entitling him to practice on his own account. 3. The First Defendant terminate the appointment of the Second Defendant as Manager of the Plaintiff's practice Lloyd Lancaster. 4. The First Defendant pay the costs of this summons. 5. Such further orders as to this Honourable Court seem fit." 4 The proceedings before this Court are expressed under s 38B(1) as being proceedings by way of appeal, but s 38B(2) empowers the Court to "make such order in the matter as it thinks fit." It is common ground that these proceedings are not an appeal in the strict sense but are in the nature of a hearing de novo: see Veghelyi v Council of the Law Society of New South Wales (1989) 17 NSWLR 669. 5 Section 62 of the Legal Profession Act requires that a solicitor keep appropriate records in relation to trust money: "62 Keeping of accounts (1) A solicitor shall keep: