New South Wales Court of Appeal CITATION: NIKOLAIDIS v LEGAL SERVICES COMMISSIONER [2005] NSWCA 91 HEARING DATE(S): 21 & 23/03/2005 JUDGMENT DATE: 23 March 2005 JUDGMENT OF: Bryson JA at 1 DECISION: Notice of Motion dismissed with costs. CATCHWORDS: STAY OF PROCEEDINGS- APPEAL AND NEW TRIAL – stay of proceedings in Administrative Decisions Tribunal pending application for leave to appeal against interlocutory orders – principles – test of necessity – where ADT decided that there had been professional misconduct, solicitor sought leave to appeal and ADT proceeded towards hearing penalty phase, stay of proceedings was refused. Legal Profession Act 1987 LEGISLATION CITED: Supreme Court Act 1970 Veghelyi v The Law Society of New South Wales (unreported, NSWCA, 6/10/1995) CASES CITED: Alexander v Cambridge Credit Corporation (Receivers Appointed) (1985) 2 NSWLR 685 NSW Bar Association v Stevens [2003] NSWCA 95 Leon Nikolaidis - Applicant PARTIES: Legal Services Commissioner - Respondent FILE NUMBER(S): CA 41035/2004 J Chippindall – claimant COUNSEL: L Muston – respondent M.D. Nikolaidis & Co – claimant SOLICITORS: Legal Services Commissioner – opponent LOWER COURT JURISDICTION: Administrative Decisions Tribunal LOWER COURT FILE NUMBER(S): 032022 LOWER COURT JUDICIAL OFFICER: J Brennan, C Bishop and A. O'Neill IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 41035/04 BRYSON JA WEDNESDAY 23 MARCH 2005 LEON NIKOLAIDIS v LEGAL SERVICES COMMISSIONER Judgment 1 BRYSON JA: The claimant, Mr Nikolaidis, applies by notice of motion filed on 15 March 2005 for an order that proceedings in the Administrative Decisions Tribunal number 032022 be stayed pending final determination of Mr Nikolaidis' application by ordinary summons dated 20 January 2005 for an order granting leave to appeal under section 171F of the Legal Profession Act 1987 from decisions of the Administrative Decisions Tribunal (ADT) of 28 July 2004 and 1 November 2004. The ordinary summons is returnable for the first time on 11 April but it is not yet known when the application for leave to appeal will be heard. 2 Those two decisions were not final dispositions of proceedings in the ADT. The Legal Services Division of the ADT has before it an Information of 26 September 2003 by which the Legal Services Commission charges Mr Nikolaidis with professional misconduct on two grounds, one of failing, without reasonable excuse, to comply with notices issued by a costs assessor and a second ground of professional misconduct in deliberate charging of grossly excessive amounts of costs. 3 In its decision of 28 July and written reasons of 3 September 2004 [2004] NSW ADT 195 the Tribunal declined to admit into evidence a report tendered by Mr Nikolaidis made by a costs expert, Mr Hardman, dealing with the costs which, according to the charge, were grossly excessive in amount. The matters dealt with in the report include reasonable rates of charging which are at the centre of Ground 2 in the Information. The Tribunal rejected the tender on several grounds, one of which was that under section 208KI of the Legal Profession Act: ...it is not open to the practitioner in proceedings before the Tribunal to seek to introduce expert evidence in an effort to obtain a fresh determination of the fair and reasonable costs of the practitioner when those costs have been determined by the panel. 4 By its decision [2004] NSW ADT 248 of 1 November 2004 the Tribunal found that the complaints were established and that the conduct complained of amounted to professional misconduct. If the challenge on appeal succeeds, the appeal decision will have fundamental significance for that finding and for all later stages of the proceedings. The Tribunal has now embarked on what is referred to as the penalty phase, and has not yet made any order disposing of the Information. 5 During a hearing on the penalty phase the Tribunal admitted Mr Hardman's report but, of course, limited to the purposes of the penalty phase and not available in relation to the question whether there should be a finding of professional misconduct, which has already been determined. The Tribunal has given further directions for the conduct of the penalty phase and will resume its hearings on 1 April 2005. 6 Mr Nikolaidis wishes to appeal at the interlocutory stage and does not wish to await the outcome of all the Tribunal's decisions and its orders before his appeal is heard. The stay claimed would prevent the Tribunal from proceeding any further with the penalty phase or with anything else until a decision of the Court of Appeal has been obtained. 7 When explaining why a stay should be ordered, senior counsel for Mr Nikolaidis submitted to the following effects: There have been published findings of professional misconduct which have no foundation and involve denial of procedural fairness; these have been published in circumstances in which Mr Nikolaidis has been the subject of media attention which he would contend has not been fair to him; there was a decisive and incorrect ruling on evidence and it stripped Mr Nikolaidis of his opportunity to adduce important exculpatory evidence; the incorrect ruling was based on an erroneous construction and also erroneous application of section 208KI(2) leading to an unsupportable finding of misconduct. 8 The issue in the proposed appeal would relate principally to ground 2 in the Information. 9 Mr Nikolaidis' wish to obtain a decision on the construction and effect of section 208KI(2) and its implications on the admission of Mr Hardman's report will involve close attention to the meaning and effect of that section; and also to the decision of the Court of Appeal in Veghelyi v The Law Society of New South Wales (unreported, NSWCA, 6/10/1995), to which ADT referred in reasons for rejecting Mr Hardman's report. 10 Mr Nikolaidis also wishes to raise questions of procedural fairness arising from ADT's having reached their conclusion on professional misconduct without permitting him to introduce Mr Hardman's evidence, and also arising from ADT's having made findings on and decided the question of professional misconduct without at that stage notifying Mr Nikolaidis of ADT's intention to consider, of its own motion, the question whether his name should be removed from the roll of legal practitioners. The Tribunal has since informed Mr Nikolaidis that it intends to consider that question but did so early in the penalty phase and did not do so in response to any submission or contention on behalf of the Legal Services Commission, which had not asked for so severe a remedy at any stage. 11 On the proposed appeal it seems to me that much will turn on the terms and circumstances of the Tribunal's indication. There may have been no more than a dutiful pointing out of the range of available decisions (which would already have been known from the terms of the Legal Profession Act); or there may have been some statement in terms which shows a departure from fair proceedings. The Tribunal has a duty to proceed fairly when it decides to take matters into consideration, especially as to penalty. The true significance and effect of what ADT said will need close attention with the assistance of the transcript of the day on which the statement was made; and that transcript is not yet available. 12 Submissions were made to me with respect to the balance of convenience as between staying proceedings or, on the other hand, not imposing control on ADT's further proceeding with the penalty phase while the application to the Court of Appeal is pending. 13 Evidence of Mr Nikolaidis has shown what I regard as reasonable grounds for fears that a decision to remove his name from the roll of legal practitioners, if such a decision should be made, would cause him great harm, injury in his professional capacity and personal harm, which may not be remedied or may not be completely remedied if, on appeal, he succeeds in having such a decision set aside. The reality of this concern has been well illustrated by reference to press and other comments on earlier stages of the proceedings which deal, superficially and not in a full way, with earlier events but do not attempt a complete account of them. 14 It was contended to the effect that the claim for appellate intervention was a strong one, and it was said the Tribunal has irretrievably denied Mr Nikolaidis procedural fairness so that it is incapable of giving further consideration to the Information without there being reasonable apprehension of bias. It was further contended to the effect that the course which the Tribunal announced that it proposed to consider goes far beyond any claim made in the information or by the Legal Services Commission. 15 While I am of the view that Mr Nikolaidis has a reasonably arguable case for a grant of leave to appeal at the interlocutory stage, that outcome is by no means certain. A grant of leave is not a subject on which high confidence can usually be held and the Court of Appeal has shown a strong general disposition against interventions at interlocutory stages. The usual course is that proceedings under appeal should be carried to completion before an appeal is embarked on. However, many cases have not followed this usual course, and there are instances in which leave for interlocutory appeals has been granted. 16 It is my assessment that Mr Nikolaidis' prospects of obtaining some appellate intervention which will prevent the Tribunal from proceeding to its final decision, in the course which it has indicated it will take, can be stated as no higher than as reasonably arguable. 17 The power of the court to impose a stay of proceedings pending determination of an appeal or application for leave to appeal is the inherent power of the court expressed and reconferred by s 23 of the Supreme Court Act 1970 in these words: The court shall have all jurisdiction which may be necessary for the administration of justice in New South Wales. 18 Case law of which I am aware relating to stay of proceedings under challenge pending determination in the Court of Appeal relates to stay of execution of judgments or enforcement of orders which are themselves under appeal. The principal authority on that subject is Alexander v Cambridge Credit Corporation (Receivers Appointed) (1985) 2 NSWLR 685. Recent consideration in the context of enforcement or suspension of penal orders which are under appellate challenge is found in the NSW Bar Association v Stevens [2003] NSWCA 95 by Spigelman CJ at paragraphs 83 and following. Judicial decisions relating to the enforcement of judgments which are under appeal cannot be readily applied to an interlocutory stay of proceedings, but in principle the inherent power of the court extends to appeals in interlocutory proceedings. The power exists because it is necessary for the administration of justice, and it is to be exercised where it is necessary to exercise it. The power to order a stay is discretionary and such an intervention should not take place lightly. The outcome which is likely if there is no stay must be so adverse and severe that the attainment of justice requires interlocutory intervention. It must be shown that it is likely that there will be some adverse consequence of allowing the proceedings under challenge to continue and that the outcome will be so difficult to remedy, or otherwise so adversely severe in its impact, that intervention by the Court of Appeal should take place notwithstanding that there has not been an opportunity for full consideration. 19 ADT has a duty to proceed expeditiously. The matter before it relates to the public interest and does not only concern the interests of parties. Ancillary restraints may be necessary for the just and effective administration of justice and exercise of powers of the court such as the power to consider and allow appeals, but it is not and cannot be a matter of course to bring proceedings under challenge to a halt while some interlocutory appeal is contemplated. Unless there is some appropriately strong claim for the protection of the effectual exercise of this court's powers on appeal there should not be such an intervention. 20 Although the convenience of an intervention, whether from the point of view of the interest of the party applying or from other points of view, is a relevant matter, the question for consideration is a test of necessity, not simply a balance of convenience. Some disadvantage or inconvenience to the applicant will not ground a stay merely because a stay would produce a less adverse impact or no adverse impact on other parties whose interests are also involved. To my mind it is quite important that in the ordinary course the ordinary functioning of ADT should be allowed to proceed, and I should have no disposition against allowing proceedings to continue just because there is some interlocutory appellate challenge. Severe adverse impacts on the interests of solicitors who are parties to such proceedings are an unhappily permanent characteristic of those proceedings. There are important public interests in the due conduct of business in the Tribunal and the availability of public knowledge about its proceedings and decisions. The public interest in the availability of knowledge extends far beyond the interests of Mr Nikolaidis or of solicitors who are the subjects of proceedings; it is important for the effective and dutiful conduct of the business of the Tribunal by its members that there should be public knowledge of events and of their decisions. This is no less true because it happens, from time to time, that some of their decisions are corrected on appeal. 21 Notwithstanding that Mr Nikolaidis has arguable and well-considered grounds on which he wishes to challenge the proceedings in the Tribunal, I am of the view that the continuation of those proceedings and if he should ultimately prove to be right, the adverse impact of any decision against him, are circumstances against which this court should not protect him. 22 The order is: the Notice of Motion is dismissed with costs. ********** 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.