Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Mead v NSW Department of Attorney General and Justice [2012] NSWADT 224 Hearing dates: 9 October 2012 Decision date: 01 November 2012 Jurisdiction: Equal Opportunity Division Before: Deputy President, D Patten Decision: Leave to proceed refused Catchwords: Application for leave to commence proceedings - no arguable basis for complaint Legislation Cited: Anti Discrimination Act 1997 Category: Principal judgment Parties: Lucy Mead (Applicant) NSW Department of Attorney General and Justice (Respondent) Representation: Counsel G Mahony (Respondent) L Mead (Applicant in person) Legal Services Commissioner (Respondent) File Number(s): 121106 REASONS FOR DECISION 1This is an application by the Applicant Ms Lucy Mead for the leave of the Tribunal in accordance with s96(1) of the Anti Discrimination Act 1997 (the Act). 2At the hearing the applicant appeared in person and Ms Gillian Mahony of Counsel appeared for the respondent. No objection was taken to the proceedings taken against the Respondent in the name stated above. 3The matter has its genesis in an undated letter written by the Applicant to a number of bodies including the Anti-Discrimination Board where it was received on 23 November 2011. It is obvious as Ms Mead herself states that English is not her first language and to a large extent the letter is difficult to follow. It makes vague allegations against a number of people including Mr Mark, the Legal Services Commissioner. The letter refers to "Mr Steve Marks (sic) negligence and incompetence" but does not provide a comprehensible basis for such an allegation. 4At the request of the Board Ms Mead wrote to it again on 19 December 2011. I reproduce the letter as written : Dear Ms Wing, Thank you for your letter dated on 2nd December 2011 referring to my above complaints, attached please find a confirmation from Mr. Steve Mark, the Commissioner of the Office of the Legal Services Commissioner where he was served the same copy that I lodged with the Board, of which Mr Steve Mark, the Commissioner received on 22nd November 2011. Since September 2002 I had physically attended to the Office of the Legal Services Commissioner more than three (3) occasions to get the complaint forms and lodge documents where there was recognition that I was not a white skin person to the Office obviously. This is to confirm that Mr Steve Mark, the Commissioner discriminated against me on the ground of race in contravention of Provision of goods and services s 19(a) and (b) of the Anti Discrimination Act 1977 (NSW) having regard to s7(1) (a) (b) (c) and /or (2) of that Act and s 4 the 'services' including (d) services of any profession or trade and or (e) services provided by a public authority of the Act. Since September 2002 I had drawn Mr Steve Mark, the Commissioner's attention where he deliberately wrongdoing assisted, urged, aided, abetted the following legal practitioners in breaching their undertaking in contempt to the Court orders at the time of receiving my complaints in 2002 knowingly he offence disregarded s 4, 7 and 19 of the Act. Mr Malcolm Holmes QC Mr. Des Fagan, SC Mr Vahn Bedrossian, Barrister Mr Victor Dominello, Partner, Etherington's Solicitors, and Mr Paul Etherington, Partner, Etherington's Solicitors I had supplied my ex's Affidavits sworn on 5/2/2002and 12/2/2002 As the evidence of which was sufficient to support the complaint in proving above practitioner's misconduct knowingly Mr Malcolm Holmes billing increased because above practitioners attended to the Supreme Court without making apology and continuously ignored their undertaking to the Family Court are contempt Court Orders and against their professional indemnities insurers. I shall send copies to you under separate cover. I am relying on the events that occurred before 23 November 2010 as background information and as part of my complaint. As far as I am concerned, Mr. Steve Mark, the Commissioner still has not replied to my previous letter of 28 July 2003 where may be eight (8) years ago but the challenge still the same fact of the evidences that Mr Steve Mark, the Commissioner he deliberately discriminated me in no response therefore there is no out of time issues as if there were any delay it should be answered by Mr Steve Mark, the Commissioner hence if any prejudice the delay may have caused to the Commissioner is minimal. I had suffered humiliation, disgrace including being sent to goal for what I hold my honesty, integrity as one of directorships to sustain the business, paying tax bills, fulfil the loan repayments as well as being a mother to my two (2) children that I had singly looked after for their up bring regardless there was no any support from the father. Mr Steve Mark on the other hand unlawfully held two (2) sets of legal standard, he directly and indirectly encouraged above practitioners to do severe damage to my financial position and defame my reputation since I lodged complaints to the Commissioner, being a lawman himself, Mr Mark should not prejudice, prejudge or discourage people from airing their grievance as it will only prove Mr. Steve Mark cannot bring a balanced mind of the task before him. Regards Yours Sincerely, Lucy Mead PO Box 468 WEST RYDE NSW 2114 5The Board accepted that there was a matter of alleged race discrimination requiring investigation, which it proceeded to conduct. On 9 July the Board informed Ms Mead that it declined her complaint on the ground that it was lacking in substance. It provided these reasons: Mrs Mead alleged that the Legal Services Commissioner ("the Commissioner") discriminated against her on the ground of race in the investigation of her complaint because she is Taiwanese and because English is not her first language. However, there does not appear to be any evidence that would suggest that Mrs Mead's racial origins played any role in the Commissioner's finding. The subject of Mrs Mead's ethnicity was not raised by the Commissioner in any correspondence, other than a description of Mrs Mead's business interests that had originated in Taiwan for the purpose of clarifying the complaint. It is the complainant's view that the burden lies with the Commissioner to show that he did not have "unclean hands" by "treating his white mates/legal terrorists more favourably than me a Taiwanese litigant". Mrs Mead makes a number of similar non sequitur assertions about the Commissioner throughout her submissions. It does not follow that because the complainant is a member of a particular ethnic minority and is dissatisfied with the Commissioner's decision that it must lead to the conclusion that the Commissioner has displayed racist conduct toward her. Although Mrs Mead is adamant that the Commissioner's decision constituted unfavourable treatment due to her race, the evidence does not substantiate that view. 6In accordance with s93A of the Act the applicant within time requested the President of the Board to refer her complaint to this Tribunal. The President did so but the matter may not be the subject of proceedings without the leave of the Tribunal under s96(1). The application before me seeks to achieve such leave. 7The underlying facts are comprehensively summarised in the letter from the Legal Services Commissioner to Ms Mead of 16 May 2003: Dear Ms Mead Your complaints about Mr Des Fagan SC (10395), Mr Malcolm Holmes QC (10804), Mr Richard Bell, barrister (11356), Mr Vahan Bedrossian, barrister (10396), Mr Victor Dominello, solicitor (10394), Mr Steven Lamont, solicitor (11351) and Mr Alan Connelly, solicitor (10393). I refer to your complaints made to this office about Mr Des Fagan SC, Mr Malcolm Holmes QC, Mr Richard Bell, Barrister, Mr Vahan Bedrossian, barrister, Mr Victor Dominello, solicitor and Mr Steven Lamont, solicitor, in which you allege Fagan SC, with the knowledge and complicity of the other named barristers and solicitors misled the court and the Honourable Justice Cohen during Family Court proceedings on 25 and 26 October 2001. I refer to your telephone conversation with Aideen McGarrigle of this Office on 24 March 2003 and understand from that conversation and the copious written submissions made to this office, the core issue for you is that Fagan SC, in collusion with the above named barristers and solicitors, deliberately misled the court and the Hon Justice Cohen on 25 and 26 October 2001, as a consequence of which you have suffered "terrible injustice" from both the District Court and Supreme Court of New South Wales. Further you allege in your complaint that Mr Alan Connelly, solicitor for the court appointed liquidator colluded with the above named solicitors and barristers to allow Mr Colin Mead take over proceedings at the Supreme Court on behalf of Hypec Electronics Pty Ltd. By way of background I understand that you and your ex husband, Mr Colin Mead, owned a company called Hypec Electronics Pty Ltd ("Hypec"). I understand that BL & GY International Co. Ltd., (BL & GY), a Taiwanese based export company in which you have a 46% share and are the registered director with remainder 56% being owned by various members of your family, filed a Statement of Claim on 17 September 1997 seeking $4,844, 466 together with interest and costs. The Statement of Claim alleged that this amount was owed to BL & GY pursuant to loans made by BL & GY to Hypec between 30 June 1992 and 30 June 1996. Both you and your ex husband also joined as defendants on a number of alternative bases, which include negligence and a breach of s232 of the Corporations Law. Your ex husband, Mr Mead defended the proceedings with no defence being entered by you or by Hypec. On 4 December 1997 judgment was entered against Hypec for an amount in excess of $7.6m, together with costs. On 6 January 1998 judgment on liability was entered against you with damages to be assessed. In the meantime, in March 1997, your ex husband Mr Colin Mead had commenced proceedings in the Family Court seeking division of the matrimonial property. BL & GY, Having obtained judgment against Hypec, proceeded to make a demand for payment of the judgment debt and in due course petitioned for the winding up of Hypec. On 7 May 2001, an order was made for the winding up of Hypec upon BL & GY's petition. Mr David Watson was appointed liquidator of the company. Shortly afterwards, your ex husband, Colin Mead applied to the Equity Division of the Supreme Court Pursuant to s237 of the Corporations act 2001 seeking that leave be granted for him to intervene in the proceedings for the purpose of taking responsibility for the proceedings on behalf of Hypec. In August 2001, Mr. Mead obtained leave of the Supreme Court to apply in the name of Hypec (in liquidation) to set aside the default judgement. On 28 September 2001 the Hon Justice Sully ordered that the judgment be set aside and that Hypec have leave to file a defence and a cross-claim against you and your sister Grace Yang. I also understand that the contested hearing of BL & Y Pty Ltd's action against Hypec was listed to commence on 5 November 2001. After Sully J set aside the judgment against Hypec the company became an active defendant. Fagan SC was instructed by your ex husband to appear for Hypec in the trial in November which had been given an estimate of five days. I note in your complaint and in further submissions contained in your letter to this office dated 5 May 2003, you allege that MrWatson and Mr Connelly: "breached their duty not to protect the interests of Hypec prior to the Supreme Court proceedings in November 2001 nor Family Court's interim property proceeding in July 2001 and October 2001 but worked in collusion with the estranged husband, Colin Mead's 7 legal team to compromise their own position as the Liquidator by giving up their title to Colin Mead to represent the Hypec Elec". You further allege that Mr Watson misused his power in that he threatened you to produce certain relevant documents and that generally the unprofessional and unethical conduct of Mr Watson and Mr Connelly has caused great damage to you. I must advise you that pursuant to s134 of the Legal Profession Act 1987 ("the Act") I have jurisdiction over the conduct of legal practitioners only and therefore have no jurisdiction over Mr.Watson. I am therefore not in a position to comment on the conduct of Mr David Watson. With respect to the conduct of Mr Connelly I must advise you at the outset that there can only be a reasonable likelihood of a finding against a solicitor if there is sufficient evidence of wrongdoing by the solicitor to present at the Legal Services Division of the Administrative Decisions Tribunal ("the Tribunal"). Therefore it is important to consider what kind of evidence is available and whether it is sufficient to make a finding by the Tribunal reasonably likely. As noted above your ex husband Colin Mead applied to the Equity Division of the Court pursuant to s237 of the Corporations Act 2001 seeking that leave be granted for him to intervene in the proceedings for the purpose of taking responsibility for the proceedings on behalf of Hypec and on 21 August 2001 Einstein J made orders as sought. I therefore fail to understand how Mr Connelly is somehow responsible for this outcome and thus, I am not satisfied there is any evidence before me which would support your allegation. I therefore dismiss the complaint about Mr Connelly. On 25 October 2001 there was an application before Cohen J at the Family Court for an interim property distribution. This application I understand was interlocutory to proceedings between you and your ex husband Mr Collin Mead, for final property settlement orders. Your ex husband was seeking orders to permit the sale of enough of the disputed matrimonial property to cover certain costs already incurred and expected in the future to be incurred in the above mentioned Supreme Court proceedings. During this application Cohen J noted that the evidence showed some of the already incurred fees in the Supreme Court were payable to Holmes QC. As you indicated in your complaint and evident from the transcript of proceedings and reasons for judgement, Cohen J indicated his discomfort about hearing an application in which Holmes QC's interests were concerned due to a personal association. In your complaint you allege that Fagan SC deliberately misled the court and Hon Justice Cohen in that specifically he advised the court in response to Cohen J's concern that "Mr Holmes isn't retained any further". It is your contention that Fagan Sc, with the knowledge of Holmes QC, Mr. Bedrossian, Mr Bell, Mr Dominello and Mr Lamont and contrary to the undertaking given to the court at that time, knew that Holmes QC would indeed be further briefed in the relevant Supreme Court proceedings. I note that once Cohen J alerted counsel to his concerns the application sought was amended on your ex husband's instructions so as not to seek any provision for funding Holmes QC's outstanding fees of $17, 500.00. Fagan SC asserts in response to your allegation that at the time he was instructed by Mr Dominello, your ex husband's solicitor, that Holmes QC would not be briefed to carry out further work in the litigation for which the funding by interim matrimonial property sale was sought. According to Fagan SC and consistent with the evidence before me, he held the brief from Mr Dominello to appear in the forthcoming trial and to appear in all ancillary applications, to carry out all necessary preparation, to advise on evidence and generally to do all that would be required of counsel in connection with the litigation for which the funding was sought through the interim property orders. Fagan SC was the senior counsel generally briefed for the litigation and thus it would be highly unlikely that Holmes QC would be further briefed or retained for the litigation in the Supreme Court. However as you assert in your complaint and supported by evidence, Holmes QC was indeed further briefed in the relevant Supreme Court proceedings. As stated above the trial before Matthews AJ (AB & GY International Pty Limited v Hypec Electronics Pty Ltd (in liquidation) Commenced on 5 November 2001, but as you will be aware, exceeded its original estimated of five days. The case was to continue before Her Honour Matthews AJ on 12 November 2001, a date for which Fagan SC was unavailable due to prior commitments. Tight court schedules coupled with judicial responsibilities require that cases, once commenced, run along a strict time schedule and cannot simply be abandoned to accommodate counsel's prior commitments. Fagan SC had to find a replacement for that following Monday and in doing so briefed Cashion SC on Friday 9 November to appear on 12 November 2001. However, the other trial to which Fagan SC was committed was adjourned for one week and therefore he resumed appearance before Matthews AJ on that Monday. Again as you will be aware the trial had not concluded by Friday 16 November 2001. Fagan SC was required to find another replacement to appear on Monday 19 November. Mr. Dominello in this instance briefed Holmes QC. Fagan SC met with Holmes QC in his chambers on Saturday 17 November 2001, to discuss with him the completed draft submissions (with closing arguments) in order to place Holmes QC in a position to be able to complete the case as leading counsel for the defendants. Holmes QC appeared in the trial the week commencing 19 November 2001 on behalf of the defendants. When Fagan SC advised Cohen J on 25 October 2001 that Holmes QC would no longer be retained it was never anticipated that the trial before Matthews AJ would run for more than double its estimated hearing time. Therefore, in dealing with the application at hand before Cohen J, the instructing solicitor did not give any consideration to the possibility that it would be necessary to brief another senior counsel in the hearing. It is therefore asserted by Fagan SC and supported by the facts set out above that he and the other counsel could not have "deliberately and knowingly" withheld that Holmes QC would be further briefed in the relevant litigation, as at that time it was fully expected that Fagan SC would have full conduct of the matter. This position had not changed on 2 November 2001 when Cohen J handed down his judgment. The application was decided by Cohen J in circumstances where no suggestion or suspicion of bias on his part could be raised because, on the information made available to the court there was no contemplation that any interest of Holmes QC could be advanced by the order sought. As is evident from the facts set out above, the decision to brief Holmes QC arose out of unusual and unexpected circumstances and thus no apprehension of bias could possibly arise from the subsequent briefing. Furthermore it was not incumbent upon counsel or instructing solicitors to inform Cohen J of the family Court of the event as it occurred subsequent to, and had no bearing upon the application considered by Cohen J on 25 and 26 October 2001. In your complaint you assert that but for the alleged deception of the court by Fagan SC and the other mentioned barristers and solicitors you would "not have the injustice from the District Court and Supreme Court cases to deal with now". I refer you to the judgement of Matthews AJ in BL & GY International Co Ltd & 2 ORS v Electronics Pty Limited (In Liquidation)[200] NSWSC 38 in which Her Honour made the following observations and comments: "In conclusion I should say this. At one time I seriously considered recommending that the papers in this case be forwarded to the Director of Public Prosecutions, for a number of breaches of the criminal law have arguably been demonstrated during the course of these proceedings. During Lucy Mead's evidence-in-chief I warned her against giving answers, which might incriminate her. However, she continued to give incriminatory evidence about the falsification of entries in Hypec's books". Having given consideration to the judgement by Matthews AJ, I am not satisfied that there is a casual connection between the "terrible injustices" you have experienced in the Supreme Court and the allegation you have made about Fagan SC and the other named barristers and solicitors. In view of the evidence before me I am not satisfied that Fagan SC or any of the above named solicitors and barristers "deliberately and knowingly" misled His Honour Cohen j in Family Court proceedings on 25 and 26 October 2001. I therefore dismiss your complaints about Mr Des Fagan SC, Mr Malcolm Holmes QC, Mr Richard Bell, barrister, Mr Vahan Bedrossian, barrister, Mr Victor Dominello, solicitor and Mr Steven Lamont, solicitor. I know that you will be disappointed with my decision but I trust you understand the reasons. I thank you for bringing the matter to my attention. Yours sincerely Steve Mark 8Ms Mead wrote a further letter to the Legal Services Commissioner on 17 June 2003 to which he replied on 3 July 2003. Dear Ms Mead I refer to your letter of 17 June 2003 received in this office on the same date. What you state as fresh complaints in your letter, in fact are the same in substance as matters in your original complaint and made known to Aideen McGarrigle in your conversation of 24 March 2003 and responded to by this Office by way of letter dated 16 May 2003 . You assert in your letter that your original complaint was not properly stated in that you alleged Mr Fagan SC, Mr Bedrossian, Mr Bell, Mr Dominello and Mr Lamont "knowingly misled the court" You now allege Fagan SC and the above named barristers and solicitors, "gave an undertaking" to the court, upon which Cohen J relied, that Mr Holmes QC would no longer be retained in the matter. You allege that Mr Fagan SC and the above named solicitors and barristers breached that undertaking to the court, and thus are guilty of either unsatisfactory professional conduct and/or professional misconduct. I note the accompanying literature (including Solicitors and Barristers Conduct Rules and relevant case law) upon which you rely. I have before me the judgment of the Full Court of the Family Court in the matter of Mead v Mead [26 May 2003] and note your fourth ground of appeal: "That events subsequent to the decision of Cohen J in relation to the identify of Counsel briefed show that Cohen J erred in not disqualifying himself" In addressing this aspect of your appeal I note the Full Court considered Fagan SC's statement to Cohen J with respect to Holmes QC no longer being retained in the proceedings. It is with this in mind that I note you rely on Myers v Elman [1940] AC 282 and remind you that an undertaking is held to be a solemn promise and represents a trust between colleagues, between legal practitioners and the court. A breach of an undertaking to the court would constitute contempt of court. In view of the importance placed in undertakings by Australian courts and the court's inherent disciplinary power, it was open to the Full Court of the Family Court to address this issue specifically raised by you in your appeal. The Full Court, however, at paragraph 41, specifically referred to Fagan SC's statement as a "statement" rather than an "undertaking". I note the copy of Mr Victor Dominello's affidavit, dated 26 May 2003 and filed in the Family Court proceedings SY 3359 of 1997 (in the Matter of Mead), attached to your complaint. I understand this affidavit was filed in support of your ex husband's submissions with respect to the further briefing of Holmes QC. I note the Full Court found at paragraph 42 that: "In circumstances explained (without demur) in the submissions put forward for the husband, subsequently this barrister was briefed in respect of part of the proceedings". The Court thus concluded, at paragraph 43, that in these circumstances briefing Holmes QC did not vitiate Cohen J's decision. In view of the judgment of the Full Court of the Family Court I am not satisfied Fagan SC gave an undertaking, as alleged by you, to the court. In these circumstances, and as communicated to you by letter of 16 May 2003, I have determined that the conduct complained would not attract any disciplinary action. Thank you for bringing this matter to my attention but please note that future correspondence that does not raise new issues will simply be filed in this office without acknowledgement. Yours Sincerely Steve Mark 9Sections 7 and 19 of the Act are relevant to this case. 7 What constitutes discrimination on the ground of race (1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of race if, on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, the perpetrator: (a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different race or who has such a relative or associate of a different race, or (b) segregates the aggrieved person from persons of a different race or from persons who have such a relative or associate of a different race, or (c) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons not of that race, or who have such a relative or associate not of that race, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. (2) For the purposes of subsection (1) (a) and (b), something is done on the ground of a person's race if it is done on the ground of the person's race, a characteristic that appertains generally to persons of that race or a characteristic that is generally imputed to persons of that race. 19 Provision of goods and services It is unlawful for a person who provides (whether or not for payment) goods or services to discriminate against another person on the ground of race: (a) by refusing to provide the person with those goods or services, or (b) in the terms on which the other person is provided with those goods or services. 10"Race" is defined in s4 to include "colour, nationality, descent and ethnic, ethno-religious or national origin". 11Ms Mahony did not seek to argue that the Legal Services Commissioner was not providing "services" as that word is defined in s4. Accordingly for Ms Mead's claim to be upheld under the Act she needs to show that the Legal Services Commissioner refused to provide her with a service on the grounds of her race, ie relevantly colour, nationality or national origin. 12The only evidence to which the applicant could point was the reference to "a Taiwanese based export company" in the Commissioners letter of 3 July 2003. That reference which is merely descriptive of the company may have been unnecessary but it certainly provides no evidence that the Commissioner discriminated against the applicant by reason of her nationality or otherwise in an unlawful manner. The fact is that the Commissioner's letter of 16 May 2003 provided compelling reasons for his decision which in my view was with respect, patently correct. 13As in my opinion there is no substance in Ms Meads contention that she has been unlawfully discriminated against in the provision of services it would in my view not be an appropriate exercise of judicial discretion to give her leave to proceed in this Tribunal. Order The application under s96(1) of the Anti-Discrimination Act for leave to bring proceedings before the Tribunal is refused. ********** 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. Decision last updated: 01 November 2012