Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Fitzsimons v Council of the Law Society of New South Wales [2013] NSWCA 95 Hearing dates: 22 April 2013 Decision date: 22 April 2013 Before: Barrett JA Decision: 1.Notice of motion dismissed. 2.The applicant under the notice of motion will pay the respondent's costs of the notice of motion. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: APPEAL AND NEW TRIAL - appeal - whether competent - Administrative Decisions Tribunal decides that solicitor is guilty of professional misconduct and foreshadowed later decision as to orders that should be made - where avenue of appeal is created by the Legal Profession Act 2004 - that Act allows appeal from an "order or other decision made by the Tribunal" - decision of guilt of professional misconduct is such a "decision" Legislation Cited: Legal Profession Act 2004, s 729A Category: Interlocutory applications Parties: Maria Angela Fitzsimons - Appellant Council of the Law Society of New South Wales - Respondent Representation: Ms C M Groenewegen - Appellant M W Young SC - Respondent Lyons & Lyons - Appellant Ms A Foord - Law Society of New South Wales File Number(s): 2012/397020 Decision under appeal Citation: [2012] NSWADT 242 Date of Decision: 2012-11-23 00:00:00 Before: Judicial Members M Riordan and J Pheils; Non-Judicial Member R Fitzgerald File Number(s): 092018 Judgment 1A notice of appeal was filed on 22 February 2013 by Ms Fitzsimons. The Council of the Law Society of New South Wales is named in the notice of appeal as respondent. 2I now have before me a notice of motion which raises the question of the competency of the appeal. 3Ms Fitzsimons was the subject of proceedings brought in the Administrative Decisions Tribunal of New South Wales against her by the Law Society. The Tribunal, on 23 November 2012, published a document headed "Judgment" in which it recorded various findings and concluded by saying; "For the foregoing reasons, our decision is that the Solicitor is guilty of professional misconduct." 4The Tribunal then laid down procedures for progressing the matter for the purpose of determining whether the orders sought by the Law Society should be made and, if not, what other course of action should be adopted. There, in substance, the matter rests, so far as the Tribunal is concerned. 5The contention upon the present motion is that the appeal is incompetent because no order has been made, having substantive effect, and that is a prerequisite to the bringing of any appeal. 6The avenue of appeal in this case is under s 729A of the Legal Profession Act 2004. Subsection (1) of that section says: "An order or other decision made by the Tribunal under this Act may be appealed to the Supreme Court by a party to the proceedings in which the order or decision was made." 7The section then goes on to make specifications with respect to the nature and conduct of such an appeal. 8It being accepted that there is no "order" of the Tribunal, the central question is whether there is in terms of s 729A(1) some "other decision made by" the Tribunal. 9The answer to my mind is provided by the "Judgment" to which I have referred. It is stated clearly therein: "our decision is that". There has thus been a "decision made by the Tribunal". 10An event upon which the operation of s 729A(1) is predicated, that is, the making of a "decision" by the Tribunal has therefore occurred. It follows that the avenue of appeal that has been adopted is an available avenue and that the appeal is competent. 11The notice of motion is therefore dismissed. [Submissions on costs] 12The applicant under the notice of motion will pay the respondent's costs of the notice of motion. ********** 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: 26 April 2013