Supreme Court New South Wales Medium Neutral Citation: Dennis v Council of the Law Society of New South Wales [2014] NSWSC 1487 Hearing dates: 23 October 2014 Decision date: 31 October 2014 Before: Hoeben CJ at CL Decision: (i) The decision of the defendant of 16 October 2014 to suspend the practising certificate of the plaintiff is set aside. (ii) The decision of the defendant of 16 October 2014 to appoint a manager to the plaintiff's practice is set aside. (iii) Subject to order (iv) the defendant is to pay the plaintiff's costs of these proceedings. (iv) If either party seeks a different form of costs order, he or it should send a submission to that effect to my Associate and the other party within seven days, such submission not to exceed 3 pages. Failing the receipt of any such submission, the order for costs in (iii) above will stand. Catchwords: LEGAL PRACTITIONERS - decision by Council of the Law Society of NSW to suspend practising certificate and appoint a manager - complaints of refusal to comply with requests of investigator and of obstructing investigator - dispute as to meaning of sections of Legal Profession Act 2004 - appeal against suspension and appointment of manager - hearing de novo - meaning of sections 267, 268 and 270 of Legal Profession Act 2004 - whether suspension necessary in the public interest - whether complaints made out. Legislation Cited: Legal Profession Act 2004 (NSW) - s548, s549, s623, s267, s268, s270, s271 Cases Cited: Berger v Council of the Law Society of NSW [2013] NSWSC 1080 Helby v Council of the Law Society of NSW & Anor [2013] NSWSC 1938 Category: Principal judgment Parties: Bruce Vernon Dennis - Plaintiff Council of the Law Society of NSW - Defendant Representation: Counsel: Mr JT Johnson - Plaintiff Mr P Maddigan - Defendant Solicitors: Watson & Watson - Plaintiff Law Society of NSW - Defendant File Number(s): 2014/307579 Judgment 1HIS HONOUR: Nature of proceedings By an Amended Summons, filed in court on 23 October 2014, the plaintiff (the solicitor) seeks orders setting aside the decision of the Law Society of NSW ("the Society") to suspend his practising certificate and appoint a manager to his practice, made 16 October 2014. The Summons is brought pursuant to s549 Legal Profession Act 2004 (NSW) ("the Act"). 2The appeal grounds in the Amended Summons are: (1)The defendant erred in determining that there was a valid and effectual request by Lucia Moliterno acting as Investigator appointed by it dated 16 September 2014. (2)Upon delivery by Lucia Moliterno as Investigator of her report under s270 of the Legal Profession Act 2004 on 28 August 2013 her appointment as Investigator by Appointment Instrument dated 16 May 2014 issued under s267 of the Legal Profession Act was satisfied and she became functus officio in respect of that instrument of appointment. (3)After the circumstances referred to in paragraph (2) above, in order for the defendant to appoint Lucia Moliterno as Investigator it was necessary for it to execute a further Appointment of Investigator pursuant to s267 Legal Profession Act 2004. (4)Absent there being a valid and effectual appointment of Lucia Moliterno existing as at 16 September 2014 and at all times thereafter there was no power conferred upon her pursuant to the Legal Profession Act 2004 to obtain access to information and records the subject of confidentiality and duties of client legal privilege and legal professional privilege. (5)In the circumstances of there being no valid and effectual appointment pursuant to s267 of the Legal Profession Act 2004 there was no wilful failure on the part of the plaintiff to comply with the request dated 16 September 2014. (6)In the circumstances referred to in paragraphs 1 - 5, all of which were communicated to the defendant before the decision the subject of the appeal, the plaintiff had a reasonable excuse for refusing to provide materials to Lucia Moliterno acting as an Investigator on behalf of the defendant. 3The following evidence was before the Court: (a)Affidavit of Maria Papanicolaou, filed 20 October 2014. (b)Emails passing between counsel for the solicitor and the Society, between 3 October 2014 and 10 October 2014 (exhibit A). (c)Emails passing between the Society and the solicitor and his representatives in addition to those annexed to the affidavit of Ms Papanicolaou (exhibit 1). Factual background 4On the basis of that material, which was relatively uncontroversial, the background to these proceedings is as follows: 5On 16 May 2013 Lucia Moliterno was appointed pursuant to s267 of the Act to investigate the affairs of the law practices known as "Dennis and CO" and "DC Legal Pty Ltd". Following the investigation and in accordance with s270 of the Act, Ms Moliterno produced a report dated 28 August 2013. This report forms part of the evidence relied upon by the Society in proceedings commenced against the solicitor in the NSW Civil and Administrative Tribunal (NCAT). 6The instrument of appointment of Ms Moliterno was in the following form: "Appointment of Investigator (Section 267) On the 16th day of May 2013 and pursuant to Section 267of the Legal Profession Act, 2004 (as amended) ("the Act") the Council of the Law Society of New South Wales appointed LUCIA MOLITERNO (a specimen of whose signature appears below) to investigate as provided in Section 268(1)(b)of the Act the affairs of the law practices known as Dennis & Co (FN: 5811) (disposed 20 July 2009) and DC Legal Pty Ltd (FN: 21099). DATED this 16th day of May 2013. John Dobson(sgd) President Law Society of NSW Lucia Moliterno (specimen signature)" 7On 17 July 2013 a further complaint in relation to the dealings of the solicitor's law practice with various investors of the Great Southern Group of Companies was received by the Office of Legal Services Commissioner (OLSC). It was common ground that this complaint was unrelated to the complaints, the subject of the NCAT proceedings. 8Some information was before the Court as to the content of the complaint received on 17 July 2013. This is set out in the report of Ms Moliterno of 30 September 2014. The complaint was made by a Victorian legal practitioner, Mr Ron Willemsen, of M + K Lawyers. The OLSC referred that complaint to the Law Society. 9Ms Moliterno summarised the content of the complaint as follows: "Mr Willemsen has the carriage of legal proceedings commenced in the Supreme Court of Victoria against Great Southern on behalf of various investors. Those legal proceedings are in the form of a class action (Group Proceedings). Briefly stated, in the complaint Mr Willemsen alleges that DC Legal and Dennis on more than one occasion through material they published attempted to mislead investors of Great Southern as to actions they could take to assist them in protecting their interests in Great Southern in circumstances where, because of the existence of the Group Proceedings, they were not in a position to do so. Additionally Mr Willemsen alleges that DC Legal and Dennis failed to publish corrections to the alleged misleading material they had circulated notwithstanding their promise to do so." 10The course followed in relation to this complaint was also summarised by Ms Moliterno in that report as follows: "The Law Society forwarded the complaint to Dennis by letter dated 16 October 2013 and received a reply to it from him by letter dated 21 November 2013. In that reply, many of the issues raised by Mr Willemsen have not been specifically addressed. The Law Society referred that reply to Mr Willemsen who made additional submissions. These were sent by the Law Society to Dennis by letter dated 11 March 2014. The Law Society has not received a reply to that letter. On 10 September 2014 I received instructions from the Law Society to investigate the affairs of DC Legal in respect of Great Southern pursuant to my appointment dated 16 May 2013." 11On 16 September 2014 Ms Moliterno sent a letter to DC Legal Pty Ltd, marked for the attention of the solicitor, and headed: "Investigation of DC Legal Pty Ltd (DC Legal)". The introductory words of the letter were as follows: "I refer to my appointment as investigator of DC Legal pursuant to s267 of the Legal Profession Act 2004 (as amended). I note that Mr Bruce Dennis already holds a copy of the relevant instrument of appointment. I request that DC Legal make available to me the following: There followed a list of documents and information required to be produced by the law practice to Ms Moliterno. It included a number of client files. 12The letter concluded with the following: "I request that the materials specified in this letter be made available to me by DC Legal for perusal at its offices, XX O'Connell Street, Sydney at 9am on Wednesday, 24 September 2014. Please note that as part of my investigation I may call upon DC Legal to make additional information available to me in the future." 13By letter dated 17 September 2014 the solicitor wrote to Mr L Pierotti from the Society as follows: "Investigations of DC Legal Pty Ltd We refer to the outstanding issues before the NCAT in relation to access to materials relied upon by the investigator for the purposes of her report and evidence in the proceedings. We have today received a letter from the investigator seeking additional information and material. It was our understanding that the investigation by the investigator had been completed at least having regard to the terms of the report that is the subject of the NCAT proceedings. We are loathe to communicate with a witness in the proceedings particularly in circumstances where what she has already sworn is to be the subject of cross-examination and we would wish to establish: (a) whether the investigation being undertaken and which is the subject of the Report already served has been completed or is ongoing; (b) whether it is intended to supplement the evidence given by the investigator in the proceeding; (c) whether there is any objection to us communicating with the investigator having regard to the peculiar circumstances of the investigation and the proceedings at NCAT. Pending your response we do not consider it is appropriate for us to communicate with the investigator, she of course being for relevant purposes associated with the Law Society, having been appointed by the Law Society Council who is the prosecutor in the NCAT proceeding. ..." Other matters were referred to in the letter which are not relevant. 14By letter dated 18 September 2014 Mr Pierotti replied: "Investigations of DC Legal Pty Ltd I acknowledge receipt of your letter dated 17 September 2014. The Society cannot and does not have any objection to you communicating with Ms Moliterno. Ms Moliterno's enquiries are unrelated to the proceedings currently before the Tribunal. As Mrs Barnes is dealing with the further investigation, I have referred your e-mail to her. You should, if necessary, communicate with her on this aspect." 15By letter dated 19 September 2014 the solicitor wrote to Mr Pierotti as follows (he apparently not having received Mr Pierotti's letter of 18 September at that time). "Investigations of DC Legal Pty Ltd We refer to our letter of 17 September 2014 to which we have not received a reply. Would you please request or supply to us a copy of the original Notice of Appointment of Lucia Moliterno as an "Investigator" pursuant to the provisions of s270 of the Legal Profession Act 2004 to investigate the affairs of Dennis and Co and DC Legal Pty Ltd. As we have indicated in our earlier letter we consider that the investigation had completed by the production of the report pursuant to that section dated 28 August 2013. To the extent that there is a second appointment of Lucia Moliterno would you please advise and provide a copy of the document evidencing or recording her appointment as Investigator whether pursuant to the provisions of s270 of the Legal Profession Act 2004 or any other section of that legislation. Noting the fact that the ongoing complaint appears to be predicated by issues raised by two firms of solicitors who are adversaries in proceedings in the Supreme Court of Victoria concerning the vexed issue of approval of a settlement negotiated between one of those firms on behalf of a group of investors and the Great Southern Plantation Managed Investment Schemes and who is to receive a substantial benefit as a consequence of those schemes; and the fact that Mr Dennis on behalf of clients that he has represented in parallel proceedings and independently has been making submissions in opposition to the acceptance of that settlement, there is a very real concern that the Law Society is being used by the complainant firms to bring inappropriate and/or improper pressure to bear upon Mr Dennis and this firm whilst ever those issues remain undetermined so as to discourage Mr Dennis and this firm from pressing as they would be obliged to do the submissions that are being made. To the extent that it may be seen as by a reasonable person that the ongoing future inquiries or current inquires being conducted by Lucia Moliterno are or may constitute such conduct we request that the Law Society suspend any investigation that may have been recommenced or continued by Lucia Moliterno until: (a) The determination of the current proceedings that have been commenced by the Law Society of NSW against Mr Dennis; and/or (b) The determination of the proceedings in the Supreme Court of Victoria. Of course such extension is predicated upon an undertaking on the part of Mr Dennis and this firm to maintain any relevant records and is not to be treated as a termination of any proper investigation. This letter is being forwarded to you on the same basis as the letter of 17 September 2014 as we do not consider in circumstances where Lucia Moliterno will be required to give evidence and be cross-examined on her report of 28 August 2013 adopted for the purposes of the proceeding in NCAT by her affidavit of 10 February 2014." 16On 22 September 2014 the solicitor sent a letter to Ms Moliterno as follows: "RE: BRUCE DENNIS AND THIS FIRM We refer to your recent letter requiring access to materials in your capacity as Investigator appointed by the Law Society Council. We attach for your information copy of letters as follows: 1. Our letter to Louis Pierotti of the Law Society concerning contact and communication with you; and 2. Letter from Louis Pierotti in response. In order that we may consider the matter further particularly as we considered when you completed your report in August 2013 that your role in relation to any "investigation" had completed would you please provide us with: (a) A copy of the document pursuant to which you were originally appointed Investigator?; (b) If there has been a new appointment of yourself as "Investigator" a copy of any new appointment document? We indicated that we are having some difficulty in collating all of the relevant materials which you seek by Wednesday this week as we wish to copy all documents that are made available to you. We also seek your indulgence as indicated in our letter to Mr Pierotti regarding the furtherance of the investigation pending the outcome of submissions that are being made to the Supreme Court of Victoria, Justice Croft. We have a very real concern that the renewal of the complaint by the two complainants is predicated to bring inappropriate and/or improper pressure to bear upon Mr Dennis in relation to the carrying into effect of instructions held by him concerning the proposed settlement of the Great Southern Litigation. We communicate with you only having received the latest communication from Mr Pierotti." 17By letter dated 23 September 2014 Ms Moliterno responded as follows: "Investigation of DC Legal Pty Ltd I refer to your letter dated 22 September 2014. As requested, I enclose a further copy of the Notice of Appointment as investigator to the law practice known as DC Legal Pty Ltd. From it, you will see that my appointment is made pursuant to Section 267 of the Legal Profession Act 2004 (as amended) and, relevantly, is in respect of "the affairs of the law practice known as DC Legal Pty Ltd (FN: 2l099) ". Therefore, it is not limited to any particular matter or period. The documents which I have requested in my letter dated 16 September 2014 are not related to the same matter in respect of which I prepared a report last year. This is clear from the letter itself and has also been confirmed by Mr Pierotti in his reply to you dated 18 September 2014. In the second last paragraph of your letter dated 22 September 2014, you assert that you have "a very real concern that the renewal of the complaint by the two complainants ...". Please note that the complaint by Mr Willemsen has never been determined. In your letter of 22 September 2014, you have foreshadowed that you will not be in a position to provide to me all the documents I have requested by the date stipulated in my letter dated 16 September 2014. However, you have also stated that your staff has started the collating process. Accordingly, I will be attending your office at XX O'Connell Street, Sydney at 9.00am on 24 September 2014 to peruse such material as is ready at that time and also to be informed of when the remainder will be made available to me for perusal." 18Ms Moliterno also sent emails to the law practice on 23 September 2014 confirming that she would be visiting the practice at 9am on 24 September 2014. 19By letter dated 23 September 2014 the solicitor responded to Ms Moliterno's letter as follows: "RE: INVESTIGATIONS OF DC LEGAL PTY LTD (DC LEGAL) We refer to your letter dated 23 September 2014 enclosing copy of the Notice of Appointment of yourself as Investigator pursuant to the provisions of s. 267 of the Legal Profession Act 2004 dated 16 May 2013. We have previously raised with you our concerns relating to your request for access to additional documents and the extent of your appointment. The provisions of s. 270 of the Legal Profession Act 2004 provide as follows: "As soon as practicable after completing the investigation, the investigator must give a written report of the investigation to the Law Society Council." By reference to an affidavit sworn by you on 10 February 2014 in proceedings commenced by the Law Society Council against Bruce Vernon Dennis in the NCAT, it is apparent that on 28 August 2013 you produced a report in accordance with the provisions of s. 270 of the Legal Profession Act 2004. That report of course is relied upon by the Law Society Council in proceedings presently before the NCAT. We consider that on the basis of the information presently disclosed to us your role as Investigator under the provisions of the Appointment document dated 16 May 2013 has ended and therefore, having received advice on this issue by Counsel retained in the proceedings in the NCAT and for the reasons set out in our letters that had previously been forwarded to the solicitor for the Law Society in those proceedings and copied to yourself, we respectfully decline to provide you with access to the materials that you seek. A copy of this letter is being provided to Louis Pierotti on behalf of the Law Society." 20On 24 September 2014 Ms Moliterno attended the law practice at 9am and asked to speak to the solicitor. She was told that he was travelling overseas to attend a wedding and would not be available to meet with her. Ms Moliterno confirmed that she had received the letter of 23 September from the solicitor. 21When Ms Moliterno asked for access to the files and other documents which she had requested to be made available to her, that access was refused. She was provided with an email from Mr J Johnson of counsel, dated 23 September 2014, addressed to the solicitor. Ms Moliterno read the email while at the law practice and having asked permission, took it with her when she left. 22The contents of the email were as follows: "During this afternoon in relation to the I refer to the telephone discussion with yourself and Maria this afternoon concerning the ability of Lucia Moliterno purporting to act as "Investigator" under a document dated 16 May 2013 to gain access to your premises in accordance with the powers of an "Investigator" under the provisions of the Legal Profession Act 2004. Lucia Moliterno completed her investigation and provided her report in accordance with the provisions of s. 270 of the Legal Profession Act 2004 on 28 August 2013. That report is now the subject of the substantive evidence relied upon by the Law Society Council in proceedings current in the NCAT. Lucia Moliterno has been required to be available for cross examination and a request has been made for access to all of the materials which she identified as having available to her and which she relied upon for the purposes of the report - which she and the Law Society Council have declined to make available. A request was made to the solicitor for the Law Society Council and following a response from him to Lucia Moliterno in relation to the concerns that you have in relation to the attempt to renew an investigation which has it now appears to have been completed. In my opinion unless you are advised of the true nature and extent of the complaint which is the subject of the investigation there is justification for you to form a view that the renewal of the investigation by the Investigator after the completion of her report may constitute an abuse of power on her behalf and possibly on behalf of the Law Society Council. At the time of the delivery of the report prepared by Lucia Moliterno her investigation was complete and in my opinion if she wishes to reopen her investigation or the Law Society Council wishes to reopen the investigation, notwithstanding the matters that have been raised spoke with the Law Society Council and with Lucia Moliterno in communications that have been forwarded to both of them it is necessary that a further appointment occur. Having regard to the foregoing Lucia Moliterno has no standing to seek or to force access to any client files or to demand that any information from you in connection with the performance of duties either by yourself or by DC Legal Pty Ltd under the Legal Profession Act 2004. To the extent that Lucia Moliterno may seek to obtain such access I have no objection to you making available to her a copy of this email. JT Johnson" 23On 2 October 2014 Mr Pierotti, on behalf of the Society, sent two letters to the solicitor. The relevant parts of the first letter were: "DC Legal Pty Ltd The Society has become aware that you are absent from DC Legal Pty Ltd on leave from 24 September 2014 until 27 October 2014 and that Mr R Watson, solicitor, has been appointed to sign general and trust cheques in your absence. ... As you will be aware, I have spoken to your Counsel, Mr Johnson, requesting his advices as to which matters I should consider appropriate to raise with him (on your behalf). I am of the view that this letter is required to be forwarded to you in the first instance. You may then, should you so choose, have Mr Johnson communicate with me in respect thereof." 24The second letter, dated 2 October 2014, was in the following terms: "Re: Immediate Suspension of your Practising Certificate I enclose a copy of the Report of Ms Lucia Moliterno made pursuant to section 270 of the Legal Profession Act, 2004 and dated 30 September 2014 ("the Report"). The purpose of this letter is to formally advise you that having regard to the seriousness of the matters referred to in the Report I propose to ask the Council of the Society to give consideration to the immediate suspension of your practising certificate pursuant to provisions of Section 548 of the Legal Profession Act 2004. As you are a sole principal, the Council will need to give consideration to the appointment of an external intervener into the law practice, DC Legal Pty Ltd. You are invited to make such submissions and provide such material as you believe appropriate as to why the Council of the Law Society should not immediately suspend your Practising Certificate and proceed to the appointment of an external intervener to the Law Practice known as DC Legal Pty Ltd. Any such submissions, in writing, should be received by me by no later than 10.00am on Wednesday 15 October 2014. I will ensure that any such submissions are made available to the Council. As you will be aware, I have spoken to your Counsel, Mr Johnson, requesting his advices as to which matters I should consider appropriate to raise with him (on your behalf). I am of the view that this letter is required to be forwarded to you in the first instance. You may then, should you so choose, have Mr Johnson communicate with me in respect thereof. Yours faithfully, LOUIS PERIOTTI" 25I have already referred to parts of the report of Ms Moliterno of 30 September 2014 at [9] - [10] hereof. I will not repeat that material. The balance of the report was in the following terms: "REPORT TO THE COUNCIL OF THE LAW SOCIETY OF NEW SOUTH WALES SUBJECT: INVESTIGATION OF THE AFFAIRS OF THE LAW PRACTICE KNOWN AS: DC LEGAL PTY LTD (FN: 21099) 1. APPOINTMENT I accepted my appointment as investigator by the Council of the Law Society of New South Wales (Law Society) on 21 May 2013. The appointment was in respect of the affairs of the law practices known as Dennis & Co and DC Legal Pty Ltd. 2. INSTRUCTIONS TO INVESTIGATE In September 2014, I received instructions from the Law Society to investigate the affairs of DC Legal Pty Ltd (DC Legal) in respect of its dealings with various investors of Great Southern Group of Companies (Great Southern). These instructions follow receipt by the Office of the Legal Services Commissioner (OLSC) of a complaint dated 17 July 2013 made by a Victorian legal practitioner, Mr Ron Willemsen of M+K Lawyers, against DC Legal and Mr Bruce Dennis (Dennis) who currently is the principal of DC Legal. OLSC referred that complaint to the Law Society which allocated it File No 40266 (Complaint). ... 3. THIS REPORT This report sets out the communications I have had with DC Legal to date in relation to my investigation of its affairs in respect of Great Southern. 4. STEPS TAKEN WITH DC LEGAL Pursuant to Attachment A, on 16 September 2014, I sent a letter to DC Legal requesting that it make available to me for perusal, by a stipulated date, various documents relating to Great Southern (Attachment B). DC Legal responded by letter dated 22 September 2014 (Attachment C). I replied to Attachment C by letter dated 23 September 2014 (Attachment D). DC Legal responded to Attachment D by letter dated 23 September 2014 (Attachment E). At 9.00am on 24 September 2014, I attended the office of DC Legal XX O'Connell Street, Sydney, to peruse such of the material which I had requested in Attachment B as was ready. Dennis was absent from the office and I dealt with his paralegal, Maria Papanicolaou. In summary, with respect to my request for documents, she informed me that her instructions were to give me only a "note" and no other document. The "note" was a copy email from Jim Johnson, Counsel, to Bruce Dennis dated 23 September 2014 (Attachment F) in which Mr Johnson, after referring to various matters, concluded that: "... Lucia Moliterno has no standing to seek or to force access to any client files or to demand that (sic) any information from you in connection with the performance of duties either by yourself or by DC Legal Pty Ltd under the Legal Profession Act 2004". I have prepared a detailed file note of my attendance at the office of DC Legal on 24 September 2014 (Attachment G). 5. CONCLUSION My request for production by DC Legal of the documents I have listed in Attachment B for perusal concerns the matter of Great Southern and arises from the Complaint of which both DC Legal and Dennis have been aware since late October 2013. I made that request on the instructions of the Law Society which has advised me that my appointment on 16 May 2013 as investigator of the affairs of DC Legal has not been terminated. DC Legal has "respectfully declined to provide (me) with access to the materials that (I) seek". To the extent that this may be relevant, it is my understanding that the Group Proceedings have been heard but judgment is yet to be delivered. It appears that presently a settlement is being considered. For any settlement to be effective in the Group Proceedings, it will require the Court's approval. (SGD) Lucia Moliterno Date: 30 September 2014" 26By email dated 6 October 2014, signed by Elizabeth Barnes, a solicitor employed by the Society in its Professional Standards Section and addressed to the solicitor, the Society advised the following: "Law Society complaints against you The Society has resolved to make complaints against you under section 504 of the Legal Profession Act, 2004 arising out of the report dated 30 September 2014 of Ms Lucia Moliterno. I note that a copy of Ms Moliterno's report was provided to you under cover of Mr Pierotti's letter to you dated 2 October 2014. The text of the complaint is as follows: 1. The solicitor wilfully failed to comply with the request dated 16 September 2014 of the Investigator, Ms Moliterno. 2. The solicitor without reasonable excuse obstructed the Investigator, Ms Moliterno. To enable the Professional Conduct Committee to fairly consider the complaint, you must provide me with your written response to the complaint, within 14 days of the date of this letter. You should include copies of any document that may support your account. I enclose for your information brochures entitled "Senior Solicitors' Scheme" and "Complaints Process Information". Yours faithfully, (SGD) Elizabeth Barnes, Solicitor Professional Standards" 27On 7 October 2014 Mr Periotti sent an email to Mr Johnson as follows: "Dear Mr Johnson, I note that on Friday last you forwarded a number of e-mails to me. To ensure that none of the issues raised are not responded to, I will respond to each e-mail individually. With respect to your e-mail of 11.32 am, I should initially advise that contrary to the terms of the third paragraph, no attachment was forwarded. In any event, I advise as follows in respect of Ms Moliterno's appointment: 1. Her appointment is dated 16 May 2013; 2. Her report of 30 September 2014 records, in paragraph 1, that she accepted the appointment on 21 May 2013. There is only one appointment, a copy which is attached to her report; 3. Ms Moliterno's appointment is in general terms [as permitted by Sections 267/8 of the Legal Profession Act, 2004 (the Act)] and is not restricted to any particular "allegations" or time period. Indeed, the appointment refers to the "affairs" of the relevant practices. 4. The Society has no involvement with any proceedings which may be on foot and its investigation of any complaints is not "to induce Mr Dennis from acting in accordance with his instructions in the interests of his clients" nor is it "... for the purposes of bringing improper pressure to bear upon Mr Dennis in the performance of his duties as an Australian legal practitioner". It should also be noted that Mr Willemsen's complaint was referred to the Society by the Office of the Legal Services Commissioner in July 2013; and 5. The Society has made its position on Ms Moliterno's investigation [and powers] quite clear. If need be, it does not agree with your client's stated position. For the purpose of my letter of 2 October 2014 I should indicate that on 2 October 2014 the Professional Conduct Committee of the Society made the following complaints against Mr Dennis [see Section 504 of the Act ]: 1. The solicitor wilfully failed to comply with the request dated 16 September 2014 of the Investigator, Ms Moliterno. 2. The solicitor without reasonable excuse obstructed the Investigator, Ms Moliterno. Your client will be written to quite separately with respect to these complaints. I again invite you to make such submissions as you may wish to make as to why the Council should not consider resolving as suggested in my letter of 2 October 2014. Louis Pierotti Litigation Manager, Professional Standards The Law Society of New South Wales" 28By email, dated 7 October 2014 Mr Johnson advised Mr Periotti that he was urgently seeking instructions from the solicitor. Later that day, Mr Johnson sent the following email to Mr Periotti: "This afternoon my client received a communication from Elizabeth Barnes of your office in relation to the position of Lucia Moliterno. He has provided that document to me with instructions to respond. Having regard to your involvement in the proceeding and the fact that it is not apparent the specific authority of Elizabeth Barnes I propose to respond to you directly on behalf of the Law Society Council. It was my understanding that communications relating to the position of Lucia Moliterno vis-a-vis further enquiries that appear to have been requested by the Law Society Council were being directed by you through me. The document signed by Lucia Moliterno and lodged with the Law Society Council contains a copy of an advice given by me concerning the powers of Lucia Moliterno under her original Instrument of Appointment - her investigation had been finalised and she lodged her report. Until your email to me today it has not been suggested that this position was not a correct statement of the law - although you do not appear to address the specific formal requirements nor satisfaction of those requirements concerning the appointment of Lucia Moliterno in respect of the performance of her duties. As I have indicated in communications with you, and also with Elizabeth Barnes of your office I am endeavouring to assist the Law Society in all respects in respect of its lawful entitlement to obtain access to information from client files. Absent a lawful entitlement it is clear that my client would in fact be in breach of his duties of confidentiality and client legal privilege and legal professional privilege to make materials available to Lucia Moliterno. This is an issue that can be clarified by the Law Society Council issuing an appropriate authority for her, namely a new authority, authorising her to act in relation to the particular investigation the subject of the resolution that is referred to in your communication. It is quite wrong for Elizabeth Barnes to suggest in the circumstances that: "1. The solicitor wilfully fail to comply with the request dated 16 September 2014 of the Investigator, Ms Moliterno 2. The solicitor without reasonable excuse obstructed the Investigator, Ms Moliterno." In fact it is quite apparent from the Report of Lucia Moliterno dated 30 September 2014 the basis upon which refusal of access was made and that basis makes it obvious that there has been no "wilful failure" or no proper basis for there to be a "reasonable excuse" to refuse access to the premises of my client has a legal practitioner and my client as an Australian law firm as indicated. As has been indicated in communications both with you and with Elizabeth Barnes arrangements can be made, subject to the other observations relating to the timing of the investigation which I do not repeat, for an appropriately authorised person on behalf of the Law Society Council to obtain access to those files. I note that there is a reserved judgement of a Member of the NCAT in relation to obtaining copies of materials that were provided to Lucia Moliterno for the purposes of her earlier report. Before any materials are made available I have advised my client that in the circumstances of the refusal on the part of the Law Society Council to make available a copy of materials relied upon by Lucia Moliterno for the purposes of any future report that a copy of those materials be taken and made available to me. I consider that to be a reasonable position having regard to the position now taken by the Law Society Council in the proceedings in the NCAT reliant upon the provisions of s. 601 and 602 of the Legal Profession Act 2004 so as to enable my client to obtain natural justice in respect of proceedings that maybe commenced against him following the new course of inquiry. I confirm once again to you, on the record, that communications in relation to enquiries directed by the Law Society Council to Lucia Moliterno as a purported investigator may be directed through me on behalf of Mr Dennis and DC Legal Pty Ltd. JT Johnson" 29By email dated 8 October 2014 addressed to Mr Pierotti, Mr Johnson said: "I refer to my email last night relating to the issues associated with the purported appointment of Lucia Moliterno as Investigator. The position taken by each of my clients is that there is no presently outstanding valid and effective Instrument of Appointment of Lucia Moliterno to act as appears to have been "intended" by the Law Society Council. Her original appointment was to conduct an investigation into various matters and she finalised that, a matter implicit in her actions in August 2013, by the lodgement of a report in accordance with the provisions of s. 270 of the Legal Profession Act 2004. No proper indication as to an opposing position has been disclosed in any of the communication is received from the Law Society to date. There would appear to be no impediment to the Law Society Council to the extent that it considered it necessary to do so appointing Lucia Moliterno, subject of course to the fact that she is likely to be cross-examined in the NCAT proceedings commenced against Bruce Vernon Dennis, for the purposes of conducting further investigations. If that occurs I am instructed to confirm that my clients will assist in any such investigation that may be sought to be undertaken by Lucia Moliterno as a properly appointed Investigator. In my email last night I make clear that my clients would wish to retain a copy of the precise materials delivered to her so that circumstances such as those existing in the present NCAT proceedings where the Law Society Council had sought to restrict access to materials of a similar nature under the provisions of s. 601 and s. 602 of the Legal Profession Act 2004 have been raised. So far as earlier requests for information by the Law Society are concerned sought to ascertain the position in respect of what appears to have been a failure to respond. A draft letter dated 9 May 2014 has been located. I am advised by Mr Dennis that he approved this letter which was typed by a former employee, Ms Gina Weir. I have been advised that she has been contacted to ascertain whether the letter was in fact forwarded and she has no clear recollection. To that extent it must be accepted that due to some level of inadvertence it was not forwarded. I attach copies of the following: (1) letter dated 9 May 2014 with annexures; (2) schedule of clients of DC legal Pty Ltd who were represented by Mr Dennis at the mediation; (3) copy of Mediation Agreement in the last form which I have been able to locate. You will appreciate that issues exist in relation to the maintenance of confidentiality concerning what has or has not occurred at a mediation and to the participants at that mediation. Having regard to the provisions of the Legal Profession Act 2004 it is considered that it is necessary and appropriate particularly having regard to the nature of the complaint by one of the adversaries in the proceedings that were the subject of the mediation, to make these documents available. No waiver of mediation privilege, legal professional privilege or confidentiality associated with the materials is intended by the disclosure of these materials to the Law Society. After 9 May 2014 Justice Croft scheduled a listing for the purposes of the delivery of judgement in the proceeding that was heard by him, on 25 July 2014. On 24 July 2014 McPherson & Kelly Lawyers and the other parties to the litigation apparently contacted Justice Croft indicating that the matter had settled subject to approval of the cup court and requested that he not deliver judgment. Argument in relation to the settlement of the proceeding has been listed before another judge of the Supreme Court of Victoria, Justice Judd on 27 October 2014. I also attach a copy of the latest schedule of clients which clients I represent and who object to the settlement together with a copy of the latest draft written submissions by the Melbourne Counsel, David Bailey, retained by my clients in relation to the settlement approval process. The draft submissions are confidential and are not as I understand it in final form. To that extent no authority is given for the circulation of the document to the complainant and it is not intended that there be any waiver of client legal privilege, legal professional privilege or confidentiality of the clients of Bruce Vernon Dennis or DC Legal Pty Ltd in the production of the documents to you. If this is not acceptable would you please advise and return these materials. Alternatively if there is to be an issue I have been instructed to formally request an undertaking by the Law Society Council that these materials referred to in this paragraph not be disclosed to any third party and in particular the complainant. JT Johnson" 30By email dated 10 October 2014 Mr Johnson advised Mr Pierotti: "I refer to the follow-up communication forwarded to me in respect of the letter of 2 October 2014 addressed to Bruce Vernon Dennis and DC Legal Pty Ltd. I have made inquiry and have been advised that no communications have been made with the Law Society other than through me whilst Mr Dennis has been overseas - other than those relating to the signatory upon the General Trust Account maintained by the firm. The question associated with submissions on behalf of DC Legal Pty Ltd was not addressed by me in earlier communications because of an oversight on my part. Any question of the appointment of a receiver over the incorporated legal practice would have to be dependent upon their being relevant conduct which would justify the Law Society Council resolving to suspend the current practising certificate of Bruce Vernon Dennis as the principal of the incorporated legal practice. This involves a consideration of the terms of the appointment of Lucia Moliterno as an investigator by the Law Society Council on 16 May 2014. You have a copy of that appointment document. The appointment of Lucia Moliterno by the Law Society Council was an appointment in accordance with the provisions of s 268 (1)(b) of the Legal Profession Act 2004 as identified in the appointment document. Having completed that investigation she provided her report to the Law Society Council in August 2013 in accordance with the provisions of s 270 of the Legal Profession Act 2004. I note that contrary to what she has said in an affidavit sworn by her in the existing proceedings in which the report is relied upon by the Law Society Council sworn in February 2014 she was not appointed pursuant to the provisions of s 270 of the Legal Profession Act 2004. The circumstances under which access to the premises and files maintained by DC Legal Pty Ltd appear to be uncontroversial. A letter was forwarded to Lucia Moliterno, having previously been communicated to you because of the potentiality of conflict raising the issue of difficulties in communicating with her because of her being a witness in the current NCAT proceedings against Mr Dennis, being one of the persons now sought to be investigated. When she attended, contrary to the request that was communicated to her beforehand in writing (a copy of which is contained in her report said to be a report under the provisions of s270 of the Legal Profession Act 2004 submitted recently) she was provided with a copy of an advice in an email provided by me explaining why access would not be permitted. Primarily, the starting point must be that once Lucia Moliterno completed her investigation under the appointment document of 16 May 2013 that appointment document was spent. To the extent that that has not been made clear to date that is the position my clients take. No submission as to why the appointment document of 16 May 2013 is not spent has been provided. Notwithstanding the foregoing it has been indicated that if a proper appointment document is identified appropriate arrangements will be made to provide access to documents for which the investigator, properly appointed, seeks access to fulfil his or her duties. It has also been indicated that my individual client has a very real concern that the renewal of the investigation has been bought about for an improper purpose by the complainants seeking to cause him to not actively represent the interests of his clients in the hearing of the approval of the settlement of the Great Southern litigation in the Victoria class action. As you are aware the hearing before Justice Judd has been set down for 27 October 2014 and Mr Dennis is returning to Australia to be able to properly instruct at that hearing. Obviously, it goes without saying that as the complainants are not "clients", there is no waiver of legal professional privilege or confidentiality or for that matter client legal privilege as contemplated by the provisions of s 604 of the Legal Profession Act 2004. My clients are then in a situation where having been advised that the person seeking access does not have a proper appointment of being required to breach client confidentiality and legal professional privilege and possible the client legal privilege - something that the solicitors rules themselves say he cannot do. In the foregoing circumstances there would appear to be no proper basis upon which, reliant upon the purported report given by Lucia Moliterno in recent times under the provisions of s 270 of the Legal Profession Act 2004, to suspend the practising certificate of Bruce Vernon Dennis. If that is the case there could be no proper basis as presently disclosed to apply to the court for the appointment of a receiver over the incorporated legal practice. It has previously been indicated that where an appropriately authorised person seeks access, steps will be taken to provide that access notwithstanding the request that has previously been made to defer those investigations until after the completion of the dispute in the Supreme Court of Victoria that I have referred to above. Should any application be made to the Court I am instructed to require that a copy of all prior communications that have been made by me on behalf of Mr Dennis and DC Legal Pty Ltd and this email be provided to the court. I so advise. JT Johnson" 31No further communications took place between either Mr Johnson and the solicitor on the one hand, and the Society on the other until 16 October 2014. On that date a number of things occurred. 32Notice was given pursuant to s548 of the Act in the following terms: "RESOLVED that, pursuant to the provisions of section 548 of the Legal Profession Act, 2004 (Act) the Council considers that it is necessary in the public interest to immediately suspend the local practising certificate of the Solicitor on the ground of the seriousness of the conduct in respect of which complaints have been made against the Solicitor and determines to immediately suspend the local Practising Certificate of the Solicitor. Reasons for Decision: The Council, having regard to the contents of the report prepared by Ms Lucia Moliterno and dated 30 September 2014, is of the opinion that the Solicitor wilfully failed to comply with the request dated 16 September 2014 of the Investigator, Ms Moliterno and without reasonable excuse obstructed the Investigator, Ms Moliterno. The nature of the Solicitor's alleged conduct is of such seriousness that the Council believes it warrants the immediate suspension of the Solicitor's right to practise." 33On the same date, notice was also given pursuant to s623 of the Act of the appointment of a manager to the law practice. It is not necessary to set out the terms of that notice. 34That was the situation when the matter came before the Court for argument on 23 October 2014. Having heard submissions, I stayed both the suspension of the practising certificate of the solicitor and also the appointment of a manager to the law practice until further order of the court. Submissions 35In order to understand the submissions, it is necessary to set out the relevant legislation. "267 Appointment of investigators (1) The Law Society Council may, in writing, appoint a suitably qualified person to investigate the affairs or specified affairs of a law practice. (2) The appointment may be made generally or for the law practice specified in the instrument of appointment. (3) An investigator may, with the approval of the Law Society Council, appoint an assistant. 268 Investigations (1) The instrument of appointment may authorise the investigator to conduct either or both of the following: (a) routine investigations on a regular or other basis, (b) investigations in relation to particular allegations or suspicions regarding trust money, trust property, trust accounts or any other aspect of the affairs of the law practice. (2) The principal purposes of an investigation are to ascertain whether the law practice has complied with or is complying with the requirements of this Part and the regulations under this Part and to detect and prevent fraud or defalcation, but this subsection does not limit the scope of the investigation or the powers of the investigator. ... 270 Investigator's report As soon as practicable after completing the investigation, the investigator must give a written report of the investigation to the Law Society Council. 271 When costs of investigation are debt (1) If: (a) an investigator states in his or her report of an investigation that there is evidence that a breach of this Act or the regulations has been committed or evidence that a default (within the meaning of Part 3.4) has occurred in relation to the law practice whose affairs are under investigation, and (b) the Law Society Council is satisfied that the breach is wilful or of a substantial nature, the Council may decide that the whole or part of the costs of carrying out the investigation is payable to the Council and may specify the amount payable. (2) The amount specified by the Law Society Council is a debt owing to the Council by the law practice whose affairs are under investigation. ... 548 Immediate suspension of local practising certificate (1) This section applies if the Commissioner or the relevant Council considers it necessary in the public interest to immediately suspend a local practising certificate on the ground of the seriousness of the conduct in respect of which a complaint has been made in relation to the holder of the certificate. (2) The Council may immediately suspend the practising certificate. The Commissioner may direct the Council to immediately suspend the practising certificate, and, if so directed, the Council must immediately suspend the practising certificate. (3) The suspension operates until the earliest of the following: (a) the complaint is withdrawn or dismissed, (b) the suspension is revoked, (c) the subject-matter of the complaint is finally dealt with by the Tribunal, (d) the suspension is successfully appealed. (4) The Council must give written notice of the suspension to the holder of the practising certificate and that notice must: (a) include an information notice about the suspension, and (b) indicate the period of operation of the suspension as provided by subsection (3), and (c) state that the practitioner may make representations about the suspension. (5) The suspension takes effect on the day that notice of the suspension is given to the holder. (6) The holder may make written representations to the Commissioner or the Council about the suspension, and the Commissioner or the Council must consider the representations. (7) The Council may revoke the suspension at any time (unless the suspension was directed by the Commissioner). The Commissioner may at any time direct the Council to revoke the suspension (even if the suspension was not at the direction of the Commissioner). (8) A decision to revoke a suspension need not be in response to any written representations made by the holder. 549 Appeal (1) A person may appeal to the Supreme Court against a decision of the Commissioner or a Council under this Part to suspend or direct the suspension of a local practising certificate. (2) The Supreme Court may make any order it considers appropriate on the appeal." 36The position of the solicitor has been comprehensively set out in the series of emails sent by Mr Johnson to the Society and which have been replicated above. No useful purpose would be served by repeating those submissions. 37In relation to the interpretation of ss267 - 271 of the Act, the Society submitted that the words of the section should be given their natural meaning and that no qualifications should be imposed on their effect. It submitted that provided the requirements of s267 were complied with, the appointment of an Investigator was for an indeterminate period and in particular was not terminated by the provision of a report such as is provided for in s270. 38It submitted that the requirements of s267 were complied with in the circumstances of this case in that the appointment was in writing, Ms Moliterno was a suitably qualified person and the appointment was in general terms to investigate the "affairs" of the law practices known as Dennis and Co and DC Legal Pty Ltd. It submitted that support for that interpretation was provided by the very broad definition of "affairs" in s4 of the Act. 39It submitted that the Act did not require the term of an investigator appointed pursuant to s267 to be specified on any instrument of appointment or otherwise. There was no provision in the Act for the termination of the appointment of an investigator upon the doing of any act or otherwise. It submitted that there was no suggestion in the Act that the appointment of an investigator was subject to any temporal limitation. The Society accepted that implicit in that submission was the proposition that once an Investigator was properly appointed in respect of a law practice, different investigations could be referred to that investigator without there being any need to re-appoint him or her. 40The Society submitted that s531 of the Act (which governs the appointment of investigators under Pt 4.4 to investigate complaints) was in similar terms to s267. Like s267, the term of the appointment was not required to be specified nor was the appointment otherwise subject to any limitation of term. The Society submitted that ss267 and 531 were to be contrasted to those sections of the Act which dealt with the appointment of a supervisor (s617), a manager (s623) or a receiver (s630) where the instrument of appointment must specify the term of the appointment. In contrast to ss531 and 267, the termination of the appointment of a supervisor, manager or receiver of a law practice was specifically provided for in the Act. In that regard, the Society noted that there was a requirement in the Act that it must serve a written notice of the termination of the appointment of a supervisor, manager or receiver on all persons originally served with a notice of the appointment. 41The Society submitted that there were good reasons for the wide power of appointment in s267. The investigation of the affairs of a law practice might be very complex and might take a long time. Moreover, the scope of a particular investigation might substantially widen as more information came to hand during the course of the investigation. The appointment was expressed in wide terms to avoid any attempts to narrow the scope of an investigation either as to subject matter or as to time. 42The Society submitted that the scope of Ms Moliterno's appointment in these proceedings was of a general kind to investigate the affairs of the solicitor's former law practice and current law practice. The appointment did not specify the affairs which might be investigated and consequently, encompassed both the investigation of the affairs which were the subject of the 28 August 2013 report which were currently before NCAT, as well as the investigation of the involvement of the law practice in the Great Southern Group of Companies. 43The Society submitted that the broad nature of the appointment of Ms Moliterno, coupled with the absence of statutory provisions governing the termination of an appointment under s267, meant that as at the date of the request made by Ms Moliterno for the production of documents by the law practice, her appointment was valid and subsisting. Consideration 44The Society's submissions should not be accepted. While there is no express limitation of the term of an investigation authorised pursuant to s267 of the Act, there are clear indications in the wording of the sections that such an appointment is not for an indefinite period but has a finite limit. The finite element of the investigation is not expressed in temporal terms but is expressed implicitly in terms of outcome. The appointment of an investigator ceases to be effective, not by reference to any period of time, but by reference to when the investigation is complete and a report is produced. Such an interpretation fits easily with the wording of the sections and allows for the circumstance identified by the Society where an investigation is lengthy and complex and may extend into areas not originally anticipated when the appointment of an investigator took place. 45The indications that there is a finite element to the appointment of an investigator are these. The appointment was made pursuant to s268(1)(b) which refers to investigations in relation to particular allegations or suspicions. In this case, the particular allegations or suspicions did not relate to trust money, trust property or trust accounts but to "any other aspect of the affairs of the law practice". Implicit in an appointment pursuant to s268(1)(b), such as we have here, is the assumption that when the investigation into the "particular" allegations or suspicions is complete, so also is the appointment of the investigator. 46Significantly the expansive nature of the power of an investigator set out in s268(2) focuses on the "scope of the investigation" and the "powers of the investigator" but does not expressly or implicitly empower the investigator to go beyond an examination of the "particular allegations or suspicions" in respect of which he or she has been appointed. 47Section 270 expressly contemplates an investigation coming to an end which then triggers the production of a written report. Such a process is inimical to the concept of an investigator's appointment being entirely open-ended regardless of whether or not the investigation is complete and a report has been provided. 48Support for such an approach can be found in s271 which concerns the costs of an investigation. Implicit in the concept of the requirement to pay the costs of an investigation, is that the investigation itself is of a finite kind so that the costs associated with it can be measured. Needless complexities would arise when trying to apply s271 to a series of investigations involving different subject matters and producing different results, i.e. some adverse to the law practice and some not, on the basis that those investigations had been carried out by the same investigator. 49There is nothing unduly onerous for the Society in interpreting ss267 - 271 as requiring a separate instrument of appointment for each investigation which is to be conducted into a law practice. Such a submission was but faintly pressed in the proceedings. 50Applying that interpretation to the facts of this case, the investigation to which the instrument of appointment dated 16 May 2013 applied was complete when a report was produced by Ms Moliterno on 28 August 2013. There is no suggestion in the correspondence that this report was anything other than a final report. It was at that point in time that her appointment as an Investigator into the "particular allegations or suspicions regarding the affairs of the law practice" ceased to have effect. 51It is clear from the correspondence that the complaint of Mr Willemsen of 17 July 2013 gave rise to an investigation which was entirely separate to that in respect of which the report was produced by Ms Moliterno on 28 August 2013. This is what Mr Pierotti stated in his letter to the solicitor of 18 September 2014. This was confirmed by Ms Moliterno in her letter to the solicitor of 23 September 2014. 52It follows that at the time that Ms Moliterno issued the direction to the law practice to produce the specified documents, she had not been properly appointed to investigate the allegations to which those documents related and so her direction was of no effect. That being so, neither the solicitor nor DC Legal Pty Ltd was required to comply with it particularly if such compliance involved a breach or potential breach of client legal professional privilege. That consequence was expressly conceded by the Society if it were the case that Ms Moliterno was not properly appointed to investigate Mr Willemsen's complaint of 17 July 2013. 53It must also follow that there was no proper basis for the Society to suspend the practising certificate of the solicitor, or to appoint a manager to the law practice. That is because the factual basis for the decisions of the Council of the Society was not made out. In the circumstances, there was no wilful failure by the solicitor to comply with a request by an investigator nor did he obstruct the investigator. 54If I am wrong in my interpretation of ss267-271 of the Act, there is another basis on which the notices of suspension of practising certificate and appointment of a manager should be set aside. 55By reference to s548 of the Act, such notices should not be issued unless the Commissioner or the Council of the Society considers it necessary in the public interest to immediately suspend a practising certificate on the ground of the seriousness of the conduct in respect of which a complaint has been made. The operation of this section and its relationship with the appeal provisions in s549 was considered by Beech-Jones J in Berger v Council of the Law Society of NSW [2013] NSWSC 1080 and by Bellew J in Helby v Council of the Law Society of NSW & Anor [2013] NSWSC 1938. In Berger, Beech-Jones J reviewed the relevant principles as follows: "8 It was common ground that the nature of the appeal referred to in s 548(2) is an appeal de novo (Veghelyi v Council of the Law Society of New South Wales (1989) 17 NSWLR 669). Thus on appeal the references to the Law Society in s 548 should be treated as references to the Court. However this only directs attention to the nature of the power conferred by s 548(2). ... 10 In Doherty No 2 at [3] James J referred to the "emergency nature" of the power conferred by s 548(2) but did not elaborate. Given that McColl JA was only dealing with an application for a stay in Doherty No 3, her Honour also did not undertake any detailed analysis of the power conferred by s 548(2). However her Honour did note that the "protection of the public means that the public interest is always entitled to significant weight" (at [33]). Her Honour cited a passage from the judgment of Spigelman CJ in New South Wales Bar Association v Stevens [2003] NSWCA 95 at [108] to [109] which referred to an earlier judgment of his Honour in New South Wales Bar Association v Cummins [2001] NSWCA 284; 52 NSWLR 279 at [20]. In the latter passage Spigelman CJ identified "four interrelated interests" at stake in such cases. Those interests were the need for clients to have confidence in entrusting their affairs to a lawyer, the need for fellow practitioners to be able to accept the practitioner's words and conduct, the need for the judiciary to have confidence in those who appear before the courts, and the overall need for the public "to have confidence in the legal profession by reason of the central role the profession plays in the administration of justice". ... 12 Unlike Stevens or Doherty No 3, this case does not involve the exercise of any discretion to grant a stay but a consideration of the exercise of the power conferred by s 548 itself. However the discussion of the four interrelated interests in Cummins that was approved in Stevens and Doherty No 3 is still apposite. Sub-section 548(1) makes it clear that the necessity to protect the "public interest" is at the core of the power conferred by s 548(2). The four interrelated interests identified by Spigelman CJ in Cummins are all encompassed by the phrase "public interest" as used in s 548(1). This is reinforced by the statement of the purposes of the Act in s 3(1)(a) which refers to the regulation of legal practice "in the interests of the administration of justice and for the protection of the clients of law practices and the public generally" (see O'Sullivan v Farrer [1989] HCA 61; 168 CLR 210 at 216). Otherwise, the purely protective nature of this type of proceeding has long been recognised (see Clyne v New South Wales Bar Association [1960] HCA 40; 104 CLR 186 at 201 to 202; Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637). ... 14 It is clear that a decision to suspend is a temporary measure (or "emergency" measure as noted by James J in Doherty No 2). The section only confers a power to "suspend". In that respect it can be contrasted with powers such as those conferred by s 61 to "amend, suspend or cancel" a practising certificate. Thus a suspension made pursuant to s 548(2) ceases, inter alia, on the complaint being withdrawn or revoked (s 548(3)(a)) or the complaint being "finally dealt with" by the Administrative Decisions Tribunal (the "Tribunal") (s 548(3)(c)). This latter provision recognises that, in the ordinary course, complaints about the conduct of holders of a practising certificate will be dealt with in accordance with the regime provided for in Chapter 4 of the Act. 15 Leaving aside the powers of this Court to remove practitioners from the roll of solicitors which is preserved by s 590, the end point of the complaint regime in the Act is the making of a determination by the Tribunal as to whether or not a practitioner has engaged in unsatisfactory professional conduct or professional misconduct (s 551(1) and s 562(1)). If the appropriate findings are made then the Tribunal is empowered to make "orders as it thinks fit" (s 562(1)) which can include an order that the name of the practitioner be removed from the "local roll" (s 562(2)(a)) or that their practising certificate be suspended for a specified period or cancelled (s 562(2)(b)). 16 Thus a decision to suspend under s 548(2) has the capacity to pre-empt and perhaps undermine the structure for dealing with complaints created by Chapter 4 including the protections afforded to practitioners the subject of complaints. No doubt for this reason the power can only be invoked if the Law Society in the first instance, or this Court on appeal, considers it "necessary" in the public interest to suspend the practising certificate. In a different but equally serious context the High Court has observed that the word "necessary ... is a strong word" (Hogan v Australian Crime Commission [2010] HCA 21; 240 CLR 651 at [30] per French CJ, Gummow, Hayne, Heydon and Kiefel JJ). In this context it connotes a relatively high degree of satisfaction that the suspension should be ordered pending the pursuit of a complaint. It can be contrasted with the power of the Tribunal to make "such orders as it thinks fit" (s 562(1)). 17 ... However to attempt at this point to predict what the Tribunal might decide at some indefinite point in the future risks distracting the Court from ascertaining what presently is necessary in the public interest. No doubt there are cases where professional misconduct is demonstrated against a solicitor but the Tribunal determines not to remove them from the roll or completely prevent them from practising because aspects of their conduct since the complaint may demonstrate that that step is not warranted. There is very little scope to consider such possibilities in this type of application. 18 In my view the appropriate approach is one that requires that the Law Society at first instance, and this Court on appeal, to be satisfied that the available material concerning a complaint against a practitioner demonstrates that the continued holding of a practising certificate by them pending its determination presents such an unacceptable risk to clients, the public generally or the administration of justice that it is necessary that their certificate be suspended. 19 I have already discussed the protective nature of the power conferred by s 548(2). It suggests that the effects of a suspension on the personal interests of the solicitor are of little moment when considering the exercise of the power. However the interests of the solicitor are still relevant in a number of ways. First, the very significant effect that suspension may have upon their interests invokes the principles discussed in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 especially where, as in this case, the matters alleged are serious (Evidence Act 1995, s 140(2)). In this Court the Law Society bore the burden of proving the allegations it made and the burden of persuading the Court that the suspension of the practising certificate is necessary. 20 Second, the high level of persuasion that inures in the word "necessary" means that there is scope for the practitioner to either agree or have imposed upon them conditions falling short of suspension that provide protection to clients and the public. In such circumstances the Court may not be positively satisfied that it is "necessary" that the practising certificate be suspended. Instead the width of the power conferred on the Court by s 549(2) would enable the substitution of such a decision for the decision to suspend. In Doherty No 2 James J appeared to consider the imposition of conditions as an alternative to suspension at the point of considering the exercise of the discretion referred to in s 548(2). As a matter of practicalities I doubt that that there is much difference between that approach and considering whether it affects the "necessity" to suspend a practising certificate, although I prefer the latter view. The difficulty with the former is that, given the terms and obvious purpose of s 548, it is difficult to envisage circumstances in which the Court could conclude that it is necessary in the public interest to suspend a practising certificate but somehow determine as a matter of discretion that it should not do so." 56Those principles were adopted by Bellew J in Helby and I also gratefully adopt the analysis of Beech-Jones J with the qualification that in the first line of par [8] of the judgment, there is a clear misprint when referring to the relevant section of the Act. 57The only information I have concerning the complaint is that contained in Ms Moliterno's report of 30 September 2014 and indirectly referred to in correspondence passing between the Society on the one hand and the solicitor and Mr Johnson on the other. What emerges from that limited material is that the complainant was a legal practitioner engaged in litigation of an adversarial kind in which he represented parties on one side and the law practice represented parties on the other. The allegation seems to be that in some way not specified, the solicitor was representing to clients that he was able to bring about a particular outcome, the basis for which was disputed by Mr Willemsen. Prima facie, one would have thought these were matters which could and should have been properly raised in the litigation in the Victorian Supreme Court. 58What is clear, however, is that the dispute between Mr Willemsen and the solicitor did not demonstrate that the continued holding of a practising certificate by the solicitor, pending its determination, presented "such an unacceptable risk to clients, the public generally or the administration of justice that it is necessary that the certificate be suspended". In forming that opinion, I am mindful of the protective nature of the s548 power, but am also mindful of the requirements embodied in the word "necessary" which need to be established. On the material before me, the dispute between the solicitor and Mr Willemsen, so far as it is revealed, does not satisfy the requirements in s548(1) of the Act. 59The Society, however, did not rely upon the dispute between Mr Willemsen and the solicitor as the basis for its issue of the notices. Rather, it relied upon what it characterised as a wilful failure on his part to comply with a request from an investigator and obstructing the investigator's activities without reasonable excuse. With great respect to the Society, that is not an accurate characterisation of what occurred. It is for that reason, that I have set out in full the correspondence passing between it, the solicitor and Mr Johnson. 60The position adopted by the solicitor was that the investigator was not properly appointed and that he was not obliged to comply with her requests. In the course of putting forward that position, he submitted that if that contention was correct, he would be in breach of client professional privilege to comply with the "investigator's" request. Two alternatives were offered. He suggested that a new authority be issued by the Society to the investigator, or that the production of the documents be deferred until the completion of the Victorian litigation. 61In that regard, I observe that the original complaint from Mr Willemsen was received by the Society in July 2013 and no substantial action was taken in relation to it until September of 2014 so that it is difficult to see what degree of urgency was involved and why a deferral of the request for production until the completion of the Victorian litigation was not reasonable in the circumstances. This was particularly so when the hearing of the dispute in the Victorian Supreme Court had been concluded and the only issue was the approval of the settlement of the class action. 62For the purpose of this analysis, I am of course assuming (contrary to my earlier finding) that the position adopted by the Society as to the interpretation of ss267-271 is correct. Accordingly, the actions of the solicitor and the law practice have to be assessed on that basis. I also observe that the tone of the correspondence between the solicitor and Mr Johnson in their communications with the Society was at all times respectful and polite. 63What the Court has to determine is whether the refusal of the solicitor and the law practice to make the documents requested available, accompanied as it was by an explanation and the offer of an alternative procedure, would constitute "such an unacceptable risk to clients, the public generally or the administration of justice that it was necessary that the certificate be suspended". 64Nothing has been placed before the Court to indicate a risk to clients, or to the public generally, or to the administration of justice. Nothing has been put to the Court to indicate the need for such an "emergency" measure as the suspension of the solicitor's practicing certificate and the appointment of a manager. The interpretation of ss267-271 proposed by the solicitor was reasonably open. In the particular circumstances of this case, I am not persuaded that the conduct of the solicitor was "of such seriousness" as to justify such draconian steps as were involved in the issuing of the notices by the Society. 65It follows that even if I am wrong in my interpretation of ss267-271 of the Act, I am not satisfied of the matters required under s548(1) were established. I am not satisfied that the conduct of the solicitor was such that it was necessary in the public interest to immediately suspend his practising certificate and to appoint a manager to the law practice. Conclusion 66The orders which I make are as follows: (i)The decision of the defendant of 16 October 2014 to suspend the practising certificate of the plaintiff is set aside. (ii)The decision of the defendant of 16 October 2014 to appoint a manager to the plaintiff's practice is set aside. (iii)Subject to order (iv) the defendant is to pay the plaintiff's costs of these proceedings. (iv)If either party seeks a different form of costs order, he or it should send a submission to that effect to my Associate and the other party within seven days, such submission not to exceed 3 pages. Failing the receipt of any such submission, the order for costs in (iii) above will stand. ********** 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: 03 November 2014