Council of the Law Society of New South Wales v Liepins (No 2) [2015] NSWCATOD 133

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Council of the Law Society of New South Wales v Liepins (No 2) [2015] NSWCATOD 133 Hearing dates: On the papers Date of orders: 30 November 2015 Decision date: 30 November 2015 Jurisdiction: Occupational Division Before: M Chesterman, Principal Member Decision: The Applicant's objections to Exhibit 1, applying to certain passages identified in a copy of this Exhibit that it filed on 16 November 2015, are upheld. Catchwords: Solicitor – disciplinary application – affidavit tendered by respondent following ruling of professional misconduct - admissibility Legislation Cited: Civil and Administrative Tribunal Act 2013 Legal Profession Act 2004 Legal Profession Uniform Law (NSW) No 16aClick here to enter text. Medical Practice Act 1992 Click here to enter text. Cases Cited: King v Health Care Complaints Commission [2011] NSWCA 353 Lucire v Health Care Complaints Commission [2011] NSWCA 99 Category: Procedural and other rulings Parties: Council of the Law Society of New South Wales (Applicant) Juris Liepins (Respondent) Representation: Counsel: A Tudehope (Respondent)

Solicitors: L Pierotti, Council of the Law Society of New South Wales (Applicant) File Number(s): 122027

Judgment

Procedural history 1. This is the second decision to be delivered in these proceedings. Because it is a decision on evidential matters, it may be given by myself, sitting alone, by virtue of my being a member of the Occupational Division who is a 'senior judicial officer': see s 4 and cll 15, 17(2) and 18(2) of Sch 5 of the Civil and Administrative Tribunal Act 2013 ('the NCAT Act'). 2. On 26 February 2015, the Tribunal, constituted by myself, Senior Member O'Riordan and General Member Hayes, delivered the first decision, Council of the Law Society of New South Wales v Liepins [2015] NSWCATOD 11 (hereafter 'the liability decision'). 3. The proceedings commenced on 16 October 2012. On that day, the Council of the Law Society of New South Wales ('the Law Society') filed in the Administrative Decisions Tribunal a disciplinary application claiming that the Respondent, Juris Liepins ('the Solicitor'), had engaged in professional misconduct. 4. The orders sought by the Law Society in this application ('the Application') were:- That Juris Liepins be removed from the Roll. That Juris Liepins pay the Society's costs. Such other order as to the Tribunal seems fit. 1. On the same day, the Law Society also filed an affidavit sworn on 11 October 2012 by its solicitor, Anne-Marie Foord. During October and November 2012, it filed nine further affidavits. 2. On 21 May 2013, the Solicitor filed a Reply, in which he admitted many of the matters alleged in the Application, but denied or did not admit the remainder of them. 3. On 1 January 2014, the Administrative Decisions Tribunal was abolished and its functions were taken over by the Civil and Administrative Tribunal of New South Wales. These proceedings thereupon became 'unheard proceedings' as defined in cl 6(1) of Sch 1 of the NCAT Act. Clauses 7(1) and 7(3)(b) of this Schedule state that such proceedings are to be heard by the Civil and Administrative Tribunal but determined as if that Act had not been enacted. 4. It is convenient to add here that although the present decision is being published after the commencement (on 1 July 2015) of the Legal Profession Uniform Law (NSW) No 16a, the legal principles to be applied are those in force before this commencement (see Sch 4, cl 26(1) and (2) of this Law). The governing statute is the Legal Profession Act 2004 (hereafter 'the LP Act'). 5. The proceedings were set down for hearing before the Tribunal on 6 March 2014. Mr Pierotti appeared for the Law Society and Mr Tudehope of counsel for the Solicitor. 6. At the commencement of this hearing, Mr Pierotti filed (by leave) a further affidavit sworn by Ms Foord. He then tendered the eleven affidavits that the Law Society had filed. These affidavits were admitted without objection. Mr Pierotti advised that they constituted the Law Society's case in chief. 7. At this stage, the Solicitor had not filed any evidence. He did not seek to tender any evidence at the hearing. Instead, his counsel Mr Tudehope applied for an adjournment of the proceedings, in order to enable him to obtain and file evidence, relating both to liability and (if the occasion demanded) to penalty. Mr Tudehope explained that the Solicitor had psychological problems resulting in an inability to give instructions regarding these proceedings, but still wanted to 'put his side of the story on the record'. 8. The Tribunal granted this adjournment. The hearing of the proceedings did not recommence until 12 December 2014. 9. The events leading up to the resumption of the hearing some nine months after its commencement are outlined in the liability decision at paragraphs [11] to [17]. For present purposes, it is sufficient to note the following matters. The Solicitor did not comply with directions given on three separate occasions (6 March, 5 May and 25 June 2014) to file and serve his evidence within a specified period. At a directions hearing on 13 August 2014, the Tribunal accordingly stipulated that the Solicitor would not be permitted to file evidence without the Tribunal's leave and that such leave would only be granted in 'exceptional circumstances'. It reaffirmed this stipulation at a further directions hearing on 12 November 2014. The Solicitor, however, did not make any application for leave to file evidence. 10. The course of the adjourned hearing on 12 December 2014 is summarised as follows in the liability decision at [18 – 26]:- 18… Mr Marsh appeared for the Solicitor. He indicated that he had instructions to seek leave to file an affidavit sworn by the Solicitor six days previously and an affidavit by a psychologist annexing a report on the Solicitor's condition dated 3 May 2014. He added that the Solicitor's affidavit sought to contradict some of the allegations in the Application and to explain some of the admissions made in the Reply, and that the Solicitor still wanted to 'put his side of the story on the record'. 19 Mr Marsh acknowledged, however, that no affidavit had been prepared to support a claim that there were 'exceptional circumstances' justifying the grant of such leave and he did not seek to submit that 'exceptional circumstances' existed. 20 After hearing Mr Pierotti and adjourning briefly to consider the matter, we rejected Mr Marsh's application, on two grounds. 21 The first of these was that, as Mr Pierotti had argued, it was not appropriate to require the Law Society to deal with assertions by the Solicitor that sought to contradict evidence from the Society that had been admitted several months earlier. The Society should not be put under an obligation to contact witnesses, who might not all be available, to seek further testimony from them or to require them for cross-examination. 22 The second ground was that to allow Mr Marsh's application would be to ignore the Tribunal's explicit requirement that evidence from the Solicitor would only be permitted if he furnished verified evidence to the effect that its reception was justified by 'exceptional circumstances'. The requirement of 'exceptional circumstances' had been imposed four months previously (on 13 August 2014) and had been reiterated on 12 November 2014. 23 Mr Marsh then advised us that he had no further instructions to appear for the Solicitor. For the remainder of the hearing on 12 December 2014, the Solicitor represented himself. 24 Mr Pierotti tendered two items of correspondence which, with the Solicitor's consent, we admitted as additional material annexed to Ms Foord's first affidavit. 25 At this point, the Solicitor requested that there should be a separate hearing on the question of penalty (if the need for such a hearing arose) and that he should be permitted to tender evidence and make submissions at any such hearing. Mr Pierotti acceded to this request. 26 Mr Pierotti and the Solicitor then addressed us in turn on the question whether the Law Society's claim of professional misconduct had been made out. 1. In the liability decision, which was published on 26 February 2015, the Tribunal held at [40 – 41] that the admitted evidence sufficiently proved the conduct of the Solicitor described in the Application and that this conduct constituted professional misconduct both at common law and under the LP Act. 2. At [40], the Tribunal observed as follows: 40 We are aware that in the Reply the Solicitor denied, or did not admit, a number of [the matters alleged in the Application], but since he did not adduce any evidence we cannot attach weight to these assertions by him. 1. At [44], it stated that since it had made a finding of professional misconduct, a further hearing on the matters of penalty and costs was required. It accordingly set the proceedings down for further directions on 4 March 2015. 2. Pursuant to directions given at that hearing (at which there was no appearance by or on behalf of the Solicitor) and at a directions hearing on 25 March 2015, the hearing on penalty and costs was set down for 4 June 2015. 3. At that hearing, Mr Pierotti indicated that the Law Society did not wish to file any further evidence, but might wish to file evidence in reply to the evidence contained in a number of affidavits that the Solicitor had filed within the preceding month. 4. Mr Tudehope appeared on behalf of the Solicitor. He tendered a total of 23 affidavits. The Tribunal admitted all of them, subject to the determination of objections to admissibility that Mr Pierotti had raised to passages in some of them. 5. The affidavit to which most of these objections applied was admitted as Exhibit 1. It was sworn by the Solicitor on 11 December 2014 and filed on 9 June 2015. In substance, it was the same as an affidavit sworn by him on 8 December 2014, which Mr Marsh had sought unsuccessfully to tender on his behalf at the hearing on 12 December 2014 (see the liability decision at [18]). 6. During the hearing on 4 June 2015, the parties commenced their submissions regarding Mr Pierotti's objections to parts of Exhibit 1. In the course of his submissions, Mr Tudehope advised that he did not press the admission of every part of this exhibit. Ultimately the Tribunal decided that it should determine the objections on the basis of written submissions and gave directions for them to be filed. 7. At a further directions hearing on 14 October 2015, the Tribunal directed that the Solicitor should file and serve a copy of Exhibit 1 showing which passages within it were not pressed and that the Law Society should then file a copy showing which of the passages that were still pressed were claimed by it to be inadmissible. 8. The parties' submissions on these questions of admissibility and the marked copies of Exhibit 1 have been filed. What follows is my decision on the passages to which the Law Society objected. I have not taken account of supplementary submissions filed by the Society on 16 November 2015 since they were not required in the directions given on 14 October 2015.