Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Council of the Law Society of New South Wales v CZD [2017] NSWCATOD 31 Hearing dates: By way of written submissions of 4 November 2016, 23 December 2016 and 7 February 2017. Matter determined "on the papers". Date of orders: 28 February 2017 Decision date: 03 March 2017 Jurisdiction: Occupational Division Before: Boland ADCJ, Deputy President Decision: 1. Pending the hearing of the substantive proceedings no report of these proceedings except this decision shall be published to any person. 2. Paragraphs 2, 3, 5, and 6 of the application for interim orders filed on 27 October 2016 are stood over to the substantive hearing. 3. The application for interim orders filed on 27 October 2016 is otherwise dismissed. Catchwords: PROFESSIONS AND TRADES – where legal practitioner is subject of unheard disciplinary action - where practitioner has filed a Reply in which she concedes unsatisfactory professional conduct but not professional misconduct - where practitioner seeks interim orders that the substantive hearing be held wholly in private, or partly in private – where practitioner seeks an order that prohibits publication of her name in all future Tribunal listings - where practitioner seeks non- disclosure of her husband's name, her name or anything that identifies her, her law firm, her partner or any employed solicitor who works for the law firm – where practitioner further seeks that there shall be no publication or broadcast of any reports of the proceedings. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Amendment Act 2013 (repealed) Civil and Administrative Tribunal Rules 2014 Legal Profession Act 2004 (repealed) Legal Profession Uniform Act 2014 (NSW) (the Uniform Law) Legal Profession Uniform Law (NSW) (the Uniform Law) Health Practitioner Regulation National Law (NSW) (the National Law) Court Suppression and Non-publication Orders Act 2010 (NSW) Administrative Decisions Tribunal Act 1997 (NSW) (repealed) Cases Cited: Anon 2 v XZY [2008] VSC 466 Griffin v Law Society of NSW [2016] NSWCA 364 Health Care Complaints Commission v Astor-Finn [2016] NSWCATOD 73 Health Care Complaints Commission v Dr CRF [2016] NSWCATOD 120 Health Care Complaints Commission v Vo [2014] NSWCATOD 127 John Fairfax Group Pty Ltd (receivers and managers appointed) & Anor v Local Court of New South Wales & ors (1991 - 1992) 26 NSWLR 131 John Fairfax and Sons Limited v Police Tribunal (1986) 5 NSWLR 465 Merrilyn Walton v Alexander Sergevich Momot and Anor [1997] NSWSC 143 New South Wales Bar Association v Tedeschi (No 3) NSWADT 174 Rinehart v Welker [2011] NSWCA 403 State of New South Wales (Justice Health) and anor v Defouli [2008] NSWADTAP 69 Category: Procedural and other rulings Parties: Council of the Law Society of New South Wales (Applicant) CZD (Respondent) Representation: Counsel: B Tronson (Applicant) M Fordham SC and A Rose (Respondent) Solicitors: Council of the Law Society of New South Wales (Applicant) B M Salmon Layton & Co (Respondent) File Number(s): 1620207 Publication restriction: Pending the hearing of the substantive proceedings no report of these proceedings shall be made to any person save as published in these reasons. REASONS FOR DECISION 1. This interim application is one made by a solicitor who is presently subject of disciplinary proceedings brought by the Council of the Law Society of NSW (the Society) in the Tribunal. It is the solicitor's position that, to properly conduct her case before the Tribunal, details of her name, her firm, her partner and employees in her law practice, and that of her husband should not be published in any Tribunal listings, that the substantive hearing should be conducted wholly or partly in private, and no report of the proceedings, or the evidence before the Tribunal should be published. In summary, the solicitor seeks a suite of wide ranging confidentiality or suppression orders under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) ("the CAT Act"). 2. The application is opposed by the Society. Neither party in their written submissions referred to the power of a single member of the Tribunal to make the orders sought under s 64 of the CAT Act on an interim or interlocutory basis. 3. At a directions hearing held on 4 November 2016 the parties agreed the solicitor's application could be determined "on the papers". Accordingly I made a time-table for filing written submissions by both parties with final submissions to be lodged in the Tribunal by 6 February 2017. 4. It is the solicitor's position that, at what she asserts was a difficult period in her life, because of her own health issues and that of her husband, she erroneously certified copies of a power of attorney to be true copies of that document. It is not a matter of dispute the solicitor did not have an original document before her at the time she certified copies as true and correct. 5. As a consequence of the solicitor's action, disciplinary proceedings were commenced in the Tribunal by the Society. The Society asserts that the Tribunal should find the solicitor is guilty of professional misconduct, and asks that the Tribunal reprimand the solicitor, and order that she pay the costs of the proceedings. The solicitor in a Reply filed in the Tribunal does not dispute that she erred in certifying the copies of the power of attorney without checking the original document. She accepts her conduct was unsatisfactory professional conduct, but denies she is guilty of professional misconduct. 6. Because of the differing position of the parties at this time, it appears consideration has not yet been given to the possibility of the parties, with the consent of the Legal Services Commissioner, entering into an Instrument of consent under s 564 of the Legal Profession Act 2004 ('the Act"). 7. The gravamen of the solicitor's application relates to the health and reputation of her husband. The solicitor's husband is a barrister who has significant health issues, including mental health issues. It is the opinion of the husband's treating psychiatrist and cardiologist that revelation of the husband's health issues, particularly his psychiatric diagnoses, could adversely impact on his health and affect his ability to practise. A senior member of the bar has filed a statutory declaration in support of the solicitor's application. That barrister expresses the opinion that the solicitor's husband's reputation could be adversely affected if his health issues become known to the legal community and the general public. 8. For the reasons that follow, I have determined that, pending the hearing of the substantive proceedings that there should be no report published of these proceedings except this decision in which the solicitor's name is anonymised. I have further found that paragraphs 2, 3, 5 and 6 of the solicitor's application should be stood over to the substantive hearing. I note that the solicitor is not precluded from seeking to extend my order or to seek other orders during or after the hearing of the substantive proceedings including prior to the formal tendering of her evidence at the commencement of the hearing. Background 1. It is unnecessary that I set out a detailed background. It is sufficient to note that, in about 2011, a woman (the principal) retained solicitors (not the solicitor) who on her instructions prepared a Power of Attorney and a Deed of Enduring Guardian. The principal appointed her husband as her attorney, and if he was unable or unwilling to act, that her daughters (Ms A and Ms B) were appointed her attorneys. The Power of Attorney was executed and the attorneys accepted their appointments. A copy of the Power of Attorney was given to the principal. The original documents were at all relevant times retained by the solicitors. 2. On 15 January 2014 the woman executed a fresh Power of Attorney and Deed of Enduring Guardian. The woman appointed only one of her daughters (Ms A) as her attorney but not her other daughter (Ms B). 3. In early 2015 the solicitor's law practice was retained by Ms B who sought advice about the management of the principal's financial affairs. 4. On 4 February 2015 Ms B provided the solicitor with a copy of the Power of Attorney executed in 2011 and the Deed of Enduring Guardian also executed that year. The solicitor caused copies to be made of the documents and certified those copies as true and correct copies of the original documents. 5. After the solicitor forwarded the so called certified copies of the original Power of Attorney to a bank, she was advised by the principal's solicitors that the original documents had never left their secure document storage. 6. Immediately after receiving correspondence from the principal's solicitors, the solicitor wrote to the bank advising that her client, Ms B, had no knowledge that the 2011 power of attorney had been revoked. 7. On the solicitor's behalf it is asserted that she underwent extensive surgery in January 2015 and that she remained unwell in February 2015. It is also submitted on behalf of the solicitor that her husband suffered various psychiatric and other health conditions at that time. As a result of his illness the solicitor, it is submitted, was the sole breadwinner, and was affected by his conditions as well as her own medical problems. 8. No evidence was filed by the solicitor in support of this interim application, although comprehensive and helpful written submissions provided by senior and junior counsel on her behalf annexed medical reports about the solicitor's husband's history and prognosis. The relevant legislative provisions 1. There is no dispute that the complaint in this matter occurred prior to repeal of the Act, and had not been determined prior to the introduction of the Legal Profession Uniform Act 2014 (NSW) (the Uniform Law). Pursuant to the transitional provisions the Act applies to these proceedings (see Griffin v Law Society of New South Wales [2016] NSWCA 364. 2. Section 563 of the Act empowers the Tribunal to make interlocutory or interim orders. It provides as follows: 563 Interlocutory and interim orders (1) The Tribunal may make interlocutory or interim orders as it thinks fit before making its final decision about a complaint against an Australian legal practitioner. (2) Without limiting subsection (1), orders of the kinds referred to in section 562 (Determinations of Tribunal) may be made as interlocutory or interim orders. 1. Section 563 was not revoked on the introduction of the Civil and Administrative Tribunal Act 2013 (NSW) ("the CAT Act"). "Tribunal" is defined in s 4 of the Act to mean the Civil and Administrative Tribunal. 2. Cl 18 (2) of Schedule 5 of the CAT Act provides: (2) The Tribunal, when exercising any other of its Division functions for the purposes of the Legal Profession Uniform Law (NSW) (including making ancillary or interlocutory decisions of the Tribunal), is to be constituted by any one or more of the following Division members: (a) a member with a judicial qualification, (b) a member with a professional qualification. 1. The schedule also provides that all hearings in the Tribunal relating to professional disciplinary proceedings under the Legal Profession Uniform Law (NSW) (the Uniform Law) are to be open to the public. Cl 22 is as follows: (1) All hearings conducted by the Tribunal into allegations of unsatisfactory professional conduct or professional misconduct for the purposes of the Legal Profession Uniform Law (NSW) are to be open to the public, unless the Tribunal decides to make an order under section 49 of this Act. (2) In deciding whether to make an order under section 49 or 64 of this Act (and without affecting the generality of either section), the Tribunal is to have regard to the desirability of protecting from disclosure any material that is the subject of client legal privilege or any duty of confidentiality. (3) Without limiting the generality of section 64 of this Act: (a) the Tribunal may, at any stage of the proceedings for the purposes of Part 11 of the Legal Profession Uniform Law Application Act 2014, make orders regarding non-disclosure of information obtained under or for the purposes of that Part from or about a client of an Australian legal practitioner where the information is the subject of client legal privilege or any duty of confidentiality, and (b) the orders may apply to persons generally or to specified persons. (4) This clause has effect whether or not the client has waived the client legal privilege or the benefit of the duty of confidentiality, and whether or not the information was obtained before or after the proceedings were commenced. 1. While Schedule 5, where relevant, refers to the Uniform Law it appears to me, either by reason of Cl 2(4) of Schedule 4 and/ or Cl 27 (5) of the Uniform Law, that the Schedule prior to its amendment (see Civil and Administrative Tribunal Amendment Act 2013 (No. 94)), applies to these proceedings. But if I am wrong about that, I am satisfied I have power to hear this application as a single member under s 29(2) of the CAT Act (taking into account the definition of an interlocutory order in s 4 of that Act). 2. There is no dispute that Section 49 of the CAT Act provides, as a general rule, or principle, consistent with principles of open justice, that a hearing by the Tribunal is to be open to the public. Sub-section (2) of the section however permits an exception to that principle. It provides as follows: 49 Hearings to be open to public (1) …. (2) The Tribunal may (of its own motion or on the application of a party) order that a hearing be conducted wholly or partly in private if it is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason. 1. Section 64 of the CAT Act provides: 64 Tribunal may restrict disclosures concerning proceedings (1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders: (a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal), (b) an order prohibiting or restricting the publication or broadcast of any report of proceedings in the Tribunal, (c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal, (d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings. (2) The Tribunal cannot make an order under this section that is inconsistent with section 65. (3) The Tribunal may from time to time vary or revoke an order made under subsection (1). (4) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. 1. For completeness, it is relevant that I refer to r 42 of the Civil and Administrative Tribunal Rules 2014. That rule is found in Part 11 of the Rules and provides as follows: 42 Inspections of documents in Registry (1) Subject to the Act and this rule, a party to proceedings is, on payment of the applicable fee (if any), entitled to inspect documents in the Registry relating to the proceedings. Note. This rule also has effect subject to any relevant enabling legislation—see rule 4 (3). (2) Subject to the Act and this rule, a registrar may, on payment of the applicable fee (if any), permit a person who is not a party to proceedings in the Tribunal to inspect public access documents in the Registry relating to proceedings in the Tribunal that are finally determined. [my emphasis]. (3) It is sufficient compliance with subrule (1) or (2) if the party or person is given, on payment of the applicable fee (if any), a copy of the document instead of access to the original document. (4) A registrar may impose such conditions as the registrar considers appropriate in relation to the granting of access under this rule to a public access document (or a copy of such a document) by a person who is not a party to proceedings in the Tribunal. (5) There is no entitlement under this rule to give or be given access to a document in the Registry (or a copy of such a document) if: (a) a claim for privilege has been made with respect to the document but not decided by the Tribunal, or (b) the Tribunal has decided that the document contains matter that is privileged, or (c) the Tribunal has ordered that the whole or part of the document not be disclosed, or (d) the disclosure of the whole or part of the document to the person is otherwise prohibited by or under the Act or any other legislation or law, or (e) the document is or includes a note or working paper produced by or for a member in relation to any proceedings. Note. See, in particular, Division 6 of Part 4 of the Act, which contains provisions concerning the disclosure of information for the purposes of the Act and also section 67 of the Administrative Decisions Review Act 1997. (6) A registrar may permit a person who would otherwise have no entitlement to be given access to a document (or a copy of a document) because of subrule (5) to inspect (or be given a copy of) parts of the document that do not contain or include the privileged material or other material which may not to be disclosed. (7) For the purposes of this rule, proceedings in the Tribunal are finally determined if: (a) the Tribunal has completed all the processes necessary to decide the substantial merits of the proceedings (including, where required, the giving of reasons for the decision and the determination of costs), and (b) no further internal appeal or appeal to a court in respect of the proceedings is available because: (i) legislation does not provide for such an appeal against decisions in the proceedings, or (ii) the period for lodging such an appeal or an application for leave to appeal in respect of the proceedings has expired (ignoring any period that may be available by way of extension of time to appeal or seek leave to appeal), or (iii) an appeal lodged in respect of the proceedings has been determined. (8) In this rule: public access document means any of the following: (a) an originating document or reply, (b) a statement, affidavit or document admitted into evidence in proceedings held in public, (c) a transcript (if available) of proceedings held in public, (d) a record of any order made or other decision given in proceedings, (e) a record of the reasons given for a decision made in proceedings. The authorities 1. The principle of open justice is a widely recognised principle of the common law. The rationale for the principle and the limited circumstances recognised at common law for departure from the principle is well explained by McHugh JA in John Fairfiax and Sons Limited v Police Tribunal (1986) 5 NSWLR 465 as follows (at 476–477): The fundamental rule of the common law is that the administration of justice must take place in open court. A court can only depart from this rule where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule. The principle of open justice also requires that nothing should be done to discourage the making of fair and accurate reports of what occurs in the courtroom. Accordingly, an order of a court prohibiting the publication of evidence is only valid if it is really necessary to secure the proper administration of justice in proceedings before it. Moreover, an order prohibiting publication of evidence must be clear in its terms and do no more than is necessary to achieve the due administration of justice. The making of the order must also be reasonably necessary; and there must be some material before the court upon which it can reasonably reach the conclusion that it is necessary to make an order prohibiting publication. Mere belief that the order is necessary is insufficient. When the court is an inferior court, the order must do no more that is 'necessary to enable it to act effectively within' its jurisdiction. 1. Also relevant are the comments of Kirby P (as his Honour then was) in his dissenting reasons in John Fairfax Group Pty Ltd (receivers and managers appointed) & Anor v Local Court of New South Wales & ors (1991-1992) 26 NSWLR 131. There his Honour explained: It has often been acknowledged that an unfortunate incident of the open administration of justice is that embarrassing, damaging and even dangerous facts occasionally come to light. Such considerations have never been regarded as a reason for the closure of courts, or the issue of suppression orders in their various alternative forms ... A significant reason for adhering to a stringent principle, despite sympathy for those who suffer embarrassment, invasions of privacy or even damage by publicity of their proceedings is that such interest must be sacrificed to the greater public interest in adhering to an open system of justice. Otherwise, powerful litigants may come to think that they can extract from courts or prosecuting authorities protection greater than that enjoyed by ordinary parties whose problems come before the courts and may be openly reported. 1. The reports contain many authorities dealing with the principle, and the exceptions to it. While the core principle remains the touchstone, particular care must be exercised when considering the precise terms of a statutory provision that provides exceptions to the principle. 2. In Merrilyn Walton v Alexander Sergevich Momot and Anor [1997] NSWSC 143 the Court of Appeal was considering an appeal against order of the primary judge who had overturned an order of the then Chiropractors and Osteopaths Tribunal. The former Tribunal had refused to suppress the name of a practitioner. Handley JA said: The general principle provided for in s 46 (3) is that the Tribunal will sit in public. If the Tribunal sits in public the details of the proceedings, including the names of the complainant and the practitioner, may become known to interested members of the public and the media, who will be entitled to publish details of the proceedings including the name of that practitioner. This being the prima facie method by which the Tribunal should conduct its proceedings as laid down by the Act, it follows that something special, exceptional, or out of the ordinary, must be established before the Tribunal can make an order avoiding such a result. It could decide under s 46 (3) that it will sit in private, or it could make a suppression order under cl 6 (1) in the Third Schedule. 1. The relevant statutory provision under consideration in Merrilyn Walton is now found in similar terms in Cl 7 of Schedule 5D of the Health Practitioner Regulation National Law (NSW) (the National Law) and the criteria of "special, exceptional, or out of the ordinary" have consequently been applied in disciplinary proceedings under the National Law involving health practitioners (see Health Care Complaints Commission v Dr CRF [2016] NSWCATOD 120; Health Care Complaints Commission v Vo [2014] NSWCATOD 127; Health Care Complaints Commission v Astor-Finn [2016] NSWCATOD 73). Unlike s 64 of the CAT Act, Cl 7 does not direct the Tribunal's attention whether it is desirable to make a non publication order "by reason of the confidential nature of the evidence or matter or any other reason" but rather is it appropriate to make such an order. 2. Arguably the discretion afforded by the s 64 is wider than that discussed by Bathurst CJ and McColl JA in Rinehart v Welker [2011] NSWCA 403 by reference to the wording of the Court Suppression and Non-publication Orders Act 2010 (NSW) which has as a pre-requisite the requirement that a judicial officer is satisfied that it is "necessary" to make the order. 3. A legislative provision in similar terms to s 64 was found in s 75 of the Administrative Decisions Tribunal Act 1997 (NSW) (repealed). The earlier provision was considered by the now repealed Administrative Decisions Tribunal (ADT) in State of New South Wales (Justice Health) and anor v Defouli [2008] NSWADTAP 69. The Appeal Panel explained at [50]: 50 Within the opening words of section 75(2) of the ADT Act (and indeed of section 35(2) of the AAT Act), three elements of prime importance are the word 'desirable', the phrase 'for any other reason' and the word 'may'. These indicate that the purpose (or purposes) to be served by a suppression order may be 'any ... reason' (or reasons) whatever, that the power arises when the Tribunal is satisfied that the order is 'desirable' and that the actual making of the order is not mandatory but within the Tribunal's discretion. 1. Having reviewed various common law authorities the Appeal Panel went on to consider the factors the Tribunal could take into account in the exercise of its discretion. The Appeal Panel explained that it was important not to overlook or minimise the open justice principle at [57] – [59]: 57 It does not follow, however, that the broad principle of open justice that decisions such as John Fairfax v Police Tribunal and O'Shane v Burwood Local Court strongly affirm has no relevance to our decision. Two aspects of the relevant provisions of the ADT Act (which for reasons given above at [49] must be our 'primary point of reference') indicate this clearly. 58 The first of these is that subsection (2) of section 75 begins with the word 'however' and is expressed as an exception to a statutory formulation, in subsection (1), of the principle of open justice. This principle may not receive explicit emphasis in the way that it does in the concluding paragraph of section 35(3) of the ADT Act. (In Australian Securities and Investments Commission v PTLZ [2008] FCAFC 164 at [40], North and Downes JJ said that that paragraph 'imposes an overriding obligation on the Tribunal to "take as the basis of its consideration the principle" that hearings should be in public'.) But it is beyond doubt that section 75(1) creates a presumption in favour of hearings being both open to the public and freely reportable and that circumstances justifying departure from this presumption must be present if an order is to be made under section 75(2). 59 Secondly, section 126 of the ADT Act (to which section 75(2A) refers) prohibits the publication of material disclosing the names or other identifying features of a person involved in certain specified classes of Tribunal proceedings, unless the Tribunal consents. This impliedly reinforces the principle that, in proceedings outside these specified classes, the publication of such material is prima facie permissible. 1. The Appeal Panel set out some of the criteria to be taken into consideration when making an order under s 75 (and now s 64) explaining: 81 It is difficult if not impossible to set out in short form all the matters that, according to the case law just discussed, should be taken into account in deciding whether an order should be made under section 75(2). It must suffice here simply to draw attention to the following points of relevance to our decision in this case: (a) the presumption in favour of open justice; (b) the need for an applicant for a suppression order to establish good grounds for making the order; (c) the comparative breadth of the criterion of 'desirability'; (d) the important differences between the types of suppression order that may be made – between (for instance) an order (as in this case) prohibiting disclosure of the identity of a participant and an order that a hearing occur in closed session, without notice to a party; (e) the undoubted breadth of the range of purposes that may be served ('any other reason'); (f) the possibility that the purposes to be served may be a mixture of private and public interests; and (g) the possibility that, although generally speaking the prospect of damage to reputation or 'embarrassment' affecting a participant in the proceedings will not provide sufficient grounds for a suppression order, there may be unusual circumstances where this is the principal consideration underlying an order. 82 In view of Ms Johnson's submission regarding the criterion stated by the Court of Appeal in Walton v Momot, unreported, 17 April 1997 (BC9708241) (see [37] above), it is appropriate for us to express an opinion on its applicability. In the light of our examination of the authorities, we would not dispute that, for an order to be made, the circumstances should be 'special' or 'out of the ordinary' (though a requirement that they be 'exceptional' may involve setting the bar too high). But it is important to recognise that this is at most a necessary, not a sufficient, condition. 1. In New South Wales Bar Association v Tedeschi (No 3) [2003] NSWADT 174 the Tribunal emphasised the right of the public to know the outcome of disciplinary proceedings brought in the Legal Services List. It varied an earlier order suppressing the barrister's name, and the listing of the matter using a pseudonym. 2. Also relevant to consideration of the orders sought in this matter (which are broad in character and encompasses each of the permissible exception provisions under s 64) is the decision in Anon 2 v XZY [2008] VSC 466. In Anon 2 Kaye J discussed the application of the principle of open justice and the making of a suppression order of a defendant's name by way of an interlocutory order. A media outlet had challenged a suppression order that permitted the use of a pseudonym for the name of the defendant during an interlocutory hearing determined approximately a year prior to the likely date of a final hearing. The defendant was noted to be a prominent sporting personality who said he would suffer reputational damage if his name was published prior to the hearing in circumstances where the plaintiff sought damages for sexual assault. After a comprehensive review of the authorities, his Honour at [28] noted there is a strong body of authority for concluding that the principle of open justice does not apply with the same force and vigour, where a proceeding has not been subject of a "genuine hearing in court" because the judicial function of court process had not, at that time, been engaged. 3. The medical and other evidence 4. The solicitor relied in this application on two medical reports. The first medical report is from her husband's cardiologist and is dated 20 December 2016. The second report is a report from the husband's treating psychiatrist dated 28 November 2016. 5. The solicitor's husband's treating psychiatrist explains that the husband has been diagnosed as suffering conditions recognised in the Diagnostic and Statistical Manual of Mental Disorders (DSM-V). The psychiatrist opines that if the husband's condition is made public during the course of these proceedings it would have "have a severe negative impact" on his condition and adversely affect his prognosis and recovery. 6. The husband's cardiologist, after providing a comprehensive history of the husband's medical problems including his cardiac problems, opines "the prognosis for his condition is excellent with continued family and professional support". He too opines that if the husband's condition was made public as a result of the proceedings it would "have a significant adverse impact on his condition". 7. The solicitor also relies on a statutory declaration sworn by a senior member of the NSW Bar who is well acquainted with the solicitor's husband both professionally and socially. He states: I have no hesitation in saying that if the Respondent's husband's medical condition in its entirety is in fact published as a consequence of these proceedings, his reputation will be diminished. 1. The parties' submissions The Society's submissions 1. Ms Tronson of counsel provided written submissions on behalf of the Society dated 3 November 2016. At the time those submissions were provided Ms Tronson did not have the benefit of the solicitor's submissions or the reports on which she relies in this application. As earlier noted the submissions make it plain that the Society opposes the solicitor's application. 2. Ms Tronson did, however, note that, while on its face the solicitor's husband's medical condition was peripheral to the proceedings, the solicitor's replies to the Society during its investigation indicated her reliance on his condition. Ms Tronson very fairly noted "On that basis, it seems likely the evidence in question will not be 'peripheral' in the relevant sense". 3. Provision was made on 4 November 2016 for the Society to file any submissions in reply. By letter dated 7 February 2017 the Society advised the Registrar it did not propose to file any further submissions. The solicitor's submissions 1. After referring to relevant authorities, the submissions filed on behalf of the solicitor by her senior counsel, Mr Michael Fordham SC and her junior counsel, Ms Alexandra Rose, submit that, in dealing with an application under s 64 the relevant test is that the circumstances to make the order should be "special" or "out of the ordinary" rather than "exceptional". It is urged that the Tribunal follow the decision of the Appeal Panel in the ADT in Dezfouli. 2. It is further argued that the facts that support the making of the orders sought are in any event "exceptional". Discussion and findings A hearing conduct in whole or part in private 1. Order 1 of the application seeks that the interlocutory hearing be held in private. Such an order is not necessary as a result of the parties' agreement to have this matter determined on the papers without an oral hearing. 2. The second order sought by the practitioner is an order under s 49(2) that the whole of the proceedings be held in private. Proposed order 3 is framed in the alternative and seeks that the proceedings be conducted partly in private but closing the hearing during "during evidence of any witness that may refer to the Respondent's husband and "any oral submissions". 3. I am satisfied that proposed Order 2 is too widely framed. I am not satisfied on the evidence before me that it is desirable the whole of the proceedings should be conducted in private. The principles in relation to open justice in disciplinary proceedings are enshrined in s 49. Facts relating of the circumstances of the certification of the power of attorney, the solicitor's actions on discovery the error, and her own health as a result of her surgery fall within the category of embarrassment referred to by Kirby P in John Fairfax. Those circumstances are not special or out of the ordinary. Nor do they fall within the circumstances described in Anon 2 where there was a real risk of immediate reputational damage to the defendant during the period of almost a year prior to the final hearing. 4. I accept that if the medical and other evidence presently before me is tendered by way of affidavit evidence in these proceedings that it may have a significant impact on the solicitor's husband's health and that impact may constitute a special or out of the ordinary circumstance warranting part of the hearing being conducted in private. However, it is not clear at this stage of the proceedings that such material, assuming it is relied on by the solicitor, and tendered in the proceedings, will be subject of cross-examination. It may be dealt with in written rather than oral submissions at the conclusion of the disciplinary proceedings. I note that pursuant to the regulations access to the file cannot be sought by third parties until finalisation of the matter and only then by way of application to the Registrar. Consequently, there can be no concern that a third party will, prior to the finalisation of the matter, gain access to the file. Thus, unless subject of cross-examination and/or oral submissions the solicitor's husband's privacy in respect of his medical condition will be maintained. 5. I am satisfied that the proper course is for proposed order 3 of the solicitor's application to be stood over for determination at the hearing. At that time it will be known exactly what material is relied on by the solicitor, and whether relevant medical evidence and evidence of senior counsel is to be subject of cross-examination. At that time the Tribunal will be in a position to determine whether or not part of the proceedings should be conducted in private. Publication of the solicitor's name in the Tribunal's lists. 1. Order 4 seeks that the respondent's name be anonymised in all future hearing lists published by the Tribunal. Again, I am satisfied the proposed order sought is too wide having regard to the evidence presently before me. 2. I find no prejudice will be occasioned to the solicitor if her name is published as is the usual course in the Tribunal's list for the first day of the hearing. Again, should there be any cogent basis for a not listing the solicitor's name in a future list, an application may be made at that time. I find no significant correlation between the publication of the practitioner's name prior to the commencement of the proceedings and any likely detriment to her husband's health or reputation. Non publication of the name of the solicitor's law firm, the partner of her law firm, her employed solicitor or her husband. 1. Proposed order 5 is sought under s 64 (1) (a) and (4) of s 64 of the CAT Act. 2. First it is sought that there be no disclosure of the name of the solicitor's husband or anything that identifies him or is likely to lead to his identification. 3. I note in these reasons in order to ensure the husband's name or identity is not disclosed that no identifying material has been referred to, and that the solicitor's name has been anonymised. 4. Consistent with my finding about proposed Order 3, I am satisfied that the proper time and place for seeking an order in terms of paragraph 5(a) of the application is at the hearing. If evidence is adduced about the husband's medical condition and it is subject to cross examination or oral submissions then the order sought is likely to be appropriate. But the proceedings have not yet reached that stage, and cross examination or oral submissions may not occur. 5. The solicitor also seeks that nothing that identifies her, her law firm, her partner in the law firm or employed solicitor should be disclosed. At present there is no basis for such an order. The basis for such an order may be established if the solicitor's husband's medical records are referred to at the hearing in such a manner that he is indirectly identified because of his relationship with his wife, the partner in the law firm or her employed solicitor. 6. I accept that if the solicitor relies on the impact on her of her husband's medical condition on her in her affidavit evidence that her evidence may, if subject to cross examination, lead to identification of her husband and his medical condition. To preclude such a possibility it may be necessary for the Tribunal at the substantive hearing to consider making an order in terms of paragraph 5 (b), (c) and (d) of the application. 7. Any risk that the husband will be identified by reason of his relationship with the solicitor and his medical condition becoming known to the profession or the public generally is at this stage speculative. Again, I am satisfied this aspect of the application can be effectively dealt with during the course of the hearing when any real risk can be established on the evidence then before the Tribunal and the desirability of making the order properly considered. 8. In the alternative to the order sought in paragraph 5, the solicitor seeks that pending further order that her husband be referred to by a pseudonym, that she be permitted to appear at the Tribunal and give evidence before the Tribunal using a pseudonym, that her employed solicitor be referred to by a pseudonym and that the partner in her law firm be referred to and permitted to appear and give evidence before the Tribunal using a pseudonym. 9. As already noted no affidavit or draft affidavit to be relied on by the solicitor or any witness was filed in support of this application. Consistent with my reasoning in respect of the earlier proposed orders, I find this application is premature and one which may be made, if appropriate to do so, at the substantive hearing. 10. Paragraph 7 seeks an order pursuant to s 64 (1) (b) of the CAT Act "and until further order" there shall be no publication or broadcast of any reports of these proceedings in the Tribunal. 11. Although the use of the word "report" in s 64 (1) (b) is somewhat ambiguous and if narrowly construed, might be read as limited to reports to the media or other persons present at the hearing, I take the broader view that "report" encompasses a decision of the Tribunal. 12. I have found it appropriate publish these reasons, but have endeavoured to ensure that any material that identifies the solicitor or her husband is avoided. I am satisfied that, subject to the publication of these reasons, an order, pending the determination of the substantive proceedings, should be made as sought by the solicitor. But any continuation of the order at or after the substantive hearing is a matter for the Tribunal hearing those proceedings. orders 1. Pending the hearing of the substantive proceedings no report of these proceedings except this decision shall be published to any person. 2. Paragraphs 2, 3, 5 and 6 of the application for interim orders filed on 27 October 2016 are stood over to the substantive hearing. 3. The application for interim orders filed on 27 October 2016 is otherwise dismissed. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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 March 2017