Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Lott v Council of the New South Wales Bar Association [2017] NSWCA 145 Hearing dates: 14 June 2017 Date of orders: 14 June 2017 Decision date: 21 June 2017 Before: Meagher JA at [1]; Simpson JA at [2]; Sackville AJA at [43] Decision: 1. Application for leave to appeal dismissed. 2. The applicant to pay the respondent's costs of the application. Catchwords: APPEAL – application for leave to appeal – practice and procedure – disciplinary proceedings – summonses to produce – whether summonses disclose legitimate forensic purpose – no error of principle – leave to appeal refused PRACTICE AND PROCEDURE – disciplinary proceedings – summonses to produce – where personal circumstances occurring after impugned conduct are raised – whether summonses disclose legitimate forensic purpose – leave to appeal refused PROFESSIONS AND TRADES – lawyers – complaints and discipline – practice and procedure – where personal circumstances occurring after impugned conduct are raised – whether summonses disclose legitimate forensic purpose Legislation Cited: Legal Profession Act 2004 (NSW), ss 4, 496, 497, 503, 504, 513, 525, 527, 537, 553, 562, Pt 7.3 Legal Profession Uniform Law (NSW) Cases Cited: Council of the New South Wales Bar Association v Lott [2016] NSWCATOD 159 Category: Principal judgment Parties: Patrick Bernard Lott (Applicant) Council of the New South Wales Bar Association (Respondent) Representation: Counsel: P M Morris SC/T Fishburn (Applicant) A N Williams (Respondent) Solicitors: Moray & Agnew (Applicant) Hicksons (Respondent) File Number(s): 2016/384883 Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Occupational Division Citation: Council of the NSW Bar Association v Lott [2016] NSWCATOD 159 Date of Decision: 21 December 2016 Before: Boland ADCJ File Number(s): 1520263 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. MEAGHER JA: On 14 June 2017 I joined in the making of the orders set out by Simpson JA at [8]. My reasons for doing so accord with those given by Simpson JA, especially at [33]-[39]. The subject matter of the application for leave is a matter of practice and procedure. The conclusion reached by the primary judge was clearly an available one, and did not involve any error of principle. Furthermore, for the reason lastly referred to by Simpson JA, it was not established that substantial injustice would be caused if the summons for production were not set aside. 2. SIMPSON JA: The applicant is the respondent to proceedings in the NSW Civil and Administrative Tribunal ("the Tribunal") brought by the Council of the NSW Bar Association ("the Council"). In those proceedings, the Council seeks "findings", in the alternative, that the applicant (who is a legal practitioner practising as a barrister in NSW) was guilty of professional misconduct, or of unsatisfactory professional conduct. In preparation for the hearing, the Council issued a summons to each of three health providers, requiring production of medical records of the applicant. Each recipient has complied with the summons and produced documents. 3. The applicant moved in the Tribunal to set aside each summons on the ground that no legitimate forensic purpose for production of the records involved could be established, and that the issue of each summons was, therefore, an abuse of process. 4. On 21 December 2016, Boland ADCJ (sitting as Deputy President of the Tribunal) dismissed the applicant's application and granted leave to each party to inspect the documents, the applicant to have first access: Council of the New South Wales Bar Association v Lott [2016] NSWCATOD 159. 5. Subsequently, by agreement between the parties, the order was varied so that leave to inspect the documents was granted to the applicant, but the question of the Council's access was adjourned pending further order of the Tribunal, or agreement between the parties. It appears that no further order has been made by the Tribunal, and no agreement has been reached between the parties. 6. The applicant sought leave to appeal against the dismissal of his application to set aside each summons. The application is to be dealt with in accordance with the principles applicable to interlocutory decisions on questions of practice and procedure. 7. Each summons having been answered, the application to set it aside was otiose; the real issue between the parties concerned and concerns whether the Council should be granted leave to inspect the documents. The absence of any legitimate forensic purpose on behalf of the party seeking access is one of the reasons which may justify a refusal to permit inspection of some or all of the documents produced. 8. At the conclusion of the hearing in this Court, the following orders were made: "1. Application for leave to appeal dismissed. 2. The applicant to pay the respondent's costs of the application. 3. Reasons reserved." Relevant legislation 1. It was agreed between the parties, and accepted by the Tribunal, that the Council's application to the Tribunal and all associated and ancillary issues are governed by the Legal Profession Act 2004 (NSW) ("the LP Act") which has been repealed and now replaced by the Legal Profession Uniform Law (NSW). It is unnecessary to explore the complex transitional provisions that make the LP Act applicable. 2. Chapter 4 of the LP Act deals with complaints against and discipline of the legal profession. Sections 496 and 497 define, respectively, "professional misconduct" and "unsatisfactory professional conduct" as follows: "unsatisfactory professional conduct includes conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner." "professional misconduct includes: (a) unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence, and (b) conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice. (2) For finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the matters that would be considered under section 25 or 42 if the practitioner were an applicant for admission to the legal profession under this Act or for the grant or renewal of a local practising certificate and any other relevant matters." 1. Part 4.2 deals specifically with complaints about Australian legal practitioners (of which the applicant is one). It establishes a regime by which a complaint about a legal practitioner may be made (ss 503 and 504) to the Legal Services Commissioner ("the LSC") (s 4; Pt 7.3), who may also initiate a complaint. Each complaint must (subject to presently immaterial exceptions) be investigated (s 525). Thereafter, Pt 4.2 provides for interplay between the roles of the LSC and (in respect of barristers) the Council. The LSC may refer a complaint to the Council for investigation (s 513) which must conduct an investigation (s 527). 2. After completion of an investigation, three courses of action are available to the Council. One course is for the Council to commence proceedings in the Tribunal (s 537), which then must conduct a hearing into the allegations particularised (s 553). After completion of a hearing, if it is satisfied that the legal practitioner has engaged in unsatisfactory professional conduct or professional misconduct, the Tribunal may make such orders as it thinks fit, including an order that the name of the legal practitioner be removed from the roll of legal practitioners; it may make other, less severe, orders (s 562). Background facts 1. As indicated above, the applicant was a legal practitioner admitted to practice under the provisions of the LP Act. In May 2014 he was briefed to appear in proceedings under the Family Law Act 1975 (Cth) in the Federal Circuit Court of Australia ("the FCCA"). His conduct of the proceedings was such as to cause the presiding judge to direct the registrar of the FCCA to refer the papers to the LSC, with a request that the LSC investigate whether the applicant had demonstrated unsatisfactory professional conduct or professional misconduct. 2. The LSC initiated a complaint, which was referred to the Council under s 513 of the LP Act. The Council undertook an investigation, as it was required by s 527 to do. In doing so, it engaged in a considerable amount of correspondence with the applicant, and with others. On 29 July 2014 the Council wrote to the applicant, providing relevant information (including the complaint by the LSC, the decision of the FCCA, and the letter referring the matter to the LSC). The applicant was invited to respond by written submission. 3. There followed a further volume of correspondence. On 22 October 2014 the applicant sent to the Council a copy of a medical report provided by Dr Jennifer Bromberger. Dr Bromberger reported that the applicant had attended her rooms on 11 September 2014. She diagnosed a hormone deficiency, which was treatable (and treated) but which, she said, was of gradual onset and not necessarily recognised by sufferers until after treatment. 4. The Council took further steps to deal with the complaint, which was, in some way, modified. By letter dated 30 March 2015, in response to the Council's letter of 29 July 2014, solicitors acting for the applicant made written submissions. It may be taken that the submissions were directed to the question of which of the courses of action available to the Council under s 537 should be taken (the most serious of which was the commencement of proceedings in the Tribunal). The submissions of 30 March dealt with a number of matters. They set out the applicant's career before his admission as a legal practitioner, and his admission to practice. They dealt at some length with the circumstances of the brief in the Federal Court and the applicant's conduct of the proceedings. They also dealt at some length with the applicant's personal circumstances, including mention of family matters, and, importantly for present purposes, issues of his psychological health. They referred to a substantial deterioration in the applicant's mental health following the appearance in the FCCA (and media coverage that followed the delivery of the decision). 5. The matters to which the submissions referred in this context post-dated the applicant's appearance in the FCCA. 6. Notwithstanding those submissions, on 25 June 2015 the Council resolved under s 537 to commence proceedings in the Tribunal. On 18 December 2015 the Council filed in the Tribunal an "Application for Disciplinary Findings and Orders". The application sought the findings set out above, that is findings of professional misconduct or, alternatively, unsatisfactory professional conduct. It set out the grounds for the application, which dealt solely with the proceedings in the FCCA. Six separate complaints, all relating to the applicant's conduct of the proceedings, were identified. 7. On 1 April 2016 the applicant filed a Reply to the Council's application. He responded in detail to the particularisation of the Council's application. He made no mention in the Reply of any matters relating to his personal circumstances. 8. The Council filed in the Tribunal an affidavit affirmed by the Executive Director of the NSW Bar Association on 17 December 2015, setting out at length the history of the complaint and its investigation. 9. On 25 May 2016 the applicant filed an affidavit in the Tribunal. He repeated much of the content of the written submissions of 30 March 2015, but added significant reference to his personal and family circumstances, and his medical history, with specific reference to events post-dating the FCCA appearance. 10. On 19 October 2016 the Council issued the three summonses the subject of this application, and the applicant moved to have them set aside on the basis, as indicated above, that the Council had not demonstrated any legitimate forensic purpose for the production of the documents. 11. A hearing took place in the Tribunal on 28 November 2016, and, on 21 December 2016, the Deputy President delivered judgment, making the initial orders set out above. The primary judgment 1. After recording the relevant facts and circumstances, and recording the submissions made by both parties, the Deputy President set out the relevant legal principles applicable to an application to set aside subpoenas and the grant of access to documents produced on subpoena (or summons). No issue was, in these proceedings, taken with her Honour's statement of principle. The principles are well established and uncontroversial, and her Honour's statement accorded with the approach taken by the parties. 2. The Deputy President noted (at [29]) that the applicant disavowed any reliance on his physical or mental capacity to carry out his duties as a legal practitioner either during "the relevant period" or since. 3. She recorded the submissions made on behalf of the applicant as: "(1) the medical records do not relate to a direct proof of any factual issue in the proceedings; (2) there is no likelihood the medical records could throw light on the issue in this case which are defined as negligence, misleading the Court and failure to honour an undertaking." 1. The Deputy President rejected the applicant's submission that the issue of the summonses constituted a "fishing expedition". She accepted the applicant's submission that the documents could not offer direct proof of any factual matter in the (substantive) proceedings between the Council and the applicant. She noted that the documents the subject of the summonses related to events that post-dated the FCCA proceedings. She said (in a paragraph that contains some difficulties of expression): "52 … If his evidence was confined only to those parts of the Reply and [the applicant's] affidavit post the FCCA proceedings I could not be satisfied that the Council has established that the records if produced would materially assist on an issue identified in the proceedings at least in respect of findings on the complaints. They may possibly have some relevance when the tribunal considers an appropriate penalty if the complaints of unsatisfactory professional conduct or professional misconduct are established." 1. She then referred to the written submissions of 30 March 2015 which, she said, raised issues about the applicant's competence by reason of personal matters. She then said: "53 … That evidence is in part reproduced in his affidavit relied on in the proceedings." 1. She then referred to the submission, outlined above, concerning a deterioration in the applicant's mental health, and said: "53 … The use of the word 'deteriorates' connotes a pre-existing condition exacerbated by the referral." 1. She noted a submission on behalf of the Council that the principal basis on which it was entitled to access to the documents was that the applicant's medical history or condition was capable of "meaningfully bearing on" whether his conduct of the proceedings in the FCCA constituted unsatisfactory professional conduct or professional misconduct. (Of particular relevance in this context is that part of the definition of "professional misconduct" that appears in s 497(1)(b) and invokes the concept of "fit and proper person".) 2. She then said: "57 The practitioner's medical treatment post-dates the events the subject of the complaint. On the surface that fact suggests the documents should not be relevant to the context of the complaint. If the practitioner had not raised his underlying circumstances in his correspondence with the Council I would [not] be satisfied that the Council had satisfied the adjectival relevance of the documents. 58 In this case however, I am satisfied that the argument advanced on [the applicant's] behalf that every barrister's medical records could be subject of a summons for production in professional disciplinary proceedings must be discounted. Here [the applicant] has raised as a relevant consideration, in determining his competence in the FCCA proceedings, his [personal and medical circumstances]. I am satisfied this may bear light on whether his conduct before the FCCA was negligent. … 60 Even if I am wrong about my conclusion about adjectival relevance for the issue of findings on the particulars pleaded in the complaint, I am satisfied that it is likely that the practitioner's health issues in 2014 will materially assist the tribunal determine appropriate final orders that are designed, amongst other matters, to protect the public … Accordingly I am satisfied the documents sought in the summonses have adjectival relevance." 1. The reference to "appropriate final orders" is plainly a reference to orders the Tribunal may make, after a finding of unsatisfactory professional conduct or professional misconduct, under s 562. The application for leave to appeal 1. In his submissions to this Court, the applicant relied heavily upon the note made by the Deputy President at [29], that he: "… disavowed any reliance … on his physical or mental capacity to carry out his duties as a legal practitioner …" He sought to confine the issues in the substantive hearing in the Tribunal by reference to "the pleadings" – that is, the application by the Council and his Reply, in which no mention is made of his personal circumstances. He took issue with a reference in the judgment to a submission (concerning the deterioration in his health) in the 30 March 2015 letter which, he pointed out, was made by way of response to the Council at the investigation stage of the complaint, and upon which he placed no reliance for the purpose of the Tribunal hearing. 1. However, he acknowledged that at no stage in the hearing in the Tribunal did he give any indication that he did not intend to read the relevant passages in his affidavit. Nor did he seek to do so in this Court. Nor did he accept that the material concerning his personal circumstances was relevant only to the second stage of the Tribunal's inquiry, in the event that it found either unsatisfactory professional conduct or professional misconduct. 2. In those circumstances, the findings of the Deputy President were amply justified. Determination 1. As s 562 of the LP Act makes clear, there are two sequential stages in the conduct of a hearing of an allegation of professional misconduct or unsatisfactory professional conduct. The first is whether either (and if so, which) of those allegations is made out. If either is, then the second stage is the determination of what consequential orders ought be made. In my opinion, a real question may arise as to the relevance of evidence of personal circumstances of a legal practitioner against whom allegations of unsatisfactory professional conduct or professional misconduct are made in relation to the first stage. That would, or might, turn upon the construction of s 497(1)(b), and particularly, the reference to whether the practitioner "is not a fit and proper person" to engage in legal practice. It is inappropriate further to explore that question here. No such question arises in relation to the second stage. 2. One difficulty the applicant faced (and faces) is that he did not, in tendering the references to his personal circumstances in his affidavit, distinguish between the two stages, or identify the basis upon which he included that evidence in his affidavit. It might be arguable that, if objection were taken to that part of the affidavit, the evidence would be rejected, at least at the first stage. But the Council cannot be expected to bide its time awaiting evidentiary determinations before preparing its case. As the Deputy President said, the applicant himself raised the issue of his personal circumstances and the Council responded by seeking to explore them. 3. There is no error in the Deputy President's holding that, the applicant having raised the issues, the Council was entitled to the means of exploring them. 4. In this Court, the applicant sought to raise an additional issue, pointing to the so-called "breadth" of the documents sought in each summons. There is no reference to any such submission in the judgment of the Deputy President, and no ground in the Draft Notice of Appeal identifies such a complaint. Senior counsel for the applicant referred to the written submissions made in the Tribunal, which concluded with the paragraph: "20 The wide formulation of the documents sought to be produced underlines the reality that this is indeed a 'fishing expedition' and access to the documents produced should be denied." I do not read this as a separate ground of complaint about the summonses, and that construction is confirmed by the absence of any reference to such a submission in the judgment. 1. At the time of hearing the application, this Court was provided only with the original orders made by the Tribunal, including the order granting access to the material produced to the Council. It was only after the conclusion of the hearing (and the announcement of the outcome) that this Court was provided with orders as varied by agreement. That variation resolved any doubts I had concerning the grant of leave to appeal. In fact (once it is accepted that the issue of production is otiose, and the real issue is access) there is nothing on which to grant leave to appeal. There is no extant order granting the Council leave to inspect the documents. The present order is that only the applicant has right to inspect, pending further order (of the Tribunal) or agreement between the parties. 2. In any event, if an application is made by the Council for access to the documents produced to the Tribunal, it would be open to the Tribunal to impose conditions on the grant of access. In view of this power, it cannot be said that the refusal of leave to appeal would cause significant injustice to the applicant. 3. For these reasons, I agree with the orders made on 14 June 2017. 4. SACKVILLE AJA: I agree with Simpson JA. ********** 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: 21 June 2017