Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Legal Services Commissioner v Potkonyak (No. 2) [2017] NSWCATOD 134 Hearing dates: 22 August 2017 Date of orders: 22 August 2017 Decision date: 11 September 2017 Jurisdiction: Occupational Division Before: F Marks ADCJ, Principal Member C Ludlow, Senior Member M Bolt, General Member Decision: (1) Adjournment granted; The stage 2 hearing has been fixed for the 13 November 2017. (2) Practice conditions imposed; The following interim order (pursuant to section 563 of the Legal Profession Act 2004) made on 14 December 2016 remains in force until further order of the Tribunal, as noted at the hearing of 18 April 2017: (5) The Respondent is directed to include in any advice given to a client a reference to the state of the law as exemplified in relevant decisions of any court having jurisdiction over the matter or matters pertaining to that client, together with a reference to the practice and procedure of any relevant court. The Tribunal further Orders; Pursuant to section 563 of the Legal Profession Act 2004, and section 562(4)(d) of the Legal Profession Act 2004: (a) The Respondent must provide a copy of the Tribunal's decision in Legal Services Commissioner v Potkonyak [2017] NSWCATOD 74 to each of his current clients. (b) The Respondent (including his employees or any person practising under the supervision of the Respondent in accordance with section 49 of the Legal Profession Uniform Law (NSW)) must not accept any instructions from new clients. (c) The Respondent must not employ or supervise any person within the meaning of section 49 of the Legal Profession Uniform Law (NSW) to accept instructions on his behalf. (d) The Respondent must not enter into any agency agreement whereby the Respondent undertakes work as the agent of another solicitor on behalf of clients of other solicitors. (e) The Respondent must not employ or supervise any person for the purposes of specified practical legal training within the meaning of section 17 of the Legal Profession Uniform Law (NSW), rule 6 and Schedule 2 of the Legal Profession Uniform Admission Rules 2015. (3) Application for referral of question of law dismissed. Catchwords: Legal practitioner found guilty of professional misconduct-adjournment of hearing for protective orders granted-practice conditions imposed. Application for referral of proceedings to Supreme Court to determine question of law-no question of law formulated-application dismissed. Legislation Cited: Legal Profession Act 2004 Civil and Administrative Tribunal Act Category: Principal judgment Parties: Legal Services Commissioner (Applicant) George Potkonyak (Respondent) Representation: Counsel: CA Webster SC and PA Madigan (Applicant) In Person (Respondent) Solicitors: S Gulliver (Applicant) In Person (Respondent) File Number(s): 2015/00383950 Publication restriction: Non-publication order prohibiting the disclosure of the name of any client of the respondent, the name of any child of any client of the respondent and the names of all other parties to any proceedings in which the respondent represented a party, with respect to any proceedings which are the subject of or relate to allegations of misconduct against the respondent made in these proceedings REASONS for decision 1. By Decision dated 17 May 2017, Legal Services Commissioner v Potkonyak [2017] NSWCATOD 74, we found the Respondent, George Potkonyak guilty of professional misconduct pursuant to the provisions of the Legal Profession Act 2004. In so finding we concluded, at [99] that the respondent was not a fit and proper person to engage in legal practice. The proceedings were stood over for the purpose of hearing the parties as to the nature and form of any consequential orders that might be made following our finding of professional misconduct. That hearing was set to be conducted on 22 August 2017 and a timetable was later agreed between the parties to enable the hearing to be conducted on that date. 2. On 31 July 2017 the Respondent advised the Registry of the Tribunal and the Applicant that he sought an adjournment of the hearing on 22 August to suit the availability of counsel whom he had been able to engage on a pro bono basis. The Applicant responded that it neither consented to nor opposed the adjournment. The parties were advised that the Tribunal would consider the adjournment application on 22 August and would consider at the same time whether any interim orders should be made pending the final hearing of the proceedings. 3. On 21 August 2017 the Respondent filed an application for interim order in which he sought orders that the matter be referred to the Supreme Court "on the question of jurisdiction" and that the further hearing be postponed whilst this occurred. 4. On 22 August 2017 we heard both the application for adjournment and the application for interim order and made orders granting the adjournment subject to the imposition of practice conditions but dismissing the application for referral to the Supreme Court. These reasons deal with both of these applications and set out our reasons for the orders made. The application for referral to the Supreme Court 1. The application was expressed to be one seeking an "interim order". We are unsure as to what was intended by the Respondent in seeking an "interim" order. In essence, the ground upon which the application for referral was based was said to be ""Jurisdictional incompetence" of the Tribunal and the Legal Services Commissioner to deal with the matters involving interpretation of the law is not related to the conduct of legal professionals." 2. As best we understand the grounds upon which the application was brought, they refer to one of the bases upon which we determined that the Respondent was guilty of professional misconduct. The Respondent had continually advocated before a number of courts his particular view about how particular legislation should be applied. His view was consistently rejected by all of the courts before whom he appeared. It appears that he expected that when his conduct was examined in the proceedings before this Tribunal we would, in some way, examine the approach to the application of the relevant legislation consistently applied by all of the courts before whom he appeared and determine for ourselves that that approach was incorrect, the courts concerned were presumably wrong, the approach taken by the Respondent would be vindicated and any allegation of professional misconduct would be rejected. 3. In his accompanying affidavit, the Respondent elaborated on the reasons why he had brought the application. He stated that in the course of preparing a brief to counsel and rereading the decision he realised, presumably for the first time, that this Tribunal would not call into question the decisions made by the various courts to which we have referred in our reasons for decision in the substantive proceedings. Furthermore, he appreciated that this Tribunal could not call these decisions into question and for this reason was not competent to deal with his matter. It was in this sense that he referred to the "jurisdictional incompetence" of this Tribunal emphasising that he intended no disrespect. 4. Furthermore, it appears from the material contained in the grounds for the application coupled with the material in his accompanying affidavit, that the Respondent was seeking referral by the Tribunal to the Supreme Court so that that Court could determine whether and to what extent he had engaged in misconduct in pursuing his approach to the application of the legislation. In so construing the basis of the application filed by the Respondent it seems to us that he is arguing that this Tribunal is not competent to deal with his arguments because we are bound to apply the decisions of competent courts in the manner in which the legislation should be applied and only the Supreme Court has the power and jurisdiction to go beyond these matters. 5. In general terms, there is no power in this Tribunal to review our decision. Furthermore, even if such power existed, we are essentially functus with respect to that part of the proceedings which involved a determination of professional misconduct, where the only matter outstanding is the nature and extent of any consequential protective and other orders. 6. This is a statutory Tribunal and its powers and jurisdiction are circumscribed by the Civil and Administrative Act and other enabling legislation. It is not necessary for us to refer to authority to state that the Tribunal does possess certain implied powers to enable it to exercise its jurisdiction. A power to refer a question of law to the Supreme Court falls outside what might be apprehended to be an implied power of this kind and requires a specific reference in the enabling legislation. 7. There is particular power to refer a question of law to the Supreme Court which is contained in section 54 of the Civil and Administrative Tribunal Act, and which is in the following terms; 54 REFERENCES OF QUESTIONS OF LAW TO SUPREME COURT (1) The Tribunal (including when constituted as an Appeal Panel) may, of its own motion or at the request of a party, refer a question of law arising in the proceedings to the Supreme Court for the opinion of the Court. (2) The Tribunal may refer a question of law under this section only if the President has consented in writing to the question being referred. (3) The Supreme Court has jurisdiction to hear and determine any question of law referred to it under this section, but may decline to exercise that jurisdiction if it considers it appropriate to do so. (4) If a question of law arising in proceedings has been referred to the Supreme Court under this section, the Tribunal is not: (a) to give a decision in the proceedings to which the question is relevant while the reference is pending, or (b) to proceed in a manner, or make a decision, that is inconsistent with the opinion of the Supreme Court on the question. (5) Subsection (4) extends to the Tribunal when constituted as an Appeal Panel that is determining an internal appeal from a decision of the Tribunal in proceedings before which a question of law has been referred by the Tribunal at first instance to the Supreme Court under this section. 1. As is obvious from the provisions of section 54, there is a requirement that a question of law be framed in such a way that it is capable of being referred to the Supreme Court. We do not apprehend that there is any such question which has been framed by the Respondent in a sufficiently cogent or coherent manner capable of being referred to the Supreme Court which is contained in the application and accompanying grounds and affidavit filed by the Respondent. Given the uncertainty and ambiguity surrounding the application filed by the Respondent, it would, in our opinion, be inappropriate for the Tribunal to endeavour itself to formulate a question of law for referral, even assuming that the President might consent to its referral as is required. 2. In these circumstances, we are unable to discern that we have any power to refer "the proceedings" before us to the Supreme Court. In addition, such a referral, even if there were power, would not be appropriate. If the Respondent wishes to seriously contend before the Supreme Court that another approach to the consideration of the complaints brought against him should have been applied, it would be more appropriate for the Respondent to seek to take the matter to the Supreme Court by way of appeal. 3. It follows that there is no appropriate reason to grant the application for referral, and it must be dismissed. We so conclude. The adjournment application 1. We indicated to the parties that consequent upon our finding that the Respondent was not a fit and proper person to practice as a solicitor that we were concerned that some interim measure of protection for the public should be established if the matter was to be adjourned. Our concern was exacerbated by the contents of an affidavit sworn by the Respondent on 20 August 2017 and submissions which accompanied the application for interim order, and which we had read prior to conducting the hearing on 22 August. The affidavit was read and relied upon by the Respondent in the course of the hearing. We note for present purposes that the Respondent expressed dismay that in our decision we had assumed the correctness and integrity of decisions of the NSW Court of Appeal, the District Court of NSW and the Children's Court. He asserted that in doing so we had engaged in some jurisdictional error in that we should have examined for ourselves the correctness of these decisions. This approach arguably is indicative of a lack of insight into and concerning the matters upon which our finding of professional misconduct was based. 2. The Applicant proposed a set of interim orders which were complementary to an interim order which had been made on 14 December 2016 and which was continued in force by order made on 18 April 2017. The effect of that order was that the Respondent must "include in any advice given to a client a reference to the state of the law as exemplified in relevant decisions of any court having jurisdiction over the matters pertaining to the client, together with a reference to the practice and procedure of any relevant court." The proposed further orders would allow him to continue to represent existing clients, but would preclude him from accepting instructions from new clients whether directly or as an agent for other solicitors. 3. The Respondent resisted the making of these additional interim orders save for Further Order (a), protesting that he did not think they were necessary. In his view, he had not engaged in any conduct which would justify our finding of professional misconduct and the matters upon which that finding was based. 4. Having regard to the nature and extent of the professional misconduct which we have found, and to our finding that the Respondent is not a fit and proper person to be a solicitor, we are of the opinion that the orders sought by the Applicant are appropriate in all the circumstances. Indeed, an order suspending the registration of the Respondent would also have been appropriate. In making these observations we make reference to the following extract from our earlier Decision; 98 Whether and to what extent the conduct of the respondent which we have found to have been proven to the requisite standard constitutes either unsatisfactory professional conduct or professional misconduct involves the exercise of a value judgement. It should be noted that the definition in section 496 includes a reference to the reasonable expectation of a member of the public. There is a fundamental public interest in the appropriate administration and management of the work of the courts as part of the legal system. We apprehend that it is the reasonable expectation of a member of the public that a professional legal practitioner will do nothing to attack inappropriately the reputation and integrity of the legal system including especially the courts. The scurrilous and ill-considered comments of the respondent in zealously pursuing his ideological approach to the detriment of the application of appropriate legal principles constitutes an attack on the reputation and integrity of the courts with which he was involved. His unfounded criticism of judicial officers and of fellow practitioners also constitutes an attack on the integrity of the legal system. In our opinion this conduct by the respondent set out in the several Grounds and Particulars which we have found to be proven is inconsistent with the reasonable expectation of a member of the public. Members of the public would and do expect that legal practitioners retained by them will furnish them with competent objective advice concerning the state of the law and, if appropriate, any areas of the law which may not be then currently settled, will advise them in pragmatic terms having regard to all of the circumstances of the litigation and their own personal circumstances, and will not incur the displeasure of judicial officers and fellow legal practitioners by making scurrilous and unjustified criticism. A member of the public engaged in costly and protracted litigation would expect that a legal practitioner representing another party in the proceedings would conduct himself or herself in a manner which would ensure the just quick and cost effective disposition of the proceedings. The respondent has breached all of these expectations. It follows that we regard the misconduct of the respondent as proven to constitute unsatisfactory professional conduct. 99 Furthermore, the unsatisfactory professional conduct involves a substantial and consistent failure to reach or maintain a reasonable standard of competence, and justifies a finding, that we make, that the respondent is not a fit and proper person to engage in legal practice. The conduct of the respondent which we have found proven demonstrates that he has engaged in a continued pattern of misconduct over a period of time which excludes any consideration that the respondent was guilty of any momentary lapse of professional judgment, or that there was an isolated instance of professional negligence. The mere recitation of the conduct of the respondent is, without more, sufficient to justify this conclusion. 1. The power to make interim orders before making a final decision about the complaint against the Respondent is to be found in section 563 of the Legal Profession Act. The kind of orders which may be made are set out in section 562 of that Act. That section allows an order imposing specified conditions on the practising certificate of the Respondent. The purpose of an interim order is to protect the public. As will be observed from the brief extract from our published reasons for decision set out above, and consistent with our finding that the Respondent is not a fit and proper person to practice as a solicitor, the public needs protection from legal services which the Respondent provides. This is especially so given his present rejection of our findings and reasons. We find that it is appropriate to impose the following conditions, which incorporate the existing practice condition to which we have earlier referred as made by us on 22 August 2017 and which were proposed by the Applicant: THE TRIBUNAL NOTES The following interim order (pursuant to section 563 of the Legal Profession Act 2004) made on 14 December 2016 remains in force until further order of the Tribunal, as noted at the hearing of 18 April 2017: (5) The Respondent is directed to include in any advice given to a client a reference to the state of the law as exemplified in relevant decisions of any court having jurisdiction over the matter or matters pertaining to that client, together with a reference to the practice and procedure of any relevant court. THE TRIBUNAL FURTHER ORDERS Pursuant to section 563 of the Legal Profession Act 2004, and section 562(4)(d) of the Legal Profession Act 2004: (a) The Respondent must provide a copy of the Tribunal's decision in Legal Services Commissioner v Potkonyak [2017] NSWCATOD 74 to each of his current clients. (b) The Respondent (including his employees or any person practising under the supervision of the Respondent in accordance with section 49 of the Legal Profession Uniform Law (NSW)) must not accept any instructions from new clients. (c) The Respondent must not employ or supervise any person within the meaning of section 49 of the Legal Profession Uniform Law (NSW) to accept instructions on his behalf. (d) The Respondent must not enter into any agency agreement whereby the Respondent undertakes work as the agent of another solicitor on behalf of clients of other solicitors. (e) The Respondent must not employ or supervise any person for the purposes of specified practical legal training within the meaning of section 17 of the Legal Profession Uniform Law (NSW), rule 6 and Schedule 2 of the Legal Profession Uniform Admission Rules 2015. Further conduct of the proceedings 1. The stage 2 hearing has been fixed for 13 November 2017. The Tribunal has, with the consent of the parties, fixed a timetable which includes a requirement that the Respondent file and serve all material including submissions upon which he seeks to rely on or before 23 October 2017. The Tribunal expects the Respondent to adhere to this timetable. ********** 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: 11 September 2017