Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Council of the Law Society of NSW v DOO [2018] NSWCATOD 173 Hearing dates: By written submissions 12 September 2018 and 21 September 2018, and correspondence dated 9 October 2018 Date of orders: 23 October 2018 Decision date: 23 October 2018 Jurisdiction: Occupational Division Before: Boland ADCJ, Deputy President Decision: 1. Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) and pending further order the solicitor's name is not to be published in the listing of any future events in the Tribunal. Catchwords: PROFESSIONS AND TRADES – where legal practitioner seeks order that his name is not published – whether appropriate to make non publication order Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law (NSW) Legal Profession Act 2004 (NSW) (repealed) Cases Cited: Anon 2 v XZY [2008] VSC 466 Council of the Law Society of New South Wales v CZD [2017] NSWCATOD 31 Griffin v The Council of the Law Society of New South Wales [2016] NSWCA 364 Health Care Complaints Commission v BQB [2014] NSWCATOD 157 Health Care Complaints Commission v CSM [2018] NSWSC 902 Health Care Complaints Commission v Vo [2014] NSWCATOD 127 Health Care Complaints Commission v XC [2015] NSWCATOD 9 Kostov v Ecclesia Housing Limited (No 3) [2018] NSWCATAP 221 Category: Procedural and other rulings Parties: Council of the Law Society of New South Wales (Applicant) DOO (Respondent) Representation: Counsel: P Maddigan (Applicant) Solicitors: Council of the Law Society of NSW (Applicant) Respondent (self-represented) File Number(s): 2018/00234660 REASONS FOR DECISION Introduction 1. The Council of the Law Society of NSW (the Society) has commenced disciplinary proceedings in this Tribunal against a solicitor. The solicitor no longer holds a current practising certificate. He was made bankrupt in 2015. The Society asserts that the solicitor has misappropriated trust monies. The disciplinary proceedings are listed for hearing on 13 December 2018. 2. On 27 August 2018, the solicitor filed an application for a stay or interim order, in which he sought a non-publication order. At a directions hearing, held on 12 September 2018, the solicitor indicated that he wished to have an interlocutory order made restricting publication of his name. Directions were made for the solicitor to give to the Society, by 12 September 2018, any material on which he sought to rely in respect of his application, and for the Society to give to the solicitor and the Tribunal any material on which it relied by 19 September 2018. Subsequently, I requested a copy of orders and a judgment, which was noted to be annexed to written submissions provided by the solicitor, but was in fact not annexed to the document. The Society subsequently provided me with the text of an extract from the reasons of Campbell J in the Supreme Court. His Honour is recorded as explaining: I think in the circumstances the legislation provides for a hearing in a closed court and that is obviously for a purpose. Given we are at a very early stage of things I think it would be in the public interest, at least for the time being, that I restrict the publication and dissemination of my reasons to the parties and the intervener and I make that order. 1. I am not aware of the nature of the proceedings before Campbell J or the names of the parties to those proceedings. 2. In this application the solicitor now seeks an order as follows: The disclosure of the respondent's name is restricted to the parties, their representatives and to other persons or bodies where disclosure is necessary for the effective implementation and administration of the orders that the Tribunal will make in these proceedings. 1. In a Reply filed in these proceedings, the solicitor seeks a final order, under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act), restricting publication of his name. 2. In its submissions, counsel for the Society notes that "[t]he Society neither opposes, nor consents to, an order prohibiting publication of the Respondent's name in future listings for this matter. However, the Society opposes any additional orders that the Respondent seeks". The Society's submissions, however, go on to note: …the Society submits that the Respondent has not established that it is desirable for the Tribunal to make an order restricting or prohibiting the disclosure of the Respondent's name either on an interim or final basis. 1. For reasons that follow, I have determined that the solicitor's name should not be published in any future listing of the matter, and any application for a final non-publication order should be determined at the same time as the substantive disciplinary proceedings. The relevant law 1. The disciplinary proceedings are brought by the Society under the Legal Profession Act 2004 (NSW) (repealed) ("the LPA Act"). Unlike cl 7 of Sch 5D of the Health Practitioner Regulation National Law (NSW) (the National Law), the LPA Act does not contain a specific provision dealing with the making of a non-publication order. However, the overriding principles of "open justice" are relevant in disciplinary proceedings under each piece of legislation. 2. Section 64 of the NCAT Act provides as follows: 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. Clause 22 of Sch 5 of the NCAT Act provides as follows: 22 Hearings into conduct to be conducted in public (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. Pursuant to transitional provisions, cl 22 applies to matters under the now repealed LPA Act (see Griffin v The Council of the Law Society of New South Wales [2016] NSWCA 364). 2. As noted in the written submissions of counsel for the Society, the relevant principles applicable to a non-publication order, in the circumstance of disciplinary proceedings involving a legal practitioner, are extensively discussed by me in Council of the Law Society v CZD [2017] NSWCATOD 31 at [26]-[36]. I repeat and rely on the summary of the relevant principles in that decision. The relevant authorities are also referred to in the parties' submissions (see Kostov v Ecclesia Housing Limited (No 3) [2018] NSWCATAP 221 (a residential tenancy appeal matter), Health Care Complaints Commission v Vo [2014] NSWCATOD 127, Health Care Complaints Commission v CSM [2018] NSWSC 902, Health Care Complaints Commission v BXD (No 2) [2015] NSWCATOD 135, Health Care Complaints Commission v XC [2015] NSWCATOD 9, and Health Care Complaints Commission v BQB [2014] NSWCATOD 157 (all matters determined under the National Law). The solicitor's submissions 1. I begin by noting that in this matter, as in Health Care Complaints Commission v Vo, the solicitor has not adduced any evidence in support of his application for a non-publication order. 2. In the Society's written submissions, it is asserted that, absent evidence, the solicitor has failed to discharge the onus he bears of establishing that the order sought should be made. 3. The solicitor's written submissions set out the adverse effect wrought by his actions on his family. His marriage has irretrievably broken down, and he has suffered estrangement from his children. He asserts that the children have been affected by their change in lifestyle, and at least two of his children have suffered depression. His eldest son is about to undertake his Higher School Certificate. The solicitor also expresses concern that his separated wife's employment may be jeopardised by adverse publicity. 4. The matters asserted by the solicitor may be corroborated by evidence at the final hearing. However, I agree with counsel for the Society that the lack of evidence before me precludes the making of an order as sought by the solicitor in final form, or even on an interlocutory basis. 5. It appears to me a proper balance can be struck in this matter by making an order, which provides that the practitioner's name is not to appear in any listing of the matter up to and including the final hearing. In so determining, I take into account that Campbell J has found circumstances in which it is appropriate to grant an interlocutory non-publication order because of the solicitor's circumstances. I also take into account the comments of Kaye J in Anon v XZY [2008] VSC 466. In that case his Honour noted that there is a strong body of authority for concluding that the principle of open justice does not apply with the same force and vigour prior to a genuine hearing in court. 6. The solicitor is now clearly on notice that, if he wishes to seek a wide, final non-publication order, he will need to put evidence before the Tribunal at the hearing to satisfy it that it is desirable that a final non-publication order should be made. ORDERS 1. Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) and pending further order the solicitor's name is not to be published in the listing of any future events in the Tribunal. ********** 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: 23 October 2018