Carver v Council of the Law Society of NSW

[1999] NSWCA 17

CITATION:	CARVER v COUNCIL OF THE LAW SOCIETY OF NSW [1999] NSWCA 17
FILE NUMBER(S):	CA 40078/99
HEARING DATE(S):	5 February; 1999
JUDGMENT DATE:	5 February 1999
PARTIES :	PETER G CARVER COUNCIL OF THE LAW SOCIETY OF NEW SOUTH WALES
JUDGMENT OF:	Mason P at 1

LOWER COURT JURISDICTION:	Administrative Decisions Tribunal (Legal Division)
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER:

COUNSEL:	P Carver (in person) (Appellant) D Robinson (Respondent)
SOLICITORS:	Star Carver & Co (Appellant) 170 Phillip Street (Respondent)
CATCHWORDS:
ACTS CITED:	Administrative Decisions Tribunal Act 1997 Legal Profession Act 1987
DECISION:	Dismissed

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40078/99 MASON P

Friday 5 February 1999



PETER G CARVER v COUNCIL OF THE
LAW SOCIETY OF NEW SOUTH WALES

JUDGMENT



1 HIS HONOUR: The claimant, Mr Carver, is the appellant in proceedings commenced by way of notice of appeal without appointment on 4 February 1999. There may be a question about the competency of that appeal having been brought without grant of leave but that is not a matter of present concern.
2 The claimant sought leave to file in court, returnable forthwith, a notice of motion seeking as its substantive order the staying of pending proceedings in the Administrative Decisions Tribunal (Legal Division) until the resolution of the appeal. Those proceedings are listed to commence on Monday next and I was informed, I believe, that they are expected to take about a fortnight.
3 The proceedings commenced in one sense in 1994 when the Law Society of New South Wales laid an information before the Legal Services Tribunal. The charges in that information came for hearing before the Tribunal in 1996.
4 In the course of and arising out of that hearing, additional grounds of complaint were filed. It was charged that in a number of instances Mr Carver, who had given evidence before the Tribunal, had misled or attempted to mislead the Tribunal. The proceedings in 1996 culminated in an order made on 23 December 1996 striking off the appellant. The appellant appealed to this court and his appeal was successful, see Carver v The Law Society of New South Wales (1998) 43 NSWLR 71.
5 Because of denial of procedural fairness involving the fact that one of the members of the Legal Services Tribunal had been involved in the initial laying of the charges, this court upheld Mr Carver's appeal and set aside the orders made by the Legal Services Tribunal on 23 December 1996. It was ordered that:
The complaints the subject of the information laid by the respondent with the Legal Services Tribunal on 16 October 1994 and the additional grounds of complaint filed with the Legal Services Tribunal on 23 April and 7 July 1996 be remitted to the Legal Services Tribunal for rehearing.

6 There were additional orders relating to costs.
7 Save for the addition of some recent charges which are not the subject of any complaint, the matters that are to be heard in the proceedings commencing next week are all of the complaints which were heard and determined by the Legal Services Tribunal pursuant to the three initiating processes mentioned in the order that I have set out above. It goes without saying the fact that that rehearing is to take place is in direct consequence of the order of the Court of Appeal in the earlier Carver proceedings.
8 The hearing next week is to take place before the Administrative Decisions Tribunal (Legal Division) because of the passing of the Administrative Decisions Tribunal Act 1997 and associated amendments to the Legal Profession Act 1987 . I have not been taken to the detail of the transitional provisions but I do not understand there to be any difficulty in the matter being stated compendiously as I have done.
9 There have been procedural directions and these have included some directions that evidence be filed on the part of the Council of the Law Society including, I was informed, a direction that the transcript of the earlier Tribunal proceedings be proved. There have also been directions that Mr Carver file his response. What Mr Carver has filed before the Administrative Decisions Tribunal are two applications on 17 December 1998 and 8 January 1999. In the second application he sought an order that the additional complaints, dated 23 April 1996 and 7 July 1996, be struck out and an order that he not be required to submit a reply to those additional complaints. In the earlier application, he sought an order that all references and evidence contained in transcript of proceedings used in the prior proceedings before the Legal Services Tribunal, on various dates in 1996, be deleted and not form part of any complaint or additional complaint currently before the present Tribunal.
10 Those applications were heard and refused. The reasons for the refusal of the application are set out in the document signed by the Chairman of the relevant panel and dated 3 February 1999. It is from that order that the current appeal has been lodged.
11 The Tribunal pointed out that the rehearing of the complaint and the additional complaints comes about in direct compliance with the order of this Court made in the earlier Carver proceedings. On that basis, there could be no ground for the Tribunal in declining to rehear the very matter which the superior tribunal, the Court of Appeal of New South Wales, has directed to be heard by way of rehearing. It seems to me that in the exchange that took place between myself and Mr Carver, he ultimately accepted the inevitability of that conclusion.
12 The second application he made and the one that I understand principally to be pressed bears the colours of a procedural application but, in my view, suffers the same defect as the other application. The submission is that the transcript of the 1996 proceedings is inadmissible, except by consent of the appellant, and this because of the order setting aside the earlier proceedings and the reasons lying behind that order. My attention was drawn to the remarks of the West Australian Supreme Court Full Court in the R v Syme; Ex parte Page [1970] WAR 153 at 159. In my view, this submission is misconceived.
13 The principle propounded in that decision, when properly understood, is clear and logical. If there is to be a rehearing it requires matters to be proved afresh before the new Tribunal and to be heard and determined by that Tribunal and that Tribunal alone. The transcript of the previous hearing in the trial or proceedings that were set aside cannot be taken as read. Nor, subject to the rules in relation to exceptions to the hearsay principle, can matters established in that transcript be treated as established in the later proceedings.
14 It seems to me the appellant is seeking to use that principle for an entirely different and quite subversive principle. Subversive in the sense that it would completely undermine the direct operation of the earlier order of this court in the previous proceedings.
15 The appellant seeks to have the transcript treated as inadmissible for any and all purposes, including the purpose of proving what was said in the earlier proceedings, even though the words that were said were the subject of the earlier additional charges and even though those earlier additional charges were ordered by this court to be heard and determined afresh. In my view this is quite an untenable proposition.
16 It is recorded in the determination of the Tribunal, and I understand it to be common ground, that the Law Society does not propose to rely upon the earlier transcript for any purpose other than to establish what was said and of course the context in which it was said for the purpose of making good, if it can, the complaints arising out of the additional charges.
17 If I can illustrate the effect of principles as I have endeavoured to state them, the Law Society will have to establish afresh the original charges that are still pressed. And, except for parts of the earlier transcript going in by consent to prove relevant matters, those relevant matters will have to be proven afresh in accordance with the rules of evidence to the extent that they apply before the Administrative Decisions Tribunal.
18 In stating the principles as I have, it will be apparent that this decision has of necessity had to be given ex tempore. I do not intend that my words are to be pored over as a definitive ruling about all the permutations and combinations of issues that may arise. It may be that under proper principles and consistent with the principle in Syme other uses can be made of the transcript. Nothing that I am saying is intended to preclude any determination of that matter, which of course will be subject to an appeal in due course should there be an ultimately adverse order made against Mr Carver.
19 For these reasons, I have concluded that the prospects of success in the appeal that has been lodged are not such as to persuade me to grant a stay or to make any other order that would pre-empt the hearing of the proceedings or to make any order that would in any sense relieve the appellant of the obligations to which I understand he remains subject to comply with the directions of the Tribunal.
20 The notice of motion is dismissed with costs.