Council of the Law Society of New South Wales v McGuire

[2011] NSWADT 133

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

Council of the Law Society of New South Wales v McGuire [2011] NSWADT 133

Hearing dates:

25 March 2011

Decision date:

03 June 2011

Jurisdiction:

Legal Services Division

Before:

Haylen J (Deputy President)

Decision:

(a) The respondent, Mr McGuire, shall have 28 days from the date of this decision to seek further and better particulars of the breach alleged by the applicant Law Society

(b) The applicant Law Society shall answer such further and better particulars sought by the respondent within 21 days of receiving the request

(c) The matter will be listed for further Directions on 7 September 2011 at 10am

Catchwords:

INTERLOCUTORY APPLICATION - alleged denial of procedural fairness in investigation conducted by Law Society - jurisdiction to make orders sought - in substance respondent required further and better particulars - further and better particulars ordered

Legislation Cited:

Administrative Decisions Tribunal Act
Legal Profession Act 2004

Cases Cited:

Barwick v Law Society of New South Wales (2000) 74 ALJR 419
Murray v Legal Services Commissioner (1999) 46 NSWLR 224)

Category:

Interlocutory applications

Parties:

The Council of the Law Society of New South Wales (Applicant)
Ben McGuire (Respondent)

Representation:

C Webster (Applicant)
Respondent in person

File Number(s):

102020

REASONS FOR DECISION

1. In August 2010 the Council of the Law Society of New South Wales ("the

Law Society") filed in the Tribunal an Application for Original Decision pursuant to s 551 of the Legal Profession Act 2004. The Council sought orders that the solicitor: be reprimanded; pay the applicant's costs; and, be subject to such other orders as seems fit to the Tribunal. The grounds for the Application were that Mr McGuire was guilty of professional misconduct in particular, by practising contrary to the terms of his practising certificate.

1. The particulars of the Grounds of Complaint were as follows:

In these Particulars:

"the Solicitor" means Ben McGuire

"the Society" means the Law Society of New South Wales

1. The Solicitor's mother had been in a de facto relationship.

2. In February 2009 the Solicitor's mother and her former partner became involved in legal proceedings in respect of the division of assets acquired during their relationship. The proceedings were before the ACT Supreme Court and the Federal Court.

3. As at 22 July 2007 the Solicitor was the holder of a Practising Certificate entitling him only to '... engage in legal practice as a solicitor in the course of employment by a corporation (other than an incorporated legal practice) or a non-lawyer entity.'

4. The Solicitor had, as at 22 July 2007, notified the Registry of the Society that his corporate employment was with Virgin Management Asia Pacific Pty Ltd.

5. By letter dated 22 July 2007, the Solicitor, on a letterhead styled Solus Lupus Pty Limited, wrote to his mother's former partner therein stating, relevantly, as follows:

I act for Wayne Kaufline.

...

If this amount is not received by 5.00 pm on Thursday 26 July 2007 I am instructed to commence legal proceedings for the recovery of the loan plus interest and costs without further notice to you.

Yours faithfully

Ben McGuire

Solus Lupus Pty Ltd

6. Solus Lupus Pty Limited is not an incorporated legal practice.

7. Solus Lupus Pty Limited is not a licensed mercantile agent.

8. The Solicitor was, at the relevant date, the sole director and shareholder of Solus Lupus Pty Limited.

9. Solus Lupus Pty Limited, at the relevant time, was used "as a vehicle through which consulting services are provided to a range of clients, being:

• The conduct of a range of negotiation courses for a range of clients;
• the conduct of public speaking engagements for a range of clients; the conduct of commercial consultancy services for a range of services; and
• the conduct of free-lance writing engagements for a range of publications."

1. In what appears to be an interlocutory application, Mr McGuire has challenged the proceedings brought against him by the Law Society in this Tribunal.

1. Mr McGuire's application together with the Grounds and the Orders sought was in the following terms:

Background to Application

1. Mr Robert George Brennan - my de facto father - made a complaint against me (hereafter, " the Complaint ") to the Legal Services Commissioner (hereafter "the Commission ") alleging that my dealings with him during an acrimonious family dispute were undertaken in my professional capacity as a solicitor rather than in my personal capacity as his de facto son.

2. The Complaint was referred to the Law Society of New South Wales (hereafter, "the Society" ) for investigation. The Society conducted an investigation (hereafter, the " Investigation" ) .

3. The Council of the New South Wales Law Society (hereafter, "the Council ") subsequently commenced proceedings against me, applying for Disciplinary Action under s 551 of the Legal Profession Act 2004 (hereafter, the " Act" ) in the present proceedings (hereafter, the " Proceedings" ).

Application

4. The Proceedings were commenced: i) prematurely; and ii) unlawfully, in each case by virtue of being preceded by, and founded upon, the Investigation, which was conducted by the Society in breach of the Act.

5. During the Investigation, and by way of non-exhaustive example on each of which I wish to made detailed submissions, the Society:

• failed to conduct the Investigation in accordance with the principles of natural justice in breach of s 494(3)(b) of the Act;
• failed to conduct the Investigation in accordance with the principles of procedural fairness in breach of s 591 of the Act;
• failed to grant me a reasonable period to take legal advice prior to making submissions in breach of s 509(1) and s 534(2) of the Act;
• foreclosed the period within which the submissions were to be made in breach of s 509(1) and s 534(2) of the Act;
• therefore failed to ensure that all submissions which I was entitled to make were considered by the Council in breach of s 509(3) of the Act. In particular I was denied the opportunity to place before the Council in final submissions evidence which I regard as dispositive of the Complaint because it demonstrates that the conduct complained of was undertaken in my personal capacity, not in my professional capacity;
• put me to an unlawful election on a critical procedural issue involving a choice between: i) foregoing my rights to the conduct of the Investigation in accordance with the Act in order to seek to protect the lives of my mother and grandmother who were under the protection of a Domestic Violence Order and an Apprehended Violence Order respectively against the complainant Mr Brennan; and ii) being afforded my statutory rights to the conduct of the Investigation in accordance with the Act and thereby placing the lives of my mother and grandmother in imminent danger from Mr Brennan who has a history of criminal conduct towards various members of my family, including my mother, grandmother and my sister and who had breached the Domestic Violence only 24 hours prior to the Society putting me to the unlawful election;
• relied on correspondence which the Society stated on record could not be relied on;
• failed to conduct the Investigation in an impartial manner by placing formally on the record subjective, unprofessional and prejudicial comments and inferences, contrary to a requirement that the Investigation be conducted impartially;
• used a telephone call in which I had sought information on the procedure of the Investigation to obtain information which the Society placed formally on the record as evidence without advising me prior to doing so that the telephone call in relation to procedure would be used to collect evidence on the substantive matters under investigation, which practice was contrary to the Society's previous written statements that the Investigation would be conducted in writing;
• failed to comply with the terms of the Professional Conduct Committee's own Resolution in relation to procedural requirements arising from its own preliminary findings;
• failed repeatedly to respond to formal written requests for information and confirmation as to various matters under Investigation;
• declined to deal substantively with my formal complaints to the Society and the Commission in relation to fundamental procedural defects in the Investigation; and
• brought the Proceedings knowing that matters in relation to fundamental procedural defects remained unresolved.

Orders Sought

6. That the Investigation was conducted in breach of the Act; and

7. That therefore the Council's Application for Original Decision be dismissed;

or, in the alternative:

8. That the Investigation was conducted in breach of the Act; and

9. That it is not in the public interest for the matter to be re-investigated and the Council's Application for Original Decision be dismissed;

or, in the alternative:

10. That the Investigation was conducted in breach of the Act; and

11. That the Complaint be referred to mediation between the Complainant, the Council (or its nominated representative) and the Respondent; or

12. That the Complaint be referred to mediation between the Complainant and the Respondent, or

13. That the Complaint be referred to mediation between the Council (or its nominated representative) and the Respondent

or, in the alternative

14. That the Investigation was conducted in breach of the Act; and

15. That the Complaint be referred back to the Society for investigation in accordance with the Act; and

16. That the Society afford me the opportunity to make full submissions and to submit additional evidence in each case in accordance with the Act;

and

17. such other orders as the Tribunal deems fit;

and, in combination with any orders made pursuant to paragraphs 6-17 above:

18. That the Council pay the Respondent's costs of attending and defending the Proceedings, including reasonable airfares to Australian for all hearings attended in person.

1. It is evident from these formal documents that Mr McGuire's "de facto father" was the complainant to the Legal Services Commission. Evidence before the Tribunal, contained in numerous documents relied upon by Mr McGuire, demonstrated that there was a family breakdown between the complainant and Mr McGuire's mother and that there was disputation over many years within the family that had resulted in proceedings in numerous Courts and Tribunals. This material showed that there was a continuing bitter dispute between family members and nearly every opportunity taken to complain to some authority about the conduct of each other. It should be made clear at the outset, however, that it is no part of the Tribunal's function to attempt to establish the probity of these allegations and counter allegations but they form part of the background to the complaint made by Mr McGuire's de facto father and were frequently referred to in the documents filed in support of Mr McGuire's application and in his oral submissions.

1. During the course of the investigation conducted by the Law Society, Mr McGuire stated that he had assisted his uncle, Mr Wayne Kaufline, at least during 2007, in negotiating the repayment of a debt owed to Mr Kaufline by Mr McGuire's former stepfather, Mr Brennan. Mr McGuire informed the Law Society that he had conducted various telephone calls with Mr Brennan in an attempt to have the debt repaid to Mr Kaufline.

1. In the course of correspondence during the investigation conducted by the Law Society, Mr McGuire stated that the letter particularised in the complaint dated 22 July 2007 was the only letter of demand that he had written on behalf of Solus Lupus Pty Ltd and was the only "commercial activity" of that nature he had undertaken for the company. The company was said to be successful in recovering the debt from Mr Brennan without further action having to be taken. He noted that the company had an interest in the recovery of the debt from Mr Brennan to Mr Kaufline because the company, through re-financing arrangements, partly funded the loan by Mr Kaufline to Mr Brennan. Mr McGuire denied that he was engaged in legal practice in sending the letter and had not established a solicitor/client relationship: he had not charged Mr Kaufline for his services.

1. In the course of submissions before the Tribunal, Mr McGuire stated that, during the course of the investigation by the Law Society, he had continually asserted that he was acting in a personal capacity. He also stated that his uncle, Mr Kaufline, had executed a Power of Attorney which empowered Mr McGuire to act in his personal capacity as his nephew in dealings with Mr Brennan. Mr Kaufline had taken that course because he did not wish to personally deal with Mr Brennan. He had not been able to put that information and documentation before the Law Society before it closed its investigation because his records were now stored in the United Kingdom where he had been working on a permanent basis since late August 2009. He had not had the opportunity to secure that document and provide it to the Law Society and that was part of his complaint about denial of procedural fairness in the investigation of his de facto father's complaint by the Law Society.

1. There were aspects of the respondent's submissions made by Mr McGuire to the Law Society that indicated that he had formed a view as to the nature of the allegations against him. Indeed, in Ground 1 of his Application to this Tribunal, Mr McGuire states that he understood that the complaint from his de facto father was that his deali ngs with Mr Brennan "were undertaken in my professional capacity as a solicitor rather than in my personal capacity as his de facto son." In his letter to the Law Society dated 16 February 2009, Mr McGuire submitted a pre is of matters he proposed to elab orate upon and indicated that he was not operating in his personal capacity and was not engaged in legal practice but rather, he had been authorised by Mr Kaufline in his personal capacity and as a family member to seek the recovery of money from Mr Brennan. He also relied upon his employment contract with Solus Lupus Pty Ltd and thus the use of his company letterhead and employment by that company not being in conflict with the terms of his practising certificate.

1. When the proceedings before the Tribunal were adjourned, apart from providing further written submissions, Mr McGuire was to produce a copy of the Power of Attorney executed by Mr Kaufline with his written submissions. At the time of decision, no such document has been produced nor has Mr McGuire identified any document he had sent to the Law Society during its investigation of this Complaint, in terms, alleging the existence of a Power of Attorney as earlier suggested. No evidence has been provided from Mr Kaufline dealing with these matters.

1. Although the Application (set out in [4] and filed in this Tribunal by Mr McGuire) and the voluminous documents placed before the Tribunal on the hearing of his Application, raised many issues, it became clear during the course of the hearing that there was one fundamental issue relied upon by Mr McGuire. Mr McGuire asserted many times during the Law Society's investigation that he was unable to properly answer the Society's concerns until he was, in effect, provided with particulars of some precision that outlined how he was guilty of professional misconduct by sending the letter dated 22 July 2007. That position taken by Mr McGuire did not prevent him from providing numerous documents to the Law Society and making many representations and dealing with its queries but he steadfastly insisted upon his right to be informed in what way the letter he had sent on the letterhead of a company he owned, amounted to professional misconduct. Although there was much discussion and material provided by Mr McGuire, his ultimate position was that he could go no further in the Law Society's investigation without these essential particulars of his professional misconduct.

1. Another complaint was that the Law Society concluded its investigation and referred the matter to the Tribunal in a way that denied him an opportunity to address the allegations. By letter dated late October 2009, however, Mr McGuire informed the Law Society that two months previously he had provided a "very thorough and detailed response." He maintained the stance in the Tribunal, that he could proceed no further: that suggested inability was evidenced by the fact that, although the matter was filed in mid-August 2010, Mr McGuire had not filed a Reply as required by the Regulation, namely, within 21 days of receipt of the Application for Original Decision.

1. Throughout Mr McGuire's submissions he criticised the decision-making process adopted by the Law Society and repeatedly emphasised his inability to fully respond to the Society's concerns during the course of its investigation. It is sufficient, for present purposes, to reproduce those aspects of the affidavit supporting the Application for Original Decision in this Tribunal, insofar as it referred to the decision-making process of the Law Society. Those sections of the affidavit are as follows:

4. On 4 March 2010 the Professional Conduct Committee of the Society ["the Committee] resolved, relevantly, as follows:

...

FURTHER RESOLVED :

That Ben McGuire ("the legal practitioner") be informed of:

1. The issues of professional misconduct which, in the opinion of the Committee, are involved in the complaint and in respect of which the Committee invites submissions within 14 days of the date of the letter notifying the legal practitioner of these resolutions; and

2. The Committee's opinion that, subject to any submissions, it should resolve that it is satisfied there is a reasonable likelihood the legal practitioner will be found by the Tribunal to have engaged in professional misconduct and that proceedings be instituted in the Tribunal with respect to the complaint pursuant to Section 537(2) of the Legal Profession Act, 2004.

Professional Misconduct

Practising contrary to the terms of his practising certificate.

3. It is the Committee's opinion that, subject to any submissions, the appropriate orders to be sought on a referral to the Tribunal of this complaint are as follows:

Orders to be Sought

Reprimand.

Costs.

Such other orders as the Tribunal seems fit.

4. Consideration of this complaint is to be placed on the agenda of the whole of the Professional Conduct Committee as soon as practicable after the expiration of 14 days from the date of the letter notifying the legal practitioner of these resolutions.

...

6. On 1 July 2010 the Committee resolved as follows:

RESOLVED that the Committee is satisfied there is a reasonable likelihood BEN McGUIRE will be found by the Tribunal to have engaged in professional misconduct and that proceedings be instituted in the Tribunal pursuant to Section 537(2) of the Legal Profession Act, 2004

Professional Misconduct

Practising contrary to the terms of his practising certificate.

Orders to be Sought

Reprimand.

Costs.

Such other order as the Tribunal seems fit.

Reasons for Decision

As at 22 July 2007 the solicitor was the holder of an unrestricted corporate practising certificate. Such certificate entitled the holder "... to engage in legal practice as a solicitor in the course of employment by a corporation (other than an incorporated legal practice) or a non-lawyer entity.'

As at 22 July 2007 the solicitor's employer (as notified to the Society's Registry) was Virgin Management Asia Pacific Pty Limited.

By letter dated 22 July 2007 the solicitor, on the letterhead of Solus Lupus Pty Limited, wrote to the complainant, relevantly, as follows:

I act for Wayne Kaufline.

...

If this amount is not received by 5.00 pm on Thursday 26 July 2007 I am instructed to commence legal proceedings for the recovery of the loan plus interest and costs without further notice to you.

Yours faithfully

Ben McGuire

Solus Lupus Pty Ltd

The solicitor is the sole director and shareholder of Solus Lupus Pty Limited which provides training courses in negotiation skills and is the vehicle through which he engages in journalism. Solus Lupus Pty Limited is not an incorporated legal practice.

On the material before it, the Committee is satisfied that by the letter dated 22 July 2007 the solicitor was practising contrary to the terms of his practising certificate and there is a reasonable likelihood that the solicitor will be found by the Tribunal to have engaged in professional misconduct .

1. Those decisions by the Law Society were made in relation to a complaint brought by Mr Brennan that raised a number of issues about the professional conduct of Mr McGuire. After investigation, the only disciplinary matter pursued against Mr McGuire by the Law Society related to an allegation that he practised contrary to the terms of his practising certificate as particularised in [2]. The relevant parts of Mr Brennan's complaint in relation to this matter or possibly associated with it appears to be encapsulated in the following matters:

(i) Mr McGuire has represented his uncle, Wayne Kaulfine, in 2007; and seems to be directing the legal operations being mounted by his mother, Mrs Glenys McGuire.

(ii) Ben McGuire is representing his uncle, Wayne Kaufline;

(iii) handwritten notes on a copy of the letter of 22 July 2007 sent to Mr Brennan by Mr McGuire on the letterhead of Solus Lupus Pty Ltd, as follows:

I spoke to Wayne at 3.30 pm on 23/7.

R: Did you ask Ben to act for you?

W: No I didn't

Later ...

W: I'd be silly not to use him ... to sue you ... through the court.

I indicated to Wayne repayment in six months. Agreed to halt action until then.

...

I spoke to Ben at 9.00 pm. He will check Wayne about the agreement. 23/7,

(iii) by email dated 26 June 2009 sent by Mr McGuire to Mr Brennan, Mr McGuire proposed a settlement offer "to end all proceedings." The offer was to operate as a "Calderbank offer." (Note: this document appears to b e, in the context of the documents annexed to Mr Brennan's complaint, a reference to other proceedings involving family members and does not seem to directly relate to the letter of 22 July 2007 regarding the loan from Mr Kaufline);

(iv) on 18 June 2009, Mr McGuire sent an email to Ms Julie Trent, the partner of Mr Rob Brennan, concerning, amongst other things, settlement of issues outstanding. The email carried the following at its conclusion:

Ben McGuire

Regional General Counsel

Virgin Management, Asia Pacific Pty Ltd.

1. In further written submissions to the Tribunal, Mr McGuire pointed out that, on 4 March 2010, the Professional Conduct Committee had resolved that he be informed of the issues of professional misconduct which, in the opinion of the Committee, were involved in the Complaint and in respect of which the Committee invited submissions. Mr McGuire submitted that he had never been informed "how" the letter of 22 July 2007 evidenced professional misconduct or how the letter constituted practising contrary to the terms of his practising certificate. Under s 542(1) of the Legal Profession Act the Law Society was to provide reasons for its decision. He complained that he had never been informed of the substance of the allegation. It was also submitted that he was not informed at any stage of the basis on which the breach was alleged or the basis on which the Committee believed that there had been professional misconduct. In particular, he wished to be informed in what way he had wrongly conducted himself by writing the letter, the subject of the complaint. It should be noted, however, that the Law Society, in correspondence dated 21 January 2010, dealt with Mr McGuire's query regarding practising contrary to the terms of his practising certificate. He was informed that he was "not entitled to practice on (his ) own account."

1. Looking at the substance of the matter it appears that the Law Society claim was that Mr McGuire, in sending the letter of demand on the letterhead of his personal company, not being a legal practice, constituted him practising contrary to the terms of his practising certificate. It has long been accepted that in pleadings a party is to state the material facts which are relied upon but not the evidence by which those facts are to be proved. The law is not to be pleaded. That well-know proposition may have encouraged the Law Society to adhere to a position where no further information or particulars were supplied to Mr McGuire.

1. The terms of Mr McGuire's practising certificate were set out by the Professional Conduct Committee in its Resolution dated 1 July 2010. As at July 2007, Mr McGuire was the holder of an unrestricted corporate practising certificate. As the holder of such a certificate he was entitled to engage in legal practice as a solicitor in the course of employment by a corporation (other than an incorporated legal practice) or a non-lawyer entity. The substance of the allegation appears to be that, contrary to that restriction, by sending the letter of demand in July 2007, Mr McGuire engaged in legal practice on his own account. The reference in the particulars to Mr McGuire's company, Solus Lupus Pty Ltd, as not being an incorporated legal practice or not a licensed mercantile agent but being a vehicle through which he provided consultancy services to a range of clients, appears to be linked to both the letter of demand forwarded to Mr Brennan by Mr McGuire and the terms of his practising certificate. It appears that, at least in part, Mr McGuire is alleged to have undertaken legal practice in his own right (and not as an employee )and did so by using a personal corporate entity that was not a legal practice. It seems to be an integral part of the allegation that the terms of the letter referring to acting for Mr Kaufline and receiving instructions to commence legal proceedings for the recovery of the loan are relied on as evidence of Mr McGuire engaging in legal practice and doing so contrary to the restricted terms of his practising certificate.

1. Having regard to what might be regarded as the substance of the complaint as described above, Mr McGuire, in terms, did not seek further and better particulars in the normal way but simply continued to challenge the Law Society to indicate to him in what way sending the letter represented acting beyond the terms of his practising certificate and how sending the letter could amount to professional misconduct. At the same time, Mr McGuire did provide an amount of material to the Law Society and asserted that he was acting in a private capacity in a family matter.

1. It appears to the Tribunal that, in the absence of Mr McGuire seeking further and better particulars in a more formal and traditional way, while, nevertheless, articulating his complaint that he did not see in what way he had acted beyond the terms of his practising certificate, the Law Society took the view that it had provided sufficient particulars to enable Mr McGuire to fully respond to the allegation. As previously noted there were a number of responses made over time by Mr McGuire. Mr McGuire ultimately took the position that he needed 120 days to seek legal advice as to whether he was obliged to consent to his response being forwarded to Mr Brennan: the Law Society did not agree to that course. Mr McGuire then took the failure of the Law Society to agree to an adjournment of that length as a refusal to allow an adjournment and therefore took no steps to obtain the legal advice. As it turns out, there was a significant gap before the Law Society took any further action but the Law Society had notified no formal agreement to such an adjournment.

1. The matter seems to have drifted along somewhat in circumstances where an appropriate length of time might have been granted to Mr McGuire to receive legal advice (even if it was less than 120 days) or where Mr McGuire might have been invited to formalise his general complaint into a specific request for particulars. Alternatively, the Law Society might have reasonably taken the view that it did not need to prompt Mr McGuire, as a legal practitioner, as to what he might do by way of particulars but the fact is that he was representing himself in circumstances where he was working in the United Kingdom.

1. It is, of course, not for the Tribunal to draft appropriate particulars that might have been raised by Mr McGuire but the broadly stated question he continually raised as to how the letter evidenced professional misconduct or how it could amount to professional misconduct, might easily have been added to by a request for particulars. Some of those issues were raised in Mr McGuire's written submissions: he wished to know whether his alleged professional misconduct lay in the writing of the letter and whether or not it lay in placing the demand on a company letterhead or in signing that letter or in the context of the letter itself either in whole or in part or in seeking by letter to obtain the repayment of a debt or whether there was some other feature of the letter that was relied upon as demonstrating professional misconduct or acting beyond the terms of his practising certificate. Having regard to the correspondence and emails accompanying Mr Brennan's complaint Mr Brennan may have asked, during the investigation, how the letters of 18 June 2009 and 26 June 2009 were not regarded as actions taken beyond the terms of his practising certificate but that the letter of 22 July 2007 was so regarded. There might be other issues where by interrogatories Mr McGuire could attempt to satisfy himself as to the case he was required to meet. As emphasised by Mr McGuire in his written submissions, he was entitled to know not only what it was that he had done that was wrong but in what way it was said to be wrong. He was not to be left to "guess" what case the Law Society purported to make against him. Applying the ratio in Murray v The Legal Services Commissioner (1999) NSWLR 224 at 227-228 per Priestley J he still needed to be informed of the "issues involved", the "whole substance", "all the relevant details", "the entirety", or "the full extent" of the allegations against him. Mr McGuire may have many more requests for particulars arising from his general question - how did the letter amount to professional misconduct?

1. Mr McGuire's application to the Tribunal, however, does not seek time within which further and better particulars of the allegation of professional misconduct might be supplied by the Law Society but in a variety of relief sought in the alternative, essentially seeks to strike out the Application by the Law Society or have its investigation declared null and void or to effectively stay proceedings before the Tribunal as a result of that allegedly flawed investigation. This sheaf of alternative remedies proposed by Mr McGuire raise questions of the jurisdiction of the Tribunal to make such orders, if satisfied that an appropriate case had been made out. The Law Society argues persuasively that there is no direct provision of the Legal Profession Act that permits the Tribunal to take such a course in relation to an application brought before it by the Law Society and Mr McGuire has identified no such provision. The nature of relief sought by Mr McGuire is clearly available in the Supreme Court but Mr McGuire has chosen to raise these issues before the Tribunal. While Mr McGuire relied upon s 73(5)(f) and (g) and s 81 of the Administrative Decisions Tribunal Act and s 568 of the Legal Profession Act as providing a source of jurisdiction for the orders sought, those provisions do not advance his case. Mr McGuire's further reliance on the "inherent power" of the Tribunal was never fully explained and has obvious difficulties.

1. On the material before it, the Tribunal is not prepared to rule on the issues of procedural fairness raised by Mr McGuire, especially in light of substantial issues as to its jurisdiction to do so and the clear availability of similar relief in the Supreme Court (see Barwick v Law Society of New South Wales (2000) 74 ALJR 419 and Murray v Legal Services Commissioner ) . Having regard to the responses made by Mr McGuire, the Law Society may have been quite entitled to take the view that if, indeed, Mr McGuire wished to apply for further and better particulars then that was an application he was well placed to make. He did not do so. There was also the possibility that the Law Society's view of the matter may have been affected (and still may be affected) by production of the document evidencing the Power of Attorney whereby Mr McGuire acted in a personal capacity for a family member in resolving a family financial dispute, as he had done in relation to other family disputes.

1. In its written submissions the Law Society has indicated that, if Mr McGuire now seeks further and better particulars, such a course would not be opposed. In view of the discussion above it appears to the Tribunal that is an appropriate course if Mr McGuire wishes to take advantage of such an opportunity. Having regard to the fact that Mr McGuire now resides overseas, it seems appropriate that he be given 28 days from the date of this Decision to seek further and better particulars from the Law Society. Having regard to the nature of the issue, the Law Society should be in a position to supply those further and better particulars within a further 21 days. The matter will be placed in the Directions List on 7 September 2011 for further programming.

1. Finally, the Tribunal should point out that, insofar as it has identified what it regards as the substance of the alleged breach, if those tentative conclusions do not reflect or adequately reflect the approach of the Law Society then it would be appropriate for the Law Society to convey to Mr McGuire what it regards as constituting the substance of the matter. This should occur before Mr McGuire is required to seek further and better particulars according to the timetable set out in the Orders of the Tribunal.

ORDERS

(a) The respondent, Mr McGuire, shall have 28 days from the date of this decision to seek further and better particulars of the breach alleged by the applicant Law Society;

(b) the applicant Law Society shall answer such further and better particulars sought by the respondent within 21 days of receiving the request;

(c) the matter will be listed for further Directions on 7 September 2011 at 10am.

**********

I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal.

Registrar

Decision last updated: 03 June 2011