Council of the Law Society of the Act v Legal Practitioner 1 (Occupational Discipline)

[2016] ACAT 76

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

COUNCIL OF THE LAW SOCIETY OF THE ACT v LEGAL PRACTITIONER 1 (Occupational Discipline) [2016] ACAT 76

OR 31/2015

Catchwords:              OCCUPATIONAL DISCIPLINE – legal practitioner – use of an affidavit filed in a different application – section 56(b) of the ACT Civil and Administrative Tribunal Act 2008 (ACT) – Harman relief

Legislation:ACT Civil and Administrative Tribunal Act 2008 ss 29, 56

Legal Profession Act 2006 ss 395, 424

Subordinate

Legislation:Legal Profession (Solicitors) Conduct Rules 2015

Cases Cited:Brooks v Law Society of New South Wales [2009] NSWSC 28

Byrne v Council of the Law Society of the ACT [2015] ACAT 19

Crest Homes v Marks [1987] 1 AC 829

Harman v Secretary of State for Home Department [1983] 1 AC 280

Hearne v Street (2008) 235 CLR 125

Otter Gold Mines Ltd v McDonald & Ors (1997) 76 FCR 467

Liberty Funding Pty Limited v Phoenix Capital Limited (2005) 218 ALR 283

Practitioner D3 v ACT Civil and Administrative Tribunal and Law Society of the Australian Capital Territory [2016] ACTSC 61

Tribunal:  Senior Member M Brennan (Presiding)
  Senior Member R Orr QC

Date of Orders:  15 July 2016               

Date of Reasons for Decision:         15 July 2016

ACT CIVIL & ADMINISTRATIVE TRIBUNAL           OR 15/31

BETWEEN:

COUNCIL OF THE LAW SOCIETY OF THE ACT Applicant

AND:

LEGAL PRACTITIONER 1

Respondent

TRIBUNAL:             Senior Member M Brennan (Presiding)
  Senior Member R Orr QC

DATE:15 July 2016   

ORDERS

Pursuant to section 56(b) of the ACT Civil and Administrative Tribunal Act 2008 (ACT) the Tribunal orders that:

1. The applicant has leave to use practitioner 3’s affidavit, sworn 19 November 2015 and filed in support of the respondent’s application to remove these proceedings to the Supreme Court, to assist the applicant in making a number of possible determinations detailed in the amended application for interim or other orders dated 14 March 2016.

   …………………………………

   Senior Member M Brennan for and

   on behalf of the Tribunal

REASONS FOR DECISION

Introduction

1. Proceedings have been brought in the tribunal by the applicant concerning the professional conduct of the respondent, practitioner 1, arising from a complaint made by Simon Byrne dated 23 May 2011 (original complaint). In this amended application dated 14 March 2016 (amended application) the Tribunal has to decide whether it should allow the council to use an affidavit sworn by another legal practitioner, referred to as practitioner 3, on 19 November 2015 (affidavit) and filed in an interlocutory application to remove these proceedings to the Supreme Court brought by the respondent. If such an order is made the Tribunal will be releasing the applicant from its implied undertaking obligations, arising from the decision of Harman v Secretary of State for Home Department [1983] 1 AC 280 (Harman), which require a party to refrain from using documents or information filed in court proceedings for a purpose unrelated to the conduct of those proceedings. The applicant submits the affidavit will assist it in reviewing a further complaint made by Mr Byrne dated 12 February 2014 (February 2014 complaint). The affidavit may assist the applicant in deciding whether it should re-open the February 2014 complaint; make a determination under section 395(2) of the Legal Profession Act 2006 (ACT) (LPA) after considering paragraphs (a) and (b) that the complaint should be dealt with; and potential further steps set out in the amended application.

Summary of Tribunal decision

1. The Tribunal considers that it is convenient that the applicant has leave to use practitioner 3’s affidavit, sworn 19 November 2015 and filed in support of the respondent’s interlocutory application to remove these proceedings to the Supreme Court, to assist the council in considering the February 2014 complaint. The first use is in the determination whether the applicant should re-open the February 2014 complaint. The second is whether to make a determination under section 395(2) of the LP Act, after considering paragraphs (a) and (b), that the complaint be dealt with. Potential further uses as set out in the amended application may follow.

Background

1. On 23 May 2011 Mr Byrne wrote to the applicant submitting the original complaint against the respondent, practitioner 1. The complaint also concerned another, practitioner 2. Following an investigation, the applicant decided, pursuant to section 412 of the LP Act, to dismiss Mr Byrne’s complaint against the practitioners on 1 August 2013. On 19 September 2013 Mr Byrne filed an application in the tribunal for review of the applicant’s decision pursuant to section 416 of the LP Act. In a decision dated 3 March 2015 the tribunal ordered the applicant to bring proceedings against practitioner 1 and practitioner 2 under section 419(1) of the LP Act arising from Mr Byrne’s original complaint.[1] 

   [1] Byrne v Council of the Law Society of the ACT [2015] ACAT 19 (Byrne)

2. Pursuant to the decision in Byrne, the applicant commenced proceedings against practitioner 1 in an application for disciplinary action dated 4 August 2015 (disciplinary application). In support of an interlocutory application filed by the respondent for removal of the proceedings from the tribunal to the ACT Supreme Court, practitioner 3 swore the affidavit on 19 November 2015. This was filed and served by order of the Tribunal.

3. Practitioner 3 was the supervising partner of the respondent at the time of the alleged conduct that is detailed in the disciplinary application.

4. At the removal application hearing, only paragraphs 58-63 of practitioner 3’s affidavit were read by the respondent. Other unread material in the affidavit included details which may be relevant to the February 2014 complaint made by Mr Byrne and lodged with the applicant against the respondent, and practitioner 3. That application for removal was dismissed by order dated 5 January 2016.

5. The council had agreed to defer determination of the February 2014 complaint, at the respondent’s request, until the tribunal dealt with the application filed by Mr Byrne for review of the dismissal of the original complaint involving the respondent and practitioner 2. The February 2014 complaint against practitioner 3 remains suspended.[2]

The hearing

[2] see generally exhibit A1, affidavit of Jennifer Ann Shaw sworn on 14 March 2016; exhibit A2, affidavit of Jennifer Anne Shaw sworn on 21 March 2016

1. The applicant’s amended application dated 14 March 2016 sought leave to use the affidavit for the purpose of:

   (a) the applicant’s determination of:

   a.   whether to reopen a complaint made by Simon Byrne dated 12 February 2014 (“Complaint”) consideration of which was deferred by the applicant on 17 April 2014 pending the outcome of an appeal in the Tribunal by Mr Byrne in respect of an earlier complaint in respect of the same or similar subject matter as his Complaint;

   b. whether and (or not) to make a determination under s 395(2) of the Legal Profession Act 2006 (ACT) (“LPA”) before dealing with the Complaint;

   (b) any investigation by the applicant of the Complaint (if the applicant makes a determination under s 395(2) of the LPA to deal with the Complaint) into the conduct of Practitioner 3 and all steps required to determine whether or not to initiate a disciplinary complaint against Practitioner 3; and

   (c)  drafting, bringing and prosecuting any application made under s 419(1) of the Act by the applicant against Practitioner 3 in the Occupational Discipline Division of this Tribunal in respect of conduct the subject of the Complaint.

2. The amended application was heard on 31 March 2016. The applicant relied on affidavits of Jennifer Ann Shaw sworn on 14 March 2016 (exhibit A1), 21 March 2016 (exhibit A2), and 23 March 2016 (exhibit A3). For the purposes of the amended application, practitioner 3 was served with the relevant documents and was treated as if he were a party. The applicant and practitioner 3 filed written submissions, and made oral submissions. The Tribunal reserved its decision.

The Law

1. Section 56 of the ACAT Act provides in part:

   The tribunal may, by order-

   (a) hear an application jointly with another application that arises from the same or similar facts; or

   (b) make orders with the consent of the parties to the application or as the tribunal considers necessary or convenient…

2. The implied undertaking obligation arising from Harman that a party will refrain from using documents or information filed in court proceedings for a purpose unrelated to the conduct of the proceedings is a substantive obligation.

3. In Hearne v Street (2008) 235 CLR 125 the High Court noted that the obligation in Harman applies to “witness statements served pursuant to a judicial direction and affidavits”, as well as to documents subpoenaed, discovered or produced by another order of the court.[3] In Otter Gold Mines Ltd v McDonald (1997) 76 FCR 467 at [472F]-[473A] it was held that the Harman obligation applied to documents produced to the Administrative Appeals Tribunal (AAT). Sundberg J reasoned in this decision that:

   The power to release from the implied undertaking of confidentiality is incidental to the power to require the documents to be produced. Production under compulsion gives rise to the undertaking. The power to release is intrinsically associated with that undertaking. It is the other side of the coin.[4]

   The ACT Civil and Administrative Tribunal has similar functions and powers to the AAT. Therefore we are of the view that the Harman obligation also applies to documents filed in the tribunal, and that the tribunal has power to release from the obligation. 

   [3] at [96], Hayne, Heydon and Crennan JJ

   [4] at [473E]

4. In Liberty Funding Pty Limited v Phoenix Capital Limited (2005) 218 ALR 283 (Liberty Funding) it was decided that a court may grant leave to use documents subject to the Harman obligation if special circumstances justify release from the requirement of confidentiality. In a joint decision, Branson, Sundberg and Allsop JJ stated at [31]:

   The notion of ‘special circumstances’ does not require that some extraordinary factors must bear on the question before the discretion will be exercised. It is sufficient to say that, in all the circumstances, good reason must be shown why, contrary to the usual position, documents produced or information obtained in one piece of litigation should be used for the advantage of a party in another piece of litigation or for other non-litigious purposes. The discretion is a broad one…

   The decision noted a list of factors developed by the courts to be taken into account in deciding to allow use, including the attitude of the author of the document and the prejudice the author may sustain; whether the document pre-existed litigation or was created for that purpose and therefore was expected to enter the public domain; the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information); and, most importantly of all, the likely contribution of the document to achieving justice in the other proceeding.

The parties’ submissions

1. The applicant seeks leave to use practitioner 3’s affidavit filed in the respondent’s removal application to assist it in deciding whether to proceed with Mr Byrne’s February 2014 complaint against practitioner 3. As noted in the amended application, as an initial step the applicant needs to consider whether it should make a decision under section 395(2) of the LP Act to proceed with the complaint by way of an investigation.

2. The applicant raises three arguments in support of its amended application. First, the applicant refers to the February 2014 complaint against practitioner 3 and notes the unread contents of the affidavit are relevant as to how it should deal with Mr Byrne’s complaint, including whether to dismiss the complaint or make a decision under section 395(2) of the LP Act.

3. Secondly and related to this reasoning, is that practitioner 3’s affidavit will be used to assist the council in exercising its functions under the LP Act to investigate complaints and where necessary, seek disciplinary orders. The council refers to the public interest in complaints’ investigation and prosecution. In support of this proposition it took the Tribunal to the decision of Brooks v Law Society of New South Wales [2009] NSWSC 28 (Brooks) where Johnson J gave leave for the Law Society of NSW to have access to material obtained for another proceeding so it could exercise its statutory functions.[5] It is noted that the material in issue there had been gathered by Mr Brooks from a range of sources, including by subpoena, for the purposes of a challenge to the decision to cancel his practicing certificate and refuse to renew it, and that the Law Society sought to have access to the material for the purpose of potential further disciplinary proceedings against him.

   [5] at [11]-[14]

4. Thirdly, the applicant notes practitioner 3’s conduct detailed in his affidavit and the respondent’s conduct, the subject of the current proceedings, arise from the same facts and circumstances, being legal services provided to persons who were Mr Byrne’s fellow directors and shareholders and their company, in relation to a dispute with and proceedings brought by Mr Byrne. The council submits that given the substantial overlap in the complaints lodged, the complaints against the respondent and practitioner 3 would ordinarily have been heard together. The applicant referred the Tribunal to the decision of Crest Homes Plc v Marks [1987] 1 AC 829 (Crest) where a party was released from their Harman obligation when it was described as “purely adventitious that there were two actions and that in substance they were a single set of proceedings.”[6] The Court noted the cause of action was the same in each case and the first and second appellants were defendants in both.

   [6] at 860

5. Practitioner 3 submits that the appropriate process for him to be joined in this matter should have been by way of order under section 29(5) of the ACAT Act. This subsection relevantly provides:

   The tribunal may, by written notice to the parties to an application, join a person as a new party to the application if –

   (a) the person has an interest in the application;…

6. It appears there was some concern that the course taken by the applicant suggested that these were disciplinary proceedings against practitioner 3. Counsel for the applicant made clear that it was not intended that practitioner 3 be in any way a party to the substantive disciplinary proceedings, and had been “joined” only for the interlocutory application concerning use of the affidavit.[7] Counsel for the second respondent appeared to accept this position.[8] The Tribunal regards it as clear that practitioner 3 was, appropriately, served with the relevant documents and treated as if he were a party for the purposes of the amended application concerning use of the affidavit, but that he is not subject, or a party, to the substantive disciplinary proceedings.

   [7] Transcript of Proceedings 31 March 2016 page 3

   [8] Transcript of Proceedings 31 March 2016 page 13

7. Practitioner 3 secondly submits that the Tribunal lacks the power to make orders that are necessary or convenient, under section 56(b), as the amended application does not seek orders that bear upon the proceedings between the respondent and the applicant. Rather, the amended application’s purpose is to provide evidence for an investigation of practitioner 3’s conduct.

8. It is also argued that a new investigation into the February 2014 complaint would be oppressive and an abuse of process in light of the procedures concerning the original complaint.

9. Practitioner 3 referred to the Liberty Funding decision and submits that practitioner 3’s affidavit can make no contribution to achieving justice in another proceeding. This is because until the council makes a decision under section 395(2) of the LPA, that it is just and fair to deal with the complaint having regard to the delay or it is in the public interest to do so, no proceedings can be filed or action taken on the complaint other than to dismiss or refer it for mediation.

10. Practitioner 3 submits that the material in the affidavit is not relevant to the issue of delay or public interest. It was also argued that any complaint against him that involved a ‘failure to communicate’ as has been described by the applicant, does not allow the Tribunal to determine the relevance of the information sought.

11. Practitioner 3 further argues that as the disciplinary proceedings against the respondent are subject to a strike out application it seems unlikely, if this amended application is successful, that the disciplinary proceedings will proceed against practitioner 3. Given this, it is not in the interests of justice for Harman relief to be given. 

12. The respondent additionally submits that given rule 43 of the Legal Profession (Solicitors) Conduct Rules 2015, requiring a solicitor to respond within 14 days to any requirement for information in relation to the solicitor’s conduct in the course of the regulatory authority investigating the conduct, there is another means for the council to obtain the information sought.

Consideration of submissions

1. No order was sought or made under section 29(5) of the ACAT Act for the joinder of practitioner 3. Practitioner 3 did not press this issue and the Tribunal does not consider anything turns on it. As noted, the procedure adopted was appropriate, and gave practitioner 3 the opportunity to make submissions on the amended application.

2. As discussed, the Court in Liberty Funding noted that one factor to be taken into account in deciding whether to allow use was the attitude of the author of the document and the prejudice the author may sustain by such a use (see paragraph 13 above). Here the affidavit was filed by the respondent, practitioner 1, who made no submissions on the amended application. However, the affidavit was sworn by practitioner 3, who argued against allowing the use. Practitioner 3 may sustain prejudice by that use, in the sense that it may be relevant to decisions concerning the complaint against him, as set out in the amended application (see paragraph 8 above), and those decisions may be adverse to him.

3. However, another, and the most important, factor is the contribution of the document to achieving justice (see paragraph 13 above). The Tribunal agrees with Johnson J’s reasoning in the Brooks’ decision that a statutory body in the position of the council has a critical role in investigating complaints and seeking disciplinary orders from the tribunal in the case of being satisfied of unsatisfactory conduct or professional misconduct. The Tribunal is satisfied that practitioner 3’s affidavit dated 19 November 2015 may assist the council in making a decision pursuant to section 395(2) of the LP Act. The Tribunal agrees with practitioner 3’s submission that the affidavit’s contents probably may not assist the council in deciding whether it is just and fair to deal with the complaint having regard to the delay and the reasons for the delay. It is noted that concerns about delay, and any prejudice or unfairness this produces, can be raised by practitioner 3 in relation to this aspect of the decision. However, the Tribunal discounts his argument that the affidavit will not assist in determining whether it is in the public interest that it should deal with the complaint; given the context in which the affidavit was filed, it is likely to assist in this decision. It may also be relevant to any investigation and proceedings in relation to the February 2014 complaint, if these steps arise. These steps must of course be taken by processes which accord procedural fairness to practitioner 3.

4. In relation to practitioner 3’s argument that the amended application does not seek orders that bear upon the proceedings between the respondent and the applicant, it is noted that the application concerns an affidavit filed in relation to an interlocutory step in these proceedings which sought removal of them to the Supreme Court. It is therefore appropriate to deal with the issue in these proceedings. 

1. In relation to the argument that there is oppression or an abuse of process, it appears that the investigation and proceedings in relation to the original complaint concern practitioner 1 and practitioner 2, but not practitioner 3. On this basis it does not seem that consideration of the February 2014 complaint against practitioner 3 is oppressive and an abuse of process. If proceedings are taken in due course against practitioner 3, then this issue can be raised again in this context.

2. The Tribunal also discounts practitioner 3’s argument that his affidavit can make no contribution to achieving justice in ‘another proceeding’. In support of this submission practitioner 3 referred to the Liberty Funding decision. In that case at [31] the Court noted that a “good reason must be shown why, contrary to the usual position, documents produced or information obtained in one piece of litigation should be used for the advantage of a party in another piece of litigation or for other non-litigious purposes” (emphasis added). That is, it is not necessary that there be actual proceedings on foot. The decision in Brooks is a practical demonstration of this principle.

3. Given the decision in Council of the Law Society v Practitioner P1 [2016] ACAT 66 the Tribunal also discounts practitioner 3’s argument regarding the respondent’s strike out application. This follows the decision of the Supreme Court in Practitioner D3 v ACT Civil and Administrative Tribunal and Law Society of the Australian Capital Territory [2016] ACTSC 61 that the council’s failure to make a decision under section 395(2) of the LP Act is a procedural not a substantive requirement for the purposes of section 424.

4. The Tribunal also notes other factors in support of the use, some of which are noted in Liberty Funding (see paragraph 13 above). The affidavit was created for the purpose of litigation and therefore was expected to enter the public domain. Practitioner 3 was under no compulsion to provide the affidavit. There was no suggestion that the affidavit contains personal data or commercially sensitive information. There is also a significant commonality between the original complaint and proceedings concerning the respondent, and the February 2014 complaint.[9] As noted practitioner 3 was in fact the supervising partner of the respondent at the time of the alleged conduct that is detailed in the disciplinary application.

   [9] see Crest, and also Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 at 224

5. On balance, the Tribunal considers that it is in the interests of achieving justice that the council has access to practitioner 3’s affidavit in exercising its decision making power in section 395(2) of the LP Act, and the possible subsequent steps set out in the amended application. As such, even though it notes the requirements in rule 43 of the Legal Profession (Solicitors) Conduct Rules 2015, it considers that it is convenient for the applicant to be able to consider practitioner 3’s evidence contained in the affidavit of 19 November 2015.

…………………………………

Senior Member M Brennan for and

on behalf of the Tribunal

HEARING DETAILS

FILE NUMBER:	OR 31/2015
PARTIES, APPLICANT:	Council of the Law Society of the ACT
PARTIES, RESPONDENT:	Legal Practitioner 1
COUNSEL APPEARING, APPLICANT	Mr N Beaumont, Ms R Withana;
COUNSEL APPEARING, RESPONDENT	Mr M Orlov
SOLICITORS FOR APPLICANT	Eakin McCaffery Cox
SOLICITORS FOR RESPONDENT	Self Represented
TRIBUNAL MEMBERS:	Senior Member M Brennan (Presiding), Senior Member R Orr QC
DATES OF HEARING:	31 March 2016