Council of the Law Society of the Australian Capital Territory v The Legal Practitioner
[2010] ACAT 45
•27 May 2010
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
COUNCIL OF THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY v THE LEGAL PRACTITIONER (Stephen Stubbs) (Occupational Discipline) [2010] ACAT 45
LP 6 of 2008 & LP 1 of 2009
Catchwords: OCCUPATIONAL DISCIPLINE - LEGAL PRACTITIONERS –unsatisfactory professional conduct – professional misconduct – application for leave to re-open case – delay in making application – tactical decision not to give evidence at the tribunal hearing – interests of justice – natural justice – prejudice to the Law Society
List of legislation: Legal Profession (Solicitors) Rules 2007 (ACT), rules 1.1, 1.2 and 39.1
Legal Profession Act 2006 (ACT), s.425
ACT Civil and Administrative Tribunal Act 2008, ss.56 and 79
List of cases: AON Risk Services v Australian National University
(2009) 239 CLR 175Chao v Chao (No 2) [2008] NSWSC 612
Smith v NSW Bar Association [1992] 176 CLR 256
Urban Transport Authority of NSW v Nweiser
(1992) 28 NSWLR 471 at 478
Tribunal: Professor P. Spender Presidential Member
Ms L. Donohoe, SC Member
Mr G. Wright Member
Date of Orders: 27 May 2010
Date of Reasons for Decision: 4 August 2010AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) LP 08/6 & LP 09/1BETWEEN:THE COUNCIL OF THE LAW SOCIETY
OF THE AUSTRALIAN CAPITAL
TERRITORY
Applicant
AND: THE LEGAL PRACTITIONER
Respondent
TRIBUNAL: Professor P. Spender Presidential Member
Ms L. Donohoe, SC Member
Mr G. Wright Member
DATE: 4 August 2010
ORDER
- That the application brought by the respondent that he be granted leave to re-open his case and lead the evidence contained in an affidavit sworn by him on 10 May 2010 be dismissed.
- That the costs of the application be reserved.
……………………………..
Professor P. SpenderPresidential Member
REASONS FOR DECISION
Preliminary
1.On 1 February 2010, the Tribunal published its Reasons for Decision in relation to LP 6 of 2008 and LP 1 of 2009[1]. The Tribunal made the following order:
Upon being satisfied that the respondent has breached rules 1.1, 1.2 and 39.1 of the Legal Profession (Solicitors) Rules 2007 (ACT); and is guilty of unsatisfactory professional conduct in relation to LP 6 of 2008; and guilty of professional misconduct in relation to LP 1 of 2009, the Tribunal orders that:
the applications be stood over for further hearing concerning any orders to be made pursuant to s. 425 of the Legal Profession Act 2006 (ACT).
[1] This decision was previously anonymised and cited as Council of the Law Society of the Australian Capital Territory v The Legal Practitioner [2010] ACAT 45 pursuant to section 423A of the Legal Profession Act 2006. As the appeal period has ended, the practitioner has now been identified in the citation of this decision. The reasons for decision otherwise remain unchanged from the date of publication.
2.The respondent (the ‘Practitioner’) appealed against the findings and the order of the Tribunal pursuant to s. 79 of the ACTCivil and Administrative Tribunal Act 2008 (the ‘ACAT Act’). On 31 March 2010, the Appeal President heard the Practitioner’s appeal and ordered that it be struck out as being incompetent.
3.Accordingly, this matter was listed for hearing in relation to penalty on 27 May 2010. On or about 19 May 2010 the Tribunal was advised that the Practitioner would, on 27 May 2010, make an application to this Tribunal that he be granted leave to re-open his case. A directions hearing was held on 21 May 2010 and the Practitioner and the applicant (‘the Society’) were directed to file and serve evidence and make submissions about the application for leave to re-open the Practitioner’s case. The application for leave to re-open the Practitioner’s case was listed for oral argument on 27 May 2010. Written submissions were filed on behalf of the Practitioner[2] and Mr. Thomas of counsel made oral submissions on his behalf.[3] The Society also filed written submissions[4] and Mr. Beaumont of counsel made oral submissions on behalf of the Society.[5]
[2] Practitioner’s written submissions dated 24 May 2010.
[3] Transcript (27 May 2010 - ‘Transcript’) p 3.25 – p 11.30; p 24.5 – p 29.35.
[4] Society’s written submissions filed 26 May 2010
[5] Transcript p13.30 – p 24.2.
4.It was submitted by Mr. Thomas that such leave should be limited to the evidence contained in an affidavit sworn by the Practitioner on 10 May 2010. It was, Mr Thomas submitted, the evidence that the Practitioner would lead if he were to be granted leave to re-open his case.[6] It was further submitted that, if leave were to be granted, the Practitioner would then be subject to cross-examination.[7]
[6] Transcript p 4.2 – 4.5
[7] The practitioner’s written submissions dated 24 May 2010, page 1.
5.While Mr. Beaumont did not object to the evidence contained in the Practitioner’s affidavit, he did so only in so far as it was to be led in support of the Practitioner’s application to re-open his case, not the proceedings.[8] Mr. Beaumont submitted that the affidavit was not evidence of the truth of its contents and that it was merely evidence that would be read if the Practitioner’s application were granted.[9] Mr. Thomas appeared to acquiesce in this approach and the Tribunal admitted the affidavit of the Practitioner sworn 10 May 2010 as read.[10] On that basis, the Tribunal took the Practitioner’s affidavit as read in support of this application.[11]
[8] Transcript p 12.30.
[9] Transcript p 13.10; p 13.15.
[10] Transcript p 13.6; Exhibit A1, Transcript p 13.26.
[11] Transcript p 13.26-13.27.
6.The Society opposed the Practitioner’s application. In support of the Society’s opposition, the Society sought to lead evidence contained in an affidavit sworn by Mr. Phelps, the Society’s solicitor, on 26 May 2010. This evidence was a chronology of the events in the course of the litigation. As no objection was taken to this evidence, the Tribunal took it as read and admitted it.[12] The Practitioner was not cross-examined on his affidavit evidence in support of his application to re-open his case.
[12] Exhibit R 1.
The Practitioner’s affidavit in support of this application
7.The Practitioner’s affidavit dealt with a number of issues, which had been the subject of extensive evidence before the Tribunal in October 2009.[13] For the most part they consisted of mere assertions or denials of the findings of fact made by this Tribunal, which were published on 1 February 2010. From an evidentiary perspective generally and, more importantly, from the perspective of having been admitted as evidence led in support of this application to re-open the Practitioner’s case, the evidence was unhelpful.
[13] Practitioner’s affidavit sworn 10 May 2010, paragraphs 18, 19, 20, 23, 24, 29, 31, 33 and 35
8.Moreover, in one respect, his evidence appeared to cavil with a concession made by the Practitioner at the hearing in October 2009 that the representation that he made to the Society that he was acting on a pro-bono basis for his client, N, in circumstances where he knew that the matter was legally aided was in fact false.[14]
[14] Reasons for Decision dated 1 February 2010, paragraphs 113 and 114.
9.Mr. Thomas submitted that the Practitioner’s affidavit dealt with one discrete aspect of the evidence namely, the issue about when the relationship started[15] and the Practitioner’s view of his conduct in relation to the relationship.[16] On any view of his evidence in support of his application to re-open his case, this was not so. It in fact touched upon many aspects of the case conducted in October 2009 and was not limited, as submitted by Mr. Thomas, to one issue.[17] There was plainly a question concerning the ambit of the controversy in respect of the evidence led in the affidavit in support of the application to re-open the Practitioner’s case.[18]
[15] Transcript p 4.2 – 4.3
[16] Transcript p 6. 2.
[17] Transcript p 6. 25 – p 7.6.
[18] Transcript p 7.10.
The Practitioner’s submissions
10.Mr. Thomas, on behalf of the Practitioner, submitted at the outset that this application to re-open the Practitioner’s case was an application to lead evidence grounded on fairness and the interests of justice,[19] a theme that he repeated in his oral submissions and, for the reasons that will be developed in due course, the Tribunal does not accept.
[19] Transcript p 3.25 – p 3.40.
11.Mr. Thomas also submitted that the application to re-open the Practitioner’s case was grounded in both the common law and statutory concepts of fairness, for example the human rights legislation of this jurisdiction. The Tribunal accepts that the principles are grounded in the common law and are also well settled. Mr. Thomas did not however, develop, in either his written submissions or his oral argument, that the Human Rights Act 2004 had any application to the Tribunal’s consideration of this application.
12.This application to re-open his case was brought by the Practitioner seven months after the conclusion of the hearing of the evidence, five and a half months after the conclusion of oral addresses and almost three months after publication of the Tribunal’s Reasons for Decision on 1 February 2010.
13.No evidence was led by the Practitioner to explain the delay or to address his conscious and deliberate tactical decision not to give evidence himself in October 2009. Nor was there any evidence or submission to the effect that the deliberate tactical decision was not one taken by him but was instead taken by his then counsel and that it was an erroneous decision in respect of which the consequences should not have to be suffered by the Practitioner. Indeed, Mr. Thomas expressly eschewed an error in relation to tactics.[20]
[20] Transcript p 27.28.
14.Mr. Thomas submitted that the Practitioner was not required to explain anything in evidence. He submitted that the starting point was whether the evidence was something that materially affected, or could affect the decision and whether it was in the interests of justice that the Tribunal receives it.[21]
[21] Transcript p 8.43 – 9.1.
15.The Tribunal is not persuaded by that submission and does not regard it as an accurate statement of the relevant principles which should guide this Tribunal in determining whether to grant an application to re-open a case. The principles which apply to an application such as this were usefully stated in Urban Transport Authority of NSW v Nweiser.[22]
The principle which should guide the court in determining whether to grant an application for leave to re-open is whether the interests of justice are better served by allowing or rejecting the application as the case may be. No doubt it is relevant to take account of a number of matters such as likely prejudice to the party resisting the application and the reasons why the evidence was not led in the first place, but there is not, in my opinion, any hard and fast rule which requires the court to reject an application where the decision not to call the witness in the party’s case was not a deliberate one. Of course that does not mean that it is not a very relevant consideration. It is. Where, for instance, a decision was based on tactical grounds it may be difficult to resist the conclusion that the interests of justice were better served by the rejection of the application. But even in that circumstance there may be cases in which it is felt that the client whose application it is should not have to suffer for his or her counsel’s deliberate decision. Where the decision is not made for tactical reasons and is based on a mistaken apprehension of the law or the facts the case is more appropriately to be considered as one in which the application has resulted from an error by counsel. (emphasis added)
[22] (1992) 28 NSWLR 471 at 478.
16.It is not quite accurate, as we have said, to articulate the test, as Mr. Thomas did in his written[23] and oral submissions, as simply being that leave will be granted when it is in the interests of justice to do so. The test is whether or not allowing or rejecting the application better serves the interests of justice. That will be assessed upon evidence relevant to the circumstances of the particular application.
[23] Practitioner’s written submissions dated 24 May 2010, p 3
17.The High Court held in Smith v NSW Bar Association,[24] that if an application is made to re-open on the basis of new or additional evidence, it will be relevant at that stage to inquire why the evidence was not called at the hearing. If there was a deliberate decision not to call the evidence at first instance, this will ordinarily tell decisively against the application to re-open the case.[25]
[24] [1992] 176 CLR 256 at 266
[25] Smith v NSW Bar Association [1992] 176 CLR 256 at 266. See also Chao v Chao (No 2) [2008] NSWSC 612 at [2]
18.Mr. Thomas appears, rather confusingly, to somehow take comfort from the fact that the decision was deliberate, tactical and not erroneous in any way. He does so, it appears, because of the caveat that there is no hard and fast rule to that effect. True that is. However, that does not assist the Practitioner in this case when this Tribunal is being asked to bestow an indulgence by exercising a discretion in the Practitioner’s favour.
19.It will also be relevant in this case to consider, not only the materiality of the proposed additional evidence, but also whether it could have been called in the ordinary course of the proceedings in October 2009. As to the latter consideration, there was no evidence or explanation offered. As to the first aspect of the consideration several preliminary comments are apposite.
20.First, it is not to the point in relation to an application to re-open a case to assert that by denying this application the Tribunal would be depriving the Practitioner the right to present evidence from himself in his own defence and that such denial would amount to a denial of natural justice.[26] The Practitioner was given every opportunity to give evidence himself in October 2009 and he chose not to do so. Instead he led evidence of the commencement of the relationship from other witnesses.[27] The Practitioner’s subjective intention is not, as Mr. Thomas submits, fundamental to this Tribunal’s ability to form a view as to his culpability.[28] It was but one of a number of considerations. The Practitioner’s culpability was sufficiently evident from other evidence led and tested.
[26] Practitioner’s written submissions dated 24 May 2010 page 4.
[27] Mr. Fleming, Mr. Ryan and Mr. Jackson; Reasons for Decision paragraphs 84 – 111.
[28] Practitioner’s written submissions dated 24 May 2010 page 4.
21.The last and penultimate paragraphs of the Practitioner’s written submissions appear to proceed upon an erroneous presumption that the Practitioner had a right to re-open[29] and appear before this Tribunal and a right to be cross-examined and that not to permit this would amount to a denial of natural justice and to deny the Practitioner the opportunity of presenting evidence, limited to reading his affidavit sworn of 10 May 2010, in his own defence.
[29] Practitioner’s written submissions dated 24 May 2010 page 4-5
22.First, that is not the relevant test. There is no ‘right’ to re-open a case.[30] Secondly, as the Tribunal has pointed out, the Practitioner was afforded every opportunity to give evidence himself in October 2009. Thirdly, as to the materiality of the evidence sought to be led, it may be tested thus: assume that leave to re-open was granted but that the Society, perhaps because the Practitioner’s evidence was of little or no probative value in this regard, chose not to cross-examine the Practitioner on his affidavit. What would the Tribunal have been left with from an evidentiary standpoint in its task of assessing the materiality of that evidence? The answer is a number of bald assertions which have no probative value at all and which, for that reason would have little weight when viewed against all the other comprehensively tested evidence. In other words, as a matter of fact, that evidence could not have materially affected the Tribunal’s decision.
[30] AON Risk Services v Australian National University (2009) 239 CLR 175 at [96]
The Society’s submissions
23.In his oral submissions on behalf of the Society, Mr. Beaumont made the following points.
24.He first pointed out the considerable delay and the fact, that this application was brought four months after publication of reasons for decision and brought only days before the date set down for the hearing of submissions on penalty. Moreover, there was no explanation offered for this gross delay. The Tribunal is persuaded by that submission. The failure to explain the grossly inordinate delay is an important factor in determining whether it is in the interests of justice to allow or not to allow the application.[31]
[31] AON Risk Services v Australian National University (2009) 239 CLR 175 at [102]-[109]
25.Secondly, Mr. Beaumont pointed out that the affidavit was not an affidavit concerning penalty but an affidavit relating to liability. Indeed, he submitted that it amounted to a complete re-opening of the Practitioner’s case on liability because he squarely attacks every one of the charges found proven. Thirdly, the Practitioner’s decision not to subject himself to cross-examination was not only deliberate, it was tactical and there was no evidence to contradict this. As the High Court said in Smith,[32] if there was a deliberate decision made not to call the evidence when it ought to have been called in the ordinary course of the proceedings that will ordinarily tell decisively against the application. The Tribunal concurs with that statement of principle even though it may not be a hard and fast rule. In this case it should tell decisively against the application.
[32] Smith v NSW Bar Association [1992] 176 CLR 256 at 266
26.Fourthly, it is not demonstrated that this application is brought in good faith.[33] The Tribunal is persuaded by Mr. Beaumont’s submission that there is no explanation for why, only after certain events have occurred which the Practitioner would perceive as going against him, this application comes at this late stage. A compelling inference may be drawn from these events and this unexplained application that this application was brought to stave off the penalty hearing for as long as possible.
[33] AON Risk Services v Australian National University (2009) 239 CLR 175 at [103]
27.Fifthly, as to the materiality of the proposed additional evidence, it has no probative value. It is no more than bald assertion and is not fresh. This application comes well after the reasons for the decision were published. According to the test in Smith,[34] the fresh evidence test is a primary consideration and, undeniably, this evidence is not fresh at all. Therefore this evidence is neither probative nor fresh. Moreover, the alleged potential injustice of not being permitted to lead this evidence is not explained in any evidence or in submission despite an express invitation by the Tribunal to articulate it.[35]
[34] (1992) 176 CLR 256 at 267.
[35] Transcript p 25.25 – p 27. 30.
28.Sixthly, there is prejudice to the Society. This issue was dealt with perfunctorily by Mr. Thomas in his oral submissions.[36] However, Mr. Beaumont articulated the prejudice to the Society thus:
…there is prejudice to the Society in having telegraphed in detail in closing address all of the detailed points which a cross-examiner would not want to telegraph, for example, in opening or before cross-examining someone in the witness box. Prior inconsistent statements, there were many of those. Even some of the phone record information and other matters. The whole structure of the final case is laid bare in a detailed closing written submission and also laid bare….by the Tribunal’s detailed reasons. It provides a template for [the Practitioner] to anticipate every point that’s going to be put against him which ordinarily would not be flagged prior to a cross-examination…Even in a criminal case a prosecutor is not expected to telegraph cross-examination points. …
The second level of prejudice… is the prejudice to the public interest. There is a finding on the evidence that [the Practitioner], at least as of last year, was not fit and proper to be on the roll. There is a compelling public interest in not delaying the penalty phase of this matter further.
And thirdly, in terms of prejudice, this application is at large. It will involve a serious disruption to the business of the Tribunal and unfairly prejudice other litigants waiting their turn in this Tribunal. Why? So that [the Practitioner] can have another bite at the cherry, having made a deliberate tactical decision.[37]
[36] Transcript p 4.8.
[37] Transcript p 15.15-p15.45
29.Finally, Mr. Beaumont submitted that the Tribunal would not be unmindful of the precedent that acceding to this application would set. All Mr. Thomas could do, he submitted, was to assert that fairness required the Practitioner be allowed into the witness box because of considerations of natural justice. He asked rhetorically, why? Mr. Beaumont submitted quite properly and correctly that natural justice concerned the opportunity to give that evidence and the Practitioner has had that opportunity. He submitted with some force that there is nothing unfair about the Practitioner now having to live with those consequences.
30.The Tribunal finds, after having considered all of the factors set out in Smith’s case and the authorities cited therein relating to the exercise of its discretion to permit the Practitioner to re-open his case, that his application must fail. It should be emphasized that the particular circumstances of this case are so clear that the Tribunal does not find it necessary to deal with the subsidiary argument put by Mr. Beaumont relating to section 56 of the ACAT Act.
………………………………..
Professor P. Spender
Presidential Member
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Tribunal Staff
PART A
FILE NO: LP 08/6 & LP 09/1APPLICANT: COUNCIL OF THE LAW SOCIETY OF THE ACT
RESPONDENT: THE LEGAL PRACTITIONERCOUNSEL APPEARING: APPLICANT: BEAUMONT
RESPONDENT: THOMAS
SOLICITORS: APPLICANT: PHELPS
RESPONDENT: FLYNN
OTHER: APPLICANT:
RESPONDENT:
TRIBUNAL MEMBER/S: P. SPENDER PRESIDENTIAL MEMBER
L. DONOHOE, SC MEMBER
G. WRIGHT MEMBER
DATE/S OF HEARING: 27 May 2010 PLACE: CANBERRA
DATE/S OF DECISION: 4 August 2010 PLACE: CANBERRA
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
COMMENTS:
0
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