Green v Law Society of NSW

[2002] NSWSC 25

CITATION:	Green v Law Society of NSW [2002] NSWSC 25
CURRENT JURISDICTION:	Common Law Division Administrative Law List
FILE NUMBER(S):	SC 30003/02
HEARING DATE(S):	31/01/02
JUDGMENT DATE:	6 February 2002
PARTIES :	Martin Geoffrey Green (pl) The Law Society of New South Wales (def)
JUDGMENT OF:	Kirby J

COUNSEL :	P Byrne SC/Ms L McSpedden (Pl) R R Stitt QC (Def)
SOLICITORS:	Jenny Bull & Co (Pl) Law Society of NSW (Def)
CATCHWORDS:	Cancellation of Practising Certificate of solicitor - Appeal - Application for stay - Request of Law Society for an explanation - Privilege against self incrimination
LEGISLATION CITED:	Legal Profession Act, 1987 Police Integrity Act, 1996
CASES CITED:	Sorby v The Commonwealth of Australia (1983) 152 CLR 281 Police Service Board v Morris (1984-1985) 156 CLR 397 Taikato v The Queen (1996) 186 CLR 454 Law Society of NSW v Foreman (1991) 24 NSWLR 238 Ganin v The New South Wales Crime Commission (1993) 32 NSWLR 423 Veghelyi v Council of The Law Society of New South Wales (1989) 17 NSWLR 669 Re Veron; Ex parte Law Society of New South Wales (1966) 84 WN 136
DECISION:	Application for stay refused

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

Kirby J

Wednesday 6 February 2002

30003/02 MARTIN GEOFFREY GREEN v THE LAW SOCIETY OF NEW SOUTH WALES

JUDGMENT

1 KIRBY J: Mr Martin Geoffrey Green (the plaintiff) was admitted as a Legal Practitioner of the Supreme Court of New South Wales. He practised as a solicitor in partnership in a firm which had offices in Sydney and Manly. On 17 January 2002, the Law Society of New South Wales (“the Law Society”) (the defendant) resolved, pursuant to s37(1)(a) of the Legal Profession Act, 1987 (the Act), to cancel Mr Green’s Practising Certificate.

2 Under s38B(1) of the Act, a person whose Practising Certificate has been cancelled may appeal to the Supreme Court. By Summons dated 30 January 2002, Mr Green lodged an appeal. The appeal does not stay the cancellation unless the Supreme Court otherwise orders (s38B(3)) Mr Green, therefore, seeks a stay pending the determination of the appeal.

Background

3 The circumstances giving rise to the cancellation concern a police operation known as “Operation Florida”. The operation targeted certain police attached to the Manly Police Station. These officers became the subject of a hearing before the Police Integrity Commission (“the Commission”). A central witness in that hearing was a person known as “B5”. Mr Green became the solicitor for B5. The action of the Law Society concerns Mr Green’s conduct whilst acting for B5.

4 B5 was, as he acknowledged, a drug dealer. He has a criminal record, which included time served in prison. He gave evidence to the Commission over objection (Police Integrity Act, 1996, s28). He said that a number of police, including Detective David Patison, searched his home on 11 May 2000. As the police arrived, B5 threw a substantial quantity of cannabis from his home into his neighbour’s yard. According to his testimony, the police saw him do so and themselves retrieved the drugs. During the search of the premises, the police also seized a small quantity of cannabis, as well as $41,000 cash.

5 B5 asserted that, on the car journey to the police station, there was a discussion between himself and the three police officers in the car. It was agreed that the cash seized would be split four ways. B5 was then given back approximately $10,000. Once at the police station, he was charged with possession of a small quantity of cannabis. No record was made of the drugs thrown over the fence, nor the cash.

6 The home of B5 was again searched on 24 August 2000. Different officers were involved in the search. On this occasion the search was videoed. The officers found 475 grams of cannabis and the sum of $31,000 cash. The latter was discovered in the glove box of B5’s car. No impropriety was suggested by B5 in respect of this search. Charges were preferred, both in relation to the cannabis and the cash.

7 According to B5, he was later approached by the police concerned in the first search. Two suggestions were put to him. First, it was said that he might obtain false receipts in respect of the cash ($31,000) that had been seized in the second search. The receipts could be submitted to the police, who would appear to investigate, and thereafter recommend that the charges be withdrawn. The cash, or rather part of it, would then be returned.

8 Secondly, it was suggested that “to stay in business” as a drug dealer, B5 should make regular payments to the police, including Det Patison.

The New South Wales Crime Commission

9 B5 retained a solicitor to defend the charges arising out of the search on 24 August 2000. He related to that solicitor his allegations concerning the impropriety of the police. The solicitor, appropriately, drew the matter to the attention of the NSW Crime Commission (“the Crime Commission”). At about the same time, according to B5, the police who had made demands upon him, gave him the name of Mr Green. They suggested that he should contact Mr Green in connection with the negotiations relating to the return of the money.

The Retention of Mr Green

10 B5 thereafter made arrangements to see Mr Green. Their first contact was on 1 November 2000. They met again at Mr Green’s office on 14 November 2000. In the meantime, the Crime Commission had obtained a warrant under the Listening Devices Act, 1984, authorising the use of a listening device to record the conversation between B5 and Mr Green.

11 A second meeting took place on 5 December 2000. Again, a warrant was obtained in advance of that meeting. The material before me includes transcriptions of the conversations between Mr Green and B5 at each conference.

The Law Society

12 Counsel assisting the Police Integrity Commission opened the hearing in respect of these allegations on 8 October 2001. On 18 October 2001, the Council of the Law Society met. It considered the material placed before the Commission, so far as it related to Mr Green. It resolved to make a complaint under s134 of the Act. The complaint was expressed in these words:

“The Society resolved on 18 October 2001 to make a complaint against you pursuant to Section 134 of the Legal Profession Act, 1987 with respect to your conduct of criminal charges on behalf of your client known in current Operation Florida hearings before the Police Integrity Commission as ‘B5’ in the following terms:
‘Dishonourable and disgraceful conduct by being party to a scheme where a benefit would be paid to a police officer which would be of assistance to (your) client.’”

13 At the same time, the Law Society called upon Mr Green to provide certain information to assist in its investigation, relying upon s152 of the Act. The notice was a series of interrogatories, based upon the transcripts obtained as a consequence of the listening device warrants (which were annexed). It called for a response by 9 November 2001.

14 On 6 November 2001 solicitors retained by Mr Green sought particulars of the alleged dishonourable and disgraceful conduct. The Law Society responded on 9 November 2001. It deflected the request, referring the solicitors to the transcripts and the complaint.

15 No response having been received, the Law Society again wrote to Mr Green’s solicitors on 9 November 2001. They indicated that the Professional Conduct Committee would meet on 22 November 2001. Time for a response was extended until 13 November 2001. On that day, the solicitors for Mr Green replied to the Society’s letter in these terms:

“Having regard to the material that we have been provided with by the NSW Crimes Commission, we understand that there is a possibility that Mr Green may be charged with a criminal offence arising from the investigation to which your notice requiring the provisions of information relates.
We also understand that the answers which Mr Green may give the questions asked in that notice might be used as evidence in a prosecution against him.
In those circumstances we have advised Mr Green that he has, pursuant to s152(4) of the Legal Profession Act 1987, a reasonable excuse not to answer the questions contained in schedule 1 to your notice.”

16 The Law Society’s notice under s152 also called upon Mr Green to produce certain documents. Those documents were furnished by his solicitors under cover of their letter.

17 On 19 November 2001, the Law Society again wrote to Mr Green’s solicitors. The Society indicated that it would press some only of the questions in the original s152 Notice. The questions were identified. The Society added:

“Should your client persist in his refusal to respond to the complaint and the identified questions, the Council will be entitled to draw adverse conclusions on your client’s failure to respond.”

18 The response of Mr Green’s solicitors repeated and broadened the previous reply. Whereas the previous reply was directed to the Notice under s152, their letter of 21 November 2001 included the complaint. They said this:

“Our advice to Mr Green is that in respect of both the complaint and the ‘identified questions’ he has a reasonable excuse for not providing a response at this stage.”

19 The Council of the Law Society, at its meeting of 22 November 2001, passed a resolution in these terms:

“That the solicitor, Martin Geoffrey Green, is required by the Council of the Law Society to explain within seven days of receipt of this Notice specified conduct as set out in Schedule 1 (attachment 1) which Council considers may indicate that the solicitor is not a fit and proper person to hold a practising certificate.”

20 The Schedule was not in precisely the same terms as the previous s152 Notice. It did not identify any source of power for the request (unlike that Notice). The questions it asked, however, were similar and based upon the transcription of the conferences.

21 On 28 November 2001, the solicitors for Mr Green responded, repeating their client’s refusal to answer such a request, relying upon s152(4) of the Act.

22 On 14 December 2001, the Council of the Law Society passed a further resolution. It was in these terms:

“That the solicitor, Martin Geoffrey Green, is required by the Council of the Law Society to explain by 10:00 am on 20 December 2001 specified conduct as set out in Schedule 1 (attached and marked ‘A’) which Council considers may indicate that the solicitor is not a fit and proper person to hold a practising certificate.”

23 Schedule 1 identified two matters of concern. Each was accompanied by particulars. The particulars were, for the most part, drawn from the transcripts obtained as a result of the listening device warrants. Omitting such particulars, the first matter in respect of which the Law Society sought an explanation was as follows:

“1. That on 5 December 2000 you, in a conversation with your client (known as B5, whose identity is known to Mr Green), agreed to approach Detective David Patison on behalf of B5 to negotiate the dropping of a goods in custody charge against B5 and the return of an agreed portion of $31,000.00 confiscated from B5 by Manly Police and the subject of the said charge, in return for the retaining by Detective Patison of the balance of the $31,000.00, the amount of the balance to be negotiated between you and Detective Patison.”

24 The second matter was identified in these terms:

“2. That on 14 November 2000, you agreed, in a conversation with B5, that you would not raise a tax invoice for legal services in relation to retrieving the said $31,000.00 from Detective Patison, or charge 10 percent GST in respect of those services, but instead you would take a portion (with the precise amount to be agreed) of the money which Detective Patison agreed to return to you.”

25 On 20 December 2001, the solicitors for Mr Green again wrote to the Law Society. Their letter dealt with the requests for information made at various times between October and December. It said this:

“You have sought our confirmation as to whether the Law Society should treat as all or part of our clients explanation to the Council’s resolutions and the Complaint, his evidence which he has given before the Police Integrity Commission on 7 and 17 December, 2001.
Our client’s position remains unaltered.
He maintains his claim of privilege against self incrimination until such time as he knows whether or not he will be charged with a criminal offence arising from the investigation to which your Notice requiring the provision of information relates.”

26 The same letter then responded, on Mr Green’s behalf, to the resolution of 13 December 2001. The response was as follows:

“Turning now to the Council Resolution of 13 December, 2001, our client is in a position to respond to the questions contained in the schedule to the Memorandum to Council of 10 December, 2001, namely questions 1 and 2.
Our client denies the alleged conduct contained therein.”

27 Further correspondence ensued in which Mr Green was urged to provide an elaboration upon his denial. He refused to do so. On 17 January 2002, the Law Society resolved to cancel Mr Green’s Practising Certificate. He was notified the same day.

The Basis for the Application

28 It is asserted, on Mr Green’s behalf, that the resolution cancelling his Practising Certificate was vitiated by error. It failed, according to the plaintiff, to recognise the right given by the Act to refuse to answer questions, or provide information, where there was a reasonable excuse for doing so. The Notice of 18 October 2001, pressed in respect to some issues by letter of 19 November 2001, was identified as a notice under s152 of the Act. That section forms part of Part 10, concerned with Complaints and Discipline. Section 152 is included in Division 5 which is concerned with the investigation of complaints. The section, relevantly, is as follows:

“ 152. Powers of Council or Commissioner when investigating complaint
(1) For the purpose of investigating a complaint, a Council or the Commissioner may, by notice in writing served on any legal practitioner, require the legal practitioner to do ay one or more of the following:
(a) to provide written information, by a date specified in the notice, and to verify the information by statutory declaration,
(b) to produce, at a time and place specified in the notice, any document (or a copy of any document) specified in the notice,
(c) to otherwise assist in, or cooperate with, the investigation of the complaint in a specified manner.”

29 That section is subject to a qualification, which appears in s152(4) as follows:

“ 152(4) A legal practitioner who, without reasonable excuse, fails to comply with such a requirement is guilty of professional misconduct.”

30 The plaintiff contends, first, that the Act does not exclude, in express terms, the privilege against self incrimination. Mason, Wilson and Dawson JJ in Sorby v The Commonwealth of Australia (1983) 152 CLR 281 said this: (at 309)

“The privilege against self incrimination is deeply ingrained in the common law. The principle is that a statute will not be construed to take away a common law right, including the privilege against self incrimination, unless a legislative intent to do so clearly emerges, whether by express words or necessary implication: Pearce, Statutory Interpretation in Australia , 2nd ed. (1981), pars. 113-116; Pyneboard; Crafter v Kelly [1941] SASR 237 at 242.”

31 Murphy J in Police Service Board v Morris (1984-1985) 156 CLR 397, expressed the rule in these words: (at 406)

“The common law is that no one need answer questions. Parliament can require persons to answer questions, but an Act will not be interpreted as requiring a person to incriminate himself or herself unless it does so by express words or necessary implication, ie, by unmistakable language. Therefore a mere requirement to answer questions is not enough to displace the privilege.”

32 The plaintiff submits that the Legal Practitioners Act, 1987, should be construed as preserving that privilege. Secondly, it is said that a reasonable excuse within s152(4) was a fear, based on reasonable grounds (in this case, advice), that responding to such notice may tend to incriminate the solicitor concerned.

33 The Law Society responded to these arguments in a number of ways. First, given the structure of the Act, and the basis upon which the Law Society purported to exercise its powers under the Act, the issue was irrelevant. I will come back to that argument.

34 Secondly, it was open to argument whether the Legal Profession Act, 1987, had excluded the privilege against self incrimination. Counsel for the Law Society drew attention to Police Service Board v Morris (supra), especially Gibbs CJ at 403-404, Murphy J at 406 and Brennan J at 412. However, that case concerned a fear of civil penalty, arising from disciplinary proceedings, rather than jeopardy, or potential jeopardy, in respect of a criminal offence. On a stay application, it is unnecessary to reach a concluded view. The Act does not, in unmistakable language, exclude the privilege against self incrimination. It seems doubtful that the Act has excluded the privilege by necessary implication. Certainly, a real question arises, which is the relevant threshold which the plaintiff must meet on an application such as this.

35 However, the failure to exclude the privilege is not a complete answer. To justify a refusal to respond to questions addressed to a practitioner by the Law Society, the fear of self incrimination must amount to a “reasonable excuse” within s152(4). That phrase, in a different context, was the subject of comment by Brennan CJ, Toohey, McHugh and Gummow JJ in Taikato v The Queen (1996) 186 CLR 454, where they said this: (at 464)

“The term ‘reasonable excuse’ has been used in many statutes and is the subject of many reported decisions ( Clough v Leahy (1904) 2 CLR 139). But decisions on other statutes provide no guidance because what is a reasonable excuse depends not only on the circumstances of the individual case ( Wong Pooh Yin v Public Prosecutor [1955] AC 93 at 100) but also on the purpose of the provision to which the defence of ‘reasonable excuse’ is an exception.”

36 What, then, is the purpose of the section? Here, the Law Society is exercising powers which, ultimately, are designed to safeguard the public, rather than punish the practitioner (Law Society of NSW v Foreman (1991) 24 NSWLR 238). I am nonetheless prepared to assume, for the purposes of the stay application, that the privilege against self incrimination has not been excluded, and that fear of self incrimination constitutes a reasonable excuse for the purposes of s152(4) (cf Ganin v The New South Wales Crime Commission (1993) 32 NSWLR 423).

The Structure of the Act

37 The Legal Profession Act, 1987, replaced the Legal Practitioners Act, 1898. It introduced a new regime. Whereas entitlement to practice under the 1898 Act depended upon a person being on a Court roll, either as a barrister or a solicitor, the 1987 Act introduced an additional requirement. A legal practitioner (who may elect to practice either as a barrister or as a solicitor (s26(1)) must also hold a current practising certificate (s25(1)). The Bar Council (in the case of barristers) and the Council of the Law Society (in respect of solicitors) are authorised to grant practising certificates (s27(1); s28(1)). The certificates remain in force for one year (s36(1)).

38 Power is given to the Councils (the Bar Council and the Council of the Law Society) to refuse to issue a practising certificate in certain circumstances (s30) and to suspend or cancel such a certificate. Section 37(1)(a) is in these terms:

“s37(1) A Council may refuse to issue, may cancel or may suspend a practising certificate if the applicant or holder:
(a) is required by the Council to explain specified conduct (whether or not related to practice as a barrister or solicitor) that the Council considers may indicate that the applicant or holder is not a fit and proper person to hold a practising certificate and fails, within the period specified by the Council, to give an explanation satisfactory to the Council, or ...”

39 The Councils are obliged, if requested, to provide reasons for the exercise of such power within 14 days (s37(2)). As mentioned, a right of appeal is given to the Supreme Court (s38B), which Mr Green has exercised in this case. The appeal is a hearing de novo (Smart J, Veghelyi v Council of The Law Society of New South Wales (1989) 17 NSWLR 669).

40 Without a current practising certificate a legal practitioner is unable to practice (s25(1)).

41 In addition, the Act provides the means by which a practitioner’s name may be removed from the roll (Pt 10). A complaint may be made concerning the conduct of a legal practitioner (s134(1)). The complaint, once made, may be dealt with in various ways, depending upon the nature of the conduct alleged. Proceedings may be instituted in the Administrative Decisions Tribunal upon information (s167(1)). Where the practitioner is found guilty of professional misconduct, his or her name may be removed from the roll (s171C(1)(a)). Provision is made for an appeal from a decision of the Tribunal to an appeal panel of the Tribunal (s171F).

42 Ordinarily the Law Society or the Bar Council, having cancelled a practising certificate, would then proceed on information under s167(1) before the Administrative Decisions Tribunal to remove a practitioner’s name from the roll. The hearing before the Tribunal would afford the practitioner a further opportunity to challenge the actions of the relevant Council.

Conclusion

43 I believe it is appropriate to refuse the stay. I take this view for a number of reasons.

44 First, after a number of false starts, the Council of The Law Society framed its request by notice dated 14 December 2001. The request was made under s37(1)(a) of the Act. It identified and particularised conduct which, were it established, would justify the conclusion that Mr Green was not a fit and proper person to hold a practising certificate (cf s127(1)). It called upon Mr Green to provide an explanation within a specified time.

45 The notice was not, in my view, a request for information pursuant to information to s152(1). Accordingly, s152(4) has no relevance. The Law Society believed it already had information which may indicate that Mr Green was not a fit and proper person to hold a practising certificate. The notice set out that information, requiring Mr Green to give an explanation satisfactory to the Council. Section 37(1)(a) required that the practitioner should be given an opportunity to explain the conduct identified, reflecting, no doubt, the rules of natural justice (cf s125(a)).

46 It was open to Mr Green to provide such explanation as he believed appropriate. Although speaking of a different regime, under the previous Act (where a solicitor was called upon to show cause), the words of the Court (Herron CJ, Sugarman and McLelland JJA) in Re Veron; Ex parte Law Society of New South Wales (1966) 84 WN 136 are apposite. (at 142)

“He may (a) argue that the material before the court discloses no evidence of misconduct; (b) argue that the facts adduced in evidence do not warrant a finding of misconduct; (c) meet the situation by a denial or explanation, in either case upon oath, of the truth or of the significance of the facts deposed to.”

47 Secondly, the correspondence between the solicitors for Mr Green and the Law Society appears to recognise the distinction between the notice of 14 December 2001 (which ultimately brought about cancellation) and the notices which preceded it. The earlier notices were characterised, appropriately, as requiring Mr Green to provide information. The source of power was, accordingly, s152 (as, indeed, the notice of 18 October 2001 stated). Mr Green, through his solicitors, declined to furnish information in response to such notices, invoking s152(4).

48 However, Mr Green, through his solicitors, did respond to the notice of 14 December 2001, furnishing an explanation. It is set out above (supra para 27). They did not, on his behalf, seek to invoke the privilege against self incrimination. It is convenient to repeat the terms of their response in this context. The solicitors for Mr Green responded on his behalf in these terms:

“Turning now to the Council Resolution of 13 December, 2001, our client is in a position to respond to the questions contained in the schedule to the Memorandum to Council of 10 December, 2001, namely questions 1 and 2.
Our client denies the alleged conduct contained therein.”

49 As stated, it was open to Mr Green to frame his explanation as he believed appropriate. He chose simply to deny the allegations. He may well have been mindful of the risk of self incrimination. However, that does not bring into play s152(4), relied upon by Mr Green in this application.

50 Is there a right to refuse to provide an explanation (on the grounds of self incrimination) in response to a notice under s37(1)(a) (as opposed to a notice under s152) of the Act? As stated, the application by Mr Green was not put upon that basis. Although the section speaks in terms of requiring an explanation, the notice, in truth, is in the nature of a complaint, rather than a request for information. The practitioner may respond to the notice as he or she believes appropriate, exercising, effectively, a right of silence if that is believed to be in his or her wider interests.

51 Thirdly, even if this analysis be wrong, and the Council of the Law Society was in error, that is not determinative. The hearing before this court will be a hearing de novo. In considering an application for a stay, it is appropriate to look to the material relied upon by the Law Society and form a judgment as to its strength or otherwise. Does it establish, at a prima facie level, that there are grounds for believing that Mr Green may not be a fit and proper person? The purpose of the provisions, as mentioned, is to safeguard the public.

52 Other considerations will no doubt be relevant in determining the balance of convenience. The length of time before the appeal is heard is relevant. Here, having conferred with the List Judge, I am confident that the matter can be listed at a date convenient to the parties within, say, two months.

53 Mr Green is not a sole practitioner. He was in partnership before the cancellation of his practising certificate. No evidence has been placed before me suggesting particular hardship to his clients. Having said that, I do not doubt that some hardship and inconvenience has been occasioned to the practice.

54 On a stay application I should refrain from commenting at length upon the evidence against Mr Green. Having read the material, and especially the transcription of the conferences recorded by Listening Device, I believe, prima facie, that serious questions arise concerning Mr Green’s honesty and integrity, and his fitness to practice. In the light of that material, and the balance of convenience, I believe that I should refuse the stay. At the same time I believe it appropriate to take steps to ensure an early hearing date.

Orders

55 Having heard the application late on Thursday 31 January 2002, I announced my orders on Friday 1 February 2002, foreshadowing these reasons. I now incorporate into these reasons the orders which I made at that time, namely:

1. The application for a stay of the cancellation of the plaintiff’s Practising Certificate is refused.

2. The matter is to be placed in the list before Whealy J at 9.15 am on Thursday 7 February with a view to obtaining an early hearing date.

3. Costs reserved.

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Last Modified: 02/07/2002