Griffin v The Council of the Law Society of New South Wales

[2016] NSWCA 364

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Griffin v The Council of the Law Society of New South Wales [2016] NSWCA 364

Hearing dates:

3 November 2016

Date of orders:

16 December 2016

Decision date:

16 December 2016

Before:

Ward JA at [1]
Gleeson JA at [2]
Sackville AJA at [3]

Decision:

(1)   Appeal dismissed.
(2)   The Appellant pay the Respondent’s costs of the appeal.

Catchwords:

LEGAL PROFESSION — disciplinary proceedings — solicitor sends an ex parte communication to a Judge making unfounded allegations and containing threats — complaint that the solicitor’s conduct was “grossly discourteous” — whether the solicitor’s conduct capable of constituting professional misconduct

 

STATUTORY CONSTRUCTION — transitional provisions — whether the repealed Legal Profession Act 2004 (NSW) applies to disciplinary proceedings pending in the New South Wales Civil and Administrative Tribunal (NCAT) at the date of the repeal

 

CONSTITUTIONAL LAW — whether the solicitor’s conduct protected by the implied constitutional freedom of political communication

  COSTS — whether NCAT erred in ordering the solicitor to pay costs — significance of NCAT relying on a repealed statutory provision in making the costs order

Legislation Cited:

International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976), Art 19

 

Constitution, s 77(iii)

 

Administrative Decisions (Judicial Review) Act 1977 (Cth)
Australia Act 1986 (Cth), s 5
Judiciary Act 1903 (Cth), ss 30, 40, 78B, 86

 

Civil and Administrative Legislation (Repeal and Amendment) Act 2013 (NSW), sch 2 cl 2.88 [24]
Civil and Administrative Tribunal Act 2013 (NSW), s 5(1), Sch 1 Pt 4 cl 21, Sch 5 Pt 4 cl 23, Sch 5 Pt 6 cl 29
Evidence Act 1995 (NSW), s 140
Interpretation Act 1987 (NSW), ss 5, 30, 31, 32
Interpretation of Legislation Act 1984 (Vic), s 4, 7, 14
Legal Profession Act 1987 (NSW), ss 171F, 171M
Legal Profession Act 2004 (NSW), ss 494, 495, 497, 503, 504, 505, 508, 509, 511, 512, 525, 527, 537, 539, 540, 551, 556, 561, 562, 563, 564, 566, 568, 590
Legal Profession Uniform Law 2014 (NSW), ss 7, 264, 302, Sch 4 Pt 1 cll 1, 2, Sch 4 Pt 3 cl 26
Legal Profession Uniform Law Application Act 2014 (NSW), ss 4, 5, 167, Sch 9 Pt 2 cl 3
Legal Profession Uniform Law Application Act 2014 (Vic), Sch 1
Supreme Court Act 1970 (NSW), ss 48, 75A, 109

Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) r 22.5
New South Wales Professional Conduct and Practice Rules 2013 (Solicitors’ Rules), rr 4, 5, 22.5
Uniform Civil Procedure Rules 2005 (NSW), rr 36.17, 50.1(a)

Cases Cited:

ADCO Constructions Pty Ltd v Goudappel (2014) 254 CLR 1; [2014] HCA 18
Allinson v General Council of Medical Education and Registration [1894] 1 QB 750
APLA Ltd v Legal Services Commissioner of New South Wales (2005) 224 CLR 322; [2005] HCA 44
Bechara v Legal Services Commissioner (2010) 79 NSWLR 763; [2010] NSWCA 369
Briginshaw v Briginshaw (1938) 60 CLR 366; [1938] HCA 34
Clyne v Bar Association of New South Wales (1960) 104 CLR 186; [1960] HCA 40
Coleman v Power (2004) 220 CLR 1; [2004] HCA 39
Conservation Council of SA Inc v Chapman (2003) 87 SASR 62; [2003] SASC 398
Coshott v Council of the Law Society of New South Wales [1997] NSWCA 80
Council of the Law Society of NSW v Griffin [2016] NSWCATOD 40
Council of the New South Wales Bar Association v Slowgrove [2009] NSWADT 150
Doré v Barreau de Québec [2012] 1 SCR 395
Ellis v Law Society [2008] EWHC 561
Griffin v Council of the Law Society of New South Wales [2016] NSWCA 275
Howes v Law Society of the Australian Capital Territory [1998] ACTSC 266
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
John Fairfax Publications Pty Ltd v O’Shane [2005] NSWCA 164
Kennedy v The Council of the Incorporated Law Institute of New South Wales (1939) 13 ALJ 563
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; [1997] HCA 25
Law Society of New South Wales v Foreman (1991) 24 NSWLR 238
Law Society of New South Wales v Moulton [1981] 2 NSWLR 736
Legal Practitioners Conduct Board v Hay (2001) 83 SASR 454; [2001] SASC 322
Maxwell v Murphy (1957) 96 CLR 261; [1957] HCA 7
McCloy v New South Wales [2015] HCA 34; 325 ALJR 857
Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48
Minister of Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; 67 ALJR 170
New South Wales Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284
New South Wales Bar Association v Livesey [1982] 2 NSWLR 231
O’Shane v Harbour Radio Pty Ltd (2013) 85 NSWLR 698; [2013] NSWCA 315
Peek v Channel Seven Adelaide Pty Ltd (2006) 94 SASR 196; [2006] SASC 63
Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka (2001) 206 CLR 128; [2001] HCA 23
Re Walker (1887) 3 WN (NSW) 123
Shears v Deputy Commissioner of Taxation [2014] FCA 800
Shears v Deputy Commissioner of Taxation [2014] FCA 1145
Smits v Roach (2006) 227 CLR 423; [2006] HCA 36
Sunol v Collier (2012) 81 NSWLR 619; [2012] NSWCA 14
The Herald and Weekly Times Ltd v Popovic (2003) 9 VR 1; [2003] VSCA 161
Trust Company of Australia Ltd (t/as Stockland Property Management) v Skiwing Pty Ltd (t/as Café Tiffany’s) (2006) 66 NSWLR 77; [2006] NSWCA 185
Unions NSW v State of New South Wales (2013) 252 CLR 530; [2013] HCA 58
Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44
Wade v Licardy (1993) 33 NSWLR 1
Walsh v Law Society of New South Wales (1999) 198 CLR 73; [1999] HCA 33
Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279; [1957] HCA 46

Texts Cited:

GE Dal Pont, Lawyers’ Professional Responsibility (6th ed 2017, Thompson Reuters)

Category:

Principal judgment

Parties:

Michael Anthony Griffin (Appellant)
Council of the Law Society NSW (Respondent)

Representation:

Counsel:
Self-Represented (Appellant)
P A Maddigan (Respondent)

  Solicitors:
Self-Represented (Appellant)
The Law Society of New South Wales (Respondent)

File Number(s):

2016/173022

 Decision under appeal 

Court or tribunal:

New South Wales Civil and Administrative Tribunal

Jurisdiction:

Occupational Division

Citation:

Council of the Law Society of NSW v Griffin [2016] NSWCATOD 40

Date of Decision:

08 April 2016

Before:

D Patten, Principal Member; S Hale, Senior Member; R Fitzgerald, General Member

File Number(s):

1520035

Judgment

1. WARD JA:   I have had the advantage of reading in draft the comprehensive reasons of Sackville AJA, with which I agree. The conduct of the appellant (and his arguments in this Court, including both his attempts to justify that conduct and his submission as to the lack of utility in the order that he undertake a course in legal ethics) demonstrates a fundamental misapprehension of the professional and ethical obligations of a solicitor, for the reasons articulated by Sackville AJA, and more than amply highlights the need for further legal training. I agree with the orders his Honour has proposed.

2. GLEESON JA:   I agree with the reasons of Sackville AJA and the orders that his Honour proposes. I also agree with the additional observations of Ward JA.

3. SACKVILLE AJA:   The appellant (Solicitor) acted on behalf of the applicant in proceedings in the Federal Court against the Federal Commissioner of Taxation. On 30 July 2014, a Federal Court Judge (Foster J) dismissed an application for an extension of time in which to file proceedings under the Administrative Decisions (Judicial Review) Act 1977 (Cth) challenging certain decisions of the Commissioner. [1]

   1. Shears v Deputy Commissioner of Taxation [2014] FCA 800. An application for an extension of time in which to seek leave to appeal from Foster J’s decision was dismissed on 30 October 2014: Shears v Deputy Commissioner of Taxation [2014] FCA 1145. The Solicitor acted for the applicant seeking an extension of time.

4. On the following day, 31 July 2014, the Solicitor sent an email to Foster J’s associate attaching a letter (Letter). The email asked the associate to bring the Letter to Foster J’s attention. Not surprisingly, having regard to the contents of the Letter, Foster J caused the Solicitor’s conduct to be referred to the respondent (Council).

5. On 18 December 2014, the Professional Conduct Committee (Committee) of the Council resolved, pursuant to s 504 of the Legal Profession Act 2004 (NSW) (2004 Act), as in force at the relevant time, to make a complaint against the Solicitor. [2] The particulars of the complaint were that:

“the [S]olicitor engaged in grossly discourteous behaviour to a judicial officer by letter dated 31 July 2014.” [3]

2. Section 504(1) of the 2004 Act provided that the Council, among others, could make a complaint about an Australian legal practitioner. Section 504(3) required the complaint to “describe the alleged conduct the subject of the complaint”. The 2004 Act was repealed as from 1 July 2015: see below at [12].

3. The Council had previously resolved to delegate to the Professional Conduct Committee its powers contained in Chapter 4 of the 2004 Act (complaints and discipline).

6. On 19 September 2014, the Professional Standards Department wrote on behalf of the Committee to the Solicitor informing him that the Committee had resolved to make a complaint against him. Thereafter, the Solicitor sought and received from the Committee further particulars of the complaint.

7. On 4 March 2015, the Council filed an Application in the New South Wales Civil and Administrative Tribunal (Tribunal) seeking orders against the Solicitor. These included orders that the Solicitor be reprimanded and that he be required to complete satisfactorily a course in Legal Ethics.

8. Although the Application did not say so, it was filed by the Council pursuant to s 551 of the 2004 Act. Section 551 empowered the Council to commence proceedings in the Tribunal with respect to the whole or part of the complaint against an Australian legal practitioner containing one or more allegations of unsatisfactory professional conduct or professional misconduct. Section 497(1) of the 2004 Act defined “professional misconduct” for the purposes of the Act to include:

“(a)   unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence, and

(b)   conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.”

9. The Grounds stated in the Application alleged that the Solicitor was:

“guilty of professional misconduct in that he engaged in grossly discourteous behaviour to a judicial officer by letter dated 31 July 2014.”

10. The particulars of the allegation were as follows:

“1.   The Solicitor was employed by The People’s Solicitors Pty Ltd from 1 May 2013 to 6 December 2014.

2.   The Solicitor had the day to day carriage of the Proceedings on behalf of the applicant.

3.   On 30 July 2014, his Honour handed down his judgment in the Proceedings.

4.   On 31 July 2014, the Solicitor sent the Letter by email to his Honour’s Associate.

5.   The contents of the Letter were grossly discourteous to his Honour.”

11. The particulars contained the following definitions:

“‘his Honour’ means his Honour Justice Lindsay Foster of the Federal Court of Australia.

‘the Letter’ means a letter sent by the Solicitor to his Honour dated 31 July 2014.

‘the Proceedings’ means Federal Court Proceedings No. NSD 454 of 2014 between Richard John Shears as the applicant and the Deputy Commissioner of Taxation as the respondent.

‘the Solicitor’ means Michael Anthony Griffin.”

12. On 1 July 2015, the 2004 Act was repealed by s 167(a) of the Legal Profession Uniform Law Application Act 2014 (NSW) (Application Act). On the same day, the Legal Profession Uniform Law (NSW) (Uniform Law) came into force. [4] Many of the provisions in the Uniform Law relating to complaints and disciplinary proceedings replicate provisions in the 2004 Act.

    4. Section 4 of the Application Act applies the Uniform Law set out in Sch 1 to the Legal Profession Uniform Law Application Act 2014 (Vic) as a law of New South Wales.

13. The Council’s Application was heard by the Occupational Division of the Tribunal on 7 September 2015. The Tribunal comprised the Principal Member, a Senior Member and a General Member. The Council was represented by a solicitor. The Solicitor represented himself.

14. The Tribunal delivered its reasons for decision on 8 April 2016, some seven months after the hearing. [5] It made the following “finding and orders”: [6]

    5. Council of the Law Society of NSW v Griffin [2016] NSWCATOD 40.

    6. The finding and orders are reproduced as they appear in the Tribunal’s reasons.

“(1) The [S]olicitor Michael Anthony Griffin is guilty of Professional Misconduct.

(2) The [S]olicitor is reprimanded

(a) The Solicitor, at his own expense, is to undertake within 6 months of the date of the orders made by the Tribunal [and during which the Solicitor holds a current practising certificate], a course in Legal Ethics that is approved by the Manager of the Professional Standards Department and therein achieve a pass mark of not less than 50% (Pass Mark).

(b) The Solicitor will, within seven (7) days of receipt of the result of the course in Legal Ethics, provide the Manager of the Professional Standards Department the original result notification from the provider of the course in Legal Ethics.

(c) Should the Solicitor fail to achieve the Pass Mark, he shall complete any further course in Legal Ethics as approved by the manager of the Professional Standards Department until such time as he achieves the Pass Mark.

(d) Should the Solicitor fail to achieve the Pass mark within the time period in 2 above [sic], his practising certificate shall be suspended until such time as he achieves [sic] the Pass Mark.

(3) That the [S]olicitor pay the Council’s costs on a party and party basis as agreed or assessed.”

In substance, the Tribunal’s finding and orders reflect, somewhat too faithfully, the orders sought by the Council in the Application.

15. On 6 May 2016, the Solicitor filed a summons in the Common Law Division purporting to appeal from NCAT’s decision. The appeal should have been commenced in the Court of Appeal[7] and the proceedings were duly removed to this Court. The Solicitor’s Notice of Appeal comprises 28 grounds, some of which purport to raise constitutional questions.

    7. The Summons was filed pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR) Pt 50, but Pt 50 does not apply to an appeal that is assigned to the Court of Appeal under the Supreme Court Act 1970 (NSW): see UCPR r 50.1(a).

16. On 20 September 2016, Emmett AJA stayed enforcement of the orders made by NCAT until six months after the determination of the Solicitor’s appeal. [8] Emmett AJA pointed out that the orders made by NCAT “exhibited some degree of lack of care in their formulation”. [9] In particular, subpar (d) repeated the numbering used by the Council in its original Application, but which the Tribunal did not follow. As his Honour pointed out, it is clear enough that the expression “within the period in 2 above” in subpar (d) is intended to refer to the date of the orders made by NCAT. [10]

    8. Griffin v Council of the Law Society of New South Wales [2016] NSWCA 275.

    9. [2016] NSWCA 275 at [5].

    10. [2016] NSWCA 275 at [7].

17. On 19 September 2016, the Solicitor filed an application in the High Court seeking an order pursuant to s 40 of the Judiciary Act 1903 (Cth) [11] removing the proceedings pending in this Court to the High Court for determination. On 11 October 2016, the Solicitor sought an order expediting the hearing of the removal application. On 14 December 2016, Kiefel and Keane JJ dismissed the application for removal. [12]

    11. Section 40(1) of the Judiciary Act 1903 (Cth) empowers the High Court to remove any cause or part of a cause arising under the Constitution or involving its interpretation pending inter alia, in a court of a state.

    12. [2016] HCASL 330.

The Letter

18. The email from the Solicitor to the Judge’s associate was as follows:

“From: Michael Griffin

Sent: Thursday, 31 July 2014 12:11 PM

To: Associate FosterJ

Cc: Michael Griffin

Subject: Variations to Judgements & Orders Shears v DCT

Please bring the attached correspondence to attention of Justice Foster

Michael Griffin

Solicitor

The People’s Solicitors”

19. The Letter attached to the email was as follows:

“Michael Griffin

BA (Hons-First Class) LLB (with Hons) Solicitor

C/- The People's Solicitors 19 Lethbridge St Penrith NSW 2750

M: …

E: …

31 July 2014

Re: Richard John Shears v Deputy Commissioner of Taxation $SD 454 of 2014

Justice Foster,

As solicitor for the Applicant in this matter, I have serious concerns about your conduct and decision in this matter. These are:

1. The somewhat immature and inappropriate comments you made to me at the first directions hearing when you responded to an innocent reference to yourself by me as 'registrar' suggest that your displeasure in being referred to in that way may have impacted upon your ability to exercise the degree of objectivity required of an officer in your position in determining this matter.

2. The interest in identifying me as solicitor for the Applicant on the judgement contrary to usual convention indicates you may have acted with some vindictiveness in regard to my client and myself in response to my innocent reference to you as registrar at the first directions hearing.

3. Your own and your Associate's obvious familiarity with Counsel for the Respondent at the hearing.

4. The fact that Counsel for the Respondent had a copy of the decision when he arrived at court.

5. The unusual, impermissible and ambiguous award of costs' incidental' to the application to the Respondent - whatever that may entail - and,

6. The unusual attendance by Counsel at court to accept the judgement on behalf of the Respondent together with the solicitor of the Respondent which may be considered an 'incidental' cost, which, when 5 & 6 above are taken together,

7. Give rise to the inference or perception that the Respondent was aware of your decision before it was handed down and, hence, that you and/or your Associate had some disallowable communications with the Respondent and his representatives relating to this matter before the judgement was handed down that may have impacted upon your ability to act objectively in deciding this matter.

8. Your identification of the writer by name and not the solicitor for the Respondent combined with your interest in making unwarranted and irrelevant statements in your reasons such as those at para 19,21 and 24.

9. Your failure to sign the reasons indicating that the judgement may have been made by your Associate and not by you at all.

10. Your imposition of requirements to be satisfied upon the Applicant that are more strict than are required by like applications and by r 31.2 Federal Court Regulations.

11. Your refusal to allow the Applicant the opportunity to amend what is only a daft (sic) application, as is only required by the rules, and as required of such applications and contrary to the authority relied upon by the Applicant.

12. Your unreasonable rejection of the Applicant's reasons for delay in bringing his application and which is, I contend, against established principles.

13. The numerous errors of law in the reasons including, inter alia, determining that a decision with respect to a party being in a partnership was an 'assessment decision' when it is clearly one relating to the determination of the underlying state of facts from which an assessment can follow as it is obvious that a decision on whether a person is in partnership or not will need to be made before an assessment is even undertaken as only then can the person's income be identify (sic) and distinguished from that of his partners - indeed up until that time it is not even possible to ascertain what a person's income for tax purposes would be. And further, proceeding to hear the Applicant's ground regarding his hardship application at an extension of time application before he was required to produce evidence of that application and when the only evidence available to you from which a decision could be made regarding that issue was that a hardship application had been made; deciding issues that were not appropriate for an extension of time application including whether the Applicant had adduced evidence to indicate that his hardship application had been made which is appropriate for a substantial hearing of the matter NOT for an extension of time application. Moreover, in determining; this issue you completely ignored the relevant provisions regarding 'failures' to make decisions and with respect to reviewable decisions that do not require a time limit.

On that basis, notwithstanding that I consider that our client has grounds to appeal your decision -and that I consider that your conduct in this matter is questionable and further that the Australian public and democratic values require and deserve a higher standard of decision making in regard to reviewing decisions of political officers and their agents than that evinced by your reasons, I consider that many of the points raised above indicate that your decision was likely made without good faith and with bias. On that basis, in reliance upon r 39.041 consider that I should extend you the courtesy of varying your judgement before it is entered and before I submit it to appeal. Hence, I request that you consider varying your judgement, the orders and reasons before they are entered and before an application for appeal is made by:

1. Removing my name from the decision as solicitor for the Respondent at the front page;

2. Removing the irrelevant paragraphs and references from your decision at para 19,21,24;

3. Varying the cost order to remove the unlawful part of the order that reads 'and incidental to';

4. Removing the words 'and other errors of expression' at par 21 as no such thing exists given that whether something is an 'error of expression' is a subjective opinion and given that you are not an expert in the English language and not qualified to make such a comment or give such an opinion while I have an Honours degree with distinction including honours cognates in English. I consider that this comment is clearly vindictive and naive and contrary to current theory regarding what non-erroneous expression is or what 'correct' expression should be. Neither you nor your Associate are qualified to make this comment and it displays infant school and pedantic understanding of what language actually is. I also consider that this comment evinces a purile and petty intention to belittle a person which is an attitude that has no place in the administration of justice.

If I do not have a response from you with regard to this request within seven days of the date above the judgement will be filed as it stands in the appeal process notwithstanding any embarrassment it may cause to you and your Associate and I will need to seek other legitimate methods of addressing what I consider to be your vindictive, unreasonable and unnecessary expressions of opinion.

Faithfully,

Michael Griffin

Solicitor.”

The complaint

20. It is curious that the Committee’s complaint identified the Solicitor’s alleged professional misconduct as engaging in grossly discourteous behaviour towards a judicial officer. The contents of the Letter and the circumstances in which it was sent to the Judge might have been thought to raise serious issues concerning the Solicitor’s conduct beyond mere discourtesy (gross or otherwise) to a judicial officer.

21. The Solicitor’s first request for further particulars asked “[i]n what way is it contended that the facts alleged constitute ‘discourtesy’[?]”. The Committee’s response drew the Solicitor’s attention to the NSW Professional Conduct and Practice Rules 2013 (Solicitors’ Rules) (2013 Rules) which (so the response stated) “generally deal with courtesy in the practise [sic] of law”.

22. The Committee did not identify which of the 2013 Rules it had in mind, but it might have intended to refer to the following:

“4   Other fundamental ethical duties

4.1   A solicitor must also:

...

4.1.2   be honest and courteous in all dealings in the course of legal practice; [and]

…

4.1.5   comply with these Rules and the law.

5   Dishonest and disreputable conduct

5.1   A solicitor must not engage in conduct, in the course of practice or otherwise, which demonstrates that the solicitor is not a fit and proper person to practise law, or which is likely to a material degree to:

5.1.1   be prejudicial to, or diminish the public confidence in, the administration of justice; or

5.1.2   bring the profession into disrepute.”

23. The Committee’s response also stated that the Letter raises “on its face, serious issues of alleged conduct relative to the earlier proceedings [before the Judge]”. The Committee added the following:

“Any criticism that you may have had of his Honour Justice Foster or his Court staff should have been addressed in the appropriate manner, not in direct communication with him and, on its face, without reference to the Defendant.”

24. The Solicitor made a second request for further particulars. He asked if the Committee was saying that “the words used [in the Letter] are discourteous and not the fact that the letter was sent to his Honour?”

25. In response to this question the Committee stated that:

“Notwithstanding the manner in which the contents of your letter were conveyed to his Honour, the Society is concerned with the contents of your letter to his Honour.”

26. The Committee then set out verbatim a number of statements in the Letter, including the Solicitor’s suggestion that the Judge may not have written the judgment “at all” and that the decision was “likely made without good faith and with bias”.

27. In its response to the Solicitor’s second request for further particulars, the Committee “again” referred him to the 2013 Rules. On this occasion the Committee referred specifically to r 22.5 of the 2013 Rules, which provided as follows:

“A solicitor must not, outside an ex parte application or a hearing of which an opponent has had proper notice, communicate in the opponent’s absence with the court concerning any matter of substance in connection with current proceedings unless:

22.5.1   the court has first communicated with the solicitor in such a way as to require the solicitor to respond to the court; or

22.5.2   the opponent has consented beforehand to the solicitor communicating with the court in a specific manner notified to the opponent by the solicitor.”[13]

The Committee did not explain why r 22.5 was relevant given its apparent concession that it was concerned with the contents of the Letter rather than the manner in which the Letter was conveyed to Foster J.

13. Rule 22.5 is replicated in the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) r 22.5.

28. In addition to constituting an ex parte communication, the Letter would seem to raise other significant issues concerning the Solicitor’s conduct. The terms of the letter suggest that the Solicitor may have:

• failed to appreciate the fundamental principle that the mechanism for a legal practitioner seeking to correct errors of law and fact in a final judgment, save in cases covered by the rules,[14] is to invoke the appellate process;

• issued what might be construed as a threat to the Judge that unless his Honour responded within seven days to the Solicitor’s demand that the costs order be varied and the judgment amended, the Solicitor would take action that would embarrass the Judge; and

• imputed dishonesty to the Judge by alleging that his Honour had not acted in good faith and had not written the judgment himself, without any basis for making such serious allegations.

  14. For example the “slip rule”: Uniform Civil Procedure Rules 2005 (NSW) r 36.17.

29. If these matters had been particularised and been the subject of findings in the Tribunal, they may have established that the Solicitor had engaged in professional misconduct considerably more serious than suggested by the description “gross discourtesy to a judicial officer”. However, that course was not followed.

Tribunal Reasons

30. The Tribunal did not identify at the outset the statutory provisions it was required to apply, having regard to the repeal of the 2004 Act prior to the hearing of the Council’s Application. The Tribunal addressed the question towards the end of its reasons, as follows:[15]

“These proceedings were commenced under the Legal Profession Act 2004 which was repealed by the Legal Profession Uniform Law Application Act 2014 as from 1 July 2015. It was replaced by the Legal Profession Uniform Law (NSW) (the Uniform Law). Savings and transitional provisions are contained in both Schedule 4 of the Uniform Law and Schedule 9 of the Legal Profession Uniform Law Application Act 2014 (NSW) by which the Uniform Law was introduced as part of the law of New South Wales. Schedule 4 of the Uniform Law provides, in cl 26, for proceedings commenced under the 2004 Act to continue to be dealt with in accordance with the provisions of that Act and by the entity responsible for dealing with it under those provisions. Hence this Tribunal has jurisdiction to determine these proceedings.”

The Tribunal therefore appears to have concluded that the 2004 Act applied to the Council’s Application.

15. Tribunal Reasons at [31].

31. The Tribunal set out at length the Letter and the correspondence between the Solicitor and the Committee. The correspondence included a lengthy letter dated 29 October 2014 in which the Solicitor attempted to justify his conduct.

32. The Tribunal recorded that the Solicitor had submitted that:

• his conduct could not constitute professional misconduct because it did not involve dishonesty or an absence of fair dealing;

• the Council was simply giving effect to its subjective opinion and was protecting the reputation and self-esteem of the Judge; and

• the Tribunal lacked jurisdiction to deal with the Application because the Council sought orders inconsistent with Federal law.

33. The Tribunal also recorded that the Council’s solicitor did not put its case on any higher basis than gross discourtesy to a judicial officer. The Tribunal said that the Council did not assert that the Letter to the Judge “of itself” was capable of constituting professional misconduct. [16] The meaning of this statement is not clear, but it may be a reference to the Tribunal’s understanding that the Council was not relying on the ex parte nature of the Solicitor’s communication with Foster J. In any event, according to the Tribunal, it followed that the case did not involve any assertion which could arguably affect the rights of the Solicitor under the Constitution or could conflict with Federal law. The Tribunal did not explain why that conclusion followed.

    16. Tribunal Reasons at [21]. See also at [26].

34. The Tribunal summarised the Council’s submission on the Solicitor’s alleged gross discourtesy as follows:[17]

“As to gross discourtesy, [the Council’s solicitor] referred to assertions in the letter including that the judge made ‘somewhat immature and inappropriate comments’, that reflected upon the judges [sic] ability to exercise an appropriate degree of objectivity, that suggested the Judge may have acted with vindictiveness towards him and his client, that suggested that the judge had given advance notice of the contents of his judgment to the other party, that the judgment, not having been signed, may have been written by someone other than the judge himself, (an assertion which reveals ignorance of the procedures regularly adopted by Judges of Superior Courts in publishing reserved decisions) that the judge made numerous errors, that the judges [sic] conduct was ‘questionable’, and that the decision was made without good faith and with bias.”

17. Tribunal Reasons at [22].

35. The Tribunal referred to several authorities suggesting that professional misconduct at common law can be understood broadly. [18] In doing so, the Tribunal appears to have accepted the submissions made by the Council that the statutory definition of “professional misconduct” is not exhaustive and leaves room for the common law to operate.

    18. The Tribunal referred, at [23]-[25] of its reasons, to Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 at 763; Bechara v Legal Services Commissioner (2010) 79 NSWLR 763; [2010] NSWCA 369 at [44] (McClellan CJ at CL); and Kennedy v The Council of the Incorporated Law Institute of NSW (1939) 13 ALJ 563 at 563-564 (Rich J).

36. The Tribunal then reasoned as follows: [19]

    19. Tribunal Reasons at [26]-[29], [32]-[34].

“26   The Solicitor in his submissions to us in effect maintained the position expressed in his letters and Reply. In so far as those submissions were direct [sic] to the act of writing the letter itself as pointed out earlier they were irrelevant. The Council does not assert that this amounted to misconduct.

27.   As to the language he employed, the [S]olicitor claims that he sent the letter ‘out of concern for the integrity of and respect for the Court and the administration of justice which is a lawyers highest duty’. How these legitimate aims could be achieved by the use of offensive language is not clear to us. Conceding that the letter may have been ‘rude’ the [S]olicitor submitted that it was not gross discourtesy but at the worst a breach of legal etiquette.

28.   In our opinion the terms of the Solicitor’s letter go far beyond a mere breach of etiquette. We would characterise them as grossly offensive. Whether they amounted to professional misconduct is a matter of judgment which we approach taking into account that solicitors as officers of the Court are required to uphold the law and its institutions. This includes in our view a duty to exhibit appropriate respect for judicial officers and their decisions not for any personal benefit but out of regard for the institutions they represent. If it were not so public confidence in those institutions may be undermined.

29.   We are comfortably satisfied that by writing a letter couched in the terms of the letter under discussion in this case the [S]olicitor departed so far from the conduct expected of a solicitor of good reputation and repute that he was guilty of professional misconduct. We find accordingly.

…

32. Having found professional misconduct against the [S]olicitor the consequential orders available to the Tribunal are those provided for by s 562 of the 2004 Act. In deciding what order we should make we take into account what we regard as the total absence of any insight by the Solicitor into how far he departed from the norms of professional conduct. We say this despite the fact that he acknowledged the terms of his letter were at least ‘rude’ and that under cross[-]examination he expressed a measure of regret at the language he used.

33.   In our opinion although the conduct stops short of requiring a finding of present unfitness to practice, something more than a reprimand (although that should be given) is needed. In that circumstance we accept the submission of the Council that the [S]olicitor be required to undertake further education in the ethics of the Legal Profession. The Solicitor’s assertion that he would not benefit from such further education in our view reinforces his need for it.

34. No exceptional circumstances exist within s 566 of the 2004 Act and accordingly we are required to order the Solicitor to pay the Council’s costs.”

The appeal

The right to appeal

37. The Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) provides that a party to proceedings in which a “profession decision” is made may appeal to the Supreme Court against the decision. [20] A “profession decision” includes “a decision for the purposes of the [Uniform Law]”. [21] A reference in the NCAT Act to the Uniform Law includes a reference to the 2004 Act. [22] An appeal to the Supreme Court against a decision “for the purposes of the [Uniform Law]”:

“is an appeal to which s 75A of the Supreme Court Act 1970 applies and, accordingly, is by way of a rehearing rather than a new (de novo) hearing.”[23]

20. NCAT Act Sch 5 Pt 6 cl 29(2)(b).

21. NCAT Act Sch 5 Pt 6 cl 29(1)(e).

22. NCAT Act Sch 1 Pt 4 cl 21.

23. NCAT Act Sch 5 Pt 6 cl 29(4). The term “decision” is defined to include making an order or determination and imposing a condition or restriction: NCAT Act s 5(1). An appeal from NCAT when exercising functions for the purposes of the Uniform Law is assigned to the Court of Appeal: Supreme Court Act ss 48(1)(a)(viii); 48(2)(b).

38. Section 75A of the Supreme Court Act 1970 (NSW) (Supreme Court Act) relevantly provides as follows:

“(5)  Where the decision or other matter under appeal has been given after a hearing, the appeal shall be by way of rehearing.

(6)  The Court shall have the powers and duties of the court, body or other person from whom the appeal is brought, including powers and duties concerning:

(a)  …

(b)   the drawing of inferences and the making of findings of fact,

(10)  The Court may make any finding or assessment, give any judgment, make any order or give any direction which ought to have been given or made or which the nature of the case requires.”

Scope of Court’s powers

39. Section 590 of the 2004 Act and its counterpart, s 264(1) of the Uniform Law, state that the jurisdiction and powers of the Supreme Court with respect to the control and discipline of local lawyers are not affected by anything in the Chapter of the legislation relating to complaints and discipline. At first sight, it might appear that the Court, when hearing an appeal from the Tribunal’s decision on a disciplinary application, is not necessarily confined to the issues arising on the appeal. If the Court’s inherent jurisdiction over legal practitioners co-exists with its appellate jurisdiction, the Court perhaps could have power to form its own view as to whether a solicitor is guilty of professional misconduct (subject to providing procedural fairness if the allegations go beyond matters addressed by the Tribunal).

40. The High Court considered this question in Walsh v Law Society of New South Wales,[24] a case decided under the Legal Profession Act 1987 (NSW) (1987 Act). The joint judgment held that s 171M of the 1987 Act (the forerunner to s 590 of the 2004 Act) did not justify the Court of Appeal, when hearing an appeal from the Tribunal, [25] to ignore or depart from the complaint against the legal practitioner as formulated and particularised by the Law Society. [26] Thus, the Court of Appeal could not travel beyond the powers conferred by s 75A of the Supreme Court to determine for itself, by reference to the evidence before the Tribunal, whether the practitioner concerned was of good fame and character.

    24. (1999) 198 CLR 73; [1999] HCA 33.

    25. At the time the Legal Services Tribunal.

    26. (1999) 198 CLR 73; [1999] HCA 33 at [66]-[67] (McHugh, Kirby and Callinan JJ).

41. The current legislative scheme is very similar, but not identical, to that considered by the High Court in Walsh v Law Society. The joint judgment in that case emphasised that the right of appeal under the 1987 Act was “against the Tribunal’s determination of a complaint”. [27] By contrast, the current legislation simply provides for a right of appeal “against the decision” of the Tribunal. [28]

    27. 1987 Act s 171F(1).

    28. NCAT Act Sch 5 Pt 6 cl 29(2)(b).

42. Neither party to the present appeal referred to Walsh v Law Society. The Council made no submission that the Court, whatever view it formed of the Solicitor’s conduct, should do anything other than consider the merits of his appeal. In the absence of any contention that the decision in Walsh v Law Society does not apply to the current legislation, this Court should proceed on the basis that the decision governs the scope of the Solicitor’s appeal.

The Solicitor’s Submissions

Grounds of appeal

43. The Solicitor filed lengthy written submissions in support of the appeal. The written submissions group the 28 grounds of appeal into five categories, raising the following issues:

1. Grounds 1-10: whether the Tribunal applied the correct test for professional misconduct at common law.

2. Grounds 11-14: whether the Tribunal was correct in characterising the language in the Letter as “offensive” and “grossly offensive”, having regard to the implied constitutional freedom of political communication.

3. Grounds 15-17: whether a Member of the Tribunal (Ms Hale) wrongly refused to “recuse” herself on the ground of apprehended bias.

4. Grounds 18-27: whether the Tribunal exceeded its jurisdiction and otherwise fell into jurisdictional error.

1. Ground 28: whether the Tribunal erred in making a costs order against the Solicitor.

44. It is not easy to follow some of the Solicitor’s grounds of appeal or sections of his written submissions. For example, Ground 18 contends that the Tribunal erred:

“in that it made a decision inconsistent with and repugnant to the Constitution (Cth) and Art 19 of The International Covenant on Civil and Political Rights and in breach of s 5 [sic] Australia Act 1986 (Cth), ss 31 & 32 Interpretation Act 1987 (NSW) and ss 30 & 86 Judiciary Act 1903 (Cth).”

45. The reference to the Constitution may be taken to incorporate the various grounds of appeal relying on the implied freedom of political communication (Grounds 12, 24, 25 and 26). But the relevance of the other provisions identified in Ground 18 to the issues arising on the appeal is obscure to say the least. The Solicitor’s written submissions do not clarify how the provisions are said to assist his appeal.

The submissions

46. The principal arguments advanced by the Solicitor, as I understood them, can be summarised by reference to the five categories identified in the Notice of Appeal.

1. The Tribunal misapplied the common law test for determining whether a solicitor’s conduct constitutes professional misconduct. In particular, the Tribunal found the Solicitor to be guilty of professional misconduct notwithstanding that the Council made no allegation that he had acted dishonestly or unfairly. In the absence of a finding that the Solicitor acted dishonestly or in a manner that involved unfair dealing, the Tribunal could not have been satisfied to the “Briginshaw standard”[29] that his actions amounted to professional misconduct.

2. The Tribunal failed to explain the meaning of the term “offensive” and overlooked the principle that contemporary Australian society allows leeway for speech that some might consider insulting or offensive. Most importantly, the words used in the Letter were protected by the implied constitutional freedom of political communication. The High Court has determined, so the Solicitor argued, that a law which proscribes insulting or offensive words is invalid to the extent that the statements concern political or governmental matters. The statements in the Letter were political and dealt with a governmental matter because they “were made in the course of criticism of the conduct and determinations of a judicial member of government in a Ch III…Court”.

3. A Member of the Tribunal (Ms Hale) should have acceded to the Solicitor’s application for her to disqualify herself on the ground of apprehended bias. According to the Solicitor, the Senior Member had a “not insignificant employment or contractual relationship with the Law Society over many years”. Thus, a fair minded and reasonable lay observer would apprehend that the Senior Member would not bring an impartial and unprejudiced mind to the determination of the Council’s Application.

4. The Solicitor’s submissions on jurisdictional error, to the extent that they did not repeat other submissions, seemed to rely on s 537(2) of the 2004 Act. The Solicitor pointed out that s 537(2) required the Council, before commencing proceedings in the Tribunal, to be satisfied that there was a reasonable likelihood that the Solicitor would be found by the Tribunal to have engaged in unsatisfactory professional conduct or professional misconduct. The argument seemed to be that there was no evidence that the Council had been so satisfied and that, in any event, the Council could not have been satisfied that there was a reasonable likelihood that the Solicitor would be found to have engaged in professional misconduct.

5. The Tribunal’s costs order was flawed because the Tribunal relied on s 566 of the 2004 Act. That section, as the Council accepted, had been repealed by the Civil and Administrative Legislation (Repeal and Amendment) Act 2013 (NSW) as from 1 January 2014. [30] It followed that the Tribunal failed to consider the relevant criteria when making the costs order (although the Solicitor did not say what criteria should have been applied).

   29. Briginshaw v Briginshaw (1938) 60 CLR 366; [1938] HCA 34.

   30. Sch 2 cl 2.88 [24].

The s 78B notice

47. The Solicitor gave notice to the Commonwealth State and Territory Attorneys-General of a constitutional matter, as required by s 78B of the Judiciary Act 1903 (Cth). No Attorney-General sought to intervene in the appeal.

Conduct of the Proceedings

48. The conduct of these proceedings gives rise to several matters of concern. The first is the decision of the Committee, referred to earlier,[31] to limit the complaint about the Solicitor’s alleged professional misconduct to a claim of discourteous behaviour towards a judicial officer.

    31. See at [20], [33] above.

49. Secondly, the Committee’s responses to the Solicitor’s request for further particulars left a good deal to be desired. The Committee’s first response referred to the 2013 Rules, but did not identify which of the rules the Solicitor had allegedly breached. The Committee’s first response also appeared to include an allegation that the Solicitor had made an inappropriate and improper ex parte communication with the Judge. This allegation was in effect repeated in the Committee’s second response, which specifically referred to r 22.5 of the 2013 Rules (relating to ex parte applications). Yet at the same time, the Committee apparently disclaimed any reliance on the manner in which the Letter was communicated to the Judge.

50. The Committee’s second response set out at length portions of the Letter the Committee considered to be discourteous or offensive. But the Committee did not explain why the statements it identified, whether considered individually or collectively, were regarded as sufficiently discourteous or offensive to warrant characterisation as professional misconduct. While the Committee may have regarded this as self-evident, some explanation was warranted. Was the Committee alleging a breach of a particular professional conduct rule? Was the Committee alleging that each of the statements in the Letter, of itself, constituted professional misconduct, or was the Committee relying on the cumulative effect of a series of slurs? Was it part of the complaint that the slurs directed at the Judge had no factual foundation?

51. Thirdly, the Tribunal received two sets of inconsistent submissions from the Council concerning the effect of the transitional provisions contained in the Uniform Law and the Application Act. In its first written submissions filed on 12 August 2015, the Council concluded that the effect of the transitional provisions[32] was that the Tribunal’s disciplinary powers in relation to the Council’s Application were to be found in s 302 of the Uniform Law, rather than in s 562 of the repealed 2004 Act.

    32. Application Act Sch 9 Pt 2 cl 3; Uniform Law Sch 4 Pt 1 cl 2.

52. The hearing before the Tribunal took place on 7 September 2015. It appears that neither the Tribunal nor the Solicitor took issue with the Council’s written submissions as to the effect of the transitional provisions. At the conclusion of the hearing the Tribunal reserved its decision.

53. On 24 November 2015, the Tribunal reconvened, apparently at the request of the Council. The solicitor for the Council handed up further written submissions on the effect of the transitional provisions in the Uniform Law and the Application Act. The solicitor for the Council explained to the Tribunal that “we have got the law wrong in the submissions as we have made”. The Council’s further submissions argued that Sch 4 Pt 3 cl 26 of the Uniform Law, a provision not referred to in the earlier submissions, preserved the Tribunal’s disciplinary powers under s 562 of the 2004 Act. It followed, according to the Council, that the source of the Tribunal’s power to make disciplinary orders against the Solicitor was s 562 of the 2004 Act. The Tribunal was advised that it could ignore the Uniform Law.

54. The Tribunal accepted the Council’s further submissions without any additional analysis and held that the Council’s Application was to be dealt with under the 2004 Act. [33] Perhaps in reliance on the Council’s submissions, the Tribunal also held that s 566 of the 2004 Act governed the question of costs. As has been noted, it was common ground on the appeal that s 566 had been repealed prior to the hearing and that the repeal was not affected by the transitional provisions.

    33. Tribunal Reasons at [31]. See at [30] above.

55. Fourthly, it must be said that this Court did not get the assistance it is entitled to receive on an appeal from the Tribunal’s decision in a disciplinary matter. Perhaps not surprisingly, many of the Solicitor’s submissions reflected a failure to grasp legal principle and a willingness to make assertions that either lacked a sound factual basis or were difficult to reconcile with the facts. (An example of the former was the Solicitor’s persistence with his unfounded claim that the Member of the Tribunal had a longstanding employment or contractual relationship with the Law Society. An example of the latter was the Solicitor’s claims that Foster J was functus officio at the time the Letter was sent and that the Letter did not deal with any matter of substance, when the Letter demanded that Foster J amend the costs order his Honour had made.)

56. More significantly, the Council’s submissions did not explain why the extremely complex transitional provisions contained in the Uniform Law and the Application Act required the Tribunal to apply the 2004 Act rather than the Uniform Law. As the High Court remarked in Walsh v Law Society, [34] it is reasonable for the Court to expect the Law Society to know and to indicate the character of the process it has invoked. Nor did the Council’s submissions provide significant assistance on the constitutional argument at the heart of the Solicitor’s case. The argument may have been thought to be without merit, but the Court was entitled to expect the Council to address the contentions advanced by the Solicitor by reference to the relevant authorities.

Reasoning

34. (1999) 198 CLR 73; [1999] HCA 33 at [53] (McHugh, Kirby and Callinan JJ).

The applicable legislation

57. Because there seems to be some uncertainty as to the operation of the transitional provisions, the Court invited the parties to make further written submissions as to whether the Tribunal was correct to apply the 2004 Act rather than the Uniform Law. The Council provided helpful written submissions supporting the Tribunal’s conclusion that it was bound to apply the 2004 Act. The Solicitor filed written submissions contending that a “purposive” interpretation of the transitional provisions leads to the conclusion that the Tribunal should have applied the provisions of the Uniform Law rather than the 2004 Act.

58. In addressing the operation of the transitional provisions, some background is necessary. The Interpretation Act 1987 (NSW) (Interpretation Act) does not apply to the Uniform Law; [35] instead the Interpretation of Legislation Act 1984 (Vic) applies to the interpretation of the Uniform Law. [36] However, the Interpretation Act does apply to the Application Act. [37] Each of the Interpretation Act and the Interpretation of Legislation Act 1984 (Vic) contains a provision stating that the Act applies except insofar as the contrary intention is expressed in the relevant legislation. [38]

    35. Application Act s 5(1)(a).

    36. Uniform Law s 7(1).

    37. Application Act s 5(2)(a).

    38. Interpretation Act 1987 (NSW) s 5(2); Interpretation of Legislation Act 1984 (Vic) s 4(1).

59. Section 30(1)(c) of the Interpretation Act provides that the repeal of an Act does not affect “any right, privilege, obligation or liability acquired, accrued or incurred under the Act”. Section 30(1)(e) provides that the repeal of an Act does not affect any legal proceeding in respect of any such right, privilege, obligation or liability. [39] If these provisions of the Interpretation Act apply to the repeal of the 2004 Act, the repeal does not affect the proceedings instituted by the Council against the Solicitor. Accordingly, the proceedings would continue to be governed by the 2004 Act.

    39. The equivalent provisions in Victoria are s 14(2)(e) and (g) of the Interpretation of Legislation Act 1984 (Vic).

60. In ADCO Constructions Pty Ltd v Goudappel,[40] four members of the High Court stated that the protection of accrued rights provided by s 30(1)(c) of the Interpretation Act mirrors the common law as enunciated by Dixon CJ in Maxwell v Murphy. [41] In that case his Honour said:

“The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events.”

40. (2014) 254 CLR 1; [2014] HCA 18 at [27].

41. (1957) 96 CLR 261; [1957] HCA 7 at 267.

61. The Council submitted that the operative transitional provision is contained in the Uniform Law Sch 4 Pt 3 cl 26, which relevantly provides as follows:

“Current complaints and investigations

26   (1)    This clause applies to—

(a) a complaint made under old Chapter 4 but not disposed of before the commencement day; or

(b) an investigation referred to in old Chapter 4 that had begun but had not been completed before the commencement day.

(2)    On and after the commencement day—

(a) the complaint or investigation is to continue to be dealt with in accordance with the provisions of the old legislation; and

(b) for that purpose, the complaint or investigation is to continue to be dealt with by the entity responsible for dealing with it under those provisions (the ‘current entity’).”

62. “Old legislation” is defined to mean the statutory provisions operated by the Application Act. [42] These provisions include the 2004 Act which was repealed by s 167(a) of the Application Act. “Old Chapter 4” is defined to include Chapter 4 of the 2004 Act.

    42. Uniform Law Sch 4 Pt 1 cl 1.

63. The Council pointed out that there is no definition of “disposed of” in the Uniform Law. It contended, however, that a complaint made pursuant to the 2004 Act is not “disposed of” until proceedings in the Tribunal with respect to a complaint are concluded. Since the Council’s Application had not been finalised by the Tribunal on the commencement date, so the Council argued, Sch 4, Pt 3, cl 26 of the Uniform Law required the Tribunal to apply the 2004 Act in determining the Application.

64. To address this submission, it is convenient to give an outline of the complaints procedure under the 2004 Act. Although the 2004 Act has been repealed, I refer to it as though it is still in operation.

65. Chapter 4 of the 2004 Act deals with “Complaints and Discipline”. Section 494(1) sets out the purposes of Chapter 4 including:

“(c)   to provide a means of redress for complaints about lawyers.”

“Complaint” is defined unhelpfully to mean “a complaint under this Chapter”. [43]

43. 2004 Act s 495.

66. Part 4.2 of the 2004 Act is headed “Complaints About Australian legal practitioners”. A complaint may be made about an Australian legal practitioner’s conduct. [44] A complaint is to be made to the Legal Services Commissioner unless it is made by the Commissioner or a Council. [45] If the Council makes a complaint, it must notify the practitioner concerned,[46] who is entitled to make submissions to the Council. [47]

    44. 2004 Act s 503.

    45. 2004 Act s 505(1).

    46. 2004 Act s 508(1).

    47. 2004 Act s 509(1).

67. The Council may dismiss a complaint in defined circumstances, for example, if the complaint is vexatious. [48] A complaint may also be withdrawn by the person making it. [49]

    48. 2004 Act s 511(1).

    49. 2004 Act s 512(1).

68. Part 4.4 of the 2004 Act governs the investigation of complaints. Each complaint must be investigated unless, among other things, it is withdrawn or dismissed. [50] The Council must conduct an investigation into each complaint it makes. [51]

    50. 2004 Act s 525(1),(2).

    51. 2004 Act s 527(1).

69. Part 4.5 of the 2004 Act is headed “Decision of Commissioner or Council”. Section 537 provides as follows:

“Decision of Commissioner or Council after investigation

537 (1)   After completion of an investigation of a complaint against an Australian legal practitioner, the Commissioner or a Council must:

(a) commence proceedings in the Tribunal under this Chapter,or

(b) dismiss the complaint under this Part, or

(c) take action under section 540 (Summary conclusion of complaint procedure by caution, reprimand, compensation order or imposition of conditions)).

(2) Unless section 540 (Summary conclusion of complaint procedure by caution, reprimand, compensation order or imposition of conditions) applies, the Council or the Commissioner must commence proceedings in the Tribunal with respect to a complaint against an Australian legal practitioner if satisfied that there is a reasonable likelihood that the practitioner will be found by the Tribunal to have engaged in unsatisfactory professional conduct or professional misconduct.

(3) Nothing in this section affects section 512 (Withdrawal of complaints).”

70. After completion of the investigation of a complaint, the Council may dismiss the complaint if satisfied that there is no reasonable likelihood that the Tribunal will find that the practitioner engaged in unsatisfactory professional conduct or professional misconduct or if it is in the public interest to do so. [52] As s 537 indicates, the Council has power, in certain circumstances following the completion of the investigation, to impose sanctions on a practitioner, including administering a caution or a reprimand. [53]

    52. 2004 Act s 539 (1).

    53. 2004 Act s 540 (1),(2).

71. The Council relied particularly on Part 4.8 of the 2004 Act (“Proceedings in Tribunal”) as demonstrating that proceedings in the Tribunal are closely connected to a complaint. The key provisions are as follows:

“Commencement of proceedings

551   (1)   Proceedings may be commenced in the Tribunal with respect to the whole or part of a complaint against an Australian legal practitioner by an application (a disciplinary application) made by the Commissioner or a Council in accordance with this Chapter and containing one or more allegations of unsatisfactory professional conduct or professional misconduct.

(2)    An allegation in the disciplinary application must relate to the subject-matter of the complaint but need not be an allegation made in the original complaint or have been the subject of separate or further investigation under this Chapter.

…

Determinations of Tribunal

562   (1)   Orders generally If, after it has completed a hearing under this Part in relation to a complaint against an Australian legal practitioner, the Tribunal is satisfied that the practitioner has engaged in unsatisfactory professional conduct or professional misconduct, the Tribunal may make such orders as it thinks fit, including any one or more of the orders specified in this section.”

Other provisions in Pt 4.8 recognise that there is a close connection between a complaint and both the commencement of a disciplinary application and the powers of the Tribunal in dealing with such an application. [54]

54. See 2004 Act ss 556(1), 561(1), 563 (Tribunal’s powers to make interim orders “about a complaint”), 564(1), 568(1).

72. I accept the Council’s submissions that Pt 4.8 of the 2004 Act makes it clear that a disciplinary application in the Tribunal is founded on and closely tied to a complaint. Thus, proceedings are commenced in the Tribunal “with respect to a complaint”; the Tribunal has power to make interlocutory orders “about a complaint”; and the Tribunal’s disciplinary powers can be exercised “in relation to a complaint”. In my opinion, although the expression “disposed of” in cl 26 is imprecise, when cl 26 is read in context it applies to a disciplinary application with respect to a complaint which has not been finalised by the Tribunal on the commencement day (1 July 2015).

72. The Council’s submissions did not direct attention to the relationship, if any, between the transitional provision in Sch 4 Pt 3 cl 26 of the Uniform Law and other transitional provisions, notably Sch 4 Pt 1 cl 2 of the Uniform Law [55] and Sch 9 Pt 2 cl 3 of the Application Act. [56] While the language of the two other transitional provisions is capable of applying to a disciplinary application pending in the Tribunal, (thereby rendering the Uniform Law applicable in the pending application), in my opinion, these general transitional provisions must yield to the more specific transitional provision contained in the Uniform Law Sch 4 Pt 3 cl 26.

    55. Clause 2 is as follows:

    56. Clause 3 is as follows:

73. It follows that the Tribunal was correct in the present case to deal with the disciplinary application against the Solicitor by reference to the 2004 Act and not to the Uniform Law.

Apprehension of bias

75. The Solicitor’s written submissions to the Tribunal objected to the composition of the Tribunal. The Solicitor asked that one of the Members (Ms Hale), “recuse herself”. The basis of the submission was that the Member:

“has had not insignificant employment or contractual relations with the [Council] over many years and a fair minded and reasonable lay observer would apprehend that those relations are a personal pecuniary interest that indicate that Member Hale might not bring an impartial and unprejudiced mind to the resolution of this dispute.” [Emphasis added.]

76. The Solicitor was informed in writing by the Registrar of the Tribunal that the Member at no time had been an employee or contractor of the Law Society. Nevertheless, the Solicitor repeated his submission at the outset of the Tribunal hearing. He supported it by reference to the website of the legal firm of which the Member was a partner. The website indicated that the Member had served on the Family Law Issues Committee of the Law Society and had been an examiner for the Specialist Accreditation Board operated by the Law Society.

77. The following exchange then took place:

“CHAIRMAN:   Well it’s a matter for Miss Hale and she and I have discussed it and we both took the view that nothing in your submissions would warrant her recusing herself. She’s not had any closer relationship with the Law Society than most Solicitor members of this Tribunal Mr Griffin.

RESPONDENT:    Well Member there is some material in the letters that I sent which indicates that she has been an employee or a contractor of the---

CHAIRMAN:      She hasn’t been.

RESPONDENT:    Well it says on her website that she was.

CHAIRMAN:   Well she is certainly not an employee, I don’t know what?

RESPONDENT:    Well a contractor I did say or contractor.

MEMBER HALE:   Never been a contractor Mr Griffin or an employee never been paid by the Law Society.

RESPONDENT:   You haven’t?

MEMBER HALE:   All voluntary work.

RESPONDENT:   Alright okay well, it does seem to suggest that on your website.

MEMBER HALE:   That’s certainly not the case.

RESPONDENT:   Okay well I won’t press that any further.

MEMBER HALE:   Thank you.”

78. Despite being told that the Member had no relationship as an employee or contractor with the Law Society, and despite having apparently not pressed his objection, the Solicitor submitted on his appeal to this Court that the Tribunal Member should have declined to sit on the Tribunal and that her failure to do so constituted a denial of procedural fairness. The Solicitor relied on precisely the same material as he had when asserting to the Tribunal that the member must have been paid for her services by the Law Society.

79. This Court has held that the Administrative Decisions Tribunal, the predecessor to the Tribunal, was not a “court” for the purposes of s 77(iii) of the Constitution. [57] The Tribunal may well be in the same position. Nonetheless, the test for apprehended bias is that which applies to a court. The test is:

“…whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.”[58]

The test is objective and, in the case of the courts, is founded principally on the need for public confidence in the judiciary. [59]

57. Trust Company of Australia Ltd (t/as Stockland Property Management) v Skiwing Pty Ltd (t/as Café Tiffany’s) (2006) 66 NSWLR 77; [2006] NSWCA 185; Sunol v Collier (2012) 81 NSWLR 619; [2012] NSWCA 14 at [8] per curiam.

58. Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [31] (Gummow A-CJ, Hayne, Crennan and Bell JJ).

59. Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [12] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ), cited in Michael Wilson & Partners Ltd v Nicholls at [32].

80. The application of the test to a decision-maker other than a court may have to take account of the statutory functions, procedures and composition of the decision-maker, in this case the Tribunal. [60] It is not necessary to explore in the present case how factors such as these might affect the test for apprehended bias as applied to a member of the Tribunal.

    60. Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka (2001) 206 CLR 128; [2001] HCA 23 at [27] (Gleeson CJ, McHugh, Gummow and Hayne JJ); Minister of Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17at [185]-[190] (Hayne J, Gleeson CJ and Gummow J agreeing on this point).

81. A fair reading of the transcript of the Tribunal hearing suggests that the Solicitor, upon being informed that the Member had no employment or contractual association with the Law Society, effectively withdrew his application that the Member should disqualify herself. On this basis, he waived any complaint he might have had on the ground of apprehended bias, at least in the absence of evidence that the Member had some additional undisclosed association with the Law Society. [61]

    61. Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44 at 572-573 (Brennan, Deane and Gaudron JJ), at 577-578 (Dawson J); Smits v Roach (2006) 227 CLR 423; [2006] HCA 362 at [43]-[48] (Gleeson CJ, Heydon and Crennan JJ).

82. The more fundamental answer to the Solicitor’s submissions in this Court is that there is no evidence to support the factual foundation for his claim of apprehended bias. The claim was founded on the asserted existence of an employment or remunerative contractual arrangement between the Member and the Law Society. The Member stated that there was no such relationship and there was no evidence to suggest that her statement was not accurate. The Solicitor should not have maintained his submission in this Court.

83. The Solicitor’s contention based on apprehended bias fails.

Implied freedom of political communication

84. The Solicitor submitted that the contents of the Letter amounted to criticism of “a judicial arm of government” exercising its powers of judicial review over decisions made by another officer in government, namely the Deputy Commissioner of Taxation. Such criticism, so he argued, is integral to the system of responsible and representative government enshrined in the Constitution. It is therefore protected by the implied freedom of communication on governmental and political matters established by Lange v Australian Broadcasting Corporation, [62] Coleman v Power, [63] and other decisions of the High Court. The Solicitor maintained that he did not lose the protection of the implied freedom merely because his language was offensive or insulting to the judicial officer concerned. Indeed in his oral submissions to this Court, the Solicitor went so far as to assert that the Lange principle permitted a solicitor to communicate directly with a Judge and to make whatever allegations about the Judge’s conduct as the solicitor saw fit.

    62. (1997) 189 CLR 520; [1997] HCA 25 (Lange).

    63. (2004) 220 CLR 1; [2004] HCA 39 (Coleman).

85. In McCloy v New South Wales, [64] the joint judgment of four members of the High Court stated the following propositions derived from Lange and Coleman:[65]

    64. [2015] HCA 34; 325 ALJR 857.

    65. [2015] HCA 34; 325 ALJR 857 at [2] (French CJ, Kiefel, Bell and Keane JJ).

“A. The freedom under the Australian Constitution is a qualified limitation on legislative power implied in order to ensure that the people of the Commonwealth may ‘exercise a free and informed choice as electors’. It is not an absolute freedom. It may be subject to legislative restrictions serving a legitimate purpose compatible with the system of representative government for which the Constitution provides, where the extent of the burden can be justified as suitable, necessary and adequate, having regard to the purpose of those restrictions.

B.   The question whether a law exceeds the implied limitation depends upon the answers to the following questions, reflecting those propounded in Lange as modified in Coleman:

1.   Does the law effectively burden the freedom in its terms, operation or effect?

If ‘no’, then the law does not exceed the implied limitation and the enquiry as to validity ends.

2.   If ‘yes’ to question 1, are the purpose of the law and the means adopted to achieve the purpose legitimate, in the sense that they are compatible with the maintenance of the constitutionally prescribed system of representative government? This question reflects what is referred to in these reasons as ‘compatibility testing’.

The answer to that question will be in the affirmative if the purpose of the law and the means adopted are identified and are compatible with the constitutionally prescribed system in the sense that they do not adversely impinge upon the functioning of the system of representative government.

If the answer to question 2 is ‘no’, then the law exceeds the implied limitation and the enquiry as to validity ends.

3.   If ‘yes’ to question 2, is the law reasonably appropriate and adapted to advance that legitimate object? This question involves what is referred to in these reasons as ‘proportionality testing’ to determine whether the restriction which the provision imposes on the freedom is justified.

The proportionality test involves consideration of the extent of the burden effected by the impugned provision on the freedom. There are three stages to the test — these are the enquiries as to whether the law is justified as suitable, necessary and adequate in its balance in the following senses:

suitable — as having a rational connection to the purpose of the provision;

necessary — in the sense that there is no obvious and compelling alternative, reasonably practicable means of achieving the same purpose which has a less restrictive effect on the freedom;

adequate in its balance — a criterion requiring a value judgment, consistently with the limits of the judicial function, describing the balance between the importance of the purpose served by the restrictive measure and the extent of the restriction it imposes on the freedom.

If the measure does not meet these criteria of proportionality testing, then the answer to question 3 will be ‘no’ and the measure will exceed the implied limitation on legislative power.” (Citations omitted.)

86. The implied freedom does not protect a personal right. As the joint judgment in Unions NSW v State of New South Wales explained:[66]

“A legislative prohibition or restriction on the freedom is not to be understood as affecting a person’s right or freedom to engage in political communication, but as affecting communication on those subjects more generally. The freedom is to be understood as addressed to legislative power, not rights, and as effecting a restriction on that power. Thus the question is not whether a person is limited in the way that he or she can express himself or herself, although identification of that limiting effect may be necessary to an understanding of the operation of a statutory provision upon the freedom more generally. The central question is: how does the impugned law affect the freedom?” (Citations omitted.)

66. (2013) 252 CLR 530; [2013] HCA 58 at [36].

87. The Solicitor approached the constitutional issue by focussing on the contents of the Letter. He relied on Kirby J’s dissenting judgment in APLA Ltd v Legal Services Commissioner of New South Wales [67] for the proposition that the Letter incorporated comments on the workings of a Chapter III court and thus was a communication on governmental or political matters. The Solicitor’s submissions started from the wrong point.

    67. (2005) 224 CLR 322; [2005] HCA 44 at [347]-[350].

88. The first question that must be asked is whether the concept of “professional misconduct”, as a finding necessary for the imposition of disciplinary sanctions on a legal practitioner, effectively burdens the freedom of communication on governmental or political matters. The difficulty for the Solicitor’s contention is that the concept of professional misconduct, whether arising under the common law or statute, is not concerned with communications on governmental or political matters. This can be seen from two descriptions of “professional misconduct” quoted by the Tribunal in its reasons.

89. In Kennedy v The Council of the Incorporated Law Institute of New South Wales,[68] Rich J said that:

“a charge of misconduct as relating to a solicitor need not fall within any legal definition of wrong doing. It need not amount to an offence under the law. It was enough that it amounted to grave impropriety affecting his professional character and was indicative of a failure either to understand or to practise the precepts of honesty or fair dealing in relation to the courts, his clients or the public. The particular transaction the subject of the charge must be judged as a whole and the conclusion whether it betokened unfitness to be held out by the court as a member of a profession in whom confidence could be placed...”

68. (1939) 13 ALJ 563 at 563-564.

90. A more recent description was given by McClellan CJ in CL in Bechara v Legal Services Commissioner:[69]

“…there are no fixed categories of professional misconduct. Much depends on whether the conduct falls outside ‘generally accepted standard[s] of common decency and common fairness’. Previous examples of professional misconduct have included wilfully misleading the court (New South Wales Bar Association v Livesey [1982] 2 NSWLR 231); removing documents in contravention of a court order (Howes v Law Society of the Australian Capital Territory [1998] ACTSC 266); permitting conflicts of interest to arise (Law Society of New South Wales v Moulton [1981] 2 NSWLR 736); failing to account for money received (Re Walker (1887) 3 WN (NSW) 123); misleading a client (Coshott v Council of the Law Society of New South Wales [1997] NSWCA 80); gross neglect and delay (Legal Practitioners Conduct Board v Hay (2001) 83 SASR 454); failing to adequately supervise an unqualified clerk (Law Society of New South Wales v Foreman (1991) 24 NSWLR 238); breaching an undertaking given to another lawyer (Wade v Licardy (1993) 33 NSWLR 1); and, in certain situations, criminal and/or personal misconduct (Ziems v [The] Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279).”

69. (2010) 79 NSWLR 763; [2010] NSWCA 369 at [44] (McColl and Young JJA agreeing).

91. These descriptions of “professional misconduct” and the definition in s 497(1) of the 2004 Act[70] demonstrate that the concept is not concerned with communications on governmental or political matters. It is concerned with improper or incompetent behaviour by a legal practitioner which casts doubt on the practitioner’s fitness to engage in legal practice. Neither the Council nor the Solicitor considered whether a legal practitioner’s communications on political or governmental matters are capable of being characterised as professional misconduct. If that is the case, the concept may have to be read down to accommodate the implied constitutional freedom.

    70. Extracted at [8] above.

92. It is, however, not necessary for the purposes of the present case to demarcate the outer limits of professional misconduct. The allegation against the Solicitor is that by making the allegations about the Judge in the Letter, he was guilty of professional misconduct. To impose disciplinary sanctions on a legal practitioner who improperly makes allegations that a Judge has misconducted himself or herself in a particular case does not burden the freedom of communication on governmental or political matters.

93. The authorities interpreting the Lange principle have held that the implied freedom does not extend to public criticism of the conduct of a judicial officer. Neither the Council nor the Solicitor referred to these authorities in their submissions on the appeal.

94. In O’Shane v Harbour Radio Pty Ltd,[71] one issue was whether publishers of allegedly defamatory comments about a judicial officer were entitled to defend the proceedings by pleading the truth of the imputations. In addressing that issue, Beazley P considered whether the publications were in respect of political or governmental matters. Her Honour said this:[72]

“125   In brief, the Attorney General submitted that discussion about the discharge by a judicial officer of the judicial function in a particular case is not a discussion concerning political or governmental matters in the relevant sense: The Herald and Weekly Times Ltd v Popovic at [9] per Winneke ACJ; [507] per Warren AJA; John Fairfax Publications Pty Ltd v O’Shane at [91]-[99] per Giles JA (Ipp JA agreeing); at [250]-[308] per Young CJ in Eq. See also Conservation Council of SA Inc v Chapman [2003] SASC 398; (2003) 87 SASR 62 at [295] per Besanko J (Doyle CJ agreeing); Peek v Channel Seven Adelaide Pty Ltd [2006] SASC 63; (2006) 94 SASR 196 at [7]-[12] per Debelle J; [93]-[95] per Besanko J.

126   Whilst the discussion of the executive’s failure to exercise the power to remove a judicial officer may be relevant to the system of representative and responsible government (see APLA Ltd v Legal Services Commissioner of New South Wales [2005] HCA 44; (2005) 224 CLR 322 at 361 per McHugh J and Popovic at [10] per Winneke ACJ), discussion as to how the officer has handled individual proceedings is not a discussion on political or government matters. This is so even if the person making the statements was, in effect, seeking the removal of the judicial officer...”

71. (2013) 85 NSWLR 698; [2013] NSWCA 315.

72. (2013) 85 NSWLR 698; [2013] NSWCA 315 at [125]-[126] (McColl JA and Tobias AJA agreeing).

95. The comments made by the Solicitor in the present case were even further removed from a communication on governmental or political matters. They were written comments made in an ex parte communication to the Judge personally and concerned his Honour’s handling of a matter in which the Solicitor represented one of the parties. In the present state of the law, to construe “professional misconduct” as applying to communications of this kind does not effectively burden the implied constitutional freedom of communication on political or governmental matters.

96. In view of this conclusion, it is not necessary to consider whether, if the definition of professional misconduct effectively burdened the implied freedom of political communication, the law is compatible with the maintenance of the constitutionally prescribed system of representative government. Since neither the Council nor the Solicitor devoted attention to this issue, it is not appropriate to consider it further.

97. The Solicitor’s constitutional argument must be rejected.

The finding of professional misconduct

98. The Solicitor criticised the Tribunal’s finding that he had engaged in professional misconduct on two principal grounds. The first was that the Tribunal failed to apply what the Solicitor described as the “Briginshaw standard of proof”. The second was that “professional misconduct” is confined to conduct by a solicitor that infringes precepts of “honesty or fair dealing”. On this basis, so the Solicitor argued, “professional misconduct” cannot extend to personal communications made by a solicitor to a Judge who has decided a case in which the solicitor has appeared, even if the solicitor not only uses intemperate language but accuses the Judge of bad faith and dishonesty. Neither of these two submissions has substance.

The Bringinshaw principle

99. In Briginshaw v Briginshaw,[73] Dixon J in a celebrated passage said that:

“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answers to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.”

This principle is now embodied in the Evidence Act 1995 (NSW) s 140(2). [74]

73. (1938) 60 CLR 336; [1938] HCA 34 at 362.

74. Section 140 of the Evidence Act 1995 (NSW) provides as follows:

100. The Briginshaw principle, now incorporated in statute, is concerned with the proof of facts in issue in proceedings. [75] In the present case, there was no dispute as to the material facts. The Solicitor admitted sending the Letter to the Judge in the manner described above and, of course, there was no dispute as to the contents of the Letter. There was no occasion for the Tribunal to consider or apply the Briginshaw principle.

     75. Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; 67 ALJR 170 at 171 (Mason CJ, Brennan, Deane and Gaudron JJ).

Is the alleged conduct capable of constituting professional misconduct?

101. There are many statements in the authorities indicating that there are no precise limits to conduct that may warrant the imposition of disciplinary sanctions on a legal practitioner. For example, in the passage from Bechara v Legal Services Commission quoted earlier,[76] McClellan CJ at CL cited Clyne v Bar Association of New South Wales [77] for the proposition “that there are no fixed categories of professional misconduct”.

     76. See at [90] above.

     77. (1960) 104 CLR 186; [1960] HCA 40.

102. In Clyne, the High Court upheld a finding of grave professional misconduct against a barrister. Among other things, the barrister had caused criminal proceedings to be instituted against a solicitor as a means of forcing the solicitor to cease to act in proceedings against the barrister’s client. The High Court distinguished between conventional “rules” (now much diminished in scope with the application of competition principles to the legal profession) and “fundamental” rules. The latter:[78]

“…are, for the most part, not to be found in writing. It is not necessary that they should be reduced to writing, because they rest essentially on nothing more and nothing less than a generally accepted standard of common decency and common fairness. To the Bar in general it is more a matter of ‘does not’ than of ‘must not’. A barrister does not lie to a judge who relies on him for information. He does not deliberately misrepresent the law to an inferior court or to a lay tribunal. He does not, in cross-examination to credit, ask a witness if he has not been guilty of some evil conduct unless he has reliable information to warrant the suggestion which the question conveys.” (Citations omitted.)

78. (1960) 104 CLR 186 at 200 per curiam.

103. That professional misconduct is not confined in the manner suggested by the Solicitor is not surprising once regard is paid to the interests that must be protected. Spigelman CJ in New South Wales Bar Association v Cummins [79] identified four interrelated interests involved in the regulation of the conduct of legal practitioners:[80]

“Clients must feel secure in confiding their secrets and entrusting their most personal affairs to lawyers. Fellow practitioners must be able to depend implicitly on the word and the behaviour of their colleagues. The judiciary must have confidence in those who appear before the courts. The public must have confidence in the legal profession by reason of the central role the profession plays in the administration of justice. Many aspects of the administration of justice depend on the trust by the judiciary and/or the public in the performance of professional obligations by professional people.”

79. (2001) 52 NSWLR 279; [2001] NSWCA 284.

80. (2001) 52 NSWLR 279; [2001] NSWCA 284 at [20] (Mason P and Handley JA agreeing).

104. Spigelman CJ also quoted the well-known observation of Kitto J in Ziems v The Prothonotory of the Supreme Court of New South Wales:[81]

“… the Bar is no ordinary profession or occupation. These are not empty words, nor is it their purpose to express or encourage professional pretensions. They should be understood as a reminder that a barrister is more than his client’s confidant, adviser and advocate, and must therefore possess more than honesty, learning and forensic ability. He is, by virtue of a long tradition, in a relationship of intimate collaboration with the judges, as well as with his fellow-members of the Bar, in the high task of endeavouring to make successful the service of the law to the community. That is a delicate relationship, and it carries exceptional privileges and exceptional obligations. If a barrister is found to be, for any reason, an unsuitable person to share in the enjoyment of those privileges and in the effective discharge of those responsibilities, he is not a fit and proper person to remain at the Bar.”

81. (1957) 97 CLR 279; [1957] HCA 46 at 298.

105. While both Cummins and Ziems involved the conduct of barristers, the observations in those cases apply with equal force to the conduct of a solicitor appearing as an advocate on behalf of a client in judicial proceedings. The concept of “professional misconduct” as applied to solicitors must also be informed by the Solicitors Rules in force at any given time. As has been seen, the “fundamental ethical duties” of solicitors laid down in the 2013 Rules include a requirement that solicitors be “courteous in all dealings in the course of legal practice”. [82] In addition, a solicitor is not to engage in conduct which is likely in a material degree to diminish the public confidence in the administration of justice or bring the profession into disrepute, even if the solicitor has not acted dishonestly or in a manner that necessarily infringes “precepts of fair dealing”. [83] These rules indicate that a private communication between a solicitor-advocate and a Judge who has heard a case in which the solicitor has appeared may constitute professional misconduct. This may be the case, for example, if the solicitor makes unsubstantiated allegations of bad faith and dishonesty against a presiding Judge arising out of proceedings in which the solicitor has been involved.

     82. 2013 Rules r 4.1.2, set out at [22] above.

     83. 2013 Rules r 5.1, set out at [22] above.

106. The authorities recognise that offensive and derogatory comments by a solicitor may amount to professional misconduct. In Ellis v Law Society,[84] a solicitor conducted “inappropriate, offensive and derogatory correspondence directed to and about the Law Society, [a litigant], members of the judiciary and others”. Leveson LJ, with whom Lloyd Jones J agreed, dealt with the allegations as follows:[85]

“32   …I find these [allegations] more difficult because, at least in relation to the Law Society and the judiciary, it is necessary to approach the matter on the basis that a solicitor is entitled to hold strong views, however unpalatable others might find them to be, and furthermore, the officials of the former and members of the latter must be and are equally robust in being able to ignore observations of an intemperate or even abusive nature. Disciplinary action of the type taken in this case should not normally follow for this reason alone…

33   I recognise, however, that there must be a line beyond which such proceedings are justifiable and, perhaps, inevitable. It is trite to say that each case must depend on its own facts but the test might well be whether the level of abuse and obsession permeates the solicitor’s approach to the real detriment of his client. After all, the reputation and integrity of the profession is essential to maintain public confidence in its ability to act in the very best interests of each client to the highest professional standard without being affected by extraneous issues.”[86]

84. [2008] EWHC 561.

85. [2008] EWHC 561 [32]-[33].

86. For other examples of communications to judicial officers being found to constitute professional misconduct, see Council of the New South Wales Bar Association v Slowgrove [2009] NSWADT 150 (a letter threatening severe consequence if a Magistrate refused to disqualify himself); Doré v Barreau de Québec [2012] 1 SCR 395 (lawyer writes to Judge calling him, among other things, loathsome, arrogant and a coward, in response to the Judge making inappropriate comments about the lawyer in court). These cases are referred to by GE Dal Pont, Lawyers’ Professional Responsibility (6th ed 2017, Thompson Reuters) at [25.40]-[25.45].

107. I agree that Judges can generally be expected to be robust, and that care should be taken before disciplinary action is taken based solely on offensive or derogatory comments made by a legal practitioner to or about a Judge, whether in court or by communications outside the courtroom. However, I also agree that, depending on the content, communications may cross the line and be capable of constituting professional misconduct.

108. If, however, Leveson LJ was suggesting that offensive and derogatory comments made by a practitioner to or about a Judge can constitute professional misconduct only if the communication causes detriment to the client, I do not agree. A case of that kind may be the clearest example of a practitioner “crossing the line”. But the interests identified by Spigelman CJ in Cummins indicate that the line may be crossed even where the client’s interests are not necessarily adversely affected. The present case illustrates the point, since the Letter was sent after the Judge had delivered judgment, albeit as a seriously misguided effort by the Solicitor to persuade the Judge to make a costs order more favourable to the Solicitor’s client. Yet the contents of the Letter, particularly the accusations of bad faith and dishonesty in the preparation of the judgment, are clearly inconsistent with the minimum degree of trust and civility between legal practitioners and the judiciary that is essential to the administration of justice and the integrity of the judicial system.

109. The Tribunal characterised the terms of the Solicitor’s Letter as “grossly offensive”. [87] The Tribunal then said that it was a “matter of judgment” whether the Letter constituted professional misconduct. It concluded that the Solicitor was guilty of professional misconduct because solicitors are under “a duty to exhibit appropriate respect for judicial officers and their decisions…out of regard for the institutions they represent”. The Tribunal invoked the need to maintain public confidence in those institutions, although it did not explain precisely how the Letter undermined confidence in the judicial system. The Tribunal also expressed itself satisfied that the Solicitor had departed so far from the conduct expected of a solicitor of good reputation as to be guilty of professional misconduct. [88]

     87. Tribunal Reasons at [28].

     88. Tribunal Reasons at [29].

110. In my view, if a legal practitioner is accused of professional misconduct by reason of a communication to or about a judicial officer, more is required of the Tribunal than simply to characterise the practitioner’s conduct as “grossly offensive” and asserting that the conduct departs from the standards expected of a solicitor. These are conclusions that should be supported by an explanation of the reasons why the conduct amounts to a serious departure from the expected standards.

111. It is true that the Tribunal’s task was made more difficult because the Council did not present its case with particular clarity and the nature of the Solicitor’s conduct was somewhat obscured by the Council’s use of the expression “grossly discourteous behaviour” to describe the conduct. However, the gravamen of the Council’s case was that the Solicitor alleged in the Letter that the Judge had acted vindictively, may not have written the judgment “at all”, and made the decision “without good faith and with bias”. These allegations necessarily suggested that the Judge breached the most fundamental duties he owed as a judicial officer, acted dishonestly (by passing off a judgment as his own that he had not written), acted in bad faith, and displayed actual bias towards a litigant and vindictiveness to the Solicitor. In addition, the Letter demanded that the Judge alter orders made in open Court and threatened that if his Honour did not do so, he would suffer embarrassment as a result of the Solicitor’s actions.

112. The contents of the Letter must be judged on their face. There is not a shred of evidence advanced in the Letter to support any of the allegations of impropriety made against the Judge. The “discourtesy” and ”offensiveness” lay both in the making of scurrilous allegations by the Solicitor about the Judge’s conduct, and the manifest absence of any material that could possibly justify making the allegations in any forum, let alone in a private communication to the Judge. The Letter showed that the Solicitor was prepared to make allegations that the judicial process had been undermined by improper behaviour of the Judge, without any material that could justify any such allegation. Moreover, the Letter was “discourteous” and “offensive” because it implied that the Judge would be prepared to alter costs orders because of a threat that he could be embarrassed by the Solicitor’s “legitimate” actions.

113. In my view, the Tribunal was entitled to find that the Solicitor was guilty of professional misconduct on the basis of the contents of the Letter. The Tribunal Reasons lack the detail that might have been expected, but the findings are consistent with the Tribunal analysing the case in the way I have explained. The finding of professional misconduct was open because the Solicitor made allegations of serious misconduct against a judicial officer before whom the Solicitor had appeared, without providing any supporting evidence. Moreover, the Solicitor made the allegations in the context of an attempt, coupled with threats, to persuade the Judge to alter orders he had made in the proceedings just concluded. Despite the lack of detail in the particulars provided by the Council, the Tribunal’s findings, understood in this way, are consistent with the particulars upon the basis of which the case was conducted.

Jurisdictional Error

114. The Solicitor’s submission founded on non-compliance with s 537(2) of the 2004 Act, overlooked evidence that was before the Tribunal. The evidence established that on 5 February 2015, the Professional Conduct Committee of the Council resolved that it was satisfied that there was a reasonable likelihood that the Solicitor would be found to have engaged in professional misconduct, and that proceedings should be instituted in the Tribunal pursuant to s 537(2) of the 2004 Act. The evidence also established that the Council had delegated to the Professional Conduct Committee all relevant powers conferred by Chapter 4 of the 2004 Act.

115. Since the Professional Standards Committee had the letter before it, and there was no dispute that the Solicitor had sent the Letter, it was open to the Committee to be satisfied that there was a reasonable likelihood that the Tribunal would find that the Solicitor engaged in professional misconduct.

Costs of the disciplinary application

116. As I have noted, the Tribunal made a costs order against the Solicitor in reliance on s 566 of the 2004 Act. Section 566(1) provided that the Tribunal had to make a costs order against a legal practitioner found to have engaged in professional misconduct unless special circumstances existed. As I have also noted, it was common ground on the appeal that the Tribunal overlooked that s 566 of the 2004 Act had been repealed on 1 January 2014. [89]

     89. See at [44*] above.

117. The Council submitted that the error was immaterial because the correct costs provision is Sch 5 Pt 4 cl 23 of the NCAT Act, which is in substantially identical terms to s 566(1) of the 2004 Act. Accordingly, the Council invited the Court to exercise what it submitted is the power conferred by s 109 of the Supreme Court Act. Section 109 provides that if the Court dismisses an appeal, but varies the order the subject of the appeal, and declares the variation to be a minor variation, the order is taken to be an order of the court or tribunal that made the original order.

118. The first question is whether Sch 5 Pt 4 cl 23 of the NCAT Act applies to the disciplinary application determined by the Tribunal. Clause 23 is in Div 4 of Pt 3. Other provisions in Div 4 expressly refer to the functions of the Occupational Division of the Tribunal in dealing with matters under the Uniform Law. These provisions clearly apply to matters to be heard and determined by the Tribunal under the 2004 Act in accordance with the transitional provisions, since a reference to the Uniform Law in the NCAT Act includes a reference to the 2004 Act. [90]

     90. NCAT Act Sch 1 Pt 4 cl 21.

119. Curiously enough, cl 23 does not refer expressly to the Uniform Law or the 2004 Act. Nonetheless, it would make little sense if other provisions in Div 4 of Pt 3 applied to proceedings to be determined under the 2004 Act, but cl 23 did not apply. When read in the context of Div 4, it seems to me that the intention is that cl 23 should govern the question of costs in a disciplinary application that falls to be determined under the 2004 Act by virtue of the transitional provisions in the Uniform Law. I therefore consider that the Council correctly conceded that the Tribunal should have applied Sch 5 Pt 4 cl 23 of the NCAT Act instead of s 566(1) of the 2004 Act when determining costs.

120. The next question is what this Court should do about the error. In my view, it is by no means clear that s 109 of the Supreme Court Act confers power on this Court to vary an order that is the subject of an appeal. Section 109 plainly confers power on the Court to declare a variation of an order to be minor and to specify the consequences of such a declaration. But it would seem that the power to vary an order has to found elsewhere.

121. In any event, the Tribunal simply ordered the Solicitor to pay the Council’s costs on a party and party basis. The order makes no reference to s 566 of the 2004 Act or any other statutory power supporting the order. It is not clear why it is necessary to vary the order made by the Tribunal to refer expressly to Sch 5 Pt 4 cl 23 of the NCAT Act.

122. The Council should have filed a Notice of Contention seeking to uphold the costs order on a basis other than that relied on by the Tribunal. Notwithstanding the absence of a Notice of Contention, justice will be done if the Court simply dismisses the appeal. Had the Tribunal correctly identified Sch 5 Pt 4 cl 23 of the NCAT Act as the provision governing the award of costs, it is inevitable that it would have reached the same conclusion. Section 75A(10) of the Supreme Court Act empowers the Court to:

“…make any…order or give any direction which ought to have been given or made or which the nature of the case requires.”

123. In the circumstances I have described, the appropriate order is for the Court to dismiss the Solicitor’s appeal, thus allowing the costs order to stand.

Orders

124. The following orders should be made:

1. Appeal dismissed.

2. The Appellant pay the Respondent’s costs of the appeal.

************

Endnotes

(1) Except where the contrary intention appears, this Schedule does not affect or take away from the Interpretation of Legislation Act 1984 of Victoria as applying under section 7(1) of this Law.

(2) If anything of a kind required or permitted to be done under a provision of this Law as applied in this jurisdiction was done under a corresponding provision of the old legislation and still had effect immediately before the commencement day, the thing continues in effect on and after that day as if-

(a) this law as applied in this jurisdiction had been in force when it was done: and

(b) it had been done under this law as applied in this jurisdiction.

(3) If subclause (2) applies in relation to the execution, lodgement, issue or publication of a written instrument, any reference in the instrument to a provision of the old legislation is, for the purposes of that subclause, to be read as a reference to the corresponding provision of this Law as applied in this jurisdiction.

(4) Without limiting subclauses (2) and (3), if a provision of the old legislation that corresponds to a provision of this Law as applied in this jurisdiction would, but for its repeal by the Legal Profession Uniform Law Act of this jurisdiction, have applied in relation to anything done or being done or in existence before the commencement day, the provision of this Law applies in relation to that thing, and so applies with any necessary adaptations.

General savings and transitional provisions

(1) This clause has effect subject to this Act and the Legal Profession Uniform Law (NSW).

(2) Each person, body, thing and circumstance appointed or created under the repealed Act or existing or continuing under that Act immediately before the commencement of relevant provisions of the Legal Profession Uniform Law (NSW) continues to have the same status, operation and effect as it would have had if this Act had not been enacted.

(3) Any act, matter or thing subsisting immediately before the commencement of relevant provisions of the Legal Profession Uniform Law (NSW) that:

(a) was done or omitted under the repealed Act, and

(b) could have been done or omitted under that Law (with any necessary modifications) if that Law had been in force when it was done or omitted,

is taken to have been done or omitted under that Law.”

(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:

(a) the nature of the cause of action or defence, and

(b) the nature of the subject-matter of the proceeding, and

(c) the gravity of the matters alleged.

Amendments

17 February 2017 - [17] 20 October, Bell J amended to read "14 December 2016, Kiefel and Keane JJ"

Endnote [12] amended to read "[2016] HCASL 330.

Decision last updated: 17 February 2017