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

The appeal concerned a solicitor, Mr. Griffin, who had sent an ex parte communication to a judge of the Supreme Court of New South Wales. This communication contained unfounded allegations and threats, leading to a complaint that Mr. Griffin's conduct was "grossly discourteous." The matter came before the New South Wales Civil and Administrative Tribunal (NCAT) and subsequently the Court of Appeal of New South Wales.

The Court of Appeal was required to determine several key legal issues. Firstly, it had to consider whether Mr. Griffin's conduct, as described, was capable of constituting professional misconduct. Secondly, the court was asked to determine whether the repealed *Legal Profession Act 2004* (NSW) applied to disciplinary proceedings that were pending before NCAT at the time of the Act's repeal, particularly in relation to the statutory construction of transitional provisions. Finally, the court had to assess whether Mr. Griffin's conduct was protected by the implied constitutional freedom of political communication, and whether NCAT had erred in ordering Mr. Griffin to pay costs, especially given its reliance on a repealed statutory provision for that order.

In its reasoning, the Court of Appeal held that the solicitor's conduct was indeed capable of constituting professional misconduct, as it fell within the ambit of conduct that a reasonably prudent lawyer would regard as disgraceful or dishonourable. The court found that the implied freedom of political communication did not extend to protecting conduct that was grossly discourteous and undermined the administration of justice. Regarding the application of the repealed Act, the court determined that the transitional provisions preserved the operation of the *Legal Profession Act 2004* (NSW) for proceedings that were already before NCAT. Consequently, the court found no error in NCAT's decision to order the solicitor to pay costs.

The Court of Appeal dismissed the appeal and ordered the appellant, Mr. Griffin, to pay the respondent's costs of the appeal.