Hughes v Law Society of New South Wales (LSD)

[2001] NSWADTAP 42

Appeal Panel

CITATION:	Hughes -v- Law Society of New South Wales (LSD) [2001] NSWADTAP 42 revised - 17/07/2002
PARTIES:	APPELLANT Colin Frederick Hughes RESPONDENT Council of the Law Society of New South Wales
FILE NUMBER:	999011
HEARING DATES:	10/04/2000
SUBMISSIONS CLOSED:	02/27/2001
DATE OF DECISION:	12/21/2001
DECISION UNDER APPEAL:	Law Society of New South Wales -v- Hughes [1999] NSWADT 44
BEFORE:	Needham CA - (Deputy President); Foster GF - Judicial Member; Brehe D - Member
CATCHWORDS:	jurisdiction
MATTER FOR DECISION:	Preliminary matter
FILE NUMBER UNDER APPEAL:	36 of 1994 & 36 of 1996
DATE OF DECISION UNDER APPEAL:	06/29/1999
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Legal Profession Act 1987
CASES CITED:	Barwick v Law Society [2000] HCA 2 Bar Association of New South Wales v T [2001] NSWCA 316
REPRESENTATION:	APPELLANT In person RESPONDENT R Bellamy, barrister
ORDERS:	Matter stood over: (a) The Law Society should file its evidence within four (4) weeks; (b) Any evidence or submissions in reply from Mr Hughes should be filed and served within 2 weeks after service of the Law Society's affidavits upon him; (c) If either party wishes to relist the matter for hearing in relation to that evidence, the Registry will allocate a convenient date; (d) Any further hearing will be strictly limited to the further evidence or submissions on that evidence.

1 The appellant, Mr Hughes, was the respondent to three complaints brought by the Law Society between 1994 and 1998. The first was commenced in the Legal Profession Disciplinary Tribunal and the other two were commenced in the Legal Services Tribunal. They are:
(a) No. 36 of 1994 in the Legal Profession Disciplinary Tribunal (“the 1994 matter”).
(b) No. 36 of 1996 in the Legal Services Tribunal (“the 1996 matter”).
(c) No. 6 of 1998 in the Legal Services Tribunal (“the 1998 matter”).
2 The complaints were heard together in this Tribunal in March and June 1998. The hearing lasted ten days. The judgment was given on 29 June 1999. The Tribunal ordered that Mr Hughes be removed from the roll of legal practitioners in New South Wales.

3 The decision is the subject of appeal by Mr Hughes. The appeal includes an appeal seeking the costs of various interlocutory and post-hearing applications made by Mr Hughes.

4 In the 1996 matter, the Tribunal made adverse findings of serious misconduct by Mr Hughes in acting for two of the three clients the subject of that matter, being the complaints concerning his clients Cullen and the estate of Gower. In the 1994 matter the Tribunal found that Mr Hughes had misled the Law Society as to having written up his trust accounts (judgment paragraph 193). The Tribunal also found that Mr Hughes had breached the trust account regulations on certain technical matters (paragraphs 186 to 193). This finding appears in the judgment under the heading “Other Matters Raised at the Hearing” and the judgment does not make clear whether the breaches were those alleged in the 1996 matter or the 1994 matter, or both. Nothing turns on that however. The Information in the 1998 matter was dismissed.

5 The Tribunal concluded:

“In our view there can be only one result of those findings in all the circumstances, that being that the practitioner’s name must be removed from the roll of legal practitioners in this state.”
In so holding the Tribunal said:
“[W]hatever way one looks at the conduct of the practitioner he seems never to have understood the obligations that he undoubtedly owed to each of his respective clients, obligations of fairness, obligations of fearless advice in their interests, obligations of proper disclosure and obligations not to become involved in undoubted conflicts of interest. There were massive conflicts all the way through the dealings of the practitioner.”
6 The Tribunal’s findings in the 1996 matter were the most serious findings of misconduct. However it is not apparent from the judgment to what extent the Tribunal relied on its findings in the 1994 matter in reaching its decision to make the order, or what order the Tribunal would have made in the 1994 matter apart from the findings of misconduct in the 1996 matter. Although the judgment deals in turn with each matter and each of the grounds of complaint and the adverse findings are clearly identified, the order is expressed compendiously in relation to all of the Tribunal’s findings and is not expressed to be made in either the 1996 or the 1994 matter, or in each. This clearly presents difficulties especially where a jurisdictional challenge is made in one or more of the matters, as in this case.

7 Certainly the findings in the 1996 matter would support an order for removal from the roll, even viewed in isolation. Whether the findings in the 1994 matter, without more, would support such an order is less clear. The complaint in the 1994 sought only an order for suspension.

8 The Tribunal ordered that the practitioner pay the costs of the Law Society, excluding certain issues. Regrettably they are not identified by matter number either, but by description. The exclusions from the costs order we understand to relate to:

(a) the whole of the 1994 matter except for the hearing concerning any trust account breaches as found in paragraphs 186 to 192 which relate to the 1994 matter;
(b) the complaint in the 1996 matter concerning the client Padovan;
(c) the whole of the hearing concerning the 1998 matter.
The Appeal
9 Mr Hughes has appealed from the Tribunal’s decision of 29 June 1999 in the 1994 and 1996 matters.

10 The appeals were initiated by a notice of appeal filed 23 July 1999 and are said to raise questions of law. We do not need to decide at this stage whether any error of law is raised by the appeals. Leave is sought to extend the appeals to the merits of the decision below.

11 As we have said, the order of the Tribunal was not made in any one or more of the matters before it. The adverse findings which are referred to in that part of the judgment leading to the making of the order were findings in the 1994 matter as well as the 1996 matter. We assume that all of the adverse findings were present in the Tribunal’s mind when making the order for removal from the roll.

12 Accordingly we are called on to consider the effect of the judgment and order where the 1996 information is, after Barwick v Law Society [2000] HCA 2, known to be void by reason of procedural irregularities in the preceding investigation by the Society.

13 No submission was put to us concerning the validity of the 1994 Complaint by reason of the complaint being commenced in the Legal Disciplinary Tribunal, the predecessor but one to this Tribunal. Since then the Court of Appeal has delivered its judgment in Bar Association of New South Wales v T [2001] NSWCA 316 and we proceed on the basis that the 1994 Complaint is validly before us, but for any procedural irregularities to which we later refer.

14 In support of or in relation to his appeal, and the issues before the Appeal Panel on 10 April 2000, Mr Hughes has filed a considerable volume of documents and materials. Although some of the documents are described as “Applications” they invariably contain materials in the nature of submissions and evidence. Accordingly we have treated all of the materials as relevant for us to consider to the extent that they bear on the issue for decision in this judgment.

15 In listing the documents filed in the appeal by Mr Hughes, for convenience we make reference to some parts of the documents which bear on or advert to the jurisdictional issue to be dealt with in this judgment. The documents are:

(a) “Notice of Appeal” filed 23 July 1999.
(b) 3 page “Application to appeal decision” dated 2 September 1999 which by direction made 9 September 1999 is to be treated as an Amended Notice of Appeal.
(c) 4 page “Grounds of Appeal” filed 15 September 1999 (apparently for matter no 36 of 1994).
(d) 12 page “Grounds of Appeal” filed 15 September 1999 (apparently for matter no 36 of 1996).
(e) 5 page “Further documents to be tendered in evidence in the matter of Cullen” filed 15 September 1999 (unclear whether in 36 of 1994 or 36 of 1996 or both).
(f) 6 page “Short statement by Colin Hughes of what the new evidence will show in the matter of Gower” filed 30 June 1994.
(g) Application filed 30 November 1999 to the three members of the Tribunal below seeking an order that they vacate their orders below.
(h) 16 page “Grounds of Appeal” filed 30 November 1999(apparently for both no 36 of 1996 and No 36 of 1994)
(i) 27 page “Appeal New Evidence” filed 3 February 2000 with covering letter dated 1 February 2000.
(j) Letter to Tribunal dated 23 February 2000 with attached letter to the Law Society asserting “the hearing was illegal and a nullity”.
(k) Letter to Tribunal dated 5 April 2000 with attached letter to the Law Society asserting “There is no doubt in my mind that the Tribunal decision is illegal null and void.”
(l) Letter to Tribunal dated 17 April 2000 attaching “Submissions to the appeal panel” dated 17 April 2000 together with approximately 100 pages of documents, not paginated or indexed. The written submissions under the heading “Issue 1” assert that “Irrespective of the illegality issue brought about by the decision in Barwick there is a similar concurrent threshold issue of jurisdictional error rejected by the Tribunal but now explicable and demonstrable by new evidence and by the closing down of solicitors mortgage practices by ASIC after the Tribunal decision”. Under the heading “Issue 5” it is submitted that “this Appeal Panel does have jurisdiction to determine the appeal from a decision that is null and void”.
(m) 6 page “Application for Orders” dated 30 May 2000 seeking an order that the decision of the Tribunal below was null and void together with two letters to the Tribunal both dated 30 May 2000. In the shorter letter Mr Hughes asks the Appeal Panel to consider the matters raised in the new application. In the longer letter and in the application reference is made to Barwick v Law Society [2000] HCA 2.
(n) 2 page letter to the Appeal Panel dated 20 June 2000 with attached extract from the Financial Review. In the letter reference is made, inter alia, to the Legal Profession Amendment (Mortgage Practice) Act 2000 assented to on 5 June 2000.
(o) 17 page “Appeal matter application for orders” filed 27 September 2000 seeking an order that “The procedural issues of law resulting from the High Court decision of Barwick v Law Society be adjourned generally” with covering letter to the Tribunal dated 25 September 2000.
(p) In addition Mr Hughes has filed with the Registry some 2000 pages of documents upon which he seeks to rely on appeal. We are not sure whether or to what extent these documents constitute evidence tendered to the Tribunal below or constitute fresh evidence.
16 In relation to the challenge to jurisdiction made by the Law Society on 10 April 2000 to this Appeal Panel, the Law Society has filed the following submissions:
(a) “Respondent’s Submissions re Barwick v The Law Society of NSW [2000] HCA 2” filed 20 April 2000
(b) “Respondent’s Supplementary Submissions” filed 20 February 2001.
17 We have considered the materials filed by each of the parties, excluding the documents lodged by Mr Hughes with the Registry and those parts of the materials clearly irrelevant to the present application. In addition we have considered the oral submissions put to us at the hearing on 10 April 2000. At the hearing the Law Society was represented by counsel, Mr Hughes appeared in person.

Matter No. 36 of 1994
18 The Complaint filed 30 June 1994 alleges misconduct in relation to Mr Hughes’ clients Podder, Lo and Juntunen. The Complaint seeks an order that Mr Hughes be suspended from practice.

19 In its judgment given 29 June 1999 the Tribunal held that the allegations of misconduct concerning the handling of his clients’ matters were not established. However the Tribunal found that Mr Hughes had misled the Trust Account Inspector to having written up his trust accounts and may have found breaches of the trust account regulations in concerning the 1994 matter, although as we have said it is not clear from the judgment whether these breaches arose in the 1994 matter or the 1996 matter.

20 The costs order made against Mr Hughes specifically excludes the costs of the hearing in relation to the allegations of misconduct with respect to the clients named in the 1994 matter. No costs order was made in his favour. This appeal, as we presently understand it, is limited to “the issue of costs, which are claimed on this appeal”, as stated in Mr Hughes’ submissions filed 27 September 2000, paragraph 6.

21 By the Legal Profession Act s171E(2), the Tribunal has power to make a costs order in favour of a successful practitioner where “special circumstances” warrant such an order but only if the Tribunal “is satisfied that the practitioner is not guilty of unsatisfactory professional conduct or professional misconduct”. Accordingly, if an appeal on the merits were to proceed, we would expect the issue on the appeal would be limited to whether the Tribunal erred in failing to find that the hearing of complaint no 36 of 1994 fell into this category.

22 Without predetermining that issue, or what the issues on appeal might be, the costs issue will be a question of fact to be decided on any appeal on the merits. For an appeal on the merits to proceed, the leave of this panel is required by s113(2)(b) of the Administrative Decisions Act 1997. Leave is sought by the appellant to extend his appeal in this matter to the merits and if the appeal in the 1994 matter proceeds, that application will need to be determined in due course.


Matter No. 36 of 1996
23 The Information filed 25 September 1996 alleges misconduct in acting for three clients, Cullen, the estate of Gower and Padovan, and also alleges breaches in relation to the trust account maintained by Mr Hughes. The Information seeks an order that Mr Hughes’ name be removed from the roll of legal practitioners.

24 Adverse findings were made against Mr Hughes on all of the grounds concerning his client Mr Terry Cullen. Adverse findings were made on some but not all of the grounds relating to the estate of Gower (summarised in paragraphs 194 to 195 of the judgment). No adverse finding was made on the complaint relating to his client Padovan.

25 Mr Hughes appeals from the decision on purported questions of law, and seeks leave to extend his appeal to an appeal on the merits. The appeal in the 1996 matter includes a claim for costs and challenges the refusal of the Tribunal below to accede to his request for disqualification, as appears from Mr Hughes’ written submissions filed 27 September 2000, paragraph 42.


Objection to Jurisdiction
26 On 10 April 2000 this Appeal Panel was convened to hear two applications:
a) Application by the Law Society filed 24 November 1999 seeking an order that the appeal filed 23 July 1999 be struck out. The supporting affidavit of Mr Collins made 24 November 1999 refers to the failure of Mr Hughes to comply with orders of the Tribunal that he provide further and better particulars of his appeal.
b) Application by Mr Hughes for leave to adduce fresh evidence on his appeal on the merits. This application is not contained in a single document but in various of the materials filed by him.
27 Before the hearing commenced, the Law Society objected to the jurisdiction of the Appeal Panel to hear the appeal, asserting a want of jurisdiction in the Tribunal below and consequently in this Panel, on the ground that the Information in the 1996 matter was wholly affected by procedural defects in the investigation of the complaints against Mr Hughes, of the category considered by the High Court in Barwick v Law Society of NSW . That objection had been notified to the Tribunal on 20 March 2000 by letter.

28 Mr Hughes agreed (transcript pages 8 to 10) that the investigation leading to the laying of the 1996 Information was flawed and he too requested the Panel to make a determination of want of jurisdiction. He said (transcript page 10 line 29):

“I would be seeking to have the Appeal Tribunal hand down a decision on the application of Barwick to the facts of my case and the orders I will be seeking are that these proceedings are a nullity, they have always been a nullity ...”
29 At transcript page 11 line 23:
“DEPUTY PRESIDENT: So do you agree that the matter of 1996 is Barwick affected?”
MR HUGHES: It is null and void”.
30 Mr Hughes’ submission is that all of the proceedings brought against him were procedurally flawed. He informed the Tribunal (transcript page 8 line 37) that he had not produced any witness in any of the matters because “It was my view that the proceedings were a nullity”. He informed us that he had himself taken the jurisdictional point after the hearing concluded, which was prior to the High Court's decision in Barwick . At transcript page 9 line 1 Mr Hughes said:
“Of course, we now have the judgment in Barwick, and in relation to the post-hearing submissions I made to the Tribunal, it was almost as though I wrote the High Court judgment in Barwick myself for them, for the judges.”
31 Mr Hughes submitted (transcript page 9, 10):
“My submission is that the Law Society has breached the Legal Profession Act in an even more serious manner than it did in the case of Barwick . In my case, instead of telescoping two resolutions in breach of some mandatory provisions, what the Law Society did was initiated proceedings. All the solicitors’ protections were completely and totally overridden by the Law Society ... There was no investigation at all. There were some initial inquiries, but nothing that would constitute an investigation”.
32 After we received the supplementary submissions of the parties, Mr Hughes by application filed 27 September 2000 sought an order that we adjourn our decision on the jurisdictional issue and proceed with the hearing of his appeal. However the judgment has been challenged on jurisdictional grounds by both the Law Society and Mr Hughes. Although Mr Hughes now seeks to have us ignore his challenge, once an objection to jurisdiction is made we cannot proceed unless we are satisfied that we have jurisdiction. Clearly we must determine the jurisdictional objection before proceeding with the appeal. Accordingly we do not accede to this request.

33 If the Tribunal below lacked jurisdiction, so does this Appeal Panel. A void decision is not an “appealable decision” within the meaning of section 112 of the Administrative Decisions Tribunal Act 1997.

34 The challenge by the Law Society was made on the basis that the 1996 Information was defective and upon the assumption that the orders of the Tribunal were based solely upon its findings in the 1996 matter. During argument, the Appeal Panel drew attention to the findings of the Tribunal in matter no 36 of 1994. It was and is our opinion that the Tribunal’s order for strike off was based to some extent on its findings in the 1994 matter.

35 In relation to the 1994 matter, the Law Society’s position was unclear. Ultimately (transcript page 7 line 22) the Law Society was unable to inform the Tribunal whether the 1994 matter was procedurally defective or not, but could not exclude this possibility. In the supplementary written submissions for the Law Society filed February 2001, it is not conceded that the 1994 matter is defective for procedural defects.

36 In the result, the Law Society asserts and Mr Hughes agrees that the 1996 Information is void by reason of procedural defects in the preceding investigation by the Law Society. Mr Hughes asserts but the Law Society does not concede that the 1994 complaint was similarly defective. No evidence was given of the procedural irregularities said to have occurred.

37 Both parties to the appeal in the 1996 matter agree that the Tribunal below had no jurisdiction to entertain that matter. If this is so, the appeal from that matter cannot proceed. However and especially in view of Mr Hughes’ request that his appeal proceed nonetheless, we should not act solely upon the agreement of the parties where a judgment has been delivered in the matter.

38 The appropriate course is for the Law Society to provide evidence of the facts which render the Information void. If we are satisfied upon the evidence, we will not proceed to hear the appeal from matter No. 36 of 1996.

39 We consider that the same course should be followed for the 1994 matter, so that in the event of a further appeal, at least the facts will be known. If the Law Society forms the view that the investigation leading to the institution of the 1994 matter was procedurally flawed, we will receive evidence of those facts from the Law Society.

40 However regardless of whether the 1994 investigation was conducted in accordance with the relevant statutory provisions, it is our view that the judgment and orders of the Tribunal below are void by reason of the want of jurisdiction in the 1996 matter. The reasons are flawed by the failure to make separate orders in each of the matters before the Tribunal and for failing to identify the ground relied upon in making the order that the practitioner’s name be removed from the Roll. Although we agree with the submission of the Law Society that in all likelihood the order which was made was based substantially, if not solely, on its findings in the 1996 matter, it is futile to speculate.

41 It is not open to us to remit the 1994 matter to the same Tribunal to make separate orders in the 1994 matter if that Complaint is valid. The Tribunal below is functus and/or disqualified from further considering the 1994 matter by its hearing of the 1996 matter.

42 Subject to being satisfied by evidence of the matters set out above we find that the judgment and orders are null and void by reason of want of jurisdiction. Accordingly we hold the Law Society’s objection is established.

43 Subject to what has been said above, our finding will be that in relation to the costs of 10 April 2000, the Society has succeeded upon the jurisdictional question. However since we lack jurisdiction, we have no power to order costs of the application. In any event we would not be inclined to make an order for costs against Mr Hughes, whose attitude was frank and co-operative upon the hearing of the application and who substantially agreed with the Society’s submissions.


Directions
44 Accordingly we will stand the matter over to receive evidence from the Law Society on the matters we have referred to in our judgment. The affidavits should be served upon Mr Hughes. They do not need to be lengthy.

45 We do not anticipate that Mr Hughes will wish to respond to that evidence, however if he wishes to do so, we will receive evidence or submissions from him also. We are conscious that we have no power to order costs in relation to this appeal if we ultimately make orders as we have foreshadowed.

46 (a) The Law Society should file its evidence within four (4) weeks.

(b) Any evidence or submissions in reply from Mr Hughes should be filed and served within 2 weeks after service of the Law Society's affidavits upon him.
(c) If either party wishes to relist the matter for hearing in relation to that evidence, the Registry will allocate a convenient date.
(d) Any further hearing will be strictly limited to the further evidence or submissions on that evidence.

47 Thereafter, subject to the anticipated evidence and any further materials or submissions, we propose to make the following findings:
(a) The objection made 10 April 2000 by the Law Society to the jurisdiction of the Appeal Panel is upheld;
(b) Find that the Appeal Panel has no jurisdiction to hear the appeal in No 36 of 1996.
(c) Find that the decision and orders of the Tribunal made 29 June 1999 are void.
(d) The papers may be returned to the respective parties.

Paragraphs 42, 43 and Heading of paragraph 44 revised in accordance with Hughes (No2) v Law Society of New South Wales [2002] NSWADTAP 23