Hughes v Law Society of New South Wales (LSD) (No. 2)

[2002] NSWADTAP 23

Appeal Panel

CITATION:	Hughes (No. 2) -v- Law Society of New South Wales (LSD) [2002] NSWADTAP 23
PARTIES:	APPELLANT Colin Hughes RESPONDENT Council of the Law Society of New South Wales
FILE NUMBER:	999011
HEARING DATES:	27/02/2002
SUBMISSIONS CLOSED:	03/28/2002
DATE OF DECISION:	07/16/2002
DECISION UNDER APPEAL:	Law Society of New South Wales-v- Hughes [1999] NSW ADT 44
BEFORE:	Needham CA - (Deputy President); Foster GF - Judicial Member; Brehe D - Member
CATCHWORDS:	jurisdiction
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	36 of 1994 & 36 of 1998
DATE OF DECISION UNDER APPEAL:	06/29/1999
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Legal Profession Act 1987
CASES CITED:
REPRESENTATION:	APPELLANT In person RESPONDENT R Bellamy, barrister
ORDERS:	1. We make no orders but make the following findings:; (i) The objection to the jurisdiction of the Appeal Panel made 10 April 2000 by the Law Society is established.; (ii) The Appeal Panel has no jurisdiction to hear the appeals by Mr Hughes from the judgment in matters No 36 of 1996 and No 36 of 1994.; (iii) For the purpose only of determining the jurisdiction of the Appeal Panel, we find that the decision and orders of the Tribunal made 29 June 1999 are void.

1 On 21 December 2001 this Appeal Panel delivered judgment upon an objection by the Law Society of New South Wales to the jurisdiction of the Panel to hear the appeal by Mr Hughes. Those reasons are reported at [2001] NSWADTAP 42.

2 In our reasons, we found that the 1996 Information laid against Mr Hughes was void by reason of procedural defects in the preceding investigation by the Law Society. There being no agreement between the parties, or evidence from the Law Society, concerning the validity or otherwise of the 1994 Information against Mr Hughes, the Tribunal was unable to make any finding as to the validity of those proceedings. Nonetheless we held the judgment of the Tribunal below was flawed because the orders made were expressed to be made compendiously in all three of the Informations against Mr Hughes and failed to identify, in making the order to deregister Mr Hughes, whether and if so to what extent, reliance was placed on findings made in respect of the void 1996 Information.

3 Being of the view that the Tribunal had acted without jurisdiction in the 1996 matter, the Appeal Panel made no orders, but indicated its findings on the matters put before it by the parties and indicated the further findings that we proposed to make, upon being satisfied by evidence from the Law Society of the factual matters which avoided the 1996 Information. We also requested the Law Society to produce evidence relating to the 1994 Information in the event that it too was affected by similar defects in the preceding investigation of the complaints against Mr Hughes.

4 On 27 February 2002 the matter was relisted by the Law Society. Mr Bellamy of counsel appeared for the Law Society. Mr Hughes did not appear. He informed the Registry that he did not wish to attend and put certain matters to the this Panel in writing, which we have considered.

5 On 27 February 2002 the Law Society sought leave to file evidence concerning the current status of Mr Hughes on the role of legal practitioners. The application was refused. In our December 2001 reasons, this Panel made it quite clear that any further hearing would be strictly limited to receiving the evidence on the question of jurisdiction and hearing submissions on that evidence. We were not persuaded to alter that view.

6 Leave was given to the Law Society and Mr Hughes to file written submissions concerning the form of the proposed findings. Written submissions were received in March 2002 from the Law Society and from Mr Hughes. In addition, the Law Society filed an affidavit of Mr R J Collins made 13 March 2002 pursuant to the request made in December 2001.

7 In his affidavit, Mr Collins expresses the opinion that the Tribunal lacked jurisdiction to hear the 1994 Information and the 1998 Information, as well as the 1996 Information, by reason of failure to provide Mr Hughes with any, or adequate, reasons for its decision to commence those proceedings as required by s171J of the Legal Profession Act. Mr Hughes did not challenge the accuracy of the evidence relied on. We accept the evidence. Accordingly we are satisfied that each of the Informations against Mr Hughes was avoided by reason of procedural defects.

8 As stated in the earlier Reasons, paragraph 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 .”
9 Accordingly we find that the Appeal Panel lacks jurisdiction to entertain an appeal from the decision of the Tribunal in relation to any of the Informations which were before it at the hearing.

10 It follows that this Appeal Panel has no power to make any orders in the appeal.

11 The practical result is that the decision of the Tribunal below, in which adverse findings are made against Mr Hughes, has been published as [1999] NSWADT 44. So too have our Reasons, which make it abundantly clear that those proceedings were without jurisdiction by reason of procedural defects which occurred during the preceding investigations by the Law Society.

12 In order to make it abundantly clear that no orders were made or contemplated by our earlier Reasons, we will made a direction to the Registrar to correct the text of those reasons under s87 of the Administrative Decisions Tribunal Act as follows:

(a) The heading above paragraph 44 to be changed from “Proposed Orders” to “Directions”

(b) Insert at the beginning of paragraph 42: “Subject to being satisfied by evidence of the matters set out above”.

(c) Insert at the beginning of paragraph 43: “Subject to what has been said above, our finding will be that “.

(d) To publish Revised Reasons incorporating these corrections.

Findings of the Appeal Panel
13 We make no orders but make the following findings:
(i) The objection to the jurisdiction of the Appeal Panel made 10 April 2000 by the Law Society is established.

(ii) The Appeal Panel has no jurisdiction to hear the appeals by Mr Hughes from the judgment in matters No 36 of 1996 and No 36 of 1994.

(iii) For the purpose only of determining the jurisdiction of the Appeal Panel, we find that the decision and orders of the Tribunal made 29 June 1999 are void.