Khera v Jones (LSD) [2005] NSWADTAP

[2005] NSWADTAP 36

Appeal Panel - Internal

CITATION:	Khera v Jones (LSD) [2005] NSWADTAP [2005] NSWADTAP 36
PARTIES:	APPELLANT Jaswant Khera RESPONDENT Ian Jones
FILE NUMBER:	049025
HEARING DATES:	19/08/2004
SUBMISSIONS CLOSED:	08/19/2004
DATE OF DECISION:	07/12/2005
DECISION UNDER APPEAL:	Law Society of New South Wales v Khera (No.2) [2004] NSWADT 103
BEFORE:	O'Connor K - DCJ (President); Molloy GB - Judicial Member; Costigan M - Non Judicial Member
CATCHWORDS:	bias - summons - witness expenses
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	012024
DATE OF DECISION UNDER APPEAL:	05/31/2004
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997
CASES CITED:	Khera v Law Society of New South Wales [2005] NSWADTAP 29 Law Society of New South Wales v Khera (No 2) [2004] NSWADT 103 Hawkesbury City Council v Sammut [2002] NSWCA 18
REPRESENTATION:	APPELLANT In person RESPONDENT In person
ORDERS:	1. Order under appeal set aside; 2. The respondent’s application is remitted to the Tribunal, as now constituted, for redetermination; 3. No order as to the costs of this appeal.

1 The Appeal Panel recently delivered its decision in relation to the appellant Mr Khera’s appeal against disciplinary orders made by the Legal Services Division of the Tribunal (the Tribunal): see Khera v Law Society of New South Wales [2005] NSWADTAP 29 (21 June 2005). The Appeal Panel set aside the orders on the ground that the presiding member of the Tribunal was disqualified from sitting by reason of apprehended bias, due to his membership of the Law Society Council at the time certain resolutions were made relating to the investigation of complaints against Mr Khera. The Appeal Panel remitted the charges to be heard by a differently constituted Tribunal.

2 Some of the conduct the subject of the disciplinary proceedings belonged to the period when Mr Khera and Mr Ian Jones had practised in partnership. In the course of the proceedings Mr Khera had served a Summons to produce documents on Mr Jones. After the Tribunal’s decision was handed down on 9 February 2004, Mr Jones applied to the Registrar for reimbursement of his expenses and costs in complying with the Summons, as permitted by s 141 of the Administrative Decisions Tribunal Act 1997: see letter dated 10 February 2004. The Registrar referred the application to the Tribunal.

3 Section 141 provides:

‘ 141 Allowances and expenses of witnesses

(1) A person (other than a public servant) who is required to appear or give evidence before the Tribunal is entitled to be paid such allowances and expenses as are ascertained in accordance with a scale of allowances and expenses prescribed by the regulations.

(2) Subject to subsection (3), the allowances and expenses are to be paid by the party at whose request a witness is summoned.

(3) The Tribunal may order that the allowances and expenses of a witness referred to in subsection (2) be paid wholly or partly by the State out of money otherwise lawfully available.’

4 The Tribunal granted the application, and ordered Mr Khera to pay Mr Jones’ expenses and costs of compliance with the Summons: see Law Society of New South Wales v Khera (No 2) [2004] NSWADT 103 (delivered 31 May 2004).

5 This decision relates to an appeal by Mr Khera against that decision. Our decision has, necessarily, been delayed pending the resolution of the principal appeal.

6 On any view, the Summons was a burdensome one. It was described as follows in the Tribunal’s reasons:

‘It encompassed 13 paragraphs seeking what can only be described as a very wide range of documents. The first 7 paragraphs sought instruction files relating to former clients’ matters identified in the Information. It further sought as well as the “cheque books, deposit books, bank statements, receipt books and accounting records” for the trust and general account records of Kheras the Law Firm between 1 June 1992 and 1 February 1993, the trust and general account records “including but not limited to cheque books, deposit books, bank statements, receipt books and accounting records of Kheras the Law Firm recording transactions between the period of 1 September 1993 to date maintained by you in your capacity as receiver and manager of the partnership business between you and Jaswant Khera.’

7 While the Tribunal did make some directions limiting the scope of the Summons, it remained onerous. The Tribunal recorded that Mr Jones fully complied.

8 Mr Jones made a brief appearance before the Appeal Panel on the first day of hearing of Mr Khera’s main appeal. Mr Jones relied essentially on the points he had put to the Tribunal previously, in particular the contents of the letter to the Registrar dated 10 February 2004; and oral submissions he had made before the Tribunal.

9 Disqualification for bias goes to the jurisdiction of the Tribunal. The usual response of the courts to a jurisdictional flaw is to treat the decision as a nullity. As Mason P noted in Hawkesbury City Council v Sammut [2002] NSWCA 18 at [56], retrospective nullification (there a development consent found to be invalid because the use that the consent purported to authorise was prohibited) is the ‘usual incident of success in challenging ultra vires action’.

10 Applying similar logic, the present order must be set aside.

11 This is not the kind of case, we think, where we need to examine the debate occurring in the higher courts over whether there are circumstances in which orders in proceedings (or aspects of administrative action) should be treated as continuing to have legal effect even though the overall process within which they occurred has been found to be defective in a fundamental way: see generally Aronson, Dyer & Groves, Judicial Review of Administrative Action (3rd ed. 2004), ch 10.

12 This conclusion does not mean that Mr Jones’ application can not now be reconsidered. Mr Jones’ application will be remitted to the Tribunal, as it is now constituted, to rehear the Law Society’s Information.

13 We note that Mr Jones has claimed that he was put to enormous expense in professional time in responding to the Summons (his estimate of costs incurred is a little over $7000). While we make no comment on the reasonableness of that estimate, we take this opportunity to remind members of the Tribunal of the importance of ensuring that the summons process is not used in an abusive way, and care is shown in exposing to voluminous demands those called on to respond to summonses for documents. Having had cause to review the transcript of the proceedings in the course of considering the many grounds of Mr Khera’s principal appeal, there is, on its face, some strength to Mr Jones’ claim in his letter to the Registrar that, ultimately, the documents he was called on to produce played only a small part in the proceedings.

14 The Tribunal has a Practice Note relating to the issuance of summonses. It seeks to define a procedure for overseeing the justification for, and scope of, summonses. This Practice Note seeks, in particular, to address circumstances where they are sought to be issued by the litigant personally (as occurred here). This situation will often be a more problematic one than in cases where the summons is obtained through the agency of an independent legal practitioner who, in light of the practitioner’s duty to the court, might be expected to be observant of the need for fairness, reasonableness and conformity to legal principle when obtaining a summons.

Order

1. Order under appeal set aside.

2. The respondent’s application is remitted to the Tribunal, as now constituted, for redetermination.

3. No order as to the costs of this appeal.