Khera v Law Society of New South Wales (LSD)

[2005] NSWADTAP 29

Appeal Panel - Internal

CITATION:	Khera v Law Society of New South Wales (LSD) [2005] NSWADTAP 29
PARTIES:	APPELLANT Jaswant Khera RESPONDENT Law Society of New South Wales
FILE NUMBER:	049012
HEARING DATES:	3/06/2004, 19/08/2004, 14/02/2005 and 1/03/2005
SUBMISSIONS CLOSED:	03/01/2005
DATE OF DECISION:	06/21/2005
DECISION UNDER APPEAL:	Law Society of New South Wales v Khera [2004] NSWADT 25
BEFORE:	O'Connor K - DCJ (President); Molloy GB - Judicial Member; Costigan M - Non Judicial Member
CATCHWORDS:	actual bias - apprehended bias - error as to evidence
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	012024
DATE OF DECISION UNDER APPEAL:	02/09/2004
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Legal Profession Act 1987
CASES CITED:	R v Sussex Justices; Ex p McCarthy [1924] 1 KB 256 Li v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 125 Ebner v The Official Trustee in Bankruptcy; Clenae Pty Ltd v ANZ Banking Group [2000] HCA 63; (2000) 205 CLR 337 Webb v R (1994) 181 CLR 41 Commissioner of Corrective Services v Government and Related Employees Appeal Tribunal & Ors [2004] NSWCA 291 Livesey v New South Wales Bar Association (1983) 151 CLR 288 Re Refugee Review Tribunal; ex parte H (2001) 75 ALJR 982 Re Finance Sector Union of Australia; ex parte Illaton Pty Ltd (1992) 66 ALJR 583 Re Polites; ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78 Aussie Airlines Pty Ltd v Australian Airline Pty Ltd (1996) 135 ALR 753 Raybos Australia Pty Ltd v Tectran Corp Pty Ltd (1986) 6 NSWLR 272 S & M Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358 Carver v Law Society of NSW (1997) 43 NSWLR 71 Leeson v General Council of Medical Education and Registration (1889) 43 Ch D 366 Re S (a Barrister) [1981] QB 683 Vakuata v Kelly (1989) 167 CLR 568 Re Renaud; ex p CJL (1986) 60 ALJR 528
REPRESENTATION:	APPELLANT In person RESPONDENT I Wales SC
ORDERS:	1. Appeal upheld; 2. The orders of the Tribunal are set aside; 3. Information remitted to the Tribunal, differently constituted

1 This is an appeal against a decision of the Legal Services Division made under the Legal Profession Act 1987 (the LPA) and delivered 9 February 2004: Law Society of NSW v Khera [2004] NSWADT 25. In those proceedings the Law Society had applied for disciplinary findings and orders in relation to the professional conduct of a solicitor, Jaswant Khera (the appellant), born 1949, admitted to practice, 3 July 1987. The Tribunal examined the appellant’s conduct in relation to six matters belonging to the period 1990 to 1995. The Tribunal made adverse findings of various kinds in relation to three of the matters. It ordered that the appellant’s name be removed from the roll of practitioners, and that he pay the Law Society’s costs.

2 By virtue of s 171F of the LPA as in force at the time of the Tribunal’s decision, there is a right of appeal to an Appeal Panel of the Tribunal, which is governed in turn by the provisions of Part 1 of Chapter 7 of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act). There is a right of appeal on any question of law; and, with the leave of the Appeal Panel, the appeal may be extended to the merits: see ss 112-113. The appellant has contended that there were a number of errors of law affecting the Tribunal’s decision; and sought extension of the appeal to the merits.

3 The appellant’s grounds of appeal are wide-ranging, and traverse alleged errors of law as well as ones involving fact-finding. The appellant denies that he has done any wrong warranting striking off.

4 Two of the grounds of appeal related to bias. The appellant contended that the Tribunal proceedings should be set aside on the grounds of actual bias, or, at least, apprehended bias. In light of the material placed before the Appeal Panel at the original hearing of the appeal, on 19 August 2004, neither of these grounds of appeal commended themselves to the Appeal Panel. In the course of its deliberations the Appeal Panel requested further information about the circumstances that might be relevant to the claim of apprehended bias. The information supplied by the Law Society in response to the Appeal Panel’s query (letter dated 30 December 2004) caused the Appeal Panel to reconvene the hearing. A further hearing in relation to the new information took place on 1 March 2005. In light of that further information the Appeal Panel is of the view that the Tribunal decision must be set aside on the ground of apprehended bias.

5 This decision sets out the reasons for that decision. It also deals briefly with the contention that the Tribunal proceedings below were affected by actual bias; and dismisses it. It also deals with one other point of appeal raised by the appellant, that there was a material error of fact made by the Tribunal in relation to one of the matters that gave rise to an adverse finding against the appellant. We are satisfied that there was an error of fact, and correct it in this decision. On its own, we would not have regarded that error of fact as sufficient to warrant setting aside the decision.

Bias

6 A fundamental requirement of procedural fairness is that any proceedings must be conducted by a court or tribunal without bias. Justice ‘should manifestly and undoubtedly be seen to be done’: R v Sussex Justices; Ex p McCarthy [1924] 1 KB 256 at 259. Bias can be actual or ostensible.

Actual Bias

7 Drummond J in Li v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 125 summarised the principles relating to actual bias at 133-134 (citations omitted):

‘(a) Actual bias exists where the decision-maker has prejudged the case against the applicant, or has acted with such partisanship or hostility as to show that the decision-maker had a mind made up against the applicant and was not open to persuasion in favour of the applicant.

(b) The emphasis is upon the state of mind which affects the decision-making rather than elements of the process of decision-making taken in isolation.

(c) Proof of an intentional state of mind adverse to the party is not the only way of proving actual bias. Such bias may be subconscious, provided it is real.

(d) It is not sufficient proof of actual bias to show that the decision-maker has expressed views adverse to the party's position at an early stage of the proceedings unless there is also proof that those views were incapable of being changed in the course of the proceedings. Though relevant to proof of actual bias, displays of irritation or impatience and the use of sarcasm by the decision-maker during the hearing are not, without more, generally sufficient to establish such bias, proof of which requires a finding on a question of fact, having regard to all the circumstances of the case.’

8 Present Case. The appellant represented himself at hearing, as he has done before the Appeal Panel. He points to the fact that many of his numerous applications and objections were rejected. He claims that similar submissions from the Law Society were treated inconsistently with the rulings he received. The fact that numerous applications or objections are made and most are rejected may indicate no more than that the applications or objections were of little or no merit.

9 We have reviewed the transcript. It reflects no more than the kind of cut and thrust between the parties and with the bench that might be expected in a vigorously contested proceeding where the appellant’s career is at stake. Some indication that the Tribunal was not actually biased against the appellant is provided by the fact that it did not find proven the allegations of misconduct made against the appellant in respect of three of the six matters it examined. Accepting for the moment that the appellant is correct in asserting that some of the rulings were affected by error, such occurrences do not in themselves provide evidence of actual bias. More is required, and we are satisfied that this is not a case where the grave finding of actual bias, with its aspersion on the integrity of the process and, in the present instance, the personal integrity of the presiding member (Mr Robbert Fox) is open to be made.

Apprehended Bias

10 On the other hand, an allegation that a court or tribunal appears to be biased, and therefore its decision should be set aside, is less difficult to establish.

‘[A] judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide’: Ebner v The Official Trustee in Bankruptcy; Clenae Pty Ltd v ANZ Banking Group [2000] HCA 63; (2000) 205 CLR 337 per Gleeson CJ, McHugh, Gummow and Hayne JJ at [6] (footnotes omitted).

11 Their Honours continued:

‘That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.’

12 The ‘reasonable apprehension’ test is less stringent than the approach preferred in the United Kingdom (at least in the case of criminal adjudications: de Smith, Wolff & Jowell, Judicial Review of Administrative Action (5th ed 1995) [12-011]) – the ‘real danger’ test: see generally the discussion in Webb v R (1994) 181 CLR 41 at 50 ff per Mason CJ, McHugh J; and at 71 per Deane J. In the High Court cases prior to Ebner, the fair minded lay observer was usually also described as a ‘fair minded and informed’ observer, and we have approached the question raised by this case on that basis. The following observations of Deane J in Webb v R at 73 are, we consider, of direct relevance to this case (citations omitted):

‘If the test of a reasonable apprehension on the part of a fair-minded observer with knowledge of the material objective facts fell to be applied by reference only to those facts that were apparent at the time, there would be much to be said for the view that the real likelihood or real danger test should be retained to be applied in cases where some of the damaging material facts – whether prior, contemporaneous or subsequent – as ascertained by the appellate court were not known at the time of the proceedings. In my view, however, the material objective facts are not so confined for the purposes of the test. The fair-minded observer is a hypothetical figure. While the question is not settled by any decision of the Court, it appears to me that the knowledge to be attributed to him or her is a broad knowledge of the material objective facts as ascertained by the appellate court, as distinct from a detailed knowledge of the law or knowledge of the character or ability of the members of the relevant court.’

13 Recently the Court of Appeal referred to the special considerations that can affect the application of the principle to specialist tribunals. In Commissioner of Corrective Services v Government and Related Employees Appeal Tribunal & Ors [2004] NSWCA 291, Giles JA (with whom Sheller and Ipp JJA agreed) said:

‘22 In determining whether a decision-maker is disqualified by reason of an appearance of bias the question is whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial and unprejudiced mind to the resolution of the question he or she is required to decide: Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293-4; Ebner v Official Trustee (2000) 205 CLR 337 at [6]; Re Refugee Review Tribunal; ex parte H (2001) 75 ALJR 982 at [27].

23 The nature of the tribunal and the proceedings must, however, be taken into account. In Re Finance Sector Union of Australia; ex parte Illaton Pty Ltd (1992) 66 ALJR 583 at 583 it was said that “the precise practical requirements of [the Livesey] principle vary from case to case. They will be influenced by the nature, function and composition of the particular tribunal ”. Speaking of the Australian Industrial Relations Commission, it was said at 583-4 –

“The nature of industrial relations in this country makes it inevitable, that in a particular industry, the leading employer and employee organisations, and their officers, will be frequently involved in dispute with one another. Obviously the functioning of the Commission requires that its members participate in the determination of matters in circumstances where they have a familiarity with the industry in which the particular dispute arises, with the context of that dispute and, inevitably, with facts relevant to the dispute and with one or more of the parties to the dispute. In that regard, it has long been recognised that, in most cases, that familiarity is an advantage rather than a disqualifying factor.”
24 Again, in Re Polites; ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78 it was said at 86-7 that –
“ … the test in Livesey cannot be pressed too far when the qualifications for membership of the tribunal are such that the members are likely to have some prior knowledge of the circumstances which give rise to the issues for determination or to have formed an attitude about the way in which such issues should be determined or the tribunal’s power’s exercised. Qualification for membership cannot disqualify a member from sitting.”
25 And again, the system of judicial appointment from senior practitioners means that there will often have been past professional association between a judge and counsel or solicitors appearing in proceedings, or even a party. Mere past association will generally not be held to give rise to a reasonable apprehension of bias, although it is a question of degree: see Re Polites; ex parte Hoyts Corporation Pty Ltd at 91 and other cases collected in Aussie Airlines Pty Ltd v Australian Airline Pty Ltd (1996) 135 ALR 753 at 759-61. In Raybos Australia Pty Ltd v Tectran Corp Pty Ltd (1986) 6 NSWLR 272 at 276 it was said that public knowledge and acceptance of such past professional association was “built into the legal system”.’

14 Present Case. When the Appeal Panel first convened on 3 June 2004, the appellant submitted that Mr Fox was disqualified by reasons of his prior associations with the Law Society.

15 Involvement in Professional Association and Governing Body. The Law Society, as is well known, is the professional association to which many solicitors in New South Wales belong. It has had invested upon it by statute a range of regulatory and disciplinary functions relating to the conduct and practice of solicitors. Mr Fox is a practising solicitor, who has been an ordinary member of the Law Society for many years. He has also served on the governing body of the Law Society, the Council of the Law Society, over two periods of time between 1986 to 1989 and 1993 to 1995.

16 At the hearing on 3 June 2004, we rejected the appellant’s contention; and indicated that we would deal with the matter briefly in our final decision.

17 The Legal Services Division of the Tribunal is responsible for hearing and determining disciplinary matters affecting solicitors and barristers. The rules governing the appointment of members to the Legal Services Division provide for two classes of professional member – solicitor members and barrister members. In both cases, the Attorney General before making an appointment must consult the relevant governing body, in the present instance the Council of the Law Society. See the Tribunal Act, Schedule 2, Part 3, Division 1. This requirement is itself an indication that solicitor and barrister members are expected to have the confidence of the most senior body in their profession.

18 It will often be the case that they have served on the senior bodies in the profession. The Supreme Court has an inherent jurisdiction to regulate admission to and removal from the profession. As noted in argument, the Judges of the Supreme Court often include in their ranks past members and chairpersons of the senior bodies in the profession.

19 We are confident that a fair-minded lay observer fully informed of the objective facts would not regard the mere fact that a professional member of a disciplinary jurisdiction of the Tribunal belongs to the professional association or has served on its governing body, in circumstances where the professional association is also responsible for the conduct of disciplinary proceedings before the Tribunal, as requiring the member to be disqualified.

20 An example of the approach to be taken, involving the ascription to the fair-minded lay observer of a relatively obscure aspect of the practice of a profession, is provided by S & M Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358. In that case, the Court of Appeal (by majority) dismissed an appeal against the trial judge’s decision not to disqualify himself, the circumstances being that prior to appointment to the bench he had been retained as a barrister for many years by one of the parties. The majority (Priestley, Clarke JJA; Kirby P dissenting) imputed to the reasonable lay observer sufficient knowledge of the subject (here seen as the practices surrounding barristers’ retainers).

21 Involvement in Disciplinary Processes Affecting Practitioner under Notice. The problem in this case has, however, to do with the fact that during Mr Fox’s second period of service as a Law Society Councillor (1993-1995), some complaints against the appellant were under notice of the relevant Department of the Law Society, the Professional Conduct Department, and were the subject of administrative resolutions by the Council of the Law Society with Mr Fox in attendance; and by the Professional Conduct Committee of the Law Society, of which Mr Fox was a member though, on the evidence now known, not a member of the sub-committees that dealt with matters involving the appellant. The degree of Mr Fox’s involvement in dealing with complaints involving the appellant was not made known to the Tribunal, and only became known during the course of the Appeal Panel’s deliberations.

22 The following information was provided to the Tribunal when it convened for the first time on 9 May 2002, on that occasion to hear a procedural motion. The hearing proper commenced in October 2002 and extended over fourteen days, ending in December 2003. On 9 May 2002 Mr Beaumont of counsel appeared for the Law Society and the appellant appeared in person.

BEAUMONT (Counsel for the Law Society): Members of the Tribunal, before I proceed with any substantive argument there is an important matter that I need to raise on instruction. I am told by my instructing solicitor that Mr Fox, a member of the Tribunal, may have been on the Law Society Council a long time ago back in 1993, this matter has a long history, but at a time when the complaint was referred to the Council for its consideration. As I say I have no personal knowledge of this matter but my instructions are that that may have been the case and obviously the Law Society feels obliged to draw this matter to the attention of the Tribunal.

FOX: I have no personal recall of any of those matters, but I suppose at the end of the day it’s a matter for Mr Khera.

BEAUMONT: Yes, I suppose that’s right.

RESPONDENT: I have no objection in the [sic] Judicial Member Fox appearing in the Tribunal today.

23 It will be seen that the above statement gave the following information: that Mr Fox was a member of the Law Society Council in 1993; and though the words used are somewhat vague, that Mr Fox may have been a member of the Council when ‘the complaint’ was referred to the Tribunal. The precise position, as it transpired before the Appeal Panel, was that no formal referral of any complaint to the Tribunal by the Council occurred until a few weeks after Mr Fox ceased being a member of the Council.

24 The leading case on the question of whether a Tribunal member is disqualified from sitting because he or she was a member of the professional governing body at a time when the respondent in the disciplinary proceedings was under investigation by the governing body is Carver v Law Society of NSW (1997) 43 NSWLR 71 (NSWCA (Powell, Stein JJA, Sheppard AJA)) (Carver).

25 The headnote to the report of the case summarises the ruling in the case as follows:

1. A person who was a member of a professional governing body or its relevant committee when it instituted disciplinary proceedings to be dealt with by a tribunal generally ought to be disqualified from sitting on that tribunal on the grounds of apprehended bias.

2. It is immaterial whether the person took part in the decision of the body or committee or has any recollection of the matter.

3. A party cannot effectively waive a right without being aware of the facts giving rise to the right.

26 In Carver the member of the Tribunal whose participation had been put in issue had been a member of the Professional Conduct Committee of the Law Society and the Council of the Law Society during the time the complaints against the practitioner were under the notice of the Law Society. Most importantly he had been a member of the Council when it resolved to institute disciplinary action by referring the matters to the Tribunal. He had later been appointed to the Tribunal (then the Legal Services Tribunal) and was listed as one of a three-member panel to hear the Information laid against the practitioner. (At the time the listing rules of the Tribunal expressly referred to the possibility of former members of the Council sitting on matters which had been before the Council during their time as members of the Council, and expressly stated that this was not to be regarded as a disqualifying factor.) The Court of Appeal considered that these circumstances would give rise to a reasonable apprehension of bias in the minds of a fair-minded, fully informed lay observer.

27 At its hearing on 19 August 2004, the Appeal Panel had before it the following information, information more specific than that which had been given to the Tribunal: that Mr Fox had served on the Law Society Council over two periods of time, the first period being between 1986 and 1989 and, relevantly to this case, the second being between 29 October 1992 and 5 September 1995; and that the first resolution (Matter 2 in the list below) that might possibly be construed as a resolution to institute formal disciplinary proceedings against the appellant was made on 29 September 1995, 24 days after his resignation from the Council (which was in fact to take up appointment as a member of the Legal Services Tribunal).

28 As to the Matters that were the subject of adverse findings by the Tribunal below (Matters 1, 2 and 3), the Law Society advised that the resolutions relevant to those Matters were made by a single or joint Professional Conduct Committee on the following dates:-

• As to Matter 1 (Complaint received by Legal Services Commissioner, 20 September 1995) on 30 January 1997 and 13 March 1997. Further resolution 22 March 2001.
• As to Matter 2 (Complaint received by Law Society, 31 March 1993; also included within the Investigator’s investigation that was the subject of report to the Committee on 19 October 1995) on 29 September 1995, 19 October 1995 (this was seen as the initiating resolution, but 29 September 1995 was referred to out of caution), 14 December 1995, 21 March 1996 and 26 February 1998. Further resolution, 22 March 2001.
• As to Matter 3 (Complaint received by Law Society from solicitor on behalf of barrister, Mr Atkinson, who acted in the Punja matter, on 26 April 1994), on 21 March 1996.

29 If the headnote summary of the decision in Carver is accepted as accurate, these facts do not infringe the standard laid down there, as Mr Fox had left the Council before the first resolution that might be reasonably regarded as the institution of proceedings against the appellant was made.

30 The Appeal Panel in the course of surveying the material filed below and before the Appeal Panel, noticed that the very first formal resolution to be made by the Council bearing on the appellant’s professional conduct occurred on 7 October 1993 when an investigator into the appellant’s practice was appointed. This coincided with the time when Mr Fox was a member of the Council. The President sought further information from the Law Society. The reply led the Appeal Panel to make directions for the filing of further evidence and submissions, and further hearings were held on 14 February 2005 and 1 March 2005.

31 The following further facts emerged:

(a) Mr Fox had been present at the meeting of 7 October 1993 when the Council resolved pursuant to s 55 of the LPA to appoint an investigator (Mr Holmes) into the appellant’s practice, arising from several complaints made against the appellant. The recommendation for the resolution was made by the Professional Conduct Committee, with a legal officer of the Professional Conduct Department (Mary Young) providing a several-page background Memorandum dated 8 September 1993. One of the complaints it dealt with was later the subject of a formal referral to the Tribunal, and is one of the three that gave rise to adverse findings by the Tribunal (Matter 2 in the list above). (Ex I filed 21 February 2005, annexure A)

(b) Mr Fox had been present at a later meeting, on 23 March 1995, when a resolution to direct the appellant to attend for medical examination and for provision of a medical report to the Law Society was made pursuant to s 38A of the LPA. The recommendation for the resolution was made by the Professional Conduct Committee, again with a legal officer of the Professional Conduct Department (Mary Young) providing a several-page background Memorandum. (Ex J handed up 1 March 2005)

32 As to circumstance (a), the paper dated 8 September 1993 said that ‘two items of possible professional misconduct’ were required to be investigated. It named them as:

1. The possible misleading of the Law Society, including the possible falsification of documents, and

2. Persistent negligence with regard to the conveyance to Mr & Mrs Narayan and the solicitor’s refusal to accept responsibility therefor (Matter 2 before the Tribunal).

33 The first type of conduct mentioned above, ‘possible misleading of the Law Society’, also came before the Tribunal. In connection with some of the Matters it considered, there was an allegation that the appellant had misconducted himself in relation to the information and co-operation he had furnished to the Law Society, though the particulars differed from those mentioned in the Memorandum. Some of the complaints recounted in the Memorandum were of great seriousness; though, ultimately, only one of them found its way to the Tribunal.

34 The Memorandum referred to four separate complaints (one led to two files being opened) received against the appellant belonging to the period 17 September 1992 to 30 July 2003. The third of these complaints became Matter 2 in the proceedings before the Tribunal. The complaints are summarised in the report as: unethical conduct – approaching another solicitor’s client; failure to pay a third party; negligence relating to a conveyance; and misleading the Law Society. The text of the Memorandum goes further than this, and refers to allegations of misconduct by the appellant which included: that he had falsified a letter of reference from his first solicitor, that he had failed to pay third party fees due to another solicitor, that he had written a discourteous letter to a client of a solicitor with whom he had been in practice for a short time, as to several aspects of the Narayan Bonnyrigg conveyance matter (Matter 2 before the Tribunal), a complaint from his then current partner (Mr Ian Jones) alleging various forms of misconduct by the appellant in connection with his entry into partnership and his conduct within the partnership.

35 The investigator (Mr Holmes) subsequently produced two reports dated 16 February 1994 and 15 July 1994 in his capacity as Investigator.

36 As to circumstance (b), the Council’s resolution of 23 March 1995 adopted the recommendation made the same day by a Sub-Committee of the Professional Conduct Committee (the main Sub-Committee). At its meeting the main Sub-Committee had available to it the reports of Mr Holmes. The main Sub-Committee resolved to defer consideration of a number of complaints pending receipt of a medical report and dismissed another complaint. The minutes of the Sub-Committee meeting indicate that Mr Fox was not present. The Law Society’s affidavit for the Appeal Panel stated that Mr Fox was not a member of the main Sub-Committee, being a member of another Sub-Committee of the Professional Conduct Committee. We understood from this material, though it was not absolutely clear, that the Professional Conduct Committee has various sub-committees, and that Mr Fox held an assignment to a sub-committee that had had no involvement with the appellant’s case. Mr Fox was present at the Council meeting later that day.

37 The supporting Memorandum in this instance was also prepared by Mary Young, legal officer, and was 17 pages in length. It dealt in considerable detail with the appellant’s early career, beginning with his employment from February 1988 to March 1989 with Anthony M Davis and Company, its amalgamation with O’Haire and O’Haire and his continued employment there until 30 June 1989. It then referred to the appellant becoming a partner in a firm which included his name in the title, from 7 August 1989 to 17 February 1991. It noted that from 18 February 1991 until 30 September 1992 he was a sole practitioner. From 1 October 1992 to 3 September 1993 this firm was conducted in partnership with Mr Jones. From 4 September 1993 to 31 January 1995 he reverted to being a sole practitioner.

38 The relevance of this history is that the Memorandum records complaints from employing or partner solicitors in all the firms where he had an employment or partnership relationship. The investigator examined numerous files handled by the appellant during these times, and made numerous negative comments. The Memorandum records the comments made against the appellant by various solicitors interviewed, and his comments in reply. The author was not satisfied that there was a case to answer in respect of the complaints made by the first solicitor in the sequence, Mr Davis; though it did raise concern as to whether the appellant had misled the Law Society as to a certain matter.

39 The Memorandum includes some strong language, including expressions such as the appellant ‘has had a chequered career in the law’ and that his first two relationships with other practitioners ‘ended in acrimony’. Further accounts of breakdowns in relationships with later partners or employees, such as a Mr Danielletto, a Mr Wheeler and Mr Jones follow. There is a short reference made at page 14 to the state of the appellant’s health. The Memorandum is written in a newsy style, and speaks of the ‘intemperate tone’ of correspondence written by the appellant, and includes a sub-heading ‘The vultures circle’ recounting attempts by a large group of solicitors to make contact with the investigator to express complaints about the appellant, which the author ends with the comment: ‘Prudently, the Investigator declined an invitation to lunch with this group …’. Other matters of complaint involving practitioners are then dealt with. The final part of the document under the heading ‘Conclusion’ contains a number of statements negative to the appellant which we will not repeat in detail here.

40 The Memorandum concluded by setting out three matters arising from this litany which in the opinion of the author involved the misleading of an investigator or of the Law Society. The author expressed concern that the appellant might be suffering from a psychiatric illness, and this concern founded the recommendation for referral for medical examination.

41 The further history of this matter is as follows. On 12 April 1995 the main Sub-Committee and another Sub-Committee of the Professional Conduct Committee resolved to make available to Dr Woodforde a copy of the Holmes reports. Mr Fox was not a member of either of those Sub-Committees, and was not present at the meetings.

42 On 25 May 1995 the main Sub-Committee resolved to issue a letter to the appellant containing a formal direction to him to attend for a medical examination. Mr Fox, as noted earlier, was not a member of that Sub-Committee and was not present at that meeting.

Further Consideration of Carver

43 In Carver Powell JA gave the leading judgment. He reviewed the handling of the complaints against the practitioner in the relevant period, principally 1993 and 1994, and the formal resolution made to initiate disciplinary proceedings before the Tribunal, made on 7 July 1994. The Legal Services Tribunal commenced hearing the matter on 12 February 1996. One of the members had at the relevant times been a member of the Council of the Law Society and for some or all of that time a member of the Professional Conduct Committee. Powell JA noted, with surprise, that the listing rules of the Tribunal at that time specifically stated that a member with this kind of association with a matter that came before the Tribunal was not precluded from sitting. His Honour noted that the listing practice must conform to the common law principles relating to disqualification for bias, referring to the then leading High Court authority, Livesey.

44 His Honour went on to observe at 87 that:

‘Whatever may be the views of others, I must say that it is my view that it could not be said that a fair minded and reasonable observer who became aware that one of those who had been involved in the investigation of, and the making of decisions in relation to, matters to be determined by a tribunal of which that person was a member, could not reasonably entertain an apprehension that that person might not bring an impartial and unprejudiced mind to the resolution of the question involved.’

45 His Honour then examined the interchange that had occurred at the commencement of the proceedings between counsel for the practitioner and the Tribunal over the extent of the member’s connection with the case during his time as a member of the Council. His Honour noted, with concern, that counsel had not been informed that the member had been a member of the Professional Conduct Committee, a body ‘which had in fact considered any matter the subject of the complaint’ (90).

46 At 99 Powell JA referred to the four-part categorisation of the grounds upon which bias objections are based, as enunciated by Deane J in Webb v R at 74, and said that the present case fell into categories one (disqualification by interest) and three (disqualification by association). His Honour then went on:

‘While I accept that the mere fact that a judge, or a person in the position of a judge, is a member of a body which is a party to a proceeding may not necessarily give rise to a reasonable apprehension of bias (see, eg, Leeson v General Council of Medical Education and Registration (1889) 43 Ch D 366; Re S (a Barrister) [1981] QB 683), nonetheless it seems to me that, any person, who was at the relevant time, a member of the governing body, or of a relevant committee of the body, which initiated the proceeding in question, is to be regarded as being disqualified by interest or association or both from sitting as, or as a member of, any tribunal called upon to determine the proceeding in question, and it matters not that it may not be shown that the person in question took part in the relevant decision …’.

47 At 102 Sheppard AJA noted that:

‘A court exercising appellate or supervisory jurisdiction is required to consider the facts and circumstances of the matter before it and make a judgment whether a case of apprehended bias has been established. That exercise is not always without difficulty and sometimes minds will differ about the outcome of a particular case.’

48 In the case there was some lack of clarity in the evidence provided by the Law Society as to whether the member had, in addition to being a member of the Council, also been a member of the Conduct Committee. His Honour noted at 102, as we read the reasons – with concern, that it was ‘distinctly possible’ that the member ‘was a member of the Conduct Committee … which originally investigated matters ultimately relied upon before the Tribunal.’ He added: ‘Furthermore, he was a member of the Council of the Law Society at the same time it was decided to institute earlier proceedings against the appellant.’

49 It is apparent, we consider, especially from the remarks of Sheppard AJA but also from the remarks of Powell JA, that their Honours did not limit their concern to circumstances where the tribunal member had been a member of the professional governing body at the time of the formal decision to lay disciplinary charges. They were, we consider, equally concerned over situations where the member of the professional governing body had been a member of a committee that had charge of investigations into the practitioner; or had any material connection to action taken against a practitioner.

50 Mr Wales submitted that Carver’s case did not govern the present matter because the facts were different. He noted that there the presiding member had in fact not only been a member of the Council but also a member of the Professional Conduct Committee which itself considered the complaint against the practitioner. We do not see that as a material distinction, if a distinction at all. Here Mr Fox was a member of the Council, and a member of the Professional Conduct Committee, though it would appear not of either of the sub-committees that dealt with the appellant’s case.

51 He submitted that the reasonable lay observer should be expected to take into account matters of a general kind relating to the operation of the legal system. In the case of a judge, the hypothetical member of the public takes into account the fact that judges are by their training as lawyers, able to dismiss from their minds matters which are on their face prejudicial to the party before them. This aspect was emphasised in Vakuata v Kelly (1989) 167 CLR 568, for example at 572-573 per Brennan, Deane and Gaudron JJ; and their Honours drew attention to the undesirability of allowing a party, especially one who has had legal representation, to stand by and not raise an objection until the judgment is delivered, and after having found it to be unpalatable. Here the appellant was at the time of the proceedings a practising lawyer and should, we think, be treated in the same way as a represented party.

52 As to the present matter, Mr Wales referred to the specialist nature of the Legal Services Division of the Tribunal. As Mr Wales submitted, it is proper and in the public interest, that senior members of the profession serve in this Division. They will, commonly, also have been senior members in their professional bodies. It is not uncommon under professional disciplinary arrangements in Australia for private professional bodies (in the case of the legal profession in New South Wales, the Law Society and the Bar Association) to have invested in them statutory authority to investigate complaints against practitioners, and to engage in formal processes of investigation. Sometimes they also have the authority to make disciplinary findings and disciplinary orders. In New South Wales those powers, in the case of the legal profession, are for the most part allocated to the Tribunal. It is therefore not unusual for persons with the kind of background Mr Fox has to serve on the Tribunal. His background includes service on the Council of Law Society, and its functions include disciplinary ones.

53 Mr Wales’ submission is that weight should be given to the expectation that judges, including legally qualified presiding members of tribunals, have the training and experience to be confident that they will give dispassionate attention to the task of dealing with a case.

54 We agree, in general terms, and expressed similar views in rejecting the appellant’s submissions made on 3 June 2004. But the problem here has to do with Mr Fox’s direct involvement in the resolutions of October 1993 and May 1995, and having received the detailed memorandums mentioned.

55 Mr Wales further submitted that the degree of Mr Fox’s past connection with the matters that came before him many years later as a Tribunal member was minor and remote.

56 He submitted that it defied credibility to surmise that the reasonable member of the public would think that because a council member had been privy to documents which narrated and discussed, without coming to any final conclusion, a series of complaints against Mr Khera without more, he would be prejudiced. Mr Wales noted that the Professional Conduct Committee put before the Council matters pro and con the appellant in relation to whether certain complaints would be pursued. They were taking an appropriate approach to their investigative responsibilities, recommending that certain matters not be pursued on the evidence as it stood, and asking for an investigation to be undertaken as to matters where further evidence was desirable before reaching a conclusion.

Assessment

57 In light of the guidance given by the dicta in Carver, and keeping in mind the principles as expounded in a long line of cases, we consider that the circumstances revealed here would raise in the mind of a fair minded observer, fully informed of the objective facts, a reasonable apprehension that Mr Fox’s mind might have been affected by the contents of the two memorandums that had been placed before him in connection with the resolutions made by the Law Society Council in October 1993 and March 1995. The two memorandums were quite detailed. They referred to allegations of the utmost seriousness (fraud, forgery, misleading conduct, as well as serious practice failures). It is true that they belonged to a time, 1993 and 1995, far removed in time from when the proceedings commenced, 2002. Remoteness in time is, we think, a minor factor in an assessment of the kind the law requires. The fundamental objective of the principles relating to bias and the possible appearance of partiality is the maintenance of public confidence in the administration of justice.

58 Had full disclosure of all the facts relevant to the member’s connection with the appellant’s case been disclosed by the Law Society at the commencement of proceedings on 9 May 2002, we think, in all likelihood, the member would have withdrawn from the matter. In making this point, we acknowledge that this is not the way in which the law calls on the question to be addressed; but it is of some help in ascertaining how the question is to be answered.

59 We should add that it is of no moment that Mr Fox said that he had no recollection from his time as a Councillor of the complaints made against the appellant; and Mr Wales did not press any such submission.

60 In arriving at this conclusion, we have had regard to the dicta of the Court of Appeal in Raybos Aust v Tectran Corporation (1986) 6 NSWLR 272 where the Court referred to the importance of not lightly acceding to applications for disqualification on the ground of bias. The Court noted there the remarks of Mason J in Re Renaud; ex p CJL (1986) 60 ALJR 528 at 531-532 where his Honour reinforced the need to apply strictly the test for apprehended bias, as otherwise parties might be encouraged to make such applications in the hope of obtaining a judge who is perceived to be likely to be more favourably disposed to their case.

61 Waiver. Mr Wales submitted that, in the event of our finding that there were grounds for disqualification, the circumstances here fell within an exception to the bias rule, that of waiver: see generally, Vakuata esp per Dawson J at 577. He submitted that in this case the appellant, by his reply recorded in the transcript on 9 May 2002, had waived his right to raise any objection to Mr Fox to sitting. Even if we go beyond what was said on the day, and accept that the appellant should have linked the appointment of the investigator to the year 1993, which was given as a year relevant to the time of Mr Fox’s membership of the Council, he was not given any information that Mr Fox remained a member in 1995 (which might then have caused him to link Mr Fox to the medical examination resolution), nor in either instance was he told that supporting memorandums of some detail had gone to the Council, let alone their contents.

62 We are not satisfied that this is a case to which the waiver exception applies. It is clear that the appellant was not aware of the full facts as to Mr Fox’s membership of the Law Society Council. This case bears some uncanny resemblances to what occurred in Carver. Like Carver, all the relevant facts only became known at the hearing of the appeal. There was no ‘clear or effective waiver of the claim of apprehended bias’, to use the words of Stein JA in Carver at 102.

63 In these circumstances, in our view the Tribunal’s decision must be set aside; and the matter remitted for rehearing. We reserve on the question of costs of the appeal.

64 This ruling is sufficient to dispose of the appeal.

Error as to Evidence

65 In fairness to the appellant, we will, as noted at the outset of these reasons, deal with one aspect of the reasons for decision of the Tribunal. It relates to Matter 1, often referred to in the proceedings as the Manion Advice Issue.

66 Background: The appellant had acted for Mrs Ranjana Narayan in relation to a third party personal injury claim in 1993. The allegation was that the appellant omitted to file the client’s fresh particulars of claim and loss prior to a District Court pre-trial case conference hearing set for 7 December 1993 despite advice given to his firm by Mr Manion of counsel that this should be done and an undertaking given by counsel to court that this would occur. On the day of the pre-trial case conference the allegation is that the appellant pressed his client to settle, saying that Mr Manion had advised that otherwise the proceedings would be dismissed. Mr Manion gave evidence. The Tribunal accepted that no such advice was given, and referred to the high unlikelihood that competent counsel would ever advise that the case could possibly be dismissed pre-trial simply because of failure to lodge the fresh particulars of claim and loss.

67 The appellant alleged a number of errors in the reasons for decision on this point. We only comment here on one of them.

68 The Law Society had alleged that the appellant had falsely informed his client in June 1995 that her file had been costed and that a claim for costs had been made to the Defendant’s insurer (see Information, Ground 2, paragraphs 4 and 5). There is no precise finding by the Tribunal on this matter.

69 The Tribunal should, we consider, have made a positive finding one way or the other on this particular. The general tenor of the Tribunal’s decision at [26]-[32] suggests to us that the Tribunal, had it directed its mind precisely to the actual allegation, would have found in favour of the appellant in that the Society had not discharged the burden of proof to the Briginshaw standard.

70 The Tribunal does refer to the matter at [28] and [29]:

‘28 The practitioner says that he had the file costed on Mrs Narayan’s instructions in November 1994. In June 1995 the practitioner informed Mrs Narayan that her file had been costed and that a claim for costs had been made to the defendant's insurer. There is no evidence to confirm this. Mr Jones says that he ultimately had to prepare the account for the insurer when Mrs Narayan reinstructed him in 1995.

29 The evidence of Mr Jones [the appellant’s partner at the time] is more compelling than that of the practitioner, but we note the high level of animosity between the two. There is a strong indication that the practitioner failed to follow Mrs Narayan’s instructions to recover her costs for her. There is also a strong indication that the practitioner sought to mislead Mr Jones in relation to those matters. We also accept that there is a strong indication that the practitioner attempted to mislead Mrs Narayan to justify various claims for costs.’

71 The appellant criticised the statement in para [28]: “There is no evidence to confirm this”. The appellant has drawn the attention of the Appeal Panel to Exhibits “2” and “23” which were before the Tribunal. He submits that they show clearly that the file was in fact costed in November 1994; and that in June 1995 he informed Mrs Narayan that it had been costed and the claim for costs made to the Defendant’s insurer.

72 Exhibit “2” shows that a Bill of Costs was prepared by a legal costs consultant and provided to the appellant on 20 November 1994. Exhibit “23” shows that the appellant had in fact served the Bill upon the solicitors for the Defendant’s insurer. As part of Exhibit “23” there appear the formal Objections made by the solicitors for the Defendant to the Bill subsequently prepared by Mr Jones. At page 16 of the Objections (at page JK283 of this exhibit) this statement appears:

“The plaintiff failed to prosecute Bills served by Mr Khera in November 1994. Instead further bills of costs were served by Mr Jones in 1998”.

73 And, at page 2 of the Objections (at page JK280 of this exhibit), this statement appears:

“The partners in the plaintiff’s former firm had a dispute and the partnership ended. Whilst this is of no real concern to the defendants it led to two bills of costs being served for the party/party costs. One bill served by partner Khera and one served by partner Jones. The bills claim the same costs”.

74 There is an obligation on a fact-finding Tribunal to find facts as proved or otherwise and then to reach the appropriate legal conclusions. The Tribunal should have done so here.

75 There was more than ample evidence before the Tribunal in support of the appellant’s assertion that the file had in fact been costed and that a claim for costs had been made to the Defendant’s insurer. This particular should have been formally dismissed.

76 Costs. On the question of the costs of appeal, we are disposed to an order that there be no order for costs. The point of appeal that has caused us to set aside the Tribunal decision was identified by the Appeal Panel at a late stage. We will allow the parties 28 days within which to file any consent order or to make any application in respect of costs, in which case directions will be made.

77 Further Conduct of this Matter. In closing, we remind the appellant that Mr Wales noted in the proceedings before the Appeal Panel that if the Tribunal decision was quashed, the Law Society reserved the right to press again in any new proceedings all the allegations contained in the Information, as amended.

78 Other Matter. The Tribunal made an order for costs against the appellant in respect of costs incurred by a third party respondent to summonses issued at the request of the appellant. That decision is also the subject of an appeal to which the appellant and the third party are the parties. Now that this, the principal appeal, has been resolved, the decision on the other appeal will be attended to.

Order

1. Appeal upheld.

2. The orders of the Tribunal are set aside.

3. Information remitted to the Tribunal, differently constituted.