Law Society of New South Wales v Boland

[2001] NSWADT 35

CITATION:	Law Society of New South Wales -v- Boland [2001] NSWADT 35
DIVISION:	Legal Services Division
PARTIES:	APPLICANT Council of the Law Society of New South Wales RESPONDENT Marcus Stephen Boland
FILE NUMBER:	002012
HEARING DATES:	01/12/2000
SUBMISSIONS CLOSED:	12/20/2000
DATE OF DECISION:	03/05/2001
BEFORE:	Molloy GB - Judicial Member; Staff C - Judicial Member; Brehe D - Member
APPLICATION:	Jurisdiction
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Legal Profession Act 1987
CASES CITED:	Prakash -v- Bobb Borg Enterprises Pty Limited (1999) NSW ADT73 John Fairfax & Sons Limited -v- Police Tribunal of NSW (1986) 5 NSWLR 465 Gill -v- Walton (1991) 25 NSWLR 190 Barton -v- The Queen (1980) 147CLR 75 Herron -v- McGregor (1986) 6 NSWLR246 Metropolitan Bank Ltd -v- Pooley (1885) 10AppCas 210 Mills -v- Cooper (1967) 2QB459 at 467 Jago -v- District Court of NSW (1989) 168CLR23 Barwick -v- Law Society (2000) HCA 2 Securum Finance Limited -v- Ashton (2000) 3 WLR 1400 Carson -v- Legal Services Commissioner (2000) NSWCA 308
REPRESENTATION:	APPLICANT J Griffiths, barrister RESPONDENT N Gye, barrister
ORDERS:	1. Application dismissed; 2. Costs reserved; 3. To be listed for further directions and for hearing date of Information

Introduction:

1 By Information filed 10 August 2000 the Law Society alleged that the legal practitioner was guilty of professional misconduct on the grounds, inter alia, that in February 1993 and thereafter he failed to account for the sum of $1,000.00 held by him in trust and that without the consent of various clients transferred files and trust moneys belonging to them from the firm in which he was employed to his own legal practice. Other allegations are also made against the practitioner but those are the most serious.

2 By Application filed 17 November 2000 the practitioner applied to this Tribunal for orders that the hearing of the Information be permanently stayed or otherwise dismissed, alternatively that the hearing be vacated.

3 The issues raised by the practitioner as to the power of this Tribunal to permanently stay a filed Information is a matter of considerable importance for the administration of justice in this Tribunal. In short, the Law Society has submitted that this Tribunal has no jurisdiction to permanently stay proceedings properly brought before it for hearing. The Law Society contends that there is no express jurisdiction, neither does it arise by necessary implication and that the Tribunal has no implied jurisdiction nor any inherent jurisdiction to prevent an abuse of process. The practitioner has contended that, for reasons set out in more detail later in this Judgment, that there has been an abuse of process.

4 The primary threshold question that must be determined by this Tribunal is whether it has the jurisdiction as is contended by the practitioner.

Jurisdiction:

5 There is no doubt that this Tribunal is a creature of statute. Generally speaking the procedures of the Tribunal are governed by Administrative Decisions Tribunal Act No. 76 of 1997 , Section 73. The Law Society submitted that the power of the Tribunal not to hear a matter was determined solely by Section 73(5)(h) which states that the Tribunal "may dismiss at any stage any proceedings before it if it considers the proceedings to be frivolous or vexatious or otherwise misconceived or lacking in substance". And, so the argument goes, that described and set the bounds of the jurisdiction so that unless the proceedings were "frivolous or vexatious or otherwise misconceived or lacking in substance" then any other type of application, in particular an application which alleged "abuse of process", was not within the jurisdiction of the Tribunal such that even if the proceedings were an abuse of process the Tribunal was bound by statute to hear them.
Indeed, the Law Society argued that not only in those circumstances would the Tribunal be bound to hear those proceedings but the only court that could stay those proceedings would be a superior court exercising inherent supervisory jurisdiction.

6 Considerable reliance was placed upon a decision of this Tribunal in Prakash -v- Bobb Borg Enterprises Pty Limited (1999) NSW ADT73. It was submitted that the Tribunal in that case set the bounds of its jurisdiction by limiting its jurisdiction to Section 73(5)(h) if it was to dismiss proceedings other than for withdrawal by an applicant.

7 Prakash was an application by a complainant who alleged he had suffered racial discrimination at the hands of the respondent in the provision of services and made pursuant to the relevant provisions of the Anti-Discrimination Act1977. That Act contains a similar provision to Section 73(5)(h) in its Section 111(1) which provides that "(w)here, at any stage of an enquiry, the Tribunal is satisfied that a complaint is frivolous, vexatious, misconceived or lacking in substance, or that for any other reason the complaint should not be entertained, it may dismiss the complaint". That section is, of course, slightly wider than Section 73(5)(h) because it contains the words "or for any other reason the complaint should not be entertained", but nothing hangs upon those additional words for the purposes of this Judgment.

8 The Tribunal in Prakash was of the view that the complaint was not frivolous nor vexatious but formed the view that the complaint was both "misconceived" and "lacking in substance" and the complaint was dismissed.

9 There is nothing in our opinion in Prakash that would confine the Equal Opportunity Division of this Tribunal in hearing an Anti-Discrimination Complaint from staying its proceedings where there was an abuse of process and there is nothing in Prakash that limits its power of dismissal to Anti-Discrimination Act Section 111(1) or ADT Act Section 73(5)(h) . In this regard it is important to observe that the Tribunal in Prakash made this statement: "We do not consider this complaint to have been an "abuse of process"", and that statement in itself leads us to conclude that the Tribunal must have considered the concept of "abuse of process" as part of its consideration notwithstanding the fact that those words do not appear in any of the sections to which reference has been made.

10 The real question is: does a court or tribunal not having inherent powers (as are present in the Supreme Court) the power to stay proceedings before it for abuse of process? There is absolutely no doubt, and there is a volume of legal authority to this effect, that a superior court may exercise its inherent powers to supervise the justice system of this State outside the Supreme Court itself. There is no need to refer to authority for that proposition and there was no argument before us to the contrary. However, the submission by the Law Society was to the effect that absent such an inherent power, not available to an inferior court or tribunal, they being creatures of statute, then the power to stay for abuse of process was not available to that inferior court or statutory tribunal and only resided in the Supreme Court.

11 In our opinion that bald submission is, with respect, a commonly held view but is unsupported by authority. It is said that a tribunal like this tribunal "is an inferior court of record created by statute (such that) it can have no powers, jurisdictions or authorities other than those authorised by the (enabling) Act" - see for example the numerous supporting authorities set out by McHugh JA as he then was in John Fairfax & Sons Limited -v- Police Tribunal of NSW (1986) 5 NSWLR 465 at 476. In our opinion, however, that bald statement needs to be substantially qualified. It is qualified firstly by the overriding consideration of "fairness" which pervades, as a concept of natural justice, the operation of the courts and tribunals in this State.

12 In John Fairfax the Police Tribunal in that case made an order prohibiting the publication of evidence. The Court of Appeal found that order was in excess of jurisdiction because (at page 481) "(t)he purpose of the order was not to enable the Tribunal to act effectively within in its jurisdiction but to prevent people outside the Tribunal publishing evidence which had been given in public before the Tribunal. Accordingly the order was one the Tribunal simply had no power to make".

13 However, the Tribunal clearly had power, outside of its statute, to make orders necessary to enable the Tribunal to act effectively within its jurisdiction. At page 476 McHugh J.A. said (omitting references): "(s)ince the Tribunal is an inferior court of record created by statute, it can have no powers, jurisdictions or authorities other than those authorised by the Act. The Tribunal has none of the powers inherent in the courts of the common law - the Common Pleas, the Kings Bench and the Exchequer Chamber. Nonetheless .... there "can be no doubt that a court which is endowed with a particular jurisdiction has powers which are necessary to enable it to act effectively within such jurisdiction" ... (His Lordship in Connelly -v- Director of Public Prosecutions ) said he would regard such powers as inherent powers. The source of this inherent jurisdiction is the implied authority conferred on the judiciary to uphold, protect and fulfil the judicial function by ensuring that justice is administered, both in a particular case and as a continuing process, according to law and in an effective manner. Hence the failure of the legislature in setting up the Tribunal to confer a specific power to prohibit the publication of evidence does not necessarily invalidate the order which the Tribunal made in the present case".

It can be seen from the above that although that Tribunal had no specific statutory power to make a non-publication order it still had that power as part of its "inherent powers" provided that in exercising that power it did no more than was "necessary to enable it to act effectively within" its jurisdiction.

14 In Gill -v- Walton (1991) 25 NSWLR 190 the Court of Appeal stayed proceedings preferred against three medical practitioners in the Medical Tribunal. At page 210 Mahoney JA said: "The supervisory power of the Supreme Court is to be distinguished from the power which each court has to control the proceedings which are brought before it. In Barton -v- The Queen (1980) 147CLR 75, the High Court discussed the power of this Court to control proceedings commenced before it and held that it can control those proceedings, even to the extent of granting a permanent stay where there is an abuse of the court’s process or such an injustice that intervention is required " (our emphasis).

Obviously, the supervisory power extends when "intervention is required", namely in those circumstances where an inferior court or tribunal has failed in its duty to police its own procedures such that there is an abuse or injustice. There may, for example, be such an abuse or injustice where (as Mahoney JA points out further down at page 210) there is an "excess of jurisdiction; error appearing on the record; and contravention of natural justice or injustice ... a departure from the requirements of natural justice to the extent that there is an abuse of process and/or injustice of the kind (referred to in Jago -v- District Court of NSW ... " At page 211 His Honour said: "(i)t is settled that, if a party to a proceeding cannot or will not have a fair trial of the matters involved, the supervisory jurisdiction of the Supreme Court may be invoked ... (o)rdinarily, (the Supreme Court) will assume and expect that the Court or Tribunal in question will, by interlocutory or other orders do what is appropriate to minimise disadvantages which can be minimised".

In Gill -v- Walton Mahoney JA was of the view that in the circumstances of that case there would not be unacceptable unfairness, a view in which he was in the minority, but it does not alter the plain fact that the Supreme Court will exercise its supervisory jurisdiction where the inferior court has failed. And, so it seems to us, there must be in those passages quoted above, by necessary implication a power in the inferior court or tribunal to so regulate its affairs that there is no injustice and no, as in the circumstances alleged in this case, abuse of process.

15 In Herron -v- McGregor (1986) 6 NSWLR246 it was held that the Supreme Court has power to stay proceedings in disciplinary tribunals on the ground that their institution or continuation is harsh and oppressive and an abuse of process. In that case complaints were made against various medical practitioners in 1982, 1983, 1985 and 1986 alleging misconduct in a professional respect in the treatment and supervision of patients at various times in 1973, 1976 and 1977. The primary judgment was delivered by McHugh JA with whom the other members of the court agreed. At page 250 McHugh JA said: "The right of a civil court to stay proceedings on the ground that they are an abuse of its process is beyond controversy. In Metropolitan Bank Ltd -v- Pooley (1885) 10AppCas 210 at 214 Lord Selborne LC said that the power to stay proceedings "seemed to be inherent in the jurisdiction of every Court of Justice to protect itself from the abuse of its own procedure"". His Honour then examined the position with respect to criminal proceedings and clearly favoured the view that "every court has undoubtedly a right in its discretion to decline to hear proceedings on the grounds that they are oppressive and an abuse of the process of the court" (per Lord Parker CJ in Mills -v- Cooper (1967) 2QB459 at 467) and stated at 251: "I am strongly of opinion that not only has this Court the inherent power to stay its own civil and criminal proceedings for abuse of process but its general supervisory and protective power extends to protecting inferior courts and tribunals from abuse of their own procedure in relation to civil, criminal and disciplinary matters". Again, this implies in our view that the superior court will intervene where the inferior court or Tribunal has failed.

Mr Griffiths of counsel for the Law Society told us that he was unable to find any reported decision of an inferior court or tribunal which had exercised power to stay proceedings for abuse of process and the only authorities that he could find related, in his submission, to the power of a superior court exercising its inherent jurisdiction. That is not surprising because the decisions of inferior courts and tribunals are rarely reported and the intervention of a superior court exercising inherent jurisdiction only becomes necessary when the inferior court or tribunal has failed "to protect itself from the abuse of its own procedure".

However, it seems to us with respect, that the cases upon which the Law Society relied support clearly the proposition that the inferior court or tribunal has that inherent power.

The Law Society also relied upon Grassby -v- The Queen (1989) 168CLR1. This case involved an interpretation of Justices Act 1902 Section 41(6)(b) which provided that a magistrate hearing committal proceedings for an indictable offence was effectively bound to hear all the evidence for the prosecution and any evidence for the defence and then form an opinion as to whether a jury would be likely or not to convict the defendant of an indictable offence - if he/she was of the opinion that the jury would not be so likely to convict then the magistrate was bound to order the defendant to be discharged; on the other hand if the magistrate was not of that opinion he/she was bound to commit the Defendant for trial. The decision of the High Court was to the effect that it was no part of the magistrate’s function to consider the question of whether a prosecution of the accused on indictment would amount to an abuse of process. The reason for this was simple: the magistrate’s duty was specifically within section 41 and in the face of that specific section with its specific words (at paragraph 26) "there was no room in the face of these statutory obligations, couched as they are in mandatory terms, for the implication of a discretionary power to terminate the proceedings in a manner other than that provided. Nor is this surprising. True it is that a person committed for trial is exposed to trial in a way which he would not otherwise be, but the ultimate determination whether he does in fact stand trial does not rest with the magistrate. The power to order a stay where there is an abuse of process of the trial court is not to be found in the committing magistrate and the considerations which would guide the exercise of that power have little relevance to the function which the magistrate is required to perform".

16 Grassby was really confined to that point but in the course of his Judgment Dawson J said this (at paragraph 21): "(i)nherent jurisdiction is an elusive concept and the proposition that it arises from the nature of a court has been described as metaphysical ... (b)ut it is undoubtedly the general responsibility of a superior court of unlimited jurisdiction for the administration of justice which gives rise to its inherent power. In that discharge of that responsibility it exercises the full plenitude of judicial power. It is in that way that the Supreme Court of New South Wales exercises an inherent jurisdiction. Although conferred by statute, its powers are identified by reference to the unlimited powers of the courts at Westminister. On the other hand, a magistrate’s court is in inferior court with a limited jurisdiction which does not involve any general responsibility for the administration of justice beyond the confines of its constitution. It is unable to draw upon the well of undefined powers which is available to the Supreme Court. However, notwithstanding that its powers may be defined, every court undoubtedly possesses jurisdiction arising by implication upon the principle that a grant of power carries with it everything necessary for its exercise" ... (and at paragraph 23:) "it would be unprofitable to attempt to generalise in speaking of the powers which an inferior court must possess by way of necessary implication. Recognition of the existence of such powers will be called for whenever they are required for the effective exercise of a jurisdiction which is expressly conferred but will be confined to so much as can be "derived by implication from statutory provisions conferring particular jurisdiction". There is in my view no reason why, where appropriate, they may not extend to ordering a stay of proceedings".

It is plain from the above that an inferior court or tribunal has that inherent power. In our view it would be remarkable and a denial of justice if an inferior court or tribunal did not have power to decline to hear proceedings on the ground that the proceedings were oppressive and an abuse of the process of the court or tribunal. It would be an unwarranted burden upon members of this Tribunal to be forced to hear proceedings which were an abuse of the process of this Tribunal.

17 Finally, we refer to the High Court decision of Jago -v- District Court of NSW (1989) 168CLR23. In this regard we simply refer to the following:
a) At paragraphs 13 and 14 Mason J said: "(t)he continuation of processes which will culminate in an unfair trial can be seen as a "misuse of the Court process" which will constitute an abuse of process because the public interest in holding a trial does not warrant the holding of an unfair trial. Ultimately, it does not matter whether the problem is resolved in this way, by invoking a wide interpretation of the concept of an abuse of process, or by saying that courts possess an inherent power to prevent their processes being used in a manner which gives rise to an injustice. In either event the power is discretionary, to be exercised in a principled way, and the same considerations will govern its exercise".

b) Brennan J at paragraph 20 said: "The furtherest which a court can go is to regulate its procedures to avoid unnecessary delay, to do what can be done to achieve fairness in a trial and to prevent the abuse of its process"; and at paragraph 23 His Honour acknowledges that there is a power to stay proceedings which has a dual purpose to "prevent an abuse of process or the prosecution of a criminal proceeding in a manner which will result in a trial which is unfair when judged by reference to accepted standards of justice". His Honour also goes further in his judgment to discuss the concept of "an abuse of process" and states (at paragraph 25) that the "course of judicial innovation is facilitated when the old rubric is expressed in terms which defy exhaustive definition. "Abuse of process" is such a term. As remedies to suppress an abuse of process are designed to eliminate injustice, it seems a short step to say that the carrying on of proceedings amounts to an abuse of process when prejudice to one party is caused by delay on the part of the other. And if that amounts to an abuse of process, the remedy of permanent stay may seem to be appropriate"; and at paragraph 26: "However understandable the granting of a permanent stay causing prejudice might be, the remedy cannot be supported unless it would truly be an abuse of process to try the case".
c) Deane J at paragraph 3 said: "Once a court is seized of criminal proceedings, it has control of them. In the absence of applicable statutory provision, that control includes the power - either inherent or implied - to ensure that the court’s process is not abused by the proceedings being made an instrument of unfair oppression". And, importantly, at paragraph 7 His Honour said: "The power of a court to stay proceedings in a case of unreasonable delay is not confined to the case where the effect of the delay is that any subsequent trial must necessarily be an unfair one. Circumstances can arise in which such delay produces a situation in which any continuation of the proceedings would, of itself, be so unfairly and unjustifiably oppressive that it would constitute an abuse of the court’s process. Multiple prosecutions arising out of the one set of events but separated by many years or a renewed charge brought years after the dismissal of earlier proceedings for want of prosecution could, in a case where the relevant material had been available to the prosecution from the outset and depending upon the particular facts, provide examples. Where such circumstances exist, the power of a court to prevent abuse of its process extends to the making of an order that proceedings be permanently stayed".
d) And finally, Gaudron J said at paragraph 5: "Subject to any limitation or restriction to be found in statute, a court necessarily has power (whether that power is identified as inherent power or a power necessarily to be implied from relevant statutory provisions) to control its own process and proceedings". At paragraph 7: "The power of the court to control its own process and proceedings is such that its exercise is not restricted to defined and closed categories, but may be exercised as and when the administration of justice demands". And, finally, at paragraph 9: "The above general considerations lead me to think that, at least in civil proceedings, the power to grant a permanent stay should be seen as a power which is exercisable if the administration of justice so demands, and not one the exercise of which depends on any nice distinction between notions of unfairness or injustice, on the one hand, and an abuse of process, on the other hand".

18 From the authorities cited above, and from general consideration of the concepts of justice and fairness, it seems plain to us that the jurisdiction of this Tribunal to dismiss proceedings is not confined by Section 73(5)(h) to the matters referred to therein but is in fact wide enough to permit this Tribunal to dismiss proceedings if it is satisfied those proceedings or the continuation of those proceedings would amount to an abuse of process. In our respectful opinion it would be an extraordinary proposition to suggest that this Tribunal was bound as a matter of law to hear and determine matters brought before it that were in fact an abuse of process and, absent any application made to a supervisory court for a stay of those proceedings, be bound to deliver a decision binding upon the parties in circumstances where the proceedings supporting that decision were in fact an abuse of process.

19 By way of final observation, if this Tribunal stayed proceedings in circumstances that were not warranted, a supervisory court could direct this Tribunal to hear and determine those proceedings according to law. In other words, the exercise of power by this Tribunal is always open to challenge but that is the more preferable alternative than compelling this Tribunal to hear and determine proceedings which in its view are an abuse of process.

20 The submissions as to jurisdiction by the Society extended past ADT Act Section 73(5)(h). That Act also provides, in Section 3, that an object for this tribunal is to "make decisions at first instance in relation to matters over which it is given jurisdiction by an enactment"; and Section 37 provides that "the Tribunal has jurisdiction under an enactment ... if the enactment provides that Applications made be made to it for decisions in the exercise of functions conferred or imposed on the Tribunal by or under that enactment".

21 The Society also relied on ADT Act Section 45 which provides: "In determining an application for an original decision, the Tribunal has such functions as are conferred or imposed on the Tribunal by or under the enactment under which the application is brought".

22 In furtherance of those provisions the Society then relied on Legal Profession Act Section 167, being the relevant enactment for the purposes of ADT Act Sections 3, 37 and 45. Section 167 provides that:
"(1) Proceedings may be instituted in the Tribunal with respect to a complaint against a legal practitioner by an information laid by the appropriate Council or the Commissioner in accordance with this Part.
(2) The Tribunal is to conduct a hearing into each allegation particularised in the information (the Society’s emphasis).
(3) Before the commencement of the hearing, the legal practitioner must file a reply to the allegations in the information in accordance with the rules of the Tribunal and the directions of the Registrar of the Tribunal."

In reliance upon those provisions the Society submitted that in this case the practitioner asks this Tribunal to make final orders notwithstanding the absence of a hearing as required (so it was submitted) by the statute and absent any expressed power which would serve to confine the operation of Section 167. Furthermore it was submitted that the practitioner asks for such orders in the absence of any reply having been filed by him.

23 The Society further submitted that Legal Profession Act Section 171C provided that final orders can be made by the Tribunal "If, after it has completed a hearing relating to a complaint against a legal practitioner, the Tribunal is satisfied that the legal practitioner is guilty of professional misconduct or unsatisfactory professional conduct." (the Society’s emphasis).

24 As we understand this submission it goes not only to the concept of this Tribunal having some sort of implied or inherent jurisdiction but also to the interpretation of Section 167 Legal Profession Act. It is plain to us, however, from a review of the authorities cited above and also from the consideration of the basic principles enshrined in our law pertaining to natural justice and the right of a person against whom an allegation is made to a fair and just hearing, that Section 167 must be read subject to those basic principles. Indeed, in our view, they are so basic that it would take very strong words (if this was at all possible at law) to negative them in a particular case. This is an area of law in which there are legitimate and contradictory opinions and there is no need for this Tribunal to express a view because in this particular case the issue simply does not arise. The reason for this is simple: Sections 167 and 171C are subject to those overriding legal principles to which we have made reference so that in a proper case a practitioner can quite properly file in this Tribunal a formal Application seeking a stay of proceedings on legitimate alleged grounds without having filed a formal Reply and this Tribunal is obligated as a matter of fairness and justice to deal with that Application because, if made out, then the Tribunal as a matter of justice and fairness ought not to conduct the hearing in circumstances where there has been, for example, an abuse of process. As we understand the argument advanced by the Society this Tribunal is obligated to conduct a hearing pursuant to Section 167(2) even though the conduct of such a hearing would be an abuse of process - for reasons stated above this submissions is rejected.

Is there an abuse of process?:

25 Mr Gye of counsel for the practitioner submitted that there were two primary issues to be considered on this question. The first was the delay in the Law Society bringing the current proceedings and the second was the alleged prejudice that would be suffered by the practitioner in preparing and conducting his defence if the matter was to proceed.

26 No evidence was given by the practitioner as to prejudice. No formal Reply has been filed to the Information. As we understand Jago the onus is on the applicant practitioner to demonstrate actual prejudice rather than simply relying on "presumptive prejudice" but, as Gleeson CJ said in Gill -v- Walton (at page 198) claimants "nevertheless refer to and rely upon the practical considerations as to the usual consequences of delay .... "Memories fade, relevant evidence becomes lost". In the very nature of the adversarial process, which applies in the Medical Tribunal as well as in the ordinary civil and criminal courts, a person’s capacity to wage a forensic contest in defence of conduct which occurred some fifteen or more years earlier may reasonably be expected to be diminished by the lapse of time. That is a matter of common experience and commonsense".

In Gill -v- Walton material was put before the court by way of affidavit "which set out to establish particular disadvantages which have resulted from the delays in making the complaints". No sworn material was placed before us. The applicant submitted, through his counsel, that the events giving rise to the Information occurred on or about 9 February 1993. Whether that statement is correct in all respects is somewhat doubtful. At least in the case of Matich the event allegedly took place on 21 August 1992 and it is not clear from the Information when it is alleged that the files and trust moneys were transferred to the practitioner’s own business but one might infer those activities took place around and about 30 June 1992 when he ceased to be an employed solicitor and commenced practice under his own name.

27 It was submitted that at least by 12 October 1993 the Society was aware of the factual basis for any possible disciplinary proceedings, that there was no impediment to the Society bringing those disciplinary proceedings, that somehow or other the Society delayed in bringing those proceedings until 17 November 1999 when an Information was laid in this Tribunal but not proceeded with, such Information being filed notwithstanding the Society was aware of the hearing before the High Court in the matter of Barwick -v- Law Society and it was not until after the Barwick Judgment that the Society applied to the Legal Services Commissioner seeking the exercise of his discretion to lay the currently filed Information notwithstanding that the conduct alleged took place more than three years before the Information was filed. Suffice it to note that the Commissioner has accepted the submission by the Society and has made an appropriate determination under Legal Profession Act Section 137(2).
Pausing at this point we observe that the letter from the Commissioner to the practitioner 15 February 2000 refers incorrectly to Section 138 and in purporting to exercise his discretion to accept the complaints out of time the Commissioner again and, again incorrectly, refers to Section 138(2), and this error was carried through to the agreed Chronology tendered as an exhibit in these proceedings. Of course, the three year time limitation on the making of complaints and the exercise by the Commission of his discretion to accept complaints out of time is not contained in Section 138, rather in Section 137. No issue was agitated by the parties on this aspect and absent any argument we shall regard the Commissioner’s exercise of discretion as having been properly made under Section 137(2).

28 There is no doubt in our mind that the chronology of events indicates extraordinary and effectively unexplained substantial delays by the Law Society in bringing disciplinary proceedings against this practitioner. It could not be said in this matter that the Society has covered itself in glory. In other factual circumstances and notwithstanding the discretion exercised by the Commissioner, there may well be good reasons for granting a stay on the grounds of delay. There is much authority for that. But, in the particular circumstances of this case, we are not persuaded that the lapse of time in itself is such that any hearing is necessarily unfair so that any finding and any decision of this Tribunal would bring the administration of justice in to disrepute. Proceedings before this Tribunal are grave and weighty and can have serious consequences. The interests of a legal practitioner must be safeguarded in appropriate circumstances, but "the touchstone in every case is fairness" (per Mason CJ in Jago at paragraph 19). His Honour went on to say in paragraph 20 "The test of fairness which must be applied involves a balancing process, for the interests of the accused cannot be considered in isolation without regard to the community’s right to expect that persons ... At the same time it should not be overlooked that the community expects trials to be fair and to take place within a reasonable time after a person has been charged. The factors which need to be taken into account in deciding whether a permanent stay is needed in order to vindicate the accused’s right to be protected against unfairness in the course of criminal proceedings cannot be precisely defined in a way which will cover every case. But they will generally include such matters as the length of the delay, the reasons for the delay, the accused’s responsibility for asserting his rights and, of course, the prejudice suffered by the accused ... In any event, a permanent stay should be ordered only in an extreme case (our emphasis) and the making of such an order on the basis of delay alone will accordingly be very rare (our emphasis)".

29 Each case must depend upon its own peculiar facts. In the case of a criminal trial it is rare for an accused to have made a statement, prior to hearing, which may be taken to amount to some sort of prima facie admission of the charge. Normally, one would assume, matters where there has been a grant of stay in criminal proceedings (and presumably also in civil proceedings), are matters where there is no arguable admission. So, in a criminal prosecution where there has been a delay and a plea of "not guilty" and that plea has been sustained from the very beginning, one can understand an accused complaining about a delay in bringing a prosecution against him/her or a delay in proceeding with a prosecution once commenced. A similar observation may well be able to be made in a professional disciplinary context where the professional has protested his/her innocence from the very beginning.

30 This case is, however, substantially different. It is important to recognise that the most serious allegation made against this practitioner is that he failed to account for the sum of $1,000.00 held by him in trust. That is a very serious charge to be brought against any legal practitioner.

When the allegation was initially put to him the practitioner wrote to the Law Society a detailed letter dated 7 October 1993 in which he made these statements (our emphasis):

"We advise that Mr Boland calculated sufficient costs in order to equate with the required payout to Mr Champion of $53,000.00, as there was a shortfall of funds in trust from the client amounting to $705.64, which the client were not in a position to pay at the time.

In good faith Mr Boland physically drove up to Forster on Saturday the 6th of February 1993 and hand delivered the mortgage payout cheque to Mr Champion. Mr Boland then remained in the Forster region for that weekend, and luckily so, he was again contacted by Mr Champion on the next day being Sunday the 7th February 1993, who advised him that a discrepancy amount still existed, and that he believed the $1,000.00 was still due and owing to him under the facility.

Mr Boland then travelled once again to meet with Mr Champion on the next day being Monday the 8th February 1993 and handed him a further a final trust cheque in the sum of $1,000.00. At all times Mr Boland believed this payment to be appropriate and within the bounds of trust account practice as he had previously rendered bills for part costs and disbursements which meant that he had sufficient costs "in reserve" upon which to draw in the trust account as and when required.

Appropriate ledger entries were then made on the 9th of February 1993 upon Mr Boland’s return to Sydney and our offices.

We advise we have tried to distil a policy of rendering bills for part costs and disbursements when necessary so as to provide a more even cash flow to the firm’s operations throughout the past year, and understand this practice to be more than permissible and appropriate at times ....

However, should you believe that further investigation is necessary, we would be pleased to make temporary arrangements to rebank any trust sums that you believe to represent a deficiency, back into trust, until such time that the issue is finally determined".

31 It seems to us that those quotations from the legal practitioner’s letter to the Law Society 7 October 1993, in particular those portions which we have italicised, may well be taken to have amounted arguably to an admission by the practitioner that he has failed to account for the $1,000.00 in that he drew the $1,000.00 on his trust account to pay to Mr Champion in circumstances where there was no money standing to the credit of Mr Champion in his trust account. We make no finding at all in respect of that issue but we simply make the above observation to make it plain that in our opinion this particular case now before us falls outside the "normal" range of matters where it might be alleged that there was an abuse or process because of delay in bringing or prosecuting proceedings.

32 We are reminded of the observations of Kirby P in the matter of Jago quoted in the High Court by Toohey J at paragraph 31: "This is not, after all, a case the trial of which will involve, as many corporate offences do, complex documentation and interrelated transactions. In such cases the erosion of memory over time could work a serious injustice to an accused person. Here, the basic Crown case will be proof of the financial transactions said to have been made without authority. That proof will rely very heavily upon cheque butts and bank records. No witnesses have died, the documentary evidence remains for the jury’s consideration and, if so desired, for the accused’s explanation". And earlier in Jago Deane J said at paragraph 13: "The delay on the part of the prosecution in the present case was an extraordinary lengthy one. The reasons advanced by the prosecution to justify or explain it are unpersuasive. Nonetheless, I can see no basis for disagreeing with the conclusion of the majority of the Court of Appeal that the effect of the delay was not such that would produce a situation where any trial of the appellant would necessarily be an unfair one. Nor was its effect to make any continuation of the proceedings so unfairly oppressive of the appellant that it would constitute an abuse of process. As Kirby P pointed out, the appellant ".... has lost no witnesses. He claims no special prejudice and he acknowledges that the case of the prosecution is essentially a simple one: simple to present and therefore by inference, simple to test, to criticise and possibly, to answer"".

33 It seems to us that the case for the Law Society is primarily dependent upon documentation. No doubt that can all be tested in the appropriate fashion and any prejudice to the practitioner dealt with appropriately at hearing by this Tribunal. It also seems to us that the quoted paragraphs in the letter from the practitioner to the Law Society 7 October 1993 may well be taken to have arguably amounted to an admission - at the very least they cry out for explanation - and in all the circumstances we are unable to see an appropriate level of behaviour by the Law Society or the Legal Services Commissioner which would amount to an abuse of process or which would for some other reason persuade us to grant a permanent stay of proceedings.

34 With regard to the question of prejudice we have referred above to the failure of the practitioner to give evidence on this application. That in itself is not fatal but we are assisted only by the unsupported submissions of his counsel. Firstly he submits that the practitioner has not held a practising certificate since 1995, it will be necessary to locate documents, there is no ready access to documents and the whereabouts of documents are not known. What documents counsel refers to is not clear because the onus is always on the Law Society to produce the relevant documents and it is not suggested that the solicitor has in his possession documents that may cast a different hue upon the material that may be sought to be led by the Law Society. It is further suggested that there is a real issue as to whether or not "the documents" exist. It is suggested that relevant witnesses will need to be identified, that much time has passed, they may have moved from their previous addresses and may be interstate. No attempt is made to identify any relevant witnesses. It was also submitted that by the reason of effluxion of time the recollections of witnesses may be effected but, again, no attempt has been made to identify these witnesses. After all, a considerable body of material produced by the Law Society is in the possession of the practitioner and his legal advisers yet it is not suggested that there may be material or witnesses who could, or might, throw a different light upon the allegations.

The conduct of the Law Society:
35 The practitioner relied on the observations of Chadwick LJ in Securum Finance Limited -v- Ashton (2000) 3 WLR 1400 at 1412 when His Lordship said: "The more ready recognition that wholesale failure as such to comply with the rules justifies an action being stuck out as long as it is just to do so will avoid much time and expense being incurred in investigating questions of prejudice and allow the striking out of actions whether or not the limitation period has expired" as justifying a submission that the Law Society allowed to expire the three year time limitation in the Legal Profession Act for the preferment of an Information against the practitioner as conduct amounting to an abuse of process.
The key however to the passage quoted is the words "as long as it is just to do so", and that is the key question in this case. It was submitted that the Law Society had not disclosed the existence of any protocol or manual by which it manages the practice and procedures of disciplinary proceedings. It was submitted that it perhaps could be assumed that if such manual or protocol existed there would be several propositions of law contained therein, being:
a) that there is a time limit of three years between the making of the complaint and the bringing of proceedings;
b) after a complaint the Society or Commissioner must initiate the investigation of the practitioner;
c) the practitioner, in disciplinary proceedings, has a right to a speedy trial.

36 It was submitted that the Society failed to take heed of any of these propositions, said to be propositions of law. It was said that by September 1995 the Society had informed the practitioner that, subject to any submissions by the practitioner, it had formed the view that the then Legal Services Tribunal would uphold charges of professional misconduct in relation to the same matters now before this Tribunal, and yet no action was taken. The Society it was said allowed the time limit to pass without excuse and without offering any cogent explanation. The Society was sufficiently seized of the relevant facts to have initiated a complaint itself no later than 1995, it did not so do, it could have initiated a complaint at any time after 1995, it did not so do, and it delayed until 2000 to make a submission to the Commissioner that he exercise his discretion under Legal Profession Act Section 137. It was submitted that such conduct is an abuse of process as described in Securum . Chadwick LJ said that an additional ground for summary dismissal of proceedings is the principle above italicised and "which does not depend upon the need to show prejudice to the Defendant or that a fair trial is no longer possible", but the key words "as long as it is just to do so" have not in our view been satisfied in this case. In our view on this aspect justice requires this matter to proceed.

37 Finally, on the question of the conduct of the Society, on 11 January 1999, some six years after the conduct alleged against the practitioner came to the notice of the Society, the Society by letter addressed to the practitioner advised him that its council had resolved on that day that he be issued with a Practising Certificate after a period of non- practice, the Certificate to be limited to the effect that he would be entitled to practice as an employed solicitor and barrister. Mr Guy submitted that by a 11 January 1999 the Society had formed a view that it could not proceed with any proceedings in relation to professional misconduct and it was in a position to renew the practising certificate and also in a position to raise with him again, if it wished to, the questions of alleged professional misconduct.

38 In the course of argument the Presiding Judicial Member observed that it seemed "strange having resolved that four matters be sent to the Tribunal in 1995 and 1998 (the Council proposed) to issue a practicing certificate after a period of non-renewal".

39 There is no doubt that this action by the Council (although ultimately a practicing certificate did not issue but for reasons apparently unassociated with the instant allegations) is yet a further complicating factor but in our view does not serve to disentitle the Council from proceeding neither does it vitiate the Commissioner’s consent.

40 There is no doubt that the Society when it wrote its letter 11 January 1999 was appraised of the material, or most of the material, on which it would seek to rely in these proceedings. Although no explanation has been offered by the Society for its delay and although there does not appear, on the facts as adduced before us, any prima facie reason for the delay, or even a series of individual delays, we would not be prepared to conclude (even if relevant) that the left hand did not know what the right hand was doing neither would we be prepared to conclude that because of that material, absent proof before this Tribunal, the Council was precluded as a matter of law from issuing to the practitioner a practicing certificate.

The Barwick Point:
41 The practitioner submitted that the Society had not complied with the mandatory requirement for investigation as specified in Barwick -v- Law Society (2000) HCA 2. It was submitted that in circumstances where there was a failure to comply with that mandatory requirement that failure deprived the Tribunal of jurisdiction.

42 There was no argument before us that if this Tribunal determined that Barwick had not been followed then that failure deprived this Tribunal of jurisdiction. There are two questions: firstly, what did Barwick decide and secondly,has the Society complied with Barwick such that this Tribunal is seized of jurisdiction.
There is no need to review the whole history of Barwick . The key in Barwick is in paragraph 25 of the joint Judgment of Gleeson CJ, Gauldron and McHugh JJ. That paragraph sets out the facts that created the problem, namely that on 17 July 1997 the Professional Conduct Committee of the Society considered further allegations against the practitioner, made certain recommendations to the Council which were adopted, the Council then resolved that a complaint against the practitioner be initiated pursuant to Legal Profession Act Section 135 in relation to the further allegations and the Council "then immediately resolved that (it) was satisfied that the (practitioner) would be found guilty by the Tribunal of professional misconduct and that proceedings be instituted in the Tribunal pursuant to Section 155(2) of the Legal Profession Act".

43 The difficulty with those facts (facts which were also present on an earlier date 8 June 1995) was that the resolution to initiate a complaint was followed immediately by a resolution to institute proceedings in this Tribunal. The High Court reviewed the Act, and in particular amendments which created the office of the Commissioner, and concluded that (paragraph 62) "(t)he proper focus of attention should not be whether enquiries were made by the Council before the initiation of the complaint, or after the laying of the information. The focus of attention should be whether, in the events that happen, there was an investigative stage which permitted the requirements of Division 5 to be satisfied, and the legislative purpose of the Division to be fulfilled. In some cases, that stage might be brief and might not necessarily involve the gathering of information not already in the possession of the Council. It must, however, be such as to permit monitoring of the investigation by the Commissioner, and, at the conclusion of the stage, .... the Council must address the issues raised for consideration by Section 155 and record its decision and its reasons for the decision. The capacity of the Commissioner to monitor an investigation is not an empty formality. In a given case the Commissioner might consider that a complaint is not being treated seriously enough or has been misunderstood, or has been inadequately investigated. Questions might in turn arise as to the accountability of the Commissioner."
In the circumstances, the High Court concluded that the procedures of initiating the complaint and the procedures for making decisions under Section 155 were "telescoped" so that " there was nothing that can be described as the investigative stage required by Division 5". The High Court concluded that (paragraph 64) "(i)t would be inconsistent with the legislative purpose to conclude that the Tribunal has jurisdiction to deal with a matter brought before it circumstances where the procedures established by Division 5 have been substantially bypassed".

44 That is the ratio of the decision as pertains to the matter now before us. It is important to note that the High Court, paragraph 54, observes that "not every departure from the procedures laid down by Part 10, and, in particular Division 5, will result in a lack of jurisdiction under Section 167. However, one of the purposes of the legislation is to bring about the result that, before a matter comes to the Tribunal, it will have been the subject of a complaint which was the subject of an investigation monitored by the Commissioner and considered and dealt with by a Council or the Commissioner under Section 155". And further in paragraph 64, the Justices observed that in Barwick "there was such a departure from the requirements of Division as to deprive the Tribunal of jurisdiction". What needs to happen, therefore, is to examine whether there is sufficient material before us that would satisfy compliance with Barwick .

45 There are therefore two steps:-
a) There must be an investigation into each complaint. The investigation may be carried out by the Commissioner (Section 147A) or by the Council (Section 147A, 148). The Commissioner is also to monitor investigation by a Council and may give directions to a Council investigating complaints (Sections 149 and 150).
b) After the Council or the Commissioner has completed an investigation the Council or Commissioner must institute proceedings in the Tribunal if satisfied that there is a reasonable likelihood that the practitioner will be found guilty by this Tribunal of unsatisfactory professional conduct or professional misconduct (Section 155). The satisfaction of the Council or the Commissioner can only be reached after considering the results of the investigation process.

It is clear to us that the onus rests on the Council to satisfy the Tribunal that Barwick has been followed. This follows from the reasoning in the High Court so that even on an ex-parte application the Society (or the Commissioner) has to file as part of its case sufficient evidence to show that Barwick has been followed. The High Court appears to have regarded the legislative steps as so fundamental such that a failure to follow those steps results in a lack of jurisdiction in this Tribunal, and it must follow that in order to be satisfied as to its jurisdiction this Tribunal must require the Council (or the Commissioner) to produce sufficient evidence to enable the Tribunal to be satisfied that Barwick has been followed. In the course of argument learned counsel for the applicant/ practitioner suggested that once the issue of Barwick is raised by the practitioner then the Society bears the onus of proof of establishing jurisdiction. For our part we are of the view that the onus rests with the Society as part of its case and is not a matter that has to be raised by the practitioner. Unfortunately, that places a heavy evidentiary and costs burden on the Society (or the Commissioner) but that must be the natural result of the Barwick decision.

46 We would go so far as to suggest that in the future the Society or the Commissioner should file and serve as part of its/his case an Affidavit as to Jurisdiction limited to the Barwick point. After all, the Barwick decision raises a jurisdictional point which if absent deprives this Tribunal of jurisdiction. This Tribunal must be satisfied that it is seized of jurisdiction and the practitioner must be able to consider the material to enable him/her to mount an argument if so advised that the Barwick pre-requisites have not been met.
For our part we have had difficulty in trawling through the material placed before us, not necessarily arranged in chronological order and certainly not arranged in a form from which we are able to distill with comparative ease the Barwick pre-requisites.

47 The practitioner through his counsel submitted that the Society had not adduced any evidence to show that Barwick has been followed. It was submitted "that the investigative process required under Section 155 has not been met, there is no evidence of it, there is an assertion of it, and when one has regard to the material filed by the Society there is nothing to establish that it has been done" (T70). On the other hand, counsel for the Society submitted that there was "overwhelming evidence which establishes that Barwick had been followed".

48 There is no doubt that the Society had in its possession as a result of an investigation over many, many years a quantity of material that in its view was sufficient in order to support is allegations. There is no requirement in the legislation and no requirement in Barwick (as we read them) for the Society or the Commissioner to start from scratch. We accept the Society’s submission that it "can have regard to and take into account material that is already in its possession; that plainly was the case here because of the long history of this matter .... such that part of the investigation goes back to 1993 ... (and) it was open to the Law Society to have regard to that accumulated, that is all part of the investigation" (T55).

49 The agreed chronology (with some minor but uncontested additions by the practitioner) shows that some of the events alleged against this practitioner go back to August 1992. The first formal complaint was made in March 1993 and an investigator was appointed in June 1993. He provided an interim report in July 1993, a second report in October 1993 and a third report in September 1994. Copies of those documents were sent to the practitioner, the first two reports in October 1993 and the third report in September 1994. The practitioner made various submissions to the Society including a lengthy submission in October 1994. In March 1995 the Society advised that its Professional Conduct Committee had requested further enquiries be undertaken and in August 1995 the Society advised that its Committee was of the opinion that, subject to any submissions of the practitioner, it should resolve that it is satisfied there is a reasonable likelihood that the practitioner will be found guilty by this Tribunal within the terms of the Act. There was desultory communication in November 1996. In July 1997 the then solicitor for the practitioner wrote to the Society and received a detailed response in November 1997. There was then some further desultory correspondence in 1998 culminating with a decision of the Professional Conduct Committee of the Society on 17 June 1999 in which it formed the opinion that, subject to any submissions of the practitioner, it should resolve that it is satisfied that there is a reasonable likelihood that the practitioner will be found guilty and referring to matters identical (with one exception) to those referred in its 15 August 1995 letter to the practitioner (the exception not being relevant to this Judgment).

50 The Society informed the practitioner accordingly by letter 24 June 1999 and the practitioner responded 29 June 1999. There was some further correspondence between the practitioner and the Society in July and August 1999 (which further goes to demonstrate that this is not a case where there would be an injustice to this practitioner by these proceedings continuing) and ultimately in November 1999 the Council (through its Committee) resolved to refer the practitioner to this Tribunal. In November 1999 the Council filed an Information in this Tribunal No 992042. This Information did not proceed because of Barwick and the Council invited the Commissioner to exercise his discretion in accordance with Section 137(2). The Commissioner wrote to the practitioner on 15 February 2000 and received a reply by letter dated 30 February 2000 (sic) from the practitioner. By letter 10 March 2000 the Society wrote to the practitioner, in May the Commissioner wrote to the practitioner recording his decision to initiate various complaints, the Society wrote to the practitioner on 17 May seeking the practitioner’s comments relating to the Commissioner’s decision. On 2 June 2000 the Commissioner exercised his discretion in accordance with Section 137(2) and he wrote to the practitioner so advising, the Society wrote to the practitioner on 26 June 2000, the matter was considered by the Professional Conduct Committee and it resolved on 22 June 2000 to refer the practitioner to the Tribunal. The formal Information was filed 10 August 2000.
It seems to us that basic chronology demonstrates a compliance with the provisions of Barwick . It seems to us that there has been a period of time in which an investigation could be carried out which would be or could be supervised by the Commissioner, that the Society had in fact carried out an investigation and had accumulated a considerable quantity of material, that there was an opportunity for the Society’s investigation to be so supervised particularly where it was the Commissioner himself who affirmatively exercised his discretion under Section 137(2) in June 2000. Indeed, at this point of time when the Commissioner was considering whether to exercise his discretion, he had the clear opportunity of a careful review of the Society’s activities and could satisfy that part of the Barwick test. We accept the submission that the Society has filed sufficient evidence on this point and there has been more than adequate opportunity for the practitioner to have responded to the material and there are more than sufficient actual responses from the practitioner.

The practitioner submitted that the actions of the Society did "not amount to the investigative process which by definition requires (the Society) to make enquiries, not just of the solicitor but of others. With respect, we do not think that properly describes the investigative process required under the legislation. What is required is some form of investigation which satisfies the Society under Section 155. All the Society is required to do is to complete "an" investigation, nothing more than that. Of course, the investigation must be such that it would be reasonable for the Council of the Society or the Commissioner to be satisfied that there is a reasonable likelihood that the legal practitioner will be found guilty by this Tribunal within the terms of Section 155(2), but the Section does not require the Society to get in all of the evidence upon which it would seek to rely in any proceedings instituted under Section 155(2). If that were the case then it might be argued that the Society (or the Commissioner) might be precluded from adducing evidence before this Tribunal that it had not obtained prior to making a decision under Section 155(2). And, after all, evidence not necessarily available at the time of a Section 155(2) decision may become available after that decision and ought properly to be put before this Tribunal subject, of course, to the ordinary rules as to natural justice. The whole purpose of Barwick is to provide for "an investigative stage which permitted the requirements of Division 5 to be satisfied and the legislative purpose of that Division to be fulfilled ... and) be such as to permit monitoring of the investigation by the Commissioner" and to make appropriate recordings of the decision and reasons.
It seemed also to be submitted that there was nothing to indicate any enquiry after 5 September 1994. That is not necessarily the case because on many occasions, even as late as February 2000, the practitioner was asked for his comments about the allegations and the exercise by the Commissioner of his discretion and, and importantly, the practitioner actually responded at some length in his letter 30 February 2000 (sic).

51 In our view the argument advanced on behalf of the practitioner on this point fails.

Service:

52 It was submitted that the practitioner had not been properly served with the Information nor the relevant documentation relied upon by the Society. Indeed the practitioner’s brother went into evidence on this issue. We must say that the force of this submission is severely weakened by the fact that not only was the practitioner in Court but so also was the practitioner’s briefed counsel and his instructing solicitor, and all of them seem to had access to and been familiar with the terms of the filed Information and all the other documentation that had been filed and relied upon by the Law Society.
It is not the law, neither is it the practice, of this Division, not to hear matters in the absence of service. There are occasions where the jurisdiction of this Tribunal must be invoked in this Division where the has not been personal service upon a legal practitioner. In those circumstances, however, there must be evidence placed before the Tribunal that would indicate that sterling efforts have been made by the Society or the Commissioner to effect service or bring to the notice of the practitioner the proceedings before the Tribunal. In this case, however, it is plain and obvious that whatever may have been any alleged technical imperfections in effecting service the plain fact is that as at the date of hearing the practitioner and his legal team had possession of the Information and all other material relied upon by the Society. There may have been some technical imperfections in service but in our view no prejudice has flowed to this practitioner and this submission has no substance.

53 A licenced commission agent Mr K J Ramshaw gave evidence, both in the form of an affidavit and orally. His evidence was in contradiction to sworn evidence by the brother of the practitioner, Mr R Boland, to the effect that the practitioner was not living at certain premises at Brighton (NSW) but that on about three occasions he went to these premises and somebody else also came to the premises asking for the practitioner, presumably in an attempt to effect service of documents. Whether that person was instructed by the Society or instructed by somebody else was not clear. Mr R Boland’s evidence was that "on at least two occasions there were documents taped to the front gate" but what those documents were is certainly not clear. Mr Ramshaw denied leaving any documents taped to the front gate but his evidence was that he followed his usual practice of identifying the person to be served by asking the usual question: "Are you (person’s named to be served)? I have some papers for you from the Law Society". He also swore that on 20 December 1999 he effected service upon a person whom he believed to be the practitioner, that he asked the "usual" question, received an affirmative reply and then said to the person served: "I have been trying to get you for some time" and the person served replied: "Don’t worry mate, it’s over".

54 Mr Ramshaw was called and by leave was asked some questions in chief. At T26 it was plain that whatever documents were served upon the practitioner were properly served upon him by Mr Ramshaw. Before us Mr Ramshaw clearly identified the practitioner sitting in the Tribunal behind his counsel as the person whom he served on that date. We are satisfied that whatever documents were in fact served on the practitioner on 20 December 1999 were in fact served upon him personally at the address at Brighton.
Subsequent attempts to effect service of this filed Information in and after August 2000 at the Brighton address were unsuccessful. Pausing at this point it is important to observe that the Chronology admitted into evidence by consent appears to be slightly misleading in that in the top half of page 4 it recites that various letters were sent by the Society to the practitioner care of a corporation at a Post Office box and the practitioner replied on 19 August 1999 using that corporation’s letterhead and that Post Office box. There is no further reference to the practitioner’s address in the Chronology. However, from looking through the evidence admitted on this Application (and we note confined to this Application) it would appear that the Commissioner wrote to the practitioner at the Brighton address on 15 February 2000 and the practitioner responded by his letter 30 February 2000 (sic). It is plain from that material that correspondence addressed to the practitioner at the Brighton address were actually received by him such that it would be incorrect to submit that subsequent correspondence forwarded to the practitioner by the Society (and also by the Commissioner) in March, May and June 2000 would also be likely to have been received by the practitioner and in the absence of evidence to the contrary (and there is none) we can assume that correspondence was in fact so received.
It is also important to observe that a letter dated 31 August 2000 from the Society to the practitioner addressed to the corporation at its Post Office box and again 31 October 2000 were also received by the practitioner.
Somehow or other in circumstances not clear but certainly referred to in the agreed chronology the matter must have come to the attention of the current solicitors for the practitioner because on 31 October 2000 the Society wrote again to the practitioner addressed to the said corporation at its address and on 16 November 2000 the current solicitors for the practitioner sought and obtained copies of various affidavits filed in this Tribunal and subsequently filed a formal Appearance.

55 All of the above supports our previously expressed view to the effect that no prejudice has flowed to this practitioner, that he is in receipt of all relevant documents relied upon by the Society, that he has had more than ample time to obtain such legal advice as he may think appropriate and to respond to the allegations made against him. It seems to us that the next real step in this matter is for the practitioner to file his Reply.

Further Observations:
56 It was submitted by the practitioner that the Society was obligated, particularly after such a long period of delay, to make appropriate enquiries from the various persons whose affairs as dealt with by the practitioner were under consideration. This was particularly so, it was said, because one of the persons (a Mr Bovard) had passed away. For the reasons specified above we are of the opinion that the Society was entitled to rely upon its previous investigations and the documentation that it had obtained as part of those investigations. After all, that documentation may well be sufficient, in the view of the Society, for it to reach an affirmative decision under Section 155(2). What the Society does with that information at any subsequent hearing is a matter for it and whether that information/documents amount to admissible evidence will be a matter for the hearing. In our view the Society is not stopped from accumulating further information and using that further information (either documents or affidavits alleging oral communications) at the hearing provided that they are properly served and there is no prejudice. And, after all, there is no property in a witness.

57 How the Society elects to conduct its case will be a matter for it subject to the rules of evidence and subject to there being no prejudice to the practitioner. If the evidence is not sufficient then the charge is not proved and the practitioner will not have to respond to it. If the evidence is sufficient then it will be a matter for the practitioner, to decide, upon advice, how he will answer that evidence if he so wishes. There may be sufficient material from the Society’s investigations to satisfy it within Section 155(2) but when ultimately put to the test before this Tribunal that material may not amount to evidence or sufficient evidence which would amount to a case to answer. No detailed submission was made to us that the material adduced by the Society on this application fell within the principles of Carson -v- Legal Services Commissioner (2000) NSWCA 308 in that the allegations or any of them, were foredoomed to fail.

58 It is important also to observe in Carson the Court of Appeal dealt with the matter of delay in making and investigating a complaint. On the facts in Carson although the Court of Appeal was very critical of the delay in the complainant making the complaint (a delay of between six and nine years with no explanation being put forward for that delay) and although the Court was also very critical of the delay in the Commissioner dealing with those complaints (a period of nearly 21 months with no explanation being provided) the Court said (paragraph 265): "(a)gainst this background and in the context of the statutory requirements there is, on the ground of this delay alone, a powerful case to say that the conduct of the Commissioner was oppressive and an abuse of process" but it is important to observe that the Court did not make a positive finding to that effect.

59 We note that no submission was made to the effect that to proceed to a hearing "would offend common humanity" ( R. v. Hakim and Anor (1989) 41 A Crim R372). On the facts no such submission would be justified but Hakim clearly supports our expressed view above that a stay may be granted if a hearing could not "now fairly be had", a situation not to be found in this case.
60 One final observation: the material in this matter now before this Tribunal is scattered all over the place. There are four affidavits of Mr Collins, the solicitor for the Society, not particularly in any chronological order and presumably put together to fill any perceived gaps in the case for the Society. Perhaps this is understandable having regard to the course taken thus far but the Society may take advice on whether at the final hearing it may be more useful to put the material in an appropriate format which will be capable of easy digestion.

Orders:
The Tribunal makes the following orders:
1. The application of the legal practitioner filed 17 November 2000 be and is hereby dismissed.
2. Costs reserved.
3. This matter be listed before either judicial member constituting this Tribunal for the purposes of further directions and ultimately for the fixing of a date for hearing of the Information.