Law Society of New South Wales v Connolly (LSD)

[2001] NSWADTAP 40

Appeal Panel

CITATION:	Law Society of New South Wales -v- Connolly (LSD) [2001] NSWADTAP 40
PARTIES:	APPELLANT Council of the Law Society of New South Wales RESPONDENT Leslie Connolly
FILE NUMBER:	009023
HEARING DATES:	04/12/2000
SUBMISSIONS CLOSED:	12/04/2000
DATE OF DECISION:	12/12/2001
DECISION UNDER APPEAL:	Connolly -v- Law Society of New South Wales [2000] NSWADT 82
BEFORE:	Needham CA - (Deputy President); Officer D QC - Judicial Member; Hoareau D - Member
CATCHWORDS:	right of appeal - non party to proceedings
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	992039
DATE OF DECISION UNDER APPEAL:	06/26/2000
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Legal Profession Act 1987
CASES CITED:	Tedeschi -v- Legal Services Commissioner (1997) 43 NSWLR 20 Double Bay Marina Pty. Limited -v- Woollahra Municipal Council (1985) 54 LGRA 313 Chriss -v- Williams (1988) 65 LGRA 384 Humphrey & Edwards Pty. Limited -v- Woollahra Municipal Council (unreported NSW L & E Court, Cowdroy AJ 12 November 1998) Norvill -v- Chapman (1995) 133 ALR 226
REPRESENTATION:	APPELLANT J Griffiths, barrister RESPONDENT S Hodges, solicitor
ORDERS:	1. The Notice of Appeal filed 21 July 2000 by the Council of the Law Society of New South Wales be struck out; 2. The Application filed 26 October 2000 by the Council of the Law Society of New South Wales be dismissed; 3. Each of Mr Connolly and the Law Society to bear their own costs of the applications dated 26 October 2000 and 1 November 2000.

1 In the proceedings below Leslie Connolly, a person convicted of an indictable offence, applied pursuant to s.48K of the Legal Profession Act 1987 to be allowed to be employed by Stephen Hodges, solicitor, of Macquarie Street, Sydney.

2 The application named Mr Connolly as the applicant and named the Council of the Law Society of New South Wales as the respondent (“the Council”).

3 Mr Connolly’s application was accompanied by an affidavit of Mr Hodges sworn 11 October 1999 which also on its face stated that the respondent was the Council. The other affidavit accompanying the application was that of Mr Connolly which merely referred to him as being the applicant, there being no named respondent on the document.

4 In accordance with clause 37 of Schedule 1 of the Administrative Decisions Tribunal Rules (Transitional) Regulation 1998 (“the said Rules”) Mr Connolly served on the Council a copy of his application and the supporting affidavits.

5 In accordance with clause 38 of the said Rules on 10 November 1999 the Council filed and served a Notice of Appearance (dated 9 November 1999).

6 Pursuant to a notice given by the Tribunal to Mr Connolly and to the Council, both appeared at a directions hearing at which directions were made for the filing and serving of submissions.

7 At the hearing of the application, the Council was represented, without objection by Mr Connolly, but was not joined as a party. The representative of the Council was permitted to take objections to evidence, to cross-examine witnesses, to adduce evidence and to make submissions both orally and in writing.

8 Throughout the application by Mr Connolly and in the written submissions filed by him, the Council was referred to as the respondent and in the written submissions filed on behalf of the Council it also referred to itself as a respondent.

9 The Tribunal delivered its decision and reasons for decision in respect of Mr Connolly’s application on 26 June 2000. The Council is described on the cover sheet of that decision as being the respondent. Mr Connolly’s application was successful.

10 The Council filed on 21 July 2000 a Notice of appeal against the Tribunal’s decision to grant Mr Connolly’s application.

11 By an application dated 26 October 2000, the Council applied to be allowed to rely upon certain material on the hearing of the appeal relevantly comprising a summing-up by Slattery J on 20 May 1977 in proceedings against Mr Connolly and two Judgments of the Court of Criminal Appeal, one on 15 March 1979 and the other on 19 December 1980.

12 By an application dated 1 November 2000, Mr Connolly sought to have the appeal proceedings struck out upon certain grounds there set out.

13 Following the filing of writing submissions, it was clear that the primary ground relied upon by Mr Connolly to strike out the Notice of Appeal was that the Council was not a party to the original proceedings in the Tribunal below and therefore had no right of appeal under any relevant legislation and in particular under s.113 of the Administrative Decisions Tribunal Act 1997, which provides “A party to proceedings in which an appealable decision of the Tribunal is made may appeal to the Tribunal constituted by an appeal panel.” (our underlining).

14 Accordingly, at the hearing of the present application on 4 December, Mr Connolly applied for leave to amend the application. This was not opposed and accordingly the application was amended on that date to expressly include the said ground.

Some legislative framework
15 Under s. 48K of the Legal Profession Act 1987, it is professional misconduct if a barrister or solicitor has an associate whom the barrister or solicitor knows to be, inter alia, a person who has been convicted of an indictable offence and does not hold a current practising certificate.

16 As we have said, Mr Connolly, is a person who has been so convicted.

17 Provision is made by s.48K(2)(c) in such circumstances for approval to be given to such an association by the Tribunal.

18 The said rules and in particular Rule 36 provide for such application for approval. Rule 37 requires, in present circumstances, the application and supporting affidavits to be served upon the Council as soon as practicable after the lodgement of the application.

19 Rule 38 provides –

“1. If a Council wishes to appear on the hearing of an application under s.48K(2) of the Legal Profession Act 1987 it must lodge with the Tribunal a Notice of Appearance in or to the effect of the approved form and then serve on the applicant a complete sealed copy of the notice.”
20 As we have said, in the present case this was done and the Council in fact appeared at the hearing of the application. The question for determination is whether it so appeared as a party or in some other capacity.

21 During submissions reference was made by Mr Griffiths, appearing for the Council, to s.48L which provides “the parties to an application to the Tribunal under s. 18I-48K may be represented by …”. In our opinion, the section is of little assistance in resolving the issue. It seems clear from the terms of ss. 48I and 48J that there would be more than one party to those applications and it begs the question, in our opinion, as to whether there is more than one party to an application under s.48K. Again, reference was made by Mr Griffiths during submissions to s.48L(2) which empowers the Tribunal to make orders for costs but again in our opinion that begs the question as to whether in any particular circumstance there is more than one party so that such a power could be exercised.

22 Relevant to the submission as put to us, s.67 of the Administrative Decisions Tribunal Act 1997 provides:

“(1) The parties to proceedings before the Tribunal for an original decision are
(c) any other person sho has been made a party to the proceedings by the Tribunal in accordance with sub-section 4 and
(d) any person specified by or under any enactment as a party to the proceedings.”
23 Sub-s. 4 provides –
“The Tribunal may, by order, make a person who is not a party to proceedings for an original decision … a party to the proceedings, either of its own motion or on the written application of the person, if it is satisfied that the interests of the person are likely to be effected by the original decision …”
24 We have already referred to s.113 of the Administrative Decisions Tribunal Act 1997 and the appeal rights conferred thereby.

25 The proceedings below were proceedings before the Tribunal for an original decision within the meaning of s.57. Within s.67(4) there was no application written or otherwise by the Council to be made a party to the proceedings save to the extent that the filing of the notice of the appearance may imply such an application.

26 Also, within the meaning of s.67(4), no order was made in the sense that none was articulated.

27 It was submitted for the Council that by reason of the conduct of the proceedings both by Mr Connolly, the Council and the Tribunal this Appeal Panel should infer that an order was in fact made. In our opinion, an order must be clearly expressed and is not capable of arising by inference.

28 Alternatively, it was submitted that this Panel ought to accept that there was, by reason of the said course of the proceedings, an order impliedly made by the Tribunal below. Mr Griffiths, in the hearing before the Tribunal, in our opinion correctly so, disavowed any argument based upon any concept of an estoppel arising out of the conduct of the proceedings below. Following the hearing the parties’ attention was drawn to Tedeschi -v- Legal Services Commissioner (1997) 43 NSWLR 20, and the text and authorities referred to in paragraph 218 of Spencer Bower Turner and Handley “The Doctrine of Res Judicata”. The Tribunal received further written submissions from the parties. The Tribunal is of the opinion that the principles and the authorities there referred to are inapplicable in the present circumstances. The present is not a case of a dispute as to whether or not the Law Society is bound by the decision in the sense of the Law Society, by its intervention, being estopped from denying the result of the decision. Indeed, the present is quite the contrary. It is the Law Society which is seeking to assert that it really was a party. In the Tribunal’s opinion it cannot rely on principles of estoppel to establish that affirmative proposition.

29 Mr Griffiths nevertheless contended for an implied order. Mr Griffiths was frankly unable to refer us to any authority or text to support the proposition that there can be an implied order of the court or tribunal. In our opinion the concept of an order contemplates some pronouncement. Bearing in mind that rights and obligations flow from such pronouncements, we do not consider that those rights and obligations could stem from an order (not in any way articulated) but implied in certain circumstances. In our opinion the submission ought be rejected.

30 The alternative submission put to us on behalf of the Council was that it was a party and had the rights of appeal referred to in s.113 because it was within the concept of “any person specified by or under any enactment as a party to the proceedings” within s.67(1)(d). It was submitted that “specified” means either expressly or by necessary implication and that when one looks at the scheme of the Legal Profession Act the necessary implication is that the Council of the Law Society was a party. It was submitted that this was either unconditionally the case, or alternatively, conditional upon the Council filing a Notice of Appearance as referred to in the said rules.

31 In our opinion, the submission ought be rejected. There is no doubt that the Council is recognised in the Legal Profession Act as the professional body representing solicitors and as the legal body thereby having statutory functions, rights and obligations of supervision and regulation of practice in this State. It is no doubt correct, as it was submitted to us, that the Council has the statutory function to investigate conduct which may contravene Part 3A of the Act and which has a function in approving as associates of a solicitor, disqualified persons as defined in s.48K(7. It is also undoubtedly correct that, by virtue of the rules, notice of such an application was made to the Tribunal below needs to be given to the Council. We have already referred to the provisions of s.48L upon which reliance was placed by the Council.

32 It does not however follow that the Council is “specified” by necessary implication. Certainly there is no provisions of any relevant Act which in express terms so specifies the Council as a party to proceedings under s.48K. Even if one were to construe “specified” as including ‘by necessary implication’ the above provisions of the legislation do not carry a necessary implication that the Council is a party. In our opinion the only implication is that the Council, by reason of its position and statutory rights and functions, has an interest which may support an application under s.67 to be joined as a party. The giving of notice to the Council and its then right of appearance does not of necessary implication make it a party.

33 In various jurisdictions including the Coroners Court, the Land and Environment Court and possibly under s.169 of the Legal Profession Act 1989 a distinction is drawn between a person’s right to appear at a hearing in the capacity of a party. The latter may well carry with it different rights and obligations concerning costs, appeal, the extent of the right of appearance. See, for example, s.64 of the Land and Environment Court Act 1979 which gives the Crown a statutory right of appearance in any case in which the public interest or an interest of the Crown may be effected or involved. See also s.38 of the said Act permitting, with leave, appearances but not in the nature of parties to proceedings – Double Bay Marina Pty. Limited -v- Woollahra Municipal Council (1985) 54 LGRA 313; Chriss -v- Williams (1988) 65 LGRA 384; Humphrey & Edwards Pty. Limited -v- Woollahra Municipal Council (unreported NSW L & E Court, Cowdroy AJ 12 November 1998).

34 As we have said above, this is on the assumption that “specified” ought to have the wider meaning contended for by the Law Society. In our opinion, it ought not. The ordinary meaning of the word “specify” is “name expressly, mention definitely” (The Concise Oxford Dictionary New Edition), “to mention or name specifically or definitely” (Macquarie Dictionary). In Norvill -v- Chapman (1995) 133 ALR 226, Mr Justice Burchett made reference to the fact that courts have treated the word “specify” as a strong word which signifies a requirement of unambiguous clarity and precision.

35 If the said meaning of “specified” is to be adopted then in our opinion the Council undoubtedly is not specified as a party by or under any enactment. We did not understand Mr Griffiths to contend to the contrary (if such a meaning alone were adopted).

Conclusion
36 The conclusions in this matter are arrived at by the Tribunal not without some hesitation. The facts relating to the course of the proceedings in the Tribunal below and the conduct of the parties would seem to warrant a different result. For the reasons set out above, however, the Tribunal is unable to so conclude.

37 The Council was not a party to the proceedings before the Tribunal instituted by Mr Connolly for approval under s. 48K(2) of the Legal Profession Act 1987 which proceedings were determined in favour of the applicant therein on 26 June 2000.

38 The Council has no right of appeal in respect of the said decision.

39 The Notice of Appeal filed by the Council on 21 July 2000 is incompetent for the above reasons and ought be struck out.

40 Consequentially, the application by the said Council dated 26 October 2000 to rely (on the hearing of the appeal) on further material ought be dismissed. In so dismissing the application we would make it clear we have not considered the merits of it.

41 Mr Griffiths on behalf of the Council submitted that if this were the outcome of the application to strike out the Notice of Appeal that Mr Connolly ought be ordered to pay the costs of the Council of the present strike out application. This submission was made upon the basis that it was the conduct of Mr Connolly in instituting and conducting the proceedings below in the form in which they were so instituted and conducted which led the Council to believe it was a party to the proceedings and had the right of appeal which it sought to protect in the current application.

42 There is no doubt in our opinion that everyone in the proceedings below seems to have proceeded upon the assumption that the Council was indeed a respondent to those proceedings. In our opinion, it is impermissible to speculate as to what may have transpired had that misapprehension been exposed in the proceedings below.

43 Be that as it may, the present application was to strike out the appeal. While the terms of the application as originally filed may have been ambiguous, there was no ambiguity about the basis of the application as set out in the Applicants detailed written submissions dated 7 November 2000 and filed on 9 November. Thereafter, the Council decided to oppose Mr Connolly’s strike out application and did so both in terms of written submissions dated 22 November 2000 and did so in the said hearing before us. The Council was unsuccessful.

44 In the circumstances recited above, it is our opinion that Mr Connolly and the Council ought to bear their own costs of the present application and the application for further material which we have dismissed.