Law Society of New South Wales v Cornwell

[2006] NSWADT 72

CITATION:	Law Society of New South Wales v Cornwell [2006] NSWADT 72
DIVISION:	Legal Services Division
PARTIES:	APPLICANT Council of the Law Society of New South Wales RESPONDENT Brien Ernest Cornwell
FILE NUMBER:	052019
HEARING DATES:	2/12/2005
SUBMISSIONS CLOSED:	01/20/2006
DATE OF DECISION:	03/10/2006
BEFORE:	Brennan JWF - Judicial Member; Hale S - Judicial Member; Bennett C - Non Judicial Member
CATCHWORDS:	Dismissal of complaint - section 155A
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Legal Profession Act 1987 Legal Profession Act 2004
CASES CITED:	CEO of Customs v. Au [2005] NSWCA 119 Council of the Law Society of New South Wales v. West [2003] NSWADT 250 Council of the NSW Bar Association v. Li [2005] NSWCA 415
REPRESENTATION:	APPLICANT D Barton, Solicitor RESPONDENT K Turner, Solicitor
ORDERS:	1 That the application filed by the Applicant Society on 3 November 2005 be dismissed; 2. That each party pay their own costs of and incidental to the application filed on 3 November 2005; 3. That the Respondent file and serve any reply together with any Affidavit material on which he seeks to rely at the hearing of the Information on or before 4pm on 23 March 2006 and the Applicant Society file and serve any material in response on or before 4pm on 30 March 2006; 4.That this matter be listed at 9.30am on Monday 3 April 2006 to fix a date for hearing of the Information

1 On 9 June 2005 The Council of the Law Society of New South Wales “the Society” filed an Information in this matter. The Society in that information informed the Tribunal that as a result of the Council’s investigation of complaints made under Part 10 of the Legal Profession Act 1987 against Brien Ernest Cornwell (‘the Respondent’) a legal practitioner within the meaning of S. 128 of the Act, the Council claims that the Respondent while practising as a solicitor was guilty of professional misconduct on the grounds that he:

1 Wilfully breached section 62 of the Legal Profession Act 1987 ,and

2 Wilfully breached section 61 of the Legal Profession Act 1987.

2 The Complaints were particularised as follows:

1. Wilful breaches of section 62 of the Legal Profession Act, 1987

(i) As at 23 January 2004 the trust account records of the practice had not been written up since 30 April 2003 and no bank reconciliation statements or trial balances had been prepared since 31 March 2003.

(ii) As at 31 May 2004 the Solicitor had not obtained an Accountant’s Report relating to the trust account of the practice.

(iii) As at 31 May 2004 some ten or eleven ledgers forming part of the records of the trust account could not be located by the solicitor.

2. Wilful breaches of section 61 of the Legal Profession Act 1987

(i) Cornwells account

(a) From 20 May 2002 to 4 June 2004 a debit of $819.46 subsisted in one of the ledgers which could not be located by the solicitor, following the withdrawal of the sum of $2,354 from the Trust Account.

(b) The debit of $819.46 was reflected in the ledger for the Cornwells account.

(c) It appears that the debit should have been reflected in a trust ledger for Heburn or someone associated with Heburn

(ii) Melaleuca Estate ledger

(a) On 17 October 2003 there was a debit of $49,090.14 in the trust ledger account styled “Melaleuca Estate Trust”

(b) On the following dates, the debit had increased as shown, as a result of further payments being made from the account without intervening credits being paid to the account:

17/ 10/03 - $9,278.13 DR

21/10/03 - $13,278.13 DR

23/1 0103 - $24,668.13 DR

24/10103 - $25,590.14 DR

25/10/03 - $28,890.14 DR

28/10/03 - $33,890.14 DR

06/11/03 - $42,190.14 DR

14/11/03 - $46,590.14 DR

18/11/03 - $47,090.14 DR

19/11/03 - $47,590.14 DR

28/11/ 03 - $48,090.14 DR

05/12/03 - $49,090.14 DR (Note: $1,000 was drawn direct from the statutory deposit account and used for the benefit at Melaleuca)

31/05/04 - $47,090.14 DR

(c) On 4 June 2004 the Solicitor deposited $47,909.60 into the trust bank account, covering outstanding debit balances

(d) The Melaleuca Estate ledger related to the solicitor’s personal business activities and the payments from the account related to business transactions.

3 The Society in the particulars identified the Respondent as the solicitor and the practice as his practice. It further alleged that at all material times the Respondent was a sole practitioner.

4 The Council sought the following orders:

(i) An Order that the solicitor be fined

(ii) An Order that the solicitor be publicly reprimanded; and

(iii) An Order that the solicitor pay the Society’s costs of and incidental to the proceedings, as agreed or as assessed under Division 6, Part 11 of the Legal Profession Act 1987 or such other basis as the Tribunal may determine.

5 On 2 November 2005 the Council filed an application under s 155A seeking to have the Information filed 9 June 2005 dismissed on the grounds that:

1. The Solicitor has retired from practice.

2. Dismissal under s 155A on the recommended terms would be in the public interest, having regard to the following:

(a) The Solicitor has undertaken:

(i) To pay the Society’s costs in a specified sum

(ii) Not to apply for issue of a practicing certificate nor seek to become an associate (within the meaning of s 48K Legal Profession Act 1987) of any legal practice in any jurisdiction for a period of 5 years

(iii) to refrain from any conduct that would represent a breach of the provisions of ss. 48B, 48C, 48D AND 48E Legal Profession Act 1987

(b) The Solicitor has made admissions to the Society.

(c) The Solicitor has acknowledged, in writing that were he to breach his undertaking the Society or the Legal Services Commissioner would be obliged to make and investigate a complaint under Part 10 of the Legal Profession Act 1987 (or succeeding similar legislative provision) relating to breach of the undertaking and file a fresh Information in the Tribunal in relation to the allegations otherwise disposed of pursuant to this application.

6 The application was supported by an Affidavit of Raymond John Collins sworn 2 November 2005 which was Exhibit “A” in these proceedings.

7 On 3 November 2005 the Council filed a further affidavit of Mr Collins sworn that day (Exhibit B) and a further application under s155A seeking dismissal of the information of 9 June 2005 on the grounds that:

1. The Solicitor has retired from practice.

2. Dismissal under s 155A on the recommended terms would be in the public interest, having regard to the following:

a) The Solicitor has undertaken:

(i) To pay the Society’s costs in a specified sum

(ii) Not to apply for issue of a practicing certificate nor seek to become an associate (within the meaning of s 48K Legal Profession Act 1987) of any legal practice in any jurisdiction for a period of 5 years

(iii) To refrain from any conduct that would represent a breach of the provisions of ss. 48B, 48C, 48D AND 48E Legal Profession Act 1987

(b) The Solicitor has made admissions to the Society.

(c) The Solicitor has acknowledged, in writing, that were he to breach his undertaking the Society or the Legal Services Commissioner would be obliged to make and investigate a complaint under Part 10 of the Legal Profession Act 1987 ( or succeeding similar legislative provision ) relating to breach of the undertaking and file a fresh Information in the Tribunal in relation to the allegations otherwise disposed of pursuant to this application.

8 On 3 November 2005 the Society’s Professional Conduct Committee resolved:

Noting that the Solicitor has complied with the requirements of the Committee’s resolution of 22 September 2005, that the complaints made by the Society on 3 June 2004 and 16 September 2004 pursuant to Section 134 of the Legal Profession Act 1987 (being complaints that the Solicitor wilfully breached sections 62 and 61 of the Legal Profession Act) be dismissed under s. 155A of the Act.

9 Section 155A of the Act is in the following terms:

1) The Commissioner or the Council may dismiss a complaint, whether before, during or after the investigation of the complaint, if satisfied that it is in the public interest to do so.

(2) The circumstances in which a complaint may be so dismissed include (but are not limited to) a complaint about a legal practitioner who has retired from practice or is prevented from practising or a complaint about conduct that is the subject of another complaint under this Part.

(3) If proceedings with respect to a dismissed complaint have been instituted in the Tribunal by the Commissioner or Council, the Tribunal may, on the application of the Commissioner or Council, dismiss the proceedings.

10 Clearly the resolution of 3 November 2005 falls within s 155A (3) and the section gives the Tribunal a discretion to dismiss the Information. The application of 2nd November , not being supported by a resolution of the Society, did not give the Tribunal jurisdiction to make the order of dismissal.

11 The Information having been filed on 9 June 2005, the proceedings have, by reason of the terms of clause 15 of Schedule 9 of the Legal Profession Act 2004, to be dealt with under the Legal Profession Act 1987 as if the 2004 Act had not been enacted.

12 While the 2004 Act makes provision for consent orders the Tribunal is of the view that the grant of the power to make consent orders in proceedings under the 2004 Act is not relevant to this matter.

13 In submissions the Society expanded on the grounds detailed in its second dismissal application.

14 Retirement from practice. This is the first ground relied upon. Clearly as the Society accepts there are difficulties with this ground. In oral submissions the respondent was referred to as being “well into his sixties” and in written submissions as “aged 60 years”. He has not renewed his practicing certificate since June 2004 and it was submitted “he had obviously devoted his time to his development business.” Admission to practice is a clear and precise concept but “retirement “ as a solicitor, as indeed from many other callings, may only be a temporary status. The Tribunal is entitled to draw on its own experience of the world. A new career opportunity in the same or a different area of the law can often open up or become desirable for a solicitor who has genuinely chosen to retire. Family and financial issues may arise to make a return to practice by a “retired” solicitor not only desirable but necessary.

15 Subsection (2) of s155 does make “retired from practice” a ground upon which the Commissioner or the Council may dismiss a complaint ss(1). There were no detailed submissions on this aspect. Obviously the subsection envisages that some “retirements” may make it appropriate for the Commissioner or the Council to dismiss the complaint under ss1 and others may not. Perhaps the provision could apply, inter alia, in the event of extreme age, or a health condition which, while not actually preventing a practitioner from practicing, is such that by reason of , for example , facial disfigurement , sudden impairment of speech or an unexpected reduction in life expectancy, leads the practitioner to retire. The recitation of his “retirement” by the Society in the particulars appears to imply a submission that the terms of subsection (2) are also applicable to the exercise of discretion under subsection (3). The Tribunal does not find it necessary to rule on that issue in this instance for if “retirement” in itself may be sufficient for the Tribunal to exercise it’s discretion to dismiss the complaint there is no evidence on which the Tribunal could find that the “retirement” was such as would determine or influence it’s decision. The best the Society could offer it appears is in it’s written submission in terms:

“On all the information available to the Society, it was apparent that the Solicitor had retired from practice. He has not renewed his practicing certificate since June 2004. He had obviously devoted his time to his business, which included his development company becoming involved in protracted proceedings in the Land and Environment Court (see Melaleuca Estate Pty Ltd v Port Stephens Shire Council [2004] NSWSC 415). He is aged 60 years.”

16 This submission is simply not evidence and there is no evidence before the Tribunal that is of assistance to it in exercising the discretion under s 155A (3) in relation to retirement so the Society’s application on this ground is not made out.

17 The Tribunal does not find this ground to be in any way persuasive on the issue as to whether it should exercise the discretion under S155A (3). The observation in the Society’s written submissions that an undertaking not to apply for a practicing certificate for at least 5 years “ brings him well into the period, as may be commonly observed, when most people have retired from their careers “ is a generalisation that underlines the weakness of this submission. This ground fails.

18 The first part of second ground of the submission on public policy related to the practitioner’s undertaking to pay the Society’s costs in a sum which is not specified. The Tribunal has no evidence before it to form any view on the efficacy of this undertaking nor anything to enable it to form a view as to whether the costs to be paid were appropriate in amount which would become relevant if the Tribunal were able to decide on evidence before it that it was in the public interest for the solicitor to pay the Society’s costs. This ground also fails.

19 The second paragraph of the Amended Application has three subparagraphs and the first of these is further divided into three parts each of which relate to parts of an undertaking.

20 The first matter raised in relation to the undertaking is the solictor’s undertaking to pay the Society’s costs in a specified sum. However there is no evidence on the quantum of costs which are not specified. The Tribunal has no evidence before it to form any view on the efficacy of this undertaking nor anything to enable it to form a view as to whether the costs to be paid were appropriate in amount which would become relevant if the Tribunal were able to decide on the evidence before it that it was in the public interest for the solicitor to pay the Society’s costs. Nothing has been established under this heading that could lead to the Tribunal to consider making the order sought in the Society’s amended application.

21 The second matter raised in relation to the undertaking in turn deals with two issues. The undertaking not to apply for a practicing certificate for five years is the first of these issues. The Society submits that “the undertaking may be otherwise observed as a penalty, being in effect a five year suspension. Since the Society only sought in it’s information orders for a fine and a reprimand, the undertaking has the effect of being a much more severe penalty than that sought by the Society”.

22 The Tribunal finds that this “penalty” consequence rather than being in the public interest is contrary to that interest when one applies the expectations of what the Society thought were the proper orders in June 2005 when the Information was filed. There is no evidence of any matter that would make it appropriate for the Society to change it’s mind and seek a more severe penalty. There is no evidence from the solicitor. He was represented by his solicitor but did not personally attend the hearing.

23 The Tribunal does not have before it, for example, evidence of the practitioner’s length of practice, his experience and expertise, his standing and reputation amongst his clients and his peers. The effect of the undertaking if the proceedings are dismissed is to remove the Respondent from practice for five years. At the age of 65 or more the challenge of returning to practice after 5 years absence would be more than daunting even if refresher courses and continuing legal education were undertaken. The undertaking is acknowledged by the Society to achieve a five year suspension of the Respondent though in reality the impact may be to removal the practitioner from practice not just for 5 years but perhaps effectively for all time. In this instance the exercise of the discretion under s155A (3) of the Act would produce without a determination on the merits an outcome at least equivalent to a suspension if not a strike off order. These are weighty matters and the consequences that may flow from the Tribunal exercising the discretion as asked may well be out of all proportion to the misconduct involved. The Tribunal has no evidence to assess whether those possible consequences could be appropriate in this instance.

24 The public interest also requires the maintenance of a pool of lawyers able to provide a multitude of services required by the community at this time. The community needs the knowledge, skills and experience of its legal practitioners and there is no evidence to satisfy the Tribunal that it is in the public interest to remove the Respondent from that pool.

25 The Tribunal has no evidence as to how this practitioner obtained his qualifications but it is reasonable to expect that the obtaining of his degree or other qualification for admission here or overseas involved the expenditure of taxpayer’s money. The public interest again is that the services of such a qualified professional person in whom there is a community investment should not be lost without clear and valid reasons. The Tribunal has no evidence upon which to determine whether it would be in the public interest to exercise the s155A (3) discretion in view of the undertaking not to apply for a practicing certificate for 5 years so the Society’s application for dismissal on this part of the second ground also fails.

26 The remaining part of the second sub-paragraph relates to the undertaking not to seek to become an associate of any legal practice in any jurisdiction for 5 years. “Associate of a solicitor or barrister” has the meaning given to it under s 48K of the 1987 Act ie:

(a) a person ( not being a legal practitioner or interstate legal practitioner) who `is a partner of the solicitor or barrister in a business that includes the barrister’s or solicitor’s practice, or

(b) a person ( not being a legal practitioner or interstate legal practitioner ) who shares the receipts of the barrister’s or solicitor’s practice, or

(c) a person who is employed or paid in connection with the barrister’s or solicitor’s practice.

27 This provision extends the effective five year suspension to further remove the Respondent from his profession. There is nothing before the Tribunal to support such an outcome and it is so far removed from the Orders sought by the Society on 9 June 2005 that it borders on the absurd. This aspect of the undertaking in no way encourages the Tribunal to exercise the discretion.

28 The third part of the undertaking is to refrain from conduct that would represent a breach of four particular sections of the Act. These are:

48B Unqualified person acting as barrister or solicitor and barrister

(1) A natural person must not act as a barrister or solicitor and barrister unless the person holds a current practising certificate.

(2) This section does not prevent a licensed conveyancer from carrying out conveyancing work in accordance with a licence in force under the Conveyancers Licensing Act 1995.

(3) A person who contravenes this section is, whether or not prosecuted or convicted for the contravention, guilty of contempt of any court in relation to which the contravention takes place.

(4) If a person contravenes this section:

(a) no action lies for the recovery of costs in respect of anything done in the course of the contravention, and

(b) if any such costs have been paid, the amount paid may be recovered as a debt owed by the person to the other person who paid them.

(5) (Repealed)

(6) A person who is an interstate legal practitioner does not contravene this section if the person is the holder of a current interstate practicing certificate issued by a regulatory authority of another State or a Territory.

48C Unqualified person making false representation to be a barrister or solicitor and barrister

(1) A natural person must not falsely pretend to be qualified to act as a barrister or solicitor and barrister.

(2) A natural person who does not hold a current practicing certificate must not:

(a) take or use a name, title, addition or description implying that the person is qualified to act as a barrister or solicitor and barrister, or

(b) do anything, or permit anything to be done, that holds out, advertises or represents that the person is so qualified.

48D Offence by corporation or officers

(1) A corporation must not do anything of a kind, or do anything in a manner, that is calculated to imply that the corporation is qualified to act as a barrister or solicitor and barrister.

(2) A director, officer or employee of a corporation must not:

(a) do anything of a kind, or do anything in a manner, or

(b) cause the corporation to do anything of a kind, or do anything in a manner,

that is calculated to imply that the corporation is qualified to act as a barrister or solicitor and barrister.

(3) This section does not apply to or in respect of an incorporated legal practice that has at least one solicitor director (within the meaning of Division 2A of Part 3). Any such practice does not contravene this section because it ceases to have such a solicitor director if a new solicitor director is appointed within the time prescribed by the regulations or, if no such time has been prescribed, within a reasonable time.

(4) If a person contravenes this section:

(a) no action lies for the recovery of costs in respect of anything done in the course of the contravention, and

(b) if any such costs have been paid, the amount paid may be recovered as a debt owed by the person to whom they were paid to the other person who paid them.

48E Limitation on general legal work and probate work

(1) In this section:

"fee" includes any form of, and any expectation of, a fee, gain or reward.

"general legal work" means the work involved in drawing, filling up or preparing an instrument or other document that:

(a) is a will or other testamentary instrument, or

(b) creates, regulates or affects rights between parties (or purports to do so), or

(c) affects real or personal property, or

(d) relates to a legal proceeding.

"probate work" means the work involved in:

(a) taking instructions for a grant of probate or letters of administration, or

(b) drawing or preparing papers on which to found or oppose a grant of probate or letters of administration.

(2) A person must not directly or indirectly do any general legal work, or any probate work, for a fee unless the person is a barrister or solicitor or unless the person is an incorporated legal practice and the work is done on its behalf by a barrister or solicitor.

(3) Any general legal work or probate work is taken to have been done for a fee if it relates to, or is done in conjunction with, other work done by the same person for a fee, unless it is proved that the general legal work or probate work:

(a) was done without the person who did it receiving any advantage or benefit, and

(b) was not offered as an inducement to do the other work.

(4) This section does not apply to:

(a) a public officer drawing instruments in the course of his or her duty, or

(b) a person employed merely to engross an instrument, or

(c) a land agent in respect of an instrument he or she is entitled to draw, fill up or prepare, and to charge for, under the Land Agents Act 1927 , or

(d) a licensed conveyancer acting in accordance with a license in force under the Conveyancers Licensing Act 1995.

(5) This section does not apply to a person acting as an employee if the person:

(a) so acts in the ordinary course of his or her employment, and

(b) receives no fee, gain or reward for so acting other than his or her ordinary remuneration as an employee.

(6) This section does not apply to a person or work, or a class of persons or work, declared by the regulations as being exempt from the operation of this section.

(7) (Repealed)

(8) A foreign lawyer does not contravene this section if he or she is a locally registered foreign lawyer and the work done is work the foreign lawyer is permitted to do under Part 3C.

29 Each of these sub-sections prohibits different forms of conduct in the nature of legal work. The undertaking in simple terms represents a promise by the solicitor that he will not breach specified provisions of the Legal Profession Act 1987, an Act which does not apply to conduct that occurred on or after the date the second application was filed. However putting that aside if the undertaking were to be amended so that it was updated to refer to, for example, sections 14 and 15 of the Legal Profession Act 2004 it remains an undertaking not to breach legislative provisions for which there are already legislative remedies available. In effect an undertaking not to break the law does not really assist the Tribunal in determining whether it is appropriate for it to exercise the discretion set out in s155A.

30 The second ground of the public policy submission is that the respondent has made admissions to the Society. The admissions are not in evidence before the Tribunal and the Tribunal can hardly be expected to speculate as to the nature of the admissions and the conduct (if any) to which they refer. The Tribunal cannot exercise a statutory discretion on the basis of, or taking into account, any such unspecified admissions.

31 The acknowledgement referred to in the third public interest ground in the Society’s application is intended, inter alia, to have the effect of keeping the complaints in the present information alive at least for the five years of the undertaking not to apply for a practicing certificate. The Tribunal considers that the public interest is best served by complaints against lawyers being resolved as expeditiously as possible and certainly not potentially after the lapse of five or more years. The complaints are of comparatively recent origin and the evidence for both parties should be fresh and more likely to be available now than in some years time.

32 The Society cited three reported cases in relation to this application. These were:

Council of the Law Society of New South Wales v. West [2003] NSWADT 250

CEO of Customs v. Au [2005] NSWCA 119; and

Council of the NSW Bar Association v. Li [2005] NSWCA 415

33 In West the Tribunal found a wilful breach of s61 was in the circumstances such as to justify a finding of professional misconduct. At 21 the Tribunal said:

“The Tribunal after considering all the facts and circumstances is satisfied that while any breach of section 61 is serious, in the case of this Practitioner the degree of seriousness is at the bottom end of the scale such that orders preventing him from practicing or having his name removed from the roll are not warranted.”

34 The Tribunal imposed a public reprimand and ordered the practitioner to pay costs. This decision while it makes clear that not all breaches of s61 are equal in gravity it does not help this Tribunal in this case on the issue of whether it should exercise the discretion provided in s 155A (3).

35 In Au’s case the New South Wales Court of Appeal dealt with inter alia, issues of res judicata and autrefois acquit. Clearly the Society has not satisfied the Tribunal that this is a proper case for the Tribunal to dismiss the complaints so the issues addressed by the Court of Appeal do not arise here.

36 In Li’s case the Council of the NSW Bar Association after filing an Information in this Tribunal relating to a barrister’s conduct “came to an arrangement with the Respondent that it would withdraw the Information, but that the President of the Bar association would administer a reprimand to the barrister and the latter would tender an apology to the complainants “(at 1). The Bar Council relied on s73 (5)(g) of the Administrative Decisions Tribunal Act 1997 which is in the following terms:

“The Tribunal:

…

(g) may dismiss at any stage any proceedings before it if the applicant withdraws the application to which the proceedings relate...”

37 In the Court of Appeal Spigelman CJ, with whom Mason P and Brownie AJA agreed summarized the position as follows (at 3) referring first to s73(5)(g) :

The Appellant invoked this section before the Administrative Decisions Tribunal and submitted that the Tribunal had no discretion but to dismiss the proceedings upon the withdrawal of the Information. The Tribunal held that, by reason of the provisions of the Legal Profession Act 1987 , the Appellant had no right to withdraw an Information before the Tribunal. Alternatively, the Tribunal determined, that if there were such a right to withdraw, the word “may” in s.73(5)(g)conferred a discretion upon the Tribunal and , in all the circumstances, it would exercise the discretion against the Appellant and , accordingly, would not dismiss the proceedings.

38 Later at 35 and 36 His Honour concluded:

39 The Appellant contended that the Tribunal erred in the exercise of the discretion, on the assumption that it had one. I can see no reason for interfering with that exercise. The Tribunal said in its judgment:

[149] … Because the full details of the agreement reached between the Bar Association and the respondent and the reasons why that agreement was reached, have not been made known to the Tribunal, the Tribunal is in a situation where it is unable to express a view as to whether the agreement is appropriate.

36 This appears to me to be a perfectly appropriate, indeed an inevitable outcome. The Tribunal, once its jurisdiction has been invoked, is the relevant decision-making body, not the Council of the Bar Association. If it is to exercise a statutory discretion, it must be provided with the information which would enable it to do so.

40 In this present case the Society has made the appropriate application for exercise of the discretion in s 155A but it has failed to provide the evidence that would enable the Tribunal to give due consideration to the relevant factors to enable it to exercise or decline to exercise the discretion in s155A (3). The practitioner through his solicitor consented to the Society’s application and chose not to give or otherwise provide any evidence. The Tribunal has already mentioned that he failed to attend the hearing. His solicitor supported but did not add to the submissions of the Society and although both parties were invited to lodge written submissions there were no written submissions received from or on behalf of the Respondent.

41 Although the facts differ the ultimate situation in this matter is very similar to Li (supra). The Tribunal cannot at the very least be satisfied that the effective arrangement reached between the Society and the practitioner is appropriate. The Tribunal’s jurisdiction having been invoked it is the appropriate decision-making body and it must be provided with the evidence necessary to make its decisions including in this instance the proper exercise of the s155A (3) discretion.

42 The Tribunal declines to exercise the discretion in favour of the Society and the order sought in the Society’s amended application filed on 3 November 2005 is refused. In the circumstances the Tribunal finds it inappropriate to make any order in relation to the costs of the application of 3 November so accordingly each party will pay their own costs.

43 In compliance with the terms of s167 (2) the Tribunal is “to conduct a hearing into each allegation particularised in the information”. Directions required to ready this matter for final hearing are included in the Orders made this day and the matter is to be listed before the Presiding Judicial member to fix a date for hearing.