Law Society of New South Wales v M

[2000] NSWADT 137

CITATION:	Law Society of New South Wales -v- M [2000] NSWADT 137
DIVISION:	Legal Services Division
PARTIES:	APPLICANT Council of the Law Society of New South Wales RESPONDENT M
FILE NUMBER:	992043
HEARING DATES:	25/05/2000
SUBMISSIONS CLOSED:	05/25/2000
DATE OF DECISION:	10/09/2000
BEFORE:	Norton S - Judicial Member; Mattila J - Judicial Member; Bubniuk L - Member
APPLICATION:	Jurisdiction
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Legal Profession Act 1987
CASES CITED:	Barwick v Law Society of New South Wales & Ors 2000 168 ALR 236 Murray v Legal Services Commissioner & Anor (1999) 46 NSWLR 224 Carson v Legal Services Commissioner & Anor Unreported Simpson J, 23 February 2000 Carson No 2 v Legal Services Commissioner & Anor Unreported Simpson J, 19 April 2000
REPRESENTATION:	APPLICANT P Boyd, solicitor RESPONDENT In person
ORDERS:	The Tribunal having no jurisdiction makes no order in this matter.

Background

1 By Information dated 3 December 1999 the Council of the Law Society of New South Wales ("LSC") claims that M has been guilty of professional misconduct on the ground that:

0.1 He was convicted of four counts of committing an aggravated act of indecency with a person under the age of 16.
0.2 He failed to inform his employer of this conviction.

2 Particulars of the misconduct were set out in the Schedule to the Information.

3 It was accepted by M that the factual matters referred to in that Schedule were correct. The Schedule provided as follows:

(1) On 19 June 1997 M ("the Legal Practitioner") was charged with four counts of aggravated indecent assault under S.61 of the Crimes Act (1900).
(2) On 17 December 1997 the Legal Practitioner pleaded guilty to the charges set out in paragraph 1 above.
(3) On 20 February 1998 in the Sutherland Local Court, the Legal Practitioner was convicted and sentenced to a fixed term of imprisonment of three months by Magistrate Jennifer Betts.
(4) On 6 May 1998 Judge C Luland in the District Court of New South Wales, Criminal Jurisdiction, heard an Appeal by the Legal Practitioner as to the severity of the sentence imposed on 20 February 1998.
(5) On 6 May 1998 the conviction was confirmed, but in lieu of a term of imprisonment imposed by the Learned Magistrate, sentence was deferred, with the Legal Practitioner being ordered to enter into a recognisance, himself in the sum of $1,000.00 to be of good behaviour for a period of three years.
(6) Sometime after 6 May 1998 the Legal Practitioner applied for and obtained employment as a solicitor with Messrs Magney & Rhodes. In breach of S48K of the Legal Profession Act, the Legal Practitioner failed to disclose his conviction to his employer.

4 The LSC sought in Schedule 3 of the Information that M's name be removed from the roll of legal practitioners, he pay the LSC's costs of the proceedings and such further orders as the Tribunal saw fit.

5 On 23 December 1999 M, who was at that time represented by Mr Rowley Stewart Cuddy, filed a Response. The Response admitted the facts referred to in Schedule 1, but denied that those facts could amount to professional misconduct.

6 The matter came before the Tribunal for directions on 7 February and again on 20 March 2000. A number of Applications were filed on behalf of M. On 20 March 2000 directions were sought that the respondent be referred to by his initial only. The Deputy President of this Tribunal made an order that the matter be listed as Law Society v M. The matter was then stood over until 1 May 2000. On 11 April 2000 the matter again came before the Deputy President. M was by that time appearing to represent himself. The Deputy President made orders vacating the directions made on 20 March and directed that there be a separate hearing on preliminary matters. As a result of those directions the matter came before the present Tribunal on 25 May 2000.

7 On that day M indicated that he was proceeding only with the Application dated 31 March 2000. M indicated to the Tribunal that the only issue for determination was whether there had been a failure on behalf of LSC to give reasons in accordance with the provisions of S.171J of the Legal Profession Act 1987.

Evidence

8 M relied on an Affidavit of himself sworn 31 March 2000. Annexure "A" to that Affidavit was a letter dated 11 November 1999 sent by the Professional Standards Department of LSC to M's solicitor informing M of the decision to institute these proceedings. So far as it is relevant the letter provided:

"This matter was considered by the Professional Conduct Committee of the Society at its meeting on 4 November 1999 when the Committee resolved as follows:

Resolved

That the Committee is satisfied there is a reasonable likelihood the Legal Practitioner will be found guilty by the Tribunal of professional misconduct and that proceedings be instituted in the Tribunal pursuant to s.155(2) of the Legal Profession Act 1987.

Professional Misconduct

a. The legal practitioner was convicted on four counts of committing an aggravated act of indecency of a person under the age of 16 years.
b. The legal practitioner failed to inform his employer of the convictions.

Orders to be Sought

The legal practitioner's name be removed from the roll."

9 In response to M's Application LSC relied on the following evidence:

a. An Affidavit of Raymond John Collins sworn 3 December 1999,
b. An Affidavit of Raymond John Collins sworn 28 March, 1999,
c. An affidavit of Michael Kenneth Adrian Rhodes sworn 14 November, 1999.

10 During the course of the hearing and by consent further documents were tendered. The documents became Exhibit 1 to Exhibit 6.

11 M relied on Written Submissions dated and filed 31 March 2000.

Issue

12 M agreed that there was no dispute that a complaint was notified to him in writing. There was also no dispute that an opportunity had been afforded to him to make Submissions that he had in fact made Submissions both in writing and by enclosing documents and reports. There was no claim that LSC had not taken sufficient time to consider those submissions. The issue before us was whether the letter dated 11 November 1999 contained reasons as required by s.171J and s.156 of the Act. A second issue which arose during the course of Submissions was whether, if that letter did not contain sufficient reasons, the Tribunal nevertheless has jurisdiction to hear the proceedings because the non-compliance with the Act was one which could be excused or corrected.

Submissions

13 M relied on Written Submissions which had been filed on 31 March 2000 and which were entitled "Written Submissions in Support of the Legal Practitioner's Application dated 31 March 2000". LSC relied on Written Submissions filed 5 May 2000 and entitled "Respondent's Reply and Submissions to Legal Practitioner's Application dated 31 March 2000". Both parties then spoke to their Written Submissions and after the close of the hearing some further Written Submissions were provided by LSC in the form of a letter dated 25 May 2000 from Mr Phillip Boyd, solicitor.

14 A decision was not handed down immediately as it came to the attention of the Tribunal that an appeal had been lodged to the Court of Appeal in the matter of Carson. With the consent of the parties it was decided to reserve the decision until such time as the appeal had been heard. The appeal in Carson has been heard but as yet no decision has been handed down. As these proceedings were heard on 25 May 2000 it was decided that judgment should be handed down without any further delay.

Authorities

15 The interpretation of the Disciplinary Scheme established by the Legal Profession Act, has been considered and explained in the following recent cases:

0.1 Barwick v Law Society of New South Wales & Ors 2000 168 ALR 236.
0.2 Murray v Legal Services Commissioner & Anor (1999) 46 NSWLR 224.
0.3 Carson v Legal Services Commissioner & Anor Unreported Simpson J, 23 February 2000.
0.4 Carson No 2 v Legal Services Commissioner & Anor Unreported Simpson J, 19 April 2000.

16 M's Submissions, both oral and in writing, were to the effect that the letter of the 11 November did not comply with the requirements of s.171J in that it did not provide any reasons. M conceded that the complaint was in writing and that he had been afforded an opportunity to make submissions in response to it. He conceded that there had been ample time between his response and the final decision to lay the Information. M argues that there are no reasons contained in that letter. M submits that as a result of reading the decisions of Barwick and Murray it is clear that that failure to give reasons results in this Tribunal not having jurisdiction to hear the Information.

17 M submits that the decision of Simpson J in Carson No 1 and Carson No 2 are distinguishable. He submits that in the Carson case Her Honour found that the letter sent did not comply with the requirements of s.171J, but made a decision that the proceedings could continue as she was in a position to make her own decision on that point and to give reasons. M submitted in effect that the decision in Carson made it even clearer that this Tribunal lacks jurisdiction to hear these Informations.

Submission of LSC

18 On behalf of the LSC it was submitted that the letter of 11 November is a sufficient compliance with s.171J. Evidence was given from the bar table that what is recorded in that letter are the only reasons that are available to be given to M. The evidence was that at meetings of the Committee, although a report may be tendered, it does not become part of the reason and that it is not supplied to the Legal Services Commissioner nor to the practitioner. The Tribunal was further informed that no separate reasons are recorded as required by s.156 of the Act. In fact there is no record made of any discussions which take place prior to a vote being taken.

19 It was submitted on behalf of the LSC that the letter of 11 November does provide sufficient reasons because those reasons are, in effect, obvious. M has pleaded guilty to a serious criminal offence which is quite recent in time and in those circumstances there is a reasonable likelihood that the Legal Practitioner will be found guilty by this Tribunal of professional misconduct. It is submitted that unlike the Murray or Carson matters there is no dispute as to the facts in the present matter. The Legal Practitioner has known from day 1 what conduct he is being held to account for. In those circumstances, it is argued that there is nothing further which needs to be provided by way of reasons.

20 In the alternative, it is submitted that if the letter does not comply with the requirements of s.171J that non-compliance should be excused because there is no dispute as to the facts and because there is no prejudice which has been occasioned to the Legal Practitioner by the omission to give reasons.

Findings

21 The letter of 11 November 1999 is in terms almost identical to the letters forwarded to Mr Murray and Mr Carson. The terms of the letter in Murray are set out at page 233 of the Report, paras 27 to 29. The relevant part of the letter read as follows:

"As I am satisfied that there is a reasonable likelihood that you will be found guilty by the Legal Services Tribunal of unsatisfactory professional conduct or professional misconduct."

22 The only relevant difference in the letters is that the one of 11 November makes it clear that it is professional misconduct which is being alleged.

23 With respect to the terms of that letter, Sheller JA said in Murray's case (paragraph 97):

"The Commissioner argued that his letter to Mr Murray of 4 May 1998 provided sufficient reasons to satisfy the requirements of the Act, when he wrote that he was satisfied that there is a reasonable likelihood that you will be found guilty by the Legal Services Tribunal of unsatisfactory professional conduct or professional misconduct.

In my opinion this statement does not qualify as reasons in the way the word is used in the Act. The Commissioner should, at least, have explained by reference to the material before him how he came to the conclusion that he did.

In Dornan v Riordan (1990) 24 FCR 564 at 573, the Full Federal Court held that a substantial failure to state reasons for a decision in the circumstances that a statement of reasons is a requirement of the exercise under the statute of the decision making power constitutes an error of law. Relevantly, this means that the Legal Practitioner has no means of knowing, as the legislature intended the Practitioner should, whether the decision making power has been properly exercised."

24 The other two judges in the Murray case agreed with the decision of Sheller, but only so far as it related to issues of procedural fairness. In the matter presently before the Tribunal there are no issues of procedural fairness.

25 Having read the letter of 11 November and noted the undisputed facts concerning the offences recorded in that letter the Tribunal accepts that the matter is a serious one and that in fact there may well be a finding of professional misconduct. M has apparently, however, made submissions and put on evidence to support a contention that the facts should not be found to amount to professional misconduct. The matter comes before us on a preliminary jurisdictional point and we have not seen any of this material. The letter is very similar in wording to the one which was found in Murray's case to be defective. Although there are different facts in both cases there is still nothing in the letter which provides the Legal Practitioner with any explanation of how the LSC reached the conclusion it did, nor are there sufficient reasons for the Legal Practitioner to be able to make a decision as to whether or not the power has been properly exercised. We find, therefore, that there has been an error of law and that s.171J has not been complied with.

26 The next question to be determined is whether or not that non-compliance can be excused. The Barwick decision of the High Court makes it clear 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 s.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 counsel or the Commissioner under s.155." (para 53)

27 It was conceded by M that there has been no denial of procedural fairness in the investigation of the matter. His only complaint is the failure of the letter of 11 November to give sufficient reasons. He submits that this failure itself amounts to a denial of procedural fairness, but conceded that none of the matters which concerned the court in the Barwick investigation affect this matter.

28 The failure comes at the conclusion of the investigation by LSC. In those circumstances it may be that the non-compliance is not one which affects the jurisdiction of this Tribunal.

29 The combined effect of the decisions in Murray and Barwick was considered by Simpson J in the matter of Carson.

30 At first we were referred only to Carson No 2 by Mr Boyd who appeared for LSC. It is clear, however, that both Carson No 1 and No 2 have to be read together before this point can be decided. The Tribunal is aware that the decision in Carson No 1 and No 2 is currently under appeal in the Court of Appeal. We understand, however, that they have reserved their decision and it may be up to six months before that decision is handed down. That being the case it seems we should proceed on the basis that the decision in Carson represents the law as it presently stands in New South Wales.

31 Her Honour considered the impact of Murray at a number of different points in the course of her judgment. The reference which is relevant to the present question commences at paragraph 135 under the heading "Other Procedural Matters". Her Honour there sets out the requirements of s.156 and s.171J of the Act. At paragraph 138 she sets out the terms of the letter which was forwarded to Mr Carson. The letter was in the following terms:

"Pursuant to s.171J of the Legal Profession Act, 1987 I wish to formally advise you that as a result of my intensive investigation into the complaint by Leszek Rajski that I have determined to institute proceedings against you in the Legal Services Tribunal in respect to each complaint made (attached hereto) as I am satisfied there is a reasonable likelihood that you will found guilty by the Legal Services Tribunal of unsatisfactory professional conduct or professional misconduct."

32 The letter contained some further information, but nothing which would show the reasoning process behind the decision. Her Honour said of this letter at paragraph 142,

"This is no more than a recitation of the statutory test contained in s.155(2) that the LSC was required to apply to the complaint before instituting proceedings in the Tribunal. It is, in effect, in apparently identical terms to the notification given to the claimant in Murray which the Court of Appeal held did not satisfy the requirements of the section. The same conclusion must be reached here. As in Murray , the failure to give proper reasons is an error of law in the decision to institute the proceedings. Although there is no direct evidence (the LSC hearing given no evidence) whether the record required by s.156 to be kept was ever made it is a reasonable inference from these matters set out above that it was not. This constitutes a breach of statutory duty. A separate question concerns the consequences of such an error."

33 Her Honour went on to decide that in the particular circumstances of Carson no consequences flowed from those errors. In the Carson matter the practitioner did not restrict himself in his summons to a claim that he had been denied procedural fairness. He had filed a great deal of evidence which was considered by Her Honour. In the circumstances Her Honour felt that it was appropriate for the matter to proceed rather than be remitted.

34 The practitioner in the present matter has confined himself to a jurisdictional argument only. This Tribunal has not had the opportunity and arguably does not have the power to follow the course followed by Simpson J in the matter of Carson.

35 It was submitted by LSC that the decision in Carson No 2 meant that the Tribunal would have jurisdiction to continue to hear this matter. The paragraph relied on was paragraph 2 of the decision where Her Honour states:

"I held that this decision was made in contravention of the rules of procedural fairness. However I determined that, having regard to the course the proceedings before me had taken, it would be inappropriate to declare the decision void (paras 130 - 133). I also held that, in addition to the denial of procedural fairness, legal error was established by the claimant in that the LSC failed to give reasons, as required by the Act, for the decision. In relation to this error I took the same view, that is, that the error should not, in the circumstances, have the consequences that the decision be declared void (para 143)."

36 Reading the two decisions together it seems to us that they are authority for the proposition that the present letter does not comply with s.171J and thus, absent special circumstances, this Tribunal will not have jurisdiction.

37 The special circumstances which existed in the Carson case do not exist here. The question then arises whether because there is no dispute on the facts in this matter and no real prejudice which can be pointed to by the practitioner, the failure to give reasons can be excused.

38 It is our opinion that the failure cannot be so excused.

Conclusion

39 Having found that the terms of s.171J have not been complied with results in this Tribunal having no jurisdiction to entertain the matter. Similarly, we have no jurisdiction to make any costs order. It us ultimately a matter for LSC, but it would seem that their standard procedure does not comply with the requirements of the Act as explained by recent decisions.

Orders

40 The Tribunal having no jurisdiction makes no order in this matter.