Law Society of New South Wales v M (No 2)

[2001] NSWADT 54

CITATION:	Law Society of New South Wales -v- M (No 2) [2001] NSWADT 54
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:	02/19/2001
DATE OF DECISION:	03/16/2001
BEFORE:	Norton S - Judicial Member; Mattila J - Judicial Member; Bubniuk L - Member
APPLICATION:	Non publication order
MATTER FOR DECISION:	Application for non-publication order
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Legal Profession Act 1987
CASES CITED:
REPRESENTATION:	APPLICANT P Boyd, solicitor RESPONDENT In person
ORDERS:	1. The Tribunal makes no further order.

1 The Tribunal handed down its decision in this matter on 9 October, 2000. The facts of the actual application are sufficiently outlined in that decision and do not require repetition.

2 As noted in paragraph 6 of that decision this matter came before the Deputy President for directions on 20 March 2000 and again on 11 April 2000. On 20 March 2000 the respondent was represented by Mr Mockler. On that occasion the respondent's solicitor made an application that the matter be heard in a closed court. The respondent relied on an affidavit of himself sworn 28 February 2000. The Deputy President declined to make the order sought, but made the following order:

"I direct that when the matter is listed for hearing, that is the hearing of the complaint, it shall be listed as Law Society v. M, for the legal practitioner, instead of the name of the legal practitioner. Paragraph 6 of the amended application can be dealt with by the tribunal hearing the application, and I note that on that occasions the tribunal will decide whether such order should be made in light of the fact that the information does allege professional misconduct."

3 The matter came before the Deputy President again on 11 April, 2000. On that occasion the respondent appeared in person. The respondent indicated that he requested various privacy orders be made. The Deputy President held:

"I think I remain of my previous view in relation to the privacy question, that that can be decided by the tribunal that hears the information, because they will be more clear (as to) what material is involved and they can decide before they give their judgment how they are going to deal with it. They may wish to deal with it by making a privacy order and they may wish to deal with it by simply identifying people by initials rather than full names."

On that occasion the matter was dealt with in a closed court.

4 The matter came before the present tribunal on the jurisdictional point on 25 May, 2000. That jurisdictional point is covered by our decision of 9 October, 2000. The submissions on that day primarily concerned the jurisdictional point. During the course of that hearing the respondent appeared in person and was referred to as Mr M. He is also noted as being Mr M in the transcript. At the close of the hearing the following discussion took place:
"Presiding
Judicial Member: Any decision we hand down I take it there is no objection to it being referred to as M?
Mr Boyd: No, no I agree with the order.
Presiding
Judicial Member: Made on the prior occasion.
Mr Boyd: Yes.
Presiding
Judicial Member: Could it be noted that any transcript that is taken out the legal practitioner should be referred to as M and similarly in any decision that we give the practitioner be referred to as M."
5 The respondent did not at that time request any different order under the provisions of Section 75.

Legislation

6 The respondent now seeks an order under Section 75 of the Administrative Decisions Tribunal Act, 1997. That section provides:
"(1) If proceedings before the Tribunal are to be determined by holding a hearing, the hearing is to be open to the public.
(2) However, if the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders:
(a) an order that the hearing be conducted wholly or partly in private,
(b) an order prohibiting or restricting the publication of the names and address of witnesses appearing before the Tribunal,
(c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal,
(d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings.
(3) Mediation sessions and neutral evaluation sessions under Part 4 are to be conducted in private."

Submissions and Evidence

7 On 14 October, 2000 the respondent wrote to the President of this Tribunal informing him of Section 11 of the Children (Criminal Proceedings) Act and requesting the Tribunal make a direction prohibiting publication. That letter annexed an article published in the Australian Financial Review of 13 October, 2000.

8 The President of this Tribunal replied to the respondent by letter dated 2 November, 2000 informing him that the matter would be placed before the present Tribunal.

9 After being made aware of the application we requested both parties make written submissions. The respondent made written submissions by letter dated 29 November, 2000 addressed to the Registrar of the Tribunal. The applicant made submissions in letter dated 17 January, 2001. In that letter the applicant raised the question of whether or not the Tribunal was now functus. In support of that proposition it was stated that:

"It would appear that the making of such an order is only open to the Tribunal as constituted to hear the then substantive matter. I would respectfully suggest to the Tribunal that the substantive matter having been disposed of, there is no apparent scope, at this time, for the making of the order sought. If the Tribunal agrees that this is a matter which warrants its further consideration, I am happy to have the Tribunal provided with submissions and authorities on this specific point."
10 The applicant was requested to provide those submissions and authorities, but by letter dated 19 February, 2001 it submitted:
"The Society has nothing further to add to its letter of 17 January, 2001."
11 The Tribunal then reconvened to consider the submissions made by the parties. The only evidence is the copy of the article in the Financial Review and the information contained in the applicant's letter of 29 November, 2000. That letter contained a suggestion that a relative of the applicant's wife had contacted the applicant's wife after reading the article in the newspaper.

12 The applicant submitted that there was a small risk that other persons who "know our family could draw conclusions as to the identity of the victims of my offences." The applicant then submitted that personal information should be removed from the judgement which is presently published on the Tribunal's website.

Findings

13 The Tribunal reconvened to consider the respondent's application in this matter. It was composed of the same members who heard the original jurisdictional point. In those circumstances the Tribunal is of the opinion that it would have the power to make an order under that section even though the hearing had completed.

14 The judgement as presently published does not refer to the respondent by name nor does it, in our opinion, give any details which would tend to identify the victims of his offences. The only information tending to identify the respondent is the information concerning the criminal matter to which he pleaded guilty and the name of the firm of solicitors to whom he applied for employment, but failed to disclose his conviction.

15 We note that at all times in the judgment and the transcript the respondent has been referred to by an initial only. There is no detail in either the transcript or the decision of the matters to which the respondent pleaded guilty. There has been no evidence tendered which would go towards showing that the victims of the respondent's conduct have been identified because of the matters published in the judgment. We note that no more extensive order was sought by the respondent when the matter came before us on 25 May. There is nothing that has happened since then which in our minds suggests that the privacy provided by reporting the matter under a pseudonym is insufficient.

16 The Tribunal therefore declines to make any further orders. We note that neither party has made any submissions with respect to the question of the costs of this application.

Orders

17 The Tribunal makes no further order in this matter. Each party is to pay its or his own costs.