Law Society of New South Wales v Nair

[2007] NSWADT 190

CITATION:	Law Society of New South Wales v Nair [2007] NSWADT 190
DIVISION:	Legal Services Division
PARTIES:	APPLICANT Council of the Law Society of New South Wales RESPONDENT Mani Subramaniam Nair
FILE NUMBER:	062032
HEARING DATES:	23 July 2007
SUBMISSIONS CLOSED:	23 July 2007
EXTEMPORE DECISION DATE:	23 July 2007
DATE OF DECISION:	21 August 2007
BEFORE:	Chesterman M - ADCJ (Deputy President); Greenwood J - Judicial Member; O'Neill A - Non Judicial Member
CATCHWORDS:	Admissibility of evidence
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Evidence Act 1995 Evidence Act 1995 (Cth) Legal Profession Act 2004
CASES CITED:	Brown v Commissioner of Taxation [2001] FCA 240 Rogers v Rogers (1964) 114 CLR 608
REPRESENTATION:	APPLICANT P Boyd, solicitor RESPONDENT A Horowitz, solicitor
ORDERS:	Objection to evidence upheld.

EX TEMPORE DECISION

1 These are written reasons, furnished under s. 89(3) of the Administrative Decisions Tribunal Act 1997, for a decision given ex tempore on 23 July 2007. That decision related to the admissibility of certain evidence tendered by the Applicant, the Law Society of New South Wales, at the hearing of a disciplinary application in which it was alleged that the Respondent solicitor had engaged in professional misconduct. The Applicant’s request for written reasons was made to the Registrar on 25 July 2007.

Reasons

2 We have given consideration to an objection raised by Mr Horowitz, on behalf of the Respondent, to the admission of certain annexed copies of letters constituting annexures C, E and G to the affidavit, tendered by the Applicant, that was sworn by Mr Raymond Collins on 8 December 2006. That objection was also prospectively extended to a statement by the Respondent forming part of the material annexed to an affidavit that had not yet been formally tendered, sworn by Ms Jean Sayer.

3 The objection was also initially taken in relation to a further annexure to Mr Collins’ affidavit (annexure H), but then Mr Boyd on behalf of the Applicant indicated that he would not press the inclusion of that annexure with the tender.

4 The basis of the objection is that these three annexures, which are letters to the Applicant from a solicitor representing the Respondent at the time, and the statement by the Respondent should not be admitted into evidence by virtue of s. 131(1) of the Evidence Act 1995. This subsection, to put it broadly, requires the exclusion of evidence of (a) communications made during settlement negotiations, or (b) documents prepared in connection with such negotiations, subject to a number of exceptions that are listed in s. 131(2).

5 It is common ground that the provisions of the Evidence Act apply to these proceedings, since they are proceedings for professional misconduct.

6 Each of the three letters annexed to the affidavit of Mr Collins contains one or more indications that the solicitor then acting for the Respondent was requesting that the Applicant should impose a relatively mild disciplinary sanction on the Respondent (such as restricting his practising certificate) on the basis that the Respondent made certain admissions. Some passages in these letters comprise admissions made on the Respondent’s behalf, and he made other admissions in his own statement. A copy of this statement was enclosed with one of the letters.

7 Our view is that the objection should be upheld on the grounds that have been put in support of it. We are satisfied that, by virtue of the features of the letters and the statement that we have just identified, each of them is ‘a communication… made between persons in dispute… in connection with an attempt to negotiate a settlement of the dispute’, within the meaning of s. 131(1)(a). Each of them appears also to be a ‘document… prepared in connection with’ such an attempt, within the meaning of s. 131(1)(b).

8 Mr Boyd argued that because the letters and the statement were not headed ‘without prejudice’, the exclusionary rules set out in s. 131(1) could not apply. But we accept Mr Horowitz’s contention, based on dicta of the High Court in Rogers v Rogers (1964) 114 CLR 608 at 614, that the presence or absence of this phrase is not determinative of this question.

9 The present proceedings had not been instituted at the time of these communications or of the preparation of these documents, but there was in our judgment a ‘dispute’ between the Applicant and the Respondent. The position then adopted by the Applicant had the potential to result in contested proceedings within the Tribunal (as has in fact happened). The dispute between them at that time accordingly fell within the terms of s. 131(5)(a), which defines ‘dispute’ for the purposes of the section, as ‘a dispute of a kind in respect of which relief may be given in an Australian or overseas proceeding’.

10 Support for these conclusions is to be found in Brown v Commissioner of Taxation [2001] FCA 240. Here Emmett J held that a ‘dispute’ within the equivalent provision (s. 131) of the Evidence Act 1995 (Cth) had arisen between the Commissioner of Taxation and a taxpayer, on the ground that a meeting had been held between officers of the ATO and the taxpayer in order to discuss a prior difference of views as to whether the value of a home unit should be included in the taxpayer’s assessable income. At [20], Emmett J said:-

The amended assessment which is in issue in the proceeding had not been issued at the time of the meeting on 9 October 1995. That, however, is not decisive. Nor is the fact that there was no proceeding on foot. Under s. 131(5)(a) a reference to a dispute is a reference to a dispute of a kind in respect of which relief may be given in an Australian proceeding. Clearly, a dispute as to whether the value of the Unit should be treated as assessable income of the Taxpayer is a dispute within s. 131.

11 Furthermore, having taken account of the provisions (in s. 564) for consent orders to be made under the Legal Profession Act 2004 in misconduct proceedings, we are satisfied that the reference to ‘settlement of a dispute’ within s. 131(1) of the Evidence Act can embrace a settlement of this type of dispute.

12 Mr Boyd submitted that s. 131(1) did not apply because the case fell within s. 131(2)(c). This creates an exception where the substance of the evidence in question has been partly disclosed with the consent of the persons in dispute and full disclosure is reasonably necessary to enable a proper understanding of other evidence that has already been adduced. There is, however, no evidence of any consent to disclosure on the part of the Respondent.

13 Mr Boyd also submitted that s. 131(1) should not be interpreted so as to apply to admissions by a party to the proceedings. There is, however, no express provision to this effect in the exceptions set out in s. 131(2), and we see no reason why such a limitation might be held to arise by implication.

14 This ruling applies, as we have said, to annexures C, E and G to Mr Collins’ affidavit. Prospectively, it extends also to the copy of a statement by the Respondent annexed to the affidavit by Ms Sayer that has been filed. The annexed material in that affidavit is at pp 22 to 27.

15 It may be that within the evidence still to be tendered by the Applicant there exists other material to which this ruling may apply, but we make no comment on that issue at this stage. We simply leave it open to Mr Horowitz to argue that further material should be covered if any such material is identified.