Law Society of New South Wales v Orford

[2007] NSWADT 134

Pending Appeal:

CITATION:	Law Society of New South Wales v Orford [2007] NSWADT 134
DIVISION:	Legal Services Division
PARTIES:	APPLICANT Council of the Law Society of New South Wales RESPONDENT John Laurence Orford
FILE NUMBER:	072005
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	4 June 2007
DATE OF DECISION:	21 June 2007
BEFORE:	Karpin A - ADCJ (Deputy President)
CATCHWORDS:	Further and better particulars
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal (Interim) Rules 1998 Legal Profession Act 1987 Legal Profession Act 2004
CASES CITED:	Etherton v. Public Service Board of NSW [1983] 3 NSWLR 297 Malfanti v. The Legal Profession Disciplinary Tribunal & Anor (NSWCA 23 August 1993)
REPRESENTATION:	APPLICANT C.A. Webster - barrister RESPONDENT R Lovas - barrister
ORDERS:	1. Respondent’s Application dismissed; 2. Costs reserved.

REASONS FOR DECISION

1 This is an application by the respondent, by Notice of Motion filed 23 May 2007, seeking orders that Complaints 1,2,3, and 5 of the Application for Original Decision filed 15 February 2007, be dismissed.

2 In the alternative, the respondent seeks orders staying those complaints, or such of them as the Tribunal considers appropriate.

3 The respondent filed extensive Submissions in Chief with the Notice of Motion.

4 On 4 April 2004, the Tribunal Directed that the respondent request, and the applicant provide, further and better particulars.

5 By letter dated 11 April 2007, the respondent requested further and better particulars.

6 On 24 April 2007 the applicant filed and served a response.

7 The respondent was dissatisfied with that response, and by letter dated 3 May 2007 requested further particulars.

8 On 3 May 2007 the applicant provided a reply which was served on the respondent on 11 May 2007.

9 At a Directions hearing on 2 May 2007, the Tribunal granted leave to the parties to file submissions in the Tribunal for a determination by the Tribunal, if the respondent remained dissatisfied with the replies provided by the applicant.

10 By letter to the applicant filed 14 May 2007, the respondent outlined continuing dissatisfaction with the replies furnished by the applicant.

11 Pursuant to the orders made in the Tribunal on 2 May 2007 the applicant, on 30 May 2007 filed submissions.

12 The respondent filed submissions in reply on 4 June 2007.

13 The present Notice of Motion arises consequent upon the Application for Original Decision filed by the applicant pursuant to s.551 Legal Profession Act 2004. That application contained 6 complaints of professional misconduct, each of which was particularized.

14 The entitlement to particulars is as set out by Hunt J. in Etherton v. Public Service Board of NSW [1983] 3 NSWLR 297.

15 Malfanti v. The Legal Profession Disciplinary Tribunal & Anor(NSWCA 23 August 1993) refers to the necessity that grounds of complaint be “easily comprehensible”.

16 The power to require the provision of further and better particulars is to be found in Part 3 Chapter 3 of the Administrative Decisions Tribunal (Interim Rules) 1998. The rules applicable to the Legal services Division are to be found in rr.21-38.

17 Rule 27 (2) (b) requires the respo9ndent in reply to :

…traverse each allegation in the information with which [he] takes issue and must state in summary form any material facts and circumstances on which the legal practitioner relies”
18 Rule 19 (2) (a) empowers the Tribunal to direct a party to provide the other party or parties or the Tribunal with further particulars.

19 The Legal Profession Act 2004 does not include a power to summarily dismiss or stay proceedings or a portion of proceedings. The Administrative Decisions Tribunal Act 1997 provides a limited power in s. 73(5) (h) to dismiss proceedings at any stage if:

“…it considers the proceedings to be frivolous or vexatious or otherwise misconceived or lacking in substance.”
20 The proceedings brought by the applicant do not fall within the provisions of s. 75(3) (h). The respondent’s application for summary dismissal or stay must fail.

21 As a matter of procedural fairness and natural justice, the respondent is entitled to have the allegations of professional misconduct with which he is faced, adequately particularized so that he is aware of precisely the matters alleged against him.

22 Having regard to the particulars in the Original Application, and the further and better particulars provided by the applicant, I do not consider the respondent can be in any doubt as to the nature of the alleged interests and duties of the respondent. They (acting for both lender and borrower) would be known to the respondent in the ordinary course of his practice as a solicitor.

23 I agree with the applicant’s submission that the respondent’s comment that certain particulars given are “unhelpful” is not relevant. The question is whether they are informative. In my view they are.

24 Similarly, the allegation of “non-responsiveness” is misconceived. References by the applicant to “statute, regulation or rule” are, where necessary, clearly made.

25 Further, it is my view that the applicant’s answer that `it is not the applicant’s obligation to set out what the respondent should have done, (e.g.) properly to secure the rights of a party, is responsive and in accord with normal practice in matters of this kind.

26 If the answer to a request for a particular is contained in some other document, I see no objection to that document being referred to. This is not a “global” reference. The only relevant question is one of fact: does the answer lie in the other document?

27 The particulars provided meet the conditions established which constitute proper particulars and, accordingly, the respondent’s application is dismissed.