Law Society of New South Wales v Young (No.2) (LSD)

[2001] NSWADTAP 19

Appeal Panel

CITATION:	Law Society of New South Wales -v- Young (No.2) (LSD) [2001] NSWADTAP 19
PARTIES:	APPELLANT The Council of the Law Society of New South Wales RESPONDENT Lesley McIntosh Young
FILE NUMBER:	999021
HEARING DATES:	14/06/2001
SUBMISSIONS CLOSED:	06/14/2001
DATE OF DECISION:	06/15/2001
DECISION UNDER APPEAL:	Law Society of New South Wales -v- Young
BEFORE:	O'Connor K - DCJ (President); Robinson WL QC -Judicial Member; Elliott K - Member
CATCHWORDS:	leave to extend to the merits
MATTER FOR DECISION:	Preliminary matter
FILE NUMBER UNDER APPEAL:	982002
DATE OF DECISION UNDER APPEAL:	09/03/1999
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Family Law Act 1975
CASES CITED:	Barwick v Law Society of New South Wales [2000] HCA 2 Law Society of New South Wales v Young [2001] NSWADT 17 Council of the City of Greater Wollongong v Cowan (1955) 93 CLR 435 Orr v Holmes (1948) 76 CLR CDJ v VAJ [1998] HCA 67 Lloyd v Veterinary Surgeons Investigating Committee [1999] NSWADTAP 3
REPRESENTATION:	APPLICANT Dr J Griffiths, counsel RESPONDENT P Capelin QC
ORDERS:	1. That leave not be granted to adduce further evidence in support of the grounds of appeal.

1 This is a further decision relating to the conduct of this appeal by the Law Society. In an earlier decision this Appeal Panel dismissed Ground 1 of the Amended Notice of Appeal filed 26 October 2000: Law Society of New South Wales v Young [2001] NSWADTAP 17. That ground had been added after the original notice of appeal was filed in light of the decision by the High Court in Barwick v Law Society of New South Wales [2000] HCA 2 (3 February 2001).

2 We have now commenced to deal with the original grounds of appeal as they were set out in the original Notice of Appeal filed 30 September 1999; and appearing as alternative grounds in the Amended Notice of Appeal. The grounds raise questions of law and questions as to the merits. Section 113(2) of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act) provides:

‘(2) An appeal:

(a) may be made on any question of law; and
(b) with the leave of the Appeal Panel, may extend to a review of the merits of the appealable decision.’
3 The alternative grounds are as follows:

‘Grounds of appeal on questions of law

1. In reaching its decision the Tribunal failed to take into account relevant considerations which it was obliged to consider.
2. Aspects of the Tribunal’s decision were perverse or irrational in the Wednesbury sense.
3. There was no evidence to support findings of fact made by the Tribunal.

Grounds for appeal on the merits
4. On the basis of all the evidence and the material, the Tribunal erred in imposing the penalties that it did and in not ordering that the solicitor be removed from the Roll of Legal Practitioners.
5. The Tribunal erred in making findings of fact.’

4 As foreshadowed in the appeal papers, the Law Society moved at the commencement of the hearing on 14 June 2001 for leave to adduce further evidence in support of its appeal. It seeks to have admitted affidavits of Carole Erica Ferguson made 22 December 1999 and Donald Keith Barton made 16 December 1999. The affidavits deal with circumstances related to the making of admissions of misconduct by the practitioner, Ms Young. Ms Ferguson was a legal officer with Prudential Fund Managers Limited. Mr Barton was, and remains, a solicitor in the Professional Standards Department of the Law Society.

5 At the commencement of the hearing on 14 June 2001 Dr Griffiths, counsel for the Law Society, provided the respondent and the Appeal Panel with written submissions in support of his motion. Mr Capelin QC, counsel for the practitioner, opposed the motion. Detailed oral submissions were made. The Appeal Panel reserved its decision.

6 The questions that the application to admit the affidavits raise are these:

1. Is it permissible for an Appeal Panel to receive further evidence prior to considering the questions of law raised by the appeal, and if such a power exists should it be exercised in this case?

2. Alternatively, is it permissible to consider the application for leave to extend the appeal to the merits at this stage (ahead of any error of law being identified), and, if so, should that occur in this case?
7 The Appeal Panel has only had a short time to deliberate on these questions. There are questions of power raised by both questions and then questions of discretion.

8 The course we will adopt in these reasons is to express some provisional views on the questions of power. We have considered whether if we do have the powers, we would be inclined to exercise either of them in favour of the application. Our view is that on neither account should any discretion be exercised so as to admit the new evidence.

9 In order to understand the matter it is unavoidably necessary to refer to the contents of the affidavits sought to be placed in evidence. To that extent the material must find its way in to this record of the Appeal Panel’s deliberations.

10 It is said essentially that the deliberations of the Tribunal below on penalty miscarried because the Tribunal did not have placed before it all relevant information. As we have explained in our first ruling in relation to this appeal (Law Society of New South Wales v Young [2001] NSWADT 17 (12 June 2001), the practitioner was charged with professional misconduct and unsatisfactory conduct in various ways (forging, propounding, misleading) arising out of two instances of forgery of the letters of administration of deceased estates. She admitted guilt, and the hearing before the Tribunal proceeded as a penalty hearing. There was limited factual material presented.

11 The Law Society asserts that it only came to its notice after the decision on penalty had been delivered that the practitioner had not disclosed critical information material to the question of whether the practitioner had made admitted both principal offences ‘voluntarily’ and ‘at the earliest opportunity’: see para [2] of the original decision: Law Society of New South Wales v Young [1999] ADT 78. See also para [25] especially points 1 and 2 of the original Tribunal’s summary of 10 factors that were taken into account by it on penalty:

‘1. The solicitor made initial confession in the Stone Estate to the Law Society before anyone from the Society came to her. She was no doubt expecting this to happen but she got there first.
2. The solicitor made voluntary confession of the matters in the Brebner estate which may well have escaped detection if she had not told her solicitor of it.’

12 The Tribunal imposed fines for professional misconduct and unsatisfactory professional conduct, a public reprimand and required regular inspections of her practice. It rejected the Law Society’s submission that she be struck off. In the notice of appeal the Law Society applies to the Appeal Panel for either an order setting aside the decision and remitting it to a differently constituted Tribunal or, if the Appeal Panel extends the appeal to the merits, an order that the practitioner’s name be removed from the roll.

13 Subsequent to the decision on penalty the Law Society said that it received more information relevant to the circumstances of Ms Young’s confession to the Law Society.

14 In her affidavit, Ms Ferguson refers to her discovery in early March 1998 that the document upon which her company had relied to release monies to the putative administrator of the estate of Stone was forged. She refers to her telephone conversation with Ms Young on 16 March 1998 about the matter. There followed a face-to-face meeting at Ms Young’s firm later that day. Ms Ferguson states that Ms Young denied any wrongdoing on that occasion. The next day, 17 March, there was a further meeting, at which Ms Ferguson indicated to Ms Young and a partner in Ms Young’s firm that she would be reporting the matter to the insurance regulator and the police. Later on 17 March there was a call from the partner in Ms Young’s firm to Ms Ferguson advising that Ms Young had gone to the Law Society to make admissions. These matters the Law Society contends are of such significance that they should have been known to the Tribunal, and that, consistent with the duty of candour, they should have been disclosed by the practitioner to the Tribunal on consideration of penalty.

15 The affidavit from Mr Barton gives further background as to the Law Society’s involvement in the matter. It was notified on Friday 13 March 1998 of the suspected forgery by the solicitors for a claimant in respect of the estate (Elliot Tuthill). There was also a report by fax to the Law Society from that solicitor on 16 March 1998 advising that Ms Ferguson had made contact with the firm of solicitors (Stacks) that employed Ms Young. That letter appears as Ex B to Mr Collins’ affidavit in the original proceedings (see below). The Law Society referred the matter to the Legal Services Commissioner on 17 March 1998.

16 The material placed before the original Tribunal is contained in the affidavit sworn 25 November 1998 by Raymond John Collins, Manager, Professional Standards Department.

17 The affidavit includes a detailed letter from Lloyd & Lloyd, solicitors for the practitioner, (Ex D) setting out a history in the matter. Up to para [48] the letter recites the history in relation to the handling of the estate of Stone. Para [48] deals with an event on 5 March 1998. There is no reference to any events on 13 and 16 March. The chronology resumes at [49] and [50] as follows:

‘49. On 17.3.98 Ms Ferguson (Solicitor of Prudential) attended upon the Solicitor [Ms Young] whereupon the latter advised Ms Ferguson that she had purported to certify a forged document.

50. I [Mr FD Lloyd, solicitor] was contacted by the Solicitor [Ms Young] on 18.3.98 and on the following day the Solicitor and I attended on you and Mr Ray Collins. Full disclosure was then made in respect of the affairs of the Estate.’

18 In the final para, [10], of his affidavit Mr Barton gives an explanation as to why the Law Society had not seen it as necessary to make contact with Prudential or Ms Ferguson and then states: ‘The first intimation of the full extent of the matters disclosed in Ms Ferguson’s affidavit occurred during the hearing at lines 25-42 of page 10 of the transcript of the solicitor’s evidence.’

19 We set out below a longer extract, being the passage from line 12 of page 10 to line 5 of page 11:

‘Q. When the circumstances of the Stone letters of administration document came to light, did you contact your solicitor, Mr Lloyd?
A. Yes, I did. I contacted him with the assistance of my husband.
Q. Sorry?
A. I contacted Frank Lloyd with the assistance of my husband.
Q. And did you attend at the office of the Law Society on 19 March 1998?
A. Yes, I did.
Q. That was shortly after you had received a letter from the solicitors in Adelaide?
A. No.
PRESIDING JUDICIAL MEMBER: Was that Elliot Tuthill?
MR CAPELIN: Q. Yes, Elliot Tuthill?
A. No, that wasn’t the reason I -
Q. Tell us the reason?
A. On the 17 March I had a conference with Carole Ferguson from Prudential at her request and as a consequence -
PRESIDING JUDICIAL MEMBER: Q. Was that by phone?
A. No, a face to face conference, and as a consequence of that I spoke with my husband that evening and contacted Mr Lloyd the following morning and then attended with him on the 19th.
MR CAPELIN: Q. What did you tell Mr Lloyd?
A. I told him of the circumstances of the conference with Carole Ferguson and I instructed him in relation to the matter of Stone and my conduct.
Q. Did he immediately arrange an appointment with the Law Society?
A. Yes, the first opportunity I had to see him was early that morning and then we went from his office to the Law Society.
Q. Straight to the Law Society?
A. Yes.
Q. And you told them what had occurred?
A. I did, through Mr Lloyd.
Q. Then after that you had a chance to have a full discussion with Mr Lloyd about your conduct. Did he ask you questions about other matters?
A. Yes, he did.
Q. And did you immediately tell him about the matter of Brebner?
A. Yes, I did.
Q. And did you instruct him to disclose that to the Law Society?
A. Yes, I did.’

Reception of Further Evidence on Question of Law

20 Dr Griffiths submits that it is open to the Appeal Panel to receive further evidence prior to dealing with the questions of law raised in a notice of appeal. He acknowledges that usually appellate bodies (such as courts of appeal) confine their consideration of question of law submissions to the text of the reasons for decision of the primary tribunal (or court), and to the extent necessary, take into account the record of the proceedings including exhibits. He referred primarily to two cases: Council of the City of Greater Wollongong v Cowan (1955) 93 CLR 435 and CDJ v VAJ [1998] HCA 67.

21 In Wollongong the plaintiff had lost a civil jury action for damages for personal injury by reason of negligence against the defendant Council. She had slipped on the linoleum floor at the Council’s rates office while attending there to pay her rates, and had been injured. She said that she had discovered fresh evidence since the trial and she was successful before the Full Court of the Supreme Court of New South Wales in her motion for a new trial. The High Court upheld the Council’s appeal and ordered that the motion for a new trial be dismissed. Dixon CJ observed at 444:

‘If cases are put aside where a trial has miscarried through misdirection, misreception of evidence, wrongful rejection of evidence or other error and if cases of surprise, malpractice or fraud are put on one side, it is essential to give effect to the rule that the verdict, regularly obtained, must not be disturbed without some insistent demand of justice. The discovery of fresh evidence in such circumstances could rarely, if ever, be a ground for a new trial unless certain well-known conditions are fulfilled. It must be reasonably clear that if the evidence had been available at the first trial and had been adduced, an opposite result would have been produced or, if it is not reasonably clear that it would have been produced, it must have been so highly likely at to make it unreasonable to suppose the contrary. Again, reasonable diligence must have been exercised to procure the evidence which the defeated party failed to adduce at the first trial.’

22 The Chief Justice refers to a passage in Orr v Holmes (1948) 76 CLR at 640-642:

‘The fact which the new evidence tends to prove, if it does not itself form part of the issue, must be well nigh decisive of the state of facts upon which the issue depends. The evidence must be so persuasive of the existence of the fact it tends to prove that a finding to the contrary, if it had been given, would, upon the materials before the court, appear to have been improbable if not unreasonable.’

23 The other case to which Dr Griffiths referred is CDJ v VAJ [1998] HCA 67. In that case the father objected to the Full Court hearing further evidence on the mother’s appeal over parenting orders made by the Court at first instance that two of their three children reside with the father. In this instance it was clear that the Full Court had statutory power to receive further evidence on appeal: Family Law Act 1975, s 93A(2). There the father submitted that the Full Court by having regard to further evidence from the mother, and then ordering that the case be retried had overstepped the mark set by the Wollongong case. The High Court by majority (McHugh, Gummow, Callinan JJ; Gaudron, Kirby JJ dissenting) upheld the father’s appeal, set aside the Full Court’s decision and restored the original decision.

24 The judgments are consistent to the following extent. The Family Court at original and Full Court level has a statutory power to receive further evidence. The Full Court is unfettered by statute in relation to its ability to consider the merits. The following views of Gaudron J were not in issue. Her Honour noted at [51] that the Wollongong case was concerned with the common law rules that govern the grant of new trials on the ground of discovery of fresh evidence. She said:

‘Those rules apply only if the evidence in question was not available at the trial and could not have been obtained by the exercise of reasonable diligence.’

She said at [52]:
‘There is, in my view, no reason for thinking that the common law rules which govern the admission of fresh evidence apply automatically to confine the discretion to receive further evidence conferred by s 93A(2) …’.

25 The Court also saw as significant that the paramount consideration in proceedings involving children is the best interests of the children. McHugh, Gummow and Callinan JJ at [87] said that:

‘In an appeal in which the upholding, varying or setting aside of a parenting order is the ultimate matter in issue, the principles which govern the resolution of that issue are the same for the Full Court as they are for the judge at first instance. Consequently the Full Court is bound to have regard to the best interests of the child as the paramount consideration when determining the appeal. It necessarily follows that, in exercising its discretion to hear further evidence in respect of an appeal concerning a parenting order, the Full Court must have regard to the effect that the further evidence may have in determining whether the best interests of the child require the upholding, varying or setting aside of the parenting order.’

26 The majority said at [104] (footnotes omitted):

‘In the exercise of the discretion conferred by a power such as s 93A(2), the critical factor is the subject matter of the proceedings with which the appeal is concerned. This is because the purpose of the power to admit further evidence is to ensure that the proceedings do not miscarry. Tests such as those in Wollongong Corporation based on the need for finality in litigation are therefore not necessarily applicable to cases in which the interests of third parties, such as children are at stake, although factors such as finality, discoverability of the evidence and its likely effect on the orders made are usually relevant to the exercise of the discretion. In an application at common law to admit further evidence, the court applies principles bordering on fixed rules. In an application under s 93A(2) and similar provisions, the Full Court or Court of Appeal weighs factors, although it may of course develop guidelines for weighing those factors and exercising the discretion.’

27 This Appeal Panel does not have an ample statutory provision dealing with the reception of further evidence. While the statutory scheme as it relates to the Appeal Panel is not specific on this matter, read as a whole it is our view that the Appeal Panel does nonetheless have such a power.

28 In relation to an appeal on a question of law, s 114 of the Tribunal Act provides:

‘114. Appeals on questions of law

(1) If an appeal under this Part is restricted to questions of law, the Appeal Panel is to determine the appeal and may make such orders as it thinks appropriate in light of its decision.
(2) The orders that may be made by the Appeal Panel on any such appeal include, but are not limited to, any of the following:
(a) an order affirming or setting aside the decision of the Tribunal (as originally constituted),
(b) an order remitting the case to be heard and decided again by the Tribunal (as originally or similarly constituted), either with or without the hearing of further evidence, in accordance with the directions of the Appeal Panel,
(c) an order made in substitution for an order made by the Tribunal.’
29 It follows, as we see it, from the power given by s 114(2)(b), allowing for the possibility of remitter ‘with … the hearing of further evidence’, that an Appeal Panel on a question of law might have cause to consider further evidence, at least to the extent of assessing whether it is significant enough to direct the original tribunal to consider it.

30 Clearly in a case where leave is given to extend an appeal to the merits, further evidence might be allowed. That is consistent with the duty to make the correct and preferable decision (see s 115(1)).

31 Consequently, the critical question on this occasion is whether the discretion to admit should be exercised in favour of the Law Society. Despite the breadth of the power conferred on the Full Court of the Family Court by s 93A(2) of the Family Law Act, the majority in the JVD did not agree with the Full Court’s decision to undertake a reconsideration of the merits based on further evidence acquired by the mother since the hearing before the trial judge. It is not enough that the new evidence is ‘useful’. Such an approach is inconsistent with the nature of appellate jurisdiction (see JVD at [113]). At [116] the majority comment: ‘Where the evidence has been deliberately withheld, the failure to call it will ordinarily weigh heavily in the exercise of the discretion. In other cases, the failure to call the evidence even it could have been discovered by the exercise of reasonable diligence may be of little significance.’

32 Later at [149] the majority notes that the proper exercise of the discretion in the circumstances of this case required the Full Court to be affirmatively satisfied of two things. ‘The first was that, given the findings of the trial judge, the further evidence if tendered before him was likely to have produced a different result. … The second was that the best interest of the children required rehearing of the husband’s application …’.

33 As to the latter consideration the majority observed at [153]:

‘Wide as the discretion conferred by s 93A(2) undoubtedly is, apart from such truly exceptionable cases, more is required for its exercise and the ordering of a new hearing than a real chance that the order under appeal does not serve the best interests of the child … The views of appellate judges about the proper order to be made will not infrequently conflict with those of the primary judge. Yet, absent legal error or a plainly unjust error, the order of the primary judge must stand, irrespective of any views that the appellate judges have about the conclusions of the primary judge.’

34 In the present case, the material, if admitted, would give rise to a conclusion that there is a gap in the practitioner’s account of the events as to what triggered her admissions to the Law Society. In our view, that there was such a gap was plain on the face of the material before the original Tribunal. The transcript of the questions asked in chief of the practitioner by her counsel, cited earlier, touch on the events that belong to the period between 5 March and 17 March. The Law Society had the opportunity, at least once the exchange recorded in the transcript occurred, to test her statements; or seek an adjournment to make further enquiries. If this period is now to be investigated, it would probably then become necessary for the practitioner to be called on to give details in relation to these matters, be cross examined and for the same to occur in relation to Ms Ferguson.

35 We are not satisfied that had the events of 13-17 March 1998 (as recorded in the affidavits) been known to the original Tribunal that that material would have been likely to have produced a fundamentally different result, i.e. striking off. There were a wide variety of matters that led to its conclusions as to penalty. It does not seem to us that the Tribunal’s conclusions as to the voluntariness of the confessions would have been significantly affected by the new information sought to be adduced. Factor 1, cited at para [11] above, suggests to us that the Tribunal recognised that the voluntariness of her confessions had a mixture of motives.

36 In making these observations we are mindful of the importance of the public interest served by the professional disciplinary system. Central to its operation is the duty of candour owed by registered practitioners to their peers and to the public in respect of enquiries or complaints as to their conduct. Analogously, the majority in the JVD case acknowledged the high public interest in the welfare of children, but it sounded caution over receiving further evidence at the appellate level.

37 We are not satisfied in this case that we should give leave for the evidence contained in the two affidavits to be adduced.

Immediate Extension of Appeal to the Merits of the Original Decision

38 We do not consider it necessary on this occasion to express a concluded view on the first part of the second question, i.e. whether leave to extend to the merits can be given at the outset of an Appeal Panel hearing before any error of law in the proceedings below has been identified. Our provisional view is that the relevant provisions, para (a) and (b) of s 113(2) reflect a sequential approach to the conduct of an appeal. First there must be a question of law, and then ‘with the leave of the Appeal Panel’ the appeal ‘may extend to a review of the merits of the appealable decision.’ It would, in our view, be quite unjust to respondents to appeals if they were to be placed at risk of losing the benefit of a decision at first instance without an error of law first being found. We interpret the statute as contemplating that the ‘question’ of law must give rise to a finding of error before an appeal can be ‘extended’. We are not persuaded by the observations on this matter by a different Panel in Lloyd v Veterinary Surgeons Investigating Committee [1999] NSWADTAP 3. But if we are wrong in these views, we would nonetheless on this occasion not grant leave at this stage nor receive further evidence for the reasons given in relation to the first question.

39 We will now resume to consider the alternative grounds of appeal without regard to the material contained in the affidavits.

40 If an error is established, a further application for leave to extend to the merits is not precluded.

Order

1. That leave not be granted to adduce further evidence in support of the grounds of appeal.