Law Society v Ford

[2024] ACTSC 255

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Law Society v Ford

Citation: 

[2024] ACTSC 255

Hearing Date: 

16 August 2024

Decision Date: 

16 August 2024

Before:

Mossop J

Decision: 

See [20]

Catchwords: 

PRACTICE AND PROCEDURE – MEDIATION – Application by defendant for court-ordered mediation pursuant to r 1179 of the Court Procedures Rules 2006 (ACT) – application opposed by plaintiff – utility of mediation in matter with long procedural history and where parties have significantly conflicting positions – application dismissed

PRACTICE AND PROCEDURE – DIRECTIONS – Application by plaintiff to retrospectively vary timetable for filing of written submissions – where consent refused by defendant unreasonably – where plaintiffs filed detailed affidavit evidence explaining delay – order varying filing timetable appropriate 

Legislation Cited: 

Legal Profession Act 2006 (ACT), ss 27, 431

Court Procedures Rules 2006 (ACT), r 1179

Cases Cited: 

Council of the Law Society of the ACT v LP 202012 (Hugh Ford) (Occupational Discipline) [2024] ACAT 11

Legal Practitioner LP 202012 v The Council of the Law Society of the Australian Capital Territory [2023] ACTSC 391

LP 202012 (Hugh Ford) v Council of the Law Society of the ACT (Appeal) [2024] ACAT 12

Parties: 

The Council of the Law Society of the Australian Capital Territory ( Plaintiff)

Hugh Ford ( Defendant)

Representation: 

Counsel

D Moujalli ( Plaintiff)

Self-represented ( Defendant)

Solicitors

Thomson Geer ( Plaintiff)

Self-represented ( Defendant)

File Number:

SC 10 of 2024

MOSSOP J:

Introduction

1․I have before me two applications in proceeding. The first is an application by the defendant, Mr Ford, to have the proceedings stayed pending a mediation. The second is an application by the plaintiff, the Council of the Law Society of the Australian Capital Territory (the Law Society) for a retrospective variation in the timetable for the filing of certain written submissions.

Application by Mr Ford

2․The application in proceeding brought by Mr Ford seeks to have the proceedings “referred for mediation” and that the “proceedings … be stayed pending the outcome of the mediation”. In oral submissions, this was articulated as being an application pursuant to r 1179 of the Court Procedures Rules 2006 (ACT).

3․The grounds upon which the defendant purports to rely in support of his application are that:

The Defendant is innocent of all charges.

The Law Council and the ACAT have acted unlawfully in this matter.

The Director of Professional Standards at the ACT Law Society has engaged in unlawful conduct at the ACT Law Society for the last 20 years.

The Defendant has complained about the conduct of the Director of Professional Standards to the ACT Integrity Commission.

The Commission has undertaken to investigate the matter.

4․None of these grounds make any explicit reference to the matter being referred to mediation, nor is there any apparent reasoning in these grounds which would necessarily support the defendant’s application to refer the matter for mediation.

5․The affidavit in support of the application is an affidavit of Mr Ford, dated 24 July 2024. That annexes the complaint dated 17 July 2024 that he has made to the ACT Integrity Commission and the response from the Commission. The complaint which is annexed contains a number of express or implied allegations relating to the conduct of the former Director of Professional Standards at the Law Society, Mr Reis. While I have had regard to the individual allegations, it is not necessary to repeat them in these reasons. The response from the Integrity Commission is in an email dated 22 July 2024. That email acknowledges receipt of the complaint and states that “the Commission will assess the material to determine what, if any, action it will take with respect to your report”.

6․The underlying proceedings are proceedings before a Full Court of the Supreme Court for the removal of Mr Ford from the roll of people admitted to the legal profession maintained by the Supreme Court pursuant to s 27 of the Legal Profession Act 2006 (ACT). The proceedings were commenced by Originating Application on 11 January 2024. The hearing is listed before a Full Court on 4 and 5 November 2024. The proceedings arise out of a decision of the ACT Civil and Administrative Tribunal (ACAT): LP 202012 (Hugh Ford) v Council of the Law Society of the ACT (Appeal) [2024] ACAT 12. That decision confirmed an earlier decision of the Tribunal recommending that Mr Ford’s name be removed from the roll of legal practitioners kept by the Supreme Court of the Australian Capital Territory: Council of the Law Society of the ACT v LP 202012 [2024] ACAT 11. An application for leave to appeal from that decision was refused by the Supreme Court: Legal Practitioner LP 202012 v The Council of the Law Society of the Australian Capital Territory [2023] ACTSC 391.

7․In oral submissions, Mr Ford put the application on a different basis from that which was contained in the application in proceeding. He submitted that there was a high potential that a mediation would lead to a settlement. He indicated that his practising certificate had been cancelled in 2018 and that, having regard to his age, he was not likely to return to practice. He indicated that he may be willing to offer undertakings not to practice and make an offer in relation to the costs of the various proceedings. He submitted that there was potential for there to be agreement in relation to costs. It was those matters, which he submitted, that may usefully be the subject of the mediation.

8․Counsel for the Law Society pointed to some of the findings made by the ACAT appeal decision which were very significant, including findings of dishonesty on Mr Ford’s part. He submitted that the Law Society needed to perform its regulatory functions in light of those findings and that, ultimately, it would be a matter for the court having regard to the court’s perception of appropriate standards within the profession as to whether or not Mr Ford should remain on the roll of practitioners. He submitted that it was open at any time for Mr Ford to agree to the orders sought. He submitted that the costs consequences of the ACAT and court proceedings flowed from the Legal Profession Act2006 (ACT) itself and that there was, in those circumstances, no utility in compelling a mediation.

9․In further submissions, counsel for the Law Society agreed that there may be some utility of discussions in relation to the issue of costs, in relation to Mr Ford’s contest to the jurisdiction of the Full Court and in relation to the potential for Mr Ford to consent to the substantive orders that were sought. He indicated that the Law Society would comply with any order that the court made in relation to mediation.

10․The nature of the case and its procedural history is such that, in my view, it is not appropriate to refer the matter to mediation or to stay the present appeal pending that mediation. I accept that there is the possibility of the proceedings resolving if Mr Ford were to consent to the orders sought. I accept the submission that the Law Society may, in light of the findings of the ACAT, perceive that it has limited room for negotiation. I accept that there is potential for discussions about the quantum of the costs liability that might flow to Mr Ford arising from the ACAT and Supreme Court proceedings. I accept that there is potential for the shortening of the hearing before the Full Court if agreement can be reached, either in relation to the substantive orders sought, in relation to costs, or in relation to the scope of arguments to be run. I consider, however, that it is unlikely that there is any useful potential for negotiation as to the effect of s 431 of the Legal Profession Act 2006 (ACT) or the contention by Mr Ford that the court lacks jurisdiction as a result of jurisdictional errors that have occurred in relation to the disciplinary proceedings to date. It seems to me that these are unlikely to be areas where any negotiated alteration of either party’s position is likely to occur.

11․Notwithstanding that there is some potential for negotiation on some issues, I do not consider it an appropriate case in which to compel a mediation. The possibility that an offer that would resolve or shorten the proceedings could be made by Mr Ford was only discussed for the first time in open court today. Any such offer has not been formulated in a detailed manner or in writing. It was not an offer which was able to be considered by the representatives of the Law Society on the run.

12․There is no indication that the Law Society would not respond to any offers to resolve or shorten the proceedings in a manner consistent with its model litigant obligations. There is no indication that the Law Society would not consider any such offer in good faith in an attempt to resolve or shorten the proceedings before the Full Court. Model litigant obligations are not obligations to capitulate or to do less than what is required to fulfil the statutory obligations of the model litigant in the public interest. They are obligations to act with scrupulous fairness bearing in mind any power imbalance that may exist between the parties.

13․I am not satisfied that the circumstances of this case warrant any compulsion to mediate in relation to Mr Ford’s recently announced potential offers. As I have indicated, that is particularly so in relation to the dispute between the parties as to the operation of s 431 in circumstances where there is an allegation of jurisdictional error.

14․Further, I am not satisfied that it is appropriate that this present application be adjourned undetermined. I do not consider that it is appropriate to have a further interlocutory step undetermined in a manner that might divert focus of the parties from preparation for the upcoming hearing.

15․Insofar as the evidence includes the fact that Mr Ford has made a complaint to the ACT Integrity Commission, there is no apparent link between that fact and the utility of ordering a mediation and staying the substantive proceedings pending the mediation. It therefore does not provide an additional or alternative basis upon which to make the orders sought.

16․I therefore decline to make the orders sought and will in due course dismiss Mr Ford’s application.

Application by the Law Society

17․After the proceedings were commenced in January 2024, on 30 May 2024 Mr Ford filed an application in proceeding contesting the jurisdiction of the court to deal with the Law Society’s application and seeking various other relief. On 19 June 2024, I directed that the application be heard at the same time as the substantive proceedings. I also made directions requiring the filing of written submissions relating to Mr Ford’s application and they include a direction that the Law Society file its submissions by 31 July 2024. On 31 July 2024, I made an order by consent extending that time until 5 August 2024.

18․The Law Society’s submissions were only ultimately filed and served on 12 August 2024. The Law Society sought the agreement of Mr Ford to a variation of the court’s orders so as to regularise the late filing of those submissions. In a letter of four‑and‑a‑quarter pages, Mr Ford refused such consent. The letter made some quite serious allegations about the conduct of the solicitor for the plaintiff. It is unnecessary to repeat those allegations but the allegations to which I am referring occur, in particular, at paragraphs 24, 25, 30 and 37 of the letter at Annexure A to the affidavit of Katie Elizabeth Miriam Binstock dated 13 August 2024.

19․By application in proceeding dated 13 August 2024, the Law Society seeks an order extending the time for the plaintiff to file and serve its written submissions to 12 August 2024.

20․The application is supported by an affidavit of Ms Binstock dated 13 August 2024. The provision of such sworn evidence on an application such as this is appropriate. The affidavit includes a detailed recitation of the factual circumstances in which counsel for the Law Society was unable to complete the written submissions by the extended date of 5 August 2024 and only able to complete them and provide them to Ms Binstock on 11 August 2024. She then served unsealed copies of the written submissions on Mr Ford that day and sealed copies of the submissions on 12 August 2024.

21․As pointed out earlier, on 19 July 2024, the proceedings were listed for hearing on 4 and 5 November 2024. It is very apparent that the late service of the written submissions of the Law Society will have no significant adverse consequence for Mr Ford or the court. The circumstances leading to the failure to comply with the direction to file them by 5 August 2024 have been properly disclosed and did not demonstrate any unreasonable conduct on the part of the solicitor for the Law Society or counsel for the Law Society. It is appropriate to make the order sought in the Law Society’s application. The nature of the order was, in the circumstances, an order which ought reasonably to have been consented to. I will, therefore, make the orders sought by the Law Society.

Costs

22․I will hear the parties as to costs of both applications.

[The parties were heard on costs]

23․Counsel for the Law Society submitted that the appropriate order in the circumstances was that costs of both applications be costs in the cause. Mr Ford made no submissions to the contrary. I consider this to be the appropriate order in the present case.

Orders

24․The orders of the Court are:

1.The application in proceeding dated 24 July 2024 is dismissed.

2.The time in which the plaintiff is to file and serve its written submissions in relation to the defendant’s application in proceeding made on 30 May 2024 is extended from 5 August 2024 to 12 August 2024.

3.The costs of the application in proceeding dated 24 July 2024 and the application in proceeding dated 13 August 2024 are costs in the cause.

4.The defendant is directed to file and serve any submissions in reply in relation to his application in proceeding made on 30 May 2024 limited to not more than 20 pages by 30 September 2024.

I certify that the preceding twenty-four [24] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.

Associate:

Date: 2 September 2024