Legal Profession Conduct Commissioner v A Practitioner (No 2)

[2017] SASC 93

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Application)

LEGAL PROFESSION CONDUCT COMMISSIONER v A PRACTITIONER (No 2)

[2017] SASC 93

Judgment of The Honourable Justice Nicholson

23 June 2017

PROFESSIONS AND TRADES - LAWYERS - COMPLAINTS AND DISCIPLINE - DISCIPLINARY PROCEEDINGS - SOUTH AUSTRALIA

PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - JUDGMENTS AND ORDERS

PROCEDURE - COURTS AND JUDGES GENERALLY - COURTS - PROCEEDINGS IN OPEN COURT OR IN CAMERA

This Court refused an application by the Legal Profession Conduct Commissioner for an interim order suspending the practitioner’s practising certificate pending the outcome of disciplinary proceedings. The judgment was published to the parties in open court with an unredacted title.

The practitioner made an oral application for an order that any electronic publication of the judgment refer to him as ‘A Practitioner’ rather than by name.

Whether there is any practice or custom to redact the name of a practitioner in a judgment where legal practitioner disciplinary proceedings are involved – Whether the Court should exercise the discretion to redact the name of the practitioner where the proceedings are of an interlocutory nature.

HELD: Allowing the application

1.  It is within the discretion of a judge of this Court to publish a judgment, in a matter in which a legal practitioner is a party, with the name of a practitioner redacted. However there is no practice or custom to the effect that in matters involving legal practitioner disciplinary proceedings the name of the practitioner will be redacted.

2.  When considering whether or not to redact the name of a practitioner, relevant considerations will include: whether the publication of a judgment in unredacted form might unfairly and unnecessarily cause prejudice, whether the proceedings are for interlocutory or final relief and the desirability of clients of the practitioner and the public to be informed of matters relevant to the disciplinary proceedings.

3.  Where there are as yet no findings of unprofessional conduct nor an adverse final determination made against the practitioner, and there is no evidence of any ongoing risk of harm to clients of the practitioner or the public, it is appropriate that the Court exercise its discretion to redact the name of the practitioner.

Evidence Act 1929 s 69A; Supreme Court Civil Rules 2006 r 9, r 236; Legal Practitioners Act 1989 s 89C; Supreme Court Act 1935 s 131, referred to.
Legal Profession Conduct Commissioner v A Practitioner [2017] SASC 81; J v D Pty Ltd & Ors [2010] SASC 318; Re Legal Practitioners Ordinance 1970; Ex parte Law Society of the Australian Capital Territory; Re Giles (1985) 61 ACTR 1, considered.

LEGAL PROFESSION CONDUCT COMMISSIONER v A PRACTITIONER (No 2)
[2017] SASC 93

Civil: Application

NICHOLSON J.

Introduction

1. In my principal judgment in this matter,[1] I refused an application by the Legal Profession Conduct Commissioner for an order suspending the respondent practitioner’s practising certificate on an interim basis and pending the outcome of disciplinary proceedings that have been commenced by the Commissioner.  I did, however, order that certain conditions be endorsed on the practising certificate on an interim basis.  After publication of the judgment in open court, but prior to arranging for it to be electronically re-published or further published, the respondent made an oral application that any electronic publication of the judgment refer to him only as A Practitioner rather than by name.  The Commissioner indicated that he wished to be heard on the matter.

   [1]    Legal Profession Conduct Commissioner v A Practitioner [2017] SASC 81.

2. During submissions, the Commissioner indicated that he did not object to the judgment being electronically published in the manner sought by the practitioner.  However, he wished to be heard on the matter generally so as to assist the Court as to the relevant considerations and also in order to challenge a proposition initially put by the practitioner that, in cases such as the present one, ‘customarily the name is replaced in the citation by the designation A Practitioner’. 

   Background

3. The proceedings in this matter were conducted in open court[2] and the judgment, with an unredacted title, was published to the parties in open court. There has been no application for a suppression order pursuant to section 69A of the Evidence Act 1929 or the Court’s inherent jurisdiction.

   [2]    No application was made pursuant to rule 9(2)(b) of the Supreme Court Civil Rules 2006 for a private hearing.

4. Typically, a copy of a judgment of this Court, including an interlocutory judgment, once delivered in open court and published to the parties will be placed on the Court file. As such, its availability to any member of the public will be in accordance with the regime provided for by section 131 of the Supreme Court Act 1935.  Furthermore, and again typically, such a judgment will be further published or disseminated to a wider audience by email.  The practice of the Judges is to instruct their chambers’ staff to “publish” the judgment relatively soon after its delivery. 

5. The process, as I understand it, requires a staff member to use a computer program which, through an automated process, distributes the judgment by email to a standard list of recipients.Those recipients include, for example, all judicial officers in the State, the South Australian Bar Association, the South Australian Law Society, the Office of the Director of Public Prosecutions, the Legal Services Commission, other government departments or entities and various external private publishers of legal materials.  Importantly, as soon as a judgment is further published by way of dissemination from chambers in this way, it becomes available to external publishers for uploading on the internet.  Typically, by way of example, very soon after such dissemination a judgment will appear on the publically available internet site. 

   [3]    Australasian Legal Information Institute.

6. Leaving aside any contractual or other arrangements between the Courts Administration Authority and any of the recipients and leaving aside the requirements of section 131 of the Supreme Court Act, there is no legal obligation on a Judge to further disseminate a judgment that has been published and delivered to the parties in open court.  In the past, all court judgments unrestricted as to publication[4] were available to the public, although ready access might have proven difficult unless the judgment found its way into a published series of law reports.  However, for quite some years now the vast majority of this Court’s judgments have been made available to the public on any number of internet sites including, of course, Having said that, not all judgments are dealt with in this way; many ex tempore reasons and interlocutory judgments and even some final determinations, thought to contain nothing of general interest, are not disseminated in this way. 

   [4]    Such as, for example, being judgments with respect to which no suppression order has been made.

7. Rule 236 of the Supreme Court Civil Rules 2006 in its present form came into effect on 1 October 2010.  It is in these terms.

   236—Publication of reasons for judgment

   (1)The reasons for a judgment, order or direction may be published in an appropriate case both in the form of a summary and in a more extended form.

   (2)After publication of reasons for a judgment, the Registrar will include a copy of the reasons in the Court’s records relating to the proceedings.

   A former Master of this Court had occasion to consider this rule and the question of further publication or dissemination of reasons for judgment in J v D Pty Ltd & Ors.[5]  His Honour made the following observations.[6]

   [Rule 236, unlike] its predecessor ... no longer requires publication of reasons on the Court’s website.  However, there is still a general practice that most reasons will be published on the website.  This is particularly so where they involve interpretations of laws and rules, and precedents of interest to the legal profession.  These reasons fall into that category.  The Court has an inherent jurisdiction to edit its reasons to limit the availability of sensitive material.   Here to avoid embarrassment to the defendants, it is appropriate to edit these reasons so that they do not name the parties or the deceased, or otherwise identify them.  What is contained in these reasons is sufficient for their subsequent use as legal authorities and precedents.  The order for hearing in private will also apply to the hearing at which these reasons are published.

   In my view, this is, with respect, a correct statement of the position. 

   [5] [2010] SASC 318.

   [6] At [22].

   The present case

8. In the present case, I have always been of the view that my principal reasons are of such a nature as warrant being further published and made available to the public generally on the internet.  As far as the discretion to redact the name of the practitioner is concerned, I am satisfied that it would be within my discretion to do so in this case.  However, there is no practice or custom of which I am aware to the effect that where legal practitioner disciplinary proceedings are involved, the term A Practitioner will be employed; quite the contrary.  There may be a practice in this State that this terminology is employed in the cause list for the Legal Practitioners Conduct Tribunal at the directions hearing stage of matters before the Tribunal but, if so, the practice goes no further. 

9. Whether a matter is in the Tribunal or this Court, the naming of the matter and the form in which any judgment is published will be decided upon on a case by case basis.  Different considerations may well apply at various stages whilst a matter is ongoing and as compared with the publication of a judgment that serves to conclude a matter whether at an interlocutory or final relief level. 

10. In the present case, there are considerations which support a conclusion that the dissemination at large of a judgment naming the practitioner might be unfairly and unnecessarily prejudicial to the practitioner, including as to his health and his practice such that such dissemination would be premature at this stage.

11. In the principal reasons, I refused to cancel the practitioner’s practising certificate on an interim basis.  The practitioner remains entitled to continue to practice, although I did impose until further order conditions on his right to practice.  The conditions were imposed largely as a result of, and in an effort to provide a level of assurance for the future with respect to, the practitioner’s long standing mental health issues disclosed during the proceedings but for which he is now receiving treatment and apparently successfully so.  Further, such findings of fact as I made were interlocutory only in the sense that they were based on incomplete and not fully tested evidentiary material.[7] 

    [7]    Legal Profession Conduct Commissioner v A Practitioner [2017] SASC 81 at [3].

12. Significantly, I was not satisfied that the practitioner’s conduct complained of was such as would directly harm or risk causing harm to clients or to the public generally.[8]  I found:[9]

    There is no evidence of ongoing conduct in the practice in need of restraint. There is no evidence of any risk of harm to clients or to the public. There have been no allegations relating to dishonesty or malpractice (apart from the earlier failures to return documents the subject of the fourth and fifth investigations).

    On the other side of the ledger, I found that an interim suspension or the imposition of conditions more onerous than those I did impose would most likely cause significant and perhaps irremediable harm to the practitioner and his practice.[10]

    [8]    Legal Profession Conduct Commissioner v A Practitioner [2017] SASC 81 at [44].

    [9]    Legal Profession Conduct Commissioner v A Practitioner [2017] SASC 81 at [57].

    [10]   Legal Profession Conduct Commissioner v A Practitioner [2017] SASC 81 at [47], [56].

13. The practitioner has submitted that to publish widely his name in connection with these proceedings may well cause harm to him of the nature just referred to, the avoidance of which was very material to my refusal to make an interim suspension order in the context of my assessment of the risk of harm to clients and the public generally.  The practitioner also submits that publication widely of his name would cause significant embarrassment and potentially exacerbate his mental health issues now being treated.

14. These considerations carry significant weight.  They are to be assessed in the context that the practitioner is in the process of responding to disciplinary proceedings in the Legal Practitioners Conduct Tribunal.  In the not too distant future these proceedings will be resolved one way or the other and unless completely exonerated, which on the information presently available seems unlikely, it is likely that the practitioner’s name will be published at some time in the future.

15. The main argument against publishing in a redacted form is that the practitioner is the subject of disciplinary proceedings and has acknowledged conduct which prima facie might give rise to adverse findings in this respect. Further, the practitioner has divulged as an explanation for his long standing course of conduct in this respect and as mitigatory of his culpability, long standing mental health problems. There is no suppression order in place and existing clients and members of the public who may choose to use the practitioner’s services may well have a right to be informed of these matters, at least, upon making enquiry. Whether or not the judgment is published in redacted form will not infringe any such right to know or make enquiries pursuant to section 131 of the Supreme Court Act or in accordance with the Commissioner’s obligations and the public’s rights pursuant to section 89C of the Legal Practitioners Act 1989.

16. However, in this context there is still the important consideration whether the Court ought take a positive step that will have the effect of making it more difficult for clients or members of the public to become so aware.  Ultimately, even though on the information available to the Court I have taken the view that the risk to clients and the risk to the public generally is relatively low, should the Court take a step that limits the capacity of clients or potential clients from within the public to become aware of the circumstances as they presently stand?  Such a person may, understandably, be of the opinion that they should have this information in order to form their own view about having future dealings with the practitioner.   

    Resolution

17. Some assistance with respect to the ultimate disposition of this issue is to be gained from the remarks of the court in Re Legal Practitioners Ordinance 1970; Ex parte Law Society of the Australian Capital Territory; Re Giles.[11]

    [11] (1985) 61 ACTR 1 at 4-5 (Blackburn CJ, Kelly and Gallop JJ).

    Some comments should be made on the decision by the court to order that all orders for the suppression of the publication of the name of the respondent in these proceedings be revoked. The principle that the name of a legal practitioner against whom disciplinary proceedings have been brought be supressed until an adverse finding has been made against him has a very ancient history. The philosophy behind the principle is that to release the name of the practitioner before an adverse finding has been made by the court would unduly affect his reputation and the conduct of his profession. The practice seems to have been followed in England even before the middle of last century. The desirability of preserving the anonymity of a solicitor against whom a charge is made until he has had an opportunity of answering it was pointed out by Erle CJ in Re ... (Attorney):

    When I was in practice the universal rule was, when a motion was made for the summary jurisdiction of the court against professional men, not to mention their name in moving, nor in fact until they should have had a fair opportunity of answering the imputations cast upon them. In some cases the charges were unfoundedly made, and in others satisfactorily explained; and it is obvious, therefore, that a becoming delicacy should be observed in such applications. ... I think the old practice of withholding the names in such applications is a good one, and I hope to see it observed in future.

    The ancient English practice was at first rejected by the New South Wales Supreme Court. In the cases of Re Charles Wood Readett and Ex parte Pratt; Re P V McCullough the Supreme Court stated that the respective names of the practitioners had to be mentioned and declined to make any orders suppressing the names. The rejection by the New South Wales Supreme Court of the English practice was, however, shortlived.

    The rejection was brought into question in Ex parte The Law Institute and the English practice was restored in Re a Gentleman, one. The Full Court in the latter case said that, in the future, the name of the attorney should not be mentioned in disciplinary applications and directed that the name should not be published.  It should however be noted that in Ex parte The Law Institute, supra, Darley CJ said that, once a rule is granted, the solicitor’s name must be mentioned. It appears that where the courts conduct themselves openly they have regard to a policy which preserves the confidentiality and anonymity of the solicitor until such time as some prima facie case has been made out or an adverse finding has been made against him.

    Reference should also be made to Re a Practitioner of the Supreme Court. In that case there had been a finding of guilt by the statutory committee against a solicitor which resulted in the striking of the solicitor’s name from the roll. The Supreme Court substituted admonition as a penalty but made observations as to the propriety of making an order under s 69 of the Evidence Act of South Australia suppressing publication of the practitioner’s name in cases of disciplinary action against practitioners. In a joint judgment the court (constituted by Bray CJ, Mitchell and Zelling JJ) stated (at 201-202):

    There is no doubt, we think, that it is proper to make a suppression order in matters such as this until the matter has been finally disposed of, or that it is proper in normal circumstances for the court to make a perpetual order when the charge is dismissed. Equally the name should be released if there is an order for disbarment or suspension. The present case is in the doubtful borderland between the two, where there is an adverse order but only of admonition.

    The practice of maintaining the anonymity of a practitioner charged in disciplinary proceedings until an adverse finding has been made against him has been adopted and followed by Australian courts. One need only refer to the above cases and Re Veron; Ex parte Law Society of New South Wales and Re Miles; Ex parte Law Society of New South Wales and Re New South Wales Bar Association; Ex parte Evatt and New South Wales Bar Association v Evatt. Until an adverse finding has been made against a legal practitioner, the court may, and generally will, upon application by the practitioner, order the suppression of his name and the retention of anonymity. However, once an adverse finding has been made, the court will revoke or discharge any such order as a matter of course.

    For these reasons the court revoked the suppression order in this case.

    [citations omitted]

1. As I have earlier indicated there is no question here of a suppression order being made and, as such, no restrictions are to be imposed in accordance with that regime on the publication of the practitioner’s name in connection with these proceedings.  The only question is whether I should exercise the discretion at this stage of the proceedings to refrain from publishing the practitioner’s name in the judgment I further disseminate, effectively, to the public at large.  Notwithstanding the interlocutory nature of the proceedings before me, the case is a borderline one.  I have found the proper exercise of the discretion in this matter to be difficult. 

2. Ultimately, whilst inappropriate conduct on the part of the practitioner has been acknowledged, there are as yet no findings of unprofessional conduct and no penalty, if there is to be one, has been determined.  There is no evidence in support of any apparent ongoing risk of harm to clients or to the public generally.  There has been no final disposition of the matter adverse to the practitioner.  Consistently with the position as summarised in Re Giles, I will allow the practitioner’s oral application, now not opposed by the Commissioner, and publish the principal reasons in redacted form.