Legal Services Commissioner v Ball

CITATION:	Legal Services Commissioner v Ball [2001] NSWADT 86
DIVISION:	Legal Services Division
PARTIES:	APPLICANT Legal Services Commissioner RESPONDENT Michael Lee Ball
FILE NUMBER:	9813
HEARING DATES:	10/12/1999 , 27/07/2000, 01/09/2000
SUBMISSIONS CLOSED:	09/15/2000
DATE OF DECISION:	05/29/2001
BEFORE:	Toomey B QC - Judicial Member at 1; Pheils J - Judicial Member at 1; Sartore G - Member at 1
APPLICATION:	Dismissal of information - frivolous, vexatious, misconceived or lacking in substance
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Crimes Act 1900 Legal Profession Act 1987
CASES CITED:	Nagasinghe v Worthington (1994) 53FCR 175 Ebber v Human Rights & Equal Opportunity Commission (1995) 129 ALR 455 GVR v Department of Health, Housing & Community Services (23 August 1993) State Electricity Commissioner v Rabel (1998) 1 VR 102 Walsh v Law Society (NSW) [1999] 198 CLR 73 Kerridge v Simmonds [1906] 4 CLR 253
REPRESENTATION:	APPLICANT W Haylen QC RESPONDENT J Sackar QC
ORDERS:	1 Application for summary dismissal granted; 2 Liberty to apply on 7 days notice including the right to the applicant legal practitioner to seek costs under s 171E of the Act

INTRODUCTION

1 Mr Michael Lee Ball (“Ball”) is a solicitor and partner in the firm of Allen Allen & Hemsley (“AAH”). He was responsible for giving instructions on behalf of the firm in attempts to settle long standing litigation between Tectran Corporation Pty Ltd (“Tectran”) and AAH, and Mr Leszek Rajski (“Rajski”) and Raybos Australia Pty Limited (“Raybos”), the circumstances of which will be fully described later in this judgment.

2 On 4 May 1998 the Legal Services Commissioner filed an Information in the Legal Services Tribunal against Ball containing five grounds of complaint of unsatisfactory professional conduct or professional misconduct. Particulars of those complaints were sought and when the answers were deemed by Ball to be unsatisfactory application was made to the Tribunal which on 13 August 1998 ordered further particulars to be provided by the Commissioner. Dispute arose between the parties about the particulars provided in purported satisfaction of that order, and on 29 June 1999 the Tribunal made a further order for the Commissioner to provide the particulars sought by Ball. Those particulars were ultimately provided on 30 July 1999.

3 After consideration of the particulars provided Ball moved the Tribunal for an order that the information should be dismissed on the grounds that “it is frivolous, vexatious, otherwise misconceived or lacking in substance pursuant to s.73(5)(h) of the Administrative Decisions Tribunal Act 1997”. It is that application, in effect for summary dismissal of the proceedings, which is the subject of this judgment.

BACKGROUND FACTS

4 It is impossible to understand these proceedings without knowledge of the web of civil claim and counterclaim, charges of contempt and of crime which have enmeshed what can compendiously be called the Rajski interests, the AAH interests and the Tectran interests since 1979. A brief summary of the relationships between the parties follows: -

(i) In 1979 Rajski and Raybos – a…