New South Wales Bar Association v Sahade

[2004] NSWADT 151

CITATION:	New South Wales Bar Association v Sahade [2004] NSWADT 151
DIVISION:	Legal Services Division
PARTIES:	APPLICANT Council of the New South Wales Bar Association RESPONDENT Marcel Victor Sahade
FILE NUMBER:	032025
HEARING DATES:	18/06/2004
SUBMISSIONS CLOSED:	06/18/2004
DATE OF DECISION:	07/27/2004
BEFORE:	Nader J QC - ADCJ (Deputy President); Norton S SC - Judicial Member; O'Neill A - Non Judicial Member
APPLICATION:	Complaint made three years after conduct concerned - Late application to Tribunal
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Legal Profession Act 1987
CASES CITED:	New South Wales Bar Association -v- de Robillard [2004] NSWADT 45
REPRESENTATION:	APPLICANT S Robb QC, barrister RESPONDENT G Heathcote, barrister
ORDERS:	Time for instituting the proceedings extended to the date of the Information, namely, 5 November 2003.

1 By Information dated and filed 5 November 2003 the Council of the New South Wales Bar Association (the Council) informed the Tribunal that as a result of the Council’s investigation of 2 complaints made against Marcel Victor Sahade (the Barrister), a legal practitioner within the meaning of section 128 of the Legal Profession Act 1897 (the Act), the Council says that the Barrister is guilty of the following professional misconduct:

Ground 1.

2 In July and August 1999 the Barrister lodged 353 applications to pre-register for shares in the so-called “Telstra 2 Share Offer" using dishonest tricks and devices for the purpose of concealing the fact that the applications were multiple applications by a single person, in circumstances where he believed that the policy of the Commonwealth would be likely to be to reject multiple applications for pre-registration from the same person.

3 Particulars of the dishonest tricks and devices were:

(a) making the applications in names other than his own;

(b) making applications with false or artificially variegated addresses; and

(c) stating false telephone numbers in the applications.

4 Between about 17 and 19 September 1999, the Barrister lodged 215 applications, each for 400 shares in the "Telstra 2 Share Offer", as a pre-registered public applicant, using dishonest tricks and devices for the purpose of concealing the fact that the applications were multiple applications by a single person.

5 Particulars of the circumstances in which the applications were lodged were:

(a) he believed it would be likely to be the policy of the Commonwealth to reject, or to aggregate, multiple applications for shares from the same person;

(b) the offer document expressly provided: "Public Applicants must not lodged multiple applications."

6 The dishonest tricks and devices were:

(a) making of the applications in names other than his own;

(b) making applications with false or artificially variegated addresses; and

(c) signing the applications otherwise than in his own name and with his own signature.

7 The Council asks for findings that the Barrister is guilty of professional misconduct with respect to the conduct in grounds 1 and 2. It asks for orders under section 171C(1) of the Act and an order that the Barrister pay the costs of the Council of these proceedings.

8 Before embarking upon a hearing of the substance of those allegations it became necessary to deal with two threshold questions.

9 Ground 1 of the Information is based on a complaint by the Council itself, made under section 134(2)(a) of the Act on 12 September 2002.

SECTION 137 OF THE ACT

10 On 21 November 2002 the Council having considered the submissions made on behalf of the Barrister in relation to the out of time aspects of complaint 1 made by the Council on 12 September 2002, determined that complaint 1 involves an allegation of professional misconduct and that it was in the public interest to deal with the complaint.

11 That determination became necessary, if the matter was to proceed, by reason of section 137(2) of the Act. The section provides:

“137 Complaints made over 3 years after conduct concerned

(1) A complaint may be made about conduct of a legal practitioner irrespective of when the conduct is alleged to have occurred.

(2) However, a complaint cannot be made more than 3 years after that conduct is alleged to have occurred unless a determination is made under this section that:

(a) it is just and fair to deal with the complaint having regard to the delay and the reasons for the delay, or

(b) the complaint involves an allegation of professional misconduct and it is in the public interest to deal with the complaint.

(3) A determination under this section:

(a) in the case of a complaint made to or by the Commissioner —is to be made by the Commissioner, or

(b) in the case of a complaint made by a Council —is to be made by the Council.

(4) A determination made under this section is final and cannot be challenged in any proceedings by the complainant or the legal practitioner concerned.”

12 However, the Barrister objects to the Tribunal’s jurisdiction to determine ground 1 on the basis that the complaint on which the ground is founded is invalid in that it was made contrary to section 137(2) of the Act: i.e., that it was not a determination made under the section.

13 The Barrister contends that section 137(2) of the Act required the determination under the subsection to be made before the Council made its complaint under section 134(2)(a). In short, the Barrister says that the complaint could not be validly made until after the determination had been made.

14 The Council contends to the contrary.

15 Section 134 of the Act provides that a complaint may be made by one of the Councils, by the Legal Services Commissioner or by any other person. It was submitted for the Council that it could not be expected that a complaint about the conduct of a legal practitioner made by a member of the public, more than three years after the conduct is alleged to have occurred, is invalid unless a determination under section 137(2) had been made before the complaint was made.

16 A complaint by a member of the public to the Legal Services Commissioner can hardly be the subject of a determination under section 137 (2) before it has been made: it is not until after a complaint made that the Legal Services Commissioner becomes aware of it. In such a case a determination under section 137 (2) must be made at a time after the making of the complaint. To suggest otherwise is to impute an absurd intention to the Parliament.

17 We do not accept a submission of the Barrister that the word “complaint” is used in different senses in various parts of section 137. Section 137 is within Part 10 of the Act. The otherwise unhelpful definition of “complaint” in Part 10 at least suggests what commonsense also suggests, namely, that the word “complaint” is used in the same sense throughout part 10. “complaint” is defined as meaning "a complaint under this part".

18 We have considered the submissions of the parties. We agree with the submission of the Council in its essential respects. Section 137(2) requires that a determination be made before the Council may treat a complaint as a complaint for the purposes of proceedings under section 167(1) of the Act, but there is nothing in the section to suggest that a determination under section 137 (2) is required to be made before the complaint is made, in a temporal sense. It might be said that a complaint is not viable until a determination is made and in that sense it is not a complaint that can become a vehicle for disciplinary proceedings in the Tribunal. The absence of a determination would be to prevent a complaint from going forward and resulting in proceedings in the Tribunal.

19 Put another way, the making of a determination amounts to a condition precedent to the prosecution of the subject matter of the complaint in the Tribunal. We think that that is the intention of section 137(2).

20 Paragraphs (a) and (b) of section 137(2) are expressed in the alternative. Therefore, it is sufficient to validate the complaint if the conditions of either of the paragraphs is satisfied.

21 The information, in terms, contains an allegation of professional misconduct. Therefore one of the conditions of paragraph (b) is satisfied.

22 We understand that if these threshold questions are found against the Barrister he will contend at the substantive hearing that his conduct did not amount to professional misconduct. That question must await the findings of the Tribunal in the event that the hearing proceeds. The only opinion that can be held in advance of a full hearing is that the alleged conduct may amount to professional misconduct and that, if it does, it may be serious. We hold no opinion whether the conduct alleged would in fact constitute professional misconduct.

23 If the question turns out to be difficult and, even if it is eventually resolved in favour of the Barrister, there can be no question but that it is in the public interest to deal with the complaint.

24 Accordingly, we find that the requirements of section 137 of the Act have been satisfied and that the complaint, although made more than three years after the conduct alleged, is validly made by virtue of the Council’s determination under section 137 (2) of the Act. Section 137 does not constitute a bar to this matter proceeding to a hearing.

SECTION 44 OF THE ADMINISTRATIVE DECISIONS TRIBUNAL ACT

25 The second threshold issue arises by reason of section 44 of the Administrative Decisions Tribunal Act 1997 (the ADT Act). That section provides that

44 Late applications to Tribunal

(1) Despite section 42 (b), the Tribunal may, on application in writing by an interested person seeking to make late application, extend the time for the making by that person of an application if the Tribunal is of the opinion that the person has provided a reasonable explanation for the delay in making the application.

(2) The time for making an application for an original decision may be extended under subsection (1) although that time has expired.

(3) In this section, "late application" means an application not made within the time prescribed by the rules of the Tribunal (or prescribed by or under the enactment under which the application is made).

26 Section 42 (b) of the ADT Act, for relevant purposes, provides that a person may apply to the Tribunal for an original decision if the application is made within the time prescribed by the rules of the Tribunal.

27 Rule 14(3) of the Administrative Decision Tribunal (Interim) Rules 1998 provides:

(3) Unless the enactment under which the application is made provides otherwise, the application must be made to the Tribunal within 28 days from the day on which the applicant became entitled under the enactment to make the application.

28 In New South Wales Bar Association v de Robillard [2004] NSWADT 45, it was held, in effect, that the provisions of section 42(b) of the ADT Act are mandatory and that strict compliance with them is required.

29 On 12 September 2002, the Council resolved to make a complaint within the meaning of Part 10 of the Act

30 On 31 July 2003, the Council resolved that it was satisfied that there was a reasonable likelihood that the Barrister would be found guilty by the Tribunal of professional misconduct. This brought subsection 155(2) of the Act into operation.

31 We do not think that we should again embark upon a consideration of the construction of the provisions related to the section 44 considerations. Robillard’s case has been followed by the Tribunal.

32 We have considered the lengthy and thoughtful arguments presented on behalf of the Council and the Barrister. In other circumstances it might have been necessary to rule upon them. However, there are two reasons why we do not do so.

33 First, the facts of the cases are such that even if sections 42 and 44 of the ADT Act apply to proceedings instituted under section 167 of the Act, we have concluded that the explanation given by the Council for the delay in making its application is reasonable (section 44(1) of the ADT Act) and that, therefore, we should extend the time for the making of an application to the Tribunal by the Council under section 167 of the Act.

34 Secondly, the Parliament has rendered any definitive interpretation of those sections redundant by legislation to come into effect at the end of this month.

35 A number of factors have influenced us to the view that the explanation for the delay is reasonable. We agree with counsel for the Council that in the circumstances of the present case the delay is relatively short. The delay in Robillard’s case was in the order of 8 months.

36 On 31 July 2003, the Council resolved that there was a reasonable likelihood that the Barrister would be found guilty by the Tribunal of professional misconduct. This brought section 155(2) of the Act into operation.

37 On 5 November 2003, the Council made an application, by laying an Information under section 167(1) of the Act.

38 28 days from 31 July 2003 would have expired on 28 August 2003. The proceedings under section 167(1) were instituted about 2 months and a week out of time - a very much shorter delay than that in Robillard’s case. Facts that may constitute a reasonable explanation for a short delay may not reasonably explain a longer one.

39 We agree also with Mr Robb’s submission that the explanation in the affidavits of Ms MacDougal, sworn 24 March 2004, and Mr Selth, sworn 1 April 2004, is reasonable with respect to the time taken to collate relevant material, provide it to the Council’s solicitors; then for the solicitors to collate the material, to brief counsel and obtain advice with respect to the documents to be filed with the Information.

40 Until very recently there has been a ‘culture’ of disregarding the time limitation imposed by section 42 of the ADT Act. It may be that the Council was of the opinion that the limitation did not apply to disciplinary proceedings under Part 10 of the Act. It has certainly been argued with some force that the section does not apply, but the decisions of this Tribunal practically preclude a reconsideration of that question. Alternatively, it may have been a provision that no-one adverted to. We think it is reasonable to take into account past practice.

41 We do not think that any prejudice to the Barrister will flow from the granting of an extension of time for the laying of the Information. We note however that that would be a natural justice point and not a factor affecting the reasonableness of the explanation for the delay.

42 It flows from what we have said that we think that the explanation for the delay is reasonable. We extend the time for instituting the proceedings to the date of the Information, namely, 5 November 2003.

43 This matter will now be listed for a hearing of the substantive issues raised by the Information.