New South Wales Bar Association v Tedeschi

[2003] NSWADT 90

CITATION:	New South Wales Bar Association v Tedeschi [2003] NSWADT 90
DIVISION:	Legal Services Division
PARTIES:	APPLICANT Council of the New South Wales Bar Association RESPONDENT Mark Alfred Giudo Tedeschi
FILE NUMBER:	012040
HEARING DATES:	19/02/2003
SUBMISSIONS CLOSED:	02/21/2003
DATE OF DECISION:	04/30/2003
BEFORE:	Robberds LP - Judicial Member; Bennett AC SC- Judicial Member; Elliott K - Member
APPLICATION:	Evidence - admissibility - Evidence - expert - admissibility
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Legal Profession Act 1987
CASES CITED:	Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705 Qidwai v Brown [1984] 1 NSWLR 100 Pillai v Messiter [No.2] (1989) 16 NSWLR 197 Prothonotary of the Supreme Court of New South Wales v Costello [1984] 3 NSWLR 201 Ex parte Meehan; Re Medical Practitioners Act [1965] NSWR 30
REPRESENTATION:	APPLICANT P R Garling SC, barrister RESPONDENT D E Perrignon, barrister
ORDERS:	1. The Tribunal rejects the affidavit of Michael Alan Viney sworn 24 December 2002, for the reason that it does not meet the requirements for admission set out by Heydon JA in Makita (Australia) Pty Ltd v. Sprowles (2001) 52 NSWLR 705 at para 85.; 2. The Tribunal rejects paragraph 8 of the affidavit of Ian Scott Lloyd sworn 1 November 2002, for the reason that it does not meet the requirements for admission set out by Heydon JA in Makita (Australia) Pty Limited v. Sprowles (2001) 52 NSWLR 705 at para 85.; 3. Paragraph 9 of that affidavit is admitted only so far as it forms a basis for the opinion expressed in paragraph 10.

1 On 19 February 2003 the Tribunal heard an interlocutory application made by the Council of the New South Wales Bar Association (the applicant). The applicant sought orders that:

(a) the affidavit of Ian Scott Lloyd QC sworn 1 November 2002 is inadmissible;

(b) the affidavit of Michael Alan Viney QC sworn 24 December 2002 is inadmissible; and

(c) no expert evidence should be admissible in the proceedings.

2 The applicant and respondent filed written submissions prior to 19 February 2003 and expanded upon them on that day.

3 Pursuant to directions given by the Tribunal on 19 February 2003, the applicant and respondent filed written submissions on 21 February 2003.

4 The applicant’s initial submissions may be summarised as follows:

(a) the Legal Services Division of the Tribunal is a specialist tribunal comprising a majority of lawyers on any bench for any given hearing. The purpose of having a specialist tribunal is so that the members of it can bring to the hearing of each case their accumulated knowledge and so that matters can be dealt with efficiently and expeditiously;

(b) disciplinary proceedings are not inter-partes litigation. They are sui generis and involve considerations of the public interest and protection of the public. To permit expert evidence of the kind contained in the above two affidavits, is to perceive disciplinary proceedings as ordinary inter-partes litigation because the role of an expert in litigation is to provide opinions in support of, or contrary to, a particular party’s case;

(c) steps have been taken in other jurisdictions to control the manner of experts giving evidence: see for example Schedule K to the Supreme Court Rules which provides a code of conduct for experts. No such code exists in the Tribunal precisely because disciplinary proceedings are different;

(d) to permit evidence of the kind in each of the affidavits to be given, would be to abrogate to the experts the specialised role of the Tribunal;

(e) since 1984 expert evidence has only been admitted in the Tribunal and its predecessors in one limited type of case, namely, where a complaint has been made that a solicitor has overcharged a client. In that case expert evidence has been admitted to the effect that: (i) the range of costs charged for the particular type of work is between $X and $Y; and (ii) the expert witness has read the solicitor’s file and has prepared a draft bill of costs setting out what the expert considers are the appropriate charges;

(f) the affidavits of Mr Lloyd QC and Mr Viney QC do not give their opinion on a question of fact but on the ultimate issue to be determined by the Tribunal. That should not be permitted. To allow expert evidence would result in the complaint being determined by the expert that is accepted; and

(g) neither affidavit meets the requirements for admission set out by Heydon JA in Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705 at paras 59, 64 and 85.

5 The respondent’s initial submissions may be summarised as follows:

(a) as a matter of principle, the evidence of professional peers, as to whether the conduct of the practitioner in question departed from that of his\her peers of good repute and standing, and if so whether that departure would attract severe reprobation, is a matter upon which evidence of those peers is admissible, if not essential;

(b) it is common place for expert evidence to be given in legal professional negligence proceedings. This is also the case in professional disciplinary proceedings. In the Medical Tribunal it is routine for professional peers to give evidence as to what was the practice of practitioners of good repute and competence, whether there was a departure from that practice on the part of the respondent and, if so, whether that departure was such as to attract strong reprobation;

(c) the decisions of the New South Wales Court of Appeal in Qidwai v Brown [1984] 1 NSWLR 100 and Pillai v Messiter [No. 2] (1989) 16 NSWLR 197 show that before there can be a finding of professional misconduct against a practitioner, there must be evidence before the disciplinary tribunal that the respondent’s professional colleagues would consider his\her conduct such as to incur strong reprobation;

(d) the applicant’s submissions disregard long-established practice of professional disciplinary tribunals and the two decisions of the Court of Appeal mentioned above. They also misstate the role of an expert; and

(e) it is unnecessary to determine at this stage whether peer evidence is essential in legal professional disciplinary proceedings.

6 The written submissions of the respondent filed on 21 February 2003 did not include a submission which sought to show that the affidavit of Michael Alan Viney QC sworn 24 December 2002 met the requirements for admission set out by Heydon JA in Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705.

7 However those submissions sought to show that paragraphs 8 and 10 of the affidavit of Mr Lloyd QC did meet those requirements.

8 It was submitted that the language in paragraph 8 of the Lloyd affidavit: “In forming this opinion I have had particular regard to the following facts”, was to be understood, in its context, as setting out the process of reasoning by which the conclusion had been reached. It was submitted that subparagraphs (a) to (d) sufficiently displayed the method, or process of reasoning, or intellectual basis, by which the conclusion was reached. It was submitted that those subparagraphs constituted the criteria which enabled evaluation of the validity of the conclusion to be made.

9 It was submitted in relation to paragraph 10 of the Lloyd affidavit, that the opinion therein expressed was as to the existence of a fact and that the basis of the opinion, and the fact on which it was founded, was adequately set out in the first sentence of paragraph 10 and in paragraph 9. It was submitted that those facts provide a sufficient logical basis for the conclusion that other Crown prosecutors would not have attempted to recall Pederick. It was submitted that the fact that other Crown prosecutors would not have attempted to recall Mr Pederick logically bears on the question as to whether or not other Crown prosecutors would have criticized or reprobated the respondent.

10 In its submissions filed on 21 February 2003, the applicant submitted that Qidwai v Brown and Pillai v Messiter were distinguishable because the Court of Appeal in those cases was dealing with a statutory definition of “misconduct in a professional respect” contained in the Medical Practice Act 1938 whereas this Tribunal is to apply a different test namely the common law test of what is professional misconduct.

11 This argument was to the following effect:

(a) in Pillai the Court of Appeal followed its earlier decision in Qidwai . In each case the Court was dealing with an identical statutory definition contained in the Medical Practice Act 1938 namely “misconduct in a professional respect”;

(b) that definition requires a two-step process before it can be established, first whether there have been departures from accepted procedures and secondly whether those departures had become the subject of professional reprobation;

(c) proof by expert evidence is required for the latter part of this two-part test;

(d) under the Medical Practice Act 1938 what is required is proof of the status at the time of hearing that the conduct has a particular quality within the medical profession;

(e) under the Legal Profession Act 1987 the test is quite different. This Tribunal must apply the common law test and the use of the future tense in the common law definition “... would reasonably be regarded...” is entirely consistent with the Tribunal itself determining the matter. That is the way it has always worked in practice. Accordingly the decision in Qidwai and Pillai are distinguishable and have no application to this Tribunal.

12 In those written submissions, the applicant also dealt with the submission made on behalf of the respondent to the effect that Pillai is authority for the proposition that the Tribunal must receive evidence of a barrister’s peers and cannot substitute its own opinion.

The affidavit of Mr Lloyd QC sworn 1 November 2002

13 In paragraph 8 of his affidavit Mr Lloyd said:

In my opinion it cannot fairly be said that Tedeschi Q.C. breached Bar Rule 20 or acted improperly in not recalling Pederick to give further evidence after it became clear to Tedeschi Q.C. that the Jayawardene arrival theory could no longer stand. In forming this opinion I have had particular regard to the following factors:

[four factors were then identified].

14 In Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705 at para 85, Heydon JA summarised what, in his view, are the requirements which must be satisfied before expert opinion evidence is admissible. One of those requirements is that “so far as the opinion is based on “assumed” or “accepted” facts, they must be identified and proved in some other way;”

15 The Tribunal is of the view that paragraph 8 of Mr Lloyd’s affidavit does not identify the factual basis upon which he expresses the opinion set out in paragraph 8. Paragraph 8 does not state that Mr Lloyd only had regard to the four factors mentioned in that paragraph in forming his opinion.

It is for that reason that, on 24 February 2003, the Tribunal rejected paragraph 8 of Mr Lloyd’s affidavit.

16 The Tribunal is of the view that paragraph 10 of the Lloyd affidavit is admissible because the first sentence sets out the intellectual basis for the opinion expressed in the second sentence of the paragraph. Furthermore the Tribunal is of the view that paragraph 9 should be taken as an expression of the basis upon which the opinions expressed in paragraph 10 have been formed. For those reasons the Tribunal did not strike out paragraphs 9 and 10.

The affidavit of Mr Viney QC sworn 24 December 2002

17 The Tribunal is of the view that Mr Viney did not demonstrate in his affidavit the intellectual basis of the opinion expressed in paragraph 14 (Makita para 85). Furthermore he did not identify what material or evidence provided the factual basis for his opinion. Accordingly the Tribunal is of the view that this affidavit does not meet the requirements for admission set out by Heydon JA in Makita.

It is for those reasons that, on 24 February 2003, the Tribunal rejected Mr Viney’s affidavit.

18 As at 24 February 2003, the Tribunal was not persuaded that the applicant’s argument which is summarised in paragraph 11 above, is correct.

19 The applicant relied upon the following passage in Prothonotary of the Supreme Court of New South Wales v Costello [ 1984] 3 NSWLR 201 at 203D - F as stating the common law test of professional misconduct:

The test of professional misconduct was originally formulated in relation to medical practitioners in Allinson v General Council of Medical Education and Registration [1894] 1 QB 750. It was there ruled that professional misconduct consisted in behaviour on the part of the practitioner which would reasonably be regarded as disgraceful and dishonourable by his professional brethren of good repute and competency. This criterion has been applied in determining whether a solicitor has been guilty of professional misconduct: ... . We do not doubt that it provides the appropriate test for measuring the professional conduct of a barrister when a departure from professional standards is charged against him.

20 The passage in Qidwai which was relied upon by the applicant as authority for the proposition that the definition of “misconduct in a professional respect” in the Medical Practice Act 1938, requires a two step process, was based upon a statement made by Sugerman J in Ex parte Meehan; Re Medical Practitioners Act [1965] NSWR 30 at 36. That statement was contained in a paragraph which followed a review by his Honour of the relevant authorities. The paragraph begins as follows:

Consideration of the cases and of the provisions of the legislation in force in this State suggest that the only generalization as to the meaning in that legislation of “infamous conduct in any professional respect”, which can be attempted as capable of application to the varying situations which may arise, is that it refers to conduct which, being sufficiently related to the pursuit of the profession, is such as would reasonably incur the strong reprobation of professional brethren of good repute and competence.”

21 The Tribunal was not persuaded that Sugerman J or Hutley JA were making statements or were of the view that what has to be proved under the Medical Practitioners Act 1938 in order to establish that a medical practitioner is guilty of infamous conduct in any professional respect is different from what has to be proved at common law in order to establish that a lawyer is guilty of professional misconduct.

22 Accordingly the Tribunal was not persuaded that expert evidence was not admissible. For that reason the Tribunal did not strike out the affidavit of Mr Lloyd sworn 1 November 2002.

Pillai

23 For the purpose of the application heard on 19 February 2003 it was not necessary for the Tribunal to determine the further question raised namely whether it is essential that reprobation evidence be given by peers nor the further question whether if that evidence is given, the Tribunal can reject it and come to the opposite conclusion. The Tribunal did not do so.