New South Wales Bar Association v Tedeschi (No 3) - [2003] NSWADT 174

No judgment structure available for this case.

CITATION: New South Wales Bar Association v Tedeschi (No 3) [2003] NSWADT 174

DIVISION: Legal Services Division

PARTIES: APPLICANT
Council of the New South Wales Bar Association
RESPONDENT
Mark Alfred Guido Tedeschi

FILE NUMBER: 012040

HEARING DATES: 20/06/2003

SUBMISSIONS CLOSED: 06/20/2003

DATE OF DECISION:
07/22/2003

BEFORE: Robberds LP - Judicial Member; Officer D QC - Judicial Member; Elliott K - Member

APPLICATION: Costs - Publication

MATTER FOR DECISION: Costs and publication

LEGISLATION CITED: Administrative Decisions Legislation Amendment Act 1997
Administrative Decisions Tribunal Act 1997
Legal Profession Act 1987
Legal Profession Reform Act 1993
Legal Profession (Amendment) Act 1989
Social Security Act 1947

CASES CITED: Minister for Community Services and Health v Thoo (1988) 78 ALR 307;
Holpitt Pty Limited v Varimu Pty Limited (1991) 103 ALR 684;
Springfield Nominees Pty Limited v Bridgelands Securities Limited (1992) 110 ALR 685;
Boscolo v Secretary Department of Social Security (1999) 90 FCR 531;
Jones v Dunkel (1959) 101 CLR 298;
Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705;
R v Moffitt (1990) 20 NSWLR 114;
Beadle v Director-General of Social Security (1985) 60ALR 225;
Secretary Department of Family and Community Services v Chamberlain (2002) 68 ALD 357;
Groth v Secretary Department of Social Security (1995) 40 ALD 541;
Raybos Australia Pty Limited v Jones (1985) 2NSWLR47
John Fairfax & Sons Limited v Police Tribunal of New South Wales (1986) 5NSWLR 465;
Tedeschi v Legal Services Commissioner (1997) 43 NSWLR 20

REPRESENTATION: APPLICANT
P Boulten, barrister
RESPONDENT
P G Brereton, D Perrignon, barrister

ORDERS: 1 Payment from the Public Purpose Fund to the barrister of the barrister’s costs as agreed or assessed. Such costs are to include the costs of preparation for and the appearance on the interlocutory application heard on 19 February 2003 but are not to include the costs of preparation of any of the affidavits of Mr Lloyd or Mr Viney and are not to include witnesses expenses incurred for the attendance of Mr Lloyd and Mr Viney before the Tribunal to give evidence. The Tribunal grants liberty to apply in relation to this order.; 2. That the barrister’s name, Mark Alfred Guido Tedeschi QC be included in the Tribunal’s Reasons for Decision dated 30 April 2003 in substitution for the pseudonym "FC".; 3. The orders made by the Tribunal on 12 February 2003 and 19 February 2003 are revoked.

1 On 30 April 2003 the Tribunal ordered that the complaint filed by the Council of the New South Wales Bar Association (the Bar Council) be dismissed and it reserved for further consideration the question of costs and the question of the inclusion in its decision of 30 April 2003 of the name of the barrister in substitution for “FC”.

2 On 20 June 2003 the Tribunal heard argument on both of those questions.

3 On that day further exhibits were tendered. One of those exhibits (exhibit V) tendered on behalf of the barrister was a report from the Honourable C L D Meares CMG QC to the Bar Council dated 11 June 1992. In that report Mr Meares expressed his opinion on each of the complaints received by the Bar Council from Mr Anderson and from the Legal Aid Commission of New South Wales. One of those complaints was described as: “Failing to recall Pederick to put questions to him in relation to the Desai Departure Theory”.

4 In his report Mr Meares stated that in considering the complaints he had read inter alia:

· the barrister’s opening and closing addresses,

· a substantial portion of the transcript of some 2,000 pages,

· Grove J’s summing up which occupied approximately a day and a half of the trial,

· the numerous complaints,

· the lengthy reply of the barrister and its annexures, and

· the answer to that reply by both complainants.

Mr Meares stated that he had read and reread the judgment of the Court of Criminal Appeal.

5 Exhibit W was tendered on 20 June 2003 on behalf of the barrister. It is a bundle of correspondence which records events between April 1998 and May 1999 which resulted in the complaint not being progressed to a hearing in this Tribunal. Exhibit X is an agreed chronology of events which occurred between May 2000 and 26 September 2000.

COSTS

6 Section 171E of the Legal Profession Act 1987 is in the following terms:

(2) If, after it has completed a hearing relating to a complaint against a legal practitioner, the Tribunal is satisfied that the practitioner is not guilty of unsatisfactory professional misconduct or professional misconduct, the Tribunal may (but only if it considers that special circumstances so warrant) order payment from the Public Purpose Fund to the practitioner of the legal practitioner’s costs.

(3) An order for costs:

(b) if for an unspecified amount, may specify the basis on which the amount is to be determined, and

(c) may specify the terms on which costs must be paid.

7 The argument before the Tribunal on costs centered on the question whether there were special circumstances which would warrant an order for the payment of the barrister’s costs.

History of section 171E

8 The relevant history of section 171E may be summarised as follows: when the Legal Profession Act 1987 was enacted, it contained a provision in subsection 163 (6) which enabled the Disciplinary Tribunal to make an order with respect to a legal practitioner whom it had found guilty of unsatisfactory professional conduct or professional misconduct, requiring the legal practitioner to pay such amounts by way of costs (including the costs of the appropriate Council, the Attorney General and the complainant) as it might determine. However the Tribunal was not given any power to make an order that the legal practitioner’s costs be paid when the complaint against the legal practitioner had been dismissed. The Second Reading speech of the Attorney General Mr Sheahan does not reveal any reason why no such power was given to the Tribunal (see Hansard, Legislative Assembly, 29 April 1987 pp10752 - 10762).

9 Subsection 163 (6A) was inserted into the Act by the Legal Profession (Amendment) Act 1989. It was in the following terms:

(6A) If, after it has completed a hearing into a complaint against a legal practitioner, the Tribunal is satisfied that the practitioner is not guilty of professional misconduct, the Tribunal may (but only if it considers that special circumstances so warrant) order payment from the Statutory Interest Account to the practitioner of such amount, by way of costs, as it may determine.

10 In his Second Reading speech the Attorney General Mr Dowd said:

Legal Profession Act

Hansard, Legislative Assembly

The Legal Profession Conduct Review Panel will now be required to give reasons for its decisions and it should be noted also that the Legal Profession Standards Board and the Legal Profession Disciplinary Tribunal are given the power to award costs to a practitioner found not guilty of professional misconduct or unsatisfactory professional conduct where they consider that special circumstances warrant the making of such an award. Costs will not automatically be payable to a legal practitioner merely because he is successful before the tribunal or the board.(p9144.)

11 Section 163 was originally included in Part 10 of the Act. The Legal Profession Reform Act 1993 amended the Legal Profession Act 1987 in a number of respects. One of the amendments was to omit Part 10 and insert a new Part 10. That new Part 10 included section 171E.

12 In his Second Reading Speech on the Legal Profession Reform Bill the Attorney General Mr Hannaford made no mention of the proposed section 171E (see Hansard, Legislative Council, 16 September 1993 pp3269 - 3280).

13 Further minor amendments, which are not presently relevant, have been made to section 171E so that it is now in the form set out in paragraph 6 above.

Submissions

14 Counsel for the barrister referred the Tribunal to a number of cases which have considered the meaning of the words "special circumstances" (Minister for Community Services and Health v Thoo (1988) 78 ALR 307 at 324 per Burchett J; Holpitt Pty Limited v Varimu Pty Limited (1991) 103 ALR 684 at 687; Springfield Nominees Pty Limited v Bridgelands Securities Limited (1992) 110 ALR 685; and Boscolo v Secretary Department of Social Security (1999) 90 FCR 531 at 536. The submission made by counsel for the barrister was to the effect that in the context of subsection 171E (2), the content of the idea of "special circumstances" is that there is something unusual or different about the case to take the matter out of the ordinary course, according to which the presumption that there be no costs order would be expected to apply, which renders that ordinary course apparently less appropriate or fair. But that does not require that the case be extremely unusual, uncommon or exceptional.

15 It was also submitted on behalf of the barrister that the following three factors operated in favour of making a costs order:

(b) the conduct of the proceedings by the Bar Council; and

(c) the length, complexity and expense of the proceedings.

16 In expanding upon those submissions it was said in effect that the Bar Council’s case could not have succeeded because:

Legal Profession Act

(b) the Bar Council only alleged a breach of the common law concept of professional misconduct;

(c) that concept, in its application to the case sought to be made by the Bar Council, involved misconduct which was disgraceful and\or dishonourable and required an intentional departure from accepted or acceptable standards; and

(d) the Bar Council did not allege any such intentional departure - it did not allege that the barrister was guilty of intentional wrongdoing.

17 It was further submitted that in the absence of any allegation of intentional wrongdoing, the Bar Council ought to have realised that realistically it could not have succeeded and that realisation ought to have been acute having regard to the report of Mr Meares. That report, so it was submitted, established the inherent weakness in the Bar Council’s case and thus the Bar Council’s knowledge of that weakness. It was submitted that for the Bar Council to have proceeded in the face of that report, strongly supported the making of a costs order.

18 The relevant part of the report which dealt with the complaint of failing to recall Mr Pederick to put questions to him in relation to the Desai Departure theory, appears at pages 16 and 17 as follows:

T’s final answer to the complaint states:-

I submit that my decision was made in good faith and based upon reasonable grounds even though the better view might now be that I ought to have re-called him

"It was submitted that the resolution of the question whether counsel’s behaviour constitutes professional misconduct must be objectively determined and, presumedly as a consequence, counsel’s reliance on his assessment of a witness’s demeanour was impermissible. We do not agree."

The finding, moreover, of the Court of Criminal Appeal of unfairness in the way the trial was conducted, begs the question. No doubt there would be few members of the profession, in whatever role they may occupy, who could successfully defend, in a long career, some charge of unfairness were their conduct considered objectively.

In my opinion, the complaint should be dismissed.

19 The matters relied upon by counsel for the barrister as conduct of the proceedings by the Bar Council which supported the making of a costs order were:

(b) the making of the allegations of professional misconduct against the barrister who was a Senior Crown Prosecutor of many years standing and of impeccable character and reputation;

(c) the Bar Council’s pointing to alleged "discrepancies" between statements made by the barrister on different occasions, although those allegations were never put to the barrister in cross-examination;

(d) it was only in the course of the hearing that the Bar Council stated that it did not allege intentional wrongdoing; and

(e) the very substantial delay in the prosecution of these proceedings and the fact that the Bar Council declined the equivalent of a "no bill" made on 1 July 1998.

20 It was also submitted on behalf of the barrister that the complexity of the proceedings and length of the hearing which resulted in the costs of the defence being very substantial and onerous, were further reasons why it was appropriate to make a costs order.

21 The Bar Council opposed the making of a costs order and submitted that to demonstrate the existence of "special circumstances" warranting an order for costs, the barrister must show that the Bar Council’s conduct of the proceedings was exceptionally flawed. It was submitted that it had to be shown that the proceedings were brought maliciously or without cause, were conducted in an unreasonable or improper manner or, because of other exceptional circumstances relating to the conduct of the proceedings, it was just and reasonable to award costs. No authority was cited to support that submission.

22 It was submitted that the Bar Council had an arguable case which was properly brought after extensive and careful consideration and that the Tribunal was the proper venue for consideration of the substantial and serious allegation of misconduct made against a senior member of the profession.

23 It was submitted that the complaint brought by the Bar Council against the barrister crystallised the criticism of the barrister made in the Court of Criminal Appeal by Gleeson CJ. The Bar Council’s submission drew attention to the fact that this Tribunal made the findings set out in subparagraphs 190 (M) and (Q) in its Reasons for Decision given on 30 April 2003.

24 It was submitted that the absence of intentional wrongdoing by the barrister did not predetermine the outcome of the proceedings.

25 It was submitted that the report of Mr Meares did not, by itself or in conjunction with any other factor establish special circumstances warranting an award of costs. Part of the Bar Council’s written submissions stated that: "The expression of opinion contained within that report, even coming from such a respected and eminent source, was merely one professional view of the barrister’s conduct."

26 So far as the Bar Council’s conduct of the proceedings was concerned, it was submitted that the Tribunal made orders substantially upholding the Bar Council’s objections to the expert witnesses’ affidavits and that the Tribunal found that neither Mr Lloyd nor Mr Viney took account of the duty which was imposed upon the barrister to act fairly and impartially towards Mr Anderson. It was further said that the Bar Council’s attempts to resist this evidence came after both affidavits were filed many months after orders made by the Tribunal for the filing and service of evidence.

27 The Bar Council’s written submissions also took issue with the matters set out in subparagraphs 19 (b) and (e) above and drew attention to a number of factors which were said to show that almost all of the delay was outside the control of the Bar Council.

28 Although it was said that it was fair to characterise the factual circumstances of this case as relatively complex, it was submitted that the fact that there was a large amount of material to absorb and that the hearing extended over four days, was not a basis for an award of costs.

29 The Tribunal notes that it was not submitted at the principal hearing that as there was no allegation of intentional wrongdoing, the Bar Council could not succeed on its complaint that the barrister was guilty of professional misconduct. In effect it was submitted on behalf of the barrister at that time that it was unnecessary to go that far (see para 11.5 of the barrister’s written submissions dated 30 March 2003. See also para 131 of the Tribunal’s Reasons for Decision).

30 A submission was also made on behalf of the barrister that as the Bar Council had not called any evidence that it received any opinion other than the report of Mr Meares, the Tribunal should infer that the report of Mr Meares was the only opinion that the Bar Council received. Reliance was placed upon Jones v Dunkel (1959) 101 CLR 298.

31 The question whether the report of Mr Meares was the only opinion that the Bar Council received on the question whether the barrister was guilty of professional misconduct in failing to recall Mr Pederick to give evidence, was only raised by counsel for the barrister during oral submissions on 30 April 2003. The Bar Council therefore did not have an opportunity to present evidence on that question. In those circumstances the Tribunal is not prepared to conclude that the report was the only opinion which the Bar Council had received.

Certain features of the proceedings

32 Exhibits C1, C2, D, E, F, G and Q tendered during the principal hearing comprised approximately 2,500 pages. These exhibits included parts of the Anderson trial transcript, the Crown final address, the summing up of Grove J, written submissions and transcript of argument in the Court of Criminal Appeal and correspondence concerning the complaints made against the barrister. From the way the hearing was conducted before the Tribunal, the Tribunal concludes that it was essential for the lawyers for the barrister to read all of the above exhibits in order to properly prepare for the hearing.

33 On 14 November 2002 an affidavit sworn by Ian Scott Lloyd QC on 1 November 2002 was filed in the Tribunal on behalf of the barrister. Mr Lloyd is a barrister with very considerable experience as a Crown Prosecutor and the purpose of the affidavit was to provide the Tribunal with expert evidence. Paragraph 10 of that affidavit concluded: "...I am of the opinion that other Crown Prosecutors of good repute and standing may well have made the same decision as that made by Tedeschi Q.C. in not recalling Pederick."

34 The Bar Council requested that the Tribunal list the proceedings before a full panel prior to the scheduled first day of the hearing 10 March 2003 for the purpose of seeking orders to the effect that Mr Lloyd’s affidavit was inadmissible and that no expert evidence should be admissible in the proceedings.

35 On 19 February 2003 the Tribunal heard the Bar Council’s interlocutory application. By that date the barrister had filed an affidavit sworn 24 December 2002 by Michael Alan Viney QC. Mr Viney was then an Acting District Court Judge. He had previously been a District Court Judge and a Crown Prosecutor of very considerable experience. The purpose of the affidavit was to provide the Tribunal with expert evidence. In paragraph 14 Mr Viney stated: "In my opinion, the standard of conduct of Mr Tedeschi referred to in the complaint was not a departure from the standard of conduct of Crown Prosecutors of good repute and standing in the circumstances of this case."

36 A number of submissions were made on behalf of the Bar Council as to why no expert evidence should be admissible in the proceedings. Three of those submissions were that:

(b) 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; and

(c) since 1984 expert evidence has only be 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. (See the Tribunal’s Reasons for Decision given on the interlocutory application on 30 April 2003.)

37 Prior to the hearing each party filed written submissions. The hearing lasted more than half a day and the Tribunal reserved its decision. It made orders on 24 February on that application. It rejected the affidavit of Mr Viney and paragraph 8 of the affidavit of Mr Lloyd for the reason that they did not meet the requirements for admission set out by Heydon JA in Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705.

38 However the Tribunal did not rule that no expert evidence should be admitted and stated that it was presently of the view that there was no legal principle which required the Tribunal to reject expert evidence where it was sought to be called. The Tribunal was prepared to hear further argument on the question at the hearing commencing on 10 March 2003.

39 Further affidavits of Mr Viney and Mr Lloyd were sworn on 21 February 2003 but the Tribunal was not asked to rule upon those affidavits prior to 10 March 2003.

40 During the hearing which commenced on 10 March 2003 the two affidavits of Mr Lloyd and the affidavit of Mr Viney sworn 21 February 2003 were relied upon by the barrister. Mr Viney and Mr Lloyd were both called to give evidence.

41 The principal hearing took place on 10,11, 12, 31 March and 4 April 2003. The Tribunal sat extended hours on 12 and 31 March and sat for one and a half hours on 4 April.

42 Directions were given for the filing of written submissions and comprehensive submissions comprising in excess of 70 pages were filed.

Meaning of "special circumstances"

43 One of the meanings given to the word "special" by the Oxford English Dictionary is: "Of such a kind as to exceed or excel in some way that which is usual or common; exceptional in character, quality, or degree."

"distinguished or different from what is ordinary or usual."

44 Samuels JA in considering the meaning of "special circumstances" in the Sentencing Act 1989, said that the general character and scope of the phrase is determined by the statutory context of both language and purpose in which it appears (R v Moffitt (1990) 20 NSWLR 114 at 115).

45 In Beadle v Director-General of Social Security (1985) 60ALR 225 at 228, the Full Court of the Federal Court when dealing with the meaning of "special circumstances" in subsection 102 (1) (a) of the Social Security Act 1947, stated that the phrase, although lacking precision, was sufficiently understood not to require judicial gloss.

46 The Tribunal is of the view that before an order for costs can be made pursuant to section 171E of the Legal Profession Act 1987, there must be something which distinguishes the case from other cases where a legal practitioner has been found not guilty. There must be something that sets the case apart from the usual or ordinary case where a practitioner has been found not guilty (cf Secretary Department of Family and Community Services v Chamberlain (2002) 68 ALD 357 at page 361 [19] and Groth v Secretary Department of Social Security (1995) 40 ALD 541 at 545). However the Tribunal is also of the view that the distinguishing feature does not have to be exceptional (cf Boscollo at page 536). All that is required is that the distinguishing circumstances must be of such significance, and thus special, that the Tribunal considers that they warrant an order being made for payment from the Public Purpose Fund to the practitioner of the practitioner’s costs. It is not necessary that each circumstance be special if a combination of circumstances amounts to special circumstances.

Findings - special circumstances

47 As mentioned above, it was not submitted at the principal hearing that the Bar Council’s case was misconceived and could not succeed. The Tribunal therefore did not deal with such a submission in its Reasons for Decision dated 30 April 2003. For the reasons which appear below, it is unnecessary for the Tribunal to express a view as to whether the Bar Council’s case was misconceived.

48 Apart from the interlocutory application, the Tribunal is of the view that none of the other four matters referred to in paragraph 19 above either alone or in combination or in combination with any other matter, amounts to special circumstances warranting an order for costs.

49 However the Tribunal is of the view that the combination of:

(b) the fact that the question whether expert evidence was admissible in proceedings of this type was argued at an interlocutory hearing; and

(c) the fact that Mr Meares reported to the Bar Council on 11 June 1992 that in his opinion the complaint should be dismissed for the reasons that:

(ii) the question whether the barrister was guilty of professional misconduct was not merely determined objectively; and

(iii) it could not be established that the barrister’s decision not to recall Mr Pederick was mala fides,

are special circumstances which warrant an order that the barrister’s costs be paid from the Public Purpose Fund.

50 During the hearing on 20 June 2003 the Tribunal was informed that an arrangement had been made between the Office of the Director of Public Prosecutions and the barrister that if the barrister did not obtain an order for payment of his costs, then the Office of the Director of Public Prosecutions would pay those costs. The Tribunal has taken that fact into account in its consideration of the question whether special circumstances warrant the payment of the barrister’s costs from the Public Purpose Fund. The Tribunal has also taken that fact into consideration in deciding whether to exercise its discretion to make a costs order.

Quantum of the costs

51 Although the barrister successfully resisted the Bar Council’s interlocutory application, the main purpose of which was to obtain an order that no expert evidence should be admissible in the proceedings, the Tribunal did reject the affidavit of Mr Viney sworn 24 December 2002 and paragraph 8 of the affidavit of Mr Lloyd sworn 1 November 2002.

52 Furthermore for the reasons set out in paragraphs 168 - 176 of its Reasons for Decision given in the principal matter on 30 April 2003, the Tribunal did not use the evidence of Mr Viney or Mr Lloyd in coming to its conclusion that the barrister was not guilty of professional misconduct.

53 The Tribunal is therefore of the view that the amount of the barrister’s costs which should be paid from the Public Purpose Fund should include the costs of preparation for and the appearance on the interlocutory application heard on 19 February 2003 but should not include the costs of preparation of any of the affidavits of Mr Lloyd or Mr Viney and should not include witnesses expenses incurred for the attendance of Mr Lloyd and Mr Viney before the Tribunal to give evidence.

54 Subject to what is said in paragraph 53, the Tribunal is of the view that an order should be made for payment from the Public Purpose Fund to the barrister of the barrister’s costs as agreed or as assessed.

55 During the hearing on 20 June 2003 the question was raised whether sections 202 and 203 of the Legal Profession Act 1987 and Regulations 55 and 56 of the Legal Profession Regulation 2002 could be utilised for the purpose of assessment of the costs to be paid from the Public Purpose Fund. If it becomes necessary to have the costs assessed and in case a difficulty is encountered in having that carried out pursuant to the Legal Profession Act 1987, the Tribunal proposes to grant liberty to apply in relation to the costs order. If it appears that an assessment cannot be made pursuant to the Legal Profession Act 1987, then the Tribunal will, after hearing from the parties and receiving further evidence, make an order for costs for a specified amount.

INCLUSION OF THE NAME OF THE BARRISTER IN SUBSTITUTION FOR "FC" IN THE DECISION OF 30 APRIL 2003

56 On 12 and 19 February 2003 orders were made by the Tribunal pursuant to subsection 75 (2) of the Administrative Decisions Tribunal Act 1997. Those orders were to continue until the conclusion of the trial of R v Folbigg which commenced in the Supreme Court of New South Wales on 10 February 2003. The barrister was appearing as the Crown Prosecutor in that trial. One of those orders was that the name of the barrister contained in documents lodged with the Tribunal or received in evidence by the Tribunal, not be published.

57 On 30 April 2003 the Tribunal ordered that until further order, in the Tribunal’s Reasons for Decision which it would give later that morning, the barrister’s name be described as "FC".

58 The barrister would prefer that his name not be published in the Reasons for Decision. It was submitted that the mere fact that the Bar Council had made the allegations was detrimental to the barrister’s reputation and standing but no application was made to the Tribunal that it make an order prohibiting publication of his name.

59 It was submitted that although the case was one of considerable public interest in 1990, no public interest was to be served in the publication of the name of the successful prosecutor. Any public interest in the outcome was served by the use of the pseudonym "FC".

60 It was submitted that as the barrister is the Senior Crown Prosecutor for New South Wales there was a public interest in maintaining the integrity of his reputation and that lay persons who hear of the existence of an allegation of misconduct may well be inclined to think that he had committed some wrongful act which might undermine public confidence in the outcome of trials which he conducts.

61 It was conceded on behalf of the barrister that in professional circles, the facts of the case are sufficiently well known that the barrister, even with the benefit of the pseudonym, will be identifiable from the Tribunal’s Reasons for Decision dated 30 April 2003. But it was submitted that the continued use of the pseudonym would reflect a view that the barrister’s reputation ought not be sullied in any way by the fact that these allegations were brought against him, albeit unsuccessfully.

62 The Tribunal’s attention was drawn to the fact that had the barrister been charged only with unsatisfactory professional conduct, the proceedings would have been held in the absence of the public (unless the Tribunal was of the opinion that the presence of the public was in the public interest or the interests of justice - subsection 170 (1) Legal Profession Act 1987).

63 It was submitted that the statement made by Kirby P, as he then was, in Raybos Australia Pty Limited v Jones (1985) 2NSWLR47 that by our tradition, the open administration of justice is the rule so far as courts are concerned, was founded upon the common law tradition which was particularly applicable to criminal and contempt proceedings. It was submitted that there was no such tradition in disciplinary proceedings.

64 It was also submitted on behalf of the barrister that such cases as John Fairfax & Sons Limited v Police Tribunal of New South Wales (1986) 5NSWLR 465 where it was held that an order of a court prohibiting the publication of evidence is only valid if it is really necessary to secure the proper administration of justice in proceedings before it, had no application to the question whether the barrister should be described by the pseudonym "FC".

65 The Tribunal was informed that the Bar Council has come to the view that it is appropriate that the use of the pseudonym should continue. Counsel for the Bar Council submitted that the barrister’s attitude to this question was important and relevant.

66 Counsel for the Bar Council submitted that the John Fairfax case was distinguishable because here there was no attempt to suppress evidence only the name of the barrister.

Public hearings of the Tribunal

67 Section 75 of the Administrative Decisions Tribunal Act 1997 is in the following terms:

(2) However, if the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders:

(b) an order prohibiting or restricting the publication of the names and addresses of witnesses appearing before the Tribunal,

(c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal,

(d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings.

68 Section 170 of the Legal Profession Act 1987 is in the following terms:

(1) The Tribunal is to direct that a hearing (or part of a hearing) relating only to a question of unsatisfactory professional conduct be held in the absence of the public unless it is of the opinion that the presence of the public is in the public interest or the interests of justice.

(2) Nothing in this section affects the generality of section 75 (Proceedings on hearing to be conducted in public) of the Administrative Decisions Tribunal Act 1997 in relation to hearings other than those referred to in subsection (1).

69 Sections 123 - 172 are contained in Part 10 of the Legal Profession Act 1987. Prior to the Legal Profession Reform Act 1993 amendments were made to a number of sections in that Part but for present purposes it is unnecessary to refer to those amendments.

70 By section 127 there was constituted a Professional Standards Board. It had jurisdiction to hear and determine complaints of unsatisfactory professional conduct alleged against barristers and solicitors (sections 143 and 149).

71 Hearings of the Board were to be held in the absence of the public (section 145).

72 By section 128 there was constituted a Disciplinary Tribunal. That tribunal had jurisdiction to hear and determine complaints alleging serious professional misconduct against legal practitioners (subsection 143 (3), section 155, section 157 and subsection 163 (1)).

73 Section 159 made provision for the hearings of that Tribunal to be held in the presence of the public. The section was in the following terms:

(2) Notwithstanding subsection (1), the Tribunal may direct that a hearing be held in the absence of the public if it is of the opinion that the absence of the public will aid the ends of justice.

(3) When a hearing is held in the absence of the public, no persons other than the parties to the hearing and their representatives are entitled to be present at the hearing.

74 In his Second Reading speech the Attorney General Mr Sheahan said that the Legal Profession Bill heralded a new era in public accountability of the legal profession. (Hansard, Legislative Assembly, 29 April 1987, p10753. See also p10754.)

75 In February 1993 the New South Wales Law Reform Commission issued its report 70: Scrutiny of the Legal Profession: Complaints Against Lawyers.

76 At page 82 the Commission made the following statement:

Public confidence in the complaints handling system requires that the system be fair, open and accountable. Subject to the need for confidentiality in certain circumstances, as many elements of the system as possible should be open to the public and on the record, and reasons for decisions must be provided.

77 The Commission’s recommendation 34 was in the following terms:

Hearings of the (Legal Services Tribunal) should be conducted in public. The presiding member of the Tribunal may close, or limit the reporting of, the proceedings in those exceptional cases where the presence of the public would defeat the ends of justice. The determinations of the Tribunal should be put in writing, and should be published.

78 In his Second Reading speech to the Legal Profession Reform Bill given on 16 September 1993, the Attorney General Mr Hannaford said:

Hansard, Legislative Council

79 The Legal Profession Reform Act 1993, omitted Part 10 of the Legal Profession Act 1987 and inserted a new Part 10. The new section 170 was in the following terms:

(2) However, a hearing is to be held in the absence of the public if the Tribunal so directs.

(3) The Tribunal is to direct that a hearing (or part of a hearing) relating only to a question of unsatisfactory professional conduct be held in the absence of the public unless it is of the opinion that the presence of the public is in the public interest or the interests of justice.

(4) The Tribunal may direct that a hearing (or part of a hearing) relating to any other question be held in the absence of the public if it is of the opinion that the presence of the public is not in the public interest or the interests of justice.

(5) When a hearing is held in the absence of the public, no persons (other than the parties to the hearing, their representatives and the complainant) are entitled to be present at the hearing.

80 Section 171B was in the following terms:

(2) A person must not make a publication in contravention of a direction given under this section.

Maximum penalty: 20 penalty units.

81 The Administrative Decisions Tribunal Act 1997 No 76 established the Administrative Decisions Tribunal. Section 75 of that Act has not been amended.

82 The Administrative Decisions Legislation Amendment Act 1997 No.77 made amendments to the Legal Profession Act 1987 which included omitting section 170 and inserting in its place a new section 170 in the terms set out in paragraph 67 above.

83 The Administrative Decisions Legislation Amendment Act 1997 also omitted section 171B from the Legal Profession Act 1987. It was unnecessary to insert a new section to take its place because of the provisions of subsection 75 (2) of the Administrative Decisions Tribunal Act 1997.

84 The above history shows that from the commencement of the Legal Profession Act 1987 (1 January 1988), there has always been a requirement that the hearing of a complaint of professional misconduct be open to the public.

Findings

85 During argument it was conceded by counsel for the barrister that even if the barrister’s name did not appear in the Tribunal’s Reasons for Decision given on 30 April 2003, there would be nothing to prevent the media reporting the decision and naming the barrister.

86 So far as the argument that the continued use of the pseudonym will reflect a view that the barrister’s reputation ought not be sullied by the fact that the allegations were brought against him, is concerned, the Tribunal is of the view that members of the profession would be acting unreasonably if they thought that the barrister’s reputation was sullied by the fact that the complaint had been brought by the Bar Council. If members of the profession do act unreasonably in that regard, that is not, in the Tribunal’s view, a sufficient reason why the barrister’s name should not appear in the Tribunal’s Reasons for Decision.

87 The Tribunal is not convinced that the passage of time means that there is no public interest to be served by naming the barrister in the Tribunal’s Reasons. The Tribunal is of the view that reasons given by it which refer to the barrister by name will serve the public interest because that will assist in the fulfilment of the objective which lies behind subsection 75 (1) of the Administrative Decisions Tribunal Act 1997, namely public accountability.

88 Reasons for decision which name a legal practitioner the subject of a complaint demonstrate that legal practitioners are required to publicly account for their actions.

89 The Tribunal is also of the view that it is in the public interest for the public to know the result of the complaint made to the Legal Profession Disciplinary Tribunal because the fact that the complaint had been filed was referred to in the decision of Rolfe J reported in Tedeschi v Legal Services Commissioner (1997) 43 NSWLR 20 at 24D.

90 Had it not been for the fact that the barrister was appearing as the Crown Prosecutor in the trial of R v Folbigg, the Tribunal would not have made any orders pursuant to subsection 75 (2) of the Administrative Decisions Tribunal Act 1997 and the question whether the name of the barrister in substitution for the pseudonym "FC" in its Reasons for Decision, would not have arisen. One of the consequences of those orders was that the pseudonym was substituted for the name of the barrister in the public law lists when the complaint was listed for hearing before the Tribunal. That necessarily meant that although the hearing was still open to the public, the likelihood of members of the media and the public being aware that the hearing was taking place, was negligible. The publication of the barrister’s name in the Tribunal’s Reasons for Decision may assist the public to know the result of the complaint. It will also go a certain way to satisfy the requirement of public accountability.

91 In reality it is the identification of the barrister within the Reasons for Decision which is the foundation for the submissions made on behalf of the barrister. But if there were to be reporting by the media of the Tribunal’s Reasons for Decision in their present form (which includes the pseudonym), the Tribunal is of the view that it is inevitable that the barrister would be named because that section of the media which might report the reasons would be familiar with the Hilton bombing and the trial of Mr Anderson. Thus the inclusion of the pseudonym will not prevent any detriment to the barrister’s reputation and standing or any undermining of public confidence in the outcome of trials which the barrister conducts, which might result from reporting by the media of those reasons.

92 However the Tribunal does not agree that public confidence in the outcome of trials which the barrister conducts will be undermined. No evidence has been produced to the Tribunal that the statements made by the Court of Criminal Appeal nor the fact that the complaint was filed by the Bar Council in the Legal Profession Disciplinary Tribunal, have undermined public confidence in the outcome of trials which the barrister has conducted. The fact that the barrister has continued to prosecute on behalf of the Director of Public Prosecutions major criminal cases, indicates to the Tribunal that neither the statements made by the Court of Criminal Appeal nor the complaint have undermined that public confidence. If the dismissal of the complaint by this Tribunal and its Reasons for Decision are to have any effect upon that public confidence or upon the barrister’s reputation and standing, the Tribunal is unable to see how it would be a negative one.

93 The complaint was not dismissed on a mere technicality. It was dismissed because the Tribunal concluded that the barrister’s peers of good repute and competency would not reasonably regard as disgraceful or dishonourable the barrister’s failure to seek leave to recall Mr Pederick to give evidence with respect to the Desai departure theory. Furthermore the findings made by the Tribunal included findings that:

(b) the barrister made an honest mistake in not seeking leave to recall Mr Pederick;

(c) the barrister took his duties to Mr Anderson seriously and believed he was acting in accordance with those duties; and

(d) the barrister did not act wilfully with a wrong intention.

94 Accordingly the Tribunal is of the view that the substitution of the barrister’s name for the pseudonym in the Tribunal’s Reason for Decision will not be detrimental to the reputation and standing of the barrister and will not undermine public confidence in the outcome of trials which he conducts.

95 The Tribunal is of the view that the name of the barrister in substitution for the pseudonym "FC" should be included in its Reasons for Decision dated 30 April 2003.

THE TRIBUNAL’S ORDERS OF 12 AND 19 FEBRUARY 2003

96 In case there is any doubt as to whether, for the purposes of the orders made by the Tribunal on 12 and 19 February 2003, the trial of R v Folbigg has concluded, the Tribunal proposes to make an order revoking those orders.

97 The Tribunal therefore orders:

(ii) That the barrister’s name, Mark Alfred Guido Tedeschi QC be included in the Tribunal’s Reasons for Decision dated 30 April 2003 in substitution for the pseudonym "FC"; and

(iii) The orders made by the Tribunal on 12 February 2003 and 19 February 2003 are revoked.

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Citations

New South Wales Bar Association v Tedeschi (No 3) [2003] NSWADT 174

Most Recent Citation

Council of the New South Wales Bar Association v Archer (No 5) [2005] NSWADT 72

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11

Legal Services Commissioner v Laylee & Devlin [2017] QCAT 184

GN v Public Guardian [2009] NSWADTAP 6

Paras v Legal Services Commissioner (No 4) (LSD) [2007] NSWADTAP 39

Cases Cited

13

Statutory Material Cited

6

Boscolo v Secretary, Department of Social Security [1999] FCA 106

Director-General, Department of Community Services v The Adoptive Parents [2005] NSWCA 385

Springfield Nominees Pty Ltd v Bridgelands Securities Ltd [1992] FCA 720

CITATION:	New South Wales Bar Association v Tedeschi (No 3) [2003] NSWADT 174
DIVISION:	Legal Services Division
PARTIES:	APPLICANT Council of the New South Wales Bar Association RESPONDENT Mark Alfred Guido Tedeschi
FILE NUMBER:	012040
HEARING DATES:	20/06/2003
SUBMISSIONS CLOSED:	06/20/2003
DATE OF DECISION:	07/22/2003
BEFORE:	Robberds LP - Judicial Member; Officer D QC - Judicial Member; Elliott K - Member
APPLICATION:	Costs - Publication
MATTER FOR DECISION:	Costs and publication
LEGISLATION CITED:	Administrative Decisions Legislation Amendment Act 1997 Administrative Decisions Tribunal Act 1997 Legal Profession Act 1987 Legal Profession Reform Act 1993 Legal Profession (Amendment) Act 1989 Social Security Act 1947
CASES CITED:	Minister for Community Services and Health v Thoo (1988) 78 ALR 307; Holpitt Pty Limited v Varimu Pty Limited (1991) 103 ALR 684; Springfield Nominees Pty Limited v Bridgelands Securities Limited (1992) 110 ALR 685; Boscolo v Secretary Department of Social Security (1999) 90 FCR 531; Jones v Dunkel (1959) 101 CLR 298; Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705; R v Moffitt (1990) 20 NSWLR 114; Beadle v Director-General of Social Security (1985) 60ALR 225; Secretary Department of Family and Community Services v Chamberlain (2002) 68 ALD 357; Groth v Secretary Department of Social Security (1995) 40 ALD 541; Raybos Australia Pty Limited v Jones (1985) 2NSWLR47 John Fairfax & Sons Limited v Police Tribunal of New South Wales (1986) 5NSWLR 465; Tedeschi v Legal Services Commissioner (1997) 43 NSWLR 20
REPRESENTATION:	APPLICANT P Boulten, barrister RESPONDENT P G Brereton, D Perrignon, barrister
ORDERS:	1 Payment from the Public Purpose Fund to the barrister of the barrister’s costs as agreed or assessed. Such costs are to include the costs of preparation for and the appearance on the interlocutory application heard on 19 February 2003 but are not to include the costs of preparation of any of the affidavits of Mr Lloyd or Mr Viney and are not to include witnesses expenses incurred for the attendance of Mr Lloyd and Mr Viney before the Tribunal to give evidence. The Tribunal grants liberty to apply in relation to this order.; 2. That the barrister’s name, Mark Alfred Guido Tedeschi QC be included in the Tribunal’s Reasons for Decision dated 30 April 2003 in substitution for the pseudonym "FC".; 3. The orders made by the Tribunal on 12 February 2003 and 19 February 2003 are revoked.