Payne v Haski

[2018] NSWCATAD 115

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Payne v Haski [2018] NSWCATAD 115
Hearing dates:	On the Papers
Date of orders:	30 May 2018
Decision date:	30 May 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	D A Cowdroy QC, ADCJ, Principal Member N S Isenberg, Senior Member B G Thomson, General Member
Decision:	1. The Tribunal orders that the application be struck out pursuant to s 55 (1)(b) of the Civil and Administrative Tribunal Act 2013
Catchwords:	PRACTICE AND PROCEDURE – application for dismissal under section 55(1)(b) of NCAT Act - unable to identify any claim in respect of which the Tribunal has jurisdiction – proceedings dismissed.
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1900 (NSW) Criminal Code 1899 (Qld) Legal Profession Uniform Law 2004 Legal Profession Uniform Law Application Act 2014 No 16 (NSW) Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 (NSW)
Cases Cited:	Nil
Category:	Procedural and other rulings
Parties:	Carl Payne (Applicant) Jacqueline Haski (First Respondent) Wendy Blacker (Second Respondent) Martin Williams (Third Respondent)
Representation:	Applicant in person Wendy Blacker Lawyers (Respondents)
File Number(s):	2018/00052460

REASONS FOR DECISION

THE APPLICATION

1. By General Application Form filed on 14 February 2018, Mr Carl Payne (the applicant) filed orders seeking monetary compensation and disciplinary action against Ms Jacqueline Haski, Ms Wendy Blacker and Mr Martin Williams (the respondents).

2. From the information available, it appears that the applicant has been involved in litigation against a client of the respondents which has proceeded in the Federal Court of Australia.

3. The application states, in respect of the legislation purportedly conferring jurisdiction on the Tribunal :

“This is an application under the: Legal Professions Act, Australian Solicitors Conduct Rules, Crimes Act 1900, Criminal Code 1899.”

4. The orders sought are described as:

“Monetary Compensation, Disiplinary [sic] Action.”

5. The grounds for the application are stated to be as follows:

“I believe that the aforementioned respondents have breached Federal Court Orders, they have knowingly and willingly tampered/altered/changed Federal Court Documents that have been stamped, signed and filed by the Court Registrar to gain an advantage and used their concerted attempts to persuade the judge That for a favorable decision, they have breached the Australian Solicitors Conduct Rules and other aforementioned Acts. The causation of this was denying myself the right to expected justice.”

APPLICATION FOR DISMISSAL

6. The application came before the Tribunal on 7 March 2018 when the following orders were made:

1. Grant leave to the respondents to make an oral application that the proceedings be dismissed under s 55 of the Civil and Administrative Tribunal Act 2013 No 2 (NSW) (“the CAT Act”) for want of jurisdiction.

2. It is noted that the respondents rely on the letter dated 28 February 2018 from Wendy Blacker, Lawyers in support of their application.

3. The applicant is to file and serve any submissions opposing the application for dismissal of his application by 18 April 2018.

4. The application for dismissal of the application is to be dealt with by the Tribunal on the papers.

7. The respondents rely upon their submissions on 2 March 2018. The applicant filed his submissions on 3 May 2018. Essentially the respondents submitted that the Tribunal has no jurisdiction to grant relief sought by the applicant. Their submissions conveniently set out some of the history of the proceedings, and for convenience the Tribunal reiterates the relevant portions of their submissions.

RESPONDENTS’ SUBMISSIONS

8. The Tribunal lacks jurisdiction to grant the relief sought by the applicant in the application.

9. The first respondent (Ms Jacqueline Haski) and the second respondent (Ms Wendy Blacker) are, respectively, an employed solicitor and director of the incorporated legal practice trading as Wendy Blacker Lawyers.

10. At no time was the applicant a client of, or the recipient of legal services from, Wendy Blacker Lawyers. Rather, he is an opposing litigant of clients of that firm in the Federal Court proceedings. In those proceedings, the first and second respondents act for Mr Ian Long (an employee of TAFE NSW) and the State of New South Wales, who have been sued by the applicant alleging that they engaged in unlawful discrimination on the ground of race in connection with the applicant's application for enrolment in a course offered by TAFE NSW. The applicant alleges in the Federal Court proceedings that he was unlawfully discriminated against because positions in the course were offered to, and filled by, people of Aboriginal heritage. The applicant is self-represented in the Federal Court proceedings.

11. The third respondent in the present proceedings (Mr Martin Williams) is an in-house solicitor employed by TAFE NSW in the position of head of the legal department.

12. In his General Application Form filed in the present proceedings on 14 February 2018, the applicant seeks, in part 3, "Monetary Compensation, Disciplinary Action." The legislation which is said to give jurisdiction to the Tribunal is identified, in part 2 of the application, as "Legal Professions Act, Australian Solicitors Conduct Rules, Crimes Act 1900 Criminal Code 1899.”

13. Neither the Crimes Act 1900 (NSW) nor the Criminal Code 1899 (Qld) confers any relevant jurisdiction upon the Tribunal.

14. The Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 (NSW) do not themselves confer any jurisdiction upon the Tribunal. Rather, jurisdiction is conferred upon the Tribunal by the Legal Profession Uniform Law (NSW) No 16a (“the Uniform Law”), but only in the manner identified below.

15. Pt 5.3 (ss 285 – 294) of the Uniform Law is entitled "Consumer matters.” No section in that Part confers any jurisdiction upon the Tribunal. Instead, such complaints are to be determined by a designated local regulatory authority (relevantly, the NSW Legal Services Commissioner). There is a right of appeal to the Tribunal from a determination made by such an authority under s 290, but that right of appeal is exercisable only by a respondent lawyer or a legal practitioner associate of a respondent law practice (s 314). In any event, the applicant's complaint is not capable of satisfying the definition of a "consumer matter" (s 269(1)) because it is not "a complaint about a lawyer or a law practice [that] relates to the provision of legal services to the complainant by the lawyer or law practice.”

16. Pt 5.4 (ss 295 – 305) of the Uniform Law is entitled "Disciplinary matters.” Section 300 confers jurisdiction upon the Tribunal to deal with allegations of unsatisfactory professional conduct or professional misconduct against a respondent lawyer, but only where the proceedings are initiated by a designated local regulatory authority. Nothing in Pt 5.4 confers jurisdiction upon the Tribunal to deal with any proceedings commenced by the applicant.

17. Pt 5.5 (ss 306 – 311) of the Uniform Law is entitled "Compensation orders.” Section 307 confers power upon the Tribunal to make compensation orders, but only in proceedings under Div 3 of Pt 5.4. As noted above, such proceedings may only be initiated by a designated local regulatory authority s 300.

18. Div 2 (ss 452 – 460) of Pt 9.7 of the Uniform Law is entitled "Civil penalties.” Section 453 confers power upon a designated tribunal to impose a pecuniary penalty upon a person who contravenes a civil penalty provision, but only where the application for such a penalty is made by the designated local regulatory authority. In any event, the designated tribunal for the purpose of these provisions is not the Tribunal, but rather a court that would have jurisdiction to order payment of the pecuniary penalty if it were a debt.

19. No other provision of the Uniform Law confers any jurisdiction upon the Tribunal which is capable of being engaged by the present application.

20. It follows that none of the legislation identified by the applicant in part 2 of the application confers jurisdiction upon the Tribunal to hear and determine the present proceedings. Nor is there any other legislation which confers jurisdiction upon the Tribunal to grant the relief sought by the applicant in the application.

21. The proceedings are "misconceived or lacking in substance" within the meaning of s 55(1)(b) of the CAT Act and should be dismissed before the respondents are required to incur further costs in defending the proceedings.

22. Alternatively, the proceedings should be stood over pending the final determination of the Federal Court proceedings.

23. In the event that the Tribunal is not prepared to dismiss the proceedings under s 55(1)(b) of the CAT Act, the respondents would respectfully invite the Tribunal to adjourn or stay the proceedings until after the final determination of the Federal Court proceedings.

24. The allegations made against the respondents, upon which the applicant relies in part 4 of his application as supplying the grounds for the application, relate entirely to alleged acts which are said to have occurred in the conduct of the Federal Court proceedings. For the record, the respondents deny the allegations made in part 4 of the application, which have been made without any proper basis.

25. Those allegations, if they are to be pursued, should be pursued in the Federal Court proceedings. No reason has been identified for pursuing those allegations in this Tribunal.

26. It would be inappropriate for the Tribunal to entertain any claim of this nature, which would require investigation of alleged acts and events in the conduct of the Federal Court proceedings, while those proceedings remain pending. Further, it would be inefficient and an unjustified burden upon the resources of the parties and the Tribunal for any further step to be taken in these proceedings until after the Federal Court proceedings have been finally determined.

APPLICANT’S SUBMISSIONS

27. The applicant’s submissions refer to various statutes, and make allegations of unsatisfactory professional conduct and professional misconduct against the respondents. The applicant also makes reference to the NSW Legal Services Commission, suggesting that some decision has been made which “has allowed the respondents to continue and become even bolder in further Unsatisfactory Professional Conduct and Professional Misconduct.” The submissions are unintelligible, except that it is noted that the applicant seeks leave to amend his application if necessary.

FINDINGS

28. Section 55 (1) of the CAT Act empowers the Tribunal to dismiss, at any stage, any proceedings before it in the circumstances enumerated. Relevantly, (b) provides that the Tribunal may so dismiss:

“if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance,”

29. The jurisdiction of the Tribunal is specified in Pt 3 of the CAT Act. By s 28(1) it is enacted:

“The Tribunal has such jurisdiction and functions as may be conferred or imposed on it by or under this Act or any other legislation”.

30. Section 29 of the CAT Act empowers the Tribunal to have general jurisdiction over the matter if, inter alia, legislation enables the Tribunal to make decisions or exercise other functions, whether on application or of its own motion, of a kind specified by the legislation in respect of that matter and the matter does not otherwise forward an administrative review jurisdiction, appeal jurisdiction or enforcement jurisdiction of the Tribunal.

31. The application before the Tribunal filed by the applicant refers to the “Legal Profession Uniform Law and Legal Professions Act 2004.” The Tribunal is invested with jurisdiction to deal with complaints brought before it relating to members of the legal profession, but only where there are allegations of unsatisfactory professional conduct brought by a designated local regulatory authority, as set out in paragraph 2.8 of the respondent’s submissions. Further, compensation orders, which can be imposed by the provisions of s 307 of the Legal Profession Uniform Law 2004, which applies by virtue of the Legal Profession Uniform Law Application Act 2014 No 16 (NSW), can only made in proceedings and issued by such an authority.

32. The Tribunal has no power in respect of any proceedings under the Crimes Act 1900.

33. It appears that the applicant has proceedings in the Federal Court of Australia or in the Federal Circuit Court which are unresolved. This Tribunal has no power to make any orders affecting those proceedings. If the applicant is dissatisfied with any order made in such proceedings, he has the right to appeal such orders, as provided by the relevant legislation and rules.

34. The application in its current form is unintelligible. The application fails to identify any claim, and does not disclose an action in respect of which the Tribunal has jurisdiction. The Tribunal considers that it is lacking in substance, and for this reason clearly falls within the provisions of s 55(1) (b) of the CAT Act. The Tribunal does not consider that leave to amend should be granted as the claim in its present form, even if amended, could not succeed.

ORDERS

1. The Tribunal orders that the application be struck out pursuant to s 55 (1)(b) of the Civil and Administrative Tribunal Act 2013 No 2 (NSW).

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 30 May 2018