PM v NSW Bar Association (No2)

[2006] NSWADTAP 36

Appeal Panel - External

CITATION:	PM v NSW Bar Association (No2) [2006] NSWADTAP 36
PARTIES:	APPELLANT PM RESPONDENT Council of the New South Wales Bar Association
FILE NUMBER:	058004
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	10/26/2005
DATE OF DECISION:	08/15/2006
BEFORE:	Karpin A - ADCJ (Deputy President); Officer D QC - Judicial Member; Kirkby E - Non Judicial Member
CATCHWORDS:	Costs
MATTER FOR DECISION:	Costs
FILE NUMBER UNDER APPEAL:	N/A
DATE OF DECISION UNDER APPEAL:	10/04/2004
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Legal Profession Act 1987 Legal Profession Amendment Act 2004
CASES CITED:	Brooks Maher v Cheung [2001] NSWADT 18
REPRESENTATION:	APPELLANT In person RESPONDENT P Brereton, barrister
ORDERS:	The Appellant to pay the Respondent's costs as agreed or assessed.

1 In its decision dated 5 October 2005 the Tribunal dismissed an appeal by the Appellant from a decision of the Bar Council that the Appellant be reprimanded pursuant to s.155(3)(a) of the Legal Profession Act 1987.

2 On 18 March the barrister filed a Notice of Appeal and, following further procedural steps, on 19 July 2005 filed a document described as “an amended application”.

3 In dismissing the appeal, the Tribunal rejected a submission by the barrister that his case required an exception to be made to amendments made by the Legal Profession Amendment Act 2004. This submission was made notwithstanding what the Tribunal found to be the clear and unambiguous words providing that the amendments to s.155 were to apply to conduct occurring prior to 15 August 2004. As the Tribunal found in those circumstances, it was of the opinion that there was no scope to give the legislation a more restrictive meaning as contended for by the barrister.

4 The Tribunal also rejected a submission by the barrister that there was undue delay in investigation and the decision to reprimand such that the Bar Council’s decision ought to be permanently stayed. In rejecting that submission, the Tribunal said that in its opinion the assertion was without foundation. The Tribunal also rejected a submission by the barrister that such delay had been intentional on the part of the Bar Council as being a submission totally without foundation.

5 The Tribunal also rejected a complaint by the barrister that the amendments to the legislation denied him an opportunity to justify his behaviour before this Tribunal in the sense that the legislation in its unamended form required his consent to a reprimand and, had that consent not been forthcoming, the Bar Council would have had no realistic alternative but to institute proceedings against the barrister in the Tribunal. The Tribunal expressed the view that that submission failed to adequately deal with the express words of the legislation and failed to give adequate weight to the appeal rights provided for under s.155(6) of the Act as amended. The Tribunal held that the amendments to the legislation were clear and unambiguous.

6 The barrister complained of a breach of natural justice. This submission was rejected as being one…