Potkonyak v Legal Services Commissioner

[2018] NSWCA 1

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Potkonyak v Legal Services Commissioner [2018] NSWCA 1
Hearing dates:	16 January 2018
Date of orders:	16 January 2018
Decision date:	16 January 2018
Before:	McColl JA
Decision:	See [19]
Catchwords:	PROCEDURE – legal profession disciplinary proceedings – professional misconduct – striking off order – stay pending appeal
Legislation Cited:	Legal Profession Uniform Law (NSW) 2015
Cases Cited:	Legal Services Commissioner v Baker [2006] 2 Qd R 107; [2005] QCA 482 New South Wales Bar Association v Stevens [2003] NSWCA 95; (2003) 52 ATR 602 Re Felicity; FM v Secretary, Department of Family and Community Services (No 3) [2014] NSWCA 226 Re Felicity; FM v Secretary, Department of Family and Community Services (No 4) [2015] NSWCA 19
Category:	Principal judgment
Parties:	Mr G Potkonyak (Applicant) Legal Services Commissioner (Respondent)
Representation:	Counsel: Mr G Potkonyak (Self represented) Ms C A Webster SC (Respondent)     Solicitors: Mr G Potkonyak (Self represented) Legal Services Commissioner (Respondent)
File Number(s):	2017/309407
Publication restriction:	No
Decision under appeal	Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Occupational Division Citation: [2017] NSWCATOD 74 [2017] NSWCATOD 134 [2018] NSWCA TOD 8 Before: F Marks ADCJ, Principal Member; C Ludlow, Senior Member; M Bolt, General Member File Number(s): 2015/00383950

Judgment

1. McCOLL JA: This is an application by George Potkonyak for a stay of orders made by the New South Wales Civil and Administrative Tribunal Occupational Division (Tribunal) on 9 January 2018, ordering that his name be removed from the roll of Lawyers of the Supreme Court of New South Wales with effect seven days from that date and consequential costs orders. [1] Those seven days expire tomorrow.

   1. Legal Services Commissioner v Potkonyak (No. 3) [2018] NSWCATOD 8 (Potkonyak 3).

2. By amended notice of motion filed on 15 January 2018 Mr Potkonyak sought a stay both of those orders and also of certain interim orders made by the Tribunal on 22 August 2017. [2]

   2. Legal Services Commissioner v Potkonyak (No. 2) [2017] NSWCATOD 134 (Potkonyak 2).

3. By directions made by the Court last week, both Mr Potkonyak and the respondent, the Legal Services Commissioner, filed and served written submissions. The Commissioner filed with his submissions proposed orders as to a timetable pending hearing of what, once the orders are made, will become Mr Potkonyak’s appeal to this Court from both the orders made by the Tribunal on 9 January 2018 and also from earlier findings made on 17 May 2017. In the 2017 decision, the Tribunal found Mr Potkonyak guilty of professional misconduct and stood the matter over to the hearing consequent upon which it made the orders of 9 January 2018. [3]

   3. Legal Services Commissioner v Potkonyak [2017] NSWCATOD 74 (Potkonyak 1).

4. On 22 August 2017 the Tribunal made interim orders which included:

“2(b) The Respondent (including his employees or any person practising under the supervision of the Respondent in accordance with section 49 of the Legal Profession Uniform Law (NSW)) must not accept any instructions from new clients.

2(c) The Respondent must not employ or supervise any person within the meaning of section 49 of the Legal Profession Uniform Law (NSW) to accept instructions on his behalf.”

5. The parties have largely reached agreement as to the Commissioner's proposed orders, save that Mr Potkonyak sought to have interim orders 2(b) and (c) stayed so as to permit three persons whom he has apparently been supervising in his practice, Capellia Legal, pursuant to s 49 of the Legal Profession Uniform Law (NSW) 2015 to practise under his supervision until further order of this Court.

6. Interim orders 2(b) and (c), as it is apparent, were intended to have the effect that Mr Potkonyak not accept new instructions either by himself or, to put it shortly, his servants or agents or to supervise any such person to accept instructions on his behalf.

7. It appears from Mr Potkonyak's submissions filed on 15 January 2018 and his affidavit of 15 January 2018 that at the time the interim orders were made he had some half dozen matters in train. The effect of the interim orders has been that he has been unable to accept new instructions since 22 August 2017.

8. I am conscious, as Mr Potkonyak has submitted, that the effect of the interim orders remaining in place is not only personal to him, but has an effect on those whom he has been supervising. Nevertheless, it is the fact that there are some matters on which he can continue to supervise them.

9. I have to take into account, in my view, in considering whether or not to stay interim orders 2(b) and (c), that the effect of acceding to his application will be that instructions could be taken by those persons only under the rubric of Mr Potkonyak’s practice, Capellia Legal. In other words, the effect of staying those two orders would be to enable Mr Potkonyak to continue to practise.

10. It has to be borne in mind when an application for a stay is made by a person against whom findings of serious misconduct have been made, that the protection of the public is a matter which is entitled to significant weight. [4]

    4. New South Wales Bar Association v Stevens [2003] NSWCA 95; (2003) 52 ATR 602 (at [91]) per Spigelman CJ (Meagher and Sheller JJA agreeing); see also Legal Services Commissioner v Baker [2006] 2 Qd R 107; [2005] QCA 482 (at [18]ff) per Chesterman J (McMurdo P and Helman J agreeing).

11. In this case the findings of the Tribunal have been that Mr Potkonyak was guilty of proven misconduct in relation to two sets of proceedings: one, as I understand it, in the Children’s Court of New South Wales, which in due course came before this Court,[5] and one matter in the District Court of New South Wales before his Honour Judge Knox SC.

    5. See Re Felicity; FM v Secretary, Department of Family and Community Services (No 3) [2014] NSWCA 226; Re Felicity; FM v Secretary, Department of Family and Community Services (No 4) [2015] NSWCA 19 (Re Felicity 4).

12. Mr Potkonyak’s conduct of which the Legal Services Commissioner complained before the Tribunal was extensive. It included making disparaging and offensive comments concerning the practice of the Children's Court, misleading the Court in connection with evidence prepared by him and pursuing what the Tribunal described as “an incorrect, ideologically based interpretation of the provisions of certain legislation without regard to appropriate decisions to the contrary of the Supreme Court and the New South Wales Court of Appeal, to the disadvantage of his client, thereby demonstrating a loss of objectivity, coupled with a failure to adduce relevant evidence by reason of his misunderstanding of the relevant principles”. [6]

    6.    Potkonyak (No 3) (at [27]).

13. I am conscious of what Basten JA said in Re Felicity (No 4) [7] in the context of an application by the Secretary of the Department of Family and Community Services for an order that Mr Potkonyak pay to the Secretary and the father in that case the amount of costs the applicant had been ordered to pay to those parties. His Honour referred to the necessity to balance the public interest in maintaining and nurturing a legal profession which provides vigorous representation for litigants in court, uncompromised by fear of personal sanctions for failure, against the need to maintain and nurture the obligation to provide independent advice to litigants and to give proper weight to the public interest in the efficient administration of justice. Nevertheless, his Honour was satisfied that submissions which Mr Potkonyak made in the Court of Appeal were either misconceived or lacked substance or were of the kind which a competent and responsible legal practitioner should have advised a client were untenable and would certainly lose,[8] observations which were echoed by Ward JA. [9]

    7. At [14].

    8. At [37].

    9.    At [46] – [48].

14. The consequences of those observations will no doubt be played out in the course of evaluating in the appeal the extent to which the orders made by the Tribunal and the orders characterising the conduct complained of before the Tribunal in Potkonyak (No 1) were either appropriately reached or whether the orders made appropriately reflected the proper penalty.

15. It is necessary, as I have said, to take into account in considering the application to stay interim orders 2(b) and (c), the protection of the public. In his written submissions Mr Potkonyak suggested that no member of the public was prejudiced by him being allowed to continue to practise. That fails to take into account, in my view, the fact that the public includes those on the other side of the litigious fence, if I can put it that way, in matters in which Mr Potkonyak might become involved should he continue to take instructions. It was, I assume, with an eye to that concern in particular that the Tribunal made interim orders 2(b) and (c).

16. In my view, nothing Mr Potkonyak has said this morning can alleviate the concern that if he was permitted to practise, or those referred to in his proposed orders – Mr Ramen, Mr Oza and Ms Zhang - were permitted to practise under his supervision and in effect take new instructions, the public interest would not be protected in the manner in which I have indicated.

17. For those reasons, I would propose, subject to what I am about to say, to make orders in the form proposed by the Commissioner. However, I would ask Mr Potkonyak and Ms Webster SC, who appears for the respondent, to agree on a version of those orders which substantially truncates the period within which the steps necessary to bring the matter on for hearing are to take place, with a view to enabling the Court to list the matter for hearing as early as possible in the period of 6 March to 26 April 2018, which the Court of Appeal Registrar had indicated to the parties late last week was a period within which the matter could be listed as an expedited hearing.

18. Accordingly, at this stage I will stand the matter down and invite the parties to seek to agree to a form of those orders which, as I have said, truncates all the steps with a view to reaching the outcome I have just outlined. The only amendment I would suggest is to para 8 of the Commissioner's proposed orders is that it be made clear that the appellant's written outline of submissions include any submissions as to why the Court should accede to enable him to adduce any further evidence as outlined in his written submissions.

19. After consultation the parties agreed on the following orders, which I now make:

1. Pending further order of the Court, and:

1. noting that Interim Orders were made by the Tribunal on 22 August 2017, Legal Services Commissioner v Potkonyak (No. 2) [2017] NSWCATOD 134, which remain in place pending further order;

2. the appellant undertaking to prosecute his appeal from the decision of the Tribunal Legal Services Commissioner v Potkonyak (No. 3) [2018] NSWCATOD 8 delivered 9 January 2018 (Tribunal Decision) expeditiously,

the orders made in the Tribunal Decision are stayed.

2. The applicant/appellant is to file and serve a Notice of Appeal from the Tribunal Decision by 19 January 2018.

3. The applicant/appellant is granted leave to withdraw the Amended Summons filed 4 December 2017.

4. On and from the filing of a Notice of Appeal in accordance with Order 2, the second respondent be removed as a party to the proceedings.

5. Direct that the appeal be expedited with a view to being listed for hearing as soon as possible after 6 March 2018.

6. The appellant is to provide the respondent with a list of documents he contends should be included in the Red Book by 19 January 2018.

7. The respondent is to file and serve the Red Book, with only one copy to the appellant, by 29 January 2018.

8. The appellant is to file and serve his written outline of submissions and chronology by 16 February 2018.

9. The appellant is to file and serve any motion seeking orders that the court receive additional evidence together with an affidavit in support, in accordance with rule 51.51, by 16 February 2018. The written outline of submissions is to include any submissions as to why the court should accede to an application to enable the applicant to adduce any further evidence as outlined in his written submissions dated 15 January 2018.

10. The proceedings are listed for directions and to fix a date for hearing on Wednesday 21 February 2018.

11. The respondent is to file and serve written submissions and any alternate chronology by 2 March 2018.

12. The appellant is to file and serve any written submissions in reply by 15 March 2018.

13. The appellant is to provide the respondent with a list of documents he contends should be in Blue and Black (or Combined) Appeal Books by 16 February 2018.

14. The respondent is to file and serve Blue and Black (or Combined) Appeal Books, with only one copy to the appellant, by 2 March 2018.

15. The appellant is to file and serve amended submissions and chronology (inserting Appeal Book references in written outline of submissions and chronology filed in accordance with Order 8, any other amendments requiring leave of the Court) by 15 March 2018.

16. If the respondent’s submissions filed in accordance with Order 11 do not include Appeal Book references, the respondent is to file and serve amended submissions (inserting Appeal Book references) by 15 March 2018.

17. The respondent is to file and serve the Orange Book by 20 March 2018.

18. The respondent is to file three further copies of the Red Book, and four copies of the Blue and Black (or Combined) Books and the Orange Book by 20 March 2018.

19. The proceedings are listed for directions on Wednesday 21 March 2018 (to be vacated if submissions are filed in accordance with order 15 and if the Orange Book is filed in accordance with order 17).

20. Costs reserved.

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Endnotes

Amendments

22 January 2018 - Paragraph [19] - amendment to order 6

Decision last updated: 22 January 2018