Rajski v Ball & anor (LSD)

[2000] NSWADTAP 7

Appeal Panel

CITATION:

Rajski -v- Ball & anor (LSD) [2000] NSWADTAP 7

PARTIES:

APPELLANT
Leszek Rajski

FIRST RESPONDENT
Michael Ball

SECOND RESPONDENT
Legal Services Commissioner

FILE NUMBER:

999030

HEARING DATES:

16/12/99, 03/02/2000, 04/02/2000

SUBMISSIONS CLOSED:

02/14/2000

DATE OF DECISION:

05/04/2000

DECISION UNDER APPEAL:

Application for leave to appear

BEFORE:

Needham CA - (Deputy President); Officer D QC - Judicial Member; Miller PO - Member

CATCHWORDS:

opportunity to be heard - parties to proceedings - joinder

MATTER FOR DECISION:

Principal matter

FILE NUMBER UNDER APPEAL:

9813

DATE OF DECISION UNDER APPEAL:

12/08/1999

LEGISLATION CITED:

Legal Profession Act 1987

CASES CITED:

REPRESENTATION:

APPELLANT
In person
FIRST RESPONDENT
B Walker SC with E Collins (16/12/99)
J Sacker QC with E Collins (03 & 04/02/2000)

SECOND RESPONDENT
No appearance

ORDERS:

Appeal dismissed.

Joinder

1 This is an appeal by Dr Rajski against the refusal by the Administrative Decisions Tribunal on 8 December 1999 of his application to be joined as a party to these proceedings under s. 169 of the Legal Profession Act, or alternatively, under s. 67(4) of the Administrative Decision Tribunal Act 1997.

2 In the proceedings the legal practitioner, Mr Ball, has made an application for summary dismissal of the information. That application was stayed pending the determination of this appeal so that, if Dr Rajski were successful in this appeal he could participate in the hearing of the summary dismissal application.

3 The Notice of Appeal, dated 13 December 1999 is limited to alleged errors of law in the Tribunal’s decision and does not seek leave to extend the appeal to a review on the merits of the decision. During the course of the hearing, no such leave was sought.

4 The Notice of Appeal includes Annexures 1 and Annexures A and B thereto. (Annexure C to the Notice of Appeal is irrelevant for present purposes.). The said annexures comprehensively set forth the Appellant’s case. In addition, the Appeal Panel had before it the Appellant’s written submissions to the Tribunal at first instance, both in chief and in reply. The Tribunal also has the written submissions filed on behalf of the legal practitioner dated 27 January 2000 and the transcript of the proceedings before the Tribunal at first instance on 18 October and 19 November 1999. The Appeal Panel also had the benefit of oral submissions on 3 and 4 February by Dr Rajski and by Mr. Sackar QC for the practitioner. The Legal Services Commissioner did not appear on the appeal.

5 Following such oral submissions, and pursuant to leave given, Dr Rajski on 16 February 2000 filed written submissions in reply to which document the practitioner’s solicitors, Minter Ellison, responded by letter dated 18 February 2000. The Tribunal has carefully considered the totality of this material.

6 Proceedings may be instituted in the Tribunal in respect to a complaint against a legal practitioner by an information laid by the appropriate Council or the Legal Services Commissioner: s. 167(1) of the Legal Profession Act 1987. See Walsh v. Law Society of New South Wales (1999) 164ALR 405 at 422.

7 Walsh is authority for the proposition that the function of this Tribunal is confined to conducting a hearing into each allegation particularised in the information: Walsh at 422; Legal Profession Act s 167(2). Where particulars of the information have been provided by the informant, the Tribunal’s hearing is limited to the case in the information as so particularised: Walsh at 415.

8 In this appeal Dr Rajski submits that he seeks to be joined as a party so that he can put submissions at least to the Tribunal hearing the summary dismissal application, and to the Tribunal hearing the information should that application fail, concerning the particulars to the information. Dr Rajski accepted in oral submissions on 3 January 2000 that the Tribunal must confine itself to the information and also accepted that even if he were joined as a party, he would not be entitled to make or require amendments to be made to the information or the particulars thereto. However he says that he is dissatisfied with the current particulars provided by the Commissioner upon which the summary dismissal application will be determined. He says that as the complainant to the Commissioner, he wishes to ensure that the Tribunal has before it the particulars that Dr Rajski asserts are the proper particulars of his complaint.

9 The Tribunal at first instance was not satisfied that Dr Rajski should be joined as a party under either s. 169 of the Legal Profession Act or s.67(4) of the Administrative Decisions Tribunal Act. The appeal relates to that refusal and also alleges denials of procedural fairness. We deal first with the refusal of the joinder application.

10 Under s. 169(1) of the Legal Profession Act, the persons nominated in sub-paras. (a) to (d) inclusive have an unlimited entitlement to appear at a hearing conducted by the Tribunal and a complainant by sub-paragraph (e) is entitled to appear “subject to subsection (2)”. Subsection (2) provides:

“Unless a complainant is granted leave to appear at the hearing by the Tribunal, the complainant’s entitlement to appear is limited to those aspects of the hearing that relate to a request by the complainant for a compensation order”.

11 Section 171D(1) of the Legal Profession Act provides:

“If, after it has completed a hearing relating to a complaint against a legal practitioner, the Tribunal is satisfied that the legal practitioner is guilty of unprofessional conduct or professional misconduct and that the complainant has suffered loss because of the conduct concerned, the Tribunal may do any one or more of the following to compensate the complainant ….”

12 Section 169(3) of the Act gives the Tribunal power to grant leave to “any other person” to appear at a hearing if the Tribunal is satisfied that it is appropriate for that person to so appear. The subsection does not apply in terms to the persons listed in subsection (1).

13 Section 169 does not specify on which side of the record a person will appear after being joined as a party under subsections (1) or (3).

14 Section 67 of the Administrative Decisions Tribunal Act 1997 sets out who are the parties to proceedings for an original decision and also provides for the joinder of a non-party, again without specifying on which side of the record the person who is joined should appear. Subsection (4) empowers the Tribunal to make a non-party a party to proceedings “if it is satisfied that the interests of the person are likely to be affected by the original decision”. A decision made by the Tribunal in relation to the information filed against Mr. Ball is an original decision for the purposes of the Act as defined in section 7. We will assume for purposes of this appeal that the summary dismissal application is also an original decision.

15 Neither section 169 nor section 67 provide for a person to be joined as a party for a limited purpose. Counsel for the legal practitioner submitted that if Dr Rajski is joined in the proceedings he will be a party for all purposes. This issue does not arise for determination in light of the decision we have reached

16 Section 40(1) of the Administrative Decisions Tribunal Act provides that the provisions of that Act have effect “subject to any contrary provision being made in a relevant enactment (whether expressly or impliedly)”. In our view, s.169(1)-(3) of the Legal Profession Act 1987 are not provisions to the contrary of s.67(4) of the Administrative Decisions Tribunal Act. Those provisions provide alternative but not contradictory mechanisms for a person to be joined as a party to proceedings before the Tribunal. Neither party has submitted otherwise.

17 In the present case the Tribunal does not have before it the terms of the original complaint by Dr Rajski in respect of Mr. Ball and accordingly is unaware whether, to date, there has been a request for a compensation order within the meaning of s.139 of the Legal Profession Act 1987. Dr Rajski did not in his submissions state that such a request had, to date, been made. The information does not seek a compensation order.

18 There can be no doubt that by s 169(2) Dr Rajski has an entitlement to appear at those aspects of the hearing that relate to a request by him, if there be one, for a compensation order. An issue that arises in these proceedings is whether Dr Rajski ought as a matter of discretion to be granted leave under s. 169(2) to appear at those parts of the hearing by the Tribunal which do not so relate to such a request and in particular, to appear on the summary dismissal application.

19 The factors to be taken into account in exercising the discretion under s.169(2) are not set out in the Act. In our opinion and by analogy with s 169(3) the Tribunal should consider whether it is satisfied that it is appropriate for a complainant to appear at those parts of the hearing which do not relate to the complainant’s request (if there be one) for a compensation order. In considering whether it is “appropriate” a relevant factor is whether the complainant’s interests could be affected by the decision.

20 Subsection (2) draws a distinction between those aspects of the hearing which relate to a request by the complainant for a compensation order and those which do not. It is the Tribunal’s opinion that, as a matter of construction, the section requires some interest or grounds upon which leave ought to be granted to attend the hearing generally, over and above the interest that a complainant has in that aspect of the hearing which relates to a request for a compensation order. In other words, a request for compensation alone does not warrant leave being granted to the person making the request. A contrary construction of the section is inconsistent with the distinction drawn by the subsection. Dr Rajski does not submit that he has any interest apart from a future claim for compensation in the event of a finding of misconduct.

21 If this construction of s. 169(2) is incorrect, we are of the opinion that as a matter of discretion, Dr Rajski’s application for joinder under s. 169(2) ought to be refused for substantially the reasons of the Tribunal at first instance, namely:

(a) So far as this Tribunal is aware, no request for compensation has to date been made under s. 139 of the Legal Profession Act 1987. At best, Dr Rajski’s position is that he may in the future make such a request.

(b) Dr Rajski’s possible claim for compensation is for senior counsel’s fees for services rendered from 1993-1996 during settlement negotiations relating to the legal proceedings to which the misconduct complained of in the information relate. Dr Rajski relies on Annexure J to his submissions in the Tribunal at first instance being a letter from Mr. Basten QC. We are not satisfied that this letter provides any or any sufficient evidence of a claim for compensation, even assuming for present purposes that it may constitute evidence that in some circumstances some fees may be payable to Mr. Basten QC. Indeed on the contrary. A fair reading of the letter shows that Mr. Basten QC does not intend to charge Dr Rajski any relevant fees (and therefore discloses no loss for which compensation could be granted) unless and until “there is a likelihood of you recovering funds from which those fees may be met” On any view of it there is no present loss or liability and there will be none unless and until such a condition is fulfilled and even then there is no present agreement that there shall then arise any liability.

(c) The framework of the Legal Profession Act 1987, as set out above, directs (relevantly) the Legal Services Commissioner to have the carriage of the proceedings in respect of the complaint against Mr. Ball. In light of this statutory framework, this Tribunal should be cautious to grant leave to a person to appear at those parts of the hearing not relating to a request by a complainant for a compensation order if the granting of such leave could interfere with or derogate from the orderly conduct of the proceedings by the Legal Services Commissioner.

22 In the present case, the Tribunal at first instance found “Dr Rajski was effectively submitting that the Legal Services Commissioner was not competent to prosecute the matter and has drawn the Tribunal’s attention to differences in particulars provided by the Legal Services Commissioner and those provided by Dr Rajski. It would appear from his arguments that Dr Rajski’s interest in seeking to be joined in the proceedings is to conduct his own prosecution of Mr. Ball”. This, in this Tribunal’s opinion, is a finding of fact and not appealable in the present proceedings. Even if that finding were open to challenge on this appeal, during the course of the hearing on appeal, Dr Rajski frankly admitted that he wanted to substitute his particulars for those of the Commissioner (T. p. 44 l.12 and following). At other times in his submissions, Dr Rajski sought to resile from this position and to suggest that it is really a question of characterisation of the Commissioner’s complaint as particularised. In the opinion of this Tribunal, it is not necessary to resolve the inconsistencies in the submissions of Dr Rajski so far as they relate to the question of the particulars of the information as supplied by the Commissioner and Dr Rajski’s dissatisfaction with the manner in which, as he sees it, the case against Mr. Ball is being conducted by the Commissioner. Whether or not one phrases it in the terms that the Tribunal did at first instance, Dr Rajski frankly states that he is dissatisfied with the manner in which the Commissioner is conducting and proposes to conduct the proceedings against Mr. Ball. It is clearly for this reason that Dr Rajski wishes to be joined to the proceedings. He wishes to be joined so that he can seek to influence the conduct of the proceedings against Mr. Ball. This has the potential to interfere with the Commissioner’s conduct of the proceedings. So much is self-evident. If Dr Rajski were content with the manner in which the Commissioner is conducting the case against Mr. Ball, this application for joinder would have no practical objective.

23 It is the Tribunal’s opinion that to grant leave for this purpose has the potential and indeed the likelihood of producing unjustified interference with the proceedings against Mr. Ball which by statute are committed to the Legal Services Commissioner.

24 For these reasons leave under s. 169 is refused.

25 Alternatively, to exercise its discretion under s 67(4) the Tribunal must be satisfied that the interest of the person seeking to be joined is “likely to be affected” by the original decision. This is a concept familiar in the law. It involves the question of whether the applicant’s legal rights or liabilities could be directly affected by any order made: see News Limited v. Australian Rugby League & Ors. (1996) 64FCR 410; Penang Mining Co. Limited v. Choong San (1969) 2MLJ 52 and Victoria v. Sutton (1998) 72ALJR 1386 at 1399. These authorities also discuss the rationale for rules in these terms for joinder of parties. It is variously put as natural justice, the prevention of injustice or the avoidance of the duplication of proceedings.

26 In the present case, Dr Rajski, in substance, submits that the power of the Tribunal to make a compensation order under s 171D is dependent upon the Tribunal being satisfied that the legal practitioner is guilty of professional misconduct or unsatisfactory professional conduct and that therefore his interests are or could be affected in that he has an interest in such a finding of professional misconduct or unsatisfactory professional conduct being made as a precursor to the Tribunal’s power to make a compensation order.

27 For the reasons set out above the Tribunal is of the opinion that Dr Rajski’s has no relevant “interest”. Further even if he did, and there was within the section a residual discretion, for the reasons set above the Tribunal's view is that as a matter of discretion leave ought to be refused.

28 This Tribunal is therefore of the opinion that Dr Rajski ought not to be joined as a party to the proceedings either under s. 169 of the Legal Profession Act or under s. 67 of the Administrative Decisions Tribunal Act 1997.

Natural Justice

29 Having come to the opinion which it has in the preceding paragraph, the Tribunal is of the opinion that it is not strictly necessary to deal with this aspect of the appeal. However, in deference to the submissions put to it the Tribunal will shortly set forth its opinion.

30 Dr Rajski in his Notice of Appeal contended, variously, that he was denied procedural fairness in the proceedings before the Tribunal at first instance or alternatively there was a failure to exercise jurisdiction. Summarised, the contentions were that :

(a) The Tribunal stopped Dr Rajski from orally addressing and he therefore did not so address on certain issues;

(b) The Tribunal failed to give reasons for that decision to so stop Dr Rajski;

(c) The Tribunal failed to consider Dr Rajski’s request to re-list the application for completion of his oral argument on the matters raised by Dr Rajski in his written submissions;

(d) The application to limit his oral submissions in the circumstances and the manner in which the Tribunal dealt with it involved a procedural unfairness;

31 The Tribunal has the power under s. 73(5) of the Administrative Decisions Tribunal Act to require, inter alia, argument to be presented in writing and it can decide on the matters on which it will hear oral evidence or argument. In the case of a hearing the Tribunal may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases.

32 Bearing in mind the evident purpose and intent of these provisions and the breadth of the words used there is no warrant, contrary to the submissions of Dr Rajski, to limit these provisions to a hearing in the sense of a final hearing on the merits of a substantive issue alone. As a matter of construction the power in s.73(5) is available on an application such as was before the Tribunal.

33 We were taken in detail by Dr Rajski and by Mr. Sackar QC to the transcript of the proceedings before the Tribunal at first instance on 18 October, 19 November 1999. A close examination of that transcript reveals that the factual analysis of it, contended for Dr Rajski in this appeal, is substantially accurate. For example, there is considerable merit in the submission that most, if not all, of the afternoon of 18 October was taken up with submissions and discussion concerning the availability and suitability of dates. Certainly a portion of the morning of 19 November was taken up with the application made on behalf of Mr. Ball to impose a time limit upon the oral submissions of Dr Rajski. These times were not available for submission on the merits of the application.

34 It is an unfortunate fact that the hearing at first instance seems to have been conducted at least in part in an atmosphere of acrimony and to that extent time which would otherwise have been available for the making of substantive submissions was taken up in conduct not directed to the issues in the proceedings. It is not necessary to deal with the submission by Mr. Sackar QC that Dr Rajski was in large measure the author of his own misfortune (if there be such misfortune).

35 On these issues this Tribunal is not persuaded that there has relevantly been any error of law warranting its intervention in this appeal. It is, in the opinion of this Tribunal, quite clear that Dr Rajski had every opportunity both before the hearing on 18 October, 19 November and thereafter to put before the Tribunal such written submissions as he saw fit. He availed himself of both opportunities. He does not submit that there was any matter in respect of which he was not given an adequate opportunity to address in writing and which he did not in fact so address. Dr Rajski does not submit that there was, in fact, any relevant matter upon which he did not make written submissions. His complaint in substance is that he had an insufficient opportunity to orally present his submissions, that he did not have an opportunity to adequately prepare and structure in chief an oral argument before 19 November and that he was prematurely and without due notice stopped from making further oral submissions.

36 As this Tribunal has said, the course of the proceedings before the Tribunal below had some aspects which were unfortunate. We are not however satisfied that the course of the proceedings was such as to deny Dr Rajski procedural fairness. As we have said he had every opportunity to and did in fact avail himself of the filing of written submissions both in chief and reply. He had a substantial period of time in which to present oral argument and he did so. It seems clear on the face of the decision at first instance that that Tribunal considered Dr Rajski’s written and oral submissions. It is clear that they understood that part of the submissions which related to whether or not he had a sufficient interest to be granted leave to be joined as a party. It was not necessary for that Tribunal and nor is it necessary for this Tribunal to make reference in its decision to all the points which Dr Rajski raised in his written and oral submissions. There is no evidence to indicate that the Tribunal below did not understand Dr Rajski’s submissions and indeed on the contrary. In the opinion of this Tribunal Dr Rajski has failed to make out his claim that he was denied procedural fairness.

37 Even assuming for present purposes Dr Rajski had been denied procedural fairness at first instance, this Tribunal is of the opinion that that Tribunal’s decision that Dr Rajski ought not be joined as a party to the proceedings under either of the sections of the said Acts is correct for the reasons set out above.

Further grounds of appeal.

38 Some of the further grounds of appeal complained that the Tribunal failed to consider certain submissions made by Dr Rajski and seek to re-agitate in substance the merit of those grounds. It was not incumbent, in the opinion of this Tribunal, for the Tribunal at first instance to deal with every submission which Dr Rajski sought to make. Many of the submissions at first instance and many of the submissions before this Tribunal went beyond what was necessary to be decided on the leave application.

39 Some of the grounds of appeal assert that there was a failure by the Tribunal to give reasons for the holding that Dr Rajski had no relevant interest. In the opinion of this Tribunal, such a submission ought be rejected. The Tribunal at first instance gave reasons which relevantly disclose no error of law. It was not necessary for that Tribunal to recite at length every submission made to it and to deal with every such submission.

Conclusion

40 The Tribunal is of the opinion that the appeal ought be dismissed and so orders.