Stanoevski v Law Society of New South Wales

[2003] NSWADTAP 33

Appeal Panel - Internal

CITATION:	Stanoevski v The Council of the Law Society of New South Wales [2003] NSWADTAP 33
PARTIES:	APPLICANT Liljana Stanoevski RESPONDENT The Council of the Law Society of New South Wales
FILE NUMBER:	039030
HEARING DATES:	04/07/2003
SUBMISSIONS CLOSED:	07/04/2003
DATE OF DECISION:	08/14/2003
DECISION UNDER APPEAL:	Council of the Law Society of New South Wales v Stanoevski
BEFORE:	Hogan A - ADCJ (Deputy President); Clisdell RJ - Judicial Member; Taksa L - Member
CATCHWORDS:	adequacy of reasons - leave to extend to the merits
MATTER FOR DECISION:	Preliminary
FILE NUMBER UNDER APPEAL:	022010
DATE OF DECISION UNDER APPEAL:	04/17/2003
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Legal Profession Act 1987
CASES CITED:	Pettit v Dunkley [1971] 1 NSWLR 376 Soulemezis v Dudley Holdings P/L (1987) 10 NSWLR 247 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
REPRESENTATION:	APPLICANT G Scragg, barrister RESPONDENT I Wales SC, barrister
ORDERS:	Adjourn the appeal to a date to be fixed by the registrar for the hearing of such further evidence and the making of such further submissions on the merits as the parties may be advised.

REASONS FOR DECISION

1 This is an appeal from a decision of the Tribunal reported at [2003] NSWADT 77. The Tribunal ordered that the name of the appellant be removed from the roll of legal practitioners in New South Wales and ordered her to pay the costs of the respondent.

2 The Notice of Appeal purported to raise questions of law. The errors of law stated in the original notice were that the Tribunal:

1 Failed to properly take into account two (2) medical reports tendered on behalf of the appellant.

2 Failed to give due weight to the medical reports.

3 Did not properly or at all take into account submissions on behalf of the appellant as to her mental state during the period covered by the informations.

3 Grounds 1 and 2 obviously raise questions of fact, not of law. Ground 3, so far as it refers to the Tribunal's failure properly to take into account submissions about the appellant's mental state, also raises a question of fact. So far as it refers to a failure to take those submissions into account at all, it is capable of raising a point of law.

4 At the hearing of this appeal the appellant was granted leave to amend the Notice of Appeal to add the following ground,

“That the Tribunal fell into error in not giving adequate reasons for its decision”
5 So stated, this ground also is ambivalent. What is meant by "adequate"?

6 On the one hand, it is clear that a failure to give any reasons at all usually constitutes an error of law. Pettit v Dunkley [1971] 1 NSWLR 376. That principle however cannot apply in this case, as the Tribunal set out extensive findings of fact and identified relevant principles.

7 Again, "It may be that where the reasoning of a tribunal of fact to its conclusion of fact is clear and it involves logical error or non sequitur , then there may be, for the purposes of appeal provisions such as the present, an error in point of law." Soulemezis v Dudley Holdings P/L (1987) 10 NSWLR 247 per Mahoney JA at 265. Cf, however, Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139. That, however, is not the complaint that the appellant makes in this case.

8 More to the point in this case is the statement in Soulemezis by McHugh JA at 281,

"In a case where a right of appeal is given only in respect of a question of law, different considerations apply from a case where there is a full appeal. An ultimate finding of fact, which is not subject to appeal and which is in no way dependent upon the application of a legal standard, can be treated less elaborately than an issue involving a question of law or mixed fact and law. If no right of appeal is given against findings of fact, a failure to state the basis of even a crucial finding of fact, if it involves no legal standard, will only constitute an error of law if the failure can be characterised as a breach of the principle that justice must be seen to be done."
9 The respondent Law Society referred to the Tribunal various grounds of complaint about the appellant's conduct as a solicitor, as set out in the Information and Particulars before it, dated 16 March 2002. The information contained 10 paragraphs and associated particulars. The Tribunal dismissed two of the grounds of complaint. Arranged by reference to the matters involved, it made the following findings against the appellant.
Professional misconduct
Estate of F E Marks

The solicitor attempted to mislead the Law Society in correspondence about her delay in handling the estate.

Buldioski

The solicitor forged the signatures of Mr and Mrs Buldioski on consent orders filed in the Family Court

The solicitor falsely attested those signatures.

The solicitor attempted to mislead the Law Society about the execution of the consent orders.

Fowler

The solicitor falsely attested the signatures of Mrs Fowler on three affidavits that she filed in the Family Court.

The solicitor attempted to mislead the Family Court by filing those three affidavits.

Unsatisfactory professional conduct
Estate of F. E. Marks

The solicitor was guilty of undue delay in handling the estate

Lease at Chester Hill

The solicitor was guilty of undue delay in handling the lease.

10 In its reasons for decision the Tribunal made the following comments:
“71 In the Tribunal's opinion, there can be no doubt but that the findings made as to the solicitor’s conduct would have justified an order that her name be struck from the roll had the complaint been heard and determined soon after the events took place. However, those events took place between 1991 and 1993.

72 The Tribunal has had regard to two medical reports filed on behalf of the solicitor and her oral evidence concerning a miscarriage which she suffered in August 1991 and the consequential depression which she suffered. She said, and the Tribunal accepts, that she found it really hard to work or to make decisions and that she procrastinated so far as her work was concerned. The Tribunal also has regard to the fact that following the birth of a child in July 1992 the solicitor suffered stress-related complications and marital difficulties. She says and the Tribunal accepts, that in this period she was very depressed. The Tribunal also takes account that in February 1993 the solicitor suffered a second miscarriage and suffered stress and depression as a result.

73 While the solicitor undoubtedly was suffering from stress and depression at the time, the Tribunal did not understand either her or her counsel to put that forward as an explanation for her conduct or as a justification for it. The Tribunal does, however, take it into account."

11 The first complaint that the appellant makes about these reasons is that, although the Tribunal said that it took into account her stress and depression, it did not set out in what manner it did so. On its own we do not think that such a criticism necessarily raises a point of law.

12 The second complaint is that paragraph 73 demonstrates that the Tribunal obviously misunderstood the appellant's case.

13 In her evidence on 11 December 2002 the appellant was cross-examined about the two offences in connection with the Marks estate, one of delay, and the other of misleading the Law Society about the reasons for the delay. She said among other things, "If I had been properly functioning at the time I would have admitted the delay to the Society."

14 Asked whether she admitted that her letter of 29 January 1993 contained statements that she knew to be untrue, she replied, "I don't know whether at the time they were known to be -- whether they were known to me to be untrue. I don't think I had -- I was in any position to make any balanced response to the Society in view of my emotional condition."

15 During his submissions on 13 December 2002 counsel for the appellant was asked by the presiding member about the relevance of the difficulties that the appellant had been experiencing in her professional and personal life at the time of the offences. He insisted that they were relevant both to the delay and to the content of the letters that she wrote two years later about it.

16 Both before the Tribunal and before us counsel for the Law Society forcefully submitted that the appellant's evidence, when analysed, did not really afford an explanation for her conduct, nor a justification for it. If the Tribunal had, in its reasons, agreed with that submission, there could have been no complaint about its decision.

17 Unfortunately, however, to make such a finding is entirely different from saying, as the Tribunal did, that the appellant had not put forward her difficulties as providing an explanation or a justification. By doing so the Tribunal has made it appear that it has not heard and determined the actual case that the appellant was putting forward.

18 In that context the Tribunal's failure to make findings about the case that the appellant was in fact making is a breach of the principle that justice must be seen to be done, and constitutes an error of law.

19 The decision under appeal must therefore be reconsidered.

20 The Tribunal correctly acknowledged that the critical question for decision is whether at the present time the solicitor is unfit to practise or should be permitted to continue to practise, while the events on which the complaints were based took place between 1991 and 1993.

21 In addition to a review of the evidence that was before the Tribunal, we think that it is appropriate that the parties should have the opportunity to adduce evidence relating to the present time. That evidence may include, but is not limited to, the reports of Ms Duffy and Dr Westmore.

22 Neither party suggested that we should make an order remitting the case to be heard and decided again by the Tribunal as originally constituted pursuant to S.114(2)(b). The appellant sought an order that leave be granted under S.113(2)(b) to extend this appeal to a review of the merits. Having decided that there was an error of law that could have affected the Tribunal's decision we think it is appropriate that leave should be granted.

23 We therefore adjourn the appeal to a date to be fixed by the registrar for the hearing of such further evidence and the making of such further submissions on the merits as the parties may be advised.