Sullivan v ADT

[2000] NSWSC 386

CITATION:	Sullivan v ADT [2000] NSWSC 386 revised - 14/09/2000
CURRENT JURISDICTION:	Equity
FILE NUMBER(S):	SC 2217/2000
HEARING DATE(S):	27 April and 5 May 2000
JUDGMENT DATE:	5 May 2000
PARTIES :	Timothy Matthew Sullivan (Plaintiff) Administrative Decisions Tribunal (First Defendant) The Law Society of New South Wales (Second Defendant)
JUDGMENT OF:	Windeyer J at 1

COUNSEL :	Mr B.A. Caffrey (Plaintiff) submitting appearance (First Defendant) Dr J.E. Griffiths (Second Defendant)
SOLICITORS:	in person (Plaintiff) submitting appearance (First Defendant) Mr P. Boyd (Second Defendant)
CATCHWORDS:	ADMINISTRATIVE LAW - JUDICIAL REVIEW - BIAS - whether comments by Presiding Member of Tribunal evidenced bias or prejudgment - whether apprehension of bias or prejudgment established an objective standard of a reasonable and fair minded observer in that context - whether judicial review available - whether powers of Supreme Court should be exercised in view of alternative proceedings available
LEGISLATION CITED:	Legal Profession Act 1987. Administrative Decisions Tribunal Act 1997, ss 6(i)(g), 7, 112, 122, 123
CASES CITED:	Lloyd v Veterinary Investigation Committee (1999) NSW CA 68
DECISION:	See paragraph 16

1

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WINDEYER, J

FRIDAY 5 MAY 2000.

2217/00 TIMOTHY MATTHEW SULLIVAN v ADMINISTRATIVE DECISIONS TRIBUNAL & ANOR.

JUDGMENT:

1    HIS HONOUR: This is the final hearing in proceedings where I gave an interlocutory judgment on 27 April 2000, as a result of which I made an interlocutory order restraining until further order the Administrative Decisions Tribunal as constituted for the hearing of an information brought against the plaintiff in the present proceedings, Mr Sullivan, pursuant to s 167 of the Legal Profession Act 1987.

2    In these proceedings the plaintiff, Mr Sullivan, seeks a final order that the Tribunal, as so constituted, be restrained from taking any further action in respect of the hearing of that information. I do not propose to set out again the matters which were set out in my earlier judgment, but so that this judgment will be sensible in itself what I propose to do is to direct that a copy of the earlier judgment, which has not been published outside the parties at this stage, be annexed to this present judgment. The reason I will do that is that it is accepted that apart from two matters to which I will refer, the conduct of which the plaintiff complains or which he says gives rise to a perception of bias or prejudgment, is set out in the earlier decision.

3    There are, however, in fairness, two matters that should be added to those parts of the transcript to which I have already referred. The first of those is on page 23 of the transcript, dated 29 January but which I am told is the transcript for the hearing on 28 January. At the conclusion of that transcript, after discussion between the Presiding Member, the solicitor for the Law Society, and Mr Kennedy of counsel appearing for the solicitor, there is what is best described as a suggestion that the information might be amended, as the plaintiff would put it "stiffened up", and the Presiding Member said, "We will see what happens when the Law Society gets its act together". The other matter to which I should refer appears in the transcript of 22 March 2000 at page 5 where there was discussion about part of a judgment of the President of the Court of Appeal in another recent case involving a charge of false swearing by a barrister where the President had said that if, which he doubted, there were exceptional cases where a barrister who knowingly swears a false affidavit that is filed in a court can be regarded as fit to practice, then that case with which the President was dealing was not one of them. There was then some further discussion when the Presiding Member said that having regard to the information of the witness whose name has been withheld and on the basis that the facts were admitted and there being no cross examination, it was the preliminary view of the Tribunal that as a matter of procedural fairness:

"Mr Sullivan must know that a strike off order may be applied and certainly a reprimand and supervising order is inadequate".

The law to be applied to this case is not in doubt. The question is whether this court should be satisfied on the basis of what has happened to date that the parties or the public might entertain a reasonable apprehension that the Tribunal as constituted might not bring an impartial and unprejudiced mind to the resolution of the question involved, free from prejudgment of that question.

4 Before dealing with this main question it is necessary to give some attention to the question as to whether or not this court should proceed to determine this matter. I am satisfied that pursuant to s112 of the Administrative Decisions Tribunal Act 1997 (the Act) an appeal lies, assuming that this is a question of law as of right, to an appeal panel of the Tribunal. The decision of the Tribunal, being a refusal to disqualify itself, is an appealable decision, albeit that it is a decision made before the final determination of the proceedings. Sections 6(i)(g); s7 and s112(1)(a) of the Act. That is a conclusion which was come to by the Court of Appeal in Lloyd v Veterinary Investigation Committee (1999) NSW CA 68. It is thus necessary to look to the provisions of ss122 and 123 of the Act to decide whether or not the court as a matter of discretion should decline to deal with this question, it being accepted that it is an application for review of a decision under s122 of the Act.

5 Section 123(1) of the Act provides that the Court may refuse to grant an application for review in certain circumstances; the one relevant here being that there is adequate provision under the Act for an alternative review of the decision. This matter must be considered because there is, as I have said, an alternative avenue by way of internal appeal to an appeal panel of the Tribunal.

6 Section 123(2) sets out some matters which the court may take into account in determining whether or not it should decline to deal with the application for review. One of those is whether or not an alternative reviewer is likely to deal with the matter more expeditiously and cheaply than this court and another is whether or not there would be substantial hardship if the application were refused. The court can also take into account any other matter it considers relevant.

7    I have come to the conclusion that the court should proceed with this matter. The main reason for doing so is that while there was no attention given by counsel for the plaintiff or by me to this matter when it first came before the court, the fact is that it is, in reality, part heard before me; the reason for making the interlocutory order was that I required further argument on certain aspects of the matter at that stage. The second reason for taking that view is that there can be no doubt that the determination of this matter by me now would be a far quicker and cheaper determination than would be required if the matter had to go to an appeal panel. The third reason, although perhaps it is not of great significance, is that the transcript of proceedings indicates it was envisaged by both the Presiding Member and by counsel for the plaintiff when the decision refusing disqualification was handed down on 19 April 2000, that the next step would be to bring the matter to this court. In light of those matters, it seems to me that I should deal with the application rather than decline to deal with it and I thus proceed to do so.

8    As I said in my earlier decision, the difficulty in this matter is to determine whether or not the Tribunal crossed the line in its statements rather than did what it was required to do, that being to give procedural fairness and natural justice to the plaintiff by pointing out to him on particular occasions in light of the evidence then before it that the Tribunal was considering a penalty or punishment more severe than would be brought about by the orders sought by the Law Society of New South Wales in the information and for that matter in the amendments which it proposed to make to that information.

9    There can be no doubt that the Tribunal was required to bring its preliminary thoughts on this matter to the attention of the solicitor and that failing to do so would in itself have caused the proceedings to be declared void if an order were made bringing about a penalty substantially greater than that sought by the Law Society in the information which it filed. Thus the statements which have been set out in my earlier judgment and those to which I have directed attention in this judgment are those which must be looked at to determine whether or not the line has been crossed so that a reasonable person on an objective test, having heard what was said, might entertain a reasonable apprehension that the Tribunal as constituted might not bring an impartial mind to bear on the question. If the passages which I have set out were read seriatim in the transcript, I think that it is likely one would come to the conclusion that the plaintiff was entitled to the orders which he seeks. The question though is whether read in their context that is the position. I should point out that I am of the opinion that the question the subject of this action arose in large measure due to the requirement that the Law Society identify in the information, the orders sought by it: see Administrative Decisions Tribunal Rules (Transitional Regulation) 1998 and the form of information. This was also a requirement under the Legal Services Tribunal Rules 1997, now repealed. Such a requirement can give the appearance to the person the subject of complaint that he or she is involved in litigation with the Law Society capable of settlement by consent. If any such statement is appropriate, which I doubt, it should be expressed as being orders that the complainant considers might be appropriate, although even that is not necessarily appropriate until the evidence is complete.

10    It has to be borne in mind, not because the Tribunal itself said so but because it is necessary to do so, that what was said was said on two occasions, on the first of which there was no evidence whatsoever filed for the solicitor through, it seems, a mistake by his counsel and on the second of which there was really nothing in the way of evidence, although there may have been an unsigned statement, but there was a document which admitted all the charges in the information. I have already explained that may have been filed by mistake but nevertheless that was the state in which the evidence stood at the times when the Presiding Member said what he did.

11    The first statement of which real complaint was made is set out in paragraph 17 in my earlier judgment but it was clearly stated by the Presiding Member that it was made in light of there having been no evidence heard and before any conclusion was arrived at, and the Presiding Member said was, "for both of your benefits at this opening point".

12    In relation to most of the other comments which were made, once again when taken in their context it could not, I think, be said that they were doing more than giving to the solicitor and his counsel the appropriate warning of what might be described as the pre-thinking rather than the prejudgment of the Tribunal. In the same way I do not think that it should be thought that what would appear to be an encouragement to the Law Society to amend its information should be thought to amount to prejudgment rather than a suggestion, albeit a strong suggestion, that the Law Society should give further thought to this matter and at least consider the question of whether or not what might be described as more serious orders by way of penalty ought to be sought.

13    The most serious matters which are to be considered are, I think, two. The first is the statement on the second day of the hearing, namely, 22 March, when the Presiding Member said to Mr Sullivan what is set out in paragraph 26 of my earlier judgment. That is because read on its own that passage might indicate that the Tribunal had already decided that a reprimand was inadequate and was considering a strike off order. As I understand it, the only relevant penalty between the two is some period of suspension which is not generally regarded by this court as a suitable protection for the public. That statement must be looked at in light of what was said afterwards when the applicant said he would seek an adjournment to allow to cross examination of a witness, and it seems put on evidence himself, at which stage the presiding member, it would appear, speaking to both parties, made the comments to which I have referred about the case of the barrister who swore a false affidavit. However, when he did that he said at the commencement, "To set you on the path of my thinking", and he then set out the passage of the learned President of the Court of Appeal and went on to say:

"We think prima facie without having heard that when all the facts are admitted, there is no cross examination of the deponents to this point, it is our preliminary view which is a matter of procedural fairness Mr Sullivan must know, that a strike off order may be applied and certainly a reprimand and supervising order is inadequate. Mr Sullivan's entitled to know that. We thought we sent some pretty broad hints last time. It's now fairly and squarely in your court".

It was at that stage an adjournment was sought and it was agreed to.

14    The second matter which caused me concern is that in the discussions about the requirement for an adjournment, the question of cross examination and the evidence which might be adduced, there was a question as to the length of the adjournment required and the time it had taken to get the complaint before the Tribunal. The applicant, Mr Sullivan, said, "I believe it has only been before the Tribunal on two occasions", to which the Presiding Member answered, "Yes, but it has been hanging about with you continuing to practice for nearly two years". That is a passage which read without the benefit of anything else might have given rise to the view that the Presiding Member had come to the conclusion that Mr Sullivan had been lucky that the matter had not been considered earlier because he should have been struck off the roll earlier.

15    It is necessary in matters such as this to decide whether or not any apprehension of bias or prejudgment is reasonable, and not just imaginary. That does not mean that a party must establish something beyond reasonable doubt, but the test is an objective one related to a reasonable and fair minded observer. When everything that was said and complained of is taken into account in the context in which it was said, then while it might be thought by some unfortunate that the Presiding Member reiterated his preliminary views in a strong way on a number of occasions, I do not think, when what was said is considered in light of the reiteration that it was a preliminary view, that the test which is required for a stay on the grounds of actual or perceived bias or pre judgment has been made out. This is not the easiest case and it is one on which I have had some doubts, but that is the decision which I have reached. In those circumstances, I propose to dismiss the summons.

16    I order the summons be dismissed. I order the plaintiff to pay the costs of the second defendant and I order that the exhibits be returned.

17   

IN THE SUPREME COURT

OF NEW SOUTH WALES
EQUITY DIVISION

WINDEYER J

THURSDAY 27 APRIL 2000

2217/2000 TIMOTHY MATTHEW SULLIVAN v ADMINISTRATIVE DECISIONS TRIBUNAL & THE LAW SOCIETY OF NEW SOUTH WALES

JUDGMENT

1. HIS HONOUR : The plaintiff, Mr Timothy Sullivan, seeks an order that the Legal Services Division of the Administrative Decisions Tribunal, as constituted for the hearing of a complaint filed against him by the Law Society of New South Wales be disqualified and restrained from any further hearing in respect of that information. The members of the Legal Services Division constituting the Tribunal comprised Mr J S Coombs QC, Ms D Klika and Ms A Durbach. The plaintiff also seeks an interlocutory order restraining the Tribunal as so constituted from taking any further action pending further order of this Court.

2. This matter has had an irregular start. On 20 April an application was made to Mr Justice O'Keefe, presumably as Common Law Duty Judge, as a result of which he gave leave to file the summons returnable on 26 April 2000. The summons was headed as a proceeding in the Equity Division. Whether or not that was noticed by Mr Justice O'Keefe, I do not know, but the Registry naturally enough assumed that it was an Equity Division matter and opened an Equity Division file. For that reason the matter came before me yesterday as Equity Duty Judge. At that stage the only defendant named was the Administrative Decisions Tribunal - Legal Services Division. A submitting appearance was filed by that body as was proper. There was however no real contradictor. As the Law Society of New South Wales filed the information, I directed that the Society be added as a defendant and adjourned the proceedings for a short time.

3. Mr Pierotti, a solicitor employed by the Law Society, was present in court and after the adjournment filed an appearance for the Law Society. I then stated that I was of the view that the action should have been placed in the Administrative Law List of the Common Law Division and directed that it be transferred to that list. As the matter was urgent because the Tribunal proposed to proceed with the matter today and I was in a position to hear it, I said I would do so unless there was any objection which there was not.

4. On 19 April 2000 the plaintiff solicitor, then represented by his present counsel Mr Caffrey, made an application that the Tribunal as then constituted "disqualify itself because it has prejudged the case". By "decision" of that date the application was refused and the Tribunal stood the matter over to 27 April so as to allow the plaintiff to make a foreshadowed application to this Court to restrain the Tribunal as constituted from proceeding further.

5. During the hearing before me I took up with the parties the question of the basis upon which the application before me was made. Neither side was able to assist me with this. It is fair to say so far as Mr Pierotti was concerned that he had no time to give this matter any consideration. The Administrative Decisions Tribunal Act 1997 (the Act) provides for a review of a decision by a review panel of five members of the Tribunal. That I would have thought was not a very appropriate procedure for the type of matter being considered by the Legal Services Division of the Tribunal or for that matter, before the Court today, but that is not a matter for debate here. An appeal lies to this Court from the Appeal Panel by leave on a question of law but this is not an appeal, nor is an Appeal Panel decision involved.

6. Section 122 of the Act is as follows:

Nothing in this Act (except for s123) affects the power of the Supreme Court, in the exercise of its original jurisdiction, to review the decisions of the Tribunal.


7. That section seems to presuppose proceedings by way of administrative review which, in general, requires an application for relief by order in the nature of prerogative order. It also requires attention to be given to the question whether or not the refusal of the three members of the Tribunal to disqualify themselves was a decision under s122. Section 6 of the Act defines "decision" as including (g) doing or refusing to do any other act or thing and it defines "original decision" as the decision of the Tribunal made in relation to a matter over which it has jurisdiction under an enactment to act as the primary decision maker.

8. It may be that the refusal of the Tribunal to disqualify itself was a decision under section 6. However, without that statutory assistance, it is at least doubtful whether an appeal or review would lie. The cases at present appear to accept that a refusal of a judge to disqualify himself or herself is not an appealable decision, there being no issue between parties for determination by the judge, who himself is not a party. No argument was addressed to me as to the basis upon which the proceedings were brought, nor as to whether the refusal to disqualify was a reviewable decision. That is not something the Court should be required to determine overnight without assistance.

9. It follows from what I have just said that the Court should not make any final order without hearing further submissions properly considered. I should add that it should be borne in mind that any perception of prejudgment is often overcome if a matter is heard to conclusion. However, while I have not had the benefit of argument sufficient to enable me to reach a final decision, I consider, although the matter was really heard before me on a final basis, that I should consider whether or not there is a case made out for interim relief until a final hearing could take place. While that might seem procedurally irregular, the summons does include a claim for interlocutory relief so that if I find the facts give rise to an entitlement to interim restraint pending final hearing, it would, I think, be proper to make an interlocutory order.

10. One of the matters that leads me to treat the matter in that fashion is the remarkable and unfortunate fact that the complaints which gave rise to the information being filed were made to the Law Society in 1996 in the case of Brooks and in 1997 in the case of the second complainant while the information was not filed until 24 August 1999 and it seems that after some preliminary hearings before the Registrar it came first before the Tribunal as constituted on 29 January 2000.

11. On the first day, namely 29 January, Mr Boyd, a solicitor employed by the Law Society, appeared for that Society. The orders sought by the Council of the law Society in the information were for (a) a reprimand; (b) costs; (c) that the solicitor's practising certificate be restricted to that of an employed solicitor for 12 months; and (d) that if and after the solicitor commenced practice on his own account, then his practice be subject to three monthly inspections for 12 months.

12. The information alleges five counts of professional misconduct by the solicitor. Three of these relate to a complaint instituted by people called Brooks and two relate to a complaint instituted by the second complainant.

13. The Brooks complaints alleged professional misconduct in filing in the Local Court a notice of motion and affidavit in support indicating that the solicitor was the solicitor for the judgment debtors at a time when he was aware, or ought to have been aware, that his retainer had been terminated, in acting without instructions in the same matter and in failing to comply with a requirement of the Law Society to waive his lien and to transfer a copy of the Brooks' file to the new solicitors for those people.

14 The second complainant complaints were of misleading the Law Society but, more importantly, of writing a letter to a former client with a view to hindering or obstructing the Law Society's investigations by inducing or influencing the second complainant to withdraw his complaints.

15 The charges of unsatisfactory professional conduct were a failure to advise Mr and Mrs Brooks for over one year that a defence and cross-claim to the Local Court action had been rejected and in relation to the second complainant matter, for delay in releasing files.

16 It had been stated to the Registrar before the hearing date was fixed that there was to be no cross-examination of witnesses called by the Society. Mr Sullivan filed no affidavits but filed a reply which did not dispute any of the claims in the information but gave some excuses for the conduct complained of. The following comments and statements of the Presiding Member are those relied upon as showing actual or perceived bias and prejudgment so far as the first hearing day was concerned. I will refer to the pages of the transcript to make it easier to follow.

17 There had been discussions between the Presiding Member and Mr Boyd as to the orders sought, the Presiding Member asking whether they were to be any amendments to the orders sought which I have already set out. When Mr Boyd said that the orders sought were the final resolution from the Joint Professional Conduct Committee, the Presiding Member said,

I noticed that and that was the very reason I asked. There was talk of substantial fines and other matters and other resolutions along the way but this is the final form.

Mr Boyd affirmed that was right, at which stage the Presiding Member said,

At first blush, just at first blush, and I have heard nothing, I think I should only say that all members of the Tribunal were a bit surprised at the leniency suggested, we have heard no evidence yet and we will hear it all before we make any conclusion but I just say that for both of your benefits at this opening point.

18 At page 8 in relation to the Brooks matter, Mr Boyd, having explained that the solicitor filed an affidavit saying he was the solicitor for the Brooks, the Presiding Member said,

There is a more fundamental problem, isn't there? He swore an affidavit which was false. Where is the allegation of professional misconduct in false swearing? We spent five hours yesterday with someone who swore an affidavit in support of ground of defence.


To which Mr Brooks responded that the Society did not put it as high as that but the Society said that the Court was misled.

19 In connection with the complaints of unsatisfactory professional conduct and the failure to tell the Brooks of the judgment having been entered against them, at page 9 the Presiding Member said,

It is only unsatisfactory conduct to fail to tell your client there is a judgment against you for $39,000 for a year?


20. There was then discussion about what a third year law student ought to know about self executing judgments.

21 The Presiding Member then said,

My request is directed to the Law Society. Unsatisfactory professional conduct, is that all?
Mr Boyd: There are a lot of hawks and a lot of doves on the various committees of the Law Society.
Presiding Member: I hope I fall between the two but all three of us were startled.

22. In relation to the withdrawal of the second complainant, a letter having been written by the solicitor to the second complainant, which on one basis might have been treated as a threat to disclose confidential information detrimental to that client or former client, the Presiding Member said:

The complainant picked the ball up but the Law Society picked it up and passed it to the wing.
Mr Boyd: And the Law Society said that was designed to make him withdraw his complaint (referring to the letter).
Presiding Member: I should comment that the reprimand seems somewhat underwhelming in the circumstances.


23. At the conclusion of day one it appeared there had been some misunderstanding as to the requirement that the solicitor file affidavits containing any evidence in chief he wished to give. Counsel at the time stated that he thought he would have been able to call oral evidence. He asked for an adjournment and a timetable was ordered.

24. At the conclusion, Mr Kennedy asked whether the Tribunal would be constituted as it was on that day and the Presiding Member said it would be and then after discussion said at page 21 and addressing Mr Boyd,

25. Mr Boyd, obviously we have reached no concluded view about any of these matters, particularly as we have not heard from the solicitor. But having regard to the material tendered and to the fact that no requirement for cross-examination of any of the deponents exist, the Tribunal unanimously thinks that you should seek instructions about what orders you might seek. If there is any change to the information or the orders sought, it is to be filed and served within 14 days.

26 There was then some discussion between the Presiding Member and Mr Kennedy as to a change in what was called the indictment after which the Presiding Member said,

27 I think we are suggesting on the present information that it might be thought that what the Law Society is asking for might send a wrong message to the public and practitioners.

28 The adjourned hearing continued on 22 March. Mr Kennedy announced his instructions had been withdrawn and the solicitor would represent himself. There was discussion initiated by the Presiding Member as to whether any change was sought by the Law Society as to the form of orders, this appearing on page 2. The Presiding Member said to Mr Boyd,

29 The Tribunal took up with you twice on the last occasion the format of the orders sought in the information. I take it there has been another Professional Conduct Committee Meeting and they have decided they don't want to change that.

30 Mr Boyd said that it had been considered by the Department and there would be no change.

31 I should interpolate here that the comments in relation to the orders sought and the possible amendments of them are seized upon by Mr Caffrey as indicating that the Presiding Member had somehow determined that the solicitor ought to be struck from the roll and that the orders sought by the Law Society should be changed to seek this, although the Tribunal had that power, irrespective of what was sought or suggested by the Law Society.

32 At this stage of the hearing an amended reply had been filed which had the effect of admitting all the charges in the information. There was some discussion about late affidavits and a statement of Mr Sullivan which is referred to as an affidavit, although it was never sworn. After this, the Presiding Member said at page 4:

33 Mr Sullivan, you have chosen to represent yourself and I don't have to remind you of the many strictures against that course being taken. You are entitled to know, and as a matter of procedural fairness we tell you, that the Tribunal thinks that a reprimand is inadequate in relation to this and we are considering a strike off order.

34 Mr Sullivan said that he thought he had made an agreement with the Law Society that if he admitted the charges and agreed to the orders sought by them, that would be the end of the matter, although he subsequently did accept that he had been told by Mr Boyd that it was not a consent jurisdiction and any decision rested with the Tribunal.

35 The solicitor then said he would wish to cross-examine the witnesses who had made affidavits at the request of the Law Society and might wish to put on further material. It was agreed there should be an adjournment for this, the Presiding Member stating that it should not be for too long and there was a discussion about the requirement for cross-examination. The Presiding Member then discussed the time that this matter had taken to get before the Tribunal and during this time said at page 8,

Yes, but it has been hanging about with you continuing to practise for nearly two years.


The matter was then stood over until 19 April.

36 On 19 April, Mr Sullivan was represented by Mr Caffrey of counsel. Mr Caffrey asked that the Members disqualify themselves from further hearing. There were some rather inappropriate statements made by Mr Caffrey about the attitude of the Tribunal to the Law Society's recommendations as to penalty and the Presiding Member then stated at page 4:

We have indicated merely that under consideration is the question of him being struck off. We have made no final decision about it. We indicated that was under consideration, having regard, amongst other things, to the admission of the charges.


37 There was further discussion about the position with evidence when the statements, which I have set out, were made. It is not necessary to go into this in detail. The Tribunal adjourned for a time to consider its attitude to the application and later on the same day handed down a document headed "Decision" under which the application for disqualification was refused.

38 I turn to the question of whether there should be interlocutory relief. It is necessary to consider the passages complained of in the context in which they appear. It was clearly necessary for the Tribunal to warn the solicitor if it was considering making an order which would have the effect of imposing some punishment greater than was sought by the Law Society in the information. This was particularly so because the solicitor was clearly inexperienced in litigation and in fact his counsel told me that he knew "from nil to nothing" about it. That is not to say that the Tribunal should not impose a greater punishment as it is in no way bound by the views of the Law Society, although it is required to give proper attention to those views. Nonetheless, I consider that there is a serious question to be tried as to whether the Tribunal overstepped the mark so that rather than just giving adequate warning, as a result of the statements made, Mr Sullivan or the public might entertain a reasonable apprehension that the Tribunal might not bring the impartial mind, free of prejudgment, to the resolution of the question which is required.

39 There is also a question to be tried as to the powers of this Court to review the processes which have taken place in the Tribunal to this stage. I do not envisage there would be any further argument upon the principal question as to perceived bias, actual bias or prejudgment so that the principal argument for the future would be in relation to the matters I have alluded to at the commencement of this judgment as to the power of the Court to deal with this matter at this stage and the appropriate form of relief, if any. Judicial review of the kind sought here usually results in the quashing of an order but there is no reason why an injunctive order should not be made in proper circumstances. I have had no submissions on that at this stage.

40 In view of what I have said I propose to make the order sought in paragraph 2 of the summons which is an order for interlocutory relief. I will fix a date for the further hearing of this matter, if possible, before me while I am Duty Judge next week. I make the order as sought in paragraph 2 of the summons.

41 Costs of the proceedings to date be costs in the cause.

42 Stood over to Friday 5 May 2000 for final hearing.

Last Modified: 09/27/2000