THE COUNCIL of the LAW SOCIETY of the ACT & the LEGAL PRACTITIONER S (Occupational Discipline)
[2011] ACAT 32
•8 April 2011
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
THE COUNCIL OF THE LAW SOCIETY OF THE ACT & THE LEGAL PRACTITIONER “S” [2011] ACAT 32
LP 10/4
Catchwords: OCCUPATIONAL DISCIPLINE – LEGAL PRACTITIONERS – application to vacate hearing date - late disclosure of relevant evidence- no matter of principle
Tribunal: Mr Graeme Lunney SC Member
Mr Ross Watch Member
Ms Jane Greagg Member
Date of Orders: 8 April 2011
Date of Reasons for Decision: 18 April 2011
AUSTRALIAN CAPITAL TERRITORY )
CIVIL AND ADMINISTRATIVE TRIBUNAL ) NO: LP 10/4
RE:THE COUNCIL OF THE LAW SOCIETY OF THE ACT
Applicant
AND:THE LEGAL PRACTITIONER “S”
Respondent
ORDERS
Tribunal: Mr G Lunney, SC - Member
Ms J Greagg - Member
Mr R Watch - Member
Date of Order: 8 April 2011
The Tribunal Orders that:
1. The further hearing of the application listed for 11 and 12 April 2011 is vacated.
2. The application is adjourned for further directions to Friday, 6 May 2011 at 10.30am.
3. The respondent is file with the Tribunal and give a copy to the applicant at least 7 days prior to the date for directions, medical evidence relating to his prognosis so that a date for the further hearing of the application can be set.
4.
The Tribunal will deliver reasons for decision in the week commencing
11 April 2011.
REASONS FOR DECISION
The primary application by the Law Society of the ACT came on for hearing on 10 February 2011. At the outset of the hearing, the Society made an application to amend that application. Their application was opposed by the practitioner.
After hearing submissions from the parties, the Tribunal gave leave to the Society to make the amendments requested. The practitioner requested an adjournment in order to consider his response, and to call further evidence.
After further discussion the Tribunal determined that the matter should proceed as far as it could that day, but that the practitioner should have the opportunity to deal with the amendments which had been made, and the matter would be adjourned for that purpose.
The hearing then proceeded on the amended application by the Society, and was adjourned for further hearing at the end of the day. The date set for the further hearing was 11 and 12 April 2011. A direction was given that further material should be filed by 3 March 2001.
On 2 March 2011, the practitioner sent an email to the Tribunal saying in part:
Due to my health issues and the time limits imposed by the Tribunal,
I have not been in a position to prepare and file the further material that was to be submitted by COB 3/03/11.
The practitioner requested a further 4 weeks to lodge the further material.
Further directions were given on about 7 March 2011 permitting the practitioner a further 4 weeks, to 30 March to provide material and the Society a further 7 days, to 6 April to provide material in response. That time table permitted the original hearing dates to be preserved.
On 10 March 2011, the practitioner obtained a ‘Medical Certificate’ from his cardiologist. That was on a standard form on the doctor’s letterhead with the relevant details filled in by hand. It read:
This is to certify that … (the practitioner)
Will be unfit for work from… 10/3/2011
Until…. 10/5/2011
Comments ….. Cardiac Condition
The practitioner took no action in relation to the certificate until about
23 March 2011 when he evidently contacted a member of the Tribunal staff by telephone. This conversation was followed by a letter from the practitioner of 23 March 2011, received in the Registry on 24 March 2011. This read:Attached please find as requested a medical certificate from my specialist (name of cardiologist). I request that the Tribunal vacate the hearing dates of (sic) as I am just not in a position at present to be able to prepare further material nor to participate in the continuation of the hearing.
The medical certificate which was referred to was that quoted above dated
10 March 2011.After some further correspondence, a directions hearing was scheduled for the morning of 7 April 2011 at 11.30. It was expected that the practitioner would apply at that time for the hearing dates of 11 and 12 April to be vacated on the ground of ill health. He was to appear by telephone.
The Tribunal, constituted by all members allocated to hear the primary application, convened at 11.30 on Thursday 7 April 2011. The Society was represented by its solicitors, and the practitioner was in person by telephone.
The practitioner applied to vacate the hearing date and relied on the certificate of 10 March 2011, and gave evidence relating to his medical condition. The Society advised that it wished to cross examine his cardiologist, however in spite of giving similar advice earlier, had not taken any steps to arrange or compel his attendance.
The Tribunal did not consider the evidence relied on by the practitioner sufficient to justify adjournment of the hearing. There had evidently been no change in his medical condition since the earlier hearing, and he had taken no action on the certificate when it was first given. The application for vacation of the hearing date was therefore dismissed. The practitioner was however given leave to provide further evidence from his cardiologist if he considered that course appropriate.
The practitioner did provide a further report from his cardiologist. In so far as it is relevant, it read as follows:
Tribunal Members
ACAT
Fax 62054855Re: [The practitioner]
[His address]Dear Tribunal Members,
This letter is to certify that [the practitioner] is unfit to work for a period of 6 weeks. It would be harmful to his health to go ahead with the preparation and performance of duties at a 2 day hearing which is scheduled I believe, for 10 and 11 April 2011.
He has a history of coronary artery disease, and underwent angioplasty in 2009. He has recurrent chest pain which requires further investigations.
Yours sincerely
[Cardiologist]
Cardiologist
The Society was provided with a copy of the report, and advised that it wished to cross examine the cardiologist. The Tribunal Registry had been advised by the practitioner that the cardiologist was to leave Australia the next day, Friday 8 April 2011.
The report was again couched in terms of the practitioner’s incapacity to undertake work presumably as a solicitor due to his medical condition. It does not address the real reason that the practitioner was involved in the hearing commencing on 11 April 2011: that is as a litigant in person.
Furthermore, the report was provided at a time and in circumstances which precluded the Society from cross examining the doctor. The practitioner had not disclosed the nature of his ‘medical condition’ other than as a ‘cardiac condition’ until two business days before the scheduled hearing. Nor did he file any material in preparation for the hearing after his earlier request for further time to do so. Instead he created significant delay by relying on a patently unsatisfactory certificate until disclosure of the doctor’s report at a time at which it was inevitable that the hearing had to be vacated, since it was impractical for the doctor to be produced by either party for cross examination.
The matter has been set down for further directions on 6 May 2011.
………………………………..
Ms L Crebbin
General President
For Mr G Lunney SC
Member
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Tribunal Staff
PART A FILE NO:
APPLICANT: THE COUNCIL OF THE LAW SOCIETY OF THE ACT
RESPONDENT: THE LEGAL PRACTIONER “S”
COUNSEL APPEARING: APPLICANT:
RESPONDENT:
SOLICITORS: APPLICANT: Phelps Reid Lawyers
RESPONDENT: Self
OTHER: APPLICANT:
RESPONDENT:
TRIBUNAL MEMBER/S: Mr G Lunney SC, Mr R Watch & Ms J Greagg
DATE/S OF HEARING: 2, 10 & 11.2.11 PLACE: CANBERRA
& 11 & 12.4.11
DATE/S OF DECISION: 18 April 2011 PLACE: CANBERRA
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
COMMENTS:
1
0
0