The Law Society of the ACT v Legal Practitioner
[2017] ACTSC 159
•30 June 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | The Law Society of the ACT v Legal Practitioner |
Citation: | [2017] ACTSC 159 |
Hearing Date: | 30 June 2017 |
DecisionDate: | 30 June 2017 |
Before: | Elkaim J |
Decision: | The application in proceedings dated 13 June 2017 is dismissed. |
Catchwords: | PROCEDURE – Miscellaneous procedural matters – Application in Proceeding to vacate the hearing date. |
Cases Cited: | Council of the Law Society of the ACT v Legal Practitioner [2013] ACAT 57 Legal Practitioner v Council of the Law Society of the ACT [2014] ACTSC 352 Legal Practitioner v Council of the Law Society of the ACT [2016] ACTCA 35 |
Parties: | Law Society of the Australian Capital Territory (Plaintiff) Legal Practitioner (Defendant) |
Representation: | Counsel Mr M Hijazi (Plaintiff) Self-represented (Defendant) |
| Solicitors Phelps Reid & Associates (Plaintiff) Self-represented (Defendant) | |
File Number: | SC 112 of 2017 |
ELKAIM J:
The application in proceeding currently before me arises from an originating application filed by the plaintiff on 10 April 2017.
The originating application seeks the removal of the defendant’s name from the roll of legal practitioners.
By way of brief background, the defendant was admitted as a solicitor of the Supreme Court on 16 August 2002. In 2013, orders adverse to him were made in the ACT Civil and Administrative Tribunal (ACAT) (Council of the Law Society of the ACT v Legal Practitioner [2013] ACAT 57).
An appeal against those orders was heard by Murrell CJ (Legal Practitioner v Council of the Law Society of the ACT [2014] ACTSC 352).
The appeal was partially successful and the matter was directed to be returned to ACAT.
An appeal and cross-appeal were lodged against the orders of the Chief Justice. The result of this appeal was to restore the original orders made in ACAT (Legal Practitioner v Council of the Law Society of the ACT [2016] ACTCA 35).
The next step in the history was the filing of the originating application in the current proceedings. On 26 May 2017, Murrell CJ listed the matter for directions on 9 June 2017. On the latter date, her Honour made a number of directions, essentially by way of the setting of a timetable, designed to have the matter ready for a hearing by a Full Bench of the Supreme Court on 9 August 2017.
The defendant’s application in proceeding was filed on 13 June 2017. Its purpose is to vacate the hearing date of 9 August 2017 and the orders made by the Chief Justice on 9 June 2017.
The reasons behind the application are contained in an affidavit of the defendant sworn on 13 June 2017. In his affidavit, the defendant sets out a useful brief history of both these proceedings and separate proceedings against D Lawyers.
Based on the affidavit, the latter proceedings arise from an action commenced by D Lawyers in the ACT Magistrates Court in June 2015. In May 2016, these proceedings were transferred to the Supreme Court on the defendant’s application. They were listed for hearing on 10 July 2017.
In April 2017, D Lawyers discontinued their claim against the defendant. That left the defendant’s cross-claim against D Lawyers still to be heard. In early June 2017, the July hearing date was vacated and the matter was listed for hearing on 4 December 2017.
In paragraph [15] of his affidavit, the defendant says that his causes of action against D Lawyers relate to matters which were relevant to the findings and recommendations made in ACAT and, in particular, the recommendation that his name be removed from the local roll.
It is important to note at this stage that D Lawyers represented the defendant in the proceedings before ACAT (LP 8 of 2010).
In response to questioning today, the defendant said that there were a number of allegations against D Lawyers relating to their conduct of his case. They included negligence, breach of a contract of retainer and breach of trust.
The defendant goes on to state in his affidavit that when the Full Court considers the Law Society’s application it should “take into account any findings which will be made” in the case involving D Lawyers.
The prima facie logicality of the defendant’s application is defeated by the following considerations.
An examination of the decisions before the Chief Justice and the Court of Appeal does not reveal any complaint made against D Lawyers. One would have thought that if the defendant was of the view that he had been negligently or otherwise improperly represented before ACAT this fact would have been at the forefront of his submissions.
The grounds of appeal pursued before the Chief Justice are set out in paragraph [23] of her judgment. Paragraph [42] of the Court of Appeal judgment describes the grounds run in that Court. None of the grounds of appeal, in either court, make any mention of or reference to allegations against D Lawyers.
I asked the defendant to explain to me how it was that his allegations against D Lawyers were not included in the grounds of appeal mentioned above. He said it was because he did not realise the failings of D Lawyers until the discovery process was undertaken and until he had certain conversations with counsel, Mr Crispin, who had appeared as junior barrister to Mr Burnside QC in the ACAT hearing and as his counsel in the appeals.
I find it very difficult to accept that a person facing very important proceedings in ACAT would not be alive to failings of his lawyers and that allegations against his lawyers would not have been included in appeals from the ACAT decision.
I note that none of the detail that I elicited from the defendant in Court is included in his affidavit. I accept that his affidavit makes his point in a straightforward manner but nevertheless, in a matter of this significance, I would have expected detail of his allegations against the solicitors to have been included. I would also have expected an explanation for the delay, possibly up to June 2016, of the defendant not realising he had been so poorly represented as to affect the outcome of the ACAT proceedings.
I find it difficult to see how the issues that will be before the Full Court will be dependent on any assessment of the role that D Lawyers played in the ACAT proceedings. If it is established in the suit against D Lawyers that their conduct was responsible for, or contributed to, the ACAT findings then that will no doubt be an important factor in the assessment of damages against the lawyers. That is a matter for that litigation.
In addition, the fact that the separate proceedings concerning D Lawyers have not been finalised is no doubt a matter that the defendant can place before the Full Bench. To adjourn these proceedings in order to await the resolution of the D Lawyers’ proceedings would potentially be to adjourn them for a very long time. The other proceedings are listed for hearing in December; there is a possibility the decision will be reserved and there then may be an appeal from the decision.
It is trite to say that there is a significant public interest in proceedings of this type being finalised.
Accordingly, the application in proceedings filed on 13 June 2017 is dismissed. I will hear the parties on costs.
| I certify that the preceding twenty-five [25] numbered paragraphs are a true copy of the Reasons for Judgment of His Honour Justice Elkaim. Associate: Date: 30 June 2017 |
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