The Law Society of the Australian Capital Territory v Davey

[2019] ACTSC 206

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

The Law Society of the Australian Capital Territory v Davey

Citation:

[2019] ACTSC 206

Hearing Date:

6 August 2019

Decision Date:

6 August 2019

Before:

Elkaim J

Decision:

See [20]

Catchwords:

LEGAL PRACTITIONERS – Complaints and discipline – Fraud – breach of Solicitor Conduct Rules and Undertakings – application to remove practitioner from the roll of practitioners following ACAT recommendation – whether defendant is a fit and proper person

CIVIL PROCEDURE – Application in proceeding – Application to set aside Notice to Produce – abuse of process – re-litigation of previously litigated issues  – costs sought on an indemnity basis

Legislation Cited:

Court Procedures Rules 2006 (ACT) r 6721(1)(b)

Legal Profession Act 2006 (ACT) ss 395, 425(3)(a), 431(3)(b)

Supreme Court Act 1933 (ACT) s 11(4)(b)

Cases Cited:

Council of the Law Society of theACT v Bandarage [2019] ACTSCFC 1

Parties:

The Law Society of the Australian Capital Territory (Plaintiff)

John Davey (Defendant)

Representation:

Counsel

K Binstock (Plaintiff)

In Person (Defendant)

Solicitors

McInnes Wilson Lawyers (Plaintiff)

Herm Legal & Migration Services (Defendant)

File Number:

SC 366 of 2018

ELKAIM J:

1.           The substantive matter is listed for hearing before the Full Court on 14 August 2019. The plaintiff is seeking the removal of the defendant from the local roll of legal practitioners.

2. I am able to hear the matter as a single judge pursuant to s 11(4)(b) of the Supreme Court Act 1933 (ACT).

3.           On 25 July 2019 the plaintiff filed an application seeking an order that a Notice to Produce (the Notice) that had been issued by the defendant to the plaintiff, dated 12 July 2019, be set aside.

4.           The application was put on two separate grounds. Firstly, it was said that the material sought in the Notice was irrelevant to the proceedings. Secondly, it was submitted that the Notice concerned matters which, if considered, would amount to a re-litigation of previously litigated issues. Accordingly, said the plaintiff, the Notice should be set aside as an abuse of process.

5.           The application was opposed by the defendant. He said that there were jurisdictional errors attendant upon the path of the plaintiff’s application to the Full Court which would create enough doubt to result in the application being refused.

6. The defendant pointed out that the jurisdictional issues included the difference of opinion that had arisen in the ACT Supreme Court concerning the interpretation of s 395 of the Legal Profession Act 2006 (ACT) (the LPA), in particular as between Burns J and the Murrell CJ.

7.           The defendant also referred to an alleged failure on behalf of the plaintiff to have given proper reasons before commencing disciplinary proceedings. The defendant accepted that this matter had been dealt with by Burns J but said that it could be revisited in the light of the difference of judicial opinion referred to above.

8.           Further the defendant referred to the absence of a relevant decision by the Law Society Council between 2013 and 2016 which could affect the jurisdiction exercised by the ACT Civil & Administrative Tribunal (ACAT).

9. It is necessary to provide a brief background to the application to be heard by the Full Court. On 19 July 2018 ACAT recommended that the name of the defendant be removed from the local roll of practitioners pursuant to s 425(3)(a) of the LPA.

10. The recommendation, in turn, generated an application by the plaintiff for an order under s 431(3)(b) of the LPA, calling upon the Full Court to remove the defendant from the roll of local legal practitioners.

11.         An application of the type made by the plaintiff to the Full Court has been considered on a number of occasions by that court. It is clear that a defendant is not able to challenge the findings made in ACAT (see for example Council of the Law Society of theACT v Bandarage [2019] ACTSCFC 1 at [138]).

12.         The defendant referred to the possibility of seeking orders before the Full Court concerning jurisdiction. It is unlikely, on the present state of the pleadings, that he could do so. Putting aside the real probability that in any event he would be re-litigating matters already decided, there would at least need to be some process on his part indicating an attack on ACAT’s jurisdiction.

13.         It is important to note that the defendant, told me in terms, that he did not resile from the concessions he made at ACAT and which ultimately led to the application to the Full Court.

14.         Another important factor is that the defendant said that the contents of the affidavit that had been filed in support of this application had in fact given him a good deal of the information that he was seeking. He went so far as to say that he probably did not need the documents sought in the Notice. I also note that, in addition to the documents attached to the affidavit, the plaintiff has already produced a number of the other documents in previous proceedings.

15.         Ultimately I am unable to identify any relevance in the documents sought. The position might have been different if there were any relevant proceedings before the Full Court. There is also an air about the Notice suggesting it has the intent of a ‘fishing expedition’ in order to see if there is any information that might assist the defendant in pursuing his jurisdictional attack.

16.         Accordingly the Notice to Produce will be set aside.

17.         Two other matters arose in discussion. The defendant pointed out that he had concerns that the solicitors acting for the plaintiff were in a position of conflict as a result of some previous, although unconnected, proceedings in which they had acted for him. The plaintiff raised this issue; the proceedings in the Full Court are supported by an affidavit of a Mr Reis. He has been required for cross examination by the defendant. Unfortunately Mr Reis is currently overseas and will be unavailable on 14 August.

18.         The plaintiff pointed out that a court was able to make an order excusing a deponent of an affidavit from attendance notwithstanding that he or she had been required for cross-examination (Rule 6721(1)(b) of the Court Procedures Rules 2006 (ACT)). The plaintiff foreshadowed an application for such an order.

19.         Because of the impending hearing date I will make orders to allow the hearing of applications by either side on Monday, 12 August 2019.

20.         I make the following orders:

(i)           The Notice to Produce filed by the plaintiff and dated 12 July 2019 is set aside.

(ii)          Any interlocutory application to be made by either side is to be given a return date of 12 August 2019, provided that the application, and any supporting affidavits, have been filed and served on or before 4pm on 8 August 2019.

21.         I will hear the parties on the costs of this application.

I certify that the preceding twenty one [21] numbered paragraphs are a true copy of the Reasons for judgment of his Honour Justice Elkaim.

Associate:

Date: 6 August 2019