The Law Society of the Australian Capital Territory v Legal Practitioner
[2017] ACTSC 107
•11 May 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | The Law Society of the Australian Capital Territory v Legal Practitioner |
Citation: | [2017] ACTSC 107 |
Hearing Date: | 1 May 2017 |
DecisionDate: Reasons Date: | 1 May 2017 11 May 2017 |
Before: | Refshauge J |
Decision: | 1. The hearing before the Full Court on 12 May 2017 be vacated and be relisted to be heard on 8 August 2017. 2. Absent extraordinary circumstances, the consideration by the Full Court of the ACAT recommendation be proceeded without fail on 8 August 2017. |
Catchwords: | PROFESSIONS AND TRADES – LAWYERS – Complaints and discipline – application to remove practitioner from the Roll of Practitioners following recommendation of ACAT – professional misconduct and unsatisfactory professional conduct – bankruptcy obstructing access to legal assistance – depressive mental illness – application for an adjournment – vacation of hearing before the Full Court |
Legislation Cited: | ACT Civil and Administrative Tribunal Act 2008 (ACT), s 80 Legal Profession Act 2006 (ACT), ss 27, 431(3) ACT Civil and Administrative Tribunal Procedure Rules 2009 (No 2) (ACT), rr 14, 22 |
Cases Cited: | Administration of Territory of Papua and New Guinea v Daera Guba (1973) 130 CLR 353 An Application for Admission by B as a Legal Practitioner [2016] ACTSCFC 2 |
Parties: | Law Society of the Australian Capital Territory (Plaintiff) Legal Practitioner (Defendant) |
Representation: | Counsel Mr A M Hijazi (Plaintiff) Legal Practitioner (Defendant) |
| Solicitors Phelps Reid Lawyers (Plaintiff) Legal Practitioner (In person) | |
File Number: | SC 220 of 2015 |
REFSHAUGE J:
On 18 June 2015, the Law Society of the Australian Capital Territory (the Law Society) applied by Originating Application for an order under s 431(3) of the Legal Profession Act 2006 (ACT) that the name of the Legal Practitioner be removed from the Roll of Practitioners, namely people admitted to the legal profession. The Roll is maintained by the ACT Supreme Court under s 27 of that Act.
The application was based on a recommendation of the ACT Civil and Administrative Tribunal (the ACAT) made on 31 March 2015: Council of the Law Society of the ACT v Legal Practitioner “P4” (No 2) [2015] ACAT 35. The ACAT had earlier made findings that the conduct, the subject of the complaints by the Law Society, had been made out: Council of the Law Society of the ACT v Legal Practitioner “P4” [2014] ACAT 64. It is relevant in this context to note that the conduct that the ACAT found the Legal Practitioner had engaged in was committed in 2013.
This matter has had a problematic and complicated history. It is not necessary to set that out in full.
On 10 July 2015, the proceedings were listed to be heard by the Associate Judge on 16 September 2015.
It soon became clear that the matter had to be heard by a Full Court of this Court (s 11 of the Supreme Court Act 1933 (ACT)) and, on 24 July 2015, the matter was listed to be heard by the Full Court in the November 2015 sittings of the Court of Appeal. Later that day, the Deputy Registrar listed it to be heard on 3 November 2015.
On 7 September 2015, the Legal Practitioner’s daughter unexpectedly died and her family was, understandably, “shattered by the death”. The Law Society consented to the vacation of the hearing date of 3 November 2015.
On 29 October 2015, the Law Society’s application was listed to be heard before the Full Court on 18 February 2016.
In the meantime, however, the Legal Practitioner sought to challenge the decisions of the ACAT by appeal.
The 2014 decision of the ACAT was made on 2 October 2014 and the 2015 decision on 31 March 2015. Thus, the time with which to commence any appeal from the latter decision expired on 28 April 2015 under r 14 of the ACT Civil and Administrative Tribunal Procedure Rules 2009 (No 2) (ACT) (the ACAT Rules). The Legal Practitioner sought to appeal on 20 November 2015, clearly out of time: r 22 of the ACAT Rules. The Appeal President refused to extend time for the appeal. The decision was made on 3 December 2015 in accordance with s 80 of the ACT Civil and Administrative Tribunal Act 2008 (ACT).
The Legal Practitioner, however, then sought leave to appeal against that decision, but did not lodge the application until 5 February 2016, beyond the 28 day time limit in r 5072 of the Court Procedures Rules 2006 (ACT).
As a result, the hearing before the Full Court on 18 February 2016 was vacated, the week before it was set to be heard.
It ultimately became clear, however, that any appeal for which the application to be granted leave to commence was incompetent and the application was dismissed on 9 August 2016: Legal Practitioner v Law Society of the ACT [2016] ACTSC 203.
On 2 September 2016, further directions were made in preparation for a hearing of the Law Society’s application. I made additional directions on 30 September 2016 which included a requirement that the Legal Practitioner file a report by his treating psychiatrist and to seek legal representation with a view to the application being listed for hearing by the Full Court in the February 2017 sittings of the Court of Appeal.
A report from the Legal Practitioner’s psychiatrist was filed and admitted into evidence on 19 October 2016. It stated that the Legal Practitioner was “suffering from major depression following the death of his daughter”. It said that this resulted in him experiencing “cognitive impairment, poor concentration and lethargy as a consequence”. He was then not responding to treatment and, as a result, “does not have sufficient concentration to follow the proceedings at court”.
The Legal Practitioner was made bankrupt on 27 May 2013. This, of course, hampers his access to legal assistance, though he does appear to have some limited access to lawyers.
On 12 January 2017, not much progress had been made by the Legal Practitioner in preparing to meet the Law Society’s application at a hearing. I required him to file a further psychiatric report and tentatively listed the application for hearing before the Full Court on 23 February 2017 or, if the circumstances warranted it, in the May 2017 sittings of the Court of Appeal.
The Legal Practitioner briefly addressed the issues he sought to agitate before the Full Court and said that his view, confirmed by counsel, was that there were significant errors of law in the decision of the ACAT. I make no comment on whether the Full Court, when considering the recommendation, can consider such matters when all avenues of appeal have closed. I would think that, in those circumstances, it is unlikely that the Full Court could consider whether the ACAT has made any errors of fact.
It is also important to note that mental illness by itself is no bar to the admission of a legal practitioner: An Application for Admission by B as a Legal Practitioner [2016] ACTSCFC 2 at [24]. If, however, it prevents the person carrying out the inherent requirements of the profession then it may require some response: Doolan v Legal Practitioners Admission Board [2013] QCA 43 at [22]. Again, whether such a condition requires removal of a person’s name from the Roll of Practitioners or only the removal of a person’s practising certificate is not a matter I need to determine.
In this case, the matter that led to the ACAT’s recommendation was conduct that it characterised as professional misconduct and not the Legal Practitioner’s mental health.
The Legal Practitioner urged me not to list the Law Society’s application in February but in May. He said:
if it’s in May I believe as I was – I don’t know if I said it clearly but I think I will be sufficiently capable if the worst case scenario occurs that I can appear without impediment I think. That’s what I think.
He also pointed out that his deceased daughter’s birthday falls in early February which, he considered, would be a very difficult time for his family.
He relied on an absence of prejudice: he had no practising certificate, there was no allegation that he was practising and so there was no danger to the public.
He continued:
If that same decision was made in May, when I believe I’ll be – have much more equilibrium – that’s something I can deal with. I just think that if I can just please ask you to think in those terms of the prejudice to me I think would be horrendous if it went ahead in February. If it went ahead in May I think that would be acceptable. I believe I will be strategically – I’m thinking of that recovery period in April.
Nevertheless, I indicated that I would not then formally list it before the Full Court in the February sittings of the Court of Appeal but would mention the matter in early February to confirm whether it would be listed then, subject to a further report from his psychiatrist which may justify further delay.
The Legal Practitioner sent an email to my Associate on 26 January 2017 to which he attached a Mental Health Report, though not from his psychiatrist, and also raised some other matters.
The Report was from a Mental Health Practitioner as the Legal Practitioner’s consultant Psychiatrist, Professor Cathy Owen, was then on leave. The Report showed that he was still disabled by his mental illness but he was to cease medication in the near future.
In the meantime, he was caught up in the January 2017 bushfires in the district and which destroyed his property, apart from the house, causing smoke damage and resulting in intermittent power supplies. The fires required his personal attention, diverting his capacity to address the legal issues he confronted. He also said in the email that he had suffered from depression since 2011.
In his email, he also requested that the matter not be listed before May 2017. I took this as a request to vacate the tentative listed hearing of 23 February 2017 and a request that the matter be listed in May. It was not by formal Application in Proceedings and there was no supporting affidavit, though the Legal Practitioner had earlier been able to prepare and file such documents in these proceedings.
I relisted the matter on 2 February 2017. The Legal Practitioner did not appear. He later sent an email to my Associate, with, as of course required, a copy also sent to the solicitor for the Law Society, apologising for not being able to attend as he had been “extremely unwell” and unable to attend Court.
Nevertheless, on that date I listed the matter for hearing on 8 May 2017 and gave directions about the filing of any additional evidence and submissions. These directions required the Legal Practitioner to file any affidavits and his written submissions by 3 April 2017.
The proceedings were later adjourned to 12 May 2017 to accommodate the needs of the Court and no objection was taken by either party.
On 29 March 2017, the Legal Practitioner sent an email to my Associate, seeking an extension of time to 13 April 2017 within which to file his evidence and submissions. He explained that he had been required to prepare submissions and obtain witness statements for the Coronial Inquiry into the death of his daughter. The Coroner had, at his request, extended the time for filing the submissions to 28 April 2017. He had also been required to prepare evidence and documents for a firm which was acting in a class action on behalf of property owners who suffered loss in the bushfires to which I have referred above (at [27]).
He indicated that his pre-existing medical condition was impinging on his capacity to complete these “important and urgent tasks”. He continued:
Although I am confident I can resolve all of these issues, I seek an extension of time to provide the further evidence to the Court.
I would be obliged if this could be extended until 13 April 2017.
I have been particularly unwell over the past weeks, due to the confluence of a number of external matters as well as adverse reactions to the medication I have been prescribed.
At the time, the file was in the process of being transferred to the members who were to constitute the Full Court and no positive action was taken on this request but, by the same token, no steps were taken to refuse the extension or otherwise act on the failure to comply with the directions I have referred to above (at [30]).
No evidence or submissions were filed on or before the requested extended date of 13 April 2017.
On 26 April 2017, solicitors for the Law Society sent an email to my Associate to have the matter relisted urgently to deal with the Legal Practitioner’s non-compliance. A few minutes later, the Legal Practitioner, who had been copied into the email of the Law Society’s lawyers, sent an email seeking an adjournment of the hearing by the Full Court on 12 May 2017.
As a result, I listed the matter for directions on 1 May 2017. The Legal Practitioner appeared in person and the Law Society was represented by Mr A M Hijazi.
Mr Hijazi handed up a draft revised timetable for the hearing on 12 May 2017. He also commented on the failure of the Legal Practitioner to move the Court properly, that is, by an Application in Proceedings under Pt 6.2 of the Court Procedures Rules, rather than by email to my Associate.
I agree. It is inappropriate for a number of reasons to proceed as did the Legal Practitioner. There are important issues about the records of the Court, which application by email does not address. Rule 6008 of the Court Procedures Rules makes provision about filing and service which are important to ensure that proper notice is given of any application to the Court. For example, emails are usually addressed to individuals and, if an individual in a firm is absent, then the email may not be received in good time, whereas proper service at the address for service will bring a matter to the attention of the party’s representative. Similarly, service of a stamped copy was made a mandatory requirement to avoid unauthorised applications being delivered to parties, especially by litigants in person when the Court had no knowledge of them.
Again, it is clear from r 6007(5) of the Court Procedures Rules that such an Application in Proceedings may need to be supported by an affidavit or other material which can then be assessed by the other party and appropriate response made. An email will often contain inadmissible material or material in an inadmissible form which is difficult to deal with properly.
It is not as if the Legal Practitioner was unable to proceed in such a way. He has, in these proceedings, already filed five affidavits and two Applications in Proceedings.
The Court is unlikely to respond to email requests for orders of the kind sought here unless the proper Court processes are observed.
Nevertheless, as the hearing was fast approaching, I listed the matter for hearing on 1 May 2017. Both the Legal Practitioner and Mr Hijazi were able to attend, as stated above (at [37]).
The Legal Practitioner indicated that he had ceased his medication but, unexpectedly, this had caused severe side effects which made it impossible for him to function at any meaningful level for five to six weeks. These side effects had, however, now abated somewhat and he was able to address the issues in the proceedings, though still disabled and needing to take considerable time to attend to tasks.
Perhaps most significantly, he had completed the submissions of 60 pages that he was required to file with the Coroner for the Inquest into his daughter’s death. This and, indeed, dealing with this current matter, were said by his psychiatrist to be a key to his longer term improvement and I detected the Legal Practitioner’s acceptance of this advice and his commitment to achieving it.
He had available legal assistance, but not for 12 May 2017. He had counsel and an instructing solicitor. They may be acting pro bono or on a reduced fee, though that was not explained. Not unreasonably, if that is so, they required the Legal Practitioner to prepare draft submissions before they would act. It appears that they had been available for a hearing on 12 May 2017, but in the absence of receipt of timely submissions had declined to act on that date. They appear to be available for an August hearing if the draft submissions are received in good time.
Mr Hijazi pointed to the prejudice of continuing delay and to the reputational damage in having a recommendation from the ACAT for the removal of a person’s name from the Roll of Practitioners not yet resolved. The Law Society was also incurring costs on each application and adjournments. He did not, however, point to any other specific prejudice to the Law Society from any further adjournment other than costs and I can make an order about that.
This is a matter that is finely balanced. On the one hand, there are important interests at stake. The entry of the name of a person on the Roll of Practitioners maintained by the Court is an important statement, not only of the educational qualifications and practical legal skills attained by the person, but also that person’s fitness to practice the law. That fitness is a matter of public interest and the courts are jealous to guard that public recognition as it is an important foundation for the administration of justice and the rule of law.
On the other hand, a fair trial is equally a very important matter for the credibility and integrity of the administration of justice, as pointed out in Hamod v New South Wales [2011] NSWCA 375 at [134]. A failure to accord a person an adjournment can undermine the fair trial as a breach of the requirement to afford litigant’s procedural fairness: Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597 at 611; [40].
It has to be borne in mind, however, that the notion of a fair trial is not to be considered in isolation, but must have regard to other considerations, including the main purpose of the procedures of the Court which is to achieve a “just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible”: s 5A of the Court Procedures Act 2004 (ACT).
This provision and the need to address issues of case management are dealt with in some detail in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 (Aon). Though that decision dealt with the approach a court should take to late amendments of pleadings, the comments were of more general application.
Thus, French CJ in Aon addressed both amendments and adjournments at 182; [5], and at 189; [24], pointing out that undue delay can undermine confidence in the law and can be a “waste of public resources.” His Honour continued at 192; [30] that, while case management principles cannot “supplant the objective of delivering justice”, waste and undue delay must be taken to account in assessing what is just having regard to such issues.
Gummow, Hayne, Crennan, Kiefel and Bell JJ in Aon referred to much the same issue and identified at 212-3; [95]-[98] the need to have regard to the interests of other litigants awaiting the resolution of their dispute and that speed and efficiency are important parts of the just resolution of disputes. They further pointed out at 214; [100]-[101], that the payment of costs is no longer the panacea for the delay in justice, but the strain on litigants with non-compensable inconvenience and the stress of time lost, duplication of effort and further uncertainty of outcome are all relevant and not compensable in costs.
Nevertheless, the granting of an adjournment is a matter of discretion. That is unarguable; if authority is needed, it was clearly so expressed in Conroy v Conroy (1917) 17 SR (NSW) 680 at 682.
The interests of justice and a fair trial are still significant considerations and are not necessarily in any sense subsidiary to the other matters to which I have referred. Further, it seems to me that not merely common humanity but the integrity of the administration of justice must make due allowance to the proved disabilities of litigants. It would be unthinkable for a person without any knowledge of English to be required to participate in legal proceedings in Australia without the assistance of an interpreter.
The disabling feature of mental health is less obvious or easy to discern and evaluate so far as it interferes with a person’s participation in legal proceedings. At one end, it may require the court to appoint a litigation guardian: r 275 of the Court Procedures Rules; Thomson v Smith [2005] QCA 446 at [42]-[43].
There are then gradations of disability. The Court is, of course, required to assist an unrepresented litigant as explained in Maher v Carpenter [2012] ACTSC 38; 7 ACTLR 216 at 224; [41]. In the case of a person with a mental impairment, this may require a degree of consideration, but it will not be unlimited, and, as with the special measures afforded other unrepresented litigants, the prejudice to the other party or parties must be avoided if possible or minimised to the maximum degree.
It is, of course, relevant to consider whether an application for an adjournment is a delaying tactic: Frugtniet v State Bank of New South Wales [1999] NSWCA 458 at [89]. I am satisfied that, in this case, it is not and, at least at this stage, the Law Society has not submitted that it is.
The Legal Practitioner accepts, it appears, the difficult task he faces in persuading the Full Court that the ACAT’s recommendation should not be accepted. As I noted above, the Full Court is unlikely to be persuaded to investigate the facts of the matter as on an appeal. The nature of the hearing is one of some unclarity. The absence, in this case, of any appeal or successful appeal from the factual findings of the ACAT, including the finding that the conduct the subject of complaint constituted professional misconduct may be relevantly conclusive as findings made inter partes by a tribunal of competent jurisdiction. It would seem to me likely that the ACAT was, for the doctrine of res judicata, a judicial tribunal in the relevant sense: Administration of Territory of Papua and New Guinea v Daera Guba (1973) 130 CLR 353 at 402, 458; Basser Medical Board of Victoria [1981] VR 953 at 975.
If that is so, the doctrine would mean that the facts found by the ACAT cannot be overturned by the Full Court and the Legal Practitioner may not challenge them.
That, of course, does not apply to the recommendation of the ACAT: Legal Profession Complaints Committee v in de Braekt [2013] WASC 124 at [31].
The mental health of a practitioner is relevant in such consideration as the Legal Practitioner may have relevant material and submissions in relation to the issue. See Legal Professional Complaints Committee v A Practitioner [2010] WASC 13; Legal Profession Conduct Commission v Semaan [2017] SASCFC 19. Of course, the personal circumstances of the practitioner cannot be ignored in such proceedings: Legal Profession Complaints Committee v Masten [2011] WASC 71 at [27].
I did ask the Legal Practitioner to give me an indication of the kind of matters about the ACAT decision to which he wished to draw the attention of the Full Court. He did so. It is not necessary in these reasons to address them in detail. Some seemed to be factual matters, when he commented that counsel had said to him, “It seems that every adverse inference that could have been drawn against you has been drawn against you”. That may be a matter of fact and may be subject to the doctrine of res judicata.
Nevertheless, the Legal Practitioner did have other matters he wished to raise with the Full Court that went directly to the recommendation. He would submit that he received no financial advantage but rather “massive financial disadvantage” from the subject conduct and that the recommendation was too harsh. These may well be submissions that should be heard and considered.
Accordingly, notwithstanding my hesitation about the extent of any challenge that the Legal Practitioner may be able to mount against any findings of the ACAT, he is not unreasonably to be denied an opportunity to put his case before the Full Court. That is part of procedural fairness.
It is of concern that the Legal Practitioner has failed to meet every deadline that has been set, even those which he himself has suggested. That raises two questions:
1.) Are these delaying tactics? and 2.) Will he ever be able to present his case?
Having heard the Legal Practitioner on a number of occasions and having regard to the history of these proceedings, I am satisfied that this is not a delaying tactic.
I am also satisfied that, having completed the submissions to the Coroner, the Legal Practitioner can be accepted to be able to finalise the submissions for this matter and so obtain the services of counsel. That would not only be to his benefit but would benefit the Court.
Accordingly, not without some hesitation, I did vacate the hearing before the Full Court on 12 May 2017 and relisted the matter to be heard on 8 August 2017. I gave directions as to the preparation of the matter.
It needs to be understood by the parties, and, particularly, the Legal Practitioner, that this is likely to be the last indulgence which he will be granted.
Of course, a court cannot predict all possible future eventualities, but the Legal Practitioner has, not at all inappropriately, had due recognition given to him of his mental impairment and this cannot be allowed to prevent the required consideration of the ACAT recommendation.
He has shown, by his submissions to the Coroner, that he now has the capacity to attend to his business. If he wishes to have the opportunity of making submissions to the Full Court, he now needs to give priority to this matter, whatever other pressures there are on his time.
He needs clearly to understand that, absent extraordinary circumstances, the consideration by the Full Court of the ACAT recommendation should proceed without fail on 8 August 2017.
| I certify that the preceding seventy-three [73] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 11 May 2017 |
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