The Legal Practitioner DC v The Law Society of the Act

[2017] ACTCA 32

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

The Legal Practitioner DC v The Law Society of the ACT

Citation:

[2017] ACTCA 32

Hearing Date:

12 July 2017

DecisionDate:

12 July 2017

Before:

Mossop J

Decision:

See [18]

Catchwords:

PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS Directions in relation to the conduct of appeal and proceedings seeking removal of legal practitioner from roll – turns on own facts

Parties:

The Legal Practitioner (Appellant)

The Law Society of the ACT (Respondent)

Representation:

Counsel

Self-represented (Appellant)

M Phelps (Respondent)

Solicitors

Self-represented (Appellant)

Phelps Reid Lawyers (Respondent)

File Numbers:

ACTCA 49 of 2015

ACTCA 50 of 2015

SC 44 of 2017

Decision under appeal: 

Court/Tribunal:            Supreme Court of the ACT

Before:  Burns J

Date of Decision:        5 November 2015

Case Title:                   The Legal Practitioner v The Council of the Law Society of the ACT; The Legal Practitioner v Council of the Law Society of the ACT

Citation: [2015] ACTSC 316; [2015] ACTSC 317

MOSSOP J:

Introduction

1. The appellant has applied in proceedings ACTCA 49 and 50 of 2015 for a number of directions relating to the working out of orders made by Deputy Registrar Kenneally on 15 June 2017.  Those were orders designed to facilitate the early disposition of the appeal and involved the appeal books for the purposes of the appeal being the appeal books in the ACT Supreme Court supplemented by certain other documents.

1. I will outline the directions that I make and my reasons for making those directions.

Directions

1. The notices of appeal to be included in the appeal book are the unfiled notices of appeal which is Annexure B to the affidavit of the appellant dated 28 June 2017 and those notices shall be taken to have been filed and be the notices of appeal in each of the appeals.  Copies of them shall be placed on the file and shall be endorsed: “Taken to be filed in accordance with the orders of Mossop J on 12 July 2017.”

1. It was uncontroversial that these notices of appeal were the notice of appeal that were to be relied upon notwithstanding that they had not been filed and it is appropriate to make an order regularising that situation.

2. The following written submissions made in the proceedings from which the appeal is brought shall be included in the relevant appeal book:

ACTCA 49 of 2015 (appeal from SCA 25 of 2013):

Appellant’s written summary of argument-SCA 25 of 2014 (dated 10 December 2014, lodged 16 December 2014)

Outline of Respondents Submissions (dated 22 December 2014, filed 23 December 2014)

Appellant’s written summary of argument in reply-SCA 25 of 2013 (dated 6 January 2015, filed 6 January 2015)

In ACTCA 50 of 2015 (appeal from SCA 26 of 2013):

Outline of Appellant’s Submissions (undated, lodged 9 December 2014)

Respondent’s Summary of Argument (dated 22 December 2014 filed 23 December 2014)

Appellant’s Written Summary of Argument in Reply-SCA 25 of 2013 [the heading should refer to SCA 26 of 2013] (dated 6 January 2015, filed 6 January 2015) (numbered item 24 in the file SCA 25 of 2013).

1. It was uncontroversial that the written submissions in the Supreme Court appeal should be included in the appeal books.  As the appellant explained it, some of the grounds of appeal raised directly or indirectly the question of whether the primary judge failed to address matters that were put in those submissions.

3. The parties are to confer and attempt to agree within 7 days on which notice of appeal or other document outlining the grounds of appeal filed by the appellant in SCA 25 of 2013 and SCA 26 of 2013 should be included in the appeal book and provide copies of the agreed documents by email to the Deputy Registrar for inclusion in the appeal books.  In the event that there is disagreement as to which documents should be included then each party is to prepare not less than 5 copies of a paginated bundle of such documents (serving one copy on the other party within 14 days and having four copies available to be handed up at the hearing of the appeal).

1. Once again this was uncontroversial in the sense that the respondent recognised that if the appellant wished to refer to the procedural history relating to the form of the various notices of appeal then those documents should be included in the relevant appeal book. I have not been able to identify in the time available a comprehensive list of the documents intended to be included and hence that is a task which I have given to the parties.

4. The appeal book shall include the transcript of the directions hearing on 29 April 2014 in proceedings SCA 25 of 2013 and 26 of 2013.

1. For the same reasons as in relation to the notices of appeal it is appropriate that this be included.

5. The appeal book shall include the reasons for decision given by Elkaim J on 12 December 2016 and Robinson AJ on 4 October 2016 and 25 May 2017.

1. The inclusion of the decisions of 12 December 2016 and 25 May 2017 is uncontroversial.  I have also required to be included the related decision of Robinson AJ on 4 October 2016 in relation to striking out of the appeal and security for costs.  It is appropriate that the Court of Appeal have access to the published decision on procedural matters relating to the appeals.

6. The appeal books are to include the following transcripts:

In relation to SCA 25 of 2013 the transcripts of 2 February 2015 and 22 February 2016.

In relation to SCA 26 of 2013 the transcripts of 3 February 2015, 4 February 2015 and 22 February 2016.

1. The appellant has sought a direction requiring the registrar to provide a list of the written submissions that would be included in the appeal book as well as “all transcripts” of the proceedings in SCA 25 and SCA 26 of 2013.  This was in order to permit the parties to identify whether or not the list provided was complete prior to electronic copies of the relevant materials being emailed to the parties.  I do not consider that this approach was appropriate.  It is likely to lead to more contentious correspondence about what is or is not to be included in the appeal books.  I therefore consider I should set out precisely what is or is not to be included.  The written submissions to be included are dealt with in an earlier order.  The transcripts are listed.  Those transcripts do not include each procedural hearing leading up to the hearing of the appeal.  Rather they include the hearings in which argument occurred on the appeal and a hearing at which the issue of costs was dealt with following his Honour’s judgment. Obviously these transcripts are in addition to the transcript dealt with by order 4.

7. I direct the registrar to provide electronic copies of the transcripts referred to in orders 4 and 6 as soon as they are available.

8. I direct the respondent to provide to the Court and the appellant with the written submissions referred to in order 2 forthwith.

9. I direct that the appeal book is to include, in relation to the proceedings on 22 February 2016: the application in proceeding dated 12 November 2015, the affidavits of the appellant dated 12 November 2015 and 28 January 2016, the written submissions of the appellant on 29 January 2016, the written submissions of the Society of 16 February 2016, the affidavit of Mr Phelps of 16 February 2016, the written submissions of the appellant of 19 February 2016. I will determine in chambers which of the applications of 12 November 2015 are to be included in the appeal book.

Other orders sought

1. In relation to the other orders sought, the remaining orders which were sought by the appellant were:

4.    The returnable date of the Appellant’s Application to adduce further evidence is to be two weeks before the date of hearing.

5.    The hearing set down for 10 August 2017 is to be vacated.

6.    The matter, SC 44 of 2017 is to be dismissed, until such time the appellant’s name is not to be published.

7.    The future hearings in ACTCA 49 and 50 of 2015 are to be conducted by a Court comprised of interstate judges.

1. I do not consider it appropriate to vacate the hearing date.  The basis for that application is that the appellant has received medical advice that he should refrain from typing for more than five minutes at a time.  That submission is supported by a letter from a consultant physician Dr Anula Wijesundere dated 23 June 2017.  That letter indicates that he has osteoarthritis on the right shoulder and that he was scheduled to undergo an arthroscopic bursectomy in [redacted] on 12 July 2017 but instead decided to return to Australia and undergo the surgery in Australia.  It records that the doctor has advised the appellant to restrict the movement of his right shoulder and type for only five minutes on each occasion.

1. There is no evidence that the appellant is unable to arrange typing or other assistance so as to permit him to prepare his written submissions.  He has in fact been able to produce a substantial 30-paragraph affidavit for the purposes of the present application.  Notwithstanding the difficulties caused to the appellant by his current condition I am not satisfied that it provides an appropriate basis for vacating the hearing date.  In my view the proper administration of justice is not served by the vacation of the hearing date on the basis of the evidence provided.

1. In relation to the dismissal of SC 44 of 2017, these proceedings were commenced at a time when, because of the failure of the appellant to provide security for costs, the appeals had been dismissed.  That position has been overtaken by the decision of Robinson AJ on 25 May 2017.  On that date His Honour also directed that SC 44 2017 was to be listed following and subject to the outcome of the appeals in ACTCA 49 and 50 of 2015.  In my view there is no basis for the dismissal of proceedings SC 44 of 2017.  It is clear that the outcome of that application may be determined by the outcome of the appeals by the appellant in ACTCA 49 and 50 of 2015.  I do not see any reason to interfere with the order made by Robinson AJ on 25 May 2017.  On that date his Honour also granted leave to the Law Society to change the name of the proceedings so as to substitute the defendant’s name with the phrase “The Legal Practitioner”.  No revised documentation has been filed in the proceedings.  I consider it appropriate to order in proceedings SC 44 of 2017 as follows:

1.    Until further order, the defendant in proceedings SC 44 of 2017 shall be referred to as “The Legal Practitioner” in any document filed for the purposes of the proceedings and any listing notice given by the registrar.

1. The application in relation to future hearings being conducted by interstate judges was based on the relationship that exists between the Law Society and resident judges of the Court.  The appellant submitted that the following matters mean that there is at least an apprehension of bias on the part of each resident judge of the ACT:

1.    that the Law Society makes representations either praising or defending the ACT judiciary to the media;

2.    resident judges have participated in continuing legal education seminars conducted by the Law Society;

3.    resident judges are persons who have been, are, or might upon retirement be, members of the Society; and

4.    the relationship between the Law Society’s functions committee and the judiciary.

1. I do not consider that it is appropriate to determine this matter on an application for directions.  The proceedings will be listed before judges of the Court in a manner ultimately controlled by the Chief Justice who is responsible for the arrangement of the business of the Court: see Supreme Court Act 1933 (ACT) s 7. If there is to be any application to disqualify a judge from hearing the appeals or the proceedings then that is an application which will need to be made to the individual judge in question.

1. Having regard to the extent of the disputation and the involvement of court time in the issue of the appeal books I consider it appropriate to make a direction summarising the content of the appeal books and their structure.

10.  The indexes to the appeal books shall be in each appeal:

1   Notices of appeal dated 21 April 2016.

2   The Decision of Burns J.

3   Procedural decisions, viz, those of Robinson AJ on 4 October 2016, those of Elkaim J on 12 December 2016 and those of Robinson AJ on 25 May 2017.

4   Transcripts as per orders 4 and 6.

5   Notices of appeal or documents outlining grounds of appeal in the Supreme Court appeal (if agreed pursuant to order 3)

6   Written submissions filed in Supreme Court appeal as per order 2.

7   Documents relating to the hearing on 22 February 2016 referred to in order 9.

8   Appeal books filed and served in the proceedings before Burns J.

Further orders in SC 44 of 2017

1. Finally, in proceedings SC 44 of 2017, sitting as a single judge of the Court, I make the following directions (in addition to that at [12] above).

2.    The plaintiff is to file and serve an outline of submissions limited to not more than 20 pages by 19 July 2017.

3.    The defendant is to file and serve an outline of submissions limited to not more than 20 pages and any affidavit or other evidence to be relied upon by 3 August 2017.

1. In making those directions I have structured them so as to delay as long as reasonably possible the requirement on the part of the defendant to put on the material upon which he relies. I have taken into account the submissions that he has subsequently made about the difficulties he may have arising from when he is returning to Australia. However I consider that it is not appropriate to interfere with the order listing the appeal made by Robinson AJ and in those circumstances it is appropriate that there be some directions relating to the putting on of material in relation to that appeal.  I also have taken into account the period of time which has elapsed since the defendant was on notice that the appeal would be listed in that manner.

Orders

1. The orders of the Court are:

In proceedings ACTCA 49 of 2015 and ACTCA 50 of 2015:

1.    The notices of appeal to be included in the appeal book are the unfiled notices of appeal which are Annexure B to the affidavit of the appellant dated 28 June 2017 and those notices shall be taken to have been filed and be the notices of appeal in each of the appeals. Copies of them shall be placed on the file and shall be endorsed “Taken to be filed in accordance with the orders of Mossop J on 12 July 2017.”

2.    The following written submissions made in the proceedings from which the appeal is brought shall be included in the relevant appeal book:

ACTCA 49 of 2015 (appeal from SCA 25 of 2013):

1   Appellant’s written summary of argument — SCA 25 of 2014 (dated 10 December 2014, lodged 16 December 2014).

2   Outline of Respondent’s Submissions (dated 22 December 2014, filed 23 December 2014).

3   Appellant’s written summary of argument in reply — SCA 25 of 2013 (dated 6 January 2015, filed 6 January 2015).

ACTCA 50 of 2015 (appeal from SCA 26 of 2013):

1   Outline of Appellant’s Submissions (undated, lodged 9 December 2014).

2   Respondent’s Summary of Argument (dated 22 December 2014, filed 23 December 2014).

3   Appellant’s Written Summary of Argument in Reply — SCA 25 of 2013 [the title should refer to SCA 26 of 2013] (dated 6 January 2015, filed 6 January 2015) (numbered item 24 in the file SCA 25 of 2013).

3.    The parties are to confer and attempt to agree within 7 days which notices of appeal or other document outlining the grounds of appeal filed by the appellant in SCA 25 of 2013 and SCA 26 of 2013 should be included in the appeal book and provide copies of the agreed documents by email to the deputy registrar for inclusion in the appeal books. In the event that there is disagreement as to which documents should be included then each party is to prepare not less than 5 copies of a paginated bundle of such documents (serving one copy on the other party within 14 days and having four copies available to be handed up at the hearing of the appeal).

4.    The appeal book shall include the transcript of the directions on 29 April 2014 in proceedings SCA 25 of 2013 and SCA 26 of 2013.

5.    The appeal book shall include the reasons for decision given by Elkaim J on 12 December 2016 and Robinson AJ on 4 October 2016 and 25 May 2017.

6.    The appeal book is to include the following transcripts:

In relation to SCA 25 of 2013:

1   2 February 2015;

2   22 February 2016.

In relation to SCA 26 of 2013:

1   3 February 2015;

2   4 February 2015;

3   22 February 2016.

7.    I direct the registrar to provide electronic copies of the transcripts by email to the parties as soon as they are available.

8.    I direct the respondent to provide to the registrar and the appellant the written submissions referred to in order 2 forthwith.

9.    The appeal book is to contain the following documents in relation to the hearing on 22 February 2016 (note: his Honour has determined that only the application in proceedings dated 12 November 2015 need be included in the appeal book, as the scope of the proceedings before Burns J is adequately described in the written submissions which are to be included):

1   The application in proceedings dated 12 November 2015

2   The affidavits of [the legal practitioner] dated 12 November 2015 and 28 January 2016.

3   The affidavit of Michael Phelps dated 12 February 2016.

4   The written submissions of [the legal practitioner]of 29 January 2016.

5   The written submissions of the Law Society of 16 February 2016.

10.  The indexes to the appeal books shall be in each appeal:

1   Notice of appeal dated 21 April 2016;

2   Decision of Burns J;

3   Procedural decisions:

a.    Robinson AJ, 4 October 2016;

b.    Elkaim J, 12 December 2016;

c.    Robinson AJ, 25 May 17;

4   Transcripts as per orders 4 and 6

5   Notice of appeal or documents outlining grounds of appeal filed in Supreme Court appeal (if agreed under order 3);

6   Written submissions filed in Supreme Court appeal as per order 2;

7   Documents related to the hearing on 22 February 2016 as referred to in order 9;

8   Appeal books filed and served in the proceedings before Burns J.

11.  The orders made by the Deputy Registrar on 15 June 2017 is amended so that the date by which the appellant is to file and serve written submissions is amended from 17 July 2017 to 21 July 2017.

In proceedings SC 44 of 2017 his Honour made orders in the following terms:

a.    Until further order, the defendant in proceedings SC 44 of 2017 shall be referred to as “The Legal Practitioner” in any document filed for the purposes of the proceedings and any listing notice given by the registrar.

2.    The plaintiff is to file and serve an outline of submissions limited to not more than 20 pages by 19 July 2017.

3.    The defendant is to file and serve an outline of submission limited to not more than 20 pages and any affidavit or evidence to be relied upon by 3 August 2017.

I certify that the preceding eighteen [18] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.

Associate:

Date: 31 July 2017