The Owners Strata Plan No 38308 v Gelder

[2023] NSWCATEN 5

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

The Owners Strata Plan No 38308 v Gelder [2023] NSWCATEN 5

Hearing dates:

On the papers

Date of orders:

27 June 2023

Decision date:

27 June 2023

Jurisdiction:

Enforcement

Before:

Coleman SC ADCJ

Decision:

(1) The Tribunal refuses leave for the Applicant to be represented by Mr Atkin.

(2) The proceedings are to be listed for further directions on a date to be fixed by the Registrar after 1 August 2023.

Catchwords:

PRACTICE AND PROCEDURE - whether party should be granted leave to be represented by a solicitor who is a witness in the proceedings

Legislation Cited:

Civil and Administrative Tribunal Act 2013

Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015

Cases Cited:

BTH v NSW Public Guardian [2016] NSWCATAP 12

Chapman v Rogers; Ex parte Chapman (1984) 1 QdR 542

Clay v Karlson (1997) WAR 493

Commissioner for Corporate Affairs v Harvey (1980) VR 669; [1980] VicRp 64

DVI v ZTT [2020] NSWCATEN 1

Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143

Fields v Commissioner of Police, NSW Police Force [2017] NSWCATAD 311

Gelder v The Owners Strata Plan N0 38308 [2020] NSWCATAP 227

Gelder v The Owners Strata Plan 38308 [2021] NSWCATAP 109

Jeffrey v Associated National Insurance Co Ltd (1984) 1 QdR 238

The Queen v Silverstein [2021] VSCA 233

Wild v Meduri & Ors; Meduri & Anor v Neal & Anor; Meduri v Meduri & Ors [2023] NSWSC 113

Texts Cited:

None cited

Category:

Principal judgment

Parties:

The Owners Strata Plan No 38308 (Applicant)
Michelle Gelder (Respondent)

Representation:

Maddocks Lawyers (Applicant)
Respondent (Self-Represented)

File Number(s):

PC 22/50317

Publication restriction:

Nil

REASONS FOR DECISION

Introduction

1. By application for miscellaneous matters filed 9 November 2022 (referral application) The Owners – Strata Plan No 38308 (the Owners) sought that Michelle Gelder (Ms Gelder) be referred to the Supreme Court for contempt pursuant to the provisions of s 73(5) of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) or, in the alternative, sought a finding that Ms Gelder is in contempt of the Tribunal, an order for punishment and injunctive orders restraining Ms Gelder from communicating with five named persons in any of the manners identified in the application.

2. Although Ms Gelder has not formally participated in the proceedings, as will be seen, she has engaged in extensive communications with the Tribunal in relation to the Owners’ referral application. It is readily apparent that, notwithstanding her absence of formal submissions to that effect, Ms Gelder has resisted the Owners’ application.

3. For the reasons which follow, this decision is concerned with whether the Owners should have leave to be represented by their solicitor, Mr Atkin, pursuant to the provisions of s 45(1)(b)(ii) of the CAT Act.

Background

4. Strata Plan No 38308 is a residential building in Cremorne which has six units over three levels. Ms Gelder is the owner of a Lot in Strata Plan No 38308. Between 2018 and April 2021 the Owners and Ms Gelder were in dispute with respect to matters arising out of the Strata Plan and Ms Gelder’s ownership of a Lot in it.

5. The disputes between the parties have resulted in a number of proceedings in the Tribunal, some of which were determined by the Appeal Panel on 5 November 2020 (Gelder v The Owners Strata Plan No 38308 [2020] NSWCATAP 227), in which Ms Gelder was awarded costs (Gelder v The Owners Corporation Strata Plan No 38308 [2021] NSWCATAP 109).

6. Litigation continues between the parties in proceedings which are pending in the Tribunal, which were apparently commenced in 2022 by the Owners in some instances, and by Ms Gelder in others.

7. The basis of the Owners referral application as particularised under the heading “Statement of Charge” is that:

“1   On 3 August 2022 [Gelder] commenced NCAT proceedings SC22/35138 as the applicant in those proceedings (proceedings).

2   The applicant in this application is the Respondent in the proceedings.

3   [Owners] is defending the proceedings and opposing the relief sought by [Gelder].

4   Since the commencement of the proceedings, [Gelder] has engaged in conduct that was intended to, and/or had the effect of, intimidating, harassing, improperly threatening and/or deterring [Owners] from defending or opposing the proceedings or to improperly induce settlement of the proceedings. Particulars of conduct the communications set out in the schedule.

5   Either separately or together, the conduct referred to in paragraph 4 above had the tendency to interfere with or obstruct the due administration or course of justice by the Tribunal.

6   The Respondent is guilty of contempt in the face of the Tribunal for each count set out in the schedule.”

8. The schedule to the Statement of Charge referred to 134 emails which passed between Ms Gelder, the Owners’ solicitor, Mr Atkin, and other Lot owners in the Strata, third parties related to other owners of Lots in the Strata, and postings on the internet. Although, as later recorded in these reasons, it is not necessary to refer in detail to the 134 communications, reference will be made to certain aspects of the communications.

9. On 16 March 2023, the Owners emailed the Tribunal, and under the heading “Application to amend application”, sought leave to amend the proposed Statement of Charge and “add a further count” which was said to arise from text messages. The email set out what the text messages were alleged to have said. The Tribunal advised the solicitor for the Owners that, if they wished to amend their application, they should file and serve an amended application and the Tribunal would deal with that as and when it was presented. The Tribunal does not understand the Owners to have filed an amended application.

Service of the application

10. Subsequent to the return date of the referral application, and the making of directions for the filing of submissions in support of or opposition to it, an issue arose as to whether Ms Gelder had been properly served with the referral application and the Owners’ evidence in support of it.

11. On 3 March 2023, the Tribunal made orders with respect to service of documents on Ms Gelder. The orders provided that, in the circumstances, Ms Gelder had until 28 March 2023 to file submissions in relation to the referral application.

12. It is unnecessary to record more than the Tribunal’s comfortable satisfaction that Ms Gelder has, whether by personal service or otherwise, been aware of the application and the evidence relied upon by the Owners and the directions made by the Tribunal in the proceedings for some months.

Representation of the Owners

13. Ms Gelder has objected to the Owners’ solicitor, Mr Atkin, representing the Owners in the referral proceedings on a number of grounds, one of which requires consideration.

14. Section 45 of the CAT Act provides the general rule that a party to proceedings in the Tribunal “has the carriage of the party’s own case and is not entitled to be represented by any person” but (s 45(1)(b)(ii)) may, if the Tribunal grants leave, be represented by an Australian legal practitioner. The Owners do not appear to have sought leave to be legally represented in the referral proceedings. The fact that such leave was apparently granted in earlier, or other completed or pending proceedings does in the Tribunal’s view obviate the need for the Owners to seek leave to be legally represented in the referral proceedings.

15. Ms Gelder has taken exception to the Owners moving on the referral application in reliance upon an Affidavit by Mr Atkin, their solicitor in the present proceedings, which was sworn 2 February 2023. Of the 134 emails or other communications annexed to the affidavit, approximately 88 were emails between Mr Atkins and Ms Gelder, and, in some instances, other owners of lots in the strata. Exhibited to the affidavit were 285 pages of the source documents summarised in the emails identified in the Schedule to the Statement of Charge, written submissions of 2 February 2023 and an annotated schedule to the Statement of Charge.

16. Ms Gelder sent a number of emails to the Tribunal and to Mr Atkin on 3 March 2023. None of those related to the substance of the proceedings. On 8 March 2023, Ms Gelder emailed the Tribunal and advised that she was “not in a position to make a submission to this matter”, and that she accepted that the Tribunal “may choose to proceed this matter to the Supreme Court for the punishment and sentencing as required by the applicant”. The Tribunal does not interpret that communication as Ms Gelder consenting to the granting of the referral application, and, even if she did, that of itself would not result in the application being granted (DVI v ZTT [2020] NSWCATEN 1).

17. On 15 March 2023 Ms Gelder reiterated by email that she would not be in a position to make a submission and added that to “engage in such action would be detrimental to my mental health”. In another email of the same date Ms Gelder reiterated her concern for her mental health and stated that she did not accept “that I have committed contempt”.

18. On 18 March 2023 Ms Gelder emailed the Tribunal and advised that it would “be inappropriate for my [sic] to make a submission in this matter. Obviously if the Tribunal decides to pursue this matter in the Supreme Court, any submission I make provides the Tribunal with material that I will be using in my defence at the Supreme Court”. Ms Gelder added that this “would place me at an extreme disadvantage in a hearing at the Supreme Court whereby the Tribunal would have details of my evidence prior to the matter being heard”.

19. At the Directions Hearing, in accordance with its usual practice, the Tribunal informed Ms Gelder of her right to silence, and her entitlement to file submissions without filing evidence.

20. On 1 May 2023, albeit well past the time for filing formal submissions, Ms Gelder emailed the Tribunal and, under the heading “Submission” set out a number of matters in what Ms Gelder described as “an attempt to raise matters of concern relevant to the contempt charges of the Owners Corporation”. Although correspondence attached to material relied upon by the Owners suggests that Ms Gelder has from time to time been represented in proceedings between herself and the Owners in the Tribunal, as far as the Tribunal is aware, Ms Gelder has been and remains unrepresented in these proceedings. In those circumstances, and having regard to the fact that granting or leave pursuant to s 45(1)(b)(ii) of the CAT Act involves the exercise of discretion by the Tribunal, and is not solely a matter for the parties, the Tribunal has read the parts of Ms Gelder’s email of 1 May 2023 which are, or could be, relevant to her objection to Mr Atkin representing the Owners in the referral application. Beyond confirming that the Owners’ allegations against her are contested, most of the matters stated in Ms Gelder’s email do not impact upon the Tribunal’s decision with respect to the Owners being granted leave to be represented by Mr Atkin.

21. Ms Gelder made a number of submissions about the absence of affidavit evidence from persons referred to in the Owners’ solicitor’s affidavit. Ms Gelder expressed the concern that “private telecommunications were published without my consent and furthermore the Owners Corporation and Mr Atkin sought and received copies of messages that they were aware were between myself and a witness for me.”

22. Much of Ms Gelder’s email engages with matters which are the subject of other ongoing proceedings in the Tribunal. The Tribunal does not criticise Ms Gelder for doing so, as the bulk of Mr Atkin’s affidavit engaged with those matters. To the extent that, under the heading “Mr Damien Maughan”, Ms Gelder made a series of claims, as there was no evidence by Mr Maughan in support of the referral application, there is no occasion to refer to anything Ms Gelder said about him in her email, save to record that the only evidence of Mr Maughan which could be considered in the referral application is either communications from him to Ms Gelder, or Ms Gelder and others or from Ms Gelder to him and/or others.

23. The “Statement of Charge” relied upon by the Owners alleges (4) that since the commencement of the proceedings in the Tribunal Ms Gelder “has engaged in conduct that was intended to, and/or had the effect of, intimidating, harassing, improperly threatening and/or deterring” the Owners from defending or opposing the proceedings or to “improperly induce settlement” of the proceedings. The conduct alleged against Ms Gelder was the “communications set out in the schedule” to the Statement of Charge.

24. Although no longer pursued by the Owners, the alternate relief originally claimed by them included orders that, amongst others, Ms Gelder not communicate with Mr Atkin in any of a number of specific manners.

25. In the submissions on behalf of the Owners authored by Mr Atkin, under the heading “Comments on the Evidence” (4.1) the Owners made a number of submissions which, expressly or impliedly, involved Mr Atkin. Of particular relevance for present purposes are the submissions of the Owners with respect to “threats of disciplinary action against Mr Atkin” (4.2.1), “impugning professional and mental capabilities and motives of Mr Atkin” (4.2.2) and “contact with Partners of Mr Atkin at Maddox” (4.2.4).

26. Also of particular relevance are the “comments” by Mr Atkin that:

4.1.1 “Ms Gelder might suffer from some disorder or deficit that causes her to communicate in the manner evidenced in the emails. The nature and content of the emails might indicate an impairment in executive function and this can be taken into account in assessing the seriousness and motives of her conduct. It may tend against criminal culpability in her favour”;

4.1.5 “While most of the conduct was private in nature as between the parties, Ms Gelder did publish some particularly offensive material to the employers of the strata committee and the partners of Mr Atkin. That is much more serious and damaging than private communications”;

4.1.6 “The threats against Mr Atkin were particularly egregious because they were openly directed to seek to force Mr Atkin to cease acting. The seriousness of that conduct is very much escalated by Ms Gelder’s communications with the Registrar of the Tribunal and by the threats of disciplinary complaint”;

4.1.7 “In relation to the communications with the Registrar, it is open to the Tribunal to find that Ms Gelder has sought not only to impugn Mr Atkin’s representation to the Registrar, but to seek to induce the Registrar to make some sort of ruling or take some sort of action to prevent Mr Atkin from acting”;

4.1.8 “Many of the emails are puerile in their tone and content. However, the Tribunal is entitled to find that the conduct in which Ms Gelder goes so far as to impugns (sic) the mental health or capacity of individuals is well beyond what is proper (in the context of contempt). While misconceived, it is the attempt to do so that is relevant”.

Consideration

27. Rule 27 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) is concerned with the “solicitor as material witness in client’s case” and provides:

“27.1   In a case in which it is known, or becomes apparent, that a solicitor will be required to give evidence material to the determination of contested issues before the court, the solicitor may not appear as advocate for the client in the hearing.

27.2   In a case in which it is known, or becomes apparent, that a solicitor will be required to give evidence material to the determination of contested issues before the court, the solicitor, an associate of the solicitor or a law practice of which the solicitor is a member may act or continue to act for the client unless doing so would prejudice the administration of justice.”

28. Although, not surprisingly as she is not legally trained, Ms Gelder did not refer to Rule 27 in support of her opposition to Mr Atkin representing the Owners in the referral application, her allegations render consideration of its application appropriate. Mr Atkin can be presumed to be aware of Rule 27.

29. In the present circumstances, Rule 27.1 would be enlivened if the referral proceedings were being heard in a court. The Tribunal is not a court. The glossary to the Solicitors’ Rules defines “court” to include (e) an “administrative tribunal”. Section 50(2) of the CAT Act enables the Tribunal to dispense with a hearing in proceedings before it. The Tribunal has not made such an order in these proceedings. Unless an order is made pursuant to s 50(2) dispensing with a hearing of the referral application, Mr Atkin is likely to appear as the Owners’ advocate if they are granted leave to be represented by him. For the reasons which follow, even if an order were made under s 50(2) of the CAT Act dispensing with a hearing, that would not change the Tribunal’s decision- leave to be represented by Mr Atkin would be refused.

30. In Wild v Meduri & Ors; Meduri & Anor v Neal & Anor; Meduri v Meduri & Ors [2023] NSWSC 113 (“Wild”), Hallen J considered the operation of Rule 27 in a succession case in which the solicitor for a party who had prepared a disputed will had sworn an affidavit in the proceedings upon which he was cross-examined in detail. His Honour referred [287] to some of the “difficulties” which may arise when a lawyer acts in proceedings where he, or she, may be required to appear as a witness. By reference to the text to which His Honour referred, it was accepted that appearing as a witness “may tend to confuse the lawyer’s role. That role is to present the case and test the evidence and arguments, whereas a witness provides sworn testimony of facts within her or his personal knowledge or expertise. There is also the prospect of conflict between interest and duty; by appearing as a witness the lawyer may be placed in a position where the duty to the court, or her or his own interests, conflict with the duty to the client”.

31. On Mr Atkin’s own evidence, it is readily apparent that, whatever the merits of the pending substantive litigation between the Owners and Ms Gelder elsewhere in the Tribunal, an acrimonious relationship has developed between Ms Gelder and the Owners, as evidenced by the emails upon which the latter rely. This is not a case in which the solicitor may be required to appear as a witness. The solicitor has elected to be, and is, a witness whose evidence would clearly be vigorously contested if the referral application were granted. Mr Atkin’s evidence is clearly material to the determination of contested issues in the proceedings. Mr Atkin is the only witness in the Owners’ referral application.

32. In Wild, Hallen J referred, at [288] to the decision of Thomas J in Jeffrey v Associated National Insurance Co Ltd [1984] 1 QdR 238 at [245], in which it was suggested that “in any case where a solicitor has reason to believe that he may be required to give evidence of a controversial kind in a proceeding, he should arrange for an independent solicitor to take over the matter so that his objectivity cannot be questioned when he gives evidence”. Rule 27 prohibits a solicitor appearing as an “advocate” in those circumstances.

33. In Commissioner for Corporate Affairs v Harvey [1980] VicRp 64; [1980] VR 669 Marks J said, at [762] that what was important was that “the Court sets its face against giving audience to legal representatives who are unable to assure the Court of a singular interest. It is the purity of interest in the adversaries before the Court which gives that fundamental utility and credence in the system.” Significantly for present purposes, His Honour added that “legal practitioners who have a personal interest in the outcome of an action do not have that singular interest” which “… gives the fundamental utility and credence to the system”. The reference to “giving audience” implies the solicitor appearing as an advocate, although, in proceedings determined wholly or substantially by reference to written submissions, receiving and considering such submissions may also be “giving audience”.

28. Importantly for present purposes, in Clay v Karlson (1997) WAR 493, to which Hallen J referred, at [289], Templeman J agreed, at [494]-[495] with the observations of the Full Court of the Supreme Court of Queensland in Chapman v Rogers; Ex parte Chapman [1984] 1 QdR 542, that it was “desirable to avoid any suggestion of real or apparent conflict between the duty to the Court and the obligation to the client…it is generally unwise for a solicitor, who is not, himself, appearing as an advocate, or instructing solicitor in Court, but who is aware that it is likely that he will be called as a material witness (other than in relation to formal, or non-contentious, issues) to continue, either personally, or through his firm, to represent the client if this can be reasonably avoided. It may be unavoidable in some cases, such as those involving complex commercial interest”.

29. In The Queen v Silverstein [2021] VSCA 233, the Victorian Supreme Court of Appeal said, at [118] by reference to Rule 27 that it was “unarguable” that it was “most undesirable” that a legal practitioner who “might be called as an important witness” not “act, or appear as counsel, in the proceeding”. The “proscription” provided by Rule 27 was considered to be “particularly pertinent” in the case of a legal practitioner who “not only acts for a party in the proceeding, but also appears on behalf of that party at the trial of the proceeding”.

30. Significantly for present purposes, the solicitor in Wild did not ever appear as “advocate” for the client [285]. As the solicitor ultimately recused himself, Hallen J did not have to decide whether he was precluded from continuing to act by Rule 27.

31. Having regard to the evidence Mr Atkin has given, and his submissions, and Ms Gelder’s submissions, it is clear that Mr Atkin’s evidence is material to, and controversial in the referral application, and that, if the referral application is granted, he will be required for cross-examination on his affidavit in the Supreme Court. To date, Mr Atkin has given no indication that he will not continue to represent the Owners throughout these proceedings.

32. In view of the extent to which Mr Atkin is involved in the referral proceedings, as revealed by his emails, and the submissions to which the Tribunal has referred, the potential for Mr Atkin to have a conflict between his own and the clients’ interests which is apparent and real (BTH v NSW Public Guardian [2016] NSWCATAP 12). Although it may not in any way be of his doing, as Mr Atkin’s submissions make clear, understandably, he does not a have the “singular interest” in the referral proceedings which the authorities suggest is required of a party’s legal representative.

33. In Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143, albeit a decision which preceded the commencement of the CAT Act, Schmidt J accepted that the Tribunal’s discretion to refuse leave to appear depended on what was “fair and just in particular circumstances”, with the onus falling on the party seeking the grant of leave to discharge that onus. In Fields v Commissioner of Police, NSW Police Force [2017] NSWCATAD 311, the Tribunal accepted that Her Honour’s observations applied to an application for leave pursuant to s 45 of the CAT Act.

34. Section 33 of the Interpretation Act 1987 provides that a construction of a statutory instrument which would “promote the purpose or object underlying the Act... (whether or not that purpose or object is expressly stated in the Act…) shall be preferred to a construction that would not promote that purpose or object”.

35. The authorities to which the Tribunal has referred, and the judgment of Hallen J in Wild, suggest that interpreting Rule 27 to only preclude a solicitor who is a witness in proceedings from “advocating” at an oral, or virtual hearing in the Tribunal or in court would not promote the implied purpose or object of the Rule, or address a number of the mischiefs which the authorities confirm can arise when a solicitor who is a witness in proceedings acts for a party to those proceedings.

36. The Tribunal is comfortably satisfied, for the foregoing reasons, that the Owners should be refused leave to be represented in the proceedings by Mr Atkin. If Rule 27 does not preclude Mr Atkin from continuing to represent the Owners in the referral proceedings, the Tribunal would not grant leave for him to do so as, if not contrary to the literal operation of Rule 27, granting leave would be contrary to the objects and purpose of the Rule, and not in the interests of the parties, or the interests of justice. In view of the extent to which Mr Atkin’s emails and submissions reveal that he is involved in the controversy which underpins the present proceedings, it is not in Mr Atkin’s own interests that he continue to represent the Owners in the referral proceedings.

37. If, contrary to the view recorded earlier in these reasons, the Owners do not require a fresh grant of leave to be represented by Mr Atkin in the referral proceedings, for the foregoing reasons, the Tribunal would revoke any leave granted to Mr Atkin to represent them in these proceedings pursuant to s 45(3)(b) of the CAT Act.

38. Whether other solicitors in Mr Atkin’s firm can enliven Rule 27.2, or whether the Owners prefer to retain an “independent” solicitor to represent them in the referral proceedings is a matter for Mr Atkin’s firm and the Owners to decide. The Tribunal’s orders will allow time for that decision to be taken.

39. To the extent that Mr Atkin may complain that he has not been afforded the opportunity to be heard with respect to the question of leave, nothing he could have submitted could lead to a different outcome. The Tribunal’s decision is based on material which Mr Atkins has filed. Had he been heard further on this issue, if he had not already, Mr Atkin would clearly have “advocated” for his client and enlivened Rule 27.

Orders

1. The Tribunal refuses leave for the Applicant to be represented by Mr Atkin.

2. The proceedings are to be listed for further directions on a date to be fixed by the Registrar after 1 August 2023.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 27 June 2023