Weston v Law Society of New South Wales

[2013] NSWSC 94

Supreme Court

New South Wales

Medium Neutral Citation:

Weston v Law Society of New South Wales [2013] NSWSC 94

Hearing dates:

18 February 2013

Decision date:

27 February 2013

Jurisdiction:

Common Law

Before:

Davies J

Decision:

(1) The Statement of Claim filed 6 December 2012 is to be re-numbered 2012/379719.

(2) The Statement of Claim is struck out.

(3) The Proceedings commenced by Summons filed 6 December 2012 are dismissed.

(4) The Plaintiff is to pay the Defendant's costs.

Catchwords:

LEGAL PRACTITIONERS - practising certificates - show cause events - suspension of practising certificate - refusal to grant a new practising certificate - rights of review - whether appeal to Supreme Court available - claim for damages against Law Society - whether cause of action pleaded.

Legislation Cited:

Legal Profession Act 1987
Legal Profession Act 2004
Uniform Civil Procedure Rules

Cases Cited:

Commonwealth of Australia v Griffiths [2007] NSWCA 370; (2007) 70 NSWLR 268
Constantinidis v Kehagiadis [2011] NSWSC 974
General Steel Industries v Commissioner for Railways (NSW) (1964) 112 CLR 125
Kirby v Sanderson Motors Pty Ltd (2001) 54 NSWLR 135
McGurk v University of New South Wales [2009] NSWSC 1424
Nominal Defendant v Manning (2000) 50 NSWLR 139
Udowenko and Ors v Chief Executive Officer and Board of Directors of St George Bank - A Division of Westpac Banking Corporation and Ors [2011] NSWSC 867

Category:

Principal judgment

Parties:

David Harold Weston (Plaintiff)
Law Society of New South Wales (Defendant)

Representation:

Counsel:
In person (Plaintiff)
C Webster SC (Defendant)
Solicitors:
In person (Plaintiff)
Law Society of New South Wales (Defendant)

File Number(s):

2012/379719

Judgment

1. The Law Society of New South Wales seeks to strike out and have dismissed proceedings commenced by the Plaintiff on 6 December 2012. The Plaintiff is a lawyer currently without a practising certificate in the circumstances that will be detailed below.

1. In proceedings commenced by Summons on 6 December 2012 the Plaintiff seeks three orders:

1. Reinstatement of suspended practising certificate;

2. Declaration I am a fit and proper person; and

3. Damages for past and future economic loss and interest.

Background

1. The Plaintiff was admitted to the roll of legal practitioners on 18 December 1991 (s 4 Legal Profession Act 1987). He has held practising certificates from 1 January 1992 until 24 October 2010.

1. The Law Society last issued a practising certificate to the Plaintiff for the period 1 July 2010 to 30 June 2011 in about September 2010. Prior to that time a sequestration order had been made against the Plaintiff on 15 June 2010 This appears to have been notified by the Plaintiff to the Law Society Council on 25 June 2010. It seems that documents were sought from the Plaintiff by the Society and amongst Australian Taxation Office documents provided by him it was ascertained that on 2 March 2005 the Plaintiff had been convicted in the Local Court at Parramatta for failing to lodge an income tax return for the year ending 30 June 2003. This tax offence had not previously been disclosed by the Plaintiff.

1. Both the sequestration order and the tax offence were show cause events (see Div 7 of Pt 2.4 Legal Profession Act 2004).

1. By s 68(3) and (4) LPA the Law Society Council was obliged to determine whether the solicitor showing cause was a fit and proper person to hold a local practising certificate or hold it with particular conditions. That determination was to be made within three months from the receipt of the written statement to be provided by the solicitor pursuant to ss 66 or 67 of the Act.

1. By letters dated 25 June 2010 the Society issued formal notices to the Plaintiff under s 68 LPA and asked for specified information from the ATO. Those documents were provided to the Society on 4 August 2010. On 9 September 2010 the Plaintiff provided a copy of his Statement of Affairs. Amongst the materials filed was a statutory declaration of 7 September 2010, and after that was received the Plaintiff's practising certificate for the 2010/2011 year was issued.

1. Thereafter, further questions were put to the Plaintiff by the Society in a letter dated 23 September 2010. By letter of 13 October 2010 the Plaintiff requested that his practising certificate be cancelled and purported to withdraw his show cause notification. He was advised that the practising certificate could not be cancelled where a matter was under consideration.

1. As of 24 October 2010, which was the end of the extended "required period" under s 68(5), the material provided to the Society was insufficient to enable the Council to make a determination whether or not the Plaintiff was a fit and proper person to hold a practising certificate. The result was that, under s 70(1) LPA the determination of the show cause event passed to the Legal Services Commissioner and the Plaintiff's practising certificate was suspended.

1. After the Commissioner took over the determination correspondence passed between his office and the Plaintiff between October 2010 and 18 February 2011. In that final letter the Commissioner sought further information and specific answers to questions asked of the Plaintiff in earlier correspondence from the Commissioner.

1. On 11 March 2011 the Plaintiff applied to the Administrative Decisions Tribunal, Legal Services Division for the following orders:

1. Unrestricted NSW Solicitor's practising certificate be reissued forthwith sjt [subject to] bankruptcy undertaking;

2. Declaration that the Applicant is a fit and proper person to hold the certificate.

1. On 9 June 2011 the Tribunal dismissed the application, apparently for two reasons. First, the Plaintiff had not supplied the explanations sought by the Commissioner in his letter of 18 February 2011. Secondly, the application was futile because the year relevant to the practising certificate was at an end.

1. On 13 January 2012 the Plaintiff filed a Summons in this Court seeking the following relief:

1. A declaration that I am not a disqualified person;

2. An order that I be granted the right to apply for an unrestricted NSW Solicitor's practising certificate forthwith upon basis I am a fit and proper person to be granted same.

1. On 16 March 2012 the Court made orders by consent that the Summons be dismissed and that the Plaintiff pay the Law Society's costs of and incidental to the Summons.

1. On 3 August 2012 the Plaintiff lodged an application for a practising certificate for the period 1 July 2012 to 30 June 2013. On 20 September 2012 the Council of the Law Society:

RESOLVED THAT:

The application made by David Harold Weston for a practising certificate for the period 1 July 2012 to 30 June 2013 be refused under s 66(7)(b) of the Legal Profession Act 2004 on the basis that Mr Weston has failed to show in his witness statements about the following show cause effects:

i. the making of a sequestration order against him on 15 June 2010;

ii. his conviction in the Local Court at Parramatta on 2 March 2005 for failing to lodge an income tax return for the year ending 30 June 2003,

that he is a fit and proper person to hold a practising certificate.

1. The substantive reason for the Council so resolving was that by the time of the Plaintiff's application in August 2012 he had not answered the questions asked of him by the Legal Services Commissioner in letters dated 29 October 2010, 23 December 2010 and 18 February 2011.

1. The Council's decision was notified to the Plaintiff in a Revised Information Notice given pursuant to s 68(8) LPA on 22 October 2012. The Notice drew attention to his rights of review under s 75 LPA which relevantly provided:

75 Review of decisions by Tribunal

(1) An applicant or holder who is dissatisfied with a decision of a Council or the Commissioner under this Division with respect to the applicant or holder may apply to the Tribunal for a review of the decision.

1. An appeal from the Tribunal thereafter lies to the Court of Appeal of the Supreme Court pursuant to s 729A LPA, notice of which was also included in the Revised Information Notice.

1. The Law Society had earlier issued an Information Notice to the Plaintiff noting the terms of the resolution of 20 September 2012 but informing him, wrongly, that he had a right of appeal under s 108 LPA to the Supreme Court. The Revised Information Notice corrected that statement.

1. However, prior to the Council resolving that he was not a fit and proper person the Plaintiff had filed a Notice of Motion dated 11 September 2012 in the proceedings filed in January 2012 that had been dismissed by consent in March 2012. The Plaintiff sought to file that Notice of Motion and an affidavit in support when he appeared before Schmidt J on 12 September 2012. Her Honour declined to permit those documents to be filed.

1. On 26 September 2012 the Plaintiff handed to the Court two pages from a diary containing what purported to be a Summons and an affidavit in support. The Summons sought:

(1) A declaration that the Plaintiff is a fit and proper person;

(2) A declaration that the Plaintiff be granted a NSW practising certificate forthwith together with procedural orders relating to short service.

...

(4) Damages to be assessed.

...

1. The Affidavit said this:

(1) On 25 September I had a telephone conversation with a Mr Perotti of the Law Society. He said to me words to the effect "Your application for a practising certificate is refused."

(2) I am an undischarged bankrupt relying upon Newstart from Centrelink.

(3) I am aware that a criminal fraud may be in issue by BLG Pty Ltd but I have limited direct knowledge.

(4) I have a bankruptcy undertaking in June 2010 and show cause statements to the Law Society.

(5) I was sequestrated June 2010 and my previous practising certificate was suspended 24 October 2010.

(6) I have perused s 68(4) and s 70 of LPA 2004 and the legislation appears inconsistent.

1. The Plaintiff was permitted to file these documents on 26 September 2012. When the matter again came before the Court on 4 October 2012 a hearing date of 13 February 2013 was appointed.

1. The Law Society subsequently requested that the matter be re-listed before the Court. It came before Registrar Bradford on 22 November 2012 when orders contained in Short Minutes of Order were made. The Short Minutes relevantly provided:

THE COURT NOTES THAT:

1. The Plaintiff does not press orders (1) and (2) of the Summons filed in Court before Schmidt J on 26 September 2012 (Fresh Summons).

THE COURT ORDERS THAT:

2. The Plaintiff file a Fresh Summons in the Registry ... and serve a sealed copy of the Defendant on or before 6 December 2012.

3. ...

4. If the Plaintiff complies with Order 2, Orders 5 - 11 and 12 - 15 have effect.

5. In relation to the claim to (sic) damages in Order (4) of the Fresh Summons the Plaintiff file and serve on or before 13 December 2012:

a. A Statement of Claim pleading the claim;

b. His affidavits in chief (extending the time for affidavits ordered on 26 September 2012).

...

8. The hearing date of 13 February 2013 fixed for the Fresh Summons be vacated and the proceedings be listed for further directions on 7 February 2013.

...

12. The Defendant file and serve any Notice of Motion seeking to strike out Orders (1) and (2) of the Fresh Summons (Motion), with any affidavit in support, on or before 30 November 2012, such Motion to be fixed for hearing on 13 February 2013.

...

1. The matter was re-listed on 24 January 2013 when amended directions were given to prepare the present Notice of Motion (now an Amended Notice of Motion) for hearing on 18 February 2013.

1. The Summons filed on 6 December 2012, under the heading TYPE OF CLAIM, contained the following:

(i) Reinstatement of NSW Solicitor's practising certificate having been suspended;

(ii) Declaration that I am a fit and proper person to hold same above;

(iii) Damages for economic loss;

(iv) Punitive damages;

(v) Interest upon orders.

1. The same things appeared under the heading RELIEF CLAIMED.

1. This Summons was given a new number being the number of the present proceedings.

1. On 6 December 2012 the Plaintiff also filed a Statement of Claim but numbered the document in the proceedings that had been commenced in January 2012 and dismissed in March 2012. Under the heading TYPE OF CLAIM the following appeared:

(i) Reinstatement of suspended practising certificate;

(ii) Declaration I am a fit and proper person;

(iii) Damages for past and future economic loss and interest.

1. The same thing appeared under the heading RELIEF CLAIMED. Under the heading PLEADINGS AND PARTICULARS the following appeared:

(i) Solicitor's practising certificate suspended late Oct 2010 (s 70 LPA)

(ii) Notice of refusal to issue fresh certificate 20 September 2012;

(iii) Plaintiff is unemployed and precluded from employment in a legal firm;

(iv) Plaintiff needs expert assessment of economic loss;

(v) Plaintiff bases damages upon failure by Defendant to exercise judicial and administrative failures (sic).

1. No further affidavits were filed pursuant to Order 5(b) made on 22 November 2012.

1. On 16 January 2013 the Law Society wrote to the Plaintiff pointing out a number of difficulties with the documents which had been filed by him. In particular the letter pointed out that the Statement of Claim did not identify the cause of action upon which the Plaintiff sued. Particulars were sought of a number of matters in the Statement of Claim. In addition, the Society pointed out to the Plaintiff that unless proper particulars were provided the Society may move to strike out the Statement of Claim under r 14.28 UCPR. In any event, the Society reserved its rights to seek a summary dismissal under r 13.4 UCPR on the basis that no reasonable cause of action was disclosed and that the proceedings were frivolous or vexatious or an abuse of process.

1. On 23 January 2013 the Plaintiff faxed a letter purporting to provide the particulars requested. The letter did not contain any identification of the cause of action upon which the Plaintiff sued.

Consideration

1. I approach the matter in the light of the principles in General Steel Industries v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129 and by what was said in Commonwealth of Australia v Griffiths [2007] NSWCA 370; (2007) 70 NSWLR 268 at [11]-[12].

1. There are two separate aspects to the Plaintiff's claim and the Law Society's application to dismiss the proceedings. The first concerns the relief claimed for a reinstatement of the practising certificate and a declaration that the Plaintiff is a fit and proper person.

1. The relief for the reinstatement of the suspended practising certificate is misconceived. Practising certificates are issued each year for the period ordinarily commencing 1 July in any year. The practising certificate which was suspended in 2010 cannot now be reinstated.

1. However, if what the Plaintiff was really intending to achieve was the issue of a practising certificate for the current year, the only way this could be achieved would be to apply for the review available from the Law Society's refusal to grant him a practising certificate on 20 September 2012. The appropriate right of review is found in s 75 LPA and is to the Administrative Decisions Tribunal as set out earlier in this judgment. The provisions of s 108, permitting an appeal to this Court, do not apply to decisions made under Division 7 of Part 2.4 LPA concerning show cause events.

1. The Plaintiff's response to that and his explanation for seeking the declaration that he is a fit and proper person is that this Court (he says) is responsible for determining if someone is a fit and proper person to be admitted as a lawyer. Moreover, he said, if he is dissatisfied with any determination of the Administrative Decisions Tribunal he is entitled to appeal to this Court.

1. I reject the Plaintiff's submissions for these reasons. First, his proceedings are not concerned with his being admitted as a lawyer: they are concerned with his right to a practising certificate (see the distinction made in ss 5 & 6 LPA). Secondly, it is the Admission Board who, in the first instance, determines whether a person is fit and proper for admission (see ss 25, 26 and 31 LPA) but not for the obtaining of a practising certificate. The Law Society Council or the Bar Council determine who is a fit and proper person for the purpose of issuing a practising certificate (ss 41 and 42 LPA). The right of review from such a determination is to the Tribunal. Thirdly, the determination of fitness and propriety to remain on the roll as a lawyer is by the Court of Appeal, and any appeal from the ADT regarding practising certificates lies to the Court of Appeal and not to a single judge of the Common Law Division of the Court.

1. The relief for reinstatement of the practising certificate, even if understood as meaning relief by way of appeal from the Law Society's refusal in September 2012, is misconceived. Similarly, where there is a statutory right of appeal that does not include a single judge of the Common Law Division it would be entirely inappropriate for a single judge to make a declaration concerning his fitness and propriety.

1. There is the further consideration that the Plaintiff's proceedings that were commenced in January 2012 were dismissed by consent. Those proceedings sought the same relief as the present proceedings seek (except the present claim for damages). In Nominal Defendant v Manning (2000) 50 NSWLR 139 Heydon JA said at [72] that a litigant bringing a second application where circumstances have not changed on evidence available earlier faced serious and self-created risks of an adverse exercise of judicial discretion. That was said in respect of interlocutory applications. It may have greater force in respect of final relief even if the earlier dismissal here did not produce a res judicata. It is not necessary to decide this matter because, for the reasons I gave earlier, the claim for this relief is hopeless and is doomed to fail.

1. The second aspect to the relief sought is the claim for damages.

1. Section 730 LPA relevantly provides:

730 Protection from liability

No liability is incurred by:

...

(b) the Law Society or the Law Society Council, or their committees, including a Management Committee to which a function is delegated under section 426 (Management Committee),

...

or an employee or agent of, or a person acting at the direction of, any of them for anything done, suffered or omitted to be done in good faith in the exercise, or purported exercise, of a function under this Act.

1. Nowhere is it alleged in the pleading or elsewhere that in coming to its determination on 20 September 2012 there was any lack of good faith on the part of the Law Society or its Council or employees. Nothing in the affidavit filed by the Plaintiff makes any such assertion nor provides any evidence which could lead to an inference of a lack of good faith. There is nothing in the reasons proffered by the Law Society Council for the determination that it made that could lead to an inference of a lack of good faith.

1. In my opinion that is sufficient to demonstrate that the claim for damages is not based on any reasonable cause of action.

1. Furthermore, what purports to be the pleading of the cause of action does not by any means satisfy the requirements of the Rules and good practice for proper pleading and particularisation. The importance of proper pleading has been emphasised in a number of cases particularly Kirby v Sanderson Motors Pty Ltd (2001) 54 NSWLR 135 at [20] - [21] and McGurk v University of New South Wales [2009] NSWSC 1424 at [21] - [35] - see also Udowenko and Ors v Chief Executive Officer and Board of Directors of St George Bank - A Division of Westpac Banking Corporation and Ors [2011] NSWSC 867 and Constantinidis v Kehagiadis [2011] NSWSC 974 at [7] - [12].

1. In this regard it is to be recalled that the Plaintiff, although appearing for himself, is not untrained or unversed in what is required for proper pleading. Not only has he been a solicitor since 1991 but he asserted in Court that as a solicitor he had been a litigator. In my opinion, no particular allowance should be made for the Plaintiff on the basis that he does not have legal representation. However, even if the Plaintiff had not been a lawyer the pleading contained in the Statement of Claim could not be allowed to remain in its present form. The only issue is whether the pleading should merely be struck out with the Plaintiff given leave to replead or whether the claim for damages should be dismissed.

1. In my opinion the proceedings should be dismissed. The lack of any material suggesting a lack of good faith on the part of the Law Society points to a high probability that the Plaintiff cannot succeed in the claim for damages. Furthermore, the Plaintiff undoubtedly committed two show cause events which have not been satisfactorily explained either to the satisfaction of the Legal Services Commissioner nor to the Council of the Law Society.

1. Morover, the suspension of his practising certificate in 2010 came about by force of s 70(1) LPA. That suspension remains in force until the Commissioner decides that he is a fit and proper person. Interestingly, on 13 October 2010 (11 days before the expiry of the "required period") the Plaintiff asked that his practising certificate be cancelled. He was told that that was not possible when the matter was under consideration.

1. There is a right to approach the Tribunal to remove the suspension imposed by s 70. The Plaintiff did that but was unsuccessful. He did not thereafter apply for a practising certificate until 24 January 2012, nine days after he filed his Summons in this Court (referred to in paragraph 13 above).

1. The Law Society informed him by letter of 7 February 2012 that before a practising certificate could be issued the Plaintiff would have to provide answers to matters asked of him by the Legal Services Commissioner in his letters of 29 October 2010, 23 December 2010 and 18 February 2011. Apart from sending some documents to the Law Society on 27 March 2012 the Plaintiff did not respond to the matters asked of him until 18 June 2012. Thereafter he made the application for a practising certificate on 31 July 2012.

1. In circumstances where the suspension was imposed by statute, the Plaintiff had sought the cancellation of the practising certificate, the Tribunal rejected his application for review, the Plaintiff had consented to the dismissal of his proceedings in this Court filed in January 2012 and his failure thereafter to apply for a practising certificate until 31 July 2012, the claim for damages would be doomed to fail even if the requirement to show a lack of good faith did not obtain.

Conclusion

1. Accordingly, I make the following orders:

(1)   The Statement of Claim filed 6 December 2012 is to be re-numbered 2012/379719.

(2)   The Statement of Claim is struck out.

(3)   The Proceedings commenced by Summons filed 6 December 2012 are dismissed.

(4)   The Plaintiff is to pay the Defendant's costs.

**********

Decision last updated: 27 February 2013