Bowers v The Law Society of New South Wales

The claim for a mandatory injunction under the Privacy Act 1988 (Cth)

The relevant factual background

1. On 10 August 2020, the plaintiff made a request of the Law Society for access to his "file". As there was no agreement to narrow the request, the Law Society, on 23 September 2020, made available to the plaintiff his practising certificate and practice history as held by its Registry. However, on 23 September 2020, the plaintiff made a further request that the Law Society provide all of his "personal information". The Law Society construed the plaintiff's further request as amounting to a request under the Privacy Act. To that end, on 6 November 2020, the Law Society provided, by email, approximately 870 documents to the plaintiff. This amounted to all of the documents which were, at the time the search was conducted, adjudged to contain the plaintiff's personal information, apart from the documents which were subject to a claim for legal professional privilege.
2. Notwithstanding provision of these documents, on 26 February 2021, the plaintiff served on the Law Society a notice to produce in these proceedings which required the production of "all personal information as defined in the Privacy Act." On 11 March 2021, the Law Society agreed to provide all documents in its possession which were relevant to the plaintiff's claim with respect to his practising certificate. The documents provided were relevant to two issues: first, the Council's decisions to deny the plaintiff's application for an exemption from the requirement to complete the Practice Management Course and to refuse to vary the corresponding condition on his practising certificate; and, second, the Council's consideration of his application to vary his practising certificate to authorise him to engage in legal practice as a principal of a law practice. These documents were provided on 12 March 2021.
3. On 12 March 2021, the plaintiff served a further notice to produce in the same terms as the one served on 26 February 2021.
4. On 18 March 2021, the plaintiff filed and served a notice of motion seeking an order that the Law Society provide an affidavit verifying and supplying the usual particulars of each document sought to be withheld in response to the plaintiff's request under the Privacy Act or the notices to produce. The Law Society consented to the orders sought in the notice of motion. On 20 April 2021, it provided to the plaintiff an affidavit of Meaghan Lewis affirmed on 20 April 2021, which complied with the consent order. Ms Lewis was not required for cross-examination. The Law Society informed the plaintiff that it considered that it had provided all documents that could be relevant to the present dispute and notified him of its intention to rely on its immunity pursuant to s 468 of the Uniform Law in respect of further requests.
5. On 14 May 2021, the Law Society provided a further six documents to the plaintiff on the basis that it no longer opposed their production.

The relevant statutory provisions

1. Section 468 of the Uniform Law provides: "468 Non-compellability of certain witnesses (1) A relevant person referred to in section 467 is not compellable in any legal proceedings (including proceedings before the designated tribunal for the purposes of Chapter 5) to give evidence or produce documents in respect of any matter in which the person was involved in the course of the administration of this Law. (2) Subsection (1) is subject to any exceptions provided by jurisdictional legislation, for example in connection with royal commissions."
2. Section 467(2) provides: "In this section - relevant person means - (a) the Council or the Commissioner; or (b) a local regulatory authority; or (c) a committee of the Council or a local regulatory authority; or (d) a member of the Council, a local regulatory authority or a committee of either; or (e) a delegate of the Council, the Commissioner or a local regulatory authority; or (f) a person who is a member of the staff of, or acting at the direction of, any of the entities referred to in paragraphs (a) to (e)."
3. It follows from these provisions that the Law Society, the Council and the staff of these entities cannot be compelled to answer a subpoena or notice to produce in these proceedings in so far as they were involved in the administration of the Uniform Law.

Consideration

1. The Council is a local regulatory authority by reason of s 11(1) of the Legal Profession Uniform Law Application Act 2014 (NSW). The Law Society, the Council and the staff of these entities are relevant persons within the meaning of s 467(2) of the Uniform Law and therefore cannot be compelled to produce documents to this Court in the present legal proceedings because such persons are and were, relevantly, involved in the course of the administration of the Uniform Law. The immunity from the requirement to produce documents is not a personal right. It is conferred for the public purposes of the legislative scheme. Thus, it cannot be waived except by voluntary production: see Council of the New South Wales Bar Association v Archer (2008) 72 NSWLR 326; [2008] NSWCA 164 at [38]-[44] (Hodgson JA); [70] (Campbell JA) and [72] (Handley AJA), which considered the materially indistinguishable statutory predecessor.
2. The Law Society accepted that it was bound by the Privacy Act and, accordingly, it was obliged to provide the plaintiff with access to documents he requested in accordance with the applicable provisions. However, it contended that he ought not use the Court's processes to make such requests because of the immunity in s 468 of the Uniform Law. To the extent to which the Law Society has produced documents to the plaintiff in purported answer to a notice to produce served by the plaintiff, I accept that it has done so voluntarily.
3. It is plain from s 3 of the Privacy Act that the Commonwealth Parliament did not intend to render inoperative, on the basis of inconsistency, a law such as the Uniform Law. Section 3 of the Privacy Act provides: "Saving of certain State and Territory laws It is the intention of the Parliament that this Act is not to affect the operation of a law of a State or of a Territory that makes provision with respect to the collection, holding, use, correction or disclosure of personal information (including such a law relating to credit reporting or the use of information held in connection with credit reporting) and is capable of operating concurrently with this Act."
4. This interpretation has been confirmed (Minister for Home Affairs v Hunt (2019) 269 FCR 292; [2019] FCAFC 58 at [86] (McKerracher, Perry and Banks-Smith JJ)), including by reference to analogous State legislation: Kadian v Richards (2004) 61 NSWLR 222; [2004] NSWSC 382 at [61]-[62] (Campbell J).
5. The Law Society does not dispute that it would be amenable to an injunction requiring it to allow inspection of the plaintiff's personal information if it had refused the plaintiff access to such information or refused or failed to comply with its obligation under s 15 of the Privacy Act not to engage in an act that would contravene the Australian Privacy Principles.
6. However, the plaintiff is not entitled to an injunction, either under s 80W of the Privacy Act or under the general law, as he has merely asserted, and failed to establish, a breach of the Law Society's obligations under the Privacy Act. Indeed, the evidence establishes that the Law Society has been highly responsive to the plaintiff's requests and has acceded to all requests for documents in an expeditious and apparently comprehensive manner. Mr Gerber was unable to point to any deficiency in the Law Society's provision of documents to the plaintiff. Nor did he seek to challenge the Law Society's claims based on legal professional privilege.
7. For these reasons, the plaintiff's claim for a mandatory injunction in paragraph 1 of his amended summons is refused.

The claim for an order that the Law Society issue the plaintiff with a sole practitioner practising certificate forthwith

1. The plaintiff, in his written submissions and through Mr Gerber, contended that this Court's inherent jurisdiction with respect to legal practitioners would entitle the Court to issue him with a practising certificate as a sole practitioner and that this jurisdiction ought be exercised in his favour. The plaintiff was, however, unable to point to any authority which establishes that this Court's inherent jurisdiction (as distinct from such jurisdiction as has been conferred by legislation) extends to the issue of practising certificates to practitioners.
2. The first answer to the plaintiff's claim is that he has no right to review or appeal under the Uniform Law in respect of the Council's decision made on 20 May 2021 to refuse to vary his practising certificate. His only right to challenge this decision would arise under s 69 of the Supreme Court Act 1970 (NSW). This provision can be put to one side as the plaintiff does not allege error of law on the face of the record or jurisdictional error, and does not seek to invoke this Court's jurisdiction to review administrative decisions. Further, the relevant decision was made on 20 May 2021, some five months after the commencement of the proceedings.
3. The second, and more fundamental, answer to the plaintiff's claim is that the Court's inherent power does not extend to the issue, or variation, of practising certificates. The Court's inherent power to supervise the conduct of legal practitioners extends to removing a practitioner from the roll, making declarations of professional misconduct and similar relief: A Solicitor v Council of the Law Society of New South Wales (2004) 216 CLR 253; [2004] HCA 1 at [3] and [5] (Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ). There is no basis, absent express statutory provision, for supposing that this Court would be entitled to stand in the shoes of the Council or the Law Society when making decisions under the Uniform Law. This Court's power is conferred and confined by statute. Its only relevant jurisdiction to make orders with respect to the issuing and variation of practising certificates is the jurisdiction conferred by ss 100 and 463.
4. The decision of Veghelyi v Council of the Law Society of New South Wales (1989) 17 NSWLR 669, on which the plaintiff relied, does not suggest to the contrary. In that case, Smart J granted interlocutory relief to permit a practitioner to continue to practise pending determination of a de novo appeal to the Court, pursuant to s 37 of the Legal Profession Act 1987 (NSW), from the Council's decision to refuse to issue him with a practising certificate. His Honour found that the Court's power to grant a stay pending an appeal was incidental to the right of appeal and that, in the circumstances of the case, the Court had power to order the Council to issue the practitioner with a practising certificate.
5. As the plaintiff has no right of appeal to this Court from the decision of the Council to refuse to vary his practising certificate, there is no basis on which this Court could order the Council to issue him with a practising certificate pending the determination of the appeal, or at all. Accordingly, the plaintiff's claim for relief in paragraph 4 of the amended summons must fail.

Costs

1. Ms Wong SC, who appeared with Mr Entwisle for the defendants, sought costs in accordance with the general rule, in the event that they were successful: Uniform Civil Procedure Rules 2005 (NSW), r 42.1. Mr Gerber submitted that costs ought not follow the event. He contended that it would occasion injustice to the plaintiff (who was impecunious as he could not work as a sole practitioner) if he were required to pay costs. He relied on the significant resources available to the Law Society and the Council to defend the proceedings. He submitted that, in the exercise of my discretion, I should make no order as to costs in the event that the plaintiff was unsuccessful.
2. The plaintiff has, by commencing and maintaining these proceedings, caused the defendants to incur substantial costs by reason of the number of interlocutory hearings and separate points taken by the plaintiff. Costs are intended to be compensatory. The defendants' superior resources do not, in my view, provide a sufficient basis for departing from the general rule in the circumstances of the present case.
3. Ms Wong reminded me that the defendants did not seek their costs of the determination of the separate question, in respect of which I expressly made no order as to costs (PQ (a pseudonym) v The Law Society of New South Wales (No 3) [2021] NSWSC 420) and that, accordingly, any costs order ought exclude such costs.

Orders

1. For the reasons given above, I make the following orders: 1. Dismiss the amended summons filed 6 April 2021. 2. Subject to (3) below, order the plaintiff to pay the first and fourth defendants' costs of the proceedings. 3. The costs covered by order (2) are not to include the costs of the determination of the separate question, in respect of which no order as to costs was made.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 May 2021