The Commissioner drew attention to provisions of the former Act including the requirement that he institute proceedings in the Legal Services Tribunal in a case in which he was satisfied that it was reasonably likely that the practitioner would be found guilty of professional misconduct.
9 Mr Brooks appealed from Bergin J's decision. The investigation of the complaint, based on her Honour's findings, was deferred pending the outcome of the appeal. On 17 September 2004 judgment was delivered: James v Hill [2004] NSWCA 301. Mr Brooks' appeal against the findings and orders made against him was unsuccessful.
10 Mr Brooks did not pay the judgment debt that he owed to Mr Hill and as a consequence on 13 April 2005 he was declared bankrupt.
11 The Council of the Society determined to cancel Mr Brooks' practising certificate. He was advised of this determination on 16 June 2005. Thereafter, on 13 July 2005 Mr Brooks commenced proceedings in the Common Law Division claiming orders setting aside the Council's determination (the administrative law proceedings).
12 The Commissioner's investigation of the complaint was suspended pending the outcome of the administrative law proceedings.
13 The hearing of the administrative law proceedings, which was estimated to take two weeks, was fixed to commence on 28 August 2006.
14 On Friday 25 August 2006 the Society and Mr Brooks agreed on the terms of consent orders dismissing the summons and directing that Mr Brooks pay the Society's costs on an indemnity basis. These orders were made on 28 August 2006.
15 On 8 September 2006 the Commissioner wrote to Mr Brooks asking that he show cause why he should not move the Court to have him struck from the roll. Following this the Commissioner exercised his powers under s 689(1) of the LPA and required the Society to produce to him all the documents generated in the course of the administrative law proceedings. Sometime after this it appears that the Commissioner determined that the Society was the appropriate body to conduct the investigation. On 10 November 2006 he referred the investigation of the complaint (which he had initiated in March 2004) to the Society, noting that the complaint may require amendment "in light of additional evidence".
16 Considerable work was undertaken by the Society in preparation for the administrative law proceedings which included obtaining material under subpoena. After the complaint was referred to it, the Society sought advice concerning the application of the rule in Home Office v Harman [1983] 1 AC 280 to the use it may properly make of this material in its investigation. Mr Collins wrote to Mr Brooks on 11 December 2006 informing him that the Society and its advisers wished to review the documents obtained in connection with the administrative law proceedings in order to decide whether additional complaints should be made against him. He enclosed draft consent orders to this end. The draft orders did not require Mr Brooks to make any admissions. Mr Brooks responded by letter dated 14 December 2006 indicating his willingness to consent to the order sought on a condition that does not appear to have been acceptable to the Society.
17 On 26 February 2008 the Society filed a motion in the administrative law proceedings seeking leave to use all documents and information which it obtained in the proceedings to conduct its investigation. The motion is listed for hearing on 6 June 2008. Some delay in bringing the motion on for hearing was occasioned by the Society's inability to locate Sigvald Wehrle and Frank Fabrizio, two persons associated with Mr Brooks, who were considered to be proper respondents to it.
18 In his affidavit filed in support of the summons Mr Brooks asserted his belief in the truth of his defences in the proceedings before Bergin J. He acknowledged that his conduct in connection with the subject matter of those proceedings exhibited faults which "showed serious failing of character" in respects that he identified. He also said that he has a medical condition, which is accompanied by severe mood swings and occasional violent outbursts. For these reasons he states that he does not consider that he is fit to be a legal practitioner. He recited the history of correspondence between the Society and himself and expressed concern that the investigation had been conducted in a dilatory fashion. In conclusion he said this:
"I maintain the feelings that I expressed in October 2006 to the Legal Services Commissioner [desire to be struck off the roll]. I do not wish to be on the roll of practitioners. I believe my conduct and current mental state, based on the admissions set out above, do not permit me to remain on the Local Roll even if I deny the greater accusations levelled at me by the Law Society and the essence of many findings of her Honour, Bergin J."
19 If as a result of its investigation, the Council of the Society is satisfied that there is a reasonable likelihood that Mr Brooks will be found guilty of professional misconduct by the Legal Services Division of the Administrative Decisions Tribunal it is required to institute proceedings in the Tribunal against Mr Brooks: s 155(2) of the former Act. (The former act applies because the complaint was pending but not before the Legal Services Division of the Administrative Decisions Tribunal at the date of commencement of the LPA.) If, after the Tribunal has completed a hearing in relation to a complaint against a legal practitioner, it is satisfied that the practitioner has engaged in professional misconduct it may make orders including that the name of the practitioner be removed from the local roll: s 562(2)(a) of the LPA.
20 The Society submitted these proceedings are an abuse of the process of the Court. It submitted that Mr Brooks' purpose in commencing them is improper in that it is a pre-emptive move to secure the removal of his name from the roll on a factual basis that discloses professional misconduct of a less serious character than the allegations that are the subject of its investigation.
21 In the Society's submission, should the Court decline to stay the proceedings it should be joined as a defendant because it is the proper contradictor. Mr Brooks did not contend otherwise.
22 The Society's position is that the allegations that are the subject of its investigation are of a more serious character than the admissions made by Mr Brooks in his affidavit. It submits that it is appropriate that its investigation be completed and that any proceedings which may lead to Mr Brooks' removal from the roll contain a record of factual findings that disclose the true extent of any professional misconduct. This may be relevant in the event Mr Brooks were to apply to have his name restored to the roll of legal practitioners: New South Wales Bar Association v Cummins [2001] NSWCA 284; 52 NSWLR 279 per Spigelman CJ at 285-286, [24]-[32]; New South Wales Bar Association v Stevens [2003] NSWCA 261 per Sheller JA at [14].
23 In Re Leaver and the Legal Practitioners Act (1966) 83 WN (Pt 1) (NSW) 278 the Court dealt with an application by a solicitor to have his name removed from the roll of solicitors. Proceedings were then current against the solicitor before the Statutory Committee. Wallace P observed:
"In my opinion it would be out of the question to say the court has no discretion to refuse this type of application in a case where the applicant solicitor was, for example, before the Statutory Committee answering grave charges of misconduct, or even if his affairs were being investigated in respect of possible charges. The Statutory Committee is empowered to punish solicitors and the punishment includes a substantial fine as well as removal from the roll and suspension from practice. It would seem, furthermore, inconsistent with the general inherent jurisdiction of the court that it should not retain some discretion to deny an applicant this right in this special type of case."
24 In Smyrnis v Legal Practitioners Admissions Board [2003] NSWCA 64 Santow JA (with whose judgment Mason P and Handley JA concurred) said:
"[9] This Court should be provided not merely with so much of the relevant information as would suffice to justify removal from the Rolls at the Claimant's behest. It is also necessary that any other relevant information such as might indicate further reason for removal should be before the Court, if the Court is not to be misled. The omissions from Mr Smyrnis' affidavit, though later agreed to be included in what became a Statement of Agreed Facts and covering two omitted ICAC matters and a number of non-ICAC matters, all would bear, for example, on any future application for re-admission. They go to the gravity of Mr Smyrnis' professional misconduct and to his unfitness to practise as a solicitor."
25 In Walsh v Law Society of New South Wales [1999] HCA 33; (1999) 198 CLR 73 the High Court discussed this Court's inherent jurisdiction to supervise legal practitioners. In their joint reasons McHugh, Kirby and Callinan JJ instanced the case of a practitioner convicted of a criminal offence which warranted immediate removal from the roll as one in which the inherent power might be invoked, noting that proceedings of this kind are commonly brought by the Prothonotary and are ordinarily uncontested. (96, [65])
26 The inherent power of this Court to discipline legal practitioners is not in issue. However this Court will generally not be the appropriate forum in which to resolve contested questions of fact arising out of allegations of professional misconduct by a solicitor. In Council of the Law Society of New South Wales v Oudomvilay, Court of Appeal, (unreported) 4 April 2005, Young CJ in Eq expressed concern that this Court not be approached as the ordinary forum to deal with applications to remove a practitioner's name from the roll. In that case the practitioner consented to the making of the order and there was agreement as to the facts which supported it. His Honour commented on the existence of a specialist tribunal to deal with these matters. Campbell JA concurred with his Honour's remarks.
27 Mr Brooks opposed the grant of a stay. He informed the Court that contrary to the position put by the Society, there exists a prospect that an agreed statement of facts may be settled obviating the need for a protracted hearing. He submitted that there is a public interest in the matter being finalised without delay, since there had been a question concerning the propriety of him describing himself as "legal counsel" and/or "legal practitioner", which would be resolved by the removal of his name from the roll. Mr Brooks did not press the health concerns (to which reference is made in his affidavit) as a reason for not staying the proceedings.
28 It is desirable that a complete account of the facts constituting the professional misconduct is before the Court or Tribunal at the time an order removing a practitioner's name from the roll is made. It may be that Mr Brooks and the Society will agree on a statement of facts, but on the material before me there is no reason to entertain confidence that will occur. Mr Brooks' admission of misconduct, while of a serious character, does not admit the findings made by Bergin J. These were findings made for the purposes of the proceedings, which if not admitted would require to be proved. Any hearing may well be lengthy.
29 Mr Brooks has commenced proceedings invoking the inherent supervisory jurisdiction of this Court. I do not find it necessary to determine whether Mr Brooks was motivated by an improper purpose in commencing the proceedings such as to make the continuance of them an abuse of the process of the Court. The relief that he claims is discretionary. I accept the Society's submission that the present investigation should be allowed to run its course with the consequence that proceedings in the Tribunal might be instituted. It is the appropriate body to determine disputed issue of fact. The delays associated with the investigation are not the fault of the Society. The Commissioner suspended his investigation pending the determination firstly of Mr Brooks' appeal in this Court and secondly of the administrative law proceedings brought by Mr Brooks. The Society has acted on advice in relation to the use it may make of material obtained in connection with the latter proceedings and this had occasioned necessary delay. The public interest concern that Mr Brooks relied upon as supporting his immediate removal from the roll is a matter which the Society can take steps to address should that be necessary. In my opinion it is not a consideration that should weigh against granting the Society the relief that it claims.
30 Mr De Courcey submitted that the Society's investigation should proceed and for this reason the Prothonotary consented to the stay. This was subject to the submission that the proceedings should be re-listed on a date some months hence rather than being left "in abeyance". In light of the order that is proposed it is not clear what utility is served by listing the proceedings before the Registrar for further directions on a nominated date.