Buckley v Council of the Law Society of New South Wales

NCAT Occupational|2021-10-25|Before: The Hon J, Boland AM

Parties: Nathan Buckley (Applicant) Council of the Law Society of New South Wales (Respondent) Representation: Counsel: P d'Assumpcao (Applicant) K Richardson SC and R J Pietriche (Respondent)

Solicitors: G & B Lawyers (Applicant) Council of the Law Society of New South Wales (Respondent) File Number(s): 2021/00165948 Publication restriction: Nil

Matters in issue

I had the benefit of comprehensive and helpful written and oral submissions by counsel for both parties. Although the matter was listed before me to determine the Council's application to set aside the Summons, during the course of the hearing it became clear that the solicitor's primary position was that the Council had not complied with its obligations under s 58(1)(b) of the ADR Act and orders should be made requiring it to do so. If successful in that application, it was apparent that the solicitor did not vigorously pursue production of documents pursuant to the Summons, which could be set aside.
The solicitor has applied for the issue of a Summons to the Proper Officer, Facebook Australia. The Council did not seek to be heard as whether or not that Summons should be issued.
I therefore discern the following issues require determination in the competing applications before me: 1. What documents are the Council required to provide under s 58 of the ADR Act? 2. Has the Council properly complied with s 58 of the ADR Act and if not, what is it required to produce? 3. Is the application under s 58(4) premature? Should an application, if any, under this provision be made at the hearing of the review? 4. If the application under s 58 is dismissed or stood over to the hearing of the review should the Council be required to produce documents sought in the schedule to the Summons? This question requires consideration of: 1. is there a legitimate forensic purpose for the documents sought to be produced or is the Summons a "fishing" expedition and/or is the Summons oppressive? 2. Does s 468 of the Uniform Law mean the Council is not compellable and is not required to produce the documents sought? 1. Is it appropriate for the Tribunal to issue a Summons directed to Facebook?

Background

The Council's reasons for its determination under s 299 of the Uniform Law disclose that the solicitor made a number of posts on the Facebook and Twitter pages of G & B Lawyers (the Law Practice). The solicitor is a partner of the Law Practice. The posts included the following: "Free legal advice to all Victorians. Don't wear a mask. Get a $200 fine then elect to have it determined in Court. Every single one of you 6.359 million Victorians can challenge the fines in Court. The Victorian Government won't fight you in Court. It is far too expensive for them to do so."
The Law Practice posted another item on Facebook on 19 July 2020 as follows: "Now hiring. A criminal lawyer based in Victoria. Must have experience in challenging fines in Courts. Expect 6 million or so fines against individuals for not wearing a mask. Apply to Nathan Buckley at [email address]. Must be available to start asap."
The solicitor responded to the Council by letter dated 20 July 2020 in which he denied the posts incited people to break the law. He asserted that the first post was compliant with Rule 3 of the Conduct Rules, and that "[a]t worst, the post was an expression of my implied freedom of political communication which is protected by the Commonwealth of Australia Constitution Act".
The Council's reasons note at [8] that a "number of complaints were made to the NSW Legal Services Commissioner about the above posts, from both laypersons and legal and medical practitioners from NSW and Victoria". The reasons also note one complaint made by Ms Sharna Clemmett. Ms Clemmett is a barrister and the administrator of a Facebook page of a group known as Lawyer Mums Australia. The reasons also refer, at [14], to a complaint by another practitioner who stated he was often mistakenly identified as being the solicitor.
On 2 July 2021 the Council lodged two volumes of documents comprising 851 pages with the Tribunal under s 58(1) of the ADR Act. Many of the documents, principally screen shots of Facebook posts, are duplicated in the two volumes. The documents include the complaints received by the NSW Legal Services Commissioner referred to generally in [8] of the decision. Also included in the documents are two complaints lodged by the solicitor against Ms Clemmett and Ms Anthea McIntrye. Ms Clemmett and Ms McIntrye are members of Lawyer Mums Australia. The documents include a letter dated 30 September 2020 from the NSW Legal Services Commissioner to the Council advising the complaints by the solicitor against Ms Clemmett and Ms McIntrye had been closed under s 277(1)(a) of the Uniform Law.

The application under the ADR Act

The solicitor has sought to review the Council's decision that he is guilty of unsatisfactory professional conduct and the action taken to reprimand him under s 299(1)(b) of the Uniform Law, to require him to undergo further education under s 299(1)(e) and to pay a fine of $2,500 in accordance with s 299(1)(f).
Section 126 of the Application Act provides as follows: 126 Right of review by NCAT about certain determinations of local regulatory authority in consumer and disciplinary matters (1) This section deals with proceedings contemplated by section 314(1) and (2) of the Legal Profession Uniform Law (NSW) in relation to a determination of a local regulatory authority relating to - (a) a compensation order for more than $10,000 in a consumer matter, or (b) a disciplinary matter. (2) A respondent lawyer or a legal practitioner associate of a respondent law practice may apply to NCAT for an administrative review under the Administrative Decisions Review Act 1997 of a determination of the designated local regulatory authority under - (a) section 290 of the Legal Profession Uniform Law (NSW), in relation to a compensation order for more than $10,000, or (b) section 299 of the Legal Profession Uniform Law (NSW).

The relevant provision

The solicitor's present application is focussed on s 58 of the ADR Act. That section is in the following terms: 58 Duty of administrator to lodge material documents with Tribunal where decision reviewed (1) An administrator whose administratively reviewable decision is the subject of an application for review to the Tribunal must, within 28 days after receiving notice of the application, lodge with the Tribunal: (a) a copy of any statement of reasons given to the applicant under section 49 (or, if no such statement was given to the applicant, a statement of reasons setting out the matters referred to in section 49 (3)), and (a1) a copy of any statement of reasons for a decision in an internal review conducted in respect of the administratively reviewable decision, and (b) a copy of every document or part of a document that is in the possession, or under the control, of the administrator that the administrator considers to be relevant to the determination of the application by the Tribunal. (2) If the applicant has not been given a statement of reasons under section 49, the Tribunal may direct that a copy of the statement of reasons lodged with the Tribunal under subsection (1) (a) be given to the applicant within such period or periods as the Tribunal directs. (3) If the Tribunal or President considers that a party to the proceedings would or might suffer hardship if the period of 28 days provided by subsection (1) is not shortened or extended, the Tribunal or President may, at the request of the party, make an order directing that the copies referred to in that subsection be lodged with the Tribunal within such shorter or extended period as is specified in the order. (4) If the Tribunal or President considers that other particular documents (or that other documents included in a particular class of documents) may be relevant to the determination of the application, it may cause a notice in writing to be served on the administrator: (a) stating that the Tribunal or President is of that opinion, and (b) directing the administrator concerned to lodge with the Tribunal, before a date specified in the notice, a copy of each of those other documents that is in the possession, or under the control, of the administrator. (5) The principal registrar of the Tribunal is to grant reasonable access to the applicant in the proceedings to any copy of a document lodged under this section by an administrator. Reasonable access includes, but is not limited to, enabling the applicant to make a photocopy of a document during ordinary business hours. (6) If a party to proceedings before the Tribunal seeks a summons under the Civil and Administrative Tribunal Act 2013 against an administrator for the production of any document and a copy of that document has been lodged with the Tribunal under subsection (1) or (4), the Tribunal may (on such conditions as it considers appropriate) direct the principal registrar of the Tribunal to grant the party access to its copy of the document instead of issuing a summons if access to the document could lawfully be required by the issue of a summons. (7) Nothing in this section requires the disclosure of, or the granting of access to, any document (or a copy of a document) in contravention of any of the following: (a) an order made under section 59 (Objections to lodgment), (b) an order made under section 64 (Tribunal may restrict disclosures concerning procedures) of the Civil and Administrative Tribunal Act 2013, (c) section 66 (Effect of Government Information (Public Access) Act 2009) or section 67 (Privileged documents) of the Civil and Administrative Tribunal Act 2013 (as applied by section 67 of this Act). (8) For the purposes of this section, a reference to a document in the possession of an administrator includes a reference to a document to which the administrator has an immediate right of access.
As will become apparent when considering counsel's submissions on behalf of the solicitor, reliance is placed on a number of decisions of the Commonwealth Administrative Appeals Tribunal (the AAT) which discuss s 37(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) prior to the amendment of that provision in May 2005. It is not in dispute that s 37(1)(b) of the AAT Act prior to 2005 was identical to s 58(1)(b) of the ADR Act.

The parties' submissions relevant to s 58 of the ADR Act

The solicitor

Counsel for the solicitor submits that documents which should be produced for the purposes of s 58 of the ADR Act are those identified in the Schedule to the Summons which he describes as: 1. All documents relating to or incidental to the complaint, the investigation and decision; and 2. All documents put to the Respondent (the Council) for consideration.
It is submitted, in order to reach the correct or preferable decision, the Tribunal has to be apprised of all the relevant facts and material upon which the original decision is based.
The submissions explain that, unlike in other civil proceedings, in proceedings under the ADR Act there is no right to discovery, and that the solicitor only relies on the Summons by way of "last resort" if his application under s 58(1), (3) and (4) is unsuccessful.
Counsel for the solicitor relied on the discussion by Ryan J in Australian Prudential Regulation Authority v VBN and Others (2005) 88 ALD 403; [2005] FCA 1868. I note that the focus in that decision is whether the documents were considered relevant to the review. Similarly, at [17] of the reasons in Re Confidential and Australian Prudential Regulation Authority (2005) 91 ALD 435; [2005] AATA 1264 at [17], the President, Downes J, addressed the issue of whether, in the course of hearing proceedings, certain documents relating to how another person had been treated were relevant to the decision under consideration.
Reliance is also placed on the decision of the Full Tribunal in Re Palmer and Minister for the Capital Territory (1978) 1 ALD 183; (1978) 23 ALR 196 where the Tribunal discussed the provision of reasons for a decision and the ability of an applicant for review to seek further and better particulars of a decision under s 38 of the AAT Act. I find little weight can be placed on this decision. The decision is squarely focused on the adequacy of reasons supplied under s 37(1) of the AAT Act. It does not primarily focus on the requirement to produce all documents considered by the decision maker to be relevant.
Counsel for the solicitor drew attention to the discussion in Patel and anor v Minister for Immigration and Border Protection and Others (2015) 145 ALD 566; [2015] FCAFC 22 at [41]. There Flick J, in the course of discussing an asserted bogus document before the then Migration Review Tribunal, referred to the obligation on the Tribunal, in certain circumstances, in carrying out its inquisitorial role to make inquiries. His Honour explained at [41]: "These observations of their Honours in SZIAI, it should nevertheless be noted, are not to be construed as detracting from the fundamental task entrusted to the Migration Review Tribunal by the Commonwealth legislature to undertake a "review". Well short of any "duty to inquire" and entirely separate from any consideration of improperly imposing an onus of proof upon a government agency participating in an administrative review, there may be circumstances in which a "review" as contemplated by the legislature may not be lawfully carried out if relevant and available materials are not placed before the Tribunal. There may, for example, be circumstances in which a claimant can show that a government agency has documents or other information centrally relevant to the proper resolution of the potential claims which are - for whatever reason - not being made available to the Tribunal. A failure on the part of a government agency to make such materials available to a reviewing authority may be tantamount to a failure to comply with the "old-fashioned traditional, and almost instinctive, standard of fair play to be observed by the Crown in dealing with subjects": Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333 at 342 ; 18 ALR 533 per Griffith CJ. A "review" may, for example, require that an administrative tribunal need have before it not only such materials as were before the delegate whose decision is under "review", but all such other relevant material that was available to the delegate. A government agency cannot, by way of example, artificially circumscribe the ambit of a proper "review" by confining the ambit of those materials in fact before a decision-maker to the exclusion of other readily available material. Such an obligation imposed upon a government agency, perhaps, goes a little further than the duty already imposed upon the Secretary to the Department by s 352(4) of the Migration Act, which provides as follows: The Secretary must, as soon as is practicable after being notified of the application, give to the Registrar each other document, or part of a document, that is in the Secretary's possession or control and is considered by the Secretary to be relevant to the review of the decision. In the absence of any reason to question the position, the Tribunal may proceed upon an "assumption" that the Secretary has provided all such information: Khant v Minister for Immigration and Citizenship (2009) 112 ALD 241 ; [2009] FCA 1247 at [74]. In an appropriate case the Tribunal may seek the provision to it of further information, be it further information which the Secretary "considered ... to be relevant" or otherwise. The view formed by the Secretary should not confine the freedom of the Tribunal to request such further information as may be available and which the Tribunal itself "considers to be relevant"."
I also accept in Re Spicer Axle Structural Components Australia Pty Ltd and Secretary, Department of Industry, Tourism and Resources (2005) 83 ALD 104; [2005] AATA 77, Deputy President Forgie considered s 37(1)(b) which, at the relevant time, was in identical terms to s 58(1)(b). The Deputy President was tasked with determining whether legal advice in the possession of the decision maker and subject to a claim of privilege was a relevant document to be disclosed under s 37(1)(b). At [21] the Deputy President explained that under s 37(1)(b) a "determination of what is … 'relevant to the review of the decision by the Tribunal' must be a reference to what is connected with or pertinent to the multi-faceted task, or part of it, that the Tribunal must undertake".
Later, at [25]-[26], the Deputy President explains: "25. Documents are treated differently. The Tribunal is not given any power to assess whether the decision-maker has lodged all of the documents that are relevant to the review of the decision by the Tribunal. That is not the decision-maker's obligation. It is limited to those that are "considered by the person to be relevant to the review of the decision by the Tribunal" (s 37(1)(b), emphasis added). The Tribunal is not given any power to assess whether the decision-maker has, for example, acted in good faith in carrying out that obligation. That is in the realm of judicial review and outside the Tribunal's powers 26. What the Tribunal can do is to consider whether there are other documents that "... may be relevant to the review of the decision by the Tribunal ..." under s 37(2). Given the nature of merits review by the Tribunal, documents that are relevant in that way must be documents that are connected with or pertinent to the multi-faceted task, or a part of it, that the Tribunal must undertake. As part of that task is to identify and interpret the law, documents that are concerned with the interpretation or application of the pertinent law are relevant." [original emphasis.]
Also relevant to the solicitor's application and relied on by him is the AAT decision in Re Wertheim and Department of Health (1984) 7 ALD 121. In that decision, at 153-154, the Tribunal explains: "Respondents should be aware that the obligation imposed by para 37(1)(b) requires production of a great deal more than merely the correspondence resulting from the original application under the FOI Act. 80. We would respectfully adopt the remarks of the Tribunal in Mann's case (para 36 above) in which a similar situation became apparent (from pp 4-7): "At that first hearing, the respondent should have presented to the Tribunal all the information which was necessary to enable the Tribunal to come to a decision with respect to the issue of possession. With respect to that issue, there was no relevant information that was not within the knowledge of employees of the Commission in their capacity as such. ... However, we regret to say that the Commission did not attempt that task. ... We have set out the above facts not because they indicate the substance of the matter but because we wish to make clear, for the benefit of the respondent and of the agencies who are respondents in FOI reviews by the Tribunal, that the presentation of facts in that manner to the Tribunal is entirely unacceptable. Had the Tribunal acted on the basis of that information, on the footing that that evidence disclosed the substance of the facts which the Tribunal had to consider, the Tribunal would have been misled, as will appear from the evidence which we later set out. In FOI reviews, as in other reviews, the Tribunal must be given assistance by respondents. The Tribunal has no personal knowledge of relevant facts and is not in a position to make its own searches. The Tribunal proceeds by way of a hearing at which parties are represented. .Justice will not be done to applicants unless respondents, who are aware of the facts, or who readily can ascertain the facts, bring to the notice of the Tribunal all matters which the Tribunal ought to take into account. The review procedure will not function fairly unless respondents freely disclose to the Tribunal all the information which they have concerning the documents to which the applicant seeks access. If there are facts known to the respondent which are not known to either the applicant or the Tribunal, how is the Tribunal to be made aware of those facts unless they are disclosed to it by the respondent? The Administrative Appeals Tribunal Act 1975 provides that in every case the decision-maker is to be a party to the review. See s 30. This provision is not aimed solely at permitting a decision-maker to defend his or her decision. Part of its aim is to ensure that the Tribunal is fully informed."
The thrust of the submissions made on behalf of the solicitor is that the affidavit of Mr Lean "[a]t the least, it points to the existence of a vast array of documents (listed at paragraph 18 (a) (i)-(iii)) that may well be relevant to the decision, but seemingly have not been assessed for relevance". It is submitted that Mr Lean's evidence supports a finding that documents, which are potentially important, exist. It is submitted that, as the solicitor has no knowledge of what is in the file, the burden is on the Council to identify which documents are relevant.

The Council

I commence by again recording that when this application was listed for hearing before me it was listed on the basis that the application was to set aside the Summons issued by the solicitor, not to address whether there had been proper compliance with s 58 of the ADR Act. However, for the following reasons, I am satisfied that there was no procedural unfairness to the Council in the hearing of the oral application now under consideration.
I have taken into account that the Council had the benefit of counsel for the solicitor, Mr d'Assumpcao's, written submissions which canvas the s 58 issue, and filed submissions in reply by both Senior and Junior counsel (Ms K Richardson SC and Mr R J Pietriche). Mr Pietriche also responded orally to Mr d'Assumpcao's submissions.
Understandably, the Council's primary submissions filed in support of its application address the basis on which it seeks the Summons be set aside. It is submitted, at par 18, that the Tribunal should not be burdened with irrelevant documents and the Council should not be put to the burden of collating and producing them.
At par 26 of their submissions, counsel for the Council record that the Summons seeks documents with respect to the Applicant "and not just with respect to the investigation of the complaint" and note that the Council may retain documents such as applications for annual practising certificates which have no relevance to the review. It is also submitted that many of the documents regarding the complaint are privileged communications which would require review and redaction to protect that privilege.
In the submissions in reply, at par 11, counsel address the arguments advanced for the solicitor under s 58 of the ADR Act. It is submitted, first, that the Council's obligation under s 58(1) is a "closely circumscribed one" noting it is "tethered to documents that are relevant to the specific task to be undertaken by the Tribunal", namely to make the correct and preferable decision as explained in Youssef v NSW Legal Services Commissioner [2020] NSWCATOD 85. It is submitted: "This is of critical significance to the Law Society's obligation to provide documents under s 58(1)(b) because documents that are not relevant to a merits review would serve no legitimate evidentiary or analytical purpose to the Tribunal's 'determination' and would plainly fall outside the scope of the Law Society's obligation of production."
It is submitted, at par 12, that the solicitor's focus upon "the relevance of the documents sought by the Summons 'to the decision under review'… or the decision-making process by the Law Society… is erroneous". The submissions go on to submit as follows: "It elides the statutory language in a manner which not only seeks to expand the scope of the Law Society's obligation of production under s 58(1) beyond that imposed by the statute itself, but which is prone only to distract the Tribunal from the statutory task that it is required to undertake. Indeed, were the Tribunal to take into account (as urged by Mr Buckley) the original decision by the Law Society or any documents which disclosed the process by which the Law Society reached that decision, it would quite plainly fall into error. The Tribunal's role is not to engage in that task at all (as made plain in Youseff,…)". [original emphasis.]
The submissions then address the duty imposed by the language in s 58(1) and point out that the statute imposes a subjective criterion on the Council to produce documents which it considers relevant to the determination of the application. The submissions refer to the decision of Gummow and Hayne JJ in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALD 224; (2004) 207 ALR 12 at [37], where their Honours discuss the necessity for a decision maker to be satisfied of the criteria in the legislation (a jurisdictional fact), rather than a power to be exercised as a discretion.
The submissions next address s 58(4) noting that provision enables the Tribunal or the President, if other documents are considered relevant, to direct the administrator concerned to lodge the documents with the Tribunal. This provision, it is submitted, provides "a safety valve by which potentially inadequate production may be rectified"
Under the heading "The Tribunal's role in these proceedings" the Council's submissions note that the solicitor does not identify with any degree of specificity in the Summons itself, or his counsel's submissions, documents that are alleged to be relevant to the Tribunal's task and which are not contained in the s 58 bundle. It is further submitted that the solicitor has not led any evidence which discloses the existence of other specific documents which the Tribunal would require to carry out its merits review function.
At par 16, it is submitted that the Council, in its s 58 bundle, has provided all the material required for the Tribunal "to evaluate the Law Society's original complaint against Mr Buckley".
The submissions set out in detail the conduct which it is asserted the Tribunal will be required to assess to determine if that conduct constitutes unsatisfactory professional conduct. The submissions deal with each of the seven allegations made against the solicitor and detail the documents in the s 58 bundle relevant to those allegations.
At par 20, the submissions advance the proposition that, because of the way the complaint the subject of the review is framed, all relevant documents have been included in the s 58 bundle. Paragraph 20 concludes as follows: "Mr Buckley's attempt to invoke the obligation upon the Law Society under s 58 of the ADR Act proceeds upon a plain misconstruction of the statutory language, and ought not be accepted as a basis for the production of materials which are irrelevant to the Tribunal's statutory function."

(1) What documents are the Council required to provide under s 58 of the ADR Act?

(2) Has the Council properly complied with s 58 of the ADR Act and if not, what is it required to produce?

It is convenient that I first address the two questions above, identified earlier in these reasons.
The crux of the solicitor's application for further documents under s 58(3) and (4) of the ADR Act is Mr Lean's statement at par 18 of his affidavit. Mr Lean deposes: "I am informed by Mr Flax that, in order to comply with the Summons: (a) searches must be made of: i. documents contained in six electronic repositories; ii physical file notes held by at least 3 people within the Society who were involved in the investigation of the Complaint; and iii. emails held by each person within the Law Society who was involved in the investigation of the Complaint;"
It is clear that the solicitor advances the proposition that, in order for the Tribunal to properly undertake the review under the ADR Act, it must have before it all documents in the possession of the Council held in respect to the investigation of the Complaint.
By contrast, it is the Council's position that the documents relevant to the seven allegations made against the solicitor, and which the Tribunal will consider afresh, have been disclosed in the s 58(1) bundle. In short, the Council submits the investigation material generally does not fall within s 58(1)(b) of the ADR Act.
Although not referred to by either party, I find the discussion about the obligations involved in compliance with s 58(1) in Edwards v Commissioner for Fair Trading, Department of Finance, Services and Innovation [2019] NSWCATAP 208 [13]-[16] to be helpful and relevant to the present application. In Edwards the Appeal Panel stressed that "an administrative decision-maker subject to s 58 obligations should not take an overly narrow view of documents to be produced under s 58 nor can it 'pick and choose' which ones to disclose. Documents that establish the facts or the exercise of the decision-maker's discretion are relevant and fall within the terms of the statutory provision". The Appeal Panel thereafter quotes from Bristol Custodians Limited v Chief Commission of State Revenue [2012] NSWADTAP 44 at [53]. I also have regard to the Appeal Panel's discussion in that decision at [51]-[53] as follows: "51 The Appellant supports the facilitative view and the Respondent supports the adjectival view. Both parties accepted that under s 58 of the ADT Act, the administrator must act objectively reasonably and lodge with the Tribunal the relevant documents: Transport Accident Commissioner v Bausch [1998] 4 VR 249 at 268. It is not appropriate to pick and choose between relevant documents: Bausch v Transport Accident Commissioner (1996) 11 VAR 177. The Commissioner cannot hold back documents which he may rely upon at the substantive hearing and he cannot hold back documents or material that support the taxpayer's case. Nevertheless, it is not necessary to lodge with the Tribunal every document in the Commissioner's possession. 52 We agree with the learned Tribunal below that a balance is required. The taxpayer must be in a position to understand the case he must answer as he bears the onus (s 100(3) of the TAA), but he is in the unique position of being aware of the taxable facts. Accordingly, requiring the Commissioner to provide every document that bears any connection to the taxpayer or the Commissioner's process of investigation or his journey towards his conclusion goes too far and detracts from the goal of s 58 of the ADT Act. 53 The expression "relevant" in s 58 of the ADT Act is meant in the sense that the document or material could logically affect the determination of a fact or issue in the proceedings. Since the disclosure requirement must be complied with at an early stage of the proceedings, it is necessary to not overly restrict or confine the range of documents to be produced. Nevertheless, there must be some discernible forensic purpose or detectable connection to the determination of the issues. Section 58 therefore refers to "relevant" in narrower sense. Like the learned Tribunal at first instance, we prefer the approach adopted by Senior Member Taylor SC in KLGL"
Looked at broadly, Mr Lean's statement in par 18 of his Affidavit does appear to give some support to the solicitor's application. It reveals that the Council has not searched documents in six electronic repositories, or reviewed for relevance the file notes and emails of those involved in the investigation of the complaint. This may suggest that the Council has not carefully or fully fulfilled its statutory task.
However, on closer analysis, it is arguable that the documents required by the Tribunal at the review hearing to determine the correct or preferable decision on the complaints and which were originally before the Professional Standards Committee have been disclosed in the s 58(1) bundle provided to the Tribunal. This is because my examination of the s 58 bundle discloses that the documents provided have a forensic purpose or a detectable connection to the issues which the Tribunal must determine. The issues to be determined are complaints notified to the practitioner on 1 September 2020 and amended in the document dated 20 October 2020. In the latter document, the seven allegations made against the solicitor as particularised in the document headed "Complaint about Nathan Andrew Buckley" are set out (page 682 of the s 58 bundle).
While I accept that the Council is required to properly assess documents and not "hold back", I do not find the Council is required to provide to the solicitor all material obtained in the investigation process. It is relevant to observe that the Council has provided early correspondence with the solicitor from July 2020 and copies of the complaints made by practitioners, and others including a medical practitioner, as well as Ms Clemmett, and Ms McIntyre. Also provided is correspondence from the NSW Legal Services Commissioner. In reaching this conclusion, I take into account that while the Council is not bound by the NSW Model Litigants Rules as it is not a government agency, it is bound to act in accordance with s 36(3) of the NCAT Act and must act in accordance with principles of procedural fairness (see AB v Law Society of New South Wales [2018] NSWSC 1975).
I accept, on the evidence before me, that counsel for the Council's submissions that documents relevant to each allegation in the complaint have been provided in the s 58(1) bundle, appear to have merit. The documents appear to be the documents considered by the Council to be relevant to the complaint as required by s 58(1)(b) of the ADR Act. It is the allegations particularised in the Complaint dated 20 October 2020 which the Tribunal must determine. Documents, including file notes and emails of officers conducting the investigation, do not, having regard to the allegations the Tribunal must determine, appear to have the necessary degree of relevance. The first two allegations against the solicitor which require determination are squarely based on three Facebook posts (which are not denied by the solicitor), his correspondence with Ms Clemmett and others including the solicitor identified as NB in the reasons, and his correspondence with the Council. These documents are all included in the s 58(1)(b) documents.
Notwithstanding my conclusions above, I find there is room for some lingering doubt that the Council has given consideration to the relevance for the purpose of the review of all documents it holds in circumstances where it has not, according to Mr Lean's affidavit, examined all documents it holds. This doubt exists notwithstanding that some files may be purely administrative and relate to matters such as practising certificate applications. The failure of the Council to consider all documents of and concerning the solicitor to determine the relevance, if any, to the review supports counsel for the solicitor's contention that an order extending time under s 58(3) should be made. In reaching this conclusion, I am conscious of the Council's obligation to provide procedural fairness to the solicitor by ensuring it does not take an overly narrow or prescriptive review of the documents it provides pursuant to s 58(1)(b).
While the solicitor has not identified with specificity any document he asserts should be disclosed, I accept that it is unrealistic to expect him to do so in circumstances where he cannot identify any particular document because he is unaware of what relevant documents, if any, the Council retain. But he does make it clear that he seeks disclosure of any document that was before the Council in making its determination. I accept that documents including file notes and emails produced for the investigation phase may not be relevant because they lack the relevant forensic purpose.
On balance, notwithstanding the range of documents provided to date by the Council and their apparent relevance to the review, I conclude the solicitor's application has merit. The lack of examination of the files referred to in par 18 of Mr Lean's affidavit supports the solicitor's claim that time should be extended under s 58(3) of the ADR Act for the Council to examine the relevant files and to provide additional documents, if any, having the necessary degree of relevance to the review.

(3) Is the application under s 58(4) premature? Should an application, if any, under this provision be made at the hearing of the review?

I have already noted that criticism is raised by the solicitor on the basis that the Council has not taken the time and trouble to examine the documents identified in par 18 of Mr Lean's affidavit. I also note that the Council are critical of the solicitor failing to identify any document said to be relevant that the Council has not disclosed.
The Council's submissions refer to it being a small organisation inferring it does not have the resources to undertake extensive searches. I do not accept that is a legitimate basis for refusing to conduct the searches if it is appropriate to do so. However, it appears to me, having regard to the actual terms of the schedule to the Summons which I discuss below, that the solicitor's application is focused on the investigation phase which led to the allegations particularised in the complaint against him. At this point, and having regard to the documents provided which address the allegations, I cannot detect a legitimate forensic purpose for documents relevant to the investigation phase being before the Tribunal.
However, If I am wrong about that, and during the course of the review hearing the Tribunal or the President determines that any document produced in the investigation phase which has not been produced is relevant, s 58(4) provides a remedy to the solicitor. I accept the Council's submission that s 58(4) provides a "safety valve" should reliance on that provision be deemed appropriate by the Tribunal.

(4) If the application under s 58 is dismissed or stood over to the hearing of the Areview should the Council be required to produce documents sought in the schedule to the Summons? This question requires consideration of:

(a) is there a legitimate forensic purpose for the documents sought to be produced or is the Summons a "fishing" expedition and/or is the Summons oppressive ?

(b) Does s 468 of the Uniform Law mean the Council is not compellable and is not required to produce the documents sought?

Grounds relied on by the Council

In its application to set aside the Summons the Council relies on the following grounds: "(1) The Summons seeks documents which have no legitimate forensic purpose in the context of these proceedings. (2) The Summons is directed to the Law Society, which by section 468 of the Legal Profession Uniform Law (NSW), is not compellable to produce documents sought by the Summons. (3) The terms of the Summons are unreasonably broad and oppressive."
As noted above, counsel for the solicitor only sought to rely on the Summons as a "last resort" in the event the s 58 application was unsuccessful. However, as no consent was provided to the orders sought by the Council, I will briefly consider whether the Summons should be set aside.
The schedule to the Summons seeks that the Council produce: "1. All documents contained in the file created, maintained and held by the Respondent with respect to the Applicant, relating to and or incidental to the complaint, the investigation and the decision made by the Respondent on 24 May 2021 with respect to the Applicant. 2. All documents that were put to the Respondent for consideration prior to making the decision on 24 May 2021. In this schedule, unless otherwise indicated: "The Respondent" means The Law Society of New South Wales. "Document(s)" has the meaning provided in the Evidence Act 1995 (NSW) and includes originals and/or copies and/or drafts of letters, emails, facsimiles, memoranda, reports, board papers, minutes of meetings, determinations, notes, file notes, diary notes, accounts, quotations, business cards, policy and procedure manuals and any other written material (including documents stored in computerised form or electronic form) in your possession, custody, or control."

The Council

The Council's submissions commence by noting the three bases on which reliance is placed to set aside the Summons and which I have identified earlier in these reasons.
It is submitted the bases on which the solicitor relies to seek production of documents (procedural fairness, improper purpose and irrationality) are matters which would be relevant to an application for judicial review but that, in this application, the Tribunal is undertaking a fundamentally different task.
In summary, it is submitted that the documents sought are ones directed to identifying some "challengeable error" in the decision making process that resulted "in the original Decision; being a line of inquiry which is entirely irrelevant to the nature of the review to be conducted" (submissions, par 17).
The submissions, at par 19, go on to advance the argument that, irrespective of a lack of legitimate forensic purpose, "the Summons must be set aside on the basis that it seeks to compel production of documents by a non-compellable person".
Reliance is placed by the Council on s 468(1) of the Uniform Law. Paragraph 22 of the submissions refer to the decision of the now repealed Administrative Decisions Tribunal dealing with a review application under the Legal Profession Act 2004 (NSW) (repealed) in Donaghy v Council of the Law Society of New South Wales (No 1) [2012] NSWADT 185 at [17]-[18]. It is pointed out that the provision there under consideration is one in identical terms to s 468 of the Uniform Law.
The submissions finally challenge the Summons on the basis that it is unreasonably broad and oppressive in scope by reference to the decision of Smithers J in Lucas Industries v Hewitt (1978) 18 ALR 555 at 570. The submissions point out the broad nature of the documents sought and the fact that the documents would include matters such as the solicitor's practising certificate applications and documents subject to legal professional privilege which may require redaction.

The solicitor

Counsel for the solicitor's submissions very fairly commence with the acknowledgment that if a Summons is not issued for a legitimate forensic purpose it will be an abuse of process by reference to the well-known authority of National Employers' Mutual General Insurance Association Ltd v Waind & Hill (1978) 1 NSWLR 372.
As noted above, Counsel for the solicitor made it plain at the hearing that reliance on the Summons was a "last resort" and the primary application was to extend time to comply with s 58(1)(b).
As I discern the arguments advanced on behalf of the solicitor, they are that the documents sought have "apparent relevance" on the basis that "it is reasonably likely to add relevant evidence in the proceedings" (submissions par 8.3).

Abuse of process ground

I commence by noting the position very fairly taken by Counsel for the solicitor before me, namely that reliance on the Summons is a "last resort".
Dealing first with par 2 of the Summons, prima facie, it appears likely from the examination of the s 58 bundle that all documents which were before the Council relevant to the allegations have been produced. If further documents in the documents not yet examined are considered relevant, they will be produced in the time extended under s 58(3) of the ADR Act.
Second, I consider, particularly having regard to the submissions in respect of the Facebook Summons which I discuss below, that the solicitor wishes to challenge the investigation process which led to the complaints the subject of the review and in particular to address any improper motive by Ms Clemmett about making a complaint to the Legal Services Commissioner. But that is not the issue to be determined in the review. What is to be determined in the review is articulated in the submissions of the Council, namely whether a finding of unsatisfactory professional conduct is open on the seven allegations particularised in the complaint. This application is not directed at the NSW Legal Services Commissioner's decision to reject the solicitor's complaints about Ms Clemmett and Ms McIntrye, namely, that they breached the conduct rules and defamed him. Nor is it about other Facebook posts. I pause here to note many Facebook posts are included in the s 58(1)(b) documents.
I am not satisfied the solicitor has established a legitimate forensic basis for the Summons, nor can I be satisfied that it is reasonably likely that documents relating to the investigation have relevance or will throw light on the review proceedings. In reaching this conclusion, I have taken into account the nature and extent of the material disclosed in the s 58 documents, and in particular the statutory obligations imposed on the Council under s 58(1)(b) of the ADR Act and that an order will be made extending time for the Council to provide further documents, if any, after examination of the files referred to in Mr Lean's affidavit.
I also accept that the documents sought by the Summons are very wide and potentially not relevant to the review application. Having regard to the wide nature of the Summons, I conclude it is oppressive. The proper application is the application now agitated by counsel for the solicitor under s 58(3) of the ADR Act.

Not compellable ground

Section 468(1) of the Uniform Law provides as follows: 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.
The solicitor's submissions assert that s 58(1)(b) modifies or overrides s 468(1) of the Uniform Law. It is also submitted that I should not follow the former Tribunal's decision in Donaghy.
The Council's submission at pars 22 and 23 refer to both the decision in Donaghy and reliance in that decision on Council for the New South Wales Bar Association v Archer (2008) 72 NSWLR 236; [2008] NSWCA 164. In Archer the Court of Appeal stresses a decision-maker relying on s 602 of the Legal Profession Act (which I note is in the same terms as s 468) must ensure it does not deny the other party procedural fairness.
The Council submits "that the Tribunal would not be concerned with contentions designed to impugn the decision-making process leading to the original decision under review, rather than assist the Tribunal in reaching its own determination of the correct and preferable findings".
Because of its submissions on the first two bases to set aside the Summons, it is submitted by counsel for the Council that I do not need to determine the compellability issue. I find merit in that submission.

Is it appropriate for the Tribunal to issue a Summons directed to Facebook?

On 16 August 2021 the solicitor filed an application for a Summons to be issued to the Proper Officer, Facebook Australia. The Schedule to the summons seeks: "All documents in the custody, possession and control of Facebook, including every post, message, comment and threads of comment made, posted, shared, managed or controlled by Sharna Clemmett on her Facebook page of the name 'Sharna Clemmett' from Sydney and the Lawyer Mums Australia page of which she is an administrator, that states, mentions and or refers to 'Nathan Buckley' and or G & B Lawyers from the period commencing 18 Jly 2020 to 16 August 2021 ("Period"). This includes all documents that have been deleted throughout the Period."
The Schedule defines "Documents" in the same terms as in the Summons to the Council which I have set out earlier in these reasons.
The solicitor relies on his affidavit affirmed on 30 August 2021 in support of his application. He refers at par 4 to Ms Clemmett being "the main witness with respect to the complaint against me by Ms Clemmett". He deposes at par 5 that Ms Clemmett "promotes COVID-19 vaccinations by stating that 'Vaccines save lives' and that 'disinformation is deadly'".
Thereafter the solicitor deposes "it is my belief that Ms Clemmett's own personal bias and views drove her to lodge the complaint against me with the Respondent". He goes on to depose: "I further believe that Ms Clemmett's complaint and statutory declaration provided to the Respondent amounts to biased evidence on the part of Ms Clemmett. It is this biased evidence that resulted in the decision of the Respondent being made on 24 May 2021."
At par 9 the solicitor deposes that he requests that the Tribunal issue the Summons to Facebook "so that I can obtain further evidence to prove that the entirety of Ms Clemmett's evidence is biased and should be disregard in its entirety for the purpose of this proceeding".
No oral submissions were addressed to me by the solicitor's counsel in respect of the Summons. However, at par 3 of the written submissions it is asserted the Summons serves a legitimate forensic purpose "of pursuing a line of inquiry relating to the veracity of one of the complaints which led to the sanction imposed by the Respondent". It is further submitted that the solicitor should be "afforded an opportunity to test the underlying factual material leading to the complaint, in order to present his case and advance submissions on what is the correct or preferable decision". It is submitted that the Summons "is reasonably narrow and targeted".

Consideration

It is to be remembered that the allegations against the solicitor relate principally to his three Facebook posts, and his correspondence with Ms Clemmett, Ms McIntyre and the solicitor identified as NB in the Council's reasons.
I do not find that there is a legitimate forensic purpose associated with or relevant to the administrative review application which justifies the issue of the Summons for documents in the terms sought in the Schedule. The solicitor's own Facebook posts are at the heart of the complaint. Further, and of relevance to rejecting the application is the fact that the solicitor made complaints to the NSW Legal Services Commissioner about both Ms Clemmett and Ms McIntyre which were dismissed. The solicitor's rationale for the issue of the Summons does not have the necessary adjectival relevance to the subject of the review nor do I find it is "on the cards" that the material sought in the Summons will throw light on matters the subject of the review. I am satisfied the application to issue the Summons should be dismissed.

Conclusions

For the reasons articulated above, I am satisfied that it is probable that the Council has considered and produced documents relevant to the review application. But to ensure procedural fairness to the solicitor, I find that time should be extended for compliance with s 58(1)(b) by the Council to examine the documents referred to in par 18 of Mr Lean's affidavit and to produce further documents, if any, considered relevant by 29 January 2022. Further, I note that if any other document of relevance is identified at or before the hearing, an order may be made for the production of documents under s 58(4) of the ADR Act.
I have determined that the Summons to the Council lacks a legitimate forensic purpose, is oppressive and consequently should be set aside. I have made a similar determination of lack of forensic purpose in respect of the Summons sought to be issued to Facebook. Consequently the Tribunal must decline the request to issue that Summons.

Costs

Counsel for the Council in their submissions seeks an order for costs of the application to set aside the Summons on the basis of "special circumstances" existing which displaces the usual position under s 60 of the NCAT Act. The special circumstances relied on are that Mr Lean's affidavit discloses that he sought to "resolve its objection to the Summons directly with [the solicitor]" but that the solicitor was "unwilling to engage with the Law Society's objection" and "insisted that this application be filed".
It is further submitted that the solicitor sought a vast array of documents that are irrelevant to the proceedings and this constitutes "special circumstances' which warrant a costs order under s 60(2) of the NCAT Act.
Counsel for the solicitor submits that each of the Council's submissions in respect of costs are overtaken by the obligations under s 58(1)(b) of the ADR Act.
In par 55 of its submissions in reply, the Council notes it maintains its application for costs and explains that the Council wishes to be heard on the papers (and adduce evidence) in relation to its application for costs.
In light of the Council's written submissions, I will provide a timetable for the provision of written submissions on costs of the Set Aside application and these proceedings.

Orders 1. The time for compliance by the Council of the Law Society of New South Wales with s 58(1)(b) of the Administrative Decisions Review Act 1997 (NSW) is extended to 29 January 2022. 2. The Summons issued on 20 July 2021 addressed to the Council of the Law Society of New South Wales is set aside. 3. The application for the issue of a Summons addressed to the Proper Officer, Facebook Australia is dismissed. 4. The Council of the Law Society of New South Wales may file and serve any written submissions in respect of costs by 17 December 2021. 5. Mr Nathan Buckley may file and serve any written submissions in respect of costs by 29 January 2022. 6. The Council of the Law Society of New South Wales may file and serve written submissions in reply in respect of costs by 4 February 2022. 7. The matter is listed for directions in the Legal Services List on 2 February 2022 at 9.30am to fix hearing dates for the review.

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 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: 03 December 2021

Legal Profession Act 2004(NSW)

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