Buckley v Council of the Law Society of New South Wales

Catchwords

[1999] FCA 1151 Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd (1999) 95 FCR 292[1960] HCA 40 Comcare v Banerji (2019) 267 CLR 373[2019] HCA 23 Commonwealth v AJL20 (2021) 391 ALR 562[2021] HCA 21 Craig v South Australia (1995) 184 CLR 163[1995] HCA 58 Cunliffe v Commonwealth (1994) 182 CLR 272[1994] HCA 44 Dranichnikov v Minister for Immigration and Multicultural & Indigenous Affairs (2003) 197 ALR 389Henry v Hazzard (2021) 362 FLR 113[2021] NSWSC 1320 Kirk v Industrial Court of New South Wales (2010) 239 CLR 531[2010] HCA 1 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520[1997] HCA 25 LibertyWorks Inc v Commonwealth of Australia (2021) 391 ALR 188[2021] HCA 18 McCloy v New South Wales (2015) 257 CLR 178[2015] HCA 34 McKerlie v RateIt Australia Pty Ltd [2020] FCA 1112 MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585[2015] FCA 1391 Navazi v New South Wales Land and Housing Corporation [2015] NSWCA 308 New South Wales Bar Association v Stevens (2003) 52 ATR 602Ex parte Taylor (2001) 207 CLR 391

Judgment (13 paragraphs)

[1]

Background

Briefly (noting that there is no challenge by the plaintiff to the merits of the Decision - for which it would have been necessary for the plaintiff to exercise his statutory right of appeal from the Decision - see below) it is relevant to note by way of background that the plaintiff acted for a group of plaintiffs (the Henry plaintiffs) in proceedings in this Court challenging the validity of public health orders made during the COVID-19 pandemic. Those proceedings were heard by Beech-Jones CJ at CL, who dismissed the plaintiffs' application (see Kassam v Hazzard; Henry v Hazzard (2021) 362 FLR 113; [2021] NSWSC 1320 (Kassam/Henry Judgment)).
Following that decision, the plaintiff made (and does not dispute making) a number of public statements, as well as posting comments on the Facebook and Twitter pages of his law firm (G&B Lawyers) which were highly critical of the decision (and it is conceded by the plaintiff that there is no issue in respect of those comments being discourteous and not in accordance with a solicitor's obligations of professional courtesy - see T 12.13-47). Certain of those comments also (on their face) appear to incite or encourage (or at the very least do not discourage) the commission of criminal conduct (though the plaintiff's submission to the defendant was that these comments were "tongue-in-cheek" or facetious).
It appears, from the material before me, that the plaintiff was already the subject of regulatory investigation or discipline in relation to earlier conduct by him responding to measures taken by various governments during the pandemic (see the particulars set out in the Council's s 83 notice set out below, not all of which are here pressed; and the plaintiff's submissions to the Council of 15 October 2021, which were incorporated by reference into the response the plaintiff sent to the s 83 notice in respect of the conduct the subject of the suspension notice). I raise this only by way of background as it provides relevant context for the purposes of the present application.
On 20 October 2021, the Council issued to the plaintiff a notice pursuant to s 83 of the Uniform Law (the s 83 notice), notifying him that the Council was proposing to suspend his practising certificate on the ground specified in s 82(1)(d) for a period ending 30 June 2022. The grounds for the proposed action were set out in the s 83 notice and the plaintiff was invited to respond in writing to the Council as to why the proposed action should not be taken, by no later than 4.00pm on 5 November 2021.
The four grounds specified in the notice are set out in full in the schedule to these reasons. In summary, the grounds for the proposed action set out in the s 83 notice were that the plaintiff is unable to fulfil the inherent requirements of an Australian legal practitioner as he does not have the ability to discharge: 1. per ground 1: his paramount duty to the administration of justice; 2. per ground 2: his duty not to engage in conduct which is likely to a material degree to be prejudicial to, or diminish confidence in, the administration of justice; 3. per ground 3: his duty not to engage in conduct which is likely to a material degree to bring the profession into disrepute; and 4. per ground 4: his duty to be honest and courteous in all dealings in the course of legal practice.
For each of grounds 1-3, the same particulars were relied upon (as set out in relation to ground 1); for ground 4 only the particulars at (d)-(g) in respect of ground 1 were repeated. In summary, the conduct set out in the particulars to ground 1 was as follows: 1. the making of public statements in about July 2020 on social media (G&B lawyers Facebook page) encouraging Victorians to breach public health and wellbeing laws requiring the wearing of masks or to take part in public protests, for which conduct a fine could be imposed, and then to challenge that fine in court (on the basis that it would be "too expensive" for the Government to oppose any challenge); 2. the making in about August 2021 of a public statement (again on social media) encouraging residents of certain Local Government Areas in NSW to breach laws by deliberately providing false information to the Australian Securities and Investments Commission for the purpose of avoiding the effect of applicable public health orders; 3. the making in about August 2021 of a public statement on G&B Lawyers Twitter account, encouraging aged care workers to breach laws by not complying with the requirement to receive a COVID-19 vaccination; 4. the making in about October 2021 (by posts on G&B Lawyers' Twitter and Facebook pages) of public statements in relation to the judgment of Beech-Jones CJ at CL in the Kassam/Henry Judgment, being a proceeding in which G&B Lawyers (a law practice of which the plaintiff was a principal) acted as solicitors for the Henry plaintiffs; 5. in about October 2021, the engaging in other conduct on the Twitter and Facebook pages for G&B Lawyers in connection with the Kassam/Henry Judgment, which included responding to comments made by followers of those pages, of which conduct it is said that - see particular (g): (i) it did not honestly describe the effect of the judgment; (ii) the plaintiff made statements that were likely to mislead persons as to the effect of the judgment; (iii) the plaintiff made statements that were likely to undermine confidence in the administration of justice; and/or (iv) made statements that were likely to impair the authority of Beech-Jones CJ at CL and this Court; and 6. in about October 2021, engaging in other conduct on the Twitter and Facebook pages for G&B Lawyers in relation to the Kassam/Henry Judgment (of which conduct the particulars at (g) are repeated) and which it is said - see particular (h), encouraged, or at least publicly condoned, the making of public statements which were likely to impair the authority of Beech-Jones CJ at CL and this Court, and/or to undermine confidence in the administration of justice.
Particular (g), as noted above, applied to the conduct particularised at (e) and (f).
Particular (h) (referring therein to the G&B Lawyers Twitter Page) provided that, by reason of the circumstances set out at (i)-(vi), the plaintiff engaged in conduct which encouraged, or at least publicly condoned, the making of public statements which were likely to impair the authority of Beech-Jones CJ at CL and this Court, and/or to undermine confidence in the administration of justice.
Particular (i) was to similar effect as particular (h) but referred therein to the G&B Lawyers Facebook Page.
As noted, the plaintiff was invited to respond in writing by 4.00pm on 5 November 2021 as to why the proposed action (i.e., suspension of his practising certificate for a period ending 30 June 2022) should not be taken.
By email sent on 3 November 2021 at 11.53am (headed "Without prejudice save as to costs" and addressed to the Director, Legal Regulation), the plaintiff responded to the s 83 notice.
As to ground 1, the plaintiff denied the proposition that he was unable to fulfil the inherent requirements of an Australian legal practitioner and further denied the proposition that he did not have the ability to discharge the paramount duty to the administration of justice. As to the particulars to ground 1, the plaintiff said, in respect of the matter at (a), that this had already been dealt with and was the subject to a reprimand that was the subject of a review at the NSW Civil and Administrative Tribunal and therefore that these particulars "amount to double jeopardy". In relation to particulars (b) and (c), the plaintiff repeated submissions earlier made on 15 October 2021. As to the particulars at (d)-(i), the plaintiff denied the allegations made and went on to say: Posts made on social media are not made in the course of legal practice. None of the comments can be treated or considered as legal advice or as some case analysis. It is social media. Comments made are facetious or tongue in cheek.
As to grounds 2-3 of the s 83 notice, the plaintiff's response was "as per above, denied".
The email then went on, under a further heading "Without prejudice save as to costs - offer to resolve all matters", to make an offer on a without admissions basis, stated to be open and capable of acceptance for 7 days and to close at 5.00pm on 10 November 2021, in the following terms: … I am prepared to: (a) cease utilising social media accounts in the name of 'G&B Lawyers' both on Facebook and Twitter; (b) close down all crowdfunding campaigns; (c) undertake a legal ethics course with a 50% pass mark; and (d) give an undertaking to the NSW Law Society to the effect as described in (a) to (c) above; but only if you cease all regulatory investigations involving me and G&B Lawyers and that you revoke the section 371 notice issued on 26 October 2021.
It is thus immediately apparent that the without prejudice offer extended to matters beyond the scope of the s 83 notice (insofar as it referred to separate regulatory investigations and a separate compulsive notice requiring the plaintiff to produce documents under s 371 of the Uniform Law). The defendant also points out that this offer did not contemplate in terms the imposition of conditions on the plaintiff's practising certificate but, rather, proffered an undertaking to the Law Society in relation to the matters there stated.
The email also stated the plaintiff's intention (should the offer not be agreed and should the Council proceed with the suspension of the plaintiff's practising certificate) to commence judicial review proceedings to challenge such a suspension (interestingly, that intention was evidently formed before the Council had made the relevant Decision and hence, one would have thought, before any jurisdictional error could have been identified in relation to the then non-existent Decision). The email also stated that the plaintiff would seek to have the s 371 notice issued on 26 October 2021 set aside in this Court.
The response to this email by the Director, Legal Regulation, sent by email at 4.36pm on 3 November 2021, was to note that the s 83 notice had been issued by the Council and that any decision to be made pursuant to s 82(1)(d) of the Uniform Law concerning the alleged conduct would be a matter for the Council. In those circumstances, the Director advised that he could not, and did not, accept the plaintiff's offer. The Director noted that the Council would not meet to consider any submissions in response to the s 83 notice until after expiry of the deadline specified in the notice (by which he must have been referring to the without prejudice offer, having regard to the deadline there set out). Further the email stated that: As the Offer relates to matters beyond the s 83 Notice (and is expressed to be "without prejudice save as to costs"), I do not propose to put it before the Council as the response made by you (under s 83(c), s 84 of the Uniform Law) as to why the proposed action of suspension should not be taken. However, as set out in the s 83 Notice, you have the opportunity to provide a response in writing to the Council as to why the proposed action of suspension should not be taken by 4pm on Friday 5 November 2021. As such, if you wish to provide such a response that will be put before the Council in relation to the proposed action, you have until that time to do so. The Council will then consider any written response you provide before making any decision under s 82(1)(d).
The plaintiff then sent an email on 3 November 2021 at 4.54pm, addressed to the Director, (this time not headed "without prejudice") which repeated the earlier response as to Grounds 1-4 of the s 83 notice and which stated that there were no reasons to suspend the plaintiff's practising certificate, again advising his intention to commence judicial review proceedings if the Council proceeded with the suspension. (Again, this email incorporated by reference submissions that had earlier been made by the plaintiff in response to an earlier disciplinary complaint made against him.) It is noted by the defendant that there is no allegation made by the plaintiff as to any denial of procedural fairness nor is there any allegation that there was a failure to take the plaintiff's submissions into account.
The 15 October 2021 submissions (to which reference was made by the plaintiff in his response to the s 83 notice) were exhibited to his affidavit on the present application and were clearly before the Council when it made its Decision (as evidenced by the reasons for the Decision - see, for example, [27] of the reasons which summarised the relevant part of the earlier submissions relied upon in answer to particular (b)). Those submissions related to an earlier complaint. There was, however, some overlap in the allegations to which the plaintiff there responded (hence, no doubt, his incorporation of the response thereto when responding to the s 83 notice).
In its meeting on 12 November 2021, the Council resolved to suspend the plaintiff's practising certificate for a period ending 30 June 2022 pursuant to s 82(1)(d) of the Uniform Law on the ground that it reasonably believed the plaintiff was unable to fulfil the inherent requirements of an Australian legal practitioner. The Council's reasons for the suspension were set out in Attachment A to a notice dated 12 November 2021 issued pursuant to ss 81, 84 and 464 of the Uniform Law. Those reasons clearly identified the relevant legislation and set out the principles that the Council considered relevant. The reasons made express reference to the fact that a less onerous form of action relative to a suspension is the imposition of conditions (see at [7]); and included the statement that: 8. In this regard, the Council is mindful of the observations made by Beech-Jones J in Berger v Council of the Law Society of NSW [2013] NSWSC 1080 at [20], [138] regarding the consideration of alternative actions that are available to the Council. … noting that in Berger v Council of the Law Society (NSW) [2013] NSWSC 1080 his Honour was dealing with a predecessor provision which used the words "necessary … to … suspend" and that his Honour had indicated that the Court might not be satisfied that it was necessary to suspend where there was scope to impose conditions falling short of suspension.
The Council also noted (at [9]) that issues involving professional rights to practise concerned the protection of the public, which meant that the public interest was always entitled to significant weight (see at [9], citing New South Wales Bar Association v Stevens (2003) 52 ATR 602; [2003] NSWCA 95 at [104]).
From [10]-[15], the Council addressed the inherent requirements of an Australian legal practitioner; at [16]-[17] noted that the Council had issued the s 83 notice and invited the plaintiff to respond thereto; and that the plaintiff had done so, in summary denying each ground. The Council then addressed (from [19]) each of the four grounds set out in the s 83 notice and in so doing set out its conclusions in relation to each of the particulars to ground 1. Relevantly, for present purposes, although the Council did not accept the plaintiff's double jeopardy submission in relation to particular (a), the Council said that there was no need presently to rely on it as the plaintiff's other conduct provided a sufficient basis to take the proposed action against him.
The Council concluded that the conduct the subject of particulars (b) and (c) had been established; that the conduct (of making public statements encouraging others to breach laws) was contrary to a solicitor's duty to the administration of justice; that by engaging in that conduct the plaintiff had demonstrated that he does not have the ability to discharge his paramount duty to the administration of justice; and that his response and submissions did not demonstrate any understanding or insight into the fact that encouraging others to breach laws was contrary to his paramount duty to the administration of justice (see at [26]-[38]).
As to the conduct the subject of particulars (d)-(i) (which the Council characterised as relating to two broad matters - the conduct in making public statements in relation to the judgment and the conduct in encouraging, or publicly condoning the making of certain public statements by others), the Council considered this from [39], noting that the plaintiff did not dispute that he made the relevant posts and comments. The Council concluded that the plaintiff's public statements as to the Kassem/Henry Judgment did not honestly or accurately characterise the effect of the judgment and were likely to mislead persons as to its effect (see at [45]); and that further statements by the plaintiff (see at [46]) were likely to undermine confidence in the administration of justice and to impair the authority of his Honour.
The Council addressed (but did not accept) the submissions made to the effect that the conduct on social media was not made in the course of legal practice; that the posts and comments did not take the form of formal advice or case analysis; and rejected the proposition that they were properly characterised as facetious or tongue-in-cheek. The Council concluded (see at [52] and [54]) that the particulars at (d)-(g) were made out. The Council accepted at [56] that judgments delivered by the court may be the subject of "fair and even robust criticism" but said that such criticism should be based on an honest (and, as much as possible, accurate) statement of the findings and legal effect of pronouncements made by the court, particularly where the criticism was advanced by a legal practitioner in whose analysis and opinion the public was entitled to place confidence. The Council said that it is contrary to a solicitor's duty to the administration of justice to make public statements about judicial determinations which are inaccurate and misleading "and, as such, likely to produce or encourage misgivings about the integrity, propriety or impartiality of the judicial officer or the relevant court" (see at [56]).
A similar conclusion was reached (at [57]) that by engaging in the conduct in particulars (d)-(g), the plaintiff had demonstrated that he does not have the ability to discharge his paramount duty to the administration of justice; and that his response did not demonstrate any understanding or insight into the fact that this conduct was contrary to his paramount duty to the administration of justice.
Particulars (h) and (i) were dealt with from [58] of the reasons, the Council concluding at [61] that neither the posts on social media the subject of these particulars nor the adverse comments that followed fell within the ambit of fair and legitimate criticism of the judgment; and that the adverse comments suggested, without any proper basis, that amongst other things the judgment was motivated by an improper purpose. It was noted that the plaintiff did not take action to remove, delete or conceal the adverse comments and thereby allowed them to remain publicly available on his law firm's social media accounts and that this, together with the matters referred to at [60], was a form of encouragement, or at least a public condoning of the making of statements which were likely to impair the authority of Beech-Jones CJ at CL and the Court and to undermine confidence in the administration of justice. The Council reiterated its conclusions as to the submissions that the conduct on social media was not done in the course of legal practice; did not take the form of legal advice or case analysis; and was facetious or tongue-in-cheek (see [63]).
The conclusion as to particulars (h) and (i) was set out from [64]-[67] and, again, the Council considered that the complaint was made good.
The reasons then addressed each of grounds 2, 3 and 4, concluding in each case that the conduct had been engaged in and that it demonstrated an inability to discharge the relevant duties of the legal practitioner (and that his response did not demonstrate any understanding or insight in relation to the fact that his conduct was contrary to the relevant duty).
The Council's ultimate conclusion (at [93]) was in terms that enlivened the application of the power to suspend the plaintiff's practising certificate and affirmatively stated the Council's reasonable belief that the plaintiff was unable to meet the inherent requirements of an Australian Legal Practitioner because the plaintiff was unable to discharge the following duties: 1. the paramount duty to the administration of justice; 2. the duty not to engage in conduct which is likely to a material degree to be prejudicial to, or diminish confidence in, the administration of justice; 3. the duty not to engage in conduct which is likely to a material degree to bring the profession into disrepute; and 4. the duty to be honest and courteous in all dealings in the course of legal practice.
At [94], the Council stated that, in his response, the plaintiff did not offer that any specified conditions be imposed on his practising certificate as a less onerous action (it will be recalled that the without prejudice offer was not put before the Council and that it proposed an undertaking - not conditions on the plaintiff's practising certificate as such; and was conditional on resolution of other matters). Further, having regard to the matters set out in r 16 of the Legal Profession Uniform Rules 2015 (NSW) (Uniform Rules), the Council did not consider that the imposition of any available condition would appropriately address the deficiencies exhibited by the solicitor's conduct concerning his ability to meet the inherent requirements of practice. Hence the Decision that the Council made for the suspension of the plaintiff's practising certificate for a period ending on 30 June 2022.

[2]

The implied freedom of political communication

At the outset, it is worthwhile setting out the principles applicable to the implied freedom of political communication, insofar as the plaintiff's submissions appeared to misapprehend the nature of that freedom. Consistently throughout his submissions (both oral and written) the plaintiff referred to the implied freedom of political communication as "the freedom of speech" seemingly referring to the plaintiff's personal right to exercise such freedom. Moreover, the plaintiff's submissions appeared to conflate the implied freedom as a touchstone of constitutional validity of legislation (and the tests applicable to the determination of such (in)validity) with the principles of administrative law relevant to determining whether an administrative decision is ultra vires.
In McCloy at [2] French CJ, Kiefel, Bell and Keane JJ explained the implied freedom of political communication thus: … The freedom under the Australian Constitution is a qualified limitation on legislative power implied in order to ensure that the people of the Commonwealth may "exercise a free and informed choice as electors". It is not an absolute freedom. It may be subject to legislative restrictions serving a legitimate purpose compatible with the system of representative government for which the Constitution provides, where the extent of the burden can be justified as suitable, necessary and adequate, having regard to the purpose of those restrictions. …
At [30] the plurality went on to say: It has repeatedly been explained, most recently in Unions NSW [(2013) 252 CLR 530 at 551], that the freedom is not a personal right. In ACTV [(1992) 177 CLR 106], Brennan J said that "the freedom cannot be understood as a personal right the scope of which must be ascertained in order to discover what is left for legislative regulation". The freedom is best understood as a constitutional restriction on legislative power and the question is more generally as to the effect that the impugned legislation has upon the freedom.
At [119]-[120] of McCloy, Gageler J distinguished the implied freedom of political communication from the freedom of speech simpliciter: 119. The freedom implied as a matter of necessity does not go beyond freedom of political communication. The freedom exists to protect: systemic integrity, not personal liberty; communication, not expression; and political communication, not communication in general. The protection "creates an area of immunity from legal control" as a consequence of its operation and not as a reason for its existence. 120. That limitation in its scope immediately distinguishes the implied freedom of political communication from express guarantees of freedom of speech or expression in many other constitutional systems. …

[3]

Plaintiff's submissions

I have summarised above the twofold nature of the plaintiff's submissions.
The plaintiff outlined his understanding of the concept of "jurisdictional error", by reference to cases such as Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58 (Craig), where the High Court (at 179) said that: … If … an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it. The plaintiff also relied on Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1.
The plaintiff says that, for tribunals and administrative decision-makers, the errors of law which would constitute jurisdictional errors of law include situations where the decision-maker: identifies a wrong issue; asks itself a wrong question; ignores relevant material; relies on irrelevant material; makes an erroneous finding; or reaches a mistaken conclusion.
As adverted to above, the principal basis on which the plaintiff submits that there has been jurisdictional error in the present case is the contention that the defendant misinterpreted or failed to interpret the relevant legislative restriction on the implied freedom of political communication in s 82(1)(d) of the Uniform Law, "namely [that it] suspend[ed] a lawyer's practising certificate, [without] having proper regard to the principles of freedom of speech as proffered by the High Court in Lange and McCloy [McCloy v New South Wales (2015) 257 CLR 178; [2015] HCA 34 (McCloy)]". The plaintiff says that the defendant consequently misinterpreted, misapplied and/or failed properly to apply the relevant provisions of the Uniform Law, by failing to apply "proportionality testing" to the interpretation and application of the relevant legislative restriction on the implied freedom of political communication, being those provisions of the Uniform Law which facilitate the suspension of legal practitioners from practice (in this case, s 82(1)(d)). It is submitted that the Council thereby reached an erroneous conclusion. The plaintiff's submission is, in effect, that the implied freedom of political communication, and thus the requirement that any burden on that freedom be proportionate, is a mandatory consideration when exercising the discretion pursuant to s 82(1)(d). There is. however, no ground in the summons that expressly alleges that the implied freedom and the requirement of proportionality were mandatory relevant considerations.

[4]

Defendant's submissions

Insofar as the plaintiff contends that, in exercising its powers under s 82(1)(d) of the Uniform Law, the Council was required to apply the test of proportionality, as described in McCloy, the defendant notes that there is no challenge to the validity of s 82(1)(d) pursuant to which the Council acted; and hence that no constitutional issue arises; the issue being one of administrative law only (a proposition with which the plaintiff expressly agrees).
The defendant notes that the implied freedom of political communication "is a qualified limitation on legislative power implied in order to ensure that the people of the Commonwealth may 'exercise a free and informed choice as electors'" (McCloy at [2]; citing Lange at 560); and is not a personal right (McCloy at [30]; Comcare v Banerji (2019) 267 CLR 373; [2019] HCA 23 (Banerji) at [20]; LibertyWorks Inc v Commonwealth of Australia (2021) 391 ALR 188; [2021] HCA 18 at [44]). It is noted that, given that the implied freedom is a constitutional limitation on legislative power, it is concerned with the validity of legislation.
The defendant points out that the question of whether a particular application of a law, by the exercise of a power or discretion conferred by statute, is valid is not a question of constitutional law; rather, the question is whether the repository of power has complied with the statutory limits (citing Wotton at [22] per French CJ, Gummow, Hayne, Crennan and Bell JJ; Commonwealth v AJL20 (2021) 391 ALR 562; [2021] HCA 21 at [43] per Kiefel CJ, Gageler, Keane and Steward JJ (AJL20)).
It is noted that, in Banerji, the Court (having found that the relevant statutory provision was valid) rejected the submission that a decision was vitiated by the decision-maker's failure to take the implied freedom into account in determining the sanction to be imposed (it there being argued that the implied freedom was an essential mandatory consideration in the exercise of the discretion, with the failure to consider it therefore resulting in jurisdictional error) (see at [43]). The Court there said at [44]-[45]: [44] … [P]rovided a decision maker imposing a penalty … acts reasonably, and so in accordance with the legal requirement that the penalty be proportionate to the nature and gravity of the contravention and the personal circumstances of the employee, there can be no risk of infringement of the implied freedom. If a decision maker imposes a manifestly excessive penalty, it will be unlawful because the decision maker has acted unreasonably, not because of the decision maker's failure to turn his or her mind to, or failure expressly to mention, the implied freedom. [45] So to conclude does not mean that the implied freedom may not be a relevant consideration in the exercise of different discretions under other legislation. Whether it is may depend on the terms of the legislation and the nature and scope of the discretion… [Citations omitted]

[5]

Determination

It is relevant at the outset to note the limits of an application for judicial review for jurisdictional error (which have been comprehensively explained in Quinn v Commonwealth Director of Public Prosecutions [2021] NSWCA 294 per Leeming JA and by the majority of the Court of Appeal in Stanley v Director of Public Prosecutions (NSW) [2021] NSWCA 337 (Stanley)). It is worth setting out these principles at some length.
In Stanley, Bell P said: 34. Before Kirk, there was Craig (Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58). Decided just over 25 years ago, Craig ensured that, in Australian law, "jurisdictional error" remained conceptually discrete from other errors of law: at 177-180. This was by way of contrast with the position in England where, in Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, there had been an elision of jurisdictional error and error of law: see also O'Reilly v Mackman [1983] 2 AC 237 at 278; R v Hull University Visitor, Ex parte Page [1993] AC 682 at 701-702. 35. Whilst jurisdictional error may be described as an error of law, not every error of law will be "jurisdictional" or amount to jurisdictional error. This is not a matter of semantics. It is of cardinal importance. An error of law made within jurisdiction is not a jurisdictional error: Gibson v Director of Public Prosecutions (NSW) (No 2) [2021] NSWCA 218 at [31]-[33], [48]-[53], [64] (Gibson) citing Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v New South Wales (2014) 242 IR 338; [2014] NSWCA 116; Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 2) (2016) 95 NSWLR 157; [2016] NSWCA 379. 36. As Basten JA (with whom Bathurst CJ and Beazley P agreed) observed in Wang v Farkas (2014) 85 NSWLR 390; [2014] NSWCA 29 at [42], echoing the observations of Kirby P in Anderson set out above: "If every error of law constituted jurisdictional error, particularly in the case of a court such as the District Court, judicial review would transmogrify into an appeal for error of law, without regard to the requirement that certiorari is available only for error of law on the face of the record, and, in the case of a privative clause, only where an error is properly characterised as jurisdictional." To adopt an overly broad and open-ended conception of jurisdictional error would be illegitimately to emasculate the operation of privative clauses, denuding them of their intended effect, contrary to the requirements of purposive statutory construction. … 39. A "rigid taxonomy of jurisdictional error" was eschewed by the majority in Kirk (at [73]), which was also at pains to point out that the three examples of jurisdictional error instanced in Craig were "just that - examples". 40. A further dimension and level of complexity has arguably been added to the jurisprudence in this area by Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 at [31] (Hossain) where, building on the joint judgment of Gageler and Keane JJ in Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22; [2015] HCA 51 at [23]-[32], the concept of materiality was identified as relevant to a consideration of whether a jurisdictional error will result in invalidity; see also at [66] per Edelman J. In other words, it may now be necessary to speak of a tri-partite division between jurisdictional error the commission of which results in the invalidity of a decision or order; non-material jurisdictional error which does not; and error of law within jurisdiction (non-jurisdictional error). In the present case, no question of materiality arose. The debate was simply whether or not the error identified and relied upon by the Applicant was jurisdictional error. 41. Consistent with the notion that the class of what constitutes "jurisdictional error" continues to evolve and is not closed, in their sixth edition of Judicial Review of Administrative Action and Government Liability (2017, Lawbook Co) at [1.140] Professors Aronson, Groves and Weeks proffered a revised catalogue of 10 categories of jurisdictional error, with categories nine and 10 having been added to the list of eight categories compiled by Professor Aronson and referred to in Kirk at [71]. The revised list is as follows: "1. A mistaken assertion or denial of the very existence of jurisdiction. 2. A misapprehension or disregard of the nature or limits of the decision-maker's functions or powers. 3. Acting wholly or partly outside the general area of the decision-maker's jurisdiction, by entertaining issues or making the types of decisions or orders which are forbidden under any circumstances. An example would be a civil court trying a criminal charge. 4. Mistakes as to the existence of a jurisdictional fact or other requirement when the relevant Act treats that fact or requirement as something which must exist objectively as a condition precedent to the validity of the challenged decision. The fact or requirement is not such a condition precedent if it suffices for the decision-maker to come to its own opinion or satisfaction as to whether it exists. In that case, the opinion is challengeable only on the other grounds in this catalogue. 5. Disregarding relevant considerations or paying regard to irrelevant considerations, if the proper construction of the relevant Act is that such errors should result in invalidity. 6. Some, but not all, errors of law. In particular, if the decision-maker is an inferior or other legally qualified adjudicative body, the error is likely to be jurisdictional only if it amounts to a misconception of the nature of the function being performed or of the body's powers. 7. Acting in bad faith. 8. Breaching the hearing or bias rules of natural justice. 9. Making decisions that are seriously illogical, irrational or unreasonable. 10. Committing a mistake which justifies the conclusion that the repository of power simply failed to perform his or her job, even though the mistake may not easily fit within any of the above categories." 42. The scope for "terminological entanglement" was noticed by Kiefel CJ, Gageler and Keane JJ in Hossain at [17] and cases have continued to multiply as to what is and what is not jurisdictional error, with different views being taken at the intermediate appellate level: for recent examples in this Court, contrast Gibson at [31]-[33], [42] and Franklin v Director of Public Prosecutions (NSW) [2021] NSWCA 83; Wany and Quinn. See also Blissett v Director of Public Prosecutions (NSW) [2021] NSWCA 253 at [34]. 43. Such differences highlight the "difficulty of drawing a bright line between jurisdictional error and error in the exercise of jurisdiction" (Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at [163]) but, as cases such as the present illustrate, and as Leeming JA explained in Quinn, the drawing of the line may have immense practical significance. In that context, non-compliance with mandatory language in a statute is only the starting point of the analysis as to whether or not jurisdictional error has been committed. … 50. One question which arises is what the majority meant by the phrase "not ordinarily". In my view, although it is not entirely clear, their Honours may have here been allowing for the possibility that the conduct of the exercise entrusted to the Court, being an exercise within jurisdiction, could nonetheless amount to jurisdictional error if, for example, it was tainted by a denial of procedural fairness. That is not this case. Any other interpretation of the expression "not ordinarily" in the passage from Kirk would be to erode further the already limited certainty as to the meaning of the concept of "jurisdictional error".

[6]

Orders

For the above reasons, I make the following order: 1. Dismiss the plaintiff's amended summons with costs.

[7]

Grounds for the proposed action in the notice under section 83 of the Legal Profession Uniform Law (NSW)

[8]

Detail of Grounds Ground 1: Nathan Andrew Buckley ("the Solicitor") is unable to fulfil the inherent requirements of an Australian legal practitioner as he does not have the ability to discharge his paramount duty to the administration of justice.

[9]

Particulars 1. In about July 2020, the Solicitor made public statements encouraging all Victorians to breach laws, for which a fine could be imposed, and then challenge that fine in court on the basis that it would be "too expensive" for the Government to oppose any challenge: 1. Post on the Facebook Page for G&B Lawyers (of which the Solicitor is a Principal) on 19 July 2020 advising Victorians not to wear a mask contrary to a direction made under the Public Health and Wellbeing Act 2008 (Vic) and to contest any fines imposed in court, along with posts published by the Solicitor in response to comments on that post to the effect that it is "legal advice" (copy enclosed and marked A), 2. Post on the Facebook Page for G&B Lawyers on 19 July 2020 advertising for a criminal lawyer based in Victoria with experience in challenging fines in court (copy enclosed and marked B). 3. Post on the Facebook Page for G&B Lawyers dated 4 September 2020 advising Victorians that they are permitted to take part in public protests in Victoria on 5 September 2020 pursuant to ss 12,15 and 16 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) and advising Victorians who are fined to "go to Court and assert your rights", staring "I am here to help you", along with responses by the Solicitor to comments on that post (copy enclosed and marked C). 1. In about August 2021, the Solicitor made a public statement encouraging residents of certain Local Government Areas in NSW to breach laws by deliberately providing false information to the Australian Securities and Investments Commission for the purpose of avoiding the effect of applicable public health orders: 1. Post on a Facebook group administered by the Solicitor (entitled, "NSW Construction workers class action against the NSW Government for jabs") on or around 11 August 2021, recommending that, in order to "get around the LGA rules" (being a reference to the requirements of the Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order 2021 (NSW)), business proprietors in affected areas change the addresses of their registered offices and principal places of business to an unrestricted area, being an action that would be contrary to the requirements of the Corporations Act 2001 (Cth) (copy enclosed and marked D). 2. Comment on the application Telegram" in a group administered by the Solicitor (entitled, "NSW Construction, TRADIES TRUCKIES & others vs Gov") on 18 August 2021, advising the user Nick Dole to change his business and residential address on the ASIC portal and recommending that he consider "renting something cheap outside the affected LGAs" (copy enclosed and marked E). 1. In about August 2021, the Solicitor made a public statement encouraging aged care workers to breach laws by not complying with the requirement to receive a COVID-19 vaccination: 1. Post on Twitter by G&B Lawyers dated 5 August 2021, which relevantly stated, "'National Cabinet' is not part of the Federal Cabinet. All of its decisions have no legal force. You are free to ignore them. Including the one of 28 June 2021 mandating COVID-19 jabs for aged care workers..." (copy enclosed and marked F). The requirement for aged care workers to receive a COVID-19 vaccination in NSW has been given effect by the Public Health (COVID-19 Vaccination of Health Care Workers) Order 2021 (NSW). 1. In about October 2021, the Solicitor made public statements in relation to the judgment of Beech-Jones CJ at CL in Kassam v Hazzard; Henry v Hazzard [2021] NSWSC1320 delivered on 15 October 2021, being a proceeding in which G&B Lawyers (of which the Solicitor is a Principal) acted as solicitors for the Henry plaintiffs (the Judgment): 1. The Solicitor made a post on the Twitter page for G&B Lawyers (of which the Solicitor is a Principal) on 15 October 2021 (the G&B Twitter page) stating, "So Justice Beech-Jones today said that no one in NSW has any rights. No one has a right to body integrity. He basically said it is ok to kill anyone you like. No one has any rights" (Twitter Post) (copy enclosed and marked G). 2. The Solicitor made a post on the Facebook page for G&B Lawyers (of which the Solicitor is a Principal) (the G&B Facebook page) on 15 October 2021, stating "So Justice Beech-Jones today said that no one in NSW has any rights. No one has a right to body integrity. He basically said it is ok to kill anyone you like. No one has any rights" (Facebook Post) (copy enclosed and marked H). 3. In each of the Twitter Post and the Facebook Post, the Solicitor: i. did not honestly describe the effect of the Judgment; ii. criticised the Judgment on the basis of facts that were not accurately stated; iii. made statements that were likely to mislead persons as to the effect of the Judgment; iv. made statements likely to undermine confidence in the administration of justice; and/or v. conveyed that the effect of the Judgment was so unreasonable as to be analogous to condoning murder. 1. In about October 2021, the Solicitor engaged in the following other conduct on the G&B Twitter page in relation to the Judgment (copies enclosed and marked I): 1. in response to a comment by Darren@NonlinearDarren (being "I think we are able to cut the Testicles of pedos seeing as they don't have rights protected by the govt or 90 yr suppression order anymore. Would I be correct in this assumption?"), on 15 October 2021 the Solicitor replied "You're correct based on today's judgment. Go for it. Pedos have no rights." 2. in response to a comment by Whats Your Thoughts@colleenmenzies (being "does that mean I can go on a rampage? I have a few people I dislike & that have wronged Me!"), on 15 October 2021 the Solicitor replied "Yeah. Beech-Jones said no one has any rights in New South Wales. Do as you please." 3. in response to a comment by Kezza Ray @kezzaRay666 (being "Can I go inject heroin into people?"), on 16 October 2021 the Solicitor replied "So long as it's done under a public health order under section 7 of the Public Health Act, yes". 1. In about October 2021, the Solicitor engaged in the following other conduct on the G&B Facebook page in relation to the Judgment (copies enclosed and marked J): 1. in response to a comment on the G&B Facebook page (being "That's great news, I know some right asshole pedo pollies who shouldn't be breathing"), the Solicitor replied "... do your best"; 2. in response to a comment on the G&B Facebook page (being "So I can rape anyone? Not that I'm going too but this is what your status is saying. Anything is possible. If death is possible, so is rape, sexual harassment, emotional abuse already exists and many people get away with it Fathers have no rights when it comes to court proceedings. Its not about blaming the government but the people that support the government. The people are greater than the government. We the people are meant to win this"), the Solicitor replied "... Ask Beech-Jones. In NSW no one has any rights to bodily integrity. That's what his judgment says"; 3. in response to a comment on the G&B Facebook page (being "Anyone know his phone number. Prank him 24/7"), the Solicitor replied, "it's on the website" and posted a link to the Supreme Court website contacts page; 4. in response to a comment on the G&B Facebook page (being "We won't forget what he said !"), the Solicitor replied "Hopefully he has a very short career as the CJ at CL"; 5. the Solicitor posted the comment "... my point was you want to get somewhere in the legal world you have to give up everything that you ever believed in and wanted when you set out on your journey to be a lawyer. It's all bullshit. Unless you are in a position of power, you're not getting anywhere. If you want to be a controlled muppet, then you'll go far. If you want to represent people on your own, you'll get nowhere. As soon as you take on the establishment, the Law Society will be all over your arse like a wet dildo." 1. By the conduct on the G&B Twitter page and the G&B Facebook page set out at (e) and (f) above, the Solicitor: 1. did not honestly describe the effect of the Judgment; 2. made statements that were likely to mislead persons as to the effect of the Judgment; 3. made statements likely to undermine confidence in the administration of justice; and/or 4. made statements likely to impair the authority of Justice Beech-Jones and the Supreme Court of NSW. 1. By reason of circumstances where: 1. G&B Lawyers Twitter Page bears the name of, and is administered by, a law practice; 2. G&B Lawyers were the solicitors on the record for an unsuccessful party (the Henry plaintiffs) in the proceedings in which the Judgment was delivered; 3. the Solicitor made the Twitter Post on the G&B Lawyers Twitter page, being a public social media forum; 4. in the Twitter Post, the Solicitor used inflammatory language that was likely to encourage adverse comments in relation to the Judgment and Beech-Jones CJ at CL to be posted on the G&B Lawyers Twitter page; 5. adverse comments in relation to the Judgment and Beech-Jones CJ at CL were then posted by members of the public on the G&B Lawyers Twitter page in response to the Twitter Post, including commentary that: 1. the Judgment condoned violence; and/or 2. the Judgment was motivated by corruption and/or was otherwise unreliable as it was motivated by an improper purpose, 1. the Solicitor failed to delete or remove the posts (or take other action to conceal or prevent the comments) referred to in subparagraph (v) above, the Solicitor engaged in conduct that encouraged, or at least publicly condoned, the making of public statements which were likely to: 1. impair the authority of Justice Beech-Jones and/or the Supreme Court of NSW; and/or 2. undermine confidence in the administration of justice. (copies enclosed and marked K) 1. By reason of circumstances where: 1. the G&B Lawyers Facebook Page bears the name of, and is administered by, a law practice; 2. G&B Lawyers were the solicitors on the record for an unsuccessful party (the Henry plaintiffs) in the proceedings in which the Judgment was delivered; 3. the Sohcitor made the Facebook Post on the G&B Lawyers Facebook page, being a public social media forum; 4. in the Facebook Post, the Solicitor used inflammatory language that was likely to encourage adverse comments in relation to the Judgment and Beech-Jones CJ at CL to be posted on the G&B Lawyers Facebook page; 5. adverse comments in relation to the Judgment and Beech-Jones CJ at CL were then posted by members of the public on the G&B Lawyers Facebook page in response to the Facebook Post, including commentary that: 1. the Judgment condoned violence; and/or 2. the Judgment was motivated by corruption and/or was otherwise unreliable as it was motivated by an improper purpose, 1. the Solicitor failed to delete or remove the posts (or take other action to conceal or prevent the comments) referred to in subparagraph (v) above, the Solicitor engaged in conduct that encouraged, or at least publicly condoned, the making of statements which were likely to: 1. impair the authority of Justice Beech-Jones and/or the Supreme Court of NSW; and/or 2. undermine confidence in the administration of justice. (copies enclosed and marked L) Ground 2: The Solicitor is unable to fulfil the inherent requirements of an Australian legal practitioner as he does not have the ability to discharge his duty not to engage in conduct which is likely to a material degree to be prejudicial to, or diminish confidence in, the administration of justice.

[10]

Particulars Particulars of Ground 1 above are repeated. Ground 3: The Solicitor is unable to fulfil the inherent requirements of an Australian legal practitioner as he does not have the ability to discharge his duty not to engage in conduct which is likely to a material degree to bring the profession into disrepute.

[11]

Particulars Particulars of Ground 1 above are repeated. Ground 4: The Solicitor is unable to fulfil the inherent requirements of an Australian legal practitioner as he does not have the ability to discharge his duty to be honest and courteous in all dealings in the course of legal practice.

[12]

Particulars Particulars (d)-(g) of Ground 1 above are repeated.

[13]

Amendments 29 March 2022 - Typographical error in schedule ('COVID-ig' has been amended to 'COVID-19') 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: 29 March 2022

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (13 paragraphs)

Parties

Legislation Cited (11)

Cases Cited (69)

Cited By (3)