Council of the Law Society of New South Wales v Buckley

The Respondent's Reply and Application for Summary Dismissal

1. On 30 January 2024 the Respondent lodged a Reply to application for disciplinary findings (dated 22 December 2023). In summary, the Reply contends: 1. The Tribunal does not have jurisdiction to determine if any of the alleged posts were misleading or deceptive or likely to mislead or deceive. Such jurisdiction, if any, could only be held by NSW Fair Trading and/or the Australian Competition & Consumer Commission. 2. All alleged posts relate to crowdfunding campaigns instituted on behalf of third-party individuals in accordance with the individual's instructions at the time. Such crowdfunding campaigns occurred outside Australia. The Tribunal does not have any jurisdiction to determine matters outside NSW. 3. The Tribunal has no jurisdiction to deal with any matters involving, relating to and/or incidental to crowdfunding campaigns and/or donations platforms. 4. None of the alleged posts constituted marketing and/or promotion with respect to any law practice and/or the Respondent in any capacity as a lawyer. All alleged posts were made in relation to crowdfunding campaigns seeking donations on behalf of third-party individuals, made in the Respondent's personal capacity (not in any capacity as a lawyer). Such posts never amounted to marketing and/or promotion of a law practice or the Respondent (in any capacity as a lawyer). No funds were ever paid by the Respondent (in any capacity) and/or the law practice to any crowdfunding and/or donations platforms with respect to the alleged posts. 5. All alleged posts were factual and based on instructions from third-party individuals seeking donations from third parties utilising overseas based crowdfunding platforms.
2. On 12 February 2024 the Respondent lodged the General application referred to above. It contained the following grounds: 1. None of the material the subject of the Applicant's Application amounts to advertising, marketing or promotion in connection with the solicitor or law practice. 2. Accordingly, none of the material the subject of the Application is subject to the r 36.1.1 or 36.1.2 of the Conduct Rules. It follows that that the Tribunal has no jurisdiction in relation to such material. 3. The Tribunal does not have jurisdiction to determine if any of the material was false, misleading or deceptive or likely to mislead or deceive. Such jurisdiction, if any, which is denied, could only be held by NSW Fair Trading and/or the Australian Competition & Consumer Commission. 4. All the material the subject of the Application relates to crowdfunding campaigns instituted on behalf of third-party individuals for their benefit. Such crowdfunding campaigns occurred outside Australia. The Tribunal does not have any jurisdiction to determine matters outside New South Wales. 5. The Tribunal has no jurisdiction to determine any matters involving, relating to, and or incidental to crowdfunding campaigns and/or donations platforms. Such campaigns and platforms do not allow organisers of crowdfunding campaigns to engage in promotions or offer any goods or services in exchange for donations on their crowdfunding platforms. 6. Crowdfunding platforms are governed by their respective Terms of Service. With respect to the GoFundMe platform, it specifically states in its terms of service that the services are offered as a platform to allow an individual or others to accept monetary donations from donors on behalf of the beneficiary of the fundraiser. Contained in the Respondent's application is an extract from the Terms of Service which states that the platform is not to be used to offer any goods or service in exchange for a donation on the platform. 7. The Respondent's application stated that it followed, from the above terms of service, that none of the material the subject of the Application ever amounted to advertising, marketing or promotion in connection with the solicitor or a law practice. Otherwise, that would have amounted to a breach of the above GoFundMe Terms of Service and the "organiser" [presumably the Respondent] would have been prohibited from accessing and or using the platform. 8. Similar terms of service and use apply with respect to all crowdfunding platforms.
3. On the basis of the above contentions the Respondent seeks to have the Application dismissed.
4. On the same day (12 February 2024) the Respondent lodged an affidavit affirmed 7 February 2024. It contains extracts from the GoFundMe website describing the nature of crowdfunding including extracts from the Terms of Service concerning how GoFundMe operates. In the affidavit the Respondent contended that he had never engaged in advertising, marketing and/or promotion either of himself or of the law practice through GoFundMe or any other crowdfunding platform. In particular, the Respondent contended that he complied at all times with the requirement of the Terms of Service prohibiting the provision of any goods or service in exchange for a donation. The affidavit goes on to state that funds raised from the GoFundMe platform regarding the Constitutional Challenge campaign were used to pay legal costs and disbursements in the matters identified in paragraph 11 of the affidavit. The Respondent contended that all of these matters fell within the scope and purpose of the Constitutional Challenge campaign. The balance of the affidavit purports to address the allegations made in the Application and concludes with the Respondent denying that there was conduct constituting unsatisfactory professional conduct or conduct constituting professional misconduct.

Applicant's submissions on the Respondent's Application for dismissal

1. On 8 March 2024 the Applicant lodged and served submissions in response to the Respondent's General application for dismissal of the Applicant's Application. In the following paragraphs I summarise the Applicant's submissions.
2. The Applicant submitted that the application for dismissal should itself be dismissed. The Applicant submitted that the Respondent's application advanced arguments going to the substance of the Applicant's allegations. The issues addressed by those arguments are properly to be determined following a final hearing and should not be determined at this interlocutory stage.
3. The Respondent's submission that the Tribunal does not have jurisdiction to determine the matters raised should not be accepted.
4. The Applicant pointed out that the Respondent's application for dismissal is sought pursuant to part 3 of the Civil & Administrative Tribunal Act 2013 (NSW) (the NCAT Act). The Applicant's submissions note that Part 3 of the NCAT Act does not specifically empower the Tribunal to dismiss proceedings on a jurisdictional basis. The Applicant's submissions proceed on the basis that the Respondent's arguments are based on the Application being "misconceived" or "lacking in substance" within the meaning of s 55(1)(b) of the NCAT Act. That section empowers the Tribunal to dismiss a proceeding at any stage if the Tribunal considers that the proceeding is, amongst other things, misconceived or lacking in substance. The Applicant's submissions state that it has been observed in earlier cases that where an application is made for which the jurisdiction of the Tribunal is found to be wanting, such an application may be considered as misconceived or otherwise lacking in substance: see Turitsyna v Chief Commissioner of State Revenue [2023] NSWCATAD 320 at [49], citing Alchin v Rail Corporation of New South Wales [2012] NSWADT 142 at [25] and Long v Metromix Pty Ltd [2019] NSWCATAP 198 at [77].
5. The Applicant submitted that the term "misconceived" connotes a misunderstanding of legal principle (involving a claim that does not disclose a cause of action) while "lacking in substance" may be seen as referring to an untenable proposition of law or fact (such that the defendant could obtain summary judgment): see Long v Metromix.
6. The Applicant submitted that the merits of the proceedings constituted by the Application do not fall to be determined as part of the Respondent's application for dismissal. Rather, the Respondent is required to show that the Tribunal does not have jurisdiction to determine the Application with the result that it should dismissed the proceedings. At this stage that requirement is not satisfied by arguments which merely have the effect that aspects of the proceedings should finally be determined in favour of the Respondent.
7. The Applicant submits that the Respondent's application effectively seeks early determination of whether the materials he posted are capable of breaching the rules that the Applicant alleges he has breached. However, the Tribunal cannot determine that question at this interlocutory stage without a final hearing. Accordingly, there is no need, as part of this application for dismissal, to address the Respondent's evidence in his affidavit affirmed 7 February 2024 (the Respondent's Affidavit) to the effect that the materials posted for the various fundraising campaigns in issue did not amount to advertising, marketing or promotion in connection with him for his law practice.
8. The Respondent further submitted that to the extent that the Tribunal needs to be satisfied, at this stage, that there is a sufficient basis for the Applicant to allege that the materials constituted, marketing or promotion in connection with the Respondent or his law practice (and the allegation is not, for example, lacking in substance for the purposes of the Respondent's application for dismissal), the Tribunal can be satisfied of that matter by reference to the Applicant's reasons provided in support of its decision to initiate these proceedings: see the Affidavit of Valerie Griswold affirmed 7 March 2024.
9. The Applicant referred to the submission by the Respondent that the Tribunal does not have jurisdiction to determine whether any of the material was false, misleading or deceptive or likely to be so and that such jurisdiction could only be held by NSW Fair Trading or the Australian Competition & Consumer Commission. The Applicant submitted that the Tribunal has jurisdiction because by virtue of s 300 of the Uniform Law the designated local regulatory authority (being the Applicant in this case) may initiate and prosecute proceedings in the designated Tribunal (being NCAT) if the Applicant is of the opinion that the alleged conduct may amount to professional misconduct or unsatisfactory professional conduct that would be more appropriately dealt with by the Tribunal. The affidavit of Valerie Anne Griswold referred to earlier contains evidence that the Applicant has formed that opinion. Section 302 of the Uniform Law provides that if, after a hearing into the alleged conduct, the Tribunal finds that the Respondent is guilty of unsatisfactory professional conduct or professional misconduct, the Tribunal may make any orders that it thinks fit, including any of the orders set out in s 299 or in s 302 of the Uniform Law.
10. The Applicant referred to the submission of the Respondent that the campaigns referred to in the Application occurred outside Australia. In the Applicant's submission the argument of the Respondent misapprehends the scope of the applicable legislative framework and the nature of the issues in these proceedings. The focus of the proceedings is on the Respondent's alleged conduct and whether it amounted to unsatisfactory professional conduct and/or professional misconduct under the Uniform Law. At the time of engaging in the alleged conduct, the Respondent was admitted as a lawyer in New South Wales and held a practising certificate under New South Wales law. He was therefore subject to obligations under the Uniform Law and the duty set out in the Conduct Rules. The fact that he may have engaged in some of the alleged conduct using a website hosted overseas does not take it outside the scheme of the Uniform Law. Even if the Respondent was outside New South Wales when posting the materials and making certain representations, the operation of the Uniform Law would still regulate such conduct: see s 4 of the Uniform Law which provides that the law has extraterritorial operation. Section 4 provides: 4 Extraterritorial operation of this Law The operation of this Law is, as far as possible, to include operation, according to its terms, in relation to the following - (a) things situated within or outside the territorial limits of this jurisdiction; (b) acts, transactions and matters done, entered into or occurring within or outside the territorial limits of this jurisdiction; (c) things, acts, transactions and matters (wherever situated, done, entered into or occurring) that would, apart from this Law, be governed or otherwise affected by the law of another jurisdiction.
11. The Applicant's submissions refer to the Respondent's contention that the Tribunal does not have jurisdiction to deal with any matters involving, relating to and/or incidental to crowdfunding campaigns and/or donation platforms because those platforms do not allow organisers to engage in promotions or offer any goods or services in exchange for the donation. However, the Applicant contends that the word "promotions" used in the Terms of Service is a defined term and does not have the same scope as "marketing or promotion" as used in the Conduct Rules. The Applicant further contends that it is not necessary for the Tribunal to decide that point at this interlocutory stage.
12. Finally, the Applicant contends that the Respondent's application for dismissal should be dismissed and that the proceedings should be the subject of orders for management of its future conduct.

Respondent's submissions in reply

1. The Respondent has filed submissions in reply which may be summarised as follows: 1. The Tribunal's jurisdiction is not enlivened at all. The relevant Conduct Rules do not apply since none of the material amounts to "advertising, marketing, or promotion in connection with the solicitor or law practice". 2. The Tribunal must, at this interlocutory stage, determine if the material amounts to "advertising, marketing, or promotion in connection with the solicitor or law practice" in order to determine if r 36.1.1 and/or 36.1.2 apply with respect to the alleged conduct and in turn determine whether the Tribunal's jurisdiction has been enlivened. 3. The Tribunal has jurisdiction to make ancillary and interlocutory decisions of the Tribunal in proceedings under s 29(2) of the NCAT Act. This includes, under s 55 of the NCAT Act the power to dismiss at any stage any proceedings before it in any of the circumstances therein specified. This includes, at s 55(1)(b), if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance. 4. If the Tribunal's jurisdiction is not enlivened at all, then it is submitted that the proceedings are "frivolous or vexatious".
2. The Tribunal should find that the Application must be struck out or dismissed at this interlocutory stage since the two relevant Conduct Rules do not apply.

Consideration

1. I am of the view that the Respondent's application should be dismissed and that the proceedings should be set down for a final hearing and determination of the issues raised by the Application.
2. The facts, as contended for in the Application, should form the basis for the Tribunal's consideration at this interlocutory stage of whether the Tribunal has jurisdiction or whether the Application should otherwise be dismissed as sought by the Respondent's application That is not to say that the facts as contended for will be the facts finally found and it is, of course, possible that not all the facts contended for will be found. My reasons for coming to the view that the Respondent's application should be dismissed are set out in the following paragraphs.
3. The principles concerning summary dismissal of an application were considered in Alchin v Rail Corporation, cited earlier which was a decision of RJ Wright SC, as he then was, Judicial Member of the Administrative Decisions Tribunal. The proceedings concerned the Anti-Discrimination Act 1977 (NSW) and involved an application under the Administrative Decisions Tribunal Act 1997 (NSW) to have the proceedings dismissed on the basis that the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance.
4. The paragraphs set out below from the Alchin decision describe the relevant considerations when considering such an application: [20] The power to dismiss summarily a complaint or part of a complaint under s 102 should be exercised with extreme caution and the Tribunal must approach these applications on the basis that applicants should be given every reasonable opportunity to set out the content of their complaints and to produce evidence to support them - Rae v Commissioner of Police NSW (No 2) [2010] NSWADT 36 at [84] ff and Razaghi v Director-General, NSW Department of Health [2002] NSWADT 4 at [27] (although this decision deals with the previous provision corresponding to s 102, the principles are equally applicable to s 102). [21] As to the proper approach for the Tribunal to take, it was held in Stanborough v Woolworths Ltd [2005] NSWADT 203 at [28]: "28 In the absence of extraordinary circumstances disputed questions of fact should not be resolved in a summary dismissal application. Where there is factual dispute the applicant's version of the facts should be accepted for the purpose of determining whether the complaint should be summarily dismissed. Consequently, we must proceed on the basis that everything which the applicant has put in evidence is true (see Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 at [35]). There is, however, a distinction between evidence advanced by the applicant and the conclusions which the applicant suggests can be reasonably drawn from that evidence. We are under no obligation in a summary dismissal application to accept, without question, the applicant's assertions about a conclusion which may be drawn from the evidence. The Tribunal may reach its own conclusions about that which may be drawn from the evidence." [22] Put another way, the Tribunal's should ask, whether taking the applicant's case at its highest, there is enough material in the complaint to satisfy the Tribunal that there is a case to answer - Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 at [35]. [23] Some further guidance as to the general approach the Tribunal should take to applications under s 102 of the ADA is also given by the Appeal Panel's decision in Margan v University of Technology, Sydney [2003] NSWADTAP 65 (which dealt with the earlier version of s 102 which used to be found in s 111 of the ADA): 9 "A complaint can be dismissed under s 111(1) if the Tribunal is satisfied that it is "frivolous, vexatious, misconceived or lacking in substance, or that for any other reason the complaint should not be entertained". The words "frivolous, vexatious, misconceived or lacking in substance" were interpreted, in a slightly different but analogous context, by Hunt J in Langley v Niland [1981] 2 NSWLR 104. At 107 Hunt J held that those words relate to the "insufficiency or to the absence of merit of the factual basis for the allegations made in the complaint rather than to whether the complaint is one within the provisions of the Act at all." However, Hunt J added that the words "for any other reason" include the reason that the complaint does not disclose a contravention of the Act. A complaint which relied on a ground not covered by the AD Act or, to use Hunt J's example, a complaint which fell within one of the exceptions in the Act, would not disclose a contravention. 10 The failure of the complaint to disclose a contravention of the Act is analogous to the inherent and/or statutory power of courts to dismiss proceedings when the pleadings fail to show a reasonable cause of action. For example, Part 13, rule 5 of the Supreme Court Rules 1970 allows the Court to stay or dismiss proceedings where no reasonable cause of action is disclosed. The rule gives the Court a discretionary power to dismiss the plaintiff's case when it is so weak that to permit the proceedings to go to trial would be futile: Peter Kent Developments Pty Ltd v Australia & New Zealand Banking Group Ltd (SC (NSW), Hunt J, 6 May 1980, unreported). Ritchie's Supreme Court Procedure NSW (Peter Taylor SC ed, Butterworths 1984) notes at 2325 that "The test to be applied has variously been described as whether the matter is so obviously untenable that it cannot possibly succeed', manifestly groundless', so manifestly faulty that it does not admit of argument', one which the court is satisfied cannot succeed', one where under no possibility can there be a good cause of action'", or one which would involve useless expense' (General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129; Pannizutti v Trask (1987) 10 NSWLR 531 at 536; Rajski v Powell (1987) 11 NSWLR 522 at 524; Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 at 942. 11 Summary dismissal is not appropriate where there is a serious question of fact to be determined: Spellson v George (1992) 26 NSWLR 666 or where a serious question of credit is involved. Importantly, if factual issues are likely to be affected by evidence in the possession of the defendant, that matter alone may make it inappropriate to dismiss the matter. Material in summonsed documents or answers on cross examination may lead to the proof of factual matters about which the plaintiff has no direct evidence. (Wickstead v Browne (1992) 30 NSWLR 1). The commonly-stated test of taking the evidence at its highest' needs to be understood in this context. The evidence that is available to a Tribunal when assessing whether to dismiss a complaint before the completion of an inquiry is not all that a Tribunal must take into account. That evidence, even taken `at its highest' may not be enough to withstand an application for dismissal. But the nature of proof of discrimination complaints in many circumstances is such that it will often be appropriate to have regard as well to the reasonable possibility that documents and evidence to be led by the respondent, and cross-examination of the respondent's witnesses, will provide the necessary causative link between the conduct complained of and the ground for that conduct having occurred." [24] In dealing with this application under ss 102 and 73(5)(g), the Tribunal notes that it has not heard full evidence in relation to these matters and will take the Applicant's case as revealed in the President's Report and other material before the Tribunal at its highest, bearing in mind the possibility of supportive material being elicited from the Respondent or its witnesses in the course of a full contested hearing. Further, even if the pleading in the Points of Claim is not as refined as might be appropriate in a superior court, the Tribunal is required under s 73(3) of the ADT Act to proceed with as little formality as the circumstances of the case permit and without regard to technicalities or legal forms. As was held in Razaghi v Director-General, NSW Department of Health [2002] NSWADT 4 at [38]: "The authorities make it clear, however, that we should not deny the applicant the opportunity to present his case at a hearing if we can identify an arguable case from the material before us."
5. It is fundamental that the Tribunal may only act within the scope of the jurisdiction conferred upon it. The Tribunal should always consider whether it has jurisdiction to determine the proceedings brought before it. It is relevant to note the definition of "ancillary decision" contained in s 4 of the NCAT Act. An ancillary decision includes a decision concerning whether the Tribunal has jurisdiction to deal with a matter.
6. In these proceedings the Respondent sought summary dismissal of the Application. Such an application concerns the Tribunal making an interlocutory decision of the Tribunal: see s 4 of the NCAT Act where the definition of interlocutory decision includes the summary dismissal of proceedings. Here, the Respondent sought to rely upon s 55 (1)(b) of the NCAT Act which permits the Tribunal to dismiss proceedings at any stage if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance. I take it that proceedings in respect of which the Tribunal does not have jurisdiction may be described as proceedings that are misconceived, or proceedings that are lacking in substance.
7. Whether the Respondent's application involves an interlocutory decision or an ancillary decision to be made, the approach, in my opinion, is the same, namely that the principles identified in the Alchin case are relevant and applicable. That is to say that, generally speaking, where there is a factual dispute the Applicant's version of the facts should be accepted for the purposes of determining whether the proceedings should be summarily dismissed. Summary dismissal is not appropriate where there is a serious question of fact to be determined: Spellson v George (1992) 26 NSWLR 666.
8. With those general comments and that approach in mind, I turn my attention to the grounds relied upon by the Respondent in the Respondent's application for summary dismissal.
9. Grounds 1 and 2 of the Respondent's application contend that the Tribunal does not have jurisdiction because none of the material alleged against the Respondent constitutes advertising, marketing or promotion or constitutes material which amounts to a breach of the Conduct Rules. I agree with the submissions of the Applicant that these grounds involve findings (both of fact and law) which can only be made after a final hearing. These grounds do not permit a conclusion that the Tribunal has no jurisdiction.
10. Ground 3 concerns the Respondent's contention that the Applicant does not have jurisdiction and that the jurisdiction relevant to the factual contentions resides with NSW Fair Trading and/or of the Australian Competition & Consumer Commission. Again, I agree with the Applicant's submissions that the Uniform Law both regulates the Respondent's conduct and provides that the Applicant is the designated local regulatory authority that may initiate and prosecute proceedings in the designated Tribunal (namely, in this case, NCAT). The Uniform Law provides under ss 300 and 302 that the Applicant may bring proceedings for breach of the Conduct Rules to NCAT and that NCAT has jurisdiction to make the orders it thinks fit, including any of the orders set out ss 299 or in 302 of the Uniform Law.
11. Ground 4 relied upon by the Respondent is to the effect that the Tribunal does not have jurisdiction because the relevant crowdfunding platforms were based outside New South Wales and in the United States of America. Again, I am in agreement with the Applicant's submissions that the proceedings concern the Respondent's alleged conduct as a solicitor and whether such conduct amounted to unsatisfactory professional conduct and/or professional misconduct under the Uniform Law. As the Respondent was, at the time of the alleged conduct, a lawyer in New South Wales, holding a practising certificate, he was subject to obligations under the Uniform Law and the duties set out in the Conduct Rules. I agree with the Applicant's submissions that the fact that the alleged conduct may have involved using a website hosted overseas does not take the Respondent's conduct outside the scheme of the Uniform Law. For the purpose of this decision, it is not necessary for me to decide whether the conduct as alleged occurred, and if it did occur, whether it occurred inside or outside New South Wales because the effect of s 4 of the Uniform Law is to provide for the operation of the Uniform Law to include extraterritorial conduct.
12. Grounds 5 to 7 of the Respondent's application contended that the Tribunal does not have jurisdiction because the terms of service of the crowdfunding platforms do not allow an individual or others to accept monetary donations from donors in exchange for goods or services. These contentions involve a consideration of both the factual assertions made by the Applicant against the Respondent, the consequential findings of fact following a final hearing and (possibly but not necessarily) findings as to whether the Respondent's conduct was within or outside the contemplated terms of service of the crowdfunding platforms. As the Applicant's submissions state, the Respondent's conduct is to be assessed by findings of fact as to what the Respondent did. It does not follow that the Tribunal has no jurisdiction if it is the case that the Respondent's conduct was in breach of the terms of service. Alternatively, it does not follow that the terms of service determine whether or not the Tribunal has jurisdiction with respect to the Respondent's conduct.
13. My conclusion is that all grounds relied upon by the Respondent are to be rejected.
14. Costs incurred with respect to the Respondent's Application will be considered at the final hearing.
15. There are proceedings between the same parties (case number 2023/00140580) and directions have been made that, in the event that the Respondent's application for dismissal is dismissed, those proceedings and these proceedings should be heard together. The directions below make allowance for that to occur.
16. Accordingly, the orders that the Tribunal makes are as follows: 1. The application of the Respondent for summary dismissal of the Applicant's application lodged 18 December 2023 is dismissed. 2. The Applicant's application and application 2023/00140580 are listed for further directions at a time and date to be appointed by the Registry.

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: 15 April 2024