COUNCIL OF THE LAW SOCIETY OF NEW SOUTH WALES v FOREMAN

Court of Appeal (NSW)|1994-08-05|Before: Kirby P, Mahoney JA

COUNCIL OF THE LAW SOCIETY OF NEW SOUTH WALES v FOREMAN [No 2]

KIRBY P 5 August 1994, 5 August 1994 [1994] NSWCA 69

PRACTICE & PROCEDURE - Court of Appeal - stay - order removing name of solicitor from Roll - protection of public - held: Stay for 28 days to permit application to High Court. Harvey v Law Society of New South Wales (1975) 49 ALJR 362 appld.

PRACTICE & PROCEDURE - Court of Appeal - stay - order for removal of name of solicitor from Roll of Legal Practitioners - overriding obligation of Court to protect the public - entitlement of solicitor to secure legal advice - desirability of protecting clients and creditors of solicitor - desirability of relieving High Court from obligations to consider stays protective of applications to that Court - held: (1) Stay of 28 days granted on conditions; (2) Any application for longer stay to be made on motion supported by evidence. Harvey v Law Society of New South Wales (1975) 49 ALJR 362 (HC) applied.

LEGAL PRACTITIONERS - solicitors - removal of name from Roll - stay of operation of order on condition to permit application for special leave to appeal to High Court - held: Stay granted on conditions of expedited application to High Court and no new clients or retainers.

Kirby P This morning the Court, constituted by Mahoney JA, Giles AJA and myself, delivered its reasons and pronounced its orders in the appeal brought by the Council of the Law Society of New South Wales against a determination of the Legal Professional Disciplinary Tribunal.

Disputed application to stay order removing solicitor's name from the Roll

The determination concerned a solicitor, Ms Carol Foreman. The Court was unanimously of the opinion that the appeal from the decision of the Tribunal should succeed and that the orders of the Tribunal were inappropriate, or inadequate, to the circumstances proved. By a majority (Mahoney JA and Giles AJA), it was determined that the order of the Court in the appeal should be that the name of Ms Foreman should be removed from the Roll of legal practitioners of the State. I do not trouble to describe detail of the judgment of the Court, nor the Court's decision on the cross-appeal by Miss Foreman, nor the appeal and cross-appeal relating to costs. The issue of costs stands over and will be determined in due course. To that extent the proceedings are still before the Court. To that extent, the Court certainly retains its jurisdiction to deal with the contest between the parties. No party before me ultimately argued otherwise.

Immediately orders were pronounced senior counsel for Ms Foreman made an application for a stay of twenty-eight days within which to permit Ms Foreman to seek legal advice concerning her right to seek special leave to appeal from this

Court's orders to the High Court of Australia. The motion could not proceed immediately because of other business in the Court. It has come back before me now at the end of the day. I am sitting alone exercising the powers of a Judge of Appeal and of the Court, pursuant to s46(1) and s46(2) of the Supreme Court Act 1970.

A question has been posed as to the jurisdiction of a single judge to deal with the matter, although the point was not pressed. However, because, as I have said' the proceedings are still alive before the Court, I entertain no doubt that I have jurisdiction to deal with the application for a stay now before me. A judge must always be satisfied, whether a point is ultimately pressed or not, that he or she has jurisdiction to make orders. Otherwise, the judge should refrain from making them.

The Law Society objected to the provision of a stay of any duration. The foundation for its objection lay in the decision of the Court - and certainly of the majority of the Court - concerning the unfitness of Ms Foreman to practise as a solicitor. It also rested on the very basis of the exercise of this Court's jurisdiction which is, at its heart, designed to protect the public.

I acknowledge the force of the submission of the Society. However, there are countervailing considerations. They include, first, the assurance to any person in our society of a right to have legal advice and to test, and where advised, challenge a decision of any court in this country which is subject to appeal or review. Ms Foreman has that right to challenge the decision of this Court. She may do so if she secures special leave to appeal from the High Court of Australia. It is fundamental to a society living by the rule of law that Ms Foreman should have advice as to her rights. It is embarrassing to this Court to attempt to prejudge what the High Court may do on a special leave application, and if special leave is granted, on appeal from its orders.

Secondly, the High Court itself, in a series of cases, has indicated that a State Supreme Court should, wherever possible, exercise the stay jurisdiction so as to relieve the High Court (which is itself greatly overburdened with important national jurisdiction) from the necessity to consider and determine such applications. Therefore, so far as possible, I would endeavour to exercise the stay jurisdiction, at least at this stage, and for the purpose of protecting Ms Foreman's entitlement to secure legal advice.

Thirdly, it has been said by the High Court that in applications of this kind consideration should be given to the protection of the clients of a solicitor whose name is to be removed from the Roll and the protection of the solicitor's creditors in respect of the assets of the practice. The solicitor's right to protect his or her assets must also be taken into account. See Harvey v Law Society of New South Wales (1975) 49 ALJR 363 (HC) at 364.

Of course these principles are subject to the primary duty of the court to protect the public. If there were an acute or apparent danger to trust moneys or to the proper protection of clients from completely incompetent solicitors, the Court would be duty bound to give priority to the obligation of protecting the public so as to refuse the stay. However, in this case, neither a danger to trust moneys nor any suggestion of incompetence is raised by the material which was before the Court in the appeal and is now before me. On the contrary, I would have no doubt

\WRQUNCIL OF THE LAW SOCIETY OF NEW SOUTH WALES v FOREMAN [No 2] (Kirby PB

that Miss Foreman would act with propriety in respect to trust moneys. She has also been shown to be a highly competent person. Her competence was never an issue in the appeal.

Following the various considerations which I have mentioned, I am of the view that Ms Foreman should have the stay for the period initially sought by her counsel, that is to say, for twenty-eight days.

Application for a stay longer than required to consider appeal

Emboldened by the passage of the day counsel came before the Court now and asked that the stay should last until the end of 1994. This was suggested as appropriate within the principles of Harvey's case and necessary in order to permit the solicitor the opportunity, not only to get legal advice but also, whatever that advice might be, to take steps to sell her practice and protect her clients and creditors.

No evidence is provided by the Court in support of such an application. In Harvey I take such evidence to have been before the High Court. I would not today be inclined to provide a stay to the end of the year, or indeed beyond the twenty-eight days initially sought, or for purposes other than those initially sought. Any such extension would have to be granted on the basis of evidence which disclosed the then position of the solicitor, her clients, her creditors and her practice.

Accordingly, I am minded to provide the stay initially requested. It will be provided upon the conditions that the solicitor, if advised to make an application for special leave to appeal to the High Court of Australia from the orders of this Court, will bring an application for expedition of the hearing of that summons for special leave to appeal and that, pending further order of the Court, the solicitor will not, from this day, take instructions or accept retainers from any new clients until the operation of the orders of this Court or of any later orders of the High Court of Australia come into force.

Orders: stay for 28 days on conditions

Stay the execution of the order number one in the principal proceedings herein for a period of twenty-eight days from this date upon the following conditions:

(a) That if the solicitor be advised to apply for special leave to appeal to the High Court of Australia from the orders of this Court she will, within the period of twenty-eight days mentioned, make application for expedition of such application for special leave to appeal and of any appeal; and

(b) That the solicitor will accept no instructions and take no retainers from any new clients from this day pending any further, or other, order of this Court or of the High Court;

Grant liberty within twenty-eight days to apply to the Court, on motion, for any further or other or larger orders;

Costs of the application for the stay to be reserved to be determined in the light of any application to the High Court and its outcome; and

Direct that the Associate inform the Prothonotary immediately of the orders I have made, so no steps will be taken pursuant to the earlier order requiring removal of the solicitor's name from the Roll.

Counsel for the Claimant: R R Stitt QC / G C Lindsay

Solicitor for the Claimant: Curwood & Partners Counsel for the Opponent: L W Pierotti, Solicitor Solicitor for the Opponent: F J Smith, Solicitor, Law Society of New South

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