Council of the Law Society of New South Wales v Judah [2022] NSWCATOD 89 | Case summary

Council of the Law Society of New South Wales v Judah [2022] NSWCATOD 89 | Case summary | Zoe

[1]

Background facts

The Respondent was admitted as a lawyer in New South Wales on 6 December 2013. He held a New South Wales practising certificate which enabled him to practise as a solicitor at all relevant times.
During the practising certificate year ending 30 June 2016, the Applicant was provided with information about the Respondent by another regulatory body. The Applicant engaged Dr Bruce Westmore, psychiatrist, to undertake a medical assessment of the Respondent. The purpose of the medical examination was for the Applicant to obtain a report from Dr Westmore which it could take into consideration, among other things, in determining (i) whether or not to vary, suspend or cancel the Respondent's 2015/16 practising certificate; and (ii) whether to renew the Respondent's practising certificate beyond 30 June 2016 on receipt of any application. Dr Westmore subsequently provided a report to the Applicant, dated 31 May 2016, which included some recommendations as to restrictions that might be imposed on the Respondent's practising certificate.
On 27 June 2016, the Applicant requested the Respondent's approval to impose five conditions on his practising certificate for the year 1 July 2016 to 30 June 2017. By letter dated 28 June 2016, the Respondent notified the Applicant that he agreed to the imposition on his practising certificate of the conditions proposed by the Applicant.
On 30 June 2016, the Council resolved that the conditions reproduced below were imposed on the Respondent's practising certificate for the period 1 July 2016 to 30 June 2017: 1. Any Practising certificate issued to the solicitor is restricted to entitle him to engage in supervised legal practice only and in the employ of a law firm. 2. The Solicitor must, prior to commencing any employment, notify his employer (Employer) of the conditions imposed on his Practising certificate. 3. The Solicitor must obtain from his Employer and provide to the Manager of the Professional Standards Department of the Council (Society), a written report every three (3) months detailing the nature of the work undertaken by the Solicitor and the Solicitor's competence in respect of the work performed. 4. Other than for attendances at Court and any other work related attendances, the Solicitor must undertake the majority of work from the premises of his Employer. 5. The Solicitor, at his own expense, will provide to the Society, a report from an independent psychiatrist, nominated by the Solicitor and agreed to by the Society, within 6 months from 30 June 2016 and every 6 months thereafter providing an assessment as to whether the Solicitor remains fit to continue in legal practice.
Subsequently, with effect from 19 July 2016, there was a minor amendment to the conditions of the practising certificate which was agreed to by the Respondent. That was to replace the term "law firm" with "law practice" in Condition 1.
During the practising certificate year 2016/17, the Respondent was employed by two law practices: from July to December 2016 by Jesus Advocacy International and from 12 December 2016 to 18 May 2017 by SCB Legal Pty Ltd, an incorporated law practice of which Ms Sionea Breust was, at all relevant times, the sole principal.
From about late 2014, at all relevant times the Respondent was from time to time a "rostered duty solicitor" in the Local Court as part of the Downing Centre pro bono register organised by the City of Sydney Law Society.
On 3 May 2017 the Applicant's Manager Professional Standards (acting under delegation) made a complaint against the Respondent under the Uniform Law in respect of potential breach of conditions of his 2016/17 practising certificate. Following investigations, the Professional Conduct Committee (acting under delegation) resolved (on 17 May 2017) that the alleged conduct of the Respondent may amount to professional misconduct and that proceedings be initiated and prosecuted in NCAT pursuant to s 300(1)(b), Uniform Law. The Applicant suspended the Respondent's 2016/17 practising certificate, effective 18 May 2017.

[2]

Brief procedural history

Disciplinary proceedings were initiated by the Applicant in NCAT on 14 November 2018 (proceeding 2018/350172). Those proceedings were found to be affected by procedural defects following the decision of NCAT (differently constituted) in Council of the Law Society of NSW v DXW [2019] NSWCATOD 101 (DXW). The 2018 proceedings were dismissed, with an order for costs made in favour of the Respondent: Council of the Law Society of New South Wales v Judah [2019] NSWCATOD 135.
On 11 May 2020, the Applicant recommenced proceedings pursuant to cl 23(5) of Sch 9 to the Application Act. NCAT (constituted by Judge Cole) made orders and directions to progress the matter for hearing, including an order that the materials filed by the Applicant and by the Respondent in the 2018 proceedings were deemed to have been filed in the recommenced proceedings. The hearing of the Application was set down for one day on 30 September 2021 by audio-visual link.
On 12 July 2021, the Respondent made an application for summary dismissal of the recommenced proceedings for want of jurisdiction. The Respondent also sought confidentiality orders. The dismissal was sought on the basis that the proceedings involve an exercise of federal jurisdiction of the kind referred to in ss 75 or 76 of the Commonwealth Constitution. An order was made for the summary dismissal application to be heard together with the substantive (disciplinary) application on 30 September 2021. The Respondent subsequently sought an adjournment of that hearing, which was refused on 8 September 2021, with reasons.
The summary dismissal and substantive applications were heard over three days of hearing (held by audio-visual link given constraints occasioned by the COVID-19 pandemic). For the substantive application, the Respondent confirmed that he wanted both stages (the liability and penalty stages) of the proceedings heard together. In the liability stage NCAT determines whether it should make adverse disciplinary findings against the Respondent, and in the "penalty" stage NCAT determines appropriate disciplinary (or protective) orders in the event of a finding that the Respondent engaged in professional misconduct or unsatisfactory professional conduct.
On the second day of the hearing (13 October 2021), the Respondent asked for a review of the refusal of a Registrar of NCAT on 11 October 2021 to issue a summons to the former Manager of the Applicant's Professional Standards Department to appear and to give evidence at the hearing. The Registrar had refused to issue the summons requested by the Respondent (on 7 October 2021) on the basis that there was no apparent forensic purpose for the summoned person to give evidence. We gave leave to the Respondent to make an oral application to challenge the Registrar's refusal of the summons in question. After hearing from the parties, we affirmed the Registrar's earlier decision not to issue the summons. We indicated that we would give reasons at a later stage. Our reasons are found at Annexure A.
Following the hearing, we gave the parties an opportunity to provide written submissions on the issue of NCAT's jurisdiction to determine the validity of the psychiatric report condition imposed on the Respondent's 2016/17 practising certificate, specifically whether that condition was authorised by s 53(2) of the Uniform Law.
While our decision was reserved, we also provided an opportunity to the parties to provide written submissions about potential non-publication (or confidentiality) orders under s 64(1) of the NCAT Act in respect of the Respondent and in respect of a person accused of a criminal offence whose name is included in the particulars of Ground 1 of the Application (hereafter in these reasons, simply referred to as "the Accused").
Further, following the publication on 4 May 2021 of the High Court's decision in Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16 (Citta Hobart), we gave the parties an opportunity to provide written submissions on the relevance (if any) of the High Court's decision to our consideration of the Respondent's summary dismissal application.

[5]

Professional misconduct

Professional misconduct can occur where the requirements of the statutory definition in s 297(1)(a) or (b) of the Uniform Law are made out. Sections 296 and 297 are as follows: 296 Unsatisfactory professional conduct For the purposes of this Law, unsatisfactory professional conduct includes conduct of a lawyer occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer. 297 Professional misconduct (1) For the purposes of this Law, professional misconduct includes - (a) unsatisfactory professional conduct of a lawyer, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and (b) conduct of a lawyer whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the lawyer is not a fit and proper person to engage in legal practice. (2) For the purpose of deciding whether a lawyer is or is not a fit and proper person to engage in legal practice as referred to in subsection (1)(b), regard may be had to the matters that would be considered if the lawyer were an applicant for admission to the Australian legal profession or for the grant or renewal of an Australian practising certificate and any other relevant matters.
It has been accepted by the NSW Court of Appeal that the definition of "professional misconduct" in s 297 is inclusive, and only one of either sub-ss (a) or (b) need be proved: Tangsilsat v Council of the Law Society of New South Wales [2019] NSWCA 144 at [62]-[68] (despite that Court observing that the legislative reasoning behind the choice of the conjunctive "and" rather than the disjunctive "or" used in s 297(1) is unclear). Also see e.g. Council of the Law Society of New South Wales v Parente [2019] NSWCA 33 at [7]-[11]. In its application before NCAT, the Applicant relies on s 297(1)(a), not s 297(1)(b).
If NCAT finds the respondent lawyer guilty of professional misconduct or unsatisfactory professional conduct, it may make "any orders that it thinks fit" including any of the orders that a local regulatory authority can make under s 299 and any one or more of the orders listed at s 302(1)(a) to (l) of the Uniform Law.

[7]

Applicant's evidence

The Applicant relies upon an affidavit of Mr Anthony Lean affirmed on 14 September 2021 (Exh A), affidavits of Ms Sionea Breust sworn 8 January 2019 (Exh B) and 29 May 2019 (Exh C), a report of Dr Westmore dated 31 May 2016 (Exh D), letter of instructions to Dr Westmore from Applicant dated 30 March 2016 (Exh E) and a report of Dr A Samuels dated 17 September 2015 (being a report which had been provided to Dr Westmore by the Applicant) (Exh F). Dr Westmore appeared as a witness at the hearing; he was cross-examined by the Respondent.
The affidavit of Mr Lean (the Applicant's Director, Legal Regulation) affirmed 14 September 2021 (the Lean affidavit) annexes an affidavit of Ms Anne-Marie Foord sworn on 20 November 2018 (the Foord affidavit) and Exhibit AMF-1 to the Foord affidavit. Ms Foord was formerly the Manager Professional Standards at the Law Society. The Respondent objected to the admission of those parts of the Lean affidavit which annex both the Foord affidavit and Exh AMF-1. We admitted the Lean affidavit into evidence in its entirety over objection.
We observe that Exh AMF-1 comprises copies of relevant Law Society records, and we agree with the Applicant's submission that this documentary material falls within the business records provision (s 69) of the Evidence Act 1995 (NSW) as an exception to the hearsay rule. We also agree with the Society's submission that, to the extent that the Foord affidavit canvasses matters concerning Ms Foord's own understanding and knowledge including the searches that were conducted in relation to location of relevant correspondence between the parties in 2016 and 2017, Mr Lean has addressed those matters separately and based upon his own review of, and searches of, Law Society files (or searches that he caused to be conducted).
Exhibit AMF-1 also includes transcripts of District Court proceedings on 3, 8,13, 20 and 21 February 2017, and we note that no objection was taken to the accuracy of the transcripts.
The Respondent objected to the Applicant's tender of the report of Dr A Samuels dated 17 September 2015 in unredacted form. The Respondent requested that, if the report were to be admitted into evidence, its use be limited. He made an application under ss 135 and/or 136 of the Evidence Act on the basis that the report had limited probative value and its admission would be unfairly prejudicial to him. We rejected the Respondent's application, and gave leave to the Applicant to tender the report in full (Exh F). While this report was not commissioned by the Applicant, but rather by another regulatory body, we considered the report to have potential relevance to the issues for determination because Dr A Samuels' views may have informed Dr Westmore's recommendations to the Applicant. We noted the oral submissions from both parties as to the limited relevance of Dr A Samuels' report to the issues for determination in these proceedings.

[12]

Submissions opposing dismissal

The Applicant submits that there is not a matter "arising under a treaty" or "arising under any laws made by the [Commonwealth] Parliament". Rather, these proceedings arise from a complaint procedure validly conducted under the Uniform Law. The disciplinary proceedings before NCAT was initiated by the Applicant pursuant to s 300(1), Uniform Law and falls to be determined by NCAT under enabling legislation and in the exercise of its "general jurisdiction" (ss 28, 29(1) NCAT Act). Nothing said by the High Court in Burns v Corbett supports the Respondent's application for summary dismissal.
The Applicant's submissions can be further summarised as follows: 1. Whilst a federal matter will arise where a law of the Commonwealth is the source of a defence that the defendant is immune from liability or obligation alleged against him, that principle does not assist the Respondent in the present case. As McTiernan J said in Felton v Mulligan (1971) 124 CLR 367 at 382: "A matter arises under a law of the Parliament when in a proceeding it is necessary that there should be a decision upon a claim made by one of the parties to the litigation which is based upon that law." 2. The raising of a federal claim will ordinarily give rise to a federal matter unless it is "colourable" in the sense that it is made for "the improper purpose of fabricating jurisdiction": Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation Ltd (1987) 18 FCR 212 (Burgundy Royale Investments) at 219. 3. The High Court in Citta Hobart confirmed the approach to determining how a justiciable controversy is to be identified as a matter arising under the Constitution or arising under laws made by the Commonwealth Parliament. The plurality determined as a "threshold question" whether the jurisdiction conferred on the relevant tribunal under the State anti-discrimination legislation to hear and determine a discrimination complaint involved the exercise of judicial power, finding that it did so in that case (at [11]-[16]). 4. The plurality further addressed the question of the threshold that any constitutional defence asserted needed to meet. At [35], and without departing from the approach taken in earlier cases, including Burgundy Royale Investments, it was held that, for a claim or defence in reliance on a Commonwealth law or in reliance on the Constitution, "it is enough that the claim or defence be genuinely in controversy and that it give rise to an issue capable of judicial determination. That is to say, it is enough that the claim or defence be genuinely raised and not incapable on its face of legal argument". 5. The plurality confirmed, consistently with Burgundy Royale Investments, that an enquiry as to whether an asserted constitutional defence is "colourable" or not does not involve an assessment of the prospects of the defence succeeding: at [37]. 6. Further, a claim or defence that would properly be rejected on its merits as an abuse of process (for instance, because it was "so clearly untenable that it cannot possibly succeed") will not necessarily be colourable in the relevant sense unless the claim or defence is found not to have been genuinely asserted. The plurality did not align the relevant threshold to that required for establishing an abuse of process, on the basis that the "suggested approach would blur the distinction between the existence of jurisdiction and the exercise of jurisdiction": at [42]. 7. Consistently with Citta Hobart, the Respondent's asserted defences do not meet the threshold of giving rise of an issue capable of judicial determination. That is, the defences are "colourable", not genuine, and have been asserted simply for the purpose of attempting to deprive NCAT of jurisdiction. The defences, which are not supported by the evidence filed in the proceedings, are a "nonsense": Citta Hobart at [37]. Put another way, and without suggesting a substantively different standard to that applied by the plurality, the defences are "manifestly hopeless": [77] per Edelman J.

[13]

Consideration

It is well-established that NCAT is not a "court of a State" for the purposes of Ch III of the Constitution and cannot exercise federal jurisdiction: Attorney General v Gatsby (2018) 99 NSWLR 1; [2018] NSWCA 254. It is not in dispute that the "adjudicative authority in respect of matters listed in ss 75 and 76 is to be exercised only by 'courts'": Burns v Corbett (2018) 265 CLR 304; [2018] HCA 15 at [49]. Federal matters include "defences" which are raised under Commonwealth laws: see Felton v Mulligan (1971) 124 CLR 367 at 388.
In Citta Hobart, the High Court approved the approach of the NSW Court of Appeal in Wilson v Chan & Naylor Parramatta Pty Ltd (2020) 103 NSWLR 140; [2020] NSWCA 213 at [25] concerning authority of a tribunal (which is not a "court of a State") to decide jurisdiction. Whilst tribunals cannot exercise Ch III powers, a tribunal such as NCAT is "invested with non-judicial power" to determine the "limits of its own jurisdiction" for the purpose of adjudicating a matter: Citta Hobart at [24]. NCAT's opinion on the question of jurisdiction is not binding in the sense of an authoritative decision of a court, although that does not prevent NCAT from forming an opinion (see by analogy Qantas Airways Ltd v Lustig (2015) 228 FCR 148 at [91]).
To ascertain NCAT's jurisdiction in these proceedings we must, firstly, ascertain the nature of the function or power exercised (either administrative or judicial). This is because the "matters" with which ss 75 and 76 of the Constitution are concerned are matters involving, or calling for the exercise of, judicial power (see e.g. GS v MS [2019] WASC 255). Second, if there is an exercise of judicial power in the requisite sense, we must form a view as to whether any constitutional limits are engaged with respect to a federal law or treaty.
The High Court in Citta Hobart at [34] provides clear guidance for tribunals when determining how a justiciable controversy is to be identified, as either a "matter" arising under the Constitution or under Commonwealth laws: "it is enough that the claim or defence be genuinely in controversy and that it give rise to an issue capable of judicial determination. That is to say, it is enough that the claim or defence be genuinely raised and not incapable on its face of legal argument." (Emphasis added.)
Therefore, without examining the merits of the claim, it must be determined whether the Respondent's claim has been "genuinely raised" and is "capable of legal argument." Should the defence meet the threshold established by Citta Hobart, then the claim forms part of a "single justiciable controversy" comprising a matter under ss 75 or 76 of the Constitution and can only be properly determined in courts which are able to exercise federal jurisdiction. However, should the federal claim fail to meet the threshold mandated by Citta Hobart, there is no federal matter in the required sense, such that the Respondent's summary dismissal application must be rejected.

[14]

"Matter" - whether exercise of judicial or administrative power

In Citta Hobart, the High Court found that the state tribunal exercised judicial power in its hearing and determination of the discrimination complaint before it under State law. That suggests that in the present case, there is a threshold question as to whether NCAT exercises (State) judicial power in hearing and determining s 300, Uniform Law proceedings. Neither party has made submissions which address this point.
In Gaynor v Attorney General of New South Wales (2020) 102 NSWLR 123; [2020] NSWCA 48 at [90], Basten JA held that "[s]ome functions of the tribunal may not give rise to "matters" for the purposes of federal jurisdiction." One of these functions is where NCAT exercises purely administrative functions. NCAT has jurisdiction "regardless" of an issue arising under ss 75 or 76 where it exercises administrative functions derived from its statutory powers, as there is not a "matter" which engages the constitutional limits: see also GS v MS [2019] WASC 255 at [37].
The question to be determined is whether the power to determine disciplinary proceedings under s 300 of the Uniform Law can be characterised as administrative or judicial power. Identifying the line between administrative and judicial power is not always simple, in part because there are features common to both. In Precision Data Holdings Ltd v Wills (1992) 173 CLR 167; [1991] HCA 58 (Precision Data) at 189, the High Court observed: "Thus, although the finding of facts and the making of value judgments, even the formation of an opinion as to the legal rights and obligations of parties, are common ingredients in the exercise of judicial power, they may also be elements in the exercise of administrative and legislative power."
In determining s 300, Uniform Law proceedings, NCAT exercises its general jurisdiction under s 29 of the NCAT Act. This can be contrasted with the position where NCAT conducts an administrative review under the Uniform Law. An example is where the Council of the Law Society of NSW makes a decision about a disciplinary matter in relation to a solicitor under s 299 of the Uniform Law, and the solicitor later seeks administrative review of that decision in NCAT: Uniform Law, s 314; Application Act, s 126; Administrative Decisions Review Act 1997 (NSW). In such a case, NCAT exercises its "administrative review jurisdiction" under s 30 of the NCAT Act. Further administrative review rights for legal practitioners are contained in the legislative scheme regulating legal practitioners and are not necessary to describe here.
In a recent Victorian case, McArdle v Legal Services Board (Legal Practice) [2021] VCAT 743, VCAT confirmed that where it conducts an administrative review under s 100(3) of the Uniform Law applying in Victoria, such proceedings involves the exercise of administrative, not judicial power. The applicant agitated the issue of VCAT's jurisdiction to hear a dispute between residents of different states, where she had recently relocated to NSW (s 75(v), Constitution). This was in the context of her administrative review application under s 100(3), Uniform Law which challenged a decision made by the Victorian Legal Services Board to refuse to renew her practising certificate. After examining both the nature of the proceedings and the remedies available to it, VCAT held that an application under s 100(3), Uniform Law clearly fell within VCAT's review jurisdiction. Where the focus of the proceedings was to make the correct and preferable decision and the orders available included the grant, cancellation or variation of a practising certificate, each of these functions bore an administrative character. Ultimately, VCAT held that it had the requisite jurisdiction as the proceedings involved "the exercise of administrative rather than judicial power": at [4].
Disciplinary applications under s 300 of the Uniform Law can be contrasted, in some key respects, from administrative review applications under the Uniform Law. We have not located any decision where a court or tribunal has expressed a view as to whether the exercise of functions under s 300, involves an exercise of administrative or judicial power. We are aware of several cases (to which we will refer briefly below) in which the nature of disciplinary proceedings involving a health practitioner context has been relevantly considered.
In Medical Board of Australia v Kemp [2018] VSCA 168 (Kemp), the Victorian Court of Appeal (in an appeal from VCAT) considered the nature of disciplinary proceedings conducted in VCAT (under the Health Practitioner Regulation National Law (Victoria) Act 2009) in the course of deciding whether witnesses could be compelled to give evidence in "civil proceedings". While the Court did not decide, in conducting such proceedings, whether VCAT was exercising administrative or judicial power, its analysis of the nature of the proceedings does provide some guidance as to the nature of the power exercised by tribunals in occupational disciplinary proceedings. The Court (Niall JA; Maxwell P and Tate JA agreeing) at [166] concluded: "[I]n hearing and determining a matter referred to it by the [Medical Board of Victoria], VCAT is not involved in a process that represents a curial adjudication of private rights. That is because: (a) the VCAT proceeding is regulatory in nature, and serves a public purpose by enforcing standards applicable to health practitioners; (b) the proceeding is not a dispute inter partes. VCAT is hearing a matter referred to it for determination by a regulatory body that performs a public function and has no private interest in the outcome of the proceeding; (c) relatedly, the outcome of the proceeding is not determinate of private rights. The right to practise as a registered health practitioner, and the conditions on which that may be allowed to occur, involve the regulation of a public licence rather than a conferral of a private right; (d) the rules of evidence, and the practices and procedures that apply in courts, have no application (except to the extent that they are adopted by VCAT)."
In Health Care Complaints Commission v Murray [2018] NSWCATOD 119 (Murray), NCAT found that the constitutional limitation under s 75(iv) of the Constitution was not engaged where a pharmacist, who was the subject of disciplinary proceedings under the Health Practitioner Regulation National Law (NSW), had become a resident of a different State by the time of the tribunal hearing. The s 75(iv) question was answered as follows: firstly, the complaint referred to NCAT by the Health Care Complaints Commission (a NSW government body) was characterised as involving a resident of another State and the State of NSW. Second, in determining a complaint under the National Law, NCAT did not exercise judicial power, but rather administrative power.
The Tribunal referred with approval to Kemp as providing useful guidance to the nature of disciplinary proceedings under the health practitioner national law. While it was accepted that some of NCAT's functions displayed features of judicial power, which included "the delivery of a binding and authoritative decision and the requirement to observe principles of open justice and the rules of procedural fairness" (at [21]), there were a number of other factors that pointed to the exercise of administrative power.
Reliance was also placed on Albarran v Members of the Companies Auditors and Liquidators Disciplinary Board (2007) 231 CLR 350; [2007] HCA 23 (Albarran) in which the High Court held that the exercise of the power to cancel or suspend the registration of a person as a liquidator by the Companies Auditors and Liquidators Disciplinary Board is in the nature of administrative not judicial power. As NCAT said at [21]: "While Albarran is not authority for the proposition that the power exercised by a body in occupational disciplinary proceedings in all cases will be administrative in nature, it is nonetheless supportive of the proposition that the power to determine a complaint brought under the National Law is administrative in nature." NCAT ultimately found that where it was empowered to cancel or suspend the registration of a person, its power was "more aptly characterised" as administrative power.
The purpose of upholding standards of integrity and competence amongst professionals and others who engage in activities involving elements of public trust has long been recognised as protective. In Alexander v Minister for Home Affairs [2022] HCA 19 (Alexander) at [107]-[108], Gageler J referred to the distinction between a punitive purpose and a protective purpose in the context of deciding whether a decision-maker other than a court exercises judicial or non-judicial power. When undertaken as an incident of a legislative scheme designed to uphold such standards, "it is not readily to be assumed that disciplinary action, however much it may hurt the individual concerned, is personal and retributive rather than corporate and self-respecting", citing Albarran. In Kemp at [74], the Victorian Court of Appeal observed that tribunals and bodies other than courts (at both State and federal level) are "commonly engaged in adjudication on professional standards and impose sanctions in the public interest. Their function does not entail the exercise of judicial power."
In our view, the hearing and determination of proceedings concerning legal practitioners initiated under s 300 of the Uniform Law displays features of both administrative and judicial power.
Some of the accepted indicia of judicial power are: the delivery of a binding and authoritative decision, requirements to observe open justice principles and the rules of procedural fairness (s 319, Uniform Law; s 38(5), NCAT Act), and the requirement to observe the rules of evidence in cases alleging professional misconduct: s 301(3), Uniform Law; Sch 5 cl 20, NCAT Act.
On the other hand, there are a number of factors present which suggest that the power exercised by NCAT is more aptly described as administrative, not judicial. Indicia such as referrals from regulatory bodies are suggestive of administrative power. While the Uniform Law does not use the language of "referral" as found in the Health Practitioner National Law, nonetheless the two statutory schemes governing legal practitioners and health practitioners are not dissimilar. In the case before us, the disciplinary proceedings were initiated by the Applicant under s 300(1), Uniform Law on the "opinion" that the Respondent may have engaged in either unsatisfactory professional conduct or professional misconduct.
Moreover, the protective purpose of s 300 proceedings is strongly suggestive of administrative power. Both the Applicant, in bringing the proceedings to the Tribunal, and NCAT, in hearing and determining the proceedings, exercise regulatory functions for protective purposes, pursuant to statutory powers, ultimately in the public interest and for a public purpose. Relevant objectives of the Uniform Law are to "maintain high ethical and professional standards" and to enhance the "protection" of clients in legal matters and the general public: s 3(b) and (c), Uniform Law.
Further, the outcome of s 300 proceedings does not represent a curial adjudication of private rights, nor does it determine a dispute inter partes, in the sense described in Kemp.
In Precision Data, the High Court indicated that, where the central consideration is about the future rights or obligations of the parties (in contrast to a dispute about the existing rights and obligations of the parties), "then the function stands outside the realm of judicial power" and is more aptly considered an administrative function (at 188-189). Here, the nature of the available orders in s 300 proceedings, none of which resolve a dispute concerning the existing rights of a respondent lawyer, are indicative of functions or powers which are more administrative in nature. Where a respondent lawyer is found "guilty" of professional misconduct or unsatisfactory professional conduct, there is a broad range of orders available to NCAT which regulate the future rights of a respondent lawyer (s 302, Uniform Law). These include orders that the lawyer "do or refrain from doing something in connection with the practice of law"; for the lawyer's practice to be "managed" in a specific way; for the lawyer to seek advice about management of the lawyer's practice from a specified person; recommending the lawyer be removed from the roll; and directing that the lawyer's registration be "suspended" or "cancelled."
It is acknowledged that NCAT's role is to apply the Uniform Law to the conduct of the Respondent and ultimately decide whether the Respondent is "guilty" of professional misconduct: s 302(1), Uniform Law. However, it should not readily be assumed that, where a decision-maker other than a court is charged with the statutory task of determining "guilt", this involves the exercise of judicial power. A determination of "guilt" does not, of course, involve NCAT in forming an opinion that the respondent lawyer has committed a criminal offence, rather, it involves NCAT making a finding as to whether the respondent lawyer has engaged in conduct which falls below acceptable standards for the legal profession. In the federal context, it has been held that a decision-maker responsible for administering a licensing regime (with a purpose of protecting the Australian community) does not exercise the exclusively judicial power of adjudging and punishing criminal guilt merely by making its own inquiry and forming its own opinion that a licensee committed a criminal offence in the course of determining whether that licensee has breached a condition of its licence: Alexander at [109], citing Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 255 CLR 352 at 371, 380.

[16]

Whether federal matter - Corporations Act defence

The Respondent relies on s 232(a), (b) and (e) of the Corporations Act to mount a defence to his prosecution under s 300, Uniform Law. He seeks to invoke remedies and grounds under the Corporations Act which concern "member's rights and duties" if an act on behalf of a company is considered "oppressive, unfairly prejudicial or unfairly discriminatory" toward a "member" of that corporation.
The Respondent submits that he has a justiciable matter under the Corporations Act because the Applicant's actions in the imposition of the conditions, or requiring compliance with them, amounted to a threat or interference with his livelihood and reputation; the defence is supported by evidence in the proceeding; is not a legal "nonsense" and answers the description in s 76(ii) of the Constitution of a matter "arising under" a federal law.
In written and oral submissions, the Respondent contends (in highly generalised terms) that the imposition of conditions on his practising certificate was so "onerous", "unreasonable" or discriminatory that the behaviour of the Applicant could only be described as "oppressive" for the purposes of s 232, Corporations Act. Without further elaboration, he says that characteristics in which persons (including a corporation) "might" discriminate against him included his age, gender, racial heritage and physical attractiveness.
The only example pointed to by the Respondent is found in his written submissions of 10 June 2022 lodged in accordance with our directions, while reserved, consequent on the publication of Citta Hobart. He says that the imposition of the psychiatric report condition was both "unfairly prejudicial" and "unfairly discriminatory", intimating that the condition, which required several stages (including referral from his general practitioner, approval by the Applicant, finding a psychiatrist who accepted Medicare and producing the reports in a short timeframe), was "daunting" and "practically impossible" for someone in the position of the Respondent.
The Applicant contends that the Respondent has failed to engage with the legislation. The Applicant (in written submissions of 17 June 2022) states that the Respondent is not a "member" of the Council of the Law Society of NSW, which indeed has no members. The Council is the governing body of the Law Society of NSW, which is a corporation and does have membership. A "member" for the purposes of s 232 of the Corporations Act is defined in s 231 as either a member of a company "upon registration", as agreed with the company "after registration" and membership arising from the conversion of the company shares. The remedies set out in s 233 of the Corporations Act are plainly not orders that a court could make in relation to the Council of the Law Society of NSW (which is not an incorporated entity).
In our view, the Respondent's "defence" raised under the Corporations Act is misconceived. It is the Council of the Law Society of NSW, an unincorporated entity, which imposed the conditions in June 2016, and it is the Council which has brought the s 300, Uniform Law proceedings to NCAT. We agree with the Applicant's submissions that the Respondent has failed to engage with the legislation in question. We do not consider that a claim has been "genuinely raised". Moreover, we consider that the defence raised "is incapable on its face of legal argument": Citta Hobart at [35]. We agree with the Applicant's submission that the Respondent's raising of this federal defence is "colourable" in the sense described in case law, including Burgundy Royale Investments.
The Respondent's supplementary written submissions of 10 June 2022 also raise the argument, in apparent reference to his Corporations Act defence, that actions of the Applicant were "legally unreasonable, irrational, illogical or impossible to comply with" relying on Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18. We say later below that we do not give leave for the Respondent to raise a new ground of "unreasonableness" in relation to his collateral challenge to the validity of the psychiatric report condition. However, to the extent that the Respondent raises an argument based on Li as relevant to his summary dismissal (federal jurisdiction) argument, we have considered his submission.
We agree with the Applicant's submission that the Respondent's argument regarding Li is irrelevant to his asserted Corporations Act defence. The question of whether a discretionary power has been exercised reasonably or not (in the legal sense) is a different question from whether the repository of power has engaged in oppressive, or unfairly prejudicial or discriminatory conduct.

[18]

Submissions

The Respondent asserts unlawful discrimination by the Applicant in failing, or refusing to provide, reasonable adjustment through its imposition of the practising certificate conditions or its actions in requiring compliance with the conditions. The only examples given by the Respondent (in his 10 June 2022 submissions) are as follows.
Firstly, the Applicant failed to provide reasonable adjustment through its failure to arrange for an independent psychiatrist to examine him for the purposes of Condition 5. The failure or refusal caused expense and inconvenience to a "disabled solicitor", "unjustifiable hardship", amounting to a form of direct discrimination under s 5, DDA. The discriminatory conduct resulted from the Applicant's failure to take steps to ensure that the Respondent would enjoy the same rights as other solicitors.
Second, the Applicant failed, or refused to provide, reasonable adjustment because the psychiatric report condition required him to seek "treatment/counselling" and to develop a therapeutic relationship with a new psychiatrist every 6 months. We discuss later the meaning of the condition when we provide our reasons as to why the Respondent failed to comply with its requirements. We observe at this point that the condition did not require him, in terms, to seek treatment or counselling. Nor did the condition require him "to develop a new therapeutic relationship with a new psychiatrist every 6 months".
In response, the Applicant submits that the Respondent's federal disability discrimination claim is manifestly hopeless and incapable of grounding a defence. Even if it were considered arguable that the Applicant had engaged in any conduct as alleged that contravened the Respondent's rights under the DDA (which the Applicant denies), such matters do not, and cannot, constitute a "defence" to either ground of the Application. There is no suggestion (nor could there be) that a contravention of s 5, DDA by the Applicant in imposing the psychiatric report condition invalidates the condition, or that it provides an answer (or defence) to the Respondent's failure to comply with the condition. The fact that any contravention by the Applicant of the DDA might give rise to remedies that the Respondent may have a right to pursue in another forum - for example in the Australian Human Rights Commission (AHRC) - in no way impacts on NCAT's determination of the present matter. No genuine or arguable controversy concerning the DDA arises in this case.

[19]

Consideration

It should be stated that the Respondent has not identified the disability on which he relies to ground his s 5, DDA claim. He stated in oral submissions that he "suffer[s] from a chronic condition and is currently receiving treatment for his long-term disability, but it has nothing to do with his mental health condition": Tcpt, 13 October 2021, p 72(50). In written submissions dated 10 June 2022, the Respondent referred to a number of medical reports ranging in dates from 2002 to 2019 (and included brief summaries of those reports). Only two of those reports are in evidence before us. It is not clear whether the Respondent intended us to infer from his reference to previous medical reports that he had (at relevant times) a "disability" for the purposes of the DDA.
We agree with the Applicant that any claim the Respondent might have under the DDA is to be raised in a different forum such as the AHRC rather than in the course of Uniform Law disciplinary proceedings. For a claim of federal disability discrimination to be effected, the procedure established in Part IIB - Division 1 of the Australian Human Rights Commission Act 1986 (Cth) (AHRCA) is to be followed. In general terms, this requires a written complaint to be made to the AHRC alleging either that either acts or omissions have occurred, and those allegations consist of unlawful discrimination (s 46P(1)(a) and (b)). It must be "reasonably arguable" that the conduct amounts to unlawful discrimination (s 46P(1A)) and must "as fully as practicable" set out the details of the alleged conduct (s 46P(1B)). The President of the AHRC must either: inquire into the complaint, terminate the complaint without inquiry or inquire and conciliate the complaint (s 46PF(1)). Application may be made by a complainant to a federal court only where the complaint is terminated under Div. 1 and the court grants leave.
In Greyling v Nursing and Midwifery Board of Australia [2014] NSWCATOD 52, a claim of federal disability discrimination was raised in the context of health practitioner disciplinary proceedings in NCAT. However, it would seem evident from the reasons for decision that the applicant had followed the procedure stipulated by the AHRCA, and had commenced proceedings in the Federal Circuit Court prior to requesting a stay in NCAT of the disciplinary proceedings. On this basis, the applicant was granted a stay as this could have a "material outcome" on her disciplinary proceedings in NCAT: [41], [43]. In the current proceedings, the Respondent has provided neither evidence of a complaint being lodged with the ARHC nor evidence of proceedings having been commenced in a federal court, and certainly he has sought no stay on this basis.
In terms of the test in Citta Hobart, we do not consider that the Respondent's DDA claim has been "genuinely raised" in the disciplinary proceedings before us. We are further of the view that the Respondent has not raised a 'comprehensible' claim which is not "foredoomed" to fail (Citta Hobart at [40]). We reject the Respondent's submission that he has a claim under s 5, DDA which can give rise to a defence in these proceedings under s 300 of the Uniform Law, as opposed to providing possible grounds on which he may make a complaint in accordance with the stipulated statutory procedure.
The Respondent further submits that the rules of statutory construction should be adopted in cases of ambiguity with regard to the DDA, citing Plaintiff S157/2002 v Commonwealth [2003] HCA 2 at [29]-[31] per Gleeson CJ. He has not identified any ambiguity, and, even if he had done so, this submission does not assist the Respondent in establishing a "federal defence".
We agree with the Applicant's submission that the Respondent's claim is "an assertion without any proper foundation". It is not a defence to disciplinary proceedings in NCAT.

[20]

Whether federal matter - Convention on Rights of Persons with Disabilities defence

The Respondent submits that the disciplinary proceedings are a matter "arising under [a] treaty" in the sense contemplated by s 75(i) Constitution, and that, in imposing the conditions or requiring compliance with them, the Applicant contravened his rights under the CRPD. He properly conceded (in further written submissions dated 10 June 2022) that the CRPD has not been "fully incorporated" into Australian law.
Further, the Respondent contends that the CRPD can help construe "ambiguity" in the DDA because it includes more expansive definitions of terms such as: disability (Art 1); 'reasonable accommodation' (Art 2); and direct discrimination (Art 5); and does not include exemptions for employers (which he contrasted to s 21A, DDA).
In its submissions, the Applicant argues that NCAT should reject the Respondent's reliance on the CRPD on two grounds. First, international obligations can only operate "if, and to the extent" they have been incorporated into Australian legislation: M1-202 v Minister for Home Affairs [2022] HCA 17 (M1-202). Secondly, whilst the Respondent has relied on the CRPD as an "interpretive aid," he has not identified with any clarity or specificity, any relevant ambiguity which would warrant consideration of the terms of the CRPD. The CRPD has no relevance as a defence to the grounds of the Application.
To the extent that the Respondent asserts he has independent rights arising from a treaty or international law obligations, this submission must be rejected. In M1-202, the High Court recently affirmed that, "an international treaty… can operate as a source of rights and obligations under domestic law only if, and to the extent that, it has been enacted by Parliament": at [20].
The CRPD has only limited application in in Australian domestic law. Part 2 of the DDA (s 12(8)) provides enforceable rights "in relation to acts done by, or on behalf of" the Commonwealth or a Commonwealth body exercising powers conferred on it by the Commonwealth (s 12(7)(a) and (b), DDA). The Respondent has limited his disability discrimination claim to s 5, which relevantly falls within Pt 1 of the DDA. In this respect, the Respondent would seem to have no independent rights or obligations arising from the CRPD on which he can rely in an appropriate forum.
Insofar as the Respondent relies on the CRPD as an interpretive aid, we agree with the Applicant's submission that there is no ambiguity identified, nor do we consider that the Respondent's submission on this point assists his federal jurisdiction arguments.

[26]

Facts specific to consideration of Ground 1

It is not in dispute that the Respondent appeared, unaccompanied by any other lawyer, in the criminal jurisdiction of the District Court of New South Wales, on the mention of proceedings against the Accused on 3 and 8 February 2017 before Blackmore DCJ, and on 20 and 21 February 2017 before Sweeney DCJ. We make this finding.
Before we consider whether the Respondent engaged in unsupervised legal practice during the course of those appearances in the District Court, it is helpful to set out the relevant background and to make the findings of fact below.
Prior to the Respondent's first appearance on behalf of the Accused on 3 February 2017, the Respondent was approached by a fellow legal practitioner who asked the Respondent if his firm (i.e. SCB Legal) would be willing to help the Accused, who was facing criminal charges in the District Court, as he was unrepresented and spoke little or no English. SCB Legal was (at all relevant times) a law practice on the Legal Aid Panel. At that stage, the Accused had already lodged an application for a grant of legal aid. The Respondent sent a text message to his supervisor at SCB Legal, Ms Breust, at 11:05am, in which he told Ms Breust that he was: "...rushing back to Downing Centre, potential legal aid client for jury trial. Client's name is (the Accused's name)…"
At around 11:38am the Accused's proceedings was mentioned. The Court transcript contains a notation that the Respondent "appears for the Accused…". Another matter was interposed, and, on resumption of the Accused's matter, the Federal Prosecutor (from the Office of the Commonwealth Director of Public Prosecutions (CDPP)) explained to Judge Blackmore that the Respondent "is here to assist" and the Respondent addressed the Judge in these terms: "Your Honour, I have spoken to Legal Aid but there is a bit of a hurdle…I haven't spoken to my principal but on my behalf I am willing to sign on as (the Accused's) representative on a pro bono basis until the grant is given…is it possible I can acquire the assistance of the Court interpreter so I can get some instructions from him…"
It is common ground that at the time of the Respondent's appearance described above, the Accused was not a client of SCB Legal, and the Respondent had no express instructions from Ms Breust to appear for the Accused on behalf of SCB Legal. She was at all relevant times responsible for supervising his work.
On the afternoon of 3 February 2017, at or about 2pm, there was a telephone conference involving Ms Breust, the Respondent, the Accused and a court interpreter. The Respondent was at the Downing Centre with the Accused and interpreter; Ms Breust was at another location. At some stage during or at the end of that teleconference, the Accused signed a note which authorised "Albert Judah of SCB Legal" to act for him in all his criminal matters, and "transferring" any legal aid grant to SCB Legal. There are differing accounts in the evidence as to what was said to the Accused during that teleconference and whether the terms of that written authorisation were approved by Ms Breust. We will discuss this aspect of the evidence further below under the heading "The Accused's written authorisation".
On that day, there were several phone calls between the Respondent and/or his supervisor and Legal Aid about the application made by the Accused for a grant of legal aid. Contemporaneous file notes made by a Legal Aid employee are in evidence, having been tendered by the Respondent at the hearing with the Applicant's consent. Neither party has challenged the account of the phone discussions recorded in those file notes, the file notes were made by a person with no interest, and we will therefore assume that they are an accurate description of what transpired.
During one phone call with Legal Aid on 3 February 2017 (time unknown) with the Accused, court interpreter and the Respondent, Ms Breust told Legal Aid that "her solicitor (Albert) was acting on a duty basis today and wanted to assist with the client as he spoke minimal English." The Legal Aid employee said she was unable to speak with SCB Legal about the Accused's legal aid grant. The Respondent phoned the same Legal Aid employee later, asking her to reject the Accused's original application so that SCB Legal could lodge a fresh application on behalf of the Accused. She refused to do so, saying on several occasions that was not the proper process. In her file note, the employee also records that "Albert continued to tell me that he was going to assist the client on a pro-bono basis".
Ms Breust states that on 3 February 2017 she had told the Respondent by telephone that, in the Accused's matter: "… we would instruct Counsel and he could instruct, if Legal Aid was granted. Mr Judah then said words to the effect "If Legal Aid is not granted can I run the trial?", to which I replied "No, I do not know anything about this matter. I have not observed you enough in a Court environment and I do not give consent for you to run the trial as an employee of SCB Legal."
This information is included in a letter from Ms Breust to the Applicant dated 20 April 2017, in response to a letter dated 19 April 2017 from the Applicant. While details about this conversation between the Respondent and Ms Breust are not included in her affidavit evidence, her stance in that letter is consistent with other evidence, which shows that she consistently told the Respondent that SCB Legal would not act for the Accused without a grant of legal aid being assigned to SCB Legal. We do not understand the Respondent to dispute this.
The next mention of the Accused's proceedings was on 8 February 2017. On that morning the Respondent and Ms Breust exchanged text messages at or about 10:15am. It is plain that in this exchange, that the Respondent is asking Ms Breust (among other things) whether he should request the District Court Judge to excuse the Accused from attendance that day. Ms Breust responds: "Yes. But do we have legal aid? If not we aren't doing it …"
The Respondent in response confirmed that legal aid had not been granted but added a warning that if the Accused were not to appear before the Court in person or by legal representative, a warrant could issue for his arrest. Ms Breust responds: "He is not our client- that is not our problem. I have not given permission for you to run a trial under my firm name and insurance."
The mention on 8 February 2017 was to ascertain the status of the Accused's legal aid grant application, and his readiness to commence the trial on 20 February 2017. The Respondent appeared for the Accused, stating to the Court that "I have written instructions from my client last week that I am to represent him in this matter". This was a reference to the Accused's written authorisation signed on 3 February 2017.
The Accused's matter was next listed for mention on 13 February 2017 before Judge Sweeney. The Respondent was noted in the record as appearing for the Accused. After that day's proceeding before Judge Sweeney on the evening of 13 February 2017, the Respondent asked Ms Breust by text message whether another employee of the practice could attend Court to observe what the Respondent describes as "the jury trial with (the Accused)'s matter". Ms Breust replied: "I haven't given you permission even with legal aid, to run the trial - I told you to brief counsel if we get legal aid."
In an email from Ms Breust to the Respondent on 13 February 2017 at 9.05pm, Ms Breust appears to allow the Respondent to appear in the Accused's matter as "fury" (presumably a mistyping of "duty") solicitor but she adds: "… but please make it absolutely clear that is not on behalf of and has no connection to your employment at SCB Legal."
On 14 February 2017 a solicitor from the CDPP sent an email to the Respondent about the 6 volume brief in the matter, on the understanding that the Accused had authorised the Respondent to collect the brief. The solicitor also advised that the Crown opposed his representation of the Accused, and that it would seek to raise, with the Court, the Respondent's intention to appear in the Accused's trial on an amicus or duty solicitor basis rather than as an employed solicitor. The Respondent replied on that same day, by email, saying he did not have permission from his principal to run the jury trial under the name of SCB Legal if legal aid is not approved, and that he will be seeking leave from the Court on 20 February 2017 to run the trial either as amicus or as duty solicitor for the Downing Centre.
At the mention of the Accused's matter on 20 February 2017, the Respondent appeared for the Accused. The Crown Prosecutor raised the issue of the Respondent's status as an employed supervised solicitor who did not have permission from his principal to conduct the Accused's trial. Judge Sweeney questioned the Respondent in some detail about his representation of the Accused and his request for leave to conduct the trial, and asked him questions about insurance cover if he were to conduct the trial on a pro bono basis.
On the afternoon and evening of 20 February 2017 the Respondent and his principal exchanged a series of emails, during which the Respondent confirmed he had told the Court earlier that day that his principal had not given him permission to run the trial, nor is it likely that she would, and that is why the Judge wanted to see his insurance certificate. In an email to the Respondent at 4:04 pm concerning SCB Legal's insurance, Ms Breust says: "The insurance certificate does not increase your insurance and I don't give permission, Albert. We did not agree on $10,000 to run a trial and I said you can only do it amicus or duty not with my permission. I have not seen the brief and cannot supervise".
About SCB Legal's insurance, she further said: "I'm not sure how that will help you as you don't have permission from SCB Legal and it is only effective when you're acting in the capacity of an employed solicitor."
In a later email back to Ms Breust, the Respondent said: "what I am doing is highly irregular…I am asking leave from a judicial officer to allow me to run a jury (or judge only) trial when my principal has not given me permission to do so".
On 21 February 2017 and during the Respondent's appearance on behalf of the Accused in Court, the Accused formally withdrew his instructions for the Respondent to continue representing him and the Respondent was granted leave to withdraw from the proceedings.

[27]

The Accused's written authorisation of 3 February 2017

The Respondent relies on the Accused's written authorisation in relation to his appearances before the Court on 8, 20 and 21 February 2017. The written authorisation (in the Respondent's handwriting) signed by the Accused in the presence of the interpreter, and dated 3 February 2017, is in the following terms: "I hereby authorise Albert Judah of SCB Legal to be my lawyer in all my criminal matters and for the legal aid grant to be transferred to SCB Legal."
We said earlier that there are some differences in the accounts of Ms Breust and the Respondent about what was said to the Accused during the teleconference at 2pm on 3 February 2017. According to Ms Breust in her affidavit evidence, she said words to the following effect to the Accused: "…if you would like SCB Legal to represent you in relation to your matter, please sign a document appointing SCB Legal as your legal representative and assigning any grant of legal aid for your matter to SCB Legal. We cannot represent you unless legal aid is assigned to us."
Ms Breust also says it is unlikely that she would have indicated to the Accused that he appoint the Respondent as his legal representative. She was on the Legal Aid panel, and the Respondent was not. Ms Breust deposes: "I do not remember if I said to (the Accused) words to the effect that he should sign a document appointing the Respondent as his legal representative. It is unlikely that I would have said words to that effect to (the Accused). I would generally ask persons in (the Accused)'s position to sign a document appointing me or SCB Legal to act on the person's behalf. On and around 3 February 2017, I was under the impression that Legal Aid would not have granted SCB Legal funding for the Respondent to act as a legal practitioner on the client's behalf."
According to the Respondent, and as recorded in his affidavit of 10 December 2018, in that same telephone conference Ms Breust: "...asked (the Accused) to sign a document appointing me as his legal representative and to assign any grant of legal aid to SCB Legal."
In his affidavit of 25 June 2019, the Respondent asserts that his supervisor authorised him as the contact solicitor and he would not have agreed to put his name as contact solicitor (in the written authorisation) without her permission. He refers to a report she provided to the Applicant on 28 March 2017 (apparently for the purpose of compliance with Condition 3 of his 2016/17 practising certificate) where Ms Breust wrote: "Mr Judah was quite reliant on my opinion and views in relation to advice and progress of a matter…" He also says that his supervisor faxed or emailed that document to Legal Aid and that she would not have sent the document to Legal Aid if she did not approve of its contents.
The Respondent in cross-examination at the hearing said he did not remember her saying to the Accused "we cannot represent you unless legal aid is assigned to us", but he accepted the proposition put to him by Counsel for the Applicant that Ms Breust was very concerned about ensuring that the Accused was granted legal aid before SCB Legal commenced acting for him: Tcpt, 30 September 2021, p 24(9)-(10).
Ms Breust's account of what she told the Accused is consistent with other evidence which confirms that she told the Respondent her law practice would represent the Accused only if he obtained a grant of legal aid and that was assigned to the practice. We think it was more likely than not that she conveyed that same message to the Accused. Ms Breust, whose affidavits were tendered by the Applicant, was not required by the Respondent for cross-examination on her affidavit evidence. We regard her evidence as credible.
Ms Breust's credit is enhanced by her willingness to make appropriate concessions. She was frank enough in her affidavit evidence to say that she cannot recall whether she told the Accused to sign a document appointing the Respondent as his legal representative, but that it was unlikely. When the written authorisation was written and signed, Ms Breust was in a different location from the Respondent, the Accused and the interpreter. Accordingly, she was not in a position to see, settle or approve the form of the written authorisation which was given to, and signed by, the Accused at that teleconference. The Respondent, during cross-examination, said that he would have agreed the wording with Ms Breust prior to the teleconference, but provides no other evidence in this respect, nor did he raise this point in any affidavit evidence filed prior to the hearing. In cross-examination he was unable to explain why he had not raised this point earlier in affidavit evidence, despite proceedings having been on foot since 2018: Tcpt, 30 September 2021, p 24(38)-(50) and p 25(2)-(3).
While we do not regard the Respondent's evidence on this aspect as entirely reliable, it may be that that there was some misunderstanding between Ms Breust and the Respondent as to whose name should be inserted, on behalf of SCB Legal, in any written document signed by the Accused. It is not necessary to make findings of fact in this regard. During cross-examination, the Respondent emphasised that the sole purpose of the document was for Legal Aid purposes, i.e. to give to Legal Aid so that Legal Aid could discuss the Accused's case with SCB Legal pending a grant of legal aid (which did not eventuate): Tcpt, 30 September 2021, p 25(40)-(45).
The written authorisation in its terms differs from what Ms Breust said she told the Accused. The document does not include the words "we cannot represent you unless legal aid is assigned to us", thus suggesting that the Accused became a client of SCB Legal regardless of whether a grant of legal aid was assigned. However, Ms Breust's consistent position, communicated to the Respondent on a number of occasions, was that SCB Legal would not represent the Accused in his criminal proceedings without a grant of legal aid. The Respondent's position, which he maintained throughout the hearing both in submissions and in oral evidence, was that he was aware of and accepted Ms Breust's insistence that she would not accept or recognise the Accused as a client of the law practice until there was an assignment of legal aid to the law practice.
The Accused's engagement of SCB Legal was conditional upon the matters which Ms Breust as principal of the law practice continued to insist upon; namely: (1) that a grant of legal aid be made for representation of the Accused in his then current criminal matter; (2) that the grant be assigned to SCB Legal; and (3) that the law practice have the benefit of appropriate insurance cover in acting for the Accused. Those conditions were never satisfied. The Accused was not a client of SCB Legal at any stage, and we make this finding.
Further, as noted earlier, the Accused's written authorisation refers to "Albert Judah of SCB Legal" rather than "SCB Legal" or "Ms Breust of SCB Legal". We do not consider this point to be significant for the purposes of these proceedings. This is because the inclusion of the employed solicitor's name does not change the position that the (conditional) retainer was with SCB Legal. Indeed, the words "of SCB Legal" after the Respondent's name only serve to further confirm that position. Where a solicitor is employed, the client's retainer is with the employer: see e.g. Kelly v Jowett (2009) 76 NSWLR 405; [2009] NSWCA 278 at [70]. We do not consider that the evidence before us supports the contention that the Accused's written authorisation engaged the Respondent in some personal capacity, i.e. outside SCB Legal.

[31]

Issue (1): Meaning of supervised legal practice

Condition 1 restricted the Respondent "to engage in supervised legal practice only and in the employ of a law practice". Supervised legal practice requires a solicitor to be in the employ (or working on a voluntary basis) with a law practice and under the supervision of an authorised principal of that law practice: Uniform Law, s 6(1). The responsibility of the principal/supervisor is to ensure the solicitor complies with obligations under the Uniform Law and other professional obligations: Uniform Law, s 34. Condition 1 does not contemplate that legal practice activities would be undertaken by the Respondent in a "personal capacity" and without supervision by the principal/supervisor.
There remains some degree of discretion when it comes to supervision. Rule 37.1 of the Solicitors' Conduct Rules requires that a solicitor with designated responsibility for a matter "must exercise reasonable supervision" over solicitors (and all other employees) engaged in provision of the legal services for that matter. Whilst a supervisor must exercise "reasonable supervision", there is little guidance in the Uniform Law or associated rules or case law as to what "supervision" or "reasonable supervision" means. In Legal Services Commissioner v Michael Vincent Baker [2005] LPT 2 at [42], the then Qld Legal Practice Tribunal (a predecessor to the Qld Civil and Administrative Tribunal) commented: "A practitioner should properly supervise all legal professional work carried out on their behalf. Vicarious liability aside, a practitioner's legal and fiduciary duties to a client are not avoided or reduced by delivering that client into the care of an employee, whether or not that employee is legally qualified. The supervision required however varies according to the employee's experience, qualifications and role and with the type and complexity of the work."
Taking the meaning of the term "supervised legal practice" or "supervision" that is most generous to the Respondent, supervised legal practice could potentially encompass some element of "indirect" supervision, such as where a supervised solicitor appears at Court unaccompanied by the principal/supervising solicitor but under some type of oversight of that appearance from the supervisor. What constitutes "supervision" for the purposes of "supervised legal practice" will depend on the circumstances and will permit a variety of supervision arrangements.
The Respondent's position is that he acted under supervision of his principal/supervisor Ms Breust at all times, even when he appeared as a duty solicitor as part of the Downing Centre duty solicitor scheme, or otherwise acted as a pro bono (no fee) solicitor for persons facing criminal charges or other litigants in court, for persons who were not clients of SCB Legal. He contends that he was supervised by Ms Breust at all times during each of the four Court appearances referred to in the particulars to Ground 1 of the Application.
The Respondent submits that "supervision" of a legal practitioner is an "automatic and ongoing process". During cross-examination, the following exchange took place: "Q(Counsel for the Applicant): And you've expressly indicated you don't have permission from Ms Breust to run the jury trial under the name of SCB Legal if legal (aid) is not approved? A: That is correct. Q: Well how then Mr Judah, if that's the case, … how do you say you were permitted to appear in any capacity for (the Accused) at his trial? Not for the firm SCB Legal and without permission from your supervisor when you have on your practising certificate the supervision condition? A: …Every time I appear in Court I'm appearing under supervision. Even if I'm not appearing for SCB Legal I'm still appearing under supervision. Even when I'm appearing as a pro bono solicitor I'm still appearing under supervision. At all times I'm supervised by my principal and that is a condition on my practising certificate…" (Our emphasis) (Tcpt, 30 September 2021, p 40(16)-(31)).
We consider that the Respondent's role as supervised solicitor was circumscribed by the requirement to be supervised at all times by SCB Legal through its (sole) principal Ms Breust. As an employed supervised solicitor, it is difficult to see how the Respondent could act independently of his employer firm, either on a pro bono or duty solicitor basis. We had no submissions or evidence on this issue so will not express a concluded view.
However, even if this were not prohibited, nonetheless the Respondent had to be supervised at all times. In light of s 6(1) definition of "supervised legal practice", we think that the supervision must be provided by the employer's principal solicitor, in this case Ms Breust. Supervision requires some element of acceptance by Ms Breust that she was willing to supervise the Respondent on any such legal practice activity, and some actual supervision on any such matter.

[34]

District Court appearance on 8 February 2017

The Respondent relies on the Accused's written authorisation signed on the afternoon of 3 February 2017 to support the contention that he was authorised to appear in the District Court for the Accused on 8, 20 and 21 February 2017 and that those appearances were done under supervision.
At the mention of the Accused's matter on 8 February 2017, the Respondent referred to the Accused as "my client", and several times referred to the "written instructions" he has from his client that he is to represent the Accused in the criminal proceedings: "JUDAH: Your Honour, I have indicated to my friend that I would like to get access to the brief. I have written instructions from my client last week that I am to represent him in this matter, but of course, Your Honour, that is on the caveat that I can get leave from Judge Conlon who I understand ..will be the trial judge… (Our emphasis) (Exh A - Tcpt, 8 February 2017, p 2(43)-(46))."
The following was then said: "BURR (Federal Prosecutor): I am uncertain at this stage, given what was indicated outside of court today, whether he formally acts for (the Accused). JUDAH: We're here. HIS HONOUR: Well he said he's got written instructions to act for him. JUDAH: I have written instructions here….And I have sent my friend a copy as well." (Exh A - Tcpt, 8 February 2017, p 2(41)-(49), p 3(3)-(9)).
Even though the Respondent went on to confirm to Judge Blackmore SC that counsel would be instructed if the Accused "gets granted Legal Aid", the exchange reproduced above cannot be perceived as anything other than a representation to the Court by the Respondent that he had written instructions to act for the Accused in the matter, and was doing so.
As we found earlier, the Accused was not a client of SCB Legal. The Accused's written authorisation did not effect or evidence the engagement of Ms Breust or her law practice SCB Legal by the Accused. The weight of evidence before us indicates that the Respondent was aware, from exchanges outside the Court room (and including text messages sent by Ms Breust to the Respondent on the morning of 8 February 2017), that Ms Breust would only accept the Accused as a client if and when legal aid was assigned. It would thus appear that the Respondent's representation to the Court was that he had written instructions from the "client" to act in some personal capacity.
Given the status of the Respondent as an employee of the law practice, it is not easy to see how the Accused's written authorisation could have operated as an engagement of the Respondent personally (if that is the Respondent's contention). We held earlier that the Accused did not (conditionally) engage the employed solicitor, but rather the law practice.
We will leave to one side whether the Respondent indeed had authorisation from the Accused to appear on his behalf in some personal capacity. It is enough to say that the Respondent's contention that he was supervised by his principal/supervisor, whilst appearing in some personal capacity for the Accused on 8 February 2017, is unsupported by evidence. Ms Breust was willing to supervise him on the Accused's matter only in the circumstances where the Accused became a client of her law practice, and not otherwise. There is no evidence to show that she was willing to supervise the Respondent, in his appearances in the District Court on 8 February 2017 (or on other relevant dates) when no legal aid grant had been assigned and the Accused had not become a client of SCB Legal. Further, there is no evidence she did, in fact, supervise the Respondent on the Accused's matter.

[35]

District Court Appearances on 20 and 21 February 2017

At the mentions of the Accused's matter on 20 and 21 February 2017, the Respondent appeared for the Accused (and referred to the Accused as "his client") and sought the Judge's leave to conduct the Accused's approaching criminal trial. On both days there were lengthy exchanges between the Judge, the Respondent and opposing Counsel about the Respondent's authority (and capacity) to represent the Accused.
On 20 February 2017, the Crown Prosecutor raised concerns about the proposed representation of the Accused by the Respondent, saying: "…the issue of Mr Judah appearing for (the Accused) and conducting the trial... He is currently an employed supervised solicitor. The principal of his firm has not given him permission to conduct the trial for (the Accused). He has proposed appearing amicus, well, it's not an amicus situation where you're acting for the defendant, or, secondly appearing as solicitor of the duty scheme at Downing Centre and again I'd suggest that in circumstances where your principal solicitor has not given you permission to conduct the trial it would not be a proper use of the duty scheme to purport to be acting as part of that scheme in a trial": Exh A - Tcpt, 20 February 2017, p 1 (23)-(29).
Exchanges between the Bench and bar table followed about whether the Respondent was seeking to act as duty solicitor (and if so, whether he was permitted to do by the terms of the duty scheme) or pro bono (and if so, whether he was permitted to do so by the Law Society and had relevant insurance). It is evident that both the Crown Prosecutor and Judge Sweeney understood the Respondent not to have the approval of his supervising solicitor to appear to conduct the trial. Her Honour addressed the following remarks directly to the Respondent: "Well Mr Judah, it is unusual for a supervised solicitor to be appearing and if you don't have your principal's approval then there are some issues about I think your ability to appear…": Exh A - Tcpt, 20 February 2017, p 1 (43)-(45).
The matter was stood in the list and resumed later that day, at which time Her Honour questioned the Respondent further, pressing him for an answer as to whether he, as a supervised solicitor, had the permission of his principal to appear in the trial. The Respondent indicated that he did not have approval from his principal to conduct the jury trial: Exh A - Tcpt, 20 February 2017, p 7(15)-(20).
The Accused's matter was again listed before Judge Sweeney the following day, 21 February 2017. The Respondent announced that he appeared on behalf of the Accused. Her Honour commenced by noting that the Respondent wished to appear pro bono and asked the Respondent whether he had the insurance cover to do so, the issue of insurance cover having been raised by Her Honour at the previous day's mention. The following exchange ensued: "JUDAH: Your Honour, I'm not able to produce a certificate that you have requested and therefore I am formally seeking permission to withdraw from the matter but I am willing to stay back to assist this man in whatever capacity that your Honour sees fit. HER HONOUR: Well if you're effectively wanting to appear pro bono, do you have the insurance you require, to have to do that? JUDAH: I believe I do but I do not have permission. HER HONOUR: No, no. Well yesterday I said, your options were, permission from your principal and you seem to be saying you don't have that or, if you want to appear pro bono, then the Law Society requires you to have insurance before it will allow you to do that. That was the second thing I asked you to produce in evidence, that you have insurance. Do you have insurance? JUDAH: I do have insurance but I don't have the certificate with me. Your Honour, I foreshadowed this problem with my learned friend a week ago by indicating to them that I do not have permission to run the trial but I do have permission from my principal to run it either as amicus or as part of my role as a duty solicitor. HER HONOUR: Yes but to be a duty solicitor, you have to have insurance and that's what I'm asking you. You say you've got insurance but you can't produce a certificate. Are you able to get a certificate during the day? I mean who's your insurer? JUDAH: I'm not sure who is my insurer. Well, it's part of the firm's insurance your Honour." (Our emphasis) (Exh A - Tcpt, 21 February 2017, p 1(31)-(40); p 2(1)-(2)).
The Respondent's statements to Judge Sweeney, especially the words emphasised above, carry a clear meaning; namely that, through the law practice's insurance policy, his representation of the Accused was covered by insurance.
That was, at best, an incomplete account of the position. It was potentially misleading, because at that time the Respondent well knew that the law practice's insurance policy was not available to cover his representation of the Accused, having been instructed by Ms Breust by text 13 days earlier, on 8 February 2017, that the Accused was not a client of the law practice and that Ms Breust did not give the Respondent permission to run a trial for the Accused under the law practice's insurance cover. That position had not changed. Further, on the prior evening, Ms Breust had written in an email to the Respondent that SCB Legal insurance cover was only effective when the Respondent was acting in the capacity of an employed solicitor.
We leave to one side any culpability the Respondent may have for the potentially misleading comments which he made to the Court about insurance about cover. The issue as to whether those comments had the capacity to mislead the Court does not form part of the complaint particularised by the Applicant.
To the extent that he had authority from the Accused to appear on his behalf at the mentions on 20 and 21 February 2017, the Respondent was appearing (at its highest) in a personal capacity on a pro bono basis. He was unsupervised.

[36]

Ms Breust was aware of the Court appearances; but did she supervise them?

There are certain items in evidence, principally exchanges of emails and text messages between the Respondent and Ms Breust, which make it clear that Ms Breust was, to some degree, aware of the Respondent's Court appearances for the Accused. We do not understand the Applicant to dispute that much. The evidence suggests that Ms Breust thought he was appearing as duty solicitor, at least in the earlier stages, and later, she was aware that he was appearing and seeking leave to conduct the trial of the Accused on a pro bono basis. It can be argued that she gave "permission" or "approval" in the sense that she allowed him to spend time on a duty solicitor or pro bono legal practice activities for persons who were not clients of SCB Legal.
However, as discussed further below, Ms Breust's awareness of those appearances did not constitute supervision by her. Indeed, an examination of the communications between her and the Respondent reveals the contrary: Ms Breust sought from an early stage to dissociate herself and her law practice from any connection with the Accused's criminal matter (at least unless legal aid could be obtained and assigned, which did not happen) and hence from any role as supervisor of the Respondent's court appearances on behalf of the Accused.
Her evidence, which we accept, is that she told the Respondent by telephone on 3 February 2017, that she did not give her consent for him to run the Accused's trial as an employee of SCB Legal if legal aid were not granted. On 8 February 2017 she told him by text message that she did not give him consent to run the matter under her firm name or insurance. On 13 February 2017, by email to the Respondent, she appears to allow him to appear as a duty solicitor, but in relation to what he needed to say to the Court, she says "please make it absolutely clear that is not on behalf of and has no connection to your employment at SCB Legal". In another email she sent to the Respondent on 20 February 2017, in response to an earlier email from the Respondent confirming Judge Sweeney's insistence on proof that Ms Breust as principal had given permission for the Respondent to appear, she indicated that she did not give him permission to conduct the trial and said that he can only do it "amicus or duty not with my permission. I have not seen the brief and cannot supervise."

[39]

Issue (4): Application of Rule 13 of the Solicitors' Conduct Rules

The Respondent submits that his representation of the Accused, if unsupervised, was justified on the basis that ceasing to act would have placed either SCB Legal or the Respondent in breach of Rule 13 of the Solicitors' Conduct Rules, particularly Rule 13.2. In response, the Applicant submits that Rule 13 is of no application in the circumstances of this case.
Rule 13 deals with completion or termination of engagements of solicitors and law practices. Rule 13.1 provides that a solicitor with designated responsibility for a client's matter must ensure completion of the legal services for that matter, unless the client has otherwise agreed; the law practice is discharged from the engagement by the client; the law practice terminates the engagement for just cause and on reasonable notice; or the engagement comes to an end by operation of law.
Rule 13.2 is in the following terms: 13.2 Where a client is required to stand trial for a serious criminal offence, the client's failure to make satisfactory arrangements for the payment of costs will not normally justify termination of the engagement UNLESS the solicitor or law practice has: 13.2.1 served written notice on the client of the solicitor's intention, a reasonable time before the date appointed for commencement of the trial or the commencement of the sittings of the court in which the trial is listed, providing the client at least 7 days to make satisfactory arrangements for payment of the solicitor's costs, and 13.2.2 given appropriate notice to the registrar of the court in which the trial is listed to commence.
We understand the Respondent's argument to be made on the basis that a grant of legal aid would constitute the "satisfactory arrangements" contemplated by the Rule.
The Respondent contends, firstly, that a failure to act or appear for the Accused at the relevant District Court mentions would have rendered SCB Legal in contravention of Rule 13, particularly r 13.2: Tcpt, 30 September 2021, pp 30-33. This submission is misconceived. We found earlier that the Accused was not, at any stage, a client of SCB Legal. Rule 13 can have no operation in relation to that law practice.
The Respondent's alternative contention is that the Accused's written authorisation operated to authorise (if not engage) the Respondent personally to appear for the Accused, with the result that he would contravene Rule 13 if he failed to appear for or ceased to represent the Accused on 8, 20 and 21 February 2017.
It is not readily apparent that Rule 13 is capable of application to an employed solicitor who may be engaged in legal practice in some personal capacity, outside legal practice activities undertaken for and in the name of his employer law practice. Rule 13 in its terms, and read in context of the associated rules, operates in relation to clients of a "law practice", with the reference to a "solicitor" being a reference to a solicitor with "designated responsibility for a matter" within a law practice (which would also cover the situation where the solicitor in question is a sole practitioner with the requisite practising certificate).
In any event, we concluded earlier that the Accused's written authorisation did not operate such that the Accused retained the Respondent in a personal capacity, outside the auspices of SCB Legal, by reason of that document. Rule 13 has no application.
If we are wrong and Rule 13 did have some potential operation, the Respondent was nonetheless in breach of Condition 1 of his practising certificate and therefore s 54, Uniform Law, because he appeared at Court on the relevant occasions unsupervised. Rule 13 does not, and cannot, have the effect of excusing a solicitor from breach of supervision condition (and contravention of the Uniform Law) where that solicitor has "accepted" instructions, in a personal capacity, from a "client", and where to carry out legal practice activities in accordance with any such instructions involves the solicitor in a breach of his supervision condition.
If the Respondent considered that Rule 13 applied to his appearances on 8, 20 and 21 February 2017 he had an obligation to ensure that he was supervised (by Ms Breust) in those appearances, or that he ceased to act because he was not supervised and in doing so follow the process contemplated by Rule 13. He did neither of these things.
In our view, Rule 13 either has no application in the circumstances in this case, or, if we are wrong on that, compliance with Rule 13 does not excuse the Respondent or release him from the consequences of his failure to forbear from representing the Accused, unsupervised, in breach of Condition 1 and s 54, Uniform Law.

[41]

Ground 2: Whether breach of psychiatric report condition (Condition 5)

We turn to whether the Respondent breached Condition 5. We do so on the basis that the condition was validly imposed under the Uniform Law and Uniform Rules. After we provide our reasons concerning breach of the condition, we will then provide our reasons as to why we say that NCAT does not have the authority to decide the Respondent's challenge to the validity of the condition. If we are wrong on that point, we say that the condition met the requirements of s 53(2) in that it was both a reasonable and relevant condition. We do so under the heading "Respondent's challenge to validity of psychiatric report condition".
The particulars specific to Ground 2 alleging breach of the condition are: "11. At no time did the Respondent provide the Society with a report that satisfies the requirements of Condition 5. 12. On 20 February 2017, the Society sent the Respondent a letter providing that it had not received a report as required under Condition 5. 13. On 21 February 2017, the Society received from the Respondent a copy of a letter dated 8 November 2016, from Dr Susan Messner (psychiatrist) addressed to Dr Hala Gobran (the Respondent's treating general practitioner). 14. At no time did the Society approve Dr Messner as the Respondent's treating psychiatrist for the purposes of Condition 5. 15. Dr Messner's letter does not provide an assessment on whether the Solicitor is fit to continue in legal practice. 16. In the circumstances referred to in paragraphs 11 to 15 above, the Respondent breached Condition 5."
It should be noted that there was a minor change in the wording of the condition adopted by the Applicant on 30 June 2016 compared to the version that was earlier proposed to the Respondent (and to which he agreed). The version of the draft condition to which the Respondent consented made reference to a report "within 6 months of the date of commencement of his employment", whereas the wording adopted by the Applicant referred to a report "within 6 months from 30 June 2016…". The parties have made no reference to this change in wording, and we do not see that the change has any significance in the present context. The Respondent was employed as a legal practitioner as at 30 June 2016, and it follows from the wording of the condition that the first six monthly report was due to be provided by 30 December 2016. We do not understand there to be any dispute between the parties in this respect.

[42]

Facts specific to consideration of Ground 2

Except where we identify a disagreement between the parties about the receipt of correspondence, the facts as recorded below are not in dispute, and we make the following findings of fact.
On 4 August 2016 the Respondent nominated Dr Patrick Toohey, psychiatrist, for the purposes of compliance with Condition 5, and on 8 August 2016 the Applicant approved Dr Toohey as appropriate for the purposes of the condition. Dr Toohey indicated in correspondence that he required the Applicant to contact him with regard to the type/content of the report that was to be provided to the Applicant regarding the Respondent's fitness to practise. There appears to have been some discussion between the Applicant and Dr Toohey in this regard. By email of 10 August 2016, the Respondent wrote to the Applicant advising that he had just received a phone call from Dr Toohey "informing me that he no longer wishes to see me".
On 25 August 2016, the Respondent nominated Dr Sonia Kumar, psychiatrist, and advised the Applicant that he had made an appointment with her on 13 October 2016. On 26 August 2016, the Applicant communicated its approval to Dr Sonia Kumar as appropriate for the purposes of Condition 5.
On 27 October 2016, the Respondent sent an email to the Applicant which attached a letter addressed to Ms Anne-Marie Foord requesting approval of his nomination of Dr Susan Messner, psychiatrist, for the purposes of Condition 5. The covering email asks that the attached letter nominating Dr Messner is forwarded to Ms Foord. (Ms Foord was authorised to approve a nomination by the Respondent on the Applicant's behalf.) According to Mr Lean's affidavit evidence, the Respondent's email of 27 October 2016 was addressed to "Assistant Psd", which was an email account used by various temporary staff members in the Applicant's Professional Standards Department, and emails sent to that email account would not have been received in Ms Foord's email inbox. The Respondent in oral evidence says he sent the email and attached letter to the "Assistant Psd" email address because he had used that email address before and that he had received emails from the Applicant on prior occasions from that email address. (Tcpt, 30 September 2021, p 49(5)).
That email and attached letter appears to have been misplaced within the offices of the Applicant. Mr Lean deposes that he has searched Ms Foord's former work email account and has been unable to find any evidence that the email of 27 October 2016 was forwarded to her on or about the date the Applicant received the email with attachment. Mr Lean's evidence is uncontested, and we accept his evidence as reliable and credible.
Mr Lean further deposes that, following a review of the Applicant's Professional Standards files, no documents can be located evidencing that the Applicant approved the nomination of Dr Messner for the purposes of Condition 5, prior to 22 February 2017. In oral evidence, the Respondent agreed that he did not receive a response from Ms Foord, and he proceeded to attend a medical consultation with Dr Messner, psychiatrist, on referral from his general practitioner Dr Gobran, without having had a response from the Applicant: Tcpt, 30 September 2021, p 49(20)-(25).
We are satisfied, to the required standard of proof, that the letter seeking approval to Dr Messner's nomination did not find its way to Ms Foord at or about that time (being late October 2016), and that no approval to the nomination was communicated to the Respondent at or about that time (or at any time until 22 February 2017).
In October 2016 the Respondent attended a medical appointment with Dr Messner. In oral evidence at the hearing, he says that he posted a copy of Dr Messner's subsequent "report" (dated 8 November 2016) to the Applicant "sometime in November or December 2016": Tcpt, 30 September 2021, p 52(10)-(20). We note that in the Respondent's affidavit sworn 10 December 2018, he stated that he "may have provided a report" to the Applicant on or about 20 December 2016. However, there is no direct evidence to prove that he posted that document to the Applicant, nor is there is any evidence that the Applicant, and specifically Ms Foord, received that document (until a copy was hand-delivered to the Applicant on 21 February 2017). Certainly, there was no communication from the Applicant during that time to the Respondent to indicate that it had received a copy of Dr Messner's letter in November or December 2016. The Respondent does not suggest otherwise.
On 20 February 2017 the Applicant sent a letter to the Respondent concerning his failure to comply with Condition 5, stating that a report had not been provided by Dr Sonia Kumar within 6 months from the date the conditions were imposed on the Respondent's 2016/17 practising certificate.
On 21 February 2017 the Applicant's Professional Standards Department received a hand-delivered copy of Dr Messner's letter dated 8 November 2016 addressed to Dr Gobran. Dr Messner's letter refers to the Respondent having attended a medical appointment with her on 27 October 2016. We will refer to excerpts of that letter later below.
On 22 February 2017, the Applicant wrote to the Respondent to acknowledge receipt of Dr Messner's letter, and as relevant to Condition 5, Ms Foord wrote on behalf of the Applicant: "Condition 5 specifies that you are required to nominate an independent psychiatrist which must be approved by me. As previously advised, I approved at your request, Dr Sonia Kumar, psychiatrist …, as your treating physician in respect of condition 5, not Dr Susan Messner…I did not receive any request for approval from you in respect of Dr Messner. In the event that your treating psychiatrist changes in the future from Dr Messner, you must contact the Society in writing to seek approval in accordance with the conditions."

[44]

The Respondent's case

In relation to the Particulars for Ground 2, the Respondent submits: 1. He was "labouring under the misapprehension that the report from Dr Messner was a report agreed to by the Society" (in reliance on the Society's letter of 22 February 2017), and this misapprehension on his part subsequently led to the failure by the Respondent to provide a report which satisfied the condition. 2. When he submitted the report from Dr Messner dated 8 November 2016 to the Society, he did so "without due consideration on my part of whether it could be an adverse report which could affect my privilege to practise law". 3. He did not breach the condition over a lengthy period. 4. His inadvertent failure to notice whether he had received a reply email from the Applicant after sending the 27 October 2016 letter (by email) should not result in a serious breach of a condition on a practising certificate. 5. In imposing the conditions on his 2016/17 practising certificate, the Applicant failed to give effect to the recommendations made in Dr Bruce Westmore's 31 May 2016 report.
Further, the Respondent identifies issues that made it difficult for him to comply with the condition, including: the process for obtaining a report that would satisfy the psychiatric report condition was "more than daunting"; the tight time period within which the Respondent was required to comply with the condition caused him to feel stressed; a psychiatrist would need to assess him over a twelve month period to prepare the necessary report; and he encountered financial difficulties.
The Respondent further contends that, while he took some steps to comply, compliance with the condition was "impossible", relying on the NSW Court of Appeal's decision in Carr v Council of the Law Society of NSW [2020] NSWCA 276 (Carr). He also submits that the condition was unreasonable and not in accordance with s 53(2) of the Uniform Law: Tcpt, 30 September 2021, pp 4-5(35)-(15). It was earlier noted that this issue was raised squarely only for the first time only at the first day of the hearing: 30 September 2021.
The Respondent alluded at hearing to potential appeal or review rights under s 100, Uniform Law in respect of an application for a practising certificate he made in 2018 or 2019: Tcpt, 30 September 2021, p 5(10). He has made no application to NCAT in this respect. Any statutory appeal or review rights the Respondent may have in the Supreme Court or NCAT in relation to an application to the Applicant for a grant of an Australian practising certificate in 2018 or 2019 are of no relevance to our determination of these disciplinary proceedings.

[46]

Preliminary comments - psychiatric evidence

Before setting out our reasons on the issues identified at (1) to (4) above, we refer briefly to evidence before us comprising psychiatric reports of Dr Westmore and Dr A Samuels, a witness statement of Dr D Samuell, and oral evidence from Dr Westmore and Dr D Samuell adduced at hearing. Much of this evidence has only limited relevance to the issues for determination in these proceedings.
We allowed the tender of Dr Westmore's report (Exh D) as relevant to the issues for determination because: firstly, the report gives context and background to the imposition of Condition 5 which assists in ascertaining the meaning (or construction) of Condition 5 and therefore in determining whether the Respondent failed to comply with the requirements of the condition; and second, pending our determination of whether we have authority to decide the Respondent's challenge to validity of the condition, the recommendations made by Dr Westmore may have relevance to the "reasonableness" of the condition. We will refer to Dr Westmore's evidence later below as relevant to the issues for determination.
We allowed the tender of the report of Dr A Samuels dated 17 September 2015 (Exh F) because, in making recommendations to the Applicant about the Respondent's fitness to practise in May 2016, Dr Westmore relied to some extent on Dr A Samuels' report (obtained by a different body and for a different purpose) concerning the Respondent. Both parties submitted that Dr A Samuels' report only has limited relevance. We record our view that we have disregarded the Dr A Samuels report in our determination, and have given it no weight. The report does not assist us in determining the real issues in the proceedings.
The Respondent seeks to rely on evidence of Dr D Samuell concerning the Respondent's current fitness to practise law. At the hearing, the Respondent alluded to a recent or pending application to the Applicant for a practising certificate. In an affidavit affirmed on 13 September 2021 and marked as Exh 7 (the document is not in affidavit form and is more properly described as a witness statement), Dr D Samuell indicated that he provided a psychiatric report concerning the Respondent to the Applicant on 8 November 2019 and that he was prepared to give evidence in NCAT on the Respondent's fitness to practise law including whether he is currently able "to fulfil the inherent requirements of an Australian legal practitioner". We record our view that the issue of current fitness to practise in connection with any pending or future application by the Respondent for the grant of a practising certificate has no relevance to the issues for determination in these disciplinary proceedings.

[47]

Issue (1): Meaning of Condition 5

The condition required: a nomination by the solicitor and approval from the Applicant of "an independent psychiatrist"; the provision of reports from an approved psychiatrist which provided an assessment that the solicitor is "fit to continue in legal practice" (at the Respondent's expense) and the provision of such reports at the specified six monthly intervals. It is not in dispute that the first six monthly report required by Condition 5 was due by 30 December 2016, and that the obligation on the Respondent thereafter was to provide further six monthly reports while the condition remained in force.
Condition 5 did not require the Respondent to have ongoing psychiatric or any other medical treatment. This condition was based on a recommendation to the Applicant from Dr Westmore in his report dated 31 May 2016. Dr Westmore's opinion was that the Respondent's "difficulties" did not arise from any "psychiatric condition" or "personality condition". Nonetheless, due to some concerns as expressed in that report, one of Dr Westmore's recommendations was that the Respondent be reviewed by an independent psychiatrist on a six monthly basis and that psychiatrist be able to provide a report to the Applicant in relation to the Respondent's "mental state and ongoing progress". Dr Westmore did not include, in his recommendations, a requirement for the Respondent to have treatment. In cross-examination, Dr Westmore confirmed that his recommendation was not for ongoing treatment but for assessment every six months to monitor the Respondent's "mood" and "mental state:" Tcpt, 9 March 2022, p 47(10).
The Applicant made oral submissions that while Condition 5 is not in the same form as the condition recommended by Dr Westmore in his report, the condition imposed was consistent with his recommendations. The formulation adopted by the Applicant was for assessment every six months that the Respondent "remains fit for legal practice". Certainly, the Applicant was not required to impose a condition in the same form as any restriction suggested by Dr Westmore.
While we regard the wording of Condition 5 as somewhat clumsy, its meaning is tolerably clear, considered in light of relevant history and circumstances pertaining to the Respondent. The type of assessment required by Condition 5 was that the solicitor was "fit to continue in legal practice" in the sense that there was no psychiatric or psychological condition, personality condition, mood disorder or similar, that precluded the solicitor in question from performing the inherent responsibilities of a legal practitioner.
We observe there are some references to "treating physician" or "treatment" in the correspondence between the parties about nomination and approval of a psychiatrist for the purposes of Condition 5. Ultimately, we do not think that anything flows from the various references to "treating physician" or "treatment" in some of the material before us. There is nothing in the evidence or submissions before us to indicate that the terminology of "treating physician" or "treatment" meant the Respondent or any psychiatrist he approached for the purposes of compliance with Condition 5 misunderstood the task involved, i.e. to obtain and provide to the Applicant a psychiatric report that assessed him as being fit to continue in legal practice in the sense explained above, as opposed to providing him with treatment.

[50]

Whether Dr Messner report satisfied other requirements of Condition 5

Even if (as he submits) the Respondent mistakenly believed the Dr Messner letter dated 8 November 2016 was a report which "agreed" by the Applicant for purposes of Condition 5 (by its letter to him of 22 February 2017), it was not provided within the required timeframe, i.e. by 30 December 2016. The Respondent breached the condition by that reason alone.
Turning to the content of that letter, Dr Messner refers to having had an "initial" assessment of the Respondent (on 27 October 2016). It is clear that the letter did not meet the requirements of Condition 5 as she did not assess the solicitor as fit to continue in legal practice. It is also clear that Dr Messner did not intend her letter to constitute a report which met the requirements of Condition 5. On a careful reading of that letter in full, no other conclusion is available.
Dr Messner relevantly stated: "… the solicitor, is required to attend a psychiatrist for mental health assessment and ongoing care as a condition on his practising certificate. … Mr Judah was hopeful that I would be able to write a letter to say he had attended treatment and that he could then return in six months time for another such letter and that would satisfy his conditions. I stated that I was unable to do that as I would need to have ongoing contact with him. I asked for copies of his previous reports. Mr Judah became angry at this request. He stated he would not supply me with the copies of the reports. … Mr Judah was reluctant to make another appointment with myself but anticipated that I would receive communication from the Law Society. I would be happy to offer Mr Judah an ongoing assessment. It would be helpful to have more information including the reports provided regarding his work function. … Thank you for referring Mr Judah. I am sorry I was unable to engage him in ongoing treatment but will inform you should he return for follow-up.
There is nothing contained in the letter which can be taken as a statement that the Respondent was fit to continue in legal practice. Dr Messner expressly indicated that she was unable to write a letter or report of the type requested to satisfy the Respondent's condition (with apparent reference to Condition 5) and that she would need to have further contact with him.
We understand from the Respondent's oral submission at hearing, and from his oral evidence, that he tried to see Dr Messner for a further appointment at some stage after 22 February 2017. In relation to the statements in her report about the need for further contact with the Respondent, he said in oral evidence that he would have been happy to continue to see her but she did not have time to see him and instead wanted to refer him to one of her colleagues when he tried to call back in February 2017: Tcpt, 30 September 2021, p 51(5).
In relation to copies of previous medical reports that he did not provide to Dr Messner, the Respondent agreed, in oral evidence, that he did not provide Dr Messner with any of the previous reports concerning his mental health and said "I was afraid that she would do the same thing as what Dr Kumar and Dr Toohey had done because both of them…had refused to provide me any documentation to help me to fulfil the psychiatric report condition once they [had] seen the previous reports returned by Dr Anthony Samuel and Dr Bruce Westmore": Tcpt, 30 September 2021, p 51(25). He then indicated that he would have provided Dr Messner with the medical reports "at some point but not right away", explaining that he would have provided her with those reports after he had "gained her trust": Tcpt, 30 September 2021, p 51(40). He agreed with Counsel for the Applicant that he was aware that the first report he was meant to provide in accordance with the condition needed to be provided by 30 December 2016: Tcpt, 30 September 2021, p 51(45).
In his written submissions, the Respondent said he was under a misapprehension that the Applicant had "agreed to" the Dr Messner "report" in its letter of 22 February 2017, by which we take him to mean the Applicant agreed that the letter satisfied the requirements of Condition 5. We make the following points. Firstly, there is no indication in the Applicant's letter of 22 February 2017 to the Respondent that it had yet considered Dr Messner's letter received the day before, or that the Applicant had formed any view as to whether the letter complied with the requirements of the condition. Second, the Respondent agreed in oral evidence at the hearing that Dr Messner's letter did not state that he could fulfill the requirements of a solicitor which was what was required by the psychiatric report condition; the letter did not provide an assessment that the Respondent remained fit to continue in legal practice: Tcpt, 30 September 2021, p 53(40) and p 55(5). Third, Dr Messner, in that letter, did not assess the Respondent as "fit to continue in legal practice".
In sum, there was no report which satisfied the requirements of Condition 5 and there is no proper basis to conclude that the Applicant "agreed to" the letter as a compliant report in its letter of 22 February 2017. We have determined that there was a breach of Condition 5 by the Respondent.

[51]

Issue (3): Whether reasonable excuse for non-compliance with condition

The Respondent raises as a "defence" to the breach of Condition 5 alleged by the Applicant that the condition was difficult to comply with. Insofar as the Respondent alludes to a "reasonable excuse" defence because of the difficulties he encountered in complying with the condition, we agree with the Applicant's submission that a "reasonable excuse" does not provide a "defence" to breach of condition. There is no such statutory formulation contained in the Uniform Law or Application Act.
The Respondent has identified issues that, in his view, made it difficult for him to comply with this condition. For example, in his witness statement dated 12 July 2021, he described his efforts to obtain the required psychiatric report due by 30 December 2016. He states that he "tried everything humanly possible from June 2016 up to May 2017, seeing up to 4 different psychiatrists to get them to certify that I was a fit and proper person to practice law". He said he was ultimately not in a position "to coerce or force a psychiatrist to act as [his] "mouthpiece"" and that he realises his mistake in accepting a psychiatric report condition on his 2016/17 practising certificate.
In oral evidence, he confirmed that he did not make contact with anyone in the Law Society, or specifically anyone in the Professional Standards Department, prior to 30 December 2016, about the difficulties he was experiencing with Condition 5 or his concerns about being unable to comply with the condition: Tcpt, 30 September 2021, p 56(25).
We accept that the Respondent found the process for obtaining a report that would satisfy the condition was "more than daunting"; and that the time period within which the Respondent was required to comply with the condition caused the Respondent to feel stressed. However there is no medical evidence before us to indicate that the level of stress he experienced led to his failure to obtain and provide the required report, or his failure to communicate with the Applicant about difficulties in obtaining the report required by 30 December 2016.
The Respondent also refers in his written submissions to financial difficulties which affected him at the time as the restrictions on his practising certificate already limited his income and Condition 5 further exacerbated his financial situation. However, there is no evidence before us as to financial difficulties that would have prevented him from obtaining a psychiatric report as required by the condition, nor evidence of any efforts he took in approaching the Applicant to discuss such financial difficulties.
The Respondent further submits that the time period to obtain the report was too short, and a psychiatrist would need to assess the Respondent over a twelve month period to prepare the necessary report(s). We agree with the Applicant's submissions that this is a view put forward by the Respondent without a proper basis in the evidence, and particularly expert evidence.
In submissions, and in his sworn evidence, the Respondent said Dr Toohey and Dr Kumar each refused to be his psychiatrist for the purposes of a competency report, after an initial consultation. He said those psychiatrists each made clear to him that to write the necessary reports required long term assessments of over a year's worth of consultations at a minimum, and that it was not possible for them to write the necessary reports as required by the Applicant in the time frame given to him. The Respondent accepted that he had failed to inform the Applicant of his difficulties in obtaining the required report from Dr Toohey and from Dr Kumar.
However, there is no evidence from those psychiatrists before us, nor is there any other expert evidence to provide an adequate basis for the submission put by the Respondent that the reports required by Condition 5 required long term assessments requiring at least one year of regular consultations. We are not persuaded by the Respondent's bare assertions in that regard.
As earlier noted, Dr Westmore's recommendation to the Applicant was that the Respondent should be reviewed by an independent psychiatrist on a six monthly basis and that the independent psychiatrist provide a report to the Applicant in relation to the Respondent's "mental state and ongoing progress". The Applicant was, of course, under no obligation to adopt any recommendations put by Dr Westmore. It is relevant however that, as a psychiatrist, Dr Westmore considered that six monthly reports would be appropriate. There is no indication in his report, or in oral evidence in these proceedings, that a twelve month period of consultations would be required prior to provision of a psychiatric assessment report of the type contemplated by Condition 5.
In sum, there is no expert evidence before us to indicate that the necessary report could not be provided within the six month period required by Condition 5. The Respondent had an opportunity to obtain expert evidence from Drs Toohey and Kumar (or other) psychiatrists and did not do so.
Further, insofar as the Respondent submits that Dr Messner (as an approved psychiatrist for the purposes of Condition 5) was no longer available to see him for a further medical appointment at some stage after 22 February 2017, this cannot provide a "reasonable excuse" for his failure to provide the report due by 30 December 2016.
We accept the Respondent's sworn evidence that the process involved in obtaining a report by 30 December 2016 in a form acceptable to the Applicant proved challenging for him. Dr Westmore said during cross-examination that it was assumed in his recommendation about restrictions that might be imposed on the Respondent's legal practice that the governing body would arrange and procure the reports (based on a model used by the Medical Council in relation to medical practitioners), and he did not expressly say as much in his May 2016 report. However, Dr Westmore acknowledged that the question of whether a licensing or regulatory body will take on the responsibility itself to arrange or procure a psychiatric report is ultimately a question for that body: Tcpt, 9 March 2022, p 48(35) and p 51(30).
We agree with the Applicant's submissions that the issues identified by the Respondent which relate to difficulties do not provide an excuse for the Respondent's failure to comply with the condition, but instead are relevant to Stage 2 considerations concerning protective orders.

[52]

Issue (4): Whether impossible for Respondent to comply with condition

The Respondent contends that it was impossible for him to comply with the condition, in apparent reliance on the Court of Appeal's decision in Carr. He submits that there is authority for the proposition that, to be liable in disciplinary proceedings for failure to comply with an undertaking, the undertaking must be capable of being performed ab initio, citing Wade v Licardy (1993) 33 NSWLR 1 in which Bryson J considered the inherent powers of the Court to compel compliance by solicitors with undertakings or to order payment of compensation where enforcement of the undertaking is not possible (at 7-8). While noting that the Respondent's submissions lack some clarity, we understand the Respondent's contention to be that the psychiatric report condition was not capable of being performed, such that performance of the condition should not be required.
In response, the Applicant submits that the Carr decision does not deal with the same sort of issues that arise here. That case concerned the performance of an undertaking, rather than a breach of a condition on a practising certificate. Inconvenience, or legitimate difficulty, in complying with the condition, does not negate the solicitor's need to comply with the condition. At most it should prompt the solicitor to approach the Applicant to raise the concerns and to seek that the Applicant take some action to enable compliance with the condition, or to approach the Applicant about having the condition modified.
The Applicant agrees that, on the evidence, the condition posed difficulties for the Respondent. However, that does not meet the threshold of being "impossible" to comply with. The Applicant referred to the decision in Council of the Law Society of NSW v Fisher [2021] NSWCATOD 73 (Fisher) at [119] in which NCAT (differently constituted) said: "We do not take Carr as authority for the proposition that a solicitor should be excused from compliance with an undertaking to the Law Society on the basis that, because of personal circumstances, it was difficult for the solicitor to comply with the undertaking by attending a relevant course."
The Applicant makes a similar submission in this matter that it was not "impossible" for the Respondent to obtain the report required by the condition. The Respondent's submission about impossibility really amounts to a significant difficulty argument. On the facts, he approached a number of psychiatrists. He might have approached more. The Applicant submits that there is no impossibility in the Carr sense.
Ultimately, we are not satisfied that the difficulties encountered by the Respondent meant that the condition was "impossible" to comply with in the sense contemplated in case law.
The facts in Carr differ considerably from the factual circumstances under present consideration. There is lengthy discussion of the Carr decision in Fisher at [118] to [126], which does not need to be repeated but is relevantly adopted here. We reject the Respondent's submissions concerning the applicability of Carr.
Carr involved solicitors' undertakings, not practising certificate conditions. However, to the extent that solicitors' undertakings and conditions of a solicitor's practising certificate can be considered analogous (and we do not express a view on whether they are), in Carr, compliance with the undertaking would have been unlawful without a direction from the client. Here, compliance with the condition would not have been contrary to client instructions or otherwise contrary to the Uniform Law or other law. As White JA observed in Carr at [16], there was no legislation about which one could say that compliance with the undertaking was "necessarily qualified". Here, there is no legislation which "necessarily qualified" the solicitor's compliance with practising certificate conditions.
In Carr, the solicitor in question submitted that, to be liable to disciplinary proceedings for failure to comply with an undertaking, the undertaking must be capable of being performed ab initio. The Court of Appeal discussed case law, including Udall v Capri Lighting Ltd (in liq) [1988] QB 907, to the effect that an undertaking which was impossible to perform would not be enforced, but that an order to pay compensation may be made. The facts in Udall differ from those in the present matter. In that case, the undertaking was that the solicitor would procure from third persons charges over properties belonging to each of them, effectively guaranteeing that these persons would provide second charges over their homes in favour of the plaintiff. Observing that the case had a number of unusual features, the Court said the performance of the undertaking was beyond the solicitor's control, unlike the usual kinds of undertakings given by solicitors. Accordingly, no order was given that the solicitor must comply with the undertaking because it was impossible to do so, and instead an order for compensation was made.
To the extent that the Respondent relies on case law discussed in Carr, including Udall, where performance of a solicitor's undertaking was dependent on third parties and was impossible to perform, those cases are not on all fours with the present facts. Moreover the undertaking in Udall was given to another solicitor, not a professional association.
The Respondent submits that the Applicant set "an impossible task" in terms of the practicality of obtaining the required report(s) - he indicated in a sworn witness statement that he had seen up to four different psychiatrists and was unable to obtain a report that states that he can fulfil the requirements of the role of a solicitor and in turn practise as a solicitor. On the evidence before us, only three of those psychiatrists who indicated they were unable to provide the required report were approached during the period 1 July 2016 to 30 December 2016. The fourth psychiatrist was not approached by the Respondent until some time between February and May 2017, i.e. after the due date for the first report required by the terms of Condition 5. (We address this point further in Stage 2 considerations).
A further point to emphasise is that, while Dr Messner indicated in her letter of 8 November 2016 that she was not able to provide the required report after her initial assessment of the Respondent, it is clear that she required more information from the Respondent as to his previous medical history and copies of previous medical reports before she considered whether she could write a report as to his fitness to continue in legal practice. The Respondent did not subsequently provide Dr Messner with the information she required at any stage prior to the date on which the report was due, 30 December 2016, or indeed at all. In oral evidence, the Respondent agreed that he failed to supply Dr Messner with his previous reports, especially those of Dr A Samuel and Dr Westmore and did not intend to do so until he had "gained her trust". This was at a point when only a short time was available to provide the required report by 30 December 2016.
We commented earlier on the Respondent's submission that it was not possible for a psychiatrist to prepare the requested report without a prior twelve month period of assessment in our discussion of issue (3) (whether there was reasonable excuse for non-compliance with condition). Our comments about the absence of expert evidence apply equally to the Respondent's "impossibility" submission.
The Respondent further submits that it was impossible for a psychiatrist to write the report contemplated by the condition "because that would have involved asking a psychiatrist to contradict Dr Westmore". At the hearing, he contended that the situation was created whereby whatever psychiatrist he approached "had to contradict Dr Westmore in order to write a report to say that I was fit and proper to practice law": Tcpt, 30 September 2021, p 61(20). The Respondent contends that Dr Westmore wrote in his May 2016 report that the decision as to fitness to practise is to be made by the Applicant, not by a psychiatrist. We reject this submission.
This is not what Dr Westmore said in his May 2016 report. In that report, Dr Westmore offered a view which was, in essence, that, even if the Respondent had a personality disorder at the time of medical examination (which Dr Westmore did not diagnose), it would not necessarily impede the solicitor from holding a practising certificate. The Law Society might be sufficiently concerned about his behaviour over a number of years and might, ultimately conclude that he is not a fit and proper person to practise as a solicitor. Dr Westmore wrote: "I think that is a matter for the Society rather than for a psychiatrist". In the Respondent's cross-examination of Dr Westmore, the following exchange occurred: "Q (Respondent): …do you agree with this statement that I'm going to ask you. Is it possible that …the Law Society…they're very concerned about character or logical issues regarding me as opposed to any diagnosis…there's no firm diagnosis …so it is more a question of character - my character as a person…So all these personal vulnerabilities and issues is more of a character issue rather than anything that's based on a scientific or medical reasons. What it be fair to say that, sir? A: So in my report I've made it clear the issue of fit and proper person is not really, in my humble opinion, within the skills or provisions of a psychiatrist. This is a judgment which is made by ‑ in a more subtle ways by wiser bodies than an individual psychiatrist. I think a psychiatrist's role is to make a diagnosis and make recommendations arising from ‑ I've indicated I thought it was likely you had some personality vulnerabilities. I wasn't able to make a firm diagnosis and I've explained why in my report, although I noted the opinions of others and because of your personality vulnerabilities, which may have been reflected in your behaviours and your propensity or your vulnerability to becoming depressed, for example, that it would be wise to provide you with support and assistance in a job which is obviously a difficult, demanding and stressful job.": Tcpt, 9 March 2021, p 49(43).
Dr Westmore's evidence is based on his understanding of the role of an expert, which is not to usurp the role of the licensing or regulatory body charged with making the ultimate decision. We do not regard his evidence as expressing a view that it is not the role of a psychiatrist to opine on a person's fitness to practise in the sense contemplated by Condition 5. We said earlier that, while clumsily worded, we think that Condition 5 required an assessment that there were no psychiatric or psychological conditions or personality (or similar) disorders that impede the legal practitioner in question from practising as a solicitor, and fulfilling the inherent requirements of an Australian legal practitioner in that respect.
It is not "impossible" in the sense contemplated in the case law referred to above for a psychiatrist to prepare a report about a practitioner that assesses the person as fit to remain in legal practice, or (in a case where a person is seeking admission as a legal practitioner) fit to be admitted to practice. Indeed, a psychiatrist (Dr D Samuell) had provided a report to the Legal Profession Admission Board (LPAB) in November 2013 about the Respondent's fitness for admission to legal practice. Reference to this 2013 report is found in the Applicant's letter of instruction to Dr Westmore dated 30 March 2016 (Exh E). The Applicant records that Dr D Samuell wrote in that 2013 report: "At the time I assessed the Respondent he was not suffering from any psychiatric or psychological condition. He is not engaging in any behaviour that has caused me concern…Mr Judah is fit and appropriate to be admitted as an Australian legal practitioner".
In further support of the submission that Condition 5 was "impossible" to comply with, the Respondent alluded to a lack of guidance from the Applicant about the level of detail expected or required in a "fitness to practise" psychiatric assessment report. The Respondent sought to rely on oral evidence of Dr D Samuell at the hearing in this respect.
In that oral evidence, Dr D Samuell referred to the psychiatric report he prepared in late 2013 for the LPAB in relation to the Respondent's application for admission as a lawyer, in which he had assessed the Respondent as being fit for admission as a solicitor. In answer to a question from the Respondent about "the latest iteration, the 2019 report", Dr D Samuell indicated that he had been asked essentially the same questions by the Applicant in 2019 as he had been asked in 2013 about whether the Respondent was able to fulfil the inherent requirements of an Australian legal practitioner: Tcpt, 30 September 2021, pp 44-46. Referring to a letter from the Applicant dated 8 October 2019, the following brief exchange occurred in examination in chief: "Q (Respondent). …Did the letter ask for certain questions for you to answer? A. Yes, it did. Q: Did it state concisely on the length of the answer that you were to provide? A. It gave no guidance about the level of detail."
Neither the letter from the Applicant to Dr D Samuell referred to his oral evidence, nor Dr D Samuell's 2019 report, are in evidence. The Respondent did not seek to tender the 2019 report from Dr D Samuell at the hearing (nor did he lodge the report with NCAT prior to hearing, despite having been given the opportunity to do so in accordance with directions). We understand that the 2019 report was prepared for the purpose of assisting the Respondent in an application he lodged with the Applicant for the grant of a practising certificate in 2019, and we said earlier in these reasons that an application for grant of a practising certificate in 2018 or 2019 is not relevant to the issues for determination in the proceedings.
The Respondent has not explained the relevance of Dr D Samuell's oral evidence to the issues for our determination. We do not take Dr D Samuell to have expressed an opinion that Condition 5 imposed on the Respondent's 2016/17 practising certificate was "impossible" to comply with, or more generally, that a condition in the same or similar form on a solicitor's practising certificate would be impossible to comply with.
In summary, we do not accept the Respondent's submission that Condition 5 was "impossible" to comply with in the relevant sense, such that he cannot, or should not, be found to have breached the condition, or that he should be excused from the consequences of non-compliance.

[53]

Conclusion on Ground 2

Notwithstanding the Respondent's contention that Condition 5 is invalid and of no force (which we discuss further below), our task is to determine whether Ground 2 is made out, which requires a determination as to whether the condition was breached.
We found earlier Particulars 1-6 are proven. As to the Particulars specific to Ground 2, we find that Particular 11 is proven. The Respondent did not provide the Applicant with a report that satisfied the requirements of Condition 5 because: he did not provide a report within the required time, i.e. by 30 December 2016 (nor did he provide the required report at any stage after 30 December 2016); and the letter that he did provide to the Applicant from Dr Messner did not meet the requirements of Condition 5 because she did not assess the Respondent as fit to continue in legal practice.
Particulars 12 and 13 are uncontroversial and we find that they are proven.
Particular 14 states: "At no time did the Society approve Dr Messner as the Respondent's treating psychiatrist for the purposes of Condition 5". This particular is not proved. We find that the Applicant approved Dr Messner as the Respondent's psychiatrist for the purposes of Condition 5, on and from 22 February 2017. We do not consider that she was an approved psychiatrist for the purposes of Condition 5 when she medically examined the Respondent or when she prepared her report dated 8 November 2016. In any event, her report did not assess the Respondent as fit to continue in legal practice.
Particular 15 is proven. We find that Dr Messner's report did not provide an assessment on whether the Respondent is fit to continue in legal practice.
As to Particular 16, we find that the Respondent breached Condition 5, in the circumstances referred to Particulars 11-13 and 15. As set out earlier in these reasons, we are not satisfied that the Respondent had a "reasonable excuse" for non-compliance with the condition, or that it was impossible for the Respondent to comply with the condition at law, such that he should not be found to have breached the condition.
We have determined that Ground 2 of the Application is made out.

[55]

Respondent's Submissions

At the hearing the Respondent based his challenge on an asserted non-compliance with the statutory requirements in s 53(2) of "reasonableness and relevance". In written submissions dated 16 March 2022 and 30 March 2022, filed with leave in accordance with directions following the hearing, the Respondent characterises his challenge to the validity of the condition as engaging NCAT's "collateral review" jurisdiction. The Respondent submits: 1. While the law concerning the jurisdiction of a tribunal to determine collateral issues is far from settled, where there is jurisdiction to decide a particular class of matters, this includes jurisdiction to decide "all other matters necessary for the exercise of jurisdiction" per McHugh J at 387 in Cachia v Isaacs (1985) 3 NSWLR 366. Therefore, because NCAT can decide the central issue (being the prosecution under the Uniform Law), NCAT is the proper forum to determine the collateral review. 2. The decisions in Dydlam Developments Pty Ltd v The Owners - Strata Plan 85305(2020) 104 NSWLR 19; [2020] NSWCA 327 (Dyldam), Ousley v The Queen (1997) 192 CLR 69; [1997] HCA 49 (Ousley) and Attorney-General (Cth) v Breckler (1999) 197 CLR 83 (Breckler) establish that jurisdiction may be conferred on a tribunal, not only courts, to hear a collateral review. On the authority of Breckler at [36], if there is an "absence of legislative prescription to the contrary" and the issue has properly arisen, then a collateral review is open to a court. NCAT's jurisdiction (adapting Breckler at [88] to include tribunals) is enlivened, and its decision-making power includes the power to exercise "discretion, opinion or judgment" on issues of relevance and reasonableness. 3. In Dydlam, the Court of Appeal held that Ousley and Breckler could apply to tribunals, subject to enabling legislation. In Dyldam at [66], jurisdiction was conferred on NCAT where the issue was properly characterised as a collateral review of an administrative decision, where there was an error on the face of the record and the legislation conferred jurisdiction. 4. NCAT has authority to decide a collateral attack, where the review is of an administrative nature and the decision is either vitiated by jurisdictional error or there is an error on the face of the record, citing The Director of Housing v Sudi (2011) 33 VR 559; [2011] VSCA 266 (Sudi) and Ousley. 5. Insofar as the Applicant's decision to impose the condition was made under s 53(2) and rule 16(e), Uniform Rules (being the requirement for a person to undergo counselling or receive medical treatment), there is an error on the face of the decision and it is therefore invalid. Applying the principles in Ousley, if a collateral review of an administrative decision is confined to an error on the face of the record, NCAT is imbued with the same jurisdiction as inferior courts. 6. In the alternative, insofar as the decision to impose the condition relied on the Respondent's consent (pursuant to rule 16(i), Uniform Rules where the imposed conditions were agreed to by the holder), his consent was "ostensible" and the Applicant's decision is "vitiated by jurisdictional error" such that NCAT has jurisdiction to set aside the decision (citing Sudi at [27]). 7. In the further alternative, the Applicant misinterpreted s 53, and on the authority of Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 (Bhardwaj), NCAT has collateral review authority to set aside the Applicant's decision to impose conditions as having no legal effect. The collateral review in these circumstances is not confined to an error on the face of the record.

[56]

Applicant's Submissions

The Applicant characterises the question in issue as whether NCAT has the authority to decide a "collateral attack" which is not the subject of direct challenge in the proceedings. The Applicant submits: 1. Ultimately, the question of jurisdiction relies on statutory construction: Frugtniet v Attorney-General (NSW) (1997) 41 NSWLR 588, 602 (Beazley JA). In the current proceedings, jurisdiction arises under ss 300 and 301 Uniform Law and ss 28 and 29 NCAT Act. The Uniform Law confers a "limited jurisdiction" on NCAT to determine the guilt of the respondent solicitor, and characterises his conduct. By objective jurisdictional fact, these proceedings were commenced solely for the purpose of initiating that prosecution. Consequently, it does not extend to determine the validity of its anterior administrative decisions. 2. Both the nature and the scope of the term "collateral review" is still subject to ongoing debate. What is meant by collateral review "depends on the context" (Dyldam at [59]). Reference is made to McHugh J's description of collateral review in Ousley at [98]-[99]). In Sudi, Weinberg JA held that a collateral attack upon the validity of a government action "is made not by way of administrative review, but in response to a proceeding said to be jurisdictionally flawed. Collateral review takes place in proceedings that are not designed for handling them, and before courts or tribunals that may not have experience, or expertise, in dealing with issues of public law:" [221]. 3. Administrative action under s 53(2) of the Uniform Law, being a discretionary power to impose conditions, invites no collateral review jurisdiction. This is especially the case where the fact in issue is the breach of the discretionary condition in question. A collateral review would invite a judicial-review like challenge which is contrary to the expeditious and efficient resolution of matters before NCAT. It was on this basis that a collateral attack on the validity of an administrative decision under the Victorian Residential Tenancies Act was rejected by the Victorian Court of Appeal in Sudi (citing Warren CJ at [34] -[35]). 4. NCAT lacks power to make a declaration concerning the validity of the imposed condition. If NCAT were to make a decision (that the condition is invalid) which was not binding, it would create uncertainty as to whether the Respondent had breached the condition and as to the imposition of future s 53(2) conditions. 5. If NCAT decides it has authority to undertake collateral review of an anterior administrative decision, the review would be limited by challenges akin to "facial" or "patent invalidity" (Ousley at [261]). No error on the face of the record has been established and s 53 of the Uniform Law should be construed broadly. 6. If the condition were found invalid by NCAT, this would only impact NCAT's determination of whether the psychiatric report condition was breached. NCAT's power to characterise the other counts of impugned conduct as either unsatisfactory professional conduct or professional misconduct and the power to make protective orders, remains unaffected. Each of those functions remain within NCAT's inherent exercise of power, rather than its exercise of jurisdiction (Director of Public Prosecutions v Shirvanian (1998) 44 NSWLR 129 at [132]).

[58]

Some case law relevant to collateral review by tribunals

What is meant by collateral challenge or collateral review will depend upon context: Dyldam per White JA at [59]. A collateral challenge has been described as one where "..the allegation of a jurisdictional flaw arises in a manner not designed specifically for handling it, nor necessarily focusing on that issue or involving the directly affected parties, and in a court or tribunal which may not have much administrative law experience": Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability, 6th ed, 2017 at [10.280].
We have had the benefit of detailed written submissions in which the parties have canvassed some relevant case law. An often-quoted formulation of collateral review is that of McHugh J in Ousley, where his Honour referred to the concept as an act arising in a proceeding "whose primary object is not the setting aside or modification of that act or decision" and where the question of validity is "merely an incident in determining other issues": [98]-[99]. The High Court held there that the County Court of Victoria had jurisdiction to decide a challenge to the validity of a search warrant issued as an administrative act by a Supreme Court judge where the challenge was based upon the face of the warrant and its asserted non-conformity with requirements of the Act authorising the issue of the warrant. In Breckler, in a joint judgment, the High Court said at 108 [36]: "…in the absence of legislative prescription to the contrary, [an administrative decision] would be open to collateral review by a court in the course of dealing with an issue properly arising as an element in a justiciable controversy of which the court was seised".
The NSW and Victorian Courts of Appeal have both had occasion to consider the collateral review jurisdiction of NCAT and VCAT respectively, in different statutory contexts. In Dyldam the NSW Court of Appeal per White JA noted at [66] that whether the statements of the High Court in Ousley and Breckler are applicable to tribunals as well as courts "will depend upon the legislation establishing NCAT and conferring jurisdiction on it. Generalisations are dangerous." To similar effect, in the Victorian Court of Appeal in Sudi per Warren CJ said [28] that the general statements about collateral challenge in Ousley and Breckler "are best understood as merely expressing the presumptive position on the question in relation to courts".
Whether the issue in question is truly "collateral" or rather "the central issue to be decided" is a threshold question: Dyldam per White JA at [57]. In that case, the question arose as to NCAT's jurisdiction to determine the validity of occupation certificates purportedly issued by a building certifier under the Environmental Planning and Assessment Act 1979 (NSW) during NCAT proceedings concerning a building dispute under the Home Building Act 1989 (NSW). NCAT's determination on the validity of the certificates, as being certificates which authorised the occupation and use of "the whole of the building", was "central to NCAT's decision" which the Court held it was both "obliged" and "authorised" to make: at [57]. A statutory provision (s 48L, Home Building Act) which stated that NCAT is to be the forum chiefly responsible for resolving building claims told against a construction of the enabling legislation that would require separate proceedings to be commenced in a court to determine the validity of the certificates: at [47]. The challenge was not collateral in the sense described by McHugh J in Ousley as being merely an incident in the determination of other issues: [59].
On the facts of that case and the enabling legislation under consideration, it was not necessary for the Court to determine the extent of NCAT's collateral review jurisdiction. At [66] White JA said that, in the case of NCAT in the exercise of jurisdiction conferred on it under the Home Building Act, if the issue were properly characterised as one of merely collateral review of the administrative decision of the private certifier to issue the certificates, "there is no reason that Ousley should not apply". In other words, should the challenge be properly characterised as collateral, NCAT was not precluded from reviewing the occupation certificates where the invalidity arose on the face of the certificates.
In Sudi, the Victorian Court of Appeal considered the jurisdiction of VCAT to engage in collateral review of the Director of Housing's decision to bring an application for possession of residential premises in VCAT. The Director's application had been dismissed by VCAT on the basis that the Director had breached her statutory obligations under the Victorian Charter of Human Rights and Responsibilities Act 2006 (Vic) in seeking to evict the respondents from their premises. The Court of Appeal (in three separate judgments) held that VCAT did not have (collateral review) jurisdiction to consider the legal validity of the Director's decision to make the application to VCAT. While emphasising the primacy of the enabling legislation in determining the question, each of the judges identified principles relevant to whether a tribunal could, and should, permit collateral challenges.
Warren CJ said that for VCAT to have a power to undertake collateral review of the validity of the Director's decision to bring the application for possession, would be inconsistent with the stated purpose for the establishment of VCAT as its being forum for speedy and inexpensive resolution of specific kinds of disputes. In order to entertain a collateral attack on the validity of an administrative decision while dealing with an application under the Residential Tenancies Act, "VCAT would have to, in effect, conduct a trial within a trial. VCAT would need to leave the subject of tenancy law and enter the domain of administrative law". Her Honour continued by stating, where VCAT entered the domain of administrative review, there are difficult considerations to determine, such as the "limits (if any) of permissible collateral attack, whether the impugned administrative decision is affected by error and whether the alleged error is jurisdictional": [35].
Weinberg JA said that VCAT may have some powers to engage in collateral review, but the extent of those powers was confined by Ousley to challenges brought on the basis of "something akin to 'facial' or 'patent' invalidity". The collateral review made by VCAT was not of that character. As Warren CJ commented, that decision bore "no brand of invalidity upon its forehead", Warren CJ at [23].
White JA in Dyldam discussed the Victorian Court of Appeal decision in Sudi in some detail at [60] to [71] and we will not repeat his Honour's observations here. White JA also referred to other case law relevant to collateral review by tribunals, including Jacobs v OneSteel Manufacturing Pty Ltd (2006) 93 SASR 568 in which the SA Supreme Court identified principles relevant to whether a tribunal (in that case the SA Workers Compensation Tribunal) could, and should, entertain collateral challenges. Those principles included whether the grounds of challenge would likely involve the adducing of substantial evidence, whether all proper parties can be heard, whether a collateral challenge would by-pass judicial review protective mechanisms such as standing, whether there were relevant statutory provisions, whether the issue raised was clearly answered by authority, whether other similar cases were pending, and whether there was a more appropriate forum in terms of expertise such that a collateral challenge should not be permitted. As Aronson et al note at [10.310], most of those criteria are discretionary.
It is clear that the primary consideration is to construe the enabling legislation to determine whether NCAT can determine the Respondent's collateral challenge. In Dyldam, White JA observed at [73] that all of the cases on the jurisdiction of a court or tribunal to engage in collateral review of the validity of an earlier administrative decision "depend upon a close attention to the structure and text of the legislation in question". Whether the issue in question is "collateral" and if so, the extent (if any) of the tribunal's jurisdiction, will depend on enabling legislation.
In Sudi, Warren CJ referred to the High Court case of Bhardwaj as being one that touched on the issue of collateral review by an administrative tribunal. As her Honour explained at [30], in Bhardwaj the majority held that the Immigration Review Tribunal was permitted to disregard its own purported decision as vitiated by jurisdictional error and to re-make the decision afresh. The Tribunal could do so even in the absence of any order by a court of competent jurisdiction quashing the original purported decision or declaring it to be invalid. Warren CJ made the following observations at [31]: "Bhardwaj is not an authority for the broad proposition that administrative tribunals can, in general, conduct inquiries into the validity of purported decisions of any administrative body if the decision happens to be material to the dispute before the tribunal. Rather, the extent of an administrative tribunal's ability, if any, to conduct such inquiries remains a question of construction of the relevant statutory provisions… even if the decision is vitiated by jurisdictional error." (Emphasis added.)
The availability of statutory appeal rights in respect of administrative decisions will be relevant, and in some instances determinative, as to whether collateral challenges to the validity of anterior administrative decisions are permitted. In Frugtniet v Attorney-General of New South Wales (1997) 41 NSWLR 588, collateral challenge was sought of the validity of an administrative decision preceding the making of an order under the Prisoners (Interstate Transfer) Act 1983 (Vic). The NSW Court of Appeal held that the validity of a warrant could not be attacked collaterally, based on the wording and scheme of that Act, which included express provision for the availability of challenge to the NSW Supreme Court.

[61]

(ii) Statutory appeal rights contained in Uniform Law

While neither party addressed us on this point, we think it significant that the Uniform Law already contains a mechanism for review of conditions imposed on a practising certificate (in most cases, by the Supreme Court) and for the variation of practising certificates.
There is a clear statutory procedure in the Uniform Law and Application Act which provides a right of appeal (or review) where conditions have been imposed on a practising certificate (s 100(1), Uniform Law and s 125, Application Act), or where a practising certificate has been varied, suspended or cancelled (subject to ss 99 and 464, Uniform Law). An appeal or review under s 100 is a merits review of the decision concerned (rather than an appeal on a point of law) (s 100(2)). New information may be presented to the "designated tribunal" to assist it in making its decision at the time the appeal is being determined. The "designated tribunal" may make any order it considers appropriate on an appeal or review. The Supreme Court is the designated tribunal for the purposes of an appeal pursuant to s 100 of the Uniform Law, except in limited circumstances (i.e. in relation to decisions under ss 89 or 92 (s 125, s 11(3) Table Application Act)).
Relief in judicial review proceedings in the Supreme Court may not be available where there is an available course of statutory appeal under s 100, Uniform Law and the practitioner in question did not to take that course: Buckley v Council of the Law Society of New South Wales [2022] NSWSC 328 at [101], [109].
The existence of statutory appeal rights in relation to the imposition of discretionary conditions on a practitioner's practising certificate tends against the view that NCAT has authority to decide the Respondent's challenge to the "reasonableness and relevance" of Condition 5 in the current proceedings. Where NCAT's task is, instead, to undertake a merits review in the limited circumstances permitted by the legislative scheme, that is a different matter. In deciding an application brought by a practitioner under s 100 (in those limited circumstances), NCAT is not undertaking any type of collateral review in the course of s 300, Uniform Law disciplinary proceedings.
We further observe that the Uniform Law and Application Act allocate specific responsibilities to both NCAT and the Supreme Court (in addition to the Supreme Court's inherent powers involved in regulation of the legal profession) not only in relation s 100 appeals but more generally.

[62]

(iii) Consistency with NCAT statutory objects

The Applicant submits that we would not infer from the statutory scheme any intention that the imposition of discretionary conditions under s 53 may be overcome by a determination of this Tribunal (particularly in disciplinary proceedings, properly instituted under s 300, where a fact in issue is a breach of the said condition). If the Respondent's argument were accepted, this would invite a "judicial review-like" challenge to the imposition of the condition as part of NCAT's consideration of the application for protective orders. Such challenges, if permitted, inevitably protract the expeditious and efficient resolution of matters before NCAT, which cannot have been the intention of Parliament: see in particular s 3(d) of NCAT Act which states that an object of that Act is to enable NCAT "to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible".
We agree with the Applicant's submissions that to decide the Respondent's challenge based on s 53(2) would require NCAT to undertake a judicial review-like exercise to assess whether the discretionary condition was reasonable and relevant for the purposes of the Uniform Law. It would involve what Warren CJ described in Sudi as a "trial within a trial" (when considering whether VCAT had power to entertain a collateral attack on the validity of an administrative decision within a matter under the Victorian Residential Tenancies Act).
Complex issues would need to be determined including, in the present context, whether there was a breach of s 53(2) requirements and if so, whether that resulted in the invalidity of the conditions, including Condition 5, for some or all purposes. There would also potentially be an issue as to whether, if a condition was "reasonable" at its imposition, the condition became "unreasonable" at a later stage, which might involve detailed factual consideration on the basis of further evidence.
There is some force in the Applicant's submissions on this point, and we think that this is a relevant, but not determinative, consideration.

[66]

(i) Patent or facial invalidity

The Respondent submits (in written submissions dated 16 March 2022) that insofar as Condition 5 was imposed by the Applicant under s 53(2) and r 16(e) of the Uniform Rules, there is an error on the face of the decision such that the condition is invalid. We take his argument to be that the Applicant incorrectly relied on r 16(e) as authorising the condition and that error was apparent on the face of the Applicant's decision to impose the condition in question. We agree with the Respondent that r 16(e), read together with s 53(2), would not have authorised the imposition of Condition 5. This is because the condition did not require the Respondent "to undergo counselling or treatment or to act in accordance with medical advice given to the holder" as contemplated by that rule.
However, the Respondent's argument is misconceived. The Applicant relies on r 16(i), and not r 16(e). The Applicant submits (in written submissions filed 24 March 2022) that the conditions are valid as the Respondent agreed to their imposition, at the time they were made. The Respondent was invited by the Applicant to comment on the conditions prior to their imposition, and he consented to their imposition. The conditions as imposed reflected the proposed conditions to which the Respondent consented. It is apparent from the evidence that Condition 5 was "agreed to" by the Respondent, thus satisfying r 16(i).
We note that the Applicant did make a preliminary oral submission at the hearing to the effect that both r 16(e) and r 16(i) authorised the imposition of the conditions in June 2016. This was after the Respondent first raised the issue of a collateral challenge to the validity of Condition 5. While the Applicant did not formally withdraw this submission, it is nonetheless clear from its later written submissions (filed in accordance with the timetable set by the Tribunal for exchange of written submissions on the Respondent's collateral challenge) that reliance was placed squarely on r 16(i).
In our view, it is clear that the imposition of Condition 5 was authorised by s 53(2) and r 16(i). There is no breach of s 53(2) apparent "on the face of" the administrative decision by the Applicant to impose the condition, or on the face of the condition itself.

[67]

(ii) Invalidity other than on face of decision

The Respondent also submits that there were errors on the part of the Applicant (not involving error on the face of the decision) which rendered Condition 5 invalid. He contends that the Applicant incorrectly relied on r 16(e) as authorising such a condition. We said earlier that the Respondent consented to the imposition of the conditions, thus satisfying r 16(i) of the Uniform Rules.
The Respondent submits that his consent to the condition was merely "ostensible" as it was based on a mistaken belief or misapprehension such that the Applicant's decision to impose Condition 5 is of no legal effect. The Respondent has provided no cogent explanation, nor evidence, to indicate how his consent was given under mistaken belief or misconception. It is not suggested that the Respondent gave his consent to the imposition of Condition 5 because of a misstatement by the Applicant about its functions and powers under the Uniform Law or about r 16(e) specifically. Certainly, there is no basis for any such submission in the evidence before us. The Respondent's reference to Papadimitropoulos v The Queen (1957) 98 CLR 249; [1957] HCA 74 at 260 does not provide support for the submission he puts. This submission must be rejected for both lack of substance and being wholly unsupported by evidence.
The Respondent further submits that the Applicant's decision to impose conditions (including Condition 5) was infected by jurisdictional error through an incorrect interpretation of s 53, irrespective of whether there is an error on the face of the record. The Respondent refers us to Kirby J's judgment in Bhardwaj at [83], for the proposition that an administrative decision which is made on the basis of an incorrect interpretation of the law can amount to a jurisdictional error which vitiates that decision. However, there is nothing in the evidence or submissions before us to indicate that the Applicant misinterpreted s 53(2), as asserted by the Respondent. The Respondent's reliance on Bhardwaj in this respect is misplaced.
In our view, and on the evidence before us, there was a proper basis for the imposition of the conditions in June 2016, bearing in mind the protective purposes and objects of the Uniform Law. The Respondent was required to attend a medical examination under s 95 of the Uniform Law, at the behest of the Applicant, to ensure that he remained fit to practise law as a solicitor. Dr Westmore, engaged by the Applicant, provided an expert report which contained recommendations as to restrictions that might be placed on the Respondent's practising certificate. While the conditions imposed by the Applicant (to which the Respondent consented) were not precisely the same as those proposed by Dr Westmore, the conditions imposed were broadly consistent with those he suggested. The Applicant was under no obligation to adopt conditions in exactly the same form as those suggested by the expert that Applicant had engaged.
The protective purposes of the scheme involved in the licensing and regulation of legal practitioners are paramount. The conditions which were imposed allowed the Respondent to keep practising law in a way that was designed to provide him with support and assistance, including through mentoring and supervision conditions, and to ensure that there were no psychiatric conditions or personality difficulties that impeded him from practising as a solicitor. Dr Westmore indicated, in oral evidence, that his recommendations to the Applicant about restrictions were intended to provide support and assistance to solicitors in the continuance of their practice. He stated these supports can include "supervision," "professional mentors," "regular independent psychiatric reviews" and "restrictions" on practising certificates: see Tcpt, 9 March 2022, p 43(20). The conditions sought to minimise the risk of detriment or harm to clients and members of the public, and to uphold the high standards of the legal profession.
The protective nature of the jurisdiction regulating legal practice, and the provisions of the statutory scheme, supports the imposition of discretionary conditions which are designed not only to support and assist the solicitor in question, but to protect the public and to maintain the high standards of the profession. There is no evidence before us which leads us to form the view that Condition 5 was not reasonable and relevant at the time it was imposed, nor at any stage it remained in force, for the purposes of s 53(2) Uniform Law.

[69]

Whether Respondent engaged in professional misconduct

We turn to consider whether the Respondent's conduct, in breaching Conditions 1 and 5 on his 2016/17 practising certificate as we have found, amounted to professional misconduct under the statutory definition of professional misconduct in s 297(1)(a) of the Uniform Law.
Under s 298 of the Uniform Law, conduct that contravenes the Uniform Law is capable of amounting to professional misconduct or unsatisfactory professional conduct. The Uniform Law, at s 54, requires the holder of an Australian practising certificate to comply with conditions of that certificate.
In prosecuting the Respondent under s 300, Uniform Law, the Applicant initially relied upon a common law category of professional misconduct, in addition to the statutory definition of professional misconduct in s 297(1)(a). In Council of the New South Wales Bar Association v EFA (a pseudonym) (2021) 106 NSWLR 383; [2021] NSWCA 339 (EFA), the Court of Appeal indicated that the traditional common law definition of professional misconduct is incorporated into the statutory definition in s 297 of the Uniform Law. There does not exist, in the common law of New South Wales, a distinct category of professional misconduct that can be defined by conduct that is regarded as "disgraceful or dishonourable" by professional peers, which is divorced from the test of a "fit and proper person to engage in legal practice".
Following the publication of the Court of Appeal's decision in EFA on 21 December 2021, and at the continuation of the hearing in these proceedings on 9 March 2022, the Applicant confirmed that it relied solely on the s 297 statutory definition of professional misconduct.
Under s 302(3), Uniform Law, we may find the Respondent guilty of unsatisfactory professional conduct even though the complaint or charge alleges professional misconduct. Accordingly, if we do not find that the impugned conduct amounts to a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence, it would still be open to us to find that the conduct amounted to a failure to reach or maintain the requisite standard of competence and diligence, such that the Respondent is guilty of unsatisfactory professional conduct.

[70]

Submissions

The Applicant submits that the Respondent engaged in conduct which resulted in breaches of two separate conditions of his then practising certificate, and that such conduct "clearly constitutes a failure, by the Respondent, to maintain a reasonable standard of competence and diligence" which is capable of constituting professional misconduct, referring to ss 54 and 298(a) of the Uniform Law. The Applicant also refers to previous tribunal decisions for the purpose of comparing the protective orders in those cases with the present case. These decisions include: Council of New South Wales Bar Association v Barnett [2016] NSWCATOD 153, Council of New South Wales Bar Association v Quinlivan [2015] NSWCATOD 54 , Council of the Law Society of New South Wales v Gallego [2014] NSWCATOD 102 (Gallego), Law Society of New South Wales v Singh [2011] NSWADT 47 and Mee Ling v The Law Society of New South Wales [1974] 1 NSWLR 490.
The Applicant further submits that the Respondent's conduct constitutes a substantial and consistent failure by him to maintain a reasonable standard of competence and diligence, and thereby constitutes professional misconduct. In this regard: firstly, the condition breaches were serious in nature. The conditions were imposed on his practising certificate to protect the public by giving effect to recommendations made in Dr Westmore's 31 May 2016 report about the Respondent. Second, the condition breaches constituted consistent failures to maintain a reasonable standard of competence and diligence, in that: (i) the Respondent appeared for the Accused in District Court proceedings, in contravention of conditions imposed on his practising certificate, on four separate occasions; and (ii) the Respondent's breach of the psychiatric report condition occurred over a lengthy time period, i.e. 30 December 2016 to the effective date of suspension of the Respondent's practising certificate, being 18 May 2017.
The Respondent denies engaging in professional misconduct. He further submits that this is not a case where the breaches, if proved, occurred over a prolonged period of time, so it does not amount to a "consistent" failure to maintain a reasonable standard of competence and diligence.

[71]

Consideration

As noted earlier, a breach of practising certificate condition is a breach of the Uniform Law, and of the statutory regime established to regulate legal practitioners in this State. A failure to adhere to restrictions imposed on a legal practitioner's practising certificate should be regarded as a serious matter, the nature of which needs to be considered in all the circumstances. The conditions imposed on the Respondent, including Condition 1 and Condition 5, were imposed in response to concerns held by the Applicant and in furtherance of its duty to protect the public and to uphold appropriate high standards for the legal profession. The conditions were imposed with the Respondent's consent.
While each matter, of course, turns on its own facts, we observe that cases involving breach of practising certificate condition brought in NCAT (or its predecessor tribunals) have consistently resulted in findings of professional misconduct. That said, there are no tribunal cases of which we are aware where a tribunal has considered breach of a condition similar to Condition 5.
On previous occasions, NCAT has found a solicitor guilty of professional misconduct for breach of supervision condition. Examples include Council of the Law Society of NSW v Cummins [2018] NSWCATOD 185 (Cummins) (in which the solicitor breached a condition to practise only while employed by a law firm and under supervision on four separate occasions); Gallego (in which a solicitor breached a condition to practise only as a non-principal solicitor over a three year period); and Law Society of New South Wales v Jayawardena [2005] NSWADT 96 (Jayawardena) (in which a solicitor breached a condition that disentitled him from being a solicitor on the record in legal proceedings, in twelve different matters).
None of these cases is "on all fours" with the present case. We acknowledge the need for caution in conducting any comparative exercise by reference to earlier Tribunal decisions in which a finding of professional misconduct was made, including on the basis of breach of supervision condition. Here, the Respondent's breach of Condition 1 stemmed from his failure to understand his obligations as a supervised employed solicitor and the requirements of the Uniform Law.
We also acknowledge that there is no assertion of harm to an individual or client in the present matter, and no client complaints of which we are aware. Nonetheless our task is to assess whether his conduct falls below applicable standards if so, what dispositive orders (if any) should follow. In doing so, NCAT's power must be exercised in a manner that is likely to achieve the maintenance of a high standard of conduct within the profession: see e.g. New South Wales Bar Association v Meakes [2006] NSWCA 340 at [113]-[114].
We have considered the Respondent's argument that, in determining whether the impugned conduct amounts to professional misconduct, we should consider the following countervailing considerations: that the 2015 report of Dr A Samuels stated there "had been no particular problems" with the Respondent's representation in the Local Court for 18 months; that the supervisory condition was removed from his solicitor's practising certificate on 2 February 2016; and the report of Dr Westmore of 31 May 2016 indicated that the solicitor did not suffer "from a mental illness which would impede him" from practising law. None of these considerations provides a proper basis on which we ought to make a finding of unsatisfactory professional conduct, as opposed to a finding of professional misconduct, or alternatively that we ought to make no finding.
Details about the Respondent's previous work history recorded in a 2015 medical report (commissioned by a different body for a different purpose), and the Applicant's removal of a standard type of supervisory condition on the Respondent's then current practising certificate, pre-date the impugned conduct and can have no relevance to the issues for determination in these disciplinary proceedings. Dr Westmore's opinion, as recorded in his report of 31 May 2016 commissioned by the Applicant, that the Respondent did not suffer "from a mental illness that would impede him" from practising law, also pre-dates the impugned conduct. Moreover, Dr Westmore's opinion cannot be taken to express a view that the Respondent's conduct involving the breach of not one, but two, practising certificate conditions is not of sufficient seriousness to warrant a finding of professional misconduct.
We consider that the Respondent's breach of two separate conditions in this case falls well short of the high standards expected of him as a legal practitioner. We find that the impugned conduct constitutes a substantial and consistent failure to reach or maintain a reasonable standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer, and this amounts to professional misconduct under s 297(1)(a), Uniform Law.
Breach of practising certificate condition is a serious matter, involving a contravention of the Uniform Law and failure to uphold appropriately high standards of the profession. Moreover, the particular restrictions on the Respondent's practising certificate were imposed in order to protect the public, having regard to the views of an expert engaged by the Applicant. The conditions were designed to ensure that the Respondent was supported by a supervision and mentoring regime, and that he remained mentally fit to practise law as a solicitor. The impugned conduct involving contravention of not only one, but two, separate conditions, must be considered to amount to a substantial failure to reach or maintain a reasonable standard of competence and diligence in the requisite sense.
We also consider that the Respondent's breach of two separate conditions constitutes a consistent failure to maintain a reasonable standard of competence and diligence. As to Condition 1, we accept that the breach occurred over a relatively short period of time (from 3 to 21 February 2017), however, as the Court transcript demonstrates, the Respondent persisted in seeking to act for the Accused unsupervised over each of the four court appearances complained of.
Moreover, the breach of Condition 5 was no inadvertent or isolated breach. Not only did the Respondent fail to provide the required "fitness to practise" report required by 30 December 2016, he also took no steps to notify the Applicant of any difficulties in achieving compliance by the set date (or indeed, after that date). While he was in breach of the condition by 30 December 2016, he also failed to take 'mitigating' steps e.g. by providing the requisite report at a later date. We do not accept the Respondent's submission that there were no breaches which occurred over a prolonged period of time such that there is no "consistent" failure to maintain the requisite standard of competence and diligence.

[74]

Consideration

In determining what protective orders are appropriate in any particular case, aspects to consider include: the seriousness of the conduct, the deterrent effect of any protective order on the future conduct of the practitioner, the deterrent effect of any protective order on the conduct of other practitioners, and the enhancement of confidence in the public and the integrity of the profession. Whether the practitioner in question has shown some level of insight into the wrongful nature of the conduct, or contrition for the wrongful conduct, will also be relevant. However, as discussed by Leeming JA in Gautam v Health Care Complaints Commission [2021] NSWCA 85 at [11]-[13], while contrition is an influential factor in determining what orders are appropriate, its absence cannot always be relied upon to validate a higher penalty.
While his initial position in these proceedings was that he did not oppose the orders sought by the Applicant, it was apparent in the hearing that the Respondent disputed having engaged in professional misconduct. In relation to Condition 1, in documents lodged in the earlier 2018 proceedings, he initially submitted that he did not understand his duties as a solicitor acting under supervision. He felt that he had a duty to the Court to assist the Accused in the interests of the administration of justice, but he did not understand "any service he provided to the Court" must always be construed within the confines of the supervised practice requirement of his practising certificate. However, in the recommenced proceedings, he appeared to resile from this position and sought to argue that he was supervised at all times, denying that he breached Condition 1.
In respect of Condition 5, he argued that he should be excused from the consequence of breach, that the condition was impossible to comply with, or alternatively (or in addition) that the condition was invalid. While this is a position he is of course entitled to take, overall, we think that the insight shown by the Respondent into his breach of two separate conditions, and with the need to comply with conditions on a legal practitioner's right to practise law, is limited. It is not obvious to us that the Respondent yet has developed an understanding of, or has yet expressed contrition for, the impugned conduct.
We accept that the Respondent took steps towards compliance with Condition 5 and we earlier considered some issues which the Respondent said made it difficult for him to comply with the psychiatric report condition earlier in these reasons. We acknowledge that he approached three psychiatrists, in the second half of 2016, with a view to obtaining the required report. While the Respondent refers in his affidavit evidence to having approached four psychiatrists, an approach was made to the fourth psychiatrist only after the due date of the first report on 30 December 2016. For this reason, we do not give as much weight in Stage 2 considerations to the Respondent's efforts in relation to obtaining the required report from the fourth psychiatrist as we would if the approach had been made prior to 30 December 2016.
While he attended initial appointments with three psychiatrists during the period 1 July 2016 to 30 December 2016, it is important to recognise there is no evidence that the Respondent communicated his difficulties to the Applicant, particularly in meeting the deadline for the first report of 30 December 2016, nor did he seek modification of the condition. The Respondent accepted that he failed to inform the Applicant of his difficulties obtaining a report from Dr Toohey and Dr Kumar. In respect of Dr Messner, it is plain from reading her report about her initial appointment with the Respondent that he was reluctant to provide her with previous medical reports and reluctant to engage in the process she required before she could provide a report as to fitness to practise by 30 December 2016.
Taking all the factors into account, we think that a reprimand is an appropriate penalty. Bearing in mind the protective nature of our jurisdiction, a reprimand is an appropriate order for the purposes of deterring both the Respondent and other legal practitioners from engaging in similar conduct in the future, and thereby protecting the public. A reprimand also serves to educate the legal profession. A reprimand reflects the seriousness, and appropriately reflect our disapprobation, of the Respondent's conduct in his breach of not one, but two conditions imposed on his practising certificate.
We have considered whether a fine, in addition to a reprimand, should be imposed. We refer briefly below to some previous instances where NCAT, or a predecessor tribunal, decided to impose a fine in addition to a reprimand, after having found the solicitor in question guilty of professional misconduct for breach of supervision condition of a practising certificate.
In Cummins, the solicitor's practising certificate required him to be both supervised and employed by a law firm. However, on four separate occasions, Mr Cummins purported to represent a client in criminal proceedings, without supervision and as a sole practitioner. NCAT held that the solicitor's "premeditated" conduct warranted both a reprimand and a fine of $1000. It was held at [41] that solicitors "who appear in Court when they are not entitled to do so, commit a fundamental breach of their duties to the Court and to the person(s) they purport to represent".
In Gallego, the solicitor in question was found guilty of professional misconduct by breaching a condition of his practising certificate that restricted him to practising as a non-principal solicitor. Despite this, he filed legal documents and appeared as the solicitor on the record on twenty-eight occasions. His conduct continued for a period of three years. During this time, NCAT held that Mr Gallego "seemingly did nothing" to ensure he practised within the confines of his certificate at [70]. Consequently, Mr Gallego was reprimanded, fined $2000 and his practising certificate was made subject to five further conditions.
In Jayawardena, the solicitor's practising certificate restricted him from working as a solicitor, charging costs for legal work and disentitled him from being a solicitor on the record in legal proceedings. However, he appeared as the solicitor on the record and in person for at least twelve different matters. The former NSW Administrative Decisions Tribunal found that the solicitor was "well aware" of the conditions on his practising certificate but continued to represent clients. Due to the seriousness of the repeated breaches, he was reprimanded, fined $2500, and ordered to undertake a legal ethics course.
We think that the circumstances in this case can be distinguished from the factual circumstances in the cases referred to above. While his conduct fell significantly below the standards expected of solicitors, we are not persuaded that the Respondent's conduct was "premeditated" (at least to the level apparent in Cummins, Gallego and Jayawardena) or that he wilfully breached his supervision condition in the same manner discussed in those three cases. We have decided that a fine is not required in the circumstances of this case. In light of difficulties the Respondent has encountered and the fact that he does not currently hold a practising certificate (and is therefore unable to practise law as a solicitor), we also think imposing a fine would have a heightened punitive effect.
In our view, the issue of a reprimand is a sufficient deterrent to the Respondent, and to the profession generally. We are conscious that a reprimand will be given publicity through publication on the internet and should not be regarded as an insignificant penalty.

[76]

Accused person referred to in Particulars of Grounds for Application

The parties agree that it is appropriate for the Tribunal to make an order under s 64 of the NCAT Act prohibiting the disclosure of any information tending to reveal the identity of the Accused in connection with these proceedings. Such an order would protect, from disclosure to the public, the fact that the Accused was charged with a criminal offence; and the making of such an order will neither inhibit NCAT's determination of the proceedings nor detract from the public protective value of NCAT's decision.
In Council of the Law Society of New South Wales v Diaz [2021] NSWCATOD 9, NCAT considered relevant factors for making an order prohibiting publication of the names of the respondent lawyer's clients. It was stated at [4]-[5]: "In its decision in Council of the Law Society of New South Wales v CZD [2017] NSWCATOD 31 the Tribunal outlined the analytical process which the Tribunal might adopt in considering such an application. Essentially, this is to weigh the principle of open justice, from which the proposed order is a clear departure, against the benefits to be had from the order. Here the order only concerns the names of the Respondent's clients whose affairs were involved in the alleged breaches. Their identities are not, in the present case, at all relevant to the nature of the alleged breaches or the circumstances in which they are alleged to have incurred. Moreover, since the order requested does not restrict publication of the name of the Respondent or details of his conduct, the exemplary lessons to be drawn from the public identification of solicitors against whom the Tribunal makes findings and of their conduct will not be compromised if in the event the Tribunal finds against the Respondent."
We agree with that reasoning and conclusion. While not precisely on point, we think similar considerations apply in the current circumstances.
We are satisfied that it is appropriate to make an order under s 64, and we have determined that a non-publication order should be made under s 64(1)(c) such that information which identifies the Accused cannot be published. Section 64(1)(c) of the NCAT Act enables the Tribunal, if it considers it desirable to do so by reason of the confidential nature of the evidence or for any other reason, of its own motion, or on the application of a party, to prohibit or restrict the publication of evidence given before the Tribunal, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal.

[77]

The Respondent

The Respondent seeks confidentiality orders under s 64 to suppress the release of any of his confidential medical health information; restricting access to documents and evidence filed in the proceedings; and prohibiting publication of his confidential medical health information. In addition, the Respondent appears to seek an order under cl 28(1) of Sch 5 to the NCAT Act with regard to his confidential medical health information in any statement of reasons NCAT gives for its decision (see written submissions dated 10 June 2022).
In its written submissions dated 17 June 2022, the Applicant says that references in the evidence and submissions before NCAT to medical and other conditions connected with the Respondent are properly considered to be confidential.
Clause 28(1) provides NCAT with a discretion to exclude confidential information (within the meaning of cl 28(6)) in any statement of reasons (cl 28(1)(d)). We acknowledge the difficulties parties have where their personal medical history is disclosed but that concern must be balanced against the interests of justice, especially in the case of proceedings concerning occupational regulation where the presumption in favour of open justice is strong. In John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131 at 142-143 Kirby J explained (citations deleted): "It has often been acknowledged that an unfortunate incident of the open administration of justice is that embarrassing, damaging and even dangerous facts occasionally come to light. Such considerations have never been regarded as a reason for the closure of courts, or the issue of suppression orders in their various alternative forms…"
The approach we have taken is to refuse the Respondent's application under cl 28(1) of Sch 5 and to minimise reference in these reasons for decision to the Respondent's personal medical or health-related information as far as practicable. We have an obligation to provide adequate reasons to explain our decision in relation to the applications made by both the Applicant and Respondent in these proceedings.
We have decided to make an order under s 64(1)(c) of the NCAT Act to prohibit publication of material in the proceedings that refers to medical, psychiatric or personality-related condition associated with the Respondent, except as referred to in these reasons for decision. There is also a carve-out that allows for disclosure of information within or between the Council of the Law Society of New South Wales, the Law Society of New South Wales, the New South Wales Legal Services Commissioner or his office, the New South Wales Bar Association and its Council; and which permits disclosure to a court or tribunal. This is to permit these bodies and office-holders to perform their functions in connection with the regulation of legal practitioners unaffected by the non-publication order in question.
In written submissions dated 10 June 2022, the Respondent raised a further argument at [63] and [66]-[68] about reasons supporting his request for suppression of information or material. We found this argument unpersuasive and we will not deal further in these reasons for decision with the argument put forward because to do so would reveal highly sensitive personal information which has the potential to be embarrassing to the Respondent.

[79]

Challenge to Registrar's decision to refuse to issue summons

As we said in the body of these reasons for decision, during the course of the hearing we affirmed a decision by a Registrar of NCAT made on 11 October 2021 to refuse to issue a summons to the former Manager of the Professional Standards Department to appear and to give evidence at the hearing.
In the Respondent's written application dated 7 October 2021 requesting the issue of the summons, he alleged, amongst other things, that the former Manager had concealed evidence, breached duties as an "investigating prosecutor", and that she (and/or the Applicant) had discriminated (indirectly or directly) against the Respondent by imposing conditions on his 2016/17 practising certificate and in taking subsequent disciplinary action for breach of condition.
According to the Respondent, the former Manager was required at the hearing so that he could question her on (amongst other things) why the Applicant required him to undertake a medical assessment with Dr Westmore, why conditions were imposed on his 2016/17 practising certificate, whether the former Manager had said something discriminatory in the way she presented the matter to the relevant meeting of the Applicant, the process followed by the Applicant for approval of Dr Messner as a psychiatrist who could provide the independent report for the purposes of compliance with Condition 5, as well as the date on which the Applicant received a report about the Respondent from Dr Messner.
The Applicant submitted in response that the Respondent had not established a proper basis upon which the former Manager should be called to give evidence and be cross-examined on the issues that arise for consideration. First, the former Manager was not the relevant decision-maker whose decision gave rise to the present proceedings. Second, as to the Respondent's federal jurisdiction argument, there is no evidence to suggest that the former Manager made some form of discriminatory communication to the Applicant and no proper basis on which the Respondent should be permitted to question her on that basis.
Further, other questions raised in respect of the summons relate to factual issues that are explained in the evidence already tendered in the proceedings. This includes correspondence concerning the Applicant's approval of Dr Messner as a doctor who could give the opinion required by Condition 5. Documentary material, including copies of correspondence between the Applicant and/or the former Manager and the Respondent at relevant times, is annexed to the affidavit of Mr Lean affirmed 14 September 2021. Mr Lean is the current Director Legal Regulation at the Applicant (which role incorporates the responsibilities formerly undertaken by the Manager Professional Standards).
In affirming the Registrar's refusal to issue the summons requested by the Respondent, we were not satisfied that having the former Manager in question attend to give evidence would serve any legitimate forensic purpose. We found merit in, and agreed with, the Applicant's submissions.
To the extent the summons application related to factual issues that fell to be determined, relevant business records of the Applicant, including correspondence between the former Manager and the Respondent, were already in evidence before us. To the extent the Respondent sought to challenge the imposition of the conditions and the reasons why he was required to attend for medical examination in 2016 under s 95 of the Uniform Law, the former Manager was not the relevant decision-maker. There is no evidence of "discriminatory" conduct on the part of the former Manager in any of the material before us, and questioning about whether she "might" have said "something discriminatory" at a meeting of the Applicant did not provide a proper basis on which she should be summoned to attend the hearing to give oral evidence. Further, NCAT is not the proper forum in which to bring a claim under s 5, DDA.

Parties

Applicant/Plaintiff:

Council of the Law Society of New South Wales

Respondent/Defendant:

Judah

Legislation Cited (16)

Legal Profession Uniform Law General Rules 2015(NSW)

Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015(NSW)

Constitution Corporations Act 2001(Cth)

Uniform Law, the Legal Profession Uniform Law Application Act 2014(NSW)

Uniform Law, the Legal Profession Uniform General Rules 2015(NSW)

Victorian Charter of Human Rights and Responsibilities Act 2006(Vic)

Evidence Act 1995(NSW)

Civil and Administrative Tribunal Act 2013(NSW)

Administrative Decisions Review Act 1997(NSW)

Home Building Act 1989(NSW)

Legal Profession Uniform Law Application Act 2014(NSW)

Disability Discrimination Act 1992(Cth)

Corporations Act 2001(Cth)

Australian Human Rights Commission Act 1986(Cth)

Environmental Planning and Assessment Act 1979(NSW)

Prisoners (Interstate Transfer) Act 1983(Vic)

Cases Cited (74)

olicitors' Conduct Rules 2015 (NSW) Health Practitioner Regulation National Law (Victoria) Act 2009 Commonwealth Constitution Corporations Act 2001 (Cth) Disability Discrimination Act 1992 (Cth) Cases Cited: Albarran v Members of the Companies Auditors and Liquidators Disciplinary Board (2007) 231 CLR 350; [2007] HCA 23 Alexander v Minister for Home Affairs [2022] HCA 19 Attorney-General (Cth) v Breckler (1999) 197 CLR 83 Attorney General v Gatsby (2018) 99 NSWLR 1; [2018] NSWCA 254 Australian Press Council Inc v Southey [2022] NSWCATAP 127 Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation Ltd (1987) 18 FCR 212 Buckley v Council of the Law Society of New South Wales [2022] NSWSC 328 Burns v Corbett (2018) 265 CLR 304; [2018] HCA 15 Bale v Mills (2011) 81 NSWLR 498; [2011] NSWCA 226 Carr v Council of the Law Society of New South Wales [2020] NSWCA 276 Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16 Council of the New South Wales Bar Association v EFA (a pseudonym) (2021) 106 NSWLR 383; [2021] NSWCA 339 Council of the Law Society of New South Wales v Cummins [2018] NSWCATOD 185 Council of the Law Society of New South Wales v Diaz [2021] NSWCATOD 9 Council of the Law Society of New South Wales v DWO [2020] NSWCATOD 123 Council of the Law Society of NSW v DXW [2019] NSWCATOD 101 Council of the Law Society of NSW v Fisher [2021] NSWCATOD 73 Council of the Law Society of New South Wales v Gallego [2014] NSWCATOD 102 Council of the Law Society of New South Wales v Judah [2019] NSWCATOD 135 Council of the Law Society of New South Wales v Parente [2019] NSWCA 33 Council of the Law Society of New South Wales v Walsh [1997] NSWCA 185 Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57 Director of Housing v Sudi (2011) 33 VR 559; [2011] VSCA 266 Dydlam Developments Pty Ltd v The Owners - Strata Plan 85305 (2020) 104 NSWLR 19; [2020] NSWCA 327 Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318 Ex parte Macaulay (1930) 30 SR (NSW) 193 Felton v Mulligan (1971) 124 CLR 367 Frugtniet v Attorney-General (NSW) (1997) 41 NSWLR 588 Gaynor v Attorney General of New South Wales (2020) 102 NSWLR 123; [2020] NSWCA 48 Gautam v Health Care Complaints Commission [2021] NSWCA 85 Greyling v Nursing and Midwifery Board of Australia [2014] NSWCATOD 52 GS v MS [2019] WASC 255 Health Care Complaints Commission v Murray [2018] NSWCATOD Jacobs v OneSteel Manufacturing Pty Ltd (2006) 93 SASR 568 John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131 Kelly v Jowett (2009) 76 NSWLR 405; [2009] NSWCA 278 Legal Services Commissioner v Michael Vincent Baker [2005] LPT 2 M1-202 v Minister for Home Affairs [2022] HCA 17 McArdle v Legal Services Board (Legal Practice) [2021] VCAT 743 Medical Board of Australia v Kemp (2018) 56 VR 51; [2018] VSCA 168 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 NT Power Generation Pty Ltd v Power and Water Authority (2004) 219 CLR 90 Ousley v The Queen (1997) 192 CLR 69; [1997] HCA 49 Papadimitropoulos v The Queen (1957) 98 CLR 249; [1957] HCA 74 Precision Data Holdings Ltd v Wills (1992) 173 CLR 167; [1991] HCA 58 Tangsilsat v Council of the Law Society of New South Wales [2019] NSWCA 144 Wilson v Chan & Naylor Parramatta Pty Ltd (2020) 383 NSWLR 140; [2020] NSWCA 213 Texts Cited: Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability, 6th ed, 2017 United Nations Convention on the Rights of Persons with Disabilities Category: Principal judgment Parties: Council of the Law Society of New South Wales (Applicant) Albert Judah (Respondent) Representation: Counsel: G Johnson (Applicant)

Cited By (3)

FZK v Department of Customer Service

Ndou v Council of the Law Society of New South Wales

Trinh v Medical Council of New South Wales

Council of the Law Society of New South Wales v Judah

At a glance

Court

Decision date

Before

Catchwords

Source

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Judgment (81 paragraphs)

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Legislation Cited (16)

Cases Cited (74)

Cited By (3)