Council of the Law Society of New South Wales v Low

NCAT Occupational|2019-09-25

Background

By application for disciplinary proceedings and orders filed by the applicant on 26 November 2018 (application), the applicant sought the following orders: "(1) That the Solicitor be reprimanded. (2) The lawyer: (a) undertake, at his own expense, within 6 months of the date of the orders or within such further time as may be agreed by the Director, Professional Standards of the Law Society of NSW (Director) an appropriate course in legal ethics as approved by the Director (Ethics Course) and therein achieve a pass mark of not less than 50%; (b) undertake, at his own expense, within 6 months of the date of the orders or within such further time as may be agreed by the Director, an appropriate course in trust and office accounting as approved by the Director (Trust Course) and therein achieve a pass mark of not less than 50%; and (c) shall, within seven (7) days of receipt of notification of the result of his participation in the Ethics Course and Trust Course, provide to the Director, the original of such notification. (3) The Solicitor pay the costs of the Society as agreed or assessed. (4) Any further or other orders the Tribunal deems appropriate."

Hearings

The matter proceeded to hearing before the Tribunal constituted by the present members on 15 April 2019. Evidence was read by and submissions received from the parties. The respondent gave evidence on oath. At the conclusion of the hearing, directions were made for the filing of further evidence and submissions (directions) and we reserved our decision. Further evidence was filed and submissions received in accordance with the directions.

Pleadings and evidence

The respondent filed a reply to the application dated 13 February 2019.
On the hearing of the application, the applicant read in its case the following evidence without objection: 1. Affidavit of Ronald Frederick sworn 8 November 2018; 2. Affidavit of Ann-Marie Foord sworn 20 November 2018.
It tendered an Instrument of Consent under s 144 of the Legal Profession Uniform Law Application Act 2014 (NSW) (Uniform Law Application Act) signed by the parties and filed on 15 April 2019.
The respondent read the following evidence without objection. 1. Affidavit of C K Low sworn 8 November 2018; 2. Affidavit of C K Low sworn 13 February 2019.
After the hearing, the respondent filed an affidavit sworn 4 May 2019 and the parties filed submissions pursuant to the directions.
On the further application, the applicant read in its case an affidavit of Nadya Justine Haddad sworn 12 September 2019 and annexures. There was no objection by the respondent.

Submissions

The applicant submitted that following the decision of this Tribunal in Council of the Law Society of NSW v DXW [2019] NSWCATOD 101, the Tribunal does not have jurisdiction to hear and determine the application. The applicant did not seek an order pursuant to s 55(1) of the Civil and Administrative Tribunal Act 2013 (NSW) which provides that the Tribunal might at any stage dismiss proceedings before it if the applicant withdraws the application to which the proceedings relate. It sought an order that the proceedings be dismissed for want of jurisdiction.
The Tribunal's decision in Council of the Law Society of New South Wales v Judah [2019] NSWCATOD 135 concerned a similar application by the applicant for the dismissal of proceedings. As the Tribunal said at [5], the manner in which the applicant may commence an application for disciplinary proceedings in New South Wales is governed by the Legal Profession Uniform Law (Uniform Law) as supplemented by the Uniform Law Application Act. The Legal Services Commissioner of New South Wales (Commissioner) is the designated local regulatory authority for the purposes of Chapter 5 of the Uniform Law. The Commissioner may delegate any of his or her functions under Chapter 5 to the applicant. An essential precondition to the initiation of disciplinary proceedings is the making of a complaint under the Uniform Law.
In DXW the Tribunal concluded on the evidence before it that no "complaint" as defined in s 265 of the Uniform Law had been made as required by s 267. The Tribunal found that there could be no disciplinary matter as defined in s 270 of the Uniform Law because there was no "complaint" to form the basis of such a matter. The Tribunal found that in the absence of any evidence of a complaint having been made as contemplated by the Uniform Law, there was no basis for the initiation of the proceedings in the Tribunal and that the application should be dismissed; at [53].
The Tribunal further found that if it was incorrect in determining that there had been no valid complaint, there had been no valid delegation by the Commissioner to the applicant to empower the applicant to have taken any action in the institution and prosecution by it of the proceedings; at [67]. On the issue of delegation, the Tribunal considered that the plain words of the delegation under consideration were confined to a complaint which the Commissioner had decided not to deal with or continue to deal with; at [55]. The Tribunal found that no determination had been made at any stage by the Commissioner to delegate the complaint to the applicant and to delegate to it the function of instituting proceedings alleging professional misconduct against the respondent; at [58]. Accordingly, the Tribunal found that it had no jurisdiction or power to deal with the proceedings and that they should be dismissed for that reason; [at 67].
The applicant referred us to annexure "A" to Ms Haddad's affidavit, being a letter dated 28 September 2017 from Professional Standards to the Commissioner. The text of that letter was in the following terms; "Attached, for your information, is a list detailing complaints made which have been made under s. 266 which the Society is proceeding to investigate. Please activate your reference number and advise me in due course."
The letter attached a schedule under a heading "Complaints made pursuant to s 266 Legal Profession Uniform Law (NSW)" which referred to the claim against the respondent.
The applicant also referred us to annexure "B" to Ms Haddad's affidavit, being a letter from the Commissioner dated 29 September 2017 to Professional Standards. The text of that letter was in the following relevant terms: "I refer to your complaints received in this office on 29 September 2017 and advise that these complaints were opened in our office and allocated the reference numbers listed below."
The applicant's file number in respect of the respondent was listed in the letter.
These documents were in terms relevantly identical to the documents considered by the Tribunal in DXW on the same issues concerning whether a valid complaint had been made and delegation by the Commissioner. The applicant submitted that in those circumstances and in light of the Tribunal's decision in DXW, there was no complaint to form the basis of a disciplinary matter as defined in s 270 of the Uniform Law. As we understood it, it was also the applicant's position that if there had been a valid complaint, there was no determination by the Commissioner to delegate the complaint to the applicant for the purposes of instituting proceedings alleging professional misconduct against the respondent. The applicant sought the dismissal of the application for want of jurisdiction.
Although initially concerned by the prospect of the applicant reinstituting proceedings against him in due course if they were dismissed, the respondent ultimately made no substantive submission and did not resist the applicant's application for dismissal.

Consideration and decision

The Tribunal's decision in DXW upon the detailed analysis which it conducted has not, so far as we are informed, been the subject of appellate review. It has not been shown to be in error nor does it appear to be demonstrably wrong. We respectfully agree with the findings made. These findings are directly applicable to the facts of this application as established by the evidence. We are satisfied on the evidence and by the applicant's submissions that no lawful complaint has been made within the meaning of and as required by the Uniform Law to form the basis of a disciplinary matter in respect of the conduct alleged of the respondent. Accordingly, we find that the Tribunal does not have jurisdiction to determine the application. The application should be dismissed for want of jurisdiction.

Costs

The respondent who appeared in person did not seek a costs order and the parties were content that no order be made, with the intention that each party pay their own costs.

Orders

The Tribunal makes the following orders: 1. The application for disciplinary proceedings is dismissed. 2. No order as to costs with the intent that each party pay their own costs of and incidental to the proceedings.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 October 2019

At a glance

Court

Decision date

Source

Judgment (8 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (2)

Cited By (1)