Council of the Law Society of New South Wales v McGlinchey

Does the Tribunal have power to permanently stay proceedings?

1. Courts undoubtedly have implied or inherent power to stay criminal proceedings if they are an abuse of process: Jago v District Court of NSW [1989] HCA 46; (1989) 168 CLR 23 (Jago), Strickland v Commonwealth Director of Public Prosecutions [2018] HCA 53. However, the Supreme Court has expressed opposing views on the question of whether a tribunal has power to permanently stay proceedings in civil matters. At the beginning of the hearing I referred the parties to the following passage from Health Care Complaints Commission v Kirby [2019] NSWCATOD 47 at [5] which summarises the sources of those opposing views. Whether this Tribunal has power to permanently stay proceedings is a controversial issue which remains to be resolved. In Lindsay v Health Care Complaints Commission [2005] NSWCA 356, Hunt AJA doubted that the Medical Tribunal had power to stay disciplinary proceedings as an abuse of process. On the other hand, in Council of the NSW Bar Association v Archer [2008] NSWCA 164 (at [40]), Hodgson JA took the opposite view. In Council of the Law Society of NSW v Clarke [2017] NSWCATOD 142 and Health Care Complaints Commission v Karunaratne [2018] NSWCATOD 137, differently constituted tribunals accepted as correct the proposition that NCAT has power to permanently stay proceedings.
2. The most detailed analysis of this issue by the Tribunal is in Council of the Law Society of NSW v Clarke [2017] NSWCATOD 142 at [42]-[81]. In that case the Tribunal concluded that it has power to permanently stay proceedings brought under the Uniform Law. At the commencement of the proceedings I expressed my tentative disagreement with that conclusion. As the issue was not argued fully before me, I express no concluded view, but offer the following observations on one aspect of the Tribunal's reasoning.
3. Section 29(2)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) confers jurisdiction on the Tribunal to make "interlocutory decisions of the Tribunal in the proceedings". In Council of the Law Society of NSW v Clarke the Tribunal understood that provision to confer power on the Tribunal to make interlocutory orders of the kind described in s 4 of the NCAT Act. However, in my view, it is arguable that the word "jurisdiction" in s 29(2)(a) is used in the sense of conferring subject matter jurisdiction, not express power on the Tribunal. If that is correct, that provision does not confer power on the Tribunal to make an "interlocutory decision" as that term is defined in s 4 of the NCAT Act.
4. Express powers to make interlocutory decisions are contained in other parts of the NCAT Act. For example, s 43(3) gives the Tribunal power to stay certain kinds of decision. (3) The Tribunal may make such orders (whether with or without conditions) staying or otherwise affecting the operation of a decision to which a pending general application or appeal relates as it considers appropriate to secure the effectiveness of the determination of the application or appeal.
5. Provisions such as s 43(3) provide the source of power to make interlocutory decisions. As there is no express source of power to permanently stay proceedings, it is arguable that, if such a power is not conferred by s 29(2)(a) of the NCAT Act, the Tribunal does not have that power. Whether such a power can be implied, is also controversial.
6. I note that since reserving my reasons for decision, the Court of Appeal (Basten JA, Gleeson JA and Brereton JA) has handed down a judgment about the power of the Tribunal to stay proceedings until determination of other proceedings pending in the Supreme Court: Alexakis v Health Care Complaints Commission [2021] NSWCA 217. In that context, the Court doubted at [6], that s 43(3) of the NCAT Act gave the Tribunal power to make such an order. Nevertheless, the Court observed that ". . . the power to grant a stay may be found in s 36(1) (powers to determine own procedures) and s 51 (power to grant adjournments) of the Tribunal Act". I assume the Court was intending to refer to s 38(1) which gives the Tribunal power to "determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision." If these observations are correct, it is arguable that s 38 (1) of the NCAT Act also gives the Tribunal power to grant a permanent stay.

Amendment to the application

1. After expressing my tentative view as to the Tribunal's lack of power to permanently stay the proceedings, I asked Ms McGlinchey whether she wished to amend her application to seek, in the alternative, dismissal of the proceedings as vexatious: NCAT Act, s 55(1)(b). I did so because in Health Care Complaints Commission v Kirby [2019] NSWCATOD 47, the Tribunal suggested that, even if NCAT lacks power to permanently stay proceedings, there is power to dismiss vexatious proceedings: NCAT Act, s 55(1)(b). If Ms McGlinchey can establish that the proceedings are an abuse of process, that may be enough to give the Tribunal power to dismiss them as vexatious.
2. In relation to the former Medical Tribunal, the Court of Appeal has accepted that the procedures of such a non-curial body attract "abuse of process" doctrines: Sudath v Health Care Complaints Commission [2012] NSWCA 171 at [68] (Meagher JA, Basten JA and Whealy JA agreeing).
3. The Law Society did not object in principle to Ms McGlinchey applying, in the alternative, for the proceedings to be dismissed as vexatious. I gave leave for the application to be amended accordingly. I have proceeded on the assumption that the Tribunal also has power to permanently stay proceedings in civil matters under the Uniform Law based on the principles outlined by the High Court in Jago.

Principles applicable when determining whether to permanently stay or dismiss proceedings

1. A summary of the test, as formulated by Mason CJ in Jago at [21], is as follows: To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial 'of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences'. (citations omitted)
2. If the so-called "fundamental defect" is the effect of delay, Deane J identified the following five circumstances and considerations as relevant to a determination of that issue: 1. the length of the delay; 2. reasons given by the prosecution to explain or justify the delay; 3. the accused's responsibility for and past attitude to the delay; 4. proven or likely prejudice to the accused; 5. the public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime.
3. Deane J went on at 61, to elaborate on the Court's consideration of those circumstances: Those five "heads" provide convenient reference points for answering the question whether the effect of a delay in a particular case is such as to bring about a situation where any trial will necessarily be an unfair one from the accused's point of view or a situation where the continuation of proceedings would be so unfairly oppressive that it would constitute an abuse of process. They should not, however, be treated as a code or permitted to divert attention from the fact that what will ordinarily be involved in answering that question is the formation of a value judgment in the context of the nature and seriousness of the alleged offence and having regard to all other relevant circumstances. Consideration of heads (i) (length of the delay) and (ii) (prosecution's explanation) will involve account being taken of the time when relevant material was first known to the authorities and whether the charge is a complex or simple one. It will also involve consideration of what is reasonable in the context of the limitations of institutional resources. Consideration of head (iv) (prejudice to the accused) will involve account being taken of the availability of other discretionary powers to mitigate the effects of delay. Consideration of head (v) (public interest) will require that account be taken of the fact that the primary responsibility for determining whether criminal proceedings should be maintained lies with the executive and not with the courts. (citations omitted)

Evidence

1. The evidence consisted of two affidavits from Ms McGlinchey, one filed with the application for a permanent stay dated 21 April 2021, and the other dated 14 July 2021. I admitted those statements into evidence apart from those parts identified by the Law Society which amount to submissions. (Paragraphs 1-27, 48, 49, 71-74 and 76-79.) The Law Society relied on statements and affidavits from Mr John Michalski dated 22 November 2018, Mr Hugh Thomas dated 11 March 2019, Ms Nadya Haddad dated 19 March 2019 and Mr Anthony Lean dated 16 June 2021. Each of those documents was admitted into evidence.

Delays and Ms McGlinchey's responses to the Law Society's applications

1. A full chronology of the delay is set out in evidence filed by the Law Society.
2. Investigations first began in 2015. On 16 June 2015, after attempting unsuccessfully to conduct an external examination of Ms McGlinchey's practice's trust accounts, the Law Society appointed Mr Michalski to investigate various trust account transactions. He did not review the Shuptrine file because it was not available. Mr Michalski completed the report about 5 months later, on 26 November 2015. Serious issues regarding Ms McGlinchey's dealings with trust money were identified.
3. On 26 November 2015, Ms McGlinchey made various admissions including that she had "misapplied the sum of $15,000 from the general trust account and allocated those monies as withdrawals to costs and disbursements against the client Robert Bennoun". In December 2015, the Law Society suspended Ms McGlinchey's practising certificate for 6 months.
4. In a letter dated 21 October 2016, Ms Glinchey accepted the findings in Mr Michalski's report. She acknowledged her wrongdoing and conceded that it constituted "professional misconduct" as defined in the Uniform Law. Ms McGlinchey also wrote in that letter that she had repaid all misappropriated money and that her motivation was not greed. Rather, she was attempting to overcome cash flow issues. As Ms McGlinchey had given the relevant files to the Law Society in late 2015, these admissions were based only on Mr Michalski's report and any recollection Ms McGlinchey had at the time.
5. In the meantime, on 30 November 2015, the Law Society appointed Mr Savage as Manager of Ms McGlinchey's legal practice and Mr Hugh Thomas, a chartered accountant, as investigator. His final report was not provided until 31 October 2017, some two years later. Ms McGlinchey said that she did not receive it until 8 January 2018.
6. Ms McGlinchey wrote to the Law Society on 6 February 2018 responding to her conduct in relation to the Winkler file. She expressed regret that she had failed in her obligations as a solicitor in the conduct of the trust account.
7. The Professional Conduct Committee of the Law Society considered the matter on 20 September 2018 but proceedings were not commenced until 19 March 2019. Ms McGlinchey filed a Reply agreeing with the grounds and particulars set out in that application. However, the Tribunal found that those proceedings were affected by procedural defects and dismissed them on 25 September 2019: Council of the Law Society of NSW v DXW [2019] NSWCATOD 101.
8. On 22 November 2019, the legislation was amended to allow proceedings to be recommenced. Relying on the same grounds as those in the original proceedings, the Law Society recommenced the proceedings on 6 March 2020. The amended legislation had the effect that the filing and service of Ms McGlinchey's Reply dated 3 July 2019 and her 2019 affidavit was taken to have been done in the recommenced proceedings.
9. On 12 October 2020, the Law Society filed an Amended Application which included allegations of dishonesty in relation to the complaint of misappropriation. On 21 December 2020, the Law Society filed a Further Amended Application for disciplinary findings and orders which deleted the dishonesty allegation and added alternative breaches and additional complaints. These amendments were explained with reference to two Court of Appeal decisions - Berger v Council of the Law Society of New South Wales [2019] NSWCA 119; and Carr v Council of the Law Society of New South Wales [2020] NSWCA 276. Ms McGlinchey's reply to the Further Amended Application sought dismissal of the application or an order that the affidavits from Mr Michalski and Mr Thomas be excluded. I understand that that application has not been determined.

Missing documents

1. The Law Society is unable to locate Ms McGlinchey's "law practice's client files for Winkler, Bennoun, Hield, McEvoy or Shrutrine matters (other than the two Winkler matters folders that the Society produced in response to the Summons)": Mr Lean's affidavit of 16 June 2021 at [64].
2. In November 2015, Ms McGlinchey produced to the Law Society the client file for Bennoun together with the practice trust records for 2014-2015. Ms McGlinchey understood that those documents were to be used by Mr Michalski when conducting an investigation. In her written material, Ms McGlinchey lists the contents of the folder she produced which include a cheque book, trust receipt books, trust bank statements for various accounts, office bank statements, trust cash receipt books, trust ledgers and bank reconciliations. In January 2016, Ms McGlinchey produced all remaining client files including the Shuptrine and Winkler files to the Law Society.
3. On 3 November 2020 Ms McGlinchey wrote to the Law Society requesting access to the client files of Shuptrine, Winkler and Bennoun and the records produced in 2015 and 2016. She did not receive that material and applied for a summons to be issued on 3 February 2021. The Law Society produced some documents but none from the Bennoun file or the Shuptrine file. Mr Lean's affidavit at paragraph 76 sets out the details of the searches carried out to locate those documents. Ms McGlinchey has made her own inquiries of Mr Michalski and Mr Savage as to the whereabouts of the documents but to no avail. The Law Society submits that, because of the limitations on the Law Society's resources, it would be unreasonable to continue to search for the documents. According to the Law Society the delay is not 'unreasonable' as that term is understood in Jago.

Irregularities in the investigation

1. Ms McGlinchey raises procedural breaches of the Legal Profession Act 2004 (NSW) and the Uniform Law relating to the appointment of an investigator, Mr Michalski, and the alleged failure to notify her of the investigation. Ms McGlinchey submits that these non-compliances mean that the investigation was illegal. In addition, she contends that the conduct of the investigation by Mr Thomas was procedurally unfair. I note the Law Society's submission that it has dealt with the complaints in accordance with the Uniform Law.
2. Even if Ms McGlinchey's submissions are correct, and I make no finding either way, these are not the kinds of failures that would support an application for a permanent stay of the proceedings.

Five circumstances relevant to delay and missing documents

1. In Jago, Deane J identified five circumstances as relevant to whether the effect of the delay has resulted in a "fundamental defect". I will consider these circumstances, both in the context of the delay and the missing documents. The first is the length of the delay which I will consider together with reasons given by the Law Society to explain or justify the delay. The Law Society identified three categories of delay: 1. the period from the date of the alleged transactions in 2014 and 2015 until the filing of the Further Amended Application on 21 December 2020; 2. the period between the appointment of Mr Thomas on 30 November 2015 and the provision of the Shuptrine Report in November 2017; and 3. the periods relating to the consideration, commencement and recommencement of the proceedings.
2. The overall length of the delay, from the commencement of the investigation until the filing of the Further Amended Application, is between six and seven years. That is a significant period of time. The delays associated with the consideration, commencement and recommencement of the proceedings periods are, in general, explicable because of changes to the law.
3. The most significant period of delay is the two years delay in the provision of Mr Thomas' report. That delay was said to be explicable for the reasons set out in Mr Lean's affidavit. The Law Society explained that, in the course of his appointment, Mr Thomas provided 12 reports to the Law Society. Ten of those reports related to client files which are not the subject of any allegations. The final two reports related to the Shuptrine file. From 26 October 2016, the Law Society took steps to contact Mr Thomas inquiring as to the progress of the reports. The investigations were said to have been carried out "as efficiently and expeditiously" as practicable, given the breadth of the investigation required to be undertaken by Mr Thomas.
4. I make no adverse finding as to efficiency with which the investigations were carried out. Without some evidence from Mr Thomas and a more detailed inquiry into the circumstances of the delay, I am not satisfied that the Law Society could have taken steps which would have shortened the time Mr Thomas took to produce the report.
5. The third circumstance identified by Deane J in Jago is "the accused's responsibility for and past attitude to the delay". The Law Society submits that the delay has only recently been raised by Ms McGlinchey and therefore there is an element of acquiescence. Ms McGlinchey denies any acquiescence on her part. The Further Amended application was not filed until 21 December 2020. The prejudice caused by the delay in conjunction with the loss of the client files and trust records only became apparent when she attempted to respond to that application. I find that any responsibility by Ms McGlinchey for the delay is relatively minor. However, it is not the case that any difficulty in responding to the most recent application only recently became apparent. In substance, the latest application is similar to previous applications to which Ms McGlinchey has responded.
6. The fifth circumstance identified by Deane J in Jago is the public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime. In the context of the Uniform Law, disciplinary proceedings are concerned with the protection of the public. One of the objectives in s 3(b) of the Uniform Law is "ensuring lawyers are competent and maintain high ethical and professional standards in the provision of legal services". Against the public interest in ensuring that high ethical and professional standards are maintained, I must consider the effect of the delay and missing documents on Ms McGlinchey.

Effect of delay and missing documents

1. The third of the five circumstances outlined by Deane J in Jago is the proven or likely prejudice caused by the delay (and the missing documents). Ms McGlinchey listed the kinds of correspondence and documentation contained in the client files which she had provided to the Law Society and which are now missing. She says the few documents attached to Mr Michalski's affidavit prove the trust account transactions were made but not the reason or the context. Those documents support the Law Society's case but do not contain all the material that could possibly be relevant to assist in her defence. According to Ms McGlinchey, the absence of this material also prevents her from making admissions or explaining genuine mistakes.
2. The allegations in the Bennoun matter concern ten transfers from the trust account to the office account between August 2014 and November 2015. Ms McGlinchey says that she remembers the client matters the subject of the proceedings "in general" but these were only a few of the dozens of matters she was dealing with at the time. Some of the transactions were for relatively small amounts of money and do not relate to major transactions such as deposits or settlement. Ms McGlinchey does not think it is unreasonable to expect that her memory of those insignificant transactions has deteriorated since 2014.
3. In relation to the file of Winkler, she also recalls that matter in general terms but does not recall exactly when she paid counsel's fees. In relation to the Shuptrine matter, Ms McGlinchey says her memory is better because it was the first time she had paid stamp duty for a client for an "off the plan" purchase. In general, Ms McGlinchey maintains that because she cannot understand the context or circumstances in which these transactions occurred, she is unable to reply to the application and participate in the proceedings in a meaningful way. She says she has significant doubts about the truth of the allegations, but is unable to point to facts in her defence, except for the Shuptrine matter.
4. On 13 January 2021 Ms McGlinchey wrote to the Law Society saying that she intended to appoint an accountant to examine all the documents to verify the investigator's reports and prepare a chronology. She said that was not possible without the primary documents. According to Ms McGlinchey, without the trust records she cannot test and verify that the transactions were made or that they have been accounted for correctly. The client files are the records that could be expected to contain evidence of authority to make transactions and contain invoices issued by Ms McGlinchey. The complaint alleges that Ms McGlinchey was dishonest. The documents will allow her to demonstrate that if mistakes were made, they were not intentional. I understand that the dishonesty allegation is no longer part of the application.
5. Ms McGlinchey also submits that it is "more than likely" that Mr Michalski did not see the client files for Winkler or Shuptrine before formulating the allegations. It is therefore essential that she has the opportunity to see the client files so that she can answer the allegations.
6. The Law Society's response is that Ms McGlinchey has failed to identify how any of these matters could justify a permanent stay of the proceedings. The Law Society relies on those documents annexed or exhibited to the affidavits of Ms Haddad, Mr Michalski and Mr Thomas. The investigation and prosecution have been based on the express admissions made by Ms McGlinchey. She has admitted the underlying allegations in submissions dated November 2015 and 6 February 2018 as well as in her affidavit of 28 June 2019 and her reply filed on 3 July 2019. There are no facts in issue. Consequently, there is no relevant recollection that may have deteriorated, no need for an aide memoire and no missing information which could be relevant. The only issue is a legal one: whether Ms McGlinchey's admitted conduct constitutes professional misconduct.
7. Ms McGlinchey's response is that the admissions she has made are not relevant and that the Tribunal should not accept them. She says they were made when she was under a "different apprehension of the process".
8. The delay of between six and seven years from when the relevant transactions occurred and the latest application is significant. However, there are valid and plausible reasons for much of the delay. Ms McGlinchey did not contribute to it or acquiesce to any significant degree. Inevitably, in such a long period, there will have been a deterioration in the quality of Ms McGlinchey's recollection. The missing documents mean that she will not be able to present a full chronology of the events leading up to and following the trust account transactions. However, I agree with the Law Society's submission that Ms McGlinchey has not identified what kind of information was overlooked in the investigation that could possibly provide an explanation for her conduct.
9. Even if Ms McGlinchey is unable to put each of the alleged transactions in context, the delay, together with the missing documents, are not such as to "produce the extreme situation in which any further proceedings should be permanently stayed": Jago at 60 per Deane J. Neither, as Deane J went on to say at 61, will the continuation of the proceedings ". . . be so unfairly oppressive that it would constitute an abuse of process".
10. Ms McGlinchey relied on the case of Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 at 551 per McHugh J. That case was about the exercise of the discretion to extend a limitation period to ensure a fair trial on the merits of the case. The inevitable deterioration in the quality of the evidence may result in prejudice to the respondent if the proceedings go ahead. This case is of limited relevance because the test for a permanent stay is that there must be a fundamental defect which goes to the root of the trial.
11. Nor are the facts of this case comparable to those in The Queen v Davis [1995] FCA 529 (23 June 1995); 81 A Crim R 156. In that case the charges were brought many years after the alleged assaults and the doctor's medical records had been lost. The Court (Wilcox, Burchett & Hill JJ) permanently stayed the proceedings and concluded at 396 that while delay alone would not justify a stay, there was a "special prejudice, occasioned by the destruction of the medical records". Dr Davis was unable to recall the relevant consultations and he had no means of checking the reason for the consultation, how many times he saw the patient, or the treatment he provided.
12. In this case the complete files were available to Ms McGlinchey before she gave them to the Law Society. She was on notice that trust account transactions were being investigated. In addition, the prosecution has been based on the express admissions she made. I am not sure what Ms McGlinchey means when she says she had a "different apprehension of the process" at the time she made those admissions. As things stand, there are no factual issues in dispute.
13. The application for a permanent stay is refused.
14. It also follows that as nothing Ms McGlinchey has identified constitutes an abuse of process, the alternative application for the proceedings to be dismissed as vexatious is refused.

Costs

1. The general rule is that each party pays their own costs in these kinds of interlocutory proceedings: NCAT Act, s 60(1). The Law Society submits that there are "special circumstances" warranting an award of costs in this case. The written submissions in support of that application were short and Ms McGlinchey had not put on any written submissions in reply. In those circumstances, I make the following directions: 1. The Council of the Law Society of NSW is to file and serve any application for costs and any submissions as to whether a hearing on any application for costs should be dispensed with, within 7 days of the date of these reasons for decision. 2. Ms McGlinchey is to file and serve any written submissions in reply and any submissions as to whether a hearing on any application for costs should be dispensed with, within 7 days of receiving any submissions from the Council of the Law Society of NSW.

Orders 1. Leave is granted for Ms McGlinchey to amend the application for a permanent stay by adding, in the alternative, an application to dismiss the proceedings as vexatious under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW). 2. The application for a permanent stay of the proceedings is refused. 3. The application to summarily dismiss the proceedings as vexatious is refused.

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: 17 September 2021