Council of the Law Society of New South Wales v Moore

NCAT Occupational|2018-08-24

Background

On 14 March 2018 the applicant in these proceedings, the Council of the Law Society of New South Wales filed two Applications in this Tribunal, to both of which Simeon Peter Moore was the respondent. The first of these Applications sought disciplinary findings and orders against the respondent who is a solicitor pursuant to the provisions of the Legal Profession Uniform Law ("the Uniform Law"). The grounds of the complaints are based on two distinct incidents. The first is an alleged failure by the respondent to comply with a notice issued under section 660 of the now repealed Legal Profession Act, 2004. The second consists of an allegation that in Family Law proceedings involving the custody of children in which the respondent was engaged as the solicitor for the father, the respondent had inappropriately placed the names of the children on a Family Law Watch List retained by the Australian Federal Police which precluded the mother from boarding a flight out of Australia with the children. We were informed during the course of these proceedings that the applicant no longer wishes to prosecute the allegations concerning the second matter. Accordingly it is only the failure to comply with the section 660 notice which is now an issue in the proceedings.
The second application with which we are dealing is an Application made under section 137 (2) of the Legal Profession Uniform Law Application Act 2014 ("the Application Act") to extend the time for commencing the Application for disciplinary proceedings described in [1] above.
Section 137 of the Application Act is in the following terms; 137 Time for initiating proceedings (1) A disciplinary application may be made to the Tribunal at any time within 6 months after the NSW Commissioner decides to initiate proceedings in the Tribunal with respect to the alleged conduct. (2) Despite subsection (1), the Tribunal may, on application in writing by the NSW Commissioner, extend the time for making a disciplinary application. (3) In exercising the power to extend the time for making a disciplinary application, the Tribunal is to have regard to all the circumstances of the case, and without limitation the Tribunal is to have regard to the following: (a) the public interest, (b) the extent to which, having regard to the delay, there is or may be prejudice to the lawyer concerned because evidence that would have been available if the application had been made within the 6-month period is no longer available, (c) the reasonableness of the applicant's explanation for the delay in making the application. (4) The time for making a disciplinary application may be extended under subsection (2) even if that time has expired. (5) An official record or notification of a decision referred to in subsection (1) and stating the date the decision was made is evidence that the decision was made and of the date the decision was made.

The factual background

The applicant relied upon affidavit evidence of Anne-Marie Foord, Director, Professional Standards of the Law Society of NSW sworn on 14 March 2018. Ms Foord said that the decision of the applicant to commence the disciplinary proceedings was made on 29 June, 2017. Accordingly, the Application was required by section 137 (1) of the Application Act to be filed by 29 December 2017. The application was not filed until 14 March 2018.
In her affidavit Ms Foord described the reasons why the application had not been filed within time in the following terms; The Application was not filed within the requisite time as the file (s) relating to the complaints the subject of the Application had been erroneously archived. This error has only recently come to my attention. The Application was thereafter expeditiously prepared and filed. ………..the various complaints the subject of the Application (for disciplinary findings) have been on foot for some considerable time. Further, one of the complaints raises an allegation of statutory professional misconduct.
We also admitted into evidence, on a consent basis, an affidavit affirmed by the respondent on 18 May 2018 which purported to address matters relevant to the substantial Application for disciplinary findings and not for the purpose of comprehensively addressing matters the subject of the Application with which we are presently dealing. Information contained within that affidavit does assist us in dealing with this Application for extension of time, because it explains in part the nature and extent of the underlying complaints made by the applicant against the respondent. Furthermore, that affidavit annexes certain correspondence between the applicant and the respondent concerning the section 660 Notice.
A convenient starting point for a consideration of the factual matters pertaining to the section 660 notice is the provisions of that section. It is in the following terms; 660 Requirements in relation to complaint investigations (1) For the purpose of carrying out a complaint investigation in relation to an Australian lawyer, an investigator may, by notice served on the lawyer, require the lawyer to do any one or more of the following: (a) to produce, at a specified time and place, any specified document (or a copy of the document), (b) to provide written information on or before a specified date (verified by statutory declaration if the requirement so states), (c) to otherwise assist in, or co-operate with, the investigation of the complaint in a specified manner. (2) For the purpose of carrying out a complaint investigation in relation to an Australian lawyer, the investigator may, on production of evidence of his or her appointment, require any associate or former associate of a law practice of which the lawyer is or was an associate or any other person (including, for example, an ADI, auditor or liquidator but not including the lawyer) who has or has had control of documents relating to the affairs of the lawyer to give the investigator either or both of the following: (a) access to the documents relating to the affairs of the lawyer the investigator reasonably requires, (b) information relating to the affairs of the lawyer the investigator reasonably requires (verified by statutory declaration if the requirement so states). (3) A person who is subject to a requirement under subsection (1) or (2) must comply with the requirement. Maximum penalty: 50 penalty units. (4) A requirement imposed on a person under this section is to be notified in writing to the person and is to specify a reasonable time for compliance. (5) A person who is subject to a requirement under subsection (1) or (2) is not entitled to charge the investigator for doing anything in compliance with the requirement.
In his affidavit the respondent set out some historical matters which preceded the issue of the section 660 notice. At a time when the respondent had completed his legal studies, but prior to completing certain mandatory practical subjects which would allow him to be admitted as a solicitor, the respondent said he undertook some research of a non-legal nature to assist a Mr Donoghue to deal with certain legal proceedings. At all relevant times, Mr Donoghue was represented in those proceedings by a number of different firms of solicitors. The respondent said that in the course of undertaking that research he "came into possession of documents related to aspects of certain of (the) business activities" of the companies and other entities of Mr Donoghue. He was approached by representatives of the Australian Taxation Office and provided certain information to that organisation. In proceedings in the Federal Court of Australia Mr Donoghue claimed that the information which the respondent had provided to the Australian Taxation Office was privileged and could not be relied upon for the purpose of issuing taxation assessments. At first instance the claim for privilege was upheld and in the course of his decision, the presiding Judge criticised the respondent. The "disparaging remarks" concerning the respondent made by that Judge were published in the media. The respondent said that he had not given evidence in the proceedings, he had not been advised that allegations have been made against him and was not even aware of the existence of those proceedings. The respondent said that the publication of the adverse comments made about him in the first instance decision had "disastrous consequences" for him. He said he was subjected to derogatory comments published in social media, was unable to obtain employment as a solicitor, suffered ill health, and the publicity had devastating effects on his family. The respondent remains unemployed and said that it was unlikely that he would ever be able to return to the practice of law.
Subsequently, the first instance decision was overturned on appeal, but this fact attracted no publicity.
The correspondence annexed to the respondent's affidavit consists firstly of a letter from the Professional Standards division of the applicant to the respondent dated 26 May 2015. That indicates concern on the part of the applicant that the respondent had completed an application for a practising certificate for the year ending 30 June, 2014 on 20 February, 2014 and had failed to declare that he was aware of any "finding, conduct or event" which would entitle him, without disclosure, to be admitted to the Local Roll of Lawyers or "effect (sic)" his fitness to hold a practising certificate. That letter referred to the first instance decision in which judgment had been delivered on 17 March 2015 and to the adverse comments made about the respondent in that decision. The letter alleged that there were a number of matters referred to in that decision which should have been disclosed by the respondent, details of which were provided to the respondent. The letter indicated that the applicant had made a complaint against him "in order to investigate for itself" the declaration made by the respondent when applying for his practising certificate and asserted that the "investigation will be fair and impartial."
On 30 June 2015 a solicitor acting for the respondent replied to the applicant's letter of 26 May 2015 furnishing a detailed response to the allegations made.
On 12 November 2015 the applicant issued a notice to the respondent under section 660 of the Legal Profession Act 2004. We do not have in evidence before us a copy of that notice. In a lengthy and detailed letter of 22 December 2015 from the respondent to the applicant the respondent described the notice as "lengthy" and said that it had been served personally on him on 27 November 2015. It is not necessary that we embark upon a detailed discussion of the respondent's letter of 22 December 2015. It is sufficient to describe it as covering the following matters; 1. the respondent described the investigation being conducted by the applicant as being "inter-alia, vexatious, improper and without foundation" on a number of grounds which he detailed as challenging the factual circumstances set out in the first instance judgement in the Federal Court 2. challenging the applicant to describe the respondent's conduct in disclosing to the Australian Taxation Office material relating to what he described as tax evasion involving $30 million as falling below the standard of conduct expected by the applicant 3. the prior dismissal by the applicant of complaints dated 28 September 2010 made against him by a third party who was in a personal relationship with Mr Donoghue
The respondent's letter sought an extension to 29 February 2016 to reply to the notice on the basis that "some 50 pages of facts and submissions" had been lost on a computer hard drive, he had written a further 41 pages of facts and submissions, his "evidence bundle is voluminous and that evidence must be incorporated into by facts and submissions", and that his requirement to respond was impacting significantly upon his ability to properly attend to matters on behalf of his clients. Furthermore, he requested delivery of a copy of all documents in the possession or control of the applicant relating to the complaint made by the third party dated 29 September 2010.
The applicant replied by letter dated 6 January 2016 declining to grant any extension of time to comply with the notice because as at that date "there has been neither compliance with the Notice, nor receipt of a statutory declaration stating your reasons for your inability to comply." Furthermore, the letter indicated that a recommendation would be made that an appropriate complaint be made against the respondent, although the delegate of the applicant's Council responsible for determining that matter would be advised of any substantive response received prior to making any decision.
We note for completeness that the Full Court of the Federal Court of Australia published its decision on 17 December 2015 in which it comprehensively reversed the first instance decision. See Commissioner of Taxation v Donoghue [2015] FCAFC 183. No evidence has been put before us by the applicant as to whether the Full Court decision impacted in any way on its determination to proceed with the complaint against the respondent based upon his failure to comply with the section 660 notice.
On 4 February 2016 two Administrative Assistants of the Professional Standards division of the applicant notified Mr John McKenzie, the Legal Services Commissioner pursuant to section 266 of the Uniform Law that complaints had been made by the applicant against the respondent on 1 February 2016 with respect to files which had been opened on 4 February 2016 and that these complaints were; 1. that the respondent had "without reasonable excuse, failed to comply with a requirement under section 660 of the Legal Profession Act, 2004" 2. on nominated dates in September 2015 the respondent had "knowingly or recklessly" misled the Federal Circuit Court of Australia by failing to inform it that he had caused the names of two children to be placed on the Australian Federal Police Family Law Watchlist, and had "knowingly or recklessly" misled the legal representative of the wife/mother in those proceedings by failing to disclose this information to the wife/mother in those proceedings.
Section 266 of the Uniform Law is in the following terms; 266 Who may make a complaint? (1) Any person or body may make a complaint. (2) The designated local regulatory authority may initiate a complaint containing a disciplinary matter only.
We shall assume that the notices given to the Legal Services Commissioner indicate that complaints were being formally made by the applicant on 1 February 2016, and that files had been opened on 4 February 2016 with respect to those complaints. As was previously set out, the decision by the applicant to commence proceedings in this Tribunal against the respondent was made on 29 June 2017 and the Application for disciplinary findings was not filed until 14 March 2018. We shall return to these matters when considering the merits of the application to extend time for the filing of the Application.
Before considering the merits of the application for extension of time, it is also necessary that we have regard to the statutory matrix against which the complaints were made.

The statutory provisions concerning complaints and the role of the applicant

The parties agreed that in the factual circumstances applying to these proceedings the provisions of the Uniform Law applied. Complaints concerning legal practitioners under the Uniform Law are dealt with in Chapter 5. Relevantly, a complaint is defined in section 265 as follows; 265 What is a complaint? A complaint may relate to any dispute or issue about any conduct to which this Chapter applies. Note A complaint can be about the conduct of either a lawyer or a law practice or both.
Importantly sections 266, 267 and 268 provide for the making of complaints in the following terms; 266 Who may make a complaint? (1) Any person or body may make a complaint. (2) The designated local regulatory authority may initiate a complaint containing a disciplinary matter only. 267 How is a complaint made? (1) A complaint is made to or by the designated local regulatory authority. (2) A complaint must be made or recorded in writing and must - (a) identify the complainant; and (b) identify the lawyer or law practice about whom the complaint is made (or, if it is not possible to identify the lawyer, identify the law practice concerned); and (c) describe the alleged conduct that is the subject of the complaint. 268 Matters in a complaint (1) A complaint may contain either or both of the following - (a) a consumer matter; (b) a disciplinary matter. (2) A dispute or issue about conduct that is the subject of a complaint can be both a consumer matter and a disciplinary matter. Note For example, a dispute or issue relating to costs could be both a consumer matter (i.e. a costs dispute) and a disciplinary matter. (3) A commercial or government client making a complaint cannot obtain relief under this Chapter in relation to a consumer matter, but this subsection does not prevent the dispute or issue that is the subject of the consumer matter from being dealt with as a disciplinary matter.
For the purpose of section 266(2), a designated local regulatory authority is defined in section 6 as; designated local regulatory authority means a person or body specified or described in a law of this jurisdiction for the purposes of a provision, or part of a provision, of this Law in which the term is used;
Section 11 of the Application Law contains provisions identifying the designated local regulatory authority for the purpose of the Uniform Law, the portion of which being relevant for present purposes is; 11 Designation of local authorities and tribunals (1) A person or body specified in Column 2 of Table 1 is the designated local regulatory authority for the purposes of a provision of the Legal Profession Uniform Law (NSW) specified in Column 1 of that Table opposite that person or body. Note. See section 6 of the Legal Profession Uniform Law (NSW) for the definition of designated local regulatory authority. Table 1 Designated local regulatory authorities Column 1 Column 2 Provision of Legal Profession Uniform Law (NSW) Designated local regulatory authority Chapter 5 NSW Commissioner Note. Section 405 (2) of the Legal Profession Uniform Law (NSW) contemplates that the local regulatory authority (the NSW Commissioner) may delegate Chapter 5 functions to a professional association (the Bar Association or Law Society). See also sections 29 (c) and 31 (1) (c) of this Act. Chapter 7 to the extent that it applies to complaint investigations NSW Commissioner Note. These functions of the NSW Commissioner under Chapter 7 are "Chapter 5 functions" and therefore may be exercised by the Bar Association or Law Society by delegation. See the note in relation to Chapter 5 above.

It is uncontroversial that the reference to the NSW Commissioner is to the Legal Services Commissioner of NSW ("the Commissioner").

Application of the statutory provisions to the complaints in the substantive proceedings

The complaints contained within the substantive Application for disciplinary orders may have been made by any person or body pursuant to section 266 (1) of the Uniform Law. However, they must have been made by or to the Commissioner, by reason of the provisions of section 267 (1).
Once notified, the Commissioner is empowered to investigate and deal with the complaints or to delegate these functions to the Law Society of NSW and its Council. Section 31 of the Application Law provides as follows 31 Functions of Law Society Council (1) In addition to its other functions, the Law Society Council may exercise functions conferred or imposed on it or the Law Society: (a) by the Legal Profession Uniform Law (NSW), or (b) by this Act, or (c) as delegate of the NSW Commissioner.
Sections 405 and 406 of the Uniform Law are also relevant. They are in the following terms; 405 Local regulatory authority for Chapter 5 functions to be independent entity (1) A local regulatory authority exercising Chapter 5 functions must be an independent entity. (2) Subsection (1) does not prevent a local regulatory authority from delegating (under section 406) any Chapter 5 functions to a professional association. 406 Delegation of functions of local regulatory authorities (1) A local regulatory authority may, by instrument in writing, delegate any of its functions under this Law to an entity prescribed, or an entity of a class prescribed, by jurisdictional legislation. (2) Subsection (1) does not apply to - (a) the power to delegate a function; or (b) the power (under section 411) to take over responsibility for a matter from a delegate of the local regulatory authority.
We return to the notification to the Commissioner made by the Administrative Assistants of the Professional Standards by letter dated 4 February 2016 to which we have earlier made reference. In that these notifications referred to a list detailing complaints made under section 266 of the Uniform Law, they can only have been made pursuant to section 266 (1). That is, they clearly took the form of complaints made by the applicant to the Commissioner. These letters of notification inform the Commissioner that the Society "is proceeding to investigate" them and asks the Commissioner to activate his "reference number and advise me in due course."
There is in evidence also before us on an agreed basis a general form of Instrument of Delegation made by the Commissioner dated 18 June 2015. That document delegates, relevantly, to the Law Society under section 406 of the Uniform Law "my functions as the designated local regulatory authority under the provisions of the Uniform Law stated in the Schedule to this delegation, in respect only of a complaint (as defined in section 265 of the Uniform Law) made to or by me which is; 1. a disciplinary matter (as defined in section 270 of the Uniform Law) which I have decided not to deal with or to continue to deal with, which I refer to the relevant Professional Association for assessment, investigation and determination under Chapter 5…………………….."
The Schedule to the Instrument of Delegation delegates inter alia the "powers, functions, and duties" of the Commissioner under section 266 (2) of the Uniform Law described as "Initiating a complaint" but on condition that a copy of a complaint made by the Law Society is forwarded by it as soon as possible to the Commissioner. No issue arises concerning compliance with this condition. There is further, relevantly, delegated the "Initiation and prosecution of proceedings in a designated tribunal" under section 300 of the Uniform Law. However, each of these delegations is subject to the operative provision of the Instrument of Delegation namely that the functions are confined to a disciplinary matter which the Commissioner has decided not to deal with or to continue to deal with. There is simply no evidence that the Commissioner decided that he would not deal with the complaints concerning the respondent referred to him on 4 February 2016, and we were informed by the applicant that there is no evidence that the Commissioner so decided.
It follows that in circumstances where there is no evidence of any relevant decision having been made by the Commissioner that he had decided not to deal with or to continue to deal with the complaints notified to him concerning the respondent on 4 February 2016, there has been no delegation to the applicant, and it follows that the issue under section 660 of the purported notice, and the institution of the proceedings have been made without authority. If this is correct, and we must assume that this conclusion is correct on the basis of the evidentiary material and concession put before us, this situation provides a powerful basis upon which to decline to grant the application to extend time for the commencement of these proceedings. We emphasise that in so determining we have not made any final conclusive determination that the Commissioner has failed to decide that he would not deal with the complaints concerning the respondent, because on one basis it might be inappropriate to do so without giving the parties and perhaps the Commissioner also an opportunity of addressing us about this matter. Our determination has been made on the basis of such information and evidence as the parties have put before us.

The in-principle approach to the grant of extension of time in which to commence proceedings

We turn now to a consideration of the general merits of the application to extend time. The question of granting an extension of time in which to commence proceedings was considered recently in the NSW Court of Appeal in Barrett v TCN Channel Nine Pty Ltd [2017] NSWCA 304. Those proceedings concerned a time limitation of one year in which to commence a cause of action for defamation, but which was capable of being extended by a court in specific circumstances expressed in the relevant legislation as follows; (2) A court must, if satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the matter complained of within 1 year from the date of the publication, extend the limitation period mentioned in section 14B to a period of up to 3 years running from the date of the publication. (3) A court may not order the extension of the limitation period for a cause of action for defamation other than in the circumstances specified in subsection (2)."
The principal judgement of the Court was given by McColl JA, with whom Simpson JA and Payne JA agreed. At [64] to [68] her Honour said; The meaning of s 56A (2) is to be discerned from its text, context and purpose, regarding context in its widest sense, as including such things as the existing state of the law and the mischief which one may discern the Limitation Act was intended to remedy. "[E]nactment of time limitations has been driven by the general perception that '[w]here there is delay the whole quality of justice deteriorates'". Limitation provisions give effect to an underlying policy that "a defendant should be spared the injustice of having to face a stale claim, that is to say one with which he never expected to have to deal". A limitation period is not "an arbitrary cut off point unrelated to the demands of justice or the general welfare of society ... [but] represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated." Conversely, extension provisions constitute "legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case [and whose purpose]...is 'to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced.' But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action." Those rationales include the law's recognition of "the need to commence actions promptly and to prosecute them promptly once commenced", the fact that "as time goes by, relevant evidence is likely to be lost", that "it is oppressive, even 'cruel', to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed", that "people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them", that "[i]nsurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period" and that "the public interest requires that disputes be settled as quickly as possible". There are divergent views concerning the question whether extension provisions are beneficial or remedial in nature. McHugh J held, in effect, that they were not in Brisbane South. Kirby J held to the contrary in Stephenson. If they are to be regarded as beneficial or remedial, they are to be construed liberally to the extent that to do so is consistent with the statutory language. Nevertheless, "a court or tribunal is not at liberty to give [a beneficial provision] a construction that is unreasonable or unnatural." (citations omitted)
We readily point out that the discretion which we are asked to exercise in the circumstances of these proceedings is not circumscribed in any way by provisions equivalent to section 56 A (2) of the Defamation Act 2005 (NSW). However, we adopt the general principles set out in Barrett as those reflecting authoritative principles which have been established over many years, applying to the exercise of discretion whether to extend a statutory time limit for the commencement of proceedings. In this vein we also recognise that the circumstances and public interest applying to civil proceedings concerning a claim for damages based on defamation are relevantly different to those applying to an application by the applicant in these proceedings for disciplinary orders against a legal practitioner. Moreover, the structure of section 56A (2) is different to the structure of section 137 of the Application Act. The former mandates an extension of time, whereas the latter does not. However, it is the identification of the matters relevant to the exercise of discretion which is important.
As is obvious, the commencement point for any consideration is the fact that the legislature has seen fit to impose a time limit, and the fact that a discretion has been created to permit the commencement of proceedings notwithstanding the expiry of that limit. Both of these matters must be taken into account when determining that discretion is to be exercised.
In submissions, the applicant relied substantially on a decision of the former NSW Administrative Decisions Tribunal Legal Services Division in New South Wales Bar Association v LI (No 2) [2006] NSWADT 263. The factual circumstances which applied to those proceedings were complicated, and significantly different to those with which we are currently dealing. However, the then relevant provisions which the Tribunal held applied to those proceedings were similar to those which apply to these proceedings. The proceedings in LI were governed by section 167 AA of the former Legal Profession Act 2004 which was in the following terms; 167AA Time for instituting proceedings (1) An information may be laid under this Part at any time within 6 months after the Council or Commissioner decides that proceedings be instituted in the Tribunal with respect to the complaint concerned. (2) Despite subsection (1), the Tribunal may, on application in writing by the Council or Commissioner, as the case may require, extend the time for laying an information referred to in subsection (1). (3) In exercising the power to extend the time for laying an information, the Tribunal is to have regard to all the circumstances of the case, and (without affecting the generality of the foregoing) the Tribunal is to have regard to the following: (a) the public interest, (b) the extent to which, having regard to the delay, there is or may be prejudice to the legal practitioner concerned by reason that evidence that would have been available if the information had been laid within the 6-month period is no longer available, (c) the reasonableness of the applicant's explanation for the delay in laying the information. (4) The time for laying an information may be extended under subsection (2) although that time has expired. (5) This section has effect despite anything in section 44 of the Administrative Decisions Tribunal Act 1997 or the rules or regulations under that Act. (6) For the purposes of subsection (1), a decision that proceedings be instituted is made when: (a) the Council or Commissioner decides that there is a reasonable likelihood that the legal practitioner concerned will be found guilty of unsatisfactory professional conduct or professional misconduct, as referred to in section 155 (2), or (b) the Commissioner decides to institute proceedings in the Tribunal against the legal practitioner concerned, or to direct the appropriate Council to do so, under section 160 (1) (d). (7) An official record or notification of a decision referred to in subsection (6) (a) or (b) and stating the date the decision was made is evidence that the decision was made and of the date the decision was made.
Section 167AA mandates consideration of the matters referred to in subsection (3). Of course, these are matters which are required to be taken into account under the general principles which we have referred to above. The Tribunal commenced its consideration in LI by considering the public interest element. The Tribunal said; 120 The public interest (see s 167AA(3)(a)). As Ms Adamson argued, it is well recognised that the primary purpose of maintaining a regime for the receipt and investigation of complaints alleging unsatisfactory professional conduct on the part of legal practitioners and the instigation, where appropriate, of disciplinary proceedings against them, is protection of the public. Amongst the associated purposes are the provision of redress for the complainant and, as emphasised by Mahoney JA in Law Society of NSW v Foreman (1994) 34 NSWLR 408 at 444, the education of both the profession and the public regarding the standards of behaviour required of practitioners. 121 It follows that the public interest is materially served by granting leave for an Information to be filed out of time if, without such leave, the merits of a complaint, which has been investigated as required by the legislation, will never be determined. The important public interest in attaining a final resolution of the complaint is the same irrespective of whether the delay in instituting proceedings is attributable to failure by the prosecuting authority (for example, on account of dilatoriness) to perform its duties properly, or to matters beyond its control. 122 The importance of this public interest is underlined by the fact that where a Council or the Commissioner, following investigation of a complaint, is satisfied of a reasonable likelihood that there would be a disciplinary finding by the Tribunal, it is bound by s 155(2), not merely empowered, to refer the matter to the Tribunal unless it decides, in a case involving unsatisfactory professional conduct only, to act under s 155(3). Thereafter, as Spigelman CJ said in the Court of Appeal judgment relating to this matter (Council of the New South Wales Bar Association v LI [2005] NSWCA 415 at [36]), the Tribunal, not the prosecuting authority, becomes 'the relevant decision-making body'. There is a clear legislative intent that if the 'state of satisfaction' providing the basis for a resolution under s 155(2) has been reached, the normal outcome (save where s 155(3) applies) should be a Tribunal hearing.
As we understand the approach taken by the Tribunal as exemplified in the extract above, particular emphasis was placed on the public interest of prosecuting and determining misconduct allegations against legal practitioners. That emphasis seemed to override a consideration of any other factor. It proceeds on the basis that unless the disciplinary proceedings are enabled, that public interest will be forfeited.
The Tribunal then went on to consider arguments advanced on behalf of the legal practitioner that there had been such a delay in the processing of the proceedings that the alleged misconduct had, at that stage, occurred more than six years previously. In these circumstances it was impossible to conduct an expeditious hearing, and the legal practitioner had been prejudiced by that delay. The Tribunal rejected these submissions on the basis that there was no suggestion that relevant evidence would no longer be available. Furthermore, the Tribunal considered that the Bar Association had proffered reasonable explanations for the delay and accepted these explanations by way of "mitigation" of the delay. The Tribunal described the explanations in these terms; 172 One is that, as Mr Selth and Ms Macdougal testified (see [141 - 142]), neither of them was aware, at that time, of any case in which leave to file an information out of time had been refused by the Tribunal. By way of qualification to this, we note that in the course of the proceedings in de Robillard (see [147]) the Tribunal gave a warning sign on 14 August 2003 that a grant of leave could not be regarded as automatic. This was the day on which it directed the Bar Council to file evidence and submissions in support of its application for leave in that case. But at this stage Ms Macdougal had received indications from Mr Doyle that his affidavit would shortly be in her hands. The delay that she experienced in ultimately obtaining an affidavit from him was not attributable to any dilatoriness on her part or on the part of the Bar Association. 173 The other matter that operates in some measure to excuse the delay in filing the Information is that, as Ms Adamson submitted (see [143]), the Bar Association's attempts to formulate draft orders to which the Barrister might have consented would, if successful, have both benefited the Barrister and protected the public. (citations omitted)
We find it surprising that the Bar Association would have proceeded on the basis that the Tribunal had not in the past refused an application for leave to file an information out of time. As is obvious, each case must be considered on its own merits, and it would be inappropriate for parties who regularly appear before a Tribunal to conduct themselves on the basis of a perceived course of conduct which might have no or little application to the circumstances of particular proceedings. Nevertheless, the Tribunal in LI accepted this explanation in mitigation of the legal practitioner's submission concerning unreasonable delay (at [171]).
We should add for completeness that the Tribunal, in determining to grant leave to extend time for the laying of an information considered that even though the legal practitioner was elderly and had a limited practice, there was still a public interest in prosecuting the proceedings and in addition the overall delay was the result of continuing joint efforts by the Bar Association and the legal practitioner to reach agreement on the formulation of protective orders. We note in addition that nowhere in the reasons of the Tribunal is there any discussion of and acknowledgement of the fact that the legislature had created a time limit on the institution of proceedings, and the necessity to take this matter into account as a factor in determining how it would exercise its discretion to grant leave to extend the time for instituting proceedings.
We have discussed LI in some detail because, as we have said, the applicant placed great emphasis on the extracts from the decision of the Tribunal at [120] to [122] which we have set out above. We do not regard those extracts as representing the proper approach to a consideration of those matters which must be taken into account and balanced in undertaking the process of formulating the manner in which the discretion is to be exercised. The primacy of the public interest consideration contained within those extracted passages would create a situation where it would be rare indeed for the grant of leave to be declined. Its primacy is formulated without acknowledgement of and proper regard for the other matters which the Tribunal was required to take into account. We decline to apply the principles extracted in the manner contended for by the applicant. Whilst the public interest is an important matter, it must be taken into account in the context of all of the relevant matters.

Application of the general principles to these proceedings

The limitation time period

We commence by observing that the period fixed for the commencement of proceedings is six months from the date of the decision taken to initiate them. Prima facie, the legislature intended that this was a reasonable period in which to commence proceedings, given that in general terms a decision would not be taken to initiate them without a complaint having been considered, investigated and evaluated. One might anticipate that at that stage the Commissioner would be in possession of such evidence as would form the basis of an evaluation that misconduct had occurred. This is the starting point for embarking upon the process of evaluation of all relevant matters to determine whether or not the discretion to extend time should be exercised.

The period by which the limitation period has been exceeded

The applicant submitted, and the respondent did not submit otherwise, that the relevant final date for filing the Application for disciplinary findings was either 29 or 30 December 2017. The Application was filed on 14 March 2018, a period of approximately 10 weeks late. Whilst such a period is not, of itself, lengthy, it may be considered a significant period in the context of a total period of 26 weeks in which to commence proceedings. This is another matter to be taken into account in determining whether to extend time.
We add for completeness that these observations do not take into account the tentative conclusion to which we have come, previously discussed, that in all probability the applicant has no entitlement to purport to commence the proceedings or, indeed, bring this Application because of the doubt whether the Commissioner has made the relevant decision to delegate the matter to the applicant in any event.

The reason given for the failure to comply

The sole evidence before the Tribunal about this matter is that which is contained in the affidavit of Ms Foord, which we have earlier set out. We agree with the submission made on behalf of the respondent that the explanation is perfunctory. No explanation is proffered about the circumstances in which the file or files relating to the complaints had been "erroneously archived." Likewise, there is no information provided about any systems which the Law Society of NSW utilises for the processing of complaints. Presumably there are files created. What physical form do they take? Which personnel are involved in dealing with the file or files? Do several people work on the same file? How and where are the files kept? Does the Law Society of NSW keep a "diary resubmit system" of the kind which it would require of any solicitor consistent with good practice? If so, were the files concerning the complaints made against the respondent made part of this system? If not, what, if any, system was in place to ensure that a file was not "erroneously archived"? And importantly, what does anyone in authority, presumably Ms Foord, know about the circumstances in which the file or files were "erroneously archived"?
In the absence of evidence of the kind referred to above, it is difficult to give any weight at all to any suggestion that there was a reasonable excuse why a time limitation of 26 weeks was exceeded by 10 weeks. We conclude that no appropriate, reasonable excuse has been proffered for the failure to comply with the time limitation. This is a matter which weighs heavily against the grant of relief sought by the applicant.

The public interest

There is, of course, a public interest in the prosecution of complaints of misconduct made against legal practitioners. As has been observed on many occasions, the public must be appropriately protected against legal practitioners who have misconducted themselves in the course of their practice, or who are not fit to practice, and such legal practitioners and other legal practitioners must be deterred from misconducting themselves in that manner. Finally, it is important to enhance the respect and integrity of the legal profession in the eyes of the public.
However, the nature and extent of this public interest will vary depending upon the nature and extent of the misconduct or conduct indicating unfitness to practice law. In order to consider this in the context of these proceedings, we have regard to the allegations made against the respondent in the substantive Application for disciplinary findings. As previously indicated, the applicant wishes to proceed on one matter only, namely the failure to comply with the notice issued under section 660 of the Uniform Law. We have previously set out the factual circumstances which apply to the issue of that notice. We are cognisant that the respondent did not simply ignore it, but did engage in correspondence with the applicant concerning the contents of the notice and the timeframe for complying with it. There is evidence that he did provide some detailed response, although we make no comment on the adequacy and relevance of the matters contained in his letter. We also point to the time of year at which the notice was issued, at the commencement of a traditionally busy period for legal practitioners when they and their clients are under pressure to conclude matters before the commencement of the summer holiday season. A more detailed factual examination shows that the notice was issued on 15 November 2015. The decision of the Full Court of the Federal Court was published on 17 December 2015 and arguably had a great deal of relevance to the circumstances pertaining to the issue of the notice. The respondent's lengthy letter of 22 December 2015 sought an extension of time to 29 February 2016. The respondent replied by letter dated 6 January 2016 refusing any extension of any kind. Part of the reason for rejecting the respondent's request was that he had failed to provide a statutory declaration attesting to the difficulties which he maintained prevented him from complying with the notice within the time set.
No explanation has been provided by the applicant as to why it insisted on the respondent furnishing the information required in a detailed notice within such a short period of time and why the respondent would not take into account the time of the year, including the fact of the usual summer vacation.
The circumstances pertaining to the issue of the notice as we have described them do not indicate to us that there is any particular public interest in ensuring that this particular matter is prosecuted. The failure to comply with the strict time limit imposed in connection with the issue of the section 660 notice seems to us to be a matter confined to the particular personal circumstances relating to the respondent and does not have any wider public application. Furthermore, the section 660 notice appears to be based on large measure on the judgement of the primary Judge of the Federal Court of Australia, whose decision was overturned on appeal. It is possible, therefore, that some or all of the first instance comments which the respondent asserts were critical of him may have no or little substantive basis. We make these observations without having read the first instance decision, but noting that there are matters referred to in the Full Court decision which do not necessarily exculpate the respondent from all misconduct, albeit as a person who had not then been admitted as a legal practitioner.
In all the circumstances we conclude that there is no sufficient public interest in these proceedings which would cause us to conclude that an extension of time should be granted as contended for by the applicant.

The respondent's personal circumstances

No question arises of any particular prejudice to the respondent if extension of time was granted by reason of any increased delay in hearing the substantive application. However, it is clear that the circumstances pertaining to the involvement of the respondent in the affairs of Mr Donoghue involving as they did the criticism levelled at him in the first instance Federal Court proceedings and his subsequent dealings with the applicant, including the issue of the section 660 notice have had a profound personal effect on him. These are matters which, in the normal course of events, might not be overly significant in determining whether to extend time for the commencement of disciplinary proceedings, but assume some greater significance in the context of these proceedings. The failure to comply with the section 660 notice is the only matter which the applicant now wishes to prosecute. The circumstances pertaining to the issue of the notice and the respondent's interaction with the applicant as we have described them militate against a grant of leave to extend time in all the circumstances.

The authority of the applicant to process the complaint

We have previously discussed the doubt which prima facie exists concerning the authority of the applicant to prosecute the complaint against the respondent. This is also a factor which militates against the grant of leave.

Conclusion

For the reasons which we have earlier set out, we are not persuaded that in all the circumstances it is appropriate to grant leave to extend time for the institution of the substantive Application for disciplinary findings as sought by the applicant. Accordingly, we intend dismissing the application.

Costs

The parties asked that costs be reserved and we shall do so.

Orders

We make the following orders; 1. The application is dismissed 2. Costs are reserved with liberty to apply which should be exercised within one month of this date

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 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: 24 August 2018

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Judgment (17 paragraphs)

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