Council of the Law Society of New South Wales v Sideris [2025] NSWCATOD 26

1. The Respondent was admitted as a solicitor on 3 July 1987. On 23 February 2024, the Applicant cancelled his practising certificate (which was suspended at that time) under relevant provisions in the Uniform Law. The Applicant also decided that he was not entitled to apply for a practising certificate for 5 years from that date of cancellation.
2. The complaints the subject of these disciplinary proceedings relate to the alleged conduct of the Respondent following the termination of a services agreement between a company and the Respondent in his purported capacity as "Principal Head Lawyer of GSA Lawyers". Pursuant to that services agreement (entered into in March 2022), the Respondent commenced work with the company on a date in April 2022; the company terminated the agreement four days later. The Complainant in these proceedings was an employee of the company at relevant times.
3. On 3 May 2024, the Applicant commenced these disciplinary proceedings in NCAT seeking a finding that the Respondent engaged in professional misconduct within the meaning of s 297 of the Uniform Law with respect to the alleged conduct contained in its grounds for application. The Applicant seeks protective orders under s 302 of the Uniform Law.
4. The Applicant alleges, in Ground one of its disciplinary application, that the Respondent engaged in professional misconduct by the sending of certain correspondence (mainly texts and emails) to the Complainant or to the Complainant's employer company, of an offensive, abusive, harassing and/or threatening nature. The correspondence related to the company's termination of the services agreement.
5. The Applicant alleges, in Ground two of its disciplinary application, that the Respondent engaged in professional misconduct by failing to comply with an irrevocable undertaking he gave to the Local Court in June 2022 in relation to an application for an apprehended personal violence order brought by the Complainant against the Respondent in May 2022. The undertaking was to the effect that the Respondent would not contact the Complainant or threaten the Complainant in respect of the Respondent's engagement with the company.
6. As to the current status of these proceedings, the Respondent was formally served, on 20 August 2024, with the disciplinary application and the affidavit evidence on which the Applicant intends to rely. The Tribunal has not yet made timetabling directions for the Respondent's evidence, evidence of the Applicant in response, or for exchange of written submissions. At a directions hearing on 3 October 2024 the Applicant foreshadowed the making of a stay application, in light of potential Court of Appeal proceedings concerning roll removal following on from earlier (and separate) concluded NCAT proceedings.

1. On 22 October 2024, the Applicant applied for orders that these disciplinary proceedings be stayed and/or adjourned until the finalisation of "pending Court of Appeal roll removal proceedings" following NCAT's decisions in Council of the Law Society of NSW v Sideris [2024] NSWCATOD 3 and Council of the Law Society of NSW v Sideris (No 2) [2024] NSWCATOD 121) (the Stay Application). In those earlier disciplinary proceedings, NCAT found the Respondent guilty of professional misconduct and made a recommendation that the name of the Respondent be removed from the roll. In support of the Stay Application, the Applicant lodged written submissions dated 22 October 2024 and an affidavit of Valerie Ann Griswold affirmed 22 October 2024.
2. In accordance with timetabling directions, the Applicant filed and served further written submissions dated 12 December 2024. While the Respondent sent email correspondence to NCAT Registry (and to the Applicant) prior to the hearing of the Stay Application, there was no submission made which articulates his view on whether the Stay Application should be granted.
3. The Stay Application proceeded to hearing before NCAT on 5 February 2025. The Respondent did not appear. At the conclusion of the hearing the Applicant was given leave to file and serve further written submissions, and provide any further assistance it could provide to NCAT on legal principles relevant to the Stay Application, by 28 February 2025. The Applicant filed and served written submissions on 27 February 2025, designed to be read in conjunction with its earlier written submissions. The Respondent was provided with leave to file and serve written submissions in response, by 7 March 2025.
4. Subsequent to the hearing on 5 February 2025, in an email dated 12 February 2025 to the NCAT Registry (and others), the Respondent said that due to family issues overseas, he will be away from Australia for more than three years. On 3 March 2025 the Respondent provided (by email) what seem designed to be submissions in these proceedings. The submissions bear the case number of these Tribunal proceedings (2024/00164688), but also include reference to other proceedings which appear to be Supreme Court proceedings in which the Respondent was (or is) the plaintiff with the heading "George Sideris v Law Society of NSW". Insofar as the 3 March 2025 correspondence is intended to comprise submissions which are responsive to the NCAT's directions on the Stay Application, they do not seem relevant to, or respond to, the Stay Application. The Respondent also sent an email to NCAT's Registry on 7 March 2025 @11.31am (not copied to the Applicant). It is not clear whether the email is intended to contain submissions relevant to these proceedings. Again, to the extent that this email is intended to contain submissions which are responsive to NCAT's directions, the submissions do not seem relevant to, or respond to, the Stay Application.

1. NCAT's procedures in respect of disciplinary applications made to it (as designated tribunal) under s 300 of the Uniform Law concerning a respondent lawyer are governed by Part 11 of the Application Act, and by the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).
2. There is no express power in the Application Act or the NCAT Act to grant a temporary stay of legal disciplinary proceedings before NCAT. Nevertheless, the power to grant a temporary stay of proceedings may be found in the NCAT Act at s 38(1) (powers of the Tribunal to determine its own procedures for which the NCAT Act or the NCAT Rules do not otherwise provide), and s 51 (power to grant adjournments). There is also the power conferred on NCAT by s 143 (located in Pt 11) of the Application Act "to make interlocutory or interim orders as it thinks fit before making its final decision about a complaint against a respondent lawyer". In written submissions, the Applicant refers to NCAT's power in s 38(1) as a basis for NCAT to grant its application for a temporary stay or adjournment of these disciplinary proceedings.
3. There is nothing in the NCAT Act or procedural rules, in the Uniform Law or the Application Act that (relevantly) constrains NCAT's power to determine its own procedure in these disciplinary proceedings, nor otherwise constrains its exercise of discretion with respect to the Applicant's Stay Application. I am satisfied that NCAT has the power to make the orders sought by the Applicant, whether that power is located in s 38(1) and s 51 of the NCAT Act, or s 143 of the Application Act, or some combination of those statutory provisions.

Respective positions of the parties on the Stay Application

1. At the hearing of the Stay Application, the Applicant informed the Tribunal that Roll Removal Proceedings were commenced on 10 December 2024. As indicated in the Applicant's written submissions dated 27 February 2025, case management directions have now been made by the Court of Appeal. The Applicant anticipates that the Roll Removal Proceedings will receive a hearing date on 28 April 2025 and hopes that the matter will be set down for hearing in or around June or July 2025.
2. The Applicant correctly notes that an application for a stay of these disciplinary proceedings, pending the final determination of the Roll Removal Proceeding, is relatively novel. The Applicant's submissions may be summarised as follows:

(1) The requested stay/adjournment is consistent with the guiding principle in s 36 of the NCAT Act with regards to balancing the proportionality of costs in relation to importance and complexity of proceedings.

(2) Should the Applicant be successful in the Roll Removal Proceedings, the Applicant anticipates that it will seek the leave of the Tribunal (under s 147(2) of the Application Act) to withdraw these disciplinary proceedings, noting that:

(a) further protective orders would be unnecessary as the Respondent's name would be removed from the roll, and any application for readmission would require a formal application process and appropriate vetting;

(b) the alleged conduct in these disciplinary proceedings is similar to that for which NCAT has already made a determination that the Respondent is guilty of the professional misconduct and which is the subject of the Roll Removal Proceedings, and the continuation of these proceedings would serve as little deterrence to others;

(c) NCAT resources and legal costs would be minimised if a further hearing were not required.

1. With respect to the first point (proportionality and s 36 of the NCAT Act), the Applicant points to cases concerning statutory power conferred on courts pursuant to s 67 of the Civil Procedure Act 2005 (NSW). While not directly concerning matters arising in these proceedings, remarks made by McCallum J (as she then was) in Bleyer v Google Inc [2014] NSWSC 897; [2014] 88 NSWLR 670; NSWSC 897at [56] - [57] have some bearing on the present matter:

"... [s]ections 56 and 60 of the Civil Procedure Act are not read disjunctively. Further, there is ample authority in this jurisdiction for the proposition (for which no authority is needed in any event) that the just allocation of the finite resources of the court is a relevant consideration in the exercise of the court's authority, at least in civil matters.

Once it is recognised that proportionality between the resources required to determine a claim and the interest at stake is relevant to the exercise of the court's procedural powers, it is a small and logical step to conclude that there will be cases in which the disproportion is so vast as to warrant the stay or dismissal of the proceedings. The converse proposition, that the court must always determine every claim on the merits, is expressly rejected by r 13.4 of the UCPR."

1. The Applicants notes that her Honour's reasoning withstood scrutiny in Toben v Nationwide News Pty Ltd [2016] NSWCA 296; [2016] 93 NSWLR 639; NSWCA 296 at [132] - [143], and contends that the observations with respect to proportionality as it relates to s 60 of the Civil Procedure Act should apply similarly to s 36 of the NCAT Act in the Tribunal setting.
2. With respect to the Applicant's anticipated withdrawal application, should the Applicant be successful in the Roll Removal Proceedings, the Applicant has summarised its intended arguments on any leave application under s 147(2) of the Application Act. This is because the basis for any leave application is relevant to the Stay Application. Under s 147(2), NCAT may give leave for the purposes of s 147 (early termination of proceedings before Tribunal) "if it is satisfied that continuation of the proceedings is not warranted in the public interest". As to what constitutes "public interest", it has been found that consideration should be given to the need for the maintenance of high standards in the profession, the need for integrity in such practitioners because of the trust placed in them, and a deterrence to others from engaging in similar conduct: Council of the Law Society of New South Wales v DRM [2021] NSWCATOD 105 at [33] and Health Care Complaints Commission v Grygiel [2020] NSWCATOD 53 at [145]- [151].
3. On any application to withdraw these disciplinary proceedings, subsequent to the Court of Appeal making orders sought by the Applicant in the Roll Removal Proceedings, the Applicant anticipates that it would argue the following:

(a) The Respondent has already been found guilty of professional misconduct and had his name removed from the Roll on the basis of a finding that he engaged in conduct including that which is similar to the alleged conduct the subject of these proceedings. Thus, the continuation of these proceedings would serve as little additional deterrence to others.

(b) In circumstances where the Court of Appeal has removed the Respondent's name from the roll, any application for readmission would require a formal application process and appropriate vetting. Accordingly, the public interest would already be adequately protected.

(c) Continuation of these proceedings would do nothing to further achieve the objectives of disciplinary proceedings.

(d) In the circumstances, continuation of the proceedings would not be proportionate to stated outcomes.

(e) The resources of NCAT and of the Applicant could be redirected to more pressing matters.

1. In addition, the Applicant addresses the question of potential prejudice to the Respondent should the Stay Application be granted. In a scenario where the Court of Appeal hears the Roll Removal Proceedings prior to these disciplinary proceedings being heard and does not make an order to remove the Respondent's name from the roll, there may be some scope for prejudice against the Respondent. This is because, in the event that the Court of Appeal declines to make an order for removal of the Respondent's name from the roll, the Applicant will likely seek to continue to prosecute these disciplinary proceedings, in which case there may be a significant time delay in the prosecution of these proceedings. This may have a negative impact on the Respondent with regard to: (i) the prompt dealing of these proceedings from a perspective of certainty and to enable him to manage his affairs appropriately; and (ii) the delay may have an impact on the Respondent's ability to recall events the subject of these disciplinary proceedings and therefore his ability to defend the proceedings. The Respondent has provided no evidence in this regard.
2. The Applicant submits that concerns with respect to a stay in disciplinary proceedings generally relate to the impact that the proceedings may have upon a person's ability to work in their relevant profession as well as potentially reputational considerations, and that these considerations do not apply in the present case. The Applicant says that the Respondent is presently not entitled to practise law for reasons unrelated to these disciplinary proceedings.
3. The Applicant submits that an order to stay these disciplinary proceedings would avoid any potential prejudice to the Respondent occasioned by him defending two sets of proceedings concurrently, i.e. the Roll Removal Proceedings and these disciplinary proceedings.

1. The Respondent has made no meaningful submissions on any issue relevant to the Stay Application. As noted, the Stay Application was supported by affidavit evidence. The deponent was not required for cross examination at the hearing of the Stay Application. The Respondent did not attend the hearing. While the Respondent has sent correspondence to the Applicant and NCAT Registry about these disciplinary proceedings, it is not possible to ascertain from that correspondence whether the Respondent supports or opposes the Stay Application.

1. Both the NCAT Act and the Uniform Law impose obligations on NCAT in relation to the conduct of disciplinary proceedings. NCAT's functions with respect to the hearing and determination of disciplinary proceedings brought before it under the Uniform Law, Application Act and the NCAT Act are to be exercised in a manner that is likely to achieve the maintenance of a high standard of conduct within the legal profession which will continue its good reputation, and so protect the future of the profession. As has often been said by the courts and by this Tribunal, disciplinary proceedings are not punitive in nature but are protective of the community. They also operate to educate both the profession and the community.
2. In any application for a temporary stay or adjournment of proceedings, the interests of both parties and the orderly operation of NCAT should be considered. That includes the limited resources of NCAT (in both time and money), the "just, quick and cheap resolution" of matters (see s 36, NCAT Act), and an expectation that proceedings will be heard and finalised in a timely manner. It is uncontroversial that, ordinarily, disciplinary proceedings should be progressed without undue delay.
3. Should the Stay Application be granted, the continuation of these proceedings would be delayed while the Roll Removal Proceedings are progressed to finalisation in the Court of Appeal. While difficult to estimate the likely timeframe, it is possible that process may take 6-8 months from the date of this decision.
4. Requests for temporary stays in disciplinary proceedings in this Tribunal are most commonly made by the practitioner in question, and usually where proceedings in another jurisdiction involving that practitioner are being conducted concurrently. Disciplinary proceedings have been stayed in circumstances where there are separate criminal proceedings on foot and the Court has been satisfied that there was a real risk of prejudice to the practitioner in the criminal proceedings if he were required to respond to the complaints in NCAT first (Coleman v Health Care Complaints Commission of NSW [2020] NSWCA 337; Alexakis v Health Care Complaints Commission [2021] NSWCA 217 at [12]). I agree with the Applicant's contention that where there are concurrent criminal and civil proceedings, a stay of the civil proceeding will be ordered where "the interests of justice require such an order": Commissioner of Australian Federal Police v Zhao [2015] HCA 5; (2015) 255 CLR 46 at [36]. The Applicant submits that some parallels can be drawn with the present case. Here, there is no question that continuation of NCAT proceedings will prejudice any criminal proceedings and there is no basis on which to grant the Stay Application in that regard.
5. There is also no question that continuation of these disciplinary proceedings is likely to prejudice the Respondent in the Roll Removal Proceedings. This is not a case where there is any significant overlap that might mean that both sets of proceedings could not continue concurrently.
6. In terms of the proportionality submission put by the Applicant, s 36(4) of the NCAT Act provides that the practice and procedure of the Tribunal should be implemented "so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings". I accept the submission put by the Applicant that the allocation of the finite resources of NCAT (as well as resources of the parties) are relevant factors in the exercise of the NCAT's discretion in determining the Stay Application.
7. In my view, factors which favour the granting of the requested stay include:

(1) Should the Applicant be successful in the Roll Removal Proceedings, there would be a genuine question about whether there is continuing utility in progressing these disciplinary proceedings to completion. The Applicant says that it would likely seek NCAT's leave under s 147(2) of the Application Act to discontinue the proceedings on the ground that their continuation would not be warranted in the public interest. This would be in the circumstances where the Respondent would not be admitted to the roll, any readmission application would involve a formal application process with appropriate vetting, and further protective orders may be unnecessary.

(2) Should the Applicant be successful in the Roll Removal Proceedings, NCAT resources may be unnecessarily expended in hearing and determining the substantive proceedings (and bearing in mind that the Tribunal would need to be constituted with three Tribunal Members in accordance with cl 18(1)(b) of Sch 5 to the NCAT Act).

(3) Should the Applicant be successful in the Roll Removal Proceedings, resources of the parties (in terms of time and cost) may be unnecessarily expended by continuation of these proceedings. Legal costs would undoubtedly be incurred by the Applicant. Regardless of whether the Respondent elects to obtain legal representation in any defence of these proceedings (were the proceedings to continue), if he were found guilty of professional misconduct or unsatisfactory professional conduct he would face an adverse costs order (absent exceptional circumstances) (cl 23 of Sch 5 to the NCAT Act).

(4) There is no apparent urgency in NCAT progressing these disciplinary proceedings (and noting that the Respondent has not contended otherwise). He does not hold a current practising certificate; and at the present time he is not entitled to apply for a practising certificate until 23 February 2029. The length of the delay in the continuation of these proceedings would likely be in the vicinity of 6-8 months.

(5) Should the stay be granted, no material prejudice or detriment to the Respondent's ability to defend these disciplinary proceedings (should the need arise) is demonstrated.

1. In terms of potential detriment to the Respondent, the Applicant rightly points to some possible negative impacts on the Respondent should there be a delay in the continuation of these proceedings. It may be more difficult for the Respondent (or witnesses) to recall events the subject of these disciplinary proceedings and therefore the Respondent's ability to defend the proceedings. While the Respondent has provided no evidence in this regard, I accept that this may be the case. That said, the evidence on which the Applicant intends to rely in prosecuting the complaints the subject of these proceedings (and which evidence has already been filed) is documentary evidence. That evidence includes (i) a series of texts and emails allegedly sent by the Respondent to the Complainant and said to contain offensive, harassing or threatening material; and (ii) written material which is relied on to show an undertaking the Respondent gave to the Local Court, together with texts or emails sent by the Respondent which are said to evidence his failure to comply with such undertaking. The ability of the Respondent (or witnesses) to recall events is of lesser importance in a case where proof of the underlying facts is likely to be based on documentary material.

1. I have decided to grant the stay requested by the Applicant, particularly given the lack of demonstrated prejudice to the Respondent should I take that course. Accordingly, the application for a stay of Tribunal proceedings no. 2024/00164688 is granted until finalisation of the Roll Removal Proceedings commenced by the Applicant in the Court of Appeal (proceedings no 2024/00460528).

(1) These Tribunal proceedings 2024/0016488 are stayed until finalisation of Court of Appeal proceedings 2024/00460528.

(2) The Council of the Law Society of New South Wales is to provide the Tribunal with written notification as soon as practicable after the Court of Appeal proceedings 2024/00460528 have concluded.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.

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.