Council of the Law Society of New South Wales v Sullivan

The legislation

1. As the conduct the subject of the application occurred before 1 July 2015, the relevant legislation is the LPA, not the Legal Profession Uniform Law 2015 (cl 26 of Sch 4 to the Legal Profession Uniform Law Application Legislation Amendment Act 2015).
2. Section 660 of the LPA provides: 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.
3. Section 676 provides: 676 Obligation of Australian lawyers (1) The duties imposed on an Australian lawyer by this section are additional to obligations imposed under other provisions of this Chapter, whether or not the lawyer is the subject of the investigation, examination or audit concerned. (2) An Australian lawyer must not mislead an investigator or a Council in the exercise of: (a) any power or function under this Chapter, or (b) any power or function under a provision of a corresponding law that corresponds to this Chapter. (3) An Australian lawyer who is subject to: (a) a requirement under section 660 (Requirements in relation to complaint investigations), or (b) a requirement under provisions of a corresponding law that correspond to that section, must not, without reasonable excuse, fail to comply with the requirement. (4) An Australian lawyer who contravenes subsection (2) or (3) is guilty of professional misconduct.
4. Section 511 provides: 511 Summary dismissal of complaints (1) The Commissioner, or the Council by which a complaint is made or to which a complaint is referred for investigation, may dismiss a complaint if: (a) further information is not given, or the complaint or further information is not verified, as required by the Commissioner or Council under section 507 (Further information and verification), or (b) the complaint is vexatious, misconceived, frivolous or lacking in substance, or (c) the complaint was made more than 3 years after the conduct complained of is alleged to have occurred, unless a determination is made under section 506 (Complaints made over 3 years after conduct concerned) in relation to the complaint, or (d) the conduct complained about has been the subject of a previous complaint that has been dismissed, or (e) the conduct complained about is the subject of another complaint, or (f) it is not in the public interest to deal with the complaint having regard to the fact that the name of the Australian legal practitioner to whom the complaint relates has already been removed from any Australian roll in which he or she was enrolled, or (g) the Commissioner or Council is satisfied that it is otherwise in the public interest to dismiss the complaint, or (h) the complaint is not one that the Commissioner or Council has power to deal with. (2) A complaint may be dismissed under this section without any investigation or without completing an investigation.
5. Section 527 provides: 527 Investigation of complaints by Council (1) A Council must, subject to this section, conduct an investigation into each complaint referred to it by the Commissioner or made by the Council. (2) This section does not apply to: (a) a complaint taken over by the Commissioner or referred to an independent investigator under this Part, or (b) a complaint that is not required to be investigated under this Part.

The issues before the Tribunal

1. As noted above, the respondent did not dispute that he had failed to comply with the July notice. However, he claimed that the July notice was invalid. He did so in reliance on the following grounds: 1. the applicant had failed to comply with s 508, in that its letter of 23 March 2015 did not: 1. inform him of his "right" to make submissions, or 2. state a period in which his submissions were required; 1. the applicant had failed to consider the complaint under s 511 and determine whether or not to dismiss it on the grounds that the conduct in the complaint had been the subject of a previous complaint. It was obliged to do this before investigating; 2. the July notice was issued in reliance on a complaint which was the same as the previous complaint which had been dismissed; 3. the July notice sought information which was irrelevant to the complaint.
2. The solicitor relied on two additional grounds. 1. (5) The Professional Conduct Committee did not consider his submissions dated 15 September 2016 and therefore he had been denied procedural fairness. 2. (6) The applicant had acted with a lack of impartiality.
3. The applicant submitted that the respondent's submissions misconstrued the LPA and in any event, it had complied with the LPA in all necessary respects. It submitted that the evidence showed that the respondent's submissions had been considered and there was no bias or partiality shown.
4. The parties agreed that in light of the above issues, the question of whether or not the solicitor had a "reasonable excuse" within meaning of s 676(3)(b) did not arise. No excuse was put forward by the respondent at the hearing.
5. In determining this matter, we initially queried whether we should rule upon the validity of the Notice. The Tribunal is given jurisdiction by ss 28 and 29 of the Civil and Administrative Tribunal Act 2013 and by the LPA. This matter falls under the Tribunal's general jurisdiction. 29 General jurisdiction (1) The Tribunal has general jurisdiction over a matter if: (a) legislation (other than this Act or the procedural rules) enables the Tribunal to make decisions or exercise other functions, whether on application or of its own motion, of a kind specified by the legislation in respect of that matter, and (b) the matter does not otherwise fall within the administrative review jurisdiction, appeal jurisdiction or enforcement jurisdiction of the Tribunal. Note. The general jurisdiction of the Tribunal includes (but is not limited to) functions conferred on the Tribunal by enabling legislation to review or otherwise re-examine decisions of persons or bodies other than in connection with the exercise of the Tribunal's administrative review jurisdiction. (2) The Tribunal also has the following jurisdiction in proceedings for the exercise of its general jurisdiction: (a) the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings, (b) the jurisdiction to exercise such other functions as are conferred or imposed on the Tribunal by or under this Act or enabling legislation in connection with the conduct or resolution of such proceedings. (3) A general decision of the Tribunal is a decision of the Tribunal determining a matter over which it has general jurisdiction. (4) A general application is an application made to the Tribunal for a general decision. (5) Nothing in this section permits general jurisdiction to be conferred on the Tribunal by a statutory rule unless the conferral of jurisdiction by such means is expressly authorised by another Act.
6. Section 551 of the LPA provides: 551 Commencement of proceedings (1) Proceedings may be commenced in the Tribunal with respect to the whole or part of a complaint against an Australian legal practitioner by an application (a disciplinary application) made by the Commissioner or a Council in accordance with this Chapter and containing one or more allegations of unsatisfactory professional conduct or professional misconduct. (2) An allegation in the disciplinary application must relate to the subject-matter of the complaint but need not be an allegation made in the original complaint or have been the subject of separate or further investigation under this Chapter.
7. However Mr Madigan for the applicant referred the Tribunal to the decision of the former Administrative Decisions Tribunal in NSW Bar Association v Howen [2003] NSWADT 117. In that case the issue was an allegation that the barrister had failed to comply with a notice issued pursuant to s 152 of the Legal Profession Act 1987, the predecessor to s 660 of the LPA. The barrister claimed that the notice was not valid on various grounds. The Tribunal considered the grounds, the legislation and the evidence before coming to a decision that the grounds raised did not render the notice invalid and making a finding of professional misconduct. Accordingly, in this case and at the request of the parties, we determined to deal with the issue of validity in making a decision on the allegation of professional misconduct. Since the hearing we have become aware of other cases in which this Tribunal has determined a challenge to the validity of such a notice - for example Law Society of New South Wales v Konstantinidis [1999] NSWADT 109 and Legal Services Commissioner v Tsalidis [2012] NSWADT 160.

Ground 1 - The Society's letter of 23 March 2015 did not comply with s 508 of the LPA in two respects

1. This Ground, and Ground 2, appear to be based on an interpretation that the power in s 660 Is not enlivened unless the Society first complies with certain provisions of the LPA which deal with the receipt, notification and consideration of complaints. The respondent submitted that the applicant cannot issue a section 660 notice if it has not properly grounded a right to carry out a complaint investigation by compliance with ss 508 and 511.
2. Section 660 enables an investigator to issue a Notice "for the purpose of carrying out a complaint investigation in relation to an Australian lawyer".
3. Section 508(1) provides: 508 Practitioner to be notified of complaint (1) The Commissioner, or the Council by which a complaint is made or to which a complaint is referred for investigation, is to ensure that as soon as practicable after the complaint is made the Australian legal practitioner about whom the complaint is made is given: (a) a copy of the complaint, and (b) a notice in writing informing the practitioner of the practitioner's right to make submissions to the Commissioner or Council and specifying the period within which submissions must be made, unless the Commissioner or Council advises the practitioner that the Commissioner or Council has dismissed or intends to dismiss the complaint.
4. As noted above, in its letter of 23 March from Ms Lai, the applicant provided a copy of the complaint, noted that it appeared to raise the conduct issue of failing to pay child support and requested the respondent to provide answers to questions by 14 April 2015. It then went on: "Together with any written submissions in response to the complaint, you should include copies of any documents that may support your account. "
5. The respondent said he was required to answer questions and invited to make submissions rather than informed of a right to make submissions, and he was not informed of the date by which his submissions were required.
6. However, the last sentence quoted above shows that the respondent was in effect told that he should provide submissions by 14 April 2015. We do not think that anything turns upon the failure to mention a "right" to make submissions. In any event, if, as the respondent alleged, he never received the letter of 23 March 2015, he was not disadvantaged in any way. There was no relevant lack of compliance with s 508 in our view.

Ground 2 - The Society was bound to consider whether it should dismiss the complaint under s 511 of the LPA

1. The respondent submits that an earlier complaint by the same complainant of "failing to pay child support" had been dealt with by the applicant in 2012 and 2013 and was dismissed. He submits that the complaint notified to him on 23 March was the same as that complaint, therefore not a new complaint, and the applicant did not consider whether the matter now complained about had been the subject of a previous complaint that has been dismissed (s 511(1)(d)).
2. He submitted that "proper exercise of the Applicant's discretion required" the applicant to consider whether s 511 applied to the complaint and either dismiss it or decide to investigate it. A failure to do so denied the respondent procedural fairness as he did not know what submissions he should make to the applicant.
3. Section 511 provides: 511 Summary dismissal of complaints (1) The Commissioner, or the Council by which a complaint is made or to which a complaint is referred for investigation, may dismiss a complaint if: (a) further information is not given, or the complaint or further information is not verified, as required by the Commissioner or Council under section 507 (Further information and verification), or (b) the complaint is vexatious, misconceived, frivolous or lacking in substance, or (c) the complaint was made more than 3 years after the conduct complained of is alleged to have occurred, unless a determination is made under section 506 (Complaints made over 3 years after conduct concerned) in relation to the complaint, or (d) the conduct complained about has been the subject of a previous complaint that has been dismissed, or (e) the conduct complained about is the subject of another complaint, or (f) it is not in the public interest to deal with the complaint having regard to the fact that the name of the Australian legal practitioner to whom the complaint relates has already been removed from any Australian roll in which he or she was enrolled, or (g) the Commissioner or Council is satisfied that it is otherwise in the public interest to dismiss the complaint, or (h) the complaint is not one that the Commissioner or Council has power to deal with. (2) A complaint may be dismissed under this section without any investigation or without completing an investigation.
4. The applicant submitted that s 511 allows the Council, in the exercise of its discretion, to dismiss a complaint on any of the specified grounds, and that it was not obliged to consider the issue at any particular stage.
5. In our view, s 511 does not impose an obligation upon the Council to consider whether there are any grounds on which to dismiss a complaint before commencing an investigation or at any particular stage during an investigation. So much is indicated by sub-s (2) which provides that a complaint may be dismissed under this section "without any investigation or without completing an investigation". Clearly the Legislature wished the Council to have the choice of exercising this power either before, during or after an investigation had commenced. This ground is not upheld.

Ground 3 - The Notice was issued in reliance on a complaint which was the same as a previous complaint which had been dismissed

1. The respondent submitted that a s 660 notice could not be issued for the purpose of investigating this complaint, as the same complaint had been dismissed in 2013. The applicant had not established that the complaint was a new complaint.
2. The applicant submitted that the complaint clearly concerned matters which were new and not the subject of the dismissed complaint. It pointed to the documents which were attached to the letter from Ms Lai of 23 March 2015. These included: 1. A certificate under s 116(2) of the Child Support (Registration and Collection) Act 1988 dated as at 11 March 2015 certifying a sum of $78844.55 was due and payable to the Commonwealth in respect of registered maintenance liabilities; 2. A Child Support Assessment issued on 8 December 2014 for the period 14 January 2015 to 31 December 2015 which indicated the annual amount of child support payable by the respondent; 3. A Child Support Assessment payment history, covering the period 31 May 2010 to 15 March 2015; and 4. A letter from the Minister for Human Services to the Hon Bronwyn Bishop MP stating that a Departure Prohibition Order was issued against the respondent.
3. The complaint itself was contained in an email dated 11 March 2015 and stated the amount of child support that was owing as at that date.
4. In addition, the 23 March letter noted that at the time of the previous complaint, the respondent had advised the Society that he would advise the Society when his outstanding personal taxation income returns for the years ending 30 June 2009 to 30 June 2012 had been lodged, and would make an application to the Child Support Agency for a reassessment of the child support payable.
5. The letter sought information as to whether those returns had in fact been lodged and whether he had made the application for reassessment.
6. The documents provided prima facie evidence of a debt to the Commonwealth. In the submission of the applicant, such conduct was capable of amounting to professional misconduct (Council of the New South Wales Bar Association v Archer (No 12) [2009] NSWADT 283).
7. We are not persuaded that the 2015 complaint is the same as the 2012 complaint. While it might relate to the same kind of conduct, it is not the same actual conduct as was previously complained of, as it covers a different period, relates to a different sum of money, and takes into account acts or omissions since the dismissal of the earlier complaint.

Ground 4 - The Notice sought information which was irrelevant to the complaint.

1. The respondent submitted that the s 660 Notice sought some information and documents which were not relevant to the complaint. This included information and documents relating to taxation.
2. We were referred to the decision of Howen, cited above. In that case a s 152 notice (the predecessor to the s 660 notice under the Legal Profession Act 1987) was challenged on the basis that it contained requests which could not have assisted the purpose of investigating the complaint. The Tribunal said: 35 We do not think that a too analytical approach to the construction of a section 152 notice is appropriate. In a position of non-cooperation, where there is no joinder of defined issues, the Commissioner, or a Council, may have great difficulty in ascertaining the real focus of a dispute from the complaint alone. In such circumstances, some exploration of matters that may later be seen to have been immaterial is permissible. Such exploration may well assist to investigate the complaint. 36 We find therefore that requests 3 and 4 cannot now be said to have been incapable of furthering the Commissioner's purpose of investigation. We conclude that their inclusion does not render the Notice invalid. 37 Although we hold that view confidently, it is appropriate to assume for the purposes of disposing of the next submission that were are wrong and that requests 3 and 4 were incapable of furthering the purpose of investigating a complaint. 38 A finding that the inclusion of impermissible requests in a section 152 notice renders the whole notice invalid leads to unacceptable consequences. 39 In cases such as this, that the person to be affected by the notice is a legal practitioner who should either understand the legislation under which the notice is issued or be able to become familiar with it, and to identify a request that could have no possible bearing on the Commissioner's (or a Council's) purpose of investigation. Such a person is not a lay person who, because a notice comes from high authority, may be mislead into thinking that it must be valid. He is a person whose training should have rendered him/her vigilant to see that persons seeking to exercise authority over others does so legitimately. Therefore, it cannot be validly argued that there is some lack of procedural fairness in requiring a legal practitioner to respond to the valid requests in a notice and to ignore any invalid ones.
3. The requests for information concerning the respondent's taxation returns were made relevant to the investigation of the complaint, by his previous advice to the Council that he would lodge outstanding returns and seek a reassessment of his child support obligations. Even if he were correct in his view, the respondent has not complied with any part of the Notice. In our view this ground cannot succeed.

Ground 5 - the Professional Conduct Committee did not consider his submissions dated 15 September 2016 and therefore he had been denied procedural fairness

1. The respondent submitted that the Committee did not have access to the submissions which he had provided dated 15 September 2015. He cross-examined the Solicitor for the Applicant, Ms Anne-Marie Foord, on this point.
2. Ms Foord's evidence was that the Committee was provided with his submissions, and this was a customary part of the Applicant's procedure. She said that the only documentary evidence to support this would be the Committee's minutes. These were not in evidence. The respondent said he had requested the Society's file on the matter be produced and tendered correspondence in relation to this. The applicant had declined to produce its file, in reliance on s 601 and 602 of the LPA. However the evidence before the Tribunal was sufficient to deal with the issue.
3. The evidence shows that Ms Foord had the respondent's submissions in her possession on 16 September 2015, when she wrote to the respondent that "I have been provided today with your letter dated 15 September 2015 addressed to the "Committee Members"."
4. She went on to say: "I propose to have the Professional Conduct Committee consider the complaint when it meets on 15 October 2015. Failing receipt of any further submissions from you by the above date, the complaint will be dealt with on the basis of the present materials."
5. On 20 November 2015 Ms Lai wrote to the respondent: "I write to advise you that the Professional Conduct Committee of the Society considered this matter at its meeting on 19 November 2015. The Committee resolved as follows: RESOLVED that Terrance Anthony Sullivan ("respondent lawyer") be informed of:- 1. The issues of professional misconduct which, in the opinion of the Committee, are involved in the complaint and in respect of which the Committee invites submissions by 11 December 2015; and 2. The Committee's opinion that, subject to any submissions, it should resolve to initiate and prosecute proceedings against the respondent lawyer in the Civil and Administrative Decisions Tribunal, Occupational Division, as it is the Committee's opinion that the alleged conduct may amount to professional misconduct pursuant to section 300(1) of the Legal Profession Uniform Law (NSW) …"
6. On 4 March 2015 Ms Lai wrote to the respondent to advise him that the Committee had resolved that proceedings be initiated. In its reasons the Committee stated: "The reasons as set out by the solicitor that he had a "reasonable excuse" pursuant to section 676 of the Legal Profession Act 2004 are, in the opinion of the Committee, unsatisfactory." In his submissions dated 15 September, the respondent stated at page 4: "I submit that I have provided a 'reasonable excuse' as contemplated by section 676 of the Legal Profession Act 2004 for non-compliance with the section 660 Notice(s) issued to me."
7. The respondent has not established that the Committee did not consider his submissions and the evidence supports a finding that they did consider them. We are satisfied that the Committee's words "subject to any submissions" referred to the submissions they were inviting the respondent to provide by 11 December and were not an indication that they did not have any submissions from him before them. He had a further opportunity to make submissions which was communicated to him by Ms Lai on 20 November. In addition, the respondent has had an opportunity to ventilate his concerns before this Tribunal.
8. We find there was no failure to consider the submissions and no denial of procedural fairness. Ground 5 is not made out.

Ground 6 - The Society had acted with a lack of impartiality.

1. The respondent alleged that the Society had demonstrated bias against him by sending a letter concerning the complaint to him at his office by facsimile, thus breaching privacy and confidentiality.
2. Ms Foord was cross examined on this point. She said that correspondence with solicitors on complaint matters should be dealt with sensitively, but there may have been a reason why the letter was sent by facsimile in this case.
3. There being no evidence that actual bias was the reason why the letter was sent by facsimile, actual bias cannot be established (R v Australian Stevedoring Industry Board; ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 116).
4. A reasonable apprehension of bias arises where a fair minded and informed observer might conclude that the decision maker might not be impartial or approach the issues with an open mind (Ebner v Official Trustee (2000) 205 CLR 337).
5. We note that the letter in question was sent by Ms Lai. Ms Lai is not the decision maker; that is the role of the Committee, acting as delegate of the Council. The mere fact that Ms Lai sent a letter which could have been seen by others in the respondent's office would not, in our view, cause a fair minded and informed observer to draw the conclusion that the Committee or the Council would not act impartially.
6. Ground 6 is not made out.

Finding

1. The Council seeks a disciplinary finding that the respondent is guilty of professional misconduct in that he failed to comply with a notice pursuant to s 660 of the LPA.
2. It was not disputed by the respondent that he had failed to comply with the notice. As at the date of the hearing, he had still not complied.
3. Accordingly, we find the conduct proven. As s 676(3) provides, an Australian lawyer who fails to comply with a requirement under s 660 without reasonable excuse, is guilty of professional misconduct.

The applicant's submissions on penalty

1. The Council submitted, following NSW Bar Association v Howen [2003] NSWADT 117 and Council of the Law Society of NSW v Treanor [2009] NSWADT 115, that the purpose of s 660 is to protect the public and the legal profession by facilitating investigations.
2. It was appropriate for the Tribunal to make an order suspending the respondent's practising certificate until such time as he complies with the July Notice, given the period of non-compliance is over 12 months. Reference was made to the decision of Smart J of the Supreme Court in Council of the Law Society of NSW v Verghelyi (unreported, 6 September 1989) where it was held that replies in respect of complaints warrant a high priority. The Council submitted that the respondent had shown unwillingness to cooperate satisfactorily with the investigation and this was an important matter to be considered.
3. The respondent did not file any evidence in the proceedings. The applicant submitted that as an officer of the court, the respondent's decision not to give an account on oath should attract criticism. It cited the comments of Tobias J in NSW Bar Association v Meakes [2006] NSWCA340 at [70] : "… there is an expectation that legal practitioners will mount the witness box to provide some explanation as to their conduct, rather than simply relying upon evidence from the Bar table."

The respondent's submissions on penalty

1. The respondent submitted that he treated the Notice seriously and did not simply fail to comply. Rather he engaged in frequent requests for clarification. He submitted that it was appropriate for him to raise issues which he saw as relevant to his obligations, particularly in an unusual case such as this.
2. He submitted that he should not be penalised for failing to give evidence. There was no relevant evidence he could give, as he was not pleading a reasonable excuse. He had offered to make himself available for cross examination.
3. He stated, and this was not disputed by the applicant, that he had been in practice since 1987 and this was the first time he had appeared before the Tribunal in a disciplinary matter. Receiving a reprimand would damage his reputation and suspension was a very serious penalty for a sole practitioner with employed staff. He submitted that suspension would have an adverse effect on his employees. However, it is within his power to minimise this effect by attending to compliance in a prompt manner.

Decision

1. By virtue of s 676(3) of the LPA, the respondent is guilty of professional misconduct. We have found the respondent's arguments about the validity of the Notice to be without merit. As a result of the respondent's conduct, the investigation has been delayed for more than 18 months. The respondent did not show any contrition and has not complied with any part of the Notice. While the respondent has not been the subject of a disciplinary finding before, his conduct and the tone of his correspondence with the applicant does not give cause for confidence that he would comply fully with the Notice without some motivation to do so.
2. In other cases where the notice had not been answered by the time of the hearing, an order suspending the practitioner's practising certificate pending compliance, sometimes with a fine and/or a reprimand, has been held to be the appropriate order (see for example Council of the Law Society of NSW v Beazley [2014] NSWCATOD 147 at [21]; Council of the Law Society of NSW v Tsalidis (No 2) [2010] NSWADT 297; Council of the Law Society of NSW v Treanor [2009] NSWADT 115).
3. We consider that an order suspending the respondent's practising certificate until such time as he has complied with the July Notice, together with a reprimand, is appropriate.
4. In addition, an order that the respondent pay the Council's costs is mandated by section 60 of the Civil and Administrative Tribunal Act 2013 and Schedule 5, cl 23 (1) of that Act, there being no evidence of "exceptional circumstances" under that provision. 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

Amendments 02 February 2017 - Amendment to legislation cited in paragraph 77 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: 02 February 2017