Council of the Law Society of NSW v Griffin

Reasons for Decision

1. By its application in this matter filed 4 March 2015 the Council of the Law Society of NSW (the Council) seeks a finding of professional misconduct against Michael Anthony Griffin (the Solicitor) and consequential orders.
2. The underlying facts are not in dispute. The solicitor acted for the applicant Richard John Shears in proceedings in the Federal Court against the Deputy Commissioner of Taxation. The proceedings were case managed and heard by Foster J. His Honour published a reserved decision on 30 July 2014 dismissing the application.
3. On 31 July 2014 the Solicitor sent an email to Foster J's associate: From: Michael Griffin Sent: Thursday, 31 July 2014 12:11 PM To: Associate FosterJ Cc; Michael Griffin Subject: Variations to Judgements & Orders Shears v DCT Please bring the attached correspondence to attention of Justice Foster Michael Griffin' Solicitor The People's Solicitors Attached to the email was a letter on the letterhead of "The People's Solicitors Pty Ltd". Michael Griffin BA(Hons-First Class) LLB(withHons) Solicitor CI- The People's Solicitors 19 Lethbridge St Penrith NSW 2750 M:0405294409 E: 31 July 2014 Re: Richard John Shears v Deputy Commissioner of Taxation $SD 454 of 2014 Justice Foster, As solicitor for the Applicant in this matter, I have serious concerns about your conduct and decision in this matter. These are: 1. The somewhat immature and inappropriate comments you made to me at the first directions hearing when you responded to an innocent reference to yourself by me as 'registrar' suggest that your displeasure in being referred to in that way may have impacted upon your ability to exercise the degree of objectivity required of an officer in your position in determining this matter. 2. The interest in identifying me as solicitor for the Applicant on the judgement contrary to usual convention indicates you may have acted with some vindictiveness in regard to my client and myself in response to my innocent reference to you as registrar at the first directions hearing. 3. Your own and your Associate's obvious familiarity with Counsel for the Respondent at the hearing. 4. The fact that Counsel for the Respondent had a copy of the decision when he arrived at court. 5. The unusual, impermissible and ambiguous award of costs' incidental' to the application to the Respondent - whatever that may entail - and, 6. The unusual attendance by Counsel at court to accept the judgement on behalf of the Respondent together with the solicitor of the Respondent which may be considered an 'incidental' cost, which, when 5 & 6 above are taken together, 7. Give rise to the inference or perception that the Respondent was aware of your decision before it was handed down and, hence, that you and/or your Associate had some disallowable communications with the Respondent and his representatives relating to this matter before the judgement was handed down that may have impacted upon your ability to act objectively in deciding this matter. 8. Your identification of the writer by name and not the solicitor for the Respondent combined with your interest in making unwarranted and irrelevant statements in your reasons such as those at para 19,21 and 24. 9. Your failure to sign the reasons indicating that the judgement may have been made by your Associate and not by you at all. 10. Your imposition of requirements to be satisfied upon the Applicant that are more strict than are required by like applications and by r 31.2 Federal Court Regulations. 11. Your refusal to allow the Applicant the opportunity to amend what is only a daft (sic) application, as is only required by the rules, and as required of such applications and contrary to the authority relied upon by the Applicant. 12. Your unreasonable rejection of the Applicant's reasons for delay in bringing his application and which is, I contend, against established principles. 13. The numerous errors of law in the reasons including, inter alia, determining that a decision with respect to a party being in a partnership was an 'assessment decision' when it is clearly one relating to the determination of the underlying state of facts from which an assessment can follow as it is obvious that a decision on whether a person is in partnership or not will need to be made before an assessment is even undertaken as only then can the person's income be identify (sic) and distinguished from that of his partners - indeed up until that time it is not even possible to ascertain what a person's income for tax purposes would be. And further, proceeding to hear the Applicant's ground regarding his hardship application at an extension of time application before he was required to produce evidence of that application and when the only evidence available to you from which a decision could be made regarding that issue was that a hardship application had been made; deciding issues that were not appropriate for an extension of time application including whether the Applicant had adduced evidence to indicate that his hardship application had been made which is appropriate for a substantial hearing of the matter NOT for an extension of time application. Moreover, in determining; this issue you completely ignored the relevant provisions regarding 'failures' to make decisions and with respect to reviewable decisions that do not require a time limit. On that basis, notwithstanding that I consider that our client has grounds to appeal your decision -and that I consider that your conduct in this matter is questionable and further that the Australian public and democratic values require and deserve a higher standard of decision making in regard to reviewing decisions of political officers and their agents than that evinced by your reasons, I consider that many of the points raised above indicate that your decision was likely made without good faith and with bias. On that basis, in reliance upon r 39.041 consider that I should extend you the courtesy of varying your judgement before it is entered and before I submit it to appeal. Hence, I request that you consider varying your judgement, the orders and reasons before they are entered and before an application for appeal is made by: 1. Removing my name from the decision as solicitor for the Respondent at the front page; 2. Removing the irrelevant paragraphs and references from your decision at para 19,21,24; 3. Varying the cost order to remove the unlawful part of the order that reads 'and incidental to'; 4. Removing the words 'and other errors of expression' at par 21 as no such thing exists given that whether something is an 'error of expression' is a subjective opinion and given that you are not an expert in the English language and not qualified to make such a comment or give such an opinion while I have an Honours degree with distinction including honours cognates in English. I consider that this comment is clearly vindictive and naive and contrary to current theory regarding what non-erroneous expression is or what 'correct' expression should be. Neither you nor your Associate are qualified to make this comment and it displays infant school and pedantic understanding of what language actually is. I also consider that this comment evinces a purile and petty intention to belittle a person which is an attitude that has no place in the administration of justice. If I do not have a response from you with regard to this request within seven days of the date above the judgement will be filed as it stands in the appeal process notwithstanding any embarrassment it may cause to you and your Associate and I will need to seek other legitimate methods of addressing what I consider to be your vindictive, unreasonable and unnecessary expressions of opinion. Faithfully, Michael Griffin Solicitor