Council of the New South Wales Bar Association v DBW

Solicitors: Hicksons Lawyers (Applicant) File Number(s): 1520250 and 1520153 Publication restriction: Under s 64 of the Civil and Administrative Tribunal Act 2013 an order is made prohibiting publication in full of these reasons on NSW Caselaw. However, this prohibition does not extend to the redacted version of the reasons.

Introduction

1. The applications before the Tribunal are applications for leave under s 568 of the Legal Profession Act 2004 (NSW) (repealed) (the LPA) to withdraw two separate disciplinary applications made by the Council of the New South Wales Bar Association (the Bar Council) against a barrister, DBW (the practitioner). The applications relate to two disciplinary applications filed in the Tribunal in August and December 2015. Each disciplinary application alleges the practitioner is guilty of unsatisfactory professional conduct and/or professional misconduct.
2. Before us, in circumstances we will shortly more fully explain, there was no appearance by or on behalf of the practitioner.
3. The practitioner was born in 1953. As a result of an order made by the Family Court, Palmerston North under s 10 of the Protection of Personal and Property Rights Act 1988 (New Zealand) in 2015 the practitioner currently resides in a nursing home in New Zealand. He suffers from [a medical condition]. For a period of some months in 2015 he was subject to a Compulsory Treatment Order under the Mental Health (Compulsory Assessment and Treatment) Act 1992 (New Zealand). His financial affairs are entrusted to the New Zealand Public Trust office under the Family Court order.
4. [Redacted]

Issues to be determined

1. There were three issues to be determined by us. First, in the light of the practitioner's medical conditions, was there any utility in the proceedings continuing in the Tribunal? This issue brings into play the objects and the guiding principle in respect of practice and procedure of the Civil and Administrative Tribunal Act 2013 (the CAT Act) set out in s 3 and s 36 of that Act and also consideration of the purpose and effect of orders made at the conclusion of disciplinary proceedings. Secondly, we were required to consider the effect of a decision to withdraw the proceedings on three complainants who sought compensation and whose claims are noted in the disciplinary applications. Finally, we had to consider whether there were special or exceptional circumstances warranting restrictions of publication of these reasons and "confidential" reports relied on by the Bar Council in support of its application.

Summary of our determination

1. For the reasons that follow, we determined that leave should be granted to withdraw the disciplinary applications, and that non publication orders as sought by the Bar Council should be made. We also determined that, as it is highly unlikely that any compensation order made at the conclusion of disciplinary proceedings would be effective, and whilst that outcome is regrettable, that no undue prejudice would be suffered by the complainants for compensation if the disciplinary applications are withdrawn.
2. Background
3. The practitioner was admitted to the Roll of Lawyers in the Supreme Court of New South Wales on [redacted] pursuant to the Trans-Tasman Mutual Recognition (New South Wales) Act 1997. Thereafter, during the period 2009 to 2014, he held a barrister's practising certificate, albeit at various times, his practising certificate was subject to conditions that he comply with outstanding Continuing Professional Development requirements.
4. In 2014 the Bar Council immediately suspended the practitioner's practising certificate pursuant to s 548(3) of the LPA effective from [redacted] 2014.
5. On 11 August 2015 the Bar Council filed its first disciplinary application in the Tribunal. The Bar Council sought orders under s 562(2) or s 562(4) of the LPA, including an order that the practitioner's name be removed from the local roll. The disciplinary application asserted three principal grounds and various sub-grounds including: 1. a ground that the practitioner had made false and misleading statements to Ms KJ (Ms J) and/or Ms JV (Ms V) about his willingness and ability to prepare submissions for an appeal to the Court of Criminal Appeal in respect of Ms J's son. Ms J's son, Mr P, had been convicted of murder and sentenced to 28 year's imprisonment with a non-parole period of 21 years. (the J/P matter). The ground also asserts: 1. a failure by the practitioner to file submissions or seek an extension of time because of his demand to receive further monies, 2. a refusal by the practitioner to provide the brief to a solicitor who had obtained a grant of Legal Aid for Mr P, 3. an improper approach by the practitioner to the barrister acting for Mr P in his family law matters to request the client withdraw a complaint against the practitioner in return for handing over of the brief; 4. the practitioner received monies on trust other than in accordance with the regulations, 5. that the practitioner acted on instructions from Ms J without complying with rule 24B of the New South Wales Barristers Rules 2011; and 6. the practitioner failed to make a costs disclosure and failed to provide an itemised invoice recording his fees. 1. Ground 2 alleges the practitioner advised a client, Mr SM (Mr M), for whom he had acted for in respect of drug charges, that he would also act for him in respect of a traffic offence on a pro bono basis. However notwithstanding that assertion the practitioner improperly retained funds the property of Mr M (by implication, for his fees). 2. Ground 3 alleges that the practitioner received monies from Mrs MH (Mrs H) on behalf of her husband in respect of criminal proceedings. Mr H had formerly been represented by a solicitor, Mr Haseldine. It is alleged:: 1. the practitioner contravened s 252 of the LPA in respect of fees received from Mrs H; 2. that the practitioner failed to account for the sums of $25,000 paid to him in February 2013; 3. that the practitioner did not pay outstanding fees to Mr Haseldine; 4. that in accepting instructions from Mrs H the practitioner failed to comply with the requirements of Bar Rule 24B ; 5. that the practitioner failed to make a proper costs disclosure to Mr H or Mrs H (as his agent) or enter a costs agreement with either of them; 6. that the practitioner failed to respond to telephone calls from Mrs H after March 2013 and failed to reply to correspondence from Mr Haseldine dated September 2013; and 7. that the practitioner breached Bar Rules 15 and or17(b) in that he gave instructions to an expert witness for a report to be used on Mr H's behalf, and received the report on Mr H's behalf. 1. Ground 4 is directed to the failure of the practitioner, without reasonable excuse, to comply with a Notice under s 660 (1) of the LPA dated 22 May 2014. 2. Ground 5 asserts that, in proceedings in the Court of Criminal Appeal, where the practitioner acted for Mr HT (Mr T) in an application for leave to appeal against sentence, and an application for an extension of time heard in August 2013 he failed to reach a standard of competence and diligence reasonably expected of an Australian Lawyer and/or failed in his duty to the Court by lack of understanding of the relevant principles and to present Mr T's case in a manner that would assist the Court. It is also alleged he failed in his duty to his client. 3. Ground 5 also asserts: 1. a breach by the practitioner of Bar Rule 15 and/or 17 (b) in giving instructions to an expert and receiving an expert report on Mr T's behalf. 2. that the practitioner swore an affidavit himself in support of the application for extension of time to appeal (so that he became a witness in the proceedings); 3. that the practitioner prepared written submissions which contained statements of facts unsupported by the evidence; and 4. breached Bar Rule 15 and/or 17(d) and (e)
6. Ms J and Mr M are noted in the disciplinary application as applicants for compensation.
7. The Bar Council filed its second disciplinary application in December 2015. It deals with a single matter involving instructions given to the practitioner to provide advice in October 2013 in respect of psychiatric and physical injuries suffered by Mr FG (Mr G) as a result of a motor vehicle accident.
8. It is asserted that the practitioner:: 1. provided no or little work for Mr G; 2. failed to refund fees when requested to do so; and 3. contravened s 252 of the LPA in respect of trust monies received on behalf of Mr G
9. The second disciplinary application notes that Mr G is an applicant for compensation.
10. Ten directions hearings were listed in the Tribunal in an endeavour to prepare the two disciplinary matters for hearing. A number of Summonses were issued at the request of the Bar Council and a letter of request to provide documents was directed to the Registrar of the Family Court, Palmerston North, New Zealand.
11. On 15 February 2017 the solicitors acting for the Bar Council (the solicitors) wrote to the Legal Services Commissioner noting it proposed to seek withdrawal of the two disciplinary applications before the Tribunal. The letter noted, although there was no statutory requirement to seek the Legal Services Commissioner's consent to the proposed course, the Bar Council provided notification of its intention as a matter of courtesy. Copies of all relevant applications were provided to the Legal Services Commissioner. The letter requested the Legal Services Commissioner notify the solicitors if he objected to the proposed course of conduct.
12. On 16 February 2017 the Legal Services Commissioner responded to the solicitors noting he had no objection to the Bar Council seeking an order under s 568 of the LPA.
13. On 2 March 2017 the solicitors wrote to Mrs H advising her: Since the Application was filed by the Bar Council, it has not been possible for the Bar Council properly to serve [the practitioner] with the Application and evidence in support. [The practitioner] now resides in New Zealand in a care facility and suffers from a medical condition which renders him incapacitated to participate in or understand the proceedings. He is subject to certain orders made by a New Zealand Court about his residence and medical care. In the circumstances there would not be any purpose in proceeding with the disciplinary proceedings in the Tribunal. The Bar Council has sought leave to withdraw the proceedings, on the basis that continuation of the proceedings is not in the public interest. That application for leave to withdraw will be heard by the Tribunal on 26 April 2017. When that leave is granted the proceedings will be terminated.
14. Different letters were sent on the same date to each of the applicants for compensation (Mr G, Ms J and Mr M). After providing similar advice to that set out in the letter to Mr H, the solicitor's letter went on to note: … When the leave is granted the proceedings will be terminated and it will then not be possible for the Tribunal to make any compensation order as you had sought. As we indicated in our email dated 28 July 2015 neither the Bar Council nor we can provide you with legal advice in relation to your claim for compensation. Having said that much, we can say that you would be entitled to pursue your claims against [the practitioner] independently. But, so far as the Bar Council understands the position, [the practitioner] is expected to remain in New Zealand.
15. The solicitors also wrote to Mr H's solicitor, Mr Haseldine, in the same terms as the letter to his client. By letter dated 3 March 2017 Mr Haseldine responded noting that he had sold the bulk of his practice. He requested the solicitors provide Mr H's address to him. He also noted Mr H had "since paid me and any monies recovered ought to be paid to him". We pause here to note that at no time did Mr H seek compensation when notified of the disciplinary proceedings.
16. On 6 March 2017 the solicitors responded to Mr Haseldine. The solicitors said: We are not aware of any resources he [the practitioner] has in Australia and we are unaware of any resources he may have in New Zealand. Recovery of monies, in our view, would be problematical and probably uneconomic.
17. At the commencement of the hearing before us the correspondence from the solicitors was tendered and became Exhibit C in these proceedings. The affidavit of Mr R Cameron, the solicitor with the conduct of the matter on behalf of the Bar Council, sworn 15 February 2017 became Exhibit A and the affidavit of the process server, Mr Paul Hatch, sworn 7 April 2016 became Exhibit B. We were assisted by very comprehensive and helpful written submissions by Ms C Webster SC, (Ms Webster) who appeared on behalf of the Bar Council.
18. At the commencement of the hearing we made orders that the two applications for withdrawal be joined, and that the evidence in one become the evidence in the other.

The transitional provisions

1. There was no dispute that the Tribunal, by reason of the transitional provisions in the Legal Profession Uniform Law 2014 (NSW), had jurisdiction to hear and determine this application under the LPA (see Griffin v The Council of the Law Society of New South Wales [2016] NSWCA 364).

Legislation relevant to the withdrawal of the disciplinary applications

1. This application is brought under s 568 of the LPA. The section is in the following terms: 568 Early termination of proceedings before Tribunal (1) Proceedings before the Tribunal with respect to a complaint cannot be terminated, whether by withdrawal of the disciplinary application or otherwise, before the Tribunal makes its final decision about the complaint, without the leave of the Tribunal. (2) The Tribunal may give leave for the purposes of this section if it is satisfied that continuation of the proceedings is not warranted in the public interest.
2. Ms Webster submitted that, as the LPA contains a specific provision for withdrawal, it is not appropriate that any order withdrawing and dismissing the proceedings should be made under s 55 (1) (a) of the CAT Act. We agree with that submission. We note that s 55 is contained in Part 4 of the CAT Act which part deals with Practice and Procedure. The provisions of that Part are subject to s 35 of the CAT Act. As the enabling legislation contains a specific provision for granting leave to withdraw, it is inappropriate to rely on s 55 (1) (a) of the CAT Act. That situation is to be contrasted with the authorities determined under the Legal Profession Act 1987 (NSW) (repealed) (the 1987 Act) (see below). The 1987 Act contained no provision equivalent to s 568.

Principles to be applied in determining the withdrawal application

1. Ms Wester drew our attention to the decisions of the former Administrative Decisions Tribunal (the ADT) in New South Wales Bar Association v LI [2005] NSWADT 15 and on appeal Council of the New South Wales Bar Association v LI (2005) NSWLR 603; [2005] NSWCA 415; and New South Wales Bar Association v LG [2005] NSWADT 180.
2. We have also considered the decision of Legal Services Commissioner v Roulstone [2011] NSWADT 269.

The applicants for compensation

1. We are satisfied that each of the applicants for compensation was notified in good time of the applications before us for withdrawal of the two disciplinary applications. None appeared at the hearing nor did they correspond with the Tribunal or the solicitors or make any contact with either. We are satisfied they have been afforded procedural fairness.
2. We note that there is no up to date evidence of the practitioner's financial position before us. However, the order of the Family Court contains some scant evidence relevant to the practitioner in 2015. Order 10 (4) of the orders is in the following terms: The Public Trust are authorised and directed to give all necessary assistance to effect these orders including: arranging [the practitioner's] personal allowance payable by Work and Income New Zealand to be transferred to [the practitioner's] account at the rest home, closing [the practitioner's] bank accounts and transfer the funds to the rest home's Resident account and pay toward any outstanding rest home fees, sign the admissions agreement at the rest home, compile financial information and complete the residential care subsidy application, contact debtors and arrange any payment, and advise debtors of the clients change of circumstances.
3. We also note that the social worker who instigated the Family Court proceedings is required to apply for a review of the order on or before 5 October 2018.
4. We raised with Ms Webster whether it was likely that the compensation claims could be covered by the practitioner's professional indemnity insurance at the relevant time. There was no evidence before us that such a course would be available given the nature of a barrister's professional indemnity cover.
5. We accept that the applicants are not precluded from bringing individual civil proceedings against the practitioner, but accept as sound the solicitor's advice to Mr Haseldine which we have set out in full above. We have also taken into account the terms of Order 10 (4) of the Family Court order from which we infer that any funds the practitioner had in New Zealand have been, or are being, applied to his rest home fees and that his income is by way of government benefit.
6. It is regrettable that the disciplinary proceedings were unable to be heard while the practitioner was still resident in New South Wales and compensation determined at that time after appropriate factual findings by the Tribunal.
7. Even if the disciplinary proceedings were now heard with a guardian ad litem appearing for the practitioner, it is likely the Tribunal would have considerable difficulty in assessing the quantum of any compensation order in circumstances where the practitioner is unable to give instructions in respect of the allegations set out in the applications.

Is there any utility in the continuation of the proceedings?

1. There is no doubt that professional disciplinary proceedings have a number of objectives. These objectives, albeit in proceedings involving a medical practitioner, are succinctly explained by Meagher JA in Health Care Complaints Commission v Do [2014] NSWCA 307 at [35] as follows: The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise.
2. Also relevant are his Honour's references to disciplinary proceedings involving legal practitioners. At [36]-[37] his Honour noted: In Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 Mahoney JA described (at 441) the scope of the objective of protecting the public interest in the context of disciplinary proceedings against a solicitor as follows: "The protection of the public has been described as, for example, the primary purpose or primary object of such proceedings: ... In the relevant sense, the protection of the public is in my opinion not confined to the protection of the public against further default by the solicitor in question. It extends also to the protection of the public against similar defaults by other solicitors and has, in this sense, the purpose of publicly marking the seriousness of what the instant solicitor has done. But, in my opinion, it would be wrong to confine the objects of disciplinary proceedings and the purposes to be achieved by the orders made in them strictly to matters of this kind. Those purposes and objectives have traditionally been seen as having a wider operation. In the end, the question to be determined is whether the solicitor is a fit and proper person to be a solicitor of the Court and the orders to be made are to be directed to ensuring that, to the extent she is not, her practice is restricted." In Herron v McGregor (1986) 6 NSWLR 246 McHugh JA referred more briefly to the same consideration (at 258): "It is, of course, of fundamental importance to bear in mind the public interest in disciplining doctors who are guilty of professional misconduct. In many cases the protection of the public and the maintenance of professional standards require that the names of doctors be removed from the register. However, it is present fitness to practise which is the principal and ultimate issue of public interest."
3. Sub-section (2) of s 568 refers to "the public interest". Cases where courts have considered the words "public interest" are referred to in a document described as "Legal Practice Note No 10" published by the Health Professional Councils Authority, Health Administration Corporation, Department of Health (NSW). Of relevance to this application is the discussion of Tamberlin J in McKinnon v Secretary, Department of Treasury [2005] FCAFC 142. His Honour explained: The reference to "the public interest" appears in an extensive range of legislative provisions upon which tribunals and courts are required to make determinations as to what decision will be in the public interest. This expression is, on the authorities, one that does not have any fixed meaning. It is of the widest import and is generally not defined or described in the legislative framework, nor, generally speaking, can it be defined. It is not desirable that the courts or tribunals, in an attempt to prescribe some generally applicable rule, should give a description of the public interest that confines this expression. The expression "in the public interest" directs attention to that conclusion or determination which best serves the advancement of the interest or welfare of the public, society or the nation and its content will depend on each particular set of circumstances. There will, as in the present case, often be competing facets of the public interest that call for consideration when making a final determination as to where the public interest lies and these are sometimes loosely referred to, in my view, as opposing public interests. In the present case, broadly speaking, the competing aspects of the public interest include the benefits conferred on the public by the transparency of government processes and the need for confidentiality in certain circumstances. The expression "the public interest" is often used in the sense of a consideration to be balanced against private interests or in contradistinction to the notion of individual interest. It is sometimes used as a sole criterion that is required to be taken into account as the basis for making a determination. In other instances, it appears in the form of a list of considerations to be taken into account as factors for evaluation when making a determination. By way of example, town planning legislation frequently lists a number of factors that a local council or planning body is required to take into account when making a determination, with a concluding consideration being a generalised reference to the public interest and the circumstances of the case. The indeterminate nature of the concept of "the public interest" means that the relevant aspects or facets of the public interest must be sought by reference to the instrument that prescribes the public interest as a criterion for making a determination. In this respect, the well-known observations of Deane J in Sean Investments Pty Limited v McKellar (1981) 38 ALR 363 at 375 are apposite. In that case, his Honour was considering the different process of determining the relevant considerations to take into account in the exercise of a broad statutory discretion; however, the approach is relevant in the present case. His Honour said: "In a case such as the present, where relevant considerations are not specified, it is largely for the decision-maker, in the light of matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards." The public interest is not one homogenous undivided concept. It will often be multi-faceted and the decision-maker will have to consider and evaluate the relative weight of these facets before reaching a final conclusion as to where the public interest resides. This ultimate evaluation of the public interest will involve a determination of what are the relevant facets of the public interest that are competing and the comparative importance that ought to be given to them so that "the public interest" can be ascertained and served. In some circumstances, one or more considerations will be of such overriding significance that they will prevail over all others. In other circumstances, the competing considerations will be more finely balanced so that the outcome is not so clearly predictable. For example, in some contexts, interests such as public health, national security, anti-terrorism, defence or international obligations may be of overriding significance when compared with other considerations.
4. The plurality in the High Court in O'Sullivan v Farrer (1989) 163 CLR 210 referred to the wide discretion exercisable when the words "public interest" are found in a statute. Their Honours said: Indeed, the expression "in the public interest", when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only "in so far as the subject matter and the scope and purpose of the statutory enactments may enable ... given reasons to be (pronounced) definitely extraneous to any objects the legislature could have had in view": Water Conservation and Irrigation Commission, per Dixon J. at p 505.
5. Disciplinary decisions of this Tribunal dealing with the concept of public interest (Crickitt v Medical Council of NSW (No 2) [2015] NSWCATOD 115 and Singh v Medical Council of NSW (No 2) [2015] NSWCAT 28) emphasise the protection of the health and safety of the public and the impact of a delinquent practitioner's conduct on the honour and reputation of the profession generally.
6. Applications for withdrawal of disciplinary proceedings instituted against Health Practitioners are considered under Cl 7 of Schedule 5D of the Health Practitioner Regulation National Law (NSW) (the National Law). Relevant cases discuss matters to be taken into account in the context of the words "public interest" in the National Law. The decisions weigh and evaluate the risk to the health and safety of the public if a complaint is withdrawn, the deterrent effect of disciplinary orders, and the need to uphold the standards and reputation of the relevant health profession. Also considered are the cost implications of the continuation of the proceedings. Decisions made under the National Law include Health Care Complaints Commission v Khan [2014] NSWCATOD 79; Health Care Complaints Commission v Sarfraz [2015] NSWCATOD 75; and Health Care Complaints Commission v BQB [2014] NSWCATOD 157.
7. The medical evidence before us is compelling.[redacted]
8. [Redacted]
9. Although the medical evidence relied on by the Bar Council is somewhat outdated, we accept, given Dr [redacted] diagnosis and prognosis, any improvement in the practitioner's condition is highly unlikely.
10. We accept that the practitioner's practising certificate was suspended in 2014, and that with the dismissal of the proceedings that suspension will come to an end. However, we are satisfied that there is no reasonable likelihood that the practitioner will be able to again engage in practice. Thus, we conclude there is no risk to the public from inappropriate professional conduct by the practitioner.
11. We also accept that the practitioner's condition, as evidenced by the Family Court order, means he lacks the relevant capacity to give instructions and is unable to defend these proceedings. Even if a guardian ad litem was appointed for the practitioner, the complaints against the practitioner could not be fully and fairly explored.
12. In concluding that the proceedings could not be conducted fairly, we do not minimise the serious nature of the allegations set out in the Applications for Disciplinary Findings and Orders, and note if the complaints were established at a hearing, that a finding of professional misconduct would be likely to flow.
13. Further, the publication of our redacted reasons highlights to the profession the type of matters likely to result in disciplinary proceedings, and the orders which will be sought against a practitioner.

The applicants for compensation.

1. We have also given significant weight to the position of the applicants for compensation, but as set out above, we have concluded the continuation of the proceedings would be likely to have little practical benefit to them. Importantly, although each of the complainants had notice of these proceedings, none of them sought to appear or to dispute the proposed withdrawal of the proceedings.

Other public interest considerations

1. Finally we have considered the objects and principles of the CAT Act. It is relevant at this point we refer to s 36. It provides as follows:
2. 36 Guiding principle to be applied to practice and procedure (1) The "guiding principle" for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The Tribunal must seek to give effect to the guiding principle when it: (a) exercises any power given to it by this Act or the procedural rules, or (b) interprets any provision of this Act or the procedural rules. (3) Each of the following persons is under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal: (a) a party to proceedings in the Tribunal, (b) an Australian legal practitioner or other person who is representing a party in proceedings in the Tribunal. (4) In addition, 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. (5) However, nothing in this section requires or permits the Tribunal to exercise any functions that are conferred or imposed on it under enabling legislation in a manner that is inconsistent with the objects or principles for which that legislation provides in relation to the exercise of those functions.
3. As earlier noted, these proceedings have been subject of ten directions hearings involving time and cost to the Bar Council, the Tribunal and indirectly the public. Continuation of the proceedings would result in the expenditure of further costs without, in our view, a practical outcome and without facilitating resolution of issues between the parties. Continuation of the proceedings would also affect other persons awaiting hearing of their matters in the Tribunal by causing delay. These are significant matters we have taken into account in reaching our decision.
4. On balance, we have determined, for the reasons set out above, that it is in the public interest for the proceedings to be withdrawn from the Tribunal.

The confidentiality or suppression orders sought

1. At the commencement of the hearing the Bar Council sought a number of orders under s 64 of the CAT Act because of the practitioner's diagnosis and circumstances. Ms Webster indicated that the Bar Council would have no objection if detailed reasons were published to the Bar Council, but only reasons with the confidential material redacted were published on Caselaw.

Section 64 of the CAT Act

1. 64 Tribunal may restrict disclosures concerning proceedings (1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders: (a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal), (b) an order prohibiting or restricting the publication or broadcast of any report of proceedings in the Tribunal, (c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal, (d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings. (2) The Tribunal cannot make an order under this section that is inconsistent with section 65. (3) The Tribunal may from time to time vary or revoke an order made under subsection (1). (4) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

Relevant Principles

1. The principles to be applied when considering an application under s 64 are extensively discussed in Council of the Law Society v CZD [2017] NSWCATOD 31 as follows: The principle of open justice is a widely recognised principle of the common law. The rationale for the principle and the limited circumstances recognised at common law for departure from the principle is well explained by McHugh JA in John Fairfiax and Sons Limited v Police Tribunal (1986) 5 NSWLR 465 as follows (at 476-477): The fundamental rule of the common law is that the administration of justice must take place in open court. A court can only depart from this rule where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule. The principle of open justice also requires that nothing should be done to discourage the making of fair and accurate reports of what occurs in the courtroom. Accordingly, an order of a court prohibiting the publication of evidence is only valid if it is really necessary to secure the proper administration of justice in proceedings before it. Moreover, an order prohibiting publication of evidence must be clear in its terms and do no more than is necessary to achieve the due administration of justice. The making of the order must also be reasonably necessary; and there must be some material before the court upon which it can reasonably reach the conclusion that it is necessary to make an order prohibiting publication. Mere belief that the order is necessary is insufficient. When the court is an inferior court, the order must do no more that is 'necessary to enable it to act effectively within its jurisdiction. Also relevant are the comments of Kirby P (as his Honour then was) in his dissenting reasons in John Fairfax Group Pty Ltd (receivers and managers appointed) & Anor v Local Court of New South Wales & ors (1991-1992) 26 NSWLR 131. There his Honour explained: It has often been acknowledged that an unfortunate incident of the open administration of justice is that embarrassing, damaging and even dangerous facts occasionally come to light. Such considerations have never been regarded as a reason for the closure of courts, or the issue of suppression orders in their various alternative forms ... A significant reason for adhering to a stringent principle, despite sympathy for those who suffer embarrassment, invasions of privacy or even damage by publicity of their proceedings is that such interest must be sacrificed to the greater public interest in adhering to an open system of justice. Otherwise, powerful litigants may come to think that they can extract from courts or prosecuting authorities protection greater than that enjoyed by ordinary parties whose problems come before the courts and may be openly reported. The reports contain many authorities dealing with the principle, and the exceptions to it. While the core principle remains the touchstone, particular care must be exercised when considering the precise terms of a statutory provision that provides exceptions to the principle. In Merrilyn Walton v Alexander Sergevich Momot and Anor [1997] NSWSC 143 the Court of Appeal was considering an appeal against order of the primary judge who had overturned an order of the then Chiropractors and Osteopaths Tribunal. The former Tribunal had refused to suppress the name of a practitioner. Handley JA said: The general principle provided for in s 46 (3) is that the Tribunal will sit in public. If the Tribunal sits in public the details of the proceedings, including the names of the complainant and the practitioner, may become known to interested members of the public and the media, who will be entitled to publish details of the proceedings including the name of that practitioner. This being the prima facie method by which the Tribunal should conduct its proceedings as laid down by the Act, it follows that something special, exceptional, or out of the ordinary, must be established before the Tribunal can make an order avoiding such a result. It could decide under s 46 (3) that it will sit in private, or it could make a suppression order under cl 6 (1) in the Third Schedule. The relevant statutory provision under consideration in Merrilyn Walton is now found in similar terms in Cl 7 of Schedule 5D of the Health Practitioner Regulation National Law (NSW) (the National Law) and the criteria of "special, exceptional, or out of the ordinary" have consequently been applied in disciplinary proceedings under the National Law involving health practitioners (see Health Care Complaints Commission v Dr CRF [2016] NSWCATOD 120; Health Care Complaints Commission v Vo [2014] NSWCATOD 127; Health Care Complaints Commission v Astor-Finn [2016] NSWCATOD 73). Unlike s 64 of the CAT Act, Cl 7 does not direct the Tribunal's attention whether it is desirable to make a non publication order "by reason of the confidential nature of the evidence or matter or any other reason" but rather is it appropriate to make such an order. Arguably the discretion afforded by the s 64 is wider than that discussed by Bathurst CJ and McColl JA in Rinehart v Welker [2011] NSWCA 403 by reference to the wording of the Court Suppression and Non-publication Orders Act 2010 (NSW) which has as a pre-requisite the requirement that a judicial officer is satisfied that it is "necessary" to make the order.

Conclusions - s 64 application.

1. We find, because of the practitioner's medical condition, that his name should be anonymised in our published reasons, and that the restricted material insofar as it could lead to identification of the practitioner should be redacted in our published reasons.

Costs

1. No order for costs was sought by the Bar Council. In those circumstances, no order has been made.

orders

1. Leave is granted to the Council of the NSW Bar Association (the Bar Council) under s 568 of the Legal Profession Act 2004 NSW (repealed) (the LPA 2004) to withdraw the Applications for Disciplinary Findings and Orders filed 11 August 2015 and 8 December 2015 against DBW (the practitioner).
2. Subject to Orders 3 and 4 of these orders, under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) an order is made prohibiting disclosure or publication of paragraphs 10-17 of the affidavit of Rod Cameron sworn 15 February 2017 together with the annexures thereto, paragraph 3 of the affidavit Paul Hatch sworn 7 April 2016 and the confidential annexure to the applicant's written submissions dated 12 April 2017 (the restricted evidence).
3. Order 2 does not preclude the practitioner or his advisors from disclosing or publishing the restricted evidence for the purpose of further or continued proceedings relating to the complaints the subject of these proceedings.
4. Order 2 does not preclude: (a) the Bar Council or any member of the Bar Council and/or (b) the New South Wales Bar Association or any of its officers or employees or any person acting on its direction from disclosing the restricted evidence to any of the following persons, bodies or entities in connections with the Bar Council's exercise of its functions under the LPA 2004 and the Legal Profession Uniform Law (NSW) (the Uniform Law) and the Legal Profession Uniform Law Application Act 2014 (NSW) (as amended or substituted from time to time) and all regulations and rules made under or in connection with those Acts (as amended or substituted): (i) the Legal Services Council and any member, committee or delegate of the Legal Services Council; (ii) the Commissioner for Uniform Legal Services regulation, and any delegate of the Commissioner; (iii) a local regulatory authority or corresponding authority within the meaning of the Uniform Law and any member, committee, or delegate of any such authority; (iv) a person who is a member of the staff of, or acting at the direction of, any of the entities or persons referred to in (i)-(iii) above; (v) any Australian or foreign authorities or courts as referred to in s 436 and 437 of the Uniform Law; (vi) any Australian Government authorities, professional associations or educational bodies as referred to in s 441 of the Uniform Law; (vii) any medical practitioner and/or health professional nominated by the Bar Council, a local regulatory authority or corresponding authority within the meaning of the Uniform Law for the purposes of s 95 of the Uniform Law or any equivalent provision, regulation or rule in any other State or Territory; and (viii) any person, body or entity to the extent that disclosure is permitted by ss 462 (2) and (3) of the Uniform Law.
5. Under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) publication of these reasons, other than the redacted version of the reasons is prohibited.
6. Notwithstanding the anonymisation of the practitioner's name, and Order 5, the Bar Council may provide to any person who has made, or does make, a complaint about the practitioner a copy of the redacted published reasons identifying that the redacted published reasons are in respect of Applications for Disciplinary Findings and Orders against the practitioner.
7. No order as to costs of the proceedings.

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 06 July 2017 - typographical error 25 September 2017 - Order under s 63 of the Administrative Tribunal Act 2013 (NSW) 25 September 2017 - amendment published 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: 25 September 2017