Council of the New South Wales Bar Association v Osei

Background 1 Kofi Ameyaw Osei was admitted as a Legal Practitioner of the Supreme Court of New South Wales on 7 February 1992. He was issued with a Practising Certificate as a barrister on 8 March 1992 which he held continuously until 30 June 2004 when it expired and was not renewed. At all relevant times the barrister carried on his practice from premises known as Downing Chambers, at 9th Floor, 307 Pitt Street, Sydney. 2 Co-extensive with the time he practised as a barrister Mr Osei was also a registered Migration Agent under the Migration Act 1958. He and his wife were shareholders and directors in a company, Caprock International Pty Limited which, at least from 1997 to 2004, also carried on business as Caprock Immigration Consultants from the same address. 3 Disciplinary action was initiated against him in March 2004 when the Council of the New South Wales Bar Association filed Information 042010, which alleged that the Barrister was guilty of professional misconduct which was particularised with respect to the Barrister's conduct in his dealings with a Mr and Mrs B concerning their migration applications in February 2001. In respect of that matter, the Barrister was represented by a solicitor, Mr Cuddy, and filed a reply and other process. 4 In December of 2004, 2 further Informations respectively 042039 and 042040 were filed. By 042039 it was again alleged that the Barrister was guilty of professional misconduct, this time particularised as an allegation that he had provided a misleading and false response to the Bar Council on 28 June 2002, while 042040 alleged that he was guilty of unsatisfactory professional conduct, particularised by reference to the Barrister's conduct before the Refugee Review Tribunal on 10 September 2001, again in connection with the Bs. The later Informations and affidavits in support were served upon Mr Cuddy by post upon the assumption that he had instructions to accept service and Mr Cuddy has not suggested otherwise. In February of 2005, Mr Cuddy appeared at a directions hearing and consented to various procedural arrangements to progress the matters, but did not file any document on behalf of the barrister in the later proceedings. 5 By letter dated 8 April 2005 to the Registrar and solicitors for the Council, Mr Cuddy withdrew from all matters noting … "We did not file responses in relation to the two later Informations as we have not received instructions from our client and we have given him notice that we cease to act on his behalf… .We cannot give you an address for service for our client, who is presently in Ghana, resident there…". 6 That some notice reached Mr Osei appears from the fact that the next relevant correspondence in the matter was received directly from him. By letter dated 19 April 2005 Mr Osei, by then apparently Deputy Minister for Trade and Industry for the Republic of Ghana, said inter alia, that the proceedings by the Bar Association involved conduct in his capacity, not as a barrister but as a migration agent, that he held no Practising Certificate in NSW or elsewhere within the Commonwealth of Australia and he did not propose to apply for one either then or at any time in the future. He indicated that he was prepared to undertake that he would not then or in the future seek to practise as a barrister, solicitor or legal practitioner in NSW or anywhere else within the Commonwealth of Australia. He asked that on that basis the then current proceedings be terminated. That letter was shortly followed by a letter from the Ghana Consulate General, Sydney asserting "diplomatic immunity" on behalf of Mr Osei "in respect of the proceedings in the Tribunal". 7 A month later, on 19 May 2005, the Tribunal made orders dealing with issues of service of documents and permitting the Bar Association to proceed with a hearing of all 3 matters and for it to be conducted despite the foreshadowed failure of Mr Osei to appear. 8 All three matters proceeded to hearing on 15 August 2005 and when Mr Osei did not appear in person or by a legal representative, the hearing continued in his absence for some 3 days. At that hearing, at which Mr and Mrs B and a number of other witnesses were called, a great deal of detailed oral evidence was heard by a 3 member bench of the Tribunal of which the late Mr D Officer QC was the presiding member. Much of that evidence had not previously been served in affidavit form. By a decision dated 3 February 2006, the Tribunal set out the detailed facts to the proceeding continuing in the absence of Mr Osei and went on to dismiss Information 042010 and find the Barrister guilty of professional misconduct as particularised in 042039 and unsatisfactory professional conduct as particularised in 042040 see: New South Wales Bar Association v Osei [2006] NSWADT 35. 9 The 2 remaining matters were then re-listed for a hearing of submissions by the Bar Council as to penalty and final orders and that hearing was initially fixed for 1 April 2006. To that end, written submissions were filed by the Informant for the Bar Council in which prominence was given to the requirement for public protection through the mechanism of striking off in cases where a finding of professional conduct has been made. However the hearing as to final orders did not proceed. The Application 10 On 16 June 2006 Mr Osei filed in the Tribunal an application seeking to vacate the earlier findings in respect of matters 042039 and 042040 and to re-open the hearings of those Informations. The application was supported by the filing of affidavits of Mr Osei and of Mary Gie Boon Sihn Choi sworn the same date. In summary, in his affidavit Mr Osei asserts that after Mr Cuddy ceased to act that he (Mr Osei), had no address for service of documents in Australia; accepts that he was remiss in failing to provide a correspondence address; and asserts that he was not aware of the matters the subject of proceedings 042039 and 042040 until after the Tribunal had published its determination. He went on to outline a proposed course of Reply and response to the allegations the subject of 042039 and 042040. Ms Choi's affidavit sets out a range matters as to her knowledge and involvement in the conduct of Caprock; the handling of applications on behalf of the Bs - in particular incidents raised in connection with the dismissed information 042010; and the circumstances of her attendance at the Tribunal on 15 August 2005 pursuant to a Summons. 11 In further support of Mr Osei's application, in January 2007 an affidavit was filed sworn 16 July 2006 by Liba Osei, his wife. That affidavit also sets out a range of matters including details pertaining to the conduct of Caprock; her personal knowledge of some matters related to the Bs both as to their immigration applications and their financial involvement with Lloyds International College; and ultimately, a denial of having ever received an email the content of which was information intended for Mr Osei from Mr Cuddy after she left Australia for Ghana in approximately August of 2004. A subsequent affidavit sworn 10 January 2007 annexes the relevant emails and asserts she was unaware of same until after March 2006. A further affidavit by Mr Osei of the same date sets out his denial of knowledge of those and other documents concerning the progress of the earlier proceedings. He asserts that he first saw those documents on 20 November 2006. 12 Initially at a directions hearing, the June 2006 application was fixed for hearing on 23 November 2006, but this date was later vacated. Since then a number of procedural and other difficulties have impeded the speedy despatch of the application. Without dwelling on these in unnecessary detail, a subsequent fixture did not proceed as Mr Officer QC became unavailable for the appointed date, and then ultimately, consequent upon his resignation, to further hear the matter at all. 13 Further time elapsed as endeavour was made to progress the matter by the appointment of Ms Norton SC to the panel. In respect of reconstitution, the Administrative Decisions Tribunal Act 1997 ("the Act") provides as follows: 79 Reconstitution of Tribunal during hearing 1) The President may replace the member, or one of the members, constituting the Tribunal after the consideration of a matter by the Tribunal has commenced if: (a) the member becomes unavailable for any reason, or ceases to be a member, before the matter is determined, and (b) the parties consent. (2) The Tribunal as so reconstituted is to have regard to the evidence and decisions in relation to the matter that were given or made before the Tribunal was reconstituted. (3) If one or more of the parties do not consent to the reconstitution of the Tribunal under this section, the proceedings are to be reconsidered by the Tribunal constituted in accordance with this Act. (4) If proceedings are reconsidered by the Tribunal, the Tribunal may, for the purposes of the proceedings, have regard to any record of the proceedings before the Tribunal as previously constituted including a record of any evidence taken in the proceedings. 14 Initially this was done by seeking the consent of the parties pursuant to section 79(1) of the Act. However, when this step too fell into contention, (apparently in the absence of knowledge by the parties of Mr Officer QC's resignation from the Tribunal shortly prior to his death) the Bar Council indicated that it had no objection but did not give notice of actual consent. That was the state of affairs when written notice of a reconstitution of the Tribunal by a Deputy President pursuant to section 79(3) of the Act was given. This aspect of the matter remained a live issue until well into the hearing of 20 April 2007. 15 At that hearing, after initially making submissions adopting differing positions as to the appropriate approach to the history of the proceedings and the consequences of the differing interpretations of the section, an adjournment was sought, following which both parties unreservedly consented to the substitution. Further, the parties then announced their consent to the setting aside of the decisions of 3 February 2006 in proceedings 042039 and 042040 without ongoing argument as to interpretation of the term "determined" as it appears in section 79. Short Minutes of the terms of those consents were subsequently handed up. 16 This course at first blush appeared attractive from the practical point of view of speedy disposal of the proceedings and the Tribunal was urged by both parties to follow this course. However this raised in Tribunal members a number of concerns, which were articulated during the proceedings. The first and primary concern voiced to counsel for the parties was as to whether the course agreed to by the parties and urged on the Tribunal was within the scope of our statutory jurisdiction, conferred by the Act. The second concern raised sought assistance to reach an appropriate understanding of any limitations or discretions to be considered in the exercise of that power. 17 In particular, the members sought the assistance of counsel with regard to the discrete question of the Tribunal's obligation to have regard to the public interest, independent of the expressed joint wishes of the parties, as was recently raised and considered in the matter of New South Wales Bar Association v LI (No.2) [2006] NSWADT 263, then before the Court of Appeal, but now decided as LI v Council of the NSW Bar Association [2007] NSWCA 223. In line with those considerations, the Tribunal noted that the course now urged jointly by the parties was one not known to other stakeholders to the proceedings, in particular the Legal Services Commissioner and the Bs. One aspect of that concern expressed was that the course urged for the convenience of the parties was one which would almost inevitably give rise to a need for the Bs to attend and give evidence again in proceedings in which findings of fact had been made and published, all this following on from a hearing from which Mr Osei had voluntarily absented himself. 18 A timetable for submissions dealing with all of those concerns was fixed and provision was made for notification of the Legal Services Commissioner of the terms of the Short Minutes of Consent placed before the Tribunal. Subsequently, the Registrar of the Tribunal received from the Office of the Legal Services Commissioner a letter which makes no reference to the position of the Bs, but which indicates that the Commissioner accepts in principle that the decisions of 3 February 2006 may be set aside. The letter goes on to refer section 73(4)(c) of the Act as providing for the Tribunal to take such measures as are reasonably practicable to ensure parties have the fullest opportunity to be heard, together with the provision in section 86 for the Tribunal to give effect to agreed settlements between parties. 19 In the submissions filed on behalf of the Bar Council, the Tribunal is referred to the guidance offered to understanding the operation of section 79 found in Lloyd v Veterinary Surgeons Investigating Committee [2002] NSWCA 224 and Tu v University of Sydney [2003] NSWCA 170. Shortly, the submissions otherwise urge the making of orders giving effect to the agreed course on the basis that such a process best provides natural justice to both parties. The submissions speak of section 73 of the Act as a basis of broad powers to do justice as required, and although resisting any analogy between the facts of that case and those here, refer to the discussion found in Hoskins v Van Den-Braak (1998) 43 NSWLR 290 as to the power in courts to set aside an ex-parte judgment where a missing party later attends and seeks a hearing. 20 In the outline written submissions filed on behalf of Mr Osei, the starting point is that the Tribunal was now reconstituted pursuant to section 79(1) and accordingly is to have regard to evidence and decisions given before reconstitution. Thereafter, in essence, it is submitted that Mr Osei's position had not yet been "determined" as the use of that term imported finality, whereas the decisions made and published to date had been taken only as to discrete aspects of the matter, leaving the consequential orders including sanctions outstanding. The submission continues that the making of such orders should not be delegated to a person or persons not involved in the decision making process "without all of the knowledge and observation which that process carries with it". 21 As to the power to give effect to the substance of the application, the submission refers to cases pertinent to the fundamental principle that persons likely to be affected by proceedings are entitled to be heard and specifically the Tribunal was referred to a number of cases in which Courts have reopened hearings in response to a variety of circumstances raising procedural fairness elements of natural justice, though none is on all fours with the factual notice position here. The submission is made that the relevant principles applicable to a Tribunal are stated in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597. 22 Although broadly helpful, neither parties written submissions examines in detail the nature and extent of the perceived unfairness in the specific context we must deal with, nor do they address any aspect or application of the discretionary considerations raised by LI's case as outlined above. 23 Ultimately the Tribunal must resolve the appropriate course from the two competing views of the events which occurred relating to these proceedings between April 2005 and June 2006. On the one hand, Mr Osei, well aware that the first disciplinary proceeding based on allegations of a most serious nature alleging professional misconduct in the handling of the B's affairs were on foot before the Tribunal and actively being pursued by the Bar Council, endeavoured to forestall those proceedings. First, he made an offer not to seek to practise in the jurisdiction. Then, without an indication of concern for the outcome of this approach, he proceeded to sever the means of contact by which he could be appropriately informed of the progress of that proceeding and any consequences thereof, including the date for hearing. 24 Mr Osei acknowledges this in the affidavit filed in June 2006, in which he admits his failure to provide a correspondence address. The second and third Informations were served on his solicitor while he was still actively being represented by that solicitor in the first proceeding. Mr Osei thereafter absented himself from the hearing at which evidence was heard concerning all 3 matters then on foot. Seeking now to rely on the result of his own remiss conduct in this regard to reverse the detrimental consequences of the ongoing proceedings is a deeply unattractive and unmeritorious proposition. 25 On the other hand, his solicitor has promptly notified the Tribunal he had no instructions to act in relation to the 2 later Informations. Given the inevitable inability and consequent failure by the Bar Council to provide advance notice of the supporting material upon which the adverse findings of fact were subsequently made (albeit that the difficulty in the means of communication had been created by Mr Osei), together with Mr Osei's sworn, unchallenged assertions that he remained unaware of those later proceedings, the Tribunal is left with an acute sense of unease and discomfort that Mr Osei may have been denied procedural fairness in the later matters. 26 Given the fundamental nature of those qualms concerning the failure of service in 042039 and 042040, the serious nature of the proceedings and the potential for adverse consequences to Mr Osei's ability to engage in future legal practice in this State and elsewhere, the Tribunal accepts that the prudent course is to consider acceding to the application now urged by both parties, irrespective of the concerns articulated to the contrary. 27 In that regard, and in the context of the breadth of powers to make orders as conferred by sections 561- 564 of the Legal Profession Act 2004, the Tribunal notes the recent characterisation by the Court of Appeal of the initial findings of fact expressed in paragraph [68] of The Council of the New South Wales Bar Association v Sahade [2007] NSWCA 145, that the first finding of the Tribunal in relation to professional misconduct was "merely interlocutory" and was not a "final conclusion", together with the Court's ultimate conclusion in paragraph [88] that, as to the first findings, "those findings should be understood as tentative and not final expressions of opinion. Accordingly it was open to the Tribunal to revise those views after the second hearing. We agree that opportunity should now be availed Mr Osei.