Solicitors:
Norton Rose Fulbright (Applicant)
File Number(s): 2019/94353
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[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
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Judgment
HIS HONOUR: By notice of motion filed on 1 October 2019 the respondent to the applicant's summons seeks an order setting aside the applicant's subpoena dated 19 August 2019 on the ground of abuse of process. The applicant submits that the subpoena lacks a legitimate forensic purpose.
The applicant, being the Council of the New South Wales Bar Association ("the Council"), by summons seeks a declaration that the respondent is not a fit and proper person, or not a person of good fame and character, to remain on the roll of Australian lawyers maintained by the Supreme Court under s 22 of the Legal Profession Uniform Law Application Act 2014 (NSW). It seeks an order that his name be removed from the roll. It seeks in the alternative that he be declared guilty of professional misconduct.
The grounds of that application as set out in the summons include allegations that the respondent falsely stated his principal place of practice and his intended principal place of practice in response to questions asked by the Law Society of Tasmania and the Bar Association of Queensland and in periods from 26 November 2008 to 23 May 2017. The Council alleges that at all times from 26 November 2008 the respondent's principal place of practice was in New South Wales and it asserts that at all times during the period from 1 July 2009 to 30 June 2015 he reasonably expected to engage in legal practice solely or principally in New South Wales in the following financial year.
The Council asserts that in the period 1 July 2009 to 30 June 2015 the respondent failed to apply for the grant of a New South Wales practising certificate in contravention of s 45(6) of the Legal Profession Act 2004 (NSW) and during the period from approximately 1 July 2015 to 30 June 2017 he engaged in legal practice solely or principally in New South Wales, and reasonably expected to be engaged in legal practice solely or principally in New South Wales in the following financial year, without having applied for a New South Wales practising certificate. The Council charges that the respondent contravened s 5 in schedule 3 of the Legal Profession Uniform Law.
Hence the essential allegations against the respondent go to assertions that he made false representations to regulatory bodies as to his principal place of practice and as to his intention as to where he would practise, and that he practised in New South Wales without a New South Wales practising certificate.
On 31 May 2019 the respondent gave notice pursuant to s 78B of the Judiciary Act 1903 (Cth) to the Attorneys General of a constitutional matter. In substance the notice stated that the requirements of s 45(6) of the Legal Profession Act and of s 5 in schedule 3 of the Legal Profession Uniform Law as well as cognate provisions in Queensland and Tasmania in force at the relevant time had the effect of discriminating against residents of other States. The notice stated that:
"[t]he impost of the above sections, combine with the effect that a practitioner must surrender both his/her practising certificate applicable to their issuing State and their commensurate ability to principally practise in the State (or any other state) from which the practising certificate was surrendered; thus subjecting the practitioner to discrimination under s 117 of the Constitution",
citing Street v Queensland Bar Association (1989) 168 CLR 461; [1989] HCA 53.
The parties have prepared a statement of agreed facts and issues and there are other matters which are the subject of admissions made by the respondent. The admissions include the respondent's admission that from 1 July 2011 to 30 June 2017 his principal place of practice as a barrister was in New South Wales. There are also admissions as to the respondent's principal place of residence as being within Sydney at different locations from February 2011 to August 2017.
The subpoena which the applicant seeks to have set aside was issued on 19 August 2019. It seeks the production of documents recording the terms of the respondent's occupation or use of any space from which he practised as a barrister for the period from 1 January 2008 to 31 December 2017; copies of invoices issued to him in respect of his occupation or use of space from which he practised as a barrister; copies of invoices issued for legal services provided by him and copies of all engagement letters, retainers, cost agreements and fee disclosures for legal services provided by him for the period from 1 January 2008 to 31 December 2017.
The respondent has produced documents of the latter class, that is, invoices and retainers or costs agreements and fee disclosures. An objection to the applicant having access to those documents has not been pressed and I have made an order for access accordingly. I am told that the documents produced are all of the documents in the respondent's possession falling within those categories.
The subpoena also called for production of diaries, work planners and calendars, mobile telephone bills and invoices in relation to mobile telephones.
It also calls for copies of communications with the Australian Taxation Office, including income tax returns, notices of assessment and business activity statements. It calls for production of bank statements and it also calls for production of utility bills and copies of documents recording the terms under which he leased, rented, occupied or used residential premises. It calls for copies of applications for professional indemnity insurance and communications addressed to any chambers in New South Wales by which the respondent applied, requested, or expressed an interest to practise from chambers located in New South Wales.
The respondent, through his solicitor, challenged the width and purpose of the subpoena having regard to the admissions that have been made. In response to that challenge the solicitors for the Council asserted that the Council alleged that the respondent has dishonestly misrepresented his principal place of practice and his intended or expected principal place of practice.
The Council would seek to establish the extent of the respondent's practice in New South Wales during relevant periods to endeavour to prove that the representations that are impugned were dishonest rather than merely mistaken.
In asserting that the Council has not identified a legitimate forensic purpose for which access is sought, the respondent has emphasised constitutional arguments upon which he will seek to rely. Thus, he has submitted (as has been identified in the s 78B notice) that the relevant sections of the Legal Profession Act and the Uniform Law are invalid as subjecting him to disability or discrimination which would not be equally applicable to him if he were resident in another State contrary to s 117 of the Constitution.
He has also raised a separate issue which is not identified in the s 78B notice, that:
"due to the absence of any principal place of practice requirements within ss 55A, 55B(4) of the Judiciary Act 1903 Cth and s122 of the Family Law Act 1975 Cth, a request for documents seeking to establish the location of a practitioner's principal place of practice in a federal court and or federal setting, prima facie; lacks any legitimate forensic purpose."
The premise on which the constitutional arguments of the respondent seems to be raised is that I should determine and accept those arguments on the present application to set aside a subpoena. I do not agree. The validity of those arguments can only be addressed on a hearing of the summons or on a hearing of a preliminary question if the Court were to order a separate determination of the constitutional issues that the respondent seeks to raise. No such application for the determination of a separate question has been sought by either party.
In any event it seems prima facie unlikely that the determination of all of the issues raised in the Council's summons would depend upon the resolution of the constitutional issues sought to be raised. Prima facie, the allegation that the respondent falsely represented his principal place and intended principal place of practice would not depend at all upon the validity of the sections whose validity he impugns.
I am satisfied that the scale of the applicant's practice in New South Wales could well be relevant to a determination as to the respondent's intention in making the representations upon which the Council relies, as asserted by Norton Rose Fulbright in their letter of 13 September 2019. It does seem to me, however, that some of the paragraphs of the subpoena are too wide, although it was not a ground of the respondent's objection to the subpoena that it was oppressive. For the reasons which were articulated by me during the course of the submissions of counsel for the Council I consider that the scope of the subpoena should be narrowed in the manner which I will now indicate.
The documents sought in paragraphs 8 and 9, 10 and 13 of the subpoena appear to me to be relevant only to the issue upon which there is no admission as to the respondent's place of residence in the period prior to 25 November 2008 to February 2011. Accordingly, paragraph 8 should be amended to require production of the following documents:
"For the period 1 January 2008 to 28 February 2011 copies of all communications with and all documents provided to or received from the Australian Taxation Office in respect of your affairs (ie, in respect of ABN 40849180855) including but not limited to income tax returns; notices of assessment; business activity statements; and any deferred payment arrangements in respect of your taxation affairs, insofar as such documents identify an address for you."
Paragraph 9 should be amended to substitute the date 28 February 2011 for 31 December 2017 and to insert after subparagraph b. a comma in place of the full stop and then to add a new line with the following words: "insofar as they identify an address for you."
In paragraph 10 and in paragraph 13 the date 31 December 2017 is to be amended to 28 February 2011.
I order that the subpoena take effect with those amendments.
Otherwise, I order that the respondent's notice of motion be dismissed.
[The parties addressed on costs.]
I order that the respondent's notice of motion be otherwise dismissed with costs.
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Decision last updated: 23 October 2019