Council of the NSW Bar Association v Lott

NCAT Occupational|2016-11-28

Introduction

The Council of the NSW Bar Association (the Council) has filed an Application in the Tribunal for disciplinary orders against a barrister at law, Mr Patrick Bernard Lott (Mr Lott). The matter has been listed for hearing in April 2017. Mr Lott has filed a Reply to the Council's Application, and each party has lodged evidence including an affidavit by Mr Lott sworn on 26 May 2016.
The Council issued a number of Summonses for the production of documents to two hospitals and to a medical practitioner or the corporate entities through which the medical practitioner carries on practice. Mr Lott objects to three of the Summonses, and asks the Tribunal to set them aside. The Council maintain the documents produced have at least apparent relevance to the proceedings and that access to the documents should be granted to both parties. The Registrar referred the issues relating to the Summonses to me for determination.

The Summonses in issue

The three Summonses relevant to the application relate to documents produced by: 1. XXX 2. YYY 3. ZZZ
The documents identified in the summons to XXX as required for production are: All documents and records relating to the treatment and testing of Patrick Bernard Lott, born 26 December 1976 ("Mr Lott") and without limiting the generality thereof, including radiological films and reports, pathology requests and reports, photographs, clinical notes, operation reports, medical reports (including specialist reports) test results, treatment sheets, including record of treatment as an in-patient or at any hospital.

Documents relied by the parties in this application

In written submissions relied on in support of its position the Council identified the following documents as relevant to the application: 1. The Application for Disciplinary Findings and Orders (the Application) filed 18 December 2015 2. The Reply to application for disciplinary findings (the Reply) filed 1 April 2016 3. Affidavit of Philip Selth (Exhibit PAS1) affirmed 17 December 2015 4. Affidavit of Patrick Bernard Lott sworn 25 May 2016 5. Letter dated 25 October 2016 from Moray & Agnew to Hicksons Lawyers 6. Letter dated 26 October 2016 from Hicksons Lawyers to Moray & Agnew 7. Letter dated 27 October 2016 from Moray & Agnew to Hicksons Lawyers.
Senior Counsel for Mr Lott did not dispute the documents identified above were relevant to the competing applications concerning the three Summonses, but said that the medical report exhibited at page 786 of Mr Selth's affidavit was not relied on by Mr Lott. I will return to that Exhibit shortly.

The substantive proceedings 1. In the substantive proceedings the Council rely on six grounds in the Application. Each ground is supported by multiple and overlapping particulars. It is asserted the practitioner is guilty of unsatisfactory professional conduct or professional misconduct under the provisions of the Legal Profession Act 2004 (NSW) (repealed) arising from his asserted lack of adequate preparation for, and conduct of, a family law matter heard in the Federal Circuit Court of Australia (FCCA). It is further asserted that Mr Lott failed to understand the issues in the case, displayed a general lack of competence and diligence, breached an undertaking given to the FCCA, and made false or misleading statements to the Court as to when he was briefed to appear for his client. 2. The presiding judge published reasons and ordered that the husband in the proceedings pay the wife's costs for two days thrown away on an indemnity basis. His Honour directed the Principal Registrar of the FCCA to forward a copy of his reasons for decision to the Legal Services Commissioner to investigate whether Mr Lott's conduct constituted unsatisfactory professional conduct. 3. Mr Lott disputes a number of the grounds and particulars set out in the Application.

The relevant material in this application

It is convenient to commence my discussion of the competing applications by referring to the Application and Reply. The Application asserts, in a number of the grounds, that the practitioner "failed to reach a standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner and in so doing failed in his duty to the Court and to his client".
In his Reply Mr Lott concedes in respect of Ground 1 he did not prepare adequately for the hearing, but denies his conduct failed to reach the relevant standard, or that he failed in his duty to the Court and to his client. He denies that he failed to adequately present his client's case to the FCCA, that he did not understand the issues in the case, and that he displayed a general lack of competence and diligence. He acknowledges that he did not provide a case outline document in accordance with an undertaking given to the FCCA on the first day of the hearing, and that he made a number of erroneous statements to the Court, but he denies these statements were intended to mislead or deceive the Court.
Mr Lott filed an affidavit in the Tribunal on 25 May 2016. In that affidavit he refers at [19]-[21] to the breakdown of his marriage and his separation from his wife in 2012. He also refers to financial difficulties he experienced after the breakdown of his marriage by reason of his wife no longer providing bookkeeping services for his practice.
Under a heading "After court" at [135]-[138] of his affidavit Mr Lott deposes to extreme distress he experienced after the publication of the presiding judge's reasons and subsequent publicity. He relates obtaining assistance from Barcare including referral for psychological assistance. He deposes, in the week of 1 July 2014, that he consulted a general practitioner and received prescriptions for stress.
On 27 January 2015 the Director, Professional Conduct, NSW Bar Association wrote to Mr Lott seeking a response to the complaints made against him. A reply to that letter was forwarded to the NSW Bar Association by Mr Lott's lawyers on his behalf on 30 March 2015. It annexes a letter from Mr Lott's treating medical practitioner. The letter and the response to it are included in the documents relied on by the Council in the substantive proceedings. Each letter is annexed to Mr Selth's affidavit.
At [2] of Mr Lott's solicitor's letter it is stated: The events the subject of the complaint took place over a few days in May 2014. However, in our view, it is necessary to understand the context in which those events occurred, and the particular circumstances of Mr Lott at the time, in order to properly assess the conduct. The relevant context includes Mr Lott's prior legal experience, as well as personal issues concerning Mr Lott. We set out those below, before proceeding to respond to the particulars of complaint.
Under the heading "Joining the NSW Bar" (in 2011) at [18] the letter states: Unknown to Mr Lott at the time, he was then suffering from a medical disorder which in all probability seriously depleted his energy levels and made him prone to fatigue. Further reference to this condition will be made later in these submissions.
At [76] and [79] of the solicitor's letter details are provided of the practitioner's mental health deterioration after the presiding judge's referral to the Legal Services Commissioner, the assistance of a senior barrister in referring Mr Lott to Barcare and subsequent referral for psychological assistance, and his attendance on his general practitioner. At [83] the letter states: On 11 September 2014 Mr Lott sought medical attention at the [ZZZ]. He was referred for blood tests which revealed a severe deficiency in hormones…Mr Lott has confirmed to us that his medical treatment has resolved his adverse symptomatology.
The solicitor's letter annexed a letter or report (it has no addressee) from a doctor. Senior Counsel for the practitioner stated today that Mr Lott no longer seeks to rely on this letter in his defence of the disciplinary proceedings.
On 25 October 2016 Mr Lott's solicitors wrote to the Council's solicitors objecting to the summons on the basis that: 1. Mr Lott's medical condition is "not an issue in the proceedings. There is, for example, no contention that our client is unfit to practise for medical reasons" and 2. The summonses "are nothing but a fishing expedition".
By letter in response dated 26 October 2016 the Council's solicitors denied that the issue of the summonses was a "fishing expedition" and asserted: Medical treatment undertaken by your client is part of the factual matrix which the Tribunal will be asked to consider. You raised such matters in his affidavit sworn on 25 May 2016 in particular in paragraphs 136 to 140. You also raised such matters on his behalf in your letter to the Bar Association dated 30 March 2015 (in particular paragraphs 18,77,78,79 and 83).

Written and oral submissions of the parties

Council for each of the parties provided me with helpful written submissions which they addressed orally on this application. I record my thanks for those submissions.
As it is the Council who opposes the setting aside of the summonses and that access to the documents produced should be granted to both parties with the right of first access to Mr Lott I turn first to record the thrust of its submissions.
After referring to the correspondence between the parties, particularly the letter of Mr Lott's solicitors of 30 March 2016, the submissions properly concede "that the medical condition is not expressly in issue on the face of the pleadings" or that the proceedings are brought on the basis of impairment which would render Mr Lott unfit to practice. But it is submitted a document may have a legitimate forensic purpose if it has apparent relevance, "or it [sic] if its production might be said to be reasonably likely to add, in the end, in some way or another to the relevant evidence in the case". The submissions go on to refer to the decision in MPJEL Care Pty Ltd v NSW Department of Industry (Vocational Training Review panel) [2016] NSWCATAD 59.
The submissions also note the instant proceedings are professional disciplinary proceedings which are designed to protect the public, the courts, and the "ordering of the legal profession".
The underlying theme of the submissions is that the medical evidence is relevant, or apparently relevant because it may assist the tribunal to distinguish between whether the asserted conduct is unsatisfactory professional conduct or professional misconduct. It is further asserted that medical evidence could be of assistance to the Tribunal in assessing Mr Lott's conduct and what disciplinary orders ought to be made.
The submissions conclude that it was Mr Lott himself in his formal reply to the investigation of the complaint who raised his medical condition and financial implications of his marriage breakdown as part of the context in which the events occurred. Consequently, the Council argue that "he has expressly acknowledged the apparent relevance of those matters in the context of the allegations now before the tribunal".
In his oral and written submissions Senior Counsel for Mr Lott expressly disavowed any reliance by Mr Lott on his physical or mental capacity to carry out his duties as a legal practitioner either during the relevant period or since.
It is asserted on Mr Lott's behalf that the medical records have no substantive or adjectival relevance to the proceedings, and consequently the summonses are an abuse of process. It is submitted: 1. the medical records do not relate to a direct proof of any factual issue in the proceedings; 2. there is no likelihood the medical records could throw light on the issues in this case which are defined as negligence, misleading the Court and failure to honour an undertaking.
It is further asserted that the submission that the medical evidence could assist the Tribunal in reaching findings of unsatisfactory professional conduct and/or professional misconduct would mean that every barrister's medical records would be relevant in every proceedings brought before the Tribunal by the Council regardless of whether the barrister himself [or herself] raised his [or her] medical history as a matter of record.

Relevant provisions of the Civil and Administrative Tribunal Act, rules and regulations

Section 48 of the Civil and Administrative Tribunal Act 2013 (NSW) (the Act) provides that a Summons can be issued by a registrar.
Part 8 of the Civil and Administrative Tribunal Rules 2014 (the rules) deal with the issue and service of a summons (Cl 1 - 8).
Part 2 Cl 7 (1), (2) and (3) of the Civil and Administrative Regulation 2013 (the regulations) deal with payment of allowances and expenses for a witness who is required to attend and give evidence. These regulations are broadly analogous to those found in the Uniform Civil Proceedings Rules 2005 dealing with subpoena. Neither the rules nor the regulations are relevant to this application.
The Tribunal has issued a procedural direction on the topic of summonses. Section 26(1) of the Act requires each member and the parties to the proceedings and their representatives comply with any applicable procedural direction.
Paragraph 31 of Procedural Direction 2 sets out a number of common objections which may be raised in respect of a summons. Paragraph 31(d) is: the evidence, documents or other things identified in the summons are not relevant to any issue in the proceedings.
Paragraph 31 requires the parties to endeavour to resolve any issue in dispute about a summons before the time of compliance.
Paragraph 37 provides that if a person believes there may be grounds for objecting to one or more parties having access to the documents produced that person can object to the parties being given access or can ask for "first access" to the documents in order to check what the documents contain. There was no request by Mr Lott to have "first access" to the documents but I note that the Council indicated if leave is granted to inspect the documents, no objection would be raised to Mr Lott having first access.

Legal Principles

Both parties' legal representatives submitted that authorities which are directed to the setting aside or granting inspection of documents under a subpoena provide a basis for dealing with this application. I accept the relevance of that submission, particularly in professional disciplinary proceedings in the Legal Services List where the rules of evidence apply.
Senior counsel for Mr Lott drew my attention to two decision which emphasise documents required to be produced under summons should be those which have a "legitimate forensic purpose" and not a "fishing expedition" (see NSW Commissioner of Police v Tuxford [2002 NSWCA 139; Principal Registrar of the Supreme Court v Ali Tastan (1994) 74A CrimR 498 per Barr AJ. Other well-known authorities also refer to the "legitimate forensic purpose" test (see Commissioner for Railways v Small (1938) 38 SR (NSW) 564; National Employers' Mutual General Association v Waind and Hill (1978) 1 NSWLR 372 [1978] (see also National Employers' Mutual General Association v Waind & Hill (1979) 141 CLR 648 [1979] HCA 11.
It is not in dispute a party seeking access to documents produced under subpoena (or in this case summons) carries "at least a forensic onus of identifying how the documents called for by the notice are said to relate to a fact in issue in the case" (see Norris v Kandiah [2007] NSWSC 1296).
In One.Tel Ltd (in Liq) - Singtel Optus Pty Ltd v Weston [2010] NSWSC 1491 Ward J (as her Honour then was) reviewed the authorities, both criminal and civil, dealing with documents whose production has been sought under a Notice to Produce or subpoena.
Her Honour cited as relevant Brereton J's statement in Portal Software v Bodsworth [2005] NSWSC 1115. His Honour noted the test as being whether the documents have: A sufficient apparent connection to justify their production or inspection.
Senior counsel for Mr Lott succinctly described alternate bases on which documents may demonstrate a legitimate forensic purpose by demonstrating substantive relevance or adjectival relevance. He submitted: "Substantive" relevance (relating to direct proof of a factual issue in the proceedings) or "adjectival" relevance" relevance which encompasses the notion that it is "on the cards" that the material sought to be produced will throw light on issues in the case.
In criminal proceedings (Attorney General (NSW) v Chidgey [2008] NSWCCA 65 Beazley JA rejected the argument that mere relevance might be sufficient to establish a legitimate forensic purpose.
Ward J in One.Tel Ltd noted that Brereton J explained to satisfy the adjectival relevance test, as distinct from substantive relevance, "will be … if the material has apparent relevance and is established if the documents called for "could possible throw light on the issues in the main case".
Although judges in a number of cases have followed the test as enunciated by Brereton J in Portal Software that a legitimate forensic purpose will be established if it appears "on the cards" that the documents sought will materially assist, Ward J explained in One.Tel Ltd that the "on the cards" test has not been broadly embraced and referred to the decision of Nicholas J in ICAP Pty Ltd v Moebes [2000] NSWSC 306.
At [31] in One.Tel Ltd Ward J adopted the reasoning of Nicholas J in ICAP saying: Applying in this case the test in civil proceedings, as stated by Nicholas J in ICAP (namely that "it must be shown that it is likely the documentation will materially assist on an identified issue, or there is a reasonable basis beyond speculation that it is likely that the documentation will", at [30]) and noting that it must be reasonable to infer that the documents so sought exist, a careful consideration is required of the issues in the proceedings to which the subpoenaed documents are or may be of relevance in order to assess whether there is a legitimate forensic purpose served by the subpoena.
In ICAP Australia Pty Ltd v BGC Partners (Aust) Pty Ltd [2009] NSWCA 307 Tobias JA referred to the use of the word "likely" in the context of "likely to materially assist an identified issue" as being any different from "on the cards".

Discussion

I accept that prima facie the summonses do not appear to be a "fishing expedition". They are not being sought as an alternative to discovery. It is not improperly sought to use the documents to establish a case against Mr Lott such a claim he is not fit to practice by reason of impairment. Mr Lott disclosed to the Council the names of the entities XXX, YYY and ZZZ. Mr Lott raised in his response to the Council as the relevant underlying criteria to his conduct in the FCCA his marriage breakdown, financial stress and his health.
The documents which the Council seek being medical records of the practitioner do not on my reading of the six complaints demonstrate that they would offer direct proof of a factual matter in the proceedings. I do not consider that inspection on that basis is established.
Mr Lott's Reply and the relevant material in his affidavit are on the surface directed to circumstances occurring after the publication of the presiding judge's reasons and publicity. His consequent treatment and referral to a medical practitioner were events that occurred after the conduct the subject of the complaint. If his evidence was confined only to those parts of the Reply and Mr Lott's affidavit post the FCCA proceedings I could not be satisfied that the Council has established that the records if produced would materially assist on an issue identified in the proceedings at least in respect of findings on the complaints. They may possibly have some relevance when the tribunal considers an appropriate penalty if the complaints of unsatisfactory professional conduct or professional misconduct are established.
Disregarding the medical report exhibited at page 786 of Mr Selth's affidavit, the relevance, Mr Lott's response to the complaints in the correspondence from his solicitors to the Council dated 30 March 2015 at [2] and [18] raises issues about his competence by reason of the breakdown of his marriage, financial stress. That evidence is in part reproduced in his affidavit relied on in the proceedings. Further at [76] he refers to the fact his mental health "deteriorated quite substantially" after the presiding judge requested the Principal Registrar of the FCCC to refer the papers to the Legal Services Commissioner. The use of the word "deteriorates" connotes a pre-existing condition exacerbated by the referral.
The principal basis on which the Council assert the material "going to the medical treatment afforded to the respondent in the context of the complained conduct is capable of meaningfully bearing on" whether the practitioner's conduct constitutes unsatisfactory professional conduct or professional misconduct´. It is also asserted the medical records are likely to assist the Tribunal in determining what orders should be made under s 597 of the Legal Profession Act if unsatisfactory professional conduct or professional misconduct are established.
Unsatisfactory professional conduct is defined in s 496 Legal Profession Act 2004 (NSW) as follows: For the purposes of this Act: "unsatisfactory professional conduct" includes conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.
Professional misconduct is defined in s 497 as follows: (1) For the purposes of this Act: "professional misconduct" includes: (a) unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence, and (b) conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice. (2) For finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the matters that would be considered under section 25 or 42 if the practitioner were an applicant for admission to the legal profession under this Act or for the grant or renewal of a local practising certificate and any other relevant matters.
The practitioner's medical treatment post-dates the events the subject of the complaint. On the surface that fact suggests the documents should not be relevant to the context of the complaint. If the practitioner had not raised his underlying circumstances in his correspondence with the Council I would be satisfied that the Council had satisfied the adjectival relevance of the documents.
In this case however, I am satisfied that the argument advanced on Mr Lott's behalf that every barrister's medical records could be subject of a summons for production in professional disciplinary proceedings must be discounted. Here Mr Lott has raised as a relevant consideration, in determining his competence in the FCCA proceedings, his marriage breakdown, financial stress and his health. I am satisfied this may bear light on whether his conduct before the FCCA was negligent.
The matters the tribunal may consider under s 496 include whether Mr Lott's conduct in the FCCA falls short of the expected level of competence and diligence that a member of the public is entitled to expect from an Australian legal practitioner. Under s 497 the tribunal is required to assess whether a practitioner's conduct constitutes is a substantial failure to reach the level of reasonable competence and diligence. Each of the three matters Mr Lott raises, which includes his health, is likely to require examination and consideration.
Even if I am wrong about my conclusion about adjectival relevance for the issue of findings on the particulars pleaded in the complaint, I am satisfied that it is likely that the practitioner's health issues in 2014 will materially assist the tribunal determine appropriate final orders that are designed, amongst other matters, to protect the public (see Health Care Complaints Commission v Do [2014] NSWCA 307). Accordingly I am satisfied the documents sought in the summonses have adjectival relevance.
In light of the Council's concession that Mr Lott's legal representative should be granted first access to the documents I propose to so order.

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 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: 11 July 2019

Legal Profession Act 2004(NSW)

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