Background
5There is a considerable history leading to the instant proceedings.
6The Applicant was admitted to the roll of legal practitioners on 18 December, 1991. He has held practising certificates from 1 January, 1992 until 24 October, 2010. The last practising certificate held by the Applicant which entitled him to practise as an employed solicitor and barrister was issued to him for the period 1 July 2010 to 30 June 2011 in about September 2010.
7A sequestration order had been made against the Applicant on 15 June 2010. This appears to have been notified by the Applicant to the Law Society on 25 June, 2010. It seems that documents were sought from the Applicant by the Law Society and amongst Australian Taxation Office documents provided by him it was ascertained that on 2 March, 2005 the Applicant had been convicted in the Local Court Parramatta for failing to lodge an income tax return for the year ending 30 June 2003. This tax offence had not previously been disclosed by the Applicant.
8Both the sequestration order and the tax offence were show cause events pursuant to Div 7 of Pt 2.4 Legal Profession Act 2004 ('the LPA').
9The relevant section of Div 7 is S66 which provides:
"66 Applicant for local practising certificate-show cause event
(1) This section applies if:
(a) a person (referred to in this Division as "the applicant" ) is applying for the grant of a local practising certificate, and
(b) a show cause event in relation to the person happened, whether before or after the commencement of this section and whether before or after the person was first admitted to the legal profession in this or another jurisdiction.
(2) As part of the application, the applicant must provide to the appropriate Council a written statement:
(a) about the show cause event, and
(b) explaining why, despite the show cause event, the applicant considers himself or herself to be a fit and proper person to hold a local practising certificate.
(3) ........
(4) ........
(5) ........
(6) ........
(7) ........
(8) ........
10By letters dated 25 June 2010, the Law Society issued formal notices to the Applicant under S 68 of the LPA requesting him to provide specific information from the Australian Taxation Office. Those documents were provided to the Society on 4 August 2010. On 9 September 2010 the Applicant provided a copy of his Statement of Affairs. Amongst the materials provided was a statutory declaration of 7 September 2010. After that was received by the Law Society the Applicant's practising certificate for the 2010/2011 year was issued.
11Thereafter, further questions were put to the Applicant by the Law Society in a letter dated 23 September, 2010. The relevant parts of that letter read as follows:
...."Having reviewed the Society's files, there appear to be outstanding a number of matters which you have been asked to address as well as questions which clearly remain unanswered from prior correspondence.
Firstly, there remain the matters raised in the report of Mr Gore of 19 April 2007 [a copy of which was provided to you by Miss Dobosz of the Society]. Not only the non payment of Mr Foster's fees and your undertaking to Messrs Verekers, but the apparent relationship with Mr Cofini who, you no doubt understand, is a disqualified person for the purpose of the Legal Profession Act, 2004. As the matter stands, there does not appear to have been received from you any response to that report and the serious matters it deals with. Please let me have same without delay.
More closely aligned to your recent show cause disclosures, I need from you a very clear explanation of your relationship with the various entities referred to in the material from the Australian Taxation Office and how it is that the various amounts owed by a number of entities were ascribed to you and which, in due course, would found the bankruptcy. For example, what was your relationship with the Lazarus Family Trust and how did the tax indebtedness come to be.
You have referred to a Mr Vincent having acted as your accountant. Would you please provide his contact details and an authority by which the Society can contact him and request information as to your tax position over the years, both individually and otherwise. If Mr Vincent did not attend to the affairs of the Lazarus Family Trust and the other corporate entities, please advise who did and provide appropriate authorities.
Please advise as to any results of your enquiries as to how the tax conviction came to be recorded against you.
You indicated that the property at Strathfield had been inherited by you and on which you were able to borrow the $150,000 advanced to Mr Fredericks [funds which you recouped]. You also indicated that the practice was very busy and that you were under a clear impression that the practice was financially viable. As you have not disclosed any substantial assets in your Statement of Affairs, please advise of your assets, both real property and otherwise, which you have held since your appointment as Manager to Mr Frederick's former practice and when disposed of [including mortgages, sale/purchase price etc.].
Please advise of any holidays and travel over the past five (5) years and approximate costs thereof.
Please also advise of any other activity, recreational or otherwise which has been a financial drain over the past five (5) years.
Finally, in your Statement of Affairs you refer to proceedings brought by "Luopoulos" in the District Court [proceedings number 1515/09]. Please advise as to the nature of the proceedings.
I note that you are making enquiries of the ATO in respect of the proceedings which had been brought in the Local Court. You will no doubt inform me of the outcome of those enquiries.
I remind you that this matter must be dealt with by no later than 24 October 2010 and failing which, the Society is bound to refer the papers to the Legal Services Commissioner for him to make a final determination in the matter. Consistently, please note that any Practising Certificate held by you will be automatically suspended whilst the matter remains outstanding.
I note your comment that this matter has been outstanding 'far too long' - it is therefore imperative that you give it your immediate and absolute attention. You have already failed to comply with an undertaking to provide typed information."
12By letter of 13 October, 2010 the Applicant requested that his practising certificate be cancelled and purported to withdraw his show cause notification. He was advised that the practising certificate could not be cancelled where a matter was under consideration.
13As of 24 October 2010, which was the end of the extended 'required period' under S 68(5), the material provided to the Law Society was insufficient to enable the Council to make a determination whether or not the Applicant was a fit and proper person to hold a practising certificate. The result was that, under S 70(1) of the LPA, the determination of the show cause event passed to the Legal Services Commissioner and the Applicant's practising certificate was suspended.
14After the Commissioner took over the determination, correspondence passed between his office and the Applicant between October 2010 and 18 February, 2011. In that final letter the Commissioner sought further information and specific answers to questions asked of the Applicant in earlier correspondence from the Law Society.
15On 11 March 2011 the Applicant applied to the Administrative Decisions Tribunal, Legal Services Division, seeking an order for the lifting of the suspension of his practising certificate (proceedings No. 112005 heard on 8 June, 2011 before Deputy President Mr D. Patten, Mr. J. Currie (Judicial member) and Ms. E. Hayes (Non-judicial member).
16On 9 June, 2011, the Tribunal dismissed the application, on the basis that the Applicant had not supplied the explanations sought by the Commissioner and that the application was futile because the year relevant to the practising certificate was at an end.
17On 13 January 2012 the Applicant filed a Summons in the Supreme Court of New South Wales, Common Law Division seeking relief by way of declaration that he was not a disqualified person and an order that he be granted the right to apply for an unrestricted NSW Solicitor's practising certificate forthwith upon the basis that he was a fit and proper person to be granted same.
18On 16 March 2012 the Supreme Court made orders by consent (in relation to the Summons filed 13 January, 2012) that the Summons be dismissed and that the Applicant pay the Law Society's costs of and incidental to the Summons.
19On 3 August, 2012 the Applicant lodged an application for a practising certificate for the period 1 July 2012 to 30 June 2013.
20On 20 September 2012 the Law Society resolved to refuse the application on the basis that as at the time of the August 2012 application being lodged the Applicant had not answered the questions asked of him by the Legal Services Commissioner in letters dated 29 October, 2010, 23 December, 2010 and 18 February, 2011. The Law Society's decision was notified to the Applicant in a Revised Information Notice given pursuant to S 68(8) of the LPA on 22 October, 2012. The Notice drew attention to his rights of review under S 75 LPA which provided that he could apply to the Tribunal for a review of the decision and thereafter, to the NSW Court of Appeal pursuant to S 729A of the Act.
21The Law Society had earlier issued an Information Notice to the Applicant noting the terms of the resolution of 20 September but informing him, wrongly, that he had a right of appeal under S 108 of the LPA to the Supreme Court. The Revised Notice corrected that statement. However, prior to the Council resolving that he was not a fit and proper person the Plaintiff had filed a Notice of Motion dated 11 September, 2012 in the proceedings filed in January, 2012 that had been dismissed by consent in March, 2012. The Plaintiff sought to re-file that Notice of Motion and file an affidavit in support when he appeared before Schmidt J on 12 September, 2012. Her Honour declined to permit those documents to be filed.
22On 26 September 2012 the Applicant handed to the Supreme Court two documents relevant to the Notice of Motion which he had unsuccessfully attempted to file when he appeared before Schmidt J on 12 September, 2012. Those two documents purported to be a Summons and an affidavit in support. The Summons sought a declaration that the Applicant was a fit and proper person; a declaration that the Applicant be granted a NSW practising certificate forthwith together with procedural order relating to short service and damages to be assessed. At the request of the Law Society the matter was relisted before the court when directions were made for the filing and serving of documents by the Applicant including a fresh Summons, a Statement of Claim re the damages and Affidavits.
23On 6 December, 2012 the Applicant filed a Summons which under the heading TYPE OF CLAIM contained the following:
(a)Reinstatement of NSW Solicitor's practising certificate having been suspended;
(b)Declaration that I am a fit and proper person to hold same above;
(c)Damages for economic loss;
(d)Punitive damages;
(e)Interest upon orders.
24The same things appeared under the heading RELIEF CLAIMED.
25On 6 December, 2012 the Applicant also filed a Statement of Claim. Under the heading TYPE OF CLAIM the following appeared:
(a)Reinstatement of suspended practising certificate;
(b)Declaration that I am a fit and proper person;
(c)Damages for past and future economic loss and interest.
26The same thing appeared under the heading RELIEF CLAIMED. Under the heading PLEADINGS AND PARTICULARS the following appeared:
(a)Solicitor's practising certificate suspended late Oct 2010 (s 70 LPA)
(b)Notice of refusal to issue fresh certificate 20 September 2012;
(c)Plaintiff is unemployed and precluded from employment in a legal firm;
(d)Plaintiff needs expert assessment of economic loss;
(e)Plaintiff bases damages upon failure by Defendant to exercise judicial and administrative failures (sic).
27No further affidavits were filed by the Applicant.
28On 16 January, 2013 the Law Society wrote to the Applicant pointing out a number of difficulties with the documents which had been filed by him. In particular, the letter pointed out that the Statement of Claim did not identify the cause of action upon which the Plaintiff sued. Particulars were sought of a number of matters in the Statement of Claim. In addition, the Law Society pointed out to the Plaintiff that unless proper particulars were provided the Society may move to strike out the Statement of Claim under r 14.28 UCPR. In any event, the Society reserved its rights to seek a summary dismissal under r 13.4 UCPR on the basis that no reasonable cause of action was disclosed and that the proceedings were frivolous or vexatious or an abuse of process.
29On 23 January, 2013 the Applicant faxed a letter purporting to provide the particulars requested. The letter did not contain any identification of the cause of action upon which the Plaintiff sued.
30On 27 February, 2013, in Weston v. Law Society of New South Wales [2013] NSWSC 94 Davies J. dismissed the Supreme Court proceedings. In doing so, His Honour said:
"35. There are two separate aspects to the Plaintiff's claim and the Law Society's application to dismiss the proceedings. The first concerns the relief claimed for a reinstatement of the practising certificate and a declaration that the Plaintiff is a fit and proper person.
36 The relief for the reinstatement of the suspended practising certificate is misconceived. Practising certificates are issues each year for the period ordinarily commencing 1 July in any year. The practising certificate which was suspended in 2010 cannot now be reinstated.
37 However, if what the Plaintiff was really intending to achieve was the issue of a practising certificate for the current year, the only way this could be achieved would be to apply for the review available from the Law Society's refusal to grant him a practising certificate on 20 September 2012. The appropriate right of review is found in S 75 LPA and is to the Administrative Decisions Tribunal as set out earlier in this Judgment. The provisions of S 108, permitting an appeal to this Court, do not apply to decisions made under Division 7 of Part 2.4 LPA concerning show cause events.
38 The Plaintiff's response to that and his explanation for seeking the declaration that he is a fit and proper person is that this Court (he says) is responsible for determining if someone is a fit and proper person to be admitted as a lawyer. Moreover, he said, if he is dissatisfied with any determination of the Administrative Decisions Tribunal he is entitled to appeal to this Court.
39 I reject the Plaintiff's submissions for these reasons. First, his proceedings are not concerned with his being admitted as a lawyer; they are concerned with his right to a practising certificate (see the distinction made in SS 5 & 6 LPA). Secondly, it is the Admission Board who, in the first instance, determines whether a person is fit and proper for admission (see SS 25, 26 and 31 LPA) but not for the obtaining of a practising certificate. The Law Society Council or the Bar Council determine who is a fit and proper person for the purpose of issuing a practising certificate (SS 41 and 42 LPA) The right of review from such a determination is to the Tribunal. Thirdly, the determination of fitness and propriety to remain on the roll as a lawyer is by the Court of Appeal, and any appeal from the ADT regarding practising certificates lies to the Court of Appeal and not to a single judge of the Common Law Division of the Court.
40 The relief for reinstatement of the practising certificate, even if understood as meaning relief by way of appeal from the Law Society's refusal in September, 2012 is misconceived. Similarly, where there is a statutory right of appeal that does not include a single judge of the Common Law Division it would be entirely inappropriate for a single judge to make a declaration concerning his fitness and propriety.
41 There is the further consideration that the Plaintiff's proceedings that were commenced in January, 2012 were dismissed by consent. Those proceedings sought the same relief as the present proceedings seek (except the present claim for damages). In Nominal Defendant v Manning (2000) 50 NSWLR 139 Heydon JA said at [72] that a litigant bringing a second application where circumstances have not changed on evidence available earlier faced serious and self-created risks of an adverse exercise of judicial discretion. That was said in respect of interlocutory applications. It may have greater force in respect of interlocutory applications. It may have greater force in respect of final relief even if the earlier dismissal here did not produce a res judicata. It is not necessary to decide this matter because, for the reasons I gave earlier, the claim for this relief is hopeless and is doomed to fail.
42 The second aspect to the relief sought is the claim for damages.
43 Section 730 LPA relevantly provides:
730 Protection from liability
No liability is incurred by:
............
(b) the Law Society or the Law Society Council, or their committees, including a Management Committee to which a function is delegated under section 426 (Management Committee)
........
or an employee or agent of, or a person acting at the direction of, any of them for anything done, suffered or omitted to be done in good faith in the exercise, or purported exercise, of a function under this Act.
44 Nowhere is it alleged in the pleading or elsewhere that in coming to its determination on 20 September 2012 there was a lack of good faith on the part of the Law Society or its Council or employees. Nothing in the affidavit filed by the Plaintiff makes any such assertion nor provides any evidence which could lead to an inference of a lack of good faith. There is nothing in the reasons proffered by the Law Society Council for the determination that it made that could lead to an inference of a lack of good faith.
45 In my opinion that is sufficient to demonstrate that the claim for damages is not based on any reasonable cause of action
46 Furthermore, what purports to be the pleading of the cause of action does not by any means satisfy the requirements of the Rules and good practice to proper pleading and particularisation The importance of proper pleading has been emphasised in a number of cases particularly Kirby v Sanderson Motors Pty Ltd (2001) 54 NSWLR135 at [20] - [21] and McGurk v University of New South Wales [2009] NSWSC 1424 at [21] - [35] - see also Udowenko and Ors v Chief Executive Officer and Board of Directors of St George Bank - a Division of Westpac Banking Corporation and Ors [2011] NSWSC 867 and Constantinidis v. Kehagiadis [2011] NSWSC 974 at [7] - [12].
47 In this regard it is to be recalled that the Plaintiff, although appearing for himself, is not untrained or unversed in what is required for proper pleading. Not only has he been a solicitor since 1991 but he asserted in Court that as a solicitor he had been a litigator. In my opinion, no particular allowance should be made for the Plaintiff on the basis that he does not have legal representation. However, even if the Plaintiff had not been a lawyer the pleading contained in the Statement of Claim could not be allowed to remain in its present form. The only issue is whether the pleading should merely be struck out with the Plaintiff given leave to repealed or whether the claim for damages should be dismissed.
48 In my opinion the proceedings should be dismissed. The lack of any material suggesting a lack of good faith on the part of the Law Society points to a high probability that the Plaintiff cannot succeed in the claim for damages. Furthermore, the Plaintiff undoubtedly committed two show cause events which have not been satisfactorily explained either to the satisfaction of the Legal Services Commissioner nor to the Council of the Law Society.
49 Moreover, the suspension of his practising certificate in 2010 came about by force of S 70(1) LPA. That suspension remains in force until the Commissioner decided that he is a fit and proper person. Interestingly, on 13 October 2010 (11 days before the expiry of the 'required period') the Plaintiff asked that his practising certificate be cancelled. He was told that that was not possible when the matter was under consideration.
50 There is a right to approach the Tribunal to remove the suspension imposed by S 70. The Plaintiff did that but was unsuccessful. He did not thereafter apply for a practising certificate until 24 January 2012, nine days after he filed his Summons in this Court (referred to in paragraph 13 above).
51 The Law Society informed him by letter of 7 February 2012 that before a practising certificate could be issued the Plaintiff would have to provide answers to matters asked of him by the Legal Services Commissioner in his letters of 29 October, 2010, 23 December, 2010 and 18 February, 2011. Apart from sending some documents to the Law Society on 27 March 2012 the Plaintiff did not respond to the matters asked of him until 18 June 2012. Thereafter he made the application for a practising certificate on 31 July, 2012.
52 In circumstances where the suspension was imposed by statute, the Plaintiff had sought the cancellation of the practising certificate, the Tribunal rejected his application for review, the Plaintiff had consented to the dismissal of his proceedings in this Court filed in January 2012 and his failure thereafter to apply for a practising certificate until 31 July 2012, the claim for damages would be doomed to fail even if the requirement to show a lack of good faith did not obtain. "
31On 10 April, 2013 the Applicant made a second application for the issue of a practising certificate for the year ended 30 June, 2013 (the 2013 Application).
32On 30 May, 2013 the Applicant filed the Application for Review referred to in the first paragraph of these Reasons.
33On 20 June, 2013 the Law Society Council resolved to refuse the second application the relevant resolution being as follows:
"Resolved that the application made by David Harold Weston [and received 11 April 2013] for a Practising Certificate for the year ending 30 June 2013 be refused under S 66(7)(b) of the Legal Profession Act 2004 on the basis that Mr. Weston has failed to show in his written statements about the following show cause events:
(i) the making of a sequestration order against him on15 June, 2010;
(ii) his conviction in the Local Court at Parramatta on 2 March 2005 for failing to lodge an income tax return for the year ending 30 June, 2003;
that he is a fit and proper person to hold a Practising Certificate'.
34On 20 June 2013 the Applicant made an application for the issue of a practising certificate for the year ended 30 June 2014 (the 2014 Application).
35On 25 June, 2013 the Information Notice in relation to the refusal of the second application was issued.
36On 18 July, 2013 the Law Society Council refused the 2014 Application the relevant resolution stating:
" Resolved that the application made by David Harold Weston [received 21 June, 2013] for a Practising Certificate for the year ending 30 June 2014 be refused under s 66(7)(b) of the Legal Profession Act 2004 on the basis that Mr. Weston has failed to show in his written statements about the following show cause events:
(i) the making of a sequestration order against him on 15 June 2010;
(ii) his conviction in the Local Court at Parramatta on 2 March 2005 for failing to lodge an income tax return for the year ending 30 June 2003,
that he is a fit and proper person to hold a Practising Certificate"
37On 19 July, 2013 the Information Notice in relation to the refusal of the 2014 Application was issued which attached the 22/10/2012 Revised Information Notice in relation to the refusal of the First Application.
38On 4 September, 2013 the Applicant commenced Supreme Court proceedings 2013/268026 against the Law Society and the State of NSW seeking damages, punitive and exemplary damages and interest.
39On 19 November, 2013 on the application of the Law Society, Harrison J dismissed the Supreme Court proceedings on the basis there was no cause of action available on the documents filed by the Applicant in the proceedings.
40On 23 September, 2013 the Applicant filed his Amended Application for Review pursuant to S 75 of the LPA which is the application for determination before us.