Solicitors:
Self-Represented (Appellant)
Council of the Law Society of New South Wales (Respondent)
File Number(s): 2016/173022
Decision under appeal Court or tribunal: New South Wales Civil and Administrative Tribunal
Jurisdiction: Occupational Division
Citation: [2016] NSWCATOD 40
Date of Decision: 08 April 2016
Before: D Patten, Principal Member, S Hale, Senior Member, R Fitzgerald, General Member
File Number(s): 1520035
[2]
[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.]
[3]
Judgment
On 8 April 2016, the Civil and Administrative Tribunal of New South Wales (NCAT), made orders on an application by the respondent, the Council of the Law Society of New South Wales (the Council), for disciplinary findings and orders against the appellant, Mr Michael Griffin. The Council's application arose out of a letter written by Mr Griffin, a solicitor, on 31 July 2014 to the associate to Foster J, a justice of the Federal Court of Australia, following the publication on 30 July 2014 of Foster J's reasons in Shears v Deputy Commission of Taxation [1] (the July Letter). The ground upon which the Council sought disciplinary findings and orders was that the contents of the July Letter were grossly discourteous to Foster J.
Mr Griffin would have characterised the terms of the July Letter as being "at worst a breach of etiquette". However, in its reasons of 8 April 2016, NCAT found that it went far beyond a mere breach of legal etiquette. NCAT characterised the terms of the letter as "grossly offensive" and was comfortably satisfied that, by writing the July Letter, Mr Griffin departed so far from the conduct expected of a solicitor of good reputation and repute that he was guilty of professional misconduct. NCAT found accordingly.
Having found professional misconduct, NCAT then had regard to the consequential orders provided for in s 562 of the Legal Profession Act 2004 (NSW) as in force at the relevant time. In deciding what order should be made, NCAT took into account what it regarded as the total absence of any insight by Mr Griffin into how far he departed from the norms of professional conduct. That was said, despite the fact that Mr Griffin acknowledged the terms of July Letter were at least "rude", and, under cross-examination, expressed a measure of regret at the language he had used.
NCAT concluded that, although Mr Griffin's conduct in writing the July Letter stopped short of requiring a finding of present unfitness to practise, something more than a reprimand was needed. NCAT accepted the submission of the Council that Mr Griffin should be required to undertake further education in the ethics of the legal profession. It considered that Mr Griffin's assertion that he would not benefit from such further education reinforced the need for it.
NCAT then made orders in which it found that Mr Griffin was guilty of professional misconduct, and ordered that he be reprimanded. However, NCAT then made further orders which exhibit some degree of lack of care in their formulation.
Relevantly the orders were as follows:
1. "The Solicitor Michael … Griffin is guilty of Professional Misconduct.
2. The Solicitor is reprimanded
(a) The Solicitor, at his own expense, is to undertake within 6 months of the date of the orders made by [NCAT] … a course in Legal Ethics that is approved by the Manager of the Professional Standards Department of the Law Society and therein achieve a pass mark of not less than 50% (Pass Mark);
(b) The Solicitor will within seven (7) days of receipt of the result of the course in Legal Ethics, provide the Manager of the Professional Standards Department the original result notification from the provider of the course in Legal Ethics;
(c) Should the Solicitor fail to achieve the Pass Mark, he shall complete any further course in Legal Ethics approved by the Manager of the Professional Standards Department until such time as he achieves the Pass Mark;
(d) Should the Solicitor fail to achieve the Pass Mark within the time period in 2 above, his practising certificate shall be suspended until such time as he achieves the Pass Mark." [emphasis added]
The phrase "within the time period in 2 above" was taken from the language used by the Council in its original application to NCAT for disciplinary findings and orders. In the Council's application, the orders that it sought corresponded almost verbatim with paras (a), (b), (c) and (d) above, except that para (a) was numbered "2", and paras (b), (c) and (d) were numbered respectively "2.1", "2.2", and "2.3". In that context, it is clear enough that the "time period in 2 above" was intended to refer to the period of six months from the date of the orders made by NCAT. Be that as it may, the orders exhibit a degree of ambiguity.
Between April 2016 and September 2016, there was correspondence between Mr Griffin and the representatives of the Council concerning variation of the reasons given by NCAT, the determination of an appropriate course on legal ethics that might be undertaken by Mr Griffin, and subsequently concerning the prosecution of the proceedings in the Supreme Court and then in the Court of Appeal.
On 18 April 2016, Mr Griffin lodged with NCAT a form of application to set aside or vary the decision of 8 April 2016. That application was not served on the Council but it was foreshadowed in earlier communication. Essentially, Mr Griffin sought variation of the reasons of NCAT by removal of references to personal information concerning him in the reasons.
However, towards the end of the form, Mr Griffin responded to a question: "Are you asking for a stay on any of the orders?" by marking the box for "yes". In response to the form's requirement to explain which orders were to be stayed and why a stay was necessary, Mr Griffin simply said, "Applicant Griffin appealing decision". In the light of that somewhat cryptic statement, it is perhaps not surprising that NCAT took no further steps in relation to the indication that a stay was sought.
On 6 May 2016, Mr Griffin commenced proceedings in the Common Law Division, by filing a summons commencing an appeal from the orders made by NCAT. Those proceedings should have been commenced in the Court of Appeal and, in due course, the proceedings were removed into this Court, as proceeding number 2016/173022.
In any event, it appears that Mr Griffin enquired of NCAT some time later as to why his application for a stay had not been processed. He was informed that NCAT would not deal with the matter because he had taken the matter to the Supreme Court by way of appeal, and he could make an application there.
By letter of 19 July 2016, the Council informed Mr Griffin that his appeal did not act as a stay of NCAT's orders. In response, on 22 July 2016, Mr Griffin informed the Council, for the first time, that he had applied to NCAT for a stay but had received no reply. On 1 August 2016, Mr Griffin told the Council that if he did not hear by 5 August 2016 whether the Council would oppose or consent to an application for a stay, he would file for a stay at his earliest convenience. On 12 September 2016, Mr Griffin finally filed a notice of motion in this Court seeking orders to which I shall refer shortly.
In the meantime, Mr Griffin's appeal had been fixed for hearing on 3 November 2016. That order was made by the Registrar on 24 August 2016. Mr Griffin did not oppose the setting of the appeal down for hearing.
In his motion of 12 September 2016, Mr Griffin seeks, relevantly, four orders to the following effect:
(1) Enforcement of the orders made by NCAT on 8 April 2016 be stayed until six months after the determination of the appeal;
(2) In the alternative, enforcement of the orders of NCAT made on 8 April 2016 be stayed until six months after the determination "of this matter by the High Court of Australia";
(3) The proceedings in the Court of Appeal be stayed pending the outcome of the High Court's determination of Mr Griffin's application for removal of this matter to that court;
(4) The date set down for the hearing of the appeal be vacated.
In addition, Mr Griffin sought an order that the parties be at liberty to apply on three days' notice.
The reference to an application to the High Court for removal of the proceedings into the High Court anticipated an application that was not in fact filed in the High Court until 19 September 2016. By that application, Mr Griffin applied for an order under s 40 of the Judiciary Act 1903 (Cth) removing the whole of the case now pending in the Court of Appeal as proceeding number 2016/173022.
The question of whether to grant a stay in an appeal such as this, involving the conduct of a legal practitioner, requires that a number of factors be taken into account as follows:
the seriousness of the misconduct found;
the likely prejudice to public confidence, both in the integrity of the disciplinary processes themselves and in the reputation of the profession if the practitioner is granted a stay;
the means available to mitigate the prejudice alleged;
the expedition with which the appeal can be heard. [2]
In Berger's Case, the orders from which an appeal was brought and in respect of which a stay was sought included an order that the practising certificate of a solicitor be suspended. Thus the primary decision maker in Berger's Case considered that the solicitor in that case was unfit to continue practising for the time being.
That is not the case here. The decision of NCAT was given on 8 April 2016 after a hearing on 7 September 2015. In the meantime, there was no suggestion that Mr Griffin should be prevented from practising. The orders made by NCAT contemplate that Mr Griffin should be permitted to practice for at least six months after the making of the orders. That indicates that NCAT was not concerned with any prejudice to the public by reason of Mr Griffin continuing to practise pending his undertaking an ethics course.
In the circumstances, it seems to me that the factors that must be taken into account do not substantially stand in the way of a stay of the orders made by NCAT. On the other hand, if no stay were granted, and the orders were complied with by Mr Griffin, and his appeal was upheld, he will have undertaken the course and incurred whatever inconvenience and expense, if any, that would be involved in doing so. That would be in circumstances where, on the assumption the appeal were upheld, he should never have been required to do so. To that extent, the appeal from the orders of NCAT would be rendered nugatory.
In those circumstances, particularly where NCAT did not see any concern for the public interest in Mr Griffin continuing to practise for at least six months, I consider that the appropriate course would be to grant a stay of the orders of NCAT until six months after the determination of the appeal by the Court of Appeal. While I do not consider that Mr Griffin's grounds of appeal are strong, they are at least arguable. More significantly, however, he should at least have the opportunity of advancing his arguments in order to avoid the need to undertake the course if ultimately he is successful in the appeal.
Mr Griffin relies on 27 grounds of appeal. Grounds 1 to 10 are concerned with construction of the common law test for professional misconduct. Grounds 11 to 14 are concerned with the finding by NCAT that Mr Griffin's language was grossly offensive. Grounds 15 to 17 are concerned with a purported failure by a member of NCAT to recuse herself. Grounds 18 to 27 are concerned with alleged jurisdictional error and a constitutional question to which I shall revert in a moment.
In relation to grounds 11 to 14, it may be of some significance that NCAT found Mr Griffin's language in the July Letter "grossly offensive" in circumstances where the complaint by the Council was that the terms of the contents of the July Letter were "grossly discourteous" and counsel for the Council emphasised that he did not put the Council's case on a higher basis than "gross discourtesy". There can be no doubt about that characterisation of the July Letter.
The July Letter purported to outline errors on the part of Foster J in his reasons in the case in question, and ended with the following paragraph:
"If I do not have a response from you with regard to this request" [to withdraw the reasons] within seven days of the date above the judgment will be filed as it stands, and the appeal process notwithstanding any embarrassment it may cause to you and your Associate and I will need to seek other legitimate methods of addressing what I consider to be your vindictive, unreasonable and unnecessary expressions of opinion."
[4]
Endnotes
[2014] FCA 800.
See Robb & Rees v Law Society of the Australian Capital Territory (Federal Court of Australia, Finn J, 21 June 1996, unreported) and Berger v Council of the Law Society of New South Wales [2013] NSWCA 278 at [19] ("Berger's Case").
Unions NSW v New South Wales (2013) 252 CLR 530; [2013] HCA 58 at [30], [36] (French CJ, Hayne, Crennan, Kiefel and Bell JJ).
See eg Australia Capital Television v Commonwealth (1992) 177 CLR 106; [1992] HCA 45 at 169 (Deane and Toohey JJ); Cunliffe & Anor v Commonwealth (1994) 182 CLR 272; [1994] HCA 44 at 298 (Mason CJ); Australian Plaintiff Lawyers Association Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322; [2005] HCA 44 (Kirby J dissenting).
(2005) 224 CLR 322; [2005] HCA 44 at [63]-[66].
[2015] HCA 34, (2015) 89 ALJR 857 at [2] (French CJ, Kiefel, Bell and Keane JJ).
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Decision last updated: 04 October 2016
It will be a matter for the Court of Appeal to form a view as to whether such language is appropriate for a solicitor engaged in practice, and I will make no further comment about that. However, it is relevant to have regard to those matters in considering the prospects of success of the appeal.
The constitutional grounds upon which Mr Griffin seeks to rely are also the grounds that form the basis for his application for the matter to be removed into the High Court. In my view, the grounds are not strong. However, it may well be that they are at least arguable.
In effect, as I understand the constitutional grounds, Mr Griffin contends that the legislative framework under which NCAT operated and made the orders is invalid, insofar as it is inconsistent with what is said to be a limitation on legislative power implied under the Constitution to ensure that the people of the Commonwealth may exercise a free and informed choice as electors. I understand the multiple references by Mr Griffin in his submissions to an "immunity" not as an assertion of there being a personal right or freedom to engage in political communication which the High Court has clearly stated is not the nature of the implied freedom, [3] but as being an immunity from legislative action, as articulated by McHugh J in Coleman v Power. [4]
In essence, his contention appears to be that his comments to Foster J constitute political comments or comments about government, on the basis that the judiciary is one of the three arms of government, citing a series of statements by a multitude of High Court judges. [5] Other than noting that McHugh J in Australian Plaintiff Lawyers Association Ltd v Legal Services Commissioner (NSW) took a contrary view, [6] I make no comment on the contention.
However, any such implied freedom is not an absolute freedom. The question whether a law exceeds the implied limitation depends upon the answers to several questions, as most recently stated by a majority of the High Court in McCloy v New South Wales. [7]
The first question is whether the impugned law effectively burdens the implied freedom in its terms, operation or effect. If not, then the law does not exceed the implied limitation, and the law challenged must be regarded as valid.
If the answer to the first question is yes, the next question is whether the purpose of the law and the means adopted to achieve that purpose are legitimate, in the sense that they are compatible with the maintenance of the constitutionally prescribed system of representative government. The answer to that question will be in the affirmative if the purpose of the law and the means adopted are identified and are compatible with the constitutionally prescribed system, in the sense that they do not adversely impinge upon the functioning of the system of representative government. If the answer to the question is no, then the law exceeds the implied limitation, and the legislation is invalid.
The third question is whether the law is reasonably appropriately adapted to advance the legitimate object in question. That question involves proportionality testing to determine whether the restriction that the provision imposes on the freedom is justified. That test involves consideration of the extent of the burden affected by the impugned provision on the freedom. There are three stages to that test in determining whether the law is justified; the law must be suitable, necessary and adequate in its balance. If the measure does not meet those criteria of proportionality testing, then the answer to the third question will be no, and the measure will exceed the implied limitation on legislative power.
As I have said, while I do not regard Mr Griffin's arguments as to the validity of the legislative framework as strong, it may be that there is at least an arguable case. That matter is also relevant to the question of whether these proceedings should be stayed pending the outcome of Mr Griffin's application for removal of the proceedings into the High Court. I do not consider that the prospects of success in that regard are at all strong.
Moreover, having regard to the very substantial delay between the time when Mr Griffin commenced his proceedings in the Supreme Court and making his application to the High Court. I do not consider that it is appropriate to interfere with the fixture for the hearing of the appeal on 3 November 2016. Although he foreshadowed an application to the High Court some time ago in correspondence with the Council, it was not until the first day of the hearing of the motion for a stay that the application to the High Court was actually filed. Mr Griffin may have had other matters on his mind that precluded him from making an application sooner than he did. Be that as it may, the fact is he has delayed some months.
In those circumstances, I do not consider that it is appropriate to require the parties to throw away the costs obviously incurred in the preparation of the appeal for hearing on 3 November 2016. Accordingly, I propose to refuse prayers 2, 3 and 4 in the notice of motion of 12 September 2016. However, I am prepared to make an order in terms of prayer 1, and to reserve the parties' liberty to apply on reasonable notice in the event that the High Court does in fact make an order removing the proceedings into the High Court. The application for a stay was opposed by the Council. However, it was not brought on by Mr Griffin as quickly as it could have been. Indeed, as I have said, no opposition was advanced by Mr Griffin to the fixing of the hearing on 3 November. The appeal will be heard in the reasonably near future in those circumstances. Mr Griffin has been only partly successful. I consider that the appropriate order is that the costs of the notice of motion be the parties' respective costs in the appeal.