Law Society of New South Wales v Konstantinidis

NCAT Occupational|2017-02-20

Solicitors: Law Society of NSW (Applicant) T A Williams (Respondent) File Number(s): 2016/00378572, 1620007

The Application

These proceedings were commenced on 8 January 2016 by the Council of the Law Society of New South Wales (hereinafter referred to as "the Law Society") by an Application for Disciplinary Findings and Orders. It alleges that the respondent solicitor, Mr Konstantinidis (hereinafter referred to as "the Solicitor"), is guilty of professional misconduct; in respect of a complaint by Apostolos & Illias Stoikos of failing to account for the balance of settlement monies on the sale of residential property at Earlwood and breach section 255 of the Legal Professional Act 2004 (the 2004 Act); in respect of a complaint by a John Truong of failing to comply with an undertaking.
The Application outlined particulars including reference to: 1. A sequestration order being made in relation to the Estate of Illias Stoikos; 2. Apostolos (Toly) Stoikos entering into a Deed in mid-2010 with Nawaf Chaouk referable to Supreme Court Proceedings that Mr Chaouk had commenced in November 2008; 3. A BMW loan agreement entered into between Resultant Management Pty Limited (of which the solicitor was a director) and BMW Australia Finance Limited on 28 September 2006; 4. The May 2012 settlement of the sale of the Earlwood property; 5. The failure by the Solicitor to account for the balance of the monies received in respect of the sale, including details of tax invoices of the Solicitor forwarded to Illias and Toly Stoikos on 28 June 2012; 6. The assertion of breach of section 255 of the 2004 Act; and 7. The failure to comply with an undertaking provided by the Solicitor in a Workers Compensation matter to the complainant Truong.

Application for Determination of Preliminary Issues

The proceedings were listed for hearing on 20 February 2017. Mr Maddigan appeared for the Law Society and Messrs T Lynch SC and D Ratnam for the Solicitor. Affidavits had been filed for the Law Society of Anne-Marie Foord sworn 22 December 2015, Illias Theordore Stoikos sworn 18 January 2016, Apostolos Stoikos sworn 14 March 2016 [being also referred to in the Application as Toly]; and for the Solicitor of the practitioner himself sworn 6 September 2016, Kevin Robert Ramsay sworn 16 September 2016; and John Truong sworn 5 October 2016.
Prior to the matter coming on for hearing procedural directions had been made including directions for the filing and serving of affidavits, and for the exchange of written submissions. Mr Maddigan informed the Tribunal that the Law Society's submissions had been filed and served on the Solicitor on 1 February 2017 however the Solicitor's submissions had been served late; namely filed on the day of the hearing although received by the solicitor for the Law Society the day beforehand - 19 February 2017.
The Solicitor's written submissions raised for the first time, in sections 2 and 5, previously unpleaded issues being: 1. The Law Society, in serving affidavits of Anne-Marie Foord, Illias Stoikos and Apostolos Stoikos was not proceeding "…in accordance with…." Chapter 4 of the Legal Profession Act 2004 [per section 551 of that Act] and hence it ought not be permitted to rely upon such affidavits as doing so would be inconsistent with its decision of 20 November 2014 to dismiss five of the seven grounds for complaint it had identified to the Solicitor by its earlier letter of 19 September 2012; 2. The Tribunal had no jurisdiction to entertain the application before it because section 552 of the 2004 Act required a disciplinary application to be made to the Tribunal within six months of the Professional Conduct Committee resolution of 20 November 2014 authorising the bringing of a disciplinary application. That required these proceedings to be brought by 20 April 2015, but in fact the application was not brought until 7 January 2016 and was therefore not commenced within time.
So as not to prejudice the Law Society's ability to properly consider and deal with these issues first raised by the Solicitor on the day prior to the hearing - and being issues that had not been pleaded in the Solicitor's 4 May 2016 Reply - the Tribunal adjourned the hearing and made a number of further orders. Prior to doing so Mr Lynch SC for the Solicitor conceded that the fresh issues raised in his submissions ought to be pleaded in an Amended Reply and that the Law Society would need to be given a reasonable opportunity to consider whether it put on further evidence and file and serve further submissions dealing with the new issues.
The Tribunal made orders: 1. That the Solicitor file and serve any Amended Reply by 21 February 2017; 2. That the Law Society file and serve written submissions in response to sections 2 and 5 of the Solicitor's written submissions by 21 March 2017; and 3. That the hearing being adjourned to a date to be fixed.
An Amended Reply to Application for Disciplinary Findings was filed on 24 February 2017. In it the contentions that were raised in sections 2 and 5 of the 20 February 2017 written submissions were substantially repeated in sections 2 (dealing with the time for commencing proceedings contention raised in section 5 of the written submissions) and 3 (dealing with the affidavit issue in section 2 of the earlier submissions). These matters were recorded in the Amended Reply under the heading "Respondents Preliminary Issues".
The Amended Reply referred to another Preliminary Issue, namely that the plea in Application ground 1 was duplicitous in the context of the plea in Application ground 2; alternatively, it was an allegation that could not in the terms alleged constitute a ground for a finding of professional misconduct. This further contention however was not one that was raised by the Law Society on 20 February 2017 as requiring preliminary determination or adjournment.
Subsequent to being served with the Amended Reply the Law Society filed on 2 March 2017 what are described as "Submissions of the Law Society Regarding Preliminary Issues", stating that they were filed pursuant to the orders made on 20 February 2017 and responded to: 1. Sections 2 and 5 of the Solicitor's 20 February 2017 submissions, and 2. Paragraphs 2 and 3 of the Solicitor's Amended Reply. 3. The Amended Reply, the Law Society's 2 March 2017 submissions, and the Solicitor's subsequent reply submissions filed 15 March 2017, each referred to paragraphs 2 and 3 of the Amended Reply giving rise to preliminary issues for determination. The parties sought to have those contentions determined by the Tribunal as preliminary issues. The Tribunal agreed noting its power under section 38(1) of the Civil & Administrative Tribunal Act 2013. 4. The proceedings were fixed for a further hearing on 26 May 2017 for the hearing and determination of the preliminary issues raised in paragraphs 2 and 3 of the Amended Reply. For convenience we will refer to the paragraph 2 preliminary issue as the "Time to commence" issue, and the paragraph 3 preliminary issue as the "Use of affidavits" issue and to both as "the Preliminary Issues"

Jurisdiction

The application filed 8 January 2016 is made under the 2004 Act.
The 2004 Act was repealed as from 1 July 2015 by the Legal Profession Uniform Law Application Act 2014, the effect of which may be summarised as follows: 1. Schedule 2 of the Legal Profession Uniform Law Application Legislation Amendment Act 2015 made a range of consequential amendments as from 1 July 2015 including to the Civil and Administrative Tribunal Act 2013 reflective in the commencement of the Legal Profession Uniform Law 2015 (NSW) from 1 July 2015; and 2. As a consequence of the transitional provisions the law to be applied in these proceedings is the 2004 Act.
As the complaint in this matter was made under Chapter 4 of the 2004 Act and was not disposed of before 1 July 2015 (the complaint having been first made in June 2012) it must continue to be dealt with under the 2004 Act: clause 26 of Schedule 4 of the Legal Profession Uniform Application Legislation Amendment Act 2015.
The NSW Court of Appeal in Griffin v The Council of the Law Society of New South Wales [2016] NSWCA 364, in dealing with clause 26 of Chapter 4 said: "…although the expression "disposed of" in clause 26 is imprecise, when clause 26 is read in context it applies to a disciplinary application with respect to a complaint which has not been finalised by the Tribunal on the commencement day (1 July 2015)"
Here, as the complaints the subject of the proceedings were made prior to 1 July 2015, and not the subject of a disciplinary application finalised by the Tribunal prior to 1 July 2015, the law to be applied in these proceedings is the 2004 Act. The Law Society and the Solicitor - in their respective submissions - agree.

Material or relevant facts to Preliminary Issues

The evidence on the Preliminary Issues comprised the affidavit of Anne-Marie Foord sworn 22 December 2015 ("Ms Foord's affidavit").
The following facts - unless otherwise stated - are established to the requisite civil standard.
On 8 June 2012, the Office of the Legal Services Commissioner ("Commissioner") received an email from a Mr Illias Stoikos asserting that the Solicitor was refusing to release the proceeds of the sale of residential property at Earlwood. A complaint form was submitted to the Commissioner on 15 June 2012 identifying the Solicitor as the solicitor the subject of complaint. Where the form required the listing of the main areas the subject of the complaint, the response was: "Lawyer refuses to release funds from proceeds of sale Threatening to increase fees and spend all the money Funds to be used to care for elderly parents of poor health"
The Commissioner referred the complaint to the Law Society for investigation.
Further letters providing further detail and information were forwarded to the Professional Standards Department of the Law Society ("Professional Standards") by Mr Stoikos following his initial complaint.
Professional Standards informed the Solicitor by letter of 19 September 2012 of the complaint made by Illias and Toly Stoikos [Toly Stoikos having informed Professional Standards in early July 2012 that Illias was authorised to make complaint against the Solicitor on Toly's behalf as well].
The letter to the solicitor enclosed a copy of the initial complaint as well as the exchange of correspondence between Professional Standards and the complainants. Under a heading "Conduct Issues" Professional Standards informed the solicitor that "…the complaint appears to raise the following conduct issues". It then set out seven particulars, the first of which being described as: "Failure to account for balance of settlement money on the sale of … Earlwood"
The Solicitor on 20 November 2012 forwarded a detailed 8 page letter to Professional Standards responding to the complaint issues raised.
Professional Standards sought further information from the Solicitor and that further information and documentation was provided by the solicitor by letter of 6 December 2012.
Further communications passed between Professional Standards and the Solicitor's legal representative who by that stage had been retained, Mr Williams, between January 2013 and April 2014. In that time, Professional Standards had received further correspondence from the complainant, as well as from the Solicitor's accountant.
The Commissioner received a separate complaint form dated 5 August 2014 from a Mr John Truong in relation to a workers compensation matter, the "main issues" of complaint being identified as: "Failure to notify the settlement of the matter Breach of undertakings in relation to costs Failure to pay costs and disbursements"
Consistent with the procedure in relation to the earlier complaint, the Commissioner passed Mr Truong's complaint on to Professional Standards for investigation.
Professional Standards referred the Truong complaint to the Solicitor on 22 August 2014 for response.
We refer to the Truong complaint because it references a matter raised in the 8 January 2016 Application however it need not be considered further in these Reasons as it is not relevant to our determination of the Preliminary Issues.
Further correspondence ensued between Professional Standards and the Solicitor's legal representative, Mr Williams, concerning the Stoikos complaint from April 2014, the exchange concluding with a letter from Professional Standards to Mr Williams of 23 September 2014 [1] in which "any final submissions" were sought from the Solicitor and saying: "Should I not receive any response from you by this date, I will assume that your client has no further submissions to make and I will propose to finalise the report to the Professional Conduct Committee on the basis of the materials provided to me to date without further notice to the parties."
Mr Williams did in fact provide further submissions by letter of 5 November 2014.
Ms Foord deposes in her affidavit [2] that the Law Society had, at a meeting on 16 January 2014, relevantly resolved as follows: "7. Pursuant to section 699(3) of the Legal Profession Act 2004 Council delegates to the Professional Conduct Committees, as constituted on and from the date of this resolution and as such constitution may be varied from time to time by the President: (i) all of its powers contained in Chapter 4 (complaints and discipline) of the Legal Profession Act 2004 other than those contained in section 548 (immediate suspension of a local practicing certificate); (ii) …"
On 20 November 2014 a sub-committee of the Professional Conduct Committee relevantly resolved as follows [3] : "A. RESOLVED that Simon Konstantinidis ("the legal practitioner") be informed of: 1. The issues of unsatisfactory professional conduct which, in the opinion of the Committee, are involved in the complaint and in respect of which the Committee invites submissions within 14 days of the date of the letter notifying the legal practitioner of these resolutions; and 2. The Committee's opinion that, subject to any submissions, it should resolve that it is satisfied there is a reasonable likelihood the legal practitioner will be found by the Tribunal to have engaged in unsatisfactory professional conduct and that proceedings be instituted in the Tribunal with respect to the complaint pursuant to Section 537(2) of the Legal Profession Act 2004. Unsatisfactory Professional Conduct 1. Failure to account for balance of settlement money on the sale of… Earlwood. … 5. The solicitor has breached section 255 of the Legal Profession Act, 2004. 3. It is the Committee's opinion that, subject to any submissions, the appropriate orders to be sought on a referral to the Tribunal of this complaint are as follows: Orders to be Sought 1. The solicitor be reprimanded. 2. The solicitor pays compensation to Apostolos and Ilias Stoikos pursuant to section 573 of the Legal Profession Act 2004. 3. The solicitor pays the Society's costs as agreed or assessed. 4. Any such further or other order the Tribunal thinks fit. 4. Consideration of this complaint is to be placed on the agenda of the whole of the Professional Conduct Committee as soon as practicable after the expiration of 14 days from the date of the letter notifying the legal practitioner of these resolutions…"
The Law Society then wrote to Mr Williams by letter dated 21 November 2014 [4] . The letter commenced by saying: "The Professional Conduct Committee of the Law Society considered this matter at its meeting on 20 November 2014. The Committee resolved as follows.."
The letter then repeated the resolution referred to paragraph 33 (resolution A). It went on to inform the Solicitor of a further resolution B of the Committee at its meeting, namely the resolution that complaints numbered 2, 3, 4, 6 and 7 - which were outlined in the letter: "…be dismissed on the grounds that, having completed its investigation, the Committee is satisfied there is no reasonable likelihood that Simon Konstantinidis will be found by the Tribunal to have engaged in unsatisfactory professional conduct or professional misconduct"
The dismissed complaints numbered 2, 3, 4, 6 and 7 were those that had been set out, utilising the same numbering, in the letter of Professional Standards to the Solicitor of 19 September 2012 referred to earlier in these Reasons. The 21 November 2014 letter repeated the identification of the complaints the subject of dismissal and provided an explanation for the dismissal resolution (B) under a heading "Reasons for decision".
The letter concluded by indicating that in relation to "Resolution B" - namely the dismissed complaints: "Please note that when I inform the complainant of the dismissal of these complaints, I will also inform the complainant of the right to ask the Legal Services Commissioner to review the Society's treatment of the complaints".
The letter concluded under a heading "Resolution A": "If your client wishes to make any further submissions of fact or law, or as to the orders to be sought, they must reach the writer by 5 December 2014. If your client makes no submissions within that time the Committee will reconsider this complaint on the information presently available."
There is no further letter of the Solicitor or his solicitor that Ms Foord has annexed to her affidavit by which the Solicitor makes any submissions of the kind referred to in paragraph 2 of "Resolution A". Mr Lynch SC - for the Solicitor - did not inform the Tribunal that there was any such letter from the Solicitor. The only post-21 November 2014 letter annexed to Ms Foord's affidavit is a letter of the Solicitor's solicitor of 2 February 2015 advising of Mr Williams' office relocation.
There is no evidence before the Tribunal as to what - if any- communications passed between the Solicitor (or his representative Mr Williams) and the Law Society [other than the 2 February office relocation letter] between the date of the forwarding of the Law Society's 21 November 2014 letter and the sending by the Law Society of a further letter to Mr Williams dated 17 April 2015 [5]
Ms Foord deposes [6] that on 16 April 2015 a sub-committee of the Professional Conduct Committee resolved as follows: "A RESOLVED that the Committee's resolution of 20 November 2014 be rescinded B FURTHER RESOLVED that Simon Konstantinidis ("the Legal Practitioner") be informed of: 1. the issues of professional misconduct which, in the opinion of the Committee, are involved in the complaint and in respect of which the Committee invites submissions within 14 days of the date of the letter notifying the Legal Practitioner of these resolutions; and 2. the Committee's opinion that, subject to any submissions, it should resolve that it is satisfied that there is a reasonable likelihood the Legal Practitioner will be found by the Tribunal to have engaged in professional misconduct and that proceedings be instituted in the Tribunal with respect to the complaint pursuant to section 537(2) of the Legal Professional Act 2004. Professional Misconduct 1. Failure to account for balance of settlement monies on the sale of ….Earlwood 2. The solicitor has breached section 255 of the Legal Profession Act 2004 3. It is the Committee's opinion that, subject to any submissions, the appropriate orders to be sought on a referral to the Tribunal of this complaint are as follows: Orders to be sought 1. The solicitor be reprimanded 2. The solicitor pay a substantial fine 3. The solicitor pays the Society's costs as agreed or assessed 4. Any such further or other order the Tribunal thinks fit 4. Consideration of this complaint is to be placed on the agenda of the whole of the Professional Conduct Committee as soon as practicable after the expiration of 14 days from the date of this letter notifying the Legal Practitioner of these resolutions".
On 17 April the Law Society informed the Solicitor of the 16 April resolutions [7] .
Ms Foord annexes a copy of a further letter forwarded to Mr Williams and dated 4 May 2015. That letter referred to the 17 April letter and said: "..if your client wishes to make any further submissions of fact or law, or as to the orders to be sought, they must reach the writer by 18 May 2015 (being 14 days of the date of this letter as set out in the resolution) If your client makes no submissions within that time, then the Committee will reconsider this complaint on the information presently available".
There is no evidence of the Solicitor responding to either the 17 April or the 4 May letters, nor providing the submissions invited.
Ms Foord then deposes [8] to a resolution having been made by the Professional Conduct Committee on 16 July 2015, and the forwarding of a further letter to the Solicitor's legal representative dated 17 July 2015 [9] . The first section of the letter - in part - reads as follows: "Complaints against Simon Konstantinidis, Solicitor I write to advise that the complaints in Society files 39504 and 40875 were considered by the Professional Conduct Committee of the Society at its meeting on 16 July 2015 when the Committee resolved as follows: RESOLVED that the Committee is satisfied there is a reasonable likelihood Simon Konstantinidis will be found by the Tribunal to have engaged in professional misconduct and that proceedings be instituted in the Tribunal pursuant to section 537(2) of the Legal Profession Act 2004. Professional Misconduct FILE 39504 1. Failure to account for balance of settlement money on the sale of ….Earlwood 5. The solicitor has breach section 255 of the Legal Profession Act 2004 …. Orders to be sought 1. The solicitor be reprimanded 2. The solicitor pay a substantial fine 3. The solicitor, at his own expense, is to undertake within six months of the date of the orders made by the Tribunal [and during which the solicitor holds a current practising certificate] a course in Legal Ethics that is approved by the Manager of the Professional Standards Department and therein achieve a pass mark of not less than 60% (Pass Mark). (a) The solicitor will, within seven 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. (b) Should the solicitor fail to achieve the Pass Mark, he shall complete any further course in Legal Ethics as approved by the Manager of the Professional Standards Department until such time as to achieve the Pass Mark. (c) Should the solicitor fail to achieve the Pass Mark within the time period in 3 above, his practising certificate shall be suspended until such time as he achieves the Pass Mark. 4. The solicitor pay the Society's costs as agreed or assessed. 5. Any such further or other order the Tribunal thinks fit. Reasons for Decision FILE 39504 ..."
The letter under the above referenced "Reasons for Decision" heading then outlined over the course of the following five pages paragraphs numbered 1 to 12 setting out the reasons for the decision reached by the Committee. The letter then dealt with a further file namely file 40875. That file was created referrable to the separate complaint made by Mr Truong. As neither the details of that complaint, nor the Law Society's resolution in respect of it are relevant to the determination of the Preliminary Issues the subject of these reasons for decision we do not repeat the balance of the Law Society's 17 July 2015 letter.

Time to commence issue - the Solicitor's Submissions

The Solicitor submits that the Professional Conduct Committee's 20 November 2014 resolution authorised the bringing of a disciplinary application on what are currently Application grounds 1 and 2, but that such proceedings were, per section 552 of the 2004 Act, required to be commenced within six months of 20 November 2014 (ie by 20 April 2015). The Application herein was not commenced in the Tribunal until 7 January 2016 [10] . The Solicitor accordingly contends that the Application was not commenced within time; further that the timeous commencement of statutory proceedings is jurisdictional for the tribunal exercising that jurisdiction, and was essential for the competence and validity of proceedings purportedly commenced. Hence, the Solicitor argues that the Disciplinary Application here insofar as it relates to Application grounds 1 and 2 - is incompetent.
The Tribunal was taken to the words of section 552(1) of the 2004 Act, particularly the requirement in that sub-section that disciplinary proceedings be commenced within six months after the Council "…decides that proceedings be commenced…"
The Solicitor contends that the November 2014 resolution recording that the Professional Conduct Committee of the Law Society is of the "…opinion that…a practitioner will be found… to have engaged in unsatisfactory professional conduct…" is such a decision. The fact that the resolution was not a final decision to commence proceedings in the Tribunal was irrelevant because: 1. The language of sub-section 552(1) is of "decision" not "determination" 2. The "time for filing" requirement in section 552(1) has effect by force of its own terms which do not include the word "final" or any cognate expression, and accordingly 3. Its operation is engaged and time begins to run upon the making of the first, rather than any later (or final), decision that proceedings be commenced.
The Solicitor submits that section 552(6) makes the point clear when it provides: "For the purpose of sub-section (1) a decision that proceedings be commenced is made when: 1. the Council or Commissioner decides that there is a reasonable likelihood that the… practitioner will be found… to have engaged in unsatisfactory professional conduct or professional misconduct…"
Mr Lynch SC argues that the language of paragraphs 1 and 2 of Resolution A set out in the Law Society's letter of 21 November 2014 referred to earlier is wholly reflective, and thus entirely adoptive, of the language of section 552(6)(a) cited above.
The Solicitor referred the Tribunal to Matkevich v New South Wales Technical and Further Education Commission [1995] 36 NSWLR 718 as supportive of the contention that the precise language of the statutory provision needs to be examined and that one needs to focus when examining section 552(6) of the 2004 Act on the words "…when the Council… decides that there is a reasonable likelihood…"
In Matkevich the Court of Appeal was concerned with the words of section 55 of the Government and Related Employees Appeal Tribunal Act 1980 requiring an appeal under section 54 of that Act to be "made within 21 days after the date of the Tribunal's decision on the question of law the subject of the appeal…". The appeal was lodged within the time but was not served within the same 21 day period, contrary to section 55(2).

Time to Commence Issue - The Law Society's Submissions

On the issue of whether the Law Society's 20 November 2014 resolution could be construed as a decision that proceedings be commenced in the Tribunal such as to trigger the six month time requirement in section 552(1) of the 2004 Act, Dr Bell SC for the Law Society referred firstly to section 537 of the Act which relevantly provided:

"537 Decision of Commissioner or Council after investigation 1. After completion of an investigation of a complaint against an Australian legal practitioner, the Commissioner or a Council must: 1. commence proceedings in the Tribunal under this chapter, or 2. dismiss the complaint under this Part, or 3. take action under section 540 (Summary conclusion of complaint procedure by caution, reprimand, compensation order, or imposition of conditions). 1. Unless section 540 (summary conclusion of complaint procedure by caution, reprimand, compensation order, or imposition of conditions) applies, the Council or Commissioner must commence proceedings in the Tribunal with respect to a complaint against an Australian legal practitioner if satisfied that there is a reasonable likelihood that the practitioner will be found by the Tribunal to have engaged in unsatisfactory professional conduct or professional misconduct."

Dr Bell SC referred the Tribunal to Murray v Legal Services Commissioner [1999] 46 NSWLR 224 which - he submitted - articulated applicable principles to the investigation of complaints under the 2004 Act, despite being concerned with earlier legislation (the Legal Profession Act 1987). The Tribunal was referred to a passage in Murray of Priestley JA (Stein JA agreeing) where their Honours, in referring to section 155 of the Legal Profession Act 1987 considered that that provision made it: "…clear that after the Commissioner has completed an investigation into a complaint he must consider which of the different possible steps available to him under the section he will next take. In my opinion the section necessarily requires the Commissioner to give an opportunity to the legal practitioner to be heard in regard to the complaint which the Commissioner has investigated, before the Commissioner decides which step to take. In the absence of the legal practitioner having been given an opportunity to be heard on the complaint I do not see how it is possible for the Commissioner to arrive at a proper decision under section 155 on which step he should take".
Dr Bell SC referred to a further statement in Murray of Sheller JA (with whom Stein JA agreed) namely: "I find it hard to imagine that the Council or the Commissioner would reach the level of satisfaction required without taking account of the legal practitioners response to the complaint if a legal practitioner, under compulsion pursuant to section 152, or voluntarily, gave it. The duty of the Council or the Commissioner to act either by instituting proceedings in the Tribunal or in some other way does not arise on a satisfaction or opinion that a prima facie case has been made out, so that any material favouring a legal practitioner may be ignored: compare Wentworth v Rogers (1984) 2 NSWLR 422 at 429 and 436. The duty of the Council or the Commissioner involves an attempt to predict the outcome of the hearing of the Tribunal: compare Saffron v Director of Public Prosecutions (1989) 16 NSWLR 397 at 400, 40402 and 441. Ordinarily, a factor in this prediction would be the legal practitioners answer to the complaint, if the legal practitioner gives one, or the failure to answer the complaint, if the legal practitioner gives none. These matters lead me to conclude that a Council or the Commissioner cannot and does not reach the required satisfaction without providing the legal practitioner with a copy of the complaint and calling upon the legal practitioner to respond to it. … In my opinion, proper performance of the duty and proper exercise of the powers conferred on the Commissioner by section 155 require that, before the Commissioner completes an investigation into the complaint against a legal practitioner and decides how in accordance with section 155 the complaint is to be dealt with, the Legal Practitioner be given an opportunity to see a copy of the complaint and answer it and to advance argument against it and in favour of the lesser charge than that of professional misconduct or in mitigation. … The Commissioner's duty is not really to determine whether or not there is a prima facie case but to reach a degree of satisfaction and make decisions as to the course then to be followed. In that context the legal practitioner has an interest to press not only against the initial finding but also against the following of one particular course rather than another. Not surprisingly in that context the Councils and, until recently, the Commissioner as a matter of practice gave the legal practitioner the opportunity to be heard. But, in my opinion, the Act itself gives rise to such expectations as a matter of statutory construction".
Dr Bell SC submitted that the 20 November 2014 resolution did not finally determine the complaints against the Solicitor - as referred to in Part A of that Resolution - and was consistent with the decision in Murray. He argued that as no final decision had been made in the 20 November 2014 resolutions to commence proceedings in the Tribunal, there was no final determination of a right or obligation. Rather, the 20 November 2014 resolution was part of an investigative process.
The Law Society submitted that one needed to characterise what the November 2014 resolution was, and whether it was a resolution under section 552(1) of the 2004 Act. If it was not relevantly a decision, then the six month timing issue has no application. Conversely, if the November 2014 resolution was relevantly a decision pursuant to section 552(1) then one needed to consider the effect of the subsequent 16 April 2015 resolution rescinding in November 2014 resolution.
Dr Bell SC contended that the November 2014 resolution was relevantly a resolution to inform the Solicitor; it was not a relevant decision under section 552; rather, it was a resolution to inform and an invitation to the Solicitor to make submissions.
The use of the word "opinion" demonstrated, Dr Bell SC contended, the provisional position of the Law Society only. That was highlighted by the fact that the opinions expressed in paragraphs 1 and 2 of the resolution were subject to any submissions that the Solicitor would wish to make. That there was no decision as such was also demonstrated by the futurity connoted by the use of the words in the resolution "…it should resolve…" and "…to be sought".
The Law Society argued that the Solicitor being informed in the manner that he was by letter of 21 November 2014 was the Law Society's attempt to comply with the obligations in Murray.
Dr Bell SC also pointed out the contrasting language used in the 21 November letter between Resolution A and Resolution B. Resolution B expressly uses the words "Reasons for Decision" whereas the word "decision" is not mentioned in Resolution A.

Time to Commence Issue - The April 2015 Resolution

The parties' submissions also dealt with the Professional Conduct Committee's 16 April 2015 resolution.
The Solicitor submitted that although the Committee purported, on 16 April 2015, to rescind its 20 November 2014 resolution, it did not rescind that part of the November decision that proceedings be commenced.
Mr Lynch SC argued that the purported April 2015 resolution was ineffective as an attempt by the Law Society to stop time running under section 522, contending that a resolution that has become legally operative in respect of second parties cannot be rescinded. He submitted two propositions on this aspect namely that the Committee cannot, by purporting to rescind an earlier resolution, determine when time commences to run under section 552; secondly, that the April 2015 resolution did not undo or negate the earlier resolution. He relied upon The Queen v City of Mitcham; ex parte G J Coles & Co Ltd [1980] LGRA 224 and Attorney General for NSW in relation to Goddard & Ors v North Sydney Municipal Council & Ors [1971] NSWLR 373.
In Mitcham a local council passed a resolution recommending for approval by the Governor an amendment to the City's zoning regulations. After the recommendation had been transmitted to the relevant Minister for the Governor's approval the Council passed a further resolution to amend the recommendation by deleting five lots from the rezoning. The validity of the subsequent resolution was challenged on the basis that the Council's procedural by-laws required a two-thirds majority in the case of a motion to rescind a prior resolution. The issue for determination by the Court was whether the subsequent motion which purported to "amend" the earlier resolution was or was not a motion to rescind.
Mr Lynch SC took the Tribunal to a passage in the judgment of King CJ where His Honour said: "It seems to me that to amount to rescission of the previous motion the subsequent motion must reverse in substance the previous motion considered as a whole. To reverse a decision which forms only part of the motion or to reverse part only of the motion is not, as it seems to me, to rescind the motion itself, unless the reversal of that decision or that part of the motion amounts to the reversal in substance of the motion as a whole."
In Goddard a local council passed a resolution to the effect that a scheme be prepared to vary the provisions of a planning ordinance and that a copy of the resolution be forwarded to the relevant Minister within 14 days. Although a copy of the resolution was forwarded to the Minister it was not advertised as required by the Local Government Act 1919. The following month the council passed a further resolution in similar terms to the earlier resolution, but with the additional provision that the notice of the resolution be published in the Government Gazette and a daily newspaper within 14 days. The issue was whether or not the earlier resolution that had been made by the council was rescinded by the subsequent resolution. The Local Government Act prescribed various steps that had to be taken for the purpose of preparing a planning scheme once a resolution had been passed. The Court said: "It seems to me to be quite inconsistent with the scheme of this legislation that a Council could change its mind and halt the steps which the Act prescribes merely by rescinding its resolution. Possibly the Council could rescind the resolution before any effect had been given to it, and in particular I think that it could rescind the resolution pursuant to a notice of motion for that purpose given at the meeting at which the resolution was passed as provided by clause 25(a) of Ordinance 1. However once it has been acted upon I do not think it can be rescinded."
The Solicitor submitted that the April 2015 resolution was not a rescission motion in that it did not undo or negate the earlier November 2014 resolution; rather, it sought to modify the earlier resolution by treating the solicitors conduct as professional misconduct as opposed to unsatisfactory professional conduct.
On the issue of the efficacy of the purported rescission in April 2015 the Law Society submitted that as no final determination had been made in relation to the complaints in November 2014 the Committee's April 2015 resolution was valid; further, was consistent with the decision in Murray. No final decision had been made in the April 2015 resolution to commence proceedings in the Tribunal. The re-characterisation of the Solicitor's conduct as professional misconduct in the April 2015 resolution was, Dr Bell SC contended, part of the process involved in the investigation of the complaint. It is necessary for the Law Society to turn its mind to the reasonable likelihood or otherwise of a guilty finding by the Tribunal against a solicitor. In doing so it must have regard - it was submitted - to the distinction between professional misconduct and unsatisfactory professional conduct.
The April 2015 letter gave the Solicitor an opportunity to be heard and advance an argument.
The Law Society submitted that the subsequent 16 July 2015 resolution of the Professional Conduct Committee was a decision pursuant to section 537(2) of the 2004 Act. As such, proceedings were required to be commenced within six months of that decision ie by 16 January 2016. Dr Bell SC contends therefore that by the filing of the application in January 2016 the Law Society has complied with section 552(1), the proceedings that brought within time and the Solicitor's challenge to the Tribunal's jurisdiction must therefore fail.

Use of Affidavits Issue - The Solicitor's Submissions

Mr Lynch SC for the Solicitor submitted that by serving the affidavits of Ms Foord and Messrs Illias and Apostolas Stoikos the Law Society is seeking to disclose evidence of grounds of complaint that have previously been dismissed. He relies on section 551 of the 2004 Act that an application is required to be made "…in accordance with…" Chapter 4 of the Act; submits that a disciplinary application cannot be made except pursuant to a decision, i.e. a resolution, of the Professional Conduct Committee, and that dismissal of a complaint precludes a disciplinary application in respect of that dismissed element. The Solicitor contends that, in disregard of the resolution, the affidavits have been served which contain evidence of grounds of complaint earlier dismissed.

Use of Affidavits Issue - The Law Society's Submissions

Dr Bell SC does not, in his submissions on this issue; deal with the affidavits of Illias and Apostolas Stoikos. He does however contend that so far as Ms Foord's affidavit is concerned that is an affidavit going to jurisdiction, and is required to demonstrate the Law Society's compliance with the mandatory requirements for bringing an application such as this, namely that the Law Society has undertaken an investigation into the complaint (per Part 4.4 of the Act); that it has considered the results of the investigation process once investigations were complete; and that a resolution to commence proceedings has been made. The Law Society further contends that the affidavit of Ms Foord was necessary so as to ensure that the Solicitor was aware of the allegations made against him and the potential consequences of the proceedings. He concedes that the application as filed defines the scope of the proceedings before the Tribunal; further, that the Law Society does not propound any of the grounds of complaint dismissed by the November 2014 resolution. The Law Society - he says - does not seek to adduce evidence to establish grounds of complaint that are not contained in the application, and that where reference to grounds to complaint already dismissed appear in the affidavit, the inclusion of such material is for the purpose of establishing the investigation process.
The Law Society, accordingly, contends that the application is not made contrary to the November 2014 resolution, and is made in accordance with Part 4.8 of the Act.

Time to commence issue

In our view, the reasoning applied by the Court of Appeal in Murray equally applies to the investigation and consideration of complaints against legal practitioners under the 2004 Act. The process of investigation of complaints, receipt of any submissions put forward by a practitioner and, thereafter, the making of a decision under section 537 accords with, and ensures compliance with, the rules of natural justice and procedural fairness prescribed in section 494(3)(b).
The resolution of the Professional Conduct Committee of 20 November 2014 was consistent with the scheme of the 2004 Act as we have set out above, and with the observations made by their Honours in Murray, with which we agree.
The relevant resolutions of the Committee made on 20 November were: 1. To inform the Solicitor of the issues of unsatisfactory professional conduct which were involved in the complaint - in the opinion of the Committee 2. To invite from the Solicitor submissions in respect of the issues of unsatisfactory professional conduct which were involved in the complaint (such submissions to be provided within 14 days of the date of the notifying letter) 3. That the Solicitor be informed of the Committee's opinion that it should - subject to any submissions received from the Solicitor - resolve that it is satisfied there is a reasonable likelihood the Solicitor will be found by the Tribunal to have engaged in unsatisfactory professional conduct and that proceedings be instituted in the Tribunal pursuant to section 537(2) of the 2004 Act. 4. That the Solicitor be informed that the appropriate orders to be sought on a referral to the Tribunal in the Committee's opinion - subject to any submissions of the Solicitor - were as outlined in section 3 of the resolution 5. That the Solicitor be informed that as soon as practicable after the expiration of 14 days from the date of a letter notifying of its resolutions, consideration of the complaint will be placed on the agenda of the whole of the Professional Conduct Committee.
By writing to the Solicitor, via his solicitor, on 21 November 2014 [11] the Law Society was endeavouring to ensure that the Solicitor was afforded the natural justice and procedural fairness s494(3)(b) required; was complying with the section 508 obligation of informing the Solicitor of his right to make submissions, having previously provided to him a copy of the complaint, and was acting consistent with the principles outlined in Murray - principles which we consider have application under the 2004 Act.
It is the finding of this Tribunal that the 20 November 2014 Resolution A was not a decision for the purpose of section 552(6) of the 2004 Act. This for the following reasons: 1. The resolution does not record that the Committee had decided that there was a reasonable likelihood that the Solicitor would be found by the Tribunal to have engaged in unsatisfactory professional conduct or professional misconduct 2. Rather, it was a resolution that the Solicitor be informed of the two matters recorded under 1 and 2 under resolution A and the expressions of opinion by the Committee 3. That part of the resolution that invited submissions from the Solicitor is inconsistent with the Committee having made - on 20 November 2014 - a decision 4. It expressly contemplates a future event namely that it "should resolve" that it is satisfied there is a reasonable likelihood the Solicitor would be found by the Tribunal to have engaged in unsatisfactory professional conduct and that proceedings be instituted 5. It expressly contemplated that any such future resolution would be subject to any submissions that the Solicitor might wish to make if he chose to accept the Committee's invitation in resolution A(1) to put submissions within 14 days 6. It expressly contemplated that a decision of the kind required by section 537(1) of the Act would be made at a future point in time and that such decision - under that section - when and if made at that future point - would be made after either receipt of submissions of the Solicitor, or the expiry of 14 days in the event that no such submissions were received. 7. Futurity was also connoted by the express reference in paragraph 4 under resolution A to a further meeting of the Professional Conduct Committee "…as soon as practicable after the expiration of 14 days from the date of the letter notifying the legal profession of these resolutions", at which future meeting consideration of the issue would be an agenda item for consideration.
The Solicitor submits that a resolution recording that the Committee is of the "…opinion that…a practitioner will be found… to have engaged in unsatisfactory professional conduct…" is a decision for the purposes of section 552 of the 2004 Act. We disagree with that submission for the following reasons: 1. The quotation relied upon by Mr Lynch SC does not fully reproduce the resolution in its omission of relevant words; namely that the Committee's opinion was that it "should resolve" - ie at some point in the future - that it is satisfied there is a reasonable likelihood the legal practitioner will be found by the Tribunal to have engaged in unsatisfactory professional conduct and that proceedings be instituted in the Tribunal. It is not a statement that the Committee has at that point so resolved. 2. What further resolution the Committee might make was subject to any submissions the Solicitor wished to put. 3. An expression of opinion as to what the Committee should resolve at some future point, and subject to any submissions of the Solicitor, is not a resolution by which the Committee "decides" that there is a reasonable likelihood that the legal practitioner concerned will be found by the Tribunal to have engaged in unsatisfactory professional conduct or professional misconduct.
Hence, the resolution in our view is not a decision as defined in sub-section (6) of section 552 and time has not commenced to run pursuant to sub-section (1) of that section.
Another issue between the parties as to whether between November 2014 resolution triggered the commencement of time under section 552 was whether the Council's resolution ought be viewed as not having that trigger effect because - as the Law Society submitted - no "final" determination had been made. In this respect we agree with the Solicitor's submission that the "time for filing requirement" in section 552(1) has effect by force of its own terms which do not include the word "final". Its operation is engaged on the making of the first - rather than any later - or final decision that proceedings be commenced.
Our finding however is that whether or not a decision is expressed to be "final" is not relevant to the determination as to whether there has been a decision triggering the commencement of time running in sub-section (1). The enquiry is as stated in sub-section (6); not whether the expression "final" is used.
For the reasons we have stated above we find that there was no making of a relevant decision on 20 November 2014 pursuant to section 552(6) accordingly, time did not commence to run for the purpose of section 552(1).
For the reasons we have expressed above as to the 20 November 2014 resolution, we find that the 16 April 2015 resolution was, for the same reasons, not a decision of the Committee under sub-section (6).
The Council's 16 April 2015 resolutions - communicated to the Solicitor's solicitor by letter of 17 April - were (per resolution A) that the Committee's 20 November 2014 resolution be rescinded, and (per resolution B) that the Solicitor be informed of precisely the same matter as recorded in resolution A of 20 November 2014 subject to the one material difference being that instead of issues of unsatisfactory professional conduct recorded in the 20 November 2014 resolution, the Committee was recording in its 16 April 2015 resolution professional misconduct. This despite relying on the same matters namely contentions of failing to account for the balance of settlement monies on the sale of the Earlwood property and breach of section 255 of the Legal Profession Act 2004.
In relation to the 16 April 2015 resolution the Solicitor submits that resolution A - the rescission resolution - was ineffective as an attempt by the Law Society to stop time running from its 20 November 2014 resolution, under section 522. Mr Lynch SC relies upon Attorney-General of NSW on the relation of Goddard & Ors v North Sydney Municipal Council which we have referred to earlier in these reasons.
In our view, the facts in Goddard are distinguishable from those with which we are concerned. Here the November 2014 resolution had not been relevantly "acted upon" by reason of the finding that we make that in November 2014 there was no decision of the type required by section 552(6) such that there was no commencement of the six month period prescribed by section 552(1).
Mr Lynch SC also referred the Tribunal to The Queen v The City of Mitcham [1980] LGRA 224. We consider the circumstances considered in Mitcham to be materially different to those with which we are concerned. In Mitcham the Court was considering the effect of specific procedural bylaws in determining whether a resolution passed by a Local Council amending an earlier resolution was in truth a rescission requiring a process as prescribed in the Council's bylaws. We do not consider Mitcham to be relevant for two reasons. Firstly, there is no evidence before the Tribunal as to the circumstances leading to the Committee's April 2015 rescission motion, nor any submissions as to the Committee's jurisdiction or legislative power to rescind or amend an earlier rescission. Secondly, the Solicitor's submission, as we understand it was not that the Committee was without jurisdiction to rescind an earlier resolution; rather, that its purported April 2015 rescission was ineffective as an attempt to stop time running under section 522, i.e. relieve itself of the consequences of its 20 November 2014 resolution.
To the extent that the Solicitor argues that the April 2015 resolution is devoid of legal effect because the November 2014 resolution has become legally operative in respect of other parties and cannot be rescinded (per Goddard), we have determined - as outlined earlier in these reasons - that the November 2014 resolution had not "become legally operative" in the sense of being a decision that triggered time commenced to run under section 552(1).
The Solicitor in his Amended Reply contends incompetence of the present application because it was out of time flowing from the November 2014 decision, not by reason of time commencing to run from the April 2015 decision.

Use of Affidavits issue

The Solicitor contends that in disregard of the Committee's 20 November 2014 resolution to dismiss complaint nos. 2, 3, 4, 6 and 7 the Law Society has served affidavits of Ms Foord and Messrs Illias and Apostolas Stoikos which - Mr Lynch SC submits - disclose on intention by the Law Society to adduce what it appears to consider to be admissible evidence of grounds of complaint that have been dismissed. That, he submits, is not "…in accordance with…" Chapter 4 of the 2004 Act (section 551).
We disagree and find that the application was made in accordance with Chapter 4. Ms Foord's affidavit goes to jurisdiction in endeavouring to establish that the Law Society: 1. Had received a complaint 2. Had investigated that complaint 3. After completion of its investigation, had considered the results of the investigation process 4. Had informed the Solicitor of the of the nature of the complaint 5. Had invited the Solicitor to make submissions in relation to the complaint by its letter of 21 November 2014; and 6. Had resolved on 16 July 2015 that the Committee was satisfied there was a reasonable likelihood that the Solicitor would be found by the Tribunal to have engaged in professional misconduct and that proceedings be instituted in the Tribunal pursuant to section 537.
In addition, the Law Society concedes in its submissions that the application as filed defines the scope of the proceedings before the Tribunal by setting out the grounds of complaint against the Solicitor and the facts, acts and/or omissions that are alleged to constitute the conduct that justified the disciplinary finding.
Dr Bell SC contends that the application filed does not propound any of the grounds of complaint dismissed by the 20 November 2014 resolution; further, that the Law Society does not seek to adduce evidence to support grounds of complaint that are not contained in the application. He further concedes that where reference to grounds of complaint dismissed by the Committee in November 2014 appear in Ms Foord's affidavit, the inclusion of such material is for the sole purpose of establishing the investigation process.
As the Law Society is not seeking - by the filing and service of the affidavits of Ms Foord and Messrs Stoikos - to prove facts or matters not the subject of a ground in the application, we reject the Solicitor's contention that the filing and service of the affidavits - insofar as they contain material or evidence not relevant to the application grounds as pursued - is an abuse of the processes of the Tribunal. By seeking to establish compliance with the legislative requirements for the investigation process and the notification to the Solicitor of details of the complaints made, the Law Society is endeavouring, by serving affidavits, to establish compliance with Chapter 4 of the Act and is not seeking to disclose evidence of grounds of complaint that have previously been dismissed as the solicitor contends.
We agree with the submissions of the Law Society that the affidavit of Ms Foord was necessary so as to ensure that the Solicitor was aware of the allegations made against him and the potential consequences of the proceedings. The Tribunal notes the concession made by the Law Society that the application as filed defines the scope of the proceedings before the Tribunal; further, the concession that the Law Society does not propound any of the grounds of complaint dismissed by the November 2014 resolution nor seeks to adduce evidence to establish grounds of complaint previously dismissed, that is; grounds that are not contained in the current application. The Tribunal also notes the concession made by the Law Society that where the affidavits served refer to grounds of complaint already dismissed, the inclusion of such material is not to establish the truth of facts the subject of dismissed ground of complaint; rather, the inclusion of such material is solely for the purpose of establishing the investigative process as required by the 2004 Act.
Having found that the service of the affidavits of Ms Foord and Messrs Illias and Apostolas Stoikos by the Law Society is not an abuse of the processes of the Tribunal the appropriate course is to leave to the final hearing of the application any issue as to admissibility of the affidavits or objections or challenges to any paragraphs of the affidavits on the grounds of relevance or otherwise.

Costs

The Law Society sought costs if it were successful on the Preliminary Issues relying on paragraph 23(5) of Schedule 5 of the Civil and Administrative Act 2013, we so order.

Orders

Having found in favour of the Law Society: 1. On the "Time to Commence" Preliminary Issue pleaded by the Solicitor in paragraph 2 of the Amended Reply ; and 2. On the "Use Of Affidavits" Preliminary Issue pleaded by the Solicitor in paragraph 3 of the Amended Reply with the effect that the Proceedings are not an abuse of process-

THE TRIBUNAL ORDERS 1. The proceedings be listed for Directions on a date to be advised 2. The Solicitor pay the Law Society's costs of the Preliminary Issues for Determination as agreed or assessed

Endnotes

Affidavit of Ms Foord, annexure page 177
Paragraph 27
Affidavit of Ms Foord paragraph 36
Affidavit of Ms Foord Annexure page 183
Ms Foord's affidavit annexure paragraph 201
Paragraph 40
Affidavit of Ms Foord annexure page 201
Paragraph 43
Affidavit of Ms Foord annexure paragraph 204
Although the Application as filed has a handwritten "8" over the typed "7"
Affidavit of Ms Foord annexure page 103 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: 04 July 2017

(Repealed) Legal Profession Act 2004(NSW)

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