[2016] ACTCA 46

CIVIL LAW - interlocutory application - strike out application - r 5604(b) Court Procedures Rules 2006 (ACT)

CIVIL LAW - interlocutory application - application for security for costs of appeal - r 5302 Court Procedures Rules 2006 (ACT)

ACT Civil and Administrative Tribunal Act 2008 (ACT)

Court Procedures Rules 2006 (ACT), rr 1900, 1900(2) 1901, 1902, 1902(1)(a), 5302, 5302(1),5303, 5403, 5403(1)(f), 5604(b)

Legal Profession Act 2006 (ACT), s 425(1)

Supreme Court Act 1933 (ACT), ss 37(E)(2)(a), 37J(1), 37J(1)(h), 37J(1)(k)

ACT v Crowley [2012] ACTCA 52; 7 ACTLR 42

Council of the Law Society of the ACT v The Legal Practitioner X [2012] ACAT 34

Council of the Law Society of the ACT v The Legal Practitioner Y [2012] ACAT 40

Council of the Law Society of the ACT v Legal Practitioner X [2012] ACAT 60

Council of the Law Society of the ACT v The Legal Practitioner Y [2013] ACAT 8

Davey v Herbst (No 2) [2012] ACTCA 19

Fox v Percy [2003] HCA 22; 214 CLR 118

Hughes v Janrule P/L [2011] ACTCA 15; 177 ACTR 1

Hussain & Anor v Ngep & Anor (No 2) [2015] ACTCA 42

Kai Huen v Christine Joy Hyland [2004] ACTCA 5

Lucas v Yorke (1983) 58 ALJR 20; 50 ALR 228

Nobarani v Mariconte [2016] NSWCA 214

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355

Twining v Curtis [2014] ACTCA 19

Wagdy Hanna and Associates P/L v Gavagna (2014) ACTCA 36

ACTCA 49 of 2015 ; ACTCA 50 of 2015

1. Presently before the Court of Appeal are two applications filed on 22 December 2015 on behalf of the Council of the Law Society ("Law Society") in proceedings allocated No. ACTCA 49 and No. ACTCA 50 of 2015 by the Court's registry.

2. The applications are in identical terms. The operative orders are in these terms:

1. The Appellant be ordered, pursuant to Rule 5302, to pay into Court the sum of $150,000 within 14 days by way of security for the Respondent's anticipated costs of the Appeals in ACTCA 49 and 50 of 2015.

......

3. The notices of appeals filed in the Appeals be struck out and dismissed:

1. pursuant to rule 5604(b) of the Court Procedure Rules 2006 (ACT) on the basis that the notice of appeal does not contain any coherent or arguable ground of appeal; or alternatively
2. as an abuse of process.

3. As a single judge I am exercising the powers of the Court of Appeal pursuant to s 37J(1) of the Supreme Court Act 1933 (ACT).

4. Under s 37J(1)(k) there is jurisdiction with regards to the making of orders as to the security for costs of an appeal. (Hughes v Janrule P/L [2011] ACTCA 15; 177 ACTR 1 and Davey v Herbst (No 2) [2012] ACTCA 19. I have followed this line of authority in Wagdy Hanna and Associates P/L v Gavagna (2014) ACTCA 36 and Hussain & Anor v Ngep & Anor (No 2) [2015] ACTCA 42).

5. Under s 37J(1)(h) there is jurisdiction to "dismiss an appeal ... for any other reason prescribed under the rules". Under r 5604(b) of the Court Procedures Rules 2006 (ACT) an appeal can be dismissed for the reason that "the notice of appeal does not contain any coherent or arguable ground of appeal."

6. The formulation of the above rule provides a high threshold test. No doubt that is consistent with the fact that a dismissal by a single judge will summarily terminate an appeal without any hearing on the merits and this summary dismissal will not have the imprimatur of the usual consensus or, at least, a majority of three judges. I return to this matter below where further analysis of the rule is considered.

7. There is no power for a single judge to dismiss an appeal as an abuse of process and simply to pursue a further right of appeal, where there is no res judicata involved, is not an abuse of process.

8. To understand the present application it is necessary to recount a considerable background.

9. I will refer to the Legal Practitioner throughout these reasons as the Appellant and the Law Society as the Respondent.

10. Between 2010 and 2012, ACAT heard and determined two sets of proceedings brought against the Legal Practitioner by the Law Society.

11. In one proceeding, ACAT gave judgment against the Appellant recorded at [2012] ACAT 34 on 16 May 2012. In that judgment, the Legal Practitioner was found guilty of two counts of professional misconduct and one count of unsatisfactory professional conduct. This proceeding is also referred to by the parties as the Clark & Fardell proceeding.

12. In the other proceeding, ACAT gave judgment against the Appellant recorded at [2012] ACAT 40 on 28 June 2012. In that judgment, the Legal Practitioner was found guilty of one count of unsatisfactory professional conduct and one count of professional misconduct. This proceeding is also referred to by the parties as the Tran & Nguyen proceeding.

13. As a result of that second judgment, the Law Society did not renew the Legal Practitioner's practicing certificate when it came up for renewal on 1 July 2012.

14. On 31 August 2012 ACAT imposed a penalty upon the Appellant by ordering that he was not to be granted a local practicing certificate for three months and that he was to pay the costs of the proceedings on a party/party basis as a result of the judgment referred to in paragraph 11 above. ([2012] ACAT 60).

15. On 8 February 2013 ACAT imposed a penalty upon the Appellant in the form of a recommendation that the Appellant's name be removed from the local roll and that he pay the costs on a party/party basis as a result of the judgment referred to in paragraph 12 above.([2013] ACAT 8).

16. Each of these two proceedings was the subject of an appeal by the Legal Practitioner under the ACT Civil and Administrative Tribunal Act 2008 (ACT) and in each case the appeals were removed into the Supreme Court. The Clark & Fardell proceeding became SCA 25 of 2013 and the Tran & Nguyen proceeding became SCA 26 of 2013.

17. Before the Supreme Court there was considerable agitation as to the formulation of the Notice of Appeal in each proceeding. The Clark & Fardell proceeding appears to have gone through four iterations; the Tran & Nguyen proceeding appears to have gone through six iterations.

18. Section 425(1) of the Legal Profession Act 2006 (ACT) provides, in substance, that after ACAT has considered an application and is satisfied that the practitioner is "guilty" in respect of unsatisfactory professional conduct or professional misconduct, then ACAT may make one or more orders. This is, of course, what occurred in the two proceedings.

19. One way of drafting an informative Notice of Appeal is focus upon each finding of guilt sought to be set aside by firstly identifying it in the reasons for judgment. Secondly, setting out with some precision why this finding of guilt ought not to have been made.

20. There are, of course, numerous possibilities. Examples are, one or more of the primary facts necessary to sustain that finding of guilt ought not to have been made and its or their materiality to the finding of guilt demonstrated. A primary fact, which was not found, should have been found and this fact will materially alter the proper finding as to guilt. The incorrect conclusion has been drawn from the primary facts found. The wrong legal test has been applied or misapplied to the facts and the outcome is materially different such that there can be no finding of guilt.

21. Where the error alleged was, in fact, in the assessment of the credibility of a witness then then this error must be identified as such and dealt with in conformity with such cases as Fox v Percy [2003] HCA 22; 214 CLR 118 and could specify the incontrovertible facts or uncontested testimony, for example, that led to the error. It is not useful to assert a fact should have been found or should not have been found as an error when, in truth, the challenge to the fact depends upon credibility findings.

22. In regard to the Tribunal's order, the same types of challenges apply. The operative findings of fact must be considered against the evaluative judgment of the Tribunal.

23. The Primary Judge determined that he would conduct the appeals to the Supreme Court "by way of a review of the original decision by the ACAT; essentially a rehearing". He then set out the well known principles governing a rehearing. I need not set these out.

24. In the currently filed grounds of appeal in the Court of Appeal, there is no challenge to this mode of determination by the Primary Judge.

25. The grounds of appeal, as finally formulated, before the Primary Judge were far from compliant with the rules. However, His Honour worked through them and no doubt needed the benefit of submissions to fully comprehend them.

26. The jurisdiction to entertain an appeal to the Court of Appeal is relevantly given by s 37E(2)(a) of the Supreme Court Act 1933 (ACT). The appeal is not explicitly expressed to be by way of rehearing. However, two decisions are authority for the proposition that the appeal to the Court of Appeal is by way of rehearing, Kai Huen v Christine Joy Hyland [2004] ACTCA 5 at [54] and ACT v Crowley [2012] ACTCA 52; 7 ACTLR 42 at [5].

27. As is pointed out by the Court of Appeal in Crowley at [5]:

On such an appeal the Court is obliged to conduct "a real review of the trial" and the judge's reasons and give "the judgment which in its opinion ought to have been given in the first instance": Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549 at 561 quoted with approval in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at 125 [23].

28. Rule 5403 of the Court Procedures Rules 2006 (ACT) contains the requirements for a Notice of Appeal to the Court of Appeal. Relevantly, it is as follows-

5403 (1) The notice of appeal to the Court of Appeal must state -

(a) the order appealed from and the date of the order; and

(b) whether the appeal is from all or part of the order; and

(c) if the appeal is from part of the order - the part appealed from; and

(d) whether the appellant will seek to put further evidence before the court; and

(e) if further evidence is to be put before the court - briefly the nature of the evidence and what is sought to be proved; and

(f) briefly, but specifically, the grounds relied on in support of the appeal including, in particular, any grounds on which it is claimed that there is an error of law in the order; and

(g) the order sought.

29. The word order is defined in the dictionary to the rules. It includes a judgment, decree, direction or decision, whether or not final. Here, the order to be appealed against must be, in each appeal, the order made by the Primary Judge dismissing the appeal and the order for costs. In that sense the whole of the order is the subject of the appeal. It is not permissible to appeal against "findings" as such.

30. Some insight into the drafting of the Notice of Appeal can be obtained when considering the orders sought by the Legal Practitioner. He seeks, for example, in ACTCA 49 of 2015 -

(1) That the appeal be upheld;

(2) That the decisions of the Court and the Tribunal be overturned;

(3) That the complaint against the appellant be dismissed; and

(4) Costs.

31. To achieve this result it would be necessary to show that the finding of "guilt" of professional misconduct and the finding of guilt of unsatisfactory professional conduct ought to have been set aside by the Primary Judge. Thereafter, it would need to be shown that the order made as a result of those findings of "guilt" by the Tribunal ought to have been set aside by the Primary Judge. It would then follow that the complaint against the appellant ought to have been dismissed by the Tribunal. The Legal Practitioner could have reformulated the orders sought as follows;

(1) That the appeal to the Court of Appeal be allowed;

(2) Set aside the orders made by the Court on 5 November 2015 and in their place:

• (a) order that the appeal to the Court be allowed and;
• (b) the orders made by the Tribunal upon the complaint made against the Legal Practitioner be set aside and the complaint be dismissed with costs;

(3) Order that the Law Society pay the costs of the Legal Practitioner in the Court of Appeal.

32. It is no part of my task to take issue with drafting where no utility is achieved. However, the nature of the orders sought and the fact that any appellant must comply with r 5403(1)(f) of the Court Procedures Rules 2006 (ACT) dictates, to a large extent, what is required of the grounds stated in a Notice of Appeal. That rule requires the appellant to state briefly, but specifically, the grounds relied on in support of the appeal including, in particular, any grounds on which it is claimed that there is an error of law in the order. In my opinion the grounds of appeal fail to comply with this rule with the result that the respondent and the members of the Court of Appeal, who hear the appeal, will have to work out for themselves, amongst possibilities, the specific complaint made in many grounds. No doubt this can be done but it will not be done from the grounds of appeal alone. Some of the suggestions in paragraphs [18]-[21] above could be taken up by the Legal Practitioner.

33. I am not hearing an application to determine whether I should strike out the Notice of Appeal and whether to give leave to reformulate those grounds in compliance with the rules of court. I am hearing an application that there is no coherent or arguable ground of appeal.

34. The Law Society has not made out this ground. It is tolerably clear, in the sense that it can be gleaned from the grounds of appeal, that the Legal Practitioner wishes to challenge the findings of fact said to be material to the finding of "guilt" in each case and wishes to challenge whether, the facts found or facts that should have been found, can be properly characterised as professional misconduct or unsatisfactory professional conduct as the case may be. He is, of course, confined in this task by the nature of the appeal, incorporating as it does, restraints such as those referred to by the Primary Judge.

35. For the purposes of this application, I have taken a very beneficial reading of the grounds of appeal. In the paragraph above, I made reference to the substance of the grounds of appeal and certainly not to their form. I believe this is the proper approach on the application. This view has recently been applied in a similar case of Nobarani v Mariconte [2016] NSWCA 214 with an analogous rule of court. At [12] Simpson JA stated with other members agreeing:

On 4 April 2016 Mr Nobarani filed a third Notice of Appeal. It contains 12 sub-headings, which may be taken to raise separate grounds of appeal. The grounds it purports to raise are stated in discursive form. The Notice of Appeal challenges various findings of fact made by the primary judge, and, (although they are pleaded as errors of fact) the wrongful exclusion or admission of evidence. This Notice of Appeal, like its two predecessors, does not comply with the requirements of UCPR r 51.18. Specifically, what purports to be a statement of the grounds of appeal as required by r 51.18(1)(e) is non-compliant in that it fails to state briefly but specifically the grounds relied on in support of the appeal. This is the same defect that caused Tobias AJA and Emmett AJA to strike out the two earlier Notices of Appeal.

36. Those matters did not prevent the NSW Court of Appeal from finding a tenable ground of appeal such that summary dismissal was not given.

37. I propose to dismiss the application based upon r 5604(b) of the Court Procedures Rules 2006 (ACT) with costs.

38. The rules of the Court Procedures Rules 2006 (ACT), rr 1900-1902 and 5302 are relevant to determining the Law Society's application for security for the costs of the appeal. Omitting sub-sections not relied upon by the parties in this application, these are:

1900 Security for costs - application and order

(1) On application by a defendant, the court may order the plaintiff to give the security it considers appropriate for the defendant's costs of the proceeding.

Note Pt 6.2 (Applications in proceedings) applies to an application for an order under this rule.

(2) An application must be supported by an affidavit setting out the facts relied on and the grounds on which the order is sought.

1901 Security for costs - when court may make order

The court may order a plaintiff to give security for costs under rule 1900 only if satisfied - ...

(e) the plaintiff is ordinarily resident outside Australia

...

(h) the justice of the case requires the order to be made.

1902 Security for costs - discretionary factors

(1) In deciding whether to make an order for security for costs under rule 1900, the court may have regard to any of the following matters:

• (a) the means of the people standing behind the proceeding;
• (b) the prospects of success or merits of the proceeding;
• (c) the genuineness of the proceeding;
• (d) for rule 1901 (a) - the corporation's lack of financial resources;
• (e) whether the plaintiff's lack of financial resources is attributable to the defendant's conduct;
• (f) whether the plaintiff is effectively in the position of a defendant;
• (g) whether an order for security for costs would be oppressive;
• (h) whether an order for security for costs would stop or limit the progress of the proceeding;
• (i) whether the proceeding involves a matter of public importance;
• (j) whether there has been an admission or payment into court;
• (k) whether delay by the plaintiff in starting the proceeding has unfairly prejudiced the defendant;
• (l) whether an order for costs made against the plaintiff would be enforceable within the jurisdiction;
• (m) the estimated costs of the proceeding.

(2) This rule does not limit the matters to which the court may have regard.

5302 Appeals to Court of Appeal - security for costs

(1) Security for costs of an appeal is not required, unless the Court of Appeal otherwise orders.

Note Pt 6.2 (Applications in proceedings) applies to an application for an order under this rule.

(2) This rule does not limit division 2.17.8 (Security for costs).

39. I take this formulation of r 5302(1) as providing for an onus upon the moving party. Two further matters must be kept in mind. There is no requirement of demonstrating special circumstances and the appeal is of right and does not require leave.

40. From the affidavit evidence filed by the parties I make the following findings:

(a) The application is supported by affidavit evidence setting out the facts relied on and the grounds on which the order is sought.

(b) The application for security for the costs of the appeal was made promptly.

(c) I am not prepared to find, on the evidence presented, that the sum of $150,000 is an appropriate sum for security for costs of the appeals. The evidence did not descend to detail in the usual way of setting out the estimated hearing days, preparation days, costs of unavoidable interlocutory applications, whether senior and junior counsel are retained, what work is required to prosecute the appeal additional to that which might be inferred, and the solicitors hours and fees. The estimates were given by way of comparison with the trial and the appeal before the primary judge. I take into account what the deponent says concerning previous taxations of costs. I also take into account the knowledge that can be attributed to a member of the Court in and about the appeal process. I would allow, on the evidence, the sum of $80,000 for security.

(d) On the evidence, I find that the Legal Practitioner is not ordinarily a resident outside Australia. I find that it is more probable than not that the Legal Practitioner is currently residing in [another country] owing to a travel ban placed upon him in that country.

(e) The Legal Practitioner has repeatedly submitted that the Law Society has failed to prove that the Legal Practitioner is "impecunious". It is important to note that, r 1902(1)(a) actually directs attention to the related question of the means of people standing behind the proceeding.

The evidence on this issue commences with a letter sent to the Legal Practitioner dated 17 December 2015. It foreshadows an application for security in the sum of $150,000 and says - "We assume that you are not in a position to provide such security. Please let us know before 9 am on Friday 18 December 2015 if that is not in fact the case." Although no response to this letter was ever received, very little can be inferred, in the circumstances, as to whether or not the Legal Practitioner had at that time $150,000, from that fact that he did not answer the letter within the time arbitrarily allowed.

In an affidavit sworn 18 April 2016, the Legal Practitioner states at paragraph 46 "I have not indicated to the Respondent that I am impecunious." Of course, this statement, of itself, does not disclose the state of the Legal Practitioner's financial affairs. At least by the time of swearing this affidavit, it must have been clear to the Legal Practitioner that the state of his financial affairs was an issue in the application filed 22 December 2015. The Legal Practitioner also deposes in that affidavit at paragraph 49 that, "The fact that I have not worked for the past few years or that I have been self-represented in these matters, are not reasons to jump to the conclusion that I am impecunious." That assertion may be taken as being correct but it raises the question of the financial resources available to the Legal Practitioner. In the Notice of Appeal filed in the Court of Appeal in ACTCA 50 of 2015, it is said that the Primary Judge 'fell into error by making the following findings and orders' that:

1. Without knowledge and without details, held that the appellant chose to represent himself; and unfairly held that the task of preparing the grounds of appeal seemed beyond the appellant and that he delayed the producing of the appeal book.

i. The Court was unaware that the due to financial and other reasons the appellant (who has been unemployed for 3+ years) had no other alternative but to represent himself." (Italics added)

I also have regard to the likely liabilities arising from the trial of these matters in ACAT and the consequent appeals from not insubstantial costs orders. I acknowledge that those costs orders have not yet been the subject of taxation (and hence not payable) and there is a possibility that those orders may be set aside. Nevertheless, they must be counted as contingent liabilities which come within the expression of the means of a person.

I regard the aggregation of these matters as indicating a conclusion and the party who can give direct evidence of the matter has remained silent on the issue. All evidence is to be weighed according to the proof which it was in the power of one side to produce, and in the power of the other to have contradicted.

It is apparent that the Legal Practitioner is aware that the material tendered by the Law Society has raised the issue as to his means so that a reply was in his interests. In his affidavit filed 24 August 2016, the Legal Practitioner gave an explanation as to his means at par [13]-

As outlined earlier, I am not impecunious. I have never claimed so, it is only an assumption on the part of the Respondent. I paid $4,542.00 as filing fees for these two appeals, if I am impecunious I should have applied for a fee waiver. I paid similar filing fees/hearing fees for the two Supreme Court appeals. In fact, I paid hearing fees for one extra day for the Supreme Court matters, and I did not ask for a refund. In the past I have paid filling fees for the Applications in Proceeding and I have paid for the transcripts/ the Court's photocopy fees etc. If I were impecunious as wrongfully claimed by the Respondent, in those situations, I should have applied for fee waivers. I have not applied for unemployment benefit or legal aid. I have never applied or held a Healthcare Card. I have a family living in Australia, I maintain bank and private health insurance accounts, a motor car insurance etc. These again show that I am not impecunious and that I am usually a resident of Australia.

I find that on the balance of probabilities the Legal Practitioner will be unable to satisfy an order for costs on the appeals. The question is not whether the Legal Practitioner is currently "impecunious".

(f) The Law Society relies upon "the justice of the case". Although this is a very broad criterion, the Law Society draws attention to the fact that the Legal Practitioner has had a trial and an appeal from that trial and has been wholly unsuccessful in the proceedings. They draw attention to the reasoning of Brennan J in Lucas v Yorke (1983) 50 ALR 228; 50 ALR 228 at 229-

A factor which ought not to be left out of account is the course of the litigation, particularly if the appellant as failed at first instance and again on appeal to an intermediate appellate court. A second appeal upon substantially the same grounds is indulging in a luxury, as Rich J. said in Kings's case (at 294). That factor tells against the appellant's in this case.

The Law Society also draws attention to the lack of merit in the appeals. It does so as an independent aspect of the application and also as part of "the justice of the case". I have read the trial decisions in ACAT and the appeals to the Primary Judge. Given that there have been two trial decisions and two appeals, the prospects of success are more easily assessed than prior to any trial decision. I do take notice that those decisions demonstrate that the appeals to the Court of Appeal (at best) do not have good prospects of success. Included in the grounds are questions of the credibility of witnesses to which cases such as Fox v Percy apply. I also take into account the current formulation of the grounds of appeal which fail to demonstrate with particularity the way in which any finding of professional misconduct, unsatisfactory professional conduct or the consequential order made will be set aside on appeal. On this aspect, the Law Society also point out that the combination of two factors, namely, the lack of merit in the appeal and the appellant's impecuniosity invariably dictate an order for security for costs of an appeal where the moving party has not been guilty of delay or other disentitling conduct. (Par 29.106 of Law of Costs, 3rd Ed. G. Dal Pont. See also Twining v Curtis (infra) at [135] )

(g) In his affidavit of 24 August 2016 the Legal Practitioner wrote at par [22]:

Throughout my affidavit and written submissions I have stressed that the security for costs application will stultify the conduct of my appeals.

Having looked through the affidavits and written submissions I could not find any such assertions. I raised the matter directly with the Legal Practitioner although it took some time to receive an unequivocal answer. The Transcript at pp 19-20 records-

HIS HONOUR: Mr [XXX], Mr [XXX], is it part of your case that you are running here that your appeals will be stultified if an order for security for costs is made against you?

LEGAL PRACTITIONER: Well as I said I will withdraw that line, that sentence I'm withdrawing, your Honour.

HIS HONOUR: You're withdrawing that line?

LEGAL PRACTITOINER: Yes, that sentence.

I find that the provision of security will not stultify the appeal.

41. In applying the above findings I have had regard to the principles set out in Twining v Curtis [2014] ACTCA 19 at [11]- [16].

42. In my view there should be an order for security for the costs of the appeal. I am persuaded by the combination the merits of the appeal, the absence of being able to meet an order for costs and the justice of the case.

43. Subject to hearing the parties as to the precise form of order, I propose to make the following orders:

(a) Dismiss the applications with costs so far as they are based upon r 5604(b) of the Court Procedures Rules 2006 (ACT).

(b) Order that the Legal Practitioner give security in the amount totalling $80,000 for the costs of the Law Society of the appeals by lodging with the Registrar of the Supreme Court of the Australian Capital Territory $80,000 in cash or an irrevocable bank guarantee in the amount of $80,000 in terms satisfactory to the Registrar.

(c) Order that the Legal Practitioner is to satisfy the above order by lodging the amount of $40,000 in the manner above within 28 days from the date of this order and by then lodging a further amount of $40,000 in the manner above within 56 days from the date of this order.

(d) Order that the appeals be stayed pending the giving of the security as required.

(e) Order that if the Legal Practitioner fails to give the amount of the security, as required within twenty eight days from the date of this order, or fails to give the amount of security required within 56 days, then the appeals be deemed to have been dismissed and the Legal Practitioner is to pay the Law Society's costs of the appeals to that date on a party and party basis.

(f) Order that the Legal Practitioner pay the costs of the Law Society of the application for security for costs on a party and party basis to be paid on the judgment in the appeal or, if dismissed under an order above, upon the dismissal of the appeal.

(g) I grant liberty to apply limited to the working out of these orders if any difficulty arises.

44. Before concluding this matter it is appropriate that I explain the reason for making directions on 12 August 2016. On that occasion I gave the Law Society leave to file a further affidavit limited to making good what might be thought to be a jurisdictional gateway for an order for security for costs. It will be recalled that r 1900(2) states-

An application must be supported by an affidavit setting out the facts relied on and the grounds on which the order is sought.

One way of construing this rule is to read the word "must" as being mandatory and a precondition to open the jurisdictional gateway. At the hearing before me on 12 August 2016, the Law Society had filed affidavit evidence and also submissions in chief and submissions in reply pursuant to directions previously given. It could have been said, and it was said by the Legal Practitioner, that r 1900(2) was unsatisfied in part because it was the combination of affidavit evidence and submissions which constituted, in practical terms, the Law Society's grounds and case. When this matter was raised with counsel for the Law Society, counsel applied for a disposition from the requirement of the rule and also sought to raise the case of "Project Blue Sky". (I took this to be a reference to Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355). I did not accede to either the application nor the proposed argument based upon Project Blue Sky. The preferable course was to regularise the position and to give the Legal Practitioner a further opportunity to meet the case made by the Law Society by the filing of further affidavit evidence lest the Legal Practitioner be under some previous misapprehension concerning the application he had to meet.

45. I made directions permitting the Law Society to file an affidavit merely regularising the affidavit evidence and permitted the Legal Practitioner to respond to any of the affidavit evidence currently filed against him and which would be filed as a result of the directions. The Law Society did file an affidavit permitted by the direction. The Legal Practitioner filed a lengthy affidavit which recounted in paragraph 1 that he filed the affidavit as a result of the invitation extended to him to say "everything I want in relation to my opposition to the Respondent's Application in Proceeding dated 22 December 2015."

I certify that the preceding forty-five [45] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Robinson