Lott v Council of the New South Wales Bar Association

The primary judgment

1. After recording the relevant facts and circumstances, and recording the submissions made by both parties, the Deputy President set out the relevant legal principles applicable to an application to set aside subpoenas and the grant of access to documents produced on subpoena (or summons). No issue was, in these proceedings, taken with her Honour's statement of principle. The principles are well established and uncontroversial, and her Honour's statement accorded with the approach taken by the parties.
2. The Deputy President noted (at [29]) that the applicant disavowed any reliance on his physical or mental capacity to carry out his duties as a legal practitioner either during "the relevant period" or since.
3. She recorded the submissions made on behalf of the applicant as: "(1) the medical records do not relate to a direct proof of any factual issue in the proceedings; (2) there is no likelihood the medical records could throw light on the issue in this case which are defined as negligence, misleading the Court and failure to honour an undertaking."
4. The Deputy President rejected the applicant's submission that the issue of the summonses constituted a "fishing expedition". She accepted the applicant's submission that the documents could not offer direct proof of any factual matter in the (substantive) proceedings between the Council and the applicant. She noted that the documents the subject of the summonses related to events that post-dated the FCCA proceedings. She said (in a paragraph that contains some difficulties of expression): "52 … If his evidence was confined only to those parts of the Reply and [the applicant's] affidavit post the FCCA proceedings I could not be satisfied that the Council has established that the records if produced would materially assist on an issue identified in the proceedings at least in respect of findings on the complaints. They may possibly have some relevance when the tribunal considers an appropriate penalty if the complaints of unsatisfactory professional conduct or professional misconduct are established."
5. She then referred to the written submissions of 30 March 2015 which, she said, raised issues about the applicant's competence by reason of personal matters. She then said: "53 … That evidence is in part reproduced in his affidavit relied on in the proceedings."
6. She then referred to the submission, outlined above, concerning a deterioration in the applicant's mental health, and said: "53 … The use of the word 'deteriorates' connotes a pre-existing condition exacerbated by the referral."
7. She noted a submission on behalf of the Council that the principal basis on which it was entitled to access to the documents was that the applicant's medical history or condition was capable of "meaningfully bearing on" whether his conduct of the proceedings in the FCCA constituted unsatisfactory professional conduct or professional misconduct. (Of particular relevance in this context is that part of the definition of "professional misconduct" that appears in s 497(1)(b) and invokes the concept of "fit and proper person".)
8. She then said: "57 The practitioner's medical treatment post-dates the events the subject of the complaint. On the surface that fact suggests the documents should not be relevant to the context of the complaint. If the practitioner had not raised his underlying circumstances in his correspondence with the Council I would [not] be satisfied that the Council had satisfied the adjectival relevance of the documents. 58 In this case however, I am satisfied that the argument advanced on [the applicant's] behalf that every barrister's medical records could be subject of a summons for production in professional disciplinary proceedings must be discounted. Here [the applicant] has raised as a relevant consideration, in determining his competence in the FCCA proceedings, his [personal and medical circumstances]. I am satisfied this may bear light on whether his conduct before the FCCA was negligent. … 60 Even if I am wrong about my conclusion about adjectival relevance for the issue of findings on the particulars pleaded in the complaint, I am satisfied that it is likely that the practitioner's health issues in 2014 will materially assist the tribunal determine appropriate final orders that are designed, amongst other matters, to protect the public … Accordingly I am satisfied the documents sought in the summonses have adjectival relevance."
9. The reference to "appropriate final orders" is plainly a reference to orders the Tribunal may make, after a finding of unsatisfactory professional conduct or professional misconduct, under s 562.

The application for leave to appeal

1. In his submissions to this Court, the applicant relied heavily upon the note made by the Deputy President at [29], that he: "… disavowed any reliance … on his physical or mental capacity to carry out his duties as a legal practitioner …" He sought to confine the issues in the substantive hearing in the Tribunal by reference to "the pleadings" - that is, the application by the Council and his Reply, in which no mention is made of his personal circumstances. He took issue with a reference in the judgment to a submission (concerning the deterioration in his health) in the 30 March 2015 letter which, he pointed out, was made by way of response to the Council at the investigation stage of the complaint, and upon which he placed no reliance for the purpose of the Tribunal hearing.
2. However, he acknowledged that at no stage in the hearing in the Tribunal did he give any indication that he did not intend to read the relevant passages in his affidavit. Nor did he seek to do so in this Court. Nor did he accept that the material concerning his personal circumstances was relevant only to the second stage of the Tribunal's inquiry, in the event that it found either unsatisfactory professional conduct or professional misconduct.
3. In those circumstances, the findings of the Deputy President were amply justified.

Determination

1. As s 562 of the LP Act makes clear, there are two sequential stages in the conduct of a hearing of an allegation of professional misconduct or unsatisfactory professional conduct. The first is whether either (and if so, which) of those allegations is made out. If either is, then the second stage is the determination of what consequential orders ought be made. In my opinion, a real question may arise as to the relevance of evidence of personal circumstances of a legal practitioner against whom allegations of unsatisfactory professional conduct or professional misconduct are made in relation to the first stage. That would, or might, turn upon the construction of s 497(1)(b), and particularly, the reference to whether the practitioner "is not a fit and proper person" to engage in legal practice. It is inappropriate further to explore that question here. No such question arises in relation to the second stage.
2. One difficulty the applicant faced (and faces) is that he did not, in tendering the references to his personal circumstances in his affidavit, distinguish between the two stages, or identify the basis upon which he included that evidence in his affidavit. It might be arguable that, if objection were taken to that part of the affidavit, the evidence would be rejected, at least at the first stage. But the Council cannot be expected to bide its time awaiting evidentiary determinations before preparing its case. As the Deputy President said, the applicant himself raised the issue of his personal circumstances and the Council responded by seeking to explore them.
3. There is no error in the Deputy President's holding that, the applicant having raised the issues, the Council was entitled to the means of exploring them.
4. In this Court, the applicant sought to raise an additional issue, pointing to the so-called "breadth" of the documents sought in each summons. There is no reference to any such submission in the judgment of the Deputy President, and no ground in the Draft Notice of Appeal identifies such a complaint. Senior counsel for the applicant referred to the written submissions made in the Tribunal, which concluded with the paragraph: "20 The wide formulation of the documents sought to be produced underlines the reality that this is indeed a 'fishing expedition' and access to the documents produced should be denied." I do not read this as a separate ground of complaint about the summonses, and that construction is confirmed by the absence of any reference to such a submission in the judgment.
5. At the time of hearing the application, this Court was provided only with the original orders made by the Tribunal, including the order granting access to the material produced to the Council. It was only after the conclusion of the hearing (and the announcement of the outcome) that this Court was provided with orders as varied by agreement. That variation resolved any doubts I had concerning the grant of leave to appeal. In fact (once it is accepted that the issue of production is otiose, and the real issue is access) there is nothing on which to grant leave to appeal. There is no extant order granting the Council leave to inspect the documents. The present order is that only the applicant has right to inspect, pending further order (of the Tribunal) or agreement between the parties.
6. In any event, if an application is made by the Council for access to the documents produced to the Tribunal, it would be open to the Tribunal to impose conditions on the grant of access. In view of this power, it cannot be said that the refusal of leave to appeal would cause significant injustice to the applicant.
7. For these reasons, I agree with the orders made on 14 June 2017.
8. SACKVILLE AJA: I agree with Simpson JA.

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