Mack v Council of the New South Wales Bar Association

Mack v Council of the New South Wales Bar Association - [2020] NSWCATOD 95 - NSWCATOD 2020 case summary — Zoe

[3]

The Interim Order sought

The order sought on the 'Application for stay or interim order' is: Pending further order of this Tribunal, the Respondent grant to the applicant a Practising Certificate effective from the date of this order.
In support of his application, Mr Mack relied upon his affidavit sworn on 24 July 2020, and the account of the report of Dr Jebejian given in the report of the Professional Conduct Committee to the Council.
In his affidavit of 24 July 2020, Mr Mack said that he had no source of income other than his work as a barrister. He listed five matters which he had not, at the time of swearing his affidavit, referred to other barristers. Two of those had non-finalising court attendance dates which have now passed. In addition to those five matters, for which he expected to be paid in the event that he could undertake the work, Mr Mack listed four matters in which he had promised to appear on a pro bono basis.
In his affidavit, Mr Mack said that he was $9,770 in arrears in his rent and approximately three months in arrears with respect to his utilities. He said that his two children typically stayed with him every second week, occasioning living expenses.
In his affidavit, Mr Mack suggested that the conditions set out in the first report of the Professional Conduct Committee could be attached to the practising certificate that he was seeking to have given to him on an interim basis. Those conditions are set out in [22] above.
Further, in his affidavit, Mr Mack said that 'With limited income from Centrelink, I have little prospect of catching up on each of the debts outlined above', that is, rent and utilities. He further said: 14. The proposed conditions involve me attending upon a particular psychiatrist. I have not been able to attend upon that psychiatrist because of a lack of funding. However, if my Practising Certificate is returned to me, I will seek to borrow funds to enable me to comply. At the time of making this affidavit, I am not aware of from where those funds will derive.
A page from the MyGov website was provided to the Tribunal recording 'Employment or Youth and Student Assistance Services' of $958.50 for 4 August 2020, $550 and $564.50 for 14 August 2020 and $550 and $564.50 for 28 August 2020. The page says 'Welcome back, Patrick' and was produced as a record relating to Mr Mack. As the date of the hearing was 14 August 2020, and 28 August 2020 was in the future as at the date of the production of the record, presumably some payment has been made in advance.
No other evidence of Mr Mack's financial position was provided.

[4]

Does the Tribunal have the power to make the interim order sought?

The substantive action in this matter is Mr Mack's application under s 100(1) of the LPUL for the administrative review of the decision of the Council to refuse to renew his practising certificate. Under Table 2 of s 11 of the Legal Profession Uniform Law Application Act 2014 (NSW), the Tribunal is the Designated Tribunal in relation to s 100, in relation to decisions under s 89 of the LPUL.
The effect of s125 of the Legal Profession Uniform Law Application Act 2014 is that the right to bring proceedings in the Tribunal in relation to a decision under s 89 of the LPUL is a right to apply for the administrative review of that decision under the Administrative Decisions Review Act 1997(NSW).
The LPUL provides, in s 100(3): (3) The designated tribunal may make any order it considers appropriate on an appeal or review under this section, including any of the following orders - (a) an order directing the designated local regulatory authority to grant, or to refuse to grant, an application for an Australian practising certificate; (b) an order directing the designated local regulatory authority to suspend for a specified period or cancel an Australian practising certificate, or to reinstate an Australian practising certificate that has been suspended or cancelled; (c) an order that an applicant or holder is not entitled to apply for the grant of an Australian practising certificate for a specified period not exceeding 5 years; (d) an order directing the designated local regulatory authority to vary an Australian practising certificate in the manner specified by the designated tribunal.
The LPUL also provides, in s 100(7): (7) In proceedings on an appeal or review under this section in which the question of whether a person is a fit and proper person to hold an Australian practising certificate is at issue - (a) the onus of establishing that a person is a fit and proper person to hold an Australian practising certificate is on the person asserting that fact; and (b) it is to be presumed in the absence of evidence to the contrary that any statement of facts in the reasons of the designated local regulatory authority for the decision concerned is a correct statement of the facts in the matter; and (c) a document that appears to be a document issued for the purposes of or in connection with any application, proceedings or other matter arising under the Bankruptcy Act is admissible in the proceedings and is evidence of the matters stated in the document.
The LPUL, in s 100(3), confers power upon the Tribunal to make orders of the kind specified in the subsection in finalisation of the application for administrative review. It is not clear, however, that s 100(3) of the LPUL confers power upon the Tribunal to make those same orders on an interim, or temporary basis. I note that various powers to make interim and temporary orders are conferred in Part 3.5, Division 2 of the LPUL, and that the conferral of power upon the Tribunal to make an order directing the Council (as the designated local regulatory authority) to grant a practising certificate on an interim or temporary basis is not among them. Mr Prince SC argued that it must be the case that what the Tribunal can do on a final basis under s 100(3)(a) of the LPUL, it must necessarily be able to do on an interim or temporary basis. However, no authority was cited for this proposition.
Mr Prince SC pointed out that the Supreme Court had, in the past, made orders directing a local regulatory authority to grant a practising certificate on an interim or temporary basis. The Supreme Court, however, has explicit powers under s 79 of the LPUL which are not granted to the Tribunal. The Supreme Court also has an inherent jurisdiction to make mandatory injunctions. The Tribunal does not have an inherent jurisdiction.
The Administrative Decisions Review Act 1997 provides, in s 60: 60 Operation and implementation of decisions pending applications for administrative review (1) Subject to this section, an application to the Tribunal for an administrative review under this Act of an administratively reviewable decision does not affect the operation of the decision under review or prevent the taking of action to implement that decision. (2) On the application of any party to proceedings for an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal may make such orders staying or otherwise affecting the operation of the decision under review as it considers appropriate to secure the effectiveness of the determination of the application. (3) The Tribunal may make an order under this section only if it considers that it is desirable to do so after taking into account: (a) the interests of any persons who may be affected by the determination of the application, and (b) any submission made by or on behalf of the administrator who made the decision to which the application relates, and (c) the public interest. (4) While an order is in force under this section (including an order that has previously been varied on one or more occasions under this subsection), the Tribunal may, on application by a party to the proceedings, vary or revoke the order by another order.
The decision appealed from, under s 100(1)(a) of the LPUL, is the decision by the Council to refuse to renew Mr Mack's practising certificate for the 2020/2021 financial year. The Tribunal has power under s 60(2) of the Administrative Decisions Review Act 1997 to 'make such orders staying or otherwise affecting the operation of the decision under review as it considers appropriate to secure the effectiveness of the determination of the application'; that is, the application for review.
It is arguable as to whether an order requiring the Council to issue Mr Mack with an interim or temporary practising certificate is an order 'affecting the operation of the decision under review'. The decision under review is a decision not to renew Mr Mack's practising certificate for the 2020/2021 financial year. The practising certificate held for the 2019/2020 year ceased on 30 June 2020. Arguably, the order sought by the applicant does not involve the 'renewal' of Mr Mack's practising certificate, but would require the Council to grant to Mr Mack a different kind of practising certificate from the one the subject of the application for renewal, namely a practising certificate which will operate on a temporary or interim basis pending the outcome of the substantive application for review. The argument against that is that a practising certificate is essentially the same instrument regardless of the duration of its prospective operation. Both parties assumed that the order sought would fall within s 60(2) of the Administrative Decisions Review Act 1997, so I will consider the matter on that basis.
It is also arguable as to whether such an order is 'appropriate to secure the effectiveness of the determination of the application for review'.

[5]

The applicant's argument

The applicant relied upon the decision of Deputy President Hennessy in Loveday v Commissioner for Fair Trading [2018] NSWCATAD 80 (Loveday). In Loveday, the applicant applied for the 'stay' of a decision not to grant a tattoo parlour operator's licence, and s 60(2) of the Administrative Decisions Review Act 1997 was considered in that context. The Tribunal said, at [7]-[8] and at [13]-[15], in relation to the meaning of 'appropriate to secure the effectiveness of the determination of the application for review: 7. According to the Commissioner for Fair Trading, the Tribunal must be satisfied, as a threshold issue, that Ms Loveday will suffer irreparable harm which would render the substantive application futile. As the inference can be drawn that the business is solvent, the Commissioner submitted that it is not necessary to grant a stay to secure the effectiveness of the hearing. 8. In my view, that is not the correct interpretation of the phrase "to secure the effectiveness of the determination of the application" in s 60(2) for two reasons. Firstly, contrary to the view expressed in Williamson, there is no 'threshold test" that needs to be passed. Section 60(2) and (3) give the Tribunal a single discretionary power to make a stay order or to refuse to make such an order taking into account all relevant considerations. Secondly, the words "to secure the effectiveness of the hearing" include a situation where the applicant will suffer irreparable loss in the sense that no recompense for it can be obtained if the application is ultimately successful: Re Pelling and Secretary, Department of Aviation [1984] AATA 179; (1984) 5 ALD 638 at 639. It is not confined to the situation where a hearing would be pointless because the applicant will go out of business if a stay is refused. I will elaborate briefly on each of these conclusions. … 13. In Williamson v Director General, Department of Transport [2000] NSWADT 165, the Administrative Decisions Tribunal, when interpreting the stay power in s 60, quoted several AAT decisions. In those decisions, the AAT held that the phrase means that without a stay: (1) the hearing will not be fully effective: Australian (NDT) Services Pty Ltd and Civil Aviation Safety Authority [1999] AATA 79 at [13]; (2) the hearing will be "jeopardised" or "rendered nugatory": Re Repatriation Commission and Delkou [1985] AATA 297; (1985) 8 ALD 454 at [8]; (3) the applicant will suffer serious irreparable harm, in the sense that no recompense for it can be obtained if the application for review is successful: Re Pelling and Secretary, Department of Aviation [1984] AATA 179; (1984) 5 ALD 638 at 639. 14. Of particular relevance in the context of the present case is the decision of Deputy President Thompson in Re Pelling and Secretary, Department of Aviation [1984] AATA 179; (1984) 5 ALD 638 at 639. I will set out the passage in full: "6 If, after the facts have been ascertained at the hearing, the Tribunal considers that the applicant did deliberately flout the law and that his conduct warrants suspension of his licences in spite of the hardship which it will cause him and the company, the right or preferable decision may well be to affirm the decision under review. But, if its implementation before the facts have been established is likely to cause him or the company serious irreparable harm (irreparable in the sense that no recompense for it can be obtained if the application for review is successful) and so to affect adversely the effectiveness of the hearing and determination of the application under review, it may be appropriate to stay the implementation of the decision pending the hearing and decision of the application. However, in considering whether that is so, it is necessary that their interests be weighed against the interest of the public in the safe operation of aircraft. Only thus can the right or preferable decision regarding the stay be given.". 15. In accordance with this passage, in my view, the phrase "to secure the effectiveness of the determination" includes taking into account circumstances where the applicant is likely to suffer irreparable harm in the sense that no recompense for it can be obtained even if the application for review is successful. That is the situation in this case.
It was submitted on behalf of the applicant that the Tribunal should take into account four overlapping factors in considering whether to make the order sought: the 'return to status quo', the fact that the Tribunal is now the decision maker, the 'substantial and permanent damage if interim order not made' and the prospect that people in need who would otherwise have the benefit of having Mr Mack represent them pro bono would not have that benefit.
The applicant's argument in relation to the status quo was that Mr Mack had held a practising certificate from 2009 until 30 June 2020, and that he should be able to continue to do so whilst the application for a review is heard and determined by the Tribunal.
The applicant argued that, because the substantive action is an application for a merits review, it is appropriate that the Tribunal consider the matter afresh. It was argued that the merit of the application is strongly arguable on the applicant's side, which supports the request for an order that an interim or temporary practising certificate be given to Mr Mack.
Mr Prince SC emphasised that Mr Mack should be given the full benefit of the presumption of innocence with respect to the charges.
It was argued that the applicant would suffer very significant loss if he is unable to practice. It was said that he has no other form of income other than his work as a barrister, and his arrears in rent and utilities place him in a position where it is crucial to him that he be able to work as a barrister. The suggestion that Mr Mack had the option to seek employment other than as a barrister was rejected as unreasonable.
The applicant relied upon the account of his mental health given in the report of the Professional Conduct Committee. No other evidence in relation to his mental health was provided, except for a brief report by a general practitioner which is discussed below at [91]. In oral submissions, Mr Mack's mental health was summarised by his counsel as being 'precarious', and it was acknowledged that he should be receiving treatment. In his affidavit, Mr Mack says that he is not receiving treatment because he cannot afford it.
The applicant provided medical certificates for the periods 22 April 2020 to 8 May 2020 and 18 May 2020 to 22 May 2020, both of which say that he was unfit for work on account of a 'medical condition'. In submissions, the applicant relied upon these medical certificates, which were said, in submissions, to allude to a mental health condition, to excuse his lateness in informing the Council of the second set of criminal charges which were laid on 18 May 2020.
Mr Prince SC argued that Mr Mack has practised as a barrister throughout two 'dramatic' relationships, without there being any indication that it affects his capacity as a barrister. It was argued that the duration of the order would be quite brief because the matter is listed for hearing on 24 November 2020.
With respect to the latest charge, Mr Prince SC said that it would be defended. The charge, under s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007, it was argued, requires the 'knowing' breach of an apprehended violence order and Mr Mack, it was said, would deny knowing that there was such an order in place with respect to his ex-wife at the times of the incidents alleged.

[6]

The respondent's argument

The respondent argued, and the applicant agreed, that the onus is on the applicant to satisfy the Tribunal that an order for a stay is appropriate.
The respondent referred to the following passage from AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81 in which Campbell JA observed, at [129] (Handley JA agreeing): There is an express statutory power for the Tribunal to grant or refuse a stay or other order "as it considers appropriate to secure the effectiveness of the determination of the application." In other words, the purpose of granting a stay or other order is connected with the determination of the application. "[S]ecur[ing] the effectiveness of the determination of the application" involves matters such as ensuring that the lapse of time before the determination is actually made does not deprive the review of practical point. It also involves considering the possibility that the result of the review might be that the decision is affirmed, with the consequence that if a section 60(2) order is granted the decision that the review ultimately decides was correct has not been implemented during the period of the section 60(2) order.
The respondent also referred to DAM v NSW Department of Education and Communities [2017] NSWCATAD 175, in which the Tribunal said, at [58]: A successful review would be useless or futile unless the stay was granted. In those circumstances a stay of the operation of a decision pending the review should therefore be granted. The overriding principle in any stay application is that of upholding the interests of justice in the particular circumstances, and the interests of justice in this matter appear to require that the decision not be acted upon until the review is determined.
It was submitted on behalf of the respondent that, in the event that the Tribunal finds that the applicant has shown that the order sought is necessary to secure the effectiveness of the determination of the application, then the Tribunal may grant the order only if the private interests outweigh the public interests. Williamson v Director General, Department of Transport [2000] NSWADT 165 was cited in support of this proposition.
The meaning of 'public interest' was explained in ICM Agriculture Pty Ltd v The Commonwealth [2009] HCA 51 at [20]: The term "in the public interest" is one of broad import. When used in a statute, the term classically imports a discretionary value judgment to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statute in question. …
The respondent highlighted the following objectives of the LPUL as set out in s 3: … (b) ensuring lawyers are competent and maintain high ethical and professional standards in the provision of legal services; and (c) enhancing the protection of clients of law practices and the protection of the public generally; and … (e) promoting regulation of the legal profession that is efficient, effective, targeted and proportionate; …
The respondent agreed that the phrase 'to secure the effectiveness of the hearing' in s 60(2) of the Administrative Decisions Review Act was not confined to a situation where a hearing will be pointless because, if there is no stay, the applicant will have gone out of business. The suffering of irreparable loss, in the sense that no recompense for it can be obtained if the applicant is ultimately successful, can be taken into account.
The respondent pointed out that the initial recommendation of the Professional Conduct Committee was never put to the Council and that, in any event, it was only a recommendation from which the Council was free to depart. The Council did not make any determination about whether Mr Mack was a fit and proper person to hold a practising certificate until its decision of 30 June 2020.
The respondent argued that the charges against the respondent were serious. The respondent argued that, until the charges were determined, it could be said that the applicant has an arguable case in the Tribunal on his application for a review of the Council's decision not to renew his practising certificate. However, a conviction on one or more of the charges would diminish the applicant's chances of success on the application for review.
With respect to the charge laid on 14 August 2020, Mr Griffin SC pointed out that it was alleged by the police in the 'Facts Sheet' served with the Court Attendance notice that the apprehended violence order the subject of the charge was served upon Mr Mack at Manly Court on 24 May 2019, and that the apprehended violence order is in place until 23 May 2021.
Emphasis was laid, in the respondent's argument, upon the repeated failure of the applicant to comply with his statutory obligations to inform the Council of charges and convictions within a time frame. These failures occurred in circumstances where the respondent, a barrister, was represented by solicitors. Furthermore, the relevant time frames had been pointed out by the Council in correspondence with the respondent's solicitors.
With respect to the applicant's argument that he would suffer substantial and permanent damage if an interim order is not made, the respondent pointed to the paucity of evidence provided. Mr Mack, in his affidavit, provided the information about rent and utilities mentioned above. The respondent drew attention to the fact that Mr Mack has been without a practising certificate only since 30 June 2020, so that the arrears of rent mentioned in Mr Mack's affidavit of 24 June 2020, and the three month default with respect to utilities largely pre-dated the time at which he ceased to hold a practising certificate. In Mr Mack's affidavit, he attributes the arrears of rent to his former partner having moved out and having failed to pay her agreed portion of the rent.
There is no reason to think that both the fee-paying and the pro bono briefs listed by Mr Mack in his affidavit could not be transferred to another counsel.
The respondent pointed out that no evidence had been provided of any attempt by Mr Mack to obtain work of any kind which did not require a practising certificate.

[7]

Consideration

The order sought by the applicant is an order requiring the Council to issue a practising certificate to Mr Mack until his application for a review of the Council's decision of 30 June 2020 to refuse to renew his practising certificate has been determined by the Tribunal. Under s 60(2) of the Administrative Decisions Review Act 1997, the Tribunal has power to make such an order only if it considers that it is appropriate to secure the effectiveness of the determination of the application. The Tribunal must also take into account the factors set out in s 60(3) of the Administrative Decisions Review Act 1997.
Both parties in this matter agreed, and I accept, that it was for the applicant to satisfy the Tribunal that it should make the interim or temporary order sought by the applicant. (see Segal v Medical Council of New South Wales [2020] NSWCATOD 86 at [42]). This is not a technical onus of proof, but a practical onus to prove the facts the appellant wishes to rely upon in support of his application (see Youssef v NSW Legal Services Commissioner [2020] NSWCATOD 85 at [31]).
The only issue advanced on behalf of the applicant in relation to the securing of the effectiveness of the determination of the application was the applicant's financial difficulties. There was evidence upon which I am prepared to assume that the applicant is in receipt of Centrelink payments. Apart from that, the only evidence of the applicant's financial difficulties appears in the applicant's affidavit of 24 July 2020. There is no evidence, for example, as to whether Mr Mack is awaiting the payment of outstanding fees or other debts, or whether he has any assets or other entitlements or prospects. In his affidavit, Mr Mack referred to arrears of rent which arose largely prior to 30 June 2020 when the applicant ceased to hold a practising certificate, and was attributed by the applicant to his former partner's failure to pay an agreed share of the rent. He also referred to payment for utilities being three months in default, which clearly related mostly to a period prior to 30 June 2020.
As I have said, Mr Prince SC rejected the suggestion that Mr Mack could seek work other than work as a barrister. Mr Prince SC rejected this suggestion at least partly on the basis of his assertion about the present state of Mr Mack's mental health. I am unable, on the evidence before me, to assess whether or not the applicant is fit to seek and perform work.
The evidence provided to the Tribunal as to Mr Mack's financial position is not adequate to enable me to make an assessment of his general financial position. It is clear from the evidence provided that, to the extent that he is experiencing financial difficulties, the cause or causes of those difficulties pre-date 30 June 2020 and cannot be entirely attributed to the Council's refusal to renew his practising certificate.
I am unable to determine, on the evidence provided, that the interim or temporary order sought is 'appropriate to secure the effectiveness of the determination of the application'. I can assume that Mr Mack's inability to accept briefs will be a limitation on his ability to generate an income, but I am unable, on the evidence before me, to say what the effect of that will be on his financial position as a whole or his ability to resume his practice should he succeed in his application for the review of the Council's decision. There is no evidence upon which I could make a finding that irreparable harm will be occasioned if a practising certificate is not given to him on a temporary or interim basis, in the sense that no recompense for it can be obtained even if the application for review is successful.
The requirements for an order under s 60(2) of the Administrative Decisions Review Act 1997 have not been established on the material before me. However, for completeness, I will consider the matters set out in s 60(3) of the Administrative Decisions Review Act 1997.
The Tribunal is required, under s 60(3)(a) of the Administrative Decisions Review Act 1997, to take into account: the interests of any person who may be affected by the determination of the application.
Mr Mack is the person who will primarily be affected. As I have said, I do not have sufficient information to assess the impact of the making of an order upon Mr Mack's financial interests. No information has been provided as to his usual income from his practice as a barrister, or the overhead costs of his practice. I take it as implicit in his submissions that he would expect to make a profit if he were permitted to practice until the determination of his application of a review of the Council's decision, but the likelihood that his expectation would be met has not been established. Mr Mack's children may be affected by the determination of the application for an interim order, but there is no evidence upon which I could assess the impact of the Tribunal's decision upon them.
The Administrative Decisions Review Act 1997, in s 60(3)(b) requires the Tribunal to take into account: any submission made by or on behalf of the administrator who made the decision to which the application relates.
The Council's submissions are summarised above.
Both parties made submissions about the applicant's prospect of success in his application for the review of the Council's decision of 30 June 2020. This is a relevant factor in the consideration of this application (see Segal v Medical Council of New South Wales [2020] NSWCATOD 86 at [42]). Allowing the applicant the full benefit of the presumption of innocence, as I do, my assessment of his prospect of success nonetheless more closely aligns to the Council's assessment as 'some prospect' in preference to the applicant's own assessment of 'more than strongly arguable'. Given the new charge on 14 August 2020, in particular, and the lack of engagement by the applicant with psychiatric or psychological assistance, on the evidence before me, there is no basis, as yet, upon which it could be established that the applicant is making headway in addressing the issues which brought the Council to its decision of 30 June 2020.
The Administrative Decisions Review Act 1997, in s 60(3)(c) requires the Tribunal to take into account: the public interest
I have set out in [66]-[68] above the submission of the Council with respect to the public interest, which I accept.
The Professional Conduct Committee, in its report to the Council of 27 June 2020, at paragraph 54, expressed concern about what the convictions in 2019 indicated about the applicant's lack of understanding of power dynamics in a domestic context, and the inference that could be drawn from that about whether the applicant was a fit and proper person to hold a practising certificate, particularly when the interests of vulnerable clients are considered. I share that concern.
The applicant's repeated failure to comply with statutory time limits in relation to his obligations to inform the Council with respect to any charges or convictions was of concern to the Council. Again, I share that concern. The reliance placed upon the medical certificate in relation to the applicant's failure to notify the Council of the second set of charges does not assuage that concern. This issue goes to fitness to practice. If, in May 2020, the applicant was unable to comply with his personal statutory obligation on account of his mental health condition, then, in circumstances where he has not sought any psychiatric or psychological treatment subsequently, doubt must remain about his ability to practice. I acknowledge that the applicant has provided the Tribunal with a brief report dated 17 June 2020 from a general practitioner which followed three telephone consultations. That general practitioner says, in the report, that the applicant: 'demonstrates no formal thought disorder and he has been doing what he needs to deal with his issues surrounding his traumatic relationship such as booking counselling with a psychologist and restarting his medications and in my opinion remains fit to practice but of course this will be dependent on the outcome of his review and management by his psychologist as I have not yet met him or reviewed him in person'. As I have said, there has been no subsequent treatment or review by a psychologist or psychiatrist on the evidence before me.
The applicant has not established that any client or solicitor would be adversely affected if the order sought is not made.
There is nothing in the consideration of the public interest which supports the making of the interim order sought.

At a glance

Court

Decision date

Source

Judgment (9 paragraphs)

Parties

Legislation Cited (7)

Cases Cited (9)