procedural. The applicant's application filed on 24 July 2020 for an order that, pending further order of the Tribunal, the respondent grant to the applicant a practising certificate from the date of this...
Key principles
The Tribunal may, under s 60(2) of the Administrative Decisions Review Act 1997 (NSW), make orders staying or otherwise affecting the operation of a decision under review, but an...
An interim order directing a designated local regulatory authority to grant a practising certificate will only be made where the applicant establishes on the material before the...
Repeated failures by a practitioner to comply with statutory notification obligations concerning charges and convictions, and contemporaneous evidence raising concerns about...
Issues before the court
Does the Tribunal have power to order the Council to grant an interim practising certificate pending review of a refusal to renew under the LPUL?
What is the onus and evidence required of an applicant seeking an interim order under s 60(2) ADRA?
How should the Tribunal weigh public interest and fitness-to-practise concerns when considering an interim practising certificate?
Plain English Summary
NCAT refused Mr Mack's application for an interim practising certificate while he sought merits review of the NSW Bar Council's decision refusing to renew his practising certificate. The Tribunal proceeded under s 60 of the ADRA (the stay power) and found the applicant had not proven on the evidence that an interim certificate was necessary to secure the effectiveness of the review. The decision balanced limited financial evidence and medical material against public interest concerns arising from prior convictions, new serious charges and repeated failures to notify the Council as required by the Legal Profession Uniform Law.
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Deep Dive
2,309 words · generated 30/06/2026
What happened
Patrick Fordham Mack, a practising barrister, applied for renewal of his practising certificate. Over time he disclosed and was convicted of certain offences (including domestic violence related offences and an offence under the Commonwealth Criminal Code), and was later the subject of further criminal charges. The Council of the NSW Bar Association ultimately resolved on 30 June 2020 that Mr Mack was not a fit and proper person to hold an Australian practising certificate and refused to renew his certificate for the 2020/2021 year. Mr Mack sought administrative review of that decision under s 100(1)(a) of the Legal Profession Uniform Law (LPUL) and, contemporaneously on 24 July 2020, applied to the NSW Civil and Administrative Tribunal (NCAT) for an interim order that the Council grant him a practising certificate pending the Tribunal's hearing of the substantive review (the interim application).
Cited legislation
7 cited instruments linked from this judgment.
The interim application was heard on 14 August 2020, at which hearing a further criminal charge alleged to have occurred between 5 and 12 August 2020 was disclosed. Mr Mack relied principally upon his financial circumstances (risk of insolvency and inability to pay rent/utilities), the psychiatric material before the Council, and a submission that conditions recommended by the Professional Conduct Committee (PCC) could be attached to any interim practising certificate. NCAT (Cole DCJ, Deputy President) refused the interim order on 25 August 2020, concluding that even if the Tribunal had power to make such an order under s 60 of the Administrative Decisions Review Act 1997 (ADRA), the applicant had not satisfied the Tribunal that the order was appropriate to secure the effectiveness of the review, having regard to the statutorily-prescribed considerations in s 60(3) ADRA.
Key procedural milestones and facts:
29 June 2018: Mr Mack applied for renewal and disclosed charges but did not comply with s 51 LPUL timelines for notification;
8 July 2019: convictions entered for certain offences; obligations under s 88 LPUL arose but were not timely observed;
2019–2020: PCC drafted conditions and recommended Mr Mack could be fit subject to specified conditions; Council delayed final determination pending further complaints and outcome of later charges;
18 May 2020: new charges laid; PCC recommended to Council that Mr Mack was not fit and proper; 30 June 2020: Council refused renewal;
24 July 2020: administrative review application and interim application filed; 14 August 2020 hearing of interim application; 25 August 2020: interim order refused.
Why the court decided this way
Legal foundation for interim relief
The Tribunal considered whether it had power to make the specific interim order sought, that is, an order requiring the Council to grant a practising certificate pending review. The primary statutory vehicle for interim relief in an ADRA review is s 60(2) of the Administrative Decisions Review Act 1997 (NSW), which authorises the Tribunal 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" (see the judgment's statement of s 60 at [41]-[43]). The LPUL itself (s 100(3)) lists final orders the Tribunal may make on review (including an order directing the local regulatory authority to grant or refuse an application for an Australian practising certificate), but s 100(3) does not expressly confer interim powers. The Tribunal noted that the Supreme Court has broader, explicit powers under s 79 LPUL and inherent jurisdiction, which the Tribunal does not possess (see discussion in Reasons, notably the analysis of s 100(3) and whether it confers interim power).
Onus and evidentiary standard
The Tribunal emphasised that the onus lies on the applicant to satisfy the Tribunal that interim relief should be granted, a practical onus to make out the facts relied upon (citing Segal and Youssef for the approach to onus in interim/APPLICATIONS (see [62])). Section 60(3) ADRA prescribes specific factors the Tribunal must consider before making a stay order: interests of any persons who may be affected, any submissions by the administrator (the decision-maker), and the public interest.
Why applicant failed
The applicant principally relied upon financial hardship. The Tribunal accepted that inability to practice would limit income, but found the financial evidence inadequate to show irreparable harm or that private interests outweighed public interest. The affidavit showed rent and utilities arrears, but those debts largely pre-dated cessation of the practising certificate and were explained in part by the conduct of a former partner. Little detail was provided about assets, outstanding fees, prospective receipts, overheads or attempts to obtain other work. The Tribunal observed that transfers of existing matters to other counsel were possible (so potential loss of fees could be mitigated) (see consideration of applicant's financial material).
The Tribunal also gave weight to the public interest, as mandated by s 60(3)(c) ADRA and the objectives of the LPUL (including client protection and maintenance of high ethical standards). It noted the PCC's concerns about the 2019 convictions, which reflected a lack of understanding of power dynamics in a domestic context and suggested potential risks to vulnerable clients. Further, Mr Mack had repeatedly failed to comply with mandatory notification obligations under ss 51 and 88 LPUL (timely notifying the Council of charges and convictions). Such non-compliance, particularly by a solicitor or barrister who was represented by solicitors when deadlines were pointed out, undermined confidence in his compliance with professional obligations. The Tribunal noted the absence of ongoing psychiatric treatment despite prior recommendations and the effect of a fresh charge disclosed on 14 August 2020 (alleging contravention of an apprehended violence order). These matters reduced the applicant's prospects on review and increased the public interest against interim relief.
Balancing and discretion
Even accepting arguable merit and presumption of innocence, the Tribunal concluded that the applicant had not established the kind of irreparable loss or future inability to obtain recompense that would justify staying the Council's decision pending review. The "effectiveness" threshold under s 60(2) was not met on the evidence. Accordingly, the Tribunal refused the interim order.
Before and after state of the law
Before this decision
The statutory framework for interim relief in ADRA reviews was well-established: s 60 ADRA supplies the stay power with prescribed considerations; LPUL s 100(3) prescribes the Tribunal's final powers on review; jurisprudence had developed the content of the "effectiveness" threshold, and authorities such as Williamson, Re Pelling and Loveday had discussed how irreparable harm and the interests of justice engage the stay discretion.
This decision's effect
Mack v Council of the NSW Bar Association applies existing principles rather than creating novel law. It confirms that:
NCAT will approach applications for interim practising certificates under s 60 ADRA and will require the applicant to make out a clear factual case showing appropriateness of interim relief, particularly where fitness to practise and public protection issues are engaged.
The Tribunal is cautious about using s 60 to direct a regulatory authority to grant a practising certificate where the regulator has formed concerns about fitness and compliance with statutory obligations; limited financial hardship evidence will not ordinarily suffice.
The decision also reiterates the distinction between the Tribunal's lack of inherent jurisdiction and the Supreme Court's broader powers under s 79 LPUL.
Key passages with plain-English translation
Key passage: "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.'"
Plain English: The Tribunal can make temporary orders that pause or alter the effect of the decision being challenged, but only if doing so helps ensure the review hearing will be meaningful.
Key passage: "The onus is on the applicant to satisfy the Tribunal that it should make the interim or temporary order sought."
Plain English: It is the person asking for the temporary order who must prove they deserve it; the Tribunal will not grant it just on assertion.
Key passage: "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'."
Plain English: Given the evidence presented, the Tribunal could not be convinced that giving a temporary practising certificate was necessary to make the final review useful or effective.
Key passage: "The applicant's repeated failure to comply with statutory time limits ... was of concern to the Council. Again, I share that concern."
Plain English: The Tribunal agreed with the regulator that the applicant's failure to follow mandatory reporting rules was worrying and relevant to his fitness to practise.
When citing the reasons, see the Tribunal's statutory analysis of s 60 and its application to the facts and the public interest considerations discussed in the Reasons (see the sections summarising s 60(2)-(3) and the Tribunal's Consideration).
What fact patterns trigger this precedent
This decision will be most directly applicable where:
An occupational licence-holder (here a legal practitioner) seeks an interim reinstatement or grant of a practising certificate while seeking merits review of a regulator's refusal to renew or to issue a licence; and
The regulator's decision rests upon concerns about fitness to practise, including convictions or serious charges, and repeated non-compliance with statutory duties (for example, mandatory reporting/notification obligations); and
The applicant's evidence in support of the interim relief is limited principally to financial hardship and contains little verifiable material showing imminent irreparable harm or inability to obtain recompense if the appeal succeeds; and/or
There is material on the regulator's file (or subsequent allegations) that raises public protection concerns or undermines confidence in the applicant's present fitness to practise.
In such fact patterns, Mack indicates the Tribunal will require cogent evidence of irreparable harm, clear prospects on the merits, and a compelling balance of private against public interests before directing a regulator to grant interim practising authority.
How later courts have treated it
This decision is a tribunal-level decision (NCAT Occupational Division) applying established statutory tests under s 60 ADRA and s 100 LPUL and citing recent tribunal and court authorities. It is consistent with prior lines of authority that require applicants to establish a strong factual case for interim relief and to permit public interest concerns to weigh heavily where public protection is engaged. As a NCAT decision, it is persuasive rather than binding on courts; its force will be strongest in similar tribunal settings and in licensing/regulatory contexts where ADRA's stay power is engaged.
Practitioners should monitor subsequent NCAT and court decisions for any refinement on:
When an interim practising certificate should be characterised as an order 'affecting the operation of the decision under review' under s 60(2);
How much and what kind of financial or other evidentiary material will suffice to establish 'irreparable harm' within the meaning discussed in Re Pelling and followed in Loveday.
Still-open questions
Scope of s 100(3) LPUL for interim relief: The Tribunal observed that s 100(3) lists final relief and it was unclear whether those powers extend to interim orders. The decision proceeded on s 60 ADRA, but left some uncertainty about whether the LPUL itself contemplates interim equivalents to final powers. That question may arise in future litigation, particularly if the Tribunal is asked to make novel interim orders that more closely replicate s 100(3) remedies.
Characterisation of a practising certificate: The judgment noted it is arguable whether an interim practising certificate is simply 'affecting the operation' of the refusal to renew or is the grant of a distinct instrument. That characterisation could be decisive in borderline cases; future cases may clarify whether a temporary certificate is legally distinguishable from a renewal for stay purposes.
Quantum and character of financial evidence required: Mack demonstrates NCAT expects detailed financial material to demonstrate that loss is irreparable in the sense that no recompense could be obtained if review succeeds. The precise quality and quantity of evidence necessary to satisfy s 60(2) remains to be developed, for example, whether a comprehensive cashflow, bank statements, letters indicating lost briefs, or expert affidavit evidence of insolvency risk would change outcomes.
Weight to be given to pending criminal charges: The Tribunal gave substantial weight to prior convictions and new charges. The interaction between the presumption of innocence and weight to be given to pending charges when considering interim professional licences requires further judicial elaboration. Future decisions may offer guidance on how to balance presumption of innocence with regulatory precaution.
Conditions attaching to interim licences: The Tribunal accepted as a possibility that conditions like those suggested by the PCC could be attached to a practising certificate, but concluded absence of ongoing treatment undermined confidence. There remains room for jurisprudential development on when conditional interim licences (e.g. mandatory psychiatric supervision, monitoring reports, practice restrictions) are an appropriate safeguard to reconcile private hardship and public protection.
Practical takeaways for practitioners
When seeking interim relief from NCAT in a regulatory licensing context, prepare comprehensive, contemporaneous evidence: detailed financial records, proof of lost or untransferable work, strong medical evidence (where relevant), and robust submissions on prospects of success.
Anticipate and address the public interest dimension: detail safeguards (conditions, supervision, limitations) and show engagement with treatment or remediation where fitness to practise concerns arise.
Where the regulator has formed concerns arising from criminal convictions or serious allegations, expect the Tribunal to place the public interest and client protection weightily in the balance.
This decision is a useful and cautionary reminder that interim relief restoring a regulated professional to practice will not be lightly granted where public protection concerns and statutory non-compliance are on the regulator's file, and that the applicant bears the evidential burden to demonstrate necessity for the relief sought.
Judgment (9 paragraphs)
[1]
REASONS FOR DECISION
The Council of the NSW Bar Association ('the Council') refused Mr Mack's application for the renewal of his practising certificate on 30 June 2020. Mr Mack seeks certain interim orders pending the hearing and determination of his application to the Tribunal for the review of that refusal. The hearing of the application for the review of the refusal is listed for hearing on 24 November 2020.
[2]
Background
Mr Mack, who was then practising as a barrister, applied for the renewal of his practising certificate under the Legal Profession Uniform Law (NSW) ('the LPUL') on 29 June 2018. Mr Mack disclosed, with that application, that he had been charged with the following three offences:
1. use carriage service to menace/harass/offend, contrary to s 474.17(1) of the Criminal Code Act 1995 (Cth)
2. two offences of stalk or intimidate intending to cause fear of physical or mental harm (domestic violence offences) pursuant to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).
The alleged victim of the offences was Mr Mack's former wife.
Under s 51 of the LPUL, it was a statutory condition of Mr Mack's practising certificate that he notify the Council, in writing, within 7 days of being charged with or convicted of a serious offence, a tax offence or an offence specified in the Uniform Rules. A 'serious offence' under the LPUL includes an indictable offence, and the offences of which Mr Mack was convicted are indictable offences.
Mr Mack did not inform the Council of the charges within 7 days of being charged.
The charges constituted 'show cause' events (see s 86 of the LPUL).
In his letter to the Council, Mr Mack said that he intended to plead not guilty, and that the charges were listed for hearing at the Manly Local Court on 27 August 2018.
Mr Mack was required, under s 88(3) of the LPUL, to give notice of the charges to the Council within 7 days because they constituted show cause events. He was also required to give the Council a statement about the show cause event in which he explained why he considered himself to be a fit and proper person to hold a practising certificate.
As I have said, Mr Mack failed to inform the Council of the charges within 7 days.
On 12 July 2018, the Council sought from Mr Mack an explanation, by 20 July 2018, as to why notice of the charges had not been given to the Council within 7 days. No explanation was forthcoming within that time frame. An email was sent to Mr Mack on 26 July 2018, requesting a response by 10 August 2018.
On 16 August 2018, Mr Mack sent an email to the Council saying that the charges had caused him stress and that he was not aware of his 'precise' obligations under s 51 of the LPUL. Mr Mack indicated that he moved 'the file to the back of the cabinet' on account of his 9 year old daughter, who he described as 'a sticky beak'.
On 28 February 2019, the Council resolved that no further action would be taken in respect of the late disclosure of the charges. Mr Mack's solicitors were informed of that decision by letter of the Council dated 8 March 2019. In that letter, Mr Mack's obligations under s 51 and s 88 of the LPUL to inform the Council within 7 days in the event that he was convicted on any one or more of the charges, and to provide a written statement explaining why, despite the show cause event, he considered himself a fit and proper person to hold a practising certificate were clearly set out.
Mr Mack was issued a practising certificate effective from 8 March 2019 to 30 June 2019. This was referred to in the Professional Conduct Committee Report as the 2018/2019 practising certificate.
After 30 June 2019, the 2018/2019 practising certificate continued in operation under Rule 17(2) of the Legal Profession Uniform General Rules 2015 (NSW). The Bar Council was considering complaints concerning Mr Mack's conduct of several cases and awaiting the outcome of the three charges.
On 26 July 2019, by letter, Mr Mack's solicitors informed the Council that, on 8 July 2019, convictions had been entered against Mr Mack at Manly Local Court with respect to the charge under s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 and one of the charges under s 474.17(1) of the Criminal Code Act 1995.
Mr Mack's solicitors informed the Council, in the letter of 26 July 2019, that Mr Mack had applied to the Local Court to have the charges dealt with under either s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW) or s 20BQ of the Crimes Act 1914 (Cth). Both of those applications had been refused. Mr Mack then pleaded guilty to the two offences of which he was then convicted. Mr Mack's solicitors told the Council that, immediately after the convictions, Mr Mack left for a two week holiday with his children. The letter said that:
It was only on 24 July 2019 that [Mr Mack] was able to request from the Court, documents confirming his conviction.
In the letter, Mr Mack's solicitors sought the Council's 'forgiveness' for Mr Mack's failure to disclose the convictions within a 7 day period.
In relation to the offence under s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007, Mr Mack was sentenced to a community correction order to be of good behaviour for a period of 12 months and to continue treatments in accordance with medical advice. In relation to the offence under s 474.17(1) of the Criminal Code Act 1995, Mr Mack was released without sentence on condition that, upon giving up security in the amount of $500, he comply with a conditions to be of good behaviour for a period of 12 months and 'take prescribed medication/attend counselling/treatment in accordance with medical advice'.
Enclosed with the letter of 26 July 2019 was a report of Dr Jebejian, a psychiatrist. Dr Jebejian said that, at the time of his offending, Mr Mack was suffering from Major Depressive Disorder and Major Unresolved Grief Disorder. Dr Jebejian recommended that Mr Mack remain in the treatment of a psychologist for at least 6 months. Dr Jebejian said that if Mr Mack continued to engage with treatment to address his mental illnesses:
Then his prognosis would be significantly improved and his risk of re-offending significantly mitigated.
By 26 August 2019, 42 days after the convictions on 8 July 2019, Mr Mack had not provided the written statement he was obliged to provide within 7 days of conviction under s 88(2)(b) of the LPUL. The Council wrote to his solicitors, alerting them to the default and seeking the statement by 5pm on 25 September 2019. The failure to provide written notice within 7 days of the conviction, contrary to s 88(2)(a) and s 88(3)(a) of the LPUL was also mentioned in that letter as a matter to be considered by the Professional Conduct Committee.
A draft written statement was produced to the Council on 24 September 2019. Mr Mack signed it on 30 September 2019. Mr Mack relied on the report of Dr Jebejian, noting that the illnesses diagnosed did not excuse his conduct, but asserting that the conduct the subject of the charges was not 'illustrative of [his] conduct generally'. Mr Mack apologised for not providing the written statement earlier, saying that he was not aware of his obligations under s 88 of the LPUL.
The Professional Conduct Committee generated a draft report dated 2 March 2020, recommending to the Council that Mr Mack be found to be a fit and proper person to hold a practising certificate, but that the practising certificate should be subject to the following conditions:
(a) Mr Patrick Fordham Mack shall attend on Dr Arin Jebejian, psychiatrist (medical specialist) for medical examination and treatment, and shall act in accordance with medical advice given to him by the medical specialist, including but not limited to medication to be taken;
(b) Mr Patrick Fordham Mack shall arrange for his medical specialist to provide a written report to the Bar Council every three months regarding Mr Patrick Fordham Mack's attendance on the medical specialist, his compliance with any treatment recommended by the medical specialist and his progress and any continuing treatment recommended by the medical specialist;
(c) The first quarterly report of the medical specialist is due on 16 June 2020 and, thereafter, quarterly reports will be due on 16 September 2020, 16 December 2020 and 16 March 2021;
(d) Mr Patrick Fordham Mack shall, within seven days of conditions (a)-(e) being attached to his practising certificate, inform his medical specialist in writing of the terms and duration of conditions (a)-(e) attached to his practising certificate and shall provide a copy of such letters to the Bar Council within 10 days thereafter; and
(e) Mr Patrick Fordham Mack shall meet the costs of the medical specialist on a continuing basis.
Mr Mack was provided with a copy of the draft report, for his comment. His solicitors indicated, on 30 March 2020, that there was no objection to the proposed recommendation in the draft report.
The Professional Conduct Committee had not generated a final report when, on 29 May 2020, the NSW Police contacted the Council to disclose that Mr Mack had been arrested, on 18 May 2020, and charged with a number of offences.
Later on 29 May 2020, the Council received a letter from Mr Mack's solicitors informing the Council of the charges. Two apprehended violence orders were attached to the letter; one of which was issued against Mr Mack's partner at the time named Mr Mack as the person in need of protection, and the other of which was issued against Mr Mack and named Mr Mack's partner as the person in need of protection.
The report of the Professional Conduct Committee of 27 June 2020 says that the charges laid against Mr Mack on 18 May 2020 comprised two charges of stalking and intimidating intending to cause fear of physical and mental harm, two charges of assault occasioning actual bodily harm and one charge of common assault. I acknowledge that the precise charges in any matter may change prior to the matter being finally determined. The allegations underlying the charges, which are set out in the Professional Conduct Committee report of 27 June 2020, are serious.
Mr Mack's former partner was the alleged victim in relation to all of the charges. Mr Mack intends to plead not guilty to all charges.
Mr Mack had, once again, failed to inform the Council within 7 days that he had been charged, contrary to s 51 of the LPUL.
The Professional Conduct Committee resolved to recommend to the Council that, for the purposes of s 89(1) of the LPUL, it determine that Mr Mack is not a fit and proper person to hold an Australian practising certificate and, further, that pursuant to s 89(2)(b) of the LPUL, the Council refuse to renew Mr Mack's practising certificate on the basis that he has not shown that he is a fit and proper person to hold a practising certificate.
On 30 June 2020, the Council resolved that Mr Mack was not a fit and proper person to hold an Australian practising certificate and further resolved to refuse to renew Mr Mack's practising certificate for the 2020/2021 financial year.
On 24 July 2020, Mr Mack sought the administrative review by the Tribunal from the decision of the Council under s 100(1)(a) of the LPUL.
Also on 24 July 2020, Mr Mack filed in the Tribunal an 'Application for stay or interim order" which is the subject of this decision.
The hearing of the 'Application for stay or interim order' was convened on 14 August 2020. At the beginning of the hearing, counsel for Mr Mack, Mr Prince SC, disclosed that, overnight, Mr Mack had been charged with contravening a prohibition/restriction in an apprehended violence order (domestic), contrary to s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007. The Court Attendance Notice was provided to the Tribunal. The alleged victim was Mr Mack's former wife. The offence is alleged to have been committed between 5:28pm on 5 August 2020 and 9:00am on 12 August 2020 at Croydon. Mr Mack was summonsed to attend the Burwood Local Court on 20 August 2020 in relation to the charges.
[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.
[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.
[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.
[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. …
[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.
[8]
Conclusion
Having regard to all of the matters under s 60(3) of the Administrative Decisions Review Act 1997, I determine that, even if the Tribunal has power to make the interim order sought under s 60(2) of the Administrative Decisions Review Act 1997, I am not satisfied that the order should be made.
I make the following order:
1. The applicant's application filed on 24 July 2020 for an order that, pending further order of the Tribunal, the respondent grant to the applicant a practising certificate from the date of this order, is refused.
[9]
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: 25 August 2020
The applicant's application filed on 24 July 2020 for an order that, pending further order of the Tribunal, the respondent grant to the applicant a practising certificate from the date of this order, is refused.
No other evidence of Mr Mack's financial position was provided.
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'.
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.
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.
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.