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MN Legal and Management Consultants Pty Ltd v The Council of the Law Society of New South Wales; Michail v The Council of the Law Society of New South Wales - [2018] NSWSC 1410 - NSWSC 2018 case summary — Zoe
MN Legal and Management Consultants Pty Ltd v The Council of the Law Society of New South Wales; Michail v The Council of the Law Society of New South Wales
proceedings 2018/27265)
Nancy Michail (Plaintiff in proceedings 2018/46860 & 2018/85144 and Second Plaintiff in proceedings 2018/27265)
The Council of the Law Society of New South Wales (Defendant)
Representation: Counsel:
Nancy Michail - In person (Plaintiffs)
T L Wong (Defendant)
On 18 July 2017, the Legal Services Commissioner ("the Commissioner") initiated a complaint against the solicitor, Nancy Michail, who is the plaintiff in proceedings 2018/46860 & 2018/85144. I shall refer to her as "the Solicitor". The complaint arose as a result of a letter sent to the LSC by the Associate to Judge Gibson of the District Court of New South Wales.
The Complaint set out 22 allegations regarding the Solicitor's conduct, which can be summarised as follows:
(a) inappropriate communications to and/or about the NSW District Court and the NSW Court of Appeal (Allegations 1 to 2);
(b) inappropriate communications to and/or about Judge Gibson of the District Court, the Chief Judge of the District Court, Registrar Riznyczok of the Court of Appeal, Justice Emmett of the NSW Court of Appeal and the Chief Justice of the Supreme Court (Allegations 3 to 7);
(c ) misleading and/or attempting to mislead the NSW Court of Appeal about having obtained permission from the District Court to make a voice recording of District Court proceedings and illegal and/or improper recording of District Court proceedings (Allegations 8 to 9);
(d) inappropriate communications to and/or about politicians and other office-holders (Allegations 10 to 13);
(e) inappropriate communications about legal practitioners (Allegations 14 to 19);
(f) inappropriate communications to and/or about the NSW Police, the Independent Commission Against Corruption and the NSW Department of Justice (Reporting Services Branch) (Allegations 20 to 22).
The Complaint stated that the alleged conduct, if substantiated, was capable of amounting to professional misconduct, because:
(a) The alleged conduct occurred in connection with the practice of law and amounts to a substantial and/or consistent failure to reach or maintain a reasonable standard of competence and diligence; and/or
(b) regardless of whether or not the alleged conduct occurred in connection with the practice of law, the alleged conduct justifies a finding that Ms Michail is not a fit and proper person to engage in legal practice; and/or
(c) the alleged conduct would reasonably be regarded as disgraceful or dishonourable by professional brethren of good repute and competency.
On 6 September 2017, the Commissioner wrote to the Solicitor informing her of the initiation of the Complaint and advising her that it was investigating the Complaint as a disciplinary matter pursuant to ss 270 and 282 of the Legal Profession Uniform Law (NSW). The letter requested a full and detailed response to each allegation including any relevant supporting documentation. In addition to any submission that the Solicitor wished to make, the Commissioner asked that she address a series of specific questions listed in the letter.
The Solicitor telephoned the Commissioner on 12 and 13 September 2017 and queried whether the Uniform Law was applicable to her conduct in light of the fact that she appeared in the District Court and Court of Appeal as a litigant in person and not a solicitor representing a litigant. By a letter dated 13 September 2017, the Commissioner informed the Solicitor that Chapter 5 of the Uniform Law applied to her conduct, whether occurring in connection with, or otherwise than in connection with, the practice of law, under s 297(1)(b) of the Uniform Law.
On 7 October 2017, the Solicitor submitted a number of documents to the Commissioner in response to the Complaint. These documents included a report dated 28 September 2017 from her treating psychiatrist, Dr Vladimir Sazhin, which relevantly stated:
As you know, Ms Michail lodged a claim in the NSW District Court for defamation and breach of contract resulting in a psychological injury.
She subsequently developed severe major depression in the context of her father's death and difficulties coping with the legal proceedings. I refer to my letter dated 29 April 20161 supported her request for the required assistance for the interlocutory proceedings.
On 28 September 2016, Ms Michail found her younger sister, with whom she was very close, dead.
Ms Michail's condition deteriorated significantly and her depression got worst. She has been under my care over the last two years and, at this stage, she is not able to cope with her personal traumas and legal difficulties. She suffers from major depression and her admission to a psychiatric facility is being contemplated because of her severe depressive symptoms and suicidal ideation.
In my opinion, she is unable to participate in the investigation as it will be detrimental to her at this stage.
The Solicitor also submitted a letter from Dr Sazhin dated 28 April 2016, that relevantly stated:
... Ms Michail has reported continuously struggling with suicidal thoughts since towards the end of 2015, and suffering from insomnia and lack of concentration due to the actions of her previous employer, their lawyers and the way in which the District Court of New South Wales conducts the proceedings.
Ms Michail presented as typically clinically depressed patient with unresolved issues with of the loss of her father, and self blame. It is my view that the events reported by Ms Michail herein caused Ms Michail to relapse into depression.
It is my opinion that due to Ms Michail's relapse into clinical depression and her struggles with suicidal thoughts and insomnia, which lead to lack of concentration, Ms Michail was unable to conduct the proceedings without assistance.
Notwithstanding that Ms Michail is currently being treated for the clinical depression, grief and self-blame, Ms Michail is unable to conduct these interlocutory proceedings in her capacity as solicitor and barrister, and requires support.
In response to the Complaint, the Solicitor in her letter of 7 October 2017 also relied upon a document entitled "Request for justice based on brief summary of evidence to factual bases that extended of (sic) the period of approximately two (2) years". The document commenced by saying that the Solicitor was seeking justice from the Christian Democratic Party, and the covering letter to the Commissioner's office said that the document was sent to that Party on 7 March 2017.
In that document containing, with annexures, more than 200 pages, the Solicitor repeated a number of allegations that she had previously made in relation to the NSW District Court, the NSW Court of Appeal and certain politicians, government authorities and legal practitioners, which were the subject of the Complaint. The Solicitor did not make any significant attempt to respond to any of the Commissioner's specific requests for information set out in the Commissioner's letter of 6 September 2017.
[4]
Referral to the Law Society
On 17 November 2017, the Commissioner requested the Law Society to consider taking action to vary, suspend or cancel the Solicitor's practising certificate under s 82 of the Uniform Law. The letter relevantly stated:
In light of Dr Sazhin's psychiatric medical opinion, this office considers that it is not appropriate to progress the investigation about Ms Michail. This office has specific concern about Dr Sazhin's view of Ms Michail's "suicidal ideation". I note that there may be utility in obtaining a more detailed medical opinion and or a second opinion.
This office is also mindful of our protective functions in relation to the Uniform Law. In light of Dr Sazhin's psychiatric medical opinion, this office has concerns about Ms Michail's present and future ability to practice (sic) law. If Ms Michail is medically unable to participate in a professional disciplinary investigation of serious allegation about her conduct, this office has concerns about her ability to participate in any legal practice on behalf of any client.
On 18 December 2017, Ms Anne-Marie Foord of the Law Society sent a letter to the Solicitor informing her that she would be asking the Law Society at its next scheduled meeting on 18 January 2017 to consider the immediate suspension of the Solicitor's practising certificate and the appointment of a manager to her practice. In the letter, Ms Foord invited the Solicitor to make such written submissions and provide such material as she may have wished the Law Society to consider.
On 20 December 2017, the Solicitor sent an email to the Law Society attaching a letter from Dr Sazhin to the Law Society dated 19 December 2017. The letter stated:
Ms Michail has been my patient for the past three years due to a psychological injury she sustained because of workplace bullying and defamation, and the subsequent Court proceedings.
In my opinion, these traumatic events coincided and were associated with her two personal losses, tragic death of her father and her younger sister. It took more than two years for Ms Michail to process and recover from these traumatic events - both personal and professional. She was so traumatized by these events that she became very distressed preparing for the investigation of The Office of the Legal Services Commissioner. As her treating doctor, I would expect her mental health to deteriorate, should Ms Michail participate in this investigation re-living her traumas.
The main goal of, Ms Michail's treatment is to move on with her career and to focus on the hope she has for future, not to continue to live and relive the past.
Therefore, suspending her practising certificate would detrimentally affect and impede on her psychological recovery.
Ms Michail is currently fit to perform her professional duties and need to get the complaints against her to be resolved as soon as practical.
On 18 January 2018, the Law Society made a number of resolutions, including:
(a) to suspend immediately the Practising Certificate of the Solicitor pursuant to s 77 of the Uniform Law on the grounds that the Law Society was considering whether to continue or complete action under Part 3.5 of the Uniform Law, and "[the Law Society] considers it necessary in the public interest to suspend the Solicitor's Practising Certificate immediately"; and
(b) to appoint Richard Stephen Savage as Manager of the Law Practice known as MN Legal for a period of two years.
(the January Resolution)
The Law Society sent notices to the Solicitor informing her of these resolutions, and it received responses from the Solicitor to those notices on 23 and 29 January 2018.
On 6 February 2018, the Law Society sent a notice to the Solicitor under s 95 of the Uniform Law, requiring her to be examined by a medical practitioner. On 19 March 2018, the Law Society withdrew the requirement under s 95, but invited the Solicitor to agree to such a course with the costs of the examination to be met by the Law Society.
On 15 February 2018, the Law Society resolved pursuant to s 82(1) of the Uniform Law to suspend the Solicitor's practising certificate to 30 June 2018 (the February Resolution). The Law Society's decision was based upon the following grounds:
(a) the Solicitor's conduct in her communications with the NSW District Court and her opponents, as well as her behaviour in Court which, if found to have occurred, was capable of being professional misconduct;
(b) the Solicitor's failure to cooperate with the complaint investigation, and in particular, the materially inadequate nature of her response to the Complaint and failure to address the numerous specific questions asked by the Commissioner about the complaint;
(c) the contradictory nature of the medical evidence regarding the Solicitor; and
(d) actions taken by the Solicitor to impede the manager appointed to MN Legal.
In relation to the medical evidence of the Solicitor's fitness to practise, the Law Society made the following observations:
... On 19 December 2017 Dr Sazhin states: "Ms Michail is currently fit to perform her duties ". It is difficult to see how the Solicitor can, in under three months, change from a situation where her medical practitioner is contemplating admission to a psychiatric facility to her being fit to perform her duties. He also states; "I would expect her mental health deteriorate, should Ms Michail participate in this investigation re-living her traumas." Dr Sazhin does not explain the Solicitor's rapid recovery which seems unlikely given the long history of depression dating from 2014 nor how she is fit to practice (sic) but not fit to respond to the complaint.
The Law Society concluded that the Solicitor was medically unfit to continue in practice and that the protection of the public warranted the immediate cessation of the Solicitor's right to practise.
After notice was given to the Solicitor of the January Resolution she caused her consulting company MN Legal and Management Consultants Pty Ltd to commence proceedings 2018/27265 appealing from the resolution of the Law Society appointing a manager to her practice. That summons has been amended a number of times but the form of the amended summons which came before me for hearing, filed on 3 April 2018, sought that the resolution of the Council of the Law Society to appoint a manager be set aside. The appeal grounds were said to be:
(1) Section 358 of Legal Profession Uniform Law Act (2014) (NSW).
(2) Resolution is illegal, irregular and/or not made in good faith; and/or defendant contravened rule of law and/or legalities.
Since at the time these proceedings were commenced by the Solicitor her practising certificate had been suspended under s 77, rule 7.1 of the Uniform Civil Procedure Rules 2005 (NSW) applied which required her as MN Legal's director to be joined as a party to the proceedings. She would also need to have a cause of action herself against the Law Society: Tanamerah Estates Pty Ltd as the trustee for Alexander Superannuation Fund v Tibra Capital Pty Ltd [2013] NSWCA 266 at [15]-[16].
When I pointed out this Rule to the Solicitor at the hearing, she requested that she be joined as a plaintiff to those proceedings. There was no objection to that course by counsel for the Law Society. In circumstances where she was the principal of the firm carrying on the practice through the medium of the company I considered that she would have such a cause of action to challenge the appointment of the manager. Accordingly, I made an order joining the Solicitor as the second plaintiff in those proceedings.
She subsequently filed in her own name proceedings 2018/46860 challenging that part of the January resolution to suspend her practising certificate and the direction of the Law Society requiring her to be medically examined pursuant to s 95 of the Law. She also claimed lost wages from MN Legal and Management Consultants Pty Ltd. The appeal grounds were said to be that the resolution to suspend her practising certificate was an "illegal and/or irregular resolution, and/or not made in good faith" and that it contravened "rule of law and/or Legalities". The challenge to the s 95 order was put on the same basis.
Subsequent to the February Resolution the Solicitor filed a summons in her own name on 16 March 2018 in proceedings 2018/85144 challenging that resolution. The appeal grounds were said to be the same as those challenging the resolution to suspend her practising certificate in the January Resolution.
[5]
Submissions
The Solicitor appeared for herself and also for MN Legal.
The plaintiffs challenged the January resolution on two bases. First, reliance was placed on the report from Dr Sazhin of 20 December, which was said to be the up-to-date and most recent expert medical report from her treating psychiatrist of three years which certified her as currently medically fit to perform her professional duties. The report was said to be addressed to the Law Society and answered the particular question regarding her medical fitness to perform her professional duties.
The second basis was said to be on public interest grounds. The plaintiffs submitted that the Law Society's records showed that the incorporated legal practice did not have a trust account whereas the Law Society stated in its resolution that it was "to protect the interests of clients in relation to trust property". The plaintiffs submitted that the Law Society's records showed that the incorporated legal practice resumed its professional and operational responsibilities on 3 July 2017, approximately five months prior to the January resolution. The plaintiffs submitted that it was not necessary in the public interest to suspend the certificate immediately and/or to appoint a manager to the incorporated legal practice.
In relation to the order under s 95, the plaintiffs pointed to the wording of s 95(1)(b) of the Uniform Law which provided that, "in considering" whether or not to suspend a certificate, the Law Society could require the applicant to be medically examined. The plaintiffs submitted that the Law Society did not invoke s 95(1)(b) on or before the January resolution.
In relation to the February resolution the plaintiffs submitted that, contrary to assertions by the Law Society that the medical reports were inconsistent, Dr Sahzin was drawing a distinction between the Solicitor's permanent medical inability to participate in the Commissioner's investigation so as not to require her to relive the trauma of the experience she suffered in the Courts over the period of two years, and being medically fit to perform her professional duties. The plaintiffs submitted that the Court should take judicial notice of the fact that it is not uncommon for victims of traumas and other ordeals to suffer "substantively" subsequent to participating in investigations and/or litigation connected to their trauma, but nevertheless be able to lead normal professional and personal lives.
The plaintiffs submitted that the Solicitor did not obstruct the external manager, Mr Richard Savage. They explained allegedly obstructive conduct on the basis that it had been necessary for them to request the notice of the appointment pursuant to s 334(7) of the Uniform Law from Mr Savage.
The Law Society sought to justify the decisions contained in the Resolutions on three bases:
1. the conduct of the Solicitor that is the subject of the allegations in the Complaint (except the 8th allegation which concerned misleading the Court of Appeal);
2. the Solicitor's mental health issues and inability to assist the Commissioner with his investigation into her conduct;
3. the Solicitor's conduct in impeding the Manager in carrying out his duties.
[6]
Legislative provisions
The following sections of the Uniform Law are relevant to the circumstances of this case:
77 Immediate variation or suspension before or during consideration of proposed action
(1) This section applies if the designated local regulatory authority is considering whether to start, continue or complete action under this Part in relation to a certificate and the designated local regulatory authority considers it necessary in the public interest to vary or suspend the certificate immediately.
(2) The designated local regulatory authority may immediately vary or suspend the certificate, by written notice given to the holder, until the earlier of the following -
(a) the time at which the designated local regulatory authority informs the holder of the designated local regulatory authority's decision under this Part;
(b) the end of the period of 56 days after the notice is given to the holder under this section.
…
82 Grounds for action under this Division
(1) The designated local regulatory authority may vary, suspend or cancel a certificate under this Division on the ground that -
(a) the holder has contravened a condition of the certificate; or
(b) the holder has failed without reasonable excuse to comply with a requirement under Chapter 7 made in connection with an investigation of the holder in connection with this Chapter or has committed an offence under Chapter 7 in connection with any such investigation; or
(c) a local regulatory authority has made a recommendation to that effect under section 278, 299(1)(g) or 466(7); or
(d) in the case of an Australian practising certificate - the designated local regulatory authority reasonably believes that the holder is unable to fulfil the inherent requirements of an Australian legal practitioner.
Note
Section 227 empowers the designated local regulatory authority to suspend an Australian practising certificate or Australian registration certificate for failure to pay an annual contribution or a levy.
…
95 Consideration and investigation of applicants or holders
(1) In considering whether or not to grant, renew, vary, suspend or cancel a certificate, the designated local regulatory authority may, by notice to the applicant or holder, require the applicant or holder -
(a) to give it specified documents or information; or
(b) to be medically examined by a medical practitioner nominated by the designated local regulatory authority; or
(c) to provide a report from a Commissioner of Police as to whether the applicant or holder has been convicted or found guilty of an offence in Australia; or
(d) to cooperate with any inquiries by the designated local regulatory authority that it considers appropriate.
(2) A failure to comply with a notice under subsection (1) by the date specified in the notice and in the way required by the notice is a ground for making an adverse decision in relation to the action being considered by the designated local regulatory authority.
…
100 Right of appeal or review about Australian practising certificates
(1) An applicant for or the holder of an Australian practising certificate may, in accordance with applicable jurisdictional legislation, appeal to the designated tribunal against, or seek a review by that tribunal of, any of the following decisions of the designated local regulatory authority under this Chapter -
(a) a decision to refuse to grant or renew the Australian practising certificate;
(b) a decision to vary, suspend or cancel the Australian practising certificate or, without limitation, to impose a condition on the Australian practising certificate;
(c) a decision that a person is not entitled to apply for an Australian practising certificate for a specified period (see section 94).
(2) An appeal or review under this section may be made to review the merits of the decision concerned.
(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.
(4) Except to the extent (if any) that may be ordered by the designated tribunal, the lodging of an appeal or application for review under this section does not stay the effect of the refusal, variation, suspension or cancellation concerned.
…
(6) In proceedings on an appeal or review under this section, fresh evidence, or evidence in addition to or in substitution for matters considered by the designated local regulatory authority, may be given.
(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.
…
278 Immediate suspension of practising or registration certificate
(1) The designated local regulatory authority may recommend that an Australian practising certificate or Australian registration certificate be immediately suspended if -
(a) a complaint has been made about the conduct of an Australian legal practitioner, Australian-registered foreign lawyer or law practice; and
(b) the designated local regulatory authority considers the immediate suspension of the certificate is warranted in the public interest on the ground of the seriousness of the alleged conduct.
(2) The designated local regulatory authority may make the recommendation whether or not an investigation of the complaint has begun or been completed.
(3) The making of the recommendation does not prevent the designated local regulatory authority from continuing to deal with the complaint.
Note Section 82 provides that in these circumstances a designated local regulatory authority may suspend the certificate.
326 Circumstances warranting external intervention
External intervention may take place in relation to a law practice in any of the following circumstances -
(a) where a legal practitioner associate involved in the law practice has died, ceases to hold a current Australian practising certificate or a current Australian registration certificate, has become an insolvent under administration or is in prison;
(b) in the case of a law firm or an unincorporated legal practice -where the firm or group has been wound up or dissolved;
(c) in the case of an incorporated legal practice - where the corporation concerned ceases to be an incorporated legal practice, is being or has been wound up or has been deregistered or dissolved;
(d) in any case - where the designated local regulatory authority forms a belief on reasonable grounds that the law practice or an associate of the law practice -
(i) is not dealing adequately with trust money or trust property or is not properly attending to the affairs of the law practice; or
(ii) has committed a serious irregularity, or a serious irregularity has occurred, in relation to trust money or trust property or the affairs of the law practice; or
(iii) has failed to properly account in a timely manner to any person for trust money or trust property received by the law practice for or on behalf of that person; or
(iv) has failed to properly make a payment of trust money or a transfer of trust property when required to do so by a person entitled to that money or property or entitled to give a direction for payment or transfer; or
(v) is in breach of the Uniform Rules with the result that the record-keeping for the law practice's trust accounts is inadequate; or
(vi) has been or is likely to be convicted of an offence relating to trust money or trust property; or
(vii) is the subject of an adverse finding in relation to a complaint relating to trust money or trust property received by the law practice; or
(viii) has failed to comply with any requirement of an investigator or external examiner appointed under this Law; or
(ix) has ceased to be engaged in legal practice without making provision for properly dealing with trust money or trust property received by the law practice or for properly winding up the affairs of the law practice;
(e) where any other proper cause exists in relation to the law practice.
327 Determination to initiate external intervention
(1) This section applies when the designated local regulatory authority becomes aware that one or more of the circumstances referred to in section 326 exist in relation to a law practice and decides that, having regard to the interests of the clients of the law practice and to other matters that it considers appropriate, external intervention is warranted.
(2) The designated local regulatory authority may determine to initiate the appointment under this Chapter of -
(a) a supervisor of trust money of the law practice, if the designated local regulatory authority is of the opinion -
(i) that external intervention is required because of issues relating to the law practice's trust accounts; and
(ii) that it is not appropriate that the provision of legal services by the law practice be wound up and terminated because of those issues; or
(b) a manager for the law practice, if the designated local regulatory authority is of the opinion -
(i) that external intervention is required because of issues relating to the law practice's trust records; or
(ii) that the appointment is necessary to protect the interests of clients in relation to trust money or trust property; or
(iii) that there is a need for an independent person to be appointed to take over professional and operational responsibility for the law practice; or
(c) a receiver for the law practice, if the designated local regulatory authority is of the opinion -
(i) that the appointment is necessary to protect the interests of clients in relation to trust money or trust property; or
(ii) that it may be appropriate that the provision of legal services by the law practice be wound up and terminated.
…
335 Effect of service of notice of appointment
(1) After service on a law practice of a notice of the appointment of a manager for the law practice and until the appointment is terminated, a legal practitioner associate of the practice who is specified or referred to in the notice must not participate in the affairs of the practice except under the direct supervision of the manager.
Penalty: 100 penalty units.
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336 Role of managers
(1) A manager for a law practice may carry on the law practice and may do all things that the law practice or a legal practitioner associate of the law practice might lawfully have done, including but not limited to the following -
(a) transacting any business of the law practice that the manager reasonably believes to be urgent;
(b) transacting, with the approval of any or all of the existing clients of the law practice, any business on their behalf, including -
(i) commencing, continuing, defending or settling any proceedings; and
(ii) receiving, retaining and disposing of property;
(c) accepting instructions from new clients and transacting any business on their behalf, including -
(i) commencing, continuing, defending or settling any proceedings; and
(ii) receiving, retaining and disposing of regulated property;
(d) charging and recovering legal costs, including legal costs for work in progress at the time of the appointment of the manager;
(e) entering into, executing or performing any agreement;
(f) dealing with trust money or trust property;
(g) winding up the affairs of the law practice.
(2) For the purpose of exercising his or her powers under subsection (1), the manager may exercise any or all of the following powers -
(a) to enter and remain on premises used by the law practice for or in connection with its engaging in legal practice;
(b) to require the law practice, an associate or former associate of the law practice or any other person who has or had control of client files and associated documents (including documents relating to trust money received by the law practice) to give the manager either or both of the following -
(i) access to the files and documents the manager reasonably requires;
(ii) information relating to client matters the manager reasonably requires;
(c) to operate equipment or facilities on the premises, or to require any person on the premises to operate equipment or facilities on the premises, for a purpose relevant to his or her appointment;
(d) to take possession of any relevant material and retain it for as long as may be necessary;
(e) to secure any relevant material found on the premises against interference, if the material cannot be conveniently removed;
(f) to take possession of any computer equipment or computer program reasonably required for a purpose relevant to his or her appointment.
(3) If the manager takes anything from the premises, the manager must issue a receipt in a form approved by the designated local regulatory authority and -
(a) if the occupier or a person apparently responsible to the occupier is present at or near the premises, give it to him or her; or
(b) otherwise, leave it at the premises in an envelope addressed to the occupier.
(4) The manager may enter and remain on premises under subsection (2)(a) only -
(a) during normal business hours; or
(b) during other hours with the consent of the occupier of the premises.
(5) The manager must not enter premises under subsection (2)(a) unless, before the entry, he or she has produced for inspection by the occupier -
(a) the manager's notice of appointment; and
(b) a form of identification that includes the manager's photograph and signature.
(6) However, if the manager is refused access to the premises or the premises are unoccupied and the manager considers that entry is necessary to prevent destruction of documents or for another urgent reason, the manager may use whatever appropriate force is necessary to enter the premises and may be accompanied by a member of the police force to assist entry.
(7) The manager must take all reasonable steps to return any material to the person entitled to it as soon as it is no longer required for the purpose of the manager's functions.
(8) If the manager takes possession of -
(a) a document, disk, tape or other thing that can be readily copied; or
(b) a storage device the information in which can be readily copied -
under this section, the manager (on request by the occupier, a principal of a law practice or a person from whom it was taken) must give a copy of the thing or information to that person as soon as practicable after taking possession of it.
…
358 Right of appeal or review about appointment of external intervener
(1) An aggrieved person may, in accordance with applicable jurisdictional legislation, appeal to the designated tribunal against, or seek a review by that tribunal of, the appointment in this jurisdiction of an external intervener for a law practice.
(2) An aggrieved person is -
(a) the law practice; or
(b) an associate of the law practice; or
(c) any person authorised to operate a trust account of the law practice; or
(d) a client of the law practice whose interests may be adversely affected by the appointment; or
(e) any other person whose interests may be adversely affected by the appointment.
(3) The appeal or application for review is to be lodged within 7 days after notice of the appointment is served on -
(a) the person who proposes to appeal or seek review; or
(b) the law practice, if a notice is not required to be served on the person who proposes to appeal or seek review.
(4) The designated tribunal may by order do any one or more of the following -
(a) confirm the appointment;
(b) set aside the appointment;
(c) impose or vary any conditions of the appointment;
(d) make any other orders it thinks fit.
(5) The appointment of an external intervener is not stayed by the making of an appeal or an application for review, and the external intervener may accordingly continue to exercise his or her powers and other functions as external intervener during the currency of the appeal or review except to the extent (if any) that the designated tribunal otherwise directs.
(6) To avoid doubt, this section has effect subject to section 325.
…
364 Obstruction of external intervener
A person must not, without reasonable excuse, obstruct an external intervener exercising a function under this Law.
Civil penalty: 50 penalty units.
The definition of "regulated property" is contained in s 6 as follows:
regulated property, in relation to a law practice, means the following -
(a) trust money or trust property received, receivable or held by the law practice;
(b) interest, dividends or other income or anything else derived from or acquired with money or property referred to in paragraph (a);
(c) documents or records of any description relating to anything referred to in paragraph (a) or (b);
(d) any computer hardware or software, or other device, in the custody or control of the law practice or an associate of the law practice by which any documents or records referred to in paragraph (c) may be produced or reproduced in visible form;
(e) client files;
The Supreme Court is the designated tribunal for the purposes of ss 100 and 358: Legal Profession Uniform Law Application Act 2014 (NSW) s 11 Table 2.
[7]
The course of the hearing
The Solicitor sought to read affidavits she had sworn on 25 January 2018, 12 February 2018 and 8 March 2018. She had filed and served a further affidavit of 3 May 2018 but she was adamant that she did not wish that affidavit to be read or considered.
Despite seeking to read the affidavits, the Solicitor was not prepared to be cross-examined on what was contained in them as the Law Society desired to do. Further, the Law Society took objection to the plaintiffs' reliance on the medical reports of Dr Sahzin in circumstances where there was non-compliance with the Expert Witness Code and where he had not been made available by the Solicitor for cross-examination.
In circumstances where the Solicitor was appearing for herself and MN Legal, albeit that she was a solicitor, I considered that the fairest way of proceeding was to receive her three affidavits and deal with them in the light of her refusal to be cross-examined and to produce Dr Sahzin for cross-examination. Counsel for the Law Society indicated that the Law Society neither consented to nor opposed any order made by the Court in relation to whether the Solicitor should be allowed to rely on her affidavits while not subjecting herself to cross-examination.
The Law Society accepted that the suspension arising from the January resolution had ceased to be operative by reason of s 77(2), the making of the February resolution and the reasoning set out in my judgment in Balzola v Council of the Law Society of New South Wales [2018] NSWSC 849. However, the solicitor challenges the legality of that suspension and claims damages on the basis that it was invalidly and improperly made. It will be necessary to consider that temporary suspension even although it was overtaken by the February Resolution.
In the proceedings concerning the January Resolution, the Solicitor seeks relief against the Law Society's decision to send the notice to the Solicitor under s 95. As the Law Society has withdrawn the notice, there is no basis upon which this relief would now be granted. It is not suggested that any damage flows to the Solicitor from that decision.
[8]
Legal principles
The appeals by the plaintiffs were appeals under ss 100 and 358 of the Uniform Law. Both those sections contemplate a merits review of the decisions challenged. The grounds put forward in the summonses were the sort of grounds that would considered in administrative law proceedings. I pointed that matter out to the Solicitor and asked her to tell me what in substance her grounds of appeal were, bearing in mind that the appeals were merits reviews. She put forward two grounds. The first was that the Law Society should not have made a decision based on medical grounds when it could not be considered as an expert in that area. Secondly, she said that she did not have a trust account and she did not have any clients. In that way the resolutions leading to her suspension and the appointment of a manager were not based on a valid fear of harm to the public.
Section 100(7) speaks of the onus of proof in review proceedings in which the question of whether a person is a fit and proper person is at issue. I raised with the parties whether this subsection applied to the present proceedings. At my request the parties lodged further written submissions on the point after the conclusion of the hearing. The Law Society said that in the circumstances of the present proceedings the subsection did not operate. That was particularly because ss 77(1) and 82(1)(d) of the Uniform Law do not in their express terms require the Court to consider if the legal practitioner is a fit and proper person to hold a practising certificate. The plaintiffs' further written submissions did not address the issue.
In the light of the Law Society's approach to the question of onus of proof, it is not necessary to consider the matter further. However, it should not be taken, thereby, that I accept the Law Society's position. One of the bases on which the Law Society seeks to justify the suspension concerns the Solicitor's mental health as disclosed in the reports of Dr Sahzin. Her mental health has a bearing on her fitness to practise: S v Legal Practice Board of Western Australia (2004) 29 WAR 173; [2004] WASCA 28; XY v Board of Examiners [2005] VSC 250. Nevertheless, as will become apparent, determination of the present matters do not depend on who has the onus of proof.
The Legal Profession Act 2004 (NSW) (now repealed) contained two sections that could be considered to be the predecessors of ss 77 and 82 of the Uniform Law. Those sections were s 78 and s 548. They do not reflect precisely what now appear in ss 77 and 82 respectively. Section 548 seemed to be confined to the situation where there was a complaint, and the conduct giving rise to it was considered serious. Section 78 seemed to be confined to the grounds in s 60 and show cause events as defined in s 4, where it was "necessary in the public interest to immediately suspend" a practising certificate.
Section 548 relevantly provided:
(1) This section applies if the Commissioner or the relevant Council considers it necessary in the public interest to immediately suspend a local practising certificate on the ground of the seriousness of the conduct in respect of which a complaint has been made in relation to the holder of the certificate.
(2) The Council may immediately suspend the practising certificate. …
In Berger v Council of the Law Society of NSW [2013] NSWSC 1080 Beech-Jones J considered s 548(2). His Honour observed at [9] that there appeared to be only two cases that had considered the section. His Honour then went on to say:
[10] In Doherty No 2 [Doherty v The Law Society of New South Wales & Anor (Supreme Court of New South Wales, James J, 11 September 2008, unrep)] at [3] James J referred to the "emergency nature" of the power conferred by s 548(2) but did not elaborate. Given that McColl JA was only dealing with an application for a stay in Doherty No 3 [Doherty v The Law Society of New South Wales [2008] NSWCA 269], her Honour also did not undertake any detailed analysis of the power conferred by s 548(2). However her Honour did note that the "protection of the public means that the public interest is always entitled to significant weight" (at [33]). Her Honour cited a passage from the judgment of Spigelman CJ in New South Wales Bar Association v Stevens [2003] NSWCA 95 at [108] to [109] which referred to an earlier judgment of his Honour in New South Wales Bar Association v Cummins [2001] NSWCA 284; 52 NSWLR 279 at [20]. In the latter passage Spigelman CJ identified "four interrelated interests" at stake in such cases. Those interests were the need for clients to have confidence in entrusting their affairs to a lawyer, the need for fellow practitioners to be able to accept the practitioner's words and conduct, the need for the judiciary to have confidence in those who appear before the courts, and the overall need for the public "to have confidence in the legal profession by reason of the central role the profession plays in the administration of justice".
[11] The judgment in Stevens was an appeal from a decision of a judge at first instance granting a stay of a decision to cancel a practising certificate under the regime then in place for a practitioner who, inter alia, was convicted of a "tax offence" (former s 38FC(1)), and failed to notify matters concerning his non-compliant tax history (former s 38FD(1)(a)). Consistent with the above comments, Spigelman CJ found that the judge at first instance had erred in exercising the discretion to grant a stay by approaching the matter as though it involved weighing up the competing interests of parties to private litigation, and failed to "give consideration to the public interest dimension" (at [118] and [144]).
[12] Unlike Stevens or Doherty No 3, this case does not involve the exercise of any discretion to grant a stay but a consideration of the exercise of the power conferred by s 548 itself. However the discussion of the four interrelated interests in Cummins that was approved in Stevens and Doherty No 3 is still apposite. Sub-section 548(1) makes it clear that the necessity to protect the "public interest" is at the core of the power conferred by s 548(2). The four interrelated interests identified by Spigelman CJ in Cummins are all encompassed by the phrase "public interest" as used in s 548(1). This is reinforced by the statement of the purposes of the Act in s 3(1)(a) which refers to the regulation of legal practice "in the interests of the administration of justice and for the protection of the clients of law practices and the public generally" (see O'Sullivan v Farrer [1989] HCA 61; 168 CLR 210 at 216). Otherwise, the purely protective nature of this type of proceeding has long been recognised (see Clyne v New South Wales Bar Association [1960] HCA 40; 104 CLR 186 at 201 to 202; Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637).
[13] The legislative regime for cancellation of a practising certificate considered in Stevens is different to that in issue in this case. The regime considered in Stevens appears to have been replaced by that now found within Division 7 of Part 2.4 of the Act. Section 548 is found within Chapter 4 of the Act which is entitled "[c]omplaints and [d]iscipline". To that end the power conferred by s 548(1) cannot be engaged unless a complaint has been made against the solicitor. In this case the resolution of the Council of the Law Society recording the suspension decision is immediately preceded by a resolution making a complaint that the solicitor "misappropriated" funds.
[14] It is clear that a decision to suspend is a temporary measure (or "emergency" measure as noted by James J in Doherty No 2). The section only confers a power to "suspend". In that respect it can be contrasted with powers such as those conferred by s 61 to "amend, suspend or cancel" a practising certificate. Thus a suspension made pursuant to s 548(2) ceases, inter alia, on the complaint being withdrawn or revoked (s 548(3)(a)) or the complaint being "finally dealt with" by the Administrative Decisions Tribunal (the "Tribunal") (s 548(3)(c)). This latter provision recognises that, in the ordinary course, complaints about the conduct of holders of a practising certificate will be dealt with in accordance with the regime provided for in Chapter 4 of the Act.
[15] Leaving aside the powers of this Court to remove practitioners from the roll of solicitors which is preserved by s 590, the end point of the complaint regime in the Act is the making of a determination by the Tribunal as to whether or not a practitioner has engaged in unsatisfactory professional conduct or professional misconduct (s 551(1) and s 562(1)). If the appropriate findings are made then the Tribunal is empowered to make "orders as it thinks fit" (s 562(1)) which can include an order that the name of the practitioner be removed from the "local roll" (s 562(2)(a)) or that their practising certificate be suspended for a specified period or cancelled (s 562(2)(b)).
[16] Thus a decision to suspend under s 548(2) has the capacity to pre-empt and perhaps undermine the structure for dealing with complaints created by Chapter 4 including the protections afforded to practitioners the subject of complaints. No doubt for this reason the power can only be invoked if the Law Society in the first instance, or this Court on appeal, considers it "necessary" in the public interest to suspend the practising certificate. In a different but equally serious context the High Court has observed that the word "necessary ... is a strong word" (Hogan v Australian Crime Commission [2010] HCA 21; 240 CLR 651 at [30] per French CJ, Gummow, Hayne, Heydon and Kiefel JJ). In this context it connotes a relatively high degree of satisfaction that the suspension should be ordered pending the pursuit of a complaint. It can be contrasted with the power of the Tribunal to make "such orders as it thinks fit" (s 562(1)).
[17] At times the submissions appeared to suggest that the Court should undertake some form of predictive exercise as to what sanction the Tribunal might ultimately might impose in respect of the complaint laid against Mr Berger. Some support for that might be gained from the judgment of James J in Doherty No 2 but I doubt that the Court should go that far. As stated, the power conferred by s 548(1) is predicated on the existence of a "complaint". This suggests that it is the conduct disclosed by the complaint and the surrounding circumstances that is to be assessed against s 548(1). Further it is to be expected that the conduct complained of would, if proved, constitute unsatisfactory professional conduct or professional misconduct, otherwise the power conferred by s 548(2) would rise above its intended purpose. However to attempt at this point to predict what the Tribunal might decide at some indefinite point in the future risks distracting the Court from ascertaining what presently is necessary in the public interest. No doubt there are cases where professional misconduct is demonstrated against a solicitor but the Tribunal determines not to remove them from the roll or completely prevent them from practising because aspects of their conduct since the complaint may demonstrate that that step is not warranted. There is very little scope to consider such possibilities in this type of application.
[18] In my view the appropriate approach is one that requires that the Law Society at first instance, and this Court on appeal, to be satisfied that the available material concerning a complaint against a practitioner demonstrates that the continued holding of a practising certificate by them pending its determination presents such an unacceptable risk to clients, the public generally or the administration of justice that it is necessary that their certificate be suspended.
[19] I have already discussed the protective nature of the power conferred by s 548(2). It suggests that the effects of a suspension on the personal interests of the solicitor are of little moment when considering the exercise of the power. However the interests of the solicitor are still relevant in a number of ways. First, the very significant effect that suspension may have upon their interests invokes the principles discussed in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 especially where, as in this case, the matters alleged are serious (Evidence Act 1995, s 140(2)). In this Court the Law Society bore the burden of proving the allegations it made and the burden of persuading the Court that the suspension of the practising certificate is necessary.
[20] Second, the high level of persuasion that inures in the word "necessary" means that there is scope for the practitioner to either agree or have imposed upon them conditions falling short of suspension that provide protection to clients and the public. In such circumstances the Court may not be positively satisfied that it is "necessary" that the practising certificate be suspended. Instead the width of the power conferred on the Court by s 549(2) would enable the substitution of such a decision for the decision to suspend. In Doherty No 2 James J appeared to consider the imposition of conditions as an alternative to suspension at the point of considering the exercise of the discretion referred to in s 548(2). As a matter of practicalities I doubt that that there is much difference between that approach and considering whether it affects the "necessity" to suspend a practising certificate, although I prefer the latter view. The difficulty with the former is that, given the terms and obvious purpose of s 548, it is difficult to envisage circumstances in which the Court could conclude that it is necessary in the public interest to suspend a practising certificate but somehow determine as a matter of discretion that it should not do so.
In my opinion, what was said in Berger applies to a consideration under ss 77 and 82 of the Uniform Law. Section 77 refers to a suspension being "necessary in the public interest". In respect of s 82, where the ground is a recommendation to suspend under s 278, s 278(1)(b) refers to the suspension being "warranted in the public interest". The Macquarie Dictionary gives as the first meaning of the verb "to warrant", "to afford, warrant, or sanction for, or justify". The Shorter Oxford gives as the meaning of "warranted", "allowed by law or authority, sanctioned". In my opinion, the test of being warranted is a lesser, although similar, requirement to being "necessary". It involves the concept of a need without the strict requirement of necessity.
The February Resolution was made pursuant to s 82(1) and, seemingly, in reliance on paragraph (c) concerning s 278, and paragraph (d). Under s 82(d), a suspension can be imposed if the Law Society reasonably believes that the holder of the practising certificate is unable to fulfil the inherent requirements of an Australian legal practitioner. In a different context, the High Court said of "inherent requirements" in X v Commonwealth of Australia (1999) 200 CLR 177 at [102]:
The reference to "inherent" requirements invites attention to what are the characteristic or essential requirements of the employment as opposed to those requirements that might be described as peripheral. Further, the reference to "inherent" requirements would deal with at least some, and probably all, cases in which a discriminatory employer seeks to contrive the result that the disabled are excluded from a job. But the requirements that are to be considered are the requirements of the particular employment, not the requirements of employment of some identified type or some different employment modified to meet the needs of a disabled employee or applicant for work.
I accept the submission of the Law Society that the inherent requirements for a legal practitioner must include the following:
(a) the ability to perform the day-to-day tasks associated with providing legal services, including the ability to communicate in a professional manner with the courts, law-enforcement agencies and other legal practitioners;
(b) the ability to discharge the legal practitioner's tortious and fiduciary duties to his or her clients, whether arising under their retainer, in tort or in equity;
(c) the ability to discharge the legal practitioner's duties to the Court, including:
i. the duty to be honest and courteous in all dealings in the course of legal practice: r. 4.1.2, Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 (NSW) (Conduct Rules);
ii. the duty not to engage in conduct, in the course of practice or otherwise, which is likely to a material degree to be prejudicial to, or diminish the public confidence in, the administration of justice, or bring the profession into disrepute: r. 5.1, Conduct Rules;
iii. the duty not to knowingly or recklessly mislead the court: r. 19.1, Conduct Rules;
iv. the duty not to allege any matter of fact in any court document settled by the solicitor, or any submission during any hearing, unless the solicitor believes on reasonable grounds that the factual material already available provides a proper basis to do so: r. 21.3, Conduct Rules; and
v. the duty not to communicate in the opponent's absence with the court concerning any matter of substance in connection with the current proceedings: r. 22.5, Conduct Rules.
To those matters there would need to be added, an obligation to obey the law and to comply with court orders.
[9]
(1) The Complaint
The complaints by the OLSC arose out of proceedings that the Solicitor had commenced in the District Court alleging defamation and breach of contract. The judge in the District Court who heard those proceedings was Judge Gibson.
On 24 September 2015 Judge Gibson published a second judgment in the proceedings: Michail v Mount Druitt & Area Community Legal Centre (No 2) [2015] NSWDC 214. In that judgment Judge Gibson struck out a number of paragraphs of the Solicitor's third further amended statement of claim. Order 19 read:
Order (4) of Judge Gibson's orders of 3 September 2015 directing the parties not to correspond with, or telephone, the Registry, or other members of the court other than for the purpose of filing documents is to continue until further order.
The Solicitor sought leave to appeal against the order striking out the paragraphs of the statement of claim. The Court of Appeal dismissed the summons on 16 December 2015.
On 24 December 2015 the Solicitor, in contravention of order 19 of the judgment of 24 September 2015, forwarded an email to a number of Associates in this Court as well as to Judge Gibson's Associate, and copied the email to the solicitors and the barrister who had appeared for the other party. The email said this:
I refer to the above, the summons seeking leave to appeal hearing of 9 December 2015 (hearing) and decision of 16 December 2015 (decision), and would like to furnish the following:
1. The hearing was before one judge and one acting judge not three judges as per usual
2. The decision is authored by both Justices Leeming and Emmett because it was heard by both their Honors (sic) as opposed to being heard by three judges as per usual
3. The hearing appeared to be staged due to the above two paragraphs and Justice Leeming on a few occasions repeating to me that I am "passionate" which is the description my friend Stefanie used to describe me in our personal catch-up
4. Further, Justice Emmett would laugh as he was asking Counsel for the respondents questions, because he was unable to act the role and/or script he was assigned.
Therefore, the hearing and the decision are both not legitimate and I am not bound by them. In addition, it is my personal opinion that the courts and indeed all those involved from the legal profession needed to remain neutral in this situation and not participated (sic) at all.
On this basis, I will not comply with the orders made in the decision and I will stay proceedings until this lawless situation passes, and I am out of the bubble I was forcibly thrown into. I do appreciate your attention to, understanding, patience and assistance with this matter. (emphasis added)
Throughout 2016 the Solicitor continued to send a large number of emails to Judge Gibson's associate, copied to a number of other people, about various matters connected with her proceedings. On 22 October 2016 the solicitor sent an email to the Associate of the Chief Judge of the District Court and to the Chambers of the Chief Justice of this Court. She copied the email to a large number of persons including various Associates, the Registrar of the Court of Appeal, the Chief Executive of the NSW Bar Association and some barristers and solicitors. The email said this:
Dear Chief Justice of the NSW District Court and Chief Justice of NSW
I refer to the above two matters and my below email to the NSW District Court. I also refer to my sworn affidavit of 29 April 2016, my filed oral submissions of 5 May 2016 and 20 May 2016 and all my emails to various personnel in the NSW District Court and NSW Court of Appeal and their email responses. In addition, as you are aware, I recently came to the knowledge that the defendant is well connected with both the Labour (sic) Party and Greens. This well established connection with both political parties interfered in a negative way with the conduct of current proceedings and proceedings at the Court of Appeal of NSW. In the interim, I encountered the loss of both my father and younger sister. Further, my health deteriorated to the point where I became suicidal, unable to leave my bed, suffered from anxiety and panic attacks at the thought of having to be in either Courts.
Further, Ms Larrissa Adelman, who I was referred to by Mr Fukuda-Oddie at the request of the opponent on 30 July 2015 (i.e. Clayton Utz) to settle the third further amended statement of claim is friends with Mr Nicholas Commino who works at the defendant's and is the bully in the case before you. I asked Mr Adelman at the very beginning of her involvement if there was a conflict of interest that would stop her from working on my brief referred to her by the Court at the request of the defendant's legal representatives (i.e. Clayton Utz) and she denied the existence of conflict of interest, notwithstanding that she is friends of the defendant. This referral was made within the period of 5 working days.
The Court then referred me to Mr. Hugh Stowe, again this referral was made within the period of five working days, and as all are aware, Mr Hugh Stowe acted both unlawfully and unethically in the conduct of my proceedings.
I have evidence of every word I am stating.
There are also issues with hostile behaviour from all involved in this case, including but not limited to registry staff, in both Courts and question marks regarding the authenticity of Court transcripts and recordings in both Courts. Further, there is the issue of Judge Judith Gibson making serious allegations regarding my conduct in Court where the CCTV footage that proves the falsity of these allegations have either been destroyed or the Court refuses to release them.
I tried many times to resolve the issues with the relevant persons involved in these politicised proceedings to no avail. Further, I offered those who consented to be involved many opportunities to withdraw their involvement or to change the course of action they are taking, also to no avail.
I am now putting both of you formally (as opposed to possible informal involvement) in the picture and request that you would interfere as to ensure that the Court is acting in a manner that does not undermine pubic (sic) trust and confidence in the Court, oaths of 'Honour' and the assumed honest character of judicial officers and all officers of the Court with the assumption that they would act with integrity. Please respond to my email by close of Court hours on Monday, 23 October 2016 (response date) regarding your decision on this request. If I do not receive your response by the response date, I will assume that notwithstanding your knowledge of these issues, you decided not to act to resolve these serious issues in the Court.
The Solicitor forwarded further emails in the same vein, although she widened the number of persons to whom the emails were sent. In one such email she made allegations of corruption against a number of politicians, police, legal practitioners and other persons. I do not intend to set out these emails because it would be unfair to the persons mentioned in them when no evidence whatsoever has been provided to justify the scandalous allegations made in them.
On 9 February 2017 Judge Gibson handed down a judgment requiring the Solicitor to serve a further amended statement of claim by a certain date. That night, the Solicitor sent an email addressed to the Chief Justice of this Court, to the Registrar of the District Court and to the associate of the Chief Judge of the District Court. The email referred to a directions hearing that morning and the judgment (identified by the solicitor as "dhj"). It made a number of serious and scandalous allegations against Judge Gibson and then went on to say:
Due to the continuous evasion of the Courts when it comes to addressing the serious issues at hand (as per my repeated requests), and reverting to old ways of abuse, blame, scapegoating, projections, etc. I advised the Court that it may strike-out/dismiss the proceedings. I further advised the Court that I would not be appearing in the directions hearing on 23 February 2017. In addition, I advised the Court that I will not comply with any Court orders made to date by either Court due to the fact that the orders contained in dhj (and all previous Court orders from both Courts involved) are based on wrongful practices, amongst other issues, as sated (sic) in my brief submissions today in dh, my many emails, affidavit of 29 April 2016, oral submissions of 5 May 2016… . (emphasis added)
During the course of the Solicitor's submissions, I enquired of her where the material was to justify the allegations she had made in her various emails. The Solicitor appeared to rely on two matters. The first was that she said she believed the material was substantially true. Secondly, she referred me to pages 161-341 of exhibit AMF2. I endeavoured to obtain greater specificity from her concerning that material. I said that she had an obligation to point out matters in that material to assist me in understanding the basis for the allegations in her emails. She did not direct me to any specific material but said that I should read all of that material.
The Solicitor's response to my enquiries was some indication of her inability properly to perform her functions as an advocate in circumstances where she had chosen to appear for herself and her company. Nevertheless, having regard to the fact that she was, in effect, self-represented, although a solicitor, I subsequently read pages 161-341 of exhibit AMF2. As far as I could ascertain, that was the whole of the document sent to the Christian Democratic Party referred to at [8] above. Apart from the fact that some of those pages were illegible in their reproduction, I was not able to find anything in that material that provided any evidentiary basis for her allegations. The material was repetitive and consisted of assertions without evidence.
In relation to her belief as to the truth of the allegations made, I note what was said by Leveson LJ (as his Lordship then was) in Ellis v The Law Society [2008] EWHC 561:
[32] The remaining allegations relate to inappropriate, offensive and derogatory correspondence directed to and about the Law Society, FM, members of the judiciary and others. I find these more difficult because, at least in relation to the Law Society and the judiciary, it is necessary to approach the matter on the basis that a solicitor is entitled to hold strong views, however unpalatable others might find them to be, and, furthermore, the officials of the former and members of the latter must be and are equally robust in being able to ignore observations of an intemperate or even abusive nature. Disciplinary action of the type taken in this case should not normally follow for this reason alone. Neither should it follow simply because of concern as to the mental health of a solicitor (although there may be an alternative approach to this problem when the Legal Services Act 2007 comes into force).
[33] I recognise, however, that there must be a line beyond which such proceedings are justifiable and, perhaps, inevitable. It is trite to say that each case must depend on its own facts but the test might well be whether the level of abuse and obsession permeates the solicitor's approach to the real
detriment of his client. After all, the reputation and integrity of the profession is essential to maintain public confidence in its ability to act in the very best interests of each client to the highest professional standard without being affected by extraneous issues.
…
[36] The Tribunal concluded (as it was entitled to) that Mr Ellis' remarks brought the profession into disrepute and that he continues "to make wholly inappropriate and deeply offensive remarks to and about those involved in the legal system and judicial processes" with no foundation. Mr Ellis is entitled to believe what he wishes but the inevitable consequence (although unstated by the Tribunal) is that it would be quite impossible to see how Mr Ellis could impartially advise and represent clients to a necessary and high standard in and within a system which he rejects as forcefully as he does. Indefinite suspension was an appropriate penalty.
[37] That is not to say that the suspension imposed on Mr Ellis should necessarily be lengthy. Had he been able to show a real appreciation of the reasoning of those judges who determined the extradition proceedings (so understanding the absurdity of some of his wilder allegations), the Law Society in respect of the complaint by FM and the approaches of the other judges to the litigation in which he was involved (not in any sense touched by the concerns which he has), I would have approached the question of penalty differently. Although it is a matter entirely for Mr Ellis, medical advice might assist him to commence a full reconsideration of his position on a number of issues so encouraging the view that he is entitled once more to the confidence previously reposed in him. As soon as that state has been reached, for my part, I would hope that the suspension would be lifted. As it is, based on the present position, I would dismiss this appeal.
In Griffin v The Council of the Law Society of New South Wales [2016] NSWCA 364 Sackville AJA with whom Ward and Gleeson JJA agreed said at [112]:
The contents of the Letter must be judged on their face. There is not a shred of evidence advanced in the Letter to support any of the allegations of impropriety made against the Judge. The "discourtesy" and "offensiveness" lay both in the making of scurrilous allegations by the Solicitor about the Judge's conduct, and the manifest absence of any material that could possibly justify making the allegations in any forum, let alone in a private communication to the Judge. The Letter showed that the Solicitor was prepared to make allegations that the judicial process had been undermined by improper behaviour of the Judge, without any material that could justify any such allegation. Moreover, the Letter was "discourteous" and "offensive" because it implied that the Judge would be prepared to alter costs orders because of a threat that he could be embarrassed by the Solicitor's "legitimate" actions.
In my opinion, the Solicitor has demonstrated no basis for the allegations which were made in her various emails. In that way, the making of the allegations is capable of amounting to professional misconduct and they show that the Solicitor is unable to fulfil the inherent requirements of an Australian legal practitioner, inasmuch as there has been a failure to comply with rr 5.1 and 21.3 of the Conduct Rules. Further, she indicated clearly that she did not consider herself bound by court orders and that she would not obey them.
The next aspect of the complaint was the recording by the Solicitor of proceedings in the District Court.
Section 9 of the Court Security Act 2005 (NSW) provides:
9 Use of recording devices in court premises
(1) A person must not use a recording device to record sound or images (or both) in court premises.
Maximum penalty: 200 penalty units or imprisonment for 12 months (or both).
Note. This subsection only prohibits the use of a recording device to record sound or images (or both) and not any other use of the device. For example, this subsection would not prohibit a person from using a mobile phone with recording capabilities to make a telephone call, but would prohibit the use of the phone to record court proceedings.
(2) Subsection (1) does not apply with respect to any of the following:
(a) the use of a recording device that has been expressly permitted by a judicial officer,
(b) the use by a lawyer of a recording device to record the lawyer's own voice in a part of court premises other than a room where a court is sitting,
(c) the use of a recording device by a person for the purpose of transcribing court proceedings for the court,
(d) the use of a recording device by a journalist while exercising a right referred to in section 6 (2),
(e) the use of such recording devices in such other kinds of circumstances as may be prescribed by the regulations.
At the hearing of the Solicitor's appeal from the judgment in Michail v Mount Druitt & Area Community Legal Centre (No 2) Leeming JA raised the issue of the recording of what had already taken place in the District Court. His Honour drew the Solicitor's attention to s 9 of the Court Security Act and handed down two copies of that section for her to consider.
When the proceedings came back before Judge Gibson on 25 January 2016 the following exchanges took place:
PLAINTIFF: I've brought in - just before we start, your Honour, is it okay if I seek to express permission to record the hearing?
HER HONOUR: Mrs Michail, I can't give you that permission. Court reporting for that matter can't give you that permission and it's my understanding the judgment of the Court of Appeal having been brought to the attention of court reporting that they say you were not given permission, so that's my understanding of the situation.
PLAINTIFF: But according to the Securities Act (sic) I can get express permission from the Court to---
HER HONOUR: I cannot and will not give you that permission, Mrs ---
PLAINTIFF: Why is that, your Honour?
HER HONOUR: Because I don't have the power to do so.
PLAINTIFF: Who does?
HER HONOUR: I imagine the department.
PLAINTIFF: Okay.
HER HONOUR: Mrs Michail, you don't have permission to - and really you need to make your own inquiries as to who can give you permission. I can tell you why I cannot. There are issues of copyright apart from anything else and I can tell you that according to RSB you did not seek their permission to record
proceedings in September ---
PLAINTIFF: No, I didn't, I sought your permission.
HER HONOUR: - and the RSB has not provided you with any email about this.
PLAINTIFF: No, I sought your permission, your Honour.
HER HONOUR: You've never sought my permission and I wouldn't give it.
PLAINTIFF: It's in writing. It's on the email. I've got it here actually. I can give you a copy.
HER HONOUR: Is that the email where you told me that you had recorded?
PLAINTIFF: No. No, no, no, no. And I'm glad I did, your Honour, because in your orders you actually sought - said that I disputed clause - that I didn't dispute cl 31 and I said it was a significant error when in the transcript it was clear that I disputed their submission about cl 31 so I'm glad I recorded it, your Honour.
HER HONOUR: Mrs Michail, you will recall, I think, that I produced that judgment under difficult circumstances where I had to give an extempore judgment which required me to produce it on the spot without the benefit of a transcript.
PLAINTIFF: I think to say that I've said something which I haven't said at all, your Honour, is not a mistake.
HER HONOUR: Mrs Michail, the circumstances in which I prepared that judgment without the benefit of any transcript I think speak for themselves. You do not have my permission.
On 12 May 2016, in the course of further email correspondence with Judge Gibson's Associate sent in contravention of the earlier order of the Judge, the Solicitor wrote objecting to Judge Gibson's decision not to permit her to record the proceedings. The Associate responded by an email of the same date in these terms:
I refer to s 9 of the Court Security Act 2005 (NSW) ("the Act"), as well as the definition of "court premises" in s 4 of the Act.
You do not have express permission to record proceedings. Should you wish to obtain a copy of the transcript and/or recording, please contact Reporting Services Branch, as these are the subject of Crown copyright.
On 10 February 2017 the Solicitor sent an email to the Chief Justice of this Court, the Associate to the Chief Judge of the District Court, the Registrar of the District Court, Judge Gibson's Associate and the Registrar of the Court of Appeal. The email was also copied to some other lawyers. There was an attachment entitled "NSW District Court 9 February 2017.m4a". The email said:
I refer to above and please be advised that I am pro-recording to protect my own legal interests. In fact, I have been pro-recording for just over approximately two (2) years.
…
I would be pleased if you do not correspond with me regarding laws pertaining to recordings, etc because evidence I have proves that the Courts and all parties involved are the last entities to preach laws.
It is apparent from the judgment of Judge Gibson in Michail v Mount Druitt & Area Community Legal Centre (No 6) [2017] NSWDC 25 at [7]-[8] that the attachment to that email was a sound recording of the argument before Judge Gibson on 9 February 2017. Her Honour affirmed at [9] that the Solicitor had never had her permission to record Court proceedings privately.
The Solicitor submitted in the present proceedings that there were two exceptions to the rule against recording. Those exceptions were public interest and assault. The Solicitor submitted that those exceptions came from decisions of the High Court. When I asked her to identify those High Court decisions the Solicitor said that she did not remember.
She maintained that she was entitled to record the proceedings notwithstanding she had been refused permission because she was "being gaslighted". This submission appeared to be a reiteration of what the Solicitor had said in her letter to the Commissioner on 7 October 2017. She said this:
I recorded under two relevant legal provisions:
(a) To protect my legal rights:
I have the legal right not to be assaulted physically, sexually, verbally, mentally and/or emotionally. By stating one thing in open court and have something else reflected in transcripts, recordings and judgments is a mental assault also known as gaslighting. I recorded the proceeding to make sure I am not going insane because without the recordings I would have thought I was insane.
(b) Public interest
I have the right to be heard in open court before all parties, have the opponent respond to my claims and have the right to reply to the opponent's response in open court. To be prevented from exercising my right in open court as has been the case since the beginning of these proceedings (please refer to recordings of 9 February 2017) brings this violation of right under the Public interest relevant legal provision.
Section 9 of the Court Security Act does not contain the exceptions the Solicitor refers to. The only regulation that concerns recording devices is cl 5 of the Court Security Regulation 2016 (NSW) that permits their use in NCAT and the Local Court with the approval in each case of the Registrar.
The recording of the proceedings was a serious disobedience both to s 9 of the Court Security Act and in the face of the express refusal on a number of occasions by Judge Gibson to permit the recording. This was not the case of an accidental breach of s 9 where the Solicitor was unaware of its terms. Those terms had been pointed out to her when she was in the Court of Appeal.
The Solicitor demonstrated no justification for her assertion of "gaslighting". As with the allegations made in her emails, this assertion appears to be no more than her belief. It may be an honest belief but it has not been shown to held on reasonable grounds. Nor, if it were, would that provide a justification for disobeying not only the Act but also the express refusal by Judge Gibson to permit the recording. The behaviour is consistent with what the Solicitor set out in the emails at [52] and [55] above. It indicates that, if she has a belief about some particular matter, she feels thereby entitled to disobey the law. It is difficult to see how such an approach to her responsibilities as a solicitor is consistent with the inherent requirements of being a solicitor.
[10]
(2) The medical evidence
The Law Society was confronted with psychiatric reports from Dr Sahzin which, on their face, were difficult to reconcile. On the one hand the Society had a report dated 28 September 2017. That report had been prepared to justify why she was unable to respond fully to the complaints notified by the Commissioner. The report said that her condition had deteriorated significantly to the extent that she was being considered for admission to a psychiatric facility because of suicidal ideation. That deterioration had to be seen in the light of the report of 28 April 2016 which said that at that time she was struggling with suicidal thoughts, insomnia and clinical depression.
On the other hand, when the Solicitor was notified on 18 December 2017 that the Law Society Council would be asked to consider the immediate suspension of her practising certificate because of Dr Sahzin's psychiatric opinion, the Solicitor provided another report from Dr Sahzin dated 20 December 2017 saying that she was currently fit to perform her professional duties.
The apparent conflict between those two reports might have been able to be clarified had Dr Sahzin been made available to give evidence in the present proceedings. The Solicitor said that she could not afford to pay for Dr Sahzin to come to give evidence. Alternatively, the position might have been clarified if the Solicitor had accepted the Law Society's offer to have her examined by another psychiatrist at its cost. She refused that offer. The result is that the Court is no better placed to resolve the apparent conflict in Dr Sahzin's reports.
What is clear, however, is that the Solicitor claims that her mental health state will not permit her to respond to the Commissioner's Complaint nor participate in the investigation process. She points to the reports of Dr Sahzin, particularly the report of 24 September 2017, as support for that position. On the assumption that she is telling the truth to Dr Sahzin and the Court, it must be accepted, therefore, that her mental state is as Dr Sahzin has described it in his report of 24 September. Her inability to participate in the investigation process is some objective support for the continued existence of that mental state. That mental state would render her unable to fulfil the inherent requirements of a legal practitioner. One such requirement would be to respond to a letter from the Commissioner seeking a response to matters contained in a Complaint.
The further difficulty was that there was nothing to indicate that Dr Sahzin had prepared his reports in the light of the Expert Witness Code in Schedule 7 to the UCPR. That Schedule has two specific aspects of significance in the present matter. The first is cl 2 which provides that an expert witness is not an advocate for a party and has a paramount duty to assist the Court. The significance of that is that Dr Sahzin was the Solicitor's treating psychiatrist and, absent the imposition of that duty upon him when preparing reports, he would no doubt be endeavouring to assist his own patient in the way the report was expressed. It would be written from a clinical rather than a forensic point of view.
The second matter relates to cl 4(1) dealing with an expert changing his opinion on a material matter after a report has been prepared. On the face of it the report of 20 December amounted to a change of opinion in a material matter that at least required an explanation from the expert.
One answer, although not a satisfactory one in the absence of expert evidence, for this apparent inconsistency in the reports, comes from what the Solicitor said in her submissions. What the Solicitor wished to maintain was that she was capable, from a mental and emotional point of view, to conduct the practice of a Solicitor, but was not capable of dealing with the matters the subject of the Complaint because of the psychiatric matters that her behaviour and the response to it by the Commissioner would or might trigger. The Solicitor appears to have reached the conclusion, perhaps with the advice and/or support of Dr Sahzin, that the psychiatric difficulties she has experienced are best dealt with by closing the door on the past, and simply getting on with her life including her life as a solicitor.
If the Solicitor had been prepared to subject herself to cross-examination about these matters, some clarification may have been able to be obtained, although it is difficult to see how any firm view could be reached about the Solicitor's capacity and fitness to conduct a solicitor's practice without the evidence of Dr Sahzin or some other psychiatrist.
The end position is that serious allegations of misconduct have been made against the Solicitor. The Solicitor claims that, because of her mental health, she is not in a position to answer those allegations. Nevertheless, she claims the right to practise because she says her mental health in that regard enables her to do so. To accept that position would mean that the complaints made against her could never be determined. In my opinion, whilstever the Solicitor claims mental health reasons prevent her dealing with the complaints made against her, the decision of the Law Society to suspend her right to practise is entirely justified. Indeed, the Solicitor appeared to accept that. At Transcript 54.23 the following exchange occurred when I asked her to identify a matter relating to the complaint in her material:
PLAINTIFF: I have no idea. I don't have it. Basically I'm trying to not revisit all of that.
HIS HONOUR: Well you see if you choose not to revisit it that's a decision you make but it might be to your considerable disadvantage in these proceedings.
PLAINTIFF: It might be.
Later at Transcript page 60 the following exchange occurred:
HIS HONOUR: It seems to be established on the evidence that you did not obey the law in that you recorded court proceedings in contravention of a refusal by the judge to allow it.
PLAINTIFF: As I explained I felt that was
HIS HONOUR: And secondly that you have said in emails to various people including the chief justice and others that you do not intend to obey orders of the Court and what I'm asking you how is that consistent with your obligations as a solicitor?
PLAINTIFF: What I said your Honour is my obligation to my health and well being coming into the profession vulnerable already to protect myself from emotional and mental assault is more of a priority than anything else and I was being gaslighted.
HIS HONOUR: Well then would you accept that if that's more important you might have to accept the consequences of that in terms of your practising certificate?
PLAINTIFF: Okay your Honour. Yes, I do.
Contrary to the Solicitor's submissions, the Law Society did not make an expert medical decision that it was not competent to make. It had what appeared to be, and may well have been, conflicting reports about the Solicitor's mental health. What the report of 28 September did make clear was that she was too unwell to participate in the investigation of the Complaint. Given the seriousness of the matters in the Complaint, and the ongoing failure to cooperate with the investigation, the public interest had to prevail over the Solicitor's interests.
[11]
(3) Dealings with appointed manager
The manager appointed to the Solicitor's practice was Richard Savage. He rang the Solicitor at 10am on 22 January 2018. Shortly afterwards, she returned his call. She said that she had no notice of the suspension or of his appointment. He explained that he wanted to meet with her so that he could serve the notices on her. When she insisted on knowing the grounds for the suspension, he said that he could email them to her. She agreed to them being emailed but he said he still wanted to meet with her the following day to discuss the appointment. She told him that she would not meet with him and she hung up.
The course of events which followed are set out in memoranda prepared by Mr Savage as follows:
She called back about 10 minutes after that and said that she was going to go public and expose the Society. I said that I intended to serve the notices on her and was in the process of preparing an email to send her advance copies as discussed and once she had those she could take whatever action was available to her as outlined in those notices as she saw appropriate. She agreed with that and we terminated the call.
I then completed the email which was sent at 10:27AM.
Mr Savage's email attaching the copies of the notices was sent at 10:27am on 22 January. It read as follows:
Dear Ms Michail,
At your request I attach copies of the Notices regarding the Suspension of your Practising Certificate and the Appointment of Manager.
I confirm that I will be attending at the premises of the law practice tomorrow morning.
I confirm also that you have informed me this morning in our telephone conversation that you will not meet with me and that you intend to continue practising law.
In the circumstances I draw your attention to s. 335(1) of the Legal Profession Uniform Law (the Act) and s. 336(2)(a) of the Act.
You will see that I have a right of entry to the premises of the law practice. If I am denied access to the premises, s. 336(6) of the Act will need to be considered by me.
I hope that this will not become necessary and that we can meet tomorrow morning to make appropriate arrangements regarding the law practice.
His memorandum continued:
At approximately 10:46AM Ms Michail called me again. She said that the notices did not give any grounds for the appointment and I said that they did give her a summary of her rights if she intended to contest them and that would canvass the grounds. She said that she was not going to be there tomorrow and if I attempted to gain access she would call the police. I reminded her that if she denies me access I have the right to have the police assist me to gain forcible entry. She said go ahead, try and take forcible entry as they are serviced offices and she began laughing loudly. I said that in that case the managers of the serviced offices may give me entry. She said that she will not be there tomorrow and if I attempt to gain forcible entry under the Act "all hell would break loose". I asked her if she was threatening me and she said it was not a threat, but a promise.
I said that I intend to call at the office tomorrow to perform my functions as Manager and if the premises are unattended then I will consider what options are available to me to gain access forcibly if necessary so that I could perform my functions. She said "Go ahead".
At 11:17AM today Ms Michail called me again and said that she had no files, she had no trust account and she had no matters at all and that she was going to close down her incorporated legal practice.
I said that was what we could discuss tomorrow and I could then prepare a report to that effect if that was the case, but I still need to call at the premises and meet with her.
She again said that I cannot meet with her and if I call there she will call the police and I said I had no objection to that.
She said "what is the point as she was going to close the law practice down". I said that until she does that, there is law practice that I have a statutory duty to Manage.
She then said that I do not have the right to attend at the law practice whenever I wanted. I again referred her to the legislation and pointed out that there is no restriction about when I call during business hours. I could have turned up unannounced this morning but called to arrange to meet with her as a courtesy. She insisted that that I did not have that right as the section does not say I can turn up at any time. I said that it does not need to, the absence of restrictions enables that and I was calling out of courtesy.
She suggested that we talk about that as it was a matter of interpretation and I said that she can talk about that tomorrow when we meet. That is why I need to meet with her to talk about how my appointment is to be carried out. She said that it was a valid argument that a Tribunal could determine and I said that she had that right if that is what she wanted to do, but in the meantime I will be at her premises tomorrow at 10:00AM to perform my functions as Manager.
… (emphasis added)
Thereafter, Mr Savage sent the following email to the Solicitor at 2:46pm on 22 January:
Dear Ms Michail,
Your email has attached to it a notice under s 104(3) of the Act.
Upon my appointment as Manager I became responsible for the regulated property of the law practice carried on by the ILP.
Notwithstanding that the ILP may no longer be providing legal services in NSW, I remain responsible for the regulated property of that law practice
"Regulated property", in relation to a law practice, means the following -
a) trust money or trust property received, receivable or held by the law practice;
b) interest, dividends or other income or anything else derived from or acquired with money or property referred to in paragraph (a);
c) documents or records of any description relating to anything referred to in paragraph (a) or (b);
d) any computer hardware or software, or other device, in the custody or control of the law practice or an associate of the law practice by which any documents or records referred to in paragraph (c) maybe produced or reproduced in visible form;
e) client files;
(s. 6 of the Act)
Accordingly, I still need to interview you to determine the existence and/or extent of regulated property that may be subject to the managership including and client security instruments and current or completed files.
Again, I will be at the premises of the law practice around 10.00AM tomorrow for that purpose.
The Solicitor responded by saying that, as she had repeatedly told him, she did not have regulated property. Further, she said the incorporated legal practice ceased operations that day, so "there will be no interview and/or access to premises". Mr Savage responded saying that, for it to be the case that a law practice had no regulated property, either it could never have provided any legal services, or it had in some way disposed of all files and records. He asked her where the files were.
A large number of emails then passed between the Solicitor and Mr Savage, with the Solicitor maintaining her refusal to allow Mr Savage to have access to the practice or any of the regulated property. In the course of those emails, Mr Savage set out ss 336(2) and 364 of the Uniform Law to remind the Solicitor of her obligations.
The Solicitor did not cross-examine Mr Savage. It is apparent from Mr Savage's Report of 24 January 2016 to the Law Society that his memoranda were prepared contemporaneously. I accept the course of events as set out in Mr Savage's memoranda. In any event, the emails exchanged entirely bear out that information and demonstrate the Solicitor's resistance to his appointment and his intended action.
The Solicitor submitted that the provision of the files to Mr Savage would be a breach of client confidentiality. She pointed to s 336(1) to submit that the section only concerned practices that were still in operation and that she had ceased to practice when Mr Savage wished to come to her premises and inspect her files. She submitted that for s 336(2) to operate, 336(1) had to be engaged by there being a law practice carrying on a law practice.
In my opinion, there is nothing in s 336 or any other part of the Uniform Law to support the interpretation the Solicitor puts forward. Indeed, the circumstances warranting external intervention in s 326 point to the fact that a manager may be appointed in circumstances where the practice has ceased to function for some reason; see for example paragraphs (a), (b), (c), (d)(i), (iii) and (ix).
In any event, the only evidence relating to the Solicitor ceasing to practise was a statement in paragraph 10 of her affidavit of 25 January 2018 where she said:
Due to facts established in paragraphs 2 and 3 hereof, the ILP [incorporated legal practice] ceased engaging in legal practice and/or providing legal services on 22 January 2018 in order to protect the privacy of, and to avoid confusing ILP's management consultancy services' clients and to protect ILP's reputation from having question marks on it with management consultancy services' clients.
The same paragraph appeared as paragraph 30 in her affidavit of 8 March 2018. However, since the Solicitor was not prepared to be cross-examined on her affidavits and as no factual basis was provided for the conclusion that the ILP ceased engaging in legal practice, I do not attach any weight to those paragraphs.
Mr Savage's memoranda make clear that on two occasions the Solicitor said that she was going to close down the practice, no that it had been closed down. It would entirely defeat the purpose of appointing a manager if he could be prevented from taking control of the practice by a principal of a practice closing it down after the manager has been appointed.
The Solicitor's view that, because she did not operate a trust account, there was no basis for the manager being appointed or inspecting her files, was misconceived. The definition of "regulated property" included much more than trust account records. It included client files.
In my opinion, the Solicitor's approach to the appointed manager was entirely consistent with what appears in her emails saying that she will not obey orders of the court and entirely consistent with her approach to recording illegally the proceedings in the District Court. As in those cases, the Solicitor has formed a belief that she is justified in acting the way she has. In relation to the manager she had no reasonable grounds for forming the belief that she did.
The attitude demonstrated in her phone calls and emails to the manager was aggressive and combative. Whilst some may regard such qualities as appropriate for the carrying-on of legal practice, a person behaving in that way needs to have reasonable grounds for adopting the stance they have taken. In any event the Conduct Rules require courtesy.
A reasonable lawyer in the Solicitor's position, when faced with Mr Savage's rebuttals of what she was suggesting, would have sought legal advice from a colleague or some other legal practitioner to ensure that the position that she was adopting was not one that put her in contravention of the law. Why she did not do so could not be explored because she was not prepared to subject herself to cross-examination about the approach she took. That approach, nevertheless, reflects poorly on her fitness to fulfil the inherent requirements of a legal practitioner.
Had this been the only basis upon which the Law Society sought to suspend the Solicitor's practising certificate under s 82, I would have concluded that it was insufficient because it seemed, in the first instance, to derive from a different understanding of her obligations under the Uniform Law. However, in the light of the fact that the Law Society has established two other clear bases to justify suspension of her practising certificate, her approach to the appointment of the manager is a matter that amounts to a further justification for the February resolution.
[12]
Conclusion
In New South Wales Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284 Spigelman CJ (with whom Mason P and Handley JA agreed) spoke of the public interests relevant to legal practitioners. His Honour said at [20]:
There are four interrelated interests involved. Clients must feel secure in confiding their secrets and entrusting their most personal affairs to lawyers. Fellow practitioners must be able to depend implicitly on the word and the behaviour of their colleagues. The judiciary must have confidence in those who appear before the courts. The public must have confidence in the legal profession by reason of the central role the profession plays in the administration of justice. Many aspects of the administration of justice depend on the trust by the judiciary and/or the public in the performance of professional obligations by professional people.
Those interests must be considered in the present proceedings because of the requirements of ss 77 and 278.
The Complaint initiated by the Commissioner contained very serious allegations which included knowingly illegal behaviour and a refusal to obey court orders. The allegations in the Complaint and the medical evidence provided by the Solicitor to the Law Society raised the issue of the Solicitor's fitness to practise, and whether she was able to fulfil the inherent requirements of a legal practitioner. In circumstances where the Solicitor claimed that she could not participate in the investigation process because of her mental health issues, the Law Society was correct to reach the decisions contained in both the January resolution and the February resolution. Whether the test is "necessary" or "warranted" in the public interest, it was in the public interest to do so, having regard to what was said in Cummins at [20]. Even assuming the onus is on the Law Society in the present proceedings, that onus has been easily discharged.
Accordingly, I make the following orders:
1. In proceedings 2018/27265:
1. Dismiss the Amended Summons filed 9 March 2018;
2. The plaintiffs are to pay the defendant's costs.
1. In proceedings 2018/46860:
1. Dismiss the Amended Summons filed 3 April 2018;
2. The plaintiff is to pay the defendant's costs.
1. In proceedings 2018/85144:
1. Dismiss the Amended Summons filed 3 April 2018;
2. The plaintiff is to pay the defendant's costs.
[13]
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: 14 September 2018
Legislation Cited (6)
Legal Profession Act 2004(NSW)s 548, ss 4, 60, 78, 548
Court Security Regulation 2016(NSW)cl 5
Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015(NSW)