New South Wales Bar Association v LI [2005] NSWCA 415 | Case summary

REASONS FOR DECISION Introduction 1 This decision relates to an application filed on 10 February 2006 by the Applicant in these proceedings, the Council of the New South Wales Bar Association ('the Bar Association'), for an order that the time for laying an Information alleging unsatisfactory professional misconduct against the Respondent, a barrister, be extended retrospectively to 20 November 2003, the date of actual filing. This application was made under subsection (2) of s 167AA of the Legal Profession Act 1987 ('the LP Act'), which confers on the Tribunal a discretion to grant an extension to a time limit specified in subsection (1). 2 The Respondent has been identified throughout this case by a pseudonym. In this decision we will refer to him as 'the Barrister'. 3 On 7 April 2006, the Barrister filed an application (amended on 4 May 2006) for an order that the Information in question be dismissed on account of the Bar Association's failure to comply with the time limit specified in s 167AA (1). This application effectively raises the same issues as the Bar Association's application. 4 Under s 167AA(1), the time limit specified is six months from the date on which the Legal Services Commissioner or the relevant Council (in this case, the Council of the Bar Association) decides under s 155(2) of the LP Act 'that proceedings be instituted in the Tribunal with respect to the complaint concerned'. In this case, that time limit expired on either 10 April 2003 or 22 May 2003 (the question of which these two dates is correct is explored below). The period of extension now sought by the Bar Association under s 167AA(2) is accordingly either seven months and ten days or slightly less than six months. 5 Because the Information was filed before the commencement of the Legal Profession Act 2004, these proceedings are wholly governed by the LP Act: see Legal Profession Act 2004, Schedule 9, clause 15. 6 Regrettably, this matter has a long and tortuous history. We will now outline so much of it as is required to determine the procedural question placed before us. We will pay particular attention to the period between the Bar Council's resolution under s 155(2) of the LP Act and the filing of the Information, as it is to this period that the time limit of six months specified in s 167AA relates. Relevant facts 7 The Barrister is now 78 years of age and, so far as we can tell from the evidence before us, has been in continuous practice as a barrister for more than 14 years. 8 The period until the Bar Association's resolution under s 155(2). In a letter dated 15 May 2000, Mr James Doyle, a solicitor, made a complaint to the Legal Services Commissioner regarding the conduct of the Barrister during an arbitration that had been conducted by Mr Edmund Dearn, as arbitrator, in the Parramatta Local Court over three days (19 December 1999, 28 February 2000 and 3 April 2000). In the complaint, Mr Doyle alleged that the Barrister, in representing a party to the arbitration, had acted in an insulting and aggressive manner towards Mr Dearn and towards Mr Doyle's client, who was an opposing party. 9 On 23 May 2000, the Bar Association received the complaint from the Legal Services Commissioner for investigation. 10 In a letter dated 14 June 2000 to the Bar Association, Mr Dearn, who had been sent a copy of the complaint, set out various observations about it. 11 In a letter dated 25 June 2000 to the Bar Association, the Barrister, who had also been sent a copy of the complaint, set out a detailed response to the various allegations contained in it. 12 In a letter dated 3 August 2000 to the Bar Association, Mr Dearn, who had been sent a copy of this response by the Barrister, made comments on it. 13 Having reviewed the complaint and this correspondence, a Professional Conduct Committee of the Bar Association prepared a report dated 11 December 2000 for consideration by the Bar Council. The report concluded with a recommendation that the complaint be referred to this Tribunal, on the basis that 'after investigation' there was a reasonable likelihood that the Barrister would be found guilty of professional misconduct. 14 On 19 December 2000, the Bar Association wrote to the Barrister enclosing a copy of this report and of its correspondence with Mr Dearn and asking him to forward within 21 days any submissions that he might wish to make in response. 15 Following two requests by the Barrister for extensions of time (which were granted), his solicitor, Mr Chris Wood of McCabe Terrill, wrote to the Bar Association on 2 March 2001 requesting a further extension of time to enable the Barrister to consult Dr Bruce Westmore, a forensic psychiatrist. 16 Following a consultation with the Barrister on 16 March 2001, Dr Westmore prepared two reports, dated 21 March and 16 April 2001 respectively. With regard to his conclusions, it is sufficient to say that they included the opinion that if the Barrister undertook 'treatment or counselling' this might reduce the risk of further 'inappropriate behaviour' such as appeared to have occurred during the arbitration. 17 On 19 April 2001, Mr Wood wrote to the Bar Association enclosing Dr Westmore's reports and stating, amongst other things, that the Barrister conceded that the behaviour in question constituted unsatisfactory professional conduct. 18 On 23 May 2001, Mr Wood sent to the Bar Association a submission summarising the consultations with Dr Westmore and indicating that the Barrister accepted Dr Westmore's suggestion that counselling together with attendance at an anger management program would be likely to assist him. Mr Wood advised that the scale of the Barrister's practice was limited and expressed the hope that the matter could now be brought to a speedy conclusion. 19 For the period of five months between 23 May and 23 October 2001, the Bar Association took no further steps in the matter. In the course of cross-examination, Mr Philip Selth, the Executive Director of the Association, suggested two 'general reasons' for this inactivity. These were (a) that at this time the Association had 'an extraordinarily large complex workload due to the so-called bankrupt barrister scandal' and (b) that this case was 'a difficult one', in part because there was a debate about 'whether or not conditions would be imposed and accepted' and what might constitute appropriate anger management treatment for the Barrister. 20 On 23 October 2001, the Bar Association asked Mr Wood to obtain the Barrister's authorisation for the Association to ask Dr Westmore what in his opinion would be 'the best form of continuing management' for the Barrister's 'condition'. On 29 October, Mr Wood sent this authorisation to the Bar Association, which then wrote to Dr Westmore on 31 October. In his reply, which was dated 1 November, Dr Westmore suggested that the Barrister attend a number of sessions of psychotherapy. In a letter dated 11 November to the Bar Association, Mr Wood indicated that the Barrister was 'greatly distressed' by this suggestion, though he 'remained prepared to attend anger management courses and/or re-attend practical training courses for readers at the Bar'. 21 In a further letter to the Bar Association dated 12 December 2001, Mr Wood requested an extension of time until late February 2002 for him to make submissions on the Barrister's behalf regarding the Professional Conduct Committee's recommendations. He advised that the Barrister would be on leave until 6 February 2002. 22 In a letter to Mr Wood dated 7 January 2002, the Bar Association referred to 'some pressure from the Legal Services Commissioner to complete the investigation' and asked that Mr Wood send any further comments on behalf of the Barrister as soon as possible after his return from leave. 23 On 2 May 2002, the Bar Association wrote to Mr Wood, enclosing a report dated 15 April 2002 by the Professional Conduct Committee and requesting comments by them before the report was submitted to the Bar Council. 24 This report included a statement (later contested by Mr Wood) that during March 2002 he had informed the Bar Association that no further material would be put before the Committee. The report recommended that the Bar Council should resolve to the effect that if the complaint was referred to the Tribunal there was a reasonable likelihood of a finding of unsatisfactory professional conduct and that three conditions be attached to the Barrister's practising certificate. These were (i) that if he consented to a reprimand he should be privately reprimanded; (ii) he should submit quarterly reports to the Bar Council concerning the details of his progress and treatment by Dr Westmore or an alternate specialist practitioner approved by the Council; and (iii) he should agree to abide by any treatment recommended by Dr Westmore or any such alternate specialist practitioner. 25 In a letter dated 22 May 2002 to the Bar Association, Mr Wood stated (a) that the Barrister conceded that the Bar Council 'may be satisfied' that the Tribunal could find him guilty of unsatisfactory professional conduct; (b) that he would consent to a reprimand; (c) that he was prepared to apologise to the arbitrator and to the opposing party in the arbitration; and (d) that he would not consent to the proposed conditions regarding treatment, but did agree to being mentored and counselled by a senior member of the Bar. He added that in consequence of the complaint, the Barrister and his wife had suffered considerably anxiety and stress over a period of many months. 26 In a letter of 26 June 2002 to Mr Wood, the Bar Association conveyed the Professional Conduct Committee's concern that the Barrister was not prepared to accept the suggested conditions regarding treatment. 27 Enclosed with this letter was a copy of a previous report of a Professional Conduct Committee relating to the Barrister. It was dated 23 April 1999 and set out the Committee's recommendations on what the letter of 26 June 2002 referred to as a 'similar complaint' to the current one. The letter explained that during 1999 the Bar Council had initially resolved to refer the complaint to the Tribunal, that it had later decided to ask the Barrister to consent to a reprimand and that this had occurred with the Barrister's consent. The letter notified Mr Wood that the Barrister was now being given an opportunity to be heard in relation to this earlier report. It required a response within 14 days. 28 In a letter dated 5 July 2002 to the Bar Association, Mr Wood requested an extension until 23 July 2002, stating that the Barrister was seeking counsel's advice, that he found the suggested conditions 'humiliating and degrading' and that Dr Westmore's later opinion seemed inconsistent with his earlier one. A request for a further extension till 7 August 2002 was granted. 29 In a letter dated 9 August 2002 to the Bar Association, Mr Wood reiterated that the Barrister would not accept the suggested conditions regarding treatment, but indicated that he was instead prepared to 'attend an appropriate stress management program conducted in a group setting' (a Tai Chi course was suggested as an example) and to be mentored by a senior barrister. Attached to the letter was a list of organisations that Mr Wood had approached unsuccessfully in order to find a suitable 'stress management course'. With reference to the Professional Conduct Committee's report dated 23 April 1999, Mr Wood stated that at the time of the relevant incident the Barrister was taking medication and submitted that this incident should not now be taken into account. The letter also stated that the Barrister was currently holding no briefs to advise or appear in court work and that his health was suffering as a result of the present complaint. 30 A further report by the Professional Conduct Committee dated 3 October 2002 was considered by the Bar Council on 10 October. The report contained much of the content of the Committee's report of 15 April 2002, and in addition referred to the recent correspondence between the Bar Association and Mr Wood. It indicated that the Committee took no account of the incident described in the report of 23 April 1999 because of the Barrister's statement that he was affected by medication. It noted the small scale of the Barrister's practice. It also noted the Barrister's opposition to anger management or counselling, but expressed the opinion that despite this opposition Dr Westmore's proposal for treatment was 'most likely to ensure that the barrister's inappropriate conduct is not repeated'. 31 On 10 October 2002, the Bar Council, having considered this report, resolved as follows: - RESOLVED that in respect of the complaint by James Doyle, there is a reasonable likelihood that [the Barrister] will be found guilty by the Legal Services Division of the Administrative Decisions Tribunal of unsatisfactory professional conduct pursuant to sec 155(2) of the Legal Profession Act 1987. FURTHER RESOLVED that [the Barrister] be reprimanded, if he consents to be reprimanded privately pursuant to sec 155(3)(a) of the Legal Profession Act 1987. FURTHER RESOLVED that [the Barrister] be invited to consent to the following conditions being attached to the practising certificate currently issued to [the Barrister], and to any practising certificate which may thereafter be issued to him with respect to any period up to and including 30 June 2005: (a) that [the Barrister] provide the Bar Council with quarterly reports from Dr Westmore, or an alternate specialist practitioner acceptable to the Bar Council, concerning the details of [the Barrister's] progress and continuing treatment, the first of such reports to be due on 28 February 2003; (b) that [the Barrister] agree to abide by any treatment and medication recommended by Dr Westmore or an approved alternate specialist practitioner; and (c) that [the Barrister] may apply to the Bar Council for the variation or revocation of the above two conditions with respect to any practising certificate which may be issued to him after 30 June 2003 in the event that he is able to demonstrate to the Bar Council satisfactory compliance with the above conditions up to that time. FURTHER RESOLVED that if [the Barrister] does not consent to the reprimand and to the conditions attached to his practising certificate, then pursuant to sec 155(2) of the Legal Profession Act 1987 the complaint against [the Barrister] be referred to the Legal Services Division of the Administrative Decisions Tribunal on the basis that there is a reasonable likelihood [the Barrister] will be found guilty by the Tribunal of unsatisfactory professional conduct. 32 The period between the Bar Association's resolution under s 155(2) and the filing of the Information. On 28 October 2002, the Bar Association wrote to Mr Wood informing of the text of this resolution, setting out what was now required to be done by the Barrister pursuant to the resolution, requiring compliance on the Barrister's part by 19 November 2002 and enclosing a copy of the Professional Conduct Committee's report. 33 In letters dated 8 and 11 November 2002 to the Bar Association, Mr Wood raised various questions regarding the conditions in the resolution relating to treatment of the Barrister by Dr Westmore or an alternate specialist. In the latter letter Mr Wood advised that Dr Westmore had disqualified himself from providing treatment on the ground that he had already provided medico-legal advice. 34 In a letter to Mr Wood dated 15 November 2002, the Bar Association provided answers to his questions regarding treatment of the Barrister and stated that his reply to the letter of 28 October was required by 22 November 2002. 35 In the course of some correspondence on 21 November, the possibility of a meeting between Bar Association staff and legal representatives for the Barrister was proposed and then abandoned. In addition, Mr Wood referred again to the damage to the Barrister's health that the delay in resolving the complaint had caused. 36 Mr Wood wrote to the Bar Association again on 22 November 2002 enclosing a letter to it written by the Barrister. In this letter, the Barrister argued that he had been given insufficient time to respond to the Bar Council's resolution. He rejected, giving his reasons, the conditions in the resolution relating to his being 'treated' and reiterated that he would consent only to a public reprimand, a public apology, being mentored and guided by a named senior barrister and giving an undertaking to attend a course in Tai Chi. 37 This letter from Mr Wood was received at the Bar Association by fax on 22 November 2002. 38 On 26 November 2002, the Bar Association wrote to Mr Wood stating that in view of the Barrister's refusal to consent to 'conditions being attached to his practising certificate and the issue of the reprimand', the matter would be referred to the Tribunal in accordance with the Bar Council's resolution. The letter said also that the Bar Council had retained Ms Rosemary MacDougal of Eakin McCaffery Cox to act for it in the proceedings. 39 On 29 November 2002, the Bar Association wrote to the Legal Practitioners Admission Board requesting certification of the period or periods in which the Barrister had held a practising certificate as a barrister. It also wrote to Ms Macdougal conveying its instructions to act in the matter and enclosing some documentation. Ms Macdougal received this letter on 3 December 2002. A further letter to her from the Bar Association, bearing this date, requested that she draft an Information and enclosed the remainder of the Association's file in the matter. 40 On 10 December 2002, pursuant to instructions from the Bar Association, Ms Macdougal caused a brief to be delivered to counsel. 41 On 11 December she wrote to the Bar Association questioning whether the Tribunal had the necessary power to make the orders, relating to treatment of the Barrister, that were contained in paragraphs (a) and (b) of the Bar Council's resolution of 10 October. 42 On 13 December 2002, Ms Elizabeth Maconochie, who until then had handled this matter in the office of the Bar Association, left the employ of the Association. The matter was transferred to Ms Terrie Gibson, who was the Director, Professional Conduct, pending the arrival of Ms Anne Sinclair as Ms Maconachie's replacement. 43 On 20 December 2002, Ms Gibson wrote on the Association's behalf to Ms Macdougal, stating that the President of the Association had asked that the Information to be laid in the Tribunal should request by way of 'ancillary orders' that the Barrister be required to undertake a period of 'education' relating to his etiquette and conduct in courts and in his relations with clients and other practitioners. 44 On 3 January 2003, Ms Macdougal wrote to Ms Gibson at the Bar Association requesting that consideration be given to the type of 'education' that was envisaged. She noted that at a recent Tribunal hearing the Association had not obtained an order for the further education of a barrister because it had been unable to identify a relevant course. Ms Macdougal also suggested that if the orders to be sought against the Barrister in these proceedings were to be changed, the Barrister should be notified accordingly before the proceedings commenced. She drew attention to a recent occasion on which the Tribunal had criticised the Association for not giving notice of this kind. 45 In this letter, Ms Macdougal also said that counsel had suggested that during the current month she should commence taking statements from the complainant and from the arbitrator. She pointed out that before incurring the costs of that work the Bar Association might wish to clarify the issues that she was raising in the letter regarding the orders sought and the provision of notice of any change in them to the Barrister. 46 On 20 January 2003, Ms Helen Barrett took over from Ms Gibson sixteen professional conduct matters that Ms Maconachie had previously handled, including the present matter. Having previously been on leave, she had to deal with a backlog of correspondence. 47 On 10 February 2003, at Ms Barrett's request, Ms Macdougal emailed to her a copy of the letter dated 3 January 2003. 48 On 27 February 2003, Ms Barrett instructed Ms Macdougal to carry out research into the availability of training courses on anger management. 49 During March 2003, Ms Barrett had the further responsibility of assisting some new staff members to take up new roles within the Bar Association's office. 50 On 9 April 2003, Ms Macdougal sent to the Bar Association a lengthy letter summarising the reports that Dr Westmore had provided and, inter alia, setting out certain options that the Bar Association might wish to consider. 51 On 27 June 2003, Ms Barrett instructed Ms Macdougal to proceed with the filing of an Information in the Tribunal, subject to draft orders being settled. Ms Macdougal advised that it was her view, supported by counsel, that witness statements should be taken before proceedings were instituted. 52 On 3 July 2003, Ms Macdougal telephoned Mr Dearn and asked whether he would be prepared to provide a sworn statement in the matter. He said that he was reluctant to do this. In a letter written to him on the following day, she confirmed her request, enclosing copies of the complaint, his previous correspondence with the Bar Association and the Barrister's response to the complaint. 53 In a letter dated 8 July 2003 to Ms Macdougal, Mr Dearn confirmed that he was unwilling to provide a statement. 54 On 9 July 2003, Ms Macdougal telephoned Mr Doyle and requested a statement from him. He agreed to provide one. On the same day, she confirmed her request in a letter to him, made an appointment to meet him and enclosed copies of relevant documents. 55 On 17 July 2003, Mr Doyle met Ms Macdougal at her office to discuss the drafting of a statement. He informed her that he would prefer to prepare his own statement. 56 On 24 July 2003, Ms Macdougal wrote to Mr Dearn requesting that he reconsider his decision not to provide a statement. On 30 July, he replied, indicating that he remained unwilling to do so. 57 On 31 July 2003, Ms Macdougal advised Ms Barrett that Mr Doyle was prepared to provide a statement but had not yet done so, and that Mr Dearn was not prepared to do this. 58 On 22 August 2003, Ms Macdougal asked Mr Doyle by telephone what progress he had made. He said that he would send her a draft affidavit during the following week. 59 On 3 September 2003, a similar enquiry elicited the response that Mr Doyle would draft his statement within the next couple of days. 60 On 16 September 2003, Ms Macdougal telephoned Mr Doyle's office and left a message for him. There is no record of him having returned the call. 61 On 24 September 2003, Ms Barrett instructed Ms Macdougal that proceedings should be instituted without sworn evidence having first been obtained from any witnesses. 62 In a letter dated 8 October 2003 to the Bar Association, Mr Doyle commented on the Barrister's response to the complaint and enclosed his handwritten notes made during the arbitration hearings. 63 In an email on the same day to Ms Macdougal, Ms Barrett outlined the results of some research that she had conducted into courses offered by the Bar Association that related to anger management and professional courtesy. She asked Ms Macdougal to study available material relating to these courses and to draft an Information, including the orders to be sought by the Association. 64 On 9 October 2003, Ms Macdougal emailed a draft Information to Ms Barrett. It did not contain draft orders, as she wished to discuss these with counsel. 65 On 10 October 2003, Ms Barrett replied by email that the Bar Association was satisfied with the drafted material and would await a draft of the orders to be sought. 66 On 14 October 2003, the Bar Association instructed Ms Macdougal as to the orders to be sought by the Association. 67 On 16 October 2003, Ms Macdougal sent to the Bar Association draft orders that had been settled by counsel. She also sent a draft affidavit, dealing with jurisdictional matters, to be sworn by Mr Selth. Ms Barrett informed her that she would discuss the draft orders with Ms Sinclair (who was then Director, Professional Conduct) and requested the addition of an order seeking the Association's costs. Ms Macdougal emailed a draft costs order to her. 68 On 22 October 2003, having not received a sworn statement from Mr Doyle, Ms Macdougal began to prepare a draft affidavit for him to consider. The next day, she sent a draft to him. 69 On 4 November 2003, Mr Doyle returned the draft affidavit to Ms Macdougal with some changes. The next day, she sent the amended affidavit to him to be sworn. 70 On 7 November 2003, Ms Macdougal informed Ms Barrett that one of the proposed witnesses had approved a form of affidavit. She also requested instructions as to the draft orders and the draft of Mr Selth's affidavit. Ms Barrett advised her that the draft orders had been approved. 71 On 10 November 2003, Mr Doyle swore his affidavit. On the same day, Ms Macdougal sent a further draft of Mr Selth's affidavit to Ms Barrett, requesting that she arrange for it to be sworn. 72 On 11 November 2003, Ms Barrett asked Ms Macdougal to make further changes to Mr Selth's affidavit. 73 On 17 November 2003, having made these changes, Ms Macdougal forwarded to Ms Barrett the affidavit to be sworn by Mr Selth. On 19 November, having made a few minor changes, Ms Barrett delivered it to him. 74 On 20 November 2003, after Mr Selth had sworn his affidavit, the Bar Association filed the Information, together with this affidavit and that of Mr Doyle, in the Tribunal. 75 The period following the filing of the Information. On 23 December 2003, an affidavit by Ms Macdougal, annexing the correspondence between the Bar Association and Mr Dearn, was filed in the Tribunal. 76 On 5 March 2004, the Tribunal published its decision in New South Wales Bar Association v de Robillard [2004] NSWADT 45 (hereafter 'de Robillard'). In this decision, the Tribunal rejected an application by the Bar Association for leave to file an Information under the LP Act after the expiry of the time limit which was then operative. The relevant provisions at that time and the nature and significance (for present purposes) of the decision in de Robillard are set out below. 77 On 10 March 2004, the Tribunal, having previously adjourned a directions hearing because the Barrister was overseas, did so again to permit the Bar Association to consider the implications of de Robillard. 78 On 11 May 2004, a Reply to the Information was filed in the Tribunal on behalf of the Barrister. 79 On the same day, Ms Macdougal wrote to Mr Wood indicating that the Bar Association would be applying for an order retrospectively granting an extension of time for the filing of the Information. Also on that day, in a 'without prejudice' letter to Ms Macdougal, Mr Wood conveyed an offer by the Barrister to accept a reprimand from the President of the Bar Association, to apologise to the individuals involved in the arbitration and to undertake an appropriate course or program to assist him in overcoming stress management issues, on condition that the Association agreed to withdraw the Information. 80 On 12 May 2004, at the adjourned directions hearing, the Tribunal gave directions for the hearing, which it set down for 12 July 2004, of the Bar Association's application for an extension of time. 81 Between 26 May and 13 September 2004, there were discussions and letters between Ms Macdougal and Mr Wood resulting in an agreement between the parties along the lines proposed by Mr Wood in his letter of 11 May. 82 It is not necessary here to describe these events in more detail, except to note one matter. This is that in a letter dated 25 June 2004 to Ms Macdougal, Mr Wood indicated that if the Bar Association did not agree to the terms being proposed by the Barrister, he (Mr Wood) was under instructions to have the matter re-listed in the Tribunal 'to fix a date for argument in relation to the de Robillard points'. 83 On 12 July 2004, the Registry advised the parties that the hearing scheduled for the Bar Association's application for an extension of time could not take place because the Tribunal could not be constituted on that day. 84 At a directions hearing on 11 August 2004, the Tribunal set down for hearing on 13 September an application by the Bar Association for the Information to be dismissed. 85 On 15 August 2004, as already mentioned, the Legal Profession Amendment Act 2004, by which (among other things) s 167AA was inserted into the LP Act, came into force. 86 On 13 September 2004, the Tribunal adjourned until 15 October the hearing of the Bar Association's application for the Information to be dismissed. The reason was that a member of the Panel constituted to hear the application had been a member of the Bar Council when the complaint against the Barrister had been discussed. 87 On 15 October 2004, a differently constituted Panel heard the Bar Association's application and reserved its judgment. 88 A letter from Mr Wood to Ms Macdougal dated 21 October 2004 contained a statement to the effect that the Barrister's willingness to accept a reprimand and make an apology remained conditional on the Tribunal granting the Bar Association's application for dismissal of the Information. 89 In a decision dated 4 February 2005 (New South Wales Bar Association v 'LI' [2005] NSWADT 15), the Tribunal rejected this application for dismissal. 90 On 23 May 2005, the Court of Appeal acceded to an application by the Bar Association for leave to appeal against this decision. 91 Following a hearing on 11 November, the Court of Appeal delivered a judgment on 28 November 2005 dismissing the appeal (Council of the New South Wales Bar Association v LI [2005] NSWCA 415). 92 Following the swearing of affidavits by Mr Selth and Ms Macdougal on 9 and 10 February 2006 respectively, the Bar Association filed on 10 February the application, which we are now considering, for an extension of time under s 167AA of the LP Act. We heard argument on this application on 20 June 2006. Relevant legislation 93 As indicated earlier, the date from which time limits for the filing of an information under the LP Act become operative is the date on which the relevant Council, or the Legal Services Commissioner, make a decision under s 155(2) of the Act to institute proceedings in the Tribunal. Section 155, so far as relevant to this judgment, provides as follows: - 155 Decision after investigation of complaint (1) After a Council or the Commissioner has completed an investigation into a complaint against a legal practitioner, the complaint is to be dealt with in accordance with this section. (2) The Council or the Commissioner must institute proceedings in the Tribunal with respect to the complaint against the legal practitioner if satisfied that there is a reasonable likelihood that the legal practitioner will be found guilty by the Tribunal of unsatisfactory professional conduct or professional misconduct. (3) However, if the Council or the Commissioner is satisfied that there is a reasonable likelihood that the legal practitioner will be found guilty by the Tribunal of unsatisfactory professional conduct (but not professional misconduct), the Council or the Commissioner may instead: (a) reprimand the legal practitioner if the legal practitioner consents to the reprimand, or (b) dismiss the complaint if satisfied that the legal practitioner is generally competent and diligent and that no other material complaints have been made against the legal practitioner. (4) The Council or the Commissioner is to dismiss the complaint against the legal practitioner if satisfied that there is no reasonable likelihood that the legal practitioner will be found guilty by the Tribunal of either unsatisfactory professional conduct or professional misconduct. (5) …. 94 Section 167(1) supplements s 155(2) by providing that proceedings may be instituted in the Tribunal with respect to a complaint against a legal practitioner 'by an information laid by the appropriate Council or the Commissioner in accordance with this Part' (i.e. Part 10 of the Act). 95 Until the Legal Profession Amendment Act 2004 became operative on 15 August 2004, the provisions specifying the time within which an Information was required to be filed were ss 42 and 44 of the Administrative Decisions Tribunal Act 1997 ('the ADT Act') and Rules 4 and 14 of the Administrative Decisions Tribunal (Interim) Rules 1998 ('the ADT Rules'). 96 Section 42, so far as relevant, provided that an application to the Tribunal for an original decision must be made 'in the manner and within the time prescribed by the rules of the Tribunal (or prescribed by or under the enactment under which the application is made)'. 97 Before 15 August 2004, the LP Act did not specify a time limit for the filing of an information. Accordingly, the relevant time limit was that specified in the ADT Rules. Rule 14 provided, so far as relevant: - 14 Applications for original decisions (1) For the purpose of section 42 (b) of the Act, an application to the Tribunal for an original decision must:.. (3) Unless the enactment under which the application is made provides otherwise, the application must be made to the Tribunal within 28 days from the day on which the applicant became entitled under the enactment to make the application. 98 Both s 44 and Rule 4 made provision, in different ways, for extensions of time to be granted. Section 44 stated: 44 Late applications to Tribunal (1) Despite section 42(b), the Tribunal may, on application in writing by an interested person seeking to make a late application, extend the time for the making by that person of an application if the Tribunal is of the opinion that the person has provided a reasonable explanation for the delay in making the application. (2) The time for making an application for an original decision may be extended under subsection (1) although the time has expired. (3) In this section, late application means an application not made within the time prescribed by the rules of the Tribunal (or prescribed by or under the enactment under which the application is made). 99 Rule 4 stated: - 4 Application of rules The Tribunal, the President or a Divisional Head may dispense with compliance with any requirement of these rules, either before or after the occasion for compliance arises. 100 On 15 August 2004, s 167AA of the LP Act came into operation. It was in the following terms: - 167AA Time for instituting proceedings (1) An information may be laid under this Part at any time within 6 months after the Council or Commissioner decides that proceedings be instituted in the Tribunal with respect to the complaint concerned. (2) Despite subsection (1), the Tribunal may, on application in writing by the Council or Commissioner, as the case may require, extend the time for laying an information referred to in subsection (1). (3) In exercising the power to extend the time for laying an information, the Tribunal is to have regard to all the circumstances of the case, and (without affecting the generality of the foregoing) the Tribunal is to have regard to the following: (a) the public interest, (b) the extent to which, having regard to the delay, there is or may be prejudice to the legal practitioner concerned by reason that evidence that would have been available if the information had been laid within the 6-month period is no longer available, (c) the reasonableness of the applicant's explanation for the delay in laying the information. (4) The time for laying an information may be extended under subsection (2) although that time has expired. (5) This section has effect despite anything in section 44 of the Administrative Decisions Tribunal Act 1997 or the rules or regulations under that Act. (6) For the purposes of subsection (1), a decision that proceedings be instituted is made when: (a) the Council or Commissioner decides that there is a reasonable likelihood that the legal practitioner concerned will be found guilty of unsatisfactory professional conduct or professional misconduct, as referred to in section 155 (2), or (b) the Commissioner decides to institute proceedings in the Tribunal against the legal practitioner concerned, or to direct the appropriate Council to do so, under section 160 (1) (d). (7) An official record or notification of a decision referred to in subsection (6) (a) or (b) and stating the date the decision was made is evidence that the decision was made and of the date the decision was made. 101 Although s 167AA did not commence until 15 August 2004, the amending legislation by which it was introduced expressly provided that it should apply to earlier decisions under s 155(2) made by a Council or the Commissioner: see Legal Profession Amendment Act 2004, Schedule 1, clause 22. Issues arising in interpreting these provisions 102 It is convenient here to deal with four issues of interpretation, relating chiefly to the terms of s 167AA, that were raised in the competing submissions. 103 Whether s 167AA fully supplanted the earlier provisions. Two linked arguments advanced by the Barrister, when representing himself on the second day of the hearing before us, were (a) that s 167AA of the LP Act did not expressly overrule s 42 of the ADT Act, which had therefore to be treated as the provision governing time limits at the time when the Information in these proceedings was filed; and (b) that in any event the question whether an amendment to the LP Act could affect the operation of other Acts, such as the ADT Act, was not one which the Tribunal was empowered to determine. 104 We do not accept either of these submissions. As to the first, it is sufficient to say that the time limit of 28 days which was operative until s 167AA came into force derived from s 42(b) of the ADT Act coupled with Rule 14(3) of the ADT Rules and was stated in each of these provisions to be applicable unless 'the enactment under which the application is made' provided otherwise. In the present proceedings, s 167AA forms part of this very enactment and does indeed provide otherwise. Its time limit of six months is now the 'time prescribed' within the meaning of s 42(b). As to the second submission, we would simply say that the Tribunal, in carrying out its duty to apply all relevant rules of statute or common law to the issues that it is required to resolve, regularly makes determinations as the effect of legislation upon pre-existing statutory provisions. 105 Taking into account the terms of s 167AA and of the transitional provision applying it to earlier decisions of a Council or the Commissioner under s 155(2) (Legal Profession Amendment Act 2004, Schedule 1, clause 22), we have no doubt that s 167AA is applicable to the present case. 106 The date on which the time limit of six months specified in s 167AA(1) became operative. Ms Adamson SC, who appeared for the Bar Association, submitted that in the present case time began to run under s 167AA(1) on 22 November 2002. This, she pointed out, was the day on which the Barrister informed the Bar Association that he would not accept the conditions contained in the third paragraph of the Bar Council's resolution of 10 October 2002. It was therefore, she claimed, the day on which the Council's decision, contained in the fourth paragraph, to institute proceedings in the Tribunal became unconditional. 107 In our opinion, however, this submission fails to take account of s 167AA(6). This states that 'a decision that proceedings be instituted', for the purposes of s 167AA(1), is made when one or other of two events occur. The relevant event in the present case is, as subparagraph (a) states, when: … the Council or Commissioner decides that there is a reasonable likelihood that the legal practitioner concerned will be found guilty of unsatisfactory professional conduct or professional misconduct, as referred to in section 155 (2). 108 The Bar Council made a decision to that effect with respect to the Barrister on 10 October 2002. It is recorded in the first paragraph of the resolution that it passed on that day. This is not altered by the fact that, for a period of some six weeks thereafter, it left open the possibility that, with the Barrister's consent, it might administer a reprimand under s 155(3)(a) and attach conditions to his practising certificate, instead of instituting proceedings. 109 No doubt, the Bar Association may argue that, to the extent that its failure to adhere to the time limit of six months was attributable to its attempt to resolve the complaint by these alternative means, it has to hand a reasonable explanation for the delay in filing the Information (cf s 167AA(3)(c)). But it is clear to us that, for the purposes of s 167AA(1), the relevant decision of the Bar Council was made on 10 October 2002 and the time limit of six months expired on 10 April 2003. 110 The significance of the short time then permitted for filing (28 days) in assessing the reasonableness of the Bar Association's explanation. Under s 167AA(2), one of the matters that we are expressly required to take into account is 'the reasonableness of the applicant's explanation for the delay in laying the information'. Ms Adamson argued that in conducting this exercise we should not take account of the fact that at the time when the Bar Association was obliged on account of having made a decision under s 155(2) to institute proceedings (or to act under s 155(3)), the time-limit for instituting proceedings was only 28 days, not (as now provided) six months. She submitted that this followed from the consideration that since, by retrospective legislation, the time limit had been enlarged to six months, 'one can only measure the delay' from the time at which the Bar Association was 'actually late'. 111 We do not agree. It is true that, as Ms Adamson said, a result of the commencement of s 167AA on 15 August 2004 is that no question of lateness would have arisen in any subsequent proceedings if the Information had been laid within the newly prescribed period of six months. But the Information was in fact laid some seven months after that period expired. At the time when it was laid, it was late, according to the law then applying, by a time span of slightly more than a year. In our opinion, an assessment, as required by s 167AA(3)(c), of the 'reasonableness' of the Bar Association's 'explanation' for 'the delay in laying the information' (which delay, according to s 167AA, is to be measured at some seven months) calls for consideration of how diligently and effectively the Association reacted to complying with the current statutory obligation to observe the statutory time limit. In making that assessment, we regard it as relevant that at the time of the delay the permitted period was only 28 days. 112 The significance of the long delay between the events prompting the complaint and the present hearing. Mr Williams SC, who appeared for the Barrister on the first day of the hearing, submitted that we were bound to reject the Bar Association's application for leave to file out of time because of the long and unwarranted delay - more than six years - between the conclusion, in April 2000, of the arbitration which gave rise to the complaint and the hearing, in June 2006, of the application. 113 In so submitting, Mr Williams referred to a number of leading authorities establishing that in disciplinary proceedings, as indeed in other forms of proceeding, a permanent stay may and should be ordered if, on account of a very substantial and unjustifiable delay between the relevant events and the hearing of the proceedings, it would be oppressive to the respondent and an abuse of process to permit the proceedings to continue. He relied in particular on the judgment of McHugh JA (with whom Street CJ and Priestley JA agreed) in Herron v McGregor (1986) 6 NSWLR 246 at 252-255, and on passages in the majority judgment of Mason CJ, Deane and Dawson JJ in Walton v Gardiner (1992) 112 ALR 289 expressing concurrence with that decision of the Court of Appeal (at 296-297) and affirming the general principles to be applied (at 300-301). Mr Williams referred also to the well-known discussion of the prejudicial effects of delay in commencing proceedings contained in the judgment of McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1 at 8-10. 114 The basis on which Mr Williams argued that a substantial and unjustified delay provided grounds for rejecting an application for extension of time brought under s 167AA(2) was that the opening words of s 167AA(3) require the Tribunal, in determining the application, to 'have regard to all the circumstances of the case'. He maintained that although three matters are specifically identified as relevant in the succeeding paragraphs of the subsection, they are included, as the subsection says, 'without limiting the generality of the foregoing'. 115 In response, Ms Adamson contended that the authorities cited by Mr Williams, relating to the grant of a permanent stay of proceedings by reason of abuse of process, provided no assistance to the Tribunal in making a determination under s 167AA(2). The reason, she said, was that in s 167AA(3) the legislature had set out in specific terms the matters, or at least the 'key matters', that should be taken into account. 116 Ms Adamson made two associated submissions, which may be summed up as follows. First, the statements of principle by McHugh JA in Herron v McGregor, in so far as they propounded the notion of a common law 'right to a speedy trial', have been disapproved by the High Court in Jago v District Court of NSW (1989) 168 CLR 23. Secondly, a permanent stay on grounds of delay can only be granted in an extreme case, where 'the delay is such that the defendant will suffer such prejudice as cannot otherwise be remedied and which will result in an unfair trial' (see Island Maritime Marine v Barbara Filipowski [2004] NSWCCA 30 at [43]; affirmed [2006] HCA 30). 117 In our judgment, the impact of the long delay in this case cannot be ignored in our decision whether or not to grant leave under s 167AA(2). It is one of 'the circumstances of the case' to which we must have regard. But we consider, in line with a formulation suggested by Ms Adamson, that the 'key matters', the matters to which we must pay chief regard, are those listed in subparagraphs (a), (b) and (c) of s 167AA(3). Simply to apply the considerations urged by Mr Williams, derived as they are from a line of authorities governing the grant of a permanent stay of proceedings on grounds of abuse of process, would be to operate in a very different context to that of our jurisdiction to extend time under s 167AA(2). Matters to be taken into account 118 It is evident from the terms of s 167AA(2) that in deciding whether to grant leave for the Information to be filed out of time, we must weigh up a number of competing considerations. No single factor is determinative. 119 In this section of our judgment, we identify and discuss what we perceive to be the factors of relevance in determining whether leave should be granted. We will begin with those factors which s 167AA(3) expressly requires us to take into account. 120 The public interest (see s 167AA(3)(a)). As Ms Adamson argued, it is well recognised that the primary purpose of maintaining a regime for the receipt and investigation of complaints alleging unsatisfactory professional conduct on the part of legal practitioners and the instigation, where appropriate, of disciplinary proceedings against them, is protection of the public. Amongst the associated purposes are the provision of redress for the complainant and, as emphasised by Mahoney JA in Law Society of NSW v Foreman (1994) 34 NSWLR 408 at 444, the education of both the profession and the public regarding the standards of behaviour required of practitioners. 121 It follows that the public interest is materially served by granting leave for an Information to be filed out of time if, without such leave, the merits of a complaint, which has been investigated as required by the legislation, will never be determined. The important public interest in attaining a final resolution of the complaint is the same irrespective of whether the delay in instituting proceedings is attributable to failure by the prosecuting authority (for example, on account of dilatoriness) to perform its duties properly, or to matters beyond its control. 122 The importance of this public interest is underlined by the fact that where a Council or the Commissioner, following investigation of a complaint, is satisfied of a reasonable likelihood that there would be a disciplinary finding by the Tribunal, it is bound by s 155(2), not merely empowered, to refer the matter to the Tribunal unless it decides, in a case involving unsatisfactory professional conduct only, to act under s 155(3). Thereafter, as Spigelman CJ said in the Court of Appeal judgment relating to this matter (Council of the New South Wales Bar Association v LI [2005] NSWCA 415 at [36]), the Tribunal, not the prosecuting authority, becomes 'the relevant decision-making body'. There is a clear legislative intent that if the 'state of satisfaction' providing the basis for a resolution under s 155(2) has been reached, the normal outcome (save where s 155(3) applies) should be a Tribunal hearing. 123 In this connection, we take account also of two statements by the Attorney General in the Second Reading Speech relating to the Legal Profession Amendment Act 2004. The Attorney General said with regard to s 167AA that its 'more generous time frame, and a power for the tribunal to extend time, will ensure that defaulting practitioners do not get off on a technicality'. He also said: 'I trust these amendments will facilitate successful prosecutions by the regulatory authorities and play their part in maintaining the standard of conduct that the community expects of legal practitioners.' 124 As we have said, a major component of the 'public interest' to be served by disciplinary proceedings against legal practitioners is protection of the public. It is clearly arguable, however, that in the particular circumstances of this case, nothing tangible by way of protection of the public, and indeed some element of detriment to the public interest, would be achieved by granting leave for the Information to be filed. In submitting to this effect, Mr Williams relied on three considerations in particular. 125 The first was that the matters alleged in the complaint - which, as the Information makes clear, are claimed to have amounted at most to unsatisfactory professional conduct - occurred more than six years ago. There being no evidence of improper conduct by the Barrister since then, Mr Williams contended that it could not 'seriously be said' that the public now required 'protection' of the type that the institution of Tribunal proceedings was designed to afford. 126 This argument receives support from a passage in the judgment of Gleeson CJ in Gill v Walton (1991) 25 NSWLR 190. Here the Court of Appeal held by majority (with Mahoney JA dissenting) that disciplinary proceedings against the three claimants in the case, who were current or former medical practitioners, should be permanently stayed, principally on the ground of substantial and unreasonable delay since the alleged misconduct on their part occurred. Under the heading 'the public interest', the Chief Justice pointed out at 201 that there was 'no evidence or suggestion of any continuing conduct on the part of the claimants against which the public requires protection, or which reflects upon their fitness to practise'. Later under the same heading (at 202), having referred to 'the public interest in disciplinary proceedings in cases of malpractice', he said: 'However the fact that nothing is presently occurring, or has recently occurred, in respect of which the public needs protection from the claimants is a matter to be taken into account.' 127 The second point made by Mr Williams in this connection is that there is a public interest in the prompt institution of disciplinary proceedings such as these. Mr Williams argued that this public interest would be impaired if the Bar Association were given leave to file the Information in this case several months after the permitted period. He relied here on the judgment of Kirby P in Gill v Walton. In the course of reaching the same conclusion as Gleeson CJ, Kirby P referred at 207 to 'the public interest in the prompt prosecution of complaints of alleged wrong-doing or incompetence on the part of medical practitioners'. In the same vein, he said at 208: - The protection of the public and fairness to the medical practitioners involved each require that complaints be promptly investigated and, where appropriate, brought before the disciplinary body in a timely fashion. This was not done here. 128 Thirdly, Mr Williams pointed out that the Barrister is now aged 78 and maintains a limited practice only. In its report dated 15 April 2002, the Professional Conduct Committee said that he no longer had chambers, that he practised solely from home and that in May 2001 he held only one brief. There was no specific evidence as to the present size of his practice, but it would appear not to be substantial. 129 In response to this last point, Ms Adamson drew our attention to an observation of the Tribunal in Law Society of NSW v Cornwell [2006] NSWADT 72 at [14]. This is to the effect that even if a legal practitioner has 'retired', this status may be temporary only, since opportunity may arise, or financial pressures may increase, so as to tempt or coerce him or her back into some form of practice. 130 Prejudice suffered by the Barrister on account of the delay beyond six months (see s 167AA(3)(b)). The specific form of prejudice to which, by virtue of s 167AA(3)(b), we must particularly pay attention is actual or potential prejudice to the Barrister arising because 'evidence that would have been available if the information had been laid within the 6-month period is no longer available'. 131 As Ms Adamson submitted without opposition from Mr Williams, there was no evidence before us to suggest that prejudice of this specific nature was occasioned by the relevant delay. The Barrister received a copy of the complaint shortly after it was made and provided a detailed response to it in his letter of 25 June 2000 to the Bar Association. He was kept informed of how matters progressed throughout the period of investigation, and indeed thereafter. He must therefore have appreciated that, if he wished to obtain evidence to corroborate his account of the arbitration hearings, he should endeavour to do so while matters were fresh in the minds of persons who attended them. It was not argued to us at any time that any such evidence ceased to be available to him because the Bar Association did not lay the Information within the six-month period prescribed by s 167AA(1). 132 The reasonableness of the Bar Association's explanation for the delay in laying the Information (see s 167AA(3)(c)). It seems appropriate to us to consider here the explanation offered by the Association for having taken some thirteen months (exceeding by about seven months the period now permitted) to move from the Bar Council's resolution under s 155(2) to the stage of filing an Information. Although the term 'delay' in s 167AA(3)(c) clearly refers to the period after the time limit expired (i.e., from 10 April to 20 November 2003), the explanation for the delay and the 'reasonableness' of that explanation must, we think, take into account relevant events during the preceding six months. It was on 10 October 2002, not 10 April 2003 that the clock started ticking. 133 We draw attention to this matter because it is one on which our views diverge from a submission made by Ms Adamson. We suspect that it is not a matter of great significance in this case. 134 The Bar Association did not put before us a formal document constituting an 'explanation' for the delay. But on reviewing the relevant events (outlined above at [32 - 74]) between 10 October 2002 and 20 November 2003, in conjunction with parts of the evidence and submissions advanced on the Association's behalf, it appears to us that any such 'explanation' would have six significant components. 135 First, as already mentioned, it was not until 22 November 2002 that the possibility of a reprimand under s 155(3)(a), coupled with the attachment of conditions to the Barrister's practising certificate, fell out of contention. Until this date, it appeared possible, indeed likely, that the complaint would be resolved without any need for proceedings in the Tribunal. 136 Secondly, between December 2002 and June 2003, Ms Macdougal, having expressed concerns to the Bar Association about the need to indicate to the Tribunal and the Barrister what orders would be sought in the Information and about various types of order that the Association was considering, waited for instructions as to how she should proceed. Although she considered that the Information should not be laid until sworn witness statements were obtained (a view later confirmed by counsel) she also believed that the task of obtaining these should not be undertaken until these questions regarding the orders were resolved. It should be added that during this period she also conducted some research into the availability of training courses on anger management. 137 Thirdly, a significant reason why she did not receive formal instructions to proceed with the Information (subject to draft orders being settled) until June 2003 was that during December 2002 and January 2003 the file on this matter was transferred twice within the Bar Association's office, from Ms Maconochie to Ms Gibson, then from Ms Gibson (along with a number of other matters) to Ms Barrett. During March 2003, Ms Barrett was engaged also in training new staff members. 138 Fourthly, the task of obtaining statements from the two important witnesses proved difficult and time-consuming. Ms Macdougal first contacted them early in July 2003. She was ultimately unsuccessful in her approach to Mr Dearn. She did not receive a sworn statement from Mr Doyle, despite contacting him on a number of further occasions, until 4 November 2003. 139 Fifthly, it proved necessary during November 2003 to make a number of changes to the initial draft of Mr Selth's affidavit. 140 Sixthly, an overarching reason why the Bar Association and Ms Macdougal allowed the time limit (which then was 28 days only) to be substantially exceeded on account of their attention to these matters was that until the decision in de Robillard was handed down they were not aware of any indication by the Tribunal that proceedings instituted in breach of this time limit might suffer rejection. 141 In an affidavit dated 9 February 2006, Mr Selth addressed this issue, relying on his own knowledge as Executive Director of the Bar Association since November 1997 and on the answers to enquiries that he had made of the Director, Personal Conduct. He stated that until the decision in de Robillard, in cases where the Bar Council had not been able to comply with the 28-day time limit specified in Rule 14(3) of the ADT Rules, it had 'generally sought and been granted under Rule 4 dispensing with compliance with Rule 14(3), normally at the first directions hearing'. Prior to de Robillard, it had never made an application under s 44 for an extension of time, and he had never been aware of there being 'any difficulty in obtaining an order dispensing with compliance with Rule 14(3)'. So far as he knew, the Association had acted on the assumption that 'it would not be fatal to proceedings against a legal practitioner' if compliance with this Rule was 'not possible'. Mr Selth was cross-examined, but not on this passage in his affidavit. 142 Ms Macdougal also dealt with this matter, in an affidavit dated 10 February 2006. She was not cross-examined. In the affidavit, she stated: - Between 6 October 1998 when [the ADT Rules] came into force and the Tribunal's decision in [ de Robillard ] on 5 March 2004 I received instructions to act for the [Bar] Council in proceedings in this Tribunal against 5 barristers. In relation to the matters against two of those barristers, there were three informations laid against each, and the third barrister had one information only. Each information was filed more than 28 days after the Council's resolution made under s 155(2) of the [LP Act]. These matters were concluded before the de Robillard decision. Whilst I was aware of rule 14(3) of the [ADT Rules], I did not make an application under rule 4 nor an application for extension of time pursuant to section 44 of the [ADT Act]. I was unaware of any application being made or any order being made pursuant to those provisions. 143 Ms Adamson submitted that, in so far as the delay was attributable to attempts by the Bar Association to formulate draft orders (requiring, for example, attendance at consultations with therapists or anger management programs) to which the Barrister might have consented, and which would have assisted him to behave in a manner more appropriate to his professional standing, the explanation being offered was clearly a reasonable one. She argued that measures such as these, if successful, would have both benefited the Barrister and protected the public. 144 She submitted also that it was reasonable for Ms Macdougal and the Association to refrain from filing the Information in this case until sworn evidence substantiating the allegations in the complaint had been obtained. Unlike many other matters brought to this Division of the Tribunal, this was not, she said, a case in which documentary evidence obtained in the course of investigation provided a sufficient basis for instituting proceedings without any sworn statement. Since there was no official transcript of the relevant parts of the Local Court arbitration, the Bar Association would be compelled to rely in the Tribunal on evidence from a person who was actually present. Until the sworn evidence of at least one such person had come to hand, it would therefore be unsafe to commence Tribunal proceedings. 145 Ms Adamson's brief submission regarding the decision in de Robillard (New South Wales Bar Association v de Robillard [2004] NSWADT 45), on which Mr Williams placed significant reliance, was that in view of the differences between s 167AA and the earlier provisions on which the decision was based, it was not relevant to our determination. We will now examine that decision. 146 In de Robillard, the 28-day time limit for the Bar Council to lay an information against the respondent, a barrister, expired on 7 November 2002, in respect of two grounds in the information as ultimately laid, and on 15 November 2002, in respect of a third ground. The Council did not lay an information until 4 July 2003, roughly eight months later. 147 On 13 August 2003, the first return date of the Information, the Council's application for dispensation from compliance with rule 14(3) of the ADT Rules was opposed by the respondent. The Tribunal ordered that the Council file evidence and submissions in support of the application by 27 August 2003, and that the Barrister file evidence and submissions in opposition to the application by 10 September 2003. After some further hearings, the Council's application for an order under s 44 of the ADT Act extending the time for the laying of the Information was heard on 27 November 2003. Judgment was delivered on 5 March 2004. 148 In the judgment at [26], the Tribunal pointed out that according to the terms of s 44(1), it is a prerequisite to a grant of leave under that section that the Tribunal is 'of the opinion' that the applicant has 'provided a reasonable explanation for the delay in making the application'. It followed, the Tribunal said, that if no reasonable explanation is provided, 'the s 44 application must fail no matter how strongly other factors that may be taken into account may favour the applicant'. 149 At [27], the Tribunal summarised as follows the explanation for the delay put forward by the Council: - … the explanation for the delay on the part of the solicitor with conduct of the matter, is that he was not aware of the time limit imposed by Rule 14(3) of the Tribunal Rules until 12 June 2003 when he was informed of that requirement by an officer of the Bar Association. By that time, the time limit under Rule 14(3) had well and truly expired.… To the extent that the delay was caused by "employees or agents" of the Council, there are three principal reasons for the delay: 1. There was a change of the personnel responsible for the day to day management of the files. 2. There was some doubt about the appropriateness of pursuing ground 3 of the Information, the position as to which was being clarified in other proceedings in the Tribunal. 3. It was considered to be unwise and unfair to open up another front, as it were, against the Barrister whilst he and the Association were at issue in the Supreme Court. 150 The Tribunal held that this explanation was not reasonable and that the Council's application must therefore be dismissed. In the course of deciding, the Tribunal criticised the solicitor who had conduct of the matter for his failure to be aware of the time limit. It said at [29]: 'It was not reasonable for the solicitor to remain in ignorance of the time limitation as he did.' It added at [30] that it was not reasonable for the Council 'to have retained a solicitor without ascertaining that s/he was well aware of such a fundamental matter'. 151 At [33], it made the following observations about the references to change of personnel within the Bar Council's explanation: - The mere assertion that there was a change of personnel, without more, really explains very little. Was there no reasonable way of compensating for the problems that such a change might cause? What was it about the change of personnel that contributed to delay in the order of eight months? These and other questions would need to be answered before the mere assertion of a change of personnel could be regarded as a circumstance supporting an inference of reasonable explanation for such a long delay. 152 At [39 - 44], it made further observations regarding the juxtaposition of a time limit of 28 days with the requirements of s 155(2) of the LP Act: - 39 A resolution of the Council declaring its satisfaction within the meaning of s.155 (2) can be presumed to have been made only after the Council has had access to, and has considered, enough of the evidence relating to the guilt of the legal practitioner to say that it is relevantly satisfied. The very fact that a resolution of satisfaction "must" be followed by the institution of proceedings in the Tribunal carries with it the implication that the Council must have had access to sufficient material to justify the commencement of proceedings. 40 The short time limitation, after becoming satisfied of "a reasonable likelihood" under s.155 (2), for the commencement of proceedings is readily understood when it is seen that the state of satisfaction cannot be reached until sufficient evidence has been gathered to justify the prosecution. 41 Thereafter, the only need of the Council for time is what is required by its staff to draft and lay the Information. In this case, the Information is a short pleading, much of which is formal. There is no discretion not to commence the prosecution. There is no discretion as to what the information should, in substance, allege. In those circumstances, 28 days should ordinarily be sufficient time in which to prepare and lay an Information. 42 The time needed to get the case ready for hearing is a matter for determination at a directions hearing. After the laying of the Information, the progress of the matter is in the hands of the Tribunal assisted by the parties. 43 If an event arises or becomes apparent after the laying of the Information that may reduce the extent of the likelihood of a finding of guilty so as to warrant termination of the proceedings, that question can be raised with the Tribunal and the appropriate orders made. If the Tribunal is satisfied that discontinuance is appropriate, it may give leave to the Council to discontinue. Questions of costs may have to be decided. 44 But, it would be a clear circumvention of s.155 if the Council, bound by statute to commence the proceedings, were at liberty either not to commence them, or to discontinue them at will, however good the reasons for doing so may seem to the Council…. 153 Mr Williams submitted that we should take careful account of the Tribunal's observations regarding the Bar Council's inclusion of 'change of personnel' within its explanation for the delay and should treat this aspect of the explanation offered in the present case as contributing very little to its 'reasonableness'. It would seem, however, that we were provided with rather more information than the Tribunal in de Robillard as to how and why the change of personnel in the Bar Association's office delayed the progress of the relevant matter. 154 There is a conflict between (a) the Tribunal's opinion, expressed at [39 - 41], that after a resolution is passed under s 155(2) the only matter remaining to be done before proceedings are instituted is the drafting and laying of the Information and (b) Ms Adamson's submission that in the present case it was appropriate for Ms Macdougal to delay the institution of proceedings until a sworn statement had been obtained from at least one witness. 155 With hindsight, it might well have been preferable, given the existence of a time limit as short as 28 days, for the Bar Association to have obtained this statement before the passing of the resolution under s 155(2). At the hearing, Ms Adamson conceded that this was 'arguable', and also that decisions such as de Robillard did from time to time lead to changes in the practices adopted by the Bar Association. 156 Mr Williams pointed out, however, that it was not until early in July 2003, some eight months after the resolution under s 155(2), that the Bar Association instructed Ms Macdougal to seek to obtain statements from Mr Dearn and Mr Doyle. If, he said, it was the Association's view all along that at least one statement should be obtained before proceedings were instituted, it should have asked her much earlier to attend to this matter. 157 Before concluding this discussion of de Robillard, we will draw attention to an important distinction between s 44(1) of the ADT Act and s 167AA(3) of the LP Act. The former provision makes it a prerequisite to a grant of leave that the Tribunal is 'of the opinion' that the applicant has 'provided a reasonable explanation for the delay in making the application'. The requirement imposed in the latter provision is less specific. It is that the Tribunal must 'have regard', amongst other things, to 'the reasonableness of the applicant's explanation for the delay'. 158 The delay of more than six years between the complaint and the present application for extension. As already indicated, this is in our judgment a factor to which we should have regard under s 167AA(2), but is not a 'key' factor. 159 In Mr Williams' submission, this delay was only was inordinate but was attributable to a substantial degree to dilatoriness on the part of the Bar Association. In addition to acting unduly slowly during the period that we have just examined, it was guilty, he said, of excessive delay in taking nearly two-and-a-half years (from May 2000 to October 2002) to carry out the investigation of the complaint that s 148 of the LP Act requires, even though s 154 states that the investigation must be conducted 'as expeditiously as possible'. During this time, there was in particular a period of five months, between May and October 2001, in which nothing was done. One of the reasons suggested in cross-examination by Mr Selth (see [19] above) was that the Association's staff had a particularly heavy workload and gave priority to other matters. 160 Mr Williams placed significant emphasis on what he claimed to be two consequences of this lengthy delay. 161 The first, he said, was that neither the Barrister nor any other person (such as Mr Doyle) who was present at the arbitration hearings could be expected after more than six years to provide reliable evidence to the Tribunal regarding the alleged improper conduct of the Barrister. In particular, no witness could be expected, he said, to recall in any detail the words used or the demeanour adopted by the Barrister. In this way, he said, the very long delay occasioned prejudice to the Barrister by denying him the opportunity to have the matter fairly tried. 162 It was suggested by the Tribunal, however, to Mr Williams at the hearing, that the letter dated 25 June 2000 from the Barrister to the Bar Association, setting out the Barrister's responses to the specific allegations in the complaint (see [11] above), included a number of explicit or qualified admissions. In making this observation, we note that while the Barrister's letter of 25 June 2000 was in evidence before us, this was not the case with either the complaint or any affidavit by Mr Doyle. 163 Secondly, Mr Williams drew our attention to statements in letters from Mr Wood to the Bar Association (see [25], [29] and [35] above) to the effect that the long delay had had detrimental consequences for the Barrister's health. He submitted that these consequences would continue, if not become more serious, if we granted leave for these proceedings against the Barrister to go ahead. Our conclusions 164 We have not found our decision in this matter to be an easy one. A major reason is that it calls for the exercise of a discretion, based on the weighing up a number of competing considerations. 165 Our conclusion is that we should allow the Bar Association's application for an order granting leave for the Information to be filed out of time. 166 The two major considerations that in our view warrant this conclusion are (a) the absence of any significant element of prejudice to the fairness of any future trial of this matter and (b) those elements of the Bar Association's explanation for having exceeded the statutory time limit by about seven months that can fairly be described as 'reasonable'. We will now elaborate on these two matters. 167 Absence of prejudice. In our judgment, there is no evidence to suggest that the delay that has occurred since the complaint was made has prejudiced the Barrister through materially jeopardising the prospect of his obtaining a fair trial. Most importantly in this regard, he has not suffered any prejudice of the kind specifically referred to in s 167AA(3)(b) of the LP Act, namely, that 'evidence that would have been available if the information had been laid within the 6-month period is no longer available' because this time limit was exceeded. This was, in fact, effectively conceded by his counsel. 168 With reference to the broader contention that the overall delay of more than six years since the complaint was made has materially prejudiced the Barrister because recollections of the events at the arbitration will have been seriously impaired, we make two points. One is that the evidence available to the Tribunal if the matter went to trial would include the contemporaneous notes of the arbitration hearings made by Mr Doyle (see [62] above) and the Barrister's detailed response to the specific allegations in the complaint, prepared by him less than three months after the last of these hearings (see [11]). The other is that, at least in times past, he did not dispute many significant aspects of Mr Doyle's account of the relevant events (see [162]) and he conceded, through his solicitor, that his behaviour was, or possibly was, unsatisfactory professional conduct (see [17], [25]). 169 The 'reasonableness' of the Bar Association's explanation under s 167AA(3)(c). Undoubtedly, it can be contended that, in the light of the decision in de Robillard, the Bar Association's explanation for exceeding the statutory time limit was not 'reasonable'. But this contention carries less weight than might appear at first sight because, as we said above at [157], what s 167AA(3)(c) requires us to do is only to 'have regard', amongst other things, to 'the reasonableness of the applicant's explanation for the delay'. 170 We agree with Mr Williams that, in view of the existence of a time limit of only 28 days during the relevant period, the Bar Association is open to criticism for having failed to instruct Ms Macdougal to obtain statements from witnesses until June 2003, some eight months after the Council's resolution under s 155(2). Ms Macdougal had previously advised that because of the lack of documentary evidence this was a case in which at least one sworn statement needed to be obtained before the Information was laid. We consider this advice to have been justified by the circumstances of the case (while acknowledging that observations made by the Tribunal in de Robillard suggest otherwise: see [152] above). But the reasons advanced by the Bar Association for its delay in instructing Ms Macdougal - that staff changes were occurring and that the drafting of proposed orders was under consideration - are not at all compelling. 171 There are, however, two matters that serve to mitigate the force of this criticism. 172 One is that, as Mr Selth and Ms Macdougal testified (see [141 - 142]), neither of them was aware, at that time, of any case in which leave to file an information out of time had been refused by the Tribunal. By way of qualification to this, we note that in the course of the proceedings in de Robillard (see [147]) the Tribunal gave a warning sign on 14 August 2003 that a grant of leave could not be regarded as automatic. This was the day on which it directed the Bar Council to file evidence and submissions in support of its application for leave in that case. But at this stage Ms Macdougal had received indications from Mr Doyle that his affidavit would shortly be in her hands. The delay that she experienced in ultimately obtaining an affidavit from him was not attributable to any dilatoriness on her part or on the part of the Bar Association. 173 The other matter that operates in some measure to excuse the delay in filing the Information is that, as Ms Adamson submitted (see [143]), the Bar Association's attempts to formulate draft orders to which the Barrister might have consented would, if successful, have both benefited the Barrister and protected the public. 174 Other factors. With regard to the matter of 'public interest', which we are required by s 167AA(3)(a) to take into account, we take heed of all of the competing considerations that were advanced before us (see [120 - 129] above). In particular, we agree with Mr Williams that in view of the age of the Barrister and the limited range of his current practice, the function of disciplinary proceedings in protecting the public from inappropriate behaviour by legal practitioners is of less importance in this case than in many others. But this does not mean that a grant of leave in this case would not have any protective effect at all. 175 With regard to the lapse of more than six years since the complaint was made, we record our agreement with Mr Williams that the lack of any action by the Bar Association between May and October 2001 (see [19]) was not adequately explained. But a significant factor in favour of granting leave is, in our opinion, that to a very great extent the overall delay was the result of continuing joint endeavours by the Bar Association and the Barrister to reach agreement on disciplinary and remedial measures and to implement that agreement in place of formal orders by the Tribunal. As a review of the above chronological account indicates, these endeavours were the sole or principal cause of delays between 2 March and 23 May 2001 (about 2.5 months), between 23 October 2001 and 22 November 2002 (about 13 months) and between 11 May 2004 and 28 November 2005 (about 18.5 months). The aggregate time taken up by them was about 34 months. This is not far short of half of the total period of six years and three months that have elapsed since the complaint was made. 176 We accept the evidence, which was not contradicted, that the delay in this matter has regrettably been deleterious to the Barrister's health. This is clearly a factor militating against the exercise of our discretion in the Bar Association's favour. But neither on its own nor in combination with other factors pointing in the same direction does it outweigh what in our judgment are the important considerations prompting us to grant leave. We would add that since in the past the Barrister did not dispute many significant aspects of Mr Doyle's account of his behaviour at the arbitration hearings and indeed conceded, through his solicitor, that this behaviour was, or possibly was, unsatisfactory professional conduct, there is some prospect that the hearing which must now take place will not be as vigorously contested as many other hearings are within this Division. 177 We order, in accordance with the Bar Association's application filed on 10 February 2006, that pursuant to s 167AA(2) of the LP Act the time for laying the Information in these proceedings is extended, nunc pro tunc, to 20 November 2003. 178 The matter is set down for further directions at 9.30 a.m. on 26 September 2006.

New South Wales Bar Association v LI

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