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[2003] NSWCA 64
Court of Appeal (NSW)
2003-04-02
Mason P, Handley JA, Santow JA
Original judgment source is linked above.
INTRODUCTION The Claimant, a solicitor, by his original Summons filed on 30 October 2002, sought that his name be struck of the Roll of Legal Practitioners and such further orders as the Court deems fit. The original Summons did not make any claim for a declaration that he had been guilty of professional misconduct or that he was not a fit and proper person to be on the Roll of Legal Practitioners. It named as Respondent solely the Legal Practitioners Admission Board. It was brought in the first instance in the Common Law Division rather than the Court of Appeal though subsequently by consent was transferred to the Court of Appeal. The explanation given by the Claimant for this is that the Registry refused to accept the documents the Claimant's solicitor initially sought to file in the Court of Appeal. Revised documents were then prepared and filed in the Common Law Division. It appears that the Law Society of New South Wales was advised of these proceedings. 4 With that original Summons Mr Smyrnis filed an affidavit which stated that he was admitted to practice since 1983 and practised as a solicitor to 30 June 2000 but no longer held a practising certificate. It disclosed that a company which he controlled received sums totalling $49,939 from a Mr Chartofillis. He acknowledged that his conduct in doing so "was improper and sufficiently serious to warrant my being struck off this Court's Roll of Legal Practitioners". His affidavit also disclosed that on 3 May 2002 he admitted to the Independent Commission Against Corruption ("ICAC") that he had been involved in corrupt conduct. He stated that, "I now regret that prior to date that I denied, on oath, to ICAC that I had engaged in corrupt conduct whilst serving as a Rockdale City Councillor". He acknowledged that "I accept that that conduct was wrong and sufficiently serious to warrant my being struck off this Court's Roll of Legal Practitioners". 5 The background is uncontroversially set out in the case outline of the Claimant, quoted below: "1. Andreas (Andrew) Smyrnis, the Claimant in these proceedings, was admitted as a solicitor on 8 July 1983. In September 1999 he was elected as a Councillor on Rockdale City Council. 2. Following investigations and various private hearings, the Independent commission Against corruption (ICAC) held public hearings commencing on 1 May 2002 in relation to Rockdale City Council, more specifically, in relation to "the conduct of two Rockdale City Councillors, and their dealings with developers and intermediaries in respect of development proposals to be considered and determined by Rockdale City Council." (ICAC report, page 1) Those hearings were scheduled to run for a number of weeks. 3. On the afternoon of the 2nd day of those hearings counsel for the Claimant sought an adjournment and the next morning indicated that his client wished to co-operate with the Commission. Two of the three other primary targets took the same course with the result that the length of those public hearings was considerably reduced. 4. After publication of the ICAC's report, recognising that his conduct had been such as to warrant that his name be removed from the Roll of Legal Practitioners, the Claimant commenced these proceedings." 6 The Law Society sought to be joined as a party. Two affidavits by Mr Raymond Collins, Manager of the Professional Standards Department of the Law Society of New South Wales, ("the Department") the first dated 29 November 2002 and the second dated 28 March 2003, record the procedural history of the matter thereafter. They overlap. In each Mr Collins identified important omissions from the original Summons and the Smyrnis' affidavit. Earlier, on 8 November 2002 the Law Society by letter from Mr Collins foreshadowed that it would apply to be made a party to these proceedings and for their transfer to the Court of Appeal. The letter also stated that it would seek the two omitted declarations, namely that Mr Smyrnis "is not a fit and proper person to be on the Roll of Legal Practitioners and that he has been guilty of professional misconduct". 7 Paragraphs 5 and 6 of Mr Collin's affidavit of 28 March 2003 record the basis for the Law Society's intervention in more detail: "5. In the original Summons, Mr Smyrnis: (a) did not name the Law Society as a Respondent, but rather named the Legal Practitioners Admission board; (b) commenced these proceedings in the Common Law Division of the Court rather than the Court of Appeal; (c) did not seek the declarations of professional misconduct and unfitness to which he now agrees; and (d) only referred in the Smyrnis Affidavit to the Chartofillis bribe (as defined in paragraph 4 of the SAF) and to Mr Smyrnis's denial on oath generally that he had been involved in corrupt conduct. [SAF refers to a Statement of Agreed Facts.] 6. By contrast, so that all matters relevant to Mr Smyrnis's fitness to practise have been put before this court and can be dealt with at the one time, the SAF: (a) places further material facts before the Court concerning Mr Smyrnis' corrupt conduct as a Rockdale city councillor, and his knowingly false denials on oath thereof, including the Parker Street solicitation and the Rockdale solicitation (see paragraph 5), as well as the further matters set out in paragraph 6 - 14 of the SAF; and (b) includes the agreed facts concerning all of the various other matters which the Law Society was investigating." 8 Mr Smyrnis' solicitor replied on 21 November 2002 in which, inter alia, he states that "It is our view that our client's affidavit provides sufficient factual information. Simply put, our client had admitted that he accepted a bribe and that he gave false evidence to the ICAC. If the Law Society wishes to proceed by way of an Agreed Statement of Facts, please forward your draft document well prior to Monday 2 December 2002 in order that our client will have time to consider such a document before that date. ….. At the risk of stating the obvious, our client admits to conduct which warrants an order that he be struck off. He is not trying to avoid that consequence. He, and we, are endeavouring to minimise the time and cost to all concerned and we would respectfully seek your co-operation in that regard. With a view to achieving agreement as to what should occur on Monday 2 December 2002, we would propose the following orders: 1. Proceedings transferred to the Court of Appeal. 2. Liberty to approach the Registrar forthwith." 9 The first paragraph quoted above should not be allowed to pass without comment. This Court should be provided not merely with so much of the relevant information as would suffice to justify removal from the Rolls at the Claimant's behest. It is also necessary that any other relevant information such as might indicate further reason for removal should be before the Court, if the Court is not to be misled. The omissions from Mr Smyrnis' affidavit, though later agreed to be included in what became a Statement of Agreed Facts and covering two omitted ICAC matters and a number of non-ICAC matters, all would bear, for example, on any future application for re-admission. They go to the gravity of Mr Smyrnis' professional misconduct and to his unfitness to practise as a solicitor. 10 The Statement of Agreed Facts was first proposed in the letter from the Department dated 8 November 2002 to which the solicitor for the Claimant had responded in the manner quoted above in the letter of 21 November 2002. Importantly in that same letter Mr Smyrnis' solicitor states that "We do not object to the Law Society being added as a party to the proceedings provided no order for costs is sought" [emphasis added]. Otherwise, the approach of the Claimant's solicitors was to be amenable to what the Law Society was putting, adding the reasonable request that it be in a position to consider the document constituting an Agreed Statement of Facts. 11 By letter dated 27 November 2002 from the Department to the Claimant's solicitor, a copy of a Notice of Motion was enclosed containing the declarations sought. These declarations were subsequently added to the Amended Summons by the Claimant. The Statement of Agreed Facts was not then enclosed, but the letter of 27 November 2002 states, "It is important that the Court not only make these declarations but that the parties are able to provide to the court a Statement of Agreed Fact which will provide, on the face of the judgment, the factual context in which those declarations are made. A mere statement that your client accepted a bribe and gave false evidence to the ICAC is not sufficiently particular for that purpose." 12 When the proposed Agreed Statement of Facts was provided, it dealt with three matters arising from ICAC's report and 13 other complaints of a legal professional nature (the non-ICAC matters). The ICAC matters are sufficiently described in the Case Outline provided by the Claimant in summary form. The two originally omitted items cover two other bribes, both solicited by the Claimant. The proposed Agreed Statement of Facts was not agreed until one of these omitted bribe matters was covered by a s128 Certificate pursuant to the Evidence Act. That course was not objected to by the Law Society. It is intended to have the practical effect of permitting this Court to take into account that particular matter but not permit any evidence of the Claimant on this topic to be used against him in any subsequent criminal proceedings. That certificate was given to-day with the result that the proposed Agreed Statement of Facts became the Agreed Statement of Facts. 13 The non-ICAC matters included in the Agreed Statement of Facts relate to 13 transactions pertaining to the Claimant's conduct of his practice as a solicitor. In general terms they can be described as covering gross overcharging, champerty and dishonest conduct with clients in the charging of legal costs and in their explanation. 14 The remaining history of the proceedings is substantially as summarised in the Claimant's Case Outline quoted below. It is uncontroversial save that I do not agree that the Law Society's Notice of Motion was unnecessary. It set out with precision the declarations omitted from the original Summons filed by the Claimant, enabling the Amended Summons to reflect those declarations properly sought. "16. Neither the Summons nor the Amended Summons sought any order for costs. In view of recent correspondence wherein the Law Society has indicated that it intends to seek an order for costs, the history of these proceedings is summarised below for the assistance of the Court.
The Registry refused to accept the documents the Claimant's solicitor initially sought to file in the Court of Appeal. Revised documents were prepared and this is why the Summons was filed in the Common Law Division.
The matter was first before the Court on 11 November 2002. There were appearances for the Claimant and the Legal Practitioners Admission Board (LPAB). A legal representative of the Law Society was also present, indicating that the Law Society wished to be a party to the proceedings. Kirby J stood the matter over for three weeks to 2 December 2002, urging the parties to agree on short minutes of order in the meantime.
During that period the Claimant and the 1st Respondent agreed on Short Minutes. The Claimant also prepared an Amended Summons which joined the Law Society as 2nd Respondent and added two paragraphs so as to include the additional orders sought by the Law Society. In contrast, the Law Society filed a Notice of Motion returnable 5 December 2002 seeking that it be joined as a party and prepared its own Summons containing exactly the same prayers for relief as the Amended Summons.
On 2 December 2002 the proceedings were initially before Greg James J who noted that the Legal Practitioners Admission Board (LPAB) had filed a submitting appearance (submitting to any order of the Court except as to costs). His Honour made orders in accordance with Short Minutes. Pursuant to those Short Minutes, an Amended Summons was filed, the proceedings were transferred to the Court of Appeal and leave was given to approach the Registrar of the Court of Appeal forthwith. His Honour also vacated the 5 December 2002 hearing date for the Law Society's Notice of Motion
Later that day (ie on 2 December 2002), the proceedings were mentioned before Registrar Schell who made the following directions: (a) that the Law Society serve a Draft Agreed Statement of Facts by 16 December 2002; (b) that the Claimant indicate by 5 February 2003 whether he agreed with that document and, if not, that he particularise the matters with which he did not agree; and (c) that the matter be re-listed for directions on 10 February 2003.
The Draft Agreed Statement of Facts was forwarded under cover of a letter dated 23 December 2003 but was not read by the Claimant's solicitor until 7 January 2003.
At a meeting with legal representatives of the Law Society, the Claimant's legal representatives proposed a wording for an Agreed Statement of Facts and were given to believe that a response to that proposal would be available prior to the directions hearing before Registrar Schell on 10 February 2003. In contrast, at that directions hearing it was suggested that seven days should be provided for such a response.
Registrar Schell extended the time for the Claimant's response to the Draft Agreed Statement of Facts to 17 February 2003 and re-listed the matter for 24 February 2003 with the intent that a hearing date be allocated on that occasion.
The Claimant served a response prior to the 17 February 2003 deadline and also resolved all issues in relation to the Draft Agreed Statement of Facts save for the Parker Street aspect which the Claimant suggested should be dealt with via section 128 of the Evidence Act. Accordingly, on 24 February 2003 the matter was listed for hearing on 2 April 2003."
ISSUES TO BE RESOLVED 15 Having resolved that a certificate under s128 of the Evidence Act should be granted in the limited respect set out earlier, the only remaining issue is whether the Claimant should pay the Law Society's costs and, if so, whether these should be assessed by this Court at a particular figure or otherwise an indication given as to what might be considered reasonable, for purposes of assessment by a cost assessor if not agreed. 16 The Court of Appeal has jurisdiction to deal with the Claimant's application pursuant to Part 65A rule 2(1). Though the Claimant no longer holds a Practising Certificate, the Law Society of New South Wales is clearly the proper contradictor in relation to the Claimant's application to be removed from the Roll of Legal Practitioners, just as the Bar Association would be the proper contradictor in relation to a removal of a barrister from that Roll. The Legal Practitioners Admission Board would ordinarily not play any active role in relation to such an application, though there was no objection in this case to it being joined. It follows that the Law Society was properly entitled to be joined and it too should be entitled to its costs insofar as reasonably incurred. Indeed the very resistance to paying those costs, repeated on 27 November 2002 may have led to the initial affidavit of Mr Collins dated 29 November 2002 setting out the history of the matter to date, which would otherwise not have been necessary at least at that point. In the present case moreover, there is no doubt that the Law Society properly ensured that the two omissions from the ICAC report were included in the Agreed Statement of Facts as well as the non-ICAC matters. These were all matters which should properly be before this Court in dealing with the Claimant's application. Whilst these were agreed to be included, it is not an unfair inference that they would not have been included otherwise. 17 As to the amount of costs, it was readily conceded by the Law Society at hearing before this Court, that no costs of the investigator in relation to the non-ICAC matters would be sought. This was so, given that the Claimant has agreed to pay $50,000 in respect of the costs of that investigation, doing so by instalments of which a total of $24,500 has been paid. 18 The Claimant while adhering to its earlier submission that no order for costs should be made, put by way of alternative submission that costs should be paid on the following basis, quoted below: "Further, it is submitted that, having regard to the Claimant's existing agreement to pay $50,000 in respect of the Second Respondent's costs of investigating the non-ICAC matters, the Court should exercise the specific statutory power it has, under section 208I of the Legal Profession Act 1987, to fix an amount payable by the Claimant in respect of the Second Respondent's costs. On behalf of the Claimant, it is suggested that a reasonable amount is as set out below:
(a) Reading the ICAC report 1 hour (b) Attendance before Kirby J on 11 November 2002 1 hour (c) Conference to settle matters in dispute 1 hour (d) Attendance before Greg James J on 2 December 2002 1hour (e) Attendance before Court of Appeal for hearing 1 hour (f) Total time 5 hours (g) Hourly rate for solicitor $300 (h) Amount = $1,500 (i) As the matter was straightforward and by consent, no allowance has been made for (junior) counsel (j) If the Court considers involvement of counsel warranted then an hourly rate of $300 is sufficient (k) On the basis of solicitor and counsel, Amount = $3,000" 19 It will be apparent that the Claimant objects to paying costs for reading the exhibits and transcripts attached to the ICAC report. The Law Society submits that it needed to see the full context for the ICAC report in order to assess the full gravity of the conduct upon which the Claimant's application was based. The Claimant contends that reading the ICAC report was quite sufficient. This was because there was no dispute as to its conclusions insofar as reflected in the Statement of Agreed Facts, and where the Claimant was seeking his own removal. 20 Objection is also made to the costs for the two affidavits of Mr Collins dated respectively 29 November 2002 and 28 March 2003. As to the first affidavit, it is essentially subsumed in the second which brought the position up-to-date. The case for not allowing costs on the first affidavit is that it was premature, in circumstances where the only resistance from the Claimant was to the payment of costs. Moreover there is a public interest in not discouraging co-operation of the kind exhibited by the Claimant in the way in which that was manifested, by mulcting a co-operating party with unnecessary costs. 21 The case for permitting costs on that affidavit is that it meant that when the matter first came before the Court there was before the two Common Law Judges and Registrar Schell a statement of the role which the Law Society had played, as would be relevant to the still contested order for costs. 22 There was also resistance to costs being paid on the Law Society's Notice of Motion. 23 Finally, there is resistance to costs being paid for Counsel, in this case junior counsel. 24 When this matter returned to Court earlier to-day, the Claimant made an open offer in Court of $6,000 payable within twelve months, on the basis that an assessment process could take so long. The Law Society made an open offer in court of $7,000 payable within two months. In the absence of any agreement as to costs, this court was invited to make its own global assessment. I would assess the costs of the Law Society at $6,000, without further qualification, it being open to the parties if they so choose to agree time to pay. There is no dispute as to the First Respondent's costs being paid.
ORDERS 25 I propose orders as follows (referring to the Legal Practitioners Board and the Law Society of New South Wales as First and Second Respondent as described in the Summons, rather than as First and Second Opponent): (1) A declaration that the Claimant has been guilty of professional misconduct. (2) A declaration that the Claimant is not a fit and proper person to be on the Roll of Legal Practitioners. (3) That the name of the Claimant be struck off the Roll of Legal Practitioners. (4) That the Claimant pay the costs of the First Respondent as a submitting opponent in such amount as is agreed, or failing agreement as assessed. (5) That the Claimant pay the costs of the Second Respondent, hereby assessed at $6,000. **********
Last Modified: 04/03/2003 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.
Smyrnis
Legal Practitioners Admission Board & 1 Ors
CITATION : Smyrnis v Legal Practitioners Admission Board & 1 Ors [2003] NSWCA 64 HEARING DATE(S) : 02/04/2003 JUDGMENT DATE : 2 April 2003