STRONG v THE LAW SOCIETY OF NSW & ANOR

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P DAVIES AJA IPP AJA

Monday 10 September 2001 Geoffrey Keith STRONG v THE LAW SOCIETY OF NEW SOUTH WALES & ANOR JUDGMENT 1 MASON P: Proceedings under the Legal Profession Act 1987 are pending in the Administrative Decisions Tribunal. The informant is the Council of the Law Society of New South Wales and the respondent is Geoffrey Keith Strong, the claimant in the proceedings in this Court. 2 The Council filed an information in the Tribunal on 8 December 2000 to which the respondent filed a reply on 19 January 2001. Affidavits have been filed and the proceedings were on 25 June 2001 set down for hearing in the Tribunal on 12 to 14 September 2001. 3 Presently before us are a summons and a notice of motion. The first opponent to the proceedings is The Law Society of New South Wales. The second opponent is the Tribunal itself and it has appropriately adopted a submitting stance. 4 The summons and notice of motion were each returnable on 10 September 2001. The summons seeks orders prohibiting or restraining the continuation of the proceedings in the Tribunal. The notice of motion seeks an interim stay of the proceedings in the Tribunal. Each application was considered briefly by Priestley JA as referrals judge on 3 October and stood over until today. 5 The claimant seeks a permanent stay of proceedings on the ground that the proceedings in the Tribunal are an abuse of process within the principles discussed in Herron v McGregor (1986) 6 NSWLR 246 at 252. In his written submissions the claimant accepted the following statement of principle taken from the majority judgment in Williams v Spautz (1992) 174 CLR 509 at 519:

If a permanent stay is sought to prevent the accused from being subjected to an unfair trial it is only natural that the Court should refrain from granting a stay unless it is satisfied that an unfair trial will ensue unless the prosecution is stayed. In other words the Court must be satisfied that there are no other available means such as directions to be given by the trial judge of bringing about a fair trial.

6 Those remarks were made in the context of an application permanently to stay criminal proceedings but they are of general application with appropriate adjustments. 7 The proceedings in the Tribunal raise several issues of alleged professional misconduct. They concern the claimant's dealings as solicitor with the property and financial affairs of an elderly gentleman, Les Fleming. In late 1995 trust account auditors raised certain irregularities with the claimant. The claimant sought a ruling from The Law Society and received certain information from it on 4 December 1995. 8 Complaint was first made by Mr Fleming's son, also called Les, in May 1996. The Law Society promptly passed on details of that complaint to the claimant and since then there has been a stream of correspondence from The Law Society confronting the claimant with various allegations and from the claimant or his solicitor discussing the facts and denying some at least of those allegations. The extent of this confrontation between 1995 and 1998 is highly relevant to a detailed exploration of any issue of prejudice. 9 On 29 January 1998 the Professional Conduct Committee of The Law Society resolved that subject to any submissions from the claimant proceedings should be instituted in the Tribunal. The claimant was invited to make further submissions and he declined to do so. There was then a delay of over two years that is presently unexplained. However on 27 July 2000 the Council resolved to initiate a complaint under s 135 of the Legal Profession Act. Further submissions were invited and received with particular reference to the issue arising under s 137 of the Legal Profession Act. 10 That section (which commenced on 14 July 2000) provides:

(1) A complaint may be made about conduct of a legal practitioner irrespective of when the conduct is alleged to have occurred.

(2) However, a complaint cannot be made more than three years after that conduct is alleged to have occurred unless a determination is made under this section that: (a) it is just and fair to deal with the complaint having regard to the delay and the reasons for the delay.

11 On 5 October 2000 the Professional Conduct Committee of The Law Society resolved pursuant to s137(2)(a) that the "complaints involved allegations of professional misconduct and it is in the public interest to deal with these complaints notwithstanding that they relate to conduct which occurred more than three years ago". 12 The claim in these proceedings is based upon prejudice, principally the prejudice said to stem from the death of Mr Les Fleming senior on 28 September 2000. However, reliance is also placed upon the delay in launching the proceedings in the Tribunal. 13 A portion of the material filed in the proceedings below is a statutory declaration of Les Fleming Senior made on 28 November 1996. Copy of that declaration was part of The Law Society Investigator's Report served on the claimant in 1997. As indicated, Mr Fleming died on 28 September 2000. It is not clear on the material before us whether his death was a factor addressed by the Professional Conduct Committee in its resolution of 5 October 2000. 14 In July 2001 the informant served notice under s 63 of the Evidence Act of its intention to rely upon the material in Mr Les Fleming's statutory declaration as evidence of the fact. 15 Several of the matters raised in that statutory declaration were put to the claimant during the investigative stage of the proceedings in The Law Society in 1996. The claimant has been on notice of the statutory declaration itself since the time that he received a copy of the investigator's report in January 1997, that report containing copy of that statutory declaration. 16 On the more general issue of delay the claimant swore an affidavit on 23 August 2001 stating that other persons who may have been available to give evidence which would be crucial to the determination of the allegations against him were not available or could not be found or were now unknown. No further details of that assertion were forthcoming until an affidavit sworn 7 September 2001 was filed in Court this morning. That affidavit indicates that the trail of some of the inquiries may have gone somewhat cold. 17 However, I think that it is in the claimant's interests that I express no concluded opinion about this aspect of the matter given the fact that the tribunal itself has power to entertain an application for a permanent stay (see Director of Public Prosecutions v Shirvanian (1998) 45 NSWLR 129). I will say only this on the general issue of delay: (1) The claimant was on notice from 1997 onwards that proceedings against him were at least a possibility; and (2) Some of the present difficulties may in one sense be the consequence of the fact that the claimant's dealings with a former client may have resulted in gifts to the claimant in circumstances where the claimant may now be unable to establish were the result of the free, informed consent of the client. I emphasise that I am speaking hypothetically here. But, if this is correct then this may be the very area that the principles of undue influence are designed to place the onus squarely on the solicitor beneficiary to prove the correctness of the dealing rather than the contrary. 18 I return to the issues principally raised, namely those stemming from the death of Mr Fleming. On the material before us and having regard to the somewhat summary investigation that we have conducted this morning I am certainly not satisfied that the continuation of these proceedings would constitute an abuse of process within the principles of McGregor's Case and Williams' Case that I have referred to. 19 In the first place, the statutory declaration of Mr Les Fleming Senior may or may not be admitted into evidence. The rules of evidence apply in the hearing before the Tribunal (see Legal Profession Act, s168). Accordingly, the affidavit of Mr Fleming Senior may be tendered at least in relation to material seen, heard or otherwise perceived by the deceased, subject however to the Tribunal's general discretion to exclude unfairly prejudicial material (see Evidence Act, ss63, 135 and 136, Papakosmos v Queen (1999) 196 CLR 297, Ordukaya v Hicks [2000] NSWCA 180). In noting this, I must not be read as inferring a view either way on whether any discretion to exclude any of the evidence ought to be exercised. It is sufficient for the purpose of this application to observe that the fate of the affidavit is a matter yet to be determined by the Tribunal. 20 The second reason why I would not intervene at this stage in the proceedings is that, if the affidavit were to be admitted, the Tribunal can in my view be expected to proceed fairly and to recognise the need to proceed to an adverse finding only if satisfied according to the requisite standard of proof having regard to the seriousness of matters at issue and all of the circumstances of the case. 21 My third reason is that there would appear to be a body of material apart from the affidavit which is capable or may be seen to be capable of supporting at least some of the charges in the information. 22 Essentially for these three reasons I am not persuaded that it is appropriate for this Court to exercise any extraordinary jurisdiction to intervene in the proceedings below. The Tribunal has full power to do justice in the matter. Its determination is itself subject to internal appellate review within the Administrative Decisions Tribunal and to further appellate supervision in this Court. 23 In my view the summons should be dismissed with costs. 24 DAVIES AJA: I agree with the President. 25 IPP AJA: As do I. 26 MASON P: That is the order of the Court. 27 WALES: Would your Honour say including reserved costs, just a question of reserved costs of the stay application last Monday. 28 MASON P: Yes well that would be implicit in the order and I make it explicit.

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