Sullivan v ADT

Supreme Court of NSW|2000-05-05|Before: Windeyer J, Dr J, Mr P

This matter has had an irregular start. On 20 April an application was made to Mr Justice O'Keefe, presumably as Common Law Duty Judge, as a result of which he gave leave to file the summons returnable on 26 April 2000. The summons was headed as a proceeding in the Equity Division. Whether or not that was noticed by Mr Justice O'Keefe, I do not know, but the Registry naturally enough assumed that it was an Equity Division matter and opened an Equity Division file. For that reason the matter came before me yesterday as Equity Duty Judge. At that stage the only defendant named was the Administrative Decisions Tribunal - Legal Services Division. A submitting appearance was filed by that body as was proper. There was however no real contradictor. As the Law Society of New South Wales filed the information, I directed that the Society be added as a defendant and adjourned the proceedings for a short time.

Mr Pierotti, a solicitor employed by the Law Society, was present in court and after the adjournment filed an appearance for the Law Society. I then stated that I was of the view that the action should have been placed in the Administrative Law List of the Common Law Division and directed that it be transferred to that list. As the matter was urgent because the Tribunal proposed to proceed with the matter today and I was in a position to hear it, I said I would do so unless there was any objection which there was not.

On 19 April 2000 the plaintiff solicitor, then represented by his present counsel Mr Caffrey, made an application that the Tribunal as then constituted "disqualify itself because it has prejudged the case". By "decision" of that date the application was refused and the Tribunal stood the matter over to 27 April so as to allow the plaintiff to make a foreshadowed application to this Court to restrain the Tribunal as constituted from proceeding further.

During the hearing before me I took up with the parties the question of the basis upon which the application before me was made. Neither side was able to assist me with this. It is fair to say so far as Mr Pierotti was concerned that he had no time to give this matter any consideration. The Administrative Decisions Tribunal Act 1997 (the Act) provides for a review of a decision by a review panel of five members of the Tribunal. That I would have thought was not a very appropriate procedure for the type of matter being considered by the Legal Services Division of the Tribunal or for that matter, before the Court today, but that is not a matter for debate here. An appeal lies to this Court from the Appeal Panel by leave on a question of law but this is not an appeal, nor is an Appeal Panel decision involved.

Section 122 of the Act is as follows: Nothing in this Act (except for s123) affects the power of the Supreme Court, in the exercise of its original jurisdiction, to review the decisions of the Tribunal.

That section seems to presuppose proceedings by way of administrative review which, in general, requires an application for relief by order in the nature of prerogative order. It also requires attention to be given to the question whether or not the refusal of the three members of the Tribunal to disqualify themselves was a decision under s122. Section 6 of the Act defines "decision" as including (g) doing or refusing to do any other act or thing and it defines "original decision" as the decision of the Tribunal made in relation to a matter over which it has jurisdiction under an enactment to act as the primary decision maker.

It may be that the refusal of the Tribunal to disqualify itself was a decision under section 6. However, without that statutory assistance, it is at least doubtful whether an appeal or review would lie. The cases at present appear to accept that a refusal of a judge to disqualify himself or herself is not an appealable decision, there being no issue between parties for determination by the judge, who himself is not a party. No argument was addressed to me as to the basis upon which the proceedings were brought, nor as to whether the refusal to disqualify was a reviewable decision. That is not something the Court should be required to determine overnight without assistance.

It follows from what I have just said that the Court should not make any final order without hearing further submissions properly considered. I should add that it should be borne in mind that any perception of prejudgment is often overcome if a matter is heard to conclusion. However, while I have not had the benefit of argument sufficient to enable me to reach a final decision, I consider, although the matter was really heard before me on a final basis, that I should consider whether or not there is a case made out for interim relief until a final hearing could take place. While that might seem procedurally irregular, the summons does include a claim for interlocutory relief so that if I find the facts give rise to an entitlement to interim restraint pending final hearing, it would, I think, be proper to make an interlocutory order.

One of the matters that leads me to treat the matter in that fashion is the remarkable and unfortunate fact that the complaints which gave rise to the information being filed were made to the Law Society in 1996 in the case of Brooks and in 1997 in the case of the second complainant while the information was not filed until 24 August 1999 and it seems that after some preliminary hearings before the Registrar it came first before the Tribunal as constituted on 29 January 2000.

On the first day, namely 29 January, Mr Boyd, a solicitor employed by the Law Society, appeared for that Society. The orders sought by the Council of the law Society in the information were for (a) a reprimand; (b) costs; (c) that the solicitor's practising certificate be restricted to that of an employed solicitor for 12 months; and (d) that if and after the solicitor commenced practice on his own account, then his practice be subject to three monthly inspections for 12 months.

The information alleges five counts of professional misconduct by the solicitor. Three of these relate to a complaint instituted by people called Brooks and two relate to a complaint instituted by the second complainant.

The Brooks complaints alleged professional misconduct in filing in the Local Court a notice of motion and affidavit in support indicating that the solicitor was the solicitor for the judgment debtors at a time when he was aware, or ought to have been aware, that his retainer had been terminated, in acting without instructions in the same matter and in failing to comply with a requirement of the Law Society to waive his lien and to transfer a copy of the Brooks' file to the new solicitors for those people.

14 The second complainant complaints were of misleading the Law Society but, more importantly, of writing a letter to a former client with a view to hindering or obstructing the Law Society's investigations by inducing or influencing the second complainant to withdraw his complaints.

15 The charges of unsatisfactory professional conduct were a failure to advise Mr and Mrs Brooks for over one year that a defence and cross-claim to the Local Court action had been rejected and in relation to the second complainant matter, for delay in releasing files.

16 It had been stated to the Registrar before the hearing date was fixed that there was to be no cross-examination of witnesses called by the Society. Mr Sullivan filed no affidavits but filed a reply which did not dispute any of the claims in the information but gave some excuses for the conduct complained of. The following comments and statements of the Presiding Member are those relied upon as showing actual or perceived bias and prejudgment so far as the first hearing day was concerned. I will refer to the pages of the transcript to make it easier to follow.

17 There had been discussions between the Presiding Member and Mr Boyd as to the orders sought, the Presiding Member asking whether they were to be any amendments to the orders sought which I have already set out. When Mr Boyd said that the orders sought were the final resolution from the Joint Professional Conduct Committee, the Presiding Member said, I noticed that and that was the very reason I asked. There was talk of substantial fines and other matters and other resolutions along the way but this is the final form.

Mr Boyd affirmed that was right, at which stage the Presiding Member said, At first blush, just at first blush, and I have heard nothing, I think I should only say that all members of the Tribunal were a bit surprised at the leniency suggested, we have heard no evidence yet and we will hear it all before we make any conclusion but I just say that for both of your benefits at this opening point.

18 At page 8 in relation to the Brooks matter, Mr Boyd, having explained that the solicitor filed an affidavit saying he was the solicitor for the Brooks, the Presiding Member said, There is a more fundamental problem, isn't there? He swore an affidavit which was false. Where is the allegation of professional misconduct in false swearing? We spent five hours yesterday with someone who swore an affidavit in support of ground of defence.

To which Mr Brooks responded that the Society did not put it as high as that but the Society said that the Court was misled.

19 In connection with the complaints of unsatisfactory professional conduct and the failure to tell the Brooks of the judgment having been entered against them, at page 9 the Presiding Member said, It is only unsatisfactory conduct to fail to tell your client there is a judgment against you for $39,000 for a year?

There was then discussion about what a third year law student ought to know about self executing judgments.

21 The Presiding Member then said, My request is directed to the Law Society. Unsatisfactory professional conduct, is that all? Mr Boyd: There are a lot of hawks and a lot of doves on the various committees of the Law Society. Presiding Member: I hope I fall between the two but all three of us were startled.

In relation to the withdrawal of the second complainant, a letter having been written by the solicitor to the second complainant, which on one basis might have been treated as a threat to disclose confidential information detrimental to that client or former client, the Presiding Member said: The complainant picked the ball up but the Law Society picked it up and passed it to the wing. Mr Boyd: And the Law Society said that was designed to make him withdraw his complaint (referring to the letter). Presiding Member: I should comment that the reprimand seems somewhat underwhelming in the circumstances.

At the conclusion of day one it appeared there had been some misunderstanding as to the requirement that the solicitor file affidavits containing any evidence in chief he wished to give. Counsel at the time stated that he thought he would have been able to call oral evidence. He asked for an adjournment and a timetable was ordered.

At the conclusion, Mr Kennedy asked whether the Tribunal would be constituted as it was on that day and the Presiding Member said it would be and then after discussion said at page 21 and addressing Mr Boyd,

Mr Boyd, obviously we have reached no concluded view about any of these matters, particularly as we have not heard from the solicitor. But having regard to the material tendered and to the fact that no requirement for cross-examination of any of the deponents exist, the Tribunal unanimously thinks that you should seek instructions about what orders you might seek. If there is any change to the information or the orders sought, it is to be filed and served within 14 days.

26 There was then some discussion between the Presiding Member and Mr Kennedy as to a change in what was called the indictment after which the Presiding Member said,

27 I think we are suggesting on the present information that it might be thought that what the Law Society is asking for might send a wrong message to the public and practitioners.

28 The adjourned hearing continued on 22 March. Mr Kennedy announced his instructions had been withdrawn and the solicitor would represent himself. There was discussion initiated by the Presiding Member as to whether any change was sought by the Law Society as to the form of orders, this appearing on page 2. The Presiding Member said to Mr Boyd,

29 The Tribunal took up with you twice on the last occasion the format of the orders sought in the information. I take it there has been another Professional Conduct Committee Meeting and they have decided they don't want to change that.

30 Mr Boyd said that it had been considered by the Department and there would be no change.

31 I should interpolate here that the comments in relation to the orders sought and the possible amendments of them are seized upon by Mr Caffrey as indicating that the Presiding Member had somehow determined that the solicitor ought to be struck from the roll and that the orders sought by the Law Society should be changed to seek this, although the Tribunal had that power, irrespective of what was sought or suggested by the Law Society.

32 At this stage of the hearing an amended reply had been filed which had the effect of admitting all the charges in the information. There was some discussion about late affidavits and a statement of Mr Sullivan which is referred to as an affidavit, although it was never sworn. After this, the Presiding Member said at page 4:

33 Mr Sullivan, you have chosen to represent yourself and I don't have to remind you of the many strictures against that course being taken. You are entitled to know, and as a matter of procedural fairness we tell you, that the Tribunal thinks that a reprimand is inadequate in relation to this and we are considering a strike off order.

34 Mr Sullivan said that he thought he had made an agreement with the Law Society that if he admitted the charges and agreed to the orders sought by them, that would be the end of the matter, although he subsequently did accept that he had been told by Mr Boyd that it was not a consent jurisdiction and any decision rested with the Tribunal.

35 The solicitor then said he would wish to cross-examine the witnesses who had made affidavits at the request of the Law Society and might wish to put on further material. It was agreed there should be an adjournment for this, the Presiding Member stating that it should not be for too long and there was a discussion about the requirement for cross-examination. The Presiding Member then discussed the time that this matter had taken to get before the Tribunal and during this time said at page 8, Yes, but it has been hanging about with you continuing to practise for nearly two years.

36 On 19 April, Mr Sullivan was represented by Mr Caffrey of counsel. Mr Caffrey asked that the Members disqualify themselves from further hearing. There were some rather inappropriate statements made by Mr Caffrey about the attitude of the Tribunal to the Law Society's recommendations as to penalty and the Presiding Member then stated at page 4: We have indicated merely that under consideration is the question of him being struck off. We have made no final decision about it. We indicated that was under consideration, having regard, amongst other things, to the admission of the charges.

37 There was further discussion about the position with evidence when the statements, which I have set out, were made. It is not necessary to go into this in detail. The Tribunal adjourned for a time to consider its attitude to the application and later on the same day handed down a document headed "Decision" under which the application for disqualification was refused.

38 I turn to the question of whether there should be interlocutory relief. It is necessary to consider the passages complained of in the context in which they appear. It was clearly necessary for the Tribunal to warn the solicitor if it was considering making an order which would have the effect of imposing some punishment greater than was sought by the Law Society in the information. This was particularly so because the solicitor was clearly inexperienced in litigation and in fact his counsel told me that he knew "from nil to nothing" about it. That is not to say that the Tribunal should not impose a greater punishment as it is in no way bound by the views of the Law Society, although it is required to give proper attention to those views. Nonetheless, I consider that there is a serious question to be tried as to whether the Tribunal overstepped the mark so that rather than just giving adequate warning, as a result of the statements made, Mr Sullivan or the public might entertain a reasonable apprehension that the Tribunal might not bring the impartial mind, free of prejudgment, to the resolution of the question which is required.

39 There is also a question to be tried as to the powers of this Court to review the processes which have taken place in the Tribunal to this stage. I do not envisage there would be any further argument upon the principal question as to perceived bias, actual bias or prejudgment so that the principal argument for the future would be in relation to the matters I have alluded to at the commencement of this judgment as to the power of the Court to deal with this matter at this stage and the appropriate form of relief, if any. Judicial review of the kind sought here usually results in the quashing of an order but there is no reason why an injunctive order should not be made in proper circumstances. I have had no submissions on that at this stage.

40 In view of what I have said I propose to make the order sought in paragraph 2 of the summons which is an order for interlocutory relief. I will fix a date for the further hearing of this matter, if possible, before me while I am Duty Judge next week. I make the order as sought in paragraph 2 of the summons.

41 Costs of the proceedings to date be costs in the cause.

42 Stood over to Friday 5 May 2000 for final hearing.

Last Modified: 09/27/2000 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.

CITATION : Sullivan v ADT [2000] NSWSC 386 revised - 14/09/2000 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 2217/2000 HEARING DATE(S) : 27 April and 5 May 2000 JUDGMENT DATE : 5 May 2000

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