Sullivan v Council of the Law Society of New South Wales

Proceedings in the Tribunal

1. As I have said, the Council filed its application to the Tribunal on 25 May 2016. The grounds stated in the application were that the Solicitor was guilty of professional misconduct, in that he failed to comply with the July Notice. The Solicitor's reply raised nine matters, which may be summarised as follows: (1) At the time of issuing the July Notice, the Council had not established a complaint investigation and had failed to give notice to the Solicitor in writing of his right to make submissions. It had also failed to specify the period within which submissions had to be made. (2) By not complying strictly with the requirements of s 508 of the Legal Profession Act, the Council had not established a complaint investigation with the Solicitor at the time that the July Notice was issued and consequently could not lawfully proceed with a complaint investigation. (3) By failing to comply with s 508, there was no complaint investigation that the Council could lawfully undertake. (4) The conduct complained about, and for which the purported complaint investigation was being conducted by the Council, namely, failing to pay child support, was clearly the subject of a previous complaint that had been dismissed. (5) It was incumbent upon the Council to consider the provisions of s 511 of the Legal Profession Act and to exercise its discretion provided by that section when determining whether or not to conduct a complaint investigation. The Council did not consider that section and consequently did not exercise any discretion. (6) By the July Notice, the Council sought information from the Solicitor that, in part, was not relevant to the conduct complained about, namely, failing to pay child support, but was relevant to two previous complaints, namely, failing to lodge income tax returns and failing to pay income tax. (7) The Council was bound to exercise its discretion when determining whether or not to issue the July Notice and when formulating the terms of the July Notice but failed to do so, reasonably or at all, as it did not consider what was relevant to the complaint investigation but, rather, was informed from a previous file that had been closed in 2013. (8) The Council did not act reasonably and impartially when considering the conduct complained about, namely, failing to pay child support, and in purporting to carry out a complaint investigation of the conduct complained about. (9) The Committee did not consider the conduct complained about, namely, failing to pay child support, and the purported establishment by the Council of the complaint investigation, but only considered the Solicitor's failure to comply with the July Notice in isolation, without considering the background to the issuing of the July Notice or the right to issue the July Notice and, in those circumstances, the Committee did not properly exercise its discretion.
2. In its reasons of 4 January 2017, after referring briefly to the background and the legislative framework, the Tribunal observed that the Solicitor did not dispute that he had failed to comply with the July Notice but claimed that the July notice was invalid. The Tribunal summarised the Solicitor's grounds for that contention as follows: (1) The Council had failed to comply with s 508 of the Legal Profession Act in that the letter of 23 March 2015 did not inform the Solicitor of his right to make submissions or state a period in which his submissions were required. (2) The Council had failed to consider the complaint under s 511 and determine whether or not to dismiss it on the grounds that the conduct in the complaint had been the subject of a previous complaint. (3) The July Notice was issued in reliance on a complaint that was the same as the previous complaint that had been dismissed. (4) The July Notice sought information that was irrelevant to the complaint. (5) The Committee did not consider the Solicitor's submissions dated 15 September 2016 and he had, therefore, been denied procedural fairness. (6) The Council acted with a lack of impartiality.
3. The Tribunal then observed that the parties had agreed that, in light of the above issues, the question of whether or not the Solicitor had a "reasonable excuse" within the meaning of s 676(3)(b) of the Legal Profession Act did not arise. The Tribunal said that no excuse was put forward by the Solicitor at the hearing and that, at the request of the parties, the Tribunal determined to deal with the issue of validity in making its decision on the allegation of professional misconduct. The Tribunal then proceeded to deal with the six grounds.
4. The Tribunal observed that both ground (1) and ground (2) appeared to be based on the proposition that the power in s 660 was not enlivened unless the Society had first complied with certain provisions of the Legal Profession Act dealing with the receipt, notification and consideration of complaints. The Tribunal concluded that the Solicitor was, in effect, told in the letter of 23 March 2015 that he should provide submissions by 14 April 2015. The Tribunal did not consider that anything turned upon the failure to mention a "right" to make submissions and that if, as the Solicitor alleged, he did not receive the letter of 23 March 2015 at the time when it was sent, he was not disadvantaged. The Tribunal considered there was no relevant lack of compliance with s 508.
5. In relation to ground (2), the Tribunal concluded that s 511 did not impose an obligation upon the Council to consider whether there were any grounds on which to dismiss a complaint before commencing an investigation or at any particular stage during an investigation. The Tribunal referred to s 511(2), which provided that a complaint may be dismissed without any investigation or without completing an investigation. The Tribunal considered that the legislature clearly wished the Council to have the choice of exercising the power either before, during or after an investigation had commenced.
6. In relation to ground (3), the Tribunal was not persuaded that the complaint contained in the March 2015 email was the same as the complaint that had been dismissed in 2013. The Tribunal observed that, while it might relate to the same kind of conduct, it was not the same actual conduct as was previously complained of, as it covered a different period, related to a different sum of money and took into account acts or omissions since the dismissal of the earlier complaint.
7. In relation to ground (4), the Tribunal considered that the requests for information concerning the Solicitor's taxation returns were made relevant to the investigation of the complaint by his previous advice to the Society that he would lodge outstanding returns and seek a reassessment of his child support obligations. The Tribunal considered that, even if some of the material sought was not relevant, the Solicitor had not complied with any part of the July Notice and, therefore, ground (4) could not succeed.
8. In relation to ground (5), the Tribunal found that the Solicitor had not established that the Committee did not consider his submissions and that the evidence supported a finding that they did, in fact, consider them. The Tribunal was satisfied that the Committee's words "subject to any submissions" referred to the submissions they were inviting the Solicitor to provide and were not an indication that they did not have any submissions from him before them. The Tribunal observed that the Solicitor had a further opportunity to make submissions, which was communicated to him by Ms Lai on 20 November 2015. In addition, the Tribunal observed, the Solicitor had an opportunity to ventilate his concerns before the Tribunal. The Tribunal found that there was no failure to consider the submissions and no denial of procedural fairness.
9. In relation to the contention in ground (6), that the Society had demonstrated bias against the Solicitor by sending a letter concerning the complaint to him at his office by public facsimile, thereby breaching privacy and confidentiality, the Tribunal observed that Ms Foord, who swore an affidavit in support of the complaint to the Tribunal, accepted that correspondence with solicitors on complaint matters should be dealt with sensitively. Ms Foord said that there may have been a reason why the letter was sent by facsimile in the present case. The Tribunal observed that there was no evidence that actual bias was the reason why the letter was sent by facsimile and that the mere fact that Ms Lai sent the letter, which could have been seen by others in the Solicitor's office, would not cause a fair-minded and informed observer to draw the conclusion that the Committee or the Council would not act impartially.
10. In dealing with the penalty, having noted that the Solicitor did not dispute that he had failed to comply with the July Notice and that, as at the date of the hearing, had still not complied, the Tribunal found the conduct proven and observed that s 676(3) provided that an Australian lawyer who failed to comply with a requirement under s 660, without reasonable excuse, was guilty of professional misconduct. The Tribunal referred to the Solicitor's submission that he treated the July Notice seriously and did not simply fail to comply but engaged in frequent requests for clarification. It also referred to his contention that it was appropriate for him to raise issues that he saw as relevant to his obligations and that he should not be penalised for failing to give evidence. He pointed out that he had been in practice since 1987 and that he had not previously appeared in a disciplinary matter. He said that a reprimand would damage his reputation and that suspension was a very serious penalty for a sole practitioner with employed staff.
11. The Tribunal concluded that, by virtue of s 676(3) of the Legal Profession Act, the Solicitor was guilty of professional misconduct. The Tribunal found that the Solicitor's arguments about the validity of the July Notice were without merit and that, as a result of his conduct, the investigation of the Complainant's complaint had been delayed for more than 18 months. The Tribunal considered that the Solicitor had not complied with any part of the July Notice and had not shown any contrition. The Tribunal considered that the Solicitor's conduct and the tone of his correspondence with the Council did not give cause for confidence that he would comply fully with the July Notice without some motivation to do so. The Tribunal found that the Solicitor had been guilty of professional misconduct, reprimanded him and ordered that his practising certificate be suspended until such time as he complied with the July Notice.
12. Although there was no evidence before this Court, the Court was informed by counsel for the Solicitor and counsel for the Council that, within a period of some hours after the orders of the Tribunal were made, the Solicitor complied with the July Notice. That may have some relevance in that it indicates that the Solicitor had no difficulty in complying with the July Notice.

The Appeal

1. While the amended grounds of appeal filed on 28 June 2017 identified 18 separate grounds, the Solicitor's submissions grouped the 18 grounds into eight categories. Counsel for the Council formulated the following issues arising from the Solicitor's submissions: (1) Whether the Tribunal erred in its characterisation of the complaint against the Solicitor made by the March 2015 email as a new complaint (Grounds 1, 2 and 3). (2) Whether the July Notice was valid (Grounds 4, 5, 6, 8, 10 and 11). (3) Whether the Tribunal erred in finding that the Society was not required to exercise the discretion under s 511 (Ground 7). (4) Whether the Tribunal erred in finding, or otherwise taking into account, that the Solicitor was unwilling to comply and showed no contrition following his failure to comply with the July Notice (Grounds 9 and 18). (5) Whether the Solicitor was denied procedural fairness by the Society or the Tribunal (Grounds 12 and 13). (6) Whether the Tribunal erred in failing to find that the Solicitor had a reasonable excuse for not complying with the July Notice (Ground 14). (7) Whether the Tribunal erred in terms of the costs order made against the Solicitor (Ground15). (8) Whether the Tribunal had jurisdiction to hear and determine the matter (Grounds 16 and 17). I shall deal separately with each of those issues.

Characterisation of the 2015 Complaint

1. Grounds 1, 2 and 3 involve a contention that the complaint made by the March 2015 email (the 2015 Complaint) was the complaint that had been dismissed in 2013. While the correspondence from 23 March 2015 and following, in the circumstances in which it was provided to the Solicitor, may have been infelicitous in its wording, it is clear enough that the subject matter of the March 2015 email and the Minister's letter was failure by the Solicitor to pay a sum of $78,844.55, whereas the complaint dismissed in 2013 related to a sum of $31,447.21. Whether or not the former sum included the whole or part of the latter sum, it must have been obvious to the Solicitor that the 2015 Complaint related to different money, or at least additional money, alleged to have been owing in respect of child support. The 2015 Complaint was clearly different from the complaint that had been dismissed in 2013. The Tribunal did not err in so concluding (see [51] above).

Validity of the July Notice

1. Grounds 4, 5, 6, 8 and 11 refer to the May Notice. However, the May Notice was not the subject of the proceedings before the Tribunal. The only question in issue was the Solicitor's failure to comply with the July Notice. The Solicitor's contention is that the July Notice was not issued for the purpose of carrying out a complaint investigation, that it was an abuse of process and oppressive and that it was not issued for proper purposes, namely, for the purposes of complaint investigation.
2. There was no evidence to suggest that compliance with the July Notice would be oppressive. Indeed, as noted earlier, it was common ground before this Court that, within hours of the orders being made by the Tribunal, the July Notice was complied with. It is clear that the Society was under an obligation to conduct an investigation following the referral of the 2015 Complaint by the Commissioner. There is no basis for concluding that the July Notice was not issued for the purposes of conducting a complaint investigation in relation to the 2015 Complaint. Accordingly, these grounds are not made out.

Discretion under s 511

1. The Solicitor contends that the Tribunal should have found that the Society failed to take into account a relevant consideration, namely, that the conduct complained of in the 2015 Complaint was the same conduct as had been the subject of the complaint dismissed in 2013. Section 511 of the Legal Profession Act permitted the Society to dismiss a complaint summarily, relevantly, if the conduct complained about had been the subject of a previous complaint that had been dismissed. However, s 511(2) provided that the discretion may be exercised without any investigation or without completing an investigation. There is nothing in s 511 that required the Society to exercise the discretion under that section before commencing the investigation. In any event, for the reasons indicated above, the 2015 Complaint was not a complaint in respect of the same conduct that had been the subject of the complaint that had been dismissed in 2013. There is nothing in this ground.

Contrition

1. The Solicitor contended that the Tribunal accepted his submission that he treated the July Notice seriously and that he did not simply fail to comply with it. Therefore, he contended, it should not have found that he was unwilling to comply with the July Notice and that he showed no contrition. The Tribunal's reasons, however, are consistent only with the Tribunal having rejected the Solicitor's submissions that he treated the July Notice seriously and that he did not simply fail to comply. The Tribunal found the Solicitor's arguments concerning the validity of the July Notice to be without merit and that his conduct and the tone of his correspondence did not give cause for confidence that he would comply fully with the July Notice. More than 12 months had elapsed since the July Notice had been given. It is clear that the Tribunal took into account, quite properly, the correspondence between the parties and the Solicitor's persistence in the conduct as indicating a degree of lack of candour on his part in the course of the hearing. These grounds must fail.

Procedural fairness

1. The Solicitor contends, by ground 12, that he was not afforded procedural fairness by the Council because the Council did not notify him in writing as soon as practicable of his "right" to make submissions, and did not provide him with a copy of the 2015 Complaint, together with sufficient particulars of the conduct that was the subject of that complaint, to enable him to determine that it was different from the complaint dismissed in 2013. There is no substance in this ground. It is clear enough that the letter of 23 March 2015 invited him to make submissions. The failure to inform him of his "right" was not a denial of procedural fairness. Indeed, the 2015 Complaint has not yet been resolved, since no decision has yet been made by the Council in relation to that complaint. There is nothing to suggest that the Solicitor will not be afforded an appropriate opportunity to make submissions in relation to the 2015 Complaint at an appropriate time.
2. By ground 13, the Solicitor complains that the Tribunal failed to afford him procedural fairness, in that he was not provided with a reasonable opportunity to answer particulars of conduct that should have been provided as the subject of the 2015 Complaint. The ground is difficult to understand. Submissions filed with the Tribunal on behalf of the Council directly addressed the differences contended for by the Council between the complaint dismissed in 2013 and the 2015 Complaint. There is no basis for concluding that the Solicitor was unable to deal with the differences between the conduct that was the subject of the complaint dismissed in 2013 and the conduct that was the subject of the 2015 Complaint. The Solicitor made no submission to the Tribunal that he was not in a position to deal with the matter. He did not seek an adjournment or make any complaint to the Tribunal. There is no substance in this ground.

Reasonable excuse

1. In his written submissions, the Solicitor asserted that he had a reasonable excuse, as articulated in the correspondence that passed between him and Ms Lai. However, he adduced no evidence before the Tribunal directed to establishing a reasonable excuse. Further, the Council submitted to the Tribunal that for the Solicitor to rely upon a defence of reasonable excuse, he must accept that the July Notice was valid. If the July Notice was invalid, there could be no requirement for him to answer it and, consequently, any non-compliance would not require a reasonable excuse. That was accepted by the Solicitor, who confirmed that the primary question for determination was the validity or otherwise of the July Notice.
2. It would have been open to the Solicitor, if he wished, to take steps to challenge the validity of the July Notice. He did not do so. He took his chances in corresponding with Ms Lai and, at the same time, made no effort to comply with the July Notice or to seek an extension of time for compliance until the question of its validity had been established. There is no substance in the ground.

Costs

1. By Ground 15, the Solicitor contended that the Tribunal erred in ordering him to pay the Council's costs because s 566(1) of the Legal Profession Act had been repealed and was not available as a provision under which a costs order could be made. However, the Council's submissions to the Tribunal referred to cl 23(1) of Pt 4 of Sch 5 of the Tribunal Act. Clause 23 requires the Tribunal to make orders requiring an Australian legal practitioner, whom it has found to have engaged in unsatisfactory professional conduct or professional misconduct, to pay costs unless the Tribunal is satisfied that exceptional circumstances exist. That is the contention that was advanced in writing. No exceptional circumstances were alleged by the Solicitor and certainly none were proved. There is no substance in the ground.

Jurisdiction

1. Any contention that the Tribunal lacked jurisdiction should have been raised before the Tribunal as a preliminary matter for determination. However, the Solicitor did not challenge the Tribunal's jurisdiction at first instance. During the hearing, the Tribunal raised the question of whether it had jurisdiction to determine the validity of the July Notice or whether that question should be referred to the Supreme Court. The Solicitor did not seek to be heard on that question and did not raise any other basis for challenging the Tribunal's jurisdiction.
2. The Council accepted before this Court that its submissions to the Tribunal were erroneous, insofar as they asserted that the Legal Profession Act applied to the proceedings before the Tribunal. As indicated above, the Legal Profession Act was repealed by the Application Act with effect from 1 July 2015 and, under the Application Act, the Uniform Law applied as from 1 July 2015. The July Notice had been issued under s 660 of the Legal Profession Act in relation to the investigation of the 2015 Complaint, which had been made under the Legal Profession Act. The complaint before the Tribunal was made under the Uniform Law, in that it alleged a failure, after 30 June 2015, to comply with the July Notice.
3. The 2015 Complaint was made prior to the repeal of the Legal Profession Act and had not been disposed of as at 1 July 2015. While the Legal Profession Act would have applied to the investigation and any proceedings in respect of a complaint made in relation to non-compliance with the May Notice, the Uniform Law applied to the investigation and any proceedings in respect of a complaint made in relation to non-compliance with the July Notice.
4. The July Notice was correctly issued pursuant to s 660 of the Legal Profession Act in the course of the investigation of the 2015 Complaint. The complaint in relation to the failure to comply with the July Notice was made on 10 August 2015 under s 266 of the Uniform Law, because it concerned conduct that occurred after the commencement of the Uniform Law, notwithstanding that the conduct occurred in the context of the investigation under the Legal Profession Act.
5. The resolution to commence proceedings was made on 3 March 2016 under s 300 of the Uniform Law and conferred jurisdiction on the Tribunal to hear and determine the complaint that had been made on 10 August 2015. Nevertheless, ss 660 and 676 of the Legal Profession Act remained relevant, as delineating the conduct alleged to constitute professional misconduct.
6. Had the proceedings before the Tribunal been heard and determined under the Uniform Law, rather than the Legal Profession Act, as the Council submitted, the procedures of the Tribunal would not have differed from the procedures that were in fact adopted by the Tribunal. So much follows from s 301 of the Uniform Law. The Tribunal was empowered to make a finding of professional misconduct after the completion of its hearing. The orders sought and made by the Tribunal are permitted under the Uniform Law.
7. At the commencement of the hearing of the appeal before this Court, the Council was granted leave to file a notice of contention. The grant of leave was not opposed. The contention was that the Tribunal had jurisdiction to determine the application under the Uniform Law since it concerned a complaint made after 1 July 2015 under the Uniform Law regarding conduct that occurred after 1 July 2015.
8. Ground 16 was that the Tribunal did not have jurisdiction to hear and determine the application, as no decision was made by the Council to commence proceedings in the Tribunal as required by ss 551 and 552 of the Legal Profession Act. Ground 17 was that the Tribunal did not have jurisdiction to hear and determine the application as it was brought more than six months after the Council had decided that proceedings be commenced with respect to the complaint, contrary to s 552 of the Legal Profession Act.
9. Under s 137 of the Application Act, a disciplinary application may be made to the Tribunal at any time within six months after the Society decides to initiate proceedings in the Tribunal. As indicated above, the decision to commence proceedings pursuant to s 300 of the Uniform Law conferred jurisdiction on the Tribunal. The Solicitor contended that the relevant decision was comprised by the resolution of 19 November 2015 set out in the Society's letter of 20 November 2015.
10. However, it is clear that the resolution of 19 November 2015 was not a resolution that triggered the commencement of time. It was not a decision to commence proceedings but a decision that the Solicitor be informed of certain matters before a decision would be made. The decision was actually made by resolution of the Committee on 3 March 2016, when the Committee resolved that it was of the opinion that the alleged conduct of the Solicitor may amount to professional misconduct and that proceedings be initiated and prosecuted in the Tribunal. That resolution was notified to the Solicitor on 4 March 2016. The proceedings in the Tribunal were commenced on 25 May 2016, within six months of the resolution of 3 March 2016. This ground must also fail.

Conclusion

1. It follows from the above that the appeal must be dismissed. The Solicitor should be ordered to pay the Council's costs of the appeal.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 September 2017