ACT Civil and Administrative Tribunal|2011-04-18|Before: Ms J

The application is adjourned for further directions to Friday, 6 May 2011 at 10.30am.

The respondent is file with the Tribunal and give a copy to the applicant at least 7 days prior to the date for directions, medical evidence relating to his prognosis so that a date for the further hearing of the application can be set.

The primary application by the Law Society of the ACT came on for hearing on 10 February 2011. At the outset of the hearing, the Society made an application to amend that application. Their application was opposed by the practitioner.
After hearing submissions from the parties, the Tribunal gave leave to the Society to make the amendments requested. The practitioner requested an adjournment in order to consider his response, and to call further evidence.
After further discussion the Tribunal determined that the matter should proceed as far as it could that day, but that the practitioner should have the opportunity to deal with the amendments which had been made, and the matter would be adjourned for that purpose.
The hearing then proceeded on the amended application by the Society, and was adjourned for further hearing at the end of the day. The date set for the further hearing was 11 and 12 April 2011. A direction was given that further material should be filed by 3 March 2001.
On 2 March 2011, the practitioner sent an email to the Tribunal saying in part:

Due to my health issues and the time limits imposed by the Tribunal,

I have not been in a position to prepare and file the further material that was to be submitted by COB 3/03/11.

The practitioner requested a further 4 weeks to lodge the further material.
Further directions were given on about 7 March 2011 permitting the practitioner a further 4 weeks, to 30 March to provide material and the Society a further 7 days, to 6 April to provide material in response. That time table permitted the original hearing dates to be preserved.
On 10 March 2011, the practitioner obtained a 'Medical Certificate' from his cardiologist. That was on a standard form on the doctor's letterhead with the relevant details filled in by hand. It read:

The practitioner took no action in relation to the certificate until about

23 March 2011 when he evidently contacted a member of the Tribunal staff by telephone. This conversation was followed by a letter from the practitioner of 23 March 2011, received in the Registry on 24 March 2011. This read:

Attached please find as requested a medical certificate from my specialist (name of cardiologist). I request that the Tribunal vacate the hearing dates of (sic) as I am just not in a position at present to be able to prepare further material nor to participate in the continuation of the hearing.

The medical certificate which was referred to was that quoted above dated

10 March 2011. 2. After some further correspondence, a directions hearing was scheduled for the morning of 7 April 2011 at 11.30. It was expected that the practitioner would apply at that time for the hearing dates of 11 and 12 April to be vacated on the ground of ill health. He was to appear by telephone. 3. The Tribunal, constituted by all members allocated to hear the primary application, convened at 11.30 on Thursday 7 April 2011. The Society was represented by its solicitors, and the practitioner was in person by telephone. 4. The practitioner applied to vacate the hearing date and relied on the certificate of 10 March 2011, and gave evidence relating to his medical condition. The Society advised that it wished to cross examine his cardiologist, however in spite of giving similar advice earlier, had not taken any steps to arrange or compel his attendance. 5. The Tribunal did not consider the evidence relied on by the practitioner sufficient to justify adjournment of the hearing. There had evidently been no change in his medical condition since the earlier hearing, and he had taken no action on the certificate when it was first given. The application for vacation of the hearing date was therefore dismissed. The practitioner was however given leave to provide further evidence from his cardiologist if he considered that course appropriate. 6. The practitioner did provide a further report from his cardiologist. In so far as it is relevant, it read as follows:

This letter is to certify that [the practitioner] is unfit to work for a period of 6 weeks. It would be harmful to his health to go ahead with the preparation and performance of duties at a 2 day hearing which is scheduled I believe, for 10 and 11 April 2011.

He has a history of coronary artery disease, and underwent angioplasty in 2009. He has recurrent chest pain which requires further investigations.

The Society was provided with a copy of the report, and advised that it wished to cross examine the cardiologist. The Tribunal Registry had been advised by the practitioner that the cardiologist was to leave Australia the next day, Friday 8 April 2011.
The report was again couched in terms of the practitioner's incapacity to undertake work presumably as a solicitor due to his medical condition. It does not address the real reason that the practitioner was involved in the hearing commencing on 11 April 2011: that is as a litigant in person.
Furthermore, the report was provided at a time and in circumstances which precluded the Society from cross examining the doctor. The practitioner had not disclosed the nature of his 'medical condition' other than as a 'cardiac condition' until two business days before the scheduled hearing. Nor did he file any material in preparation for the hearing after his earlier request for further time to do so. Instead he created significant delay by relying on a patently unsatisfactory certificate until disclosure of the doctor's report at a time at which it was inevitable that the hearing had to be vacated, since it was impractical for the doctor to be produced by either party for cross examination.
The matter has been set down for further directions on 6 May 2011.

APPLICANT: THE COUNCIL OF THE LAW SOCIETY OF THE ACT

TRIBUNAL MEMBER/S: Mr G Lunney SC, Mr R Watch & Ms J Greagg

DATE/S OF HEARING: 2, 10 & 11.2.11 PLACE: CANBERRA

DATE/S OF DECISION: 18 April 2011 PLACE: CANBERRA

FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )

THE COUNCIL OF THE LAW SOCIETY OF THE ACT & THE LEGAL PRACTITIONER S (Occupational Discipline) [2011] ACAT 32 (18 April 2011)

THE COUNCIL OF THE LAW SOCIETY OF THE ACT & THE LEGAL PRACTITIONER S (Occupational Discipline) [2011] ACAT 32 (18 April 2011)

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THE COUNCIL OF THE LAW SOCIETY OF THE ACT & THE LEGAL PRACTITIONER S (Occupational Discipline) [2011] ACAT 32 (18 April 2011)