The Owners Strata Plan No 38308 v Gelder

Consideration

Rule 27 of the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 (NSW) is concerned with the "solicitor as material witness in client's case" and provides: "27.1 In a case in which it is known, or becomes apparent, that a solicitor will be required to give evidence material to the determination of contested issues before the court, the solicitor may not appear as advocate for the client in the hearing. 27.2 In a case in which it is known, or becomes apparent, that a solicitor will be required to give evidence material to the determination of contested issues before the court, the solicitor, an associate of the solicitor or a law practice of which the solicitor is a member may act or continue to act for the client unless doing so would prejudice the administration of justice."
Although, not surprisingly as she is not legally trained, Ms Gelder did not refer to Rule 27 in support of her opposition to Mr Atkin representing the Owners in the referral application, her allegations render consideration of its application appropriate. Mr Atkin can be presumed to be aware of Rule 27.
In the present circumstances, Rule 27.1 would be enlivened if the referral proceedings were being heard in a court. The Tribunal is not a court. The glossary to the Solicitors' Rules defines "court" to include (e) an "administrative tribunal". Section 50(2) of the CAT Act enables the Tribunal to dispense with a hearing in proceedings before it. The Tribunal has not made such an order in these proceedings. Unless an order is made pursuant to s 50(2) dispensing with a hearing of the referral application, Mr Atkin is likely to appear as the Owners' advocate if they are granted leave to be represented by him. For the reasons which follow, even if an order were made under s 50(2) of the CAT Act dispensing with a hearing, that would not change the Tribunal's decision- leave to be represented by Mr Atkin would be refused.
In Wild v Meduri & Ors; Meduri & Anor v Neal & Anor; Meduri v Meduri & Ors [2023] NSWSC 113 ("Wild"), Hallen J considered the operation of Rule 27 in a succession case in which the solicitor for a party who had prepared a disputed will had sworn an affidavit in the proceedings upon which he was cross-examined in detail. His Honour referred [287] to some of the "difficulties" which may arise when a lawyer acts in proceedings where he, or she, may be required to appear as a witness. By reference to the text to which His Honour referred, it was accepted that appearing as a witness "may tend to confuse the lawyer's role. That role is to present the case and test the evidence and arguments, whereas a witness provides sworn testimony of facts within her or his personal knowledge or expertise. There is also the prospect of conflict between interest and duty; by appearing as a witness the lawyer may be placed in a position where the duty to the court, or her or his own interests, conflict with the duty to the client".
On Mr Atkin's own evidence, it is readily apparent that, whatever the merits of the pending substantive litigation between the Owners and Ms Gelder elsewhere in the Tribunal, an acrimonious relationship has developed between Ms Gelder and the Owners, as evidenced by the emails upon which the latter rely. This is not a case in which the solicitor may be required to appear as a witness. The solicitor has elected to be, and is, a witness whose evidence would clearly be vigorously contested if the referral application were granted. Mr Atkin's evidence is clearly material to the determination of contested issues in the proceedings. Mr Atkin is the only witness in the Owners' referral application.
In Wild, Hallen J referred, at [288] to the decision of Thomas J in Jeffrey v Associated National Insurance Co Ltd [1984] 1 QdR 238 at [245], in which it was suggested that "in any case where a solicitor has reason to believe that he may be required to give evidence of a controversial kind in a proceeding, he should arrange for an independent solicitor to take over the matter so that his objectivity cannot be questioned when he gives evidence". Rule 27 prohibits a solicitor appearing as an "advocate" in those circumstances.
In Commissioner for Corporate Affairs v Harvey [1980] VicRp 64; [1980] VR 669 Marks J said, at [762] that what was important was that "the Court sets its face against giving audience to legal representatives who are unable to assure the Court of a singular interest. It is the purity of interest in the adversaries before the Court which gives that fundamental utility and credence in the system." Significantly for present purposes, His Honour added that "legal practitioners who have a personal interest in the outcome of an action do not have that singular interest" which "… gives the fundamental utility and credence to the system". The reference to "giving audience" implies the solicitor appearing as an advocate, although, in proceedings determined wholly or substantially by reference to written submissions, receiving and considering such submissions may also be "giving audience".
Importantly for present purposes, in Clay v Karlson (1997) WAR 493, to which Hallen J referred, at [289], Templeman J agreed, at [494]-[495] with the observations of the Full Court of the Supreme Court of Queensland in Chapman v Rogers; Ex parte Chapman [1984] 1 QdR 542, that it was "desirable to avoid any suggestion of real or apparent conflict between the duty to the Court and the obligation to the client…it is generally unwise for a solicitor, who is not, himself, appearing as an advocate, or instructing solicitor in Court, but who is aware that it is likely that he will be called as a material witness (other than in relation to formal, or non-contentious, issues) to continue, either personally, or through his firm, to represent the client if this can be reasonably avoided. It may be unavoidable in some cases, such as those involving complex commercial interest".
In The Queen v Silverstein [2021] VSCA 233, the Victorian Supreme Court of Appeal said, at [118] by reference to Rule 27 that it was "unarguable" that it was "most undesirable" that a legal practitioner who "might be called as an important witness" not "act, or appear as counsel, in the proceeding". The "proscription" provided by Rule 27 was considered to be "particularly pertinent" in the case of a legal practitioner who "not only acts for a party in the proceeding, but also appears on behalf of that party at the trial of the proceeding".
Significantly for present purposes, the solicitor in Wild did not ever appear as "advocate" for the client [285]. As the solicitor ultimately recused himself, Hallen J did not have to decide whether he was precluded from continuing to act by Rule 27.
Having regard to the evidence Mr Atkin has given, and his submissions, and Ms Gelder's submissions, it is clear that Mr Atkin's evidence is material to, and controversial in the referral application, and that, if the referral application is granted, he will be required for cross-examination on his affidavit in the Supreme Court. To date, Mr Atkin has given no indication that he will not continue to represent the Owners throughout these proceedings.
In view of the extent to which Mr Atkin is involved in the referral proceedings, as revealed by his emails, and the submissions to which the Tribunal has referred, the potential for Mr Atkin to have a conflict between his own and the clients' interests which is apparent and real (BTH v NSW Public Guardian [2016] NSWCATAP 12). Although it may not in any way be of his doing, as Mr Atkin's submissions make clear, understandably, he does not a have the "singular interest" in the referral proceedings which the authorities suggest is required of a party's legal representative.
In Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143, albeit a decision which preceded the commencement of the CAT Act, Schmidt J accepted that the Tribunal's discretion to refuse leave to appear depended on what was "fair and just in particular circumstances", with the onus falling on the party seeking the grant of leave to discharge that onus. In Fields v Commissioner of Police, NSW Police Force [2017] NSWCATAD 311, the Tribunal accepted that Her Honour's observations applied to an application for leave pursuant to s 45 of the CAT Act.
Section 33 of the Interpretation Act 1987 provides that a construction of a statutory instrument which would "promote the purpose or object underlying the Act... (whether or not that purpose or object is expressly stated in the Act…) shall be preferred to a construction that would not promote that purpose or object".
The authorities to which the Tribunal has referred, and the judgment of Hallen J in Wild, suggest that interpreting Rule 27 to only preclude a solicitor who is a witness in proceedings from "advocating" at an oral, or virtual hearing in the Tribunal or in court would not promote the implied purpose or object of the Rule, or address a number of the mischiefs which the authorities confirm can arise when a solicitor who is a witness in proceedings acts for a party to those proceedings.
The Tribunal is comfortably satisfied, for the foregoing reasons, that the Owners should be refused leave to be represented in the proceedings by Mr Atkin. If Rule 27 does not preclude Mr Atkin from continuing to represent the Owners in the referral proceedings, the Tribunal would not grant leave for him to do so as, if not contrary to the literal operation of Rule 27, granting leave would be contrary to the objects and purpose of the Rule, and not in the interests of the parties, or the interests of justice. In view of the extent to which Mr Atkin's emails and submissions reveal that he is involved in the controversy which underpins the present proceedings, it is not in Mr Atkin's own interests that he continue to represent the Owners in the referral proceedings.
If, contrary to the view recorded earlier in these reasons, the Owners do not require a fresh grant of leave to be represented by Mr Atkin in the referral proceedings, for the foregoing reasons, the Tribunal would revoke any leave granted to Mr Atkin to represent them in these proceedings pursuant to s 45(3)(b) of the CAT Act.
Whether other solicitors in Mr Atkin's firm can enliven Rule 27.2, or whether the Owners prefer to retain an "independent" solicitor to represent them in the referral proceedings is a matter for Mr Atkin's firm and the Owners to decide. The Tribunal's orders will allow time for that decision to be taken.
To the extent that Mr Atkin may complain that he has not been afforded the opportunity to be heard with respect to the question of leave, nothing he could have submitted could lead to a different outcome. The Tribunal's decision is based on material which Mr Atkins has filed. Had he been heard further on this issue, if he had not already, Mr Atkin would clearly have "advocated" for his client and enlivened Rule 27.

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