Weston v Law Society of New South Wales

Consideration 34I approach the matter in the light of the principles in General Steel Industries v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129 and by what was said in Commonwealth of Australia v Griffiths [2007] NSWCA 370; (2007) 70 NSWLR 268 at [11]-[12]. 35There are two separate aspects to the Plaintiff's claim and the Law Society's application to dismiss the proceedings. The first concerns the relief claimed for a reinstatement of the practising certificate and a declaration that the Plaintiff is a fit and proper person. 36The relief for the reinstatement of the suspended practising certificate is misconceived. Practising certificates are issued each year for the period ordinarily commencing 1 July in any year. The practising certificate which was suspended in 2010 cannot now be reinstated. 37However, if what the Plaintiff was really intending to achieve was the issue of a practising certificate for the current year, the only way this could be achieved would be to apply for the review available from the Law Society's refusal to grant him a practising certificate on 20 September 2012. The appropriate right of review is found in s 75 LPA and is to the Administrative Decisions Tribunal as set out earlier in this judgment. The provisions of s 108, permitting an appeal to this Court, do not apply to decisions made under Division 7 of Part 2.4 LPA concerning show cause events. 38The Plaintiff's response to that and his explanation for seeking the declaration that he is a fit and proper person is that this Court (he says) is responsible for determining if someone is a fit and proper person to be admitted as a lawyer. Moreover, he said, if he is dissatisfied with any determination of the Administrative Decisions Tribunal he is entitled to appeal to this Court. 39I reject the Plaintiff's submissions for these reasons. First, his proceedings are not concerned with his being admitted as a lawyer: they are concerned with his right to a practising certificate (see the distinction made in ss 5 & 6 LPA). Secondly, it is the Admission Board who, in the first instance, determines whether a person is fit and proper for admission (see ss 25, 26 and 31 LPA) but not for the obtaining of a practising certificate. The Law Society Council or the Bar Council determine who is a fit and proper person for the purpose of issuing a practising certificate (ss 41 and 42 LPA). The right of review from such a determination is to the Tribunal. Thirdly, the determination of fitness and propriety to remain on the roll as a lawyer is by the Court of Appeal, and any appeal from the ADT regarding practising certificates lies to the Court of Appeal and not to a single judge of the Common Law Division of the Court. 40The relief for reinstatement of the practising certificate, even if understood as meaning relief by way of appeal from the Law Society's refusal in September 2012, is misconceived. Similarly, where there is a statutory right of appeal that does not include a single judge of the Common Law Division it would be entirely inappropriate for a single judge to make a declaration concerning his fitness and propriety. 41There is the further consideration that the Plaintiff's proceedings that were commenced in January 2012 were dismissed by consent. Those proceedings sought the same relief as the present proceedings seek (except the present claim for damages). In Nominal Defendant v Manning (2000) 50 NSWLR 139 Heydon JA said at [72] that a litigant bringing a second application where circumstances have not changed on evidence available earlier faced serious and self-created risks of an adverse exercise of judicial discretion. That was said in respect of interlocutory applications. It may have greater force in respect of final relief even if the earlier dismissal here did not produce a res judicata. It is not necessary to decide this matter because, for the reasons I gave earlier, the claim for this relief is hopeless and is doomed to fail. 42The second aspect to the relief sought is the claim for damages. 43Section 730 LPA relevantly provides: 730 Protection from liability No liability is incurred by: ... (b) the Law Society or the Law Society Council, or their committees, including a Management Committee to which a function is delegated under section 426 (Management Committee), ... or an employee or agent of, or a person acting at the direction of, any of them for anything done, suffered or omitted to be done in good faith in the exercise, or purported exercise, of a function under this Act. 44Nowhere is it alleged in the pleading or elsewhere that in coming to its determination on 20 September 2012 there was any lack of good faith on the part of the Law Society or its Council or employees. Nothing in the affidavit filed by the Plaintiff makes any such assertion nor provides any evidence which could lead to an inference of a lack of good faith. There is nothing in the reasons proffered by the Law Society Council for the determination that it made that could lead to an inference of a lack of good faith. 45In my opinion that is sufficient to demonstrate that the claim for damages is not based on any reasonable cause of action. 46Furthermore, what purports to be the pleading of the cause of action does not by any means satisfy the requirements of the Rules and good practice for proper pleading and particularisation. The importance of proper pleading has been emphasised in a number of cases particularly Kirby v Sanderson Motors Pty Ltd (2001) 54 NSWLR 135 at [20] - [21] and McGurk v University of New South Wales [2009] NSWSC 1424 at [21] - [35] - see also Udowenko and Ors v Chief Executive Officer and Board of Directors of St George Bank - A Division of Westpac Banking Corporation and Ors [2011] NSWSC 867 and Constantinidis v Kehagiadis [2011] NSWSC 974 at [7] - [12]. 47In this regard it is to be recalled that the Plaintiff, although appearing for himself, is not untrained or unversed in what is required for proper pleading. Not only has he been a solicitor since 1991 but he asserted in Court that as a solicitor he had been a litigator. In my opinion, no particular allowance should be made for the Plaintiff on the basis that he does not have legal representation. However, even if the Plaintiff had not been a lawyer the pleading contained in the Statement of Claim could not be allowed to remain in its present form. The only issue is whether the pleading should merely be struck out with the Plaintiff given leave to replead or whether the claim for damages should be dismissed. 48In my opinion the proceedings should be dismissed. The lack of any material suggesting a lack of good faith on the part of the Law Society points to a high probability that the Plaintiff cannot succeed in the claim for damages. Furthermore, the Plaintiff undoubtedly committed two show cause events which have not been satisfactorily explained either to the satisfaction of the Legal Services Commissioner nor to the Council of the Law Society. 49Morover, the suspension of his practising certificate in 2010 came about by force of s 70(1) LPA. That suspension remains in force until the Commissioner decides that he is a fit and proper person. Interestingly, on 13 October 2010 (11 days before the expiry of the "required period") the Plaintiff asked that his practising certificate be cancelled. He was told that that was not possible when the matter was under consideration. 50There is a right to approach the Tribunal to remove the suspension imposed by s 70. The Plaintiff did that but was unsuccessful. He did not thereafter apply for a practising certificate until 24 January 2012, nine days after he filed his Summons in this Court (referred to in paragraph 13 above). 51The Law Society informed him by letter of 7 February 2012 that before a practising certificate could be issued the Plaintiff would have to provide answers to matters asked of him by the Legal Services Commissioner in his letters of 29 October 2010, 23 December 2010 and 18 February 2011. Apart from sending some documents to the Law Society on 27 March 2012 the Plaintiff did not respond to the matters asked of him until 18 June 2012. Thereafter he made the application for a practising certificate on 31 July 2012. 52In circumstances where the suspension was imposed by statute, the Plaintiff had sought the cancellation of the practising certificate, the Tribunal rejected his application for review, the Plaintiff had consented to the dismissal of his proceedings in this Court filed in January 2012 and his failure thereafter to apply for a practising certificate until 31 July 2012, the claim for damages would be doomed to fail even if the requirement to show a lack of good faith did not obtain.

Conclusion 53Accordingly, I make the following orders: (1)The Statement of Claim filed 6 December 2012 is to be re-numbered 2012/379719. (2)The Statement of Claim is struck out. (3)The Proceedings commenced by Summons filed 6 December 2012 are dismissed. (4)The Plaintiff is to pay the Defendant's costs.

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