Before me today as duty judge and listed by me today for directions in my role as a duty judge this week, are proceedings commenced by Mr Williams seeking various interim orders and substantive relief.
The relief sought arises out of some mental health issues that are said to have been suffered by Mr Williams that led to a certain course of action, including, for a period, his containment under the Mental Health Act 2007 (NSW).
Mr Williams is a practising member of the New South Wales Bar and has, in addition to the initiating process seeking habeas corpus, also sought relief in terms of restoration of his practising certificate which had been suspended.
Various developments occurred including, I am informed by Mr Williams, his release on Wednesday this week which meant that he no longer needed to press for the habeas corpus relief.
He is, however, here today having made oral and written submissions pressing for:
"a restraining order against the New South Wales Barristers Association from acting upon or giving effect to the decision made on 22 August 2019 to suspend the plaintiff's practising certificate on (sic) as a barrister pursuant to s 77 of the Legal Profession Uniform Law New South Wales until further order of this Court."
Mr Williams sought to persuade me that I ought to, in pursuit of this Court's inherent jurisdiction and prerogative powers, hear as a substantive matter this particular application today. He understandably is concerned and worried about his practice and the associated inability to make money as a barrister given the suspension of his practising certificate.
Mr Griffin, who appears for the New South Wales Bar Association provided some background information in respect of the current processes before Bar Council and the option for those processes to be pursued by Mr Williams, as well as the operation of s 100 of the Uniform Law for legal practitioners.
In respect of the former I have been informed that if Mr Williams sought Bar Council review of its decision, a Bar Council meeting could be convened for next Thursday 19 September 2019, with a decision that day.
Mr Griffin informed me that some correspondence had been had with Mr Williams that had invited him to make written submissions requesting review of the decision by 2 September. That time was further extended to 27 September 2019 and an email communicated about that yesterday, given Mr Williams' recent circumstances.
I am informed, and Mr Williams did not take issue with this, that a response from Mr Williams suggested that Bar Council ought to treat his affidavit dated 11 September 2019, filed in these proceedings, as the relevant evidence and response.
Mr Griffin outlined that there had been a suggestion made to Mr Williams that some material that would be helpful for Bar Council to consider the position would be an updated psychiatrist's report - and that could be a psychiatrist of Mr Williams choosing - or permission to release Dr Nielssen's notes to Bar Council or permission to release the notes and records of the medical practitioners who attended Mr Williams during his recent hospitalisation.
Mr Williams has made it clear from the Bar table that he does not resile from his position that Dr Nielssen's notes cannot be released and I note that fact.
Alternatively, or in addition to that process, Mr Griffin outlined the jurisdiction of the NSW Civil and Administrative Tribunal ("NCAT") under s 100 of the Uniform Law which provides a statutory scheme for challenging decisions of the New South Wales Bar Council.
Mr Griffin stated that an application of that nature could be by way of appeal or seeking review and that the timeframe for that to be done would be 19 September 2019. Mr Griffin noted that NCAT has a wide discretion to extend time in that respect and that his client, the New South Wales Bar Association, would not take an objection to an extension of time should Mr Williams wish to avail himself of that procedure. It was noted that an email was forwarded to Mr Williams outlining that potential procedure at 4.45pm yesterday.
Two affidavits of Mr Williams were tendered as exhibits on the directions hearing. I have received those affidavits simply for background assistance and specifically advised the parties at the Bar table that formal objection should not be taken and was not required for those purposes today. Within that affidavit material, as noted by Mr Griffin, are various allegations about activities of the Bar Association and Bar Council that would require some detailed instructions and response. As a matter of basic procedural fairness, putting to one side the question of whether s 100 of the Uniform Law and the associated processes at NCAT should first be pursued, I am not in a position to hear on its merits, the application that Mr Williams makes today.
Referred for my consideration on this issue was the decision of Wende & Ors v Horwath (NSW) Pty Limited (2014) 86 NSWLR 674; [2014] NSWCA 170. Paragraph [25] of that decision within the judgment of Basten JA makes reference to the potential for refusal of relief if the statutory appeal right that ought to be invoked was not pursued, stating as follows:
"…relief might well be refused on the basis that the statutory appeal right should properly be invoked, where available, rather than the supervisory jurisdiction under s 69."
Mr Griffin submitted that this statement was helpful in terms of principle as to the argument he raised that Mr Williams ought to first pursue his statutory rights before applying to this Court for exercise of its inherent jurisdiction.
All things considered, I am of the view that the order sought by the plaintiff set out in paragraph [5] of this judgment should not be made.
However, orders agreed on between the parties as to the ongoing management of the proceedings should be made, to progress this matter to the extent possible.
Accordingly, I make the following orders:
(A) The plaintiff's application for a restraining order to be made today against the NSW Bar Association is refused.
(B) Procedural Orders:
(1) The plaintiff is to provide a copy of the draft statement of claim to any proposed defendant by 16 September 2019.
(2) Any defendant who wishes to object to the statement of claim being filed is to notify the plaintiff by 19 September 2019.
(3) Any defendants referred to in order 2 are to file and serve any evidence and written submissions regarding whether leave should not be granted for the plaintiff to file a statement of claim pursuant to rule 7.14 of the Uniform Civil Procedure Rules 2005 (NSW) by 23 September 2019.
(4) The plaintiff is to file and serve any evidence and any written submissions regarding the relief question he wishes to rely upon by 27 September 2019.
(5) The matter is listed before the Registrar on Wednesday 2 October 2019 for referral to the duty judge regarding the leave question and for further timetabling orders.
(6) I reserve the question of costs.
[2]
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: 13 September 2019