Administrative Decisions Tribunal New South Wales

• Medium Neutral Citation: Council of the New South Wales Bar Association v Asuzu [2011] NSWADT 108
• Hearing dates: 9 May 2011
• Decision date: 18 May 2011
• Jurisdiction: Legal Services Division
• Before: S Norton SC, Judicial Member R Wright SC, Judicial Member; C Bennett, Non Judicial Member
• Decision: 1. Respondent’s application to strike out both applications for original decisions is dismissed 2. Costs of that application are reserved.
• Catchwords: Disciplinary action, professional misconduct - unsatisfactory professional conduct - strike out application
• Legislation Cited: Administrative Decisions Tribunal Act 1997; Legal Profession Act 2004.
• Category: Interlocutory applications
• Parties: The Council of the New South Wales Bar Association (applicant); Ignatius Nwafor Asuzu (respondent)
• Representation: Counsel; D A McLure (Applicant); Hicksons Lawyers (Solicitors for the Applicant); Niger Delta Lawyers and Maritime Services (Solicitors for the Respondent)
• File Number(s): 092020 and 102005

REasons for decision

APPLICATION FOR ORIGINAL DECISION

1 On 31 July 2009 the Council of the New South Wales Bar Association ("the Council") filed in the Tribunal an application for original decision (092020) which sought findings that Ignatius Nwafor Asuzu ("the Barrister") had been guilty of professional misconduct or unsatisfactory professional conduct or both. The application sought consequential orders and contained three grounds. In brief the first ground related to the failure of the Barrister to supply a Statutory Declaration after being requested to do so. The second ground related to engaging in legal practice without holding a current certificate on 3 July 2007. The third alleged failure to comply with Section 660(1) of the Legal Profession Act 2004.

2 The application for original decision contained particulars under each ground. The Barrister filed a reply to an application amended on 28 February 2011 alleging that the application was vexatious and oppressive and generally denying the allegations.

3 On 23 March 2010 the Council filed a further application for original decision (102005). That application sought findings that the Barrister had engaged in professional misconduct in respect to grounds 1 and 3 and unsatisfactory professional conduct with respect of grounds 1 to 4. The Barrister filed a reply to that application on 3 August 2010.

4 On 15 December 2010 the Council filed an amended application which added a fifth ground.

5 In short the amended application alleged that the Barrister's conduct in the hearing before Windeyer J (ground 1) amounted to professional misconduct or unsatisfactory conduct because it did not reach or maintain a reasonable standard of competence and diligence. Particulars were provided.

6 Ground 2 made similar allegations concerning the Barrister's written and oral submissions made in proceedings in the Federal Court of Australia before Collier J. Again particulars were supplied.

7 Ground 3 alleged that the Barrister in written submissions had made allegations of misconduct against a Ms Boast when the Barrister did not have reasonable grounds for believing the factual material available to him provided a proper basis for the making of those allegations. Again particulars were provided.

8 Ground 4 alleged that the Barrister's written and oral submissions to the Full Court of the Federal Court of Australia fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner. Again particulars were provided.

9 Ground 5 is a catch all ground which alleges that the Barrister's conduct in grounds 1 to 4 involve a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence and amounts to professional misconduct within the meaning of Section 497(1)(a) of the Legal Profession Act , 2004.

10 The Barrister filed a reply to that application on 28 February 2011 claiming that it was vexatious, oppressive and discriminatory and generally explaining and denying the allegations contained therein.

11 After a number of directions hearings the matter was listed for hearing for 5 days commencing 9 May 2011. At a hearing on 2 March 2011 the following directions were made:

"1. Respondent to file and serve application to strike out and any further affidavit material in support within 14 days of today's date.

2. Leave granted to Applicant to file and serve further affidavit in reply within 7 days.

3. Parties have leave to relist by contacting Associate".

The present strike out application

12 On the first day of the hearing the Barrister moved on the application to strike out which had been received at the Tribunal on 16 March 2011.

13 The application sought orders pursuant to the Uniform Procedure Rules that part or all of both applications be struck out and the proceedings be dismissed.

14 The grounds for the order were said to be as follows:

"1. The application was misconceived and discloses no reasonable cause of action.

2. The application was vexatious, discriminatory and oppressive thereby constitute an abuse of process.

3. The application constitute a collateral attack on the Respondent right to practice his profession and thereby constitute an abuse of process of the Tribunal.

4. The commencement or continuation of proceedings was in wilful disregard of known facts or clearly established Rules.

5. The commencement or continuation of proceedings was for an ulterior motive.

6. The failure to allow full discovery of documents held by the Applicant and the failure until after the Tribunal had set the hearing dates, and without explanation, to discover documents from Suncorp the timely discovery of which would have considerably shortened, and very possibly avoided part or the whole of the application.

7. The conduct of the applicant causes loss of time to the Tribunal and to the Respondent.

8. The applicant application have the tendency to cause prejudice to the Respondent".

15 The application was supported by the following affidavits:

1. Affidavit Mona Moutrage affirmed on 24 February 2011.

2. Affidavit Ignatius Nwafor Asuzu sworn on 16 March 2011.

3. Affidavit Ignatius Nwafor Asuzu sworn on 28 February 2011.

16 The strike out application did not refer to a provision of the Administrative Decisions Tribunal Act on which it was said to be based but it was common ground that the applicable section was Section 73(5)(g)(ii). That Section provides:

"The Tribunal ...

(g) May dismiss at any stage any proceedings before it in any of the following circumstances:

(ii) If the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking substance".

17 There was no objection taken to any part of the affidavits in support and no deponent was required for cross examination.

18 It was accepted by the parties that the Tribunal had the power to make such a determination. No authorities were referred to suggest what test should be applied in determining whether or not the order should be made. We intend to follow the reasoning of this Tribunal in Council of New South Wales Bar Association v Archer (No. 2) (2004) NSWADT 98.

19 The Barrister argued that because the Council had not filed a reply to the strike out application and had not filed any evidence they should be taken not to be opposing the application. The Barrister referred the Tribunal to the orders made in March 2011 and submitted that the Council had, without explanation to the Tribunal or the Barrister, failed to comply with those orders.

20 On behalf of the Council it was submitted that the orders merely gave them the option of filing evidence should they choose to do so and that the rules did not require them to file a reply to such an application.

21 Mr McLure submitted that the applications and the grounds contained therein did disclose facts which if proven could support a finding of professional misconduct and/or unsatisfactory professional conduct and were therefore not oppressive. It was submitted that the purpose of such proceedings was to protect the public and it was incorrect to categorise them as a collateral attack on the barrister's right to practice.

22 With respect to Ground 4 it was said there was no basis disclosed in the evidence or submissions in support of the application to indicate which facts or rules had been disregarded.

23 With respect to paragraph 5 it was submitted that no such ulterior motive had been identified in the evidence or the submissions.

24 With respect to Ground 6 it was submitted that Suncorp had produced its records which had been made available to both parties. With respect to paragraph 7 and 8 the Tribunal was again referred to the protective nature of this jurisdiction.

25 Submissions in reply by the barrister focused mainly on matter No.092020 and the Tribunal was referred in more detail to the affidavit of the barrister received at the Tribunal on 16 March 2011. In particular the Tribunal's attention was drawn to the fact that the insurance certificate when issued stated it covered the period 30 June 2007 to 30 June 2008. The parties agreed that a practising certificate had issued on 4 July 2007 and the Suncorp Insurance document had issued on 5 July 2007.

26 The affidavit also contained an extract from a professional conduct committee draft report dated 19 June 2008 which suggest that that committee thought there was insufficient evidence to recommend the matter be proceeded with.

CONCLUSION

27 When dealing with such an application the relevant test would appear to be whether taking the allegations in the various grounds at their highest they could amount to either professional misconduct or unsatisfactory professional conduct.

28 Section 496 of the Act defines unsatisfactory professional conduct as follows:

"Includes conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner."

29 Section 497 defines professional misconduct for the purposes of the Act as including:

"(a) Unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence, and

(b) Conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.

(2) For finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1) regard may be had to the matters that would be considered under sections 25 or 42 if the practitioner were an applicant for admission to the legal profession under this act or for a grant or renewal of a local practising certificate or any other relevant matters".

30 Section 498 defines conduct which is capable of being unsatisfactory professional conduct or professional misconduct as follows:

(1) Without limited Sections 496 or 497, the following conduct is capable of being unsatisfactory professional conduct or professional misconduct;

a. Conduct consisting of a contravention of this Act, the regulations or the legal profession rules, ...

f. Conduct consisting of a failure to comply with the requirements of a Notice under this Act or the regulation (other than an information notice)...

(2) Conduct of a person consisting of a contravention referred to in subsection (1)(a) is capable of being unsatisfactory professional conduct or professional misconduct whether or not the person is convicted of an offence in relation to the contravention.

31 No reference was made to either Section 25 or 42 in submissions before the Tribunal.

32 The statutory definitions set out above suggest that the conduct complained of in the various grounds of the applications for final decision may if proven amount to unsatisfactory professional conduct or in some circumstances professional misconduct. Thus we do not think it appropriate to make the orders sought. The question of whether the conduct complained of constitutes either unsatisfactory professional conduct or professional misconduct is a difficult one involving questions of judgment and degree. The grounds alleged in the two applications do not appear to us to be frivolous or vexatious nor could they legitimately be said to be misconceived or lacking in substance. The considerations of the grounds must await a hearing at which the evidence of what occurred, its context and consequences, can be fully examined.

33 Accordingly the application to strike out both applications for original decisions fails and should be dismissed. Costs of that application are reserved.

Decision last updated: 23 August 2011