Administrative Decisions Tribunal New South Wales

• Medium Neutral Citation: Donaghy v Council of the Law Society of New South Wales (No 1) [2012] NSWADT 185
• Hearing dates: 10 February 2012
• Decision date: 02 March 2012
• Jurisdiction: Legal Services Division
• Before: Fairlie D Judicial member

Decision

The Summons to Produce documents dated 20 December 2011, addressed to the Law Society, be set aside

• Catchwords: Non-compellable witnesses to produce documents - procedural fairness - waiver
• Legislation Cited: Legal Profession Act 2004; Legal Profession Act 1987; Administrative Decisions Tribunal Act 1997
• Cases Cited: Attorney General for the Northern Territory v Maurice (1986) 161 CLR 475; Council of the Bar Association of New South Wales v Archer [2008] NSWCA 164; Council of the Bar Association of New South Wales v Archer No 9 [2007] NSW ADT 214; Law Society of New South Wales v Graham [2007] NSW ADT 67; Murray v Legal Services Commissioner [1999] NSWCA 70
• Category: Interlocutory applications
• Parties: Geoffrey James Donaghy - Applicant; Council of the Law Society of New South Wales - Respondent
• Representation: Counsel; Respondent - Ms C Webster; Solicitors; Applicant - In person; Respondent - Mr L Pierotti
• File Number(s): 112029

REASONS FOR DECISION

1 On 1 September 2011, the Professional Conduct Committee, as the delegate of the Council of the Law Society of New South Wales, (the Law Society"), resolved to reprimand Geoffrey James Donaghy (the Solicitor") pursuant to its summary powers under s.540 of the Legal Profession Act 2004 ("the LP Act"). The reasons given by the Law Society for the decision, were that the Solicitor had failed to pay counsel briefed by him and had failed to communicate with counsel in relation to the fees.

2 S.540(5) of the LP Act entitled the Solicitor to apply to this Tribunal to have that decision reviewed. On 26 September 2011, the Solicitor lodged an Application for Review, and the matter was listed for hearing on 10 February 2012.

3 Chapter 5 of the Administrative Decisions Tribunal Act 1997 ("the ADT Act"), sets out the steps to be followed by the parties and the Tribunal in the review process. S.58(1) requires the Law Society to lodge with the Tribunal "a copy of every document that it considers to be relevant to the determination of the application by the Tribunal". The Law Society lodged its bundle of documents in conformity with this section, on 30 October 2011.

4 On 4 November 2011, the Solicitor wrote to the Law Society asserting that the bundle was incomplete. He said that a report from a Law Society officer to the Professional Conduct Committee in relation to the matter, which had been referred to in the correspondence which had been produced, had not been included. He asked for this report to be included in the bundle, as well as any other relevant reports by Law Society officials.

5 On 11 November 2011, the Law Society replied, drawing the Solicitor's attention to s.602 of the LP Act. The letter said that, as a consequence, the Law Society was not compelled to produce such reports and declined to do so. The letter also made the point, that under s.63(1) of the ADT Act, the Tribunal's function when hearing the Review was "to decide what the correct and preferable decision is, having regard to the material then before it" and that it would not be conducting an appeal against the Committee's decision.

6 The Solicitor then made an Application to the Tribunal for a Summons to Produce Documents ("Summons"), to be served on the Law Society. The Summons was issued on 20 December 2011 and made returnable on 17 January 2012. The Summons was in broader terms than the Solicitor's letter of 4 November 2011, and required the Proper Officer of the Law Society to produce the Summons and:

"2. All correspondence, reports, meeting minutes, memoranda, handwritten file notes, typed file notes, files, records and all other documents in relation to the complaint made by Ms Reg Graycar against Mr Geoffrey James Donaghy;

3. Including specifically, but not limited to:-

(a) Copies of all reports to the Professional Conduct Committee prepared by Ms Elizabeth Tomlinson;

(b) Copies of all correspondence between Ms Elizabeth Tomlinson and the Professional Conduct Committee;

(c) Copies of all reports to the Professional Conduct Department prepared by Ms Elizabeth Barnes;

(d) Copies of all correspondence between Ms Elizabeth Barnes and the Professional Conduct Committee."

7 On 12 January 2012, the Law Society wrote to the Solicitor repeating that it had produced all the documents that it intended to in its bundle of documents and that it could not be compelled to produce any further documents. No further documents were produced on 17 January 2012.

8 The Solicitor then wrote to the Tribunal on 27 January 2012 indicating that he wished the Tribunal to rule on this issue before his Application for Review was heard. In accordance with paragraph 16 of the Tribunal's Practice Note No 21, this issue was referred to me for decision. As there were no days available to hear argument on the preliminary issue before 10 February, the hearing date was vacated and the hearing of the preliminary issue was listed in its place on that day. The Solicitor appeared in person, and Ms Webster appeared for the Law Society. Written submissions were also filed by each party prior to the hearing.

THE SUBMISSIONS

9 At the hearing and in his submissions, the Solicitor relied on a number of grounds to support his argument that the documents listed in the Summons be produced. I have grouped these into five separate grounds. These were that:

(1) "general principles of fairness", particularly in disciplinary proceedings of this nature, meant that the documents should be produced;

(2) s.58(4) of the ADT Act, gave the Tribunal the ultimate say as to which documents should be produced by the Law Society;

(3) the Law Society had waived its entitlement to rely on s.602 of the LP Act;

(4) the Law Society could not simply make "a blanket claim for immunity", and had an obligation to identify the reasons why it did not produce each document or class of documents, and it had not done so; and

(5) the Law Society had an obligation to list individually each of the documents which it said it was not compelled to produce and it had not done so.

10 The Law Society maintained its position, relying on the protection afforded by s.602 of the LP Act, as outlined in its earlier correspondence with the Solicitor.

RELEVANT STATUTORY PROVISIONS AND CASE LAW

11 S.602(1) of the LP Act provides that:

(1) A person referred to in section 601 (Protection from liability) is not compellable in legal proceedings (including proceedings before the Tribunal) to give evidence or produce documents in respect of any matter in which the person was involved in the course of the administration of this Chapter.

Sub section (2) specifies four proceedings, such as proceedings before the Independent Commission Against Corruption, where sub section (1) does not apply. None of these are relevant here. S.601(2)(f) includes, within the class of persons entitled to the protection afforded by s.602(1), a member of the Law Society's staff. S.601 and s.602 are located in Chapter IV of the LP Act. This Chapter is headed Complaints and Discipline and deals generally with the handling of complaints against solicitors.

12 S.58(4) of the ADT Act, relevantly provides that:

If the Tribunal or president considers that other particular documents (or that other documents included in a particular class of documents) may be relevant to the determination of the application, it may cause a notice in writing to be served on the administrator ...

(b) directing the administrator concerned to lodge with the Tribunal ......a copy of each of those other documents that is in the possession, or under the control of the administrator.

13 The principal decision in relation to the production of documents in disciplinary proceedings involving legal practitioners, is the Court of Appeal's decision in Council of the New South Wales Bar Association v Archer [2008] NSWCA 164. This was an appeal from a decision of this Tribunal in Council of the New South Wales Bar Association v Archer (No 9) [2007] NSW ADT 214. The relevant statutory provision, the subject of the decision in Archer, was s.171R of the Legal Profession Act 1987, the predecessor of s.602 of the LP Act. This earlier provision was in relevantly identical terms, and the decision in Archer applies equally to the current provision.

14 The Court of Appeal held that considerations of fairness were not of themselves sufficient to restrict the operation s.171R. In so finding, the Court did not follow the reasoning of the Tribunal below in Archer (No 9), which had held that the earlier decision of the Court of Appeal in Murray v The Legal Services Commissioner [1999] NSWCA 70, entitled the Tribunal to compel the decision maker to produce relevant documents.

15 In Archer, Hodgson JA said that the Court's earlier decision in Murray, did not establish that the decision maker in disciplinary matters could be compelled to produce such documents. Instead Murray established only that s.171R did not displace the requirement of procedural fairness. If the production of documents is denied by the decision maker, that could amount to a denial of procedural fairness if adverse findings are made. However there were other remedies available to the Tribunal in such circumstances, other than compelling the production of documents.

16 At paragraph 40, Hodgson JA outlines these other remedies open to the Tribunal, if it found that reliance on s.171R amounted to interference with the just and fair hearing of the proceedings. These include a refusal to admit other evidence, a stay of the proceedings or even a dismissal of the complaint.

DECISION IN RELATION TO SUBMISSIONS 1 AND 2

17 In my view, the decision in Archer determines the first two of the Solicitor's submissions against him. General principles of fairness do not entitle the Tribunal to disregard the provisions of s.602. Furthermore this Tribunal is not able, whether under s 58(4) of the ADT Act or otherwise, to override the Law Society's entitlement to the protection afforded to it under s.602 of the LP Act, and to direct it to produce documents of the kind sought by the Solicitor in the Summons.

18 Archer also makes it equally clear that the decision maker must ensure, when relying on s.602, that it does not deny the other party procedural fairness. If it does, then it runs the risk that the Tribunal may reject other evidence tendered by the decision maker, or find against it in the subsequent review hearing, but it cannot compel the decision maker to produce the documents.

19 However, in my view, in this case it will be difficult for the Solicitor to argue that he has been denied procedural fairness, as a consequence of not being permitted access to the documents that he has requested in his Summons. This is because, unlike in Archer and Murray, which were, as Ms Webster described them, proceedings where the Tribunal was exercising its "original" jurisdiction, the Tribunal here is exercising its review jurisdiction. The hearing will not be an appeal against the findings of the Law Society in relation to the Solicitor, where it could perhaps more easily be argued that the Solicitor might be disadvantaged by not seeing the Law Society's reports.

20 Rather, the hearing, under s.63(1) of the ADT Act, will be conducted on the basis of the material then before it. In other words, either party may put new material before the Tribunal, and not put into evidence material that had previously been taken into account.

21 For example, the Solicitor indicated that he may wish to contest the accuracy of certain file notes of telephone conversations between him and a Law Society officer, prepared by that officer and which had been included in the Law Society's bundle of documents. The review process will give him the opportunity to put forward his own version of these conversations, or put forward evidence of other conversations, if he wishes to.

22 The Solicitor also complained in his submissions, about the reference to the Tribunal's decision in Law Society of New South Wales v Graham 2007 NSW ADT 67, being included in the letter to him from the Law Society dated 2 September 2011 which informed him of the outcome of the complaint by the Professional Conduct Committee. He said that that facts in that case bore no similarity to the facts giving rise to the complaint against him. If that is so, them he will have ample opportunity in the forthcoming review, to make this submission and to argue that the reference by the Law Society to the decision in Graham was misconceived. It is difficult to see how this issue, or the one referred to in the previous paragraph, could give rise to any procedural unfairness against him.

23 In his submissions, the Solicitor also suggested at one point that the proceedings would be, in effect, an appeal, and that the Law Society had been treating them as such. In this regard I note that the first letter in the Law Society's bundle of documents, being the letter to the Solicitor dated 2 September 2011, which informed him of the Professional Conduct Committee's decision, stated that he may "appeal" to the Tribunal, the decision to reprimand him. This statement and the reference immediately thereafter in that letter to s.540(5) of the LP Act as entitling the Solicitor to appeal, is obviously not correct.

24 However it is clear from the Law Society's submissions that it now regards the forthcoming hearing as a review and not an appeal. In any event, whatever the parties believe to be the case, the Tribunal will be conducting the proceedings as a review.

DECISION IN RELATION TO SUBMISSION 3

25 The Solicitor's next submission was the Law Society had waived its entitlement to rely on s.602 of the LP Act. The bundle of documents produced by the Law Society on 30 October 2011, included handwritten notes prepared by Ms Elizabeth Barnes, an officer of the Law Society's Professional Conduct Department, recording telephone conversations between her and the Solicitor. These were the same file notes to which I referred above in relation to the issue of procedural unfairness. The inclusion of these notes, according to this submission, amounted to a waiver by the Law Society, not only of other documents or reports prepared by Ms Barnes, but of all the other documents requested by the Solicitor in the Summons.

26 The Tribunal, in Archer (No 9), had found that the protection in s.171R was a privilege, akin to legal professional privilege, which could be waived in some circumstances. The Tribunal had found support for this conclusion from comments in Murray in relation to the earlier High Court decision in Attorney General (Northern Territory) v Maurice (1986) 161 CLR 475, where the Court had considered whether common law legal professional privilege could be waived. The issue was whether by including certain documents in a claim book in support of an aboriginal land claim, legal professional privilege had been lost in relation to the source documents. The High Court found that it had not been waived.

27 However, in the Court of Appeal's decision in Archer, both Hodgson JA and Campbell JA held that waiver by conduct, of the kind under consideration in Maurice, did not apply to s.171R. The Court held that the only circumstances in which a person within the protection under s.171R could be said to have been waived that protection, was where the person voluntarily gave evidence or produced documents.

28 Mr Donaghy in his submission on this point referred me specifically to paragraph 44 in the decision of Hodgson JA in Archer. This says:

There may however be narrower circumstances in which a person becomes subject to compulsion: for example, if such a person gives evidence in chief, and then refuses to answer questions in cross-examination on that evidence. It could be said that, in such a case, the person has voluntarily given evidence, so is not protected from compulsion to give this evidence properly. It is not necessary here to explore the limits of this possibility.

29 I do not take that paragraph as imputing a broader test for determining when protection under s.171R could be waived. Hodgson JA was considering only the full range of possibilities that may occur when a person has elected to give evidence. He was not, in my view, suggesting that documents could be compellable in the circumstances which that have arisen in these proceedings, that is, simply by the Law Society including some non compellable documents in its bundle of documents lodged pursuant to s.58(1) of the ADT Act.

30 It follows that I cannot accept that by producing some of Ms Barnes' handwritten notes, the Law Society has waived its entitlement to produce other documents prepared by Ms Barnes, let alone all documents prepared by other Law Society officers in connection with the matter.

DECISION IN RELATION TO SUBMISSION 4

31 The Solicitor's next submission was that the Law Society had failed to provide reasons to support its claim that it not be compelled to produce the documents sought in the Summons. Again I do not see that there is any provision or qualification in s.602 of the LP Act which obliges the decision maker to provide reasons when seeking the protection afforded by the section.

32 A situation may arise where there is an issue as to whether a document, or class of documents sought to be produced in a Summons, falls within the protection afforded by s.602. In other words, there is a threshold question whether a document is related to a matter in which the Law Society officer was involved in the course of a complaints and disciplinary matter under Chapter IV of the LP Act. In that event, I accept that it may be appropriate for the Tribunal to require the Law Society to provide reasons justifying why particular documents come within the terms of s.602.

33 That issue does not arise in these proceedings. The Summons seeks only documents in the Law Society's possession "in relation to the complaint" against the Solicitor. These documents must come within the range of documents protected by s.602. As a consequence, I do not believe that reasons are appropriate or necessary in this case.

DECISION IN RELATION TO SUBMISSION 5

34 The Solicitor's final submission was that the Law Society should have itemised the documents which it says it is not compelled to produce in answer to the Summons. Again if there were an issue about whether particular documents were covered by s.602, it may have been appropriate for the Tribunal to require the Law Society to prepare a list of these documents as well as to require it to give reasons. But as I have said, I do not believe this to be the case here, and no prior direction had been given by the Tribunal in this case to prepare such a list.

ORDERS

35 It follows that I have not accepted any of the Solicitor's arguments as to why the Law Society should be obliged to produce the documents covered by the Summons. My decision therefore is that the Summons to produce documents dated 20 December 2011 and addressed to the Law Society in these proceedings, is set aside. I reserve the costs of this application.

36 I also propose to relist the proceedings for directions at 9 30 am on Wednesday 14 March 2012, to fix a new date for the hearing of the Solicitor's Application for Review.

 

Decision last updated: 10 September 2012