PQ (a pseudonym) v The Law Society of New South Wales

By summons filed on 24 December 2020, PQ (the plaintiff) commenced proceedings against The Law Society of New South Wales (the first defendant) and the College of Law Limited (the second defendant). Among the orders sought was an order that the first defendant issue the plaintiff “with a sole practitioner practising certificate forthwith.” The summons was not served on the defendants until 10 February 2021.

At the first directions hearing, which was conducted remotely on 18 February 2021, the Registrar made directions which included a direction that the plaintiff file an amended summons by 18 February 2021 (he having indicated that he proposed to do so). The Registrar set down for hearing the plaintiff’s notice of motion filed on 7 January 2021 (which was not served until 10 February 2021) and the plaintiff’s claim for interim relief which was to be contained in an amended summons to be filed on 18 February 2021.

Notwithstanding the directions made by the Registrar, the plaintiff did not file the amended summons either on 18 February 2021, or at all. Nonetheless, the plaintiff contended that this Court should determine his claim for a practising certificate, since this prayer was included in the summons as filed. I rejected this contention and indicated that I would give reasons for that decision.

At the hearing on 11 March 2021, I also determined the three notices of motion that were before the Court, after having consulted with counsel as to whether they wished me to do so (the Registrar’s orders having contemplated only that the motion filed on 7 January 2021 would be determined).

Before turning to the notices of motion, it is necessary to summarise the background to the dispute as well as the procedural history to the matter.

The following summary of the background is substantially derived from the affidavit of Anthony Lean affirmed 10 March 2021, which was read by the first defendant and to which no objection was taken. Mr Lean is the Director, Legal Regulation, of the first defendant.

The plaintiff was admitted to legal practice in New South Wales on 4 July 1986. He practised as an employed solicitor for various firms from 24 April 1989. Most recently, he practised as an employed solicitor at Forward Legal Pty Ltd. His current practising certificate, which was issued by the first defendant on 8 July 2020, entitles him to engage, relevantly, in legal practice as an employee of a law practice.

Condition 3 of the plaintiff’s current practising certificate provides:

On 10 November 2020, the first defendant received the plaintiff’s application for a variation of his practising certificate to enable him to practise as a principal of a law practice.

On 11 November 2020, the first defendant wrote to the plaintiff to acknowledge receipt of his application. The first defendant also referred to the judgment of this Court which, on 20 February 2020, determined the plaintiff’s claim under the Succession Act 2006 (NSW) for provision to be made out of the estate of his late mother (the Succession Judgment). The defendant to those proceedings was the plaintiff’s sister, who was one of the executor’s named in their mother’s will. The first defendant’s letter said in part:

When the first defendant received no response to its letter of 11 November 2020, a further letter, dated 9 December 2020, was sent, to which there was also no response. The lack of response prompted the first defendant, on 18 December 2020, to issue a notice to the plaintiff pursuant to s 95 of the Legal Profession Uniform Law (NSW) (the Uniform Law) requiring the plaintiff to provide a medical report from his treating specialist, confirming that in his or her opinion he was able to satisfactorily carry out the inherent requirements of legal practice as a principal of a law practice. The notice required the report to be provided by 5pm on Monday 1 February 2021.

As referred to above, on 24 December 2020, the plaintiff commenced the proceedings by filing a summons, which was not served until 10 February 2021.

On 7 January 2021, the plaintiff filed a notice of motion, seeking the following orders:

The plaintiff did not serve the notice of motion until about the time when he had served the summons. The plaintiff also served an (unfiled) amended summons dated 7 January 2021. The service of this document was not effected until about 10 February 2021. The draft amended summons dated 7 January 2021 has never been filed and can, accordingly, be disregarded.

On 18 January 2021, the first defendant issued a further notice pursuant to s 95 of the Uniform Law requiring the plaintiff to be medically examined by Dr Anthony Samuels, Consultant Psychiatrist on 20 January 2021 at 9am. Shortly after having received the notice by email, the plaintiff confirmed that he would attend the examination.

The first defendant’s letter of instructions to Dr Samuels included a copy of the Succession Judgment. The first defendant directed Dr Samuels’ attention to various passages in the judgment in which the Court had recorded the plaintiff’s evidence and submissions concerning his “mental illness” and “mental health issues”.

On 20 January 2021, the plaintiff was examined by Dr Samuels.

On 25 January 2021, the plaintiff sent an email to the first defendant in which he enquired as to when he might expect a decision to be made on his application which had been lodged on 10 November 2020. He also enquired whether he would be given a copy of Dr Samuels’ report. He did not refer to the proceedings he had commenced on 24 December 2020. The plaintiff referred to the Succession Judgment and said this Court had found that he could work as a solicitor and manage his financial affairs.

On 27 January 2021, the first defendant wrote to the plaintiff and said that it expected Dr Samuels’ report within three weeks of the examination.

On the same day, 27 January 2021, the plaintiff responded in an email which was critical of the first defendant. The letter concluded by foreshadowing legal action against the first defendant. Once again, there was no mention of the proceedings which had been filed.

On 8 February 2021, the plaintiff wrote to the first defendant and requested a copy of Dr Samuels’ report. On 9 February 2021, the first defendant responded by confirming that the plaintiff would receive a copy of the report as soon as the first defendant received it. The plaintiff responded by email that day foreshadowing that he would be seeking “an interim injunction and damages.”

On 10 February 2021, the first defendant received Dr Samuels’ report, which was dated 20 January 2021, presumably to coincide with the date of the examination. In a detailed report of 11 pages, Dr Samuels expressed the opinion that the plaintiff would not have the capacity to satisfactorily carry out the inherent requirements of legal practice as a principal of a law practice/sole practitioner. Dr Samuels also recommended that conditions be placed on the plaintiff’s existing practising certificate.

The plaintiff served the summons on the defendants on or about 10 February 2021.

The first defendant filed a notice of appearance on 15 February 2021. The second defendant filed a notice of appearance on 16 February 2021.

On 15 February 2021, the plaintiff filed written submissions to which were annexed a draft amended summons. Prayer 2 of the draft amended summons (which has not been filed) sought the following relief:

By letter dated 17 February 2021, the first defendant wrote to the plaintiff concerning the opinions expressed in Dr Samuels’ report. The letter concluded:

On 22 February 2021, the first defendant wrote to the plaintiff reminding him of the directions made by the Registrar on 18 February 2021 and enquiring as to whether the plaintiff intended to file an amended summons. The plaintiff did not respond to that letter.

On 26 February 2021, the plaintiff filed and served an affidavit of Dr Paul Friend, a psychiatrist, sworn on 26 February 2021. On the same day the plaintiff served the first defendant with a notice to produce for inspection of “all personal information of [the plaintiff] as defined in the Privacy Act 1988 (Cth)” within seven days. This period was subsequently extended to allow production on 12 March 2021.

On 1 March 2021, the plaintiff filed a notice of motion seeking orders pursuant to the Courts Suppression and Non-publication Orders Act 2010 (NSW) in relation to his identity.

On 18 February 2021, the summons was returnable before the Registrar. The plaintiff, who appeared on his own behalf, sought that the summons be referred to the Duty Judge for hearing on the basis that he was suffering severe financial hardship as he was being prevented from earning his living as a solicitor. Mr Entwisle, who appeared on behalf of the first defendant, sought an order that the summons be stood over to a date after 18 March 2021, being the date on which the first defendant was to consider the plaintiff’s application for a variation. Ms Delaney, who appeared for the second defendant, concurred with the proposal put by the first defendant.

Mr Entwisle also referred the Registrar to the plaintiff’s written submissions which had been filed on 15 February 2021, to which a draft amended summons was annexed.

The plaintiff opposed any adjournment of the matter. He contended that there had already been a constructive refusal of his application to vary his practising certificate and submitted that the Duty Judge had power to issue a practising certificate to him that day, including on an interlocutory basis. Mr Entwisle responded by pointing out that the summons which had been filed contained no application for interim orders and that the first defendant needed “greater clarity” on what orders were sought on an interim basis.

In the course of the directions hearing, the Registrar clarified the document on which the plaintiff would move for that relief. The plaintiff indicated that he proposed to amend the summons but that the amended document would not be the one attached to his submissions filed on 15 February 2021. The Registrar directed the plaintiff to file an amended summons by 18 February 2021 (the plaintiff having indicated that he would be in a position to file the document that day). It was on this basis that the Registrar listed the matter for hearing before the Duty Judge on 11 March 2021. The matters to be heard on that day comprised the plaintiff’s notice of motion for expedition and the plaintiff’s claim for urgent interim relief, which was to be claimed in an amended summons to be filed on 18 February 2021.

The JusticeLink entry for the hearing of the matter recorded as follows:

It is not clear what the reference to prayer for relief 2 relates to as the form of the amended summons which the plaintiff proposed to file was not known when the direction was made. Accordingly, the Registrar cannot have known which prayer would include the application for interim relief which she intended to list for hearing on 11 March 2021. Whatever infelicities of wording accompany this entry became immaterial when the plaintiff failed to file an amended summons either on 18 February 2021 (as required by the Registrar’s directions of that date) or at all.

The defendants sought to have the matter listed before me for directions on Friday 5 March 2021 to clarify what would be heard on 11 March 2021, in light of the fact that no amended summons had been filed. My Associate endeavoured to obtain the parties’ consent to that course but, as the date was not convenient to the plaintiff, the directions hearing could not proceed on 5 March 2021 and the tentative listing was vacated.

On 11 March 2021, the plaintiff sought to have his claim for final relief in prayer 2 of his summons filed on 24 December 2020 heard. Prayer 2 sought the following relief:

The defendants opposed the hearing of that application on the basis that the plaintiff had not complied with the directions of the Registrar that he file an amended summons by 18 February 2021 and that, accordingly, the defendants ought not to have to face the application without adequate notice. In the course of the hearing, I indicated that I would not hear the plaintiff’s application for the order in prayer 2 of the (unfiled) amended summons (which is in similar form to prayer 5 of the summons which was filed). I informed the parties that I would provide reasons for my refusal. What follow are my reasons.

Procedural fairness, which is a fundamental aspect of court proceedings, requires that parties be given adequate notice of the case they have to meet and the basis on which a claim for relief is brought. It also requires that parties be given adequate notice of when a particular application against them will be heard by the Court so that they can prepare for it and file evidence and submissions in a timely way. It is for this purpose that Registrars and Judges make directions for matters to be listed and for documents to be filed and served by particular dates.

As is apparent from the summary of the directions hearing on 18 February 2021, the Registrar and the defendants were given to understand by the plaintiff that he would seek interim relief and expedition at the hearing on 11 March 2021. The precise nature of the interim relief was to be the subject of an amended summons which was to be filed on 18 February 2021. The shortness of the time allowed was a consequence of the plaintiff insisting that he needed an early final hearing and of the Registrar’s concern that a matter ought not be listed urgently before the Duty Judge unless the relief claimed was identified in sufficient time for the parties to prepare for the hearing. The plaintiff’s failure to file an amended summons had the effect that the defendants were not, and could not have been expected to be, in a position to meet a substantive application for (unspecified) interim relief (much less an application for final relief) on 11 March 2021. The only explanation given by the plaintiff for his failure appears in the transcript of 11 March 2021 when the plaintiff responded to my question about his failure by saying:

Further, the plaintiff confirmed at the hearing on 11 March 2021 that he had never sought an interim injunction and that his only application was for final relief. It is apparent from the transcript of the directions hearing before the Registrar on 18 February 2021 that she was under the impression that the plaintiff’s claim for “urgent relief” was a claim for interim relief and that this was the basis on which the matter was given a hearing date of 11 March 2021.

For this Court to hear the application without proper notice having been given to the defendants would have compromised the defendants’ right to procedural fairness. Accordingly, I refused to hear the plaintiff’s application for an order that the first defendant issue him with a practising certificate. Having regard to the limited basis on which I refused to hear the application, it is neither necessary nor appropriate to consider whether, and in what circumstances, the relief claimed in the summons could be granted.

The relief sought in the notice of motion is set out above. The plaintiff argued that it was necessary for me to make an order under the Jurisdiction of Courts (Cross Vesting) Act 1987 (Cth) and r 44 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) to vest this Court with jurisdiction under the Privacy Act 1988 (Cth). He relied on (unspecified) rights under the Privacy Act to obtain personal information in the possession of the first defendant.

Ms Wong SC, who appeared with Mr Entwisle for the first defendant, confirmed that, on 26 February 2021, the first defendant had been served with a notice which sought production of all personal information relating to the plaintiff which was in the possession of the first defendant. Ms Wong confirmed that, by agreement, the time for production had been extended until 12 March 2021 (the day after the hearing). She submitted that, in these circumstances, there was no need for the plaintiff to exercise his rights under the Privacy Act and, accordingly, his claim in prayer 2 of the notice of motion filed on 7 January 2021 was otiose.

The plaintiff’s claim for an order as sought in the notice of motion filed on 7 January 2021 would appear to be hypothetical at this stage as he is, according to Ms Wong, about to receive all the documents he seeks in any event from the first defendant. Accordingly, there is much to be said for the argument that the order sought ought not be made because it is, or is likely to be, unnecessary.

However, there is a further reason why an order of this Court is unnecessary. Section 4(1)(c) of the Jurisdiction of Courts (Cross-vesting) Act is effective to confer jurisdiction under the Privacy Act on this Court. No order of this Court is required. If any party wished to apply to transfer the matter to the Federal Court, the question of forum would arise but all parties confirmed that they did not seek such an order for transfer. In any event, it would appear that, as the proceedings concern the plaintiff’s right to practise, this Court would be a more suitable forum as he seeks a practising certificate from the first defendant. In these circumstances, I refuse the plaintiff’s prayer for relief in paragraph 2 of the notice of motion.

In prayer 1 of the notice of motion, the plaintiff seeks that the matter be expedited. The plaintiff contended that the proceedings concern his right to practise and, accordingly, affect his livelihood and ought to be expedited. No party opposes an order for expedition.

I accept that the subject matter of the proceedings is such as to warrant expedition. However, there are other considerations which bear on the priority which this matter ought be accorded. The plaintiff has chosen to commence proceedings and maintain a position (as to which, see below) which has the effect that the first defendant cannot consider his application for a variation of the conditions on his practising certificate to permit him to practise as a sole practitioner. Thus, the first defendant, which intended to consider the plaintiff’s application at its meeting on 18 March 2021, can no longer do so but must await the decision of this Court on the question of whether it has constructively refused the application. Further, as set out above, the Registrar acceded to the plaintiff’s request that the matter be set down on an urgent basis on 11 March 2021 and yet the plaintiff failed to file an amended summons on 18 February 2021 which was the basis on which the matter was listed urgently.

In these circumstances, I am not satisfied that it is appropriate to order expedition, notwithstanding the parties’ consensus that the proceedings be expedited. The listing procedures of this Court are to be conducted fairly and the resources of this Court applied by reference to the relative priority of the cases which come before it and the diligence of the parties in preparing their cases for hearing. The plaintiff has not persuaded me that the present proceeding ought be expedited, although it may be that the nature of future applications will warrant the allocation of an early hearing date.

At the hearing on 11 March 2021, I was persuaded that it was appropriate to make a pseudonym order, anonymising the plaintiff’s name. I gave reasons ex tempore for the orders made. The reasons I gave were as follows.

By notice of motion filed on 10 March 2021, the first defendant seeks the following order:

Notwithstanding the shortness of time between the filing of the notice of motion and the hearing on 11 March 2021, the plaintiff confirmed that he was ready to contest it on that day.

The issue raised by the notice of motion requires consideration of applicable statutory provisions.

Section 100 of the Uniform Law provides:

By reason of s 11 of the Legal Profession Uniform Law Application Act 2014 (NSW), this Court is the designated tribunal for the purposes of the review of decisions under s 100. By reason of s 100(6), this Court undertakes a hearing de novo on the merits (consistently with what this Court held with respect to earlier legislation in Veghelyi v Council of the Law Society of New South Wales (1989) 17 NSWLR 669 at 674-675 (Smart J)).

Section 464 of the Uniform Law relevantly provides:

Rule 111 of the Legal Profession Uniform General Rules 2015 (NSW) provides that, for the purposes of s 464 of the Uniform Law, the specified period is 90 days.

The plaintiff contended as follows:

Ms Wong submitted that the plaintiff’s construction of s 100 is incorrect and that s 100 (and therefore s 464) did not apply to a decision to refuse to vary the conditions of a practising certificate. She relied on the use of the word “refuse” in s 100(1)(a) and its absence in s 100(1)(b) in support of the contention that, while the decision to vary a practising certificate was reviewable under s 464, the decision to refuse to vary a practising certificate was not.

Ms Wong submitted further that, since the plaintiff contended that the first defendant had already constructively refused his application and had sought review of that decision by this Court, the first defendant did not propose to consider his application on its merits unless and until the legal question (whether ss 100 and 464 apply) was determined by this Court. She argued that it was in the interests of justice, and would tend to facilitate the resolution of the real issues in dispute, for the question of statutory construction to be determined as a preliminary question.

Ms Wong contended that if the question of statutory construction were not determined first, the parties would have to proceed to a full hearing on the merits, in the event that the Court ultimately held that the first defendant had constructively refused the application. The time and costs of such preparation would be entirely wasted if the Court held that s 100 did not apply to the present case and that, accordingly, the first defendant had not made a decision (as distinct from being taken to have refused the application). Further, Ms Wong argued that this Court would have no basis for granting any relief under s 69 of the Supreme Court Act 1970 (NSW) because there would be no decision and therefore nothing to review and no failure to make a decision since the first defendant was entitled to refrain from making a decision until the question of statutory construction was determined.

After hearing from Ms Wong, I asked the plaintiff whether he continued to maintain that the first defendant had constructively refused his application. I further noted that the effect of his argument would be, so far as the first defendant was concerned, that it would not consider his application at its meeting on 18 March 2021. The plaintiff confirmed that he continued to press his submission that the first defendant had constructively refused his application and that he was entitled to a review of that constructive refusal in this Court pursuant to s 464 of the Uniform Law.

In these circumstances, I am persuaded, for the reasons given by Ms Wong in her submissions summarised above that it is appropriate for the question identified in prayer 1 of the first defendant’s notice of motion filed on 10 March 2021 to be determined separately from any other question in the proceedings and before any further trial of the proceedings. This course will obviate the need for the parties to spend time and costs preparing for a review hearing which might turn out to be wasted if the construction for which the first defendant contends is accepted. Further, the hearing of the separate question will take, in my view, no more than a day and therefore can be allocated a hearing date sooner than a hearing on all issues.

As I did not hear from the parties on the question of costs, I propose to reserve costs.

I made the following orders on 11 March 2021:

For the reasons given above, I make the following orders: