MN Legal and Management Consultants Pty Ltd v The Council of the Law Society of New South Wales; Michail v The Council of the Law Society of New South Wales

1. [1]

   On 18 July 2017, the Legal Services Commissioner (“the Commissioner”) initiated a complaint against the solicitor, Nancy Michail, who is the plaintiff in proceedings 2018/46860 & 2018/85144. I shall refer to her as “the Solicitor”. The complaint arose as a result of a letter sent to the LSC by the Associate to Judge Gibson of the District Court of New South Wales.

2. [2]

   The Complaint set out 22 allegations regarding the Solicitor's conduct, which can be summarised as follows:

3. [3]

   The Complaint stated that the alleged conduct, if substantiated, was capable of amounting to professional misconduct, because:

4. [4]

   On 6 September 2017, the Commissioner wrote to the Solicitor informing her of the initiation of the Complaint and advising her that it was investigating the Complaint as a disciplinary matter pursuant to ss 270 and 282 of the Legal Profession Uniform Law (NSW). The letter requested a full and detailed response to each allegation including any relevant supporting documentation. In addition to any submission that the Solicitor wished to make, the Commissioner asked that she address a series of specific questions listed in the letter.

5. [5]

   The Solicitor telephoned the Commissioner on 12 and 13 September 2017 and queried whether the Uniform Law was applicable to her conduct in light of the fact that she appeared in the District Court and Court of Appeal as a litigant in person and not a solicitor representing a litigant. By a letter dated 13 September 2017, the Commissioner informed the Solicitor that Chapter 5 of the Uniform Law applied to her conduct, whether occurring in connection with, or otherwise than in connection with, the practice of law, under s 297(1)(b) of the Uniform Law.

6. [6]

   On 7 October 2017, the Solicitor submitted a number of documents to the Commissioner in response to the Complaint. These documents included a report dated 28 September 2017 from her treating psychiatrist, Dr Vladimir Sazhin, which relevantly stated:

7. [7]

   The Solicitor also submitted a letter from Dr Sazhin dated 28 April 2016, that relevantly stated:

8. [8]

   In response to the Complaint, the Solicitor in her letter of 7 October 2017 also relied upon a document entitled "Request for justice based on brief summary of evidence to factual bases that extended of (sic) the period of approximately two (2) years". The document commenced by saying that the Solicitor was seeking justice from the Christian Democratic Party, and the covering letter to the Commissioner’s office said that the document was sent to that Party on 7 March 2017.

9. [9]

   In that document containing, with annexures, more than 200 pages, the Solicitor repeated a number of allegations that she had previously made in relation to the NSW District Court, the NSW Court of Appeal and certain politicians, government authorities and legal practitioners, which were the subject of the Complaint. The Solicitor did not make any significant attempt to respond to any of the Commissioner's specific requests for information set out in the Commissioner's letter of 6 September 2017.

Referral to the Law Society

1. [10]

   On 17 November 2017, the Commissioner requested the Law Society to consider taking action to vary, suspend or cancel the Solicitor's practising certificate under s 82 of the Uniform Law. The letter relevantly stated:

2. [11]

   On 18 December 2017, Ms Anne-Marie Foord of the Law Society sent a letter to the Solicitor informing her that she would be asking the Law Society at its next scheduled meeting on 18 January 2017 to consider the immediate suspension of the Solicitor's practising certificate and the appointment of a manager to her practice. In the letter, Ms Foord invited the Solicitor to make such written submissions and provide such material as she may have wished the Law Society to consider.

3. [12]

   On 20 December 2017, the Solicitor sent an email to the Law Society attaching a letter from Dr Sazhin to the Law Society dated 19 December 2017. The letter stated:

4. [13]

   On 18 January 2018, the Law Society made a number of resolutions, including:

5. [14]

   The Law Society sent notices to the Solicitor informing her of these resolutions, and it received responses from the Solicitor to those notices on 23 and 29 January 2018.

6. [15]

   On 6 February 2018, the Law Society sent a notice to the Solicitor under s 95 of the Uniform Law, requiring her to be examined by a medical practitioner. On 19 March 2018, the Law Society withdrew the requirement under s 95, but invited the Solicitor to agree to such a course with the costs of the examination to be met by the Law Society.

7. [16]

   On 15 February 2018, the Law Society resolved pursuant to s 82(1) of the Uniform Law to suspend the Solicitor's practising certificate to 30 June 2018 (the February Resolution). The Law Society's decision was based upon the following grounds:

8. [17]

   In relation to the medical evidence of the Solicitor's fitness to practise, the Law Society made the following observations:

9. [18]

   The Law Society concluded that the Solicitor was medically unfit to continue in practice and that the protection of the public warranted the immediate cessation of the Solicitor's right to practise.

10. [19]

    After notice was given to the Solicitor of the January Resolution she caused her consulting company MN Legal and Management Consultants Pty Ltd to commence proceedings 2018/27265 appealing from the resolution of the Law Society appointing a manager to her practice. That summons has been amended a number of times but the form of the amended summons which came before me for hearing, filed on 3 April 2018, sought that the resolution of the Council of the Law Society to appoint a manager be set aside. The appeal grounds were said to be:

11. [20]

    Since at the time these proceedings were commenced by the Solicitor her practising certificate had been suspended under s 77, rule 7.1 of the Uniform Civil Procedure Rules 2005 (NSW) applied which required her as MN Legal’s director to be joined as a party to the proceedings. She would also need to have a cause of action herself against the Law Society: Tanamerah Estates Pty Ltd as the trustee for Alexander Superannuation Fund v Tibra Capital Pty Ltd [2013] NSWCA 266 at [15]-[16].

12. [21]

    When I pointed out this Rule to the Solicitor at the hearing, she requested that she be joined as a plaintiff to those proceedings. There was no objection to that course by counsel for the Law Society. In circumstances where she was the principal of the firm carrying on the practice through the medium of the company I considered that she would have such a cause of action to challenge the appointment of the manager. Accordingly, I made an order joining the Solicitor as the second plaintiff in those proceedings.

13. [22]

    She subsequently filed in her own name proceedings 2018/46860 challenging that part of the January resolution to suspend her practising certificate and the direction of the Law Society requiring her to be medically examined pursuant to s 95 of the Law. She also claimed lost wages from MN Legal and Management Consultants Pty Ltd. The appeal grounds were said to be that the resolution to suspend her practising certificate was an “illegal and/or irregular resolution, and/or not made in good faith” and that it contravened “rule of law and/or Legalities”. The challenge to the s 95 order was put on the same basis.

14. [23]

    Subsequent to the February Resolution the Solicitor filed a summons in her own name on 16 March 2018 in proceedings 2018/85144 challenging that resolution. The appeal grounds were said to be the same as those challenging the resolution to suspend her practising certificate in the January Resolution.

Submissions

1. [24]

   The Solicitor appeared for herself and also for MN Legal.

2. [25]

   The plaintiffs challenged the January resolution on two bases. First, reliance was placed on the report from Dr Sazhin of 20 December, which was said to be the up-to-date and most recent expert medical report from her treating psychiatrist of three years which certified her as currently medically fit to perform her professional duties. The report was said to be addressed to the Law Society and answered the particular question regarding her medical fitness to perform her professional duties.

3. [26]

   The second basis was said to be on public interest grounds. The plaintiffs submitted that the Law Society’s records showed that the incorporated legal practice did not have a trust account whereas the Law Society stated in its resolution that it was “to protect the interests of clients in relation to trust property”. The plaintiffs submitted that the Law Society’s records showed that the incorporated legal practice resumed its professional and operational responsibilities on 3 July 2017, approximately five months prior to the January resolution. The plaintiffs submitted that it was not necessary in the public interest to suspend the certificate immediately and/or to appoint a manager to the incorporated legal practice.

4. [27]

   In relation to the order under s 95, the plaintiffs pointed to the wording of s 95(1)(b) of the Uniform Law which provided that, “in considering” whether or not to suspend a certificate, the Law Society could require the applicant to be medically examined. The plaintiffs submitted that the Law Society did not invoke s 95(1)(b) on or before the January resolution.

5. [28]

   In relation to the February resolution the plaintiffs submitted that, contrary to assertions by the Law Society that the medical reports were inconsistent, Dr Sahzin was drawing a distinction between the Solicitor’s permanent medical inability to participate in the Commissioner’s investigation so as not to require her to relive the trauma of the experience she suffered in the Courts over the period of two years, and being medically fit to perform her professional duties. The plaintiffs submitted that the Court should take judicial notice of the fact that it is not uncommon for victims of traumas and other ordeals to suffer “substantively” subsequent to participating in investigations and/or litigation connected to their trauma, but nevertheless be able to lead normal professional and personal lives.

6. [29]

   The plaintiffs submitted that the Solicitor did not obstruct the external manager, Mr Richard Savage. They explained allegedly obstructive conduct on the basis that it had been necessary for them to request the notice of the appointment pursuant to s 334(7) of the Uniform Law from Mr Savage.

7. [30]

   The Law Society sought to justify the decisions contained in the Resolutions on three bases:

   1. (1)

      the conduct of the Solicitor that is the subject of the allegations in the Complaint (except the 8th allegation which concerned misleading the Court of Appeal);

   2. (2)

      the Solicitor’s mental health issues and inability to assist the Commissioner with his investigation into her conduct;

   3. (3)

      the Solicitor’s conduct in impeding the Manager in carrying out his duties.

Legislative provisions

1. [31]

   The following sections of the Uniform Law are relevant to the circumstances of this case:

2. [32]

   The definition of “regulated property” is contained in s 6 as follows:

3. [33]

   The Supreme Court is the designated tribunal for the purposes of ss 100 and 358: Legal Profession Uniform Law Application Act 2014 (NSW) s 11 Table 2.

The course of the hearing

1. [34]

   The Solicitor sought to read affidavits she had sworn on 25 January 2018, 12 February 2018 and 8 March 2018. She had filed and served a further affidavit of 3 May 2018 but she was adamant that she did not wish that affidavit to be read or considered.

2. [35]

   Despite seeking to read the affidavits, the Solicitor was not prepared to be cross-examined on what was contained in them as the Law Society desired to do. Further, the Law Society took objection to the plaintiffs’ reliance on the medical reports of Dr Sahzin in circumstances where there was non-compliance with the Expert Witness Code and where he had not been made available by the Solicitor for cross-examination.

3. [36]

   In circumstances where the Solicitor was appearing for herself and MN Legal, albeit that she was a solicitor, I considered that the fairest way of proceeding was to receive her three affidavits and deal with them in the light of her refusal to be cross-examined and to produce Dr Sahzin for cross-examination. Counsel for the Law Society indicated that the Law Society neither consented to nor opposed any order made by the Court in relation to whether the Solicitor should be allowed to rely on her affidavits while not subjecting herself to cross-examination.

4. [37]

   The Law Society accepted that the suspension arising from the January resolution had ceased to be operative by reason of s 77(2), the making of the February resolution and the reasoning set out in my judgment in Balzola v Council of the Law Society of New South Wales [2018] NSWSC 849. However, the solicitor challenges the legality of that suspension and claims damages on the basis that it was invalidly and improperly made. It will be necessary to consider that temporary suspension even although it was overtaken by the February Resolution.

5. [38]

   In the proceedings concerning the January Resolution, the Solicitor seeks relief against the Law Society's decision to send the notice to the Solicitor under s 95. As the Law Society has withdrawn the notice, there is no basis upon which this relief would now be granted. It is not suggested that any damage flows to the Solicitor from that decision.

Legal principles

1. [39]

   The appeals by the plaintiffs were appeals under ss 100 and 358 of the Uniform Law. Both those sections contemplate a merits review of the decisions challenged. The grounds put forward in the summonses were the sort of grounds that would considered in administrative law proceedings. I pointed that matter out to the Solicitor and asked her to tell me what in substance her grounds of appeal were, bearing in mind that the appeals were merits reviews. She put forward two grounds. The first was that the Law Society should not have made a decision based on medical grounds when it could not be considered as an expert in that area. Secondly, she said that she did not have a trust account and she did not have any clients. In that way the resolutions leading to her suspension and the appointment of a manager were not based on a valid fear of harm to the public.

2. [40]

   Section 100(7) speaks of the onus of proof in review proceedings in which the question of whether a person is a fit and proper person is at issue. I raised with the parties whether this subsection applied to the present proceedings. At my request the parties lodged further written submissions on the point after the conclusion of the hearing. The Law Society said that in the circumstances of the present proceedings the subsection did not operate. That was particularly because ss 77(1) and 82(1)(d) of the Uniform Law do not in their express terms require the Court to consider if the legal practitioner is a fit and proper person to hold a practising certificate. The plaintiffs’ further written submissions did not address the issue.

3. [41]

   In the light of the Law Society’s approach to the question of onus of proof, it is not necessary to consider the matter further. However, it should not be taken, thereby, that I accept the Law Society’s position. One of the bases on which the Law Society seeks to justify the suspension concerns the Solicitor’s mental health as disclosed in the reports of Dr Sahzin. Her mental health has a bearing on her fitness to practise: S v Legal Practice Board of Western Australia (2004) 29 WAR 173; [2004] WASCA 28; XY v Board of Examiners [2005] VSC 250. Nevertheless, as will become apparent, determination of the present matters do not depend on who has the onus of proof.

4. [42]

   The Legal Profession Act 2004 (NSW) (now repealed) contained two sections that could be considered to be the predecessors of ss 77 and 82 of the Uniform Law. Those sections were s 78 and s 548. They do not reflect precisely what now appear in ss 77 and 82 respectively. Section 548 seemed to be confined to the situation where there was a complaint, and the conduct giving rise to it was considered serious. Section 78 seemed to be confined to the grounds in s 60 and show cause events as defined in s 4, where it was “necessary in the public interest to immediately suspend” a practising certificate.

5. [43]

   Section 548 relevantly provided:

6. [44]

   In Berger v Council of the Law Society of NSW [2013] NSWSC 1080 Beech-Jones J considered s 548(2). His Honour observed at [9] that there appeared to be only two cases that had considered the section. His Honour then went on to say:

7. [45]

   In my opinion, what was said in Berger applies to a consideration under ss 77 and 82 of the Uniform Law. Section 77 refers to a suspension being “necessary in the public interest”. In respect of s 82, where the ground is a recommendation to suspend under s 278, s 278(1)(b) refers to the suspension being “warranted in the public interest”. The Macquarie Dictionary gives as the first meaning of the verb “to warrant”, “to afford, warrant, or sanction for, or justify”. The Shorter Oxford gives as the meaning of “warranted”, “allowed by law or authority, sanctioned”. In my opinion, the test of being warranted is a lesser, although similar, requirement to being “necessary”. It involves the concept of a need without the strict requirement of necessity.

8. [46]

   The February Resolution was made pursuant to s 82(1) and, seemingly, in reliance on paragraph (c) concerning s 278, and paragraph (d). Under s 82(d), a suspension can be imposed if the Law Society reasonably believes that the holder of the practising certificate is unable to fulfil the inherent requirements of an Australian legal practitioner. In a different context, the High Court said of “inherent requirements” in X v Commonwealth of Australia (1999) 200 CLR 177 at [102]:

9. [47]

   I accept the submission of the Law Society that the inherent requirements for a legal practitioner must include the following:

10. [48]

    To those matters there would need to be added, an obligation to obey the law and to comply with court orders.

The grounds for the suspension

1. [49]

   The complaints by the OLSC arose out of proceedings that the Solicitor had commenced in the District Court alleging defamation and breach of contract. The judge in the District Court who heard those proceedings was Judge Gibson.

2. [50]

   On 24 September 2015 Judge Gibson published a second judgment in the proceedings: Michail v Mount Druitt & Area Community Legal Centre (No 2) [2015] NSWDC 214. In that judgment Judge Gibson struck out a number of paragraphs of the Solicitor’s third further amended statement of claim. Order 19 read:

3. [51]

   The Solicitor sought leave to appeal against the order striking out the paragraphs of the statement of claim. The Court of Appeal dismissed the summons on 16 December 2015.

4. [52]

   On 24 December 2015 the Solicitor, in contravention of order 19 of the judgment of 24 September 2015, forwarded an email to a number of Associates in this Court as well as to Judge Gibson’s Associate, and copied the email to the solicitors and the barrister who had appeared for the other party. The email said this:

5. [53]

   Throughout 2016 the Solicitor continued to send a large number of emails to Judge Gibson’s associate, copied to a number of other people, about various matters connected with her proceedings. On 22 October 2016 the solicitor sent an email to the Associate of the Chief Judge of the District Court and to the Chambers of the Chief Justice of this Court. She copied the email to a large number of persons including various Associates, the Registrar of the Court of Appeal, the Chief Executive of the NSW Bar Association and some barristers and solicitors. The email said this:

6. [54]

   The Solicitor forwarded further emails in the same vein, although she widened the number of persons to whom the emails were sent. In one such email she made allegations of corruption against a number of politicians, police, legal practitioners and other persons. I do not intend to set out these emails because it would be unfair to the persons mentioned in them when no evidence whatsoever has been provided to justify the scandalous allegations made in them.

7. [55]

   On 9 February 2017 Judge Gibson handed down a judgment requiring the Solicitor to serve a further amended statement of claim by a certain date. That night, the Solicitor sent an email addressed to the Chief Justice of this Court, to the Registrar of the District Court and to the associate of the Chief Judge of the District Court. The email referred to a directions hearing that morning and the judgment (identified by the solicitor as “dhj”). It made a number of serious and scandalous allegations against Judge Gibson and then went on to say:

8. [56]

   During the course of the Solicitor’s submissions, I enquired of her where the material was to justify the allegations she had made in her various emails. The Solicitor appeared to rely on two matters. The first was that she said she believed the material was substantially true. Secondly, she referred me to pages 161-341 of exhibit AMF2. I endeavoured to obtain greater specificity from her concerning that material. I said that she had an obligation to point out matters in that material to assist me in understanding the basis for the allegations in her emails. She did not direct me to any specific material but said that I should read all of that material.

9. [57]

   The Solicitor’s response to my enquiries was some indication of her inability properly to perform her functions as an advocate in circumstances where she had chosen to appear for herself and her company. Nevertheless, having regard to the fact that she was, in effect, self-represented, although a solicitor, I subsequently read pages 161-341 of exhibit AMF2. As far as I could ascertain, that was the whole of the document sent to the Christian Democratic Party referred to at [8] above. Apart from the fact that some of those pages were illegible in their reproduction, I was not able to find anything in that material that provided any evidentiary basis for her allegations. The material was repetitive and consisted of assertions without evidence.

10. [58]

    In relation to her belief as to the truth of the allegations made, I note what was said by Leveson LJ (as his Lordship then was) in Ellis v The Law Society [2008] EWHC 561:

11. [59]

    In Griffin v The Council of the Law Society of New South Wales [2016] NSWCA 364 Sackville AJA with whom Ward and Gleeson JJA agreed said at [112]:

12. [60]

    In my opinion, the Solicitor has demonstrated no basis for the allegations which were made in her various emails. In that way, the making of the allegations is capable of amounting to professional misconduct and they show that the Solicitor is unable to fulfil the inherent requirements of an Australian legal practitioner, inasmuch as there has been a failure to comply with rr 5.1 and 21.3 of the Conduct Rules. Further, she indicated clearly that she did not consider herself bound by court orders and that she would not obey them.

13. [61]

    The next aspect of the complaint was the recording by the Solicitor of proceedings in the District Court.

14. [62]

    Section 9 of the Court Security Act 2005 (NSW) provides:

15. [63]

    At the hearing of the Solicitor’s appeal from the judgment in Michail v Mount Druitt & Area Community Legal Centre (No 2) Leeming JA raised the issue of the recording of what had already taken place in the District Court. His Honour drew the Solicitor’s attention to s 9 of the Court Security Act and handed down two copies of that section for her to consider.

16. [64]

    When the proceedings came back before Judge Gibson on 25 January 2016 the following exchanges took place:

17. [65]

    On 12 May 2016, in the course of further email correspondence with Judge Gibson’s Associate sent in contravention of the earlier order of the Judge, the Solicitor wrote objecting to Judge Gibson’s decision not to permit her to record the proceedings. The Associate responded by an email of the same date in these terms:

18. [66]

    On 10 February 2017 the Solicitor sent an email to the Chief Justice of this Court, the Associate to the Chief Judge of the District Court, the Registrar of the District Court, Judge Gibson’s Associate and the Registrar of the Court of Appeal. The email was also copied to some other lawyers. There was an attachment entitled “NSW District Court 9 February 2017.m4a”. The email said:

19. [67]

    It is apparent from the judgment of Judge Gibson in Michail v Mount Druitt & Area Community Legal Centre (No 6) [2017] NSWDC 25 at [7]-[8] that the attachment to that email was a sound recording of the argument before Judge Gibson on 9 February 2017. Her Honour affirmed at [9] that the Solicitor had never had her permission to record Court proceedings privately.

20. [68]

    The Solicitor submitted in the present proceedings that there were two exceptions to the rule against recording. Those exceptions were public interest and assault. The Solicitor submitted that those exceptions came from decisions of the High Court. When I asked her to identify those High Court decisions the Solicitor said that she did not remember.

21. [69]

    She maintained that she was entitled to record the proceedings notwithstanding she had been refused permission because she was “being gaslighted”. This submission appeared to be a reiteration of what the Solicitor had said in her letter to the Commissioner on 7 October 2017. She said this:

22. [70]

    Section 9 of the Court Security Act does not contain the exceptions the Solicitor refers to. The only regulation that concerns recording devices is cl 5 of the Court Security Regulation 2016 (NSW) that permits their use in NCAT and the Local Court with the approval in each case of the Registrar.

23. [71]

    The recording of the proceedings was a serious disobedience both to s 9 of the Court Security Act and in the face of the express refusal on a number of occasions by Judge Gibson to permit the recording. This was not the case of an accidental breach of s 9 where the Solicitor was unaware of its terms. Those terms had been pointed out to her when she was in the Court of Appeal.

24. [72]

    The Solicitor demonstrated no justification for her assertion of “gaslighting”. As with the allegations made in her emails, this assertion appears to be no more than her belief. It may be an honest belief but it has not been shown to held on reasonable grounds. Nor, if it were, would that provide a justification for disobeying not only the Act but also the express refusal by Judge Gibson to permit the recording. The behaviour is consistent with what the Solicitor set out in the emails at [52] and [55] above. It indicates that, if she has a belief about some particular matter, she feels thereby entitled to disobey the law. It is difficult to see how such an approach to her responsibilities as a solicitor is consistent with the inherent requirements of being a solicitor.

25. [73]

    The Law Society was confronted with psychiatric reports from Dr Sahzin which, on their face, were difficult to reconcile. On the one hand the Society had a report dated 28 September 2017. That report had been prepared to justify why she was unable to respond fully to the complaints notified by the Commissioner. The report said that her condition had deteriorated significantly to the extent that she was being considered for admission to a psychiatric facility because of suicidal ideation. That deterioration had to be seen in the light of the report of 28 April 2016 which said that at that time she was struggling with suicidal thoughts, insomnia and clinical depression.

26. [74]

    On the other hand, when the Solicitor was notified on 18 December 2017 that the Law Society Council would be asked to consider the immediate suspension of her practising certificate because of Dr Sahzin’s psychiatric opinion, the Solicitor provided another report from Dr Sahzin dated 20 December 2017 saying that she was currently fit to perform her professional duties.

27. [75]

    The apparent conflict between those two reports might have been able to be clarified had Dr Sahzin been made available to give evidence in the present proceedings. The Solicitor said that she could not afford to pay for Dr Sahzin to come to give evidence. Alternatively, the position might have been clarified if the Solicitor had accepted the Law Society’s offer to have her examined by another psychiatrist at its cost. She refused that offer. The result is that the Court is no better placed to resolve the apparent conflict in Dr Sahzin’s reports.

28. [76]

    What is clear, however, is that the Solicitor claims that her mental health state will not permit her to respond to the Commissioner’s Complaint nor participate in the investigation process. She points to the reports of Dr Sahzin, particularly the report of 24 September 2017, as support for that position. On the assumption that she is telling the truth to Dr Sahzin and the Court, it must be accepted, therefore, that her mental state is as Dr Sahzin has described it in his report of 24 September. Her inability to participate in the investigation process is some objective support for the continued existence of that mental state. That mental state would render her unable to fulfil the inherent requirements of a legal practitioner. One such requirement would be to respond to a letter from the Commissioner seeking a response to matters contained in a Complaint.

29. [77]

    The further difficulty was that there was nothing to indicate that Dr Sahzin had prepared his reports in the light of the Expert Witness Code in Schedule 7 to the UCPR. That Schedule has two specific aspects of significance in the present matter. The first is cl 2 which provides that an expert witness is not an advocate for a party and has a paramount duty to assist the Court. The significance of that is that Dr Sahzin was the Solicitor’s treating psychiatrist and, absent the imposition of that duty upon him when preparing reports, he would no doubt be endeavouring to assist his own patient in the way the report was expressed. It would be written from a clinical rather than a forensic point of view.

30. [78]

    The second matter relates to cl 4(1) dealing with an expert changing his opinion on a material matter after a report has been prepared. On the face of it the report of 20 December amounted to a change of opinion in a material matter that at least required an explanation from the expert.

31. [79]

    One answer, although not a satisfactory one in the absence of expert evidence, for this apparent inconsistency in the reports, comes from what the Solicitor said in her submissions. What the Solicitor wished to maintain was that she was capable, from a mental and emotional point of view, to conduct the practice of a Solicitor, but was not capable of dealing with the matters the subject of the Complaint because of the psychiatric matters that her behaviour and the response to it by the Commissioner would or might trigger. The Solicitor appears to have reached the conclusion, perhaps with the advice and/or support of Dr Sahzin, that the psychiatric difficulties she has experienced are best dealt with by closing the door on the past, and simply getting on with her life including her life as a solicitor.

32. [80]

    If the Solicitor had been prepared to subject herself to cross-examination about these matters, some clarification may have been able to be obtained, although it is difficult to see how any firm view could be reached about the Solicitor’s capacity and fitness to conduct a solicitor’s practice without the evidence of Dr Sahzin or some other psychiatrist.

33. [81]

    The end position is that serious allegations of misconduct have been made against the Solicitor. The Solicitor claims that, because of her mental health, she is not in a position to answer those allegations. Nevertheless, she claims the right to practise because she says her mental health in that regard enables her to do so. To accept that position would mean that the complaints made against her could never be determined. In my opinion, whilstever the Solicitor claims mental health reasons prevent her dealing with the complaints made against her, the decision of the Law Society to suspend her right to practise is entirely justified. Indeed, the Solicitor appeared to accept that. At Transcript 54.23 the following exchange occurred when I asked her to identify a matter relating to the complaint in her material:

34. [82]

    Later at Transcript page 60 the following exchange occurred:

35. [83]

    Contrary to the Solicitor’s submissions, the Law Society did not make an expert medical decision that it was not competent to make. It had what appeared to be, and may well have been, conflicting reports about the Solicitor’s mental health. What the report of 28 September did make clear was that she was too unwell to participate in the investigation of the Complaint. Given the seriousness of the matters in the Complaint, and the ongoing failure to cooperate with the investigation, the public interest had to prevail over the Solicitor’s interests.

36. [84]

    The manager appointed to the Solicitor’s practice was Richard Savage. He rang the Solicitor at 10am on 22 January 2018. Shortly afterwards, she returned his call. She said that she had no notice of the suspension or of his appointment. He explained that he wanted to meet with her so that he could serve the notices on her. When she insisted on knowing the grounds for the suspension, he said that he could email them to her. She agreed to them being emailed but he said he still wanted to meet with her the following day to discuss the appointment. She told him that she would not meet with him and she hung up.

37. [85]

    The course of events which followed are set out in memoranda prepared by Mr Savage as follows:

38. [86]

    Mr Savage’s email attaching the copies of the notices was sent at 10:27am on 22 January. It read as follows:

39. [87]

    His memorandum continued:

40. [88]

    Thereafter, Mr Savage sent the following email to the Solicitor at 2:46pm on 22 January:

41. [89]

    The Solicitor responded by saying that, as she had repeatedly told him, she did not have regulated property. Further, she said the incorporated legal practice ceased operations that day, so “there will be no interview and/or access to premises”. Mr Savage responded saying that, for it to be the case that a law practice had no regulated property, either it could never have provided any legal services, or it had in some way disposed of all files and records. He asked her where the files were.

42. [90]

    A large number of emails then passed between the Solicitor and Mr Savage, with the Solicitor maintaining her refusal to allow Mr Savage to have access to the practice or any of the regulated property. In the course of those emails, Mr Savage set out ss 336(2) and 364 of the Uniform Law to remind the Solicitor of her obligations.

43. [91]

    The Solicitor did not cross-examine Mr Savage. It is apparent from Mr Savage’s Report of 24 January 2016 to the Law Society that his memoranda were prepared contemporaneously. I accept the course of events as set out in Mr Savage’s memoranda. In any event, the emails exchanged entirely bear out that information and demonstrate the Solicitor’s resistance to his appointment and his intended action.

44. [92]

    The Solicitor submitted that the provision of the files to Mr Savage would be a breach of client confidentiality. She pointed to s 336(1) to submit that the section only concerned practices that were still in operation and that she had ceased to practice when Mr Savage wished to come to her premises and inspect her files. She submitted that for s 336(2) to operate, 336(1) had to be engaged by there being a law practice carrying on a law practice.

45. [93]

    In my opinion, there is nothing in s 336 or any other part of the Uniform Law to support the interpretation the Solicitor puts forward. Indeed, the circumstances warranting external intervention in s 326 point to the fact that a manager may be appointed in circumstances where the practice has ceased to function for some reason; see for example paragraphs (a), (b), (c), (d)(i), (iii) and (ix).

46. [94]

    In any event, the only evidence relating to the Solicitor ceasing to practise was a statement in paragraph 10 of her affidavit of 25 January 2018 where she said:

47. [95]

    Mr Savage’s memoranda make clear that on two occasions the Solicitor said that she was going to close down the practice, no that it had been closed down. It would entirely defeat the purpose of appointing a manager if he could be prevented from taking control of the practice by a principal of a practice closing it down after the manager has been appointed.

48. [96]

    The Solicitor’s view that, because she did not operate a trust account, there was no basis for the manager being appointed or inspecting her files, was misconceived. The definition of “regulated property” included much more than trust account records. It included client files.

49. [97]

    In my opinion, the Solicitor’s approach to the appointed manager was entirely consistent with what appears in her emails saying that she will not obey orders of the court and entirely consistent with her approach to recording illegally the proceedings in the District Court. As in those cases, the Solicitor has formed a belief that she is justified in acting the way she has. In relation to the manager she had no reasonable grounds for forming the belief that she did.

50. [98]

    The attitude demonstrated in her phone calls and emails to the manager was aggressive and combative. Whilst some may regard such qualities as appropriate for the carrying-on of legal practice, a person behaving in that way needs to have reasonable grounds for adopting the stance they have taken. In any event the Conduct Rules require courtesy.

51. [99]

    A reasonable lawyer in the Solicitor’s position, when faced with Mr Savage’s rebuttals of what she was suggesting, would have sought legal advice from a colleague or some other legal practitioner to ensure that the position that she was adopting was not one that put her in contravention of the law. Why she did not do so could not be explored because she was not prepared to subject herself to cross-examination about the approach she took. That approach, nevertheless, reflects poorly on her fitness to fulfil the inherent requirements of a legal practitioner.

52. [100]

    Had this been the only basis upon which the Law Society sought to suspend the Solicitor’s practising certificate under s 82, I would have concluded that it was insufficient because it seemed, in the first instance, to derive from a different understanding of her obligations under the Uniform Law. However, in the light of the fact that the Law Society has established two other clear bases to justify suspension of her practising certificate, her approach to the appointment of the manager is a matter that amounts to a further justification for the February resolution.

Conclusion

1. [101]

   In New South Wales Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284 Spigelman CJ (with whom Mason P and Handley JA agreed) spoke of the public interests relevant to legal practitioners. His Honour said at [20]:

2. [102]

   Those interests must be considered in the present proceedings because of the requirements of ss 77 and 278.

3. [103]

   The Complaint initiated by the Commissioner contained very serious allegations which included knowingly illegal behaviour and a refusal to obey court orders. The allegations in the Complaint and the medical evidence provided by the Solicitor to the Law Society raised the issue of the Solicitor’s fitness to practise, and whether she was able to fulfil the inherent requirements of a legal practitioner. In circumstances where the Solicitor claimed that she could not participate in the investigation process because of her mental health issues, the Law Society was correct to reach the decisions contained in both the January resolution and the February resolution. Whether the test is “necessary” or “warranted” in the public interest, it was in the public interest to do so, having regard to what was said in Cummins at [20]. Even assuming the onus is on the Law Society in the present proceedings, that onus has been easily discharged.

4. [104]

   Accordingly, I make the following orders:

   1. (1)

      In proceedings 2018/27265:

   2. (2)

      In proceedings 2018/46860:

   3. (3)

      In proceedings 2018/85144: