LI v COUNCIL OF THE NSW BAR ASSOCIATION

BASTEN JA : The application for leave to appeal in this matter concerns an extension of time granted by the Administrative Decisions Tribunal sitting in the Legal Services Division, a decision handed down on 7 September 2006.

The Tribunal set out in detail the history of the matter in its decision, New South Wales Bar Association v LI (No 2) (2006) NSWADT 263. It is not necessary to repeat that history for present purposes but it may be accepted that the history has unfortunately meant that the complaint which was originally made in relation to conduct which occurred no later than 2000 has not yet been determined. At the time that the matter was commenced in the Tribunal by laying of an information by the Bar Association, the time for commencing proceedings had expired. However, the introduction by the Legal Profession (Amendment) Act 2004 (NSW) of a new s 167AA into the Legal Profession Act 1987 (NSW) extended significantly the time within which proceedings could be instituted to a period in effect six months from the day at which the Association decided to take proceedings.

It is not now disputed that that provision has operation in relation to this complaint, nevertheless the Bar Association did not comply with that extended time period and therefore leave was required in order to give effect to the proceedings which it had commenced.

The Tribunal listed all of the matters which it needed to take into account in considering whether to grant leave and gave careful consideration in a thorough and reasoned decision to those matters. The complaint now made is that, given the overwhelmingly important protective nature of the disciplinary jurisdiction, the lapse of a lengthy period of time from the date of the conduct, together with the age and limited nature of the practice of the barrister, should have demonstrated that leave to extend time should not have been granted. There was, it was contended, no public interest in continuing the proceedings.

With respect, those were matters to which the tribunal gave consideration. It noted that the protection of the public might in this case be of less importance than in many others. The Tribunal also said that this did not mean that the grant of leave would not have any protective effect at all. In my view it was correct in making those findings.

It is also relevant that the continuation of the proceedings would have other purposes even were it ultimately not found necessary to impose an order which might be seen as primarily protective in its effect. In my view no error has been demonstrated in the careful consideration given by the Tribunal to this matter of the kind that would warrant the intervention of this Court.

Accordingly, leave should be refused with costs.

TOBIAS JA : I agree. That will be the order of the court.