Leave granted retrospectively to file charge out of time against barrister for 1999 conduct

New South Wales Bar Association v LI (No 2) [2006] NSWADT 263

Some of the allegedly agro behaviour of a now-78-year-old barrister at an arbitration which commenced on 19 December 1999 was not appreciated and resulted in a disciplinary complaint in May 2000. In mid-2003, a charge was finally laid by the NSW Bar Association. There had been changes of personnel at the Bar Association, and 5 months of absolute inactivity while they were distracted by another matter.
The Bar Assocation did not comply with a time limit for filing the charge after having become satisfied that the Administrative Decisions Tribunal would be likely to find unsatisfactory conduct. Their solicitor was ignorant of the limitation period, and they had become used to being granted leave retrospectively as a matter of course to file out of time. The barrister had made certain admissions towards acknowledging that his conduct amounted to unsatisfactory conduct. There had been protracted negotiations towards an agreed outcome involving a private reprimand and some form of counselling. But the barrister ultimately declined to be compelled to engage in psychotherapy. The NSW Administrative Decisions Tribunal ultimately granted the Bar Association’s application for retrospective leave to file the charge about 6 months late.

Abuse of process by delay

The Tribunal usefully noted arguments for the barrister at [113] by referenc to “a number of leading authorities establishing that in disciplinary proceedings, as indeed in other forms of proceeding, a permanent stay may and should be ordered if, on account of a very substantial and unjustifiable delay between the relevant events and the hearing of the proceedings, it would be oppressive to the respondent and an abuse of process to permit the proceedings to continue,” referring to

“the judgment of McHugh JA (with whom Street CJ and Priestley JA agreed) in Herron v McGregor (1986) 6 NSWLR 246 at 252-255, and … passages in the majority judgment of Mason CJ, Deane and Dawson JJ in Walton v Gardiner (1992) 112 ALR 289 expressing concurrence with that decision of the Court of Appeal (at 296-297) and affirming the general principles to be applied (at 300-301). Mr Williams referred also to the well-known discussion of the prejudicial effects of delay in commencing proceedings contained in the judgment of McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1 at 8-10.”

The Bar Association’s barrister’s submissions in response were noted at [116]:

“First, the statements of principle by McHugh JA in Herron v McGregor, in so far as they propounded the notion of a common law ‘right to a speedy trial’, have been disapproved by the High Court in Jago v District Court of NSW (1989) 168 CLR 23. Secondly, a permanent stay on grounds of delay can only be granted in an extreme case, where ‘the delay is such that the defendant will suffer such prejudice as cannot otherwise be remedied and which will result in an unfair trial’ (see Island Maritime Marine v Barbara Filipowski [2004] NSWCCA 30 at [43]; affirmed [2006] HCA 30).”

Public interest in expeditious prosecutions

The Tribunal accepted that the public interest is prima facie in the resolution of complaints against lawyers, but that there is a public interest too in the speedy resolution of such complaints. They accepted that the passage of 6 years gave another perspective: it showed that there had been no ongoing behaviour of the kind which, had the prosecution been brought promptly, it might have been surmised the public needed protection from.

120 … it is well recognised that the primary purpose of maintaining a regime for the receipt and investigation of complaints alleging unsatisfactory professional conduct on the part of legal practitioners and the instigation, where appropriate, of disciplinary proceedings against them, is protection of the public. Amongst the associated purposes are the provision of redress for the complainant and, as emphasised by Mahoney JA in Law Society of NSW v Foreman (1994) 34 NSWLR 408 at 444, the education of both the profession and the public regarding the standards of behaviour required of practitioners.

121 It follows that the public interest is materially served by granting leave for an Information to be filed out of time if, without such leave, the merits of a complaint, which has been investigated as required by the legislation, will never be determined. The important public interest in attaining a final resolution of the complaint is the same irrespective of whether the delay in instituting proceedings is attributable to failure by the prosecuting authority (for example, on account of dilatoriness) to perform its duties properly, or to matters beyond its control.

124 As we have said, a major component of the ‘public interest’ to be served by disciplinary proceedings against legal practitioners is protection of the public. It is clearly arguable, however, that in the particular circumstances of this case, nothing tangible by way of protection of the public, and indeed some element of detriment to the public interest, would be achieved by granting leave for the Information to be filed. In submitting to this effect, [the barrister’s barrister] relied on three considerations in particular.

125 The first was that the matters alleged in the complaint – which, as the Information makes clear, are claimed to have amounted at most to unsatisfactory professional conduct – occurred more than six years ago. There being no evidence of improper conduct by the Barrister since then, Mr Williams contended that it could not ‘seriously be said’ that the public now required ‘protection’ of the type that the institution of Tribunal proceedings was designed to afford.

126 This argument receives support from a passage in the judgment of Gleeson CJ in Gill v Walton (1991) 25 NSWLR 190. Here the Court of Appeal held by majority (with Mahoney JA dissenting) that disciplinary proceedings against the three claimants in the case, who were current or former medical practitioners, should be permanently stayed, principally on the ground of substantial and unreasonable delay since the alleged misconduct on their part occurred. Under the heading ‘the public interest’, the Chief Justice pointed out at 201 that there was ‘no evidence or suggestion of any continuing conduct on the part of the claimants against which the public requires protection, or which reflects upon their fitness to practise’. Later under the same heading (at 202), having referred to ‘the public interest in disciplinary proceedings in cases of malpractice’, he said: ‘However the fact that nothing is presently occurring, or has recently occurred, in respect of which the public needs protection from the claimants is a matter to be taken into account.’

127 The second point made by Mr Williams in this connection is that there is a public interest in the prompt institution of disciplinary proceedings such as these. Mr Williams argued that this public interest would be impaired if the Bar Association were given leave to file the Information in this case several months after the permitted period. He relied here on the judgment of Kirby P in Gill v Walton. In the course of reaching the same conclusion as Gleeson CJ, Kirby P referred at 207 to ‘the public interest in the prompt prosecution of complaints of alleged wrong-doing or incompetence on the part of medical practitioners’. In the same vein, he said at 208: –

‘The protection of the public and fairness to the medical practitioners involved each require that complaints be promptly investigated and, where appropriate, brought before the disciplinary body in a timely fashion. This was not done here.'”


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