Applications to stay disciplinary decisions pending appeal

I had to convince the Legal Services Commissioner to consent to a stay of orders suspending my client pending an appeal he has brought from VCAT the other day.  Happily the Commissioner consented.  For next time, I squirrel away this re-statement by the New South Wales Court of Appeal of the application to this class of case of the law governing applications for stays in civil proceedings pending appeal in Griffin v Council of the Law Society of New South Wales [2016] NSWCA 275.  (I reported on the first instance decision here, and this latest decision reveals that the solicitor has applied for the removal of his appeal to the High Court so it can rule authoritatively on the application of the freedom of political speech to criticism of the third arm of government, the judiciary.)

The Court considered the appellant’s arguments to be arguable, though not strong.  All he had to do under the disciplinary orders was attend some ethics courses.  One might argue that ethics courses are pure good: you can’t know too much about legal ethics.  But the Court stayed the orders, accepting that if he were forced to do the additional courses and his appeal succeeded, the appeal would be rendered nugatory.

There is no law, really, about the stay of disciplinary orders.  One should always go back to the authoritative statement of the broad law, which is in this case the law governing stays pending appeals.  But it useful also to squirrel away appellate courts’ application of that law to your own sphere of cases.  Here is the New South Wales Court of Appeal’s consolidation of those applications of the law:

  1. The question of whether to grant a stay in an appeal such as this, involving the conduct of a legal practitioner, requires that a number of factors be taken into account as follows:
  • the seriousness of the misconduct found;
  • the likely prejudice to public confidence, both in the integrity of the disciplinary processes themselves and in the reputation of the profession if the practitioner is granted a stay;
  • the means available to mitigate the prejudice alleged;
  • the expedition with which the appeal can be heard. [2] 

    2. See Robb & Rees v Law Society of the Australian Capital Territory (Federal Court of Australia, Finn J, 21 June 1996, unreported) and Berger v Council of the Law Society of New South Wales [2013] NSWCA 278 at [19] (“Berger’s Case”).

  1. In Berger’s Case, the orders from which an appeal was brought and in respect of which a stay was sought included an order that the practising certificate of a solicitor be suspended. Thus the primary decision maker in Berger’s Case considered that the solicitor in that case was unfit to continue practising for the time being.
  2. That is not the case here. The decision of NCAT was given on 8 April 2016 after a hearing on 7 September 2015. In the meantime, there was no suggestion that Mr Griffin should be prevented from practising. The orders made by NCAT contemplate that Mr Griffin should be permitted to practice for at least six months after the making of the orders. That indicates that NCAT was not concerned with any prejudice to the public by reason of Mr Griffin continuing to practise pending his undertaking an ethics course.
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