Law Society of New South Wales v Darling [1999] NSWADT 7 (5 March 1999)

Last Updated: 9 March 1999

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION: Law Society of New South Wales -v- Darling [1999] NSWADT 7

REVISION DATE:

DIVISION: Legal Services

APPLICANT:

The Council of the Law Society of New South Wales

RESPONDENT:

John Harold Darling

FILE NUMBERS: 9712

HEARING DATES: 28/10/98

SUBMISSIONS CLOSED: 28/10/1998

DECISION DATE: 05/03/1999

JUDICIAL MEMBER: G B Molloy Judicial Member

LAY MEMBER:

LAY MEMBER:

APPLICANT KEYWORDS: Professional misconduct - solicitor

MATTER FOR DECISION: Interlocutory application seeking order that evidence be taken by videolink

PRIMARY LEGISLATION CITED: Legal Profession Act 1987

APPLICANT REPRESENTATIVE: N Nicholls of counsel instructed by R J Collins

RESPONDENT REPRESENTATIVE: G Bellamy of counsel instructed by Freehill Hollingdale & Page

ORDERS: 1. The application of the Law Society of New South Wales filed 15 October 1998 be dismissed.

2. Costs reserved.

DECISION:

1 This matter has come before me as a single Judicial Member of the Tribunal by way of an Interlocutory Application on behalf of the Law Society of N S W which seeks an Order or Direction that the evidence of a proposed witness Mr Timothy James Trevelyan Simpson be taken by videolink.

2 I had previously made Interlocutory Orders and Directions which permitted the parties to re-formulate the way in which the proceedings were thereafter to be conducted.

3 One of the Interlocutory Orders that was previously made by me was discharging a Direction made 12 May 1998 to the effect that any Application for Mr Simpson's evidence to be taken by videolink would be filed and served by 29 May and that Application would be heard on 19 June 1998.

4 At the outset I was informed by counsel for the Law Society, supported by counsel for the practitioner, that the Tribunal had appropriate jurisdiction to deal with the matter and both parties agreed that this Interlocutory Application could be dealt with by me as a Judicial Member sitting alone.

5 There is, as I understand it, nothing in the Evidence Act that precludes the receipt of evidence by videolink and it is trite to say that a court or tribunal has the power to regulate its own affairs in the interests of the discharge of its functions.

6 Legal Profession Act S.166 permits the making of rules not inconsistent with the Act itself. Rules have in fact been made, namely (and relevantly for this Application) the Administrative Decisions Tribunal Rules (Transitional) Regulation (1998) . Rule 19(1) provides that "At a Directions hearing authorised by a Judicial Member ....... a member authorised to hold the hearing may give directions as to the steps to be taken in the proceedings concerned". Similar expressions are used in Rule 28(3).

7 Legal Profession Act S.168 provides that for the purposes of conducting a hearing into a question of professional misconduct, the Tribunal is to observe the rules of law governing the admission of evidence.

8 I indicated above that the submission of the Society, supported by the practitioner, was that there is nothing in the Evidence Act 1995 which precluded the receipt of evidence by videolink. By S.11 of that Act it is specifically stated that the power of a Court to control the conduct of its proceedings is not affected by the Act and in the Dictionary to the Act "Court" means a court in New South Wales and that court means the Supreme Court or any other court created by Parliament and includes "any person or body (other than a court) that, in exercising a function under the law of the State, is required to apply the laws of evidence". Clearly, in my view, this Tribunal falls within the definition for the purposes of the Act and is therefore bound by the provisions of that Act.

9 Evidence Act S.26 gives the Court power over the questioning of witnesses and to make such orders "as it considers just" in relation to the way in which witnesses are to be questioned, the production and use of documents and things in connection with the questioning of witnesses and the presence and behaviour of any person in connection with the questioning of witnesses. By S.52 it is provided that the Evidence Act "does not affect the operation of any Australian law or rule of practice so far as it permits evidence to be adduced in a way other than by witnesses giving evidence or documents being tendered in evidence". The Society submitted, and I do not think it was seriously challenged by counsel for the solicitor, that videoconferencing had reached a level of acceptance in the court system that it could now be regarded as a rule of practice within the meaning of S.52.

10 I am not entirely sure whether we have "progressed" (if that is the right word) to that point. There is no doubt that video conferencing has a place in the judicial system but whether it has reached "a level of acceptance" as to constitute a "rule of practice" I would considerably doubt. However, there may be, and undoubtedly are, situations where video conferencing is a useful tool in putting evidence before a court or tribunal in circumstances where such method is cost-effective and is in accordance with proper protection for the party against whom the evidence is sought to be led.

11 Clearly, however, an application for evidence to be taken by videolink is discretionary in that, in my opinion, before a court or a tribunal will exercise its discretion to grant such an application it must be satisfied that there will be no injustice to any party to the proceedings, no injustice to the witness and that the likelihood of any such injustice is remote. After all, there is considerable cost and expense in setting up and conducting a videolink exercise and one does not want to see that expense wasted in circumstances where it would not be wasted where evidence is given in the ordinary manner.

12 A further consideration is whether in all the circumstances the inconvenience to the particular witness or difficulties faced by that witness in giving oral evidence in the ordinary way are sufficiently serious to warrant the granting of a videolink application.

13 Having made those preliminary observations, there are a number of other principles that I think must apply and these will become apparent during the course of this judgment.

The Evidence

14 The Law Society's application is based upon an Affidavit by Louis Pierotti sworn 15 October 1998. Annexed to that Affidavit is a letter written in the Swedish language by Dr Ingrid Wallner, a general practitioner from the Stromsbro Health Centre dated 7 September 1998. The certificate itself is addressed to Mr Simpson and states (having been duly interpreted) as follows:

"I hereby wish to inform you that Mr Simpson has got bronchial asthma since many years. He takes medicine consisting of medicine that enlarges the bronchi (Ventolin via ventilator).

Mr Simpson has also got psychological difficulties in the form of anxiety and uneasiness. Attempts to treat him with several modern asthma medicines in the form of long-acting medicine that enlarges the bronchi, and also cortisone via ventilator, has not been working satisfactory for him, above all, out of psychological reasons.

At the moment, Mr Simpson is feeling very anxious that his asthma is going to worsen if he travels to Australia, since he previously became sick in connection with a stay there. A doctor in Australia has advised him against returning there. He does not feel any anxiety about the air- journey itself but because of the stay in Australia, as he is convinced that the air is not advisable for his health there.

This great worry and fear of acute deterioration which involves increasing anxiety, can naturally trigger an attack of asthma on a psychological basis. The problem is thus not first of all a medical one, and neither can it be locally treated in Australia with extra asthma medicine or medical support.

It is consequently because of the connection between Mr Simpson's psychological difficulties and the risk to have an acute attack of asthma because of this, that it could be harmful for him to travel to Australia".

15 That was the medical evidence placed before me. It may or may not have suffered in the translation but that is the evidence upon which the Society relies.

16 Mr. Bellamy for the Solicitor did not object to the tender of the translation but expressed concerns that the evidence itself would not be sufficient to persuade this Tribunal to grant the Application.

The Allegations Against The Practitioner

17 Before dealing with that aspect it is educative to look at the allegations made against the Solicitor. Effectively, there are three allegations, two of which are irrelevant to the evidence of Mr Simpson and one of which relates to the Solicitor's relationship with Mr Simpson. Putting it bluntly, Mr Simpson's evidence is that the Solicitor misappropriated, or stole, $17,000.00 which Mr Simpson transmitted to the Solicitor from Sweden. The case for the Law Society is that the money was transmitted to the Solicitor for a specific purpose of which the Solicitor was aware, namely to be used for the purpose of costs incurred in connection with an Application for Probate in the Estate of the late Jean Simpson and for no other purpose.

18 The Solicitor denies that: he asserts that the $17,000.00 was to meet personal expenses and payment for previous professional services. The Law Society says that the moneys were provided to the Solicitor to be held in trust only on account of the Probate Application; the Solicitor responds by saying that the moneys were accepted by him with authority to pay for services previously provided in respect of other matters which had not been billed and for other personal and administrative services provided by him.

19 On any view, although the amount of money is relatively small, and putting it bluntly, Mr Simpson simply says, "This solicitor stole my $17,000.00". That is a very, very serious allegation, whether it is made against a legal practitioner or any other person. It is an allegation that needs to satisfy the onus and standard of proof required in this Tribunal because of the serious consequences of an adverse finding against the Solicitor.

20 There is no need at this interlocutory level to refer to the trite law on this subject. Any adverse finding against the Solicitor would be a finding of professional misconduct and it would be difficult, if not impossible, in the face of such a finding against the Solicitor for this Tribunal to make a finding other than the Solicitor's name be removed from Roll.

21 Consequently, as I pointed out in argument, my job is to balance the right and statutory duty of the Law Society to bring the instant proceedings against the Solicitor against the very clear right of the Solicitor as a defendant and whose Practising Certificate is "on the line" to not only challenge the allegation that he misappropriated/stole $17,000.00 but also to a fair and just hearing on that issue.

22 The consequences of an adverse finding are grave. The question is: what are the principles that should apply when considering whether this type of application should be approved?

The Law To Be Applied

23 I was referred to a number of authorities:

(a) R v Dentists Disciplinary Tribunal [1994] 1NZLR 95. This was a decision of Williams J in the N Z High Court on an interlocutory application by an appellant dental surgeon seeking an order that certain evidence of her principal medical witness be taken by way of a satellite videolink-up. The evidence sought to be led by the overseas expert amounted to, as best one can work out from the report, to some sort of medical expert opinion. The Dentists' Disciplinary Tribunal "reluctantly (took) the view that evidence and cross-examination by video are preferable to no cross-examination at all". In my respectful opinion that expression of opinion is of absolutely no assistance to me at all. On appeal, Williams J permitted the evidence of the overseas expert to be taken by videolink and he set out seven conditions which in his view provided adequate safeguards, although His Honour indicated that he did not think the conditions were exhaustive. In my view it is not necessary for me to review those seven conditions because I, like His Honour, do not think they are exhaustive and in my opinion fail the most elementary test of all, namely the protection of the party against whom the evidence is sought to be led. By this I mean that none of the seven conditions required or even permitted the presence of a legal representative at the place where the overseas expert was giving evidence at the relevant time that evidence was being given by videolink-up. In my respectful opinion the presence of such a legal representative at that particular time would be absolutely essential to ensure that, no only all things were done properly but also the whole overseas video evidence was taken above board. It is not the same as some sort of video conference or submissions being made by videolink-up; this is a case where actual evidence is sought to be led and that evidence must be taken in circumstances where all parties and the Court/Tribunal are satisfied that the evidence is not only being recorded properly but the witness is also giving untainted evidence.

Finally, it is important to note that Williams J. made the point that the evidence of the overseas witness in this case did not involve "a simple conflict of credibility on primary facts", being an observation which is clearly at variance with the matter now before this Tribunal.

(b) Garcin v Amerindo Investment Advisors Limited [1991] 1WLR 1140. This case involved the determination of whether a document was some sort of forgery. An order was sought for the examination of various people concerned with the making of the original document such that the evidence of one of those persons be given by "television linkage". Morrit J made an order permitting the video evidence. The particular witness apparently refused to travel from the United States to the United Kingdom but was apparently prepared to give evidence on oath in the United States. His Honour said: "......it seems to me that the opportunity provided by (the court rules) to obtain the evidence of (the witness) by means of modern technology should be seized. It will be much cheaper than letters of request or evidence on commission. It will not now and may never be necessary to have a substantial, if any, adjournment, and if in the event it proves to be an unsatisfactory method of obtaining evidence from (the witness) it will not preclude an order for letters of request or for evidence on commission hereafter".

Although it is not entirely clear I accept that the evidence to be provided by the witness in this case was evidence germane to the case for the defendant.

(c) The Director of Public Prosecutions v Alexander [1993] 33NSWLR 482. This was a criminal case where the Commonwealth D P P applied to the court to issue a letter of request to judicial authorities in the United States of America to take or cause to be taken evidence of two residents of that country. The accused had been committed to stand trial upon 15 criminal charges involving alleged false invoices and the Crown case asserted that the two proposed United States witnesses were able to prove the actual prices for which the various yachts (the subject of the various alleged false invoices) were actually sold. It is plain, therefore, that the evidence of the two United States witnesses was vital for the Crown case.

From reading the judgment of Hunt C J at C L, it would seem that the accused through his legal advisers wanted the two United States witnesses for cross-examination. The D P P offered to cover the expenses of the witnesses and offered to grant an indemnity against both of them. It appears that both witnesses were unwilling (as distinct from unable) to come to Australia to give evidence. The facts to be proved by them were vital to the Crown case. The accused submitted that he would be seriously prejudiced should the order be made. Hunt C J said: "The prejudice to which the accused may point must be that which flows from the manner in which the evidence is taken by the procedures sought to be adopted and in which it is subsequently placed before the jury". It was submitted that it was "of the utmost importance that the jury should have the opportunity of seeing the demeanour of (the) witnesses, and of observing the way in which various questions put to them in cross-examination are answered". It was submitted on behalf of the accused that the Court "would have no control over the way in which the (audio visual) equipment is operated, and that the jury would still be denied the opportunity of observing the demeanour of the witnesses as they walked from the door of the court to the witness box and on the return journey".

Hunt C J did not accept the validity of any of these arguments.

His Honour made these observations (page 498):

"This Court is quickly becoming used to viewing video-taped records of interview by the police of accused persons. The procedures adopted in the production of such tapes by the .....electronically recorded interviews with suspected persons .....system here in New South Wales are extraordinarily poor but, despite the poor production procedures, I have myself been struck by the potent effect of those tapes in conveying the demeanour of the persons interviewed. Similarly, the evidence of child complainants in sexual assault cases is now frequently given by video-link from a remote room in the court building, and the procedure has proved to be very successful from a technical point of view in demonstrating the demeanour of the witness".

His Honour thought that modern technology has overcome the objections and reservations that had been made in previous years and His Honour made this observation:

"It is true, as the accused has said, that the jury will necessarily lose the opportunity of having any questions answered which may occur to its members, but such questions are comparatively rare, their relevance is even rarer, and such minor loss as there may be is in any event just as likely to disadvantage the Crown as the accused. The loss of that opportunity does not, in my view, outweigh the loss to the Crown (and to the community) of the evidence to be given by these witnesses".

I have not set out above all the reasoning of the Court in this case. I observe, however, that it is a powerful judgment in favour of the taking of evidence by videolink wherein most of the arguments against such means were ventilated and dismissed. I observe, however, that this case involved the issue of a letter of request to a United States court, an issue that does not arise in the case before me.

24 Mr Bellamy for the Solicitor drew my attention to:

(a) Park v Citibank Savings Limited [1993] 31 NSWLR 219. The substance of that case is this principle: an order for the taking of evidence by way of video conference facilities should be made only if the interests of justice would thereby be advanced (page 225). This was a civil case involving allegations of the theft of travellers cheques and fraudulent conduct.

The application before Powell J. was that the evidence of a witness be given in Korea by means of a video conference facility, alternatively that His Honour travel to Korea as a Commissioner to take that evidence. His Honour dismissed the application, primarily (as I read the judgment) on the basis that there was not sufficient evidence to show that the witness in Korea would not come to Sydney and that there was "no reason, whether adequate or not, ......offered for his inability or unwillingness, to come to Sydney". His Honour distinguished Garcin v Amerinda Investment Advisors Ltd on the basis of the particular Court rule and His Honour similarly distinguished Commissioner for Taxation v Grbich (Federal Court, Beaumont J 2 August 1993 unreported) on the same basis. However, His Honour then assumed that the Supreme Court had power to make an order that the evidence of a particular witness be given by a video conference facility. His Honour indicated (as I indicated also during the course of argument) that the question was whether the Court ought to make an order that the evidence of the witness be given in this way. Powell J said that he had "to be satisfied that justice demands the making of the order sought .......(and)........the making of the order sought would advance the cause of justice" (page 225).

His Honour made what I believe to be a telling point: in that case the credibility of the witness was very much in issue. His Honour felt that there were grounds, although rejected by many of the other cases to which I have made reference above (namely that even if the order sought was made and even if it were possible to arrange for the videoconferencing facility to be set up, the Court would have no power:

(i) to compel (the witness) to attend at the appropriate venue for the purpose of giving evidence;

(ii) to compel (the witness) to answer any questions:

(iii) otherwise to control the manner in which (the witness) might give evidence .....nor, in that event would (the witness) be subject to any sanction for refusing to give evidence, refusing to answer any particular question, or for giving false evidence" (page 225),that encouraged His Honour to form the view that "these matters suggest to me that the only way in which (the witness's) evidence might satisfactorily be taken and tested is by having that evidence given at the trial in Sydney or, at the least - if it be possible, as it appears not to be - given before the Trial Judge sitting as a Commissioner in Korea".

(b) Sun State Airlines (Qld) Pty Limited v Chicago Australia Securities Limited (NSW Supreme Court, Giles C J, Comm. D.,5006 of 1996, 11 March 1997, reported in Butterworths Unreported Judgments) (somewhat of a contradiction !). This case involved an allegation by the plaintiff that it overpaid the defendant for certain aircraft rental and sought an order, inter alia, that the various aircraft leasing documents should be rectified. The defendant proposed to call a witness in the United States on the question of that rectification. Giles C J Comm. D. reviewed numerous decided cases (including those referred to above), and concluded, "that even if not pursuant to the Court's inherent power to control its procedures ...... there is under the (Supreme Court) Rules power to take video evidence." The question was, as His Honour properly observed, whether the order should be made. In considering this point the "ordinary procedure of conducting proceedings in open court available to public scrutiny, is of great importance. Cross-examination may be more difficult when video evidence is taken because documents have to be transmitted or produced in an unfamiliar manner, because of delay in voice transmission, or for other reasons, and the effectiveness of cross-examination as a weapon in the fight for truth should not be unduly hindered. And in many cases the Court is assisted in fact finding by observance of what is misleadingly called the demeanour of the witnesses, upon which the taking of video evidence may impact. All that said, particularly where the evidence is relatively uncontroversial, the cross-examination is not likely to be lengthy, or no real issue of credit is involved, the taking of video evidence can be beneficial to the administration of justice and consistent with justice between the parties. It may permit the Court to receive the evidence of a witness which would otherwise not have been available, it may permit the evidence to be received without causing undue inconvenience to witnesses (which should be an important matter in the administration of justice), and it is now an accepted feature of litigation - so much so that for some years the Federal Court of Australia has had in place the video conference facilities proposed to be used in the present proceedings".

(c) Cigna Insurance Australia Limited v CSR [Supreme Court Commercial Division 50133 of 1995, Rolfe J, 29 November 1995). This was one of the cases to which reference has been made in various of the above authorities. The relevant passage appears at paragraph 9 where His Honour looks at the issue of the number of documents to be considered by the witness at the receiving end of the video- conferencing exercise, and His Honour makes this observation: "....I am not to be taken in any way as seeking to derogate from the obvious usefulness of taking evidence by (videoconferencing facility). In cases where the evidence is not particularly controversial, or the cross-examination is not likely to be lengthy, or where no real issue of credit is involved, the system greatly facilitates and, perhaps more importantly, makes far less expensive the taking of evidence both from interstate and from overseas".

By that observation I am assuming that His Honour meant that one should use the technology available when its use is appropriate in the circumstances of the particular case. Indeed, that seems to be the thrust of all the cases to which my attention has been drawn.

(d) Laporte Group Australia Limited v Vatselias (Supreme Court Equity Division No 5679 of 1990, Young J, 25 November 1991, reported (!) in Butterworths Unreported Judgments). Again, His Honour thought that in appropriate circumstances "the Court may vary its usual procedures (i e that witnesses give oral evidence or are orally cross-examined before the Judge in an open courtroom) to achieve speedy resolution of the real questions between the parties as economically as possible" (page 2). At pages 2 and 3 His Honour made these observations:

"The decisions.......dealing with evidence on commission are relevant on a consideration of this motion (to take evidence and be cross-examined using video conference facilities) but not decisive. This is because although the video system may mean the Judge misses out on some of the feel of the witness' personality in much the same way as the difference between live theatre and the movies, the other aspects of demeanour are present to assess the witness' credit. This is a case where the witnesses' evidence and their cross-examination is material. Although the witnesses are overseas, they are, in a commercial sense, part of the plaintiff's organisation and they would be in Sydney at the trial if the plaintiff insisted. These factors are relevant to my decision, although the ultimate question is whether the interests of justice in a fair, cheap and speedy trial will be served".

Young J granted the application. He specified certain conditions (not, I think, to be regarded as exclusive) and one of them (to which I have made reference above) was "provision of facilities for an observer appointed by the defendant to ensure that there is no off-camera coaching or signalling and that no one confers with the witness during any breaks in the cross-examination", and "provision of a person to administer an oath which will not contravene English law".

(e) I was referred by counsel for the Solicitor to two other cases in the bundle of material that he presented to me, namely Stephen Lorne Astill (1992) 63 A Crim R 148 and Willis v Tequair (1906 [1906] HCA 32; 3 CLR 912). I am not sure that either of those cases take the matter much further except that in the latter the High Court made it plain that "if a witness is a material witness, and is out of the jurisdiction of the Court and his evidence cannot be obtained by the issue of any process out of the Court then a commission ought to issue ...... the party asking for the commission should establish to the satisfaction of the Court that he cannot procure the attendance of the witness. That is the general rule, to which, however, there may possibly be exceptions". At page 923 the High Court observed that in Ross v Woodford (1894 1Ch.38) it was held that the Court will not regard the case of a defendant applying for a commission with the same strictness as the case of a plaintiff who has chosen his own forum. The Court quoted with approval the observations of Chitty J at page 42: "There are many cases where the Court has been very reluctant to accede to applications by a plaintiff to take evidence abroad, because the Tribunal has been chosen by the plaintiff himself; so too with regard to the case of a plaintiff asking for a commission to examine himself, the Court has full discretion, but it exercises that discretion strictly, and does not grant the application unless a very strong case is made out; but the case is entirely different when it is the defendant's application, and particularly that of a defendant lawfully resident out of the jurisdiction, according to the ordinary course of his life and business: and to compel these defendants to come over here (to England) at great expense to attend the trial, or to give up their case, would be oppressive and unfair, and in my opinion it would be wrong to apply to the case of a defendant the principles that are applicable to the case of a plaintiff asking for a commission to examine himself".

25 Having examined the above authorities, it seems to me that one might distill from the following general principles:

(i) This Tribunal has power to regulate its own affairs consistent with its duties pursuant to the Legal Profession Act and subject to law.

(ii) This Tribunal has, in an appropriate case, power to order that evidence be taken by video conference facility.

(iii) The usual and proper course to be adopted in a Court or Tribunal in this State is for evidence to be given in open court, subject to the rules of evidence and subject to proper cross-examination consistent with the adversary system which has stood the test of time. I refer, in this regard, to the decision of the United States Supreme Court in Daubert v Merrell Dow Pharmaceuticals [113 SCt 2786 (1993)] where that Court dismissed concerns that abandonment of the general acceptance criteria of the admissibility of expert evidence would create chaos with confused jurors being confounded by expert evidence, by stating "In this regard, the respondent seems to us to be overly pessimistic about the capabilities of the jury, and of the adversarial system generally. Vigorous cross-examination, presentation of contrary evidence and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence".

(iv) There will be, however, circumstances where evidence taken by video conference facility will be appropriate. The guiding principle is whether the interests of justice in the particular case warrant the departure from the usual rule (see (iii) above) and if such a departure is warranted on the evidence then whether appropriate safeguards can be imposed by the Court or Tribunal to ensure that the evidence given by such a method is evidence that will be acceptable as evidence (whether or not the truth of it is ultimately accepted) so that the Court and the parties and the public generally will be satisfied that the evidence is given in such a way that no person can genuinely say that there has been any injustice in that regard.

(v) Applications for videoconferencing evidence by defendants will be more likely to be accepted by courts than applications by plaintiffs, and applications to give evidence relating to evidence that is relatively uncontroversial are more likely to be granted than evidence that goes to the primary issue between the parties.

(vi) Where applications are granted the Court or Tribunal should be very careful to ensure that proper steps are taken to protect the interests of all parties including, in particular, facilities to enable all parties to be properly represented/present at the time when the overseas witness gives the evidence on the videolink.

Conclusions

26 A considerable amount of evidence was led before me as to the cost of a video conference link-up with Sweden. There was also evidence before me relating to the procedures to be adopted, the clarity of the transmission, and submissions were made as to the difficulties, particularly time/date difficulties, the length of cross-examination (anticipated to be between three and six hours), the ability of the cross-examiner to refer the witness in Sweden to documentation, and so on.

27 There are a number of factors that have weighed heavily upon me in making this determination:

· The complaint to the Law Society was made by the overseas witness, Mr Simpson. He has alleged, to put it bluntly, that the Solicitor stole from him $17,000.00. He is the primary witness for the Law Society and, presumably, if successful will seek a compensation order from this Tribunal. The Law Society has a statutory duty to discharge, a duty that brings it before this Tribunal, a duty to ensure that allegations which, if found, are capable to amounting to professional misconduct, are properly brought before this Tribunal.

· This Tribunal also has a statutory duty to discharge and it is important to recognise that there is a balancing act in applications of this nature, balancing the right of the legal practitioner to hold his/her Practising Certificate and to ensure that that right is not put under challenge other than by evidence adduced in the proper way to the comfortable satisfaction of the Tribunal.

· The facts supporting the application are, to say the least, somewhat sparse, in my opinion inconclusive and not persuasive. In addition, although admitted into evidence at this level, the evidence is untested.

28 Dealing with those facts I have set out above the medical certificate produced on behalf of the Society. As I stated it may well have suffered in the translation but it would seem that Mr Simpson suffers from some sort of asthma, he does not feel any anxiety about the air journey but seems to have some sort of anxiety about staying in Australia or being present in Australia. It is pure speculation on my part but this may arise because he has had asthma attacks in Australia, it may arise because of the pollen in the air or for whatever reason. But the evidence does not state that Mr Simpson will not travel to Australia and does not offer any solutions or possible solutions to the perceived problems, especially having regard, as I understand it, to the fact that he has travelled to Australia on past occasions.

29 I am also told that there are significant issues of credit and significant factual disputes.

30 Notwithstanding the decision in D P P v Alexander, it seems to me that the evidence of Mr Simpson is so vital to the case against the Solicitor that it would be quite inappropriate in the interests of justice not to have Mr Simpson present and available for cross-examination before the Tribunal. One's experience shows that cross-examination of a witness can often take longer, sometimes significantly longer, than originally anticipated, be wide and varied and may traverse a number of subjects not necessarily limited to the precise evidence in chief that the witness may give.

31 In the matter of Michael Lee Ball (No 13 of 1998) the practitioner made an application for particulars arising out of the pleaded Information.

In my judgment on that application (13 August 1998) and in granting the application, I made these observations at pp 2 - 4:

"In my view it would be wrong for me to embark upon an analysis of the material thus far filed and served. These are early days and one's experience shows that as matters progress issues in dispute are refined and even sometimes eliminated. The provision of particulars often assists in this process.

It would be difficult, in my view, therefore, to form an opinion on what material or information would be relevant to the issues to be debated before the Tribunal at the hearing of the information. This Tribunal deals with professional conduct. The range of matters that the Tribunal can look at in determining the quality of the conduct of a legal practitioner should not be limited by denying to a legal practitioner access to material and information on which the practitioner, at the hearing, may wish to rely.

I should not try to second guess the evidence or the submissions the practitioner may wish to put before the Tribunal at hearing. Conduct that prima facie appears professionally objectionable may, viewed in a different light, be not so regarded and I should not, in the exercise of my discretion, seek to limit (within reason) the practitioner in endeavouring to elicit from the informant matters that may go towards explaining or negativing, or even putting a different hue upon, the alleged professionally offensive conduct.

Proceedings in this Tribunal are serious. The issues are grave and weighty and an adverse finding against a legal practitioner may result in that practitioner's name being removed from the Roll. Consequently, in my view, it is important that the practitioner be permitted to seek from the informant particulars that may not necessarily fall strictly within the ambit of the filed information but which may affect the view that the Tribunal forms of the alleged conduct at hearing.

It is my understanding that particulars may be ordered, even if they are not strictly necessary, to limit the extent of the evidence given at the hearing or to prevent surprise at the hearing and are merely supplemental to the particulars. This Tribunal, in my view, has a wide discretion to order further particulars wherever the proper administration of justice requires. It involves a balancing of the interests of the parties and, in my view, that balance weighs in favour of the legal practitioner today".

32 There often are, therefore, many issues that require to be ventilated before a Tribunal of this nature which has the power to not only cancel a Practising Certificate or remove a practitioner from the Roll, but also to impose conditions on the way in which a practitioner may practise law in the future. One cannot say whether these matters would be ventilated in the evidence of Mr Simpson but my experience is that they often are so ventilated.

33 The allegation made by Mr Simpson is a very, very serious allegation. It goes to the very heart of the issue to be determined by this Tribunal. In my respectful opinion the balancing act that a Court or Tribunal needs to carry out when dealing with an application of this type must, in the circumstances of this case, tip in favour of the legal practitioner. In my view, the ordinary and well-tried and true method of giving evidence, dealing with objections, cross-examination and re-examination, is best served in this instance by having Mr Simpson present at this Tribunal and in my opinion the Application must fail.

34 I am mindful of the public duty performed by the Law Society. However, I am also mindful of the fact that there is a presumption of innocence and in the circumstances of this case the legal practitioner is entitled to have the case against him conducted in the usual and proper way.