Law Society of NSW v Konstantinidis [2004] NSWADT 179 (25 June 2004)

Last Updated: 23 August 2004

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL LEGAL SERVICES DIVISION

CITATION: Law Society of NSW v Konstantinidis [2004] NSWADT 179


PARTIES: APPLICANT
Council of the Law Society of New South Wales
RESPONDENT
Simon Konstantinidis



FILE NUMBERS: 032021

HEARING DATES: 17/06/2004

SUBMISSIONS CLOSED: 17/06/2004



DECISION DATE: 25/06/2004

BEFORE: Chesterman M - ADCJ (Deputy President)Greenwood J - Judicial MemberBennett C - Non Judicial Member





LEGISLATION CITED: Corporations Act 2001 (Cth)
Crimes Act 1900
Evidence Act 1995
Independent Commission Against Corruption Act 1988
Legal Profession Act 1987
Police Regulation Act 1988 (Vic)
Police Regulations (Vic)

CASES CITED: Sorby v Commonwealth [1983] HCA 10; (1983) 152 CLR 281
Green v Law Society [2002] NSWSC 25
Police Service Board v Morris [1985] HCA 9; (1985) 156 CLR 397
Tiakato v The Queen [1996] HCA 28; (1996) 186 CLR 454
Law Society of New South Wales v Foreman (1991) 24 NSWLR 238
Daniels Corporation v Australian Competition and Consumer Commission [2002] HCA 9
Rich and Silbermann v ASIC [2003] NSWCA 342

APPLICATION: Professional Misconduct - fail to comply with s. 152 Notice

MATTER FOR DECISION: Principal matter


APPLICANT REPRESENTATIVE: APPLICANT
I Wales SC, Counsel

RESPONDENT REPRESENTATIVE: RESPONDENT
B Walker SC, Counsel

ORDERS: Information dismissed


Reasons for Decision:

REASONS FOR DECISION – Ex tempore

1 This was an application by the Respondent Solicitor, Mr Simon Konstantinidis (‘the Solicitor’) to dismiss an Information laid against him by the Applicant, the Law Society of New South Wales (‘the Law Society’). The Information alleged a failure by the Solicitor to comply with a notice served on him by the Law Society Council on 28 February 2002 under section 152(1) of the Legal Profession Act 1987. This section 152 notice, as we will call it, was served in the course of investigation of a complaint against the Solicitor under Part 10 of the Act. The notice required him to provide written information outlined in a schedule to the notice.

2 In his reply to the Information, the Solicitor admitted that he failed to comply with the requirements of the notice, and also failed to indicate to the Law Society the reasons for his inability to comply. Under section 152, subsection 4:

A legal practitioner who, without reasonable excuse, fails to comply with such a requirement, is guilty of professional misconduct.

3 The information which the section 152 notice required the Solicitor to provide to the Law Society Council may be sufficiently described as follows.

4 First, he was required to state his knowledge of a letter dated 18 March 1998 on the letterhead of the Environment Protection Authority and addressed to a company called Carlisle Developments Proprietary Limited, and to state whether this letter was received by him. A copy of the letter was annexed to the notice.

5 Secondly, he was required to provide details of telephone conversations between him and one Raymond James Smith on 18 March 1998, of his dealings, including making payments of cash with Mr Smith during April 1998, and of his conversations and meetings with one Harry Zizikas, or with Mr Zizikas and Mr Smith, during August of 1998.

6 Thirdly, he was required to supply information as to each document contained in its file relating to property known as the Hume Highway site, at the time when he produced it to the Independent Commission Against Corruption – hereafter ‘ICAC’ – and also of all documents removed from that file before he produced it to the ICAC.

7 Mr Walker SC, appearing for the Solicitor, put forward four separate grounds for dismissing the information brought by the Law Society. These were as follows.

8 First, because the Solicitor previously gave answers at an ICAC hearing to questions which were effectively replicated in the notice served by the Law Society, and because at the ICAC hearing, he invoked the prohibition imposed under sections 37 and 38 of the Independent Commission Against Corruption Act 1988 (‘the ICAC Act’) against further use of these answers in disciplinary proceedings, the Law Society lacked the power to require the same answers in its notice, given that the notice was served in the course of investigation conducted with the view to instituting disciplinary proceedings.

9 Secondly, that on account of this prohibition arising under sections 37 and 38 of the ICAC Act, the Solicitor had, in the circumstances, a "reasonable excuse" under section 152 subsection 4 of the Legal Profession Act for failing to comply with the notice.

10 Thirdly, that the Solicitor’s claim of the common law privilege against self-incrimination constituted a reasonable excuse under section 152, subsection 4.

11 Fourthly, that the Solicitor’s claim of the common law privilege against exposure to penalties also constituted a reasonable excuse under this provision.

12 In our opinion, the first of these grounds fails, but the application succeeds on both the second and third ground, each of which would be sufficient to justify dismissal of the proceedings. As to the fourth ground, we decline to make a determination, due to current and unusual uncertainties in the scope of the privilege against exposure to penalties, and because a determination is not essential to dispose of the application as a whole.

13 In order to deal with the first and second grounds, we must outline the circumstances of the Solicitor’s involvement with the relevant hearing of the ICAC.

14 In 1999, the ICAC published a report entitled, "Report into the Conduct of an Officer of the Environment Protection Authority." It was prepared by an Assistant Commissioner, Mr John Stowe QC. The officer in question was Raymond James Smith. In chapter 7, entitled "Simon Konstantinidis and the Hume Highway site," and in section 11.6, headed "Simon Konstantinidis," the report outlined evidence and findings to the following effect.

15 First, that the letter on Environment Protection Authority letterhead to Carlisle Developments dated 18 March 1998 had been forged by Mr Smith, who was then an employee of the Environment Protection Authority.

16 Secondly, that this letter purported to give the Authority’s approval to steps that had been taken to deal with contamination at the Hume Highway site, thereby paving the way for the completion of a sale of it by Carlisle Developments.

17 Thirdly, that it was faxed on 18 March 1998 to the office of the Solicitor, Mr Konstantinidis, who was then acting for Carlisle Developments.

18 Fourthly, that on the same day, the Solicitor rang Mr Smith and said, amongst other things, "You’re wonderful, mate. What can I do for you? Anything? Tell me."

19 Fifthly, that on 24 April 1998 at the Solicitor’s office, he gave to Mr Smith an envelope containing $2000, representing a reward for having assisted the Solicitor, Carlisle Developments and its owner, Mr Theo Balaglow, by procuring the writing of the Authority’s letter at the Solicitor’s request.

20 Sixthly, that during conversations in August 1998 with Mr Smith and Mr Zizikas, whose company had carried out the decontamination works at the Hume Highway site, following the execution of ICAC’s search warrant at the home and business of Mr Zizikas, the Solicitor tried to persuade Mr Zizikas and Mr Smith to give false evidence at the ICAC inquiry regarding the payment of $2000 to Mr Smith.

21 Seventhly, that neither the forged Environment Protection Authority letter nor a letter to the purchaser’s solicitor attaching it was on the Solicitor’s file produced to the ICAC, but these two letters were both produced to the ICAC subsequently by the Solicitor, after it had revealed to him that it already had copies of them.

22 Within these parts of the ICAC report, there were findings by the ICAC of criminal conduct by the Solicitor: specifically, corrupt conduct under section 8 of the ICAC Act, the corrupt giving of a reward under section 249B, subsection 2 of the Crimes Act 1900, and the procuring of false testimony by a witness under section 89 of the ICAC Act. However, the report recommended that by virtue of the protection given for the Solicitor’s evidence before the ICAC under sections 37 and 38 of its legislation, a prosecution of any of these offences would be likely to fail for the lack of admissible evidence.

23 For the same reason, it recommended against giving consideration to bringing proceedings for professional misconduct against the Solicitor under the Legal Profession Act, based on the report’s findings.

24 It is appropriate now to refer to relevant parts of sections 37 and 38 of the ICAC Act. Section 37, subsection 1 reads:

A witness summoned to attend or appearing before the Commission at a hearing is not entitled to refuse -

then moving to subparagraph (b):

to answer any question relevant to an investigation put to the witness by the Commissioner or other person presiding at a hearing; or –

subparagraph (c) –

to produce any document or other thing in the witness’s custody or control which the witness is required by the summons or by the person presiding to produce.

25 Section 37, subsection 2 reads:

A witness summoned to attend, or appearing before the Commission at a hearing, is not excused from answering any question or producing any document or other thing on the ground that the answer or production may incriminate or tend to incriminate the witness, or on any other ground of privilege, or on the ground of a duty of secrecy or other restriction on disclosure, or on any other ground.

26 Section 37, subsection 3 states:

An answer made, or document or other thing produced by a witness at a hearing before the Commission is not, except as otherwise provided in this section, admissible in evidence against the person in any civil or criminal proceedings, or in any disciplinary proceedings.

27 Section 37 subsection 4 commences:

Nothing in this section makes inadmissible –

and moving now to subparagraph (b) –

any answer, document or other thing in any civil or criminal proceedings, or in any disciplinary proceedings, if the witness does not object to giving the answer or producing the document or other thing, irrespective of the provisions of subsection 2.

28 Section 38 states as follows:

The Commissioner, or a person presiding at the hearing, may declare that all or any classes of answers given by a witness, or that all or any classes of documents or other things produced by a witness will be regarded as having been given or produced on objection by the witness, and there is, accordingly, no need for the witness to make objection in respect of each such answer, document, or other thing.

29 The ICAC report stated that it was by virtue of a declaration under section 38 that the evidence given by the Solicitor at the hearing attracted the operation of section 37, subsection 3.

30 Mr Walker submitted that the material in the ICAC report that we have just summarised constituted evidence, discharging his client’s evidentiary onus, to show that in preparing the section 152 notice, the Law Society had drawn on the report to the extent that the notice effectively required the Solicitor to disclose in his reply what he had said to the ICAC.

31 Mr Wales SC, appearing for the Law Society, accepted that the section 152 notice "flowed from" the ICAC report. He tendered no evidence to suggest the requirements of the notice were based on any other material unearthed by the Law Society in its investigation.

32 Our finding on this issue is that, as Mr Walker asserted, the information sought in the notice should be treated as equivalent to some or all of the information sought in the questions put to the Solicitor by the ICAC. Mr Walker argued that this finding necessarily led to the results claimed in grounds 1 and 2 of his application.

33 In ground 1, this result was that the prohibition in section 37(3) of the ICAC Act against use of the answers made by the Solicitor to ICAC in any subsequent disciplinary proceedings also precluded the Law Society from requiring, in effect, that these answers be supplied to it under a section 152 notice, given that the purpose of service of the notice was to obtain the answers for the purposes of a disciplinary proceeding against the Solicitor.

34 The outcome claimed in ground 2 was that since this the projected use of the information required under the section 152 notice would contravene the prohibition arising under section 37(3) of the ICAC legislation, the Solicitor had a "reasonable excuse" for not supplying that information, within the meaning of section 152(4) of the Legal Profession Act.

35 Mr Wales sought to counter this argument by saying that it gave an unduly broad scope of operation to section 37, subsection 3. All that this provision would prohibit, he said, was the admission of evidence into disciplinary proceedings that the relevant questions were put to the Solicitor and the answers made by him in the ICAC hearing. The interpretation claimed by Mr Walker would, he said, extend to "derivative" use of the content of these answers. It would, for instance, render inadmissible any evidentiary material obtained by the Law Society or anyone else through forensic investigations carried out in reliance on the answers given by the solicitor to the ICAC.

36 This type of derivative use of answers given by a witness is, in fact, prohibited expressly by section 128, subsection 7, subparagraph (b) of the Evidence Act 1995, and a certificate under that section has been given. But no provision equivalent to this subparagraph is to be found in section 37 of the ICAC Act.

37 Mr Walker denied that the interpretation of section 37, subsection 3, for which he contended, went as far as prohibiting "a derivative use" of the Solicitor’s answers to the ICAC. It would, he said, be quite open to the Law Society, having taken account of the content of these answers, to obtain evidence from other people, such as Raymond James Smith, in order to mount the case against the Solicitor for professional misconduct, based on the conduct revealed in these answers.

38 What section 37, subsection 3 prohibited, he submitted, was the admission into evidence in disciplinary proceedings of what he called the "self-accusation" inherent in the answers that the Solicitor had given.

39 On this issue, the interpretation of section 37, subsection 3, we accept Mr Walker’s argument. What section 37, subsection 3 prohibits, it seems to us, is the admission of "the answer made by a witness." It must also necessarily prohibit admission of so much of the question to which the answer is directed as is needed to make the answer intelligible.

40 It would, as we see it, subvert the purpose of the subsection if, in the course of some other process of investigation leading to disciplinary proceedings, such as section 152 of the Legal Profession Act, in which a refusal to answer potentially attracts sanctions, the interrogating authority could: (a) familiarise itself with the content of the interrogation at the ICAC; (b) require answers to the same questions, insisting on compliance; then (c) tender in the resulting disciplinary proceedings the same or similar answers by the witness as had received protection on section 37, subsection 3.

41 This interpretation of section 37, subsection 3, in its application to answers made by a witness, more or less accords with what we take to be its impact on documents produced by a witness. It seems to us that what section 37 subsection 3 prohibits in that regard is the admission in subsequent disciplinary proceedings of the actual document that was produced to the ICAC, not merely the fact that it was produced by the witness. What such a document discloses is therefore, in such other proceedings, to be proved by other means, if it is to be proved at all.

42 Where we part company with Mr Walker is, however, in relation to the next step argued in ground 1 of this application. This comprised a further proposition, namely, that it is beyond the power of the Law Society to include in a section 152 notice a requirement that a solicitor should disclose answers that fall within the protection given by section 37, subsection 3 of the ICAC Act. The reason, Mr Walker said, was that since section 152 conferred powers only for the purposes of an investigation leading potentially to disciplinary proceedings, the section could not authorise the acquiring of information that could not be admissible in those proceedings.

43 In our opinion, this proposition, if correct, would unduly constrain the Law Society. We can imagine that there might well exist information that the Law Society, or indeed the Bar Association or the Legal Services Commissioner, might consider useful to obtain under a section 152 notice for the purpose of the investigation, but which might well be inadmissible in the form in which it was conveyed in response to the notice, so far as the subsequent disciplinary proceedings were concerned. This should not, of itself, preclude these bodies from seeking such information.

44 Instead, in our opinion, the protection afforded under section 37(3) is sufficiently maintained if the argument in ground 2 is accepted. It is sufficient to recognise that a practitioner entitled to such protection in respect of answers previously made at an ICAC hearing can rely on this by way of "reasonable excuse" for non-compliance with a section 152 notice.

45 The practitioner can, in effect, claim that the existing prohibition on admission into disciplinary proceedings of his or her answers to the ICAC, will effectively be destroyed if, by virtue of the obligation to furnish the same information in compliance with the notice, an independent record of the same factual material has been created, and may be open to tender in subsequent proceedings. This, in our view, should constitute a reasonable excuse for not complying, under section 152, subsection 4.

46 This reconciliation of the competing considerations, which may be more pragmatic than logical, leaves it to the practitioner to choose whether to maintain the protection given by the ICAC legislation to his or her answers. Just as he or she could abandon this protection by voluntarily admitting within disciplinary proceedings themselves, or indeed anywhere else, to the matters contained in the evidence to the ICAC, he or she might choose not to assert under section 152 subsection 4 that there exists a reasonable excuse for not complying with a notice. The Law Society, the Bar Association or the Legal Services Commissioner should not be precluded from putting this choice before the practitioner.

47 Before leaving ground 2, we add that we have considered Mr Wales’ submission that the phrase "reasonable excuse" in section 152, subsection 4, is intended to cover only practical matters, such as the unavailability of documents, or an inability on the part of the practitioner to remember the relevant events. We do not think that it should be so confined.

48 We turn now to ground 3 of the application. This was that a practitioner on whom a section 152 notice has been served is entitled to raise by way of "reasonable excuse" the common law privilege against self-incrimination.

49 In making this argument, Mr Walker cited to us well-known authority to the effect that this privilege must be assumed to be available to any person subject to interrogation unless it has been unambiguously taken away. One such authority is the following passage from the judgment of Mason, Wilson and Dawson JJ in Sorby v Commonwealth [1983] HCA 10; (1983) 152 CLR 281 at 309:

The privilege against self-incrimination is deeply ingrained in the common law. The principle is that a statute will not be construed to take away a common law right, including the privilege against self-incrimination, unless a legislator’s intent to do so clearly emerges, whether by express words or necessary implication.

50 This passage was cited by Kirby J in the Supreme Court in the case of Green v Law Society [2002] NSWSC 25 at paragraph 30. This case involved an application by Mr Green, a solicitor, to stay the cancellation of his practising certificate by the Law Society under section 37(1)(a) of the Legal Profession Act, pending an appeal for a re-hearing by the court under section 38B. Mr Green had declined to provide information in response to a notice under section 37(1)(a) on grounds of self-incrimination.

51 Because a notice under this provision is quite distinct from a section 152 notice, Kirby J did not have to decide the question now confronting us, but his observations on the matter were helpful and should, we believe, be quoted. At paragraph 32, Kirby J outlined submissions by Mr Green that first:

The Legal Profession Act should be construed as preserving that privilege.

And secondly, that:

A reasonable excuse within section 152 subsection 4 was a fear, based on reasonable grounds (in this case, advice) that responding to such a notice may tend to incriminate the solicitor concerned.

52 At paragraph 34 his Honour referred to the case of Police Service Board v Morris [1985] HCA 9; (1985) 156 CLR 397. Here, the High Court held that two police officers who refused to answer questions from a senior officer regarding their apparent unauthorised absence from duty were held bound to answer. Under the Police Regulation Act 1988 (Victoria), the allegations raised against them, if proved, might well result in a finding that they had committed "offences" under the Act, and could be penalised by way of reprimand, reduction in rank, a fine or dismissal.

53 The majority of the High Court held that what they called the privilege against self-incrimination might well have been available to the officers even though the offences under the Act were disciplinary penalties "only", not criminal offences. The majority held, however, that the privilege, if available, was excluded by Regulation 95A, subsection 7 of the Police Regulations (Vic), which provided that no member of the force shall disobey any lawful order.

54 Kirby J’s comment at paragraph 34 of his judgment in Green was as follows:

However, that case concerned a fear of civil penalty arising from disciplinary proceedings, rather than jeopardy or potential jeopardy in respect of a criminal offence.

He went on:

On a stay application, it is unnecessary to reach a concluded view. The Act [referring here to the Legal Profession Act] does not, in unmistakable language, exclude the privilege against self-incrimination. It seems doubtful that the Act has excluded the privilege by necessary implication. Certainly, a real question arises, which is the relevant threshold which the plaintiff must meet on an application such as this.

55 At paragraph 35, he said this:

However, the failure to exclude the privilege is not a complete answer to justify a refusal to respond to questions addressed to a practitioner by the Law Society. The fear of self-incrimination must amount to a "reasonable excuse" within section 152 subsection 4.

56 Kirby J then cited High Court dicta in the case of Tiakato v The Queen [1996] HCA 28; (1996) 186 CLR 454 at 464, to the effect that the meaning of "reasonable excuse" in a statute depends on the circumstances of the case and the purpose of the provision. Kirby J then said at paragraph 36:

What, then, is the purpose of the section? Here, the Law Society is exercising powers which ultimately are designed to safeguard the public rather than punish the practitioner.

57 He cited then the case of Law Society of New South Wales v Foreman (1991) 24 NSWLR 238. He went on:

I am nonetheless prepared to assume, for the purpose of the stay application, that the privilege against self-incrimination has not been excluded, and that fear of self-incrimination constitutes reasonable excuse for the purposes of section 152 subsection 4.

58 Mr Walker’s argument, echoing the observations of Kirby J in Green, was in short that nothing in section 152 or in other relevant sections of part 10 of the Legal Profession Act, such as section 148 and section 155, abrogated, by express words or necessary implication, the privilege against self-incrimination.

59 The arguments put by Mr Wales and the responses to them made by Mr Walker were along the following lines.

60 First, the entitlement to be a legal practitioner was, in Mr Wales’ submission, a privilege, not a right. It depended on a continued state of good character. Accompanying this privilege was a practitioner’s duty of candour to disciplinary bodies and to this Tribunal. This, he said, was enough to displace the presumption that legal practitioners could not be compelled to incriminate themselves when served with a notice under section 152.

61 Mr Walker’s response was that while issues of character arise in establishing one’s entry to legal practice – as, indeed, is set out in Division 3 of Part 2 of the Act – it is provided in section 26 subsection 2, that a qualified, admitted legal practitioner is entitled to be issued with a practising certificate "subject to this Act". A practising certificate might be denied or cancelled under various provisions in Division 1 of Part 3, or indeed, by an order of the Tribunal under Part 10. But these operated by way of qualifications to a basic entitlement to practice.

62 Secondly, Mr Wales relied on a dictum of the High Court in Daniels Corporation v Australian Competition and Consumer Commission [2002] HCA 9. At paragraph 31 in the judgment of Gleeson CJ and Gaudron, Gummow and Hayne JJ, the following passage appears:

Today the privilege against exposure to penalties serves the purpose of ensuring that those who allege criminality, or other illegal conduct, should prove it. However, there seems little, if any reason, why that privilege should be recognised outside judicial proceedings. Certainly no decision of this Court says that it should be so recognised, much less that it is a substantive law.

63 Mr Walker’s response, as we understand it, was that this passage, which appears in part to conflict with the approach of the High Court in Morris, applied to the privilege against exposure to penalties, not to the privilege against self-incrimination. There is no doubt, we would say, that the High Court was carefully distinguishing these two species of privilege. This appears, in fact, from the very next sentence in paragraph 31.

64 Thirdly, Mr Wales argued that a legal practitioner answering a section 152 notice, has the protection of confidentiality set out in section 171P of the Legal Profession Act. This makes it an offence to disclose information obtained in the administration of Part 10, except (a) with the consent of the person to whom the information relates; (b) in connection with the administration of this Part; (c) for the purpose of legal proceedings arising out of the act or event, or of any report of such proceedings, or (d) without a lawful excuse.

65 A further exemption in subsection (2) is that disclosure may be made to the Chief Commissioner of State Revenue. Mr Wales argued that this implied that evidence tending to show criminal conduct, taking the form of an offence against State revenue legislation might, in fact, be obtained by the Law Society under a section 152 notice.

66 Mr Walker’s response to this submission was, briefly, that the section provided no help to Mr Wales’ argument.

67 Fourth, Mr Wales submitted that there was no prejudice to a practitioner in requiring that incriminating evidence be supplied under a section 152 notice, because in any subsequent proceedings under the Legal Profession Act, the court or tribunal could always, on objection by the practitioner, grant a certificate under section 128 of the Evidence Act, while also admitting the evidence. This would provide sufficient protection to the practitioner.

68 Mr Walker’s response was again that this provision did not affect the issues to be resolved, given that section 128 is administered by judicial officers, whereas the authorities requiring the information under section 152 are the Councils of the Law Society or the Bar Association, or the Legal Services Commissioner.

69 Fifthly, Mr Wales argued that nothing in relation to section 152(4) was actually decided in Green v Law Society. This, in itself, was not disputed by Mr Walker.

70 Sixthly, Mr Wales maintained, as we have already mentioned, that the phrase, "reasonable excuse" in section 152(4) was to be confined to practical difficulties in providing the required information. Mr Walker’s response was that there was no basis for so limiting the phrase.

71 Seventhly and finally, there was a contest between the two counsel regarding the implication of the High Court’s holding in Morris that Regulation 95A of the Victorian Police Regulations overrode any privilege against exposure to penalties or against self-incrimination that might have arisen. Mr Wales submitted that a legal practitioner’s duty of candour resembled, to a sufficient degree, the statutory duty to answering questions imposed on a police officer, and should be taken, therefore, to override the implication of privilege against self-incrimination.

72 Mr Walker argued in response that police officers were bound by the obligations of a regime of strict discipline which was at odds with the independence required in many contexts of a legal practitioner.

73 While this contest about the significance of this aspect of Morris expressly arose in connection with the Solicitor’s claim of privilege against exposure to penalties, it was, as we understood it, relevant also to the issue of privilege against self-incrimination.

74 Our conclusion, after carefully considering these competing arguments, is that Mr Walker’s submission should prevail. The basic principle that he urged on us was that the privilege against self-incrimination, if applicable at common law, can only be abrogated by express words or necessary implication in a statute.

75 We do not interpret the passage in Daniels as meaning that this privilege, in contrast to the privilege against exposure to penalties, is inapplicable in non-judicial proceedings.

76 While the confidentiality provision in section 171P of the Legal Profession Act and the certification procedure in section 128 of the Evidence Act provide some protection to a legal practitioner in circumstances where his or her answers to questions under a section 152 notice might be incriminating, they do not amount, in practice or in legal entitlement, to a right to claim "reasonable excuse".

77 While we acknowledge that the issue before us was not resolved in Green, we derive guidance from Kirby J’s recognition that the claim of such a privilege might well constitute a reasonable excuse.

78 Finally, while the obligations of candour that bind a legal practitioner, coupled with the other requirements of integrity permeating the Legal Profession Act, might well have similarities to the disciplinary obligations binding a police officer so as to establish some analogies with the decision in Morris, we do not think they compel the conclusion for which Mr Wales argues.

79 We note one crucial distinction between the exercise of statutory interpretation required in Morris and the exercise confronting us. This is simply that in Morris the obligation to answer imposed by regulation 95A was absolute and unqualified, whereas under section 152(4), a provision of "reasonable excuse" qualifies that obligation.

80 It is for these reasons that we uphold ground 3 of the application by the Solicitor. Our ruling is that by virtue of the privilege against self-incrimination, the Solicitor had a reasonable excuse under section 152, subsection (4), not to respond to the notice.

81 Ground 4 was that the privilege against exposure to penalties also provided reasonable excuse for the Solicitor to fail to comply with the notice. We take it that the "penalties" in issue here would be the orders that might have been made by this Tribunal against the Solicitor if the Law Society, relying on answers given by him to the notice, had instituted proceedings against him for professional misconduct on the basis of his conduct in the dealings with Mr Smith and Mr Zizikas. These are different proceedings from the criminal prosecution that might potentially be brought if there were no protection for material that we have held to be covered, in effect, by the privilege against self-incrimination.

82 As we have said, we will not determine this fourth ground in the Solicitor’s application because of particular and unusual uncertainties in the current law, and because it is not necessary for the final disposition of this application. These uncertainties arise because on 22 April 2004 the High Court stated, without giving reasons, that it allowed an appeal brought against the New South Wales Court of Appeal’s majority decision in Rich and Silbermann v ASIC [2003] NSWCA 342.

83 The significant holding in that decision was that the "penalties" to which the privilege against exposure to penalties applies do not include an order for disqualification from the management of companies made under section 206C or 206E of the Corporations Act 2001 (Cth). The basis of the majority decision by Spigelman CJ and Ipp JA was that such orders are not punitive, but are protective of the public interest. McColl JA dissented.

84 In all three judgments in the Court of Appeal, and in the High Court’s hearing on 22 April, there was discussion of disciplinary orders against legal practitioners (such as removal from the roll), made under the Legal Profession Act. But they were not treated as equivalent, for present purposes, to disqualification orders under the Corporations Act. This makes it particularly difficult to assess the impact of the High Court’s decision, in its relation to them, in the absence of any reasons for the judgment following the orders that it made on 22 April.

85 There are other difficulties surrounding the Solicitor’s claim based on this privilege: for example, the dictum already quoted in Daniels, suggesting that this privilege is not available in non-judicial proceedings.

86 Our reasons for not determining this fourth ground are, however, as we have said, the particular and unusual state of uncertainty in the law, and that a determination is not required for the purposes of disposal of this application as a whole.

87 The orders that we make are that the application made by the Respondent Solicitor is granted and that the Information laid by the Law Society in this matter, alleging professional misconduct by the Solicitor, must accordingly be dismissed.