Council of the New South Wales Bar Association v Archer (No 6) [2005] NSWADT 149 (4 July 2005)

Last Updated: 4 July 2005

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL LEGAL SERVICES DIVISION

CITATION: Council of the New South Wales Bar Association v Archer (No 6) [2005] NSWADT 149


PARTIES: APPLICANT
Council of the New South Wales Bar Association
RESPONDENT
Stephen John Archer
THIRD PARTY
Sara Anne Archer



FILE NUMBERS: 032019

HEARING DATES: 26/05/2005

SUBMISSIONS CLOSED: 26/05/2005



DECISION DATE: 04/07/2005

BEFORE: Chesterman M - ADCJ (Deputy President)Norton S SC - Judicial MemberBennett C - Non Judicial Member





LEGISLATION CITED: Administrative Decisions Tribunal Act 1997

CASES CITED: Grassby v R [1989] HCA 45; (1989) 168 CLR 1
Ishac v David Securities Pty Limited, Unreported, Supreme Court of New South Wales, 13 December 1991 (BC 9101344)
John Fairfax & Sons v Police Tribunal (1986) 5 NSWLR 465
John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131
Lewis v Nortex Pty Limited [2002] NSWSC 1064
Pelechowski v Registrar, Court of Appeal (NSW) [1999] HCA 19; (1999) 198 CLR 435
Trade Practice Commission v Arnotts Ltd (No 2) (1989) 21 FCR 306

APPLICATION:

MATTER FOR DECISION: Preliminary matter


APPLICANT REPRESENTATIVE: APPLICANT
P R Garling SC, barrister
G M Gregg, barrister

RESPONDENT REPRESENTATIVE: RESPONDENT
In person
THIRD PARTY
J Ireland QC, barrister

ORDERS: Orders made 26 May 2005
1. The Tribunal possesses the power to make an order for examination of the recipient of a summons issued under s 84 of the Administrative Decisions Tribunal Act 1997.
2. In determining whether an appropriate case has arisen for exercise of this power, the question to be asked is whether there is a ‘real issue’ as to the sufficiency of such production as has occurred
3. The range of matters that may be addressed in examination of the recipient of a summons is as outlined in paragraph 65 of these reasons
4. Section 168(1) of the Legal Profession Act 1987, requiring the rules of evidence to be applied, should extend to each of the present applications for examination of the recipient of a summons.


Reasons for Decision:

EX TEMPORE REASONS

1 These reasons relate to our decisions, delivered on 27 May 2005, on four legal issues that arose out of two applications made in these proceedings by the Informant, the Council of the Bar Association of New South Wales, against the Respondent, Stephen John Archer. These applications, filed on 9 December 2004, were as follows.

2 One was for an order that the Respondent should be examined as to his compliance with the summons to produce documents issued on 10 November 2003 under s 84(3) of the Administrative Decisions Tribunal Act 1997 (which from now on we will refer to as ‘the Tribunal Act’). The scope of this summons was reduced by an order of the Tribunal dated 25 February 2004. The Bar Association has advised us through its counsel that it is not satisfied with the extent of production pursuant to the summons.

3 The second application was for an order that Sarah Anne Archer be examined as to her compliance with a summons to produce documents, issued on 18 March 2004 under this same provision of the Tribunal Act. The scope of this summons was substantially reduced by an order of the Tribunal dated 13 October 2004. We understand that no documents have been produced in response to this summons and that the Bar Association is not satisfied with this outcome.

4 Three of the four issues covered in this judgment were formulated by us at the commencement of the hearing yesterday, based on written submissions that had been filed before the hearing. They are these: (1) whether the Tribunal, at least in proceedings within the Legal Services Division, has the power to make orders of the type sought; (2) if so, what circumstances warrant an exercise of the power; and (3) if the power is exercised, what general principles should govern the scope of any examination conducted.

5 The fourth question arose in the course of oral submissions. It concerns the operation of s 168(1) of the Legal Profession Act 1987, which reads as follows:

For the purpose of conducting a hearing into a question of professional misconduct the Tribunal is to observe the rules of law governing the admission of evidence despite any contrary provisions of section 73 (procedure of the Tribunal generally) of the Administrative Decisions Tribunal Act 1997.

6 In the present proceedings, it is alleged that the Respondent has been guilty of professional misconduct. The fourth question dealt with in these reasons is whether the present application, being an interlocutory application within those proceedings, falls within the phrase ‘a hearing into a question of professional misconduct’, or whether this phrase is confined only to the hearing of the substantive matter alleged in the Information.

7 Our conclusions on these four issues, in brief, are as follows.

8 First, the Tribunal does possess the power to make orders of the type sought; that is, for examination of the recipients of summonses issued under s 84 of the Tribunal Act.

9 Secondly, in determining whether an appropriate case has arisen for exercise of this power, the broad question to be asked is whether there is a ‘real issue’ as to whether such production as has occurred was sufficient. Although this requirement may in some cases be discharged by a statement, made by or on behalf of the party causing the summons to be issued, that he, she or it is not satisfied that production is complete, the present is not such a case.

10 Thirdly, as appeared to be common ground between the parties, the range of matters that may be addressed in examination of the recipient of a summons is as outlined by Beaumont J in Trade Practice Commission v Arnotts Ltd (No 2) (1989) 21 FCR 306 at 312-313, adopting a secondary authority and treating it as stating the law correctly.

11 In relation to the fourth issue, our holding is that the terms of s 168(1) of the Legal Profession Act 1987, requiring the rules of evidence to be applied, should extend to the present applications.

12 We will now elaborate on these conclusions and give our reasons for them.

13 With regard to the first issue, a number of provisions of the Tribunal Act were cited to us. We see the following as relevant to our determination.

14 Section 73(1) states that the Tribunal may, subject to this Act and the rules of the Tribunal, determine its own procedure.

15 Section 73(2) states that the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit subject to the rules of natural justice. It is the opening words of this subsection that we have held in the circumstances not to be applicable. The rules of evidence are applicable to these proceedings by virtue of our decision on the fourth question.

16 Section 73(5)(b) states that the Tribunal is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings.

17 Section 83 provides in subsection (1) that the Tribunal may (a) call any witness of its own motion in any proceedings; (b) examine any witness on oath or affirmation or by use of a statutory declaration in any proceedings; (c) examine or cross-examine any witness to such extent as the Tribunal thinks proper in order to elicit information relevant to the exercise of the functions of the Tribunal in any proceedings; and (d) compel any witness to answer questions which the Tribunal considers to be relevant in any proceedings before it.

18 Subsection (2) of s 83 provides in substance that if the Tribunal decides to call a person as a witness under subsection (1)(a), it may seek to procure the voluntary attendance of the person or may direct the Registrar to issue a summons to compel attendance.

19 Section 83(3) provides that nothing in subsection (1) enables the Tribunal to compel a witness to answer a question if the witness has a reasonable excuse for refusing to answer the question.

20 Section 84(1) provides that a summons may, for the purpose of this Act, be issued by the Registrar, on the application of a party to proceedings before the Tribunal or at the direction of the Tribunal.

21 Section 84(3) states that any such summons may require a person to do any one or more of the following; (a) attend and give evidence (b) attend and produce documents or other things.

22 Section 84(4) states that a person who, without reasonable excuse, fails to comply with the requirements of the summons is guilty of an offence.

23 Finally, s 131 of the Tribunal Act provides, in subsection (1) paragraph (b), that the Tribunal may report the following matters to the Supreme Court... ‘if a person fails to produce any document or other thing in the person's custody or control of the person who is required by summons to produce after having been served with a summons to attend before the Tribunal’. Subsection (2) states that if a Tribunal makes a report under subsection (1), the Supreme Court may deal with the matter as if it were a contempt of the Court.

24 None of these provisions authorise the Tribunal to examine the recipient of a summons in the manner which is sought by the orders for which the Bar Association has applied. But we accept the argument of Mr Garling SC, for the Bar Association, that when due regard is paid to the nature of the express powers conferred on the Tribunal by these provisions, the Tribunal must have an implied power of the type argued for.

25 The leading authority on the implied powers of statutory courts and tribunals of limited jurisdiction, such as this Tribunal, is the judgment of Dawson J in Grassby v R [1989] HCA 45; (1989) 168 CLR 1. At 16-17, Dawson J said this, in relation to the powers of magistrates’ courts in New South Wales established under the Justices Act 1902:

On the other hand, a magistrate's court is an inferior court with a limited jurisdiction which does not involve any general responsibility for the administration of justice beyond the confines of its constitution. It is unable to draw upon the well of undefined powers which is available to the Supreme Court. However, notwithstanding that its powers may be defined, every court undoubtedly possesses jurisdiction arising by implication upon the principle that a grant of power carries with it everything necessary for its exercise.... Those implied powers may in many instances serve a function similar to that served by the inherent powers exercised by superior court that they are derived from a different source and are limited in their extent. The distinction between inherent jurisdiction and jurisdiction by implication is not always made explicit, but it is, as Menzies J points out, fundamental.

26 At 17, Dawson J said this:

It would be unprofitable to attempt to generalize in speaking of the powers which an inferior court must possess by way of necessary implication. Recognition of the existence of such powers will be called for whenever they are required for the effective exercise of a jurisdiction which is expressly conferred but will be confined to so much as can be 'derived by implication from statute provisions conferring particular jurisdictions'.

27 In Pelechowski v Registrar, Court of Appeal (NSW) [1999] HCA 19; (1999) 198 CLR 435 the issue arose as to the extent of the implied powers of the District Court of New South Wales, which is also a statutory court. Having referred to Dawson J's judgment in the Grassby case, Gaudron, Gummow and Callinan JJ said this at 452:

The term 'necessary' in such a setting as this is to be understood in the sense given to it by Pollock CB in Attorney-General v Walker, namely, as identifying a power to make orders which are reasonably required or legally ancillary to the accomplishment of the specific remedies for enforcement provided in Div 4 of Pt 3 of the District Court Act. In this setting the term 'necessary' does not have the meaning of 'essential', rather, it is to be 'subjected to the touchstone of reasonableness'.

28 The Respondent submitted that because this Tribunal is a tribunal, not a court, these statements of principle are inapplicable. He relied in particular on a passage in the judgment of McHugh JA, with whom Glass JA agreed, in John Fairfax & Sons v Police Tribunal (1986) 5 NSWLR 465. This case concerned the implied powers of the Police Tribunal of New South Wales, which was, as McHugh JA noted at 476, an ‘inferior court of record created by statute’.

29 His Honour then stated the principle regarding implied powers in terms similar to those in the passage that we have quoted from the Grassby decision, though he in fact used the term ‘inherent powers’. He then said:

There can be no doubt that a court which is endowed with a particular jurisdiction has powers which are necessary to enable it to act effectively within such jurisdiction.

30 The sentence following soon after, on which the Respondent relied, was this:

The source of this inherent jurisdiction is the implied authority conferred on the judiciary to uphold, protect and fulfil the judicial function by ensuring that justice is administered, both in a particular case and as a continuing process, according to law and in an effective manner.

31 The Respondent argued that this Tribunal does not form part of the judiciary and does not carry out ‘the judicial function’. He also argued that this statement of principle by McHugh JA in John Fairfax v Police Tribunal was not essential for the decision. The decision was instead based on a ruling that, if such an implied power existed, it did not authorise the making of the order by the Police Tribunal that had been challenged in the Court.

32 We accept, however, the response of Mr Garling, which was to the following effect.

33 First, the statements of principle by McHugh JA in the case of John Fairfax v Police Tribunal were expressly made with regard to a body which has the label ‘tribunal’.

34 Secondly, in a later decision, John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131, Mahoney JA, in considering the implied powers of the Local Court of New South Wales, referred (at 160) to the judgment of Dawson J in Grassby, then adopted the test stated by McHugh JA in the Police Tribunal case for determining what powers should be implied. He observed in this context that ‘in that case’ (that is to say, the Police Tribunal case), ‘the court was considering the powers of a statutory tribunal, the Police Tribunal of New South Wales’.

35 The third point made by Mr Garling stemmed from the fact that in Grassby itself the relevant power of the magistrate’s court was exercisable, if it existed, during the conduct of committal proceedings, which do not involve the exercise of the judicial function.

36 On this issue, Dawson J said (at 17) the following:

The fact that in the conduct of committal proceedings a magistrate is performing a ministerial or administrative function is, of course, no bar to the existence of implied powers if such are necessary for the effective exercise of the powers which are expressly conferred upon it.

37 We are satisfied on the basis of this authority that the principle of implied powers operates in relation to a statutory tribunal, such as this Tribunal, just as it operates in relation to an inferior court established by statute with limited jurisdiction.

38 This relieves us of the necessity of determining whether in the exercise of its powers within the Legal Services Division this Tribunal is in fact properly characterised as a court exercising judicial power.

39 We consider therefore that the Tribunal, to quote again from the Pelechowski decision, has the implied power to make orders which are ‘reasonably required or legally ancillary’ to the exercise of its statutory functions.

40 The relevant statutory functions in this case are these: the Legal Services Division of the Tribunal performs the role of making original decisions, as defined in s 7 of the Tribunal Act, in relation to matters over which it has jurisdiction under Part 10 of the Legal Profession Act 1987.

41 Under s 73(1) and (2) of the Tribunal Act, which we have quoted, the Tribunal may determine its own procedure and may inform itself as it thinks fit, subject to the rules of natural justice.

42 Under s 73(5)(b), it is required, not merely empowered, to ‘ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue’.

43 Under s 84, it may issue summonses, on the application of a party or at its own direction, to require a person to attend and produce documents or other things.

44 In our judgment, an implied power to make orders for examination of recipients of summonses – subject to appropriate limits and safeguards that have been spelt out in the context of summonses, subpoenas, and notices to produce issued by superior courts – is necessary, in the sense of being ‘reasonably required’, to ensure that the Tribunal can act effectively in discharging, in particular, its duty under s 73(5)(b) to ensure that all relevant material is disclosed to it.

45 We note also that in s 83(1) a specific mechanism is created for exercising a power of examination. The Tribunal is empowered to call witnesses of its own motion and to examine witnesses on oath or affirmation.

46 In so ruling, we reject two arguments raised in opposition.

47 First, the Respondent argued that s 73(5)(b) and s 84 had nothing to do with each other because, while the former provision dealt with disclosure to the Tribunal, s 84, at least as invoked in this case, establishes the procedure for parties to proceedings to obtain access to documents.

48 In our view, however, a summons under s 84 requires production of documents to the Tribunal, not to a party. Parties have access only if the Tribunal to which the documents have been produced grants such access.

49 Secondly, Mr Ireland QC, counsel for Mrs Archer, and the Respondent, adopting his submissions, argued that at least in this case no implied power arose because the orders sought were for the examination of the Respondent and of Mrs Archer ‘as to their compliance with the summonses addressed to them’.

50 Mr Ireland submitted that since Mrs Archer had had legal advice as to her obligations under the summons, and since the Respondent, a legal practitioner, was fully able to understand his obligations, the examination envisaged by the orders sought would necessarily be directed at proving that these two individuals had failed to comply with the summons. But the Tribunal had, Mr Ireland argued, express powers for dealing with a situation such as this. On being satisfied from appropriate evidence, it could refer the alleged non-compliance to the appropriate authorities for prosecution of the offence created by s 84(4), or it could report the matter to the Supreme Court as a contempt - as an alleged contempt, we should say under s 131(1)(b).

51 Given the existence of these express powers there could not, Mr Ireland argued, be an implied power to order that an examination should occur. This would, in effect, be a ‘low-level poor man's contempt trial’.

52 Mr Ireland pointed out also that in any examination of Ms Archer or of the Respondent as a witness summoned under s 83 of the Tribunal Act, the Tribunal's power would be circumscribed by subsection (3). This provides that a witness, having a reasonable excuse, may refuse to answer a question put to him or her.

53 We do not accept this argument. We recognise, as later sections of this judgment will show, that the range of questions that might be put to the Respondent or to Mrs Archer, if we made orders for their examination, is subject to significant limitations. But the way may be opened up for them to be examined on oath or affirmation as to their compliance, which is not the case when they simply answer the summons.

54 In fact, the seriousness of the consequences arising from any exercise of the Tribunal's powers to refer matters such as this for prosecution or contempt proceedings provide grounds, in our opinion, for holding that the implied power claimed for the Tribunal by the Bar Association does in fact exist.

55 It is, in our opinion, ‘reasonably necessary’ for the Tribunal to be able to set in train a ‘low level procedure’, to use Mr Ireland's phrase, falling between the extreme measures of prosecution and contempt proceedings and the undesirable expedient of doing nothing further to discharge the Tribunal's duty under s 73(5)(b) of ensuring that all relevant material is produced to it.

56 These are our reasons for ruling, on the first issue argued before us, that the Tribunal does have power to make orders of the type sought.

57 We turn now to our reasons in support of our second determination.

58 Our principal ruling on this question is that if a power to order the examination of the recipient of a summons for production of documents is to be exercised, there must be a ‘real issue’ as to whether the production that has occurred so far is sufficient.

59 This is the phrase that was used by Hamilton J in Lewis v Nortex Pty Limited [2002] NSWSC 1064, at [5]. His Honour was then ordering, in the course of a trial, that the recipient of a notice to produce should be examined as to his response to it. (It was common ground we should add, between the parties, that on this particular issue a notice to produce may be equated with a subpoena or a summons to produce.)

60 This same question of what circumstances justify exercise of the power is touched on in two earlier decisions that were cited to us. In Ishac v David Securities Pty Limited, Unreported, Supreme Court of New South Wales, 13 December 1991 (reported by Butterworths as BC 9101344), his Honour said at page 4 that an examination such as we are now concerned with could be conducted 'where there appears to be an unsatisfactory answer to a notice to produce'. In Trade Practices Commission v Arnotts Ltd (No 2) (1989) 21 FCR 306 Beaumont J said at 314 that, the discretion to order an examination was exercisable when 'an issue had arisen' as to the existence of any of the documents sought.

61 These three cases are the only authorities that counsel could draw to our attention on this specific question. In each of them the court appears to have made an order for examination without having heard evidence from the party seeking the order to show that production had not been complete. But, as Mr Ireland and the Respondent submitted, and indeed as Hamilton J said in Nortex, they were not ordinary cases. The trials themselves, or protracted interlocutory proceedings, were already in train when those decisions were made. The court in each case was therefore in a position to act upon a statement from the party seeking the order that it was not accepted that production was complete.

62 The present case, however, is not such a case, as we see it. We must therefore pay heed to a further observation of Hamilton J in the Nortex case at [6]. He said that ‘perhaps in an ordinary case the court may be sceptical and not prone to exercise discretion upon a simple statement of non-acceptance’.

63 In our judgment, therefore, a sufficient trigger for exercise of the power does not arise merely from the statements by the Bar Association that it is not satisfied that production by the Respondent or by Mrs Archer has been complete. Instead the Bar Association, if it is to have such an order against either or both of these individuals, must also show through evidence that there exists a ‘real issue’ as to whether production has been sufficient.

64 On the third issue, both parties have appeared content to adopt as an authoritative statement of relevant principles the following passage in Beaumont J's judgment in Trade Practices Commission v Arnotts at 312-313. His Honour was there reproducing the following passage by Justice Moffitt in a book edited by H H Glass (Glass JA as he subsequently became), Seminars on Evidence, 1970, at 10-11:

There seems no reason why the court should not have a discretion to ask of the person required to produce documents questions for this purpose, either informally or on oath. In exercising such a discretion the court would not infringe the privilege of a person not to incriminate himself, having regard to the fact that deliberate non-compliance with a subpoena is a contempt of court with penal consequences.... Any such discretion could not extend as far as conducting a discovery process.... The precise limits of questions of a person subpoenaed to produce documents are debatable, but it seems that a judge could ask and possibly permit to be asked, questions informally or on oath to ensure that the party understood the terms of the subpoena and the documents referred to and his obligation thereunder, including his obligation regarding documents in his possession or power and relating to search. If the judge thought fit no doubt he could exercise a power under section 12 of the Evidence Act [this being the Evidence Act then in force] to give a more specific order to such a person when before the court. It would seem, however, that questions could not extend to establishing proof that the person was in contempt of court, nor could they be of the search and inquiry type such as to the person's knowledge as to the location of documents not in his present possession or control, or as to the nature of other documents in his possession not within the scope of the subpoena, or as to a system of books or the like, so that this material could be used to search for other evidence or to enable a different subpoena to be framed.

Questions asked of a stranger, whether informal or on oath and whether relating to a claim of privilege or otherwise do not constitute evidence in the trial. Such inquiry is a function exercised on the responsibility of the judge and is merely ancillary to the trial. Probably the person should be sworn, not ad testificandum but to make true answer to all such questions as the court should demand of him.

65 If either or both of the examinations sought are in fact conducted, and as we have said, that is not yet a matter resolved, further questions may arise as to the permissible scope of the examination. They can be resolved if and when they do arise.

66 Fourth and finally, we turn to the question whether s 168(1) of the Legal Profession Act 1987, requiring the Tribunal to observe the rules of evidence, applies to this hearing, arising as it does in the course of proceedings for professional misconduct.

67 The matter was argued only briefly before us. We have searched appropriate databases, as far as we have been able, for authority to assist us and we have looked at the use of the term ‘hearing’, in particular, in other sections within Part 10 of the Legal Profession Act 1987. We have obtained no clear guidance from these exercises.

68 On balance, we consider it likely that, on a true interpretation of the Act, s 168(1) does apply to any hearing arising in the course of proceedings alleging professional misconduct, not just to the substantive hearing on the matters alleged.

69 On this view, that subsection would apply to the present hearing. But in case this view is not correct, we think that in any event these rules should apply. Under s 73(2) of the Tribunal Act we are empowered, we believe, to hold to this effect, even if technically we are not bound to do so under s 168(1) of the Legal Profession Act 1987.

70 The outcome of these rulings is that it is now open to the Informant in these proceedings to adduce such evidence as it may wish in support of its applications.