NSW Law Society loses appeal for more time in case against lawyer
An application from the Law Society of NSW for an extension of time to commence disciplinary proceedings has been dismissed by the state’s Civil and Administrative Tribunal, after the Society had “erroneously archived” a file pertaining to professional complaints.
At a time when he had finished his legal studies but was still undertaking mandatory practical subjects, prior to admission as a solicitor, Simeon Patrick Moore completed some research of a non-legal nature for Australian businessman Garry Donoghue, to help him deal with certain legal proceedings.
In the course of undertaking that research, he came across documentation regarding the business activities of Mr Donoghue, which he provided to the Australian Taxation Office when said documents were requested by them.
In Federal Court proceedings, the presiding judge ruled that the documents were privileged and criticised Mr Moore for his handling of the matter, which the latter said had “disastrous consequences” by way of derogatory comments in the media, an inability to seek employment, ill-health and adverse impacts on his family.
And while that first instance decision about privilege was subsequently overturned on appeal, Mr Moore submitted that it was unlikely “that he would ever be able to return to the practice of law”.
The Law Society’s Professional Standards division noted in May 2015 that, in his application for a practising certificate for the year ending June 2014, he had failed to declare that he was aware of any finding, conduct or event that would call into question his fitness to hold a practising certificate.
A notice was issued under section 660 of the Legal Profession Act 2004 to produce documentation, which the Law Society contended was not complied with in the requisite time period.
On 4 February 2016, NSW Legal Services Commissioner John McKenzie was notified of complaints made against Mr Moore, alleging that he had “without reasonable excuse, failed to comply with a requirement under s660” of the act.
The Law Society decided to commence disciplinary proceedings against Mr Moore on 29 June 2017, meaning an application to initiate proceedings was due on 29 December 2017. However, the application was not filed until 14 March 2018.
In the words of Law Society director of professional standards Anne-Marie Foord, the application was not filed within the prescribed time frame because “the file(s) relating to the complaints had been erroneously archived”, and once this became apparent, “the application was thereafter expeditiously prepared and filed”.
The tribunal noted: “As is obvious, the commencement point for any consideration [of disciplinary proceedings] is the fact that the legislature has seen fit to impost a time limit”.
And while public interest is an important consideration, it must be taken into account in the context of all other relevant matters, it said.
“The period fixed for the commencement of proceedings is six months from the date of the decision taken to initiate them. Prima facie, the legislature intended that this was a reasonable period in which to commence proceedings. One might anticipate that at that stage the Commissioner would be in possession of such evidence as would form the basis of an evaluation that misconduct had occurred,” the Tribunal determined.
On the question of the period by which the limitation period had been exceeded, it said: “The application was filed approximately 10 weeks late. Whilst such a period is not, of itself, lengthy, it may be considered a significant period in the context of a total period of 26 weeks in which to commence proceedings”.
The only evidence before the tribunal as to why there was a delay in submitting the application, it reflected, was that the relevant file had been archived incorrectly.
“No explanation is proffered about the circumstances in which the file or files relating to the complaints had been ‘erroneously archived’. Likewise, there is no information provided about any systems which the Law Society of NSW utilises for the processing of complaints.”
“In the absence of evidence, it is difficult to give any weight at all to any suggestion that there was a reasonable excuse why a time limitation of 26 weeks was exceeded by 10 weeks. No appropriate, reasonable excuse has been proffered for the failure to comply with the time limitation,” it said.
The tribunal ceded that public interest is paramount, and the public must be suitably protected against legal practitioners who have “misconducted themselves in the course of their practice”, and that the nature and extent of this public interest will vary depending upon the nature and extent of the misconduct.
“The failure to comply with the strict time limit imposed in connection with the issue of the s 660 notice seems to us to be a matter confined to the particular personal circumstances of [Mr Moore] and does not have any wider public application,” it said.
“We concluded that there is no sufficient public interest in these proceedings which would cause us to conclude that an extension of time should be granted as contended.”
The NSW Law Society’s application for an extension of time to initiate proceedings against Mr Moore was thus dismissed, with costs reserved as per requests from both parties.