Procedure

AB v Judaical Commission of NSW (Conduct Division) 2018 NSWCA 264

AB v Judaical Commission of NSW (Conduct Division) 2018 NSWCA 264 AB, a Local Court Magistrate, was the subject of complaint to the Judicial Commission of NSW and in turn referred to the Conduct Division. Pursuant to s.24(l) of the Judicial Officers Act the Conduct Division “May hold hearings in connection with the complaint”. On 8 June 2018 the Conduct Division directed that a hearing be held and affixed the dates for the hearing. Pursuant to s.24(2) the Conduct Division may determine that a hearing “be held in public or in private”.  On 8 October 2018 the Conduct Division determined that the hearing should be held in public. AB appealed to the NSW Court of Appeal from the decision of the Conduct Division. The Court, comprised of Basten JA; Meagher JA and Gleeson JA, dismissed the summons seeking judicial review of the decision of the Conduct Division to hold a hearing in public. 1 Eleven grounds of review were relied upon by AB. It was argued that the Conduct Division “plainly fell into error by wrongly construing s. 24(2)” and in so doing “failed to consider the purpose of the text of s.24(2) in its proper context within the operation of the Judicial Officers Act”. The Court held that grounds 1 and 5 were without substance and that the Conduct Division dealt with the power to determine whether a hearing be held in public or private properly. Grounds 2 and 3 were also rejected and the Court found that the Conduct Division did not conclude that it had made a constraining order at some point which had no power to undo the order: it was patently more concerned about the effect of failing to make such an order, which was the course that took over the objection in the applicant.2 Ground 4 alleged that the Conduct Division “incorrectly applied the principles of ‘open justice’ to an administrative rather than judicial context”. The Court observed that an incorrect application of a legal principle does not necessarily involve jurisdictional error. Further, that giving ‘too much weight’ to a permissible consideration does not usually indicate jurisdictional error. Their Honours referred to the observations of Spigelman CJ in Bruce v Cole3  that the role of the Conduct Division was to provide a procedural strength, reinforced in the principle of judicial independence, in the system for maintaining the integrity of the judiciary pursuant to which “from the passage of the act of settlement (1700) Eng” it has been accepted that judicial officers cannot be removed except by exceptional measures involving action by both the executive and the legislature.4 The Court also rejected Ground 6 of ‘public interest’. The Court at [54] observed “the term ‘Public interest’ has no precise meaning. It is protean and will take its possible meanings from the context in which it is used. In fact each of the six criteria set out in the Guideline involves an element of the ‘public interest’”. Grounds 7, 8, 9, 10 and 11 were also rejected. 1 See AB v Judicial Commission of NSW (Conduct Division) [2018] NSWCA 264.        2 Para [35] 3 (1998) 45 NSWLR 163 At [166]-[177] 4 Bruce v Cole (1998) 45 NSWLR 163 At [166f]

AB v Law Society of NSW [2018] NSWSC1975 Davies J

In this matter Greg Walsh acted for AB in a very important case against the Law Society of NSW.

AB at the time of instructing Mr Walsh was a Solicitor with Firm 1. Her supervising partner was CD. That supervising partner on 3 March 2016 requested that she pop in and see her and when AB did so a piece of paper was handed to AB consisting firstly of CD’s signature and that of EF, CD’s former partner and the father of a child XY. AB witnessed CD’s signature as a person over the age of 18 years and not related to CD. She neither witnessed it as a Solicitor or in her capacity as a Solicitor. CD then asked her can you witness EF’s signature as well. She did so. AB said to CD “Has EF been in to sign this?” CD said “Yes I met him this morning”. AB had no reason not to believe what her supervising partner told her and signed the documents.

The next day AB overheard a phone call made by CD with a person likely to have been EF. As a result of the matters that she heard in the call CD said to AB that he had received a call from the Passport Office about the Passport Application. AB became suspicious at that point that EF may not have signed the application because CD had said to EF on the phone that she was taking XY to New York.

Davies J set out in his judgement at paras [9-14] further evidence in respect of the circumstances of the execution of the Passport Application and the results of investigation conducted as to what had occurred in such circumstances.

On 1 September 2016 AB contacted the Law Society and was referred to the Senior Solicitors Scheme and thus represented by Greg Walsh. Mr Walsh obtained instructions from AB and on 17 November 2016 sent a letter to the Law Society making full disclosure of the matters on behalf of AB.

Davies J thereafter sets out in some detail the extensive exchange of correspondence between Greg Walsh and the Law Society. Greg Walsh asserted that the Law Society had not afforded procedural fairness to his client and had not disclosed documentation consisting of two statutory declarations of CD to the Law Society. Mr Walsh on behalf of AB asserted that the full statutory declaration provided to the Law Society by CD be provided to him on behalf of AB. Justice Davies refers to Mr Walsh’s assertions in his judgement at paras [21-23]. On 6 July 2018 Ms Foord on behalf of the Law Society replied to Mr Walsh stating “You have been provided with everything that is relevant to the Society ‘s investigation of the complaint about AB. Those parts of CD ‘s statutory declaration that do not relate to your client or to the complaint about her will not be provided to you”.

At para [24] Justice Davies made this finding “In fact, the Law Society’s statement in that letter was untrue. Not only did the Law Society have the statutory declaration of CD from which it had quoted, but it had another statutory declaration, made at an earlier time, with answers to questions which had been asked of CD by the Law Society. That only became clear when Mr Walsh saw the report from the Bar Association mentioned earlier. That statutory declaration was not made available until a subpoena and a notice to produce was issued to the Law Society shortly before the present hearing. The other statutory declaration has never been made available to the plaintiff”.

Justice Davies set out in his judgement at [25-26] the result of the investigation made by The NSW Bar Association to grant AB a Practising Certificate as a Barrister. Mr Walsh on her behalf had made full disclosure about the complaint to the Law Society. The Bar Association had been abled by way of notice issued to the Law Society to obtain the relevant statutory declaration.

At [27] His Honour notes that on 12 September 2017 Mr Walsh wrote to the Law Society indicating that he had now learnt that there were in fact two Statutory Declarations. The First Statutory Declaration of CD contained significant admissions which are directly relevant to the allegations of Professional Misconduct against AB. At [28] the Law Society did not reply. Greg Walsh wrote again on 16 October 2017. In that letter he asserted “…[l]t is submitted that the decision to conceal from AB and myself as her solicitor the contents of the First Statutory Declaration of CD provided to the Law Society on 21 April 2017 is utterly contrary to the obligations of procedural fairness/natural justice. …”.

Ms Foord on behalf of the Law Society responded in a letter of 24 October 2017 again asserting that everything relevant had been provided to Mr Walsh on behalf of AB.

At [30] Justice Davies made this finding “It was again not true that all relevant material had been provided to AB. The Law Society had still not made available the statutory declaration from CD in its possession. The letter of 20 June 2017 which first disclosed the existence of a statutory declaration by CD did not mention the date of that statutory declaration. It could not, therefore, be inferred from the references in the letter of 24 October 2017 that what was being spoken of was a second statutory declaration by CD”.

On 1 February 2018 the Law Society resolved to refer that AB to the Administrative Tribunal

Occupational Division on the basis that she had falsely witnessed the signature of EF on a

Passport Application of about 3 March 2016. It provided reasons for its decision which were then set out by His Honour at [40].

Throughout the ordeal suffered by AB, Mr Walsh had obtained reports from her treating psychiatrist Dr David Sturrock. These set out the tragic circumstances in which she suffered from a major depressive illness: shock, depressed mood, nightmares, insomnia, anxiety, panic attacks, tearfulness, nausea, dry mouth and poor concentration and suicidal ideation. The response by the Law Society to such overwhelming evidence was simply to assert that it in no way was responsible having regard to its conduct in delaying the investigation and concealing evidence that was clearly relevant to the allegations made against AB. Tragically, AB attempted to take her own life on three separate occasions.

Justice Davies ultimately held for the reasons set out in his judgement that the Law Society had failed to accord procedural fairness to her and further had failed to provide adequate reasons in both the decisions of 14 December 2017 and I February 2018 meaning the decisions could not stand. His Honour further found that the reasons for the decision of I February 2018 disclosed jurisdictional error.

The Law Society then despite His Honour reserving his decision resolved to commence proceedings in the tribunal and did so on 1 August 2018. His Honour made an order in the nature of certiorari quashing the decisions of the Law Society made on 14 December 2017 and 1 February 2018.

This judgement of Justice Davies is a fundamental one in respect of the proper manner in which the Law Society of NSW ought to have investigated the allegations of Professional Misconduct against AB. She, somewhat remarkably, is still alive to continue assisting the community as a member of the NSW Bar Association.

DTS v R [2008] NSWCCA 329

The appellant made three complaints about his Honour’s Murray direction to the jury. First, that a Murray direction should have also been given in respect of count 1. Secondly, that the failure to give a direction in respect of count 1 may have confused the jury, in circumstances where the Crown case depended almost entirely upon the evidence of the complainant. Thirdly, that his Honour erred in informing the jury that the direction was required at law, and not because of any view about the evidence held by the trial judge. Finally, the appellant submitted that the jury should have been directed that the relationship evidence needed to be proven beyond reasonable doubt.

To view a copy of the Judgment click here.

AW and Ors v State of NSW [2005] NSWSC 1173

In this matter Greg Walsh acted for AW and others in respect of an application for costs arising from an action for malicious prosecution, wrongful arrest and false imprisonment. Bell J had entered verdicts in favour of the second and third plaintiffs in AW & Ors v State of New South Wales [2005] NSWSC 543.

The application for costs was complicated having regard to the fact that the first plaintiff was unsuccessful in his claim based upon malicious prosecution.

The State of New South Wales submitted that the second and third plaintiffs ought not to obtain an order costs. It was contended that the proceedings fell within the jurisdictional limit of the District Court and that the plaintiffs had not established that there was sufficient reasons for commencing or continuing them in the Supreme Court. The Uniform Civil Procedure Rules 2005 did not contain a similar provision to the part 52A r33 of the Supreme Court Rules.

Bell J considered that this was an important discretionary matter to be taken into account and her Honour held that there was sufficient reason for commencing and continuing the claims in the Supreme Court. The allegations made in support of the claims were of a most serious character and each was entitled to seek vindication in the Supreme Court: Toomey v John Fairfax & Sons Ltd (1985) 1 NSWLR 291; Vignoli v Sydney Harbour Casino Pty Ltd [1999] NSWSC 1227.

Bell J ultimately ordered that the first plaintiff was to pay 20% of the defendants costs of the proceedings not previously dealt with. The defendant was to pay the second and third plaintiffs their costs of the proceedings, not otherwise dealt with.

Rapson v Wright & Ors (1999) (Unreported)

In this matter Greg Walsh represented Dr Rapson and his wife in respect of an action for a permanent stay of proceedings arising from the charging of Dr Rapson and his wife in respect of an incident in respect of a dressage horse, such charges having been initiated by a police officer and others alleging that they had ill-treated the dressage horse just prior to it having completed in a dressage event at Sutherland. Hamilton J found for the plaintiff and declared that the charges and the criminal proceedings were an abuse of process and stayed the proceedings.

Greg Walsh also represented plaintiffs in respect of obtaining orders for prohibition arising from a Magistrate’s refusal to disqualify himself for bias.

Rapson v Wright (1999) NSWSC 566

In this matter Greg Walsh represented the successful plaintiff’s in respect of a variation order made by Hamilton J permanently staying the proceedings so as to enable the proceedings in the Local Court to be withdrawn and dismissed. Such an application arose from a refusal on the part of the Magistrate at Sutherland to in fact dismiss the criminal charges in respect of the plaintiffs.

Pelechowski v Registrar of Court of Criminal Appeal [1999] HCA 19

In this matter Greg Walsh represented Mr Pelechowski arising from his conviction and sentence for contempt by the New South Wales Court of Criminal Appeal. Mr Walsh appeared on a pro bono basis and obtained bail from Gummow J in the High Court of Australia. Mr Walsh also appeared in the successful appeal which raised important issues as to the power of the District Court Judge to make a Mareeba Order. The High Court held that that judge did not have the power to make the order that gave rise to the contempt proceedings in the Court of Appeal.

JD v Director of Public Prosecutions (1999) NSWSC 878

In this matter Greg Walsh represented the plaintiff in an application to the Supreme Court seeking relief arising from a decision by a Magistrate that he had no power to award costs arising from the dismissal of charges at a committal hearing. The Magistrate had ruled that he was functus offico at the time that the application for costs was made. Hidden J held that this was not the case and that the Magistrate had the power to award costs.

JD v Director of Public Prosecutions (1999) NSWSC 878

In this matter Greg Walsh represented the plaintiff in an application to the Supreme Court seeking relief arising from a decision by a Magistrate that he had no power to award costs arising from the dismissal of charges at a committal hearing. The Magistrate had ruled that he was functus offico at the time that the application for costs was made. Hidden J held that this was not the case and that the Magistrate had the power to award costs.

JD v Director-General of Department of Youth and Community Services & Ors (1998) NSWSC 353

In this matter Greg Walsh represented the appellant who sought a declaration that a Children’s Court Magistrate had denied the plaintiff natural justice by ruling that cross-examination of witnesses by the parties legal representatives be restricted to 30 minutes. Black AJ granted a declaration that the Magistrate denied the plaintiff procedural fairness by ruling that cross-examination be restricted.

JD v Director of Public Prosecutions & Ors (1998) NSWSC 352

In this matter Greg Walsh represented the plaintiff who sought orders that information alleging sexual assault against his daughter were an abuse of process. The matter raised important issues as to the circumstances in which a prosecution for sexual assault can be permanently stayed.