Fitzsimons v Council of the Law Society of New South Wales

[2013] NSWCA 95

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Fitzsimons v Council of the Law Society of New South Wales [2013] NSWCA 95

Hearing dates:

22 April 2013

Decision date:

22 April 2013

Before:

Barrett JA

Decision:

1.Notice of motion dismissed.

2.The applicant under the notice of motion will pay the respondent's costs of the notice of motion.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

APPEAL AND NEW TRIAL - appeal - whether competent - Administrative Decisions Tribunal decides that solicitor is guilty of professional misconduct and foreshadowed later decision as to orders that should be made - where avenue of appeal is created by the Legal Profession Act 2004 - that Act allows appeal from an "order or other decision made by the Tribunal" - decision of guilt of professional misconduct is such a "decision"

Legislation Cited:

Legal Profession Act 2004, s 729A

Category:

Interlocutory applications

Parties:

Maria Angela Fitzsimons - Appellant
Council of the Law Society of New South Wales - Respondent

Representation:

Ms C M Groenewegen - Appellant
M W Young SC - Respondent
Lyons & Lyons - Appellant
Ms A Foord - Law Society of New South Wales

File Number(s):

2012/397020

 Decision under appeal 

Citation:

[2012] NSWADT 242

Date of Decision:

2012-11-23 00:00:00

Before:

Judicial Members M Riordan and J Pheils; Non-Judicial Member R Fitzgerald

File Number(s):

092018

Judgment

1. A notice of appeal was filed on 22 February 2013 by Ms Fitzsimons. The Council of the Law Society of New South Wales is named in the notice of appeal as respondent.

1. I now have before me a notice of motion which raises the question of the competency of the appeal.

1. Ms Fitzsimons was the subject of proceedings brought in the Administrative Decisions Tribunal of New South Wales against her by the Law Society. The Tribunal, on 23 November 2012, published a document headed "Judgment" in which it recorded various findings and concluded by saying;

"For the foregoing reasons, our decision is that the Solicitor is guilty of professional misconduct."

1. The Tribunal then laid down procedures for progressing the matter for the purpose of determining whether the orders sought by the Law Society should be made and, if not, what other course of action should be adopted. There, in substance, the matter rests, so far as the Tribunal is concerned.

1. The contention upon the present motion is that the appeal is incompetent because no order has been made, having substantive effect, and that is a prerequisite to the bringing of any appeal.

1. The avenue of appeal in this case is under s 729A of the Legal Profession Act 2004. Subsection (1) of that section says:

"An order or other decision made by the Tribunal under this Act may be appealed to the Supreme Court by a party to the proceedings in which the order or decision was made."

1. The section then goes on to make specifications with respect to the nature and conduct of such an appeal.

1. It being accepted that there is no "order" of the Tribunal, the central question is whether there is in terms of s 729A(1) some "other decision made by" the Tribunal.

1. The answer to my mind is provided by the "Judgment" to which I have referred. It is stated clearly therein: "our decision is that". There has thus been a "decision made by the Tribunal".

1. An event upon which the operation of s 729A(1) is predicated, that is, the making of a "decision" by the Tribunal has therefore occurred. It follows that the avenue of appeal that has been adopted is an available avenue and that the appeal is competent.

1. The notice of motion is therefore dismissed.

[Submissions on costs]

1. The applicant under the notice of motion will pay the respondent's costs of the notice of motion.

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