Law Society of NSW lashed by Court of Appeal … Failure to ensure just, quick and cheap litigation … Another jurisdictional calamity … Earlier decision not brought to the attention of NCAT … Requirement for model litigant … Application for suppression order rejected … Janek Drevikovsky reports
The appeal was brought by Simon Konstantinidis, of Marrickville law shop Konstan, who succeeded in overturning the decision against him, but failed in a bid to have all mention of it expunged from the record.
In 2019, NSWCAT found Mr Konstantinidis guilty of professional misconduct for holding on to $33,000 from the sale of a client’s house.
Konstantinidis said he kept the money in his trust account because he wasn’t sure to whom it should have been paid.
In early 2019, the tribunal ordered him to pay $8,000 plus costs and sent him off to lawyers’ rehab.
It turned out that NCAT did not have jurisdiction to decide case.
In October 2018, the Court of Appeal handed down its decision in Law Society v Levitt, where it was held that two sections of the old Legal Profession Act had to be read together.
First, the Law Society had to decide whether the tribunal would be “likely” to find the solicitor guilty of unsatisfactory misconduct (but not professional misconduct).
If so, and if the society thought the practitioner was nonetheless competent, then they had to be dealt with under section 540, through a reprimand, caution or condition of practising.
Only if section 540 did not apply could the Law Society bring tribunal proceedings under section 537.
In proceeding against Konstantinidis, the Law Society had not followed the Act in the way Levitt required.
In early 2020, Konstantinidis filed an appeal.
He said the Law Society had not brought Levitt to the tribunal’s attention, even though the decision was handed down before his case was resolved.
As a model litigant, Konstantinidis argued, the Law Society should have done so.
Once the appeal was filed, the society saw the writing on the wall, but it did not concede the jurisdictional point until Konstantinidis put in his written submissions.
This, the Court of Appeal found, was “not consistent” with the society’s obligation to facilitate the “just, quick and cheap” resolution of the proceedings.
In the end, realising that Konstantinidis would win the day, the Law Society conceded it was toast without a hearing.
The court agreed the adverse decision against the solicitor should be overturned.
But an appeal bench of Robert Macfarlan, Fabian Gleeson and Natalie Adams refused to make orders suppressing records of the case against the appellant.
The solicitor argued the court should do so by exercising NSWCAT’s powers under the Civil and Administrative Tribunal Act.
He said the court should remove the original tribunal decisions from NSW Caselaw and order AustLii, LexisNexis, Thomson Reuters Westlaw and JADE to purge the case from their websites.
He also said his name should be anonymised before the Court of Appeal’s reasons were published.
The appeal judges disagreed. HH Macfarlan said the original proceedings were conducted in open court and that Konstantinidis had failed to show it was “desirable” the case should now be suppressed.
Accordingly, the appeal was granted only in part, with the original judgments to remain online.