Suppression order sought but not granted … Legal Services Commissioner’s jurisdictional drama … Misconduct findings overturned by Court of Appeal … Application to suppress details rejected … Another suppression attempt with NCAT also failed … Feelings of despair … Less work … Snubbed … Huge expense … Law Reform Commission … Alan Zheng reports

Longstanding solicitors like Simon Konstantinidis – a fixture of the Marrickville suburban practice Konstan Lawyers for 37 years – has been among those seeking anonymity under NCAT’s non-publication powers. 

He first came to fame after being paddled with professional misconduct findings in respect of a failure to account for settlement monies in a property sale and non-compliance with undertakings given in a workers comp matter.

His subsequent appeal succeeded in overturning those professional misconduct findings, including an $8,000 fine and reprimand, on the basis that the tribunal lacked jurisdiction. 

This was due to the failure of the Legal Services Commissioner to properly conduct the “compound exercise” in reading the now repealed sections 537 and 540 together and predicting the likely outcome in the tribunal and considering whether to summarily conclude of the complaints.

Although the Law Society accepted consent orders that Konstantinidis be anonymised, the Court of Appeal ultimately refused to make those orders.

One of the orders would have required the Registrar to write to various legal publishing websites, including AustLII, LexisNexis, Thomson Reuters Westlaw and Jade to request removal of the decisions from the websites. 

He also sought an order anonymising his name before the appeal judgment was published.

However, Justice Fabian Gleeson (Justices Macfarlan and Adams agreeing) refused to make orders suppressing records of the case, finding that evidence about “significant adverse consequences” to Konstantinidis’ professional and personal reputation were not apparent.

Despite finding that the failure of the Law Society Council to draw the court’s attention at first instance to the jurisdictional issue was “most unfortunate”, Justice Gleeson found that a suppression order would not be desirable: 

“It would be inconsistent with the principle of open justice, which applies in relation to court proceedings if the legal practitioner is identified by name in this court, but at the same time this court, exercising the powers of the tribunal, made an order retrospectively anonymising the legal practitioner’s name in the reported decisions of the tribunal.”  

That was not the end of the matter. Konstantinidis returned to NCAT to seek an order anonymising his identity.  

Again, Konstantindis deposed to the effects of his name being on the public record, painting a sad portrait of a life thrown awry by litigation.

First, he had suffered a range of symptoms including feelings of “complete despair [and] completely numb” to irritability, an inability to concentrate, difficulty sleeping and becoming socially withdrawn. 

The financial costs in fighting the disciplinary proceedings exceeded $450,000 with flow-on consequences for his mortgage and his family. 

His workload had also “dropped off significantly”, by up to 50 percent including in the period prior to the pandemic, according to his accountant. Around 12 of his clients had authorised him to transfer their files to other firms.

To top it off, former friends in the Marrickville Chamber of Commerce had stopped being friendly to him, his father had passed away prior to the appeal being determined and that his elderly mother, wife and children (two of whom are lawyers) were embarrassed.

The main hurdle to anonymity was the fact that the appeal judges had already considered whether to grant a suppression order. Accordingly, res judicata or issue estoppel might preclude the tribunal considering the matter afresh. 

The Law Society, which did not oppose the order sought for anonymity, broadly agreed with Konstantinidis that as the suppression order was interlocutory in nature, it could be sought and made on more than one occasion. Deputy President Jennifer Boland agreed. 

However, Konstantinidis ultimately fell short on open justice considerations and his reasons were not “sufficiently special or out of the ordinary” to make it desirable that the order be made.

The relevant factors raised by Kontantinidis were known to the Court of Appeal. Although more detailed evidence was adduced at NCAT and deserved some weight, they were ultimately not determinative absent any corroboration with medical or accounting evidence. 

Konstantinidis had been given an opportunity in the Court of Appeal to afford more evidence but failed to take it.

The fact that the Law Society fell short of model litigant standards also did not override the principle of open justice. 

The only thing left for Konstantinidis was to take the “practical step” of drawing the appeal judgment to the attention of the editors of Lawyers Weekly.

Although Lawyers Weekly published about the successful appeal, it unhelpfully suggests it was “a tribunal” which allowed the appeal. 

To avoid doubt, the article also has the following editorial note:

“Lawyers Weekly has chosen to publish his name to clear his record only. We decided not to link back to previous articles or refer directly to the conduct that the tribunal had previously found amounted to professional misconduct.”

Under the Law Reform Commission’s draft proposals, even if NCAT had granted suppression, it would no longer operate indefinitely, but this has faced resistance from some quarters.

A recent submission from NCAT President Justice Lea Armstrong suggested the proposal is unsuitable to NCAT because it ordinarily deals with matters that require indefinite suppression such as guardianship, child welfare and for victims in occupational disciplinary matters.

The public record can be an unforgiving place.

Council of the Law Society of New South Wales v Konstantinidis (No 4)