Buckley gets a chance … Law Society required to cough-up more documents in disciplinary case … Extra material would not be too much of a distraction for NCAT … Challenge to public health orders by anti-vaxxers thrown out by NSW judges … Arguments “blunt and unnuanced” … Crowdfunded litigation and a lawyer’s fiduciary duties … Alan Zheng reports

The determination from May 2021 concerned Naughty Nathan’s earlier conduct in 2020 including the Facebook post which shot him to fame.

July 2020 must now feel like a fever dream for Buckley because he still had Facebook publishing privileges. In the midst of Victoria’s first lockdown, he posted: 

“Free legal advice to all Victorians. Don’t wear a mask. Get a $200 fine then elect to have it determined in Court.

Every single one of you 6.359 million Victorians can challenge the fines in Court.

The Victorian Government won’t fight you in Court. It is far too expensive for them to do so.”

That post went on to garner a “number of complaints … from both laypersons and legal and medical practitioners from NSW and Victoria”.

Buckley’s riposte at the time was that the post was “[a]t worst”, protected by the implied freedom of political communication.  

The Council’s findings also concerned a war of words between Buckley and Sharna Clemmett of Greenway Chambers, the administrator of Facebook group Lawyer Mums Australia.

Clemmett had lodged a complaint against Buckley to the Law Society and Buckley had shot back, accusing Clemmett and various Facebook group members of defamation and professional misconduct.

See: Delusions Dossier and Sovereign Lawyer,

In NCAT, Buckley argued the Council had not complied with its production obligations as the administrator of an administratively reviewable decision and that NCAT could only review the determination if it had all documents held by the Council in respect of the investigation.

The error for the Council was a line in the affidavit of Anthony James Lean, director of legal regulation at the Law Society. 

The affidavit, Buckley argued, suggested that certain documents – physical file notes and emails in relation to the investigation, as well as six electronic repositories – were not examined by the Council for relevance, nor produced to NCAT. 

Accordingly, the argument went that NCAT should extend the time for production and direct the Council to examine and lodge any further relevant documents.

In response, the Council said relevant documents were not specified by Buckley and would burden the tribunal with irrelevant material.

Therefore, the production was “prone only to distract the Tribunal from the statutory task it was required to undertake”. 

Adhering to the further searches would be onerous for the Council, a self-described “small organisation”. 

Without any right to discovery in NCAT, Buckley also filed – as a last resort – for a summons against the Council and Facebook Australia.

Deputy President Boland set aside both summonses but made orders extending the time for the Council to examine and, if any were considered relevant, produce the documents.

Following closely on the heels of Edwards v Commissioner for Fair Trading, the Council should not have taken an overly narrow view of documents to be produced, nor could it “pick and choose” which to disclose.

Although the Council is not a government agency subject to NSW Model Litigants Rules, procedural fairness obligations favoured an extension of time for the Council to produce any relevant documents. 

The lack of specificity was attributable to the fact that Buckley had no knowledge of what was on file and therefore the burden lay on the Council to identify relevant documents.

The Deputy President made short work of the summonses because they were oppressive, over-broad, lacked a legitimate forensic basis, and were potentially not relevant to the review application. 

The Facebook Summons sought a smorgasbord of posts, messages, comments referring to Nathan Buckley or G&B Lawyers on the Facebook page of Lawyer Mums Australia or Sharna Clemmett’s personal Facebook page.

Buckley argued that these posts would cast doubt on the veracity of Clemmett’s complaint against him by demonstrating that she was animated by “personal bias” and her diverging views on vaccine efficacy. 

Buckley v Council of the Law Society of New South Wales [2021] NSWCATOD 197

In 1944, the Soviet Red Army launched a major counteroffensive against German lines along the Eastern front in Operation Bagration.

In 2021, Nathan Buckley has found himself in a similar predicament.

Worn down, besieged by the full force of the Council’s disciplinary hand, and stuck in the middle of a two-front war.

On one front is the determination of unsatisfactory professional conduct. On the other, his more recent suspension from practice.

See: Naughty Nathan

Attempted breakthroughs to recover momentum in his challenge to the NSW Public Health Orders have also fizzled out. 

In Kassam v Hazzard; Henry v Hazzard, an appeal bench comprising President Bell and Justices of Appeal Leeming and Meagher unanimously dismissed the appeal by the Henry plaintiffs represented by G&B Lawyers.

On their proper construction, the public health orders were validly authorised by section 7 of the Public Health Act 2010 (NSW).

The appellants, who summoned the principle of legality to support their construction of section 7, ultimately fell short because half of the rights said to be infringed – “right to earn a living … right to privacy [and] … right not to be discriminated against – were not “recognised or fully recognised by the common law”. 

The Henry plaintiffs’ arguments as to the principle of legality were, in particular, “blunt and unnuanced”.

Rights which were cognisable under the common law – the right to bodily integrity, the right to silence and the privilege against self-incrimination – were not engaged, even indirectly, because workers could choose not to be vaccinated and therefore the public health orders did not have a coercive effect and “contained no sanction for the exercise of the choice not to receive a vaccination”.

None of the plaintiffs had in fact been vaccinated against their will, nor succumbed to any coercion to be vaccinated. 

That one of the choices open to the plaintiffs was to forgo a vaccination and risk their employment could be analogised to “many choices commonly made by people … influenced by incentives and burdens, which are not uncommonly put in place for the express purpose of altering behaviour”. 

The court even offered explicit examples of such choices, including the prohibition on enrolling children at childcare facilities unless proof of Measles and Whooping Cough vaccinations are shown. 

Buckley’s challenge to South Australia’s “No Jab, No Play” laws was crowdfunded.

See: Delusions Dossier

Constitutional arguments raised by the Kassam plaintiffs were also sent to the shredder. 

The vaccine mandate was not a form of “civil conscription” contrary to section 51(xxiiiA) of the Constitution and the public health orders were not inconsistent with the Commonwealth’s Australian Immunisation Register Act 2015 (Cth). Such arguments were “completely untenable”.

A similar fate met the Henry plaintiffs’ argument that the public health orders were invalid for unreasonableness, failed to account for relevant considerations and the Minister for Health acted for an improper purpose in making them.

As to costs, the Henry plaintiffs were ordered to cough up 60% of the State’s costs.

Chief Judge at Common Law, Robert Beech-Jones, gave weight to the crowdfunding which Buckley had used to fund the proceedings. 

The Henry plaintiffs, resisting a costs order, argued it was “unfair and unjust” for the plaintiffs to bear the burden of costs. 

The court expressly offered Buckley the opportunity to provide evidence as to the Henry plaintiffs’ means and the extent of crowdfunding undertaken but was met with radio silence.

Accordingly, it remained unclear whether the crowdfunded sum included an amount raised to meet an adverse costs order.

In the alternative, the funds could have simply been a donation never to be returned to the donors or returnable in some circumstances (as some form of a Quistclose trust), but this was not certain.

In what appears to be the first judicial treatment of crowdfunded litigation, HH suggested that crowdfunding will turn on who undertakes the fundraising, whether it is undertaken for the plaintiff, defendant or another party, and the terms on which funds were raised. 

Finally, HH left us with a question:

“In the event the funds were not raised to meet or defray the Henry plaintiffs’ costs exposure, how is that outcome consistent with the Henry plaintiffs’ solicitor’s fiduciary duty to their clients?”

Foreboding indeed.