The findings of the tribunal in Ndou v Council of the Law Society of New South Wales 1 provide an important reminder to practitioners of their fundamental obligations to comply with a court order and the implied Hearne v Street undertaking, where information obtained or produced under the compulsory processes of the court cannot be used for a collateral or ulterior purpose.
Background
The applicant practitioner applied to the Occupational Division of the NSW Civil and Administrative Tribunal for an administrative review of a decision by a Professional Conduct Committee (PCC) of the Council of the Law Society of New South Wales that the applicant be reprimanded.
In finding that the applicant had engaged in unsatisfactory professional conduct, the tribunal varied the decision of the PCC by imposing a fine of $2000 and affirming the decision to reprimand the applicant.
Issues considered by the tribunal
The PCC previously determined that the applicant had engaged in unsatisfactory conduct by; one, breaching an order of the court to not use subpoenaed documents produced in those proceedings for other purposes, and two, breaching an obligation at common law not to use documents obtained through the compulsory court process for a collateral purpose.
Complaint 1 – Breach of court orders
It was not disputed that the applicant breached the order of the Local Court by filing an affidavit on behalf of his client in Family Court Proceedings which annexed subpoenaed documents obtained through compulsory process in the ADVO Proceedings. Though the tribunal accepted that the breach was unintentional in that the applicant overlooked the order, it was nonetheless considered that this conduct fell well short of the standard of competence and diligence that a member of the public would be entitled to expect of a reasonably competent lawyer, and amounted to, at the very least, unsatisfactory professional conduct.2
Complaint 2 – Hearne v Street obligation
The tribunal recognised the Hearne v Street undertaking as an obligation of substantive law where “the party obtaining discovery is taken to undertake to the court that the documents obtained on discovery will not be used for any purpose other than the action in which they are produced”.3
The applicant breached this obligation by annexing those subpoenaed documents obtained through the ADVO Proceedings for the Family Court Proceedings. The tribunal rejected the applicant’s submission that the subpoenaed documents were not used for a collateral purpose; the subsequent circumstances that meant the affidavit was not tendered in the Family Law Proceedings did not excuse the applicant’s actions.4
Orders
The tribunal ordered for the decision of the PCC to be varied such that:
- The applicant be reprimanded pursuant to s 299(1)(b) of the Legal Profession Uniform Law (NSW); and
- The applicant pay a fine of $2000 pursuant to s 299(1)(f) of the Legal Profession Uniform Law (NSW), with such fine to be paid within 60 days of the Tribunal’s decision.
Sarah Millar is a Law Clerk with the QLS Ethics and Practice Centre.
Footnotes
1 [2023] NSWCATOD 111.
2 Ibid [69].
3 Ibid [49].
4 Ibid [79].
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