Legal Services Commissioner pulls out his immunity card

Solicitor's name on NSW disciplinary register as a result of an unexplained error ... Damage to reputation ... Legal Services Commissioner dismisses complaint against himself ... ADT discovers it has no jurisdiction to restore suspended practising certificates that have run out of time ... Latest trauma from the Bureau de Spank 

Hutchinson: furiousTo put it mildly, Nigel Hutchinson is furious. 

Last year the former Sydney solicitor, now a resident of Brisbane, discovered his name on the disciplinary register of the NSW Office of the Legal Services Commissioner. 

The register revealed that he had been found guilty of professional misconduct. 

Although Hutchinson was in dispute with the Law Society and the OLSC over a "show cause" matter, no finding had been made against him and is not clear how his name found its way onto the register's web site, which lists those who have fallen foul of the Bureau de Spank.   

Last month Hutchinson complained about this unsightly listing to the Office of the Legal Services Commissioner, alleging among other things that the commissioner, Steve Mark, had engaged in behaviour that demonstrated: professional misconduct, unsatisfactory professional conduct, and bringing the profession into disrepute. 

Unsurprisingly, Mark dismissed the complaint against himself, citing provisions of the Legal Profession Act that protect him from liability in relation to anything done or omitted in good faith in the course of his job. See s.499(5) and s.580 LPA. 

The OLSC takes the view that Hutchinson's name was included on the register as a result of an error by the NSW Law Society. Hutchinson says the professional standards people at the Law Society deny they ever passed on such information. 

Steve Mark says that as soon as his office knew Hutchinson's name was on the register indicating a finding of professional misconduct, it was removed. 

Hutchinson was admitted in July 1984. He did stints in private practice, in business, and as general counsel of SAP Asia Pacific and Unisys Australia. 

He had been president of the University of Sydney Law Society, served on the academic board of the university and the proctorial board. 

In a letter to Mark dated July 19, Hutchinson wrote: 

"Frankly, I am astonished that you have come this far, without ever so much as picking up the phone to apologise, if even a junior screwed something up. Your correspondence has increasingly made it blunt that you stand by the wrong that patently and deliberately was done to me." 

Hutchinson also wrote last month to the council of the law society, saying: 

"My personal and professional reputation was destroyed. Blind Freddy knows that the public understands professional misconduct to mean that the solicitor was a thief, dishonest, disreputable, unethical and/or incompetent." 

Hutchison's name is actually on the register at the moment showing that his practising certificate for 2009-2010 was suspended under s.70 of the LPA.  

This related a "show cause" matter, namely his bankruptcy in April 2007. 

Last November, Hutchinson unsuccesfully brought proceedings in the ADT seeking orders that the suspension of his ticket be lifted. 

In February 2006 the Deputy Commissioner of Taxation obtained a default judgment for $580,430.59 against Hutchinson. A creditor's petition was filed on February 21, 2007. 

In April that year the solicitor lodged a statement of affairs with the Insolvency and Trustee Service of Australia and was made bankrupt on his own petition. 

There was a period when Hutchinson either did not apply for a practising certificate or his application for renewal was unsuccessful. 

He reapplied for a ticket on September 22, 2009 and again disclosed that he had become bankrupt in 2007. 

The Law Society asked Hutchinson, in view of his bankruptcy, to show cause why he was a fit and proper person to hold a PC. 

He explained that he "lost everything he had spent the previous 20 years building up" as a result of his involvement in a partnership to build retirement villages. 

Subsequently, the ATO reversed a ruling upon which investors had relied and ASIC took proceedings. The upshot was that Hutchinson's partnership interest were "effectively voided" and he ceased to have any entitlement to partnership income. 

There was a lengthy period of tooing and froing between Hutchinson and the Law Society, in which the society claimed he had provided insufficient information. 

According to reasons published by the Administrative Decisions Tribunal in April the Law Society had advised the Legal Services Commissioner in December 2009 that Hutchinson had been "most frugal" with the information he had supplied. 

Hutchinson claimed that he "passed the questions about his private tax affairs" to the appropriate authorities and that his trustee in bankruptcy had provided the information sought. 

Mark: immunityIn January 2010 the Law Society suspended his ticket saying that the extended period for completion of the show cause response had expired. The file was sent to the OLSC to take over the investigation and determination. 

In April 2010 Hutchinson was discharged from bankruptcy, but still the OLSC was not happy with the information provided. 

According to the ADT, Hutchinson responded in May last year to some of the questions that had been put to him by the Law Society in December 2009. 

He said his trustee in bankruptcy would have destroyed relevant documents following his discharge. 

He explained a debt of $5 million, disclosed in his statement of affairs, by saying it has been "incurred by contract". 

In answer to a question about the nature of his business of "legal consulting" he replied: 

"I do not have records, anything relevant was provided to the trustee. I developed a charitable fundraising system, involving the integration of tax, marketing, software, fundraising legislation, and contract, for use by charities across Australia. I'm now unemployed and receiving Centrelink payments." 

The following month the OLSC advised Hutchinson that an employee of the trustee had said that the documents had not been destroyed. 

In a letter to Hutchinson of August 12, 2010, Mark said payment of income tax was an "important part of a legal practitioner's civil obligations". 

On and on it went: the OLSC saying it had insufficient material on which to made a determination as to the solicitor's fitness to have a ticket and Hutchinson alleging the staff at the OLSC were biased against him, that he had provided all the necessary information, that he was not a bankrupt, and that he had committed no offences. 

In November last year Hutchinson filed his application before the Administrative Decisions Tribunal seeking an order that the suspension of his ticket be lifted. 

The ADT turned him down. Its reasons revealed something unusual. 

The date at which Hutchinson's practising certificate was to expire was June 30, 2010. It was suspended in January 2010. 

There was, therefore, no longer an operative PC or indeed a "suspension" to which Hutchinson's application could relate. 

This raised the further question as to what should be the duration of a certificate that had first been suspended then "freed" from its suspension by order of the tribunal? 

In other words, the ADT had no jurisdiction. 

This was an issue the tribunal had never considered previously. 

There was another ground the ADT had up its sleeve to dismiss the application. 

The answers provided by Hutchinson to the OLSC were "distinctly unsatisfactory and fell well short of what was required of him". 

The legislation requires all the relevant circumstances of the bankruptcy to be revealed and explained. 

On May 6 this year Hutchinson again applied to the Law Society for a ticket. He was told the OLSC had purported to restrain the society from issuing a PC. 

He filed a summons in the Supreme Court on June 2 seeking an order restraining the Legal Services Commissioner. 

In a letter to the Law Society council Hutchinson said that when the matter came back before Hidden J, the LSC "undertook to leave off". 

He now has his ticket. 

How exhausting.