Ndou v Council of Law Society of NSW [2023] NSWCATOD 111

We recently posted an article on the importance of the often forgotten Harman obligation that legal practitioners do not use documents obtained through a compulsory court process for a collateral purpose. The obligation is also known as the Hearn v Street obligation (2008) 235 CLR 125.  In our last article, we described a case in which a Supreme Court judge in a civil proceeding declined to give leave for documents that had been produced in those proceedings to be used for another purpose in other proceedings.

This article describes a disciplinary decision about a practitioner who unintentionally breached the Harman obligation. It underscores the importance for practitioners to understand their obligations to the Court.

Mr Lovemore Ndou, (the practitioner) obtained documents from the Commonwealth Department of Home Affairs under a subpoena issued in Local Court proceedings. He used the documents in separate proceedings under the Family Law Act concerning custody of children.  The documents pertained to the mother’s international movements.  The practitioner was acting for the father in the Local Court proceedings, and also in the Family Law proceedings.

In making access orders in the Local Court, the Magistrate made orders to the effect that the subpoena documents were only to be used in the Local Court proceedings, and not to be used in any other proceedings. The practitioner inadvertently breached the Local Court order, and he also breached the Harman obligation, in seeking to annex the subpoenaed documents to an affidavit of his client in the Family Court proceedings. 

The mother made a complaint, and the matter was dealt with by the NSW Law Society’s Professional Conduct Committee. The Committee made a finding of unsatisfactory professional conduct, issued a reprimand and an order for the practitioner to do an ethics course.  The practitioner sought administrative review in NCAT, saying he should only have had a caution and no protective order other than to do the ethics course, which he had completed. 

NCAT did not agree.  They said practitioner had engaged in unsatisfactory professional conduct by failing to abide by the Court order, and for breaching the Harman obligation. The Tribunal acknowledged that the practitioner had unintentionally overlooked the Magistrate’s order concerning the subpoena documents, but this fell well short of the standard of competence and diligence expected of a legal practitioner. The practitioner conceded he had breached the Harman obligation, being unaware of it.  The Tribunal considered this fell short of the standard of competence and diligence expected of a reasonably competent lawyer, especially as he was an experienced advocate. 

The Tribunal reprimanded the practitioner and imposed a fine of $2,000.  The Tribunal described the fine as “relatively modest”, to taking into account that publicity of the reprimand had damaged the practitioner’s reputation and impacted on his revenue.

Remarks

• A breach of the Harman obligation is not only a contempt of Court but can also be unsatisfactory professional conduct.
• The Harman obligation applies in all litigation - criminal and civil matters.
• The Courts will take the view that there is a public interest in the enforcement of the Harman obligation to maintain the integrity of the administration of justice.
• The case illustrates the seriousness of using documents produced under compulsion (such as a subpoena or in a discovery process) for any collateral purpose without leave.