Applicant or 3 of 2025 v Council of the Law Society of the Act (Occupational Discipline)
[2025] ACAT 76
•7 October 2025
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
APPLICANT OR 3 of 2025 v COUNCIL OF THE LAW SOCIETY OF THE ACT (Occupational Discipline) [2025] ACAT 76
OR 3/2025
Catchwords: OCCUPATIONAL DISCIPLINE – LEGAL PRACTITIONERS – where tribunal made interim orders prohibiting the publication of the applicant’s identity in an appeal against summary action taken by the respondent – where tribunal confirmed respondent’s decision to take summary action against the applicant including by publicly reprimanding her – where respondent had not made the reprimand public – whether non-publication orders should be lifted – whether respondent acted lawfully by not publicising its reprimand
Legislation cited: ACT Civil and Administrative Tribunal Act 2008, ss 38, 39
Legal Profession Act 2006, ss 413, 416, 423A, 425, 447, 448, 557, 596
Cases citedApplicant OR 3 of 2025 v Council of the Law Society of the ACT [2025] ACAT 67
Council of the Law Society of the Australian Capital Territory v R (a pseudonym) [2025] ACAT 8
Legal Practitioner 201823 v Council of the Law Society of the Australian Capital Territory [2019] ACAT 97
The Appellants v Council of the Law Society of the ACT and the Legal Practitioner [2011] ACTSC 133
Tribunal:Presidential Member J Lucy
Senior Member E Morrison
Date of Orders: 7 October 2025
Date of Reasons for Decision: 24 October 2025
Date of Publication: 4 November 2025
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) OR 3/2025
BETWEEN:
APPLICANT OR 3/2025
Applicant
AND:
COUNCIL OF THE LAW SOCIETY OF THE ACT
Respondent
TRIBUNAL:Presidential Member J Lucy
Senior Member E Morrison
DATE:7 October 2025
ORDER
The Tribunal orders that:
The respondent’s decision to order the applicant to pay a fine of $1,500 within 28 days of being notified of the respondent’s decision is varied such that the applicant is to pay a fine of $1,500 by 4 November 2025.
The respondent’s decision to order the applicant to undertake a course in costs disclosure within 6 months of being notified of the respondent’s decision and to provide evidence of completion to the respondent is varied such that the applicant is to undertake a course in costs disclosure, and to inform the respondent in writing of completion of that course, by 7 April 2026.
The orders of the Tribunal made on 13 March 2025 are revoked upon the earliest of 5 business days after:
(a)the end of the appeal period for the decision of the Tribunal made on 7 October 2025, if no appeal has been made by the applicant within the appeal period;
(b)the date any appeal made by the applicant has been decided against the applicant, if that occurs.
And the Tribunal notes:
(a)If the applicant successfully appeals the Tribunal’s decision, the orders made on 13 March 2025 will continue in effect unless varied or revoked by an appeal tribunal.
(b)The Tribunal will provide written reasons for its decision in due course.
………………………………..
Presidential Member J Lucy
For and on behalf of the Tribunal
REASONS FOR DECISION
Introduction
This decision concerns the question of whether interim non-publication orders should be revoked after an unsuccessful appeal by a legal practitioner from a decision of the respondent (the Law Society) to take summary action against her, including by publicly reprimanding her.
We have decided that the non-publication orders should be revoked, and that the practitioner should be named, after she has exhausted her rights of appeal.
Orders made in respect of applicant’s appeal
The Law Society decided to take summary action against the applicant, a legal practitioner, under section 413 of the Legal Profession Act 2006 (the Act) in respect of her failure to comply with her costs disclosure obligations. The applicant appealed to the Tribunal under section 416 of the Act from the Law Society’s decision.
On 22 September 2025, we decided to confirm the Law Society’s decision.[1]
[1] Applicant OR 3 of 2025 v Council of the Law Society of the ACT [2025] ACAT 67
We stated in our reasons for decision of 22 September 2025 that we considered that the Law Society’s decisions to publicly reprimand the applicant, to order her to pay a fine of $1,500 within 28 days and to undertake a course in costs disclosure within 6 months, were the correct and preferable decisions.[2] However, we indicated that the second and third decisions made by the Law Society may need to be varied given that the time frames specified in those decisions were referable to the date on which the applicant was notified of the Law Society’s decisions.
[2] Applicant OR 3 of 2025 v Council of the Law Society of the ACT [2025] ACAT 67 at [144]
In our orders made on 22 September 2025, we confirmed the Law Society’s decision to publicly reprimand the applicant and listed the matter for a subsequent hearing to hear from the parties on the form of the other orders and on the question of whether the interim non-publication and anonymisation orders made in the proceedings should be continued or revoked.
At a subsequent hearing on 7 October 2025, the parties did not oppose the form of orders as to the payment of a fine and the undertaking of a course which were made on that day.
The parties were, however, in dispute as to whether the interim non-publication and anonymisation orders should be continued. After hearing from the parties, we decided to revoke those orders, with the revocation to take effect after the applicant had been given an opportunity to exercise her appeal rights, and only if any appeal was unsuccessful.
We indicated that we would subsequently provide written reasons for our decision. These are those reasons.
Anonymisation and non-publication orders
On 13 March 2025, the presiding member made interim orders, by consent, that the applicant was only to be referred to by a pseudonym. The presiding member also made interim orders prohibiting the publication of information or particulars that might enable the applicant to be identified or that would reveal her identity.
Those orders were made having regard to the legislative policy expressed in section 423A of the Act. Section 423A prohibits the publication of reports or accounts of applications to the Tribunal for disciplinary orders in relation to practitioners, made by the Council of the Law Society or the Council of the Bar Association under Part 4.7 of the Act, until a practitioner’s appeal rights have been exhausted.
As we explained in our primary decision, an “appeal” under section 416 is more aptly described as a merits review of a decision of a Council made under section 413 of the Act.[3] Section 423A does not apply to an appeal under that provision.
[3] Applicant OR 3 of 2025 v Council of the Law Society of the ACT [2025] ACAT 67 at [47]-[53]
The applicant submitted that the interim orders prohibiting the disclosure of her identity should be continued, whereas the Law Society submitted that the orders should be revoked once the applicant had been given the opportunity to exhaust her appeal rights.
The parties agreed that we have power to make orders anonymising the applicant’s name and prohibiting publication of information identifying her. We agree. Section 416(3) of the Act, which permits the tribunal to make any order it considers appropriate on an appeal, is a possible source of power to do so.[4] Section 39 of the ACT Civil and Administrative Tribunal Act 2008 is another possible source of power, if an applicant’s name could properly be described as “evidence” given at the hearing or a matter contained in documents filed with the tribunal.[5] The tribunal also has an implied power to make anonymisation orders.[6]
Parties’ submissions
[4] On the scope of this power, see The Appellants v Council of the Law Society of the ACT and the Legal Practitioner [2011] ACTSC 133 at [76]-[122]
[5] ACT Civil and Administrative Tribunal Act 2008, s 39(2)(b)
[6] Council of the Law Society of the Australian Capital Territory v R (a pseudonym) [2025] ACAT 8 at [5]-[22]
Mr Crispin, for the applicant, submitted that if the tribunal were to publish the name of the applicant, that would have a chilling effect on practitioners seeking review of summary decisions made by the Law Society. That submission was made in the context of the Law Society’s practice of not publishing decisions made under section 413 of the Act.
Mr Harper, for the respondent, submitted that we should reject the submission that publication of the applicant’s name would have a chilling effect, for the following reasons. First, parties generally bring private disputes into the public domain when they make an application to a court or tribunal, and there is no clear statutory protection provided to practitioners lodging an appeal under section 416 of the Act. Secondly, he submitted that to the extent that publication would have a chilling effect, this is offset by the circumstance that practitioners do not run the risk of an adverse costs order when appealing a decision under section 416. That is because the tribunal does not have the power to award costs in such circumstances.
Mr Harper relied upon Legal Practitioner 201823 v Council of the Law Society of the Australian Capital Territory [2019] ACAT 97 at [235], where Presidential Member McCarthy confirmed the Law Society’s decision to issue a public reprimand on an appeal under section 416 of the Act, and indicated that he would disclose the practitioner’s name, because “[t]o do otherwise contradicts the sanction of a public reprimand.”
Mr Crispin, in reply, submitted in relation to the respondent’s first point that the dispute is, at a superficial level, a private dispute, but it is a dispute under a statutory regime with a public interest component. He also noted that publication of the practitioner’s identity has consequences which mirror a public reprimand, and that it dovetails with the relief sought by the respondent. In relation to the second point, he said that the availability or otherwise of a costs order was not a factor relevant to the tribunal’s decision whether to disclose the applicant’s identity. The purpose of a costs order is compensatory.
Consideration
We agree with Mr Crispin that the circumstance that the tribunal does not have power to award costs when determining an appeal under section 416 of the Act has no bearing on whether it should publish a practitioner’s name (or, more accurately, whether it should make anonymisation or non-publication orders).
We consider, however, that in circumstances where we have confirmed the Law Society’s decision to issue a public reprimand, that may only be done by disclosing the applicant’s name.
Mr Harper indicated, during the course of the hearing, that the Law Society generally does not publicise reprimands made under section 413(2)(b) of the Act. That was a factor relied upon by the applicant in support of her argument that publication of her name would have a chilling effect on applications under section 416 of the Act.
In our view, the Law Society’s practice of not publishing “public” reprimands made under section 413 of the Act is not consistent with the legislative scheme.
Section 413(2)(c) provides that the “relevant council” may “publicly reprimand the Australian legal practitioner or, if there are special circumstances, privately reprimand the practitioner.” Once the relevant council has determined that a reprimand is an appropriate exercise of discretion under section 413, the reprimand must be made publicly unless the relevant council forms the view there are special circumstances that would warrant a private reprimand. If the relevant council has not formed that view, reprimanding the practitioner privately is not authorised by section 413(2)(c).
Action taken under section 413 of the Act is not “disciplinary action” taken under the Act against an Australian legal practitioner which is required to be included in the register of disciplinary action kept under section 448 of the Act. Action taken by a council under section 413 does not fall within the definition of “disciplinary action” in section 447 of the Act.
Although a reprimand made under section 413 is not required to be included in the register of disciplinary action, a public reprimand must nevertheless be published or made public in some way, in order for the Law Society’s action to meet the statutory description of “publicly reprimanding” a practitioner. This could be done, for example, by publishing the reprimand on the Law Society’s website. There are no provisions in the Act which would prohibit the Law Society from doing this.
Section 557 of the Act provides, relevantly, that the relevant council may disclose information obtained in the course of a complaint investigation to specified persons and entities. A decision to reprimand a person is not properly described as “information obtained in the course of a complaint investigation” so that the provision does not apply.
Section 596 of the Act prohibits a council from doing something that divulges personal information about a person if the council is reckless about whether the information is protected information about a person and doing the thing would result in the information being divulged.[7] However, section 596 does not apply if the information is divulged under the Act or in relation to the exercise of a function under the Act.[8] Publicly reprimanding a person (if it involves the divulging of personal information) is something done under the Act, and is also something which would be done in relation to the Law Society’s functions under section 413 of the Act. Accordingly, section 596 does not preclude the Law Society from publicly reprimanding a practitioner under section 413. It may also be that section 596 would not preclude the Law Society from publishing any action taken under section 413, although it is not necessary to decide that question in this case.
[7] Act, s 596(2)(b)
[8] Act, s 596(3)(a)
In our view, the Law Society’s practice of not publishing “public” reprimands is not a proper basis on which we should refrain from publishing the applicant’s identity.
We also note that there is a public interest in open justice, which is recognised in sections 38 and 39 of the ACAT Act. Under section 38(1), the hearing of an application by the tribunal must be in public, unless an order is made under section 39 of the ACAT Act. The hearing of the proceedings was conducted in public, albeit that the applicant’s name was anonymised and publication of her name was prohibited. That order served the purpose of protecting the applicant’s identity pending the outcome of the proceedings, which could have included the tribunal making more serious disciplinary orders, which may be made in a section 416 appeal, under section 425.[9] The interim order mitigated the potential deterrent effect on other practitioners bringing appeals, which Mr Crispin raised. However, that purpose has now been served and the Tribunal’s decision to confirm the Law Society’s decision to publicly reprimand the practitioner makes it appropriate in the interests of open justice to revoke the interim anonymisation and non-publication orders.
[9] Act, s 416(4), 425(3)-(5)
The parties jointly submitted at the hearing that any revocation of the interim anonymisation and non-publication orders should only occur after the end of the appeal period (if no appeal from our decision is lodged) or, if an appeal is lodged, after that appeal is dismissed (if that occurs). This is consistent with the regime which applies to applications for disciplinary orders by operation of section 423A of the Act. While we have some concerns as to whether it would generally be appropriate to apply the terms of section 423A to appeals under section 416, in light of the parties’ agreed position, and the comments at paragraph 29 above, we made orders in those terms at the hearing.
ORDER
The Tribunal orders that:
The respondent’s decision to order the applicant to pay a fine of $1,500 within 28 days of being notified of the respondent’s decision is varied such that the applicant is to pay a fine of $1,500 by 4 November 2025.
The respondent’s decision to order the applicant to undertake a course in costs disclosure within 6 months of being notified of the respondent’s decision and to provide evidence of completion to the respondent is varied such that the applicant is to undertake a course in costs disclosure, and to inform the respondent in writing of completion of that course, by 7 April 2026.
The orders of the Tribunal made on 13 March 2025 are revoked upon the earliest of 5 business days after:
(a)the end of the appeal period for the decision of the Tribunal made on 7 October 2025, if no appeal has been made by the applicant within the appeal period;
(b)the date any appeal made by the applicant has been decided against the applicant, if that occurs.
………………………………..
Presidential Member J Lucy
For and on behalf of the Tribunal
| Date of hearing: | 7 October 2025 |
| Counsel for the Applicant: | Mr T Crispin |
| Solicitors for the Applicant: | Ray Swift Moutrage and Associates |
| Solicitors for the Respondent: | Thomson Geer |
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