Atkins v Queensland Law Society Incorporated

IN THE COURT OF APPEAL 99.143
SUPREME COURT OF QUEENSLAND
Appeal No. 4930 of 1998
Brisbane
[Atkins v. Q.L.S. ]
BETWEEN:
BARRY EDWARD ATKINS
Appellant
AND:
QUEENSLAND LAW SOCIETY INCORPORATED
Respondent
McMurdo P.
Pincus J.A.
Atkinson J.

Judgment delivered 23 April 1999
Reasons for Judgment delivered 14 May 1999
Joint reasons for judgment of Pincus J.A. and Atkinson J., separate concurring reasons of
McMurdo P.
APPEAL DISMISSED WITH COSTS

CATCHWORDS:

Legal practitioner - misconduct - appeal against refusal of Solicitors Complaints Tribunal to order that misconduct hearing be held in private - whether right of appeal - whether order of Tribunal a "decision" for purposes of s. 6Z Queensland Law Society Act - whether discretion of Tribunal under s. 6L of the Act properly exercised.
Australian Broadcasting Tribunal v. Bond (1990) 170 C.L.R. 321.
Milner v. Prima Construction & Development Pty Ltd (1992)
75 L.G.R.A. 25
Neate v. Australian Securities Commission (1995) 132 A.L.R. 413
Pan Continental Mining Ltd v. Burns (1994) 124 A.L.R. 471
Queensland Law Society Incorporated v. A Solicitor [1989] 2 Qd.R.
Queensland Law Society Act 1952, ss. 6L, 6Z
Counsel: Mr S Couper Q.C. for the appellant.
Mr R Perrett for the respondent.
Solicitors: Shine Roche McGowan for the appellant.
Clayton Utz for the respondent.
Hearing Date: 23 April 1999.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No 4930 of 1998
Brisbane

Before McMurdo P
Pincus JA
Atkinson J
[Atkins v QLS]
BARRY EDWARD ATKINS
Appellant
AND
QUEENSLAND LAW SOCIETY INCORPORATED
Respondent
REASONS FOR JUDGMENT - McMURDO P
Judgment delivered 23 April 1999
Reasons for Judgment delivered 14 May 1999

I have had the benefit of reading the joint reasons for judgment of Pincus JA and Atkinson
J.
My preliminary view as to the competence of the appeal accords with that of Pincus JA and
Atkinson J. I would prefer to record my view as preliminary at this stage as competence was not
an issue addressed in argument before the Court.
In any case I agree with Pincus JA and Atkinson J that this appeal would fail on its merits
for the reasons given by them.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 4930 of 1998
Brisbane

Before McMurdo P.
Pincus J.A.
Atkinson J.
[Atkins v. Q.L.S.]
BETWEEN:
BARRY EDWARD ATKINS
Appellant
AND:
QUEENSLAND LAW SOCIETY INCORPORATED
Respondent
JOINT REASONS FOR JUDGMENT - PINCUS J.A. AND ATKINSON J.
Judgment delivered 23 April 1999
Reasons for Judgment delivered 14 May 1999

The appellant has caused to be filed a notice of appeal against what is argued to be a
"decision" of the Solicitors Complaints Tribunal, a body established under the Queensland Law
Society Act 1952 ("the Act") to decide charges of misconduct and the like brought against
solicitors. The appellant's complaint is that the tribunal, having been asked to do so, refused to
make orders under s. 6L of the Act that a certain hearing be held in private and that publication of
evidence at the hearing be prohibited or restricted; he is a solicitor against whom charges have been
brought. There was some discussion, initiated by the Court, on the question whether the appellant
had any right of appeal. At the conclusion of the argument we dismissed the appeal with costs, and
announced that we would publish reasons later.
The first and perhaps only question requiring consideration is whether there is a right of
appeal. Section 6Z of the Act reads in part as follows:

"(1) A party dissatisfied with a tribunal decision may appeal the decision to the
Court of Appeal.
(2) An appeal is by way of rehearing, unless all parties to the appeal accept the facts as found by the tribunal.

(3) The appeal must be made-

(a)

if the dissatisfied party is the Minister - within 30 days after a copy of the tribunal's order is served on the Minister under section 6Y(2); or
(b) otherwise - within 28 days after the tribunal's order is made".

The expression "decision" is not defined in the Act and it is possible that the intended meaning of
s. 6Z(1) is that any decision of the tribunal, whether related to a matter of procedure or one of
substance, might be the subject of appeal to this Court. The powers of the tribunal are found in a
number of provisions of the Act, beginning with s. 6G which requires the tribunal "[i]f the hearing
of a charge is brought by the council or legal ombudsman" to give notice of the time and place of
hearing to certain persons. The quoted expression makes no sense; what the legislature meant to
say was that if a charge is brought notice must be given in accordance with the section. Section 6G
does not mention the word "decision", but it seems arguable that the giving of the notice must involve
a decision, in the broad sense, for a choice must be made of the time and place of hearing;
however, it does not seem very probable that such a decision was intended to be a possible subject
of appeal to this Court. Under s. 6K of the Act, in certain circumstances the tribunal may require
a complainant to pay the fees of a costs assessor and may decide to engage a costs assessor. This
is arguably a procedural matter and, again, it might seem inappropriate that this Court should be
resorted to in order to resolve a dispute as to whether a costs assessor should be engaged.
Provisions of an essentially procedural character are contained in s. 6M(1) relating to the issue of
notices requiring people to appear before the tribunal, in s. 6MA, empowering the tribunal to give "directions about the conduct of the charge or other matter" and s. 6N(2)(b) which, implicitly,
empowers the tribunal to require people to answer questions. In contrast, plainly substantive
powers of the tribunal are given by s. 6R, which allows the tribunal to order that a practitioner be
struck off the roll of solicitors and to make various other disciplinary orders; ss. 6S and 6T are in
a similar category. These sections empowering the making of substantive orders are contained in
Division 5, headed "Tribunal orders" of Part 2A of the Act and the next division is Division 6,
headed "Appeals" which consists of s. 6Z. A neat solution to the problem of deciding what was
intended by the expression "a Tribunal decision" in s. 6Z(1), the subsection which allows a party
dissatisfied to appeal to this Court, is to treat Division 5, headed "Tribunal orders", as empowering
the making of the only decisions which may be the subject of an appeal under s. 6Z. One difficulty
about this approach is that Division 5 consistently uses the word "order" rather than "decision" and
this suggests that s. 6Z(1) might have been intended to have a wider scope than that of Division 5
orders only. On the other hand, the degree of precision shown in the drafting of these provisions
is not, with respect, very high and is not such as to make it surprising that there might have been a
change in language without any intention of changing meaning.

For the same reasons, not too much significance can be attached to the fact that the
expression of the tribunal's power to do that which the appellant seeks uses the word "order" rather
than "decision"; s. 6L reads as follows:

"(1) Tribunal hearings must be held in public, unless the tribunal orders
otherwise.

(2) The tribunal may make an order under subsection (3) if it is satisfied that
it is desirable to do so-
(a) because of the confidential nature of the evidence or other matter; or
(b) for another appropriate reason.

(3) The tribunal may, by order-
(a) direct that a hearing, or part of a hearing, is to be held in private; and
(b) give directions about the persons who may be present at a hearing held in private.

(4) The tribunal may, by order, prohibit or restrict the publication of-
(a) evidence given before the tribunal, whether the hearing was held in public or in private; or
(b) matter contained in documents filed with, or received in evidence by, the tribunal".

Turning to authority, there is a considerable amount of discussion to be found in the cases
about the meaning of the word "decision", in similar contexts. The most important decision,
perhaps, is Australian Broadcasting Tribunal v. Bond (1990) 170 C.L.R. 321, in which the High
Court had to consider such a question, arising under the Administrative Decisions (Judicial
Review) Act 1977 (Cw'th). The Act empowers the Federal Court to review any decision of a
particular character, the description including the words "a decision of an administrative character".
The question was not, as in the present case, whether a decision of a procedural character was
covered, but rather whether the decision had to be final. It was held that a reviewable decision -
" . . . generally, but not always, entail[s] a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration". (337)
It was also held that the decision had to be "a substantive determination" (337). The High Court
overruled the decision of the Federal Court in Lamb v. Moss (1983) 49 A.L.R. 533, where judges
had declined to read any limitation in.
Since the Bond case, a number of decisions of the Federal Court have worked out its implications, examples being A-G (Cw'th) v. Queensland (1990) 25 F.C.R. 125, Pegasus Leasing Ltd v. Commissioner of Taxation (Cw'th) (1991) 32 F.C.R. 158, and Independent Holdings Ltd
v. Deputy Commissioner of Taxation (1992) 110 A.L.R. 642. These decisions are not, in our view,
of any direct help, for the structure of the Administrative Decisions (Judicial Review) Act 1977,
as regards the right of review, is more complex than and its language quite different from that with
which this Court is presently concerned. Decisions of some present relevance are Pancontinental
Mining Ltd v. Burns (1994) 124 A.L.R. 471, in which a refusal to set aside certain summonses was
held to be a "decision" and to be a determination of a substantive nature because, so the court held
-
" . . . there was in a practical sense at least a final determination of the question whether the parties served were people whose evidence could be relevant to an issue before the tribunal". (480)
But in Neate v. Australian Securities Commission (1995) 132 A.L.R. 413, a decision to issue a
notice under the Corporations Law requiring a person to show cause why certain further
proceedings should not be taken was held, in effect, not to have a substantive effect.
The chief present importance of the Bond case, in our opinion, is that it shows that the
statutory context can be used to read down the meaning of the word "decision" in a provision
enabling an attack upon certain decisions, so as to limit the possibility of attack to decisions having
a certain substantive effect. A pointer in the direction of reading in a limitation here is the content
of s. 6Z(3), quoted above, and in particular its reference to the possibility that the Minister is a
dissatisfied party. That seems to be related to the immediately preceding s. 6Y, which requires the
person bringing a charge to give "a copy of a tribunal order relating to the charge" to certain people,
one of whom is the Minister. Since s. 6Y is to be found in Division 5 containing, as we have
explained, all the tribunal's power to make substantive orders in relation to charges against practitioners, the words "tribunal order relating to the charge" must naturally be taken to refer to
Division 5 orders. Then one would see some support for the view that the following s. 6Z,
providing for appeals to this Court, must have contemplated appeals against Division 5 orders, they
being the only ones in which the Minister must be given a copy of the relevant order.
To summarise, because the appeal provision contemplates that the Minister may be the
dissatisfied party and that, if so, the Minister's appeal must be brought within a certain time after the
tribunal's order is served on him or her under s. 6Y(2), and since s. 6Y appears to be related only
to Division 5 orders, it might be thought that the true intention was to confine appeals to those
against Division 5 orders. But before stating a conclusion on this point, it is desirable to refer to
further authority.
In Queensland Law Society Incorporated v. A Solicitor [1989] 2 Qd.R. 331, it was held,
under the corresponding previous provision, that there was no appeal against an order that charges
of professional misconduct or unprofessional conduct against a solicitor be dismissed. The appeal
section, s. 6(4) of the Act, then gave a right of appeal from "any order of the Statutory Committee
made under the powers of this Act", but that was read down so as to exclude the order in question.
The reasoning of McPherson J. (as his Honour then was) gives some support to a process of
limiting the wide words of the present provision, especially insofar as his Honour quoted with
approval a statement in an English case to the effect that the statute there in question contemplated
-
"some definite order made against a solicitor, either striking him off the roll or suspending him from practice or making some order against him to his detriment": re A Solicitor [1934] 2 K.B. 463 at 468.
The English statute being construed in that case contained no express limitation but simply said that
an appeal "against any order made by the Committee under this Part of this Act" should lie; but it
has to be conceded that the English case is of no direct authority here.
In Metropolitan Water Sewerage and Drainage Board v. Histon [1982] 2 N.S.W.L.R. 720,
a statute which gave a right of appeal to the Supreme Court in certain instances was construed; the
appeal had to be "on a question of law" and a majority of the Court was of the view that it allowed
appeals from interlocutory decisions. In The Herald and Weekly Times Ltd v. The Attorney-
General [1991] 1 V.R. 95, a Victorian statute allowed review of a "decision operating in law to
determine a question affecting the rights of a person" and Fullagar J. held that a decision of a
character similar to that presently in issue was not contemplated by the statute. The same judge,
in Milner v. Prima Construction & Development Pty Ltd (1992) 75 L.G.R.A. 25, considered
whether a determination of a certain tribunal was covered by a provision allowing a party to appeal
on a question of law from "a decision of the Tribunal". His Honour remarked:
"In considering the ambit of [the provision in question] it must I think be borne in mind that under it an appeal lies as of right to the Supreme Court of the State and . . . to the Supreme Court sitting as the Full Court. That consideration is one of a number which I think should lead the Court to the conclusion that the word 'decision' in s 52(1) cannot refer to every decision made by the tribunal in the course of a proceeding before it. For example, it cannot, in my opinion, apply to a statement by the tribunal that it will not allow a particular question to be put . . . or a decision that it will not allow some particular line of questioning. What I think is in substance referred to is a decision of the tribunal which is given in the course of the proceeding and is effective irrevocably to affect the legal rights of a person". (27)
Although in the view of Tadgell J., who sat with Fullagar J., the latter "did upon reflection, guard
against seeking to confine by this decision the meaning of the word 'decision' in subs (1) of s 52", the passage we have quoted from Fullagar J. gives some support to the reading suggested above.
There is a degree of implausibility about the proposition that any procedural order, however trivial,
made by the tribunal in the course of its duties was intended to be subject to an appeal as of right
to this Court, it being the court at the apex of the State courts system. If that were so then (as
occurred in the present case) undesirable delay may be encountered in disposing of charges against
solicitors.
Although it is not necessary, for the purposes of determining this case, definitively to set out
the limits of the Court's appellate jurisdiction under s. 6Z, and it is perhaps undesirable to do so
since the matter was hardly argued before us, we express the view that s. 6Z contemplates only
appeals against orders made under Division 5. More specifically, we hold that procedural orders
may not be appealed against and in that category we include orders under s. 6L.
It follows that in our opinion the appeal we dismissed was incompetent.
In the circumstances it is unnecessary to discuss in any detail the merits of the appeal; but
we will make some observations. The charges brought against the practitioner, contrary to
suggestions made to the tribunal, included assertions of dishonest conduct in relation to a client;
charge no. 7 asserted with fairly elaborate particulars that a certain letter written by the solicitor
"was, as the solicitor well knew, false and misleading and/or contained representations which were
recklessly made, uncaring as to their accuracy". That is an allegation of fraud. Plainly the airing of
such an allegation would, if publicised, be likely to have an impact upon the solicitor's practice and reputation, whether or not the charge was ultimately held to be proved. Yet it is not likely that the
public interest would be served if the tribunal routinely ordered private hearing of, and suppressed
publication of, material relating to charges imputing disgraceful conduct.
One can understand the anxiety of a solicitor in the appellant's position and appreciate that
he may suffer great harm even if the charges are dismissed. But s. 6L contemplates that prima facie
hearings must be held in public and that implies that a particular reason, not applicable to the general
run of cases, must be shown to exist, justifying an order under the section. In the absence of such
a reason the discretion given by the section would not arise. The argument for the appellant in the
present case appeared to invite us to enunciate the principle that a sole practitioner in a city or town
other than Brisbane, charged before the tribunal, should ordinarily have the benefit of an order of
some sort under s. 6L. It is difficult to see sound reasons for requiring the tribunal to discriminate
against multi-partner firms and against Brisbane practitioners, in the exercise of its discretion under
s. 6L. Counsel for the appellant also contended that during argument the chairman of the tribunal
had overstated the extent of the burden upon a person applying for an order under the section.
Even if that occurred, it is not every remark made in the course of argument in terms which might
be thought loose which will lead to the setting aside of an order of the tribunal.
The tribunal simply exercised its discretion on its view of the circumstances of the case as
it saw them. There is no basis for contending that it erred in law or misunderstood those
circumstances and it is our opinion that nothing has been put before us to justify our holding that the
discretionary conclusion reached was incorrect. If, contrary to our view, there were a right of
appeal, the appeal would fail on the merits.
These are the reasons for dismissal of the appeal, which was ordered at the conclusion of
the hearing in this Court.

CATCHWORDS:	Legal practitioner - misconduct - appeal against refusal of Solicitors Complaints Tribunal to order that misconduct hearing be held in private - whether right of appeal - whether order of Tribunal a "decision" for purposes of s. 6Z Queensland Law Society Act - whether discretion of Tribunal under s. 6L of the Act properly exercised.
Australian Broadcasting Tribunal v. Bond (1990) 170 C.L.R. 321. Milner v. Prima Construction & Development Pty Ltd (1992) 75 L.G.R.A. 25 Neate v. Australian Securities Commission (1995) 132 A.L.R. 413 Pan Continental Mining Ltd v. Burns (1994) 124 A.L.R. 471 Queensland Law Society Incorporated v. A Solicitor [1989] 2 Qd.R. Queensland Law Society Act 1952, ss. 6L, 6Z
Counsel:	Mr S Couper Q.C. for the appellant. Mr R Perrett for the respondent.
Solicitors:	Shine Roche McGowan for the appellant. Clayton Utz for the respondent.
Hearing Date:	23 April 1999.

[1999] QCA 143

14/05/1999