B v A Legal Practitioner - [2020] TASSC 50

[2020] TASSC 50

COURT: SUPREME COURT OF TASMANIA

CITATION: B v A Legal Practitioner [2020] TASSC 50

PARTIES:  B, P
  v
  A LEGAL PRACTITIONER

FILE NO: 2325/2019
JUDGMENT

APPEALED FROM: PB v Legal Practitioner 1 [2019] TASLPDT 1

DELIVERED ON:  27 October 2020
DELIVERED AT:  Hobart
HEARING DATE:  18 June 2020
JUDGMENT OF:  Brett J
CATCHWORDS:

Appeal and New Trial – Appeal – General principles – Right of appeal – Nature of right – Appeal in the strict sense and appeals by way of rehearing – When rehearing does not involve rehearing de novo – Nature of appeal from Legal Profession Disciplinary Tribunal – Complaint lacking in substance – Appeal without merit – Appeal dismissed.
Aust Dig Appeal and New Trial [9]
Appeal and New Trial – Appeal – General principles – Admission of fresh evidence – In general – Discretion to receive further evidence.
Legal Profession Act 2007 (Tas), ss 433, 458, 484, 485.
Director of Public Prosecutions Act 1973 (Tas), ss 12 and 14.

Fernando v Medical Complaints Tribunal (No 2) [2003] TASSC 139, 12 Tas R 337; Motor Accidents Insurance Board v Wright [2016] TASSC 13; Adamson v Pharmacy Board of Tasmania [2004] TASSC 32; Martin v Medical Complaints Tribunal [2006] TASSC 73, 15 Tas R 413, referred to.
Aust Dig Appeal and New Trial [85]

REPRESENTATION:

Counsel:
             Appellant:  In Person
             Respondent:  P Turner SC
Solicitors:
             Respondent:  Solicitor-General

Judgment Number: [2020] TASSC 50
Number of paragraphs: 16

Serial No 50/2020
File No 2325/2019

P B v A LEGAL PRACTITIONER

REASONS FOR JUDGMENT BRETT J

27 October 2020

On 7 May 2012, a magistrate made a care and protection order under the Children Young Persons and Their Families Act 1997 in respect of the appellant's child. The order granted guardianship of the child to the Secretary, and made various other orders, some of which provided for contact between the appellant and the child, and for the appellant to be consulted and notified in respect of various aspects of the child's life.
The respondent is a legal practitioner, who, at times relevant to this case, was employed as counsel by the Director of Public Prosecutions. It seems that her responsibilities included the provision of legal services to the Secretary in respect of child protection matters. There is no evidence that she was so employed when the order was made and, in fact, the preamble of the written order indicates that a different lawyer appeared on behalf of the Secretary at that time. The respondent's first involvement in the case seems to have been around 9 December 2015 when she engaged in correspondence with the appellant's lawyer in relation to the implementation of certain aspects of the order. This correspondence took place between December 2015 and April 2016. There is no other evidence concerning the respondent's involvement in the case.
On 14 April 2016, the appellant made a complaint to the Legal Profession Board (the Board) in relation…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] TASSC 50
Decision Date: 27 October 2020

CaseChat Overview and Summary

In the case of B v A Legal Practitioner, the appellant sought to appeal a decision made by the Legal Profession Disciplinary Tribunal. The tribunal had dismissed a complaint against the respondent, a legal practitioner, concluding that the complaint was lacking in substance. The Court of Appeal was tasked with determining whether the appeal had merit and whether the tribunal's decision was correct.

The central legal issue before the court was whether the appeal was valid and if the tribunal's decision to dismiss the complaint was justified. The court had to consider the nature of the right to appeal and the circumstances under which an appeal by way of rehearing did not involve a rehearing de novo. Furthermore, the court examined the scope and limits of the tribunal's power to dismiss complaints that were considered to lack substance.

The court found that the appeal was without merit and dismissed it. It held that the tribunal's decision was correct as the complaint against the legal practitioner did not meet the threshold for substantiation. The court emphasised that the tribunal had the authority to dismiss complaints that lacked sufficient substance and that such decisions were not subject to rehearing de novo on appeal. The court concluded that the appeal did not present a valid legal issue and affirmed the tribunal's decision.

The court ordered that the appeal be dismissed, and the tribunal's decision remained in place. The legal practitioner was exonerated from the complaint, and the appellant was not granted any further relief.

Orders