Bar Association of New South Wales v T

[2001] NSWCA 316

CITATION:	BAR ASSOCIATION OF NEW SOUTH WALES v T [2001] NSWCA 316
FILE NUMBER(S):	CA 40060/01
HEARING DATE(S):	5 September 2001
JUDGMENT DATE:	2 October 2001
PARTIES :	Bar Association of New South Wales - Claimant T - Opponent
JUDGMENT OF:	Priestley JA at 1; Sheller JA at 2; Fitzgerald AJA at 34

LOWER COURT JURISDICTION :	Administrative Decisions Tribunal
LOWER COURT FILE NUMBER(S) :	ADT 92/99
LOWER COURT JUDICIAL OFFICER :	N/A

COUNSEL:	J C Campbell QC - Claimant P LeG Brereton SC - Opponent
SOLICITORS:	Colin Biggers & Paisley - Claimant Makinson & d'Apice - Opponent
CATCHWORDS:	PRACTICE AND PROCEDURE - jurisdiction of Administrative Decisions Tribunal - whether Tribunal had jurisdiction over a complaint against a barrister filed in 1993 - interpretation of clauses 30(2) and 31(1) of the Legal Profession Regulation 1994.
LEGISLATION CITED:	Legal Profession Act 1987 Legal Profession Reform Act 1993 Legal Profession Regulation 1994 Administrative Decisions Tribunal Act 1997 Administrative Decisions Legislation Amendment Act No 77 of 1997
CASES CITED:	Council of the Law Society of NSW v Nutt (unreported) NSWCA 24 August 1995 Garnham v Tessier (1959) 27 WWR 682
DECISION:	The Court makes the following declaration ; A declaration that the Administrative Decisions Tribunal has jurisdiction to hear and determine the complaint being Complaint No 6 of 1993 filed by the plaintiff against the defendant in the Legal Profession Disciplinary Tribunal on 17 March 1993.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40060/01

PRIESTLEY JA

SHELLER JA

FITZGERALD AJA

Tuesday, 2 October 2001

BAR ASSOCIATION OF NEW SOUTH WALES v ‘T’


The plaintiff sought a declaration that the Administrative Decisions Tribunal had jurisdiction to hear and determine a complaint filed by it against the defendant, a barrister. Pursuant to the Legal Profession Act 1987 (the Act), the complaint had been made to the Bar Council, who, in 1993, referred it to the Legal Profession Disciplinary Tribunal (LPDT). The matter was removed from the list by consent, and no tribunal was constituted to conduct the hearing.

Commencing on 1 July 1994, the relevant provisions of the Act were amended by the Legal Profession Reform Act 1993 (the LPR Act). The LPDT was replaced by the Legal Services Tribunal (LST). On the same date, the Legal ProfessionRegulation 1994 (the Regulation) commenced, providing transitional provisions in relation to complaints made under the earlier scheme. Further legislative amendments occurred before the claim was brought forward again. The Administrative Decisions Tribunal Act 1997 (the ADT Act) commenced on 6 October 1998 and replaced the LST with the Administrative Decisions Tribunal (the ADT). The effect of provisions in this new Act was that the complaint could not be heard by the ADT unless it could be described as proceedings commenced in the LST before its abolition.

The issue in contention was whether the LST had acquired jurisdiction in respect of the complaint (so as to provide the ADT with jurisdiction). If the complaint was covered by cl 30(2) of the Regulation – a complaint made under the former Part 10 and not yet subject to proceedings in the LPTD – then the LST would have had jurisdiction over it. Alternatively, if the complaint fell under cl 31(1) of the Regulation – a complaint made under the former Part 10 and already subject to proceedings in the LPDT – then the LST would not have had jurisdiction.

Held : per Sheller JA, Priestley JA and Fitzgerald AJA agreeing:

1. The complaint was covered by cl 30(2) of the Regulation, hence the ADT did have jurisdiction over the complaint.

2. The argument that as soon as a complaint had been formally referred to the LPDT under the former Pt 10, it was “the subject of proceedings before” the LPDT could not be sustained. The language of cl 30(2) suggested that the fact that a complaint is made or referred to the LDPT did not necessarily mean that the complaint was also the subject of proceedings before that body. Rather these were two separate events.

3. The date at which the complaint became “the subject of proceedings before” the LPTD was no earlier than the date when the LPDT was constituted for the purpose of conducting a hearing into the complaint. This construction produces a sensible result. Until the LPTD had been constituted, there was no reason why a complaint made under the former Pt 10 should not be taken to be one referred to the LST under the new Pt 10.

ORDER

The Court makes the following declaration:

A declaration that the Administrative Decisions Tribunal has jurisdiction to hear and determine the complaint being Complaint No 6 of 1993 filed by the plaintiff against the defendant in the Legal Profession Disciplinary Tribunal on 17 March 1993.


*****

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40060/01

PRIESTLEY JA

SHELLER JA

FITZGERALD AJA

Tuesday, 2 October 2001

BAR ASSOCIATION OF NEW SOUTH WALES v ‘T’
Judgment

I adopt Sheller JA’s statement of the relevant materials in this case and agree with his analysis of them. The meaning he gives to the word “pending” in sub-clause 31(1) of the Legal Profession Regulation 1994 is in my opinion appropriate in its context. I therefore reach the same conclusion as he does and agree that the declaration sought by the Bar Association should be made.

This matter came before the Court on a summons filed for the plaintiff, Bar Association of New South Wales (the Bar Association), and included in the Administrative Law List, which on 30 January 2001 was removed into the Court of Appeal for determination pursuant to Pt 12 r 2(1) of the Supreme Court Rules. The defendant was ‘T’, a barrister (the barrister). The Bar Association sought :

“A declaration that the Administrative Decisions Tribunal has jurisdiction to hear and determine the complaint being complaint No 6 of 1993 filed by the plaintiff against the defendant in the Legal Profession Disciplinary Tribunal on 17 March 1993.”

3 On 5 September 2001 the Court ordered that until 5 December 2001, the publication of any report of these proceedings which identified the name, address or office held by the barrister be prohibited. The Court made this order on an application supported by evidence which satisfied the Court that in the public interest the order should be made. The evidence was that publication of a report of these proceedings which identified those matters could cause irreparable prejudice in the minds of jurors hearing a four week criminal trial due to begin in mid-October 2001. The consequence could be considerable public inconvenience and expense. In these unusual circumstances the Court was satisfied that it was appropriate to make the order.

Legal Profession Act 1987

4 The Complaint had been made by the Legal Aid Commission to the Bar Council, pursuant to s130 of the Legal Profession Act 1987 (the Act). On 17 March 1993 the Bar Association referred the Complaint to the Legal Profession Disciplinary Tribunal (LPDT) pursuant to s134(1)(c) of the Act on the basis that it involved a question of professional misconduct.

5 Under Pt 10 of the Act as then in force (the former Pt 10) the LPDT was a body established by s128(1) of the Act. Division 7 of the former Pt 10 dealt with the constitution of the LPDT for the purpose of conducting a hearing into a complaint and generally set out how such a hearing should be conducted, the powers of the LPDT on such a hearing and the powers of the LPDT in making a determination. It will be necessary to refer further to Division 7.

6 At the end of the form of the Complaint as filed in the LPDT under the heading “Notice of Hearing” it was stated that the Complaint was listed for mention before the LPDT on 22 April 1993. However, by consent, the Registrar of the LPDT stood the Complaint over to 8 June 1993 and then on 7 June 1993 by consent removed it from the list and stood it over generally with leave to either party to apply on two days notice. Apparently no tribunal was constituted under s156 in Division 7 to conduct the hearing.

Legal Profession Reform Act 1993

7 Commencing on 1 July 1994 the Legal Profession Reform Act 1993 (the Reform Act) amended the Act by, amongst other things, substituting a new Pt 10 (the new Pt 10) for the former Pt 10. The new Pt 10 established the office of Legal Services Commissioner and constituted the Legal Services Tribunal (LST). By 1 July 1994, Schedule 8 of the Act headed “Savings, transitional and other provisions” (which took effect pursuant to s215), had been amended by Schedule 4 cl 12 of the Reform Act to provide in cl 1A(1) that the Regulations might contain provisions of a savings or transitional nature consequent on the enactment of the Reform Act. Schedule 8 of the Act was amended to include cll 38 and 39.

8 Clause 38 of Schedule 8 “Continuation of pending proceedings” provided that without limiting cl 1A, “the regulations under that clause may make provision for or with respect to complaints and disciplinary proceedings pending on the commencement of this clause and to orders made in those proceedings or in any such proceedings completed before that commencement.” Clause 39(1) abolished the LPDT, the Legal Profession Standards Board and the Legal Profession Conduct Review Panel. Clause 39(2) provided that a person who held office as a member of the LPDT immediately before its abolition ceased to hold office and was not entitled to any remuneration or compensation for the loss of that office. Subclause (3) provided that any such person was eligible (if otherwise qualified) to be appointed as a member of the LST.

Legal Profession Regulation 1994

9 Pursuant to the Act the Legal Profession Regulation 1994 (the 1994 Regulation) was made. The 1994 Regulation commenced on 1 July 1994 (cl 2). Part 9 of the 1994 Regulation contained “Savings and transitional provisions”. Division 2 of Pt 9 contained the following clauses:

“Division 2 – Complaints and appeals
Complaints made under former Part 10 and not yet subject to proceedings
30. (1) This clause and clause 31 apply in respect of a complaint made under former Part 10 of the Act.
(2) If a complaint made before 1 July 1994 has not, before that date, been the subject of proceedings before the Board or the former Tribunal, the complaint is to be dealt with as if it has been made under new Part 10 of the Act. A matter that has been referred under former Part 10 of the Act to the former Board or the former Tribunal by a Council, but has not, by 1 July 1994, been the subject of proceedings before the former Board or former Tribunal, is taken to be a matter referred to the new Tribunal under new Part 10 of the Act.

(3) If a complaint has been made to a Council (or is the subject of a notice given to a Council by the former Review Panel under former section 140 (2) of the Act) before 1 July 1994, but the Council has made no decision in response to the complaint or notice, as the case may be, before that day, the complaint is to be dealt with by the Council as if it had been made under new Part 10 of the Act.

(4) Anything done under former Part 10 of the Act in respect of a complaint to which this clause applies is taken to have been done under new Part 10 of the Act.
Complaints made under former Part 10 and already subject to proceedings
31. (1) If a complaint is the subject of proceedings before the former Board or the former Tribunal that are pending on 1 July 1994, those proceedings may be continued before, and determined by, that Board or that Tribunal as if former Part 10 of the Act were still in force.
(2) If a complaint made under former Part 10 of the Act has (whether before, on or after 1 July 1994) been the subject of proceedings before the former Board or the former Tribunal resulting in a determination in relation to the complaint or the termination of the proceedings, any further action in respect of the complaint that is taken on or after 1 July 1994 is to be taken under new Part 10 of the Act. In that case, the determination or termination is to be treated as if it had been under new Part 10 of the Act by the new Tribunal. Examples of further action are a review of the determination, a reference of the complaint to the Tribunal or an appeal.
(3) To the extent that a complaint has been the subject of proceedings before the former Tribunal, this clause applies to the complaint whether the proceedings are in relation to the review of the determination of a complaint by the former Board or they are in relation to a complaint referred directly to the former Tribunal.
(4) A reference in this clause to a determination:
(a) is a reference to a determination that continues to have effect after 30 June 1994; and
(b) includes a determination that, because of this clause, is made under a provision of former Part 10 of the Act on or after 1 July 1994; and
(c) includes a reprimand or order made as a result of a determination.
Continuation of former Board and former Tribunal
32. (1) The former board continues in existence (as constituted immediately before 1 July 1994) for the purposes of determining any proceedings under clause 31.
(2) The provisions of former Part 10 of the Act that relate to the constitution and functions of the former board continue to apply to the former Board while it continues in existence under this clause
(3) The former Tribunal continues in existence (as constituted immediately before 1 July 1994) for the purposes of determining any proceedings under clause 31.
(4) The provisions of former Part 10 of the Act that relate to the constitution and functions of the former Tribunal continue to apply to the former Tribunal while it continues in existence under this clause.”

10 Apparently nothing was done to bring the Complaint forward before the LST or, if cl 31(1) of the 1994 Regulation applied, to continue the proceedings before the LPDT.

The Administrative Decisions Tribunal Act 1997

11 The Administrative Decisions Tribunal Act 1997 (the ADT Act), so far as relevant here, commenced on 6 October 1998. By this time it had been amended by the Administrative Decisions Legislation Amendment Act No 77 of 1997. By force of s144 and Schedule 5 of the ADT Act, so amended, the LST was abolished. In Pt 2 of Schedule 5 of the ADT Act “abolished body” was defined to mean, inter alia, the LST but not the LPDT. Clause 14 in Pt 2 of Schedule 5 of the ADT Act provided:

“Pending proceedings before an abolished body
(1) If proceedings were commenced but not heard by an abolished body before its abolition, the proceedings are taken to have been duly commenced in the ADT.
(2) If an abolished body had commenced to hear (but had not determined) a matter before its abolition, the person or persons hearing the matter:
(a) are to continue to hear the matter, and to determine the matter, sitting as the ADT, and
(b) have and may exercise, while sitting as the ADT under this clause, all the functions that the abolished body had immediately before its abolition.
(2A) A decision made under this clause is taken to be an appealable decision for the purposes of Part 1 of Chapter 7.
(3) This clause applies despite any contrary provision of this Act.”
Application to the ADT

12 The result of these legislative developments was that the Complaint could not be heard by the ADT unless it could be described as proceedings commenced in or before an abolished body before its abolition, namely the LST. It was conceded on behalf of the barrister that if the LST acquired jurisdiction in respect of the Complaint, the ADT acquired jurisdiction pursuant to cl 14 in Pt 2 of Schedule 5 of the ADT Act. The issue was whether the LST acquired jurisdiction in respect of the Complaint.

13 On 16 June 1999 the barrister filed an application seeking a determination by the ADT of its jurisdiction to hear and determine the Complaint against him. The application was heard by a hearing panel of the ADT on 25 November 1999. The hearing panel decided it had no jurisdiction to hear and determine the Complaint. An appeal was lodged against that decision by the Bar Association. The appeal panel of the ADT referred the question to the Supreme Court of New South Wales pursuant to s118 of the ADT Act. The procedure adopted was by way of the Bar Association’s summons in the Administrative Law List.

Jurisdiction of the ADT

14 The barrister argued that the Complaint was covered by cl 31(1) of the 1994 Regulation, that is, that it was a complaint the subject of proceedings before the LPDT that were pending on 1 July 1994. Accordingly, the proceedings might be continued before and determined by the LPDT as if the former Pt 10 of the Act was still in force. The Complaint was not one to be dealt with as if it had been made under the new Pt 10 or, if a referral, to be taken to be a matter referred to the LST under the new Pt 10 as provided for in cl 30(2) of the Regulation. The consequence of this was that the proceedings were not to be taken as having been duly commenced in the ADT so that the ADT was correct in concluding that it had no jurisdiction to hear and determine the Complaint.

15 The resolution of the question raised by the summons depends upon the proper construction of the clauses I have quoted from the 1994 Regulation as in force in July of that year.

16 Before examining the relevant clauses of the 1994 Regulation more closely it is helpful to summarise how, relevantly, the former Pt 10 operated before the Reform Act came into force on 1 July 1994. In Barwick v Law Society of New South Wales (2000) 74 ALJR 419 at 421-422 Gleeson CJ, Gaudron and McHugh JJ in a joint majority judgment said:

“[11] Until 1 July 1994, when there were substantial changes to Pt 10, there were a number of bodies which, depending upon the nature and seriousness of a matter, might become involved in dealing with an allegation against a practitioner. Members of the public were entitled to make a complaint against a practitioner to the appropriate Council (s130). In the case of barristers, the appropriate Council was the Bar Council, and in the case of solicitors, the appropriate Council was the Council of the Law Society (s123). The Councils were empowered to delegate their functions to committees (s136). A Council could dismiss a complaint summarily, but if it did not do so it was obliged to conduct an investigation into each complaint, and make a decision about it, recording the reasons for the decision (s133). One possible course for a Council to take, following investigation, was to refer a complaint to the Legal Profession Standards Board (which dealt with complaints of unsatisfactory professional conduct) or to the Legal Profession Disciplinary Tribunal (which dealt with complaints of professional misconduct) (ss134, 143 and 157). The Board or the Tribunal, as the case may be, would then conduct a hearing into the complaint.
[12] A Council had the power, of its own motion, to make a complaint to the Board or the Tribunal against a legal practitioner (s135). This, if it occurred, would follow some information-gathering process, but not an investigation conducted following a complaint by a member of the public.
[13] The statutory scheme was substantially amended as from 1 July 1994……”

17 It is important to note from this summary that any person might make a complaint against a legal practitioner to the appropriate Council under s130(1). One course that might follow, after an investigation by that Council into the complaint, was for the Council to refer the complaint to the LPDT (s134(1)(b) and (c)). On the other hand a Council might itself of its own motion make a complaint to the LPDT (s135). It was not open for a member of the public to make a complaint directly to the LPDT. If a complaint by a member of the public were to go forward to the LPDT it could only be after investigation by the appropriate Council and on a reference of the complaint by that Council to the LPDT. Thus, complaints came before the LPDT only on reference by a Council of a complaint made to it or if the Council itself made a complaint.

18 As already mentioned, Division 7 of the old Pt 10, “Professional misconduct”, provided for “the composition of” the LPDT and for “hearings”. The following parts of ss156 and 157 are relevant:

“156. (1) The Tribunal is, for the purpose of conducting a hearing into a complaint, to be constituted:
(a) in the case of a complaint concerning a barrister, by 2 of its barrister members and 1 of its lay members; or
(b) in the case of a complaint concerning a solicitor, by 2 of its solicitor members and 1 of its lay members.
(2) The President of the Tribunal shall nominate the persons to constitute the Tribunal for the purposes of any particular hearing.
(3) The President of the Tribunal is to nominate one of the barrister members or one of the solicitor members referred to in subsection (1)(a) or (b), as the case requires, to preside at the hearing.
….
Hearings
157. (1) The Tribunal shall conduct a hearing into any complaint made or referred to it under Division 3, 4 or 5.
(2) For the purpose of conducting such a hearing, the Tribunal shall observe the rules of law governing the admission of evidence.
(3) The Tribunal shall cause a record of its determination, together with the reasons for its determination, to be kept in respect of each hearing conducted by it under this Division.
(4) If one of the members (not being the presiding member) constituting the Tribunal for the purpose of conducting a hearing under this Division vacates office for any reason referred to in clause 7 of Schedule 6:
(a) before the Tribunal has completed the hearing; or
(b) before the tribunal has made a determination in respect of the hearing,
the hearing may be continued, or a determination may be made, by the remaining members of the Tribunal. If the remaining members are divided in opinion as to the determination to be made in respect of the hearing, the opinion of the presiding member is to prevail.
(5) However, if the presiding member or more than one other member vacates office for any such reason before the Tribunal has completed the hearing or made a determination in respect of the hearing, the hearing is terminated. The Tribunal may, for the purpose of conducting a new hearing into the complaint concerned, be reconstituted in accordance with this Division.
(6) A determination of the Tribunal is not invalid only because the constitution of the Tribunal at the time of the pronouncement of the determination is different from the constitution of the Tribunal at the time of making the determination.”

19 Section 158 provided for the persons who were entitled to appear at a hearing into a complaint, s159 provided for hearings to be held in the presence of the public subject to direction, s160 dealt with the power to summon witnesses and take evidence, s161 the power to obtain documents and s162 directions for the release of information. Section 163 “Determinations of the Tribunal” provided for the orders that the Tribunal might make if satisfied that the legal practitioner was guilty of professional misconduct or unsatisfactory professional conduct. Section 164 provided for appeals from Tribunal orders.

Meaning of the 1994 Regulation

20 Against this background I come back to consider the critical clauses of the 1994 Regulation. Clause 30(1) stipulated that cll 30 and 31 applied to complaints made under the former Pt 10, that is before 1 July 1994, as from which date the new Pt 10 was substituted for it. The second sentence in cl 30(2) concerned a matter referred to the LPDT by a Council. This could only be a referral to the LPDT, pursuant to s134(1)(b) or (c), of a complaint made by a member of the public to the Council. The sentence was dealing with complaints by members of the public and with the only way in which those complaints could come before the LPDT, namely by a referral by a Council. The only complaints that could otherwise come before the LPDT were complaints made by a Council of its own motion pursuant to s135.

21 In Council of the Law Society of NSW v Nutt (unreported) Court of Appeal, 24 August 1995, Cole JA, with whom Meagher JA agreed, said:

“It is, in my view, clear that the word ‘complaint’ in Regulation 30(1) refers either to a complaint made by a person to the Council pursuant to s130(1) of the old Act or a complaint made by the Council, of its own motion, to the Tribunal pursuant to s135 of the old Act. It is equally clear that Regulation 30(3) deals only with complaints made by a person to the Council pursuant to s130(1) and in respect of which no decision had been made by Council regarding that complaint. Regulation 30(3) has no application to the present circumstances because the Council resolved to refer the matter to the Legal Profession Disciplinary Tribunal pursuant to s134(1)(c).
In my view it is also clear that the second sentence of Regulation 30(2) bears no application to the instant case because the complaint was not one which ‘has been referred under former Part 10 of the Act to …the former Tribunal by a Council’. It had been resolved to refer the matter but, in fact, it had not been referred by the necessary commencement of the appropriate proceedings in accordance with Rule 8 of the Legal Profession Disciplinary Tribunal Rules. In my opinion a resolution to refer a matter is both preliminary to and different from actual referral by commencement of appropriate proceedings.”

22 This passage makes clear, and I respectfully agree with this, that cl 30(2) spoke of the actual referral to the LPDT, that is to say, in accordance with the ordinary meaning of the word, the handing over or submission of the complaint for the consideration and decision of the LPDT. Mahoney JA, the third member of the Court, thought differently. He said that the Council’s resolution to refer was in his opinion the operative referral of the complaint to the LPDT within this provision. The first sentence in cl 30(2) suggests that Cole JA’s view is to be preferred. As I have sought to demonstrate this sentence could only be referring to a complaint made by the Council of its own motion pursuant to s135. A Council did not make a complaint to the LPDT by resolving to do so. Section 157(1) imposed upon the LPDT the duty to conduct a hearing into any complaint made by the Council or referred to it by the Council. That duty could only sensibly arise when the LPDT received the complaint or the reference. The duty was enlivened by that event.

23 Next I turn to consider what was meant in cl 30(2) by the expressions

“a complaint made ……has not….been the subject of proceedings before the ….former Tribunal”

and

“A matter that has been referred …..to ….the former Tribunal by a Council….has not….been the subject of proceedings before the ….former Tribunal”.

These phrases are to be contrasted with cl 31(1)

“a complaint is the subject of proceedings before the former …..Tribunal that are pending”.

24 One can fairly assume that cll 30(2) and 31(1) were between them intended to deal with all complaints made or referred to the LPDT before 1 July 1994, leaving aside those such complaints which had resulted in a determination in relation to the complaint and the termination of the proceedings before, on or after 1 July 1994 which were dealt with in cl 31(2). Incidentally, cl 31(1) described the situation both when the complaint came directly from the Council and when the complaint was made by a member of the public and had been investigated and referred to the LPDT by the Council. In both cases what was the subject of the proceedings was the complaint. The additional words “are pending” meant “undecided or awaiting decision or settlement”; see the Canadian case Garnham v Tessier (1959) 27 WWR 682 per Schultz JA at 688.

25 Mr Brereton SC, who appeared for the barrister, submitted that, once a complaint had been formally made or referred to the LPDT under the former Pt 10, it was “the subject of proceedings before” the LPDT. The making or the reference of a complaint to the LPDT initiated the proceedings before it. Accordingly, in the present case, by force of cl 31(1) the proceedings might only be continued before and determined by the LPDT as if the old Pt 10 were still in force. This interpretation gave the words “the subject of proceedings before …..the former Tribunal” in cl 30(2) no work to do. It would have been sufficient if the subclause had said “if a complaint has not been made before 1 July 1994 to the former Tribunal the complaint is to be dealt with as if it had been made under the new Pt 10 of the Act”. Equally in the second sentence it would have been sufficient to say: “A matter that has not been referred under former Pt 10 of the Act to the former Tribunal by a Council before 1 July 1994 is taken to be a matter referred to the new Tribunal under the new Pt 10 of the Act”. The contrast between cl 30(2) and cl 31(1) was between complaints made under the former Pt 10 which, on the one hand, were not the subject of proceedings before 1 July 1994 and on the other hand were the subject of proceedings before and continuing on that date.

26 Apart from the difficulties it presents in understanding how cl 31(1) could operate, with due respect I think the barrister’s interpretation of cl 30(2) distorts the language. Clearly, each sentence in cl 30(2) referred to two separate events, not to one event. The first sentence referred to the event of the making of a complaint to the LPDT before 1 July 1994. If the complaint had not been made before 1 July 1994 cl 30 did not apply (cl 30(1)). If it had been made before that date, the sentence posed the question whether a second event had occurred, namely whether before that date such complaint had not been the subject of proceedings before the LPDT. Similarly, the second sentence dealt with two events; whether a matter had been referred under the former Pt 10 to the LPDT and secondly, whether by 1 July 1994 it had not been the subject of proceedings before the LPDT. Clause 31(1) may have contemplated a third event when the proceedings were pending. Whether this was so it is unnecessary to decide. Clause 31(2) acknowledged that a complaint made under the former Pt 10, that is to say before 1 July 1994, might have been the subject of proceedings before the LPDT after that date.

27 Counsel referred the Court to the Legal Profession Disciplinary Tribunal Rules 1990 cl 8 of which “commencement of hearings etc – forms and service” provided:

“(1) An application to the Tribunal or a hearing by the Tribunal (being an application made, or a hearing into a complaint referred to the Tribunal or made, under the section of the Act referred to in Column 1 of the table to this rule) is to be made or commenced by filing with the Registrar a document in or to the effect of the form in Column 2 opposite that section.”

In the case of both s134(1)(c) and s135 the form was Form 4 headed “Complaint”. That form was used by the Bar Association in the present case. The 1994 Regulation was said to pick up the procedure established by the 1990 Rules. Furthermore, the directions given by the Registrar on two occasions demonstrated that the LPDT was seized of the matter.

28 Counsel also referred to the following passage in the judgment of Cole JA in Nutt:

“If proceedings had been commenced in respect of that complaint prior to 1 July 1994, such proceedings would fall within Regulation 31(1), or if those proceedings had been determined, within Regulation 31(2).”

29 In Nutt’s case, as the majority found, the referral to the Tribunal had occurred after 1 July 1994, namely on 12 September 1994. It was unnecessary for the majority to express any view about what the position would have been had the reference been made to the Tribunal before 1 July 1994. Accordingly, his Honour’s conclusion as expressed in the sentence I have quoted was obiter. The savings and transition provisions in Pt 9 of the 1994 Regulation did not apply because the complaint had not, by 1 July 1994, on any view been the subject of proceedings before the LPDT. Moreover, I do not think his Honour was concerned to give the expression “the subject of proceedings before …..the former Tribunal” any precise meaning. Any of the meanings within the range available would have brought about the same result in Nutt. Similarly the rule-maker was concerned only with the formal procedure for putting a complaint or referral before the LPDT. Rules designed to achieve that objective cannot govern the meaning of the 1994 Regulation. Procedurally the making or reference of a complaint to the LPDT initiated proceedings but cl 30(2) referred also to an additional event different from the making or reference of the complaint and described, perhaps inaptly, as being when the complaint became “the subject of proceedings before” the LPDT. The Rules did not assist in determining when that was but Division 7 of the former Pt 10 did.

30 As I have said, cl 30(2) of the 1994 Regulation contemplated in each sentence two separate events. In each the second event was the time when the complaint made by the Council on its own behalf or made by a member of the public and referred to the LPDT became the subject of proceedings before the LPDT. It is significant that the word “before” is used rather than “in” the LPDT. The word “before” directs attention to Division 7 of the former Pt 10. Division 7 imposed upon the LPDT the duty to conduct a hearing into the complaint; s157(1). It also stated how the LPDT was to be constituted for the purpose of conducting that hearing; s156(1). That depended in part upon whether the complaint concerned a barrister or, on the other hand, concerned a solicitor, and in part upon the nominations of the President of the LPDT.

31 In my opinion, accepting as I do that cl 30(2) stipulated two events in each sentence, the second event when the complaint or matter referred became the subject of proceedings was no earlier than the date when the LPDT was constituted for the purpose of conducting a hearing into the complaint. Such a construction produces a sensible result. Until the LPDT had been constituted for the purpose of conducting the hearing I can think of no reason why a complaint made under the former Pt 10 should not be taken to be one referred to the new Tribunal under the new Pt 10. Indeed if that were not so no complaint referred under the former Pt 10 would ever be taken to be a matter referred to the new Tribunal under the new Pt 10 pursuant to cl 30(2). On the other hand, once the LPDT was constituted for the purpose of conducting the hearing there was every reason, particularly once the hearing had begun, why the complaint should be determined by the LPDT as if the former Pt 10 was still in force as cl 31(1) provided.

32 Accordingly although the Complaint had been referred to the LPDT before 1 July 1994 it had not by 1 July 1994 been the subject of proceedings before the LPDT and, pursuant to cl 30(2) of the 1994 Regulation should be taken to be a matter referred to the LST under the new Pt 10. On that basis, the barrister accepted that the ADT acquired jurisdiction pursuant to the ADT Act. The Bar Association is entitled to the declaration sought in the summons. The Bar Association did not ask for costs in the summons or during the hearing of the appeal. Accordingly there should be no order as to costs.

Order

33 The Court makes the following declaration:

A declaration that the Administrative Decisions Tribunal has jurisdiction to hear and determine the complaint being Complaint No 6 of 1993 filed by the plaintiff against the defendant in the Legal Profession Disciplinary Tribunal on 17 March 1993.

: The circumstances giving rise to this appeal are set out in the reasons for judgment of Sheller JA. I agree with the orders proposed by his Honour and, subject to what follows, with his Honour’s reasons. I will adopt his Honour’s terminology.

35 Under the former Pt 10, the appropriate Council (of the Bar or the Law Society) could make a complaint to the former Tribunal or the appropriate Council could refer a complaint which had been made to it to the former Tribunal.

36 Although containing only two limbs, cl 30(2) of the 1994 Regulation covered three situations, namely (so far as presently material):

(a) complaints made before 1 July 1994 by the appropriate Council to the former Tribunal,

(b) complaints made to an appropriate Council before 1 July 1994 which had not been referred to the former Tribunal, and

(c) complaints made to the appropriate Council which had been referred by it to the former Tribunal,

which had not, “before” or “by” 1 July 1994, “been the subject of proceedings before …the former Tribunal”.

37 Clause 31(1) of the 1994 Regulation complemented cl 30(2) by dealing (so far as presently material) with complaints (made or referred to the former Tribunal) that were “the subject of proceedings before …the former Tribunal that are pending on 1 July 1994”.

38 Complaints were not the subject of proceedings before the former Tribunal before or by 1 July 1994 merely because the complaint had by then been made or referred to the former Tribunal.

39 Consistently with that conclusion, and with the manifest purpose of the scheme, proceedings were not “pending” before the former Tribunal on 1 July 1994 when it had not then been constituted for that purpose in accordance with Div 7 of the former Pt 10 of the Act.

40 Accordingly, the Bar Council’s complaint against the barrister was covered by cl 30(2), not cl 31(1), of the former Pt 10.

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