Barwick v Law Society of NSW

[1999] HCATrans 269

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S25 of 1999

B e t w e e n -

ROSS GARFIELD BARWICK

Appellant

and

LAW SOCIETY OF NEW SOUTH WALES

First Respondent

ADMINISTRATIVE DECISIONS TRIBUNAL

Second Respondent

ROMAN ALEXANDER DECHNICZ

Third Respondent

GLEESON CJ
GAUDRON J
McHUGH J
KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 3 SEPTEMBER 1999, AT 10.19 AM

Copyright in the High Court of Australia

MR P.L.G BRERETON, SC:   May it please the Court, I appear with my learned friend, MR D.W. PHILLIPS, for the appellant. (instructed by Eakin McCaffery Cox).

MR G.C. LINDSAY, SC:    May it please the Court, I appear for the respondent, the Law Society, the first respondent (instructed by Raymond John Collins).

GLEESON CJ:   The Senior Registrar has indicated that she has been advised by the Crown Solicitor for New South Wales that the Administrative Appeals Tribunal does not oppose the application to change the identity of the second respondent, and that the Administrative Appeals Tribunal will submit to the orders of the Court in the appeal, save as to costs. She has also provided a certificate that the third respondent, Mr Dechnicz, does not propose to make any submissions in this appeal.  You have an application in relation to parties.

MR BRERETON:   Yes, your Honour.  May it please the Court I move on a notice of motion filed on 2 August 1999.

GLEESON CJ:   And that is really to substitute the Administrative Decisions Tribunal.

MR BRERETON:   The Administrative Decisions Tribunal for the Legal Services Tribunal, consequent upon the amendment of the subject legislation and the vesting of the former jurisdiction of the Legal Services Tribunal in the now Legal Services Division of the Administrative Decisions Tribunal.

GLEESON CJ:   Is that opposed, Mr Lindsay?

MR LINDSAY:   No, it is not.

GLEESON CJ:   Very well, we will make those orders.  Yes, Mr Brereton.

KIRBY J:   I think there was something in the respondent’s submissions which sought some particular order against Mr Dechnicz.  Is he aware of that relief that is sought against him, or does that cause any problem for his consenting or submitting appearance?

MR LINDSAY:   I think the answer to that is no.  In the Court of Appeal, Mr Dechnicz submitted, save as to the form of the orders, the form of the orders that was adopted in the Court of Appeal was general, and so no question arose.

KIRBY J:   I am just wondering whether the additional submission in this Court alters his position.  It was just something that occurred to me when I read that.

MR LINDSAY:   Your Honour, I am not conscious of going beyond the ambit of the proceedings.

KIRBY J:   Very well, we will perhaps consider that at the end, if necessary.

MR LINDSAY:    Certainly, thank you.

GLEESON CJ:   Yes, Mr Brereton.

MR BRERETON:   May it please the Court, as your Honours know, the Legal Profession Reform Act 1993 introduced a new Part 10 of the Legal Profession Act in New South Wales with effect from 1 July 1994. Part 10 created a two‑stage process for the handling of complaints of misconduct – and I use that word compendiously to include unsatisfactory professional conduct – against legal practitioners.

The first stage involves the making of a complaint which can be by any person under section 134, or by a relevant professional Council under section 135, or by the Legal Services Commissioner under section 136, followed by the investigation of that complaint and a decision in respect of that complaint by the investigating body, whether it be the Legal Services Commissioner or the relevant professional Council as to whether or not to institute proceedings in the Tribunal or to dismiss the proceedings - to dismiss the complaint, or merely to impose a reprimand.

GLEESON CJ:   Mr Brereton, I have in front of me a reprint of the Legal Profession Act 1987 as in force at 28 April 1998. Is that the appropriate form of the legislation?

MR BRERETON:   I think - as in force on 28 April 1998?

GLEESON CJ:   Yes.

MR BRERETON:   Yes, your Honour.  That, your Honour, so far as I am aware is the latest reprint.  There are some subsequent amendments which are not material to the present proceedings.  There are also the subsequent amendments in the Administrative Decisions Tribunal legislation which changed the identity of the Tribunal.  Now, my learned friend has had prepared and has handed up what the Law Society believes to be the current form of the legislation and I gather that has been provided to the Court.

GLEESON CJ:   This is the document headed, “Updated 2 September 1999”?

MR BRERETON:   Yes, your Honour.  I have not had a chance, because it was only provided to us shortly before I rose to my feet, to review it in detail but I have no reason to doubt that it is a correct version.

GLEESON CJ:   Thank you.

KIRBY J:   So, we will not have the pleasure of going into the transitional provisions?

MR BRERETON:   We will have to to some extent, your Honour.

KIRBY J:   I see.

MR BRERETON:   Now, I was dealing with stage 1 of this process and it culminates with a decision under section 155 of the Act as to whether or not to institute proceedings or to dismiss the complaint, or, with the practitioner’s consent, merely to impose a reprimand.  Stage 2 of the process involves the institution of proceedings in the Tribunal by an information which contains particularised allegations for hearing of that by the Tribunal and its ultimate determination by the Tribunal.

McHUGH J:   Mr Brereton, no chronology has been filed in this case in accordance with the Rules.   It seems to be that if ever a case required a chronology it was this one.

KIRBY J:   I think there is one in the Court of Appeal, is there not?

MR BRERETON:   There are several chronologies, your Honour, I think contained in the appeal books and attached, in particular, to Mr Barton’s affidavit at page 144 to 157 of volume 1. 

In Walsh v Law Society (1993) 164 ALR 405 Mr Walsh complained, rightly, as this Court held, that the Court of Appeal had overlooked the requirements of particularity contained in Part 10 of the Act. In the joint judgment of your Honours McHugh, Kirby and Callinan, there were identified three characteristics of Part 10 which are of importance to the present appeal. The first of those is that the Act intends to provide protection and safeguards to a legal practitioner against whom disciplinary proceedings are brought and not just to assist complainants. That is illustrated, for example, in paragraph 61 of your Honour’s judgment. The second characteristic is that the Act creates a scheme which is full of specificity and particularity which must be adhered to and that in the context of that particularity and specificity providing safeguards and being protective of rights those safeguards were to be given full effect and not to be diluted by some narrow reading, and that is illustrated in paragraphs 62 and 63 of the judgment.

The third characteristic identified by your Honours, which appears in paragraph 66 of the judgment, is that the focus of the whole procedure is the original complaint, whether it be under section 134, 135 or 136.

In the present appeal the appellant complains of three errors of principle made by the Court of Appeal.  The first is in the application of section 138 which is, in effect, a limitation provision.  The Court of Appeal held that section 138 applies only to complaints made by any person under section 134 and not to complaints by a counsel under section 135 or the Commissioner under section 136.  If that holding be wrong, as we contend it is, the consequence is that except for very limited parts the allegations particularised in the information filed in the Tribunal are not in respect of a valid complaint because virtually all of them are about conduct which was more than three years old when the complaint was initiated.

The second error of principle concerns sections 148 and 155.  The Court of Appeal held that though an investigation had to be completed before proceedings were instituted in the Tribunal, that investigation could be commenced and completed before the complaint to the Law Society or by the Law Society or to the Commissioner was made.  If that be wrong, as we contend it is, the consequence, we submit, is that there never was an investigation into the complaints concerned here because the complaints were initiated and the decision on them made, in the one case, 60 seconds apart and in the other simultaneously.

The third error of principle concerns section 167A which authorises the addition and omission in the Tribunal of allegations particularised in the information.   The Court of Appeal held in substance that while the original information was restricted to the subject matter of the complaint from which it flowed, section 167A authorised the addition of matters not within the scope of the original complaint.

KIRBY J:   Can I ask you, you mentioned in your submission that in large part, and it is repeated in your written submissions, the matters referred to fell outside the complaint.  Now, both sides submissions descend to a high degree of particularity, a very high degree of particularity.  The respondent hands out an olive branch to the Court and says that we should seek to resolve questions of principle and leave it to others to sort out where that leads.  Is that most seductive a suggestion one that you can embrace, or do you want to take us down into the engine room of particularity?

MR BRERETON:   I do not embrace that suggestion but that is not as terrifying as it seems.  The degree of particularity to which it is necessary to descend is, with respect, not as daunting as it might be made appear in the respondent’s submissions and I apprehend that I will be able to cover that degree of particularity, really within relatively a short scope.

KIRBY J:   I am sorry to have interrupted you.  You might go back to where you were.  You appeared to be, as it were, tendering us questions, what is the correct meaning and application of sections 138, 148, 155 and 167A.  They are matters that are apt to the High Court of Australia.

MR BRERETON:   Yes, your Honour.

KIRBY J:   But getting down into how that works out, it may just be our duty to do so, but it is not a very congenial duty given the very long period of time and the great detail of the facts in the case.  But, if we have to, we have to, I suppose.  But help us, if you will.

MR BRERETON:   I shall do my best, your Honour.  The significance of the section 167A point is that if the Court of Appeal’s holding was wrong, then 167A cannot save those parts of the information which are otherwise not valid because of sections 138, 148 and 155.

KIRBY J:   There were two other little questions, if I could just get them ‑ ‑ ‑

MR BRERETON:   Certainly, your Honour.

KIRBY J:   One of them relates to the suggestion that since this decision of the Court of Appeal, a decision, I think it is in Murray’s Case or it may be in some other case, has laid down a principle which, had it been applied in this case, would have been relevant to your client.  Now is that something that is common ground between the parties or is that something you embrace as well?  And the second question is there has been, I think, an invocation of the original jurisdiction of the Supreme Court which is preserved by the Legal Profession Act. Is that, as it were, an easy way around all these problems which ought to have been followed so that you cut the Gordian knot and the Supreme Court can go quickly and directly to the merits of the matter or is that not something that can be utilised in these particular circumstances?

MR BRERETON:   May I address those matters in turn.  The first concerns Murray’s Case.  In Murray’s Case the Court of Appeal held that the rules of procedural fairness, as generally understood, applied to the investigation process and, in particular, to the decision‑making process under section 155.  Murray’s Case is subject of a pending application for special leave to appeal to this Court by the Legal Services Commissioner, Mr Murray having been successful in the Court of Appeal.

The question which was argued in Mr Murray’s case was essentially whether the section 155 decision involved an obligation on the part of the decision maker to afford procedural fairness to the legal practitioner by providing to him a copy of the complaint and by providing him or affording him an opportunity to make submissions about it, that not having, in fact, been done.

Those were not issues which were argued in Mr Barwick’s case.  However, the Court of Appeal’s decision in that case certainly makes all the stronger the holding in Barwick’s Case that an investigation must be completed before proceedings are instituted in the Tribunal.  We embrace Murray’s Case in the present appeal for the proposition that an investigation must be completed before proceedings are instituted in the Tribunal.  However, the Court of Appeal found in our favour on that point and we do not need to raise or argue that issue before this Court.  My learned friend seeks special leave to cross-appeal to challenge that finding of the Court of Appeal.

May I then turn to your Honour’s second question which concerns the inherent jurisdiction.  The inherent jurisdiction of the Supreme Court has not been invoked.  The Law Society has threatened to invoke it and, I think, has passed a resolution authorising its officers to commence proceedings in the inherent jurisdiction and, indeed, in its arguments on the special leave application in this Court argued that special leave should not be granted because it could go and invoke the inherent jurisdiction.  It has not chosen to do so.  There would be, in any event, a discretionary argument as to whether the Court of Appeal ought to permit its inherent jurisdiction to be invoked when a statutory regime for the investigation and determination of complaints has been provided by Parliament and, indeed, your Honours who participated in the joint judgment in Walsh’s Case commented on the possibility that considerations of discretion and procedural fairness would arise if, having instituted proceedings under the Act, it was then sought to invoke the inherent jurisdiction.

GLEESON CJ:   But expressed preservation of the inherent jurisdiction is part of the statutory regime.

MR BRERETON:   It is, your Honour.  If the Law Society wants to invoke the inherent jurisdiction, it may be able to do so.  Whether the Court of Appeal permits it to do so will be a matter for the Court of Appeal, or whether the Court of Appeal in its discretion says, “If you want to proceed at all under the Act will be a matter for the Court of Appeal”.  The point is that has not been done at this stage.  On the basis of what the Court of Appeal held in this case, the Law Society is seeking to proceed under the statute and that is why we are here.

The way I propose to approach the matter in argument today is as follows: First, and regrettably, I must take your Honours to the relevant parts and sections of Part 10 to emphasise those aspects of it which will be relevant to the subsequent argument. Secondly, I will deal with the section 148, 155 argument, namely the issue whether the investigation can be commenced and conducted before a complaint is made and initiated. Thirdly, I will deal with the section 138 issue, the limitation point. Fourthly, the section 167A issue. In respect of each of those issues as I come to them, I shall seek to show what the practical application of upholding the appeal on that issue would be to the facts of the case in the way in which your Honour Justice Kirby has invited me to be of assistance on the detail if I can.

May I turn then to the Act.  If it is of any assistance to the Court, I am working at this stage from the same reprint as your Honour the Chief Justice referred to, being a reprint as in force at 28 April 1998.  As I said, I have no reason to doubt that the Law Society’s version is accurate, but I have prepared from another print.  In any event, I suspect that the subsequent amendments are immaterial.

The relevant part of the Act is Part 10, which commences at page 120 of the reprint in question. Section 133 specifies some general objects and section 124 “Objects of Part relating to Users of Legal Services”. Of some potential relevance, particularly if we get to argument on Murray’s Case, is 124(e) which includes as one of the objects:

to provide complainants with a reasonable opportunity to rebut statements of the legal practitioner or interstate legal practitioner against whom the complaint is made before the complaint is disposed of.

The significance of that is it apparently assumes that the legal practitioner will have an opportunity to make statements about the complaint which the complainant will then be given an opportunity to rebut.  Section 125 deals with “Objects of Part relating to providers of legal services”, which is the word that the Act uses for lawyers, and paragraph (a) includes:

to ensure that the rules of natural justice…..are applied to any disciplinary proceedings –

There is an argument as to whether “disciplinary proceedings” means the whole of the procedure under Part 10 from complaint to determination, or whether it is limited only to the formal proceedings in the Tribunal from the filing of the information under section 167.

Section 126 contains relevant definitions.  For our purposes, “appropriate Council” means paragraph (b), “the Law Society Council”.  A little further on in the definitions:

Complaint means a complaint made under Division 3.

And because of the emphasis put for a different purpose on the words “initiated and made by the Court of Appeal”, the use of the word “made” in that definition is of significance.  And a little lower down:

Investigation means an investigation under this Part by a Council or the Commissioner into a complaint –

So what is important there is that where investigation is used, it means one under Part 10 and it means an investigation into a complaint, namely a complaint made under Division 3 of Part 10.

This appeal is not concerned with the meanings of “professional conduct”, and we can pass over to Division 3 at page 126 of the print headed “Complaints about legal practitioners”.  Section 134 is entitled “Right to make complaint to Commissioner”, and authorises any person to make a complaint to the Legal Services Commissioner about the conduct of a legal practitioner.  Subsection (2) provides that:

Any such complaint that is duly made is to be dealt with in –

accordance with Part 10. Section 135 is entitled “Complaints made by or to Councils”, and the use of the word “made” there is of some significance in argument. Subsection (1) provides that:

A Council may initiative a complaint against any legal practitioner.

Subsection (2) provides that:

A copy of any such complaint is to be forwarded immediately to the Commissioner.

Section 136 speaks of “Complaints made by Commissioner”, provides that:

(1)  The Commissioner may initiate a complaint against any legal practitioner or interstate legal practitioner under this Part.

(2)  Any such complaint is for the purposes of this Part, taken to have been made to the Commissioner.

Section 137 again in the heading uses the words “How complaint made”, and specifies the formal requirements for the making of a complaint.

KIRBY J:   Section 136(2) does seem to very explicitly draw the distinction between complaints made and initiated.

MR BRERETON:   If it stood on its own that conclusion might be drawn, your Honour, but when one sees it in the context of the definition in section 126, and another section to which I will later come, it will become apparent that the legislature was not drawing any distinction at all, but we will come to that.

KIRBY J:   That is very hard to square with, the express use of a new verb.  It could have used the verb “made” but instead, in those two cases, Council and Commissioner used this peculiar verb “initiate”.  The one, a Germanic or Saxon word “make” and the other a French word, or Norman-French, “initiate”.

MR BRERETON:   As I say, your Honour, I will address the argument on that shortly but that needs to be seen in the context of how the Act deals with those concepts elsewhere and I will come to that. 

Section 138, which is one of the sections central to this appeal, is headed, “When complaint made”.  It provides that:

A complaint may only be made within 3 years after the conduct is alleged to have occurred.

Subsection (2) provides that:

the Commissioner may accept a complaint made after that time if…..satisfied -

of certain tests.  Just pausing there for a moment, one then sees five sections in a row, the first giving any one a right to make a complaint, the second dealing with complaints made by Councils, the third with complaints made by the Commissioner, the fourth with how a complaint is made, the fifth with when a complaint is made.  The Court of Appeal held that 138 related only to 134 and not to 135 and 136 and that is ‑ ‑ ‑

KIRBY J:   Could I just ask you to pause there?  So far as the power of the Commissioner to, as it were, extend time, that is an argument, is it not, at least in the case of the Commissioner, that if he initiates the proceedings he can be deemed to have extended the time.  That is a bit more tricky in the case of the Council because there has then not been the explicit attention to the exercise of the statutory discretion to extend time, as I have loosely been describing it.  But, at least in the case of the Commissioner, it fits in neatly with the notion that the Commissioner has the power to initiate and that that is a different kind of decision than the decision to make which any old person can do.

MR BRERETON:   With respect, not, your Honour.  So far as the power in subsection (2) is concerned, while there are different arguable views of what it does, it involves a completely different decision from initiating or making a complaint.  What subsection (2) is concerned with is a decision as to whether a stale complaint, for want of a better term, should be permitted to proceed.  Now, even if the Commissioner initiates a complaint himself, such a complaint being taken to be made to him, the Commissioner must separately turn his mind to the issues under subsection (2) and be satisfied of the tests referred to in subsection (2).

GLEESON CJ:   Mr Brereton, is the only source of the obligation to give particulars of the complaint to be found in section 137?

MR BRERETON:   No, your Honour, there is a further source in section 140.

GLEESON CJ:   Subject to section 140, if the Council initiated a complaint but gave no particulars of it, what is there but section 137 to remedy that situation?  I am inquiring as to the source of the Council’s obligation to give particulars of a complaint initiated by the Council.

MR BRERETON:   I think the answer to that is that there is no further obligation in the Act.  There would be two possible consequences of a failure to give particulars.  If there was a total failure to give particulars, then a complaint would not have been validly made.

GLEESON CJ:   Why not?

MR BRERETON:   Because a complaint would not have been made in accordance with section 137.

GLEESON CJ:   That is my point.  If section 137 is the only source of the obligation of the Council to give particulars of a complaint initiated by the Council, that seems to advance your argument in relation to the construction of section 138, does it not?

MR BRERETON:   Yes, your Honour.

CALLINAN J:   You can, I suppose, call in aid 125(a) which refers to rules of natural justice.  A complaint without any particulars might infringe those rules.

MR BRERETON:   Yes, your Honour, although as I have said, there is an argument as to whether the reference to disciplinary proceedings in 125(a) carries, or is intended to deal only with the information in the Tribunal stage onwards, or whether it is intended to deal with the whole procedure.  The Court of Appeal in Murray’s Case said that it was prepared, for the sake of argument, to accept the lesser position advanced by the Legal Services Commissioner that it only dealt with the procedure from the time of institution of the proceedings in the Tribunal onwards.  But, despite that, nevertheless held that the rules of natural justice applied regardless to the earlier stage.

CALLINAN J:   I think “proceedings” was given a wide meaning in Ainsworth’s v CJC Case, was it not?

MR BRERETON:   Yes, your Honour.

CALLINAN J:   But, could I just ask you another question:  in relation to section 138, does it give rise to legitimate expectation on the part of a person against whom time might be extended?  Legitimate expectation of perhaps being given a hearing to ‑ ‑ ‑

MR BRERETON:   On the section 138(2) issue, in my submission, absolutely.  That question is currently the subject of a reserved decision in the Common Law Division of the Supreme Court in a case called Carson v The Legal Services Commissioner, in which that very point, amongst others, has been argued, and on which the court remains reserved.

CALLINAN J:   And before whom is that reserved?

MR BRERETON:   Before Justice Simpson.

The next relevant section is section 140 which simply authorises the Commissioner to require further particulars.  Section 141 provides for summary dismissal of vexatious complaints or of complaints in respect of which further particulars are not given by the Commissioner.

We can then pass to Division 5 at page 131 which deals with the investigation of complaints.  Section 148(1) provides that “A Council must” ‑ in mandatory term:

conduct an investigation into each complaint referred to it by the Commissioner or initiated by the Council.

Now, that follows from 147A which authorises the Commissioner to refer a complaint made to him to “a Council for investigation”.  So, if such a complaint is referred, the Council must investigate it and if such a complaint is initiated by the Council the Council must investigate it.  What is critical about that subsection is that it speaks of a “complaint referred”, in other words past tense, a complaint which has been “referred to it” or a complaint “initiated”, a complaint which has been “initiated by the Council”.

Section 149 provides for the monitoring by the Commissioner of the conduct of an investigation.  Subsection (1) refers to:

investigations by a Council into complaints -

without distinction between referred complaints and initiated complaints.  Section 150, in providing for directions by the Commissioner, does not distinguish in subsection (1) between referred complaints and initiated complaints.

KIRBY J:   Do not some of these provisions add force to the suggestion, and apparently found favour with Justice Sheller, that where the complaint is initiated by a body with statutory functions it has a different quality than that deriving from the responsibility that might be imputed to such a body as against the variability of complaints made by any person who may be responsible or who may be simply vexatious.

MR BRERETON:   To the contrary, your Honour. What these sections show is that the legislature did not draw the slightest distinction at all between complaints referred to it by the Commissioner or complaints initiated. Remember that “complaint” in each of those sections means a complaint made under Part 10, and if these sections are to do any work at all in connection with an initiated complaint, then the concept of complaint made under Part 10 in the definition must include a Council initiated complaint.

The strongest illustration of that is, for example, section 152. Section 152 provides that when investigating a complaint, that is a complaint made under Part 10, the Council or the Commissioner has various powers. It cannot have been intended that the Council have those powers only in respect of a referred complaint but not in respect of a complaint which it, itself, initiates. 152 is a strong indicator that the legislature did not distinguish between referred complaints and initiated complaints.

Likewise, section 154, although it does not use the word “complaint”, provides that an investigation must be of either type of complaint, be conducted as expeditiously as possible, but the crucial section is section 155.  Subsection (1) provides that:

After a Council…..has completed an investigation…..the complaint is to be dealt with in –

one of the various ways.  Subsection (2) provides that:

The Council…..must institute proceedings in the Tribunal with respect to the complaint…..if satisfied that there is a reasonable likelihood……guilt by the Tribunal of…..professional misconduct.

Subsection 3 provides that if “satisfied, that there is a reasonable likelihood” only “of unsatisfactory professional conduct” it may, with the practitioner’s consent, impose a reprimand, or “(b) dismiss the complaint if satisfied that” he or she “is generally competent and diligent” and has a good record, et cetera.

Subsection 4 provides that the complaint is to be dismissed:

if satisfied that there is no reasonable likelihood –

of guilt of either type of disciplinary offence.

Section 155 necessarily operates in respect of initiated complaints as well as referred complaints.  If that were not so, there is simply no mechanism in the Act whatsoever for dealing with initiated complaints.

Section 156 emphasises the importance of the section 155 decision by requiring that the Council keep “a record of its decision” and “the reasons for the decision” so that the 155 decision must be a reasoned decision.

Skipping over to 171J, that requires

the decision…..the reasons for the decision, to be notified in writing to the complainant and to the legal practitioner –

So that the section 155 decision is one in respect of which reasons must be given, and that was very important in Murray’s Case to the argument that there was a duty to afford procedural fairness in connection with the section 155 decision because, as your Honours will recall, this Court in Kioa v West, in effect, reached a different conclusion to that which had earlier been reached in Salemi v MacKellar because in Kioa v West there was a duty to give reasons in respect of the same decision that was previously not attended by such a duty. 

Division 6 at page 136 deals with the review of Council’s decisions.  It provides only for the complainant to have a right to review Council’s decision.  In other words, if the Council dismisses the complaint or merely imposes a reprimand, the complainant can apply to the Legal Services Commissioner for a review. 

Division 7 at page 138 constitutes the Legal Services Commission.  Division 8 at page 141 deals with proceedings in the Tribunal.  Section 167(1) provides for the institution of proceedings:

in the Tribunal with respect to a complaint…..by an information laid by the appropriate Council…..in accordance with this Part.

Now, the link between Division 8 and Division 5 is section 155 which speaks of the resolution or the determination to “institute proceedings in the Tribunal with respect to the complaint” in 155(2).

GLEESON CJ:   Although the definition of complaint refers to a complaint made, the consequence of section 138(2) and of the scheme of the following provisions must be, must it not, that it means complaint made and accepted, if the Commission does not accept a complaint, for example, because it fails to comply with section 137, presumably none of these further provisions operate on the complaint or in respect of it?  What would happen in relation to a complaint if the Commissioner’s response to the complaint was to say, “I do not accept it”?

MR BRERETON:   The Act contains no authorisation upon the Commissioner not to accept a complaint except, arguably, section 138(2) which uses acceptance, in my submission, in a curious sense.

GLEESON CJ:   I am interested in that concept of acceptance and in the significance of acceptance or non-acceptance.  To empower somebody to accept a complaint in certain circumstances implies that there may be a refusal to accept and I am just wonder what happens, according to the scheme of this legislation, if a complaint is made and not accepted?

MR BRERETON:   If a complaint were validly made, that is, by an authorised person under 134, 135 and 136 in the form required by 137 and within the time required by 138, then the Commissioner would not have a discretion to reject the complaint and if he purported to do so would be liable to mandamus.

GLEESON CJ:   Now, let it be supposed a complaint is made out of time and the Commissioner in his discretion declines to accept it.  What then happens to the complaint?

MR BRERETON:   Because it has not been accepted there is no valid complaint because it has not been made within three years, so, there is no complaint.

GLEESON CJ:   Well, there is nothing for the subsequent provisions to bite on.

MR BRERETON:   Yes, your Honour.

GLEESON CJ:   Which tends to suggest that a complaint means a complaint made and accepted.

CALLINAN J:   Does 141(b) have anything to do with that?  Would a complaint made out of time be a misconceived complaint?

MR BRERETON:   It is a concept which had not occurred to me, your Honour, but it might.

CALLINAN J:   Dismissing something is probably different from not accepting it.

MR BRERETON:   From not accepting it.  The concept of 141 is that of summary dismissal which is well known under such provisions as the Rules of the Supreme Court of New South Wales Part 13, Rule 5, from recollection, where terms like “vexatious”, “frivolous” or “oppressive” often appear.

CALLINAN J:   But not “misconceived”.

MR BRERETON:   “Misconceived” is different.

GLEESON CJ:   What is there in the legislation, if anything, that actually says that if a complaint made by a member of the public out of time is not accepted?  That is the end of it?

MR BRERETON:   Nothing expressly says so, your Honour, but a complaint made other than within the three years under 138(1) would not be a complaint duly made under 134(2) which speaks of:

any complaint that is duly made is to be dealt with in accordance with this Part.

GLEESON CJ:   Well, what about a complaint made out of time but accepted?

MR BRERETON:   Once it is accepted out of time – I do propose to come back to this – but, the concept of acceptance is one that does give rise to difficulties.  In my submission, what it means in the context of this legislation is, in effect, authorise a complaint to proceed, notwithstanding that it is made out of time.

I think I was at section 167. The important aspects of 167(1) are the concepts that the proceedings are to be “with respect to a complaint”, and that the information is to be laid “in accordance with this Part”, namely Part 10. The Tribunal is then required:

to conduct a hearing into each allegation particularised in the information. 

So that while the information is with respect to the original complaint, it will contain particularised allegations.

Section 167A, which is the last of the sections on which the appeal turns, authorises the Tribunal on application to vary an information so as to omit allegations or include additional allegations if satisfied that it is reasonable to do so, and having regard to questions of fairness.  That, in my submission, relates back to subsection (2) which was amended at the same time as 167A was introduced.  It authorises the particulars to be varied but, as will ultimately be seen, it does not authorise a proceeding in the Tribunal which is otherwise than in respect to a complaint.

KIRBY J:   That has an awkward consequence, does it not, that if in the course of proceeding after a complaint has been made, or initiated, some further particular wrongdoing arises - and this is not uncommon - or if, in the course of the hearing, some particular wrongdoing additional to that in the original complaint is uncovered, that you cannot bring it into the proceedings before the Tribunal.

MR BRERETON:   It may well have that consequence, depending upon whether conduct in the investigation and the hearing can be categorised as being with respect to a complaint.  It is quite clear, I accept, on the face of the second reading speech, that the purpose of 167A was principally to address the issues referred to by this Court in Smith v The Bar Association, and to provide that where allegations were made against a legal practitioner of telling fibs in evidence before the Tribunal, they could be added.  The second reading speech makes quite clear that that is what 167A was intended to achieve.

In my submission, that can still be categorised as being with respect to a complaint, and again I will come back to this.  But if it cannot, then the language of 167 and subsequent sections to which I will come is intractable.

KIRBY J:   What would be the policy behind prohibiting that and requiring de novo proceedings to be commenced with all the inconvenience and expense?

MR BRERETON:   Your Honour, I cannot advance on that, if we are talking about evidence given in the hearing, a policy argument because it is quite clear that the parliamentary policy was to include that.  If Parliament has miscued and failed to achieve that end, so be it.  In my submission, the legislation is intractable, and I will come to some other sections which make that clear so far as that is concerned.

KIRBY J:   You might be right about the meaning and the intractable nature of the language, but if there is ambiguity one would construe it in order to permit flexibility, which is the obvious purpose of adding 167A to such a recent statute, and providing a large discretion which, by inference, would be conducted, this Tribunal being headed by a judge, by ordinary procedures of fairness.

MR BRERETON:   Your Honour, perhaps I can answer what the policy would be.  In this Court, particularly in the judgment of Justice Deane in Smith v Bar Association, reference was made, as I recall it, to the difficulties which could be caused for a person, the subject of disciplinary proceedings, who, in effect, in the same proceedings, was called on, both to defend the original conduct and to defend allegations that the evidence he was giving about that conduct was false, as a matter of additional substantive complaint against him.  It has become relatively commonplace for that course to be followed for a legal practitioner or, for that matter, a medical practitioner to be charged with disciplinary offences and then in the course of the proceedings, for allegations, if not to be added, at least to be suggested, that - and his fame and character is even further called into question by his false evidence before us.

That really does create a context of unfairness in the litigation because it is as if half of the issue has already been decided against the practitioner when that additional allegation is made, and there is every reason why it should be dealt with separately, and not in the same proceedings.  That is the policy which might well underlie such a division.

KIRBY J:   That would have more force, except for the very ancient principle that legal practitioners are officers of the court, and that when the court is involved in investigating them, they have an additional duty to be very candid to the court.  That is a very old principle and that, that has been inherited by this Tribunal.

MR BRERETON:   There is no doubt that that has been a basis upon which tribunals have acted for many years and that was recognised in Smith’s Case.  If it were suggested in a criminal trial that an allegation of perjury in respect of the evidence in the criminal trial should be joined with the indictment for murder and tried in the same trial, everyone would immediately throw up their hands in horror at any such submissions.  In my submission the same considerations of fairness warrant a division of those concepts and disciplinary proceedings as they do in criminal proceedings, notwithstanding the tradition which goes the other way.

GLEESON CJ:   It goes a bit beyond the actual evidence that you give in the course of a hearing.  It often happens that the way in which a legal practitioner responds to a complaint that is made becomes a ground for further allegations of impropriety.

MR BRERETON:   And that is exactly what has happened in one respect in this case.

GLEESON CJ:   Yes.

KIRBY J:   I thought you indicated earlier, please correct me if I misunderstood you, that you would be willing to concede that that would be in respect of the original complaint and, therefore, the reason for bifurcation does not arise even on your own argument.

MR BRERETON:   I started from the proposition that whatever I advance as to the policy reasons for that view, I have to accept, is inconsistent with the second reading speech.  I do not seek to depart from that.  In the context of what was the obvious intention of Parliament, I have indicated that such an allegation could be regarded as one with respect to the complaint and that would permit accommodation of the parliamentary intention with the construction for which I otherwise urge but I suppose I should put my primary position as being there remains a very sound policy reason for keeping the two divorced but, if the Court is against me on that, then the conduct in respect of the defence of the complaint can still be brought within the meaning of an information with respect to a complaint.

May I then just briefly touch on a few other sections which are relevant, particularly to the argument that the information, even after amendment, must remain one in respect of a complaint.  Section 171C at page 145 clearly contemplates that the hearing will relate to the original complaint:

If, after it has completed a hearing relating to a complaint against a legal practitioner, the Tribunal –

may do various things.  Section 171D, page 147, provides for compensation orders after the Tribunal:

has completed a hearing relating to a complaint –

so the hearing must clearly be one relating to a complaint, not something else.  Section 171E(2) provides, again:

completed a hearing relating to a complaint –

and section 171F authorises an appeal, up until very recently, to the Supreme Court, now to the appeal panel of the Administrative Decisions Tribunal, I think:

against the Tribunal’s determination of a complaint –

So, what the Tribunal ultimately determines is the original complaint.  Throughout the sections dealing with what the Tribunal does it is clear that it is still dealing with the original complaint that was made under sections 134, 135 or 136.

Finally, can I go back to section 171J to which I referred for another purpose earlier, but draw notice this time to subsection (3) which provides that in connection with the requirement to give notice of the decision and reasons:

A notice to a complainant is not required under this section if the complaint was made by the Commissioner or a Council.

Now, 135 and 136 are the sections which authorise such complaints.  Both of them use the word “initiated” rather than “made” but here, in respect of that very type of complaint, the legislature uses the word “made” and that, coupled with the definition of “complaint” is a powerful indication that it was not drawing any distinction at all between the words “initiate” and “made” elsewhere in the Act.  That is the cook’s tour of the legislation.

KIRBY J:   I suppose the other construction then that must be that when you are dealing with the actual procedures within the Tribunal you have the distinction but when you are dealing just with something ancillary and notification that the word “made”, a generic word, has been used?  I am not saying that you do not have force in the argument that you have just put to us because it does seem to be a word that is embracing both verbs but that would have to be the explanation if the contrary submission is correct.

MR BRERETON:   Section 171J does not deal with procedures in the Tribunal, it deals with the Council’s determination after the investigation of a complaint before procedures in the Tribunal which is exactly the same context as section 138 dealing with the making or initiation, or dealing with the making of complaints in stage 1 as opposed to stage 2.  So, with respect, if anything, it is more closely related to the complaint stage than the information stage.

GLEESON CJ:   Are the headings in this print part of the Act?

MR BRERETON:   Your Honour, the answer to that is, they are not part of the Act but that they may be taken into account.  In the bundles which I have handed to your Honours, your Honours will find a copy of extracts from the Interpretation Act 1987 of the State of New South Wales. The relevant sections of that Act are section 35, which is reproduced on about the fifth-last page and section 35. Section 34 deals with the use of extrinsic material. Subsection (1) deals with the circumstances and purposes for which consideration may be given to extrinsic material. Subsection (2) provides that:

Without limiting the effect of subsection (1), the material that may be considered in the interpretation of a provision of an Act…..includes:
(a) all matters not forming part of the Act that are set out in the document containing the text of the Act as printed by the Government Printer –

That obviously includes the section headings, and while I am on that section and because I will be referring to it later, paragraph (b) refers to:

any relevant report of a Royal Commission, Law Reform Commission –

and, paragraph (f), to, in effect, the second reading speech.  If one then goes to section 35(1) provides:

Headings…..Parts, Divisions of Subdivisions…..be taken to be part of the Act –

But, otherwise, subsection (2) provides that headings to provisions, “shall be taken not to be part of the Act”.  So, a section heading is not part of the Act.  But, subsection (5) provides that section 35:

does not limit the application of section 34 in relation to the use of any heading, marginal note, footnote or endnote in the interpretation of the provision to which…..relates.

So, the position is, it is not part of the Act, but ‑ ‑ ‑

GLEESON CJ:   Well, it is extrinsic material.

MR BRERETON:   But it can still be taken into account as relevant extrinsic material.

GLEESON CJ:   Which is the particular part of 34 again?

MR BRERETON: Section 34(2)(a), your Honour.

KIRBY J:   I have a feeling that this was considered or discussed in some recent cases or a recent case in the court, the use of headings, and in the context of New South Wales, and followed exactly what you have just put to the Court that it is not part of the Act because of 35 but it is extrinsic to be taken into account because of 34.

MR BRERETON:   In my submission, on the face of the statute there could hardly be any doubt about that.

GLEESON CJ:   You seem to get at least a puff of a breeze in your sails from the heading to section 137.

MR BRERETON:   Your Honour, in my submission, I get a southerly buster from the combined effect of section 135, section 136, section 137 and 138, and successive references to complaints made in the title or in the heading to each of those sections.

KIRBY J:   “Southerly buster” might overstate it a bit, but it gives a bit of help, but in the end the words of the Act are “initiate”.

MR BRERETON:   Having completed that review of the legislation, may I turn to the first of the issues which I propose to address this morning, although it was dealt with secondly in the written submissions in the Court of Appeal, and that is the question of the investigation.

The issue is whether the investigation required by section 148 must be commenced and completed after and not before the complaint is made.  The Court of Appeal held otherwise ‑ ‑ ‑

GAUDRON J:   Before the information is led.

MR BRERETON:   Must be commenced and completed after the complaint is made, is what I am seeking to put, your Honour; rather than before the complaint is made.  I will explain the significance of that in a moment. 

The Court of Appeal held that it need not, and the Court of Appeal held that one could have a section 148 investigation before there was any complaint in existence.  We submit that that must be wrong, and to see how the Court of Appeal came to that apparently surprising conclusion may I take the Court to the reasoning of the Court of Appeal in volume 2 at page 458.

KIRBY J:   Is this reported yet, this decision?

MR BRERETON:   No, your Honour.

KIRBY J:   It imputes a rather passive function to the body, does it not?  I suppose you say that is just the scheme of the Act.  That it has to wait till somebody comes along and makes a complaint.

MR BRERETON:   It does not have to wait, your Honour.  There is no reason why the Law Society cannot think about things; cogitate things, and cannot, apart from invoking the formal processes of the Act, seek out information.  What it cannot do is to conduct the mandatory investigation in respect of which, on the authority of Murray’s Case, natural justice must be afforded, until there is a complaint before it, because just as it is a statement of claim, or an initiating process that invokes the jurisdiction of a court, so it is the making of a complaint that invokes and triggers the Law Society’s powers under Part 10.

GLEESON CJ:   But we are here talking about an investigation by the Commissioner, are we not?

MR BRERETON:   Either, your Honour.  The Commissioner or a Council.  Section 147A authorises the Commissioner to refer complaints to a Council.  Section 148 deals with investigations by the Council, including of complaints initiated by it.

GLEESON CJ:   What I had in mind was that the Law Society, as we know, conducts its own inquiries - to use a neutral word – often random inquiries, and many complaints against solicitors result from what is found upon the conduct of a random inquiry, as occurred in the present case, as I understand it.

MR BRERETON:   Yes.

GLEESON CJ:   Does the Commissioner conduct similar inquiries without the existence of a complaint?

MR BRERETON:   Not so far as I am aware, your Honour.  I think I heard Mr Lindsay saying “No” as well.  There is certainly no evidence to suggest he does.

GLEESON CJ:   So the type of statutory investigation that we are here concerned with is something that may result from, but is in some respects different from, the sort of inquiry that the Law Society conducts from time to time?

MR BRERETON:   Precisely, your Honour.

KIRBY J:   But is that not a bit of a problem?  Your theory of the Act could have the subtext “Law Society enchained” because they can have a random inquiry and they find something really alarming, then everybody has to ring up the red flags and stay, “Steady on, go no further, take no step, you have to proceed with a formal complaint”, and yet they may still be in the process of uncovering a lot of matters but which, on your earlier theory, cannot then be brought into the proceedings.

MR BRERETON:   There is no difficulty with bringing them into the proceedings as long as the formal process of investigation required by section 148 is carried out after the complaint is initiated.  What would happen is this:  an inquiry, to use your Honour the Chief Justice’s term, throws up something of concern.  The Law Society resolves under section 135 to initiate a complaint.  It then conducts a formal investigation contemplated or required by section 148, and as a result of that formal investigation may or may not decide to institute proceedings in the Tribunal.  The key to the time provisions is when the complaint is initiated but the fact that the inquiry threw up the concerns before the complaint was initiated is neither here nor there, so long as it was investigated after the complaint was initiated.

So far as the Court of Appeal was concerned - perhaps it is best to go back to the legislation before I go to the Court of Appeal.  The relevant sections are, first of all, section 148 which, as I drew attention to earlier, provides by subsection (1) that:

A Council must, subject to this section, conduct an investigation into each complaint referred to it by the Commissioner or initiated by the Council.

Then section 155(1) provides that:

After a Council or the Commissioner has completed an investigation into a complaint…..the complaint is to be dealt with in accordance with this section.

Sections 149, 150, 151 and 152 confer various powers on the Commissioner and the Council in connection with the investigation of a complaint.  It cannot seriously be suggested, with respect, that any of those powers can arise until there is a complaint; until a complaint has either been made or initiated, if there is a distinction.  If there is not a complaint in existence, there is nothing for those sections to operate on.

Section 148 itself bespeaks a complaint referred or initiated in the past sense.  It speaks of an investigation into a complaint.  The Court of Appeal has, in effect, held that you can have an investigation into something that does not yet exist and, in my submission, it is not putting it too highly to suggest that the concept of an investigation into something that does not yet exist is nonsensical.

The way that the Court of Appeal reached that is at volume 2 page 458.  Mr Justice Sheller, who spoke for the court, said at line 22 that his Honour did:

not read the sections as requiring that the investigation be begun after the complaint has been initiated.  This would involve a degree of inflexibility which was not intended.

At line 34:

Even if this were a mere formality, it would be a triumph of form over substance.  I think the legal practitioner is entitled to have an investigation and have it completed before proceedings are instituted in the Tribunal, but that investigation can be begun and can be completed before any complaint is initiated.

With respect, how can a complaint be investigated?  How can an investigation into a complaint be completed before the complaint has even been formulated in the sense of being initiated?

GLEESON CJ:   There may be an ambiguity in this concept of investigation which I endeavoured to avoid by using that word “inquiry” but, in practice – let me ask you this question, these legislative provisions that we are looking at now do not constitute the only source of the capacity of the Law Society or the Bar Council to conduct an inquiry into the affairs or activities of a solicitor or barrister, do they?

MR BRERETON:   Quite so, your Honour.  For example, there is separate authority for trust account inspections.

GLEESON CJ:   And the Commissioner is not necessarily involved and does not necessarily know about every examination of the affairs or activities of a legal practitioner that may be undertaken by the Law Society or the Bar Council, does he?

MR BRERETON:   That is so, your Honour.  He only gets to know if a complaint is initiated when he must be told.

GLEESON CJ:   And it may even sometimes happen that the barrister or solicitor under investigation is innocent, so that an inquiry undertaken by the Law Society or by the Bar Council may yield nothing, nothing but demonstration that a rumour is unfounded, for example.

MR BRERETON:   Quite so, in which case no complaint might ever be initiated.

GLEESON CJ:   Yes.  Now, where do you draw the line as a matter of fact during the course of an inquiry which enables you to say up until this point we have had something that is not an investigation and after this point what is going on by way of examination or questioning or calling for documents or seeking explanations becomes an investigation?

MR BRERETON:   The critical point, your Honour, and the critical distinction is whether there is in existence a complaint or not. Once there is in existence a complaint, then there is an investigation under Part 10. Before a complaint has been made or initiated, then what is going on are inquiries of some guise or some type or another, but not a Part 10 investigation. That is clear, for example, from the very definition of “investigation” in Part 10 in section 126 and investigation under this Part into a complaint under the terms of section 148.

GLEESON CJ:   So until the complaint is made against you, you are assisting the Law Society with its inquiries, and after a complaint is made you are being investigated?

MR BRERETON:   Yes, your Honour, yes.

KIRBY J:   That is a distinction that has caused generations of lawyers and judges an awful lot of trouble in the criminal investigation field, and has led to tedious and lengthy cross‑examination as to whether that point of the Rubicon had been crossed.  Is that not what you are trying to stamp on this Act, and that is why I said your theory of the Act is Law Society in chains?

MR BRERETON:   With respect not, your Honour.  Your Honour has in the joint judgment in Walsh’s Case emphasised the specificity and particularity of this legislation. If that amounts to enchaining the Law Society, I supposes so be it, but in my submission there is no enchainment of the Law Society involved. It can conduct such informal inquiries as it pleases. If it wants to exercise the special powers conferred on it by Part 10, it must initiate a complaint, and having initiated a complaint it must then conduct the investigation mandated by section 148. I do not seek in the slightest to argue that the Law Society is precluded from doing things before it initiates a complaint. All I can ‑ ‑ ‑

McHUGH J:   You say that this legislation, in effect, is no different from the provisions which apply with stewards in racing inquiries and trotting inquiries.  They are inquiring into matters and then the moment they lay the charge, rules of natural justice prevail, it is a very different matter altogether.

MR BRERETON:   Yes, your Honour, and another analogy which was used in Murray’s Case is with committal proceedings.  This two‑stage procedure has many similarities to committal proceedings.  The section 155 decision is very similar to a committing magistrate’s decision whether or not to commit and, in fact, it uses words that are almost identical to the words in section 41 of the Justices Act. Until proceedings are instituted by a complaint, then the Law Society is at large but it just does not have the compulsory powers conferred by Part 10. What it must do, however, before resolving under section 155 to institute proceedings in the Tribunal, is to conduct a Part 10 investigation.

GAUDRON J:   That, on your submission, I take it, means asking the legal practitioner what he or she has to say about it?

MR BRERETON:   Yes, and the Court of Appeal has so held in Murray’s Case.

CALLINAN J:   Mr Brereton, can I ask you another question.  At page 450 Justice Sheller discusses the omission of what was initially proposed to be subsection (2) of section 138 which would, if it had remained in, completely defeat your argument.  Did you make any submission to the effect that the Court of Appeal erred in not having regard to the omission of that explicit provision?

MR BRERETON:   We do, your Honour.  I propose to come that in some detail with the legislative history.  Would your Honour mind if I put that to one side at the moment and when I come to section 138 I will deal directly with that point.

CALLINAN J:   No, you can come to that, I am sorry. 

GLEESON CJ:   Mr Brereton, just before you develop your argument further, I am having some difficulty relating the submissions to the facts of the present case.  I understand, I believe, the factual significance of the argument about the time limitation but, to put it bluntly, what does all this matter in relation to this case?

MR BRERETON:   In this way, your Honour.  Before 8 June 1995 the Law Society was undoubtedly conducting inquiries and even purporting to pass resolutions referable to section 155.  However, it was doing all of that in the absence of having before it a complaint which had been initiated.  On 8 June 1995 the Law Society resolved to initiate a complaint against Mr Barwick.  On the evidence, within 60 seconds after adopting that resolution, it resolved under section 155 to institute proceedings in the Tribunal.  We say that as a matter of fact, given that time‑frame, no section 148 investigation could possibly have been conducted when those resolutions were, in effect, just put successively, without anything happening in the meantime.

GAUDRON J:   In this context, of course, Mr Brereton, you are speaking simply about the procedural steps related to what happened.  You are not talking about the Law Society’s powers to put in a receiver or otherwise take immediate action if that is required, or take ‑ ‑ ‑

MR BRERETON:   No, your Honour.  They are quite separate powers which are not affected.

GLEESON CJ:   Well, now, let us just ‑ ‑ ‑

MR BRERETON:   Can I just finish answering that question, your Honour.  We then come to what is described as the second complaint which was new matters added later on.  In that case the case is even stronger.  The resolution to initiate the complaint and the resolution to institute proceedings referable to section 155 were in fact two parts of the same contemporaneous resolution, so that there could not have been any time between them at all.  The two things were done together.

GLEESON CJ:   A complicating factor is that we are not concerned here with dealings between the police and people who are entitled to refuse to give information.  We are concerned here with dealings between a professional body and the member of the professional body who has a relatively limited capacity to refuse to provide information.  It may be that in many cases, and perhaps this is one of them, what have been called the inquiries that have preceded the complaint are backed up by practical powers of compulsion that produce the consequence that by the time you reach the end of those inquiries the Law Society considers that it knows everything there is to be known about the facts relevant to whether it should institute a complaint. 

The question then is:  why does there have to be an investigation if as a result of earlier inquiries the Law Society is satisfied that it needs to know nothing more?  I can understand why fairness to a solicitor might in a particular case produce the result that the solicitor can complain if no further investigation is conducted, but I think we have been told that that is not this case.

MR BRERETON:   May I say, first of all that, with respect, that is or at least what I have contemplated to be the highest and best way that the case against me can be put, that the Law Society is apprised of all the information already.  Why need a further investigation?  There are two answers to that.  One is trite but forceful and the other is better based in policy reasons.  The trite answer is because Parliament says so.  Section 148 simply mandates that it must be done.

McHUGH J:   There is to be added to that 135(2), is it not, because it requires a copy of the complaint to be forwarded immediately to the Commissioner and the Commissioner has powers, under 148, to monitor the investigation so it is very difficult to escape the conclusion that the Act requires some sort of a gap between the lodging of a complaint and any action ultimately taken on it.  The complaint has to be forwarded to the Commissioner.  It has to be investigated.  The Commissioner can monitor, give instructions about it.

MR BRERETON:   I respectfully adopt that.  May I add the other, as it were, policy based reason is this.  Section 155 requires, relevantly, the Law Society Council to reach a state of satisfaction before instituting proceedings or dismissing or reprimanding.  What that involves is a process of testing the material or the evidence assembled as a result of the investigation against the complaint as framed.  Now, in its inquiries up until that point, up until the point that a complaint has been initiated, there is not a precise framed complaint against which the material can be tested.  To reach the state of satisfaction referred to in section 155, what must be involved is a process of evaluating what the investigation has produced against the terms of a complaint to decide whether the relevant state of satisfaction is reached and that is why something more after the complaint is initiated is, as a matter of policy, required.

GLEESON CJ:   Let me give you a practical example which is, I think, far from fanciful.  Suppose that an auditor from the Law Society arrives on the doorstep of a solicitor without any previous notice, asks to be shown the trust account and sees some entries in the trust account that apparently indicate defalcation.  The auditor says to the solicitor, “What is this all about?”  The solicitor says, “I confess.  I have no excuse or justification for what has happened.  I have taken the money from my client and put it on a racehorse.”, and the auditor then goes and tells the Law Society that.  Do you say that the Law Society then has to proceed in stages, first of all, formulating a complaint and then allowing some pause and, if so, for how long, for investigation and then after some time instituting proceedings in the Tribunal?

GAUDRON J:   Can I add to that, though.  The answer to that may depend on the correctness of the decision in Murray, may it not, that lateral justice or procedural fairness is required at that stage?

MR BRERETON:   May I answer those questions in the reverse in this way.  Murray’s Case may certainly influence it.  But even if Murray were not correct, the policy reason which I advanced a few moments ago as to why an opportunity was required in order to enable the terms of the complaint to be measured against the evidence still stands.

If I can then turn to your Honour the Chief Justice’s question.  The answer, in short, is “Yes”.  First of all, the Law Society would have to formulate and resolve to initiate the complaint.  That would involve it, for example, complaining that solicitor X was guilty of professional misconduct in that he or she had, on the following dates, failed to account for certain trust moneys.  There would then be an initiated complaint.  Having initiated that complaint then, if Murray’s Case be correct, the Law Society would have to communicate its terms to the solicitor and afford him or her an opportunity to respond to it.

GLEESON CJ:   And if the solicitor has caught an aeroplane in the meantime, how does the complaint proceed?

MR BRERETON:   The Law Society, I believe, has a record of addresses for solicitors and I do not think there is anything to suggest that personal service of this would be required.  If your Honour’s concern is about protection of the public in the interim, then that is something to which I can come back to in a moment.  But the complaint must be communicated to the solicitor and if the solicitor has gone overseas, with respect, that is no different as to if he goes overseas after an information is filed in the Tribunal, or if an accused person goes overseas after a summons is served on him or her.

CALLINAN J:   Mr Brereton, there are two sides to the coin, however.  If you look at section 149, it may not simply be for the protection of the solicitor being investigated.  It may be to ensure that the Law Society is not going lightly against somebody, and that is a complaint that has been made about regulatory bodies, particularly self-governing regulatory bodies.

MR BRERETON:   That, with respect, your Honour, is entirely correct, and it is quite clear in the Law Reform Commission Report and the second reading speech that part of the purpose of sections like section 149 was to give the Commission a power to make sure that the Law Society followed all leads and took a more aggressive and diligent role in investigations.

CALLINAN J:   And in the case of the Chief Justice’s example, and serious cases of that kind, almost always a criminal offence is involved and there would be an immediate report, one would hope, to the police authorities.  There would be separate remedies available; criminal sanctions immediately available, one would hope.

MR BRERETON:   Indeed, your Honour.  If I may return for a moment to the Chief Justice’s question.  Having formulated the complaint, for example, in the terms I have suggested, then if Murray’s Case be correct, notice of that must be given to the solicitor.  Even if Murray’s Case not be correct, then the Law Society must consider the terms of that complaint, the material available to it; any further material which it wishes to assemble; notify the Legal Services Commissioner that it has initiated the complaint; and then, once it has done those things, it may proceed to make a decision under section 155.  That does not prevent it in the meantime from exercising the powers conferred on it elsewhere in the Act to appoint a receiver of the solicitor’s practice, or of its trust account, or a manager, or to approach the Supreme Court for that type of relief which is separately conferred by the Act.

GLEESON CJ:   You said that section 167(1), where it refers to a complaint, or proceedings “with respect to a complaint” means proceedings with respect to a complaint duly made.

MR BRERETON:   Yes, your Honour.

GLEESON CJ:   What is the justification for saying it refers to proceedings with respect to a complaint duly investigated?

MR BRERETON:   The answer to that is to be found at the end of section 167, and the words there, laid “in accordance with this Part”.  What that section therefore authorises is the institution of proceedings by an information laid in accordance with this Part.  The only authority in this Part for the laying of an information is section 155.  The power to lay an information, or to resolve to institute proceedings in the Tribunal under section 155 is contingent upon completion of an investigation under section 155(1).

The concept of an investigation after a complaint was made was important in the process which led to the formulation of the new Part 10, and was given great emphasis in the Law Reform Commission’s Report. In the bundle of materials your Honours will find behind tab 3, the green tab, extracts from the report of the Law Reform Commission. The relevant part for present purposes commence at page 159 paragraph 4.130.

KIRBY J:   Which paragraph?

MR BRERETON:   Paragraph 4.130, your Honour.  The Commission addressed complaints that investigation of complaints in the past had been perfunctory.  The absence of an inquisitorial procedure.  It referred to a file review of the Law Society and the Bar Association’s files.  At 4.134 it complained that the Law Society had been merely processing complaints rather than investigating them.

After such a desultory investigation, it is not surprising that most matters boil down to competing versions of the relevant conversations or events.

At 4.138, it said it:

Was rather more impressed with the investigations conducted by the Bar Association’s four Professional Conduct Committees.

But at 4.139:

Identified a number of problems with the Bar Association’s investigations.

And then at 4.140, it says:

In Recommendation 22, the Commission proposes that a positive obligation be placed upon the Councils to ensure a much more active, thorough, and “professional” form of investigation.  It is difficult to legislate for effort, imagination and persistence –

But what is clear is that the intention was that there be a much more active, thorough and professional form of investigation of a complaint – and that that is what sections 148 and 155, together, were intended, in part, to achieve.  So that the references to investigations of a complaint in those sections were not intended to be references to some mere process of 60 seconds, or none at all, but to a formal investigatory process.

GLEESON CJ:   In the example I gave you of the solicitor who threw his hands up when the auditor arrived, what would the investigation consist of?

MR BRERETON:   Notification of the solicitor and indication to him that should he wish to make submissions he should do so within a specified time.  It may well be that the confession would be enough evidence for the Law Society to say, “Well, we are satisfied”.  That may be all that it needs to do, to look at the evidence already gathered, give the solicitor an opportunity to address it, and make a decision, having of course notified the Legal Services Commissioner in the meantime.  But it may be that the Legal Services Commissioner would, in the meantime, give a direction that something else, or something additional, was to be investigated and at least an opportunity for that has to be allowed.

GLEESON CJ:   Your argument amounts to this, does it, that the scheme of the Act is to require an investigation stage which is monitored by the Commissioner which must follow a complaint and precede the laying of an information?  And even if, as a result of earlier inquiries, there is very little to be done during that stage, nevertheless, there must be a definite investigatory stage.

MR BRERETON:   Yes, your Honour, precisely.  The content of that stage may well vary from case to case.  What we say in respect of this case is that, as to the second complaint there was demonstrably none;  and as to the first, whatever the minimum content of an investigation, it could not have been by putting successive resolutions to the committee.

KIRBY J:   On the Chief Justice’s example, it imputes a certain artificiality to the Act because if the solicitor has said, “Fair cop, guv, you’ve caught me this time” or the more elegant sort of language that would be used in such an expression, if the investigator finds on a random investigation the defects that are immediately admitted, your postulate is that, notwithstanding that, there has to be this interposition; the curtain comes down, there has to be the formal process.  Now, that may well be what is required by the scheme of the Act when you compare the particular case that has been postulated to the ordinary case where it is not quite so simple and where there is a value, as seems to be recognised in the Law Reform Commission, the parliamentary speech and the Act of a more formal procedural fairness in the scheme.

MR BRERETON:   Your Honour, there is nothing, with respect, artificial about that division or, if there is, it is no more artificial than the system that we have lived with in criminal proceedings forever in New South Wales of a committal proceeding followed by a trial on indictment even if the defendant says to the police at a very early stage in a record of interview, “I’m guilty”.  Even then it has always been the practice to have a committal hearing before a magistrate followed by a trial on indictment.  Indeed, even if there is ultimately a plea of guilty that is the case, but there is nothing more artificial about this than there is about that.  It is a procedure and sequence well known to the law, particularly in the State from which this legislation emanates.

May I then turn from the first point – before I turn from it, I should just indicate what the consequences of that are.  Indeed, before I turn to that, as I understand the respondent’s written submissions, in the written submissions in‑chief the respondent is completely silent on the question of whether the investigation can be conducted and completed before a complaint is made.  In a recent document provided this morning a short comment is made in the document entitled “Outline Submissions (On Behalf of the Law Society)”.  At the foot of page 3:

Nothing in the Act compels a construction that requires an investigation to be commenced only after a complaint has been initiated…..would be impractical –

In my submission, the legislative provisions to which I have taken the Court do warrant such a construction.

The practical impact of this, and I have largely addressed this in response to your Honour the Chief Justice’s question, is that, while the Law Society was undoubtedly conducting inquiries before 8 June, it did not initiate a complaint until that day.  The resolutions initiating that complaint can be found in volume 1 pages 112 to 115, volume 1 page 173 line 23.  The letter to the Legal Services Commissioner which was the first time that he was notified of the initiation of the complaint is at volume 1 page 200 to page 205.  All of that happened on 8 June.

Mr Barton who gave evidence for the Law Society in the Court of Appeal said that the two resolutions to initiate the complaint and to institute proceedings were passed within a minute of each other, that they were put successively and that there may have been a question in between but nothing of substance happened between them.

KIRBY J:   So calling of evidence, that does not run into any problems about the nature of the appeal that was referred to in Walsh, does it?

MR BRERETON:   No, your Honour, no.  This was not an appeal from the Legal Services Tribunal.  This was an application for prerogative relief in the Court of Appeal.

KIRBY J:   Yes.

MR BRERETON:   In respect of the second complaint, the form of the resolutions at volume 1, pages 92 to 93, page 192, page 195, page 207 is the letter to the Legal Services Commissioner. All of them make quite clear that there was just the one resolution purporting to do two things. The consequence of that is that there never was such an investigation as contemplated by the Act and for the reasons which I gave in answer to your Honour the Chief Justice’s question, there having been no investigation, there could not be a valid section 155 decision. There having not been a valid section 155 decision, the proceedings were not instituted in the Tribunal in accordance with Part 10 as required by section 167.

GLEESON CJ:   If your argument is right, I believe I can understand the thinking of the Law Society.  They would have regarded everything that was going on up until June 1995 as an investigation. 

MR BRERETON:   Yes, your Honour.

GLEESON CJ:   I would have little doubt that is the way they would have been referring to it themselves.

MR BRERETON:   Yes, your Honour.

GLEESON CJ:   It may be, if you are right, what they need to do is think in terms of a statutory investigation to refer to the stage between complaint and information.

MR BRERETON:   Yes, your Honour, and that is what was overlooked in this case.

McHUGH J:   You did not take the Murray point, did you, in the Court of Appeal?

MR BRERETON:   No, we did not, your Honour.

McHUGH J:   That strengthens your case, of course.

MR BRERETON:   It does, your Honour.  May I turn, then, to the next error which is the section 138 point.  The Court of Appeal, as your Honours have been told, held that section 138 affected only section 134 and not 135 and 136.  The reasoning of the Court of Appeal on this issue is set out in volume 2, page 448, line 40 to page 454, line 25.  In essence there were three aspects to its reasoning.  First of all, at page 448, line 43 and following, Mr Justice Sheller focussed on the concept of acceptance in section 138(2) as suggesting that the section was intended to deal only with complaints made to the Commissioner, therefore, complaints under section 134 by any person and not complaints initiated by a Council or the Commissioner. 

Secondly – and this has always been the Law Society’s primary argument – a distinction is to be drawn, as your Honour Justice Kirby has suggested, between the use of the word “made” in sections 134 and 138 and “initiated” in 135 and 136.  That is at page 449, line 19 and following.  Finally, his Honour identified section 138 as “the first of five sections up to…..section 142, which, although not expressly limited to…..section 134” could only sensibly apply to such complaints.  That is at page 453, line 37 and following.

As to that last point, first, it is wrong, at least to this extent that section 142 is equally capable of application to an initiated complaint.  As to a made complaint section 142 provides for - I withdraw that.  That is not so.  But, in respect of Mr Justice Sheller’s last point, it is equally open to see section 138 as the last of five sections dealing with the making of complaints:  who can make complaints; how complaints are made and when complaints are to be made, regardless of by whom they are made.  With respect, nothing much can turn on his Honour’s last proposition.  In my submission, for the purposes of section 138, there was no legislative intention to distinguish between complaints made and complaints initiated.

The reasons for that are as follows:  first, the concept of a complaint made is used in the Act in contexts which must include initiated complaints, for example, the definition in section 126, to which I have already taken your Honours, and section 171J(3), which is a specific instance of that.  Further, section 152 and section 155 must be intended to deal with initiated complaints as well as referred complaints.  Next, as has already been adverted to, the concept of a complaint made, including one made by a Council is fortified by the repeated use of the concept of complaint made in the section headings from 134 through to 138, and I have already referred to the Interpretation Act provisions which authorise that to be taken into account.

Fourthly is the legislative background.  The relevant section had its origin in the Law Reform Commission Report.  There are two significant passages in that that report, once again behind the third tab in the bundle.  The first is paragraph 3.57 at page 81 and in saying that:

The advancement of the rights of complaints does not mean that the rights of respondent lawyers necessarily need be watered down –

the Commission said in the fourth last line:

For example, the Commission proposes that there be a limitation period on complaints (of six years, with discretion in the Legal Services Tribunal to consider claims out of time) –

That does not suggest any distinction between complaints by any person and complaints, for example, by the Council.  That becomes even clearer in a further extract from the report which is in a loose couple of pages that accompany the bundle entitled - the first heading on it is “The position of complainants”.  Recommendation 12 was that:

The lodgment of complaints should be subject to a limitation period of six years from the time of the conduct…..It should be open to a complainant to seek leave from the Legal Services Tribunal to pursue a complainant outside the time limit, where the matter involves a question of professional misconduct.

That was addressed a little later on at page 139 in paragraph 4.70 where it was said that:

the legislation should specify a limitation period of six years…..To provide a measure of flexibility, a complainant or a professional association should be able to seek leave from the Legal Services Tribunal to pursue a claim outside the time period –

So it was envisaged there that the professional association, such as the Law Society, would have to seek leave, just as a lay complainant would have to seek leave, to proceed outside the contemplated time period then of six years.  The Law Reform Commission Report was followed by the publication of an exposure draft of the proposed legislation.  This is misdescribed, with respect, by Mr Justice Sheller, as the original Bill in the Court of Appeal’s judgment, volume 2, page 250, but, what his Honour there refers to, in the passage to which your Honour Justice Callinan drew attention a little while ago, was not the original Bill, but an exposure draft.

KIRBY J:   Was it tabled in the State Parliament?  Was it introduced into Parliament?

MR BRERETON:   So far as I am aware, it was not introduced; what was introduced was the Legal Profession Reform Bill No 1, which I will bring your Honours to shortly.

KIRBY J:   Because if it was introduced, it would be appropriate to call it the original Bill, but if it was not, it would not be.

MR BRERETON:   In any event, this exposure draft contained an express provision which, while being a limitation period of six years, would have excluded the application of that limitation period to complaints made by the Commissioner or a Council.

CALLINAN J:   Mr Brereton, can I just clear up something.  On page 450 Justice Sheller deals with the provision that was not enacted.

MR BRERETON:   Yes, your Honour.

CALLINAN J:   What was the source of his Honour’s information about that, if it was not introduced into the House?  Or was it?  Have I misheard that?

MR BRERETON:   As I understand it, an exposure draft was prepared by the Attorney-General’s Department and circulated for comment by the public and by the Bar Association and by the Law Society.  I am unable to say whether or not it was formally introduced into the House.

CALLINAN J:   Well how did the material get before the Court of Appeal?  You may not be able to answer that, but I would like to find out how that happened, if possible.

MR BRERETON:   We will see if we can establish that, your Honour.  Personally, I have no recollection as to whether it was provided during the course of the hearing.  My best recollection is that it was not and that it must have been obtained by his Honour’s own researches.  I certainly have no recollection of it having been adverted to during the hearing.

CALLINAN J:   Mr Lindsay may be able to assist us about that.

MR LINDSAY:   I have a copy of what I believe to be the exposure draft of June 1993.  I think we were requested by the Court of Appeal, and this is just my best recollection at the moment, to provide materials that have had a bearing on the legislative history.  I think it was in that context that probably the Society may have provided it.  I am not sure, but I think that is the position.

GLEESON CJ:   But that still leaves unanswered the question whether it ever got to Parliament. 

MR LINDSAY:   It does.  My best recollection and understanding at the moment would be that it did not, but I would have to check that specifically by Mr Brereton.

GLEESON CJ:   Even if it did get to Parliament, Mr Brereton, it is almost a copybook example of why this sort of thing is unhelpful, is it not?  That subsection (2) might have been left out either because somebody said, “No, this ought to apply to a complaint made by a Council”, or it might have been left out because somebody said, “You do not need it having regard to the use of the word ‘made’ in subsection (1)”, and the person who said that might then have advanced the made initiated distinction which attracted the Court of Appeal.

MR BRERETON:   If it is still on its own, that might well be so, your Honour.  With respect, I can throw a little bit more light on what happened from a couple of subsequent editions of the Bill.  After the exposure draft, what was introduced into Parliament was the Legal Profession Reform Bill 1993, and in the materials handed up your Honours will find as loose materials two documents, one entitled the “Legal Profession Reform Bill 1993, and the other entitled the “Legal Profession Reform Bill (No 2).  It is to the first of those, not the No 2 Bill, that I wish to go to at this stage.

KIRBY J:   Just before we plunge into this, Justice Sheller cites a 19th century decision which says that the other chamber and the sovereign do not know what on earth is going on in the chamber in which the Bill is debated.  Is that apt to the consideration of the legislative history?  Do we look at this?  I have the impression we do look at the history of previous manifestations of legislation, but his Honour seemed to have some doubts about that.

MR BRERETON:   His Honour had reservations but concluded that his Honour was entitled to have regard to it. In my submission, it is quite clear on the face of section 34 of the Interpretation Act that the Court may have regard to it. It is a matter then under the last subsection of section 34 as to what, if any, weight is given to it. But, it is clearly something to which regard may be had.

McHUGH J: It was formerly a view which I always thought was wrong, that by looking at the Bills as they were going through the House was an infringement of the Article 9 of the Bill of Rights. But, having regard to the terms of section 34, it is clear that Parliament has legislated to enable one to look at it. Those old cases, if they ever were correctly decided, are of no current application.

MR BRERETON:   With respect, I adopt that. If I can then go to the first of the Bills that were introduced into Parliament. There has been reproduced for the Court only so much of it as relates to Part 10, but the relevant parts and clauses of the Bill are at page 50 of the Bill and following. Section 134 is in the form in which it was ultimately enacted. Section 135 is not ‑ ‑ ‑

KIRBY J:   These would be clauses.

MR BRERETON:   Your Honour is quite right.  Clause 135 is not.  Subclause (1) provides that:

A Council may initiate a complaint against any legal practitioner.

(2)  Any such complaint is to be made to the Commissioner.

So it uses, in respect of a complaint by a Council, both the concept of “initiation” and “made”.  Section 136 is in the form in which it was ultimately enacted, as was section 138.  It is my submission that if the court had had to construe this Bill rather than the Act that was ultimately enacted, there would not have been the slightest difficulty in coming to the conclusion that section 138(1) referred to each of the three sources of complaints, because the first one was made for the Commissioner, the second one, under 135, was a complaint made to the Commissioner albeit initiated by a Council as opposed to a member of the public, and the third was taken to have been made to the Commissioner so that section 138(1) would have picked up all of them.

In the second reading speech, on the introduction of that Bill, and it was the No 1 Bill, which is behind the fourth tab – the pink tab – in the bundle, this provision was addressed, albeit briefly, at page 3274 at the foot of the left‑hand column where, five lines from the bottom, the Attorney said:

New section 138 provides that complaints must be brought within three years of the conduct which gives rise to the complaint.  This is a reduction from the current six-year period –

that being a reference to the exposure draft:

But it has been provided that the Commissioner may allow a complaint out of time where it is just and fair to do so having regard to the delay –

and so on.  There is nothing in the second reading speech, and it cannot be put any higher than this, but there is nothing in the second reading speech to suggest that any exception was intended to be preserved, despite the omission of the exception from the exposure draft.

GLEESON CJ:   This was the original Bill?

MR BRERETON:   Yes, your Honour.  After the original Bill was introduced, there was extensive comment, including by the professional associations.  The Bill was amended and there was then introduced the No.2 Bill, in substitution for the original Bill.  There was no further second reading speech.  The Attorney simply announced that the Government had taken on board various suggestions that it be made, and incorporated them in the No. 2 Bill , which your Honours also have.  The relevant passages or clauses are to be found at page 49.  Section 134 is unchanged.  Clause 135 is changed in respect of subclause (2), because it now provides that:

A copy of any such complaint is to be forwarded immediately to the Commissioner.

rather than made to the Commissioner.

McHUGH J:   The words “forwarded immediately” were in subsection (3) in both Bills.  It was in the original (3) and so they picked it up.

MR BRERETON:   Yes, and section 138 is unchanged.  There is one other relevant change and that is clause 148 at page 53.

GLEESON CJ:   There is one thing that I had not noticed before.  You may have mentioned it before.  It is section 136(2). If the Commissioner initiates a complaint then that is taken to have been a complaint made to the Commissioner.

MR BRERETON:   Yes, your Honour.

GLEESON CJ:   And presumably within the regime of section 138.

MR BRERETON:   Yes, your Honour.

GLEESON CJ:   And certainly within the regime of section 137.

MR BRERETON:   Yes, your Honour.

McHUGH J:   Has any policy reason been suggested why the Council should be put in an exceptional position as opposed to an ordinary complainant or the Commissioner himself?

MR BRERETON:   No, your Honour.  Can I say this, that the Court of Appeal’s decision is that despite the subsection to which the Chief Justice has just referred, the Commissioner also is not affected by section 138.  Mr Justice Sheller so held at page 449, line 15, where his Honour said it does not apply to:

a complaint initiated by a Council or by the Commissioner, despite s 136(2).

GLEESON CJ:   What is the point of section 136(2)?

MR BRERETON:   To ensure that the other provisions of the Act which were primarily drafted to address lay complaints are also apt to deal with complaints initiated by the Commissioner.  I was on the second version of the Reform Bill.

KIRBY J:   Was the theory that informed his Honour’s approach that for proceedings initiated by the Society and the Commission, you did not need to have the formalities that were required against the risks that could arise by a proceeding initiated by any person, given that some of those might be uninformed, ignorant, vexatious and some perfectly reasonable.  Was that the theory that lay behind his Honour’s distinction?

MR BRERETON:   If it was, it was, with respect, unexpressed and unarticulated.

KIRBY J:   It may not fit in with the language of the Act, but it would at least be a reasonable approach for Parliament to take.

MR BRERETON:   In the context of an Act which provides for an extension of time in an appropriate case, and in the context of a Law Reform Commission Report, which had recommended that there be a limitation period for substantially the same reasons that we have civil limitation periods, referred to by your Honour Justice McHugh in South Brisbane Hospital v Taylor, there would simply be no need and no desirability to draw a distinction between the two.  The Law Society and the Commissioner, if need by, could get an extension of time under section 138(2).  There was no warrant and Parliament ought not to be taken to have acted on the basis that the Law Society did not need to be under the same constraints as a lay complaint.

KIRBY J:   The Commissioner giving an extension to himself.

MR BRERETON:   Yes, but only after having turned his mind to the tests referred to in section 138(2).  The benefit of that is that it requires focussing on the issues as to why there should be an extension.

The other relevant change between the first version of the Bill and the No 2 Bill is in clause 148(1), to which were added the words at the end of that subclause “or initiated by the Council”, and the practical effect of all of that was that what the second Bill did was to provide that when the Law Society initiated a complaint, it retained the ability to conduct its own investigation into that complaint, without the complaint having to be referred back to it by the Commissioner.  All of those alterations effected was in essence that nothing that was done between the No 1 Bill and the No 2 Bill could be taken as being intended to affect the operation of the limitation provisions.

KIRBY J:   Were there further amendments in Parliament between the No. 2 Bill and the Act as it now stands?

MR BRERETON:   The best answer I can give to that, your Honour, is not relevantly.  There may have been others, but not to those provisions and there was no further comment in parliamentary debate on those provisions.  So that then is the legislative history.  The policy that underlies section 138 is the policy which informs limitation periods generally, namely that there is a parliamentary judgment that it is in the interests of society as a whole, balancing the interests of complainants against those of legal practitioners, that complaints be brought and litigated or at least be brought within a confined period of time.  That is notwithstanding the fact that it might result in some meritorious complaints not proceeding.  That simply reflects a general policy on limitation periods. 

McHUGH J:   There is the fall-back provision, because 171N preserves the inherent jurisdiction of the Supreme Court.

MR BRERETON:   Yes, your Honour.

GLEESON CJ:   Is that still preserved under the latest legislation?

MR BRERETON:   Yes, your Honour.

KIRBY J:   And if it is meritorious, the Commissioner can presumably extend the time?

MR BRERETON:   Yes, your Honour.

KIRBY J:   That is if it is meritorious and otherwise warrants the exercise of the statutory discretion.

MR BRERETON:   Yes, your Honour.  Now, so far as this argument is concerned, as I understand the respondents’ submissions, there are advanced essentially four so-called policy reasons at page 8 of the respondents’ written submissions as to why the view for which I contend should not prevail.  The first is, it is said, that the erection of technical barriers to making complaints and instituting proceedings would hinder the objective of dealing with allegations of misconduct in a transparent way.

The answers to that may be shortly stated.  First, the limitation provision is not a technical barrier but a substantive protection against stale claims.  Secondly, Parliament has chosen to impose a limitation period as a judgment in balancing the interests of complainants and legal practitioners.  Thirdly, in any event, there is a facility for extending time.  So, adopting the construction for which I advance would not impose a technical barrier in the proper operation of the complaints system.  Secondly, it is said that this would concentrate power in the hands of the Legal Services Commissioner.

There are two answers to that. First, it was intended that power be concentrated in the hands of the Legal Services Commissioner. The second reading speech makes clear that the Legal Services Commissioner is one of the centrepieces of the new Act. He was intended to have a general oversight of the complaint process, so it would hardly be surprising that power was concentrated in his hands. Secondly, it needs to be remembered that the idea of the Law Society initiating and then investigating its own complaint came late in the drafting process, as I have shown, in the second version of the Bill in Parliament. That explains why there are some infelicities in the remainder of Part 10 in so far as they deal with initiated complaints.

Thirdly, it is said that this construction would unduly limit Tribunal hearings if it were contended that no evidence of facts predating the complaint by more than three years was admissible.  The flaws with that argument are first of all that it confuses the conduct the subject of a complaint with evidence.  No one suggests that evidence of the facts which occur more than three years before the complaint cannot be adduced before the Tribunal if they are relevant to proving misconduct within the three years beforehand.  The real question is:  when did the relevant conduct occur?  When did the failure to account, for example, occur?

If it occurred within three years beforehand, no problem.  If it was outside the three‑year period, at the least an extension is required.  If there were a failure to account within the three‑year period, that would not prevent the adducing of evidence of the entrustment outside the three‑year period.  The moneys may have been entrusted to the solicitor five years beforehand but the failure to account may have occurred only two years beforehand.  Evidence of the entrustment five years beforehand would clearly be admissible.  There is nothing in the third point.

The fourth point is that it is said to create arbitrary results.  The harsh reality is every limitation period, to some extent, creates an arbitrary result.  That is not a reason to distinguish the position of the Law Society from that of any other complainant or the Legal Services Commissioner.  The practical impact of that in the present case may be identified as follows, by going to volume 1 of the appeal books.  The original complaint commences at page 1 and runs through to page 13.  This, I regret, is the descent into particularity which is required.  The information is immediately followed at page 4 by the particulars of the ground of complaint and it is convenient to focus on those particulars.  The first ground at page 4:

neglect, delay and incompetence in the administration of the estate of the Late Everil May Wilkinson –

was never the subject of any complaint at all.  One will not find that ground reflected in the terms of any of the complaints.  In any event, it clearly relates to ‑ ‑ ‑

KIRBY J:   The deceased could hardly make the complaint.  She had disappeared.  She was the client.  Have I misunderstood the facts of the particulars?  Particular 1 says, “The ‑ ‑ ‑

MR BRERETON:   No, your Honour has not misunderstood the facts at all.  The complaint does not have to come from the victim; the complaint can come from the Law Society.  The point is that when the Law Society initiated a complaint on 8 June 1995, that complaint did not have in it anything which is reflected in ground 1 of the information.  What your Honour is not looking at, although it is called “Particulars of Grounds of Complaint”, is the particulars of the information in the Tribunal, not the complaint.

McHUGH J:   But how formal does the complaint have to be, because this matter was mentioned in the report of Mr Barton, was it not, that was before the court?

MR BRERETON:   The complaint of 8 June can be found conveniently at page 173, and at line 23 is the resolution to initiate a complaint in relation to certain specified matters.  The Court will not find in those specified matters ‑ ‑ ‑

McHUGH J:   It was all about the authority at that stage.

MR BRERETON:   - - - a reference to neglect, delay and incompetence.  So that part of the information has never been the subject of a valid complaint at all.  In any event, if one looks at the particulars subscribed to it on pages 4 and 5, it is clear that the particulars relied on relate to conduct before 8 June 1992, for example, particular (d), as well as after that date, for example, particular (i).  So far as the limitation provisions are concerned, it would have been open to the Law Society to make a complaint about delay after 8 June 1992 but not before, because delay before that date is not within the three‑year period.  On the other hand, it may well be open to the Law Society ‑ ‑ ‑

GLEESON CJ:   It would not matter, would it?  Delay after that date would be worse.

MR BRERETON:   Yes, your Honour.

GLEESON CJ:   If you should attend to something on 1 January 1990 and you have not attended to it by 1 January 1993 and you still have not attended to it by 1 January 1995, an allegation which singles out 1 January 1995 as a date at which your delay is operating ‑ ‑ ‑

MR BRERETON:   Is enough.

GLEESON CJ:   Is a more serious allegation.

MR BRERETON:   Yes, your Honour, and this complaint, if there had ever been a complaint to underlie this ground, it could have been in respect of delay during 1992 but not before, but we do not even get that far because there never was such a complaint.  So for two reasons ground 1 is not valid and I will come back to the meaning of that later, first because it was never the subject of a complaint at all, secondly, that it was, at least in part, about conduct more than three years old at the date of any relevant complaint.

The next ground, ground 2, is at page 7.  That focuses on the transaction concerning the application of estate assets which is the Roberts transaction, for want of a better word, and that is the same transaction as is referred to in paragraph (d) on page 4.  All the conduct referred to in ground 2 took place before June 1992.  Accordingly, although that conduct was referred to in the complaint of June 1995, it was out of time so there was not a valid complaint to found that part of the information.  Ground 3 at page 8 contains two parts.  Particular (b)(i) concerns non‑disclosure of the Roberts transaction, which is pre‑June 1992.

KIRBY J:   Could I just interrupt to ask - I do not wish to appear undesirous of intruding into these uncongenial details, but is the purpose of your pressing them on the Court simply to demonstrate that the propositions of law which you have advanced concerning the construction of the Act have a real application to your client and, therefore, that we are dealing with a real issue?  If that is not contested, then would that not be simply a matter for the Court of Appeal to sort out once the construction of the sections has been clarified by this Court, or is there another purpose?

MR BRERETON:   In my submission, it is far more desirable, and this may not commend itself to your Honours, that this Court can resolve these issues relatively easily without a great deal of ploughing into the facts and make orders which dispose of the matter once and for all and do not leave the parties to have to argue out the detail of this before ‑ ‑ ‑

KIRBY J:   That is not only uncongenial because of the pressures on this Court, but it is also disturbing of the proper relationship of this Court to the court which has the responsibility for the general superintendence of the legal profession in New South Wales, namely, the New South Wales Supreme Court.  This Court has said many times that we do not normally intrude into such matters.  Now, why should we do so in this case?

MR BRERETON:   Because all that would involve would be the application of the law, as decided by this Court, to the facts of this case which is, with the greatest respect, an ordinary role of an appellate court, even one of last resort.

KIRBY J:   I mean, you are up to page 8 and I am just flicking through this appeal book and that ‑ ‑ ‑

MR BRERETON:   Your Honour does not have to go that far.  We only get to about page 17.  So far as ground 3 is concerned, that aspect ‑ ‑ ‑

McHUGH J:   Can I just ask you this, what do you say about what might be a problem for you, a continuing duty on the part of the solicitor towards his client to correct error where error has occurred; for example, where he has made a representation that a document is required for a particular purpose which is false?  Now, that happens on a particular date, but is not the solicitor under a continuing duty by reason of his fiduciary relationship ‑ in this particular case a trustee, beneficiary relationship ‑ to correct that?

MR BRERETON:   With respect, that problem does not arise because if one looks at 3(b)(2) which I suspect is what is attracting your Honour’s attention, that is after the relevant date, anyway, and 3(b)(2) is within time.  So, 3(b)(2) is not a matter which falls foul of the limitation provision.

KIRBY J:   So, some of these matters will have to proceed to determination, is that what you are saying?

MR BRERETON:   If I succeed on the first argument concerning the absence of an investigation, then, no, nothing will have to proceed.

GLEESON CJ:   Subject to section 170 - - -?

MR BRERETON:   Yes, your Honour, and that is entirely a matter for the Law Society if it wishes to invoke the inherent jurisdiction.

KIRBY J:   Is it also subject to the seeking of extension of time from the Commission or is that too late to correct on this complaint?

MR BRERETON:   So far as I can see, there is nothing which limits when the Law Society can – in respect of this complaint it would be too late.  That is not necessarily to say – and must say I have not thought about this – that is not necessarily to say that another complaint based on substantially the same matters might not be made or that an extension might not be sought in respect of that.

GLEESON CJ:   Mr Brereton, I see the time.  How long do you expect to need to complete your argument?

MR BRERETON:   I have largely completed the section 138 argument.  The 167A argument is relevantly short.  I would think half an hour at the outside, your Honour.

GLEESON CJ:   How long do you think you will need for your submissions, Mr Lindsay?

MR LINDSAY:   No more than an hour, and I will accommodate whatever time I am given.

GLEESON CJ:   Very well, we will resume at 2.00 pm.

AT 12.46 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.01 PM:

GLEESON CJ:   Yes, Mr Brereton.

MR BRERETON: Just before I return to where I was, may I deal with a couple of loose ends from this morning. First of all, may I refer to the suggestion, I think, principally, although, perhaps, not exclusively, emanating from your Honour Justice Kirby that my construction of the Act could be summarised as the Law Society in chains. Others of your Honours referred to the possibility of the Law Society having powers elsewhere, and indeed, I suggested that it did so. Might I, on that behalf refer to section 55 of the Act which gives the Law Society wide‑ranging powers to conduct non‑Part 10 inspections or investigations of the affairs of solicitors. So that the Law Society has ample powers to proceed under section 55 apart from the statutory investigation under Part 10. That does not diminish the need for a statutory Part 10 investigation in the complaint procedure.

The second matter is something which may have been unfairly attributed to your Honour Justice Kirby.  Those instructing me tell me that your Honour said some time during the morning, and I did not hear it myself, something to the effect that the Tribunal was presided over by a judge.  If your Honour did say that, and as to that I have no recollection, that would not be correct.

KIRBY J:   The Decisions Tribunal is presided over by Judge O’Connor, is it not?

MR BRERETON:   The Tribunal has as its president a judge just as, for example, the Commonwealth Administrative Appeals Tribunal has as its president a judge, but the division of the Tribunal which hears proceedings under the Act is not required to and does not have as a member of the panel that hears such a complaint a judge.

KIRBY J:   Yes, but it would still be required to act in a judicial manner.

MR BRERETON:   Unquestionably, yes, your Honour.  I had made some submissions about the legislative history before the adjournment.  I probably did not sufficiently draw them together.  May I just summarise them this way.  The Law Reform Commission Report evinces an intention to impose a limitation period regardless of whether the complaint is by a lay complainant or a professional association.  In the drafting process there was a flirtation at the exposure draft stage with the concept of exempting the Legal Services Commissioner and the Councils from that limitation.  That flirtation did not survive the exposure draft and had disappeared by the time of the first Bill introduced into the House.

There is nothing in the subsequent legislative history to suggest any further intention to accept complaints by the Services Commissioner or the Councils from the limitation period.  The alteration between the first Bill and the second Bill in the House was to preserve the ability of Councils to investigate complaints which they initiated and was not in any way intended to affect the time limit provisions and that is particularly – sorry, I withdraw that.  The better view is that the idea of accepting complaints by the Legal Services Commissioner and the Councils was rejected after the exposure draft and not reinstated.

Finally, before I return to where I was, may I address the question of remitter, for want of a better word.  The orders made by the Court of Appeal are set out in volume 2 at pages 463 and 464.  Essentially, the Court of Appeal made declarations, in paragraph 1, and then remitted the proceedings to the Tribunal to be continued in accordance with those declarations.  If this Court came to the view that those declarations are wrong, then, at the least, what this Court would do would be to substitute appropriate declarations for those made by the Court of Appeal.  That would then leave standing the remitter of the proceedings to the Tribunal to be continued in accordance with law.

KIRBY J:   Is that correct?  Or in the relationship which we have to the Court of Appeal, would we not clarify the law and remit the matter to the Court of Appeal for it to take such steps as is appropriate, vis-à-vis, the Tribunal?

MR BRERETON:   In my submission, not, your Honour, because there is nothing left for the Court of Appeal to do.  Once this Court substitutes its declarations for the Court of Appeal’s declarations, there is nothing left for the Court of Appeal to do.  If anything, the matter goes back to the Tribunal for further argument.

KIRBY J:   That is on the assumption that we do not simply limit our involvement clarifying the law and then leaving it to the Court of Appeal to apply the clarification to the facts and circumstances of the case.

MR BRERETON:   Yes, it is on that assumption, your Honour, but in my submission ‑ ‑ ‑

KIRBY J:   That is too uncongenial for you to entertain.

McHUGH J:   What do you say about declaration 1(b)?  It is a rather extraordinary declaration, is it not?

MR BRERETON:   We have not challenged declaration 1(b), your Honour.

McHUGH J:   Declarations ought to make clear to people what their rights are.  This is laid on a hypothesis.  If it was laid before the conduct of the Council’s investigation then it should be struck out unless the ‑ ‑ ‑

MR BRERETON:   Yes.  The problem with the approach adopted by the Court of Appeal is it did, with respect, precisely what your Honour Justice Kirby is inviting me to participate or endorse now, and that is to duck deciding the hard issue which is whether these proceedings should be prohibited in whole or in part.

GAUDRON J:   What orders did you in fact seek from the Court of Appeal?  Are they somewhere ‑ ‑ ‑

MR BRERETON:   They are, but they are conveniently substantially to the same effect as – I will answer your Honours question directly, first.  Page 101 sets out the orders sought and the orders which we submit this Court should make are set out towards the end of my written submissions in this Court.

GAUDRON J:   In the Supreme Court or here?

MR BRERETON:   No, your Honour, the orders that I submit should be made in this Court are set out in the written submissions in this Court.  Now, if the Court comes to the view that we succeed on the investigation point, then the position if really quite simple.  If there was not an investigation as required, then there was not an institution of proceedings in the Tribunal in compliance with section 167.  There is nothing properly before the Tribunal.  The informations are totally defective and prohibition should go.  It is only if I succeed only on the section 138 argument that there is need to descend into the particular, and that simply involves identifying which of the complaints concern conduct more than three years old at the time the relevant complaint was initiated and that is a process that I was seeking to address and have got about two-thirds of the way through.

GAUDRON J:   The orders that you say would be made in that event are those that shown in (b) of the orders in paragraph 21, each of the subparagraphs, I take it?

MR BRERETON:   Yes, your Honour.  Yes, that is right, your Honour.  If the Court comes to the view that we succeed only on the section 138 point, then it is the orders in the (b) parts of 21.3 and 21.4 that are appropriate.

GAUDRON J:   Those orders do not address your amended information argument, or do they?  They depend on it, or - - -?

MR BRERETON:   They largely depend on it, yes, your Honour.

GAUDRON J:   Yes.

MR BRERETON:   It is to that which I shall come as soon as I have finished the present analysis of the informations which we are almost at. 

I was dealing with ground 3 at page 8 of volume 1.  Ground 3(b)(ii), as I indicated, is within the complaint period.  If we then go to ground 4 at page 9, all of the conduct referred to in ground 4 occurred before the complaint period, that is to say before June 1992, and all of the allegations in there allege breaches of duty or misconduct in March 1992.  So that the whole of ground 4 is outside the complaint period.  So far as ground 5 is concerned, that is within the complaint period.

GAUDRON J:   Ground 5 is where?

MR BRERETON:   Page 12, your Honour.  We then need to go but briefly to the amended information at page 29 and it is only with the amendments that we need be concerned.  There are two.  At page 40 there is an addition of Part (B) and we accept that what is in Part (B) is within the three‑year period for the second complaint.

KIRBY J:   What page is this on?

MR BRERETON:   That is pages 40 to 41, Part (B) in relation to matters generally, (e) concentrates on a statutory declaration made on 7 March 1997, which was within the three‑year period for the second complaint.

KIRBY J:   Do your draft orders take into account that if you were to fail on your first point but succeed on the 138 point that that matter would proceed?

MR BRERETON:   Yes, your Honour.

GAUDRON J:   You accept, I take it, that that is in relation to a complaint within the three years though, do you?  Are there not two legs to the amendment?  If you are right in your argument, as I understand it, with respect to the amendment, we have to find a complaint within three years plus relate this to it.

MR BRERETON:   The amendment was not just an amendment under section 167A adding a new allegation.  Uncommonly for such an amendment, it was preceded by the initiation of a complaint and a resolution under section 155 to institute proceedings in respect of that second complaint.  There were, therefore, two complaints, and the allegations in respect of the second complaint were joined with those in the first complaint in the amended information.  For that reason, it was not argued below and I do not seek to argue now that this amendment was not authorised by section 167A if there was otherwise properly something before the Tribunal.

GAUDRON J:   So that would fail only on the investigation grounds.

MR BRERETON:   Yes, your Honour.  The other amendment was to add ground 6 which commences at page 41 and runs through to page 45, and it, in essence, concerns dealings between the solicitor and his sister, Mrs Roberts.  The date of the second complaint was July 1997, I think.  Virtually the whole of the conduct, the subject of ground 6, predated July 1994.  Ground 6, for that reason, is bad because it concerns conduct more than three years before the complaint which initiated it was made in July 1997.

GAUDRON J:   And that, too, was a fresh complaint.

MR BRERETON:   Yes, your Honour.  May I then turn to the third aspect of the argument which is section 167A.  The issue on that is whether the power to vary an information so as to include additional allegations may be exercised so as to add allegations which could not have been the subject of a valid complaint because they would have been out of time and/or allegations which are unrelated to the complaint and have not been the subject of investigation and decision.

The Court of Appeal’s reasoning is set out at pages 459 to 460.  In essence, the Court of Appeal held first that the initial information “cannot extend beyond” the allegations of the subject of the complaint.  That is at lines 30 to 35 on page 459.  However, the Court of Appeal then went on to hold that the information may be varied so as:

to include additional allegations if the Tribunal is satisfied that it is reasonable to do so having regard –

to considerations of fairness.  At the foot of 459 the result was:

that when laying an Information the Council…..is limited to allegations of conduct contained in a complaint but thereafter may apply to the Tribunal to vary the Information to include additional allegations, including allegations of conduct during the investigation or the hearing –

With great respect, that reasoning did not really address the submission made to the Court of Appeal and recorded in the Court of Appeal’s judgment at 446, line 22, where specific attention was drawn and mention made of the argument that 167A could not be used to add allegations which could not have been the subject of a valid complaint.  The gravamen of this is that if a complaint is out of time under section 138 and if no extension has been gained under section 138(2), it would be extraordinary if Parliament had decided that it could just be added without going through that process under section 167A, otherwise the whole purpose of section 138 would be defeated by a side wind.  In our submission, 167A could not have intended to authorise the addition of allegations which could not be the subject of a valid complaint because they were out of time.

The second aspect of the argument is that the sections that I referred to this morning, particularly 167(1), 171C, 171D, 171E(2) and 171F, make clear that what the Tribunal is still concerned with at all times is the complaint.  Sure it conducts a hearing into the allegations particularised in it but ultimately its hearing is into the complaint and its determination is of the complaint.  That excludes the addition of allegations outside the scope of the complaint.

So much was reasonably – that is entirely consistent with what the joint judgment said in Walsh’s Case, particularly at paragraph 66 where your Honour said:

The provisions of the Act must be complied with.  The focus of its attention is the “complaint against a legal practitioner”: expressed in the “information laid by the appropriate Council or the Commissioner” in accordance with the Act.  That complaint, and the information containing it, may be varied and amended.

With great respect, query whether the complaint may be varied.  There is no authorisation for that.  Certainly the information may have allegations or particulars added or subtracted.

For those reasons, in my submission, 167A properly construed does not authorise the addition of allegations outside the scope of the original complaint, and certainly does not authorise the addition of allegations which are statute barred and could never have been the subject of the original complaint.

That then leaves us, in summary, with this position. So far as the original information is concerned, in totality, it was not laid in accordance with Part 10, because it was not preceded by a valid section 155 decision because there was no investigation, therefore the whole of the original information was not in compliance with section 167 and was a nullity. Alternatively, in large part, it was not in respect of a valid complaint because as to some, it was never the subject of any complaint at all and as to the balance, or as to most of the balance, with some minor exceptions, it was outside the three year period.

As to the amended information, there could not be an amended information because the original information was a nullity for those reasons. Alternatively, the amendments in whole were bad because they were not laid in accordance with Part 10 for the same reasons and alternatively yet again, they were bad in large part because ground 6 was not in respect of a valid complaint, it being outside the three year period.

Unless there are other matters on which I can be of assistance, those are my submissions.

GLEESON CJ:   Thank you, Mr Brereton.  Yes, Mr Lindsay.

MR LINDSAY:   Thank you, your Honour.  I propose, if I may, to rely upon, speak to and supplement the written submissions that were provided to your Honours today and to which my friend has already referred.        In the matter of Walsh, the Court ‑ ‑ ‑

KIRBY J:   Can I just ask, I perhaps should have asked Mr Brereton this:  what is the convention in respect of costs in the Court of Appeal in prerogative type proceedings, but prerogative proceedings involving a solicitor and the Society?  The normal rule in appeals, I think as I dimly recall it, was that the solicitor does not get costs and ordinarily pays the costs of the Society.

MR LINDSAY:   In disciplinary proceedings that is often the case.

KIRBY J:   Yes, but in so-called prerogative proceedings I assume that the ordinary rule obtain, would it?

MR LINDSAY:   I assume so.

KIRBY J:   Yes.

MR LINDSAY:   I do not know that they are that frequent to have a separate practice, and certainly I am not aware of one. 

In Walsh the Court had occasion to recognise the protections afforded to a legal practitioner by Part 10. This case is more clearly concentrating on how the Act, as a matter of construction, attempts to engage the competing interests of, on the one hand, practitioners, and on the other hand, consumers and the general public, so that that is really the focus of what we are doing now. The question raised by the cross-appeal, if I can just deal with that briefly, is one which arises in the context of the appeal itself, however viewed. One of the matters that moved us to put on the cross-appeal was a point that was raised by Justice McHugh about order 1(b).

We have sought to appeal from that, apart from anything else, so that in the event that the Court takes a different view about the construction of Part 10 it will not necessarily be artificially constrained by the existence of no appeal from order 1(b),. But, in any event, the questions that arise on the appeal arise in the context of the cross‑appeal as well and that is because the appellant submits that there is a two-stage process involved in Part 10 and that there is ‑ ‑ ‑

KIRBY J:   That is a fundamental submission, is it not?  It is a fundamental.

MR LINDSAY:   It is.

KIRBY J:   If it is correct then we do not have to get into any of the other matters, we simply provide relief on the basis that there never was an investigation before this complaint.

MR LINDSAY:   That flows from his characterisation of the two-stage process as involving an ‑ ‑ ‑

KIRBY J:   I realise that is his submission.  What I am asking you is do you agree that if the first point argued before us is determined in favour of the appellant that there is no need to deal with any of the other matters and that all we do is provide such relief as is appropriate on that footing?

MR LINDSAY:   Essentially, I do, yes.

KIRBY J:   And that would be, I think, prohibition to the Tribunal, would it not?

MR LINDSAY:   Yes, subject to this, that the reason I was endeavouring to answer a little bit more fully what your Honour put to me was that it is not so much the two-stage process itself, it is the two-stage process involving, as the appellant puts it, an investigation stage where there is a minimum content requirement in the investigation and when the two-stage process, on the one hand, and the minimum content submission that is put by the appellant, on the other hand, are taken together, that is where one gets the fundamental challenge to the Tribunal proceedings, if the appellant’s submissions are correct.  Looking at the question of minimum content, the appellant says that no matter what may have gone before, the minute you have a complaint you must have, as a bare minimum, at least some further communication with the practitioner concerned, and that is where we take issue.  In our submission, the Act does not mandate communication with a practitioner at that stage as a minimum requirement of an investigation under sections 148 through to 155.

In our submission there is no basis for equating that procedure under sections 148 through to 155 with a committal hearing.  In our submission, what is required is no more than what occurred here on three separate occasions and that is that the Council concerned undertake a bona fide examination of a complaint to satisfy itself that there is some foundation for it and that happened here, as I say, on three separate occasions to which the Court will need to direct at least some attention.  One is 8 June 1995 and my friend has taken you to that; the next in time is 5 September 1996 and I will return to that briefly; and the third is 17 July 1997.

On 8 June 1995 was the first occasion upon which there was an express reference in the resolutions of the Law Society to section 135.  Following on from that time, a form of information was prepared and that in turn was adopted by the Council of the Law Society on 5 September 1996; and in so far as my friend submits that the information that was filed initially went beyond the terms of the resolution of 8 June 1995, one of the things we say is, even if that were so, the fact of the matter is the information was adopted by a resolution of the Council and that would satisfy the requirements of section 148 through to 155.  So in those circumstances, any deviation between the two resolutions would not be of significance.

The third resolution is the one of 17 July 1997 and one of the differences between us, if I can mention it now, is this.  In form the resolutions of that date referred to sections 135 and 155.  The resolutions were given effect by the Tribunal under section 167A.  We submit, in those circumstances, that sections 138 and 155, even if they had application in the context of an initial complaint, an initial information, they cannot constrain what in fact occurred.  The order of 1 August 1997, made under section 167A, in our submission, authorises the amended information unless there was nothing to be amended, which gets back to the point of the appellants that if there was no compliance with the investigation requirements of the Act, then the proceedings were a nullity.  So that there is a difference between us there in the approach to the resolution of 17 July.

KIRBY J:   If one took that view, you would not send it back to the Court of Appeal to make orders there?  We can just as easily substitute the orders and make the proper orders directed to the Tribunal?

MR LINDSAY:   Yes, but it may be the proceedings, though, would still, in our submission, need to go back to the Court of Appeal because the relief sought in the Court of Appeal was not exhausted and there is still the question of inherent jurisdiction which may or may not be invoked.

KIRBY J:   But that has not been invoked, has it?

MR LINDSAY:   It has not been invoked.

KIRBY J:   If it has not been invoked and you have not invoked it, I do not see why we should do anything about it.  I am not saying that was not a proper course for you to adopt, given that the matter was proceeding to this Court but, as it has not been invoked, there is nothing to send back.

MR LINDSAY:   Your Honour, I do not wish to take time on it in this sense.  The inherent jurisdiction, whether or not it was included in the claim for relief or mentioned or not, would still remain open to be exercised by the Court of Appeal anyway.

KIRBY J:   Of course it would.  You have lots of remedies before the Tribunal even if you fail in this matter.  When is the application for special leave in Murray to be heard by the Court?  Has that been fixed?

MR LINDSAY:   I do not know.  My friend has a role in that.

MR BRERETON:   At this stage it is anticipated it will be heard in February of next year.

KIRBY J:   I see.  It is not in the coming list?

MR BRERETON:   There was some discussion about the November or December sittings in Sydney but I understand, essentially for reasons of the mutual convenience of all counsel involved, February next year is proposed at this stage.

MR LINDSAY:   I have no desire to argue here the question of Murray.  Our concern, however, is on a point which seems to be central to Murray and which arises here, namely, are the resolutions and the approaches adopted to the resolutions which I have mentioned such as they do not comply with the legislation?  Those points were argued below in these proceedings and they underpin even my friend’s submissions today when he gets to the question of minimum content.

If I may turn briefly to the three grounds of appeal.  Dealing firstly with the first ground relating to section 138, we submit that essentially Justice Sheller was correct in his approach but one needs to bear in mind, as his Honour did, that there are countervailing factors, none of which if taken individually would necessarily be decisive.  So that one has to form a view about the overall intent of the legislation and I hope and trust the workability of whatever construction is adopted.  An essential difference between lay complainants and the professional associations in the context of section 138, in my submission, is that lay complainants do not, but the professional associations do, have standing to institute proceedings under section 167.  That is a matter of some significance in our ‑ ‑ ‑

KIRBY J:   I think we would be pretty familiar with the difference between the relevant Council or the Commission on one hand, or any person at all on the other, but the problem is the scheme of the Act, the language of the Act, the headings that apply to the sections, and the difficulty, in the face of that, of adopting this explanation Justice Sheller has advanced.  It is purely a matter of statutory construction.

MR LINDSAY: It is a matter of statutory construction, and one shrinks from being overly critical of other people’s drafting when in my case, at least, there are sufficient foibles of my own that I have to contend with. But it is not clear, if you look at Part 10, that there is any single decisive factor. So that one does need to come to an overview of the legislation and form a view about the ‑ ‑ ‑

KIRBY J:   Mr Brereton raises a pretty powerful case when you look, not only at the Act and the headings, but at the Law Reform Commission Report, the Bills as they went through, and on the policy.  Why should there not be a common rule of time limitation which can be waived by the Commission in the exercise of a specific power given for that purpose and directed by the donee of that power to the questions relevant to that?

MR LINDSAY:   A decisive shift took place, I think, in the legislative history when the person, or body, which was to consider whether or not a complaint would be accepted out of time became the Commissioner as distinct from the Tribunal.  I speak subject to correction, but my recollection is that at no time during the legislative history was it proposed that the Commission would be able to stand between the Tribunal on the one hand, and the Law Society or Bar Association on the other.      Part of the difficulty we have, again as a matter of policy or construction ‑ ‑ ‑

McHUGH J:   I do not quite follow what you mean by that.  What is now in 138, the subsection (2) was in the original Bill, was it not?

MR LINDSAY:   The original proposals, when they were talking about a six year limitation period and the like, and my friend quoted this morning from the Law Reform Commission Reports, were that there would be a time limit, but if one sought to be relieved of the time limit, one would go to the Tribunal rather than ‑ ‑ ‑

McHUGH J:   Yes, I know, but as soon as the original Bill came before the House, 138(2) was in the form in which it now is, is it not?

MR LINDSAY:   I think that is right, yes.  There was a shift, I think, in the form of section 135, but I think 138 remained in that form.

McHUGH J:   Perhaps you can answer this for me, Mr Lindsay.  Has 136(2) any real work to do other than to make the Commissioner’s complaint a complaint for the purpose of 138?

GLEESON CJ:   And 137.

MR LINDSAY:   What it does do is to, I think, tie in with the referral of complaints to the Council for investigation.

GLEESON CJ:   What else is there that ensures that the solicitor gets particulars of a complaint initiated by the Commissioner than a combination of section 136(2) and section 137?

MR LINDSAY:   We are talking about a complaint initiated by the Commissioner?

GLEESON CJ:   Yes.

MR LINDSAY:   In those circumstances it is only section 137 and it depends, perhaps, on what stage we are looking at but if we are at the stage of Tribunal proceedings having been instituted, then an order could be made for particulars by the Tribunal.

McHUGH J: But “complaint” in 137 by definition is a complaint made for the purpose of Part 10, is it not?

MR LINDSAY:   Your Honour, that is where we get into the different terminology between “made” on the one hand and “initiated” on the other and the various contraindications.

McHUGH J:   But “complaint” in 137 must mean a complaint made within the definition, otherwise the Commissioner would have no obligation to put a complaint in writing or to give particulars.  Section 137 must apply to that Commissioner, must it not?

MR LINDSAY:   I believe so, yes.

McHUGH J:   If 137 applies, why does not 138?

MR LINDSAY:   Why does not 138 apply to the Law Society?

McHUGH J:   Yes, after all, although he initiates it, it is deemed to be a complaint to him, a complaint made to him and a complaint made can only be made within three years.

MR LINDSAY:   I suppose that is part of the difficulty in dealing with deeming provisions generally but the problem with applying this approach or the definition in 126 across the board is that one needs to bear in mind the Interpretation Act that says that definitions apply unless the contrary intention appears so that one is driven back again to the context of the entire Part 10 rather than particular sections and one of the factors that we submit is significant in that regard is that the Law Society and the Bar Association have standing under section 167 but a lay complainant does not.

GLEESON CJ:   That is a fact but what exactly is the significance of it?

MR LINDSAY:   The fact of it is, in our submission, that we submit that section 167 is not constrained by section 138.  Section 167 contemplates that there would be an information with respect to a complaint, whether or not – let us assume for the moment that the Law Society was bound by section 138.  Let us assume we are dealing with an out of time complaint in terms of section 138.  Let us assume further that it was not accepted by the Commissioner.  In our submission, nevertheless, the focus of the jurisdiction of the Tribunal is on section 167 and the mere fact that a complaint was out of time would not stop the Tribunal from having jurisdiction.

GLEESON CJ:   Well, suppose a complaint was made by a member of the public out of time, and not accepted by the Commissioner?  Could the Council lay an information under section 167 in respect of that complaint?

MR LINDSAY:   That raises a different question because it would be open to the Council itself, on our submissions, to formulate a complaint and then deal with it in the context of section 167.

GLEESON CJ:   I think you are putting this argument on the assumption that Mr Brereton is right when he says that 138 applies to complaints initiated by the Council, are you not?

MR LINDSAY:    Yes, your Honour is correct.

GLEESON CJ:   Right.  Now, making that assumption, suppose the Council initiated a complaint out of time but the Commissioner refused to accept it; in other words, applied the discretion under section 138 adversely to the Council.  Do you say the Council could then institute proceedings under section 167?

MR LINDSAY:   Yes, we do.  Because section 138 does not say that a section 135 complaint, made outside the three year period, is not to be described as a complaint.

GLEESON CJ:   But it is this concept of acceptance that is interesting me at the moment.  The converse of acceptance I take to be rejection.  Now suppose the Commissioner rejects a complaint.  It may, nevertheless, go forward.

MR LINDSAY:    Because section 167 is the source of the jurisdiction of the Tribunal and it would still be the case that there would be an information “with respect to a complaint”.  So that the question of the jurisdiction of the Tribunal would be unimpaired by that rejection on our construction.

GLEESON CJ:   What then is the significance of the rejection?

MR LINDSAY:    The significance of the rejection, really, is in the context of lay complainants alone, because lay complainants do not have that standing under section 167. So that a lay complainant would be left without remedy under Part 10 unless it could obtain, for want of a better word, the approval of either the Commissioner or one of the professional bodies.

GLEESON CJ:   So if a lay complainant, whose complaint was rejected by the Commissioner, could persuade the Council to lay an information, the Tribunal would have jurisdiction.

MR LINDSAY:   In our submission, yes.  While we are looking at section 167, my friend referred to the words “laid in accordance with this Part” and submitted that those words necessarily refer to section 155 of the Act.  In my submission, that is not so.  They are directed to the procedural aspects which are picked up in section 166.  Section 166 provides for rules to be made governing the practice and procedure of the Tribunal, so, when section 167 talks about “an information laid in accordance with this Part” section 167 provides ample ‑ ‑ ‑

GAUDRON J:   Is there anything specific with respect to the laying of information?

MR LINDSAY:   I do not have the rules at hand but the rules have always provided, for example, the form of an information in those sorts of matters.  In our submission, the words “with respect to” in section 167 are words of wide meaning and they should be given that wide meaning.

GLEESON CJ:   The expression “laid in accordance with this Part” does seem to relate back to section 155, does it not?

MR LINDSAY:   In our submission, no.

GLEESON CJ:   What other provision, then, deals with laying of information?

MR LINDSAY:   Section 166, which is the laying of an information is directed to the procedure in the Tribunal rather than what my friend describes as a two-stage process preceding the filing of an information.

CALLINAN J:   Would not the Tribunal only proceed and be adopting procedure after the complaint is laid?

MR LINDSAY:   The rules provide for the manner and form of laying an information.  That is the document that has to be laid before or put before the Tribunal.

GLEESON CJ:   There were no rules at the time this legislation took effect, originally, presumably?

MR LINDSAY:   I am not sure.

GLEESON CJ:   I just notice that 166 provides for a rule committee to be set up.  I presume the Act preceded the rules.

MR LINDSAY:   That is probably a bold assumption, your Honour.

CALLINAN J:   Is the way in which a complaint is to be laid a matter of practice and procedure?

MR LINDSAY:   In my submission, the answer to that is yes.  The difference between my friend and myself as to section 155 does concern its purpose.  That has been characterised by the Court of Appeal as essentially directed to the rights or protections of a practitioner.  The submission that we made in our written submissions is that when one looks at in context, and in the context of the introduction of consumers, if you like, to the disciplinary process, the primary purpose of section 155 was to provide a formal decision‑making procedure, a formal decision, which would then provide a mechanism which would enable a lay complainant to obtain external review under section 158 in the event of a dismissal of a complaint.

In our submission that is the primary task performed by section 155.  When one comes to look at section 155, one does see again looming, not for the first time, the other difference between us, which is what is the content of an investigation for the purpose of that section.

With that, I would move on to the second ground, if I may, the second ground of appeal.  Our submissions, in essence, on that in today’s written submissions are in paragraph 5 and paragraph 2 and I have directed your Honours’ attention to the need to look at the three meetings earlier referred to.

CALLINAN J:   Mr Lindsay, I am sorry to interrupt.  If I can just go back to the matter I asked you about.  You say that “laid…..in accordance with this Part” in 167 is a reference to laid in accordance with such practice and procedure as is formulated pursuant to 166.  Is that correct?

MR LINDSAY:   Yes.

CALLINAN J:   But if you look at 135, 136 and 137, those provisions seem to tell you all you need to know about, if you like, the laying of a complaint.  I know the reference is to the making of a complaint or a complaint made, but if a complaint were made in accordance with those sections, it seems to me that there would not be anything more required and there would be no need for any rules and, indeed, any rule would either simply accord entirely with them and would really have no work to do.

MR LINDSAY:   Your Honour, the word “laid” in section 167 qualifies the word “information”, not the complaint.

CALLINAN J:   All right, yes.

MR LINDSAY:    So that is my short answer to your Honour’s concern.  When we look at the amendments that took effect in the context of section 167 we see, in my submission, a desire on the part of Parliament to free up Tribunal proceedings from an undue constraint about the word “complaint”.

CALLINAN J:   Where is the first reference to information in this Part, I am sorry, I just cannot pick it up at the moment?

MR LINDSAY:   Yes, my friend was suggesting it may be 155, but that is not the case.  It is 167 itself.

CALLINAN J:   That is the first reference to it?

MR LINDSAY:    Yes.  We by all means will check it, but that is certainly my understanding.

CALLINAN J:   Why do you need an information, why could you not ‑ ‑ ‑

MR LINDSAY:   The answer to that I think used to be found in the legislative history and that was there was enormous confusion through different meanings of the word “complaint”.  There is some reference in the Law Reform Commission Reports to the need to distinguish between the originating process in the Tribunal and the initial complaint.

CALLINAN J:   Is “information” as referred to in 167 any different from “complaint”?

MR LINDSAY:   “Information” is the originating process in the Tribunal.

CALLINAN J:   You say that to me but ‑ ‑ ‑

MR LINDSAY:   A complaint, whatever content one may give it, is different from an information.

CALLINAN J:   If you just put the word “information” on top of the complaint fully particularised in accordance with 137, then you would have an information.

MR LINDSAY:   It is a tempting thought, your Honour, but I think not.  The concept of a complaint might include a handwritten letter.

GLEESON CJ:   Exactly.  One of the practical problems in relation to administering these, if I may say so, and it is the same in relation to complaints against judicial officers, is that these complaints often come from - perhaps usually come from, lay people.  They are not often even assisted by lawyers or officials in the drafting of the complaint.  A system that ties the ultimate system of adjudication to the terms of what may very well be a most inartistic lay complaint is not very attractive.

MR LINDSAY:   No, and it was those sorts of considerations which led to the amendment of section 167(2) to introduce the word there, “allegation” rather than “complaint”, and also section 167A in the second reading speech of the Attorney‑General who referred to those matters and was prompted to do so, he said, because of a recent decision of the then Tribunal.  We have endeavoured to track that down and the best we can do is in our written submissions, a case called Gouder.

GLEESON CJ:   Mr Brereton made an analogy with committal proceedings and trials on indictment, but at least summonses and informations in committal proceedings are drawn?? at least by police officers, but complaints against legal practitioners are often quite unskilfully brought.

MR LINDSAY:   That is right and that is another reason, in my submission, for there necessarily being some broad content in the words “with respect to” in section 167.

CALLINAN J:   You are supported in that by the definition of “information” which is in 126.  “Information”:

means an information laid in the Tribunal in relation to a complaint.

MR LINDSAY:   Yes, thank you.  It was the process of settling the information which occurred on 5 September 1996 to which I have earlier referred.  One of the real difficulties in my friend’s approach to the word “investigation” is:  how do you set limits on it?  If the investigation is as open‑ended as my friend submits it is, one would not take into account, or have no mechanism for taking into account, the rights of absent but interested members of the public.  If one is just dealing with a complaint against a barrister, for example, it may be that it is not a great problem but in the context of solicitors where you are dealing with trust account defalcations and the like, there is a particular interest which goes beyond any identified parties.  It may be, for example, that you simply do not know who are the parties that have to be consulted.

They may not emerge until in response to proceedings in the Tribunal or the court they become aware of difficulties.          One of the difficulties, in my submission, with the approach adopted in Murray was that the idea of there being some quasi-judicial investigation simply did not allow the absent and unidentified parties.

If I may move from the second to the third ground of appeal.  We address that in our written submissions of today, paragraph 6.  In essence, we submit that the Court of Appeal was essentially correct.  My friend’s submissions appear to draw a distinction between fresh allegations which emerge in the course of oral evidence, on the one hand, and other forms of development.  In this particular case the allegations in the amended information arose out of an attempt to test or verify the solicitors, the appellant’s explanations in his statutory declarations, and ‑ ‑ ‑

GLEESON CJ:   What often happens in practice is that it is not until the running of the proceedings before the Tribunal that anybody except the solicitor, himself, really understands what has happened.

MR LINDSAY:   That is right.  In this case, having made inquiries which cast, to put it neutrally, some doubt on the explanations given by the solicitor, the Society, instead of holding it back and dealing with it in terms of cross‑examination, or whatever, brought it forward so that the solicitor could deal with it on notice.  In my submission, that is the very sort of work that section 167A was designed to allow happen.

GAUDRON J:   In any event, I think Mr Brereton conceded it was the subject of a complaint, did he not?

MR LINDSAY:   Yes.

GAUDRON J:   Just that there was not an investigation.

MR LINDSAY:   Yes, but the difference between us there, again, is that what he endeavours to do, having said that, is to characterise that the whole amended information process as merely a complaint, so that he endeavours to subject section 167A to the investigation procedures.  In my submission, section 167A is not so subjected, and by the time we get to that stage we have a regime which enables the Tribunal, being apprised of the case, to deal with what is fair and in the public interest.  Section 167A, itself, deals with those matters.

If we were to subject section 167A to section 138 and 155 there would develop an overlay of procedures which, one assumes, would require at that stage proceedings to be adjourned, submissions to be put to the Commissioner or to the Bar Association or the Law Society and the net effect of that would be that the decision‑making process would be split and the public interest could not be served and, in our submission, that construction of the Act is not justified and simply not required.  I think, your Honours, I have in fact dealt with the points we would seek to make, having put in detailed written submissions.  May I approach, however, the question of relief ‑ ‑ ‑

GLEESON CJ:   Just before you leave section 167A, subsection (2) is important, is it not, in that the requirement that the Tribunal address the question of the reasonableness of varying an information indicates a legislative intention of a fairly wide power of variation, does it not?

MR LINDSAY:   Yes, and, in our submission, that is probably the most effective way of disciplinary proceedings of this nature to be dealt with, otherwise what experience may teach us is that disciplinary proceedings will become lost in a maze of administrative complications which will keep proceedings away from being dealt with in a transparent and public way.

KIRBY J:   These are very general comments because, first, there remains the inherent jurisdiction of the Supreme Court.

MR LINDSAY:   Yes.

KIRBY J:   Secondly, there is power for the Commissioner to extend time, if that is the impediment and, thirdly, it appears to be the purpose of Parliament to introduce due process protections on the basis, presumably, of a feeling that the past procedures did not have enough of them and that was recognised in Walsh.

MR LINDSAY:   And the Tribunal is the ultimate forum where questions of fairness can be weighed and be weighed in a way that is effective. We have made these submissions in our written submissions but the fundamental change, in my submission, in Part 10 as it has evolved does not concern the protections given to practitioners because they have always had protections referable to the right for particulars and the requirements of procedural fairness. The really fundamental change that has taken place in the evolving Part 10 is the involvement of users of legal services and the provision of an entitlement in them to apply for compensation and to apply for external review of a decision not to commence proceedings in the Tribunal. That is the fundamental change.

GAUDRON J:   But are you suggesting that 167A goes so far as to allow a wholly new matter?

MR LINDSAY:    No.

GAUDRON J:   No.  I used matter rather than complaint.  You accept that there must be some relation between ‑ ‑ ‑

MR LINDSAY:    No, I do not accept that.

GAUDRON J:   So it could be some wholly new matter that has not been the subject of complaint?

MR LINDSAY:    That is right.  In practical terms, the way this sometimes emerges is that if there are public disciplinary proceedings on foot against a solicitor, the existence of those proceedings may bring to light somebody else who says, “This particular practitioner is the subject of proceedings; we have a particular experience; we draw it to your attention.”  Now it may have no connection with an initial complaint but, apprised of that information, the professional body concerned, or the Commissioner, may feel disposed or bound to bring it forward.  And, indeed, if you are in a context where questions of fitness to practice are in issue in the Tribunal, you simply, as a prosecuting authority, could not lightly ignore that.  You would have to bring it forward because it would have a bearing on the ultimate question of fitness.

KIRBY J:   There is a way, consistent with the appellant’s theory of the Act, to allow that, and that is to require a fresh complaint, fresh information and then to consolidate or at least run consecutively their different proceedings before the Tribunal so that it can reach an overall view of the matter.  I do take the force of the fact that the ultimate inquiry, the bottom line, is the fitness to practice of the practitioner and that may require consideration of a cumulative effect of a number of matters and not just the one, or one or two of them taken separately.

MR LINDSAY:    I accept that one procedurally might go through that form but, as a matter of jurisdiction, section 167A contemplates that the Tribunal might be able to deal with those sorts of applications.  In my submission, there is no justification for reading section 167A otherwise than very broadly.

KIRBY J:   Except that it appears in an Act - it seems to have been tacked on to an Act which has a high degree of particularity and specificity and it has to be construed to operate in that context.

MR LINDSAY:    Sure, and the Tribunal, after all is said and done, is a statutory tribunal, the powers of which have to be found in the limits of the legislation.  I accept that.  But the words are large and the drift of the amendments, in this context certainly, has been towards ensuring that the Tribunal has greater, rather than less, flexibility.

GLEESON CJ:   Mr Lindsay, does any question of amending a complaint arise or varying a complaint arise under this legislation?

MR LINDSAY:   At the relevant time there was a rule, I think Rule 12, from memory, which provided that an information might be amended.

GLEESON CJ:   No, complaint.

MR LINDSAY:   Or a complaint, I am sorry.

GLEESON CJ:   What I had in mind is this:  many complaints against legal practitioners are made by people acting without any kind of legal advice or assistance in making the complaint and they make their complaint either to the Law Society or to the Commissioner.

MR LINDSAY:   Yes.

GLEESON CJ:   It may be that the Law Society or the Commissioner would have officers, part of whose duties it is to assist people in formulating complaints, but even then the people might not know all the relevant facts, so the possibility that an information, when it is ultimately particularised, will be expressed in a manner quite different from the original grievance, if I can use that word, brought forward by the lay client seems to me to be a fairly high possibility, in practice.

MR LINDSAY:   Yes.

GLEESON CJ:   Now, how does the Act cover that?

MR LINDSAY:   In two ways, perhaps - one express, one not.  In so far as it is express at all, it is in the words “with respect to” in section 167 having a broad ambit.  In practice what might happen is that if a complaint is made which, for want of a better expression, is inelegant but certainly raises questions, experience suggests that that may be reformulated as a complaint by one of the professional bodies, which complaint then goes forward.  So that would be the other way, but one does not find that in the terms of the legislation as such.

CALLINAN J:   Mr Lindsay, the word “allegations” in section 167A, you really ask us to equate it, if you are looking for an analogy, with “count”.  You say if these were criminal proceedings there would be a number of counts, perhaps, against the accused person, the practitioner, and you say “allegations” is wide enough to be equated with “counts”, because it does not use, for example, the word “particulars”.

MR LINDSAY:   Yes.  Certainly, that may be one way of looking at it.  A number of the concepts we have to deal with here are ultimately not the subject of any precise definition.
‘
CALLINAN J:   Is that right?  I mean, the ultimate charges are unsatisfactory conduct or the like, is that right?  There are various expressions of that kind used.

MR LINDSAY:  The findings which give rise to disciplinary orders in the context of the Tribunal have to be findings of either professional misconduct or unsatisfactory professional misconduct as defined.

CALLINAN J:   And that is what the information alleged, did it not, unsatisfactory or professional misconduct?

MR LINDSAY:   Yes, those are the touchstones, yes.

CALLINAN J:   Then particulars of that are given, is that right?

MR LINDSAY:   Yes.

CALLINAN J:   I am just interested in why the word “allegation” is used. Perhaps a more precise word might have been used, I would thought.

MR LINDSAY:   The reason why the word “allegation” was introduced in section 167A and also in section 167(2) was to get away from the complaint itself being the precise subject matter of the ‑ ‑ ‑

CALLINAN J:   But that is interesting because the information must still be, according to 167(1), “with respect to a complaint”.

MR LINDSAY:   Yes, “with respect to a complaint”, but the previous terminology, I think, in section 167(2) was that the Tribunal is to conduct a hearing into which “complaint” ‑ ‑ ‑

CALLINAN J:   But if the proceedings must be with respect to a complaint, then the information must also be with respect to a complaint.  Do you accept that?

MR LINDSAY:   Yes.

CALLINAN J:   If the information is with respect to a complaint, then would not the allegations, including any additional allegations, also have to be with respect to the complaint, because what is sought to be varied is the information and if you go back, the information has to be related to the complaint?

MR LINDSAY:   The words “with respect to a complaint” appear in section 167.

CALLINAN J:   Yes.

MR LINDSAY:   They do not appear in section 167A.

CALLINAN J:   But they do not have to because the information that is laid is an information pursuant to 167(1) and the information is the proceedings and the proceedings must be instituted with respect to the complaint.

MR LINDSAY:   In respect of section 167A, the word “allegations” is not so confined, and it would defeat the purpose of section 167A.

CALLINAN J:   No, not necessarily at all, because you might find that some allegations on closer examination are irrelevant or that other allegations which are with respect to the complaint would more precisely particularise it.  I do not know, I am just suggesting that perhaps it is all governed by the words “with respect to” in 167(1) and that is “with respect to a complaint”.

MR LINDSAY:   In my submission, no, because the object of section 167A was to deal with new developments and new developments may come from any quarter.

CALLINAN J:   You tell us that.  You may know that, but we have to look at 167 itself and it is the information that contains the allegations and the information, the extent of it may be governed by 167(1), on one possible view of it.

MR LINDSAY:   The submissions we make at that level in that analytical way is that there is nothing in section 167A which is tied in with section 167.

CALLINAN J:   There is because it is a variation of the information, and the information is referred to in 167(1).  The information is the proceedings, and the proceedings are with respect to the complaint.

MR LINDSAY:   But section 167A expressly contemplates the possibility, without any relevant limit, of including “additional allegations”.  That jurisdiction then is to be exercised by reference to what is reasonable and what is fair in all the circumstances.

CALLINAN J:   You may be right, but it is additional allegations to vary the information, and if it is governed by 167(1) that may be an answer to your argument.  That is all I am suggesting.

KIRBY J:   This exchange with Justice Callinan really points out the interpretive problem that is presented by 167.  Is it to be construed in the context of the Act and the highly delicate scheme into which it has been put, or is it to be construed as something which was tacked on afterwards because it was considered that the Act was unduly rigid and that there was a need to arm the Tribunal, but only on an application of the Council and the Commissioner on the footing that that would be a responsible application to extend beyond that which had initiated and triggered the proceedings?  It is really a nice question of how it is intended to work in the context of the Act.  I think Mr Brereton said that there was nothing in the second reading speech or any other material that advances the resolution of that question.  Is there anything you can point to, apart from the language and the scheme of the Act?

MR LINDSAY:   In the context of the amendments to section 167A?  My friend took you to the Attorney‑General’s ‑ ‑ ‑

KIRBY J:   Does that favour you or favour him?

MR LINDSAY:   We would say it very clearly favours us because ‑ ‑ ‑

KIRBY J:   Mr Brereton points at you and that rather indicates he agrees and favours you, but he says it misfired; it did not achieve that object because it was not clear enough.

MR LINDSAY:   Can I say, he would, would he not?

KIRBY J:   That is his duty.

MR LINDSAY:   If you go to my friend’s bundle, the last tab to that bundle has the second reading speech of the Attorney‑General on 24 October 1996.  At the bottom of the first column and at the top of the second column there are references to what became section 167A. 

KIRBY J:   Which page is this, I am sorry?

MR LINDSAY:   On page 5317.  I think so far as the material goes, that is the substance of the extrinsic material.

CALLINAN J:   I see the words “same transaction” are used there which might tend to suggest a limitation:

or may omit other issues arising from the same transaction that should be brought to attention.

MR LINDSAY:   The Attorney was there considering the then form of section 167(2), and it was that constraint that they were seeking to break out of, if I can put it that way, by the amendments.

GLEESON CJ:   It is the precise example which the Attorney‑General gives of how this is intended to operate that you rely on, I presume?

MR LINDSAY:   Yes.

GLEESON CJ:   The example given in the first complete paragraph in the right-hand column on 5317.

MR LINDSAY:   Yes, that is right.

KIRBY J:   Except that that is, in a sense, as Justice Callinan was saying, is it not, tied into the complaint that is already before the Tribunal as distinct from something entirely extraneous, something completely new, something that has just come up out of the blue, as a result of the – or perhaps as a consequence, not a result of the initiation of the proceedings.

MR LINDSAY:   Perhaps so.

KIRBY J:   Just coincidentally.

MR LINDSAY:   The question of misleading evidence may be evidence on any topic.  It may be, and it is not beyond experience, that what is said to be misleading is something that emerges on credit.

GLEESON CJ:   It looks as though this amendment was made at the suggestion of the Tribunal itself.

MR LINDSAY:   We have endeavoured to pursue that and in our written submissions of 27 August the best we could do appears in the schedule to the written submissions, page 23.  There is an extract there from the decision of the Legal Professional Disciplinary Tribunal in the matter of Attorney-General v Gouder.  There is an element of speculation necessarily in it but that is the best we can do as to the decision that the Attorney was referring to and that certainly suggests that there needed to be some amendment to the legislation to get away from the straitjacket of badly drafted complaints.

GLEESON CJ:   It is not just a question of badly drafted complaints, it is complaints based on a misunderstanding.

MR LINDSAY:   Yes.

GLEESON CJ:   A lot of these complaints will arise out of circumstances which are imperfectly or incompletely understood by anybody except the solicitor himself.

MR LINDSAY:   Yes.  I accept that.  Gouder’s Case in turn referred to another case which is extracted as best we can.  If the Court requires or would be assisted by full copies of those we will make them available.

KIRBY J:   Could you just help me?  This is my imperfect understanding at this stage of the facts.  This point of enlargement of the matter already proceeding would not be an answer to the first point argued by Mr Brereton, would it?  That strikes fundamentally at the proceeding in the Tribunal.  It cannot be resuscitated by 167A?

MR LINDSAY:   If there is nothing for section 167A to operate on, then that is correct.  That brings us perhaps to the written submissions we put in today which provide our overview of what we see happening.  At pages 5 and 6 in paragraph 7 there is a summary.  We submit that if the appellant is to restrain the whole proceedings, he must succeed on his investigation point.  If he fails on that point but succeeds on his section 138 point, then two things.  First of all, on any view of the submissions put by the appellant, there is at least some part of the proceedings in the Tribunal left.  In those circumstances the order of 1 August 1997 would operate under section 167A to authorise the proceedings unless my friend succeeds on subjecting section 167A to the investigation point.  In my submission, that should not occur.

GLEESON CJ:   What do you say is the minimum content of the investigation mandated by section 148?

MR LINDSAY:   We submit that the Act requires no more than a bona fide examination of a complaint, in this case by the Council, to satisfy itself that there is some foundation for it.  It could do that without any subsequent communication with the practitioner concerned and in this particular case it is one of the ironies perhaps of the way the proceedings unfolded.  In this particular case the Council had before it at all relevant times, on the three occasions, the benefit of submissions that had been made by the solicitors over a prolonged period.  The complaint is that, having resolved to proceed with a formal complaint, to use a neutral expression, that they did not go back to the solicitors before moving on.  So this is ‑ ‑ ‑

GLEESON CJ:   What scope does that give for the fulfilment by the Commissioner of his duty to monitor investigations under section 149?  If you are right, depending on the circumstances of a case, the Council could adequately investigate a complaint by first of all initiating the complaint, then reflecting either at length or briefly upon what it knew about the matter and then resolving to lay an information.  What scope for monitoring by the Commissioner would there be in a case like that?

MR LINDSAY:   If I may define the problem by submitting that it would not necessarily be the case at all.  Cases would involve that minimum standard and so there would be ample justification in that broadest sphere, but looking at the minimum question, at the very least, by the legislation the Commissioner is apprised of the existence of the complaint and in the situation that we are presently discussing he would also be apprised of the institution of proceedings in the Tribunal.  Under section 169 of the Act the Commissioner has a right of appearance in the Tribunal, so if he had any submissions to make he could, in that sense ‑ ‑ ‑

GLEESON CJ:   Did the Commissioner know anything about this matter before he was informed that an information had been laid?

MR LINDSAY:   The answer is, “Yes”.  The evidence on that is at the end of Mr Barton’s affidavit, volume 1 of the appeal books at pages 138 and 139, so that he was kept informed of the proceedings.

CALLINAN J:   Mr Lindsay, could I suggest to you that the Council might need to do a little bit more than you said, having regard to section 155(2) and (3).  There has to be a view formed as to the reasonable likelihood of a finding against the solicitor and, of course, the Commissioner has an interest in that deliberation because he might think that the decision falls short of what it should be.

MR LINDSAY:   In that particular context, and this gets back to the work that section 155 does, what we submit is that the ultimate work that section 155 does is to provide a disappointed lay complainant with a right of review.

CALLINAN J:   But it also imposes a pretty clear obligation on the Council and the Commissioner not to be perfunctory about the matter in any way at all.

MR LINDSAY:   No, I am not suggesting that ‑ ‑ ‑

CALLINAN J:   No, but you suggested that all that was needed was some kind of a bona fide view that there was a ground for the complaint.  It is more than that that is required.

MR LINDSAY:   They need to examine the complaint and satisfy themselves that it has foundation.

CALLINAN J:   No, that there is a reasonable likelihood that the practitioner will be found guilty.

MR LINDSAY:    They need to address that, and in this case they did.  There is no basis, in our submission, on the evidence for suggesting in respect of any of the three meetings that they did anything other than that.

CALLINAN J:   No, but a reasonable likelihood suggests considerably more than some kind of a perfunctory consideration.

MR LINDSAY:   In this particular case, from the minutes in each case, supplemented by very detailed reports that the Council or the committee had before it, was ‑ ‑ ‑

CALLINAN J:   I am talking about construction of the Act, not about this case.

MR LINDSAY:    On the question of construction, one of the differences between us and the appellant is really in the context of section 155(3).  The Court of Appeal in Murray’s Case said that one had to apply natural justice and have a quasi‑judicial inquiry to protect the practitioner or the practitioner’s interest under section 155.  We submit that that is not the work of section 155, but section 155 is directed primarily to the rights of the lay complainant and there is no right in the practitioner to insist on a quasi‑judicial inquiry at that stage.

CALLINAN J:   But they are not inconsistent considerations.

MR LINDSAY:   They may not be.

CALLINAN J:   No, they are not, are they?

MR LINDSAY:   No.  In this case the Council of the Law Society had the primary material before it, it expressed the opinion that subsection (2) applied.  So they obviously considered that and they had some foundation for doing it.

KIRBY J:   In your submission, do we have to deal with the Murray principle in this case?  It would obviously be undesirable that we do so, given that we are on notice of the application.

MR LINDSAY:   It depends on what one means by the Murray principle.  Certainly the Court has to consider the content of an investigation.  Murray goes beyond that, I think.

McHUGH J:   I am not sure about that.  I have been thinking since this morning that, on one view of the case, it may turn on whether or not Murray is correctly decided.  If Murray is correctly decided, it seems to me your position is pretty hopeless.

MR LINDSAY:   The question that arises in both sets of proceedings is, what is the content of the concept of investigation, and certainly that did arise in Murray and we put submissions below, we put submissions here which are inconsistent with what the Court of Appeal found in Murray.

McHUGH J:   Yes.

KIRBY J:   It seems a bit unfortunate that Murray is meandering in an amazing motion so slowly to the Court, instead of being before us so that these two issues can be dealt with at the one time.  However, we are in the hands of the convenience of the parties, I gather.

MR LINDSAY:   Yes.  I am not one of those, I might add.  If I may just deal with the question of the remitter, whatever it is.  It is obviously ultimately a matter for the Court as to what course is adopted, but before the proceedings can ultimately go back to the Tribunal in any useful way, we have to address not only what happens in the Barwick proceedings, but also what happens as a consequence of the reasoning process in the Dechnicz proceedings, because the two sets of Tribunal proceedings are being heard together.  That is just a factor which needs to be taken into account.  But at the end of the day, it is a matter for your Honours and we will abide with whatever decision is made on that point.

GLEESON CJ:   Thank you, Mr Lindsay.

MR LINDSAY:   Thank you.

GLEESON CJ:   Yes, Mr Brereton.

KIRBY J:   Do you say we have to deal with the Murray holding?  In other words, has Justice Sheller fallen into an – he wrote both principal judgments ‑ the only judgment in this case, the principal judgment in Murray.  It is unlikely that he would not have had this case in mind when he wrote Murray.  I have not read Murray yet.

MR BRERETON:   This case was case was expressly cited to the Court of Appeal in Murray and relied on for the proposition in this case that was found in our favour, namely that section 155 conferred important protections on the legal practitioner, and that proposition was built on in Murray to found the argument that those protections ‑ ‑ ‑

McHUGH J:   It seems to me at the moment, Mr Brereton, that we do not have to decide whether Murray is correctly decided for you to win, but that we cannot reject your appeal without deciding whether Murray was correctly decided, either.

MR BRERETON:   That, in my submission, is precisely correct, your Honour.

McHUGH J:   Yes.

MR BRERETON:   That to down me, in the vernacular, the Court has to hold that Murray was wrongly decided.

KIRBY J:   But is that not a reason for advancing the application to see whether Murray gets special leave?

MR BRERETON:   With the greatest respect, if the Court were to take ‑ ‑ ‑

KIRBY J:   You see, otherwise you have it both ways.  You dangled Murray before us as an obstacle, but you do not rush to have that obstacle removed, if removed it will be.

MR BRERETON:   If I can start from the beginning.  There is yet another related case which started and was heard before Murray’s Case which is Mr Carson’s Case.  Mr Carson’s Case is being reserved for ever, partly because her Honour is told from time to time, “Well, Barwick is being heard in the Court of Appeal, Barwick is going to the High Court, Murray is being heard in the Court of Appeal, there is now a special leave application in Murray”.  If we wait for each other case which has some bearing on the construction of this Act to be determined, then no question will ever be determined if taken to its absurd limits.  So, with respect, this Court has to decide this case on the material as it stands and not wait for another case to come up to it.

I propose to deal at this stage, albeit briefly, with the Murray point in order to support shortly the reasoning in Murray and to show why it was correctly decided on the cross‑appeal.  There are a number of reasons why the rules of natural justice or procedural fairness attend to the section 155 decision.  They may be summarised as follows.  First, there are statutory indicia in the Act to that effect.  The decision under section 155 is a formal decision which must be recorded under section 156 and for which reasons must be recorded also under section 156 and given to those affected under section 171J.  As I said this morning, in Kioa v West this Court reached a decision inconsistent with its earlier decision in Salemi v MacKellar under the Immigration Act in respect of the same provision simply because it was then or later attended by a duty to give reasons, whereas previously it was not.  So the requirement to give reasons in respect of the section 155 decision is a very important indication.

Secondly, the section 155 decision has potentially very important consequences for the legal practitioner.  The complaint may be dismissed or he or she may suffer merely a reprimand, but even a mere reprimand which is consented to is still a punishment, so it involves the potential imposition of a punishment.  It would be extraordinary if that could be done without according natural justice.

More importantly, subsection (3) provides for the dismissal of proceedings notwithstanding that there might be unsatisfactory professional conduct if the Commissioner is satisfied that the practitioner essentially is otherwise of good form.  It is impossible to see how section 155(3) could work if the practitioner were not to have an opportunity to put before the Commissioner evidence of his or her past good form and absence of other adverse matters, so section 155(3) assumes some sort of opportunity to be heard.

Next, so far as the consequences are concerned, the consequences depend upon the attainment by the Commissioner or the Council of a particular state of satisfaction which is an assessment of the likelihood of the outcome of the proceedings in the Tribunal.  That is the same test that a committing magistrate applies under section 41(6) of the Justices Act.

McHUGH J:   In years gone long ago when natural justice was not as refined as it is now the words “if a body was satisfied” was always regarded as almost a talisman of a requirement of natural justice.

MR BRERETON:   And it is impossible to see, with respect, your Honour, building on that how one could be satisfied of the likelihood of an outcome of proceedings without knowing something about what the solicitor was going to say.  How can one be satisfied as to what the outcome of the proceedings are going to be without, at least, ascertaining what the defence is going to be?

KIRBY J:   This is at the point of the Society, not of the Tribunal?

MR BRERETON:   Yes, your Honour.

KIRBY J:   And this is at the point of investigation, not determination and the common law, at least, has held out against imposing the natural justice obligations on police and other official investigators.  Why should it be different in the case of the Society?

MR BRERETON:   First of all, because it is a formal decision.  This is not just a process leading to the institution of proceedings.  Section 155 is a formal decision.  Secondly, because as I have just been illustrating, that decision itself involves potentially imposing a penalty of reprimand or dismissing the complaint, which is an opportunity for the practitioner to avoid public disciplinary proceedings and an opportunity which may be lost if he or she does not have the right to make submissions, and it involves the opportunity to avoid going further if he or she can satisfy the Commissioner that he is otherwise of good character, in short, which bespeaks an opportunity to put forward material to that effect.  So, first there was statutory indicia in 155, 156, 171J. 

Secondly, the consequences of the decision are such that it is one which would typically attract the principles of natural justice.  Thirdly, extrinsic evidence, and I have already referred to passages in the Law Reform Commission Report, suggest that there was no intention to reduce the degree of procedural fairness hitherto afforded to legal practitioners, and an intent that there be a parallel construct of fairness both to complainants and to legal practitioners.  I pointed earlier today to section 124(e).  It expressly directs that complainants are to have a right to rebut statements made by a legal practitioner about a complaint.  It simply assumes that the legal practitioner will be able to make those statements.  Particular passages which are relevant in the Law Reform Commission Report are paragraphs 3.5, 3.53 to 3.57 and 4.130 and following. 

Fourthly, in Murray’s Case, which your Honours will find behind the first tab in our bundle, there was also reliance on a legitimate expectation arising not just from the Act but from practice in New South Wales coupled with the particular facts of the case.

There was evidence before the court from Mr Bret Walker of Senior Counsel, by affidavit, that it was the invariable practice of the Bar Council and its professional conduct committees to afford a barrister an opportunity to be heard in respect of a complaint before making a decision, both before and after the institution, or the amendment, of the Legal Profession Reform Act.

McHUGH J:   The Court of Appeal denied that in Evatt’s Case, did it not, back in 67 State Reports?

MR BRERETON:   It did, and it was essentially in Murray’s Case that overruled that, based on the new procedures introduced by this Act and the importance of the 155 decision.  I will come back to Evatt’s Case in a moment, your Honour.

There was also evidence from Mr David Fairlie, a former president of the Law Society to the same effect about the Law Society’s procedure.  There was evidence from my instructing solicitor in this case, Ms McDougal, to the same effect, before the court in Mr Murray’s case.  There was evidence in the form ‑ ‑ ‑

KIRBY J:   This is cross‑fertilisation.

MR BRERETON:   There is plenty of that in this field at the moment, your Honour.  There was evidence in the form of publications of the Legal Services Commissioner himself, in which he had said that it was his practice on receiving a complaint to refer it to the solicitor for the solicitor’s response.  Very shortly after the institution of the proceedings in Mr Carson’s case it was proved that the Legal Services Commissioner withdrew that publication, and issued a new one which contained no such reference.  But, all of that is before the court in Mr Murray’s case, showing a legitimate expectation arising from the way things had always been done in New South Wales ‑ ‑ ‑

McHUGH J:   Certainly speaking as a former chairman for a number of years of the Ethics Committee of the Bar Association, we always sent the complaint to the practitioner.  That was in the days long before the 87 Act set up the professional committee.

MR BRERETON:   That was the uniform evidence before the court in Murray’s Case and it was supported by the Legal Services Commission’s own practice until he changed his mind, as it turned out, in Mr Carson’s case.

McHUGH J:   In fact, one of the weaknesses of the old procedure was that if the barrister denied the complaint, it was often the end of it.

MR BRERETON:   Yes, and that is why the emphasis on the investigation now that the Law Reform Commission stress.  The fifth point is that the Legal Services Commissioner relied on the cases of Evatt v The Bar Association and Dennis v The Law Society, both Court of Appeal decisions in years gone by in New South Wales, which had denied the application of the rules of natural justice at this stage.  The argument which the Court of Appeal accepted was that the rules of natural justice – it was twofold:  first, that they dealt with an entirely different scheme which did not involve something like section 155, likewise Cornall v AB, a Victorian decision which dealt with a different scheme and held that natural justice did not apply.  But more particularly, the cases relied on in Evatt in particular such as Testro had been overtaken by the advances in the law of natural justice, particularly in cases such as Ainsworth v Criminal Justice Commission in this Court.

KIRBY J:   Mr Brereton, you have been talking with great eloquence and power about the laws of natural justice, but my eyes fell upon the fact that counsel in Murray were yourself for the claimant and Mr Haylen for the opponent.  Might not natural justice require that if we are – and the party is different.  It is the Legal Services Commissioner.  May it be that if we are hearing all these arguments about Murray, and it is, as it were, being determined by us in this case, that natural justice requires that we give Mr Haylen a go?

MR BRERETON:   With respect, the rules of natural justice do not apply to the upholding or overruling of an authority under consideration in these proceedings.

KIRBY J:   But we are on notice that this is an application to this Court.

MR BRERETON:   And that application will be unaffected by what this Court does in this case.  In can still ‑ ‑ ‑

KIRBY J:   Not if this Court were to hold that the decision in Murray was wrong, for example.

MR BRERETON:   If this Court were to hold that the decision in Murray was wrong, Mr Haylen would be very happy and that would assist Mr Haylen’s application for special leave.  I would be the one who would be complaining.

KIRBY J:   Yes, what if it holds that it is right?  Mr Haylen will be very unhappy.  He will not have been heard before we have pronounced.  Anyway, it is just something the Court may have to think about and I just put it to you, seeing you were talking so much about natural justice.

MR BRERETON:   The sixth and final reason why Murray is correctly decided is that one of the arguments put by the Legal Services Commissioner was that in multiple stage proceedings, it is enough if natural justice is afforded at one stage, for example, in the Tribunal and if that happens it is not necessary that it be afforded at an earlier stage.

McHUGH J:   The short answer to that seems to be 156, because the Council not only has to make a record but it has to show its reasons.  It is very much an Air New Zealand v Mahon-type situation.

MR BRERETON:   Exactly, your Honour, and reference might also be made to Rees v Crane (1994) 2 AC 173, an inquiry into a judge which was a multiple stage procedure in which natural justice was required at multiple stages, and Ainsworth v Criminal Justice Commission, in which it was made clear that even where there were multiple stages the question was whether the whole process was fair and that might sometimes require natural justice at more than one stage.  That is what the Court of Appeal upheld here.

McHUGH J:   These 156 records, are they available for the public?  Can they be gathered by inspection?  What is the position?

MR BRERETON:   The answer is that I think they are not immediately available, but there is a problem even with subpoenaing them because the Legal Services Commissioner has a protection under section 171R from producing anything.  I do not know what the practice of the Law Society would be if it was asked to produce them, your Honour.  But what needs to be remembered is 156 operates in tandem with 171J; 171J imposes an obligation to give the reasons to the complainant and to the legal practitioner, so that the reasons must be communicated to the persons affected in any event.  Much more could be said on Murray’s Case but those are the six essential points about it.

May I turn from the cross‑appeal to replying on the appeal. As to the investigation point, the second 148 point, my learned friend suggested, I think, that if what happened on the day on which the relevant resolutions were passed was not sufficient investigation, then regard could also be had to what happened in September 1996 when the form of the information was settled and December 1997 after the proceedings in the Court of Appeal had been instituted when a ratification resolution was purportedly passed. The problem with that is all of that happened after the section 155 decision to institute proceedings and could not have been part of the Part 10 investigation which had to be completed before the section 155 decision.

My learned friend said that in its deliberations, such as they were, the Law Society Council had the benefit of submissions from the solicitors. That may be so but what was before the Law Society was submissions addressed to the inquiries being made, not to the formulated and initiated complaint. The fact that there were submissions available does not affect the circumstance that no Part 10 investigation was conducted.

Thirdly, your Honour the Chief Justice asked was the Commissioner otherwise kept informed of what was going on, and my learned friend referred to the concluding paragraphs of Mr Barton’s affidavit.  What those paragraphs show are two things.  First, that only after the resolution of 8 July 1995 was the Commissioner told that a complaint had been initiated, totally consistently with section 135(2) of the complaint being initiated that day.  All that happened before then was that in accordance with the Society’s ordinary practice, all minutes of meetings of professional conduct committees were forwarded to the Legal Services Commission, so all the Commissioner got was minutes of meetings, apparently the full minutes of meetings of all professional conduct committee meetings.

My learned friend suggested that Murray required a quasi-judicial investigation.  Those words do not appear in the judgment.  My learned friend says they do and I stand to be corrected.  So far as I am aware they do not but what the court held was that two things were required, that the practitioner be given a copy of the complaint, that he or she would see a copy of the complaint and an opportunity to be heard.  Now, whether that opportunity to be heard would be oral or written was not addressed.  The content that the Court of Appeal spoke of was a right to see the complaint, which Mr Murray was denied, and an opportunity to make submissions in respect of it.

If I can turn then to the section 138 point, my learned friend said that so far as he could recall, though he stood to be corrected, it was never proposed that the Legal Services Commissioner stand between the Society and the Tribunal.  My learned friend ought to be corrected because in the first Bill introduced into Parliament the complaint of the Law Society was to be made to the Legal Services Commissioner and the Law Society did not, under the first Bill, have the power to investigate its own complaints without making the complaint to the Legal Services Commissioner and the Legal Services Commissioner then referring it, if he chose to do so.  The second Bill modified that.

My learned friend put that a complaint for the purposes of section 167 was not limited to a complaint brought in time.  If that be so, then section 138 is a farce.  If a complaint can be the subject of an information under section 167, although section 138 provides that it is not made in time, it would render section 138 a completely pointless piece of writing.  Section 167 is not to be seen in isolation as the source of the Tribunal’s jurisdiction.  It provides for the institution of proceedings in the Tribunal but it contains in its own terms provisions such as “with respect to a complaint” and “in accordance with this part” which make clear that it is part of an overall scheme and not an isolated font of jurisdiction standing on its own.

My learned friend suggested that the words “in accordance with this part” in section 167 refer back to section 166 only.  The expression “in accordance with this Part” connotes the Act and not delegated legislation made under the Act.  Section 166 says nothing in its own terms about the institution of proceedings.  It simply authorises the making of rules.  Plainly, in my submission, 167 relates back to 155 which does make provision for the institution of proceedings. 

There was some discussion as to why an information was required at all.  There is some analogy – but I accept that it is not perfect – between a summons or information on the one hand, and an indictment on the other in criminal proceedings, and the complaint and the information, but I accept that the reason for requiring an information is essentially that advanced by your Honour the Chief Justice.

What section 167 recognises is that the complaint will contain the substance of a grievance.  The information will contain its refined expression for the purposes of the formal disciplinary proceedings in the Tribunal.  But, the substance of the information must still be found in the original complaint, although it will no doubt be expressed in more articulate and precise and refined terms.  The form may be different but the substance must be the same.

That leads into the section 167A point.  The argument on this appears, with the greatest respect, to have gone off slightly on a tangent, and it is no doubt my fault for not making it clear, initially, its real import.  The real import is the submission that the out‑of‑time grounds cannot be saved by adding them under section 167A.  We have not complained in these proceedings about ‑ ‑ ‑

GLEESON CJ:   Well, that is really a very narrow point.  The resolution of that point does not require a decision as to the general question of the degree of departure permissible between the amended information and the original information.

MR BRERETON:   That is so, your Honour.  The real point for these proceedings is that it cannot save the out‑of‑time grounds.  We have not complained in these proceedings, either below or here, about the addition of ground 5(b) because that can be supported in various different ways.  So that wider issue about section 160A, as your Honour the Chief Justice rightly says, does not need to be resolved in these proceedings.

Your Honour Justice Callinan referred to, in argument with my learned friend, the term “in respect of a complaint” in section 167.  Again, may I add that that is fortified by the continuing reference to that terminology in section 171C, D, E and F, where the ultimate determination must be of a complaint.

Your Honour drew the analogy with counts in an indictment.  In short, so far as the wider operation of 167A might be relevant, if there were an additional count, for want of a better word, which arose out of the same conduct, then that would be with respect to the complaint.  It would reflect the same substantive grievance though expressed differently, but if it arose out of conduct which had never been the subject of a complaint, then it would not be in respect of a complaint.  For example, in a criminal matter, if the same conduct were alleged to amount to an assault, a sexual assault, an aggravated assault and the like, they would all be counts arising out of the same conduct.  But if it related to some different act on a different day, they would not.  Those are the matters I wish to put in reply.

GLEESON CJ:   Thank you, Mr Brereton.

MR LINDSAY:   There are just two matters, very briefly.  Your Honour Justice McHugh asked about the availability of a section 156 record.

KIRBY J:   Could you speak into the microphone, please?  I cannot hear you.

MR LINDSAY:   I am sorry.  Your Honour asked about the availability of a section 156 record.  The answer is it is not available to the public and the answer is to be found in section 171P.

McHUGH J:   No disclosure.

MR LINDSAY:   Yes, it cannot be disclosed.

McHUGH J:   No.

MR LINDSAY:   And we say the work done by section 156 is to be found in section 158 which provides for the review for a consumer.  The only other point is that the reference to quasi-judicial proceedings in Murray is in paragraph 96.

GLEESON CJ:   Thank you.  We will reserve our decision in this matter.  The Court will adjourn until 10.15 on Tuesday.

AT 4.01 PM THE MATTER WAS ADJOURNED