Barwick v Law Society of NSW

[1999] HCATrans 10

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S105 of 1998

B e t w e e n -

ROSS GARFIELD BARWICK

Applicant

and

LAW SOCIETY OF NEW SOUTH WALES

First Respondent

LEGAL SERVICES TRIBUNAL

Second Respondent

ROMAN ALEXANDER DECHNICZ

Third Respondent

Application for special leave to appeal

GAUDRON J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 FEBRUARY 1999, AT 12.39 PM

Copyright in the High Court of Australia

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

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

GAUDRON J:   Thank you.  I hold a certificate from the Deputy Registrar who certifies that she has been informed that the second respondent to this application does not wish to be represented at the hearing and will submit to any order of the Court save as to costs.

Yes, Mr Brereton.

MR BRERETON:   May it please the Court, in Taylor v South Brisbane Regional Health Authority Justice McHugh pointed out that the extension of a limitation period involved the imposition of a defendant of a new liability whose potential liability had expired with the expiration of the original limitation period.

The Law Society’s argument on this application, that even if the Court of Appeal was wrong no injustice is occasioned to Mr Barwick by its decision, overlooks that to hold him exposed to a charge of misconduct from which he was otherwise prima facie protected by the Act and by expiry of time is indeed a serious invasion of his rights.

GAUDRON J:   If that be correct, you had better concentrate on whether or not the decision is wrong.

MR BRERETON:   And I shall come directly to that.  Part 10 of the Act establishes a two-stage process for the investigation and determination of complaints of misconduct against legal practitioners.  The relevant provisions are set out in the judgment of Mr Justice Sheller at pages 45 to 48 of the application book.  The first of those two stages involves a complaint, the investigation of that complaint and the determination on the complaint of whether further proceedings should be instituted.  As to the complaint itself, a complaint may be made under section 134 by any person, under section 135 by the relevant professional Council, and under section 136 by the Legal Services Commissioner.

GAUDRON J:   A complaint may be made in one case, though, may it not, and initiated in another?

MR BRERETON:   That is the nub of one of the points and I shall ‑ ‑ ‑

GAUDRON J:   Yes, and the language is specific, is it not?

MR BRERETON:   With respect not, your Honour, and if I can I will come to that in just a moment.  That process of investigation culminates in a determination under section 155 as to whether or not proceedings should be instituted in the Tribunal and that determination depends on the fulfilment of certain states of satisfaction as to whether or not there is likely to be a finding of guilt in the Tribunal.

The second stage of the process involves the institution of proceedings in the disciplinary tribunal or, now, the Administrative Decisions Tribunal, by an information filed under section 167, a hearing into the allegations in that information by the Tribunal and the determination by the Tribunal. 

In its construction of those provisions the Court of Appeal made three errors.  Each of those errors does not depend on anything peculiar about the facts of this case.  Each of them impacts on other pending proceedings in the Tribunal and will undoubtedly impact on future proceedings in the Tribunal.  Indeed, the three taken together probably impact on most present and future proceedings in the Tribunal. 

The first of those errors concerns the limitation provision, section 138.  The Court of Appeal held that that limitation provision, limiting to three years from the relevant conduct the making of a complaint, applied only to complaints made by any person under section 134 and not to complaints initiated by a Council or Commissioner under 135 or 136.  As your Honour has foreshadowed, the Court of Appeal found support for that in the use of the word “initiated” in section 135 and 136, as distinct from “made” in 134 and 138.

But the arguments against that, in my submission, are overwhelming.  First of all, “made” is used elsewhere in Part 10 of the Act in a context in which it can only include complaints by the Commissioner and the Council, as well as complaints by any person.  Mr Justice Sheller referred to one instance of that at application book page 56 where his Honour noted the definition of “complaint” as being a complaint made for the purposes of Part 10.  As his Honour said, the claimant’s construction – and this is page 56 line 25:

finds some support in the definition of complaint…..as…..“a complaint made under Division 3” –

That only makes sense, and the whole Act only works, if that definition includes a complaint by the Commissioner and the Council as well as a complaint by any person.

Secondly, and perhaps most strikingly of all, section 171J, which is not reproduced in terms in the judgment below but which is referred to by his Honour, expressly uses the word “made” in conjunction with complaints by the Commissioner and Council.  Section 171J(3) provides that:

A notice to a complainant -

of the decision –

is not required under this section if the complaint was made by the Commissioner or Council.

In those circumstances, one cannot extract from the statute a parliamentary intention that “made” was used for one category of complaints and “initiated” for another.

Further support for that is to be found from the marginal notes.  The marginal notes may not be part of the Act but regard can be had to them under the Interpretation Act in the event of ambiguity.  The marginal notes to the sections in question, 134 and following, speak of complaints made.  First of all 134,  by “any person”, “134 Right to make complaint”, then “135  Complaints made by or to Councils”, “136 Complaints made by Commissioner”.  So the marginal notes and other indications in the statute itself, in my submission, have the result that one cannot divine from the statute an intention to use “made” in a sense which excludes “initiated”.

Further support for that view is derived from extrinsic material referred to by Mr Justice Sheller at page 54 of the application book.  At line 20 his Honour shows that in the bill the equivalent section provided for a six year period and in subsection (2) provided that:

This section does not apply to a complaint about professional misconduct made by the Commissioner or a Council.

Subsequently, and in the second reading speech, which is extracted at the top of page 54, the Attorney-General on introducing the bill said:

New section 138 –

which replaced the previous draft 139 –

provides that complaints must be brought within three years of the conduct…..a reduction from the current six year period but it has been provided that the Commissioner may allow a complaint out of time where it is just and fair to do so –

The equivalent of 139(2) excluding a complaint by the Commissioner or a Council was not included in the ultimate form of the Act as adopted.

Finally, on this point, the policy of the Act, clearly enough from section 138, is that complaints should be brought promptly.  Where, as the second ready speech indicates, the ability is provided in section 138(2) for an extension of time in an appropriate case there is no reason for the Law Society to be in any different position from anyone else.  That is the first error and the reasons why the Court of Appeal was wrong on that.

Secondly, while the Court of Appeal accepted that the process of investigation culminating in the decision under section 155 was an important protection for the legal practitioner, Mr Justice Sheller said so at page 60, the court also held that that investigation could be commenced and even concluded before the complaint was made or initiated.  The problem with that is that section 148, which Mr Justice Sheller sets out at page 47 of the report, provides by subsection (1), line 40:

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

In other words, what is required is an investigation into a complaint referred or initiated, not an investigation into conduct.  Yet at page 62 Mr Justice Sheller, with the concurrence of the other members of the court, said at line 27:

Ordinarily one would expect the investigation to be begun before the complaint was initiated and no doubt in many cases completed. 

If that be so, one can have an investigation into something that does not exist.  One cannot investigate a complaint before it exists.  There is a very good reason ‑ ‑ ‑

GAUDRON J:   But I wonder if this “investigate the complaint” really means any more than a check to see that it is bona fide and that it relates to a matter which is capable of being, what I will call compendiously, a breach of professional conduct.

MR BRERETON:   With respect, plainly not, your Honour.  The amendments to the legislation which the present Act reflects were introduced following an inquiry by the Law Reform Commission of New South Wales.  The report of the Commission played great stress on the importance of the rigorous investigation of complaints to ascertain whether there was material supporting them and the like and the Act, with its emphasis on investigation, reflected the report.

The investigation culminates in an important decision under section 155.  Section 155 requires the Society to make the same sort of decision as a committing magistrate makes.  If the Society reaches a certain state of satisfaction about the likelihood of guilt, it must institute proceedings in the Tribunal.  If it reaches the satisfaction that there is no reasonable likelihood of guilt, it must dismiss the proceedings.  And there are other alternatives open to it.  But the reason why the investigation is so important is that the section 155 decision requires the testing of the evidence gathered against the terms of the complaint for the purpose of making the decision under section 155, and the formality of that decision is emphasised by section 156 which requires it to be formally recorded and by section 171J which requires it, and reasons, to be notified to the parties.

Now, on the facts of this case, there just could not have been an investigation in respect of what has been called the second complaint because the Law Society’s decision to initiate the second complaint and its decision to institute proceedings in the Tribunal was made as part and parcel of the one resolution of the Society.  So there was no space for anything to happen between the two decisions.  For those reasons, in my submission, to hold that there can be an investigation under section 148 before the complaint has been made holds that there can be an investigation into something which does not exist and is manifestly wrong.

The third error concerns section 167A.  The Court of Appeal allowed that an information under 167 must be with respect to a complaint and cannot go beyond the allegations in the complaint.  Section 167A unquestionably allows the omission of allegations and the addition of allegations.  The question is whether allegations can be added which are unrelated to the original complaint and which have not been the subject of a complaint and which have not been investigated.  The Court of Appeal held that they could.  In my submission, a very powerful indication that they cannot is to be found in sections 171C and D which deal with the decisions or determinations of the Tribunal after a hearing.  In 171C it will be seen that a Tribunal, “after it has completed a hearing relating to a complaint against a legal practitioner” may do various things, and 171D, “if, after it has completed a hearing relating to a complaint” can make certain compensation orders.

In other words, the hearing must still relate to a complaint and although the information may include additional allegations, they must still relate to the conduct the subject of the original complaint, although they may be additional particulars of it.

It is quite clear from the Attorney’s second reading speech on the amendments which introduced section 167A in 1996 that what was intended was to accommodate the decision of this Court in Smith v The Bar Association and to allow allegations against the legal practitioner arising out of the investigation and the hearing to be added to the same complaint.  That, clearly enough, has a sufficient nexus to the original complaint to still be related to that complaint.  But the addition of new allegations of quite separate alleged misconduct, which could not have been the subject of a complaint because they were not within time, is not authorised.  In my submission, if the Court of Appeal is right on this point, then the important protections conferred on a legal practitioner by sections 138 and 148 and 155 are writ in water. 

For those reasons, there are three important errors of principle in the Court of Appeal judgment.  Against those matters, the Law Society says in its argument, essentially, that special leave should be refused for three main reasons.  The first of those, it is said, is that there is no injustice to Mr Barwick.  It is said he does not complain of procedural unfairness, but the absence of a complaint of want of procedural fairness is not equivalent to an absence of substantive injustice.  If the construction for which I contend is correct, then a very large part of the complaints against Mr Barwick are out of time and barred, unless the Commissioner makes a decision to accept them out of time.  So the injustice to Mr Barwick in that respect is, first, that he is exposed to allegations of misconduct, from which he is prima facie protected, without the procedure for extending the time for the complaint having been invoked. 

Secondly, he is denied the opportunity of arguing that an extension of time should not be granted.  Thirdly, he has lost the opportunity – the protection, I should say, afforded by the requirement for a proper investigation after the complaint is made.  Fourthly, he is denied the opportunity that after a proper investigation the Law Society might have made a favourable decision to him under section 155 and the denial of each of those opportunities is a matter not of procedural unfairness but of substantive injustice to Mr Barwick.

The second reason it is said that special leave should be refused is that the Law Society can do what it wants to anyway by invoking the inherent jurisdiction of the Supreme Court rather than proceeding under the Act in the Tribunal.  If that be so, so be it.  But the reason or the fact that the Law Society, if it be minded to, can institute different proceedings of a different character in a different forum is not a reason for allowing the misconceived proceedings or wrongly based proceedings in the Tribunal to proceed.

The third reason it is said that special leave should be refused is that the legislation is specific to New South Wales.  That, so far as it goes, is correct.  While the general scheme of the two-stage process is common to many professional disciplinary processes and to most States, the specific provisions to which I have referred are, I accept, peculiar to New South Wales.  But this Court is the ultimate court of appeal for New South Wales.  Its jurisdiction and its duty includes the correction of error in the intermediate appellate courts of New South Wales.  If a matter has sufficient importance in New South Wales, then that is enough to conclude that it warrants a grant of special leave.

Secondly, it is sometimes suggested that the Court of Appeal can sit a bench of five to resolve conflict within its own ranks.  That is neither possible nor appropriate here.  It is not possible because there is no conflict to be resolved.  All that dismissal of an application for special leave will do will be to entrench the existing error.  Secondly, it is not appropriate for two reasons:  first, it will not address the injustice in the particular case and, secondly, it will not address the injustice in all the pending cases and future cases in which legal practitioners may face allegations of misconduct, where their professional status and livelihood will be in issue and where, if not corrected now, the continuing or the current errors will remain entrenched.

For those reasons, the case is one which warrants a grant of special leave.

GAUDRON J:   Thank you, Mr Brereton.  The Court will adjourn now until 2.15.  We will hear from you after lunch, Mr Lindsay.

AT 1.01 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

GAUDRON J:   Yes, Mr Lindsay.

MR LINDSAY:   Your Honours, the basic submission on behalf of the Law Society is that the judgment of the Court of Appeal is correct.  The Court of Appeal properly considered the competing arguments advanced by the applicant and, in our submission, made no error.  In the absence of manifest error, the intervention of this Court, in our submission, is not required. 

If I may deal briefly with each of the three points that have been raised.  The first one concerns section 138 of the Legal Profession Act.  The Court of Appeal correctly took the approach, basic though it may seem, that the Act has to be read as a whole and in the context, particularly, of section 6 of the Interpretation Act which is extracted at page 45 of the application book at about line 30.  Section 6 provides that definitions apply:

except in so far as the context or subject matter otherwise indicates or requires.

That has some significance in this case in so far as the applicant points to a definition of the word “complaint” in section 126 and then seeks to apply it literally to a range of different positions.

GAUDRON J:   That is not the only point he makes in relation to the first point.  He points to other provisions where there is no such distinction as you claim.

MR LINDSAY:   That is right, and one might make the observation that if one took a very literal approach, there are what might be thought to be some inconsistencies in the legislation.  But that is why one needs to read the legislation as a whole and when one does that one sees that there is critically different terminology in relation to consumer complaints, if I can thus refer to complaints under section 134, on the one hand, and complaints by a Council or the Legal Services Commissioner under sections 135 and 136.  The critical difference there is the use of the word “made” in section 134, which is repeated in section 138, and the use of the word “initiate” in sections 135 and 136.

In their Honours’ judgment below they point out ‑ ‑ ‑

GAUDRON J:   And you ignore the headnotes, do you?

MR LINDSAY:   One is always confronted with difficulties in how to deal with headnotes but when one looks to the intention of the Act as a whole, and one looks at the different regimes that can and do apply to consumer complaints as against Council complaints, the Court of Appeal, in our submission, was correct in the construction it gave to section 138.  If I can put it in the broader context this way, the object of section 138 is to regulate stale consumer complaints.  That means that if there is a complaint ‑ ‑ ‑

GAUDRON J:   Where do you take that from?

MR LINDSAY:   That is putting summarily what appears in the judgment of the ‑ ‑ ‑

GAUDRON J:   Yes, but that is putting an interpretation on it, is it not?

MR LINDSAY:   Oh sure, sure. 

GAUDRON J:   And the very interpretation that is in issue in this application.

MR LINDSAY:   At the end of the day we say – we do not say that there could not have been an argument below, clearly there could have been, but we do say that the arguments below were considered by the Court of Appeal, and properly considered, and in our submission there is no manifest error in the approach that they adopted.  That is in connection with some legislation which is of specific application to New South Wales but has no broader significance than that, important though New South Wales may be.

CALLINAN J:   I know that is a submission that is often put and that there are statements in this Court that would suggest that it is properly put, but for my own part I do not see why, just because a statute is confined to one State, if the matter is an important one, this Court, which is part of the legal system of Australia, should not hear the matter.

MR LINDSAY:   I am not suggesting that it is a complete answer to anything, your Honour, but it is a factor, in my submission, though, which needs to be weighed in the balance in deciding how to deal with the question here.  I do not put it any higher than that. 

If one looks at Part 10, there is a substantial difference between what I call consumer complaints, on the one hand, and Council complaints on the other.  A consumer complaint is provided for in section 134 and is, in the ordinary course, considered by and regulated by the Legal Services Commissioner - the Legal Services Commissioner in that sense is the gateway.  A consumer has no direct standing to make an application, initiate proceedings in the Legal Services Tribunal or the relevant tribunal under section 167.  A Council does.  A Council is supervised by the Legal Services Commissioner and the clearest examples of that can be found in sections 149 and 150.  So that the scheme of Part 10 is that there is, if you like, a public regulation, a gateway so far as consumer complaints are concerned, but there is no necessity for it in relation to the Law Society Council or the Bar Council.

So, in my submission, if one looks at the whole scheme of Part 10, the construction adopted below is quite explicable and it is one which, in fact, in our submission ‑ ‑ ‑

GAUDRON J:   You stopped short, though, of saying it is clearly correct.

MR LINDSAY:   I will say it is clearly correct, but I have to acknowledge that the legislation involves contrary indications and those contrary indications were responsibly and, in our view, correctly weighed by the court and the conclusion that the court came to was correct.  But nevertheless I do not shrink from the proposition that the court got it correct because, in our submission, it did.

The second ground relates to section 155 essentially.  If one looks at section 155 and focuses on the formation of an opinion after the completion of an investigation, and it is that opinion which precedes, as the Court of Appeal found, a decision whether or not proceedings should go to the Tribunal, there is no express provision in Part 10 as to the commencement of an investigation or as to the meaning or content of an investigation.  In relation to complaints by a Council, the knowledge of a Council may be substantially derived from inquiries and submissions before any formal complaint is initiated.  And that is really what happened here in the sense that quite some time before there was a formal resolution of complaint by the Council of the Law Society, the solicitors concerned in the proceedings and the Law Society were in communication and substantive submissions were made by the solicitors about their conduct.  It cannot ultimately be the case, in our submission, that that all has to start afresh.  It would really just destroy the flexibility of Part 10 without adding to the protection of a legal practitioner which the court below said was provided for by Part 10.

GAUDRON J:   But is that not treating investigation of the complaint almost as investigation of the conduct?

MR LINDSAY:   On one perspective one could adopt that approach, but what is critical is whether or not the mind of the Society is directed to the opinion that section 155 requires.  That requires an investigation to have taken place but there is nothing that says that one needs to start an investigation at a particular time.  So that if one has the substance of an investigation sufficient to inform the Society about all the matters which are in the complaint, the object of section 155, in our submission, is well satisfied.  In essence, that is what the Court of Appeal said below and, in our submission, correctly said below.  Any alternative approach would make Part 10 pretty well unworkable.

On the third ground, which relates to section 167A, the applicant’s submissions endeavour to limit section 167A by reference to the words “with respect to a complaint” which do not appear in that section.  Those words appear in section 167.  They do not have any role to play in respect of section 167A which deals with variations of an information except in so far as section 167A proceeds on the basis that there is in place an information to be varied.  Section 167A was designed to deal with matters that arise in the course of Tribunal proceedings and the section provides ‑ ‑ ‑

GAUDRON J:   How was it used here?

MR LINDSAY:   The amendment to the information arose against the background that an information was filed and served, statutory declarations were filed and served on both sides, the solicitor gave an explanation of his conduct which explanation was checked, as inevitably it has to be checked, and from that checking it emerged that there was an allegation – I will not put it any higher than that – that the solicitor had misrepresented the facts, and in a significant way. 

Rather than dealing with that in the course of the hearing, the Society formulated the questions, the allegations that arose from the investigation, if you like, of the solicitor’s statutory declarations and brought them forward, thereby conforming to the natural justice type considerations that were required to be addressed by Smith v The Bar Association.  This is the very situation that section 167A was inserted in the legislation to address.  So that the Tribunal then, apprised of the facts, could make a decision based on considerations of what was fair and reasonable as to the ambit of the inquiry.  And that is what happened in this case.

In our submission, there is no basis upon which section 167A, which does not use the words “with respect to a complaint”, and which was designed to add flexibility and fairness to proceedings, can be limited in the way contended for by the applicant.  All these matters, in our submission, have been dealt with by the Court of Appeal and correctly dealt with.  It is significant, in our submission, that the Court of Appeal’s judgment is one which provides a fair procedure and one which is clearly open to it on the legislation. 

In those circumstances, we submit to the Court that its intervention is not required and the application should be dismissed.

GAUDRON J:   Thank you, Mr Lindsay.

There will be a grant of special leave in this case.

MR LINDSAY:   May I foreshadow this:  special leave having been granted, it may be that an application for expedition will be brought forward, so could I foreshadow that we would be applying for expedition.  I assume that should be taken up with the Registry.

GAUDRON J:   Yes.  I do not understand that there is any particular problem about the listing of matters these days.  If the books are ready, the matter is usually able to be listed at the same time.  If you are interested in expedition, then the proper course is to make sure that the books are available and to see if, with Mr Brereton, you can reach some agreement to expedite the processes.

MR LINDSAY:   Yes, thank you, your Honour.

AT 2.29 PM THE MATTER WAS CONCLUDED