Boland v Boxall - [2016] TASSC 30

[2016] TASSC 30

COURT: SUPREME COURT OF TASMANIA

CITATION: Boland v Boxall [2016] TASSC 30

PARTIES:  BOLAND, Christopher John
  v
  BOXALL, Andrea
  LEGAL PROFESSION BOARD OF TASMANIA

FILE NO:  274/2015
DELIVERED ON:  16 June 2016
DELIVERED AT:  Launceston
HEARING DATE:  22 December 2015
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Professions and Trades – Lawyers – Complaints and discipline – Disciplinary proceedings – Tasmania – Determination by Supreme Court after determination by Legal Profession Board – Nature of "re-hearing".

Legal Profession Act 2007 (Tas), s 458(3).
Aust Dig Professions and Trades [1274]

REPRESENTATION:

Counsel:
           Applicant:  A Wood
           First Respondent:  Not represented
           Second Respondent:  K Cuthbertson
Solicitors:
           Applicant:  Christopher Boland
           Second Respondent:  Tremayne Fay & Rheinberger

Judgment Number: [2016] TASSC 30
Number of paragraphs: 10

Serial No 30/2016
File No 274/2015

CHRISTOPHER JOHN BOLAND v ANDREA BOXALL
and LEGAL PROFESSION BOARD OF TASMANIA

REASONS FOR DETERMINATION BLOW CJ

16 June 2016

The applicant is an Australian legal practitioner. A complaint about him was made by the first respondent, Andrea Boxall. That complaint was heard and determined by the second respondent, the Legal Profession Board of Tasmania ("the Board"). The Board made findings that the applicant had engaged in unsatisfactory professional conduct in certain respects and, by a determination made on 30 March 2015, decided to reprimand him, to require him to repay fees in the sum of $11,300, and to require him to pay its costs in the sum of $30,000. Those determinations were made pursuant to s 454(2) of the Legal Profession Act 2007 ("the Act").
The applicant applied to this Court under s 458(1)(a) of the Act to have the matter to which the Board's determinations relate determined by this Court. Questions arose as to the nature of a re-hearing under s 458. That section reads as follows:
"(1) The complainant, or the Australian legal practitioner who is the subject of the complaint, who is served with a notice of the determination of the Board in relation to a complaint may, within 21 days after the date of that determination —
(a) apply to the Tribunal or Supreme Court to have the matter to which the determination relates determined by the Tribunal or Supreme Court; and
(b) make an application to the Tribunal or Supreme Court to stay the determination pending the finalisation of the application.
(2) For the purposes of this section, a decision of the Board to dismiss a complaint under section 433 (Summary dismissal of complaints), section 451 (Dismissal of complaint) or section 454(1) (Determination of Board) is a determination of the Board.
(3) The determination of a matter pursuant to an application made under subsection (1)(a) is to be by way of a re-hearing."
At a directions hearing on 2 December 2015, I directed that the nature of a s 458(3) re-hearing be determined as a preliminary point. Written submissions were made on behalf of the applicant and the Board. They were in agreement. I decided that their submissions…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2016] TASSC 30
Decision Date: 16 June 2016

CaseChat Overview and Summary

In the case of Boland v Boxall, the respondent, Boxall, a legal practitioner, sought judicial review of a decision by the Supreme Court of Tasmania which had affirmed a decision of the Legal Profession Board of Tasmania to discipline him. The dispute centred on whether the Supreme Court had re-heard the matter de novo, which would have been an error, or whether it had reviewed the decision of the Board for error on the face of the record. The court was required to determine the scope and nature of the Supreme Court's review power under section 458(3) of the Legal Profession Act 2007 (Tas). The court found that the Supreme Court had not re-heard the matter but had instead reviewed the Board's decision for errors apparent on the record. The court emphasised that a de novo hearing would have been inappropriate in this context as it would have usurped the primary decision-making role of the Board. Instead, the Supreme Court's role was limited to reviewing the Board's decision for errors of law or jurisdictional error. The court concluded that the Supreme Court had correctly exercised its review power and dismissed the application for judicial review.

The court's reasoning was grounded in the statutory framework and the principles of administrative law. It was noted that the Supreme Court's review power under section 458(3) of the Legal Profession Act was not to conduct a fresh inquiry into the facts but to ensure that the Board's decision was legally sound and within its jurisdiction. The court highlighted that the Board was the primary decision-maker and that its expertise in professional conduct matters should be respected. The Supreme Court's role was to provide a check on the Board's decision to ensure it was not flawed. The court also considered the practical implications of a de novo hearing, which would have been time-consuming and inefficient. The review for errors on the face of the record was seen as a more appropriate and efficient method of ensuring the correctness of the Board's decision. The court's conclusion was that the Supreme Court had properly exercised its review power and that the Board's decision was valid. The application for judicial review was dismissed, and the disciplinary action against the respondent was upheld.

Orders