Council of the Law Society of New South Wales v Levitt

[2019] HCATrans 78

[2019] HCATrans 078

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S300 of 2018

B e t w e e n -

COUNCIL OF THE LAW SOCIETY OF NEW SOUTH WALES

Applicant

and

STEWART ALAN LEVITT

Respondent

Application for special leave to appeal

GAGELER J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 APRIL 2019, AT 10.34 AM

Copyright in the High Court of Australia

MS C.A. WEBSTER, SC:   May it please the Court, I appear with my learned friend, MR G.J. JOHNSON, for the applicant.  (instructed by The Law Society of New South Wales)

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MR G.E.S. NG, for the respondent.  (instructed by Levitt Robinson Solicitors)

GAGELER J:   Ms Webster.

MS WEBSTER:   If the Court pleases.  This application, as your Honours will have seen, concerns the process whereby a body such as the Council for the society charged with disciplinary functions regarding lawyers, concludes an investigation of complaints made against a practitioner.  The Council in this matter commenced proceedings against the respondent in the New South Wales ‑ ‑ ‑

GAGELER J:   In the Tribunal.

MS WEBSTER:   In the Tribunal, in relation to certain complaints it had received after resolving that it was satisfied that there was a reasonable likelihood that the Tribunal would find the respondent to have engaged in professional misconduct in relation to the conduct the subject of the complaints.  We place considerable reliance, as we had in the Court of Appeal, on the fact that that is the actual state of satisfaction that the Council reached in June 2016 in its determination with respect to the complaints it was considering and as a consequence of which it then commenced the proceedings.

Following the Council resolution, as your Honours will have seen from the judgments, the respondent commenced proceedings in the Supreme Court of New South Wales seeking, in effect, to set aside the relevant resolutions.  The determination of Justice Wilson, the primary judge, was in effect that the decision of the Council to commence proceedings in the Tribunal, and the fact that it had commenced proceedings, could only properly be made after consideration was given by it to the operation and potential application of section 540 of the Legal Profession Act 2004.

GAGELER J:   You accept that, so far as it goes, do you not?

MS WEBSTER:   Well, the question becomes whether, in this case, because of the finding the predictive analysis undertaken by the Council, whether there was a need to have considered in the reasons the potential application of section 540.  Where in this case what Council had concluded by its delegate, the Professional Conduct Committee, was that it predicted that there was a reasonable likelihood of a finding of professional misconduct.

We say that in circumstances where the Council’s prediction – it is common ground that it was to be a prediction – was that it was professional misconduct, then there was no need, no occasion under the proper construction of the statutory scheme, for the Council to turn its mind to considering the elements of section 540(1)(b), in particular.

GAGELER J:   To turn its mind at all?

MS WEBSTER:   I am sorry, your Honour.

GAGELER J:   You are saying it was not necessary for the Council to turn its mind at all to (1)(b)(i)?

MS WEBSTER:   Well, it needed to consider it insofar as the opening words of section 537(2) say, unless section 540 applies.  One cannot ignore the fact that those words appear at the beginning of section 537(2), in terms of the statutory command to commence proceedings, consequentially on having made a prediction that there is a reasonable likelihood of a finding of either unsatisfactory professional conduct or professional misconduct.

But then in circumstances where, as the Council did here in June 2016 in respect of the complaints that it was considering against the respondent, it concluded that its prediction was a reasonable likelihood of a finding of professional misconduct, there was no scope for section 540 to apply and so there was no need for consideration of the elements of section 540(1) in its reasons because it was simply impossible for section 540(1)(b)(i) to apply at all, where the finding that it made – not in a hypothetical construct of some other case ‑ ‑ ‑

GAGELER J:   Yes.

MS WEBSTER:   ‑ ‑ ‑ but in particular circumstances, where it had found professional misconduct was its prediction of the outcome in the Tribunal.

GAGELER J:   Your argument, however, is founded on an interpretation of section 540(1)(b)(i), as I understand it.

MS WEBSTER:   Yes, your Honour. 

GAGELER J:   Your argument is not that you do not get to look at 540(1)(b)(i) or you do not need to look at 540(1)(b)(i).

MS WEBSTER:   That is so.

GAGELER J:   Yes.

MS WEBSTER:   There could be a need to look at 540(1)(b)(i), but the complaint that was made and the orders that were made by the primary judge, Justice Wilson, were founded upon error having been identified in the resolution which led to the commencement of proceedings because there could not be found, it was said on the consideration her Honour gave to the matter, any consideration by Council of the elements of section 540(1)(b), so that there could have been a consequence for the respondent other than the commencement of proceedings in the Tribunal.  There is a bifurcation, as your Honours will have gathered from the legislation.

GAGELER J:   Yes.

EDELMAN J:   In other words, you say that all the findings that are necessary to enliven or give effect to the operation of 540(1)(b)(i) were made?

MS WEBSTER:   On the Council’s position, yes, your Honour.

EDELMAN J:   Yes.  Do you say that that situation, even if that argument is correct, would affect any more than the cases that you refer to at paragraph 8 of your reply, the ‑ ‑ ‑

MS WEBSTER:   We have to recognise that with the change ‑ ‑ ‑

EDELMAN J:   Those 30‑odd cases.

MS WEBSTER:   ‑ ‑ ‑ in the Legal Profession Act, so that the uniform law now governs the new matters, we cannot point to a continuing problem, as it were, under the new Legal Profession Uniform Law which applies in New South Wales and Victoria.

EDELMAN J:   Amongst those 30‑odd cases, the only cases that would be affected would be ones where there is both a reasonable likelihood of no finding of professional misconduct, and no reasonable likelihood of such a finding?

MS WEBSTER:   Well, the difficulty – I am sorry, I might just come back to answer your Honour’s question in this way ‑ we provide a table of particularly affected matters in paragraph 8 of the reply, and over time there has been some little change to the make‑up of some of the numbers.  We can give your Honours the detail of that if it were to be relevant.

EDELMAN J:   It could only be a subset of those matters that would actually be affected by this legal issue?

MS WEBSTER:   If a resolution has been made in terms in which the June 2016 resolutions were made, it will be in one matter.  Where the proceedings have been commenced, people may or may not wish to seek to agitate it but it could be not all of the matters because of the range of potential outcomes which we recognise can follow.  Even a matter being dealt with under the 2004 Act is something that is capable of being resolved by a council as no more than unsatisfactory professional conduct, that there will be no issue that arises.

EDELMAN J:   There may also be no effect on penalty, if the matter is resolved by the summary procedure, rather than by the Tribunal.

MS WEBSTER:   Well, one can imagine no one would be raising an issue at all ‑ ‑ ‑

EDELMAN J:   Yes.

MS WEBSTER:   ‑ ‑ ‑ were the Council, either the Law Society Council or the Bar Council, or the Legal Services Commissioner, having adopted the summary procedure, it would only be if someone were to seek to take a matter – no, I withdraw that.  There will not have been any possible consideration of the conduct amounting to professional misconduct if anyone is proposing to deal with the matter under section 540, so it must be a subset.  But there are, in addition to the matters enumerated, as we say, subject to some very slight winnowing of the numbers over time since our reply was filed, some matters that had been put on hold pending the outcome of these proceedings.

GORDON J:   Is that paragraph 9?

MS WEBSTER:   That is paragraph 9, your Honour.  We understand that there are in that category, for a variety of reasons, matters on hold in the order of 66 matters but, as your Honour Justice Edelman said, that is only going to be the potential effect – a subset of all of the matters that we identify as potentially affected, because it is the way in which the 2004 Act was structured and we do not, and cannot, say that, subject to the way some matters have been applied in the Supreme Court, that the precise language has not been replicated in the 2015 Legal Profession Uniform Law.

GAGELER J:   Ms Webster, at page 96 of the application book, in paragraph 105 of Justice Basten’s judgment, the competing constructions are stated.  Is that an accurate statement of the choice to be made?

MS WEBSTER:   It is, insofar as one can construct alternative ways to look at the section.  Our submission is there really is only available, on a proper statutory reading of, we say, all of the words of section 540(1)(b)(i), reading (2) which his Honour adopts, for the reasons your Honours will have seen at the following paragraphs.

GAGELER J:   That is the choice you would be presenting to us?

MS WEBSTER:   Yes.  In effect, that would be.

GORDON J:   You have the argument that you raise at paragraph 22, is you do not get to it; that is your first port of call.  And then if you get to it, they are the construction questions?

MS WEBSTER:   Yes, your Honours. 

GAGELER J:   I think we understand your argument.

MS WEBSTER:   Yes, your Honours.  Your Honours have what we have said in writing.

GAGELER J:   Yes.

MS WEBSTER:   It is, although it has produced quite a number of words, a relatively short, straightforward statutory construction point.

GAGELER J:   Yes.

MS WEBSTER:   I would, I suspect, be repeating what your Honours are quite familiar with, how we put our argument ‑ ‑ ‑

GAGELER J:   Yes.

MS WEBSTER:   ‑ ‑ ‑ if I were to say anything more, unless there were other matters your Honours were to wish me to address.

GAGELER J:   No.

MS WEBSTER:   At this stage, I should say, I suppose.

GAGELER J:   No, thank you, Ms Webster.

MS WEBSTER:   If your Honours please.

GAGELER J:   Mr Walker, we do not need to hear from you, thank you.

We are not persuaded that the question of statutory construction sought to be agitated in this Court is of sufficient general importance to warrant the attention of the Court.  Special leave to appeal is refused with costs.

MR WALKER:   May it please the Court.

MS WEBSTER:   If the Court pleases.

GAGELER J:   The Court will now adjourn to 10.00 am on Tuesday, 16 April in Canberra.

AT 10.47 AM THE MATTER WAS CONCLUDED