Council of the Law Society of the Act v Legal Practitioner D3 (Occupational Discipline)

The respondent, D3, made an application to strike out the application brought against him by the Council of the Law Society of the ACT (the Society). The application for disciplinary action against D3 was based on allegations of unsatisfactory professional conduct and professional misconduct. The respondent argued that the Tribunal lacked jurisdiction to deal with certain aspects of the application, that there was no authority for the amendments made to the application, and that the decisions of the Council were tainted by bias. The respondent also sought to raise a new ground concerning the lack of adequate reasons for the decision to commence the proceedings.

The Tribunal dismissed the application to strike out the proceedings. In relation to Ground 1, the Tribunal found that it had jurisdiction to consider the allegations of unsatisfactory professional conduct and professional misconduct, including those relating to the First Home Owners Grant. The Tribunal also rejected the argument that the failure to comply with section 395 of the Legal Profession Act 2006 (LPA) was a nullifying bar to the application. As for Grounds 3 and 4, the Tribunal found that there was no failure to comply with the LPA and that there was no basis for concluding that the current lawyers were not instructed. The Tribunal further held that the lack of adequate reasons for the decision to commence the proceedings did not render the application invalid, as the failure to give reasons was a procedural requirement that could be disregarded under section 424 of the LPA. Lastly, the Tribunal found no substance in the allegation of bias.

The Tribunal ordered that the application to strike out the proceedings be dismissed, that the failure to give adequate reasons for the decision to apply to the ACT Civil and Administrative Tribunal (ACAT) be disregarded under section 424 of the LPA, and that the respondent pay the applicant's costs of the application, except any costs associated with a subpoena issued at the request of the respondent. The question of any costs in respect of the subpoena was reserved until the final decision in the matter.