Council of the Law Society of the Act v Legal Practitioner P1 (Occupational Discipline)
[2016] ACAT 66
•28 June 2016
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
COUNCIL OF THE LAW SOCIETY OF THE ACT v LEGAL PRACTITIONER P1 (Occupational Discipline) [2016] ACAT 66
OR 31/2015
Catchwords: OCCUPATIONAL DISCIPLINE – legal practitioner – interim application – breach of section 395(2) of the Legal Profession Act 2006 (ACT) (LP Act) – complaint more than three years after conduct – procedural or substantive requirement – Supreme Court decision on same provision - effect of s 424 of the LP Act – evidence of prejudice
Legislation: Legal Profession Act 2006 s 395, 410, 416, 419, 421,424
Cases Cited:Appellants v Council of the Law Society of the ACT (2011) 252 FLR 209
Byrne v Council of the Law Society of the ACT [2015] ACAT 19
Council of the Law Society of the ACT v Legal Practitioner “D3” [2015] ACAT 7
Farnaby v Military Rehabilitation and Compensation Commission (2007) 97 ALD 788
John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503
Law Society of New South Wales v Boland [2001] NSWADT 35
Practitioner D3 v ACT Civil and Administrative Tribunal [2016] ACTSC 61
Tribunal: Senior Member M Brennan (Presiding)
Senior Member R Orr QC
Date of Orders: 28 June 2016
Date of Reasons for Decision: 28 June 2016
ACT CIVIL & ADMINISTRATIVE TRIBUNAL OR 31/2015
BETWEEN:
COUNCIL OF THE LAW SOCIETY OF THE ACT Applicant
AND:
LEGAL PRACTITIONER P1
Respondent
TRIBUNAL: Senior Member M Brennan (Presiding)
Senior Member R Orr QC
DATE:28 June 2016
ORDERS
Being satisfied that the parties have not been prejudiced by the applicant’s failure to observe the procedural requirement in section 395(2) of the Legal Profession Act 2006 (LP Act), the Tribunal orders under section 424 of the LP Act that:
1.The applicant’s failure to observe section 395(2) of the LP Act in relation to the complaint about the respondent be disregarded.
2. The matter be listed for further directions on a date to be fixed.
……………………………….
Senior Member M Brennan
for and on behalf of the Tribunal
REASONS FOR DECISION
Introduction
In this case the Council of the Law Society of the ACT (applicant) failed to consider whether it was just and fair, or in the public interest, that it should deal with a complaint about Legal Practitioner 1 (respondent) raising conduct allegedly occurring more than three years prior. In failing to consider whether it should deal with such a complaint, the applicant failed to observe section 395(2) of the Legal Profession Act 2006 (ACT) (LP Act). Under section 424 of the LP Act the Tribunal may order that a failure to observe a procedural requirement is to be disregarded if satisfied that the parties have not been prejudiced by the failure. The applicant sought such an order by application for interim or other orders dated 11 March 2016.
The first issue for this Tribunal is whether section 395(2) is a procedural requirement, such that the Tribunal has the discretion to disregard the failure pursuant to section 424 of the LP Act. If so, the second issue is whether in this case the Tribunal should order that the failure to observe this procedural requirement is to be disregarded on the basis that it is satisfied that the parties have not been prejudiced by the failure.
In the reasons below, a reference to ‘ACAT’ or ‘tribunal’ refers to the ACT Civil and Administrative Tribunal generally or a previous tribunal, whereas ‘Tribunal’ refers to the members who heard the application.
Summary of Tribunal decision
In summary, the Tribunal finds that section 395(2) of the LP Act is a procedural requirement for the purposes of section 424, following the decision of the Supreme Court in Practitioner D3 v ACT Civil and Administrative Tribunal and Law Society of the Australian Capital Territory (Practitioner D3).[1] The Tribunal also finds that in this case it should order that the failure to observe this procedural requirement is disregarded on the basis that it is satisfied that the parties have not been prejudiced by the failure.
Background
[1] [2016] ACTSC 61
On 23 May 2011 Mr Simon Byrne wrote to the council submitting a formal complaint against the respondent practitioner concerning his conduct as a lawyer (complaint).
The practitioner’s conduct subject to the complaint allegedly occurred between February and November 2005. Section 395 of the LP Act provides:
(1) A complaint may be made about conduct to which this chapter applies irrespective of when the conduct is alleged to have happened.
(2) However, the complaint cannot be dealt with (otherwise than to dismiss it or refer it to mediation) if the complaint is made more than 3 years after the conduct is alleged to have happened, unless the relevant council for the person about whom the complaint is made decides that—
(a) it is just and fair to deal with the complaint having regard to the delay and the reasons for the delay; or
(b) the complaint involves an allegation of professional misconduct and it is in the public interest to deal with the complaint.
The ‘relevant council’ is the Council of the Law Society of the ACT, the applicant in these proceedings.[2] Hence, section 395(2) of the LP Act permitted the applicant to consider the complaint but it needed to have reviewed the factors listed in section 395(2)(a) and (2)(b) of the LP Act, and make a relevant decision. The applicant failed to consider these factors prior to determining that the complaint should be investigated, and failed to make the relevant decision.
[2] See Dictionary to LP Act
Following the investigation, the applicant decided, pursuant to section 412 of the LP Act, to dismiss Mr Byrne’s complaint against the practitioner on 1 August 2013.
On 19 September 2013 Mr Byrne filed an application in the tribunal for review of the applicant’s decision pursuant to section 416 of the LP Act.
When the matter was heard by the tribunal on 22 August 2014 neither party raised the issue of the applicant’s failure to make a decision under section 395(2) of the LP Act.
In a decision dated 3 March 2015 the tribunal ordered the applicant to bring proceedings against the practitioner under section 419(1) of the LP Act arising from Mr Byrne’s complaint.[3]
[3] Byrne v Council of the Law Society of the ACT [2015] ACAT 19 (Byrne)
Pursuant to the decision in Byrne, the applicant commenced proceedings against the respondent practitioner in an application for disciplinary action dated 4 August 2015.
In an application dated 11 March 2016 the council sought an order that its failure to comply with section 395(2) of the LP Act, prior to dealing with the complaint dated 23 May 2011 lodged by Mr Byrne against the practitioner, be disregarded. It also asked the tribunal to list the matter for further directions.
In written submissions dated 23 March 2016 the applicant noted that it was at least arguable that the tribunal’s decision and orders in Byrne did not cure the noncompliance with section 395(2).
This Tribunal agrees with that analysis which follows Refshauge J’s decision in Appellants v Council of the Law Society of the ACT[4] that action taken under section 416 of the LP Act is akin to a merits review where the tribunal stands in the place of the original decision maker.
The hearing
[4] (2011) 252 FLR 209 at [111]
The applicant council’s application was heard on 31 March 2016. The council relied on an affidavit of Robert Anthony Reis sworn 15 March 2016 (exhibit A4). The respondent practitioner relied on annexure A to an affidavit of Jennifer Anne Shaw sworn on 21 March 2016, which was a reformulated complaint by Mr Byrne (exhibit A2). This document had been relied on by the applicant in its application concerning the use of an affidavit, a matter heard at the same time as this application under section 424. Both parties filed written submissions, and made oral submissions. The Tribunal reserved its decision. As discussed below, further written submissions were provided in relation to the decision in Practitioner D3.
The Law
Section 424 of the LP Act provides:
The ACAT may order that a failure by the relevant council to observe a procedural requirement in relation to a complaint before an application is made to the ACAT is to be disregarded if satisfied that the parties to the hearing have not been prejudiced by the failure.
Note: The ACAT may make rules about its practice and procedure under the ACT Civil and Administrative Tribunal Act 2008, s 24
The applicant council argued that section 395(2) was such a procedural requirement. The respondent argued that it was not.
In the appeal decision of Council of the Law Society of the ACT v Legal Practitioner “D3” (Appeal) [2015] ACAT 7 Appeal President Stefaniak determined that the failure of the applicant to make a decision pursuant to section 395(2) of the LP Act was a failure “to observe a procedural requirement” which could be and, in that case, should be disregarded pursuant to section 424.
The practitioner in that case appealed that decision and submitted to the Supreme Court that the failure of the applicant to make a decision under section 395(2) was more than the failure to observe a procedural requirement, which therefore could not be cured under section 424, and rendered the proceedings in the ACAT a nullity.
Justice Burns heard this appeal on 4 September 2015. At the time this Tribunal heard the council’s application for relief under section 424 his Honour’s decision was reserved. When Burns J’s decision in Practitioner D3 was delivered on 8 April 2016, the Tribunal invited the parties to file and serve any further submissions on the effect of this decision within 14 days.
The applicant filed a brief submission dated 12 April 2016 and the respondent’s submission is dated 26 April 2016. The Tribunal has considered both documents.
Burns J noted in Practitioner D3 that the question he had to decide was not what constitutes a procedural requirement in the general law but rather what was the legislature’s intent in drafting section 424 of the LP Act, that is what did the term ‘procedural requirement’ mean in section 424.[5] The practitioner in that case had argued that the plain meaning of ‘procedural requirement’ did not include section 395(2). He also argued that the decision in John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 (Pfeiffer) concerning choice of law rules meant that a limitation period was a question of substance and not procedure, that in effect section 395(2) of the LP Act imposed a limitation period, and that it was therefore not a procedural requirement under section 424.[6] However, his Honour held that proceedings under the LP Act, which are primarily intended to protect the public, are different to the type of proceedings to which the choice of law rules apply. He also found that section 395(2) is not a limitation provision in the traditional sense, and that the powers vested in the council are not the equivalent of a right in tort law. Principally, Burns J was satisfied that the statutory text and context of the LP Act, in addition to the legislative history of provisions in the LP Act, supported the conclusion that section 395(2) of the LP Act is a procedural requirement under section 424, and that a failure by the applicant to make a decision as required by section 395(2) may be disregarded by the ACAT under section 424.[7]
[5] at [31]
[6] see at [12]-[13] of Practitioner D3, referring to [97]-[100] of Pfeiffer, in the joint judgment of Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ
[7] at [31]-[34]
Burns J also found that, in particular, the effect of section 421(3) of the LP Act is contrary to the proposition that a failure to comply with section 395(2) falls outside section 424 and deprives the ACAT of jurisdiction to hear a disciplinary application filed by the council.[8] Subsection 421(3) provides:
The ACAT may amend an application to include an additional allegation even though the alleged conduct-
(a) happened more than 3 years before the amendment is made; or
(b) has not been the subject of a complaint or investigation under this chapter.
[8] at [34]
His Honour accepted the council’s submission that this subsection has the effect that the tribunal may amend an application if satisfied as to its reasonableness, even though the alleged conduct occurred more than three years before the amendment and had not been the subject of a complaint or investigation. The council had argued that it would be surprising if the legislature would have given the ACAT this discretion to amend if it had not also intended to allow the tribunal to disregard the council’s failure to make a determination under section 395(2).[9]
The parties’ supplementary submissions
[9] See at [29]
The applicant submitted that the decision in Practitioner D3 conclusively decides that a breach of section 395(2) of the LP Act can be cured by a tribunal order under section 424.
The respondent submitted that the Tribunal should not follow Burns J’s decision but rather the decision of Pfeiffer where it was stated that for choice of law rules a limitation period would be taken to be a question of substance not procedure.[10] The respondent argued that Burns J erred in considering proceedings under the LP Act, where protection of the public is the principle concern, differ to proceedings where the choice of law rules apply. Secondly, the practitioner submitted Burns J was in error in considering section 395 is not a limitation provision as contemplated by Pfeiffer, finding it neither removed a right nor barred a remedy created by the LP Act.
[10] Pfeiffer at [100]
However it is clear that what was considered in Pfeiffer was the effect the courts of the jurisdiction in which proceedings are brought should give to legislation of the jurisdiction in which a tort was committed,[11] and the discussion of limitation periods took place in this context.[12] Pfeiffer did not consider the LP Act, nor the meaning of ‘procedural requirement’ in section 424 of that Act. As Justice Burns discussed the principal issue in Practitioner D3 was what does the term ‘procedural requirement’ mean in section 424 of the LP Act, and does it include the requirement in section 395(2). [13] The discussion in Pfeiffer may be relevant to this issue, and Justice Burns considered it.[14] But, it is clearly not determinative, and Justice Burns held that in the specific context of the LP Act the term ‘procedural requirement’ in section 424 does include the requirement in section 395(2). The meaning of ‘procedural requirement’ in section 424 is also the principal issue in this application. In the Tribunal’s view it is the decision in Practitioner D3 which determines this issue, not the decision in Pfeiffer.
[11] Pfeiffer at [1]
[12] Pfeiffer at [98]-[100]
[13] at [31]-[34]
[14] at [13] and [31]-[32]
The respondent also submitted that while ordinarily a tribunal should not decline to follow a judicial pronouncement interpreting a statutory provision just because it does not agree with it, there is authority for a tribunal doing so where a decision of the High Court points to a different result. In support of this submission the decision of Re Farnaby and Military Rehabilitation and Compensation Commission[15] (Farnaby) was cited. Farnaby examined the question of whether legal professional privilege applies in relation to proceedings in the Administrative Appeals Tribunal, and considered the earlier decisions of Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets[16] and Waterford v Commonwealth[17] both of which dealt specifically with this issue. Farnaby considered a situation quite different to this case, which concerns how section 424 of the LP Act should be interpreted and where the decision in Practitioner D3 deals specifically and thoroughly with this issue, and the decision in Pfeiffer, which Practitioner D3 considers, does not deal with it at all.
[15] (2007) 97 ALD 788 at [15]-[19] and [25]-[31]
[16] (2006) 67 NSWLR 91
[17] (1987) 163 CLR 54
The Tribunal considers that it should follow and is bound by Justice Burns’ decision in Practitioner D3 which covers exactly the same provision in the LP Act in question in this application.
Prejudice due to the council’s failure
On this basis, section 424 of the LP Act empowers the Tribunal to make an order that the council’s failure to observe the procedural requirement in section 395(2) is to be disregarded if it is satisfied that the parties have not been prejudiced by the failure.
In written submissions dated 23 March 2016 the applicant gave four reasons why the Tribunal should exercise the discretion given by section 424 of the LP Act. The factors listed were: no forensic prejudice to either party; the public interest in testing the serious allegations raised by the complaint; the applicant’s failure to make a decision under section 395(2) was not deliberate; and the complainant had only learnt of the practitioner’s alleged conduct after the three year period has passed.
The respondent’s written submissions dated 30 March 2016 did not address the issue of prejudice but oral submissions were made by the practitioner’s counsel during the hearing.
The respondent practitioner argued first that the term ‘prejudice’ in section 424 may extend to forensic prejudice, but the application of ordinary principles of statutory construction militate against limiting the term in this way. There may be other kinds of prejudice and the Tribunal should apply the words of the statute. The respondent submitted that as section 395(2) of the LP Act creates an opportunity for a complaint to be dismissed at that time, he suffered prejudice through being deprived of a right to make submissions and protect his position.
A second argument made was that the practitioner was subject to a second complaint covering the same issues to those raised by the first complaint due to the process that was commenced by the council without jurisdiction. There is evidence concerning this second complaint in exhibit A4, the affidavit of Robert Reis sworn 15 March 2016, at paragraphs 32-39, and exhibit A2, annexure A to the affidavit of Jennifer Anne Shaw sworn on 21 March 2016, is the full second complaint.
The applicant noted in reply that if ‘prejudice’ extended to the practitioner’s deprivation of a right to make submissions about a complaint more than three years old, section 424 of the LP Act would be a ‘dead letter’ for the purposes of section 395(2) as ‘prejudice’ could be established by virtue of the council’s omission.
In relation to the second ground raised by the respondent, the council noted the second complaint should be dealt with separately and on its own merits. The Tribunal notes that if the respondent practitioner regards the second complaint as involving unfairness, in light of the first complaint, he can argue this position in the context of the procedures in relation to that second complaint. The Tribunal does not think this second ground gives rise to prejudice in the relevant sense.
As to the first ground, in Law Society of New South Wales v Boland[18] the NSW Administrative Decisions Tribunal found at [26] that the relevant practitioner had not provided any evidence as to prejudice and noted:
… the onus is on the applicant practitioner to demonstrate actual prejudice rather than simply relying on "presumptive prejudice" but, as Gleeson CJ said in Gill -v- Walton (at page 198) claimants "nevertheless refer to and rely upon the practical considerations as to the usual consequences of delay .... ‘Memories fade, relevant evidence becomes lost’. In the very nature of the adversarial process, which applies in the Medical Tribunal as well as in the ordinary civil and criminal courts, a person's capacity to wage a forensic contest in defence of conduct which occurred some fifteen or more years earlier may reasonably be expected to be diminished by the lapse of time. That is a matter of common experience and commonsense".
[18] [2001] NSWADT 35
In this case the respondent did not provide the Tribunal with any evidence of prejudice suffered; counsel for the practitioner simply made the oral submission that the practitioner was denied the opportunity to address the age of the complaint due to the applicant’s failure to consider section 395(2)’s requirements and was subject to a second complaint. The Tribunal agrees with the applicant’s reply to the first argument put by the respondent, considering that section 424 would have no work to do if prejudice could be established due to the omissions the section has been created to address.
Further, the history of this matter is that the respondent practitioner has had opportunities to put whatever submissions he wished in relation to the complaint, and its age.[19] As noted he has not provided any evidence of detriment due to the age of the complaint, nor raised any substantive issue about the age in this application; he has only raised as an issue the loss of one opportunity to make unspecified submissions on this issue, namely by the failure of the applicant to make a decision under section 395(2) of the LP Act.
[19] See exhibit A4, affidavit of Robert Reis at [6]-[24]
Also, the delay in dealing with the complaint has been caused by a number of factors. The complainant only learnt of the full extent of the practitioner’s alleged conduct after the three year period had passed and as a result of Supreme Court litigation the complainant brought. The respondent practitioner himself asked for a delay on one occasion because of the Supreme Court proceedings.[20] In August 2013 the complaint was dismissed by the applicant. The complainant applied to the tribunal appealing the council’s dismissal.[21] The respondent practitioner chose not to take part in those proceedings. On 3 March 2015 in its decision in Byrne the tribunal set aside the dismissal and ordered that an application be made to the tribunal in relation to the complaint. In doing so it indicated that there were serious allegations raised by the complaint. In these circumstances the delay has not been unexplained and unwarranted.
[20] See exhibit A4, affidavit of Robert Reis at [7]
[21] See exhibit A4, affidavit of Robert Reis at [25]-[31]
The Tribunal is satisfied that the parties have not been prejudiced by the council’s failure to observe the procedural requirement in section 395(2) of the LP Act.
………………………………..
Senior Member M Brennan
for and on behalf of the Tribunal
HEARING DETAILS
FILE NUMBER: | OR 31/2015 |
PARTIES, APPLICANT: | Council of the Law Society of the ACT |
PARTIES, RESPONDENT: | Legal Practitioner P1 |
COUNSEL APPEARING, APPLICANT | Mr N Beaumont, Ms R Withana; |
COUNSEL APPEARING, RESPONDENT | Mr M Orlov |
SOLICITORS FOR APPLICANT | Eakin McCaffery Cox |
SOLICITORS FOR RESPONDENT | Self Represented |
TRIBUNAL MEMBERS: | Senior Member M Brennan (Presiding), Senior Member R Orr QC |
DATES OF HEARING: | 31 March 2016 |
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