Council of the Law Society of the Act v The Legal Practitioner D3
[2018] ACTSC 95
•21 March 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Council of the Law Society of the ACT v The Legal Practitioner D3 |
Citation: | [2018] ACTSC 95 |
Hearing Date: | 21 March 2018 |
DecisionDate: | 21 March 2018 |
Reasons Date: | 13 April 2018 |
Before: | Penfold J |
Decision: | 1. Noting the undertaking of the Council of the Law Society of the ACT not to seek or accept from ACAT a date before 11 April 2018 for the hearing of its application for disciplinary action, her Honour: (a) refuses to grant an indefinite stay of Order 2 made on 13 March 2018; and (b) refuses to stay Order 2 made on 13 March 2018 until 11 April 2018. 2. The Legal Practitioner D3 is to pay the Council of the Law Society of the ACT’s costs of the application for a stay. |
Catchwords: | PROCEDURE – Miscellaneous procedural matters – Supreme Court decision that ACT Civil and Administrative Tribunal had jurisdiction to deal with application by Council of Law Society for disciplinary action against legal practitioner – application to Supreme Court for stay pending filing of appeal to Court of Appeal, or until determination of foreshadowed appeal – no draft grounds of appeal provided – no information provided about timing in Tribunal or Court of Appeal – claim of irremediable prejudice in absence of stay not made out – stay until appeal filed would be futile – longer stay not appropriate without draft grounds of appeal and indication of likely timings – application dismissed. |
Legislation Cited: | ACT Civil and Administrative Tribunal Act 2008 Legal Profession Act2006 (ACT) ss 423A, 433, 434 |
Cases Cited: | Allandale Blue Metal Pty Ltd v Roads and Maritime Services (No 7) [2015] NSWLEC 82 Arnhem Land Aboriginal Land Trust v Northern Territory of Australia [2007] FCAFC 31; 157 FCR 255 Legal PractitionerP1 v ACAT [2017] ACTSC 173; 322 FLR 169 |
Parties: | Council of the Law Society of the ACT (Plaintiff/Respondent) Legal Practitioner D3 (First Defendant/Applicant) ACAT Civil and Administrative Tribunal (Second Defendant)(submitting appearance except as to costs) |
Representation: | Counsel Ms T Power (Plaintiff/Respondent) Mr M Orlov (First Defendant/Applicant) Submitting appearance only (Second Defendant) |
| Solicitors Phelps Reid Lawyers (Plaintiff/Respondent) Unrepresented (First Defendant/Applicant) ACT Government Solicitor (Second Defendant) | |
File Number: | SC 110 of 2017 |
Background
The Council of the Law Society of the ACT (the Council) appealed against a decision by the ACT Civil and Administrative Tribunal (ACAT) that it had no jurisdiction to hear Ground 1 of a complaint made by the Council against the Legal Practitioner D3 (D3) relating to conduct by D3 before 2006.
On 6 March 2018 I handed down a judgment in the appeal. The major decision recorded in that judgment was that ACAT did have the necessary jurisdiction; however, I was unsure having regard to the case law about prerogative writs whether the specific orders sought by the Council were the appropriate orders. Orders were made giving time for the parties to provide draft orders, and also to make submissions about costs in the matter.
On 14 March 2018, having considered submissions and draft orders, I made in-chambers orders declaring ACAT’s jurisdiction and requiring it, by an order in the nature of mandamus (the mandamus order), to deal according to law with the Council’s application for disciplinary action, including Ground 1. By that point, D3 had foreshadowed a stay application, and I also made orders for the filing and serving of any such application, and any response from the Council.
Stay application
D3 filed an application for a stay to operate first until the end of the appeal period for my orders, being 11 April 2018, and then, if an appeal were filed, to continue in effect until the determination of the appeal. The specified “grounds” noted that my orders required ACAT to deal with the Council’s application, and said:
Unless the operation of the order is stayed the appeal will be nugatory. The prejudice to the applicant in those circumstances would be irremediable.
After hearing argument, I refused to make a stay order in any form, and ordered D3 to pay the Council’s costs of the application. These are my reasons for those decisions.
D3’s application was not accompanied, or followed up, either by a draft notice of appeal or by any written submissions.
Applicable law
Counsel for the respondent Council, Ms Power, in helpful written submissions, addressed the relevant law.
First, she pointed out that generally (and, one might think, also as a matter of logic) there is no power to stay a declaratory order (Arnhem Land Aboriginal Land Trust v Northern Territory of Australia [2007] FCAFC 31; 157 FCR 255 at [5] to [8]), while conceding that there would be a power to stay the mandamus order requiring ACAT to deal with the Council’s application. In due course counsel for D3 effectively conceded this point, and withdrew the application for a stay to the extent that it related to the declaratory order.
Secondly, Ms Power identified the principles governing an application for a stay of the current kind, as set out by Refshauge ACJ in Cristian v Bottrill [2016] ACTSC 315 at [26], in declining to grant an injunction to restrain proceedings in ACAT:
26.Instead of an injunction, then, what would usually be appropriate would be a stay of the proceedings in the ACAT pending the appeal. The principles for such a stay have been set out in Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685. I summarise these in Samani v The Queen [2016] ACTCA 48 at [9] as follows:
(1)Special or exceptional circumstances are not required to be established to justify a stay pending appeal;
(2)The onus is on the applicant to demonstrate a proper basis for the stay;
(3)The power of the Court to grant a stay as a matter of discretion;
(4)The Court will weigh the balance of convenience and the competing rights of the parties;
(5)A stay may be granted conditionally;
(6)Where there is a risk that the appeal will prove abortive, if the appellant succeeds and a stay is not granted, courts will normally exercise their discretion in favour of a stay; and
(7)Where the appeal has been lodged simply to gain time, no granting of a stay arises.
Counsel also referred to Allandale Blue Metal Pty Ltd v Roads and Maritime Services (No 7) [2015] NSWLEC 82, in which Pain J said at [11]-[12]:
11.Considerations to which the Court may have regard when determining how to exercise the discretion to grant a stay of execution of an order include, but are not limited to:
(a)whether the applicant on the motion has an arguable case on appeal, without looking at the prospects of success;
(b)whether there is a risk the respondent on the motion will be unable to repay the money without difficulty or delay if the appeal were to succeed;
(c)whether there is a proper basis for the stay so that it will be fair to all parties;
(d)whether there is a risk that if a stay is granted, the assets of the applicant will be disposed of;
(e)the balance between convenience and the competing rights of the parties;
(f)whether there is a risk that the appeal will prove abortive if the appellant succeeds and a stay is not granted.
12.However, the overriding principle is to ask what the interests of justice require.
Arguments
D3’s submissions
The only grounds for the granting of the stay identified by D3 before the hearing was that:
Unless the operation of the order is stayed the appeal will be nugatory. The prejudice to the applicant in those circumstances would be irremediable.
At the hearing, neither written submissions nor any evidence was offered on behalf of D3, but counsel for D3 argued:
(a)that determination of the appeal by the ACT Court of Appeal could take an extended period, especially since my decision had turned on a fine point of statutory interpretation and was likely to require careful review and analysis by the Court of Appeal;
(b)that the mandamus order obliged ACAT to deal with the matter, and that one should assume that it was obliged to do so expeditiously;
(c)that in Legal PractitionerP1 v ACAT [2017] ACTSC 173; 322 FLR 169 (Legal Practitioner P1) at [42], Murrell CJ had recognised the prejudice to a legal practitioner in having a disciplinary proceeding “dealt with”, referring to the practitioner being subject to “costs, distress and inconvenience”;
(d)that if the ACAT hearing proceeded and was subsequently found to be beyond ACAT’s jurisdiction, there would be no scope for ACAT to make a costs order in D3’s favour and, apparently, no scope for the Supreme Court to make such an order.
Counsel for D3 did not, however, expand on the claim that an appeal would be nugatory if ACAT was to continue hearing the matter.
No evidence was offered on behalf of D3, even from the bar table, about likely waiting times for hearings in either ACAT or the Supreme Court.
Counsel’s assertion about the unavailability of a costs order against the Council in the event that ACAT proceeded to determine the Council’s action against D3 and was subsequently found to have no jurisdiction to do so was based on the ACT Civil and Administrative Tribunal Act 2008 (ACT) and, presumably, ss 433 and 434 of the Legal Profession Act 2006 (ACT). It was not challenged by the Council, and may be correct, but in the absence of any explanation or argument for it, I simply note it as a possibility.
As to D3’s potential liability for costs in relation to an ACAT hearing, it emerged in oral argument that the parties had been ready to proceed with the ACAT hearing on the day when it was originally listed to begin (in February 2017), at which point the jurisdictional challenge had been raised. That suggested that little or no further preparation would be required by either party before the hearing resumed. As well, counsel for D3 said that he was not briefed in the ACAT matter, and it seemed that D3 intended to represent himself in a resumed ACAT hearing, as he had done in a number of earlier proceedings. That is, although it could not be ruled out that D3 would incur further expenses in conducting a resumed ACAT hearing, there was no basis for assuming that such expenses would be significant.
Finally in relation to costs, I note that during the hearing of D3’s application there was discussion of the possibility of the Council giving an undertaking about D3’s costs in ACAT in the event that the ACAT proceedings went ahead, and then the appeal against my decision succeeded, so that ACAT was ultimately found to have had no jurisdiction to hear Ground 1 of the Council’s complaint. No undertaking was given before me, but the matter was left on the basis that such an undertaking might be explored if a new stay application is made after any appeal against my decision is filed.
The Council’s submissions
In resisting any stay, the Council made the following submissions:
(a)That while D3 has an appeal as of right, and I am not asked to assess D3’s prospects of success at this stage, D3’s failure (two weeks after my reasons for decision were made available) to indicate the likely grounds of appeal means that I am not in a position to consider whether his appeal grounds seem to be arguable.
(b)That even in the absence of a stay, it seems highly unlikely that ACAT will be able to begin the hearing (previously estimated at 5 days) before the end of the appeal period.
(c)That there has been considerable delay in the progress of the current proceedings, which D3 seems to have challenged at every point.
In relation to delays, counsel for the Council noted that since the application for disciplinary action was made in 2013:
(a)D3 has filed several applications to strike out the Council’s application (two were heard and ultimately dismissed, one of them on appeal, and the others did not proceed for one reason or another);
(b)D3 has taken action in the Supreme Court three times:
(i)once unsuccessfully seeking a permanent stay of the ACAT proceedings;
(ii)once seeking judicial review of the Council’s decision to begin the disciplinary proceedings (an application which was later abandoned); and
(iii)once unsuccessfully seeking an injunction to prevent ACAT hearing the matter, and an extension of time within which to file a substituted originating application for judicial review; and
(c)D3 has applied unsuccessfully to vacate a hearing in ACAT.
Counsel for D3 pointed out, however, that D3’s first strike-out application succeeded at first instance in ACAT, and the Council’s application was only re-instated on appeal. Furthermore, he noted that, although Burns J had dismissed D3’s application for a permanent stay, and had refused to declare the Council’s application a nullity on the ground of the Council’s failure to comply with s 395(2) of the Legal Profession Act, Murrell CJ had taken a different view of the operation of that provision in Legal Practitioner P1. Therefore, counsel argued, if D3’s applications had come before the Chief Justice rather than before Burns J, D3 might have succeeded at that point, and accordingly it could not be said that D3’s proceedings had been without merit.
Be that as it may, the ACAT decision in February 2017, that it did not have jurisdiction to deal with Ground 1 of the Council’s complaint, was D3’s only surviving success in the proceedings, but it has now been, in effect, overturned by my decision of 6 March 2018.
Effect of not granting a stay
I could not see any basis for the assertion in D3’s application in proceedings that if my orders are not stayed, D3’s proposed appeal will be nugatory, or there will be irremediable prejudice to D3.
First, there was no reason in the material before me for assuming that ACAT would hear and determine the disciplinary proceedings before the end of the appeal period or even necessarily, before the Court of Appeal determined any appeal filed by D3.
Secondly, if ACAT does proceed before the Court of Appeal determines any appeal, and that Court subsequently decides that ACAT did not have jurisdiction, that decision would operate in relation to whatever has happened in the ACAT proceedings; the fact that further orders might be required to give effect to a Court of Appeal decision in D3’s favour would not mean that his appeal had been pointless or futile.
As to prejudice, it is true that without a stay, D3 might find himself having to deal with both ACAT proceedings and Court of Appeal proceedings during the same period, and dealing with ACAT proceedings that might turn out to have been without jurisdiction.
This would occupy his time, and might involve him in expense, as discussed at [15] to [17] above.
However, the history of D3’s many and varied (and often contemporaneous) responses to various stages of the Council’s application for disciplinary action suggested that there are no particular obstacles, whether financial or otherwise, for D3 should he find himself dealing with both the ACAT hearing and the Court of Appeal matter during the same period.
Counsel for D3 did not make any submission about possible prejudice arising from publication of his identity in the context of adverse findings made by ACAT. However, I note that under s 423A of the Legal Profession Act, D3’s identity must not be published until disciplinary proceedings (including any available appeals from decisions made in ACAT) are finalised. That is, if adverse findings are made against D3 in ACAT, there are still several layers of appeals (including to Supreme Court and the Court of Appeal, as well as to the High Court albeit subject to a leave requirement) that may be pursued by D3 before his identity can be made public. I had no doubt that, if D3 unsuccessfully exhausts all his appeal rights from adverse findings made in ACAT before his appeal against my decision is finalised, the relevant courts would find a way to prevent the publication of the results of the ACAT processes until the Court of Appeal’s consideration of my decision is completed.
Consideration
Thus, the issue seemed to come down to the facts that if my decision is overturned on appeal after ACAT has begun, or completed, its hearing, D3 will have suffered various forms of prejudice, being:
(a)the undoubtedly time-consuming and stressful aspects of the hearing processes themselves;
(b)the possible inconvenience of having to deal with ACAT proceedings and Court of Appeal proceedings during the same period; and
(c)the possible incurring of costs in the ACAT proceedings in circumstances in which the Council could not be ordered to reimburse D3 for those costs (albeit subject to any undertaking given by the Council about those costs).
However, in the absence of identified appeal grounds indicating the strength of the appeal and of evidence of the likely timing of listings in ACAT and the Court of Appeal, this was not in my view a sufficient basis on which to make a stay order until the Court of Appeal has finalised any appeal by D3, especially since such an order would have meant that the Council would have to establish a basis on which to set the order aside if D3 subsequently seemed to be delaying the proceedings.
The considerations telling against the making of an extended stay order were not so relevant in relation to the making of a stay order for the remaining three weeks of the appeal period, but such an order seemed fairly pointless. On the basis of what was before me, and my own understanding of ACAT processes, it seemed almost impossible that in those three weeks (a period including the Easter break and therefore involving a maximum of 13 business days) an ACAT bench consisting of 3 part-time members could be convened for a 5-day hearing. When the Council offered an undertaking that it would not seek or accept a listing for a hearing to begin before 11 April, the making of a stay order for a period of three weeks became, in my view, entirely pointless.
In the absence of D3’s grounds of appeal and of any coherent explanation of what irremediable prejudice D3 would suffer if the ACAT proceedings were allowed to continue, and noting the inordinate delays that have affected these proceedings so far, D3 had not established any basis on which I should stay the ACAT proceedings, either until the end of the current appeal period, or for any longer or indefinite period. I was also satisfied more generally that the interests of justice did not require me to grant any such stay.
Conclusion
Accordingly, I declined to make any stay order as sought by D3.
Costs
My initial inclination was to reserve costs on the stay application until the end of the appeal period or, if an appeal was filed, until it was determined, but I accepted Ms Power’s submissions that the stay application had been refused, in essence, because it was premature, and that it would therefore be appropriate to require D3 to pay the Council’s costs.
| I certify that the preceding thirty-four [34] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold. Associate: Date: 13 April 2018 |
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