Council of the Law Society of the Australian Capital Territory v LP 202012 (Occupational Discipline) - [2020] ACAT 80

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

COUNCIL OF THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY v LP 202012 (Hugh Ford) (Occupational Discipline) [2020] ACAT 80

OR 12/2020
Catchwords: OCCUPATIONAL DISCIPLINE – legal practitioners – whether the respondent ceased to be an ‘Australian lawyer’ by reason only of the cancellation of the respondent’s practising certificate – whether conduct by a former ‘Australian legal practitioner’ is removed from the operation of Chapter 4 of the Legal Profession Act 2006 by reason only of the cancellation of the respondent’s practising certificate – application for summary dismissal of disciplinary proceedings dismissed with costs

Legislation cited: Legal Profession Act 2006 ss 7, 33, 36, 55, 56, 59, 384, 385, 410, 411, 419, 425, 433

Tribunal: Senior Member M Orlov (Presiding)
Senior Member M Brennan

Date of Orders:  7 October 2020
Date of Reasons for Decision:         7 October 2020
AUSTRALIAN CAPITAL TERRITORY                  OR 12/2020
CIVIL & ADMINISTRATIVE TRIBUNAL
BETWEEN:
COUNCIL OF THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY
Applicant

AND:
LP 202012
Respondent

TRIBUNAL: Senior Member M Orlov (Presiding)
Senior Member M Brennan

DATE:7 October 2020

ORDER

The Tribunal orders that:

The respondent’s application for interim or other orders dated 5 August 2020 is dismissed.
Subject to order 3, the respondent is to pay the applicant’s costs of the application.
The matter be listed on a date to be fixed for hearing of submissions as to:
(a)whether the order for costs should be for a stated amount pursuant to section 433(5) of the Legal Profession Act 2006; and
(b)the terms on which costs must be paid pursuant to section 433(6) of the Legal Profession Act 2006.
These orders also apply to matters OR 13/2020, OR 14/2020 and OR 15/2020.
………………………………..
Senior Member M Orlov
For and on behalf of the Tribunal

REASONS FOR DECISION

Synopsis

This application is for summary dismissal of four separate applications for disciplinary orders in respect to complaints about the conduct of the respondent (Practitioner) on the grounds that the applicant (Council) lacked jurisdiction to investigate and make decisions about the complaints pursuant to section 410 of the Legal Profession Act 2006 (LPA) as a result of the Council’s earlier decision to cancel the Practitioner’s local practising certificate. For the reasons that follow we are satisfied that the Practitioner’s application should be dismissed and that he should be ordered to pay the Council’s costs.[1]

Background

[1] This decision was previously anonymised and cited as Council of the Law Society of the Australian Capital Territory v LP 202012 [2020] ACAT 80 pursuant to section 423A of the Legal Profession Act 2006. As the appeal period has ended, the practitioner has now been identified in the citation of this decision. The reasons for decision otherwise remain unchanged from the date of publication.

The Practitioner was admitted as a Barrister and Solicitor of the Supreme Court of the ACT in 1995. The Practitioner’s name remains on the roll of persons admitted to the legal profession in the ACT. From 3 December 2009 until 21 June 2018 the Practitioner held a practising certificate issued by the Law Society of the ACT.
On 26 September 2017, another practitioner made a complaint about the conduct of the Practitioner to the Council. We will refer to this as the (first complaint). The Council notified the Practitioner of the first complaint on 16 October 2017 and commenced to investigate the complaint on or about the same date. The Practitioner’s conduct that led to the first complaint and subsequently, during the Council’s investigation, is alleged to have happened between about 14 February 2017 and 15 March 2018 and is the subject of application OR 13/2020.
On 16 April 2018, the Council raised a complaint about the conduct of the Practitioner as a result of correspondence from the Registrar of the Federal Circuit Court on 28 March 2018. We will refer to this as the (second complaint). The Council notified the Practitioner of the second complaint on 23 April 2018 and commenced to investigate the complaint on or about the same date. The Practitioner’s conduct that led to the second complaint and subsequently, during the Council’s investigation, is alleged to have happened between about 18 May 2017 and 4 June 2018 and is the subject of application OR 12/2020.
On 21 May 2018, the Council raised a further complaint about the conduct of the Practitioner as a result of correspondence from an Acting Assistant Secretary of the Department of Home Affairs on 11 May 2018. We will refer to this as the (third complaint). The Council notified the Practitioner of the third complaint on 22 May 2018. The Practitioner’s conduct that led to the third complaint is alleged to have happened between about 1 September 2016 and 27 April 2018 and is the subject of application OR 15/2020.
On 18 June 2018, the council raised a further complaint about the conduct of the Practitioner as a result of correspondence from the Registrar of the Federal Circuit Court on 1 June 2018. We will refer to this as the (fourth complaint). The Council notified the Practitioner of the complaint on 26 June 2018. The Practitioner’s conduct that led to the complaint is alleged to have happened between about 15 September 2015 and 3 October 2017 and is the subject of application OR 14/2020.
On 18 June 2018, the Council decided to cancel the Practitioner’s practising certificate pursuant to section 56 of the LPA, with effect from 21 June 2018, after giving written notice to the Practitioner on 22 May 2018 that the Council believed grounds to do so existed.
On 21 August 2019, McInnes Wilson, the solicitors for the Council, wrote to Mr Christopher Levingston, the solicitor representing the Practitioner, informing him that the Council’s investigation had reached the stage where Council must make a decision pursuant to section 410 of the LPA as to how it should proceed in relation to first complaint. A draft application was included with the letter.[2] The letter stated:
We stress that the Council has not made a decision to file the Application. The draft Application is provided to enable [the Practitioner] to consider and respond to the possible charges against him to ensure that he is afforded procedural fairness.
Before the Council makes a decision under section 410 of the Act we have been instructed to seek any final response that you wish to make in relation to:
(a)     disposing of the matter under section 412 of the Act;
(b)     summarily concluding the matter under section 413 of the Act, including whether the Council can adequately deal with the matter under section 413, whether [the Practitioner] is generally competent and diligent, and the appropriate sanction; or
(c)     making an application under section 419 of the Act.
In relation to point (c) above, can you please provide any comments that you wish to make in relation to the facts and charges particularised in the draft Application and the characterisation of the charges.
[2] Affidavit of Robert Anthony Reis dated 25 August 2020 at paragraphs 16-17 and pages 37 to 44 of Exhibit RAR-1
The solicitors for the Council advised that a written response was required by 6 September 2019 and that, following receipt of the response and final advice from counsel, the Council would make a decision in relation to the complaint.
The letter also stated:
In earlier correspondence you have contended that the Law Society cannot take any action against [the Practitioner]. We draw your attention to subsection 385(2) of the Legal Profession Act 2006 (ACT) and the decision in Council of the Law Society of the ACT v The Legal Practitioner D3; Practitioner D3 v The Council for the ACT Law Society [2018] ACTSC 45 which makes it clear that the Act applies to conduct of Australian Legal Practitioners if, at the time of the conduct, they are Australian Legal Practitioners notwithstanding that they may cease to be Australian Legal Practitioners prior to disciplinary proceedings being filed.
On 26 November 2019,[3] McInnes Wilson wrote to Mr Levingston on behalf of the Practitioner, informing him that the Council’s investigation had reached the stage where Council must make a decision pursuant to section 410 as to how it should proceed in relation to the second, third and fourth complaint and providing copies of separate draft applications in respect to each complaint. The solicitors advised that the Council required a written response by 14 December 2019 and that, following receipt of the response and counsel’s final advice, the Council would make a decision in relation to the complaints.
[3] Mr Reis’s 25 August 2020 affidavit asserts in paragraph 17, incorrectly, that the letter was sent on 21 August 2019, instead of 26 November 2020 as appears from the copy of the letter at page 41 of Exhibit RAR-1
The evidence does not disclose whether the Practitioner took up the invitation to provide a response on either occasion, although an email sent by Mr Levingston on 3 September 2019, which McInnes Wilson mention in their 26 November letter, apparently asserted that “an application to the ACAT is beyond the Law Society’s power and the Society is estopped from proceeding to make a determination or an application”.
On 9 December 2019, according to Mr Reis’s evidence,[4] the Council made decisions pursuant to section 410 of the LPA to commence disciplinary proceedings against the Practitioner in the ACAT in respect to all four complaints.
[4] Paragraph 18 of Mr Reis’s 25 August 2020 affidavit
The Council must make a decision under section 410 “after finishing an investigation”. The Council’s written submissions state that the Council investigated each of the complaints until “on or around 9 December 2019”[5] – i.e. the same date as the Council purportedly made decisions under section 410. There is no direct evidence that the Council had finished its investigation of the second, third or fourth complaint on or by that date. As observed earlier in these reasons, in their letter dated 26 November 2019 the solicitors for the Council gave the Practitioner until 14 December 2019 to provide a written response to the matters raised in the letter and the draft applications. Until that happened or the time for the Practitioner to do so expired, we have some difficulty in understanding how the investigation can be said to have been finished by 9 December 2019. The evidence does not explain why the Council did not wait to make the decisions until 14 December 2019, or on what basis the Council decided that the investigation had finished by 9 December 2019 if the Practitioner had not yet provided a response to the 26 November letter.
[5] Applicant’s submissions dated 26 August 2020 at paragraphs 3.10, 3.15, 3.21 and 3.27
We note that section 411 of the LPA allows the Council to make an application to the ACAT for an occupational discipline order without starting or finishing an investigation of a complaint, if the Council is satisfied that action should be taken because of (a) the nature of the subject matter of the complaint, and (b) the reasonable likelihood that the practitioner will be found guilty by the ACAT of either unsatisfactory professional conduct or professional misconduct.
However, as the Practitioner has not raised this as an issue, we do not need to say any more on the matter.

The grounds for the present application

The Practitioner filed an application on 6 August 2020 for orders that all four applications, OR 12/2020, OR 13/2020, OR 14/2020 and OR 15/2020, be dismissed for want of jurisdiction on the grounds that:
The purported exercise of statutory powers by the Respondents [sic] pursuant to section 410 of the Legal Profession Act 2006 was ultra vires and on that basis any purported investigation to ground the section 410 determination was infected by jurisdictional error.
The application also seeks an order that the parties attend and participate in a mediation. Although the application does not say so, we presume that the order for mediation is sought in the alternative if the application for dismissal does not succeed.
The submissions filed on behalf of the Practitioner[6] made the following points:
(a)The Council cancelled the Practitioner’s practising certificate pursuant to section 56 of the Act with effect from 21 June 2018.
(b)As a result, the Practitioner ceased to be a ‘legal practitioner’ as defined in sections 7 and 8 of the Act.[7]
(c)The Council conducted an ‘investigation’ into the conduct of the Practitioner between 21 June 2018 up to and including 26 November 2018.
(d)The Council had no jurisdiction to do so because, from 21 June 2018, the Practitioner was no longer an ‘Australian lawyer’ or an ‘Australian legal practitioner’ within the meaning of the Act.[8]
(e)The Council’s investigation after 21 June 2018 was in respect to the same matters that were the basis for the Council’s decision to cancel the Practitioner’s practising certificate pursuant to section 56 and therefore was “beyond the scope of section 385”.[9]
(f)Although section 385 ‘applies’ Chapter 4 of the LPA to an ‘Australian lawyer’ or ‘former Australian lawyer’, it does not do so “in respect to any other matters under the preceding chapters”[10] (which we take to be a reference to matters arising under section 56).
(g)Given that the Practitioner’s practising certificate was cancelled on 21 June 2018, the applications for occupational discipline orders are not in furtherance of the ‘purposes’ of the LPA – i.e. “in the interests of the administration of justice and for the protection of consumers of the services of the legal profession and the public generally”.[11]
[6] Respondent’s written outline of submissions filed on 6 August 2020. The submissions are not paginated and the paragraph numbering, when used, is eccentric and difficult to follow. We have numbered the pages from 1 to 7 and refer to those page numbers in our reasons
[7] At page 1, paragraph (2) and page 3, second full paragraph
[8] At page 3, third last and penultimate paragraph
[9] At page 3, last paragraph
[10] At page 4, first full paragraph
[11] Page 7, second paragraph
It is not easy to discern the threads of the Practitioner’s argument. It is perhaps best simply to reproduce the closing paragraphs of the submission where the threads are drawn together:
The Respondent contends that the decision to ‘investigate’ post the section 56 determination, was ultra vires the Act. The decision to cancel the Respondents practising certificate on 21 June 2018 was in furtherance of the “purposes” of the Act and had the effect of rendering the Respondent a person who was no longer within the definitions provided for in Sections 7 and 8 of the Act.
The decision in effect to conduct 2 investigations (S 56 and S 410) was, in respect of the purported S. 410 determination, by reason of the earlier S. 56 determination, beyond power because after 21 June 2018 the Respondent was not an Australian lawyer.
The peremptory decision of 21 June 2018 met the purposes of the Act whereas the purported section 410 determination, some 2 years later (23 months) was for an entirely improper purpose namely the imposition of sanctions (Section 425(5)(a) fines?) and the recovery of costs as sought in the relevant application and Orders (see above) and are not within the ‘purposes’ of the Act.
It is submitted that there is no utility in seeking Order 1 because those matters have already been determined in the section 56 Notice and it is on that basis it is submitted that Orders 2 and 3 are calculated to oppress the Respondent in an entirely impermissible way by reason of their traversal of the “purposes” of the Act.
It is on that basis that the Respondent seeks a declaration that the section 410 determination was ultra vires the Act. [our emphasis]
The orders sought by the Council in each application are the same, namely:
(a)a finding pursuant to section 425(1) of the Act that the respondent is guilty of professional misconduct or, alternatively, unsatisfactory professional conduct [order 1];
(b)such further or other order pursuant to section 425 of the Act as the Tribunal thinks fit [order 2];
(c)an order pursuant to section 433(1) of the Act that the respondent pay the applicant’s costs on a solicitor own-client basis [order 3].

The Council’s power to investigate the complaints against the Practitioner

The conduct of the Practitioner, which is the subject of the four complaints, is alleged to have happened between 15 September 2015 and 4 June 2018. During that period the Practitioner was both a person admitted to the legal profession in the ACT and a person who held a local practising certificate. He was, therefore, an ‘Australian lawyer’ and an ‘Australian legal practitioner’ within the meaning, respectively, of sections 7 and 8 of the LPA.
The Council’s investigation of the complaints commenced when the Practitioner was an ‘Australian legal practitioner’ and spans the period from 16 October 2017 until on or about 9 December 2019.
The Practitioner ceased to be an Australian legal practitioner on 21 June 2018 when the cancellation of his local practising certificate took effect.
He was at that date, and remains, an ‘Australian lawyer’ – i.e. “a person who is admitted under the LPA or a corresponding law” – and a ‘former Australian legal practitioner’.[12]
[12] Section 7
Section 385(2) of the LPA provides that Chapter 4, which deals with complaints and discipline:
…applies, with necessary changes, to a former Australian legal practitioner in relation to conduct happening while the former practitioner was an Australian legal practitioner in the same way as it applies to an Australian practitioner.
As the solicitors for the Council stated in a letter to the Practitioner’s solicitor on 21 August 2019:[13]
The Act applies to conduct of Australian Legal Practitioners if, at the time of the conduct, they are Australian Legal Practitioners notwithstanding that they may cease to be Australian Legal Practitioners prior to disciplinary proceedings being filed.
[13] See paragraph 10 above
Perhaps prompted by that advice, which is clearly correct, the Practitioner shifted ground. The foundation on which the Practitioner’s current application stands is the proposition that the Practitioner ceased to be an ‘Australian lawyer’ after 21 June 2018. The Practitioner’s claim that the continuation of the investigation after that date was ultra vires and for an improper purpose is founded exclusively on that proposition. No independent basis is offered for the Practitioner’s submission, which we have reproduced in full earlier in these reasons, that the continuation of the Council’s investigation of the complaints after that date and the bringing of charges of professional misconduct or unsatisfactory conduct in the Tribunal arising out of the complaints are “not within the purposes of the Act”.
The Practitioner clearly remained an ‘Australian lawyer’ after 21 June 2018. The Council’s investigation before that date was in respect to complaints about conduct by an ‘Australian legal practitioner’. The continuation of the Council’s investigation after that date was in respect to complaints about conduct by a former Australian legal practitioner while the person was an ‘Australian legal practitioner’. Section 385(2) makes it clear that Chapter 4 applies in the circumstances.
The statutory purposes of Chapter 4 appear in section 384 and are as follows:
(a)   to provide a nationally consistent scheme for the discipline of the legal profession in the ACT, in the interests of the administration of justice and for the protection of consumers of the services of the legal profession and the public generally;
(b)   to promote and enforce the professional standards, competence and honesty of the legal profession;
(c)   to provide a means of redress for complaints about lawyers;
(d)   to enable people who are not lawyers to participate in complaints and disciplinary processes involving lawyers.

The disciplinary charges laid against the Practitioner relate directly to these purposes. If the charge of professional misconduct is established, the Tribunal will have to decide, for the purpose of making appropriate orders pursuant to section 425, (a) whether it considers the Practitioner is a fit and proper person to remain admitted to the legal profession in the Act, (b) whether the Tribunal should make an order recommending that the name of the Practitioner be removed from the local roll, or (c) make some other order. The cost consequence if the Tribunal finds the Practitioner guilty of professional misconduct or unsatisfactory professional conduct are governed by section 433 of the Act.
The conduct of the Practitioner that is the subject of the disciplinary proceedings in the Tribunal, relates to his compliance with professional standards, professional competence and honesty. The allegations against the Practitioner, to which the Practitioner has not yet filed responses, are serious and appear, on their face, to be of substance.
There is, therefore, utility in determining whether the Practitioner is guilty of professional misconduct or unsatisfactory professional conduct and no basis whatsoever for the Practitioner’s submission that the orders sought under section 425 and for costs are “calculated to oppress the Respondent in an entirely impermissible way by reason of their traversal of the purposes of the Act.”[14]
[14] See the Practitioner’s submissions reproduced in paragraph 20 above
The fact that, during the course of its investigations, the Council exercised its power under section 56 of the Act to cancel the Practitioner’s local practising certificate is irrelevant. The right removed was the Practitioner’s right to practise in the ACT, not his right to remain admitted as a legal practitioner in the ACT. The statutory purposes of Part 2.4, in which section 56 appears, are explained in section 33(1)(a) & (b) as follows:
(a) to facilitate the national practice of law by ensuring that Australian legal practitioners can engage in legal practise in the ACT and to provide for the certification of Australian lawyers whether or not admitted in the ACT;
(b) to provide a system for the grant and renewal of local practising certificates.
In deciding whether to issue a local practising certificate to a person under Division 2.4.3 of Part 2.4, the Council must be satisfied that the person is a fit and proper person to hold a practising certificate. The considerations the Council may take into account in determining whether a person is, or remains, a fit and proper person to hold a certificate are set out in section 36 and include any relevant matters the Council considers appropriate.[15]
[15] Section 36(2)(f)
Division 2.4.6 of Part 2.4 is concerned with the amendment, suspension or cancellation of local practising certificates. The grounds for the Council to cancel a local practising certificate include that the holder is no longer a fit and proper person to hold the certificate.[16] If the Council believes a ground exists to cancel a local practising certificate the Council must give the holder a notice under section 56(1). If, after considering all written representations, the Council still believes a ground exists to take the proposed action, the Council may cancel the certificate under section 56(2).
[16] Section 55(1)(a) of the LPA
Section 59 provides:
This division does not prevent a complaint from being made under chapter 4 (Complaints and discipline) about a matter to which this division relates.
The Practitioner has not pointed to any statutory language that is capable of supporting a construction of Chapter 4 that excludes from the operation of the chapter conduct by a former Australian legal practitioner that has resulted in the Council exercising a power under section 56 to cancel the practitioner’s practising certificate. When section 59 is read with section 385, we consider that the issue is beyond doubt.
The Practitioner’s application is dismissed for these reasons. While we consider that it would be highly desirable for the parties to attend mediation and we note that both have indicated a willingness to do so, we think that mediation is premature until the Practitioner has filed and served responses to the applications in accordance with the orders made on 24 July 2020.
The Practitioner must pay the Council’s costs pursuant to section 433(4) of the LPA. We will hear the parties in relation to whether costs should be for a stated amount pursuant to section 433(5) and the terms upon which costs should be paid pursuant to section 433(6).
………………………………..
Senior Member M Orlov
For and on behalf of the Tribunal

HEARING DETAILS

FILE NUMBER:	OR 12/2020
PARTIES, APPLICANT:	The Council of the Law Society of the Australian Capital Territory
PARTIES, RESPONDENT:	LP 202012
COUNSEL APPEARING, APPLICANT	D A Moujalli
COUNSEL APPEARING, RESPONDENT	N/A
SOLICITORS FOR APPLICANT	McInnes Wilson Lawyers
SOLICITORS FOR RESPONDENT	Christopher Levingston
TRIBUNAL MEMBERS:	Senior Member M Orlov (Presiding) Senior Member M Brennan
DATES OF HEARING:	On the papers