Council of the New South Wales Bar Association v Tedeschi

[1999] NSWADT 92

Pending Appeal:

CITATION:	Council of the New South Wales Bar Association -v- Tedeschi [1999] NSWADT 92
DIVISION:	Legal Services
APPLICANT:	Council of the New South Wales Bar Association
RESPONDENT:	Mark Alfred Guido Tedeschi QC
FILE NUMBER:	9306
HEARING DATES:	09/01/1999
SUBMISSIONS CLOSED:	09/01/1999
DATE OF DECISION:	25 November 1999
BEFORE:	L P Robberds QC Presiding Judicial Member A C Bennett SC - Judicial Member K Elliott - Member
PRIMARY LEGISLATION:	Legal Profession Act 1987
APPLICATION:	Professional misconduct - barrister -
MATTER FOR DECISION:	Application as to jurisdiction of the Tribunal
REPRESENTATION:	Applicant: P R Garling SC & P R Boulton of counsel instructed by Colin Biggers & Paisley Respondent: C A Porter QC & J E Robson of counsel instructed by Makinson & d'Apice
ORDERS:	1. The Tribunal has no jurisdiction.

1 On 17 March 1993 the Council of the New South Wales Bar Association (the Council) filed in the Legal Profession Disciplinary Tribunal, a complaint, the first paragraph of which stated that the Council "refers to the Legal Profession Disciplinary Tribunal a complaint by the Legal Aid Commission against Mark Alfred Guido Tedeschi QC."

2 The complaint had not been heard or determined as at 1 July 1994 nor had a hearing of the complaint commenced. On that date the Legal Profession Disciplinary Tribunal was replaced by the Legal Services Tribunal by reason of the operation of the Legal Profession Reform Act 1993.

3 As at 6 October 1998 the complaint had not been heard or determined by the Legal Services Tribunal. On that date the Legal Services Tribunal was abolished (see section 144 and schedule 5 clause 6 of the Administrative Decisions Tribunal Act 1987 (the Act)).

4 On 8 June 1999 an application was filed in this Tribunal on behalf of Mr Tedeschi seeking the determination of the Tribunal concerning its jurisdiction 'in the light of the document entitled "Submission re Jurisdiction" filed herein'.

5 In that document it was submitted that clause [31] of the Legal Profession Regulation 1994 denied jurisdiction to the Legal Services Tribunal to hear the complaint and the decision of the Court of Appeal in The Council of the Law Society of NSW v Nutt and anor (1996) 1 LPDR 23 was cited as authority. The document also contained a submission that 'abolished body' in schedule 5 clause 14 of the Act meant the Legal Services Tribunal, not the Legal Profession Disciplinary Tribunal. The document concluded that this Tribunal does not have any jurisdiction to hear the complaint because the Act provides no basis for jurisdiction.

6 In its reply as to jurisdiction, the Council stated that schedule 5 clause 14 of the Act applied to the complaint "as the current proceedings were pending before the Legal Services Tribunal but that tribunal had 'not commenced to hear' same." Accordingly it was said that under clause 14(1) schedule 5, the proceedings are taken to have been duly commenced under the Act.

Relevant legislative history

7 Pursuant to the Legal Profession Act 1987, the Legal Profession Regulation 1994 was made. Part 9 of that Regulation contained savings and transitional provisions and Division 2 of that Part contained a number of clauses three of which were in the following terms:

Division 2 - Complaints and appeals

Complaints made under former Part 10 and not yet subject to proceedings

30. (1) This clause and clause 31 apply in respect of a complaint made under former Part 10 of the Act.

(2) If a complaint made before 1 July 1994 has not, before that date, been the subject of proceedings before the Board or the former Tribunal, the complaint is to be dealt with as if it has been made under new Part 10 of the Act. A matter that has been referred under former Part 10 of the Act to the former Board or the former Tribunal by a Council, but has not, by 1 July 1994, been the subject of proceedings before the former Board or former Tribunal, is taken to be a matter referred to the new Tribunal under new Part 10 of the Act.

(3) If a complaint has been made to a Council (or is the subject of a notice given to a Council by the former Review Panel under former section 140 (2) of the Act) before 1 July 1994, but the Council has made no decision in response to the complaint or notice, as the case may be, before that day, the complaint is to be dealt with by the Council as if it had been made under new Part 10 of the Act.

(4) Anything done under former Part 10 of the Act in respect of a complaint to which this clause applies is taken to have been done under new Part 10 of the Act.


Complaints made under former Part 10 and already subject to proceedings

31. (1) If a complaint is the subject of proceedings before the former Board or the former Tribunal that are pending on 1 July 1994, those proceedings may be continued before, and determined by, that Board or that Tribunal as if former Part 10 of the Act were still in force.

(2) If a complaint made under former Part 10 of the Act has (whether before, on or after 1 July 1994) been the subject of proceedings before the former Board or the former Tribunal resulting in a determination in relation to the complaint or the termination of the proceedings, any further action in respect of the complaint that is taken on or after 1 July 1994 is to be taken under new Part 10 of the Act. In that case, the determination or termination is to be treated as if it had been under new Part 10 of the Act by the new Tribunal. Examples of further action are a review of the determination, a reference of the complaint to the Tribunal or an appeal.

(3) To the extent that a complaint has been the subject of proceedings before the former Tribunal, this clause applies to the complaint whether the proceedings are in relation to the review of the determination of a complaint by the former Board or they are in relation to a complaint referred directly to the former Tribunal.

(4) A reference in this clause to a determination:


(a) is a reference to a determination that continues to have effect after 30 June 1994; and

(b) includes a determination that, because of this clause, is made under a provision of former Part 10 of the Act on or after 1 July 1994; and

(c) includes a reprimand or order made as a result of a determination.

Continuation of former Board and former Tribunal

32. (1)The former Board continues in existence (as constituted immediately before 1 July 1994) for the purposes of determining any proceedings under clause 31.

(2) The provisions of former Part 10 of the Act that relate to the constitution and functions of the former Board continue to apply to the former Board while it continues in existence under this clause.

(3) The former Tribunal continues in existence (as constituted immediately before 1 July 1994) for the purposes of determining any proceedings under clause 31.

(4) The provisions of former Part 10 of the Act that relate to the constitution and functions of the former Tribunal continue to apply to the former Tribunal while it continues in existence under this clause.

8 On 6 October 1998 the Act and the Administrative Decisions Legislation Amendment Act 1997 commenced. Schedule 5 clause 6 (1) of the Act abolished the Legal Services Tribunal.

9 Schedule 5 clause 14 of the Act is in the following terms:

14 Pending proceedings before an abolished body

(1) If proceedings were commenced but not heard by an abolished body before its abolition, the proceedings are taken to have been duly commenced in the ADT.

(2) If an abolished body had commenced to hear (but had not determined) a matter before its abolition, the person or persons hearing the matter:
(a) are to continue to hear the matter, and to determine the matter, sitting as the ADT, and

(b) have and may exercise, while sitting as the ADT under this clause, all the functions that the abolished body had immediately before its abolition.

(3) This clause applies despite any contrary provision of this Act.

10 Mr Tedeschi’s application was heard on 1 September 1999 and we reserved our decision. Our appointments as members of the Tribunal expired on 30 September 1999 before we were able to complete our consideration of the application.

11 On 4 November 1999 the Registrar wrote to the solicitors for each party informing them of the expiry of our appointments and of the fact that each of us has been reappointed as members of the Tribunal. The application was relisted for a fresh hearing today. The solicitors for each party indicated to the Registrar prior to today that no additional submissions would be made and that we could proceed to deal with the application on the basis of the submissions made on 1 September 1999. That was confirmed by the legal representatives of the parties who appeared before us today, and we have proceeded on that basis.

12 The submissions made by Mr Porter QC on behalf of Mr Tedeschi can be summarised as follows:

1. When the complaint document was filed in the Legal Profession Disciplinary Tribunal on 17 March 1993, the complaint made by the Legal Aid Commission against Mr Tedeschi became the subject of proceedings before that Tribunal

(see subclause 31 (1));

2. As a result of the filing of that complaint document, the complaint was the subject of proceedings before the Legal Profession Disciplinary Tribunal (see subclause 31 (1));

3. The scheme of clauses 30 - 32 of the Legal Profession Regulation 1994 was that:

(a) if initiating process had not been filed in the Legal Disciplinary Tribunal concerning a complaint, then that complaint could be the subject of initiating process before the Legal Services Tribunal (see subclauses 30 (2) and (3)); but

(b) if a complaint had been the subject of initiating process before the Legal Profession Disciplinary Tribunal, then only that Tribunal could hear the complaint (see subclause 31 (1)).

4. The decision of Cole JA (with whom Meagher JA agreed) in The Council of the Law Society of New South Wales v Nutt & Anor was directly in point and was authority for the above submissions.

13 Mr Garling SC who appeared for the Council submitted that clauses 30 - 32 of the Legal Profession Regulation 1994 had to be viewed in the light of the new regime created by the amendments to the Legal Profession Act 1987, which took effect on 1 July 1994. This new regime was brought about by the Legal Profession Reform Act 1993 which substituted a new Part 10 in the Legal Profession Act 1987. It included in that new Part 10, section 129 which enabled the Governor to appoint a person to be Legal Services Commissioner. The Commissioner's functions included a function to receive complaints about professional misconduct or unsatisfactory professional conduct of legal practitioners. The Commissioner could refer a complaint for investigation to a Council. After investigation by a Council, it was required to institute proceedings in the Legal Services Tribunal with respect to a complaint against the legal practitioner if satisfied that there was a reasonable likelihood that the legal practitioner would be found guilty by that Tribunal of unsatisfactory professional conduct or professional misconduct (sections 131, 142 and 155.)

14 Mr Garling also submitted that it was clear that the intention was that the Legal Services Tribunal would have jurisdiction over conduct which occurred prior to 1 July 1994. In support of that submission he drew attention to clauses 37 and 38 in Schedule 8 to the Legal Profession Act 1987. The Legal Profession Reform Act 1993 inserted Part 6 in Schedule 8. Part 6 is in the following terms:

Part 6 - Provisions consequent on enactment of Schedule 2 to the Legal Profession Reform Act 1993

Previous conduct

37. (1) Part 10, as substituted by the Legal Profession Reform Act 1993, applies to conduct occurring before or after the substitution of that Part (including professional misconduct occurring before the commencement of the Legal Profession Act 1987, but not including unsatisfactory professional conduct occurring before that commencement).

(2) This clause is subject to clause 38.

Continuation of pending proceedings

38. Without limiting clause 1A, the regulations under that clause may make provision for or with respect to complaints and disciplinary proceedings pending on the commencement of this clause and to orders made in those proceedings or in any such proceedings completed before that commencement.

Superseded bodies

39. (1) The Legal Profession Disciplinary Tribunal, the Legal Profession Standards Board and the Legal Profession Conduct Review Panel are abolished.

(2) A person who held office as a member of the Legal Profession Disciplinary Tribunal, the Legal Profession Standards Board or the Legal Profession Conduct Review Panel immediately before its abolition ceases to hold office and is not entitled to any remuneration or compensation for the loss of that office.
(3) However, any such person is eligible (if otherwise qualified) to be appointed as a member of the Legal Services Tribunal.

Construction of superseded references

40. In any other Act or in any statutory instrument or in any other instrument:

(a) a reference to the Disciplinary Tribunal or the Legal Profession Disciplinary Tribunal is to be read as a reference to the Legal Services Tribunal; or

(b) a reference to the Professional Standards Board or the Legal Profession Standards Board is to be read as a reference to the Legal Services Tribunal; or

(c) a reference to the Professional Conduct Review Panel or the Legal Profession Conduct Review Panel is to be read as a reference to the Legal Services Commissioner .

15 Clause 39 abolished the Legal Profession Disciplinary Tribunal and Mr Garling submitted that the intention was to have a transition from the Legal Profession Disciplinary Tribunal to the Legal Services Tribunal.

16 He also submitted that the words "the subject of proceedings" in clause 31 (1) of the Legal Profession Regulation 1994, meant "the subject of a hearing on the merits which had commenced before the Legal Profession Disciplinary Tribunal". In support of that submission he submitted that the complaint referred to in clause 30(1), was a complaint made by a consumer to a Council.

17 He submitted that the lodgment (or filing) of a document with the Legal Profession Disciplinary Tribunal did not result in there being a proceeding before that Tribunal (see subclause 31(1)) and it was not the commencement of proceedings in that Tribunal.

18 He submitted that what had occurred in this case fell within the second sentence of subclause 30 (2) and was a complete answer to the submissions made on behalf of Mr Tedeschi. He submitted that the filing of the complaint document on 17 March 1993 was a matter that had been referred to the Legal Profession Disciplinary Tribunal by the Council and that it had not, by 1 July 1994, been the subject of proceedings before that Tribunal. The result was, so he submitted, that the present complaint was taken to be a matter referred to the Legal Services Tribunal under the new Part 10 of the Legal Profession Act 1987 in force on 1 July 1994.

19 He submitted that if the Legal Services Tribunal had jurisdiction in respect of this matter then this Tribunal has jurisdiction.

20 He submitted that the statement made by Cole JA at p28 in Nutt's case, "If proceedings had been commenced in respect of that complaint prior to 1 July 1994, such proceedings would fall within Regulation 31 (1), or if those proceedings have been determined, within Regulation 31 (2)" was obiter dicta and not necessary for the decision in that case.

21 Mr Garling conceded that unless the proceedings were deemed to have been commenced by virtue of subclause 30 (2) of the Legal Profession Regulation 1994, they did not come within clause 14 of Schedule 5 to the Act. In other words he conceded that even if it might be said that the filing of the complaint document on 17 March 1993 was the commencement of proceedings in the Legal Profession Disciplinary Tribunal, that by itself would not be sufficient to bring the proceedings within clause 14 of Schedule 5.

The Council of the Law Society of NSW v Nutt and anor

22 For present purposes, the relevant facts in Nutt's case can be summarised as follows:

(a) On 27 April 1992 a Mrs Warner made a complaint to the Law Society concerning Nutt;

(b) On 12 August 1993 the Council of the Law Society resolved that the questions of professional misconduct referred to in the complaint be referred to the Legal Profession Disciplinary Tribunal pursuant to section 134(1)(c) of the Legal Profession Act 1987; and

(c) On 15 September 1994 pursuant to the above resolution, a complaint was filed in the Legal Services Tribunal. The complaint was entitled 'Legal Profession Disciplinary Tribunal'.

23 The question for determination was whether the Legal Services Tribunal had jurisdiction to hear the complaint.

24 Mahoney AP was of the opinion that the Council's resolution of 12 August 1993 was an operative referral of the complaint to the Legal Profession Disciplinary Tribunal within the second sentence of clause 30(2) of the Legal Profession Regulation 1994 with the result that the Legal Profession Tribunal had jurisdiction.

25 Cole JA was of the view that the second sentence of clause 30(2) had a different meaning. His Honour said at p28:

In my view it is also clear that the second sentence of Regulation 30(2) bears no application to the instant case because the complaint was not one which "has been referred under former Part 10 of the Act to... the former Tribunal by a Council". It had been resolved to refer the matter but, in fact, it had not been referred by the necessary commencement of the appropriate proceedings in accordance with Rule 8 of the Legal Profession Disciplinary Tribunal Rules. In my opinion a resolution to refer a matter is both preliminary to and different from actual referral by commencement of appropriate proceedings.

26 However his Honour concluded that the Legal Services Tribunal did have jurisdiction because in his view the requirements of the first sentence of clause 30(2) had been satisfied. His Honour's judgment continued:

The question thus remains whether the present circumstance falls within Regulation 30(2). In my view it does. The first sentence of Regulation 30(2) encompasses by use of the word "complaint", a complaint made by a person to the Council prior to 1 July 1994 but which had not yet been the subject of proceedings before the former Tribunal. If proceedings had been commenced in respect of that complaint prior to 1 July 1994, such proceedings would fall within Regulation 31(1), or if those proceedings had been determined, within Regulation 31(2).

It follows, in my opinion, that "the complaint" made to the Council by Mrs Warner, being a complaint made before 1 July 1994, "is to be dealt with as if it had been made under new Part 10 of the Act".

27 Meagher JA agreed with Cole JA.

28 Nutt's case has been subsequently considered by the Court of Appeal in The Council of the NSW Bar Association v Stone (1996) 2 LPDR 25. The Court found it unnecessary to express any concluded view on the disagreement between Cole and Meagher JJ on the one hand and Mahony AP on the other hand. At p28 Brownie AJA said that the Court was not asked to reconsider the decision in Nutt. He said that if he had to choose between the three possible constructions which he had summarised (which included the differing views as to the meaning of the second sentence of clause 30(2) which we have referred to above), he would prefer that propounded by Cole JA. Powell JA stated that he preferred to refrain from determining which of the alternative approaches revealed by the several judgments in Nutt was to be preferred until it was necessary to do so. At p25 Sheller JA said that he saw no reason not to follow the majority conclusion in Nutt which seemed to him to accord with what Mahony JA concluded on page 11 of his unreported judgment (pp26\27 of the reported judgment).

What did Cole JA mean?

29 Cole JA was of the view that:

1. A resolution by a Council to refer a complaint to the Legal Profession Disciplinary Tribunal, was not a referral within clause 30 (2);

2. A complaint was referred to the Legal Profession Disciplinary Tribunal by the commencement of the appropriate proceedings in accordance with rule 8 of the Legal Profession Disciplinary Tribunal Rules (i.e. the filing with the Registrar of a complaint);

3. A complaint made by a person to a Council prior to 1 July 1994 which had not before that date been the subject of proceedings before that Tribunal, fell within the first sentence of clause 30 (2); and

4. If proceedings had been commenced in respect of that complaint prior to 1 July 1994, such proceedings would fall within clause 31 (1), or if those proceedings had been determined, within clause 31 (2).

30 In our view when Cole JA stated "If proceedings had been commenced in respect of that complaint prior to 1 July 1994, such proceedings would fall within Regulation 31 (1)", he must be taken to have meant the commencement of proceedings in accordance with rule 8 of the Rules. Immediately prior to his statement concerning the proceedings falling within clause 31 (1) he had referred to the commencement of proceedings in accordance with rule 8. If he had intended to mean something different when he used the words "If proceedings had been commenced in respect of that complaint prior to 1 July 1994,", he would have said so. In other words it cannot be concluded that when he said "If proceedings had been commenced in respect of that complaint prior to 1 July 1994" he meant the commencement of the hearing of proceedings before the Tribunal.

Ratio decidendi of Cole JA's judgment

31 In our view the statement by Cole JA that "If proceedings had been commenced in respect of that complaint prior to 1 July 1994, such proceedings would fall within Regulation 31 (1)" was expressly or impliedly treated by him as a necessary step in reaching his conclusion that "the first sentence of Regulation 30 (2) encompasses by use of the word 'complaint', a complaint made by a person to the Council prior to 1 July 1994 but which had not been the subject of proceedings before the former Tribunal" and was expressly or impliedly treated by him as a necessary step in reaching his conclusion that the complaint made to the Council by Mrs Warner, was to be dealt with as if it had been made under the new Part 10 of the Act.

32 Accordingly in our view all of this reasoning process was part of the ratio decidendi of the case and this Tribunal is bound by his Honour's statements of the law. (Precedent in English Law - Cross & Harris 4th Edn pp72, 74. Commissioner of Taxation v Salenger (1988) 81 ALR 25. Proctor v Jetway Aviation Pty Ltd (1984) 1 NSWLR 166 at 177 A - C). Alternatively if the statement by Cole JA that "If proceedings had been commenced in respect of that complaint prior to 1 July 1994, such proceedings would fall within Regulation 31 (1)" was only dicta, as it was agreed to by Meagher JA, it would not be seemly for this Tribunal not to follow Nutt's case (cf Mills v London County Council (1925) KB 213 at 224).

33 It therefore follows that the Tribunal is bound to conclude that it has no jurisdiction.

34 Before concluding this determination we draw attention to the following matters which raise a doubt as to whether the reasoning of Cole JA is correct and the possible need to review the decision in Nutt's case.

35 The holding by Cole JA that "If proceedings had been commenced in respect of that complaint prior to 1 July 1994, such proceedings would fall within Regulation 31 (1)", (when taken with his holding that a complaint was referred to the Tribunal by the commencement of proceedings in accordance with Rule 8 of the Legal Disciplinary Tribunal Rules) appears to give no operation to the second sentence of clause 30 (2) where proceedings had been commenced in the Tribunal prior to 1 July 1994 but had not been the subject of a hearing before that Tribunal.

36 If it be correct to say (as is implicit in what Cole JA said) that proceedings were referred to the Tribunal by the filing of a complaint, clause 30(2) appears to draw a distinction between: (a) a matter which had been commenced by the filing of a complaint; and (b) a matter which had been commenced by the filing of a complaint but which had not been the subject of proceedings before the Tribunal. That distinction appears to be inconsistent with the view that once proceedings had been commenced they came within clause 31(1) i.e. they were the subject of proceedings before the Tribunal that were pending.

37 An alternative line of reasoning, as advanced by the Council, gives operative effect to clause 30(2) and clause 31(1) - i.e. there is a distinction to be drawn between a matter which has been commenced in the Tribunal and a matter which is the subject of proceedings before the Tribunal. Support for this reasoning is obtained by giving the word 'before', the meaning of 'in the presence or sight of' (The Macquarie Dictionary, 2nd edition; Black's Law Dictionary, 6th edition). Clause 31(1) also appears to support that reasoning when it uses the word 'before' on two occasions. The use of the word on the second occasion in that clause appears to mean in the presence or sight of the Tribunal.

38 This distinction between a matter which has been commenced and a matter which is the subject of proceedings before the Tribunal seems to have been specifically drawn to cover transitional situations brought about by the amendments made to the Legal Profession Act 1987, by the Legal Profession Reform Act 1993.

39 There appears to be some force in the argument that if the word "before" is given the above meaning, then clauses 30 and 31 become clear:

(a) clause 30 deals with those situations where a complaint made before 1 July 1994 had not been the subject of proceedings in the presence of the former Tribunal - the matter is taken to be referred to the new Tribunal under the new Part 10 of the Act;

(b) clause 31 deals with those situations where:

(i) the complaint as at 1 July 1994 was the subject of proceedings then pending in the presence of the Tribunal - the proceedings are to be continued and determined by that Tribunal as if the former Part 10 of the Act was still in force;

(ii) a complaint made under the former Part 10 of the Act had been determined or there had been a termination of the proceedings - any further action in respect of the complaint on or after 1 July 1994 is to be taken under the new Part 10 of the Act.

Costs

40 No submissions have been made to the Tribunal as to whether it has power to make a costs order and if it does, what order it should make. Accordingly if either party seeks an order for costs the solicitor for that party should write to the Registrar within 14 days giving notice that an order for costs is sought. The proceedings can then be relisted for argument as to what order, if any, should be made.

Last Updated: 12/07/1999