De Pardo v Legal Practitioners Complaints Committee

[2000] FCA 335

FEDERAL COURT OF AUSTRALIA

DE PARDO v LEGAL PRACTITIONERS COMPLAINTS COMMITTEE
[2000] FCA 335

SUMMARY 

The following is a summary of the judgments of the Full Court of the Federal Court in the case of De Pardo v Legal Practitioners Disciplinary Tribunal.  It does not form part of the Reasons for Judgment which must be derived from reading the judgments themselves.

In this case a Western Australian barrister was instructed by a solicitor to represent a client in the Family Court of Western Australia which exercises its jurisdiction under Federal and State law.  The case settled and the barrister sent the solicitor a bill.  The solicitor complained to the Legal Practitioners Complaints Committee that the bill was so excessive as to amount to unprofessional conduct.  The Committee referred the complaint to the Legal Practitioners Disciplinary Tribunal, which is set up under the Legal Practitioners Act 1893, a law of the State of Western Australia.

The barrister took out an application in this Court and argued before Justice Lee that the Tribunal, as a body set up under State law, had no power to inquire into a complaint of gross overcharging in proceedings under the federal Family Law Act. He argued that:

1.The federal Family Law Act provides complete coverage on issues about costs charged by barristers and solicitors in family law proceedings and so displaces the State law for the disciplining of practitioners in that regard.

2.The Tribunal’s inquiry would involve it acting as a court purporting to exercise federal jurisdiction which it is not authorised to do under the Constitution.

Justice Lee dismissed the barrister’s application.  The barrister appealed to the Full  Court and the Full Court has today dismissed the appeal. Justices French and Carr wrote separate judgments with which Justice Whitlam agreed.

In dismissing the appeal the Court pointed out that the function of the Tribunal in deciding whether there has been unprofessional conduct by gross overcharging is quite different from the function of the Family Court in deciding what is the charge that can properly be made between barristers and solicitors and solicitors and their clients in family law cases. Also the ability of a lawyer to practise in a federal court ultimately depends upon the lawyer being qualified to practise under State law and that is a matter for which State law and the State Supreme Courts and tribunals set up under the State law have traditionally taken responsibility. There is therefore no inconsistency between the State law regulating the conduct of practitioners admitted in Western Australia and the federal Family Law Act.

The Full Court also held that the Tribunal was not exercising any federal jurisdiction in inquiring into the complaint and so no question could arise of it exercising federal judicial power contrary to the Constitution.

Perth, 23 March 2000

FEDERAL COURT OF AUSTRALIA

De Pardo v Legal Practitioners Complaints Committee [2000] FCA 335

CONSTITUTIONAL LAW – inconsistency – State law regulating legal practitioners – Tribunal established under State law to inquire into allegations of unprofessional conduct – complaint of gross overcharging by counsel in proceedings in State court exercising federal jurisdiction – whether Family Law Act 1975 and Judiciary Act 1903 cover the field excluding application of State law relating to unprofessional conduct – whether State disciplinary authority purporting to exercise federal judicial power.

LEGAL PRACTITIONERS – practitioner admitted by Supreme Court of a State under State legislation – disciplinary proceedings by State Tribunal in respect of conduct in practice of law in State court exercising federal jurisdiction – application by practitioner to restrain proceedings – nature of proceedings undertaken by State Tribunal – gross overcharging amounting to unprofessional conduct – nature of inquiry to determine unprofessional conduct– whether inquiry involves assessment of taxed costs – whether inconsistence with provisions of federal law relating to taxation of costs in federal proceedings – whether impermissible exercise of federal judicial power.

Legal Practitioners Act 1893 (WA) s 22(1), s 3. S 28C(1), s 28D, s 29A, s 65
Family Law Act 1975 (Cth) s 47, s 122, s 123(g), s 4(1)
Judiciary Act 1903 (Cth)
Family Court Act 1975 (WA)
Family Court Act 1997 s 27, s 88A(1)(h)

R v Licensing Court; Ex parte Daniell (1920) 28 CLR 23 referred to
Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466 referred to
Ex parte McLean (1930) 43 CLR 472 applied
Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 discussed
In re: A Solicitor Ex parte The Law Society [1912] 1 KB 302 discussed
Re R – A practitioner of the Supreme Court [1927] SASR 58 approved
Re: A Practitioner of the Supreme Court [1937] SASR 316 cited
Re Veron Ex parte Law Society of New South Wales (1966) 84 WN (Pt 1) (NSW) 136 applied
In the Matter of a Practitioner (1975) 12 SASR 166 cited
Re: A Practitioner (unrep SCWA Library No 4989, 18/7/1983) discussed
Kyle v Legal Practitioners Committee (1999) 21 WAR 56 discussed
Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 applied
In Re Davis (1947) 75 CLR 409 applied
Clyne v New South Wales Bar Association (1960) 104 CLR 186 cited
D’Alessandro v Legal Practitioners Complaints Committee (1995) 15 WAR 198 discussed
Silver v Consumer Claims Tribunal (1979) 36 FLR 281 cited
Baker-Johnson v Dregmans (1996) 20 Fam LR 306 cited
Ffrost v Stevenson (1937) 58 CLR 528 cited
Minister of State for the Army v Parbury Henty & Co Pty Ltd (1945) 70 CLR 459 cited
Felton v Mulligan (1971) 124 CLR 367 cited
Kable v Director of Public Prosecutions (1996) 189 CLR 51 cited
Little v Registrar of the High Court (1991) 29 FCR 544 applied
Yamaji v Westpac Banking Corporation (No 1) (1993) 42 FCR 431 cited
Caboolture Park Shopping Centre Pty Ltd (In Liq) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224 cited
Re Colina; Ex parte Torney (1999) 166 ALR 545 cited
Porter v R; Ex parte Yee (1926) 37 CLR 432 cited
R v Commonwealth Court of Conciliation and Arbitration Ex parte Barrett (1945) 70 CLR 141 applied
Moorgate Tobacco Co Ltd v Philip Morris Limited (1960) 145 CLR 457 applied
Miller v Miller (1978) 53 ALJR 59 referred to

NINO ANTHONY DE PARDO v LEGAL PRACTITIONERS COMPLAINTS COMMITTEE, LEGAL PRACTITIONERS DISCIPLINARY TRIBUNAL
W45 of 1999

FRENCH, WHITLAM AND CARR JJ
23 MARCH 2000
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W45 OF 1999

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

NINO ANTHONY DE PARDO
Appellant

AND:

LEGAL PRACTITIONERS COMPLAINTS COMMITTEE
First Respondent

LEGAL PRACTITIONERS DISCIPLINARY TRIBUNAL
Second Respondent

JUDGES:

FRENCH, WHITLAM AND CARR JJ

DATE OF ORDER:

23 MARCH 2000

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1.        The appeal is dismissed.

2.        The Appellant is to pay the First Respondent’s costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W45 OF 1999

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

NINO ANTHONY DE PARDO
Appellant

AND:

LEGAL PRACTITIONERS COMPLAINTS COMMITTEE
First Respondent

LEGAL PRACTITIONERS DISCIPLINARY TRIBUNAL
Second Respondent

JUDGES:	FRENCH, WHITLAM AND CARR JJ
DATE:	23 MARCH 2000
PLACE:	PERTH

REASONS FOR JUDGMENT

French J:
Introduction

1. This case concerns a barrister who faces a complaint made by his instructing solicitor in connection with proceedings in the Family Court of Western Australia in which he was briefed.  The complaint asserted that the barrister was guilty of gross overcharging amounting to unprofessional conduct.  It has been referred by the Legal Practitioners Complaints Committee to the Legal Practitioners Disciplinary Tribunal, established under the Legal Practitioners Act 1893 (WA).

2. Proceedings were instituted in this Court to restrain the Tribunal from continuing with its inquiry on the basis, broadly stated, that the question of overcharging involved the assessment of costs in proceedings in a court exercising federal jurisdiction and that this was an area covered entirely by federal law, namely the Family Law Act 1975 (Cth). The question of unprofessional conduct in such a case was also said to be covered by the provisions of the Judiciary Act 1903 (Cth). These Commonwealth Acts, covering the field of the Tribunal’s inquiry, were said to have rendered inoperative the State law under which the Tribunal operates, to the extent that that law authorises such an inquiry. Further, it was contended that the proposed inquiry was an impermissible exercise by the Tribunal of the judicial power of the Commonwealth, a power which could only be exercised by a federal court created under the Constitution, or by a State court invested with the relevant federal jurisdiction. Lee J at first instance dismissed the application. The barrister, Mr De Pardo, now appeals against that decision.

   Factual Background

3. Nino Anthony De Pardo is admitted as a legal practitioner of the Supreme Court of Western Australia. He practices in the area of family law as a barrister. He is registered as a practitioner of the High Court on the Register of Practitioners maintained under s 55B of the Judiciary Act.  On or about 18 December 1991, De Pardo was instructed by Mr C W Marais, the principal of C W Marais & Co, Barristers and Solicitors of Bunbury, to act on  Marais’ instructions for his client, Walter Bruce Hearman.  Mr Hearman was a party to proceedings in the Family Court of Western Australia involving:

   (a)An application for dissolution of marriage.

   (b)Custody, access and maintenance of children.

   (c)Settlement of property.

   De Pardo accepted the instructions and thereafter acted for Hearman on instructions from Marais in what became contested proceedings in the Family Court.  Ultimately those proceedings were settled by consent orders on 4 March 1993, the first day of what had been listed for four days as a contested hearing.  In the course of his retainer, De Pardo rendered three memoranda of professional fees, including one on 23 June 1992 and another on 5 March 1993.  According to De Pardo, counsel fees which he charged to CW Marais & Co for the Hearman case were calculated in accordance with rates agreed between Marais and Hearman, namely $1,500 per day or for an appreciable part thereof for court appearances plus $180 per hour for each hour taken up with phone calls, conferences and in the general preparation of the matter for any hearing or conference.  Each of the memoranda of fees which he submitted to CW Marais & Co was paid.  In addition, according to De Pardo, Marais expressly agreed to pay him a reservation fee for the days that he set aside for the anticipated trial.

4. In or about September 1993, Hearman complained about the fees which he had been charged by CW Marais & Co including counsel fees.  As a result of proceedings taken by Hearman:

   (a)On or about 16 August 1995, the Family Court of Western Australia ordered that the costs agreement made between Marais and Hearman dated 3 January 1992 be set aside.

   (b)A taxation of the costs rendered by Marais to Hearman was conducted by a Deputy Registrar of the Family Court of Western Australia on 8 May 1996. The Deputy Registrar’s decision, with reasons, was delivered on 20 June 1996, resulting in the costs as claimed being significantly reduced.

5. In the course of the taxation proceedings in the Family Court an application was filed by Marais on 24 November 1995 seeking an order that De Pardo be joined as a party to those proceedings and that the costs payable by Marais to De Pardo be taxed.  Alternatively, an order was sought that De Pardo refund to Marais the costs paid by him in excess of the amount  allowed on the taxation of costs as between Marais and the husband.  De Pardo evidently opposed the application on the grounds that it was between a non-party to a marriage and another non-party and was not a matrimonial cause and that therefore the Family Court had no jurisdiction.  Marais’ application was dismissed.

6. On 23 June 1997, the Law Complaints Officer for the Legal Practitioners Complaints Committee, issued a reference out of the Legal Practitioners Disciplinary Tribunal alleging unprofessional conduct on the part of De Pardo in the following terms:

   “Between 18 December 1992 and 5 March 1993 the practitioner was guilty of unprofessional conduct in that as a barrister he charged by way of counsel fees rendered to his instructing solicitor in the matter of Hearman, the following sums which were in all the circumstances, grossly excessive.

   1.In a memorandum of fees dated 23^rd June 1992 the following item:

   “19.6.92

   Brief to appear at Bunbury Court  $1,500”

   2.In a memorandum of fees dated 5^th March 1993 the following items:

   “21, 22, 23 and 24.2.93

   preparing issues of property settlement for trial

   appearing at Order 24 conference

   negotiating and resolving all issues relating to property settlement

   $10,000”

   “4.3.93

   brief at trial

   4 days reserved – charge for three days  $ 4,500”

7. At a hearing on 29 January 1998 before the Legal Practitioners Disciplinary Tribunal, De Pardo’s counsel sought further and better particulars of the Reference from the Legal Practitioners Complaints Committee.  At that time, De Pardo had foreshadowed an application that the Tribunal determine certain preliminary issues with respect to the Reference.  However, the Chairman of the Tribunal informed his counsel that the application to determine preliminary issues would not be heard until the hearing date of the Reference itself which was set down for 30 and 31 March 1998.

8. On 9 March 1998, De Pardo filed in this Court an application claiming a declaration that it was beyond the competence of the Legal Practitioners Complaints Committee to prosecute and the Legal Practitioners Disciplinary Tribunal to hear and determine the reference. Associated injunctive relief was also sought. A statement of claim filed with the application, asserted that the proceedings in the Family Court of Western Australia and all incidental questions arising therein, including costs, related to “matrimonial causes” within the meaning of s 51(xxii) of the Constitution and s 4 of the Family Law Act (Cth). As such, it was said, all questions and issues arising in the proceedings were within the exclusive federal jurisdiction of the Family Court of Australia or the Family Court of Western Australia exercising federal jurisdiction. Neither the Family Court of Western Australia, it was said, nor any other court or tribunal of competent jurisdiction had carried out an assessment or conducted a taxation of the costs rendered to Marais by De Pardo as counsel. It was then said in the statement of claim:

   “12.The prosecution and determination of the Reference as proposed will inevitably involve an inquiry into, and an adjudication upon a matrimonial cause, namely, what are proper fair and reasonable costs chargeable by the applicant for the services which he provided with respect to the matrimonial causes in the proceedings.

   13.The Family Court of Western Australia has exclusive jurisdiction to determine the reasonableness of the costs charged by the applicant to his instructing solicitor such that it is beyond the competence of the first respondent to prosecute the Reference issued out of the second respondent and it is beyond the competence of the second respondent to hear and determine the Reference. “

9. The application came on before Lee J on 21 August 1998 and his Honour delivered judgment on 26 May 1999.  He dismissed the application with costs.  De Pardo now appeals against the dismissal of the application.

   The Judgment at First Instance

10. His Honour identified as the crucial questions before him:

    1.Whether the Legal Practitioners Act 1893 when applied to the circumstances of this case was inconsistent with the provisions of the Judiciary Act 1903 (Cth) and the Family Law Act 1975 (Cth).

    2.Whether a determination by the Legal Practitioners Disciplinary Tribunal in the circumstances of this case would constitute an exercise of the judicial power of the Commonwealth by a body in which that power could not be vested under s 71 of the Constitution.

    His Honour referred to provisions of the Judiciary Act establishing a Register of Practitioners, inclusion on which is a condition of a person’s entitlement to practise in a Federal Court.  He did not accept that the disciplinary provisions of the Legal Practitioners Act are inconsistent with the provisions of the Judiciary Act or the Family Law Act.  While the Commonwealth legislation defines persons entitled to practise in Federal Courts and State Courts exercising federal jurisdiction, its recognition of their entitlement is complementary and governed substantially by continuation of a person’s entitlement to practice law in the Supreme Court of the State.  Although the Judiciary Act provides for the Supreme Court of a State to exercise disciplinary procedures in respect of a practitioner who has a right of audience in State Courts exercising federal jurisdiction, his Honour held that the context in which that provision appears does not suggest an intention to exclude the jurisdiction of the Supreme Court to determine such issues under relevant State legislation.  He also held that the disciplinary power granted to the High Court under the Judiciary Act was not intended to exclude the disciplinary function of the Supreme Court in respect of any conduct by any practitioner admitted to practise by the Supreme Court, who by reason of that admission is also entitled to practise as a barrister or solicitor in a federal court.  The jurisdiction conferred on the High Court by the Judiciary Act is to be read as providing for an additional disciplinary power appropriate for exercise in certain circumstances.

11. Where legislation of a State or Territory provides for taxation proceedings to resolve disputes in respect of costs rendered by a practitioner that jurisdiction, in his Honour’s opinion, is to be regarded as concurrent with the jurisdiction to regulate charges levied by practitioners exercisable by a Federal Court under federal legislation.  In other than special circumstances disputes over costs incurred in relation to the exercise of federal jurisdiction can be resolved under the provisions of the State or Territory laws.  His Honour therefore rejected the inconsistency argument.

12. His Honour then turned to the question whether the hearing and determination by the Tribunal of the Reference from the Committee would constitute a purported exercise of the judicial power of the Commonwealth.  De Pardo had asserted that the assessment or taxation of the counsel fees rendered by him was part of a “matrimonial cause” and that only a court on which federal jurisdiction in respect of such matters had been conferred could determine the reasonableness of such fees.  He had submitted that determination by the Tribunal would inevitably involve an inquiry into and an adjudication upon a matrimonial cause, namely what were proper, fair and reasonable costs chargeable for the services provided by De Pardo with respect to that matrimonial cause.  His Honour rejected De Pardo’s contention, holding that the hearing and determination by the Tribunal of the Committee’s complaint would not have the character of an exercise of the judicial power of the Commonwealth.  He said:

    “The task of the Tribunal is to ascertain whether De Pardo has been guilty of unprofessional conduct and if so whether to deal with De Pardo under s 29A(3) or make, and transmit, a report to the Supreme Court under s 29A(2).  No part of that procedure will determine the existing rights at law of parties in dispute in a matter of federal jurisdiction.”

    Whether in the performance of its functions the Tribunal used the trappings of the exercise of judicial power was immaterial, for it was not an adjudication involving the exercise of a judicial power of the Commonwealth.

    Statutory Framework – The Judiciary Act 1903

1. The relevant provisions of the Judiciary Act 1903 are to be found in Part VIIIA entitled “Legal Practitioners”.  Part VIIIA of the Act was introduced by the Judiciary Act 1966 (Cth). It supplanted s 49 which had simply conferred upon any person entitled to practise as a barrister or solicitor in any State, the like right to practise in any federal court. There was provision for a Register of Practitioners to be kept at the Principal Registry and in s 49(4) it was provided:

   “The High Court may direct the name of any person to be struck off the Register upon proof that he has been guilty of conduct which renders him unfit to be allowed to continue to practice as a barrister or solicitor, or that he has been deprived by the Supreme Court of the State, by virtue of his right to practice wherein he was registered, of the right to practice in that State as a barrister or Solicitor.”

   The amendment which introduced Part VIIIA enacted ss 55A, 55B(1) to (3) and 55C in substantially their present terms. Subsections (4) to (10) of s 55B were introduced by later amendments.

2. By s 55A, a person admitted to practise as a barrister or solicitor, or both, under rules made by the Justices of the High Court in pursuance of s 86(ga) of the Judiciary Act is entitled to practise in any federal court as a barrister or solicitor or both. Practitioners’ admission rules were made which appear in Volume 3 of the 1956 Consolidation of Statutory Rules at p 2854. They were amended by SR 1978 No 151 and repealed by SR 1982 No 119. The Roll of Barristers and Solicitors admitted pursuant to the Rules continues. There are no current rules of the High Court under which a person may become entitled to practice in a federal court. However s 55B provides that entitlement to practise as a barrister or solicitor, or both, in the Supreme Court of a State or Territory confers the like entitlement to practise in any federal court. It also provides for the discretionary establishment of Registers of Practitioners with a right to practise in courts exercising federal jurisdiction and Territory courts exercising “federal-type jurisdiction”. The material parts of s 55B are as follows:

   “55B(1)  Subject to this section, a person who:

   (a)is for the time being entitled to practise as a barrister or solicitor, or as both, in the Supreme Court of a State; or

   (b)is for the time being entitled, under a law (including this Act) in force in a territory, to practise as a barrister or solicitor, or as both, in the Supreme Court of that Territory;

   has the like entitlement to practise in any federal court.

   (2)  A person is not entitled to practise in a federal court as a solicitor by reason of paragraph (b) of the last preceding subsection unless:

   (a)he or she has been admitted to practise as a solicitor or legal practitioner by the Supreme Court of the Territory; or

   (b)he or she practises as a solicitor in the Territory and his or her sole or principal place of business as a solicitor is in the Territory.

   (3)  A person is not entitled to practise as a barrister or solicitor in a federal court by reason of subsection (1) unless his or her name appears in the Register of Practitioners kept in accordance with the next succeeding section as a person entitled to practise in that capacity.

   (4)  A person who is, under subsection (1), entitled to practise as a barrister or solicitor, or both, in any federal court has a right of audience:

   (a)in any court of a State in relation to the exercise by the court of federal jurisdiction; and

   (b)in any court of an internal Territory in relation to the exercise by the court of federal-type jurisdiction.

   (5)  The Chief Justice of the Supreme court of a State or an internal Territory may direct the Registrar or other proper officer of that Supreme Court to keep a Register of Practitioners for the purpose of subsection (4) and, where such a Register is kept in a State or Territory, a person is not entitled, in a court of that State or Territory, to the right of audience referred to in subsection (4) unless he or she is registered in that Register.

   (6)  Where a Register is kept in a State or Territory in accordance with subsection (5), a person who satisfies the Registrar or other officer keeping the Register that he or she is a person referred to in subsection (4) is entitled to be registered in that Register.

   (7)  Where it is proved to the satisfaction of the Supreme Court of a State or Territory constituted by 2 or more judges that a person who is registered in the Register kept in that State or Territory in accordance with subsection (5) has been guilty of conduct that justifies it in so doing, the Supreme Court may order that person’s registration be cancelled or be suspended for a specified period, but the Supreme Court may, at any time, order that the registration of the person be restored or that the suspension be terminated.”

   Sections 55B(8) and (9) provide for alteration and restoration of names to the Register and are ancillary to s 55B(7). Section 55B(10) defines “federal-type jurisdiction” in relation to the court of an internal Territory.

3. Section 55C provides for a Register of Practitioners to be kept by the High Court. The relevant parts of s 55C are as follows:

   “55C(1)For the purposes of section 55B, the Chief Executive and Principal Registrar of the High Court shall cause a Register of Practitioners to be kept at the Registry of the High Court.

   (2)  Where it is shown to the satisfaction of the Chief Executive and Principal Registrar that a person would, but for subsection (3) of the last preceding section, be for the time being entitled by reason of that section to practise as a barrister or solicitor, or as both, in federal courts, the Chief Executive and Principal Registrar shall cause the name of the person, and the capacity in which he is to be entitled to practise, to be entered in the Register of Practitioners.

   (3)  Where, otherwise than by reason of an order by the High Court under subsection (5), the Chief Executive and Principal Registrar is satisfied that a person whose name appears in the Register of Practitioners:

   (a)is not for the time being entitled by reason of the last preceding section:

   (i)to practise in federal courts; or

   (ii)to practise in federal courts in a capacity specified in the Register; or

   (b)would, but for subsection (3) of the last preceding section, be for the time being entitled by reason of that section to practise in federal courts in a capacity not specified in the Register;

   the Registrar shall cause the particulars in the Register in relation to the person to be struck out or amended, as the case requires.

   .

   .

   .

   (5)  Where it is proved to the satisfaction of the High Court that a person whose name appears in the Register of Practitioners has been guilty of conduct that justifies it in so doing, the High Court may:

   (a)order that the person be not entitled to practise in federal courts and that his name be struck off the Register; or

   (b)order that the person’s entitlement to practise in federal courts be suspended for a specified period;

   but the High Court may at any time, by order, revoke or vary such an order.”

   Section 55C(6) and (7) are machinery provisions relating to the alteration of the Register.

4. In the Second Reading Speech for the Bill which became the Judiciary Act 1966, the then Attorney-General, speaking of the new Part VIIIA said:

   “Let me now take the position as to practitioners in the High Court and other federal courts.  Persons who are for the time being entitled to practise in the Supreme Court of a State or Territory will have the like entitlement to practise in federal courts.  To show that they are “for the time being entitled” they will need to hold a current practising certificate from a State or Territory in any case where the State or Territory makes this a test.  The Chief Justice has already issued directions to this effect, and the Bill adopts the Chief Justice’s approach.  Territory practitioners do not at present need to hold practising certificates and, therefore, they will be able to practise in federal courts without holding such certificates.  A State solicitor who has no current practising certificate will not, however, be able to take advantage of this provision.”  Parl Deb H of R 17/3/1966 p 359

5. Relevantly for present proceedings what may be discerned in Part VIIIA of the Judiciary Act 1903, its statutory predecessor in s 49 of the Act and the policy disclosed by the Second Reading Speech to the amending legislation in 1966, is a scheme which is entirely complementary to State schemes for the admission of practitioners.

   Statutory Framework – The Family Law Act 1975  (Cth)

6. The Family Law Act creates the Family Court of Australia (s 21) and confers upon it jurisdiction in matters arising under that Act and associated matters (ss 31 and 33). Subject to the Act a matrimonial cause may be instituted in the Family Court or in the Supreme Court of a State or Territory and certain matrimonial causes in courts of summary jurisdiction of a State or Territory (s 39). The Act contemplates the establishment of State family courts pursuant to agreements between the Commonwealth and the relevant State as to funding for their establishment and administration (s 41(1)). Where a State has created a court known as a Family Court, the Governor-General may, by proclamation, declare that s 41 of the Family Law Act applies to that Court (s 41(2)). And whereby virtue of a proclamation under s 41(2), s 41 applies to a State Family Court, the Family Law Act has effect in relation to the institution of proceedings in that Court as if references to the Supreme Court of a State were references to the State Family Court. The State Family Court is invested with federal jurisdiction accordingly (s 41(3)). Section 47 of the Act provides:

   “47.  All courts having jurisdiction under this Act shall severally act in aid of and be auxiliary to each other in all matters under this Act.”

7. Relevantly for present purposes, s 122 of the Family Law Act provides:

   “122.  A person who is, under Part VIIIA of the Judiciary Act 1903, entitled to practise in any federal court as a barrister or solicitor, or as both, has the like right to practise in any State court exercising jurisdiction under this Act.”

8. Section 123 provides for rules of court to be made by the judges “…providing for or in relation to the practice and procedure to be followed in the Family Court and any other courts exercising jurisdiction under this Act…”. Section 123 expressly authorises, inter alia, the making of rules:

   “(g)prescribing matters relating to the costs of proceedings (including solicitor and client costs and party and party costs) and the assessment or taxation of those costs;”

9. The concept of a “matrimonial cause” derived from s 51(xxii) of the Constitution is given statutory expression as a primary basis of Family Court jurisdiction in s 4(1) of the Family Law Act. There it is defined extensively by reference, inter alia, to:

   “(a)proceedings between the parties to a marriage, or by the parties to a marriage for a decree of:

   (i)        dissolution of marriage; or

   (ii)       nullity of marriage;
   .
   .
   .

   (ca)proceedings between the parties to a marriage with respect to the property of the parties to the marriage or either of them, being proceedings:

   (i)arising out of the marital relationship;

   (ii)in relation to concurrent, pending or completed proceedings between those parties for principal relief; or

   ….”

   Statutory Framework – The Family Court Act 1975 (WA)

10. Western Australia is the only State which has established a State Family Court pursuant to the provisions of the Family Law Act.  The Court is known as the Family Court of Western Australia and was established pursuant to the Family Court Act which has been repealed by the Family Court Act 1997. The jurisdiction of the Court is defined in s 27 of the Act. The Court has, throughout the State, the federal jurisdiction with which it is invested by the Family Law Act or any other law of the Commonwealth (s 27(1)).  In addition the Court has throughout the State the non-federal jurisdictions conferred on it by the Family Court Act.  This includes jurisdiction in respect of the property of parties to a marriage, custody, guardianship, access to, welfare and maintenance of any child of a marriage and other related non-federal jurisdictions (s 27(2)).  The Act contains a general provision that each party shall bear his or her own costs (s 73A(1)).  This is subject to the power of the Court to make such order as to costs as it thinks just in the case of frivolous or vexatious proceedings or other circumstances that may justify such an order (s 82A and s 73A(2)).  Section 88A of the Act provided for the judges to make rules of court.  These include rules:

    “88A(1)(h) prescribing matters relating to the costs of proceedings (including solicitor and client costs and party and party costs) and the assessment or taxation of those costs;”

11. As s 123 of the Family Law Act provides for the making of rules to be followed “in the Family Court and any other court exercising jurisdiction under this Act” those rules will apply to the Family Court of Western Australia in the exercise of its federal jurisdiction.  The Family Court of Western Australia Rules made under the Family Court Act 1975 provided as follows, in r 9:

    “9(1)  The practice and procedure of the Court and courts of summary jurisdiction relating to matters in their non-federal jurisdiction except those conferred on the Court by the Adoption of Children Act 1896 shall be the same, as nearly as maybe, as the practice and procedure provided in the Family Law Rules relating to like matters unless a contrary intention appears in a written law.

    (2)  In this Rule practice and procedure includes all matters with respect to which rules may be made under the Act.”

12. Practice and procedure in both jurisdictions is governed by the Family Law Rules made under the Family Law Act.  Order 38 of the Family Law Rules deals with “costs payable or to be taxed between solicitor and client” (O 38 r 2(b)).  As well as regulating solicitor and client costs in general, specific reference is made to “fees paid and to be paid to counsel” provided that those fees are “fair and reasonable” (O 38 r 15).

    Statutory Framework – The Legal Practitioners Act 1893 (WA)

13. The Legal Practitioners Act 1893 is described in its long title as:

    “An Act to consolidate and amend the Law relating to the Admission of Practitioners in the Supreme Court, and to regulate their Conduct and their Remuneration in certain cases.”

    The authority to admit persons as practitioners in Western Australia is vested exclusively in the Full Court of the Supreme Court of the State by virtue of s 22(1) which provides:

    “No person shall be admitted [as] a practitioner except by the Full Court.”

    A practitioner so admitted can only be struck off the Roll by the Full Court, albeit in doing so it will ordinarily be acting upon a report from the Legal Practitioners Disciplinary Tribunal established under the Act (s 30).

14. The term “practitioner” is defined in s 3 of the Act thus:

    ““practitioner” shall mean a person admitted and entitled to practise as a barrister and solicitor of the Supreme Court of Western Australia, for the purposes of Part IV includes a person who is entitled by virtue of a law of the Commonwealth to perform in Western Australia the functions of a barrister or solicitor, for the purposes of Part V includes a firm of practitioners of which the person is a member and for the purposes of Part IV and Part VA includes a person who has been a practitioner.”

15. There is no comprehensive definition of the practitioner’s statutory monopoly under the Act.  There are, however, prohibitions on persons carrying out certain functions unless they are certificated practitioners.  So no person other than a certificated practitioner can commence or carry on proceedings in any court of civil or criminal jurisdiction in Western Australia, other than persons who are appearing or defending in person (s 76).  And s 77(1) provides:

    “No person other than a certificated practitioner shall directly or indirectly perform or carry out or be engaged in any work in connection with the administration of law, or draw or prepare any deed, instrument or writing relating to or in any manner dealing with or affecting real or personal estate or any interest therein or any proceedings at law, civil or criminal, or in equity.”

    The prohibition in s 77 however does not extend to such work done without remuneration.

16. Part IV of the Act deals with professional conduct and discipline.  It covers ss 25 to 33.  A committee is established known as the Legal Practitioners Complaints Committee, the functions of which include supervision of the conduct of practitioners and the practice of the law and the receipt of complaints as to any illegal or unprofessional conduct on the part of any practitioner (s 25).  It is a function of the committee to inquire into complaints and, where appropriate, to conciliate a complaint, refer it for conciliation by the Law Society of Western Australia (Inc) or another appropriate person or body, to exercise summary professional disciplinary jurisdiction with the consent of the practitioner and, where appropriate, to institute professional disciplinary proceedings against the practitioner before the Legal Practitioners Disciplinary Tribunal (s 25).  The Board is required to appoint a person to the office of Law Complaints Officer who, subject to the directions of the Complaints Committee, may exercise its functions other than that of summary professional disciplinary jurisdiction and may from time to time, on behalf of the committee and in its place, carry out its duties and exercise its powers in relation to those functions (s 26).  Section 28C of the Act provides for references from the committee for hearing by the Disciplinary Tribunal.  In particular, s 28C(1) provides:

    “Where the Complaints Committee determines that a matter should be heard by the Disciplinary Tribunal the committee shall, by a reference in the manner prescribed by the rules, initiate proceedings against the practitioner before the Disciplinary Tribunal, and in so doing is not limited by the terms of any complaint it has received or by the subject matter of any inquiry it has conducted.”

    Section 28C(4) requires the Disciplinary Tribunal to hear and determine a reference initiating proceedings as expeditiously as is practicable. 

17. The Legal Practitioners Disciplinary Tribunal itself is established by s 28D of the Act.  That section provides:

    “28D(1) For the purposes of this Part there shall be a tribunal, to be known as the Legal Practitioners Disciplinary Tribunal, and all summonses, orders and other processes issued out of that tribunal shall be stamped with the seal of the tribunal.

    (2)  The function of the Disciplinary  Tribunal is, in accordance with this Part, to hear and determine all matters referred to the tribunal for hearing and to make and enforce such orders in respect of those matters as seem appropriate to the tribunal.

    (3)  Subject to this Act, and the rules made under this Act, in the exercise of its function the Disciplinary Tribunal may determine its own procedure.

    (4)  The Disciplinary Tribunal is not bound by the Rules of Evidence but may inform itself in any manner it considers just.”

18. The Tribunal consists of the chairman and a deputy chairman, the members for the time being of the Legal Practice Board, established under the Legal Practitioners Act, other than those members of the Board who hold office as members of the Complaints Committee or those who have been involved in conciliation in relation to the particular matter before the Tribunal.  The chairman of the Tribunal is required to be a Judge of the Supreme Court or a former Judge of the Supreme Court, the Federal Court or the High Court or a practitioner of not less than eight years standing (s 28E).  Notice of hearings before the Disciplinary Tribunal is required to be given in the manner prescribed by the rules to the practitioner and to any person concerned as complainant (s 29(1)).  Where a person acts or fails to act in any way which would constitute contempt if a Tribunal hearing were civil proceedings in the Supreme Court, the Tribunal may report the act or the failure to act to the Supreme Court which may deal with the person in any manner that would be appropriate had the person been in contempt of the Supreme Court (s 29(2)).

1. The powers of the Disciplinary Tribunal are set out in s 29A:

   “29A(1)  The Disciplinary Tribunal shall have jurisdiction to make a finding that a practitioner has been guilty of –

   (a)      illegal conduct;
   (b)      unprofessional conduct; or
   (c)       neglect, or undue delay, in the course of the practice of the law.

   (2)  On making a finding under subsection (1) the Disciplinary Tribunal shall have power –

   (a)to make and transmit a report thereon to the Full Court, including where appropriate a record of the evidence taken at the hearing, and pending the determination of the Court –

   (i)to suspend the practitioner from practice; or

   (ii)to restrict the entitlement of the practitioner to practise; or

   (b)to deal with the practitioner under subsection (3),

   and may make an order as to costs and expenses in accordance with subsection (4).”

2. The dispositive options under subs 29A(3) include suspension, fine, reprimand and corrective orders including a requirement that the practitioner undertake further work for the relevant client at no cost or pay for further work to be done by another practitioner. The Tribunal may also order a practitioner:

   “(iii)to reduce or refund the amount of any fees, charges or disbursements payable or paid in respect of work done for the client, to such an extent as is ordered by the tribunal or as is to be determined by the Board;” (s 29A(3)(f)(iii))

   Compensation may be ordered where a person has suffered pecuniary loss as the result of the conduct of the practitioner. The Tribunal may also order that the practitioner pay all or part of the costs incurred by the party referring the matter to the Tribunal and the expenses of either or both the complainant or the Complaints Committee in respect of the inquiry. The Act provides for an appeal to the Full Court of a Supreme Court against any finding or order made by the Tribunal (s 29B). The Full Court of the Supreme Court, upon motion and reading a report from the Tribunal, may, without further evidence fine, suspend from practise or strike off the Roll the practitioner or make any order which the Tribunal could make under s 29A(3) (s 30(2)).

3. Persons performing functions under Part IV of the Act in relation to investigations, inquiries or hearings have the same protection and immunity as a member or an officer of the Supreme Court. Witnesses or parties in investigations, inquiries or hearings have protection of a like nature to that enjoyed by witnesses or parties in the Supreme Court (s 31A). There is provision for any party to proceedings in the Disciplinary Tribunal to be represented by a practitioner (s 31B(1)(b)). There is a general prohibition against any inquiry or hearing under Part IV being held in public (s 31C(1)). However the Tribunal in a particular case or in respect of particular aspects of a particular case, may determine that any proceedings to be conducted before it under Part IV shall be conducted in public (s 31(2)(a)). There are general ancillary coercive powers conferred on the Complaints Committee, the Law Complaints Officer and the Disciplinary Tribunal by s 31D. The powers extend to taking evidence on oath or affirmation and summoning persons to appear or to give evidence or to produce records or any other thing (s 31D(1)(a) and (b)).

4. Nothing in Part IV affects the jurisdiction of the Supreme Court with respect to legal practitioners (s 31H).  There is also a provision for what might broadly be called reciprocal recognition of disciplinary proceedings in other jurisdictions.  This appears in s 32A which provides, inter alia, that a practitioner admitted in Western Australia who is struck off the roll or suspended from practice shall not be entitled to engage in the practice of law in Western Australia unless the consent of the Legal Practice Board, which may be conditional, is first obtained.  Such practitioner is also liable upon the report of the Tribunal to the Full Court to be struck off the roll or suspended from practice as the case may require.  It is not clear from the provisions of the section whether s 32A applies to practitioners removed from the Register of Practitioners under the Judiciary Act.

5. Part VI of the Legal Practitioners Act is entitled “Solicitors’ Costs”.  It provides, inter alia, that a practitioner may make a written agreement with a client respecting the amount and manner of payment for the whole or any part or parts of any past or future services, fees, charges or disbursements in respect of the business to be done by such practitioner, either by a gross sum or otherwise (s 59(1)).  Such agreements are subject to review by the Supreme Court or a judge thereof and may, if unreasonable, be cancelled or subject to reduction of the amount payable.  Division 4 of Part VI relates to the taxation and recovery of costs and, in s 65, it is provided, inter alia:

   “65(1)  No practitioner shall sue for the recovery of any services, fee, charges or disbursements until a bill for the same, being either a bill containing detailed items or for a lump sum, has been served upon the party charged therewith.”

   The party charged may require service of an itemised account under s 65(2) at any time within thirty days from service of a lump sum bill.  The client may have the itemised bill of costs taxed by the taxing officer of the Supreme Court in accordance with the requirements of s 66.  The taxing officer shall certify, in writing, the amount at which the bill of costs and the costs of and incidental to the taxation are allowed (s 70(1)).  The taxation of costs may be reviewed before a Judge in Chambers as provided and allowed by the rules of the Supreme Court (s 71).   It is notable that Part VI is entitled “Solicitors’ Costs” but that its provisions refer to the costs of practitioners, albeit they refer to the costs as between practitioner and client which is no doubt to be taken as a reference to practitioners acting in their capacity as solicitors. 

   The Grounds of Appeal

6. It is not necessary to set out in detail the grounds of appeal contained in the notice filed in this Court on 14 June 1999.  It is sufficient to say that they challenge his Honour’s findings on the two questions which he identified as crucial in the case, namely whether the State laws under which the proposed Reference is proceeding are inconsistent with laws of the Commonwealth and therefore invalid to the extent of that inconsistency, and whether the proposed proceedings before the Tribunal constitute an impermissible exercise by the Tribunal of the judicial power of the Commonwealth.

   Inconsistency – The Argument Based on the Family Law Act 1975 (Cth)

7. It was submitted for De Pardo that the hearing and determination of the Reference before the Tribunal would involve an inquiry into whether or not the fees which he rendered to Hearman’s solicitors, C W Marais  & Associates, were grossly excessive. That determination in turn would require a comparison between the costs actually charged and what was ascertained to be a reasonable charge in the circumstances.  But the fees rendered by De Pardo to Marais and passed on by Marais to his client were rendered in connection with a “matrimonial cause” pending before the Family Court of Western Australia in the exercise of federal jurisdiction.  The Family Law Act and Regulations made thereunder were said to cover the field relating to costs charged in connection with matrimonial proceedings. These are not reviewable except by the Family Court.  Indeed the subject of costs relating to proceedings under the Family Law Act was itself said to be a matrimonial cause. State courts or tribunals in the exercise of their original State jurisdictions lack the power to review decisions of a judge or other officer of the Family Court of Australia or the Family Court of Western Australia exercising federal jurisdiction in a matrimonial cause. Hence the submission was made that, to the extent that the pending Reference would require the Tribunal to determine a fair or proper charge for De Pardo to have rendered to his instructing solicitor and, derivatively, whether the charge rendered was grossly excessive, it would require the Tribunal to enter upon a field exclusively covered by federal law, thus raising a question of inconsistency between Federal and State laws under s 109. On this basis the Tribunal could not proceed upon its Reference unless or until a court or tribunal of competent jurisdiction had first determined the critical issue, namely what was a reasonable or proper fee to be charged in the circumstances and whether the fees actually charged were excessive and, if so, to what extent.

   Inconsistency – The Argument in Relation to the Judiciary Act 1903

8. The competency of the Tribunal to conduct its inquiry into De Pardo’s conduct was also attacked by reference to the provisions of the Judiciary Act 1903. No State conferred right or power is being exercised by the practitioner in appearing in a federal jurisdiction as his right of practice and entitlement to remuneration derives from s 55B of the Judiciary Act. It would be difficult therefore, it was said, to justify any claim for jurisdiction for the Tribunal over the conduct of a legal practitioner before a Federal Court exercising an exclusive federal jurisdiction. The learned trial judge at first instance was said to have been wrong in treating the fact that eligibility to be recorded on the Register of Practitioners, kept under s 55C of the Judiciary Act, in turn  depends upon a person being admitted to practice as a barrister or solicitor or as both of a Supreme Court of a State or Territory.  De Pardo’s conduct being called into question by the Reference before the Tribunal involves his exercise of federal rights and practice in a court exercising federal jurisdiction with no material ingredient provided by any State law.

   Inconsistency – General Principles

9. The inconsistency arguments invoke s 109 of the Commonwealth Constitution which provides that “where a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid”. Inconsistency arises where:

   1.It is impossible to obey both the State and the Commonwealth law – R v Licensing Court; Ex parte Daniell (1920) 28 CLR 23.

   2.A State law if valid would alter, impair or detract from the operation of a law of the Commonwealth – Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466.

   3.A State law purports to govern conduct or a matter in respect of which a law of the Commonwealth is intended to express completely, exclusively or exhaustively the law governing the particular conduct or matter – Ex parte McLean (1930) 43 CLR 472 at 483.

   These formulations are not the only ways in which tests for inconsistency can be expressed. Nor are they mutually exclusive. Inconsistency may arise on the application of all or any of them to a State law which is in contention. The present case does not require extensive discussion of the authorities relating to s 109. For present purposes, it is the third formulation referred to as the “cover-the-field” test which is relevant. To determine whether the Legal Practitioners Act in its application for disciplinary proceedings for overcharging in proceedings under the Family Law Act 1975 (Cth) is inconsistent with Commonwealth law it is necessary to determine whether Commonwealth law covers the field in which that application of the Legal Practitioners Act would operate.

   Inconsistency – The Legal Practitioners Act 1893 and the Family Law Act 1975

10. In considering the inconsistency argument, it is desirable first to consider the subject matter of the Tribunal’s statutory authority and the nature and purpose of its function.

11. The Legal Practice Disciplinary Tribunal was established by the Legal Practitioners Act 1893 to serve the object of regulating the conduct of persons admitted as legal practitioners in the Supreme Court of Western Australia.  Its jurisdiction includes the authority to inquire into and determine whether a practitioner has been guilty of illegal or unprofessional conduct or of neglect or undue delay in the course of the practice of the law (s 29A(1)).  The subject matter of unprofessional conduct falls within long standing but broadly stated criteria developed from observations of Lord Esher MR and Lopes LJ in Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 about the concept of “infamous conduct in a professional respect” in s 29 of the Medical Act 21 and 22 Vic c 90.  The definition drawn up by Lopes LJ was in the following terms:

    “If it is shewn that a medical man, in the pursuit of his profession, has done something with regard to it which would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency,…”

    It was not propounded as an exhaustive definition.  It was applied to legal practitioners by Darling J in Re: A Solicitor Ex parte The Law Society [1912] 1 KB 302. In 1927 the Full Court of the Supreme Court of South Australia took the view that this definition was too narrow in its application to “unprofessional conduct” within the meaning of the Law Society’s Act 1915.  In Re R – A Practitioner of the Supreme Court [1927] SASR 58 at 60, the Court said:

    “In our view “unprofessional conduct” is not necessarily limited to conduct which is “disgraceful or dishonourable”, in the ordinary sense of those terms.  It includes, we think, conduct which may reasonably be held to violate, or to fall short of, to a substantial degree, the standard of professional conduct observed or approved of by members of the profession of good repute and competency.”

    See also in Re: A Practitioner of the Supreme Court [1937] SASR 316 at 320, 322, Re Veron Ex parte Law Society of New South Wales (1966) 84 WN (Pt 1) (NSW) 136 at 143  and In the Matter of a Practitioner (1975) 12 SASR 166 at 170. The understanding of unprofessional conduct expressed by the Full Court of the South Australian Supreme Court was accepted and applied to the Legal Practitioners Act 1893 (WA) by the Full Court of the Supreme Court of Western Australia in Re: A Practitioner (unrep S.C.W.A. Library No 4989, 18/7/1983). It has been applied also to the concept of unprofessional conduct as currently found in s 29A of the Legal Practitioners Act. In Kyle v Legal Practitioners Committee (1999) 21 WAR 56, Parker J (Ipp and Steytler JJ agreeing) said at 71-72:

    “This Court has long accepted and applied, in this context, the understanding of the notion of unprofessional conduct which was expressed by the Full Court of the South Australian Supreme Court in Re: A Practitioner of the Supreme Court [1927] SASR 58: see, eg, Re: A Practitioner unreported Supreme Court, WA, Full Court Library No 4989, 18 July 1983.  It was usefully summarised (at 3) by the Full  Court as conduct that would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence, or that, to a substantial degree, fell short of the standard of professional competence observed or approved by members of the profession of good repute and competence.”

    As His Honour pointed out, the first limb of that summary included but was not confined to conduct occurring in the course of legal practice.  The other limb necessarily related to conduct in the course of legal practice because of the reference to “professional conduct”.  The words were not to be taken as an exhaustive or codified statement but they did reveal the essence of the notion of unprofessional conduct. 

12. In applying the general concept of unprofessional conduct in disciplinary proceedings relating to legal practitioners, it is of importance to bear in mind their legislative purpose.  As Mahoney JA pointed out in Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 at 441, disciplinary procedures and the orders made in the course of them are directed not to the punishment of the practitioner but to the protection of the public. That protection extends beyond protection against further default by the particular practitioner to protection against similar defaults by other practitioners. It will also involve the question whether the practitioner is a fit and proper person to be a practitioner of the Court. Where the practitioner concerned is a barrister in a divided profession there is an added dimension in the assessment of unprofessional conduct reflected in the observation of Dixon J in In re Davis (1947) 75 CLR 409 at 420:

    “The bar is no ordinary profession or occupation.  The duties and privileges of advocacy are such that, for their proper exercise and effective performance, counsel must command the personal confidence, not only of lay and professional clients, but of other members of the bar and of judges.”

    See also Clyne v New South Wales Bar Association (1960) 104 CLR 186 at 200-201. Those considerations apply equally to the conduct of an advocate in a fused profession as in Western Australia, whether practising exclusively as a barrister or as both barrister and solicitor.

13. The disciplining of members of the legal profession for departures from acceptable standards of professional conduct is a public protective function pursued in the public interest. That it may involve ancillary orders including a reduction in or refund of fees charged in a particular case does not change that character.  Such orders may be likened, in some respects, to orders for restitution in criminal cases.  Absent some express provision to the contrary, they do not displace civil processes between solicitors or counsel and their clients except to the extent that a reduction or refund would be credited against recoverable loss.  They may offer an alternative to recovery processes.  But they remain an incident of the essentially public purpose of the principal proceedings.

14. The determination by a Disciplinary Tribunal of whether there has been gross overcharging constituting professional misconduct does not require it to rely upon taxation of costs by the relevant court or to undertake a taxation of costs on its own account.  As the Court of Appeal in New South Wales said in Re Veron:

    “The Court does not sit as taxing officers dealing with individual items of costs…We are guided by experience and a broad sense of what is reasonable and fair and not by any narrow approach to questions of mere overcharging.” (142)

    Their Honours observed that it is not in every case where a solicitor agrees with a client a fee substantially larger than that which would be allowed on taxation that the solicitor is guilty of unprofessional conduct.  It is a question of degree dependent upon the facts of the case. (144)  Accepting that there might be difficulties in some cases in drawing the line they cited the statement once quoted by Lord Simonds LC as “the answer of a great judge that, though he knew not when day ended and night began he knew that midday was day and midnight was night”. (144)

15. A consideration of the relevance of disparity between the costs charged and those which were or would have been recovered on taxation appears in the judgment of Ipp J (Pidgeon and Franklyn JJ agreeing) in the Full Court of the Supreme Court of Western Australia in D’Alessandro v Legal Practitioners Complaints Committee (1995) 15 WAR 198. In a passage relied upon by counsel for De Pardo, Ipp J said at 214:

    “The inquiry into what amounts to grossly excessive or unreasonable costs would ordinarily involve, first, a determination of what, in the particular circumstances, would be a reasonable sum to charge.  The resolution of that question would often turn on multiple factors, including the amount at which the costs in question was or would likely be taxed, the difficulty of the case, the novelty or complexity of the legal issues presented, the experience of the practitioner, the quality of his or her work, the amount of time spent by the practitioner on the matter, the responsibility involved, the amount or value of the subject matter in issue, and any costs agreement that might have been entered into.”

    This passage makes plain however, that the assessment of the practitioner’s conduct in such a case is dependent on a range of relevant factors of which the discrepancy between costs charged and costs taxed is one.  His Honour accepted that the Tribunal was entitled to treat taxed costs as “the appropriate standard” and to determine by reference to it that the amount in fact charged was grossly excessive (220).  In so saying however, he noted that the taxed amount was “not necessarily the sole factor to be taken into account”.  Indeed in one of the counts against the practitioner in that case, the Tribunal was found to be in error in assessing the reasonableness of the charge made by the practitioner “by reference only to the amount at which the bill of costs was in fact taxed” (223-224), there being a reasonably arguable, albeit wrong, basis upon which the practitioner could have justified the amount charged. 

1. There is a very clear difference in kind between the assessment by the taxing officer of a court of costs for taxation and the assessment by a disciplinary tribunal of whether there has been gross overcharging amounting to unprofessional conduct.  The latter, even if it involves a notional taxation of costs as a relevant consideration is not concerned with the same subject matter and does not serve the same purposes as that with which a court is concerned in taxing a bill of costs.  There is no room for argument that the processes of the Family Law Act and Rules made under that Act in relation to the taxation of costs cover the field of the assessment of whether there has been unprofessional conduct by reason of gross overcharging.  Even where a Tribunal enters upon a notional taxation process it does not conclude the issue inter partes as the court does.  The making of an order on the part of the Tribunal  reducing costs or directing a refund is not enforceable by the client.  It differs in kind from the final determination made by a court on taxation.  It offers what in practice is an alternative remedy but that gives rise to no inconsistency.  Analogous processes exist side by side under Commonwealth law.  One example arises under the Trade Practices Act 1974 (Cth) which provides a statutory cause of action in damages at the suit of persons affected by contraventions of the Act on the one hand (ss 82 and 86) and a representative recovery process by the Australian Competition and Consumer Commission in effect representing the interests of consumers on the other (s 87(1B)).

2. These considerations also take the subject matter of the Tribunal’s inquiry out of the scope of a “matrimonial cause” as defined in s 4(1) of the Family Law Act and in s 51(xxii) of the Constitution. In so saying it can be accepted that the Family Court has exclusive jurisdiction in disputes relating to solicitor and client accounts and, by extension, in relation to counsel fees incurred by its solicitors – Silver v Consumer Claims Tribunal (1979) 36 FLR 281 at 291. There is a code of practice and procedure in respect of costs prescribed by the Family Law Act, the Family Law Rules and Regulations and the regulations taken as a whole – Baker-Johnson v Dregmans (1996) 20 Fam LR 306 at 312. That exclusive jurisdiction inter partes relates to costs arising in matrimonial causes and other matters within the jurisdiction of the Court. In so far as it relates to the exercise of federal jurisdiction by State courts it may displace the provisions of the Legal Practitioners Act relating to taxation of costs as between practitioner and client – Ffrost v Stevenson (1937) 58 CLR 528 at 573 (Dixon J); Minister of State for the Army v Parbury Henty & Co Pty Ltd (1945) 70 CLR 459 at 483 (Latham CJ); Felton v Mulligan (1971) 124 CLR 367 at 373 (Barwick CJ), 393 (Windeyer J) and 412 (Walsh J). The question of inconsistency between the Family Law Act 1975 in so far as it invests federal jurisdiction in the Family Court of Western Australia, which extends to the taxation of costs as between practitioner and client, and the provisions of the Legal Practitioners Act for the taxation of costs in matters arising out of matrimonial causes, need not be decided here.  It does not impact on the responsibilities of the Tribunal in connection with complaints of unprofessional conduct.

   Inconsistency – The Legal Practitioners Act and the Judiciary Act 1903

3. As appears from the provisions of the Legal Practitioners Act referred to earlier, the Full Court of the Supreme Court of Western Australia is the admitting authority for legal practitioners in the State of Western Australia and the only authority which can remove a practitioner from the Roll. In exercising its traditional functions relating to the admission and disciplining of legal practitioners within its jurisdiction the Court is not concerned only with practitioners involved in the exercise of non-federal jurisdiction or advising or doing legal work involving matters arising under the common law or non-federal statute law. The right to practice law in Western Australia, as in each of the States, includes the right to practice law in the courts of the State exercising federal and non-federal jurisdiction and the right to advise for reward on matters arising under federal law and written and unwritten non-federal law. Like each of the State Supreme Courts, the Supreme Court of Western Australia with its own historical jurisdiction and functions in the administration of justice according to the common law, the law of the State and invested federal jurisdiction, also takes its place under the Constitution as part of “an integrated Australian judicial system for the exercise of the judicial power of the Commonwealth” – Kable v Director of Public Prosecutions (1996) 189 CLR 51 at 102 (Gaudron J), 112 (McHugh J), 138 (Gummow J) and cf at 84 (Dawson J).

4. The provisions of Part VIIIA of the Judiciary Act are concerned with rights of practice in “courts”, the relevant courts being federal courts and the courts of States or internal territories exercising federal or “federal-type” jurisdiction respectively.  The rights of practice to which the Act applies, confined as they are to practice in “courts”, are considerably narrower than the rights of practice with which the State Supreme Courts as admitting authorities are concerned.   The scheme of the Judiciary Act in relation to rights of practice in federal courts and courts exercising federal jurisdiction is, as noted earlier, complementary to the various State and Territory arrangements for the admission of practitioners within their several jurisdictions.

5. There is, by virtue of s 55B(1) of the Act, a primary entitlement to practice in any federal court, which entitlement flows from the entitlement to practice in a State or Territory Supreme Court. Leaving aside the special provisions relating to Territory practitioners (s 55B(2)), the primary entitlement is qualified by the requirement that the person’s name appear in the Register of Practitioners established under s 55C and kept in the High Court (s 55B (3)). There is a derivative entitlement which flows from the primary entitlement to practice in any federal court, namely an entitlement to practice in any court of a State in relation to the exercise by it of federal jurisdiction or in any court of an internal Territory in relation to federal-type jurisdiction (s 55B(4)). The right to practice in the court of a particular State exercising federal jurisdiction or the court of a particular Territory exercising federal-type jurisdiction may be further qualified by a requirement of registration in a Register of Practitioners kept by the Chief Justice of the Supreme Court of that State or Territory (s 55B(5)). It appears no such Register has been established for any State or Territory. Were such a Register established, the right to practice in the relevant State or Territory court exercising federal jurisdiction could be lost by removal from the Register (s 55B(7)).

6. The Register of Practitioners kept in the High Court will have entered in it the name of persons who have what was referred to earlier as the primary entitlement to practice in federal courts.  Absent any current rules providing for admission of federal practitioners directly by the High Court, the only route to the Register of Practitioners is via admission in a State or Territory.  As was said by the Full Court in Little v Registrar of the High Court (1991) 29 FCR 544 at 552:

   “It is apparent that the entitlement created by ss 55B and 55C to practice in federal courts is ambulatory.  It operates upon the range of legislative schemes which from time to time regulate the right to practice in State and Territory courts.”

7. There is, it is true, a power in the High Court to remove from the Register the name of a person who has been guilty of conduct that justifies it in doing so (s 55C(5)).  In that event the person whose name was removed would lose the entitlement to practice in federal courts and the derivative entitlement to practice in courts exercising federal jurisdiction outside any State or Territory in which that person had been admitted to practice in State courts exercising federal jurisdiction or Territory courts exercising federal-type jurisdiction.  It would not appear to affect the right to practice in the courts of States in which that person had been admitted whether such courts were exercising federal or non-federal jurisdiction.

8. There is no role for federal courts other than the High Court in removing practitioners from the Register of Practitioners – Yamaji v Westpac Banking Corporation (No 1) (1993) 42 FCR 431 at 432-433. As the learned trial judge observed that limitation does not affect the power of federal courts to make orders effecting the supervision of the conduct of legal practitioners where such orders are necessary to redress a breach of duty to the court or to maintain the integrity of its procedures - Caboolture Park Shopping Centre Pty Ltd (In Liq) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224 at 232-233. The power in a federal court to regulate the conduct of legal practitioners appearing before it to the extent necessary to ensure the observance of their duties to the court and the integrity of its procedures is an implied incidental power. Like the power of the court to punish for contempt, even if such power is not to be found in some express statutory provision, it has its source in Chapter III of the Constitution. Like the power to deal with contempts, it is “inherent” and is “a power of self protection or a power incidental to the function of superintending the administration of justice” – Re Colina; Ex parte Torney (1999) 166 ALR 545 at 551-552 (Gleeson CJ and Gummow J citing Porter v R; Ex parte Yee (1926) 37 CLR 432 at 443, see also McHugh J at 558 and Hayne J at 579-580). All that having been said, the implied incidental powers thus exercisable by federal courts do not impinge in any way upon the legislative frameworks for disciplining practitioners under the supervision of the Supreme Courts of the States and Territories.

9. On this analysis it may be seen that the legislative scheme of Part VIIIA of the Judiciary Act is complementary to that of the Legal Practitioners Act. The provisions of the Legal Practitioners Act authorise the Tribunal to inquire into unprofessional conduct in relation to the practise of law by practitioners admitted in Western Australia whether that unprofessional conduct arises in State courts, federal courts, courts exercising federal jurisdiction or otherwise.  There is no relevant inconsistency between the provisions of the Legal Practitioners Act in this regard and those of the Judiciary Act. 

   Judicial Power

10. It was submitted for De Pardo that the Tribunal, in proceeding with the Reference from the Committee, is purporting to exercise the judicial power of the Commonwealth.  It was contended that the statutory functions of the Tribunal are not exercised by it as agent or delegate of the Supreme Court but rather as an independent Tribunal of defined jurisdiction whose judgments and orders are final and binding for all purposes.  The latter proposition must be qualified by reference to the function of the Tribunal in making a report to the Full Court of the Supreme Court in cases which may merit removal from the Roll of Practitioners.  But none of that translates into the proposition that the Tribunal would exercise the judicial power of the Commonwealth in determining the Reference relating to this practitioner.  It might be arguable that it is exercising a judicial function under the law of the State of Western Australia.  It is not necessary for present purposes to determine that question.  As his Honour, the learned primary judge said:

    “Whether the performance of that function by the Tribunal may use the trappings of the exercise of judicial power is immaterial, for it is not an adjudication involving the exercise of a judicial power of the Commonwealth.” – [1999] FCA 698 at par 53

11. The Tribunal could only be said to be exercising the judicial power of the Commonwealth if it were purporting to exercise jurisdiction in one of the enumerated heads by which the Constitution describes the federal jurisdiction that may be defined for federal courts or invested in State courts (ss 75, 76 and 77). The only head that might be invoked in support of that argument is that which covers jurisdiction “in any matter arising under any laws made by the Parliament”. The Tribunal derives its authority from the Legal Practitioners Act, a law of the State of Western Australia.  The matters it is empowered to inquire into and determine are matters defined by that law and not by reference to any federal law.  In so saying it must be accepted that a matter arising under a law of the State or under the common law may, in some circumstances, also bear the character of a matter arising under a law of the Commonwealth and fall within the ambit of federal jurisdiction.  That proposition derives from the width of the criteria by which a matter may be said to arise under federal law.  So it has been said that:

    “…a matter may properly be said to arise under a Federal law if the right or duty in question in the matter owes its existence to Federal law or depends upon Federal law for its enforcement whether or not the determination of the controversy involves the interpretation (or validity) of the law.” – R v Commonwealth Court of Conciliation and Arbitration Ex parte Barrett (1945) 70 CLR 141 at 154 (Latham CJ)

    In the joint judgment of Stephen, Mason, Aickin and Wilson JJ in Moorgate Tobacco Co Ltd v Philip Morris Limited (1960) 145 CLR 457 that description of federal jurisdiction arising under s 76(ii) of the Constitution was approved, their Honours saying:

    “… a matter is a s 76(ii) matter if, being a right, title, duty, privilege, protection or immunity, it “owes its creation to Federal law or depends upon Federal law for its enforcement”.” (476)

    Importantly, that statement was said not to be exhaustive (488).  Federal jurisdiction is attracted if the right or duty based in a federal statute is directly asserted by a party to the proceeding but “not if the federal question arises only in some incidental fashion”. (476)  If there be a right or entitlement or duty or liability arising by virtue of federal law which is the subject matter of a cause of action defined by the law of a State or by the common law, proceedings under State law or common law whose subject matter is that right, entitlement, duty or liability, may nevertheless be said to arise under a law of the Commonwealth.  In Moorgate Tobacco the applicant’s case was based on contract, trust or fiduciary obligation and the asserted tort of unfair competition.  So much of the case as related to trust or fiduciary obligation rested on a licence agreement relating to a registered trade mark.  That, of course, gave rise to rights arising under a federal law. 

12. In this case it may be accepted that there were limitations imposed, by virtue of federal law, on what De Pardo could reasonably charge his instructing solicitor.  But as already observed, the prior determination and imposition of those limits through a process of taxation of costs is not necessary to the resolution of the question of gross overcharging amounting to unprofessional conduct which is before the Tribunal.  That question and its resolution are qualitatively different from the questions and processes involved in taxation of costs in federal proceedings.   The fact of taxation of costs under the Family Law Act and Rules is at most incidental to the discharge of the Tribunal’s function.  It does not give to that function the character of an adjudication on a matter arising under a law of the Commonwealth.  Nor, it may be said, does the existence of any implied incidental power in the Family Court in the exercise of federal jurisdiction affecting those who practice before it whether or not such powers may involve issues of costs charged to litigants.

13. The question whether De Pardo has been guilty of grossly overcharging his instructing solicitor and through him the client, is therefore not a matter which arises under any law of the Commonwealth.  It is to be determined according to standards prescribed by the law of the State which is complemented and not supplanted by the provisions of the Judiciary Act relating to practice in federal courts and courts exercising federal or “federal-type” jurisdiction.  The fact that the conduct in question arises out of work done in relation to proceedings in a court exercising federal jurisdiction does not “federalise” the subject matter of the Tribunal’s inquiry.  As already explained above, the nature and subject matter of that inquiry is quite different from that of a court engaged in the taxing of costs in a matrimonial or any other cause.  This aspect of the argument advanced for De Pardo also fails.

    Conclusion

14. For the preceding reasons, this appeal should be dismissed with costs.

I certify that the preceding  fifty nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of Justice French.

Associate:

Dated:             23 March 2000

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 45  OF 1999

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

NINO ANTHONY DE PARDO
Appellant

AND:

LEGAL PRACTITIONERS COMPLAINTS COMMITTEE
First Respondent

LEGAL PRACTITIONERS DISCIPLINARY TRIBUNAL
Second Respondent

JUDGES:	FRENCH, WHITLAM AND CARR JJ
DATE:	23 MARCH 2000
PLACE:	PERTH

REASONS FOR JUDGMENT

WHITLAM J:

1. I have had the advantage of reading in draft the reasons for judgment of French J and Carr J.  I agree that, for the reasons each of them gives, the appeal should be dismissed with costs.  In particular, I would emphasize what French J says under the heading “Judicial Power”.  I also do not think it is necessary in the present case to determine whether the Tribunal is exercising a judicial function under State law.

2. Like Carr J, however, I entertain a reservation about the potential for a “textual collision”, were an order made under s 29A(3)(f)(iii) of the Legal Practitioners Act for a barrister to refund fees paid by an instructing solicitor for work done for a mutual client in proceedings under the Family Law Act.  One can also imagine many questions about the reach of the Legal Practitioners Act in respect of practitioners not admitted in Western Australia that must remain for another day.

I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.

Associate:
Dated:             23 March 2000

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 45 OF 1999

BETWEEN:	NINO ANTHONY DE PARDO Appellant
AND:	LEGAL PRACTITIONERS COMPLAINTS COMMITTEE & ANOR Respondent

JUDGE:	FRENCH, WHITLAM & CARR JJ
DATE:	23 MARCH 2000
PLACE:	PERTH

REASONS FOR JUDGMENT

CARR J:

Introduction

1. This is an appeal from a decision of a judge of this Court dismissing an application in which the appellant (a barrister) had sought declaratory relief and a permanent injunction to restrain the first respondent (“the Committee”) from prosecuting a disciplinary proceeding against him before the second respondent (“the Tribunal”) and to restrain the Tribunal from hearing and determining that proceeding. 

2. There are two issues in the appeal.  The first is whether the disciplinary provisions in Part IV of the Legal Practitioners Act 1893 (WA) (“the State Act”) are inconsistent with s 55B and 55C of the Judiciary Act 1903 (Cth) or s 122 of the Family Law Act 1975 (Cth) and therefore invalid to the extent of any such inconsistency, by operation of s 109 of the Constitution. The second issue is whether, in making a determination in respect of alleged unprofessional conduct on the part of the appellant, the Tribunal would be purporting to exercise the judicial power of the Commonwealth otherwise than in accordance with s 71 of the Constitution.

   Factual Background

1. The following factual background is taken largely from the reasons of the learned trial judge. The appellant practises law in the State of Western Australia, being admitted as a practitioner by the Supreme Court of that State pursuant to s 22 of the State Act.He practises only as a barrister.

2. In 1992 the appellant was instructed by a solicitor to perform work as counsel in a proceeding in the Family Court of Western Australia in respect of a matter of federal jurisdiction arising under the FamilyLawAct.  In due course, and by consent, orders were made by the Family Court of Western Australia which disposed of the respective claims of the parties.  In a bill of costs provided by the solicitor to his client, fees rendered to the solicitor by the appellant (and paid by the solicitor) were included as a disbursement.  The client had the bill taxed by the Family Court of Western Australia.  Items in that bill, other than the disbursement, were agreed between the solicitor and the client before taxation.  The taxation hearing concerned only the amount of the disbursement paid by the solicitor to the appellant as counsel fees.  The appellant attended and gave evidence at the taxation hearing pursuant to a subpoena issued by the Family Court of Western Australia.  Upon taxation, the sum claimed as a disbursement was reduced substantially.

3. The solicitor commenced an application in the Family Court of Western Australia to have the appellant joined as a party to the matrimonial proceeding and to have the fees rendered by the appellant to the solicitor made subject to taxation.  The appellant opposed the application on the ground that it did not concern parties to a marriage and was not part of a “matrimonial cause” and, therefore, the Family Court of Western Australia had no jurisdiction to tax fees rendered by him to the applicant solicitor.  A Magistrate of the Family Court of Western Australia accepted the appellant’s submissions and dismissed the application.

4. The solicitor lodged a complaint against the appellant with the Committee in respect of the amount of fees rendered by him and paid by the solicitor.  The Committee issued a reference to the Tribunal alleging that the appellant was guilty of unprofessional conduct in that part of the counsel fees rendered by him to his instructing solicitor were, in all the circumstances, “grossly excessive”.

5. On 9 March 1998 the appellant applied to this Court for the relief referred to above on the two constitutional grounds summarised above.  Notices were duly given under s 78B of the Judiciary Act, but no Attorney intervened.

   Statutory Framework

   The State Legislation

6. The following summary of the State Act is taken from the reasons of the learned trial judge:

7. Section 22 of the State Act provides that no person shall be admitted a practitioner except by the Full Court of the Supreme Court of Western Australia. “Practitioner” is defined in s 3 of the State Act as a person admitted and entitled to practise as a barrister and solicitor in the Supreme Court of Western Australia. For the purpose of Pt IV of the State Act, relating to professional conduct and discipline, the term “practitioner” also includes a person who is entitled by virtue of a law of the Commonwealth to perform in Western Australia the functions of a barrister or solicitor.

8. For the discipline of practitioners, Pt IV of the State Act (ss 25 – 33) establishes the Committee and the Tribunal. Under s 25 the Committee has power to inquire into the conduct of a practitioner on matters relating to the practice of law to determine whether it may constitute illegal or unprofessional conduct. Under s 29A of the State Act the Tribunal has “jurisdiction” to make a finding that a practitioner has been guilty of –

   (a)       illegal conduct;
              (b)       unprofessional conduct; or
              (c)       neglect, or undue delay, in the course of the practise of the law.

9. The Tribunal may submit a report on such a finding to the Full Court and s 30 of the State Act provides that such a report is to be taken to be conclusive as to all facts and findings therein. After reading the report, the Full Court may fine, suspend from practice or strike off the Roll the practitioner concerned.

10. The conduct or practise of law by a practitioner subject to inquiry is not limited to conduct or practise within State jurisdiction.  The touchstone of the discipline provision is determination of fitness to practise law within the State and illegal or unprofessional conduct outside the State is as relevant to that issue as conduct within the State’s jurisdiction. 

    The Constitutional Provisions

11. Section 71 of the Constitution relevantly provides that the judicial power of the Commonwealth shall be vested in the High Court of Australia, in such other federal court as the Parliament creates, and in such other courts as it invests with federal jurisdiction.

12. Section 109 of the Constitution provides that when a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.

    The Commonwealth Legislation

13. The relevant Commonwealth legislation is contained in the Judiciary Act 1903 (Cth) and the Family Law Act 1975 (Cth). This summary of the relevant Commonwealth legislation is also taken largely from the learned trial judge’s reasons.

    The Judiciary Act

14. Pursuant to s 55B of the Judiciary Act a person for the time being entitled to practise as a barrister or solicitor, or as both, in the Supreme Court of a State is entitled to practise in any federal court but is not so entitled unless his or her name appears in the Register of Practitioners kept pursuant to s 55C of the Judiciary Act. 

15. Under s 55C the Registrar of the High Court is required to maintain a Register of Practitioners at the Registry of the High Court. The Registrar of the High Court is required to enter in that Register the names of persons entitled under s 55B to practise in federal courts.

16. Where satisfied that the conduct of a person justifies such an order, the High Court may order that that person not be entitled to practise in federal courts and the name of that person be struck off the Register or that the person not be entitled so to practise for a specified period [s 55C(5)]. Further, if the Registrar of the High Court is satisfied that a person is not for the time being entitled under s 55B to practise in federal courts, the particulars of that person entered in the Register are to be struck out [s 55C(3)]. .

17. The Register of Practitioners is not a roll of practitioners admitted by the High Court to practise in federal courts as may be established under rules made by the High Court under s 86(ga) of the Judiciary Act.  Pursuant to that paragraph, the rules of the High Court may include provisions for the admission of persons to practise as barristers and solicitors in any federal court and for prescribing conditions for the continuance of that right to practise.

18. In respect of a State court exercising federal jurisdiction, the Judiciary Act [s 55B(4)] provides that a person entitled under that subsection to practise as a barrister or solicitor in any federal court has “a right of audience” in such a State court in relation to the exercise of federal jurisdiction by that court.

19. As the primary judge noted, the right to practise as a barrister or solicitor in a State court exercising federal jurisdiction is wider than a right of audience in such a court

20. Section 55B(5) provides that the Chief Justice of the Supreme Court of a State may direct an officer of that court to keep a Register of Practitioners entitled to that right of audience. A person to whom s 55B(4) applies is entitled to be registered in that Register [s 55B(6)]. Where such a Register is kept in a State, a person is not entitled to a “right of audience” unless registered in the Register.

21. Under s 55B(7) the Supreme Court, constituted by two or more judges, may order that a person’s registration in the Register of Practitioners kept in accordance with s 55B(5) be cancelled or suspended if it is satisfied that the person has been guilty of conduct that justifies such an order. Section 55B(9) provides that such a person is not entitled to be registered in that Register again, notwithstanding being eligible to be so registered, except by order of the Supreme Court.

    The Family Law Act

22. Under s 122 of the Family Law Act a person entitled to practise in any federal court under s 55B(1) of the Judiciary Act has the like right to practise in any State court exercising jurisdiction under the Family Law Act.  The Family Law Act makes no provision for the names of such practitioners to be entered in a Register or for the discipline of such practitioners.

    The Cross-Vesting Act

23. Under s 4(1) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) the Supreme Court of a State is invested with federal jurisdiction arising under the Family Law Act. Under s 41(3) of the Family Law Act a State Family Court, in respect of which a proclamation has been made under that subsection, is invested with like jurisdiction.  The Family Court of Western Australia is a State Family Court in respect of which such a proclamation has been made.

24. In Western Australia the State courts able to exercise federal jurisdiction under the Family Law Act are the Supreme Court and the Family Court of Western Australia.

    The Decision at First Instance

    A.       The Inconsistency Point

25. His Honour first considered whether the Parliament intended to “cover the field” of the admission to practise and the conduct of legal practitioners.  He noted that the Supreme Court admits practitioners to practise law in the State generally, whereas the provisions of the Judiciary Act and the Family Law Act have a much more limited purpose.  Further, so his Honour observed, even provisions relating to admission referred to in s 55A and 86(ga) of the Judiciary Act do not provide a general right to practise law in Australia, but only to practise as a barrister or solicitor in any “Federal Court” [the typographical error is in s 86(ga) of the Judiciary Act].  Furthermore, so his Honour pointed out, the Judiciary Act does not provide for the discipline of persons admitted to practise by the High Court, though it is within the rule-making power conferred on the High Court by s 86(ga) so to provide in any rules made by that Court. His Honour also had regard to s 55C(5) which, as mentioned above, empowers the High Court to cancel or suspend a person’s entitlement to practise in federal courts.

26. His Honour noted that under the Commonwealth legislation:

    ·     determination of the fitness of a person to be admitted to practise law generally and whether such a right to practise is to be abrogated or suspended were recognised as functions of the Supreme Courts of the States;

    ·     the performance of those functions will control who may practise in courts exercising federal jurisdiction; and

    ·     the complementary recognition of an entitlement to practise in federal courts and State courts exercising federal jurisdiction is governed, substantially, by continuation by a Supreme Court of a person’s entitlement to practise law.

27. His Honour then referred to (a) the provision [in s 55B(7)] for a Supreme Court to exercise disciplinary procedures in respect of a practitioner having a right of audience in State courts exercising federal jurisdiction, and (b) the jurisdiction to discipline persons who practise in federal courts, conferred on the High Court by s 55(C)(5).

28. His Honour concluded that these disciplinary provisions were not intended to exclude the jurisdiction of the Supreme Court. 

29. His Honour then said this:

    “The provisions in the State Act and the Judiciary Act for the discipline of persons admitted to practise by a State Supreme Court are compatible.  Exercise of the jurisdiction of a State Supreme Court to examine the conduct of a person in the practise of barrister or solicitor in a federal court, or in a State court exercising federal jurisdiction, is anticipated in the Judiciary Act.  It cannot be said, therefore, that such provisions interfere with the exercise of a federal power.”

30. Similarly, the State jurisdiction to resolve disputes in respect of costs rendered by a practitioner was concurrent with the jurisdiction of federal courts under the federal legislation to regulate charges levied by practitioners. There was thus no inconsistency between the State Act and the Commonwealth legislation to which s 109 of the Constitution might apply.

    B.       The Chapter III Point

31. In the proceedings before the trial judge (and in the appeal), the appellant asserted that the assessment or taxation of counsel fees rendered by him was part of a “matrimonial cause” and that only a court exercising federal jurisdiction could determine the reasonableness of such fees.

32. The appellant submitted that the Tribunal could not determine the Reference without the Family Court of Western Australia having first determined the reasonableness or otherwise of the fees rendered by him to the solicitor.

33. His Honour accepted (in my respectful view, correctly) that the resolution of the “incidental controversy” between the appellant and the solicitor by determining and enforcing their respective rights was a matter within federal jurisdiction and would amount to a valid exercise of the judicial power of the Commonwealth by the Family Court of Western Australia (see paras 50 and 53 of his Honour’s reasons).

34. His Honour held, however, that the control exercisable by the Family Court of Western Australia (under the federal jurisdiction vested in it) by taxation over the costs or fees charged by a practitioner, was a separate function from a determination that a practitioner had engaged in unprofessional conduct.

35. The trial judge noted that the Family Court of Western Australia had power to make orders to effect supervision of the conduct of legal practitioners where such orders were necessary to address a breach of duty to the court that had occasioned loss or injury, and to maintain the integrity of the court’s procedures.  However, so his Honour held, that judicial power of the Commonwealth was not the same as, and did not supplant, a judicial power of a Supreme Court of a State, assisted in this case by the Tribunal, to find that a practitioner admitted by the Supreme Court had been guilty of unprofessional conduct.

36. His Honour held that the hearing by the Tribunal of the complaint that the appellant engaged in unprofessional conduct by rendering grossly excessive fees to an instructing solicitor in respect of his practice as a barrister in a matter of the Family Court of Western Australia in the exercise of federal jurisdiction did not involve an exercise of a judicial power of the Commonwealth. 

    Grounds of Appeal

37. There were four grounds of appeal, but in essence they raised only the two constitutional issues which I have identified above.

    The Appellant’s Submissions

38. The appellant contended that the primary judge had failed to pay sufficient attention to the significance of the fact that the appellant had been engaged in a matrimonial cause within the exclusive federal jurisdiction of the Family Court of Western Australia.  Furthermore, his Honour was said to have classified, wrongly, the roles of the Committee and the Tribunal as being in some way those of agents or delegates of the Supreme Court of Western Australia in exercising that Court’s jurisdiction over legal practitioners.  Senior counsel for the appellant submitted that his Honour appeared to have concluded, without expressly stating so, that there was no infringement of the doctrine of the separation of powers because the Tribunal’s functions were fully reviewable by the Supreme Court.  The appellant also challenged the primary judge’s view that the issue before the Tribunal in the proceedings against the appellant was not coincident with the issue of the reasonableness or otherwise of the appellant’s fees, within the context of the matrimonial cause before the Family Court of Western Australia.

39. Further, in relation to the Chapter III point, the appellant submitted that questions about the propriety of the quantum of fees charged by a legal practitioner in relation to a matrimonial cause could only be determined by the Family Court of Western Australia.  Alternatively, a determination of whether there had been unprofessional conduct in rendering such fees could only be made by the Tribunal after the determination by that Court of the proper quantum of those fees.  These two, latter, submissions overlapped with a submission that the Family Law Act and the regulations made under that Act provided a complete code in relation to all matters of costs and other matters incidental to the exercise of federal jurisdiction over matrimonial causes, thereby rendering the Legal Practitioners Act in relation to the present matter inoperative.  Although there was no express statutory or regulatory provision for the resolution of the dispute which had arisen between the solicitor and the appellant in this matter, the appellant submitted that the Family Court had a necessary inherent or incidental jurisdiction to resolve the question whether the costs charged were excessive, and what was the correct figure.  All of that would be within federal jurisdiction and, so it was put, would be in conformity with the field that had been covered by the Family Law Act and the regulations.  The appellant did not contend that there was inconsistency on any basis other than on the “cover the field” test for inconsistency.

    My Reasoning

    A.       Inconsistency

40. I agree, respectfully, with the primary judge’s conclusion that there was no inconsistency between the State Act and the Commonwealth legislation. In my view, the relevant Commonwealth legislation does not manifest an intention on the part of the Parliament that the provisions of the Judiciary Act and the Family Law Act dealing with the professional conduct and discipline of barristers and solicitors (including whether they should continue to practise as such or have a right of audience) should be the exclusive law on that topic both for what it forbids and what it allows – see Miller v Miller (1978) 53 ALJR 59 at 61 per Barwick CJ. I agree with his Honour’s reasons, which I have summarised above, on that point.

41. Rather than “covering the field”, as I see it, the Commonwealth has walked very lightly into only a small part of the field.  As his Honour correctly points out, the Commonwealth provisions relating to admission, referred to in ss 55A and 86(ga) of the Judiciary Act do not provide a general right to practise law in Australia, but only to practise as a barrister or solicitor in any federal court. That right, and the right of audience in State or internal Territory courts exercising federal jurisdiction, is conditioned upon admission or entitlement to practise as a barrister or solicitor of such State or Territory court. Section 122 of the Family Law Act is to like effect.  On the disciplinary front, as again his Honour pointed out, the Judiciary Act does not provide for the general discipline of persons admitted into practise by the High Court, but it is within the rule-making power conferred on the High Court in s 86(ga) so to provide.  I agree, respectfully, with his Honour that although the Judiciary Act has made provisions for a Supreme Court of a State to exercise disciplinary procedures in respect of a practitioner who has a right of audience in State courts exercising federal jurisdiction, the context in which those provisions appear does not suggest an intention to exclude the jurisdiction of the Supreme Court or the Tribunal to determine such issues under relevant State legislation. In my view, both the content and the context of the provisions point to the opposite of such an intention. Those Commonwealth laws were enacted in the knowledge of the jurisdiction exercisable by the various Supreme Courts of the States at common law and, relevantly in Western Australia, by statute since 1893. His Honour gave attention to the jurisdiction conferred on the High Court of Australia by s 55C(5) of the Judiciary Act. He read that, and I respectfully agree with him again, as providing for an additional disciplinary power appropriate for exercise in certain circumstances. Again, I think his Honour was right in concluding from the context of s 55C(5) that the object of the sub-section was not to exclude the Supreme Court or the Tribunal from disciplining practitioners for conduct for which lesser penalties might be applied.

1. In short, I agree with his Honour that the Commonwealth did not intend to cover the field and, subject to one slight reservation (referred to immediately below) I agree that the State Act and the Commonwealth legislation for the discipline of legal practitioners and for the taxation of costs are compatible. There is no inconsistency between them.

2. At paragraph 51 of his Honour’s reasons he stated that no part of the Tribunal’s procedure when ascertaining whether the appellant has been guilty of unprofessional conduct, and if so, whether to deal with him under s 29A(3) of the Legal Practitioners Act or make and transmit a report to the Supreme Court under s 29A(2), would determine the existing rights at law of the parties to the dispute in a matter of federal jurisdiction, namely the appellant and the solicitor.

3. The reservation to which I have referred immediately above arises as follows. The Tribunal [and, indeed, the Supreme Court – see s 30(2)] has power to order a practitioner to pay monies to other persons – see s 29A(3)(f), (g) and (h) of the Legal Practitioners Act. The reference to “the client” in the first of those sub-paragraphs may be a reference (in the case of a barrister) not, in the traditional sense, to the solicitor who retained him, but to the client on whose behalf such retainer was made.  It is not necessary to decide the point.  But under sub-paragraph (g) the Tribunal has power, where it considers that a sum certain in money is owing or payable by the practitioner to the complainant or another person, to order the payment by the practitioner of that sum to the Legal Practice Board for the benefit of the complainant or that person.  Under sub-paragraph (h), if the conduct of the practitioner has directly caused a person to suffer pecuniary loss and that person so requests, the Committee has power to order a payment by the practitioner to the Legal Practitioners Board for the benefit of that person of compensation to be assessed by the Tribunal, subject to certain conditions.  If it transpired that the Tribunal, after conducting a hearing, were minded to make orders of the type referred to in these sub-paragraphs then, in my view, there would arise what Barwick CJ referred to in Miller v Miller as “a textual collision” between what I consider to be the implied statutory or regulatory conferral of jurisdiction on the Family Court to tax the appellant’s bill as between him and the solicitor and to adjudicate upon the question of how much of the fees paid to the appellant should be refunded to the solicitor, and the sub-paragraphs to which I have referred above.  Accordingly, those sub-paragraphs may need to be read and construed in such a manner as not to apply to the determination of such an entitlement on the solicitor’s part.  This would be similar to the approach taken by Rath J in Silver v Consumer Claims Tribunal (1978) 36 FLR 281 at 291. However, that is not something which has to be decided in this appeal.

4. In all other respects, I do not see any inconsistency relevant to the question whether the reference to the Tribunal should be allowed to proceed.

   B.       The Chapter III Point

5. I accept the appellant’s submissions that the Tribunal exercises judicial power.  It is an independent statutory Tribunal which has the power and the duty to hear specific charges and to make orders some of which determine rights; the orders thus having effect of their own binding and compulsive force. 

6. However, I do not accept the appellant’s submission that, in the proceedings contemplated against him, the Tribunal will be exercising the judicial power of the Commonwealth. I think that the difference emerges when one focusses on the different functions and purposes of the Tribunal on the one hand and the Family Court on the other. It seems to me that in the proposed disciplinary proceedings before the Tribunal it will not be the function of the Tribunal to tax the costs which the appellant might legitimately charge to the solicitor. It may hear evidence or otherwise inform itself [it is not bound by the rules of evidence but may inform itself in any matter it considers just – see s 28D(4) of the Legal Practitioners Act] about what would be an approximate reasonable fee or the reasonable range of fees which counsel might properly charge to a solicitor in the relevant circumstances.  Its function then is to compare that approximate fee or range with what was actually charged and then decide whether the difference is so gross as to amount to unprofessional conduct – see for example D’Alessandro v Legal Practitioners Complaints Committee (1995) 15 WAR 198 at 209-210. The search is to see whether or not there is a gross overcharge, not just an unreasonable fee which would not be allowed on taxation either as between barrister and solicitor or between barrister and lay client. The function of the Family Court is to fix the relevant costs down to the last cent.

7. In carrying out the first stage of its functions (establishing an estimate of what would be a reasonable fee or a range in which it might be said the fee was reasonable) the Tribunal is not, in my opinion, usurping any taxation function of the Family Court.  I agree, respectfully, with his Honour’s reasoning and conclusion in that regard.

8. I reject the appellant’s submission that his Honour classified the roles of the Committee and the Tribunal as being in some way those of agents or delegates of the Supreme Court.  Nor do I do not read his Honour’s reasoning to be implicitly dependent, as senior counsel for the appellant submitted, on the proposition that there was no infringement of the doctrine of the separation of powers because the Tribunal’s functions were fully reviewable by the Supreme Court.  His Honour certainly referred (see paragraphs 8 and 11) to the assistance which the Tribunal provides to the Supreme Court in exercising statutory power to discipline practitioners.  But I do not think that this gives rise to the implication suggested by counsel.  I see his Honour’s reasoning as being based on a careful analysis of the statutory context and the proper characterisation of the role of the Tribunal in conducting disciplinary hearings.

   An additional matter

9. There is one further matter which I think should be mentioned.  For the purposes of Part IV of the Legal Practitioners Act (the part concerned with professional conduct and discipline) the definition of “Practitioner” is extended to include a person who is entitled by virtue of a law of the Commonwealth to perform in Western Australia the functions of a barrister or solicitor.  The intention of that extension would appear to have been to enable the Tribunal and the Supreme Court to monitor professional conduct and to discipline barristers and solicitors who were admitted, not in Western Australia but in some other State or a Territory and who practised or exercised the right of audience in courts exercising federal jurisdiction in Western Australia.  As was mentioned in argument during the hearing of this appeal, the extended definition, read literally, would apply to barristers and solicitors who had never practised or appeared in courts in Western Australia.  Whether the definition has to be read down and whether any constitutional problems (whether State or federal) arise out of a literal construction of this extended definition is not something which, in my opinion, it is necessary for us to consider.

   Conclusion

10. For the foregoing reasons, I would dismiss the appeal with costs.

I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of Justice Carr.

Associate:

Dated:             23 March 2000

Counsel for the Appellant	Mr E M Heenan QC with Mr B J H Goetze
Solicitor for the Appellant:	Minter Ellison
Counsel for the First Respondent:	Mr R J Davies QC with Mr H D Seymour
Solicitor for the First Respondent:	Law Complaints Officer, Legal Practitioners Complaints Committee
Counsel for the Second Respondent:	No appearance
Date of Hearing:	2 December 1999
Date of Judgment:	23 March 2000