De Pardo v Legal Practitioners Complaints Committee

[1999] FCA 698

FEDERAL COURT OF AUSTRALIA

De Pardo v Legal Practitioners Complaints Committee [1999] FCA 698

LEGAL PRACTITIONERS – practitioner admitted by Supreme Court of a State under State legislation – disciplinary proceedings commenced against practitioner by State disciplinary authority under that legislation in respect of conduct in relation to practise of law in State court exercising federal jurisdiction – application by practitioner to restrain proceedings.

CONSTITUTIONAL LAW – whether State law inconsistent with Commonwealth law by virtue of s 109 of the Constitution – whether State disciplinary authority purporting to exercise federal judicial power contrary to s 71 of the Constitution.

Family Law Act 1975 (Cth) ss 41(3), 122
Judiciary Act 1903 (Cth) ss 39B(1A), 55A, 55B, 55B(1), 55B(4), 55B(5), 55B(6), 55B(7), 55B(9), 55C, 55C(5), 86(ga)
Jurisdiction of Courts (Cross-Vesting) Act 1987 Cth) s 4(1)
Legal Practitioners Act 1893 (WA) Pt IV (ss 25 - 33); ss 3, 6(1)(h), 6(3), 20, 22, 23, 29A, 29A(2), 29A(3), 30, 31AA, 31AA(3), 32A, 32A(3), 33

The Constitution Ch III; ss 51(xxxix), 71, 109

In re Welsh (A Solicitor); Ex parte The Law Institute of Victoria (1896) XXII VLR 473 distinguished
In re Isdale, Isdale v Medical Council (1945) NZLR 136 cited
Port MacDonnell Professional Fishermen’s Association Inc v The State of South Australia (1989) 168 CLR 340 cited
Cook v Administration of Norfolk Island (1992) 111 ALR 453 cited
In re Crick (1907) VII SR(NSW) 576 cited
Little v Registrar of High Court of Australia (1990) 96 ALR 448; (1990) 101 ALR 247 cited
Re Residential Tenancies Tribunal of New South Wales; Ex parte Defence Housing Authority (1997) 146 ALR 495 cited
The Commonwealth of Australia v Cigamatic Pty Limited (in liquidation) (1962) 108 CLR 372 cited
Woolf v Snipe (1933) 48 CLR 677 cited
Keith Hercules & Sons v Steedman (1987) 17 FCR 290 cited
Re Toolin and Cedric R Symonds (1981) 7 Fam LR 179 cited
Brandy v HREOC (1995) 183 CLR 245 cited
Commonwealth of Australia v State of Western Australia (1999) 160 ALR 638 cited
Northern Territory of Australia v GPOA (1999) 161 ALR 318 cited
Nicholas v The Queen (1998) 193 CLR 173 cited
Abebe v Commonwealth of Australia [1999] HCA 14 cited
D’Alessandro v Legal Practitioners Complaints Committee (1995) 15 WAR 198 cited
Caboolture Park Shopping Centre Pty Ltd (In liquidation) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224 cited
Jachimowicz v Jachimowicz (1986) 81 FLR 459 cited
Myers v Elman [1940] AC 282 cited
Re Bendeich (No 2) (1994) 53 FCR 422 cited
Weaver v Law Society of New South Wales (1979) 142 CLR 201 cited
Wentworth v New South Wales Bar Association (1992) 176 CLR 239 cited

NINO ANTHONY DE PARDO v LEGAL PRACTITIONERS COMPLAINTS COMMITTEE and LEGAL PRACTITIONERS DISCIPLINARY TRIBUNAL
WG 35 OF 1998

LEE J
26 MAY 1999
BRISBANE (HEARD IN PERTH)

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WG 35 OF 1998

BETWEEN:

NINO ANTHONY DE PARDO
Applicant

AND:

LEGAL PRACTITIONERS COMPLAINTS COMMITTEE
First Respondent

LEGAL PRACTITIONERS DISCIPLINARY TRIBUNAL
Second Respondent

JUDGE:

LEE

DATE OF ORDER:

26 MAY 1999

WHERE MADE:

BRISBANE (HEARD IN PERTH)

THE COURT ORDERS THAT:

The application be dismissed with costs.

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	WG 35 OF 1998

BETWEEN:

NINO ANTHONY DE PARDO
Applicant

AND:

LEGAL PRACTITIONERS COMPLAINTS COMMITTEE
First Respondent

LEGAL PRACTITIONERS DISCIPLINARY TRIBUNAL
Second Respondent

JUDGE:	LEE
DATE:	26 MAY 1999
PLACE:	BRISBANE (HEARD IN PERTH)

REASONS FOR JUDGMENT

1. This is an application for an order to restrain the first respondent (“the Committee”) from continuing a disciplinary proceeding before the second respondent (“the Tribunal”) against the applicant (“De Pardo”) and to restrain the Tribunal from hearing and determining that proceeding.

2. The Tribunal filed a submitting appearance.

3. The jurisdiction in this Court to hear and determine the application is said to be found in s 39B(1A) of the Judiciary Act 1903 (Cth) which provides as follows:

   “39B(1A)  The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:

   (a)in which the Commonwealth is seeking an injunction or a declaration; or

   (b)arising under the Constitution, or involving its interpretation; or

   (c)arising under any laws made by the Parliament.”

4. De Pardo asserts that the matter in respect of which application to this Court is made is one arising under the Constitution or involving its interpretation, or arising under laws made by the Parliament. Notices were given to Attorneys-General pursuant to s 78B of the Judiciary Act. No Attorney intervened.

5. De Pardo practises law in the State of Western Australia, being admitted a practitioner by the Supreme Court of Western Australia (“the Supreme Court”) pursuant to s 22 of the Legal Practitioners Act 1893 (WA) (“the State Act”) which provides that no person shall be admitted a practitioner except by the Full Court of that Court. “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.

6. Under s 23 of the State Act every practitioner, immediately after being admitted, is to sign the Roll of Practitioners (“the Roll”) maintained by the Supreme Court. Section 20 of the State Act provides that no person shall be admitted as a practitioner unless that person has obtained a certificate from the Legal Practice Board (“the Board”) that, in the opinion of the Board, the person is a fit and proper person to be admitted. A similar provision applies when a practitioner who is struck off the Roll applies to the Full Court to be readmitted (s 33). Under s 32A of the State Act, a practitioner admitted to practise in “a jurisdiction outside Western Australia” and struck off the roll maintained in that place is not permitted to practise law in Western Australia without the consent of the Board and the practitioner may be the subject of a report by the Tribunal to the Full Court of the Supreme Court which may direct that the practitioner be struck off the Roll. Section 32A(3) provides that for the purpose of such a report, being struck off the roll or suspended from practise in a jurisdiction outside Western Australia constitutes unprofessional conduct. (cf In re Welsh (A Solicitor); Ex parte The Law Institute of Victoria (1896) XXII VLR 473.) If the Tribunal did not submit such a report to a Full Court, the supervisory jurisdiction possessed by the Supreme Court at common law, and recognised by s 31H of the State Act, may be exercised.

7. Under s 6(1)(h) of the State Act the Board may make rules regulating the issue, review and renewal, or refusal, of practice certificates and conditions to which such certificates may be made subject. Section 6(3) provides that a practice certificate is required to be held by every practitioner engaged in the practise of law in this State. Section 81 of the State Act provides that it is a contempt of the Supreme Court for a person to act contrary to the terms of the State Act.

8. According to the foregoing the State Act provides for the Board to act in aid of the Supreme Court in the supervision of practitioners.

9. For the discipline of practitioners Pt IV of the State Act (ss 25 - 33) establishes the Committee and the Tribunal. Under s 25 of the State Act the Committee is empowered to inquire into the conduct of a practitioner on matters relating to the practise 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 is guilty of –

   (a) illegal conduct;

   (b) unprofessional conduct; or

   (c) neglect, or undue delay, in the course of the practise of the law.

10. The Tribunal may submit a report on such findings to the Full Court and s 30 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 strike off the Roll the practitioner concerned.

11. In the foregoing provisions the State Act provides for the Tribunal to provide further assistance to the Supreme Court in exercising a statutory power to discipline practitioners admitted by that Court.

12. 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.

13. Section 31AA provides that a finding may be made that a practitioner has been guilty of illegal conduct where shown to have been convicted of an offence in Australia or elsewhere within ten years prior to the commencement of the disciplinary proceeding against the practitioner. That provision is facultative in that it obviates the need for the Committee or the Tribunal to hear evidence and determine that a practitioner has been guilty of illegal conduct. Section 31AA does not purport to define restrictively the circumstances in which a Tribunal may find that a practitioner is guilty of illegal conduct and s 31AA(3) confirms that an inquiry may be continued notwithstanding that a conviction has been quashed or set aside. (See:  In re Isdale, Isdale v Medical Council (1945) NZLR 136.)

14. Similarly, s 32A facilitates a finding of unprofessional conduct where a disciplinary authority in a jurisdiction outside Western Australia has struck off or suspended a practitioner. The power of a Tribunal to make a finding of unprofessional conduct in respect of conduct in a jurisdiction outside Western Australia is not conditioned by the existence of a finding by another disciplinary authority to that effect.

15. It is not in issue that it is within the legislative competence of the State to provide for the authority empowered to grant to a person the right to practise law in this State to review whether that right to practise should continue and in that regard to have cognisance of conduct of that person that has occurred outside the State. (See:  Port MacDonnell Professional Fishermen’s Association Inc v The State of South Australia (1989) 168 CLR 340 at 369 – 373.)

16. The nub of the matter as argued was whether the State Act when applied to the circumstances of this case, was inconsistent with Commonwealth legislation and, therefore, invalid to that extent pursuant to s 109 of the Constitution or, alternatively, whether a determination by the Tribunal in respect of those circumstances would constitute an exercise of judicial power of the Commonwealth by a body in which that power could not be vested under s 71 of the Constitution.

17. The relevant Commonwealth legislation is contained in the Judiciary Act 1903 (Cth) and the Family Law Act 1975 (Cth).

18. 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. 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. 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 (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.

19. 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 or solicitors in any federal court and for prescribing conditions for the continuance of that right to practise. (See: Cook v Administration of Norfolk Island (1992) 111 ALR 453 at 478.)

20. 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.

21. 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.

22. Under s 55B(7) the Supreme Court may order that a person’s registration in the Register be “cancelled” 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 the Register again, notwithstanding being eligible to be so registered, except by order of the Supreme Court. That section contemplates that it may not follow that a person whose registration as a person entitled to audience in State courts exercising federal jurisdiction has been cancelled by the Supreme Court will be struck off the Register of Practitioners maintained by the High Court or off the Roll maintained by the Supreme Court.

23. The provisions of s 122 of the Family Law Act purport to apply more broadly than s 55B(4) of the Judiciary Act. 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.

24. 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. No doubt, where the provisions of s 55B(5) had been relied upon by a Chief Justice of a State Supreme Court to establish a Register of Practitioners who have a right of audience, it would be intended by the Commonwealth Parliament that the Supreme Court continue to control the right of audience of a barrister or solicitor pursuant to s 55B(7) in State courts exercising federal jurisdiction including a State court exercising jurisdiction invested by the Family Law Act.

25. 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.

26. 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.

27. In the absence of establishment of a Register under s 55B(5) of the Judiciary Act, providing for a Supreme Court to discipline practitioners whose names are registered in that Register and to cancel the right of audience in the State courts of those practitioners, the disciplinary powers in s 55C(5), which control the right to practise in federal courts, may be read as extending to the control of a right of audience in State courts in relation to the exercise of federal jurisdiction.

28. Whether s 55B(7) may be read as investing jurisdiction in Supreme Courts to discipline practitioners in respect of conduct unrelated to the exercise of federal jurisdiction in State courts, is unnecessary to consider.

29. The question that arises in the instant case is whether the Commonwealth intended to “cover the field” in respect of such conduct and in doing so overtake the jurisdiction conferred on the Supreme Court and the Board by the State Act. At common law, the Supreme Court has the jurisdiction to review whether a person admitted by the Supreme Court to practise law in the State is a fit person to be continued to be so authorized. A court which admits a person as a fit and proper person to be on the roll maintained by the court has a duty to see that that person does not cease to be a fit and proper person to be on that roll. (See: In re Crick (1907) VII S R (NSW) 576 per Darley CJ at 587.)

30. 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. Even 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 barrister or solicitor in any Federal Court [sic]”. The Judiciary Act does not provide for the discipline of persons admitted to practise by the High Court but it is within the rule-making power devolved on the High Court in s 86(ga) to so provide in any rules made by the High Court.

31. Sections 55B(1), (4) provide only that a practitioner who is entitled to practise in a Supreme Court of a State has an entitlement to practise in any federal court and a right of audience in any State court in relation to the exercise in that court of federal jurisdiction. Having regard to the legislative power of the Commonwealth provided in s 51(xxxix) of the Constitution, neither provision would entitle a person, not a practitioner admitted by the Supreme Court of a State, to practise law in that State other than to the extent permitted by those subsections for the purpose of assisting the exercise of the judicial power of the Commonwealth. Section 122 of the Family Law Act is to like effect, and the entitlement to practise in a State court under that section is dependent upon, and concomitant with, the exercise of federal jurisdiction vested in that Court pursuant to s 41(3) of the Family Law Act.

32. Under 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, are recognised as functions of the Supreme Courts of the States and it is accepted that performance of those functions will control who may practise in courts exercising federal jurisdiction.

33. It is not patent from the foregoing that the described disciplinary provisions of the State Act are inconsistent with the provisions of the Judiciary Act or the Family Law Act. The Commonwealth legislation defines persons entitled to practise in federal courts and State courts in relation to the exercise of federal jurisdiction by reference to the recognition of entitlement to practise law granted by a Supreme Court of a State. The complementary recognition under Commonwealth law 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. Although the Judiciary Act has made further provision 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 that provision appears does not suggest an intention to exclude the jurisdiction of the Supreme Court to determine such issues under relevant State legislation. In construing the Commonwealth laws it is to be borne in mind that those laws were enacted with cognisance of the jurisdiction exercisable by the Supreme Courts of the States at common law.

1. Acceptance of determinations of the Supreme Court as to the fitness of a person to practise, and to continue to practise, implies acquiescence in the determinations and reviews of fitness to practise carried out by Supreme Courts, including consideration of any conduct relevant to that issue committed by a person in the course of the practise of law in a federal jurisdiction. No reason arises in the Commonwealth legislation for regarding the disciplinary power granted to the High Court in s 55C(5) of the Judiciary Act as 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, or to a right of audience in a State court in relation to the exercise of federal jurisdiction. (See:  Little v Registrar of High Court of Australia (1990) 96 ALR 448 per Jenkinson J at 453; (1990) 101 ALR 247 at 255.)

2. The jurisdiction to discipline persons who practise in federal courts, conferred on the High Court by s 55C(5) of the Judiciary Act, is to be read as providing for an additional disciplinary power appropriate for exercise in certain circumstances. It is concerned with conduct of a degree that warrants the striking off of the name of a person in the Register or suspension of the right of practise or right of audience of that person and not lesser conduct for which other penalties may be appropriate under a general jurisdiction for the supervision of admitted practitioners. It is neither necessary nor appropriate, having regard to contextual provisions, to conclude that the object of s 55C(5) is to exclude a like power exercisable by a Supreme Court and to leave to the Supreme Court discipline of admitted practitioners for conduct for which such lesser penalties may be applied.

3. The State Act (s 3 “practitioner”) expressly provides that the disciplinary provisions of the State Act apply to 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 intent of that expansion of the definition of practitioner is to make it clear that conduct in the performance of the functions of a barrister or a solicitor within the State, under the authority of Commonwealth law, will be conduct to which the disciplinary provisions apply. As set out above, it is within State legislative power to so provide and it is contemplated within the provisions of the Judiciary Act, that such a legislative power may be exercised.

4. 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. (See:  Re Residential Tenancies Tribunal of New South Wales; Ex parte Defence Housing Authority (1997) 146 ALR 495; The Commonwealth of Australia v Cigamatic Pty Limited (in liquidation) (1962) 108 CLR 372.)

5. A like result occurs where legislation of a State or Territory provides for taxation proceedings to resolve disputes in respect of costs that have been rendered by a practitioner. That jurisdiction is regarded as concurrent with a 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, are resolved under the provisions of the State or Territory laws. (Woolf v Snipe (1933) 48 CLR 677 per Dixon J at 681; Keith Hercules & Sons v Steedman (1987) 17 FCR 290 per Lockhart J at 300 – 302; Sheppard J at 303.)

6. It follows that there is no inconsistency between the State Act and the Commonwealth legislation to which s 109 of the Constitution may apply.

7. The second limb of De Pardo’s argument is that the hearing and determination by the Tribunal of the Committee’s complaint would constitute a purported exercise of the judicial power of the Commonwealth by other than a court to which Ch III of the Constitution applies.

8. The facts relevant to that submission are as follows. De Pardo’s name appears in the Register of Practitioners maintained by the High Court under s 55C of the Judiciary Act. At some time after he was admitted a practitioner, De Pardo informed the Supreme Court that he had elected to practise only as a barrister. In 1992 De Pardo was instructed by a solicitor to perform work as a barrister in a proceeding in the Family Court of Western Australia in respect of a matter of federal jurisdiction arising under the Family Law Act. 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 De Pardo 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 De Pardo as counsel fees. De Pardo attended 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.

9. The solicitor commenced an application in the Family Court of Western Australia to have De Pardo joined as a party to the matrimonial proceeding and to have the fees rendered by De Pardo to the solicitor made subject to taxation. De Pardo opposed the application on the ground, inter alia, that the application 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 De Pardo to the applicant solicitor. A Magistrate of the Family Court of Western Australia accepted De Pardo’s submissions and dismissed the application.

10. The solicitor lodged a complaint against De Pardo with the Committee in respect of the amount of fees rendered by De Pardo and paid by the solicitor. The Committee issued a reference to the Tribunal alleging that De Pardo 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”.

11. De Pardo now asserts that the assessment or taxation of the counsel fees rendered by him is part of a “matrimonial cause” and that only a court on which federal jurisdiction in respect of such matters has been conferred or invested may determine the reasonableness of such fees.

12. It is submitted by De Pardo that determination by the Tribunal of the complaint before it “will inevitably involve an inquiry into, and an adjudication upon a matrimonial cause, namely, what are proper, fair and reasonable costs chargeable by (De Pardo) for the services which he provided” with respect to that matrimonial cause. De Pardo contends that the Tribunal cannot determine the complaint “without the Family Court of Western Australia having first determined the reasonableness or otherwise of the fees” rendered by him to the solicitor.

13. For the above submission to succeed it is necessary to show that a determination by the Tribunal of the Committee’s complaint would involve an exercise of judicial power of the Commonwealth.

14. The Committee concedes that all incidental questions arising in the proceeding in the Family Court of Western Australia, including costs, were related to a “matrimonial cause” which attracted federal jurisdiction but submits that the assessment of the amount of the disbursement for the counsel fees payable by the client as part of the solicitor’s bill of costs, was a determination by the Family Court of Western Australia of reasonable fees chargeable by De Pardo to the solicitor.

15. Alternatively, the Committee submits that determination by the Tribunal of the complaint before it involves an inquiry into, and finding upon, the single question whether De Pardo has been guilty of unprofessional conduct and that by considering whether the fees charged by De Pardo were grossly excessive, or making such a finding, the Tribunal would not be involved in an adjudication in a matrimonial cause.

16. The question raised by De Pardo is to be answered by analysing the nature of the hearing to be conducted, and the determination to be made, by the Tribunal. De Pardo submits that the Tribunal must ascertain what would have been fair, reasonable or proper charges for De Pardo to have rendered. But if so much is accepted for the purpose of that submission, does that bespeak an exercise of judicial power in respect of federal jurisdiction?

17. The matter of federal jurisdiction in this case is the incidental controversy between the solicitor for a party to the proceeding in the Family Court of Western Australia and counsel instructed by the solicitor in that proceeding. (See: Re Toolin and Cedric R Symonds (1981) 7 Fam LR 179.) An exercise of judicial power of the Commonwealth in that respect would be the resolution of that controversy by findings of fact and orders based upon such findings which determine and enforce the rights of the solicitor and De Pardo as they exist at law. (See: Brandy v HREOC (1995) 183 CLR 245 per Mason CJ, Brennan, Toohey JJ at 256 – 259; Commonwealth of Australia v State of Western Australia (1999) 160 ALR 638 per Gleeson CJ, Gaudron J at [48]; Northern Territory of Australia v GPOA (1999) 161 ALR 318 per Gleeson CJ, Gummow J at [87]; Nicholas v The Queen (1998) 193 CLR 173 per Brennan CJ at [18] – [19], Gaudron J at [70], McHugh J at [107] – [109]; Abebe v Commonwealth of Australia [1999] HCA 14 per Gleeson CJ and McHugh J at [48], [36].)

18. The hearing and determination by the Tribunal of the Committee’s complaint will not have the character of such an exercise of judicial power. 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.

19. It is alleged by the Committee that De Pardo is guilty of unprofessional conduct by charging counsel fees in a matter in the Family Court of Western Australia in sums that were, in all the circumstances, grossly excessive. A finding of unprofessional conduct, therefore, will involve consideration of a matrix of circumstances including whether it was plain, having regard to all those circumstances, that the fees charged by De Pardo would exceed by a clear measure any sum that might have been regarded as a reasonable fee for the services of a barrister performed by De Pardo. (See:  D’Alessandro v Legal Practitioners Complaints Committee (1995) 15 WAR 198 per Ipp J at 211.)

20. The Tribunal will make findings of fact and an ultimate determination. If it is determined that De Pardo has been guilty of unprofessional conduct and that a report should be transmitted to the Supreme Court, such findings of fact recorded in that report will be conclusive findings from which the Supreme Court will make such orders as appear to be fit. 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. Control exercisable by a court by taxation over costs or fees charged by a practitioner is a different and separate function from a determination that a practitioner has engaged in unprofessional conduct. The function able to be performed by the Family Court of Western Australia under the federal jurisdiction vested in it is to determine, as De Pardo puts it, “the reasonableness of the costs charged by him to his instructing solicitor”. That function does not raise for adjudication the issue whether De Pardo had been guilty of unprofessional conduct. (See:  D’Alessandro per Ipp J at 209 – 210.) The Family Court of Western Australia has no jursidiction to make such an adjudication.

21. The power of adjudication granted to the Family Court of Western Australia by the vesting of the federal jurisdiction does include the power to make orders which will effect supervision of the conduct of legal practitioners where such orders are necessary to redress a breach of duty to the court that has occasioned loss or injury and to maintain the integrity of the court’s procedures. (See:  Caboolture Park Shopping Centre Pty Ltd (In liquidation) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224 at 232 – 233; Jachimowicz v Jachimowicz (1986) 81 FLR 459; Myers v Elman [1940] AC 282 at 289; Re Bendeich (No 2) (1994) 53 FCR 422 at 425 - 427.) However, that judicial power of the Commonwealth is not the same as, and does 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 has been guilty of unprofessional conduct contrary to the terms of that admission and is liable to a penalty or sanction directed to obtaining adherence by practitioners to the standard of conduct required by reason of that admission. (See: Weaver v Law Society of New South Wales (1979) 142 CLR 201 per Mason J at 207; Wentworth v New South Wales Bar Association (1992) 176 CLR 239 per Deane, Dawson, Toohey and Gaudron JJ at 250 – 253.)

22. It follows from the foregoing that the hearing by the Tribunal of the complaint that De Pardo engaged in unprofessional conduct by rendering grossly excessive fees to an instructing solicitor in respect of De Pardo’s practise as a barrister in a matter of the Family Court of Western Australia in the exercise of federal jurisdiction will not involve the exercise of a judicial power of the Commonwealth.

23. The applications for injunctions against the Committee and the Tribunal will be dismissed with costs.

I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee.

Associate:

Dated:             

Counsel for the Applicant:	E M Heenan QC B J H Goetze
Solicitor for the Applicant:	Minter Ellison
Counsel for the First Respondent:	R J Davies QC J D Allanson
Solicitor for the First Respondent:	Law Complaints Officer
Date of Hearing:	21 August 1998
Date of Judgment:	26 May 1999