De Pardo v Legal Practitioners Complaints Committee and Anor P34/2000

[2000] HCATrans 644

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P34 of 2000

B e t w e e n -

NINO ANTHONY DE PARDO

Applicant

and

LEGAL PRACTITIONERS COMPLAINTS COMMITTEE

First Respondent

LEGAL PRACTITIONERS DISCIPLINARY TRIBUNAL

Second Respondent

Application for special leave to appeal

McHUGH J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON FRIDAY, 27 OCTOBER 2000, AT 10.59 AM

Copyright in the High Court of Australia

MR E.M. HEENAN, QC:   May it please your Honours, I appear with my learned friend, MR A.R. BEECH, for the applicant. (instructed by Minter Ellison)

MR R.J. DAVIES, QC:   If the Court pleases, with MS C.F.M. COOMBS, I appear on behalf of the first respondent. (instructed by Ms D. Howell, Legal Practitioners Complaints Committee)

McHUGH J:   Yes, Mr Davies.  I hold a certificate from the Deputy Registrar certifying that the second respondent has entered an appearance in the matter, but has indicated that it does not wish to be represented at the hearing of the application for special leave to appeal and will abide by the decision of the Court.  Yes, Mr Heenan.

MR HEENAN:   Your Honour, we have an affidavit of the solicitor for the applicant that section 78B notices have been given to the Attorneys‑General or Solicitors-General for the States or the Territories, and that acknowledgments have been received from all but one, I am instructed, that none wishes to appeal or intervene.  I have been instructed during the course of the morning ‑ ‑ ‑

McHUGH J:   Is that the affidavit of Mr Goetze?

MR HEENAN:   There is a more recent affidavit of Mr Chew of 27 October, just sworn this morning, your Honour, where it is also indicated that an intimation has been received from the remaining Attorney-General’s Department that they have no wish to intervene or be heard.

McHUGH J:   Yes.  Has that affidavit been filed?

MR HEENAN:   No, your Honour.

McHUGH J:   Well, it might be filed in Court and it may be taken as read.

MR HEENAN:   May it please, your Honour.

McHUGH J:   Your might proceed to your argument.

MR HEENAN:   Yes.  Your Honours, if special leave is granted in this case, we will be asking the Court to address three questions which, in many ways, are but facets of the same two issues, but the questions are, firstly, can a non-judicial State Tribunal, the second respondent, and whom I will call the LPDT, validly determine the amount properly chargeable by the applicant, with a measure of fees for professional services chargeable for a matrimonial cause, is fixed by a system of federal law under the Family Law Act and Regulations which, according to the authorities, covers the fields and this is so even if such a decision is only a step towards the ultimate decision of the LPDT.

The second variation of the issue is this: can an allegation of unprofessional conduct against a practitioner exercising a federal right of practice under section 122 of the Family Law Act and section 55B of the Judiciary Act in a State court exercising invested federal jurisdiction in a matrimonial cause be examined by anybody other than a court exercising federal jurisdiction? The third variation is, is the conduct of a practitioner exercising a federal right to practice in a State court exercising federal jurisdiction solely determinable by applicable federal law, including any State law picked up by section 79 of the Judiciary Act, or is it regulated in part by State law?  If the latter, what is the role of the federal law in the situation and how does it integrate with the State component?

McHUGH J:   These submissions seem to go beyond the questions presented in your summary of argument though, do they not?

MR HEENAN:   Well, they are all issues, in our respectful submission, going to the question of whether or not the Tribunal, which is not a Chapter III court, is exercising federal judicial power.

HAYNE J:   And why was it?

MR HEENAN:   Why was it?

HAYNE J:   Yes.

MR HEENAN:   There are two levels at which that question can be answered.  The first level, which we refer to as the inconsistency argument, is because in one step in the determination of whether or not grossly excessive charges were rendered, it is necessary to identify, or at least estimate, what were proper charges.

HAYNE J:   To identify a range of charges, is it not?

MR HEENAN:   Yes.

HAYNE J:   It is not to fix the charges that are to be recovered, either from the opposite party or from the party retaining the lawyer concerned.

MR HEENAN:   Well, the Tribunal does have the power to do that, because it has a power to order a refund to the client.  This is the provision which Justices Carr and Whitlam, in the Full Federal Court, indicated gave rise to a possibility of a contextual collision.  In our respectful submission, their Honours correctly identified the nature of the power and in doing so, we say, exposed that it is but one facet of the same exercise which the Tribunal was called upon to exercise.

McHUGH J:   But this argument of yours seems to lead to an extraordinary conclusion.  When the solicitor filed an application seeking an order that your client be joined as a party and that costs payable by the solicitor to your client be taxed, your client opposed the application and he opposed the application on the basis that it did not concern the parties to a marriage and was not part of a matrimonial cause and therefore the Family Court of Western Australia did not have jurisdiction in respect of his costs and the registrar accepted your client’s argument and dismissed the application and, as a result, there was no taxation by the Registrar of the fees rendered by your client.  So, if that is right, it would seem to indicate that nobody has any power to look at your client at all.

MR HEENAN:   We have never made any secret of the fact that that was an embarrassing application or a position adopted by our client before a registrar.

HAYNE J:   Otherwise known as “Gotcha”.

MR HEENAN:   We submitted at first instance, and in the Full Court, that it should not be taken as determinative that the decision of the registrar was arguably wrong, but that there may well be other reasons to decline to join the barrister as a party to the taxation, because there is simply nothing, as your Honour Justice McHugh’s remarks imply, in the Act or Regulations expressly providing for the taxation of counsel’s fees, but we have always made the submission at first instance and in the Full Court that there was an inherent power in the Family Court of Western Australia or the Family Court of Australia, for that matter, to order an inquiry to scrutinise and determine counsel’s fees and that that could have been invoked perhaps in a different way. 

So, although that was an argument which is inconsistent with the position we are now putting, it was long before issues of jurisdiction had arisen and, as we say, accepting the embarrassing contradictions, it was arguably wrong.

Now, your Honours, in Yamaji there is a dictum of Justice Drummond, that is case No 9 in our volume of authorities, dealing with an issue in the federal jurisdiction of a conflict of interest between a solicitor and a client and, on the second page of the copied materials, at page 237 of 115 ALR, his Honour says, at line 5:

I note that the Supreme Court has disciplinary jurisdiction over practitioners, a jurisdiction over federal practitioners that is possessed, so far as I understand the position, only by the High Court.  It is unnecessary for me to examine whether a court with appropriate disciplinary jurisdiction over practitioners may for that reason be in a position to issue a restraint in circumstances like the present –

Now that, in our respectful submission, is a dictum which supports the position which we are urging in the present case ‑ ‑ ‑

McHUGH J:   But, leaving aside the “covering the field” test, there is surely no reason why the Western Australian board could not examine the conduct of a practitioner irrespective of how it arises or where it arises.  It could be misconduct before a foreign court.

MR HEENAN:   That brings us to the second answer to Justice Hayne’s earlier question.  The first issue I dealt with was at the level of inconsistency.  The second level is whether or not, in the federal structure within Australia, sovereignty or competence over practitioners in the federal sphere can be exercised by a State tribunal.  We accept that it could be done by the Supreme Court of Western Australia, the admitting authority, because it is a court possessed of invested federal jurisdiction.  It could also be done by any other State court possessed of invested federal jurisdiction.

HAYNE J:   Invested in this particular respect or simply - - -

MR HEENAN:   Generally.

McHUGH J:   But there is no State Supreme Court that is invested generally with federal jurisdiction and there are limitations on it.  For instance ‑ ‑ ‑

MR HEENAN:   I am sorry, your Honour, I have put that too widely.  The State Supreme Courts are invested with jurisdiction in relation to matrimonial causes and that would be sufficient to ‑ ‑ ‑

McHUGH J:   I think only your State Supreme Court, I may be wrong about that, but I am not sure.

MR HEENAN:   That would be enough in this State, but the Supreme Court is a Chapter III court and could deal with the matter.  The problem with the Tribunal is that it is not a Chapter III court.

Your Honour, if one goes to the Judiciary Act - the relevant provisions are under folder 2 in our outline - section 55B gives a right of practice to:

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;
.....in any federal court.

Section 122 of the Family Law Act, which is under folder 3, gives:

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.

So the applicant, when appearing, had rights of practise or audience under the Judiciary Act, under the Family Law Act and also under the Legal Practitioners Act of Western Australia, it being a State Act applying to a State court, but the relevant right was in respect of a matrimonial cause.  All issues in relation to costs are part of the matrimonial cause, so it was entirely a federal matter in respect of which the right was being exercised.

Now, if we go to section 55B(5) of the Judiciary Act - still under folio 2 - one sees that in certain circumstances, confined circumstances, jurisdiction is conferred on the Supreme Court of a State to control and discipline practitioners exercising a federal right of practise, but that is only where:

The Chief Justice of the Supreme Court of a State or an internal Territory –

keeps a special register of federal practitioners.  That has not occurred in Western Australia and, according to the position in the proceedings, it has not occurred in any other State.  But, under subsection (7), the jurisdiction to deal with practitioners for misconduct in the federal jurisdiction, is conferred on the State Supreme Courts, who possess those registries.  That contains an implication, in our respectful submission, that, in the absence of the express conferral of a power to discipline federal practitioners, it remains a matter of federal jurisdiction.  That is strengthened if one goes to section 55C, which deals with the situation where there is the federal register, kept by the register of this Court, entitling one to practise, because, under section 55C(5) is the provision that:

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 -

exercise disciplinary functions, including the removal of the name.

HAYNE J:   Now, is the consequence of your submission, that in the events that have happened and Western Australia itself having no roll of federal practitioners, only this Court can discipline your client?

MR HEENAN:   Well, at one level, yes, your Honour, but the other level is this:  the reason for that answer is because the control of federal practitioners in the federal jurisdiction is, prima facie, a federal matter within the federal jurisdiction and cognisable only by a Federal Court.  On the other hand, the Supreme Court of Western Australia, as with other State Supreme Courts, exercises a protective jurisdiction and it is at liberty to decide that a particular person is not a fit and proper person to practise within its jurisdiction, because of conduct of that person in some other place, perhaps in Singapore, Hong Kong or as far away as Sydney, and misconduct in those places may disclose that the practitioner is not suitable to practise in Western Australia and if proved or admitted, that would give the Tribunal grounds to discipline the practitioner for the protection of practise within Western Australia, not because so much of wrongdoing in the other jurisdiction, but because the wrongdoing in the other jurisdiction signifies a lack of ability to practise in Western Australia.  So, in that protective jurisdiction, the Tribunal could, in a clear case, discipline this practitioner.

HAYNE J:   But how is that contention consistent with the scheme evidenced by section 55B(1) that you are entitled to practise in federal courts only so long as you are entitled to practise in the Supreme Court of the relevant State?

MR HEENAN:   Removal of practise in the State would not lead, ipso facto, to removal of practise in the federal jurisdiction, although it would trigger action within the federal jurisdiction which would almost automatically lead to that consequence, but the loss ‑ ‑ ‑

HAYNE J: Section 55B(1)(a) seems to contemplate that if you are not:

for the time being entitled to practise as a barrister or solicitor, or as both, in the Supreme Court of a State -

you do not have entitlement to practise in federal jurisdiction.

MR HEENAN:   You may have an entitlement to practise in several States and the loss of one of which would not lead immediately to loss of a federal right of practise.  The simple point is that some exercise of federal jurisdiction is necessary in order to deprive the right of practise.

McHUGH J:   But, take the case of Ms Carol Foreman - you may not be familiar with her - but she was a New South Wales’ solicitor who was alleged to have forged a costs agreement in matrimonial causes jurisdiction; she was later struck off the rolls.  She was dealt with by the Tribunal in New South Wales and then ultimately struck off the rolls by the Court of Appeal.  Now, why was that not within the jurisdiction of the State tribunal, that sort of conduct?

MR HEENAN:   Your Honour, I am not familiar with the particular facts, but if it be established conclusively that a person has committed some offence or some disgraceful act in another jurisdiction, merely the report of that to the State tribunal or authorities is sufficient to enliven the State’s protective jurisdiction, but the State, in our respectful submission, would not be competent, or at least a non-Chapter III court, to determine whether in fact there was some offence committed or some disgraceful conduct committed, where that happens within the federal jurisdiction, because the very fact of determining whether there is a breach or whether the conduct is disgraceful, involves an adjudication of that point with regard to the applicable federal law and that is the exercise of federal jurisdiction.

Your Honour, there is another authority to which we would wish to draw attention, and that is the dictum of Chief Justice Burt in R v Anderson; Ex parte Carmelo Ioppolo (1999) 5 Fam LR, No 7 in our outline.  This is a case where prohibition and an injunction – it may not have been an injunction, but certainly prerogative relief was sought to prevent a judge sitting in the State Family Law Court, exercising federal jurisdiction, because of alleged conflict of interest, he being a former partner of the firm which acted for one of the parties in previous proceedings.  It was dismissed on the merits.  But, on the second page in the judgment of Chief Justice Burt, at about the fourth paragraph, is a passage:

For myself I have some considerable doubt as to whether this court has jurisdiction to prohibit a State judge from exercising Federal jurisdiction which has been invested upon the court of which he is a member.  However, that is a question which this court today finds unnecessary to answer.  It has not been argued before us and it would be unwise for me to say anything more about it.

But, your Honour, in our respectful submission, that implies that a general supervisory power of a State court, in the absence of express statutory

provisions, or a right of appeal, cannot intrude into a matter of federal jurisdiction.

So, your Honours, we have the situation where there is an arguable inconsistency because of a step in determining the amount of the costs.  There is the broader question of the scope of federal power over practitioners in the federal jurisdiction and we say that those are questions of importance which this Court ought determine.  We finally say that this would be a convenient case for that to be resolved, because none of the facts are in issue.  It has clearly been demonstrated exactly what happened and if we are right in our argument, we have a non-Chapter III court about to embark upon the exercise of federal jurisdiction to the prejudice of the applicant, or potential prejudice.  May it please your Honours.

McHUGH J:   Yes, the Court need not hear you, Mr Davies.

The Court is of the view an appeal would not enjoy sufficient prospects of success to warrant a grant of leave.  In the Court’s view there is no reason to doubt the correctness of the judgment of the court below.

MR DAVIES:    I simply move for costs, if the Court pleases.

McHUGH J:   You cannot oppose that, Mr Heenan?

MR HEENAN:   I think I inspired it, your Honour.

McHUGH J:   The application is dismissed with costs.

AT 11.21 AM THE MATTER WAS CONCLUDED