Etter v Legal Profession Board of Tasmania
[2018] TASFC 2
•9 July 2018
[2018] TASFC 2
COURT: SUPREME COURT OF TASMANIA (FULL COURT)
CITATION: Etter v Legal Profession Board of Tasmania [2018] TASFC 2
PARTIES: ETTER, Barbara
v
LEGAL PROFESSION BOARD OF TASMANIA
FILE NO: 13/2018
JUDGMENT
APPEALED FROM: Etter v Legal Profession Board of Tasmania
Legal Profession Board of Tasmania v Etter [2017] TASSC 77
DELIVERED ON: 9 July 2018
DELIVERED AT: Hobart
HEARING DATE: 28 May 2018
JUDGMENT OF: Wood J, Estcourt J and Marshall AJ
CATCHWORDS:
Profession and Trades – Lawyers – Practising certificates – Cancellation and suspension – Construction of governing Act – Legal Profession Board's power to direct suspension of practising certificate as a result of non-compliance with requirement to provide documents – Notice issued in course of investigation – Pre-requisites for valid exercise of Board's power –– Appeal dismissed.
Legal Profession Act 2007 (Tas), ss 446, 460, 572, 573, 586 and 588.
Aust Dig Profession and Trades [1130].
REPRESENTATION:
Counsel:
Appellant: H Selby
Respondent: C Gunson SC, J Sawyer
Solicitors:
Respondent: Tremayne Fay Rheinberger
Judgment Number: [2018] TASFC 2
Number of paragraphs: 44
Serial No 2/2018
File No 13/2018
BARBARA ETTER v LEGAL PROFESSION BOARD OF TASMANIA
REASONS FOR JUDGMENT FULL COURT
WOOD J
ESTCOURT J
MARSHALL AJ
9 July 2018
Order of the Court
Appeal dismissed.
Serial No 2/2018
File No 13/2018
BARBARA ETTER v LEGAL PROFESSION BOARD OF TASMANIA
REASONS FOR JUDGMENT FULL COURT
WOOD J
9 July 2018
This appeal raises questions of statutory interpretation and the proper construction of provisions of the Legal Profession Act 2007, particularly s 573. I have had the benefit of reading the draft reasons of Estcourt J and I agree with his Honour that the appeal should be dismissed. The approach of the learned primary judge to the construction of the Act was entirely correct. I agree with the reasons of Estcourt J for dismissing the appeal, although I do not adopt the respondent's submissions as my reasons, as helpful as they are.
The appellant requested this Court delay the delivery of judgment, if it would not adjourn the hearing of the appeal, until other proceedings in the Supreme Court challenging the respondent's handling of two complaints against the appellant were resolved. The hearing proceeded with the Court noting the request. The view held by this Court is that the resolution of this appeal should not be delayed. The other proceedings could have no bearing at all on our consideration of this appeal, and further, there is a clear public interest in the respondent fulfilling its statutory role and the completion of investigations.This appeal relates to an investigation on foot which cannot be progressed until the appeal is finalised.
File No 13/2018
BARBARA ETTER v LEGAL PROFESSION BOARD OF TASMANIA
REASONS FOR JUDGMENT FULL COURT
ESTCOURT J
9 July 2018
The appeal
The appellant, Barbara Etter, appeals against two orders made by Geason J on 19 December 2017.
The first was his Honour's refusal to make an order staying the operation of a direction by the Legal Profession Board of Tasmania (the Board), made to the second respondent, the Law Society of Tasmania (the Law Society), on 30 October 2017 as a result of which the appellant's practising certificate as a legal practitioner was suspended by the Law Society.
The second was an order that the appellant produce to the Board's investigator the documents specified in a notice dated 29 September 2017 given by the Board to the appellant pursuant to s 572(1) of the Legal Profession Act 2007 (the Act).
The orders were interrelated in that the learned primary judge had before him two applications, one made by each of the parties.
In the first application the appellant sought an order against the Board in consequence of her having been suspended from practice as a result of the direction given by the Board to the Law Society, pursuant to s 573(7)(b) of the Act (the appellant being a legal practitioner and a person to whom the Act applied). The appellant challenged the validity of that direction and sought a stay of its operation (notwithstanding that a stay would arguably not affect the suspension already imposed by the Law Society).
In the second application the Board sought an order against the appellant requiring the production of the documents specified pursuant the notice given to her, pursuant to s 572(1) of the Act.
The application seeking production of the documents sought by the Board was in consequence of the appellant's failure to comply with a direction of the Board to do so, and her suspension was as a result of her refusal to do so.
The background
The learned primary judge set out the facts underlying the two applications at [11]–[25] of his reasons for judgment as follows:
"The facts
[11] The factual matters giving rise to the application are not disputed. The Court received into evidence affidavits from Frank Ederle (sworn 7 November 2017 and 20 November 2017), Mr Luke Rheinberger for the Prescribed Authority (sworn 7 November 2017), on behalf of the Board, and from Ms Etter (sworn 6 November 2017). None of the deponents was cross-examined.
[12] Mr Ederle deposes that on 6 March 2017 the Board received a complaint from Robert Greer in relation to conduct alleged against the applicant in relation to a coronial inquest into the death of his mother, Rita Greer. Upon receiving the complaint the Board engaged an independent person to assist the complainant to particularise the complaint. On 2 May 2017, the Board received further particulars of the complaint. By letter dated 2 May 2017 the Board notified the applicant of the complaint, noting that it had not been acted upon by the Board, and informing the applicant of her right to make submissions to the Board about the matters raised. This included an invitation to make submissions to the Board as to why the complaint should not be summarily dismissed under s 433 of the Act. A time limit was imposed upon the applicant for the making of submissions.
[13] On 4 May 2017, the applicant made submissions in reply to the Board, incorporating by reference a document she had prepared and which was dated 14 March 2017, in relation to another matter. That other matter was an investigation being undertaken by the Board of its own motion in respect of matters raised in a decision of Coroner McTaggart in connection with the death of Rita Greer, published on 23 February 2017. Ms Etter's submissions in respect of that matter were intended to dissuade the Board from pursuing a complaint against her in relation to conduct alleged by Coroner McTaggart. Pursuant to s 427(2) of the Act, the Board may bring a complaint against a practitioner. Its investigation in relation to the inquest was directed to that possibility. Upon receipt of the complaint from Robert Greer, the Board did not pursue the investigation directed towards bringing its own complaint.
[14] At a meeting of the Board held on 31 July 2017, it determined it was unable to summarily dismiss the complaint brought by Mr Greer, and determined that it was to be investigated pursuant to s 440 of the Act. Ms Emily Warner was appointed as an investigator in respect of the matter by an Instrument bearing the same date. Her appointment was made pursuant to s 442 of the Act. Ms Warner is employed by the Board as a senior investigator, and the Court was told that her duties primarily involve the investigation of complaints received by the Board under Ch IV of the Act.
[15] The applicant was advised of these developments by letter dated 2 August 2017.
[16] On 24 August 2017, Ms Warner asked the applicant to produce documents for the purpose of her carrying out the investigation.
[17] On 12 September 2017, the applicant wrote to the Board. Her long letter was headed 'Rebuttal of Greer May 2017 Allegations Using my March 2017 Response to the McTaggart Allegations and References to Inquest Transcript/Proceedings'. There followed a reference to the letter from Ms Warner directing production of documents, a series of observations about the particulars of Mr Greer's complaints, and a commentary upon the fact that the complaint from Mr Greer had been received by the time the applicant was asked by the Board to respond to the McTaggart allegations. A number of other issues were raised, but for present purposes it is sufficient to note that the letter was not accompanied by the documents which had been requested by Ms Warner.
[18] Further correspondence was exchanged between the applicant and the Board, culminating in a letter dated 29 September 2017, and signed by Ms Warner, informing the applicant that she had determined to issue a notice pursuant to s 572 of the Act, requiring production of the documents. The notice is in these terms:
'NOTICE TO PRODUCE DOCUMENTS
1I, Emily Warner, an Investigator appointed by the Legal Profession Board of Tasmania pursuant to s 442 of the Legal Profession Act 2007, HEREBY require you to produce the following documents and classes of documents to me:
(a) Solicitor's file and all documents relating to or in connection with your representation of Ms Pauline Greer for the re-opening of the investigation and the inquest into the death of Rita Sally Greer of which you had carriage ('the Greer matter') including, but not limited to all notes, instructions, documents, draft affidavits, affidavits, and any written submission filed with the Coroner, and any drafts or preparatory notes of written submissions;
(b) A copy of any electronic file or records you hold with regard to the work you conducted for the Greer matter including any drafts of documents such as affidavits and submissions you intended to make to the court;
2I require the originals of the documents referred to at paragraph 1(a) to be produced if the originals are in your possession. If you to not have the originals of some of the above documents I require production of original copies in your possession.
3I require the documents referred to a [sic] paragraph 1(b) to be produced on a memory stick. A memory stick was supplied to you under cover of letter dated 29 August 2017.
4I require the above documents to be delivered to me at LEGAL PROFESSION BOARD OF TASMANIA, LEVEL 3, 147 MACQUARIE STREET, HOBART IN THE STATE OF TASMANIA no later than 5pm on Monday 16 October 2017.
5This notice is issued pursuant to s 572(1) of the Legal Profession Act 2007 for the purpose of carrying out a complaint investigation in respect of a complaint made by Mr Robert Greer dated 5 March 2017 in relation to Mrs Barbara Etter, an Australian Lawyer.
6TAKE NOTICE that pursuant to s 572 (3) of the Legal Profession Act 2007 a person who is subject to a requirement under s 572 (1) must comply with the requirement. Failure to do so is an offence punishable by a fine not exceeding 50 penalty units.'
[19] The applicant's initial response to that notice was to request a copy of the signed delegation from the Board relating to the power to appoint an investigator, with a request that the document be certified as a true copy by a justice of the peace. This was done.
[20] Next the applicant sent a letter to the Board headed 'Greer v Etter … – The Growing Scandal That Is Your Handling of the Complaint'. The letter made a series of comments in respect of the Board's management of the complaint, and alleged 'improper conduct for an improper purpose'. With respect to the production of the documents, the letter asserted an obligation upon the Board to operate within the relevant legislative framework and follow 'basic administrative law principles including the principles of natural justice/procedural fairness'. It was submitted by the applicant that there was no supporting evidence which could 'create a legitimate forensic purpose in your asserted investigation of the Greer complaint, as evidenced by the seriously deficient particulars … and the fact that you have, at all material times, had my lengthy, written rebuttal.' The letter culminates in a final section headed 'Good Reasons to Refuse to Comply with Your Notice'. Under this heading the applicant contended that, pursuant to s 586(3), she had a reasonable excuse for not complying with the request for documents at that time. The various aspects of the reasonable excuse, each of which was asserted to be sufficient in its own right, were the following matters:
1 Prior procedures which were said to be fundamentally flawed.
2 That the Notice requiring production of the documents had not been issued for a legitimate forensic purpose.
3 That s 422 of the Act, at par (f), which identifies a failure to comply with the requirements of a notice under the Act as conduct capable of constituting unsatisfactory professional conduct or professional misconduct, impliedly contemplates the situation where there may be a refusal to comply with a notice. This was said to include a '… non client complaint [as this one is] where client professional privilege has not been waived by the client and the privilege is not specifically abrogated by the relevant Act'. It is put that the Act does not abrogate privilege with respect to files, but only with respect to information, and reference is made to s 517 of the Act. The letter notes that the applicant's client claims privilege over the file.
4 The notice is said to be oppressive because it required the production of too wide a class of documents covering a period of three years, and many pages of documents in hard copy and electronic form.
5 The notice is a fishing expedition.
[21] The Board responded to this letter on 16 October 2017, noting that it did not propose to respond to most of the contents, observing that the applicant had indicated she would refuse to comply with the notice. The Board referred to the time limit for compliance contained in the notice, and records that Ms Warner had considered the reasons for refusal to comply, had consulted with the Board, and did not consider those matters, individually or collectively, constituted a reasonable excuse for non-compliance.
[22] Insofar as legal professional privilege was claimed, the Board's response maintained that s 516 of the Act abrogated any contractual duty of confidentiality that might otherwise be owed to one's client, and that s 517 abrogated legal professional privilege. The letter required of the applicant that she disclose all the information within the scope of the s 572 notice in respect of which a claim for privilege was made. This was required to be complied with by 5pm on Monday, 16 October 2017. The letter concluded by informing the applicant that if she did not comply with the notice, it would consider directing the Law Society to suspend the applicant's practising certificate until she complied, and apply to the Supreme Court for an order under s 645 of the Act requiring production of the documents. The applicant was invited to make any submissions she wanted to make by 5pm on 20 October 2017.
[23] On 18 October 2017, the applicant responded to the Board. That letter opens with the following:
'1I herewith make a complaint of professional misconduct and/or unsatisfactory professional conduct against Ms Emily Warner, the solicitor employed by the Board.'
There follows a submission in support of that complaint, and a reference to other complaints not relevant for the purposes of this decision.
[24] The documents required by the s 572 notice were not produced, and nor was the list of documents in respect of which privilege was claimed.
[25] On 30 October 2017 the Board wrote to the Law Society through its Executive Director, Mr Rheinberger, and directed the Society to immediately suspend the applicant's practising certificate issued by it to the applicant for so long as the failure to comply with the requirement under s 572 of the Act continued. In other respects the letter recited the history of the matter and the applicant's non-compliance with its notice. By letter of the same date the applicant was advised of the Board's direction to the Law Society. The Law Society acted upon the direction on 31 October 2017 suspending the applicant's practising certificate under s 573(7) of the Act."
The appellant's argument below on the stay application
The appellant challenged the Board's power under s 573(7)(b) of the Act to direct the prescribed authority to suspend the appellant's practising certificate, contending that s 446 of the Act was the operative provision in the case of an investigation and the only basis upon which the Board could give the relevant direction to the Law Society.
Section 446(1) provides:
"(1) During the investigation of a complaint about an Australian legal practitioner, the Board may order —
(a)the prescribed authority to suspend a practising certificate held by the Australian legal practitioner for a specified period; or
(b)the prescribed authority to not grant or renew a practising certificate to the Australian legal practitioner for a specified period."
Section 446(5), provides a right of appeal to the Supreme Court against an order made under s 446(1)(a) or (b).
The appellant contended that s 446 was a code setting out the only way in which the Board had lawful authority to act "during the investigation of a complaint". She argued that s 446(4) specified the matters about which the Board had to be satisfied before it could give a direction requiring suspension.
Section 446(4) provides as follows:
"(4) The Board must not make an order under subsection (1) or (2) unless it is satisfied —
(a) that the Australian legal practitioner is likely to be found guilty of professional misconduct; and
(b) that it is necessary in the public interest that the order be made."
The appellant also relied on the decision of Holden CJ at CL in Dennis v Council of the Law Society of New South Wales [2014] NSWSC 1487, apparently as supporting the proposition that the Act imposes a requirement that the Board should be satisfied that there is a risk to clients or to the public generally or to the administration of justice as a prerequisite to the making of a direction under s 573 of the Act.
The appellant then argued that if the learned primary judge did not accept her submissions as to that, then his Honour should stay the direction, relying on the Court's inherent jurisdiction with respect to the discipline of practitioners by virtue of s 510 of the Act. She relied for the availability of such a course on the authority of In Re a Solicitor [1978] Tas R 199 at 202 and A Solicitor v Law Society of New South Wales [2004] HCA 1, 216 CLR 253 at [2]-[3].
The appellant argued that the Board had available to it the option of bringing an application pursuant to s 645 of the Act for the production of the documents it sought and that there was no need to suspend her practising certificate before it did so. Counsel for the appellant, Mr Selby, made the submission that there was a dispute between the Board or some member or members of it, and a practitioner otherwise of good standing, as to whether documents should be handed over or not, and given that that practitioner had made lengthy written submissions to the Board as to why she had a reasonable excuse for not handing over the documents, there was no public interest in suspending her.
The decision below on the stay application
The learned primary judge dealt with the first limb of the appellant's argument at [35]-[39] of his reasons as follows:
"[35] In reply to that submission the Board submits that s 446 does not constitute a code. It argues that s 446 of the Act provides for a particular circumstance where suspension may be imposed. It points to other provisions under the Act which authorise a practitioner's certificate to be suspended, whether before an investigation is initiated, during such investigation, or after an investigation has been completed but before a hearing. Counsel for the Board submitted that s 446 of the Act was designed to address circumstances where there are apparent shortcomings in a practitioner's conduct 'that are alarming', and which require immediate intervention before the investigation process has been completed. The Board submits this is not such a case because no such circumstance exists in respect of the matters being investigated
[36] The Court rejects the submission that s 446 is the only section in the Act which empowers the Board during the investigation of a complaint to direct a suspension. It is plainly incorrect. It is but one means through which the suspension of a practising certificate may be imposed.
[37] It follows that the two elements appearing in s 446(4), are not required to be satisfied for the purposes of the exercise of the power contained in s 573(7) of the Act. The prerequisite for the valid exercise of such a power is a complaint (s 570(c)); the valid appointment of an investigator (s 442); commencement of an investigation into the complaint; the making of a requirement in the course of that investigation for production of specified documents (s 572(1)(a)); service of the notice upon the practitioner (s 572(1)), and non-compliance with that requirement (s 572(3)).
[38] Each of those elements is demonstrated on the evidence. That evidence is contained in the affidavit of Mr Ederle sworn on 7 November 2017. There is evidence before the Court in the form of the applicant's refusal to comply with the requirement, upon which the Board could lawfully direct the prescribed authority to suspend the practitioner. Nothing more is required to engage that power. The applicant's contentions with respect to the Board's motivation in pursuing the investigation against her have no bearing on the matter.
[39] Insofar as the applicant relies upon Dennis v Council of the Law Society of New South Wales [2014] NSWSC 1487, such reliance is misplaced. The power conferred upon the Board under s 573 of the Act is not predicated upon a preliminary determination that there is a risk to clients or the public generally, or of the administration of justice. As has been said, the suspension relates solely to, and is imposed in consequence of, the applicant's failure to comply with a notice. Compliance with a notice in the context of an investigation is fundamental to the investigative process. The Act does not impose a requirement that the Board be satisfied that there is a risk to clients or to the public generally, or to the administration of justice as a prerequisite to the making of a direction under s 573 of the Act. The power should not be diluted through the imposition of additional requirements not articulated within the provision conferring the power. It follows that the declaration sought in pars 1 and 3 of the amended application is refused."
His Honour then turned to the appellant's alternative submission invoking the Court's inherent jurisdiction, saying at [43]-[46]:
"[43] It was open to the Board to determine that suspension was the appropriate response to the practitioner's failure to comply with the notice. The Board's decision in that respect was within power. Its discretion to so proceed was engaged by the practitioner's failure to comply with the notice. Formal steps aside, no more was required to engage that power.
[44] Reasonable minds may differ as to whether the Board ought to have first exhausted its right to apply to the Court for an order under s 645 before moving to direct the suspension of the practitioner. The applicant is a sole practitioner and the result of the suspension is that all of her clients are disadvantaged, and she cannot earn an income from her practice. At the same time the duration of the suspension is entirely within the control of the practitioner. The Board is vested with significant powers to investigate complaints. Those powers are to be exercised judiciously, of course, but the Board's decision to direct the suspension of the practitioner was a matter for its own judgment. The course it took was no doubt influenced by its view that the reasons advanced by the applicant lacked merit, and that compliance with its requirements was a very important obligation, pivotal to it fulfilling its statutory role. No doubt it was expected that a suspension would be followed by speedy compliance. How to proceed in such a situation is a matter for the Board. Anything the Court says is merely commentary.
[45] The applicant submits that the direction to suspend appears punitive rather than protective in nature, was an abuse of power, and was uncalled for on the facts. The Court rejects the characterisation and the submission. As has been said there is no threshold requirement that there is a risk to the public, before suspension can be directed, and in this instance the elements necessary to engage the power were satisfied. As an aside, it might be expected that a practitioner who is suspended would initiate engagement with the Board with a view to exploring resolution of the matter. The engagement which occurred in this case was not conducive to resolution of the matter at all, but involved an escalation of matters culminating in a complaint against the Board's investigating officer, Ms Warner.
[46] In all the circumstances an order staying the operation of the direction (quite apart from the submission that it would not affect the suspension already imposed) cannot be entertained. The Court refuses the order sought at par 2 of the amended application."
The appellant's arguments below against production
The appellant argued in addition to her claim that there was no proper legal basis for the s 572 notice that "issues of client legal professional privilege in a non-client complaint" justified her refusal to produce the documents the subject of the notice. She relied for her refusal on that ground on the authority of Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49, 213 CLR 543 at [9].
The appellant also contended that the Board's powers of investigation must not be exercised oppressively, and that it had an obligation to undertake an exercise in the "distillation of the information" required so that the appellant could decide which claims of legal professional privilege were appropriate.
The appellant further submitted that the learned primary judge might have been expected to receive an affidavit from the investigator as to why she sought to issue the notice in the wide terms in which she did, covering the whole of the appellant's file.
The decision below on production
His Honour rejected the appellant's submissions as to her refusal to produce the required document at [50]-[61] of his reasons in the following terms:
"[50] The Board's claim to be entitled to resist the notice on the grounds of privilege remains an unconsummated claim because there is no reference made to any particular document said to attract such protection. But even if it was, s 648 operates as a complete answer to such claim. It has the effect of suspending the right to make such claim as a basis for refusing to comply with a requirement under s 573 of the Act: a valid requirement under that section cannot be avoided on the grounds of legal professional privilege or any other duty of confidence. Those words are wide enough to cover such claim including in circumstances of a non-client complaint. There is a very good reason for so holding.
[51] In Rogerson v The Law Society of the Northern Territory (1993) 88 NTR 1, the court said at [17]:
'A number of cases were cited to us to establish the historical foundations of the privilege and the importance of it. I am sure no-one on this court challenges the importance of and necessity for the rule as a general principle. But the point is that there are certain fundamental rules of public policy embodied in the Legal Practitioners Act which make it plain that this very important, indeed vital, privilege cannot be used to prevent those charged with ensuring that practitioners behave properly from carrying out investigations to that end for the protection both of the profession and the public. Otherwise the exercise of the privilege itself may bring into disrepute the very ends for which it was designed.'
[52] The Court was referred to the High Court decision in Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49, 213 CLR 543 at [9]. There the court said:
'… a rule of substantive law …which may be availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings …' and continuing at [11] '….it is now well settled that statutory provisions are not to be construed as abrogating important common law rights, privileges and immunities in the absence of clear words or a necessary implication to that effect'.
[53] Section 648 of the Act provides clear words displacing the right to make such claim. Considered alongside s 573(2) it is evident that parliament has created a regime which affords the Board very significant powers of investigation. The claim to privilege is irrelevant.
[54] The Board also asserts that the powers of investigation must be exercised by the Board 'such as not to oppress'. It was put that the wide powers conferred upon the Board do not obviate the need to establish what is actually required in a particular situation. The Board complains that the document which particularises Mr Greer's complaint, makes no reference to which of the Australian rules of professional conduct are supposed to have been breached, and there is nothing to de-limit the investigation. It was submitted that the Board has an obligation to require of its staff, and in particular its investigator, the requirement to undertake an exercise in 'distillation of the information'. It is submitted this would have enabled the Board to reply to the requirement, and indeed to give particularity to claims of privilege where appropriate. I reject this submission. The Board has enough information to understand the nature of the complaint and the matters it puts in issue. The plea which is made is designed to obfuscate.
[55] Further, it is submitted that the Court might have expected to receive an affidavit from the investigator as to why she sought to issue the notice in the wide terms in which she did. It was put that the Board was and is 'happy to co-operate with any investigation by the Board' and to deal with allegations that are particularised. It was noted that the applicant's file goes back to May 2014 and that in all the circumstances the Board had an obligation on this application to demonstrate that the breadth of the notice was appropriate having regard to the complaint which had been made by Mr Greer. It was put by the Board that s 572 is relatively narrow in its terms, referring to a requirement to produce 'any specified document'.
[56] A file can constitute a 'specified document'. So long as the file is identified by reference to the matters the subject of the complaint for example, it can be picked out and produced. In this case the complaint relates to the inquest into the death of the complainant's mother, and in respect of which the Board acted for Pauline Greer. A notice requiring production of the file relating to the Board's conduct of the inquest into the death of Rita Greer on behalf of Pauline Greer, is a specified document for the purposes of s 572(1) of the Act.
[57] As to the breadth of the requirement, the question is whether that which is required relates to the subject matter of the investigation. The Board says that it is appropriate to call for the whole of the file in the context of the complaint before the Board. The Board says the request is too general, and 'fishing'.
[58] It might be observed that in the context of an investigation a request is likely to be broader than the class of documents which might be relied upon for the prosecution of a complaint after an investigation has been completed. Investigations are necessarily broader and, in the event that the matter proceeds, not necessarily all of the documents required to be produced at this early stage, will be relevant at a hearing. That was the situation in Legal Services Commissioner v Shulsinger (Legal Practice) [2010] VCAT 965. As was submitted by the Board, 'given the content of the degree of complaint, this is precisely the type of case where it is appropriate to call 'for' the entire file'. The Board referred to the decision of the South Australian Supreme Court in Finlayson v Legal Practitioners' Conduct Board [2012] SASC 77. At [25], White J said:
'When the Board receives a complaint, it is the content of the complaint which, in the first instance, identifies the conduct the Board is to investigate in order to assess whether the practitioner has engaged in any unprofessional or unsatisfactory conduct, and in turn, the scope of the investigation which s 76 authorises. That scope may also include conduct reasonably incidental to, or associated with, the conduct about which the complaint is made, even if the complaint does not make express reference to it. The scope may also be enlarged or confined by the response, explanation or justifications which practitioners give to the Board when the complaint is published to them.'
[59] Thus, it is put to the Court that when investigating issues pertaining to self-interest and motive, the whole of the file will be relevant because it may expose matters reasonably incidental to or associated with the conduct of the inquest, and this constitutes a further justification for a broadly expressed requirement in the notice under s 573.
[60] The Board also submits that the Board's submissions ignore the fact the matter is at an investigative stage and not at the point where anyone is making an evaluation about the complaint. The Board's submission was described as 'too simplistic' because the question of whether the requirement contained in the notice is too oppressive, would only be informed by considering the subject matter of the complaint.
[61] The Court accepts the Board's submissions in this respect. It is clear that at this early investigative stage, the Board has an obligation to undertake an investigation which affords it the ability to make a judgment about the complaint which has been made by Mr Greer. The complaint traverses a number of issues and includes an allegation of conduct undertaken in self-interest and for an improper motive. The Court is satisfied that the individual actions of the Board in the matter are best understood in context. Whilst it is not possible to make a statement of general principle about the appropriate scope of a request under s 572 of the Act, having regard to the nature and extent of the complaint made by Mr Greer, in the context of the coroner's published decision, the Court is satisfied that the notice was appropriately framed, and that an order which is in the terms sought under par 1 of the application is appropriate [production within seven days]."
The notice of appeal
The appellant's notice of appeal sets out the following ten grounds:
"1His Honour made a mixed error of law and fact when he found 'The applicant's contentions with respect to the Board's motivation in pursuing the investigation have no bearing on the matter' at [38] when the purposes of the Legal Profession Act 2007 ('the Act') as set forth in sections 3 and 417 (especially s417(b)) AND the application of the rules of procedural fairness per s460 necessarily require that the acts of the Board and its employees must be for legitimate purposes, properly proportionate to the bounds and exigencies of the particular investigation and any 'risk to the public', and eschew any appearance of a lack of transparency and accountability,
2His Honour erred in law in finding that the requirements of s446 of the Act were not binding upon the Board before issuing an Order/direction to the Prescribed Authority to suspend the appellant's Practising Certificate.
3His Honour erred in law in finding that s573(7)(b) of the Act gave the Board an unfettered power to direct the suspension of the appellant's Practising Certificate, being a power that was not fettered by any of: s446(4); requirements to give reasons to either/both the appellant or the Prescribed Authority; or by way of evidence to the Court justifying the exercise of the power.
4His Honour erred in law in finding the ambit of the demands (being for delivery up of the file) made pursuant to a Notice issued to the appellant under s572 of the Act to be much broader than the express words of that section permit.
5His Honour erred in law in not finding that the appellant had established a 'reasonable excuse' pursuant to s586 of the Act to not comply with the s572 notice as issued.
6His Honour's finding that the Order or Direction to suspend the appellant's Practising Certificate was valid was contrary to the evidence and the weight of the evidence as set forth in the attachments to the affidavit of the appellant reflecting the correspondence between the appellant and the Board.
7His Honour's finding that the s572 notice was valid was contrary to the evidence and the weight of the evidence as set forth in the attachments to the affidavit of the appellant reflecting the correspondence between the appellant and the Board Board.
8His Honour made an error of law in not requiring that the Board place evidence before the court that would justify a suspension of the appellant's Practising Certificate.
9His Honour made an error of law in not requiring the Board to place evidence before the court establishing the factual prerequisites for the use of a compulsory production notice under s572 in the wide terms as drafted or at all.
10His Honour made a mixed error of law and fact in failing to draw adverse inferences as to the Board's conduct arising from the Board's failure to adduce any evidence from the Board (given the failure by the Board to give reasons for its determinations) or from its Investigating Officer who caused the Notice under s 572 to issue."
The appellant's written submissions
Mr Selby was again the appellant's counsel before this Court. In his written submissions he contends as appears in the passages that appear below. I have set the submissions out in full for ease of convenience because they are unduly long and discursive and, as such, they are not readily susceptible to adumbration. Moreover, as they do not comply with the requirements of Practice Direction 3/2017 – Written Submissions to the Full Court and Court of Criminal Appeal, they are not reasonably amenable to distillation referrable to the grounds of appeal:
"Introduction
1The two matters before the Full Court arise from the Legal Profession Board's [the Board] response to complaints made by Mr Robert Greer against Ms Etter [the Appellant] in early March 2017.
2The Board investigates complaints pursuant to the statutory scheme laid out in the Legal Profession Act 2007 [the Act] and the Rules of Practice 1994. Tasmania has not adopted/implemented the Australian Solicitors' Conduct Rules.
3The purposes of the Act, per s 3(a) are:
'to provide for the regulation of legal practice in this jurisdiction in the interests of the administration of justice and for the protection of consumers of the services of the legal profession and the public generally'.
4The purposes of Chapter 4 of the Act, 'Complaints and Discipline', per s 417(b), are to promote and enforce the professional standards, competence and honesty of the legal profession.
5Mr Greer's complaints arose from a re-opened inquest at which the Appellant acted for his sister Ms Pauline Greer. The siblings disagreed as to the adequacy of care of their late mother Rita Sally Greer. Mr Greer had legal representation at the inquest.[1]
[1] The reasons for reopening the Inquest were stated by the Coroner as set out at page 4 of Item 3 at Annexure BE3 to the Appellant's affidavit dated 6 November 2017 (in matter No. 3169 of 2017 – 14 March 2017 rebuttal of Coroner allegations) (See Appeal Book (AB) Vol1 Tab 3 p57)
6During its investigation of these complaints, the Board or its representative, in asserted reliance upon s 572, required the Appellant to deliver up to the Board her entire client file and every electronic record (including emails and all draft documents) since her engagement/retainer in May 2014 (sic).
7The Appellant declined to do so, putting before the Board 'reasonable excuses', that being a procedure permitted under s 586. (As Geason J stated at the hearing of the matter on 22 November 2017, this was not an outright refusal, rather a 'qualified' one (T27, 32, 34 & 38)). The Board's Investigating Officer recognised the applicability of s 586 as she stated in her letter of 29 September 2017 to the Appellant (AB Vol 1 Tab 3 p167).
8The Board's response to the Appellant's action was twofold. First, they ordered the Prescribed Authority (that being the Law Society of Tasmania) to suspend the Appellant's Practising Certificate. The Board's claimed head of power was s 573(7). Second, they sought an order from the Supreme Court that the Appellant deliver up the client file as per the s 572 notice. The use by the Board of these two actions, rather than the use of one of them, is addressed in the final part of these submissions.
9The lawfulness of the suspension is dependent upon the lawfulness of its purported justification. If the s 572 notice was defective or there was a failure by the Board to act 'according to law' before issuing the order to suspend, then that order to suspend was unlawful.
10Likewise if the s 572 notice was defective or the Board's response to the s 586 reasonable excuse was deficient then the s 572 notice is of no effect and the Board is not entitled to a Court order requiring compliance.
11The Appellant submits that she must succeed in these appeals for the following reasons:
As to the Order to deliver up the file –
• The Notice to deliver up the client file (issued by the Investigating Officer) was beyond the scope permitted by s 572;
• Whether or not the Notice was valid, there was then a duty upon the Board to consider the Appellant's 'reasonable excuse' and it failed to fulfil that duty;
• If, contrary to the Appellant's submission (see below) that s 593 obliged the Board – not the Board's CEO - to assess the 'reasonable excuse', then the actions of the CEO in rejecting that reasonable excuse without giving reasons do not constitute a determination upon which the Board can rely to assert a right either to seek an order compelling the Appellant to deliver up the file or to order the Prescribed Authority to suspend the Appellant's Practising Certificate; and,
• It follows that there is no basis upon which the Court's order at first instance to deliver up the file can stand.
As to the suspension there are alternative legal bases to set it aside as follows:
A Per the Board's argument that s 573(7) gives it the power to order suspension:
• The Notice to deliver up the client file (issued by the Investigating Officer) was beyond the scope permitted by s 572;
• Whether or not the Notice was valid there was then a duty upon the Board to consider the Appellant's 'reasonable excuse' and it failed to fulfil that duty (be that by its own consideration or that of its CEO);
• If there is a power to suspend under s 573(7) then it is necessarily (and rationally) constrained by the immediately preceding s 573(6), namely that the Appellant's failure to comply is capable of constituting unsatisfactory professional conduct or professional misconduct;
• On the bases of any or all of the Notice being too broad, not for a legitimate forensic purpose, or the Board's failure to consider the 'reasonable excuse', or the lack of any consideration by the Board as to misconduct by the Appellant there was, and is, no lawful basis for the Board to order that the Practising Certificate be suspended.
B Per the Appellant's argument that s 446 governs the field with respect to the Board's power to order suspension:
• The Notice to deliver up the client file (issued by the Investigating Officer) was beyond the scope permitted by s 572;
• Whether or not the Notice was valid there was then a duty upon the Board to consider the Appellant's 'reasonable excuse' and it failed to fulfil that duty (be that by its own consideration or that of its CEO);
• Whether or not the Notice was valid AND whether or not the Board did or did not consider the Appellant's 'reasonable excuse' it was incumbent on the Board to consider whether the 'precedent tests' in s 446 for ordering a suspension were made out. It failed to do so;
• (Justice Geason commented at the hearing that, 'on any view of it' the matter being investigated was not serious in the range of matters that would come before the Board (T32). His Honour also acknowledged that suspension was a 'very serious sanction' (T34). No public interest in the suspension was identified.);
• It follows that there was, and is, no lawful basis to order the suspension of the Appellant's Practising Certificate.
12It is respectfully submitted that in order to appreciate the context in which the legal issues in these two appeals arise it is first necessary to be familiar with the chronology and the content of the correspondence that passed between the Appellant and the Board's representatives. [Those materials are annexures to the Appellant's affidavit dated 6 November 2017 at BE3 and can be found at AB Vol 1 Tab 3 pp8-246.]
13From such familiarity it will be clear – see following two paragraphs - that the Board's representatives were, from the outset, uninterested and/or dismissive of any and all material put before them by the Appellant.
14A reading of the correspondence between the Appellant and the Board's representatives concerning the Greer matter (as and from the publishing of the Coroner's findings in February 2017) highlights the following:
• No reasons (beyond an assertion of power) or any evidence- based justification were provided by the Board for its actions/demands;
• There is no evidence that the Board or its representatives ever made use of the Appellant's detailed rebuttal of the Coroner's allegations dated 14 March 2017 in delimiting the proper scope of any inquiry into the Robert Greer allegations;[2]
[2] See correspondence of CEO dated 16 May 2017 (AB Vol1 Tab 3 pp95-97) where he states that he understood that the Appellant was relying on her previous submissions to the Board as her submissions in response to Mr Greer and indicated that she was entitled to do so.
• There is no evidence that the Board or its representatives ever made use of the Appellant's detailed rebuttal of the Greer allegations outlined in her letter of 12 September 2017 (Item 12 of Annexure BE3 to the Appellant's affidavit; AB Vol 1 Tab 3 pp 108-127) or considered the issues raised by her in her letter of 20 September 2017 (Item 17 of Annexure BE3 to the same affidavit; AB Vol 1 Tab 3 pp 143-145);
• There is no evidence that the Board or its representatives ever considered the issues raised by the Appellant concerning the Particulars (drafted for the Board by external counsel) in her letter dated 25 September 2017 (Item 20 of Annexure BE3 to the Appellant's affidavit; AB Vol 1 Tab 3 pp 152-155) prior to the issuing of the coercive notice on 29 September 2017;
• No one from the Board or its representatives contacted David Killick, the author of The Mercury newspaper article dated 1 July 2016 mentioned in Robert Greer's complaint, to ascertain from him that there was or was not contact with the Appellant, particularly after the Appellant's denial of this allegation in her letter of 12 September 2017 (Item 12 of Annexure BE3; AB Vol 1 pp 108-127);
• There is no evidence that there was, or could be, any legitimate purpose to a call for the Appellant's client file, as distinct from applying the clear words of s 572 and requesting specified documents and/or information that had to do with a particular factual issue or issues warranting further inquiry (see comments of Geason J at T70-73); and,
• There is no evidence that the Board or its Investigating Officer properly turned their minds to how a demand for a file – or any of its contents - should be made when it was clear that the file was a non-complainant's file. (The letter from the Investigating Officer, Ms Warner, to the Appellant dated 24 August 2017 (AB Vol 1 Tab 3 pp 106-107) requesting the file did, however, state, 'I note that the complainant was not your client and therefore issues of client privilege may be relevant to your consideration of this request. I refer you to sections 516 and 517 of the Legal Profession Act 2007 in this regard'. It should also be noted that s 648 was never raised in any correspondence with the Appellant).
The absence of this evidence entails that the Board has failed to establish any factual grounds upon which it can justify either or both the issue of any coercive notice to deliver up a file and the subsequent directed suspension of the Appellant.
15From the chronology and the correspondence (both of which are laid out in annexures to the Appellant's affidavit – AB Vol 1 Tab 3 pp 8-246), together with the conduct of the Board's case at first instance, certain inferences – these being contrary both to the overarching purpose of the 'administration of justice' and to the purposive criteria in s 417(b) – are reasonably open as follows:
• Correspondence sent by the Appellant to the Board was never considered by Board members (eg lack of Board meeting at a relevant period (eg between Friday 13 and Monday 16 October 2017), CEO's admitted censoring of correspondence (letter dated 18 September at AB Vol 1 Tab 3 pp 130-132), and mail to Board members returned unopened). This is a breach of s 431;
• The decision/s to refuse or fail to provide reasons were deliberate. This is a breach of the usual expectations with respect to fairness (s 460). Moreover, it avoids transparency and thwarts accountability – an approach which is at odds with the Board's role to ensure public confidence in the legal profession;
• The omission from the Board CEO's affidavit (filed in No 3208 of 2017) of the Appellant's correspondence in the week prior to the 30 October 2017 Board meeting (AB Vol 2 pp 254-429), and her attendance at (and then exclusion from) that Board meeting, which was open to the public, was not simple inadvertence;
• The failure by the Board to put on affidavits from the Investigating Officer and/or any members of the Board was because such affidavits would not have helped the Board's case. The Jones v Dunkel inference should be drawn [Ground 10] (See Jones v Dunkel (1959) 101 CLR 298; 1959 HCA 8 per Kitto J at p 308 and Windeyer J at pp 320-322). Counsel for the Appellant argued this at T65. In particular, only an affidavit from the Investigating Officer could provide evidence to support a possible justification for the breadth of the s 572 Notice to produce the file. Likewise only an affidavit from one or more Board members could sustain the implied claim that the Board membership had ever seen, read, or discussed, any of the correspondence in the annexures to the Appellant's affidavit, and thereafter passed informed resolutions about the conduct of the investigation into Robert Greer's complaints. In relation to the failure to provide an affidavit from the Investigating Officer, Ms Warner, Basten JA in A v Independent Commission Against Corruption [2014] NSWCA 414 at [36], observed that:
'There is no doubt that a notice must not be issued for an improper purpose; further, the person responsible for issuing the notice must believe in good faith that it complies with the relevant limitations on the statutory power'.
• The action to direct the Prescribed Authority to suspend the Appellant's Practising Certificate was not guided by the purposes of the Act, the public interest or the proper conduct of an investigation of a complaint; and,
• The issue of the s 572 Notice in its wide terms was not undertaken for the proper investigation of Mr Robert Greer's allegations.
16The Board has chosen to delegate to the CEO wide powers and responsibilities. See Item 27 of Annexure BE3 to the Appellant's affidavit (AB Vol 1 Tab 3 pp 174-175). However, such delegations are constrained by s 593 which does not permit a delegation of determinations under Chapter 4 of the Act. It will be seen in the later discussion of the purported rejection of the Appellant's 'reasonable excuse' (per s 586) that the CEO purported to make just such a Chapter 4 determination. If the Full Court accepts this argument and finds that the CEO's purported exercise of power was invalid then there has been no consideration of any kind by the Board of the 'reasonable excuse' put forward by the Appellant. It would follow that, of itself, this is sufficient reason to uphold the appeal against the first instance order to deliver up the file. It further follows that there was and is no basis whatsoever for the suspension of the Appellant.
17Given the schedule of Board Meetings during 2017 it is clear that some CEO correspondence which claimed 'Board consideration' of correspondence from the Appellant was inaccurate as follows:
• The letter of Friday 13 October 2017 which outlined the Appellant's reasons for not complying with the s572 notice (the 'reasonable excuses') which was acted upon by letter from the CEO emailed at 10 am on Monday 16 October 2017 (AB Vol 1 Tab 3 pp 182-188 & 189-191);
• The letter of 16 May 2017 (AB Vol 1 Tab 3 pp 95-97) in response to the Appellant's email correspondence of 4 May 2017 (AB Vol 1 Tab 3 p 94) where the CEO states that 'the Board does not agree with your comments …' where it was indicated that the next Board meeting was 22 May 2017; and
• The letter of 21 September 2017 (AB Vol 1 Tab 3 pp 146-150) in response to the Appellant's letter of 12 September 2017 (AB Vol 1 Tab 3 pp 108-127) where the CEO states at p 2 'I do not share your point of view, nor does the Board'.
18Rather than engage with the material placed before it by the Appellant, or call upon her when she attended their 30 October 2017 Board meeting, the Board apparently approved the prior issue of the s 572 Notice to produce 'the file', directed the Law Society to suspend her Practising Certificate on 30 October 2017 and finally sought an order from this Court that she deliver up the file (Matter No 3208 of 2017). It is the Appellant's submission that upon the whole of the evidence it is clear that the Board and/or its representatives at all material times conducted its 'investigation' of the Robert Greer complaint with such a willful disregard for the fundamentals of due process as to constitute a deliberate, systematic abuse of process.
Relevant Provisions in the Act
19The relevant Parts and sections of the Act are to be found in Chapter 1 s 3 purposes; Chapter 4 – Complaint and Discipline - at Parts 1 (s 417 (b) purposes, ss 420-422 on grades of misconduct), Parts 2, 4, 6 and 12; Chapter 6, Part 2; Chapter 7, Part 1; and, Chapter 8, Part 2. To follow the arguments made by both parties and in the first instance decision the focus of some provisions are now briefly set out.
20In Part 4.2, s 431 requires the Board to consider submissions from the Appellant before deciding what action to take. Section 432A gives the Board power to require the lawyer under inquiry to deliver up documents (sic, plural used here, no reference to 'file' or 'files').
21In Part 4.4, s 443 states that the Chapter 6 investigatory powers apply (see below); s 446 delimits the suspension powers during an investigation by reference to specific tests. Section 446 also sets out appeal rights.
22In Part 4.6, s 460 clarifies the application of the rules of procedural fairness.
23In part 4.12, s 510 maintains the inherent jurisdiction and power of the court. Sections 517 and 518 (complaining client's waver of client legal privilege) deal with claims of privilege but do so with respect to 'information'; see also ss 572 (which distinguishes between documents and information), 573, 586 and 648.
24 Chapter 6, Part 2 is concerned with investigations; ie there is nothing 'preliminary'. Section 568(c) reinforces/reiterates the effect of s 443. Section 572 refers to 'any specified document' [singular, cf 432A above]. Section 572 refers separately to a request for information. Section 573 applies to s 572; however, the content of s 573 focusses upon liens and self-incrimination. It makes NO reference to either the 'reasonable excuse' provision in s 586, or to claims of privilege. Section 573(6) refers to misconduct arising from non-compliance. Section 573(7) deals with what the Prescribed Authority (sic) must do IF directed by the Board. Necessarily a direction/order to suspend must follow evidence of actual misconduct in the non-compliance. That may be an available inference where a practitioner ignores the Notice and does not engage with the Board. It is not an available inference where the practitioner, as the Appellant here, has put detailed 'reasonable excuses' to the Board and even attended the critical Board meeting in order to engage with the Board and explain her actions. There is nothing in s 573 that provides a 'head of power' to cause a suspension that is independent of the content of s 446 (to wit that the public interest AND the conduct of the practitioner must be considered).
25Chapter 6, Part 5, s 586, provides for 'reasonable excuse' for failing to comply with a s 572 notice. There is a detailed setting out of such 'reasonable excuses' in the Appellant's letters to the Board. These are discussed later in these submissions.
26Chapter 7, Part 1, s 593 sets out the broad delegations that the Board may make. Notably such delegations to the CEO do not include a Chapter 4 determination, a matter upon which there is later discussion.
27Chapter 8, Part 2, s 648 – a 573 requirement (ie to obey a s 572 notice with respect to documents and/or information) is not excused on the ground of client legal privilege.
28For the purposes of this litigation it is not necessary for the Court to decide the question of how the Board should 'treat' access to a file by its representatives where the complainant is not the lawyer's client. It is sufficient to note that the Appellant's 'reasonable excuse' pointed out, as one of the factors making up 'reasonable excuse', that the file was not the complainant's. Given s 648, which was not raised with the Appellant by the Board at any time, it is conceded that a mere claim of client legal privilege without more does not constitute 'reasonable excuse' to refuse to deliver up a file. However, such a claim may well entail exchanges between a practitioner and an Investigating Officer as to the manner of production when a proper Notice has been issued for access to a non-client file.
Relevant Provisions in the NSW Legal Profession Act 2004
29Chapter 4 of the NSW Act contains provisions which are germane to the Board Board's arguments that s 573(7) of the Tasmanian Act constitutes a separate head of power, distinct from and unfettered by s 446 (see below).
30In Chapter 6 of the NSW Act, s 672(5) is the suspension equivalent to Tasmania's s 573(7). A suspension may be ordered, 'while a failure by the practitioner to comply with the requirement [eg to produce a specified document] continues'.
31Section 660 covers the notice to produce a 'specified' document' (or a copy of the document).
32Sections 548 (Immediate suspension of practicing certificate with a public interest and seriousness of conduct criteria) and 549 (Appeal) do the work of Tasmania's s 446.
33Section 550, which is not replicated either expressly or by implication in the Tasmanian Act, states, 'Nothing in this Part (that is Part 4.7) affects any other power under this Act to suspend a local practising certificate, and any such power may be exercised despite the existence of a power to suspend the certificate under this Part'. The lack of such a provision in the Tasmanian Act constrains the order to suspend to the criteria set out in s 446 – such criteria being self-evidently appropriate and reasonable.
34The NSW Act was repealed with effect from 1 July 2015. The decision of Dennis v Council of the Law Society of NSW [2014] NSWSC 1487 (Hoeben CJ at CL) was decided during its operation. This case is discussed further below in the section concerning the suspension. The NSW Law Society acted under s 548 (see para 20). We have not found any reported cases in which s 672(5) was used in the manner asserted as permitted by the Board Board in this case. And this is so notwithstanding the scope expressly allowed under s 550.
The Complaint
35Mr Robert Greer's complaint arose out of an inquest before Coroner McTaggart that was heard in November and December 2016, after the Appellant successfully made submissions to the Coroner under s58 of the Coroners Act 1995 to have the matter reopened. The decision of Coroner McTaggart was handed down on 23 February 2017. See Annexure BE3 Item 1 of the Appellant's affidavit in these proceedings (AB Vol 1 Tab 3 pp 34-51).
36Mr Robert Greer's complaint was not the first time that the Board had acted in response to allegations arising from the Greer Inquest. In February 2017 the Coroner had published her findings (without first giving the Appellant advance notice of the proposed criticisms, or a chance to respond to that proposed adverse comment) in which she made a number of critical remarks about the Appellant. The fact of that criticism was reported in The Mercury on 23 and 24 February 2017, along with a statement that the Board would make inquiries.
37The 24 February 2017 online article in The Mercury by Mr Patrick Billings was headed 'The Legal Profession Board of Tasmania is examining coronial criticism of lawyer Barbara Etter' (AB Vol Tab 3 p 91 – hard copy version dated 25 February 2017). The article quoted the Board CEO, Mr Ederle [CEO], as stating that the Board was reviewing the decision and would decide what action to take, if any, when the Board met.
38Such inquiries were duly made of the Appellant by a letter dated 1 March 2017 (Annexure BE3 item 2 in the Appellant's affidavit: AB Vol 1 Tab 3 pp 52-53). The Appellant rebutted the allegations in a lengthy explanation to the Board (dated 14 March 2017 and found in Annexure BE3 as item 3; AB Vol 1 Tab 3 pp 54-74). The fact of this rebuttal and the failure of the Board or its representatives to thereafter make any use of it in relation to the Robert Greer complaint – a breach of s 431 – are key factors evidencing the flawed Particulars[3], the subsequent wrongfulness of the Board's approval of the issue of the s 572 Notice and its order to the Prescribed Authority to suspend her Practising Certificate.
[3] The CEO in his letter to the Appellant dated 16 May 2017 had stated that the complaint had been properly particularised (AB Vol1 Tab 3 p97)
39While the Appellant was writing that response, the Board received Robert Greer's complaint (Annexure BE3 item 4; AB Vol 1 Tab 3 pp 73-93). The Board did not tell the Appellant of that complaint until a letter dated 2 May 2017, that is some 8 weeks from the receipt of the complaint or 7 weeks after she had lodged her response to the Coroner McTaggart allegations.
40That seven weeks was ample time for the Investigating Officer to examine Mr Greer's allegations against the Appellant's rebuttal of the Coroner's allegations and determine with precision what, if any, outstanding matters warranted any further inquiry to the Appellant. Geason J at first instance referred to the possible motive of the complainant Mr Greer and observed some of the 'intemperate' language of the complainant in the context of investigators using judgment (T53).
41Furthermore an evaluation by the Investigating Officer would then be reflected in the drafting of any proper s 572 Notice (supposing that any such coercive notice was required) and in written advice put before the Board before it moved to do either or both of direct the suspension of the Appellant or initiate proceedings in the Supreme Court to compel the Appellant's compliance with the s 572 Notice.
42The Board has not put on any evidence to suggest that any such steps were taken by the Investigating Officer. The proper inference is that no such steps were taken.
43A chronology of the Greer complaint and its investigation can be found at Annexure BE1 of the Appellant's affidavit and a broader schedule of correspondence and relevant events can be found at Annexure BE2 (AB Vol 1 pp 13-22 and pp 24-28).
44The Appellant does not know why the Board failed to advise her earlier of Mr Robert Greer's allegations. They should have done so. Had they advised her upon receipt of his complaint then it would have been prudent and pragmatic to have told her to delay submitting her response to the McTaggart allegations so that she, and the Board, could deal with all the allegations at the same time.
45That there is an overlap between the McTaggart allegations and the Robert Greer allegations is made clear in the Appellant's letter to the Board dated 12 September 2017 (Annexure BE3 item 12; AB Vol 1 Tab 3 pp 108-127) where she rebuts the 7 allegations in the Robert Greer complaint by reference to her 14 March 2017 rebuttal of the McTaggart allegations and reference to the Inquest transcript and associated documents. See also comments of Geason J at the November hearing at T17, 32 & 34. Apart from the fact that the Appellant took this action, it is submitted that in the circumstances wilfully created by the Board it was their obligation, not hers, to undertake this task.
A Fundamentally Flawed Approach to an Investigation [Grounds 1, 4, 7 and 9]
Ground 1: His Honour made a mixed error of law and fact when he found 'The applicant's contentions with respect to the Board's motivation in pursuing the investigation have no bearing on the matter' at [38] when the purposes of the Legal Profession Act 2007 ('the Act') as set forth in sections 3 and 417 (especially s417(b)) AND the application of the rules of procedural fairness per s 460 necessarily require that the acts of the Board and its employees must be for legitimate purposes, properly proportionate to the bounds and exigencies of the particular investigation and any 'risk to the public', and eschew any appearance of a lack of transparency and accountability.
Ground 4: His Honour erred in law in finding the ambit of the demands (being for delivery up of the file) made pursuant to a Notice issued to the appellant under s572 of the Act to be much broader than the express words of that section permit.
Ground 7: His Honour's finding that the s572 notice was valid was contrary to the evidence and the weight of the evidence as set forth in the attachments to the affidavit of the appellant reflecting the correspondence between the appellant and the Board Board.
Ground 9' His Honour made an error of law in not requiring the Board to place evidence before the court establishing the factual prerequisites for the use of a compulsory production notice under s572 in the wide terms as drafted or at all.
46Despite the Appellant's rebuttal of the McTaggart allegations and the Board's determination to take no further action on those allegations by way of an own motion investigation, the Board advised the Appellant by letter of 2 August 2017 that there would be a full investigation of the Greer allegations (Annexure BE3 item 9; AB Vol 1 Tab 3 p 102). It is noteworthy that nothing in this letter of 2 August evidences any attempt to evaluate or delimit the Robert Greer allegations by reference to the materials already provided by the Appellant to the Board. This is a breach of s 431(3).
47Nothing in the correspondence of the Board then or since has evidenced any meaningful engagement by members of the Board or the CEO or other Board representatives with the materials supplied by the Appellant to the Board, particularly her letter of 12 September 2017 rebutting the Robert Greer allegations, her letters of 20 and 25 September 2017 and her detailed response of 13 October 2017 which outlined the 'reasonable excuses' for not delivering up the Greer file following the s 572 notice issued by the Board (Annexure BE3 item 30; AB Vol 1 Tab 3 pp 182-188).
48Arising from both the Board's deliberate disregard of the Appellant's material and their arguments advanced at first instance it seems to be the opinion of the Board (we say 'seems' because as they refuse to provide reasons for their actions we must fall back on reasonable inferences) that allegations are treated as prima facie true, that the Board has a mandate to act on that supposition, that the Board is unfettered in its investigative activities of the lawyer complained about, that such 'breadth of inquiry' overrides any other notions of 'fairness', that – at least in so far as the Tasmanian Legal Profession Board is concerned – any notions of obligations to check the credibility of allegations, to align alleged practitioner wrongdoing with Rules of Professional Practice, to apply material before it to the allegations so as to properly limit the breadth of any investigation, to avoid pre-judgment, to eschew anything akin to 'fishing', to exercise 'coercive' powers on a principled basis such as to use the minimum that is objectively necessary, are all irrelevant. Indeed the Appellant submits that the Board's conduct throughout the so called 'investigation' of the Robert Greer complaint evidences a body that thinks it can behave, and does behave, in a manner that pays scant regard to its statutory obligations.
49The Board failed to place evidence before the court at first instance establishing the factual prerequisites for the use of a s 572 notice in the wide terms as drafted, or at all (Ground 9).
The Failure by the Board to consider the 'Reasonable Excuses to not comply with the s 572 Notice' [Grounds 5, 7 and 10]
Ground 5: His Honour erred in law in not finding that the appellant had established a 'reasonable excuse' pursuant to s586 of the Act to not comply with the s572 notice as issued.
Ground 7: His Honour's finding that the s572 notice was valid was contrary to the evidence and the weight of the evidence as set forth in the attachments to the affidavit of the appellant reflecting the correspondence between the appellant and the Board Board.
Ground 10: His Honour made a mixed error of law and fact in failing to draw adverse inferences as to the Board's conduct arising from the Board's failure to adduce any evidence from the Board (given the failure by the Board to give reasons for its determinations) or from its Investigating Officer who caused the Notice under s 572 to issue.
50Section 586(3) states that a lawyer who is subject to a requirement under s 572 must not 'without reasonable excuse' fail to comply with such requirement. Such 'reasonable excuse', it is submitted, was provided to the Board in a timely manner. The CEO makes no mention of the Board's consideration of the 'reasonable excuse' in his affidavits filed with the Application in Matter No 3208 of 2017. The available inference, given the lack of any other evidence, is that the Board never considered that material. Counsel for the Board contended at the 22 November 2017 hearing that there was 'the lack of any merit in the reasons advanced for refusing to comply' (T30) or 'no merit' (T31). Counsel for the Board also wrongly summarised the Appellant's proffered reasonable excuses in an incomplete manner as claiming merely 'fishing' and 'that there was some vendetta' (T50 and see also T59).
51The reasons for not providing the file and every electronic record, as outlined in the letter to the Board dated 13 October 2017 (and reworked here for greater clarity), were and are as follows:
o Prior procedures were fundamentally flawed (particularly in regard to the Particulars).
o The s 572 Notice had not been issued for a legitimate forensic purpose
The Act appears to have been drafted in recognition of the fact that there may be occasions where a legal practitioner can, with reasonable excuse, refuse to release certain documents, such as in a non-client complaint (as this one is) where client professional privilege has not been waived by the client and the privilege is not specifically abrogated by the Act. In two respects it can be seen that the Act does not abrogate the privilege in non-client complaints. First, s 518 specifically waives client legal privilege only in relation to client complaints .The Appellant's client has claimed privilege over the file – not surprising as the complainant was her estranged brother. Secondly, s 517 refers to an overriding of privilege but only with respect to information. 'Information' is not defined in s 4 and so carries its usual meaning. A file is not information. If the Board desires information then it must ask relevant, clear, precise questions.
The High Court in Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543 points out [11] '… statutory provisions are not to be construed as abrogating important common law rights, privileges and immunities in the absence of clear words or a necessary implication to that effect'.
o The Notice was oppressive because it required the production of too wide a class of documents. The request covered a period of three years and many pages/documents, both hard copy and electronic.
o The Notice was a fishing expedition. It conflated ''specified document' with file. In R v Turner & Ors (No 5) [2001] TASSC 60 (30 May 2001) in relation to 'fishing'', Blow J (as he then was) stated [5]:
There needs to be 'something beyond speculation, some concrete ground for belief [that the documents will provide support for the case of the party issuing the subpoena] which takes the case beyond a mere fishing expedition'. (citations given, emphasis added)
In the subject investigation, there was no 'concrete ground for belief', as evidenced by the seriously flawed Particulars.
52The deficiencies in the Particulars were outlined in the Appellant's responses to the Board of 12 and 20 September 2017 (items 12 and 17 of Annexure BE3; AB Vol 1 Tab 3 pp 108-127 & 143-145) and the complaint against the practitioner who was said by the Board's CEO to have properly particularised the complaint (Item 20 of Annexure BE3; AB Vol 1 Tab 3 pp 152-155).
53From the materials provided by the Board in Matter No 3208 of 2017, there is no record of any Board meeting (including the meeting of 25 September 2017) at which there was consideration of the content of:
• the Appellant's submissions of 12 September 2017, her letter of 20 September 2017 and her complaint against the barrister who drafted the Particulars (Annexure BE3 item 20; AB Vol 1 Tab 3 pp 152-155) (delivered at 9 am on the morning of the Board meeting at 11 am on Monday 25 September 2017);
• the response from the Appellant dated 13 October 2017 prior to the CEO's response (ostensibly on behalf of the Board) dated 16 October 2017 threatening suspension of the Appellant's Practising Certificate and an application to the Supreme Court for an order requiring production of the file etc. (Annexure BE3 item 31; AB Vol 1 Tab 3 pp 189-191). The CEO in his affidavit of 7 November at para21 states that 'the Board' replied to the letter of 13 October 2017 but there is no indication that the Board made any resolution or decision on the matter. Counsel for the Board also told the court, despite the lack of any evidence, that 'the Board took careful effort to address the subject matter of the practitioner's reasons for not producing the file' (T59).
54The Board resolution of 30 October 2017 (FE25 attached to the affidavit of Mr Frank Ederle dated 7 November 2017 in Matter No. 3208 of 2017; AB Vol 2 pp 423-424) gives no indication that the Board ever considered the 'reasonable excuse' put forward by the Appellant in her 13 October 2017 response.
55However, the CEO in his letter of 16 October 2017 rejected the Appellant's 'reasonable excuse' stating, 'I have considered your reasons for refusing to comply with the s572 notice … Having consulted with the Board, I confirm I do not consider those matters, either individually or collectively, to constitute a reasonable excuse for not complying with the requirements of the s572 notice in the circumstances of this complaint investigation' (emphasis added). In so doing he acted beyond power. Section 593 does not permit the Board to delegate the making of a determination under Chapter 4. The rejection of a 'reasonable excuse' submitted under s 586(3) is a determination to be made under Chapter 4. (See also the comments of the CEO in his letter dated 21 September 2017 to the Appellant at Item 18 of Annexure BE3; AB Vol 1 Tab 3 pp 146-150 of the Appellant's affidavit where he states 'I do however take this opportunity to reinforce Ms Warner's comments to you that nothing you have provided to the Board thus far in relation to this matter constitutes proper grounds to be released from providing your file …'.)
56There is also a credibility problem with the CEO's 16 October response. The Appellant's letter was sent on Friday 13 October 2017. The response was sent on the Monday morning. It claims 'consulted with the Board': who, when, where, what and how?
57Geason J in his reasons for judgment at [44] stated that the Board's decision to direct the suspension of the Appellant 'was no doubt influenced by its view that the reasons advanced by the applicant lacked merit'. However, the available evidence is that the Board never considered the reasons put to it by the Appellant and so never had 'a view' (as evidenced by the Board Note of 30 October 2017 which appears as FE25 to the affidavit of the Board's CEO dated 7 November 2017; AB Vol 2 pp 423-424).
58As to what can constitute 'reasonable excuse', Basten JA stated in A v Independent Commission Against Corruption [2014] NSWCA 414 at [22]:
There is a separate issue whether the concept of 'reasonable excuse' extends to matters beyond the question of relevance to the investigation. To the extent that a 'reasonable excuse' may otherwise include client legal privilege and the privilege against self-incrimination, it is qualified by express provisions of the ICAC Act. However, 'reasonable excuse' is not limited to such legal constraints, but is generally apt to include physical and practical difficulties in complying with the requirement: Controlled Consultants Pty Ltd v Commissioner for Corporate Affairs [1985] HCA 6; (1985) 156 CLR 385 at 392 (Gibbs CJ, Mason and Dawson JJ); Corporate Affairs Commission (NSW) v Yuill [1991] HCA 28; (1991) 172 CLR 319 at 336 (Dawson J, Toohey J agreeing). (emphasis added).
The foundation is 'relevance' – an issue never properly adverted to by the Board or its representatives, or its submissions at first instance. Indeed, Counsel for the Board at first instance argued that it was not appropriate to narrowly construe the question of relevance of documents to the investigation (T78. See also T76).
59It follows that there has been no consideration by the Board of the submitted 'reasonable excuse'. It then follows that there was, and is, no basis upon which the Board could ask the Supreme Court to make an order compelling the Appellant to deliver up a file. It also follows that there was, and is, no lawful basis for the Appellant's suspension.
What the Board should have done when 'investigating' [Grounds 4, 5, 7, 9 and 10]
Ground 4: His Honour erred in law in finding the ambit of the demands (being for delivery up of the file) made pursuant to a Notice issued to the appellant under s572 of the Act to be much broader than the express words of that section permit.
Ground 5. His Honour erred in law in not finding that the appellant had established a 'reasonable excuse' pursuant to s586 of the Act to not comply with the s572 notice as issued.
Ground 7: His Honour's finding that the s572 notice was valid was contrary to the evidence and the weight of the evidence as set forth in the attachments to the affidavit of the appellant reflecting the correspondence between the appellant and the Board Board.
Ground 9: His Honour made an error of law in not requiring the Board to place evidence before the court establishing the factual prerequisites for the use of a compulsory production notice under s572 in the wide terms as drafted or at all.
Ground 10 His Honour made a mixed error of law and fact in failing to draw adverse inferences as to the Board's conduct arising from the Board's failure to adduce any evidence from the Board (given the failure by the Board to give reasons for its determinations) or from its Investigating Officer who caused the Notice under s 572 to issue.
60No reasons have been given to either the Appellant or the Law Society (Annexure BE3 at items 13 and 15; AB Vol 1 Tab 3 pp 128-129 & 133-139) as to:
• why it was decided to investigate the Greer complaint, particularly in light of the lengthy submissions made rebutting the McTaggart allegations, the overlap between the two and the response of the Board dated 27 June 2017 where the CEO advised that the Board had considered at its June meeting whether or not to initiate a complaint against the Appellant for those matters which were not currently the subject of Mr Greer's complaint and had decided not to proceed with a complaint against her (see resolution of the Board in Greer dated 31 July 2017 - FE8 to the affidavit of the CEO in matter No.3208 of 2017; AB Vol 2 pp 326-327 and AB Vol 1 Tab 3 p 101);
• why it was considered that there had been a failure to comply with the s 572 notice given the reasons offered by way of 'reasonable excuse'; and
• why it was considered necessary to immediately suspend the Appellant's Practising Certificate given the stringent requirements of s 446 and/or s 573(6).
61The failure to give reasons is a breach of the rules of procedural fairness required as per s 460. Adequate reasons are reasons that clearly set out the factual and legal issues for determination, the conclusion on those issues and the thought process that has been applied in reaching those conclusions[4]. In Levitt v Council of the Law Society of NSW [2017] NSWSC 834 (per Wilson J), a disciplinary prosecution was halted because the Law Society's reasons for deciding to prosecute were inadequate. Relevantly the Council's reasons were inadequate in not dealing with exculpatory material advanced by the practitioner during the investigation.[5]
[4] The standard of reasons necessary was set out in Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480 at 501 [55].
[5] See also Murray v Legal Services Commissioner [1999] NSWCA 70; (1999) 46 NSWLR 224 per Sheller JA (with whom Priestley and Stein JJA agreed) at [88] and Levitt v Council of the Law Society of New South Wales [2017] NSWSC 834 at [49]-[52].
62At the first instance hearing, Counsel for the Board argued that the whole of the file was required due to the alleged self-interest of the Appellant and her improper motive in pursuing the Coronial matter (T53, 71, 72, 75, 76 & 78) (See also comments of Geason J at [59] and [61]). This argument was put despite the outright denial by the Appellant of the allegation concerning contact with The Mercury (and the initial allegation of Mr Robert Greer of the Appellant posing for a front page article stating by name Samuel and Robert Greer and that they would be investigated for 'being involved' in Rita Greer's death) and no checking whatsoever of the veracity of this allegation via a simple phone call or email to the relevant journalist. Counsel for the Board incorrectly referred to communications with 'some television station' and there being a reference to this in Mr Greer's complaint (T71).
63A complaint is something to be 'proved' by those alleging it. The Act does not provide that there is some onus upon a practitioner complained about to disprove allegations. Indeed the standard process of the Board's staff reflects a proper approach, as per s 431, by asking the practitioner for preliminary comments before the Board makes a decision to investigate. In this instance the Board staff and the Board had available to them: the lengthy rebuttal by the Appellant to the Coroner McTaggart allegations, the transcript of the Inquest, and the means to contact the relevant journalist at The Mercury newspaper (see allegation 4 of the Robert Greer particulars at item 4 of Annexure BE3; AB Vol 1 Tab 3 p 78).
64In the event that a decision to investigate is made then the scope of such inquiries needs to reflect what was distilled from the first responses. The Board is required to take into account the submissions of the practitioner pursuant to s 431(3). There must then be a legitimate purpose to warrant intrusive, time consuming and stressful demands upon the practitioner and to utilise the coercive powers of the Board.
65As Davies J observed in Bannerman v Mildura Fruit Juices Pty Ltd (1984) 2 FCR 581 at 591, which was concerned with the validity of a notice issued under s 155(1) of the Trade Practices Act 1974 (Cth) that compelled its recipient to furnish information and produce documents relating to a matter the subject of investigation, such a:
notice should give to its recipient sufficient information to enable the recipient to perceive what are the matters in respect of which the Commission requires information or documents[6], that those matters constitute contraventions or possible contraventions of the Act and that the information and documents sought are relevant thereto.
[6] Note the distinction drawn between 'information' and documents.
66The evidence of a legitimate purpose might reasonably be expected to come from a meaningful consideration of the material placed before Board staff and the Board, as might be shown by written advice and reasons.
67However, the Appellant's experience in not only the Greer complaint, but also in the Coates Complaint (Matter No. 3212 of 2017) is that, despite requests by her (and Robert Richter QC), no reasons for any determination have ever been provided to her by the Board.
68Moreover, with respect to any engagement by any Board member with any correspondence sent by her to the Board, the responses were limited to any one or more of the CEO writing to her that it was 'noted' or dismissed without adequate reasoning, or that it was returned to her, often unopened.
69Section 572 gives the Board the power to require the delivery up of 'specified' documents. It also separately provides a power to request information. What is allowed under that section is for the investigator to require the lawyer by notice served on her/him to 'produce, at or before a specified time and at a specified place, any specified document (or a copy of the document)' (emphasis added).
70Counsel for the Board relied on the South Australian decision of Finlayson & Ors v Legal Practitioners Conduct Board & Anor [2012] SASC 77 (11 May 2012) (T50). Finlayson is certainly relevant to the present case, but to the advantage of the Appellant, not the Board Board as will be seen below.
71His Honour Justice Geason pointed out that the court in Finlayson did consider the way in which the notice related to matters of complaint (T51 referring to Finlayson at [55] – see also T73).
72Section 572 is narrower than the South Australian provision discussed in Finlayson & Ors v Legal Practitioners Conduct Board & Anor, which refers to 'specified documents or documents of a specified class'. See at [53] and [55]. Finlayson is also an example of how a requirement to produce is properly based on the scope of an investigation that has been properly defined and refers to the applicable conduct rules.
73An issue in Finlayson was whether the notice required the production of documents exceeding the proper scope of the Board's investigation and whether the Board failed to have regard to a relevant consideration ie the relevance of the documents sought to the proper subject matter of its investigation.
74 Justice White in Finlayson held that the scope of an investigation by the Board in that case extended to the conduct the subject of the complaint and conduct reasonably incidental to, or associated with, that conduct. The evidence did not support a conclusion that a decision maker failed to have regard to a relevant consideration. His Honour found that the scope could be enlarged or confined by the response, explanation or justifications which practitioners give to the Board [25]. His Honour Justice Geason cited this passage in his reasons for decision at [58].
75Justice Geason then refers to the Board's submissions at [59] to [60] that when it is investigating issues pertaining to 'self-interest and motive', the whole of the file will be relevant, and that the matter was at an investigative stage and not at that point where anyone was making an 'evaluation' about the complaint.
76Justice Geason accepted the Board's submissions at [61] and referred to the allegation of conduct undertaken by the Appellant in pursuit of self-interest and for an improper motive. He then declined to make a statement of 'general principle' about the appropriate scope of a request under s 572 of the Act. He then found that having regard to the nature and extent of the complaint made by Mr Greer, in the context of the Coroner's published decision, that the notice was appropriately framed. With respect he erred in so finding.
77Unlike Finlayson where the response of the practitioner was taken into account (see [55] to [57]) and [65]) and the scope of subsequent inquiry properly determined, the process undertaken by the Board in dealing with the Greer allegations took no account of the rebuttal of the various allegations in the letter of response to the McTaggart allegations dated 14 March 2017 (contrary to section 431(3) of the Act) and the letter of response dated 12 September 2017 which rebutted each of the seven allegations in some detail referring to the transcript of the Coroner's Inquest and associated materials. Moreover, it ignored the concepts of procedural fairness to the Appellant as required pursuant to s460 of the Act.
78In Finlayson Justice White stated at [53]:
The true position is that in every case, it must be able to be said that, considered objectively, the Board has exercised the power under s 76(3)(a) to require the production of documents for a purpose which is reasonably related to that for which that power is granted, ie, an investigation authorised by s 76. The Board's own subjective view of the position is not decisive of that question. Further, the compliance or otherwise by the Board with the requirement that its exercise of power be reasonably related to the purposes for which the power is conferred must be capable of assessment at the time of its exercise, and not only after that exercise. (emphasis added)
79Justice White also referred to the decision in Melbourne Home of Ford Pty Ltd v Trade Practices Commission (No 3) [1980] FCA 94; (1980) 47 FLR 163, where Brennan, Keely and Fisher JJ said [8]:
An excess of power may appear if the requirement for information or documents is couched in such wide and general terms that a proper exercise of the investigatory power could not support the requirement in question. This is but a particular application of the general principle that the exercise of a discretionary power must be reasonably capable of being regarded as related to the purpose for which the power is conferred … If the requirement expressed in a particular notice is reasonably capable of being so regarded, that ground for alleging an excess of power fails. (emphasis added)
80It is clear from Finlayson that it was the response of the practitioner in that case which justified the broadening of the scope of the investigation and notice. See White J at [55] to [57] and [65]. It was the practitioner's response which suggested that additional matters be investigated by the Board including whether the practitioner was prompted by 'some personal animus' towards certain parties. His Honour Justice Geason referred to the relevant paragraph at [55] in Finlayson at T51 & 73. His Honour also stated at T70 that wasn't it the point that, at the time the notice was issued, it should have been a 'more refined' document. His Honour at T75 questioned counsel for the Board as to why it was difficult or impossible to frame the notice to produce in a way that made it specific to particular allegations of complaint.
81The Board, it is submitted, has improperly used an allegation of self-interest and improper motive, not based on any evidence, and in willful disregard of any assessment of its truth, to improperly expand the scope of the investigation and notice.
82The typical case of complaint and investigation is that a present or former client complains about their practitioner. Section 518 expressly waives client privilege but not non-client privilege. It states:
(1) If a client of an Australian legal practitioner makes a complaint about the practitioner, the complainant is taken to have waived legal professional privilege, or the benefit of any duty of confidentiality, to enable the practitioner to disclose to the appropriate authorities any information necessary for investigating and dealing with the complaint.
(2) ...
83The preceding s 517 deals with the situation where a person properly claims privilege in respect of any information, but information does not equal documents or files.
84Where the complaint is made by a non-client (as in the Robert Greer complaint) then different issues arise, the most obvious of which is that the client claims privilege as against the Board's demand for the file. In this case the client and the complainant are estranged siblings. Moreover, the Appellant and her client could not discuss as to what specific documents such privilege was warranted because of the lack of proper specificity in the allegations, the over wide ambit of the demand for the file and related records, and the 'fishing expedition'' character of the demand.
85In Lashansky v Legal Practitioners Complaints Committee [2005] WASCA 217, which dealt with the ability of a Trust Account Inspector to look at client financial records (under the Legal Practitioners Act 1893), the WA Court of Appeal stated that the relevant statutory framework would not, in the usual case, enable the examiner to 'trawl' through client records generally (at [244]).
86The seeking by the Board of the order to deliver up the file was premature. Likewise their order to the Prescribed Authority to suspend the Appellant's Practising Certificate was premature. This is so because: first, they failed to proceed in a manner which established a proper basis to specify the documents and/or information: secondly, assuming such a proper basis, they failed to properly evaluate and rule upon the proffering by the Appellant of 'reasonable excuse'; and, thirdly, if there was non-compliance by the Appellant with such a ruling, they failed to justify the order to suspend the Practising Certificate. The appropriate manner would be:
• compare and contrast the Robert Greer allegations with the material contained within Coroner McTaggart's findings and the Appellant's rebuttal of the Coroner's allegations;
• In this case - since the Appellant then did the Board's work by writing to them to show how her rebuttal of the McTaggart allegations also covered the Greer allegations - to discern what, if anything, was left of Greer's allegations;
• One such 'left over' is the Greer allegation concerning alleged contact by the Appellant with The Mercury newspaper. Assuming that the Investigating Officer does not accept the Appellant's denial then the next, obvious step, is for the Investigating Officer to contact the relevant journalist at The Mercury newspaper;
• Then settle any allegations that warrant further inquiry and provide clear and unambiguous particulars such that there is no pre-judgement and the relevant Rule/s of Professional Conduct are identified (See Finlayson at [36] – [41]).
• seek the Appellant's first response to those settled allegations;
• evaluate the legitimate purpose/s of any further inquiry;
• request the Appellant to provide information and/or specified document/s (per s 572), acting with legitimate forensic purpose and avoiding any semblance of fishing and/or being oppressive;
• discuss and resolve with the Appellant any issues of client legal privilege that arise from that properly delimited information request.
87The Board's actual conduct in this matter can be seen from the correspondence. At no point does it match the approach set out in the preceding paragraph of these submissions.
• There has been a disregard of written material supplied by the Appellant eg that she is willing to hand over specified documents within a properly delimited investigation (subject to her client's instructions). See for example her letter of 22/23 October 2017 at items 34 and 35 of Annexure BE3; AB Vol 1 Tab 3 pp 203-215 & 216-223.
• There has also been no meaningful response from the Board in relation to the Appellant's letter of 12 September 2017 (rebutting the Greer allegations) (at item 12 of Annexure BE3; AB Vol 1 Tab 3 pp 102-127), the Appellant's letter of 13 October 2017 outlining her 'reasonable excuse' for not producing the subject file (at item 30 of Annexure BE3; AB Vol 1 Tab 3 pp 182-188) and her complaints about the two lawyers involved in drafting and adopting the Particulars in the Robert Greer complaint (see items 20 and 33 at Annexure BE3; AB Vol 1 Tab 3 pp 152-155 & 198-202). The nature of the Board's response on 16 October 2017 was not accurately presented by His Honour Justice Geason in his reasons for judgment at [21]. Contrary to the suggestion in para 21, the CEO's letter did not record that Ms Warner, the Investigating Officer, had considered the reasons for refusal to comply, that she had consulted with the Board or that she considered the matters raised, either individually or collectively, to not constitute a reasonable excuse. The Appellant specifically asked the Board in her letter of 18 October 2017 whether Ms Warner had been consulted in relation to the proposal to suspend or seek a court order for the file but she received no response (See para 11 at page 5 of Item 33 of Annexure BE3 to the Appellant's affidavit; AB Vol 1 Tab 3 p 202).
88The Board failed to adduce evidence from either its Investigating Officer or any Board member to establish the factual prerequisites for the use of a compulsory production notice under s 572 (dated 29 September 2017) in the wide terms as drafted, or at all. Such evidence was necessary in light of the Appellant's detailed correspondence outlining flaws in the procedures and her reasonable excuses for non-compliance.
89That such evidence was necessary follows from the Board's suit for an order to compel the Appellant to deliver up her file. Failing such basic evidential foundations His Honour Justice Geason ought to have drawn the Jones v Dunkel inference (see earlier discussion at para15 above).
The Suspension [Grounds 2, 3, 6, 8 and 10]
Ground 2: His Honour erred in law in finding that the requirements of s 446 of the Act were not binding upon the Board before issuing an Order/direction to the Prescribed Authority to suspend the appellant's Practising Certificate.
Ground 3: His Honour erred in law in finding that s 573(7)(b) of the Act gave the Board an unfettered power to direct the suspension of the appellant's Practising Certificate, being a power that was not fettered by any of: s 446(4); requirements to give reasons to either/both the appellant or the Prescribed Authority; or by way of evidence to the Court justifying the exercise of the power.
Ground 6: His Honour's finding that the Order or Direction to suspend the appellant's Practising Certificate was valid was contrary to the evidence and the weight of the evidence as set forth in the attachments to the affidavit of the appellant reflecting the correspondence between the appellant and the Board Board.
Ground 8: His Honour made an error of law in not requiring that the Board place evidence before the court that would justify a suspension of the appellant's Practising Certificate.
Ground 10: His Honour made a mixed error of law and fact in failing to draw adverse inferences as to the Board's conduct arising from the Board's failure to adduce any evidence from the Board (given the failure by the Board to give reasons for its determinations) or from its Investigating Officer who caused the Notice under s 572 to issue.
90The Appellant seeks to have the order by the Board to the Law Society of Tasmania set aside because it has no legal basis. The prerequisites for the issue of such an order/direction have clearly not been established as set out in s 446(4) and the Board acted under the wrong section (s 573(7)), without regard to prerequisites, instead of s 446, in its direction to the Law Society such that the order is a nullity.
91Section 446 provides explicitly for an appeal to the Supreme Court (subsection 5) AND the power to set aside the suspension (subsection 6). In the absence of a provision equivalent to s 550 in the NSW Legal Profession Act 2004 the Board cannot ignore s 446. [Notwithstanding the arguments put by the Board at first instance it seems that the Board's previous view had been that s 573(7) was insufficient to ground an order to suspend. See paragraph 123 below – letter from CEO to Appellant of 16 October, two weeks before the suspension (AB Vol 1 Tab 3 pp 190-191).]
92The jurisdiction of the Court to declare the purported direction to suspend the Appellant's Practising Certificate void/null or set aside also comes from its inherent jurisdiction and power (see s 510 and the Charter of Justice; In re a Solicitor [1978] Tas R 199 at 202; A Solicitor v Law Society of New South Wales (2004) 216 CLR 253 esp at [2] to [3]; Law Society of Tasmania v Schouten [2003] TASSC 143 at [1]; Council of the Law Society of Tasmania v Jovanovic [2005] TASSC 84 at [6]; The Law Society of Tasmania v R (A Practitioner) [2006] TASSC 108 at [1]).
93Assuming, contrary to the Appellant's primary submission, the validity of the Board's direction to suspend the Appellant's Practising Certificate pursuant to s 573(7) [that being the argument accepted at first instance], the jurisdiction of the Court to stay and set aside that direction likewise comes from the Court's inherent jurisdiction and power with respect to the discipline of practitioners and by virtue of s 510 (citations as per above).
94The Board is required (subject to any contrary provisions of the Act) to act in accordance with the rules of procedural fairness (s 460)[7]. Section 537(7) does not exclude such rules.
[7] See also Wentworth v New South Wales Bar Association (1992) 176 CLR 239 at 251 per Deane, Dawson, Toohey and Gaudron JJ; Smith v New South Wales Bar Association (1992) 176 CLR 256 at 270 per Deane J; Carver v Law Society of New South Wales (1998) 43 NSWLR 71 at 98 per Powell JA, at 101 per Stein JA.
95Relevantly (to both matters before the Full Court), such rules entail that a practitioner the subject of a complaint is entitled to know:
• the particulars of complaint such that it is clear what is being investigated and there is no ambiguity;[8]
[8] R v CAZ [2011] QCA 231 per Fraser JA (with whom the other two judges agreed) at [48] as to particulars in Criminal charges; and Kerin v Legal Practitioners Complaints Committee (1996) 67 SASR 149 at 166 per Debelle J.
• the particulars of complaint which assert some form of misconduct known to the professional conduct rules;
• that the particulars do not demonstrate prejudgment;[9]
[9] Ebner v Official Trustee [2000] HCA 63; (2000) 205 CLR 337 at [6]; Rainbird v Bonde [2016] TASSC 10 per Blow CJ at [29] to [39]
• that the scope of any investigation reflects due attention by the investigator to information already known to, or easily ascertained by, them;
• that there is a legitimate forensic purpose in seeking the documents sought;
• that such investigation is not conducted as a 'fishing expedition';[10]
[10] Commissioner for Railways v Small [1938] NSWStRp 29; (1938) 38 SR (NSW) 564 at 575 – the term 'fishing' was defined by Jordan CJ.
• that such investigation is 'bona fide' and not conducted in an oppressive manner;[11]
[11] Rogerson v Law Society of the Northern Territory (1993) 88 NTR 1 at 20 per Asche CJ.
• that due consideration is given to submissions lodged by the practitioner (see s 431(3));
• that the practitioner is given an opportunity to be heard prior to decisions against their interest being made; and
• that there is no overreach of power in any such decisions.
96The Board's power to give a direction/order to the Prescribed Authority (the Law Society of Tasmania) to suspend a legal practitioner's Practising Certificate is expressly conferred by s 446 [see below]. This is the only section in the Act that confers that power. There is no head of power relating to the powers of the Board in this regard in s 573(7), the section which was used by the Board in its purported suspension of the Appellant. There is no equivalent in the Act to s 550 in the NSW Legal Profession Act 2004 [See above at paras 33 and 34].
97Section 573(7) merely provides that the s 446 suspension power - along with its prerequisites – is available in a suitable case (and such a case would show that there was a valid notice AND that there had been misconduct per 537(6)).
98Section 446 states:
(1) During the investigation of a complaint about an Australian legal practitioner, the Board may order –
a) the prescribed authority to suspend a practising certificate held by the Australian legal practitioner for a specified period; or
b) …
…
(4) The Board must not make an order under subsection (1) or (2) unless it is satisfied –
a) that the Australian legal practitioner is likely to be found guilty of professional misconduct; and
b) that it is necessary in the public interest that the order be made (emphasis added).
99The Board purported to act under s 573(7) as demonstrated by the Board resolution of 30 October 2017 and the direction/order to the Law Society of the same date (see Mr Frank Ederle's affidavit dated 7 November 2017 at FE25-FE27; AB pp 423-429). This is a fundamental error. It further argued that acting under s 573(7) simpliciter circumvented the constraints explicitly imposed by s 446(4). The Board made no mention of s 573(6) which refers explicitly to misconduct. They should have done so, if only to explain why they thought it was not relevant.
100The argument that s 573(7) provides a power to arbitrarily deprive someone of the right to practise their profession unconstrained by any objective or even ascertainable statement of justification is an embarrassment to Australian jurisprudence, not only as a matter of statutory construction but more fundamentally as an attempt to free the Board and its officers from the usual requirements that 'coercive' powers be exercised for transparent reasons that unambiguously demonstrate a proper purpose/s.
101Earlier in these submissions under 'Relevant Provisions in the NSW Legal Profession Act 2004' attention was drawn to the provisions in the now repealed NSW Act. In particular the NSW Act contained in s 550 an express provision that, if it existed in the Tasmanian Act, would assist the Board's argument. But no such provision exists.
102The Board argued at first instance that it was operating under Chapter 6 of the Act and not Chapter 4 (T24-25, 26) and the provisions in Chapter 6 needed to be given work to do (T34) and meaning (T35).
103However, s 443 of the Act in Chapter 4 makes it quite clear that Chapter 6 (Investigatory powers) applies to an investigation under that Part of Chapter 4. See also 568(c) which outlines that the Purpose of Chapter 6 is to provide powers that are exercisable in connection with complaint investigations and the investigation of complaints under Chapter 4. The argument that Chapter 4 is not the source of power is untenable.
104Counsel for the Board was unable to find any decisions in other jurisdictions dealing with those provisions that the Board and the Law Society acted upon (T36).
105The law regarding suspension as an interim order was enunciated in Dennis v Council of the Law Society of NSW [2014] NSWSC 1487 (Hoeben CJ at CL) (See also Berger v Council of the Law Society of NSW [2013] NSWSC 1080 and Helby v Council of the Law Society of NSW & Anor [2013] NSWSC 1938).
106The decision of the defendant to suspend the Practising Certificate was set aside. The defendant Law Society had acted under their equivalent to the Tasmanian s 446 [see para 20 of the decision.] The lawyer had not complied with commands by a trust investigator to produce documents and answer questions in relation to a disciplinary complaint. However, he had given reasons for his failure to comply. As in the present case the complaint was that of a non-client. His Honour found that this was not an appropriate occasion on which to exercise the 'emergency powers' which the Law Society exercised. It was not necessary to shut down a sole practice.
107The court found in Dennis v Council of the Law Society of NSW at [64] that nothing had been placed before the court to indicate a risk to clients, or to the public generally, or to the administration of justice. Nothing had been put to indicate the need for such 'emergency' measure as the suspension of the Practising Certificate. The Judge was not persuaded that the conduct of the solicitor was 'of such seriousness' to justify such 'draconian steps' as was involved in the issuing of the notices by the Society. In short the suspension was not necessary. In the present case it is likewise that the Board has chosen to put no evidence before the court to support its direction to suspend. Moreover it has provided no reasons justifying the need for such 'draconian' action.
108In Hogan v Australian Crime Commission [2010] HCA 21; 240 CLR 651 at [30] per French CJ, Gummow, Hayne, Heydon and Kiefel JJ) (referred to in Dennis v Council of the Law Society of NSW at [55]), the court considered the use of the word 'necessary' in the public interest. It held that it was a 'strong word'. It connoted a relatively high degree of satisfaction that the suspension should be ordered pending the pursuit of a complaint.
109In determining whether there was or is an emergency or any urgency to warrant the suspension of the Appellant's Practising Certificate, there is no suggestion that the Appellant is physically or mentally impaired, that she is misusing trust funds, or that she has behaved dishonestly in any way.
110His Honour Justice Geason at the hearing on 22 November 2017 stated that the Greer complaint was essentially derived from the matters that were the subject of the Inquest and that they weren't 'new matters'. He stated (T34):
There was nothing about them that had the quality of some urgency in terms of protecting the public. I want to understand why it was necessary to suspend the practitioner, because that's really what's at the heart of this.
111There is no suggestion that she is not a 'fit and proper' person (see ss 9 and 26 of the Act). There is no emergency at hand, particularly given that the Greer Inquest was held over a year ago and the Board has had Mr Greer's complaint since March 2017. The Appellant indicated that the file was 'safe' in her letter to the Board of 13 October 2017 (para1 4 at p 5 of item 30 at Annexure BE3; AB Vol 1 Tab 3 p 186).
112Turning now to the second requirement that there is a likelihood that the Appellant will, ultimately, be found guilty in the Greer case of professional misconduct, it is germane that:
• the Board decided in June 2017, following its consideration of the Appellant's detailed reply to the many allegations made in the findings of Coroner McTaggart, that it would take no further action as to that matter. The CEO advised in his letter of 27 June 2017 that the Board considered at its 26 June 2017 meeting 'whether or not to initiate a complaint against you for those matters which are not currently the subject of Mr Greer's complaint'. The letter advised that the Board resolved to not proceed with a complaint against the Appellant. (Annexure BE3 at item 8; AB Vol 1 Tab 3 pp 100-101); and
• Mr Robert Greer's allegations relate to the same inquest hearing and there is considerable overlap between the McTaggart and Greer allegations (see Appellant's letter to the Board dated 12 September 2017 which demonstrates this overlap (Annexure BE3 at item 12; AB Vol 1 Tab 3 pp 108-127) and see also the comments of Geason J at the hearing at T 17, 32 & 34).
113Furthermore (and relevant to both matters before the Court) the Appellant did not commit any form of misconduct, let alone professional misconduct, or conduct generally regarded as disgraceful or dishonourable by legal practitioners of good repute and competency (Law Society v Turner [2001] TASSC 129; (2001) 11 Tas R 1 at [45]; Law Society of Tasmania v Matthews [2010] TASSC 60; Legal Profession Board of Tasmania v Haque [2015] TASSC 5), when she declined to submit to the Board's s 572 notice on the bases set out in her 'reasonable excuses'.
114Contrary to the affidavit of Mr Frank Ederle, the CEO of the Board, dated 7 November 2017 (in Matter No. 3208 of 2017) (AB Vol 2 pp 254-259), where at para 23 he states 'The Board did not receive any submissions from the Board in response to FE-23', the Appellant did supply detailed written submissions to each Board member and the Executive Director and President of the Law Society which addressed the proposed suspension. These are dated 22 and 23 October 2017 (email where email addresses of Board members were ascertainable and hard copy follow up letters) and may be found at items 34 and 35 of Annexure BE3 to the Appellant's affidavit (AB Vol 1 Tab 3 pp 203-215 & 216-223).
115It is to say the least, strange, that the CEO would overlook such significant correspondence when it was both recent and explicitly referred to in the Appellant's affidavit which preceded his.
116At the hearing of the matter on 22 November 2017, Counsel for the Board told the court that the only response from the Appellant to the letter of 16 October 2017 was a letter of complaint about Ms Warner, the Investigating Officer, dated 18 October 2017 (T59). This was incorrect.
117In particular, paragraphs 5 and 6 of the 22/23 October email/letter, reflecting on the requirements of s 446 of the Act, stated:
5 Based upon the CEO's letter of Monday 16 October I expect that you will be asked at the next Board meeting to order the Law Society to suspend my practising certificate because of my failure to comply with an improperly issued notice (under section 572) to hand over my file to your investigator. I have advised the CEO at length as to the problems with the issue of that notice. Later in this letter I set out the proper bases on which I would happily hand over relevant documents.
6 More immediately you need to know that there is no proper basis on which to order the Law Society to suspend my practising certificate. No public protection or appropriate deterrence will be afforded by such action. There are no 'emergency' or public interest considerations warranting such action. It is not 'likely' that I will be found guilty of professional misconduct or of any misconduct whatsoever. The making of such an order would be an obvious act of abuse of process. It would compound the significant loss/damage to me that has flowed from the Board's actions to date.
118In addition to the written submissions, the Appellant considered it essential to ensure that her submissions were properly heard by the Board. She therefore attended the relevant Board meeting on Monday 30 October 2017 which was open to the public by virtue of Schedule 3 of the Act (see s590(5)) but was not invited to say anything by the Chair or any Board member and was told to leave during the discussion of the matters relating to investigations (including her matters).
119The factual matters referred to in the immediately preceding paragraphs do not appear in the affidavit of the Board's CEO dated 7 November 2017 (AB Vol 2 pp 254-259) or the Board's resolution of 30 October 2017 (Item FE-25 to the affidavit of the CEO dated 7 November 2017; AB Vol 2 pp 423-424). Given that the events had occurred a mere week or so prior to that affidavit being sworn this is a surprising oversight.
120The Appellant had not written directly to the CEO on the matter of the proposed suspension on 22/23 October 2017 as she had lost faith in the CEO when he admitted in writing that he was vetting correspondence going to the Board (in another matter ie the Coates complaint, the hearing of which is now pending in this court – Matter No 3212 of 2017) and failed to table an item of correspondence which he specifically undertook to table at a forthcoming Board meeting (See Annexure BE3 at items 14, 17, 23, 25 and 43; AB Vol 1 at pp 130-132, 143-145, 161-164, 171-172 & 245-246).
121Put shortly, the direction/order to suspend, which appears punitive rather than protective in nature[12], was an abuse of power - uncalled for on the facts and not properly open to the Board as a matter of law.
[12] Compare Law Society of Tasmania v McDougall (2007) 17 Tas R 1 at [9] per Evans J where his Honour stated that the power of the court to make orders is entirely protective in character and no element of punishment is involved.
122His Honour Justice Geason made an error of law in not requiring that the Board place evidence before the court that would justify a suspension of the Appellant's Practising Certificate. His Honour also failed to draw adverse inferences as to the Board's conduct arising from the Board's failure to adduce relevant evidence, pursuant to Jones v Dunkel (Grounds 8 and 10).
A Systematic Abuse of Power [Grounds 1,3, 8 to 10]
Ground 1: His Honour made a mixed error of law and fact when he found 'The applicant's contentions with respect to the Board's motivation in pursuing the investigation have no bearing on the matter' at [38] when the purposes of the Legal Profession Act 2007 ('the Act') as set forth in sections 3 and 417 (especially s417(b)) AND the application of the rules of procedural fairness per s460 necessarily require that the acts of the Board and its employees must be for legitimate purposes, properly proportionate to the bounds and exigencies of the particular investigation and any 'risk to the public', and eschew any appearance of a lack of transparency and accountability.
Ground 3: His Honour erred in law in finding that s573(7)(b) of the Act gave the Board an unfettered power to direct the suspension of the appellant's Practising Certificate, being a power that was not fettered by any of: s446(4); requirements to give reasons to either/both the appellant or the Prescribed Authority; or by way of evidence to the Court justifying the exercise of the power.
Ground 8: His Honour made an error of law in not requiring that the Board place evidence before the court that would justify a suspension of the appellant's Practising Certificate.
Ground 9: His Honour made an error of law in not requiring the Board to place evidence before the court establishing the factual prerequisites for the use of a compulsory production notice under s572 in the wide terms as drafted or at all.
Ground 10: His Honour made a mixed error of law and fact in failing to draw adverse inferences as to the Board's conduct arising from the Board's failure to adduce any evidence from the Board (given the failure by the Board to give reasons for its determinations) or from its Investigating Officer who caused the Notice under s 572 to issue.
123The CEO advised the Appellant by letter of 16 October 2017 (AB Vol 1 Tab 3 p 191) that in the event that she failed to comply with the notice by 5 pm that day, 'the Board will consider taking the following steps: a. pursuant to s573(7) and/or s446(1) of the Legal Profession Act directing the Law Society of Tasmania to suspend your practicing certificate until you comply with the s572 notice; and b. applying to the Supreme Court of Tasmania for an order under s645 of the Legal Profession Act requiring you to produce the documents identified in the s572 notice.' (emphasis added). The CEO sought any submissions on this proposed course of action by 5 pm on Friday 20 October 2017.
124Two issues arise from that CEO letter. First, given the explicit recognition that s 573(7) did not 'stand alone' – suspensions were either ordered pursuant to s 573(7) AND s446, or by s 446 alone – how did it come to pass that a mere fortnight later (and when the Appellant had not only provided the Board with 'reasonable excuse' materials but also attended their meeting) that the Prescribed Authority was ordered by way of s 573(7) alone?
125Given the absence of reasons for Board decisions throughout this saga, along with the failure to put on the necessary evidence in these proceedings, we submit that the appropriate inference is that the Board and its representatives, being alive to the s 446 tests and the inability to meet them, deliberately chose a path that they thought would achieve their improper purposes but avoid their being called to account.
126 Secondly, there is a fundamental issue raised by the CEO's threat: on what basis – other than 'We can' – was it appropriate to take both these actions, rather than pursue one of them?
127In the event that the actions of a solicitor may objectively pose a danger, such as the concealing of funds or documents, or the willful (sic) misleading of clients such that they or third parties are injured, then the need to invoke suspension powers is obvious. Indeed the tests in s 446 directly reflect such concerns. Sections 573(6) and (7) to the extent that they assume the validity of the underlying s 572 notice do likewise: a properly drafted notice would reflect a considered, informed approach to an investigation and it follows that the failure by the practitioner to comply, absent reasonable excuse, evidences misconduct. There is thus both public interest in an effective, timely investigation and continuing misconduct as grounds to support an order to suspend pending compliance.
128The Board chose, however, to also seek an order under s 645 compelling delivery up of the file. As their claimed objective was to secure the non-client file, then, as they have never claimed a public interest justification for ordering the suspension, the live issue is for what legitimate purpose did they order that suspension? None.
129Contextually another aspect of the 'abuse of power' that characterises the approach of the Board to the Appellant is the co-incidence of their letters of 23 and 24 August 2017 (AB Vol 1 Tab 3 pp 103-105 & 106-107).
130 The first of these dated 23 August 2017 (in Matter No. 3212 of 2017) contained the surprise information that the Board, having reconsidered its decision of February 2016 (sic) to refer the August 2014 Coates complaint to the Tribunal, would now refer that matter (which now constituted the more serious professional misconduct) to the Supreme Court. No explanation or reasons of any kind were offered for either the original determination or that change of determination and subsequent decision. See the letter from the Law Society of Tasmania with all relevant correspondence from the Board at AB Vol 1 pp 133-139.
131Because they then failed to act on that August 2017 decision, the Appellant lodged an application with the Court pursuant to s 486 to have that complaint determined in open court. This is Matter No. 3212 of 2017. Notwithstanding that in February 2016 the Board advised the Appellant that the matter was to be heard in the Tribunal, and that in August 2017 (some 1.5 years later) it changed its mind and decided that the matter should go to the Supreme Court, it now claims that it is not ready to proceed.
132The referrals for hearing, the escalation in asserted seriousness, the failure to provide reasons, the timing of the advice to the Appellant, and the lack of readiness to proceed, evidence a calculated intent to intimidate and alarm the Appellant. That inference is more readily available in light of the following letter.
133The second letter, one day later (found at item 11 of Annexure BE3; AB Vol 1 Tab 3 pp 106-107), marked the start of the active oppressive conduct by the Board in this matter in which they required the entire file and every electronic record in the matter, for a period of over three years. This followed a letter of 2 August 2017 which indicated no degree of urgency (see Item No. 9 at Annexure BE3 of the Appellant's affidavit; AB Vol 1 Tab 3 p 102).
134The reasons of His Honour Justice Geason dated 19 December 2017 stated at [38] that the Applicant's/Appellant's contentions with respect to the Board's motivation in pursuing the investigation against her had 'no bearing on the matter'. With respect it is submitted, on the evidence, it is clear that there was an improper motive for pursuing the matter in the manner outlined and that this is a relevant consideration in light of the Board's legislated purpose and obligations and the requirements of procedural fairness.
135In summary, the determinations and decisions of the Board in its handling of complaints against the Appellant are characterised by:
• A failure to pay any regard to her submissions (contrary to section 431(3));
• A failure to undertake basic due diligence and preliminary investigative work;
• A failure to identify how the alleged conduct was contrary to the Tasmanian Rules of Practice 1994 or the Australian Solicitors' Conduct Rules or accepted common law in this area;
• A refusal to provide reasons to her or the Prescribed Authority (see s 462) for any determination or decision;
• An investigative approach that lacks particularity, departs from legitimate forensic purpose, is oppressive and constitutes 'fishing';
• A deliberate decision to avoid the requirements of s 446 before ordering the Prescribed Authority to suspend the Appellant's Practising Certificate; and,
• Deliberate decisions to maximize the coercive opportunities within the legislation so as to inflict as much stress and professional damage as possible upon the Appellant. This is evidenced, inter alia, by the manner and timing of advice of referral to the Supreme Court in the Coates' matter, the issue of the s 572 notice, the two pronged approach to the litigation, seeking compliance with a court order to deliver up the non-complainant file when it was known that both the Board's and their solicitor's offices would be shut over the Christmas/New Year recess, seeking compliance with that court order in a period that was less than that given for the filing of a notice of appeal, and refusing to withdraw the suspension pending the hearing of this appeal.
136Surpassing everything else as evidence of willful abuse of power, however, is the failure of the Board to take the opportunity to question the Appellant when she came voluntarily to their 30 October 2017 meeting. Instead of speaking with her they both excluded her and promptly passed a resolution falsely stating that no submissions had been received from her (despite her letters to Board members of 22/23 October 2017). Their CEO then neglected to include any mention of her written submissions or her attendance in his affidavit - omissions by the Board and its CEO that speak so much louder than any words. They have become a law unto themselves.
137The conduct of the Board and its representatives in its 'investigation' of the allegations made by Mr Robert Greer illustrates that the purposes of Chapter 4 of the Act, per s 417(b) to promote and enforce the professional standards, competence and honesty of the legal profession, have been forgotten by those charged to ensure them."
The Board's written submissions
The Board's counsel, Mr C Gunson SC and Ms Sawyer, in their written submissions, respond as follows to the appellant's submissions as to each of the 10 grounds of appeal:
"Ground 1:
His Honour made a mixed error of law and fact when he found 'The applicant's contentions with respect to the Board's motivation in pursuing the investigation have no bearing on the matter' at [38] when the purposes of the Legal Profession Act 2007 ('the Act') as set forth in sections 3 and 417 (especially s417(b)) AND the application of the rules of procedural fairness per s460 necessarily require that the acts of the Board and its employees must be for legitimate purposes, properly proportionate to the bounds and exigencies of the particular investigation and any 'risk to the public', and eschew any appearance of a lack of transparency and accountability.
29This ground of appeal is unintelligible and the Board is unable to answer it because it does not understand what it means, other than to submit that Geason J was correct. The applicability of s446 is addressed under ground 2. Put simply, unless a complaint is dismissed under s433 or withdrawn under s434, the Board is required to investigate a complaint.[18] The Board does not have an option or discretion to investigate. Likewise, the Board is not required to make a decision to investigate. Rather, s440(1) mandates that the Board is to investigate complaints. It is not confined to investigating only those parts of a complaint that a lawyer says should be investigated, or which a lawyer has not refuted. It is required, by the terms of the statute, to investigate the complaint.
[18] Section 440(1)
30There is no merit to ground 1.
Ground 2:
His Honour erred in law in finding that the requirements of s446 of the Act were not binding on the Board before issuing an Order/direction to the Prescribed Authority to suspend the appellant's Practising Certificate.
31As a matter of statutory construction s446 of the Legal Profession Act has no role to play in respect of a suspension under s573(7). In summary, that is because:
a Section 573(1) provides that s573 'applies to a requirement imposed on a person under this Part.' That is Pt6.2, not Ch4. Section 572 is contained in Pt6.2, not Ch4.
b Part 6.2 applies to trust account investigations, trust account examinations, complaint investigations and incorporated legal practice audits[19]. Section 446 only applies to complaint investigations and only empowers the Board to order the Prescribed Authority to suspend a practitioner who is the subject of a complaint. The Prescribed Authority conducts trust account investigations under Div4 of Pt3.2[20], however, there is no equivalent of s446 in that division or part. Trust account examinations are external examinations of trust account records conducted under Div5 of Pt3.2. Likewise, there is no equivalent to s446 in Div5 of Pt3.2. The Prescribed Authority may conduct audits of incorporated legal practices under s130, but there is no equivalent of s446 in s130 either.
[19] Section 540
[20] Section 569(1)
c The Prescribed Authority may suspend a practising certificate under s65, however, the grounds for doing so are set out in s64 and do not include non-compliance with requirements imposed under Pt6.2. The Prescribed Authority may also suspend a practising certificate under s68 in circumstances set out in that section, and also under s74 in the case of a 'show cause event'.
d Under s573(7) the Prescribed Authority can suspend a practising certificate, but on the appellant's argument there is no other source of power to enable the Prescribed Authority to do so. Logically, the source of power must be s573(7) itself. It would be an absurd interpretation of s573(7) that the Board would have to comply with s446 before it could direct suspension under s573(7), but the Prescribed Authority did not have to do so (and could not because s446 only empowers the Board and not the Prescribed Authority).
e Section 564(6) is in terms similar to s573(7), but in relation to external intervention. There is, however, no equivalent to s446.
f Section 572(1) applies specifically to lawyers who are the subject of a complaint investigation, whereas s572(2) empowers an investigator to impose requirements on lawyers who are not the subject of a complaint investigation. It would be an absurd situation if, on the appellant's construction, a lawyer who is the subject of a complaint investigation has the benefit of the requirements of s446 needing to be met, but a lawyer who is not the subject of a complaint investigation does not. Such a construction would afford special status to lawyers who fail to comply with requirements imposed on them under s572(1) if they are the subject of a complaint investigation, because they would receive the benefit of s446, but lawyers who have requirements imposed on them under s572(2) or in respect of a trust account investigation, trust account examination or an incorporated legal practice audit, do not.
g The benefits of s446 not only include the jurisdictional facts that must be met before the Board can exercise its powers under that section, but s446(5) provides for a right of appeal to the Supreme Court. No such right of appeal is conferred under Pt6.2. Again, it would be an absurd interpretation of s573(7) which would lead to a situation where a lawyer who is the subject of a complaint investigation obtained a right of appeal which included merits review, where lawyers who are not subject to a complaint investigation, but have a requirement imposed on them, do not.
32Plainly, s446 does not constrain the exercise of power that may be exercised under s573(7).
33On one view, the powers vested in investigators and the Board (or Prescribed Authority) under Pt6.2 may be viewed as extreme. The reality of the proper construction of the legislation is that if a lawyer fails to comply with a requirement imposed under that part, she or he can be summarily suspended from practice. If that occurs his or her recourse is limited to review under the Judicial Review Act or under Pt26 of the Supreme Court Rules, neither of which involves merit review. Such powers are essential for the discharge of the regulatory functions of the both the Board and the Prescribed Authority, and the seemingly harsh consequences that can flow from a failure to comply with such requirements highlights the importance that the legislature has placed on ensuring that lawyers comply with investigatory requirements.
34There is no merit to ground 2.
Ground 3:
His Honour erred in law in finding that s573(7)(b) of the Act gave the Board an unfettered power to direct the suspension of the appellant's Practising Certificate, being a power that was not fettered by any of s.446(4); requirements to give reasons to either/both the appellant or the Prescribed Authority; or by way of evidence to the Court justifying the exercise of the power.
35This ground of appeal does not, it is submitted, make sense. It is illogical that the validity of a decision is dependent on giving of reasons or giving evidence to a court to justify the exercise of the power. Logically that would only occur if the person who was subject to the suspension challenged the validity of it. The validity of the decision will be assessed at the time that it is made.
36Nevertheless, the Board makes the following submissions in relation to this ground of appeal, and in addition repeats the submissions under ground 2 regarding the non-applicability of s446 to decisions made under s573(7).
No obligation to provide reasons
37The Board's primary submission is that it was under no obligation to provide reasons for directing the Prescribed Authority to suspend the appellant's practising certificate. In Australia, there is no common law duty to give reasons for an administrative decision.[21] There is no statutory duty to give reasons for an administrative decision made under Ch6 of the Legal Profession Act. The failure to give reasons to the appellant or the Prescribed Authority did not have the effect of vitiating the Board's direction to the Prescribed Authority.
[21] Public Service Board (NSW) v Osmond (1986) 159 CLR 656
38The basis for the suspension was self-evident. It was because of the appellant's refusal to comply with the requirements imposed on her by the s572 notice. She was afforded the opportunity to make submissions as to whether the Board should direct the Prescribed Authority to suspend her practising certificate,[22] but she declined to do so instead preferring to make a complaint under Ch4 against the Board's investigator.[23]
[22] FE-23
[23] FE-24
39In any event, both the direction to the Prescribed Authority[24] and the Board's letter to the appellant of 30 October 2017[25] provide brief reasons for the Board's directions. Again, however, the sole reason for making the direction was self-evidently the appellant's failure to comply with the requirements of the s572 notice.
[24] FE-26
[25] FE-27
40If the appellant had wanted reasons for the Board's decision she could have sought a statement of reasons under s29 of the Judicial Review Act. She has not done so.
41The Board's powers under s573(7) are not, therefore, fettered by some alleged obligation to provide reasons.
42In any event, the Board would only have been required to give reasons for its decision to the Prescribed Authority, which it did[26]. The Prescribed Authority gave the appellant reasons for its decision to suspend her practising certificate — that being that the appellant had failed to comply with a requirement imposed under Pt6.2 of the Act being a notice to produce documents dated 29 September 2017[27]. Prior to making the direction to suspend the appellant's practising certificate the Board informed her of what action it would consider if she did not comply with the requirement and invited her to make submissions in relation to that issue.[28] All requirements of procedural fairness were met by the Board.
[26] AB426
[27] AB253
[28] AB415 at 416
Evidence to the court
43The ground of appeal asserts that Geason J should have found the Board's powers under s573(7) fettered by an obligation 'to give evidence to the Court to justify the exercise of the power.' The proposition is nonsense and should be rejected out of hand.
44The Board is entitled to adduce whatever evidence it considers appropriate in proceedings brought by it or where it is a Board. In the case of the appellant's proceeding the Board did not adduce any evidence. In its own proceeding under s645 the Board did adduce evidence in the form of affidavits of its CEO.[29]
[29] Affidavit of Frank Ederle affirmed 7 November 2017 (AB254); affidavit of Frank Ederle affirmed 20 November 2017 (AB430).
45There is no merit to ground 3.
Ground 4:
His Honour erred in law in finding the ambit of the demands (being for delivery up of the file) made pursuant to the Notice issued to the appellant under s572 of the Act to be much broader than the express words of that section permit.
46In relation to this ground, the appellant's argument seems to be that because s572(1)(a) uses the words 'specified document' for a notice to be valid it must identify with absolute precision the document sought to be produced. It is not clear from the appellant's outline of submissions, but some weight seems to be put on the fact that s572(1)(a) is drafted in the singular rather than the plural.
47Geason J held at [56] that a 'file can constitute a 'specified document'. So long as the file is identified by reference to the matters the subject of the complaint for example, it can be picked out and produced.'
48His Honour's analysis is consistent with Patonga Beach Holdings Pty Ltd v Lyons[30] where Barrett J held that a 'specified document' was different to a 'specific document' and meant 'described' or 'identified' to make a notice to produce operate similar to a subpoena to a non-party.[31] The notice to produce in this instance would be sufficient if it were a subpoena to a non-party in civil litigation, and accordingly it is sufficient for the purpose of imposing a requirement under s572. It is to be observed that the notice does not simply seek production of a file, but also identifies the types of documents that are envisaged to be produced in compliance with the notice.
[30] [2009] NSWSC 869
[31] [2009] NSWSC 869 at [12]
49As to whether it is permissible to call for production of multiple documents in a s572(1) notice, there is a presumption of statutory construction that the singular includes the plural and vice versa unless the contrary intention appears from the statute. [32] In the case of s572(1) there is no contrary intention apparent from the terms of the section, and to interpret it otherwise would make the provision unworkable.
[32] Blue Metal Industries Ltd v Dilley (1969) 117 CLR 651 at 656
50If the requirements of s572(1) were to be interpreted as narrowly as contended by the appellant it would undoubtedly lead to a time consuming and expensive two stage process. The Board can never know the precise contents of a lawyer's file until it has been produced. If the appellant's contention as to the degree of specificity required in the description of documents required to be produced is correct, it would be necessary for an investigator to first issue a notice under s572(1)(b) or (c) requiring the lawyer to provide a detailed description of each and every document in the lawyer's file (or otherwise relevant to the complaint). Once the investigator had received that information the investigator could only then issue a notice pursuant to s572(1)(a) requiring the production of the documents.
51The appellant's contentions should be rejected. There is no merit in ground 4.
Ground 5:
His Honour erred in law in not finding that the appellant had established a 'reasonable excuse' pursuant to s586 of the Act not to comply with the s572 notice as issued.
52This ground of appeal repeats a fundamental misunderstanding of ss572, 573 and 586 of the Legal Profession Act because the appellant seems to believe that a lawyer is excused from complying with a requirement imposed under s572 if he or she has a reasonable excuse for not doing so. For the reasons set out below, and as a matter of basic statutory construction, that view is simply wrong.
53Relevant to this case, a notice was issued to the appellant under s572(1), which relevantly provided:
572 Requirements that may be imposed for investigations under Chapter 4
(1) For the purpose of carrying out a complaint investigation in relation to an Australian lawyer, an investigator may, by notice served on the lawyer, require the lawyer to do any one or more of the following:
(a) to produce, at or before a specified time and at a specified place, any specified document (or a copy of the document); …
54A requirement imposed under s572 is to be notified to the person in writing and is to specify a reasonable time for compliance. In this case the notice was in writing and no complaint was made regarding the time for compliance. In any event, the period allowed was reasonable.
55Section 572(3) is very important. It is a penal provision which provided:
(3)A person who is subject to a requirement under subsection (1) or (2) must comply with the requirement.
Penalty: Fine not exceeding 50 penalty units.
56The maximum penalty was therefore $7,950[33], and the offence is triable summarily.[34] Notably, the provision creates a strict liability offence and it is not a defence to a charge under s572(3) of establish the existence of a reasonable excuse for not complying with the requirement.
[33] Department of Justice webpage 'Value of Indexed Amounts in Legislation' viewed 10 January 2018 ( Acts Interpretation Act 1931, s38(3).
57Section 573 applies to a requirement imposed on a person under Pt6.2 of the Legal Profession Act. Section 573(6) provided:
(6)A failure of an Australian lawyer to comply with the requirement is capable of constituting unsatisfactory professional conduct or professional misconduct.
58 Section 586, however, provides:
586 Obligation of Australian lawyers
(1) The duties imposed on an Australian lawyer by this section are additional to obligations imposed under other provisions of this Chapter, whether or not the lawyer is the subject of the investigation, examination or audit concerned.
(2) An Australian lawyer must not intentionally mislead an investigator, the Board or the prescribed authority in the exercise of –
(a)any power or function under this Chapter; or
(b)any power or function under a provision of a corresponding law that corresponds to this Chapter.
(3) An Australian lawyer who is subject to –
(a)a requirement under section 572 (Requirements that may be imposed for investigations under Chapter 4); or
(b)a requirement under provisions of a corresponding law that correspond to that section –
must not, without reasonable excuse, fail to comply with the requirement.
(4) An Australian lawyer who contravenes subsection (2) or (3) is guilty of professional misconduct.
59Importantly, s586 is expressly in addition to ss572 and 573. It does not confine or limit the operation of those provisions. The effect of s586(4) is to deem conduct falling within sub-sections (2) or (3) to be professional misconduct. It does not mean that a lawyer can chose not to comply with a requirement under s572 because she or he considers that the lawyer has a reasonable excuse for not complying with the requirement. That is because mandatory requirement of s572(3) continues to apply to the lawyer, and the lawyer's conduct by failing to comply with the requirement continues to be conduct that is capable of constituting professional misconduct or unsatisfactory professional misconduct by reasons of s573(6). Even if a lawyer has a reasonable excuse for not complying with a requirement imposed under s572, the lawyer could nevertheless be found guilty of professional misconduct or unsatisfactory professional conduct in respect of such failure to comply depending on the facts of the particular case. Equally, depending on the facts of the case, a lawyer's reasonable excuse may be such that no finding of professional misconduct or unsatisfactory professional misconduct could properly be made.
60It was, therefore, unnecessary for Geason J to consider whether the appellant had a reasonable excuse for not complying with the requirement imposed under s572 because even if she had a reasonable excuse for the purposes of s586(3) the mandatory obligation to comply with the requirement continued because of s572(3). Similarly, it is not necessary for this Court to determine whether the appellant had a reasonable excuse for not complying with the s572 notice.[35]
[35] It would be preferable if this Court did not determine the issue because the issue may need to be determined at a later time if disciplinary proceedings were taken by the Board consequent to the failure to comply with the requirement.
61Nevertheless the Board submits that a reasonable excuse has not at any time been provided by the appellant for the failure to comply with the s572 notice and that the term or defence of reasonable excuse 'more aptly refers to any physical or practical difficulties in complying with a requirement'.[36]
[36] Corporate Affairs Commission (NSW) v Yuill (1991) 172 CLR 319 per Dawson at [19]; Controlled Consultants Pty. Ltd. v Commissioner for Corporate Affairs (1985) 156 CLR 385 per Gibbs CJ, Mason and Dawson JJ at [16]; and Jovanovic v Australian Securities and Investment Commission [2001] TASSC 6 at [8].
62In any event, the appellant has refused to comply with the s572 notice in its entirety, but has not commenced proceedings to have the notice set aside. She did not identify which documents she asserts are subject to legal professional privilege, but rather adopted a blanket approach whereby she claimed that the entirety of the file was privileged.[37] She did not produce those documents which she considered relevant to the complaint even after becoming aware of ss518 and 648 of the Act. To this day, she has deliberately obfuscated and persists in her blatant refusal to comply with her statutory and common law obligations to assist in the investigation of the complaint.
[37] Such a view is plainly incorrect.
63There is no merit to ground 5.
Ground 6 :
His Honour's finding that the Order or Direction to suspend the appellant's Practising Certificate was valid was contrary to the evidence and the weight of the evidence as set forth in the attachments to the affidavit of the appellant reflecting the correspondence between the appellant and the Board Board.
64Geason J held at [37]-[38]:
[37] …The prerequisite for the valid exercise of such a power is a complaint (s570(c)); the valid appointment of an investigator (s442); commencement of an investigation into the complaint; the making of a requirement in the course of that investigation for production of specified documents (s572(1)(a)); service of the notice upon the practitioner (s572(1)), and non-compliance with that requirement (s572(3)).
[38] Each of those elements is demonstrated on the evidence. That evidence is contained in the affidavit of Mr Ederle sworn on 7 November 2017. There is evidence before the Court in the form of the applicant's refusal to comply with the requirement, upon which the Board could lawfully direct the prescribed authority to suspend the practitioner. Nothing more is required to engage that power. The applicant's contentions with respect to the Board's motivation in pursuing the investigation against her have no bearing on the matter.
65His Honour was correct to find that once each jurisdictional fact existed, the Board had power to validly direct the Prescribed Authority to suspend the appellant's practising certificate under s573(7). Whether the Board decided to do so or not was then a matter purely for the Board to determine. The sheer volume of written material sent to the Board by the appellant in relation to this and the complaint made by Mr Coates SC had no relevance to the Board's power to direct the suspension of the appellant's practising certificate.
66Importantly, when considering whether to direct the Prescribed Authority to suspend the appellant's practising certificate under s573(7) the Board was under no obligation to consider the merits of the complaint or whether the appellant might be found guilty of professional misconduct or unsatisfactory professional conduct. At that very early stage of the investigation its investigator needed to gather materials relevant to the complaint so that in due course the Board could consider what steps it should take in relation to the complaint under s450 or s451.
67Each of the elements of s573(7) identified by Geason J were established on the evidence. The fact that the appellant may have sent voluminous amounts of correspondence does not in any way undermine the fact that the Board established the jurisdictional facts necessary as preconditions to exercise the power that it exercised. The correspondence sent by the appellant, although it may physically be weighty, was irrelevant to the issue of the valid exercise of power by the Board.
68There is no merit to ground 6.
Ground 7 :
His Honour's finding that the s572 notice was valid was contrary to the evidence and the weight of the evidence as set forth in the attachments to the affidavit of the appellant reflecting the correspondence between the appellant and the Board Board.
69The Board's submissions regarding the validity of the s572 notice are dealt with elsewhere, however, the Board reiterates that the appellant did not commence proceedings to set aside the s572 notice and the investigator who issued it was not a party to the proceedings. The fact that the appellant may have sent voluminous correspondence to the Board does not address the question of the validity of s572 notice.
70The Board otherwise repeats its submissions in relation to ground 6.
71There is no merit to ground 7.
Ground 8 :
His Honour made an error of law in not requiring the Board to place evidence before the court that would justify a suspension of the appellant's Practising Certificate.
72This ground misapprehends the very fundamental nature of the adversarial system of litigation in Australia. It is for the parties to determine what evidence they will each adduce. In litigation of this nature it is not the role of the court to direct or require a party to adduce particular evidence.[38] If a party fails to adduce evidence that turns out to be critical to the case, that party will invariably lose the case.
[38] See: Whitehorn v. R (1983) 152 CLR 657 per Dawson J at 663 and 682; R v. Apostilides (1984) 154 CLR 563 at 576; Sharp v Rangott (2008) 167 FCR 225 at 239-240 [52]-[55].
73In any event, the Board did adduce evidence before the court to demonstrate that the suspension of the appellant's practising certificate was justified. That evidence was:
a that the Board had received a complaint under Chapter 4 of the Legal Profession Act;[39]
[39] AB 254, par2 of the affidavit of Frank Ederle sworn 7 November 2017; AB 261, exhibit FE-1; AB 293, exhibit FE-3.
b that Ms Warner had been appointed as an investigator under s440 of the Legal Profession Act;[40]
[40] AB 255; par8 of the affidavit of Frank Ederle sworn 7 November 2017; AB 329, exhibit FE-9.
c that Ms Warner had imposed on the appellant a requirement under s572(1) of the Legal Profession Act, in this case a notice to produce documents;[41] and
[41] AB 256, par16 of the affidavit of Frank Ederle sworn 7 November 2017; AB 395, exhibit FE-17; AB 398, exhibit FE-18.
d that the appellant had failed to comply with the requirement.[42]
[42] AB 257-258, par22, 25 and 28 of the affidavit of Frank Ederle sworn 7 November 2017. It was not disputed at trial that the appellant had not complied with the notice. See: AB 9, par4 of the affidavit sworn by the appellant on 6 November 2017.
74The only 'justification' that the Board required once the facts necessary for it to exercise jurisdiction under s573(7) were established was the appellant's ongoing refusal to comply with the obligation imposed on her by s572(3).
75The proceedings were not, and the appellant was not (and is not), entitled to merits review of the Board's decision. There was, therefore, no obligation on the Board to adduce evidence to 'justify' its decision. Either the decision was a lawful exercise of power, or it was not. Each of the jurisdictional facts that were a precondition to the lawful exercise of power by the Board were met, and, particularly pertinent to this case, the appellant's refusal to comply with the requirement imposed on her under s572(1) was blatant, unequivocal and absolute in its terms. To the extent that it might have been necessary for the Board to justify its decision, the appellant's deliberate defiance of the investigator's s572 notice, and consequent deliberate breach of the Legal Profession Act, clearly justified the Board's subsequent action.
76There is no merit to ground 8.
Ground 9 :
His Honour made an error of law in not requiring that the Board place evidence before the court establishing the factual prerequisites for the use of a compulsory production notice under s572 in the wide terms drafted or at all.
77The Board repeats its submissions in relation to ground 8 and also repeats that:
a the appellant's originating application did not seek to set aside the s572 notice;
b the s572 notice remains valid until it is set aside or quashed in proceedings brought in the original jurisdiction of the Court for that purpose; and
c a notice under s572 is issued by the investigator and not by the Board.
78In any event, there are very few 'factual prerequisites' to an investigator issuing a notice under s572. They are, relevant to this appeal, derived from the wording of s572(1):
a there must be a complaint investigation[43] in relation to an Australian lawyer;
[43] The term 'complaint investigation' is defined in s569(1) to mean 'an investigation of a complaint under Chapter 4'.
b it follows that there must be a complaint; and
c there must be an investigator.
79There is no doubt that a requirement under s572(1) can only be imposed for the purpose of carrying out a complaint investigation, which in turn limits the scope of such a notice to the scope of the complaint. In this case the complaint was broad and related to the appellant's conduct throughout the course of acting for Pauline Greer. The complaint related to the appellant's conduct:
a preparatory to and in relation to an application pursuant to s58 of the Coroners Act 1995;
b regarding the preparation of affidavits of Pauline Greer and Kacey White;
c as to investigations that the appellant did or did not do; and
d at the inquest itself.
80The fact that the appellant might have 'rebutted' (in her view) some or all of the allegations contained in the complaint did not deprive the Board of its capacity to investigate those aspects which the appellant considered that she had refuted. If anything, the appellant's 'rebuttal' of the complaint made it necessary to investigate those matters because the Board was then confronted with two differing versions of what had, or had not, occurred. The breadth of the complaint, which covered the entirety of the period that the appellant acted for her client, clearly necessitated the production of the entire file.
81There is no merit to ground 9.
Ground 10 :
His Honour made a mixed error of law and fact in failing to draw adverse inferences as to the Board's conduct arising from the Board's failure to adduce any evidence from the Board (given the failure of the Board to give reasons for its determinations) or from its Investigating Officer who caused the Notice under s 572 to issue.
82It is not understood what adverse inferences the appellant says should have been drawn against the Board, or what conduct by the Board the appellant says the court should have inferred the Board engaged in. Allegations of misfeasance by the Board were not raised before Geason J, and in any event the Board's CEO, Mr Ederle, swore two affidavits, but the appellant chose not to cross-examine him. If the appellant wished to put to Mr Ederle that the Board did not actually read any of the material that she sent the Board, or that the Board or Mr Ederle had otherwise engaged in some form of misconduct her counsel was required to put that to Mr Ederle when he had the opportunity to do so.
83It is quite unsatisfactory and inappropriate to now belatedly ask this Full Court to draw inferences amounting to serious misconduct against a statutory regulatory body in circumstances where the allegations were not put at trial and where counsel chose not to cross-examine the Board's witness.
84This Full Court should not entertain this ground for those reasons.
85For the reasons set out earlier in these submissions:
a there was no need for the investigator to give evidence or to explain her reasons for issuing the s572 notice; and
b the Board has not made any determinations regarding the complaint, and is under no obligation to provide reasons for the decisions that it has made in relation to the complaint thus far unless a request for a statement of reasons is made under the Judicial Review Act.
86There is no merit to ground 10."
Appellant's supplementary submissions
After the first listed hearing of the appeal was adjourned by this Court on 8 March 2018, the appellant filed supplementary submissions responding to a suggestion apparently made by Porter AJ that the appeal might be resolved by a straightforward application of statutory construction. The appellant prefaced these supplementary written submissions with the observation that all important to the argument is the Board's failure to follow the requirements imposed upon it by s 588 of the Legal Profession Act, a section of the Act not drawn to the attention of the learned primary judge. The supplementary submissions are as follow:
"1Chapters 4 and 6 of the Act deal with complaints and their investigation. Section 443 states that the investigatory powers in Chapter 6 apply to Chapter 4 complaint investigations. Redundantly s568(3) reminds everyone that the Chapter 6 powers are exercisable in dealing with complaints covered by Chapter 4. Greer's complaints - the ones that led to this litigation - are such Chapter 4 complaints.
2Both s572 (the issue of a notice by the Investigation Officer) and s573 (what is to be done when there is a failure to comply with such a notice) are in Chapter 6, as is the recognition of the legal practitioner's right to claim a 'reasonable excuse' to not comply in s586(3).
3The Investigation Officer [IO] specifically drew the Appellant's attention to 'reasonable excuse' in her correspondence of 29 September 2017 which attached her Notice (see s586) (see Folio 167 AB Vol 1, Tab 3, item 24).
4Absent such 'reasonable excuse' the practitioner's failure to comply with the notice can be professional misconduct per s586(4). It would also be 'a contravention of the Act' and so enliven an application by the Board under s645.
5For the purpose of this submission there is no need to address either the reasonableness of the notice or the reasonableness of the Appellant's reasons to refuse to comply with it. This is because, as will become apparent below, there was a failure by the Board Board to address statutory requirements such that the merits of both the notice and the refusal are irrelevant.
6As the IO required the Appellant to deliver up her client file by a specified date (16 October 2017) and the Appellant failed to do so, what then is the IO to do? As such failure can be professional misconduct [s586(4)], the IO must refer the matter to the Board [per the first part of s588]. Although there is no evidence that there was a written referral we may assume, given subsequent events, that the Board became aware that a Notice had been issued, that the due date had passed, and that no file had been produced to the IO.
7The outcome of these appeals is dictated by the Board's failure to comply or even to attempt to comply with its obligations under the second part of s588.
8That obligation is to consider whether the Appellant's refusal amounted to a 'contravention of the Act' and/or misconduct such that disciplinary action should be taken against her. In so doing it would, of course, have to turn its collective minds to at least a minuted assessment of the proffered 'reasonable excuse'. As a model of best practice (not only to the subject practitioner but also as the model litigant) it might even think it wise to set out its reasons. There is no evidence of either.
9For completeness we note:
(a)that it is the Board, not anyone else, who is charged with this assessment task;
(b)the text error in the first instance decision at para 21 [Folios 555-556 AB Vol 2, Tab 10]. It was the CEO, not the IO, who purported to make that dismissive evaluation of the 'reasonable excuse' some two weeks before the Board took its actions against the Appellant; and
(c)the evaluation of the evidence going to assess if there is misconduct and, if so, to what likely degree, is a matter for the Board. Given the possible consequences of such findings it is not a matter that could be left to employees.
10In case it should be argued that our pointing out the lacuna in the Board's conduct and its arguments in this litigation was not raised by us until now, we note that:
(a)we have repeatedly referred to the Board's failure to consider our 'reasonable excuse' and the impropriety of that: see the transcript at first instance (at Folios 508, 513, 516, 518-519, and 531 of AB Vol 2, Tab 9) and in our submissions of 21 February (at paras50-59). The statement by the Board in its submissions of 2 March 2018 (at para28(b)) that we had not argued before Geason J that the Board failed to even consider the Appellant's claimed excuse for not complying with the s572 notice is incorrect;
(b)we have previously raised the failure to satisfy s573(6) in our submissions dated 21 February (at paras11, 60, 99 and 127); and
(c)all that is new is that we have identified the non-application of a statutory requirement that substantiates the correctness of our assertions and leaves the Board Board with a fundamental flaw in its case.
11That flaw is the Board's failure to comply with the legislative requirement upon it to make its assessment of the level of seriousness of a practitioner's actions prior to initiating actions that reflect that assessment (such actions including suspension, application to the Supreme Court for an injunction [s645], and referral to an appropriate determination forum).
12The correctness of our approach can be seen from the parallel relationships between ss588, 445 and 446 on the one part, and ss588, 573(6) and 573(7) on the other. We turn to those relationships.
13Section 445 places a requirement upon the Board to consider – as appropriate – during an investigation – whether the content of a complaint can be misconduct such that the Board should refer the matter to either the Tribunal or the Supreme Court. Such consideration would likely follow a report of some kind from the IO.
14Having turned its collective minds to an evaluation of the seeming seriousness of the practitioner's conduct and the appropriate disciplinary consequences, the Board can and should turn its attention to whether the tests in s446 are made out such that the practitioner's suspension should follow. Those tests look to the strength of the evidence and the public interest. There is nothing exceptional in such tests: they reflect both common sense and 'fairness'.
15Likewise there is nothing exceptional in s446 giving the affected practitioner an express right of appeal against that suspension, given that the hearings of the disciplinary matters may be delayed, the evidence may not be strong as the Board asserts, or that there may be countervailing public interests.
16Turning back now to s588, the Board's consideration in the matters before the Full Court has been activated not by the content of the complaint but by the interruption of the IO's investigation of that content. The Board consideration goes to the efficacy of the complaint handling process. It must assess whether the practitioner's failure to comply is, of itself, a matter of unsatisfactory professional conduct or professional misconduct.
17If and only if the Board carries out that consideration is it then able to satisfy either or both of: (1) the s573(6) requirement antecedent to suspension that the failure to comply is 'capable of being unsatisfactory professional conduct or professional misconduct', or (2) the s645 requirement of a contravention of the Act.
18To set up a proper basis for an injunction pursuant to s645 the Board per subsections 1(a) or 1(b) must show that the Appellant's reasons for refusal to deliver up the file are baseless so that her refusal constitutes either a contravention or attempted contravention of the Act. As the Board has never considered her proffered 'reasonable excuse' per s588 they are unable to satisfy those s645 requirements.
19His Honour Justice Geason at para44 stated 'The course it [the Board] took was no doubt influenced by its view that the reasons advanced by the applicant lacked merit' (emphasis added). However, that assessment cannot be accepted as there was (and is) no evidence of the Board's consideration of the 'reasonable excuse'.
20Not only is there is no evidence of any Board consideration of the Appellant's submissions, there is evidence of an active refusal by them to undertake such a consideration. That is the return of the Appellant's correspondence to the Board and their failure to give her an opportunity to speak or to ask her questions when she attended the 30 October 2017 public Board meeting at which they then went on to direct her suspension (See affidavit of Appellant at Folio 10 of AB Vol 1, Tab 3 and Folios 203-223 AB Vol 1, Tab 3, Items 34 and 35).
21Any suspension, be it related to an assessment of a complaint subject matter or to ensuring investigation efficacy, must be grounded in a proper consideration by the Board of evidence. That is clear from the parallel nature of the relevant sections: 588 followed by 445 and 446 in content cases, 588 followed by 573(6) and then 573(7) in 'investigation efficacy' cases. In like manner it is also necessary to establish a 'contravention of the Act' to ground a s645 application.
22If any further justification for this approach is required let it be found in the recognition of basic 'fairness': that the response must be proportionate to the objective need.
23In the matters now before the Full Court the Appellant has repeatedly pointed out that she has not been 'charged' with any disciplinary matters, nor have any adverse findings been made against her. Section 588 has been hiding in plain sight – but most especially in sight of the Board that is charged with its implementation.
24That Board has failed to comply with steps that are straightforward and reasonable. In this court it has been argued on their behalf that Parliament intended some 'severe' or 'some might say draconian' response as justification for an arbitrary application of s 573(7). The Board's submissions of 2 March 2018 at para33 state that the powers under Pt6.2 (including s573(7)) may be viewed as 'extreme'. That argument, for the above reasons, is incorrect. The powers, when they follow proper process, are acceptable.
25That Parliament did not have the intention attributed to it by the Board is evident from the second reading speeches in both Houses and the record of the Committee discussions. In the Assembly record for Thursday 5 July 2007 there is no discussion of, or reference to, the provisions with which this litigation is concerned. In the Legislative Council, Mr Parkinson, speaking about Chapter 4, said 'The Supreme Court retains its inherent role in regulating practitioners by having the power to discipline legal practitioners and lawyers. Sanctions and the rights afforded to complainants and practitioners have been harmonised across jurisdictions with the adoption of model provisions in this chapter. In particularly bad cases there is provision for the immediate suspension of a practising certificate if circumstances warrant this course to protect the public' (Hansard for Thursday 12 July 2007). No comment is made about Chapter 6 either during that speech or in committee.
26It is the Board's failure to follow proper process, as dictated by s588, that leads to such incorrect claims as that the basis for the suspension was 'self-evident' (Board's submissions of 2 March 2018 at para38) and that 'It was because of the appellant's refusal to comply with the requirements imposed on her by the s572 notice' (see also paras39 & 42). All that there has ever been is the Board resolution of 30 October 2017 found at Folio 424 AB Vol 2, Tab 5. That is a resolution that is not evidence-based.
27It follows from these submissions that His Honour Justice Geason erred in law at first instance when he described the 'Scheme of the Act' at paras26 to 29. His Honour made no reference to the requirement under s588 of the Act. [It is acknowledged for the purposes of this and following paragraphs that neither party drew his attention to s. 588.]
28Similarly at paras37-38 His Honour erred at law when outlining the prerequisites for the valid exercise of the power contained in s573(7) of the Act. He also failed to identify any 'threshold requirement' to the section at para45. The Board's submissions at paras64-68 and 73-75 of their 2 March 2018 submissions, for the reasons outlined, are incorrect.
29His Honour also erred at law at para39 when he stated that the power conferred upon the Board by s573(7) was not predicated upon a preliminary determination and that the suspension related solely to, and was imposed in consequence of, the Appellant's failure to comply with the Notice.
30His Honour stated that the power should not be 'diluted' through the imposition of additional requirements not articulated 'within the provision conferring the power'. His Honour failed to consider the requirements of s588. He also failed to note the parallel approaches for evaluating complaint substance on the one part and investigative efficacy on the other. No doubt that explains the lack of attention to the prerequisite s573(6).
31The Board's failure to abide by its statutory obligations has imposed upon the Appellant (who did no more than point out to them her detailed evaluation of the basic flaws in their investigation methodology) months of damage to her livelihood [not a 'hobby'], her reputation and her wellbeing.
32The Appellant submits that the above analysis is sufficient to have both appeals determined in her favour. If, however, this submission is rejected then she continues to press the submissions filed earlier. Please note that if the above submissions are accepted then Ground of Appeal #2 (covering the application of s 446) is not pressed."
Discussion
I reject the appellant's supplementary submissions. Section 588 adds nothing to the equation. It provides as follows, under Pt 6.5 of the Act headed Investigations Miscellaneous:
"588 Report to Board of disciplinary matters
If an investigator becomes aware of any matter in the course of a trust account investigation, trust account examination, complaint investigation or ILP compliance audit that the investigator thinks may constitute unsatisfactory professional conduct or professional misconduct on the part of an Australian legal practitioner or Australian-registered foreign lawyer, the investigator must, unless the matter is or has already been the subject of a complaint under Chapter 4, refer the matter to the Board to consider whether disciplinary action should be taken against the Australian legal practitioner or Australian-registered foreign lawyer."
The section is, as submitted by the Board in its further written submissions, a stand-alone provision which imposes an obligation on an investigator and not on the Board. Moreover, I am of the view that it relates to the discovery, during the course of the investigation of a complaint, of a matter that may constitute unsatisfactory professional conduct or professional misconduct other than a matter which is the subject of the investigation or directly connected only to the investigative process in that matter. The section does not have any textual or contextual bearing on the potential statutory consequences of a failure to comply with a notice issued in the course of the subject investigation, as required by s 572(3) of the Act.
As the learned primary judge pointed out the provisions of Pt 6.2 of the Act, headed Requirements Relating to Documents, Information and Other Assistance, provide a powerful aid to the conduct of an investigation and are fundamental to the investigative process. Section 588 is irrelevant to that process unless a further matter of potentially unsatisfactory professional conduct or professional misconduct is discovered during the course of it. A refusal to provide documents the subject of a notice under s 572 is not such a relevant discovered matter. It would be absurdly circular to construe s 588 in the manner contended for by the appellant.
I agree with the learned primary judge that for the purposes of the exercise of the power contained in s 573(7) of the Act, the prerequisites for the valid exercise of such a power are; a complaint (s 570(c)); the valid appointment of an investigator (s 442); the commencement of an investigation into the complaint and the making of a requirement in the course of that investigation for production of specified documents (s 572(1)(a)); service of the notice upon the practitioner (s 572(1)); and non-compliance with that requirement (s 572(3)). And, as his Honour noted, each of those elements was demonstrated on the evidence in the present case. No consideration of s 586 (3) arises in this context. As counsel for the respondent point out, s 586 is expressly "additional to" ss 572 and 573. It does not confine or limit the operation of those provisions. The purpose and effect of s 586(4) is to deem conduct falling within ss (2) or (3) to be professional misconduct. Its effect is not to allow a legal practitioner to choose not to comply with a requirement under s 572 because he or she considers that they have a reasonable excuse for not complying. While, no doubt, the respondent may, the section imposes no obligation on the respondent to consider and evaluate such claims by a practitioner. If that is perceived as draconian it is a matter for the legislature.
As already noted, compliance with a notice in the context of an investigation is fundamental to the investigative process. The Act does not impose a requirement that the Board must be satisfied that there is a risk to clients or to the public generally, or to the administration of justice, as a prerequisite to the making of a direction under s 573. Other options may have been open to the Board but the Board's decision to take the pathway of directing the suspension of the appellant was a matter for its own judgment.
Prior to the receipt of the appellant's written submissions, but upon a consideration of the notice of appeal and the learned primary judge's reasons for judgment, it seemed to me that his Honour's reasoning was unimpeachable. Having read and carefully considered the appellant's written outline and supplementary submissions, and having heard and considered the appellant's oral argument, I remain of that view.
As to each of the 10 grounds of the notice of appeal, I accept the written submissions of the Board, as set out above, and reject the corresponding submissions of the appellant. I am grateful to Mr Gunson SC and Ms Sawyer for the preparation of such a detailed and comprehensive written outline of submissions. I have set them out in full in relation to each of the 10 grounds of appeal because I formally adopt them as my reasons for concluding that there is no merit in any of those grounds. I see no point in epitomising those submissions and little prospect of improving upon their articulation. Each ground fails, in my view, for the reasons set out above.
In some prefatory observations in the reasons of the learned primary judge, his Honour noted that the Board had submitted that the form of the appellant's application did not address her apparent grievance, namely the suspension of her practising certificate, because even if the direction given by the Board was declared to be void or voidable, that did not directly compel the Law Society to reinstate the appellant's practising certificate. Further, it was submitted that the proposed order sought under s 26 of the Judicial Review Act 2000, seeking a stay of the Board's direction, would not cure the suspension already imposed. However, his Honour noted that in view of the conclusion that he had reached it was not necessary to determine these issues.
In the opening sections of the Board's written outline it was submitted as follows (footnotes omitted):
"13What the appellant should have done at first instance is to seek review under either the Judicial Review Act 2000 or Pt26 of the Supreme Court Rules 2000 in relation to:
a the decision of the investigator to issue the s572 notice;
b the decision of the Board to direct the Prescribed Authority to suspend the appellant's practising certificate; and
c the decision of the Prescribed Authority to suspend the appellant's practising certificate.
14Had the appellant followed orthodox procedure, the grounds upon which she alleged that the decisions of the investigator, the Board and the Prescribed Authority should be set aside (or other relief granted) would have needed to be specified. That would have required the appellant to properly articulate her case, and in turn would have guided the admissibility of evidence and assisted the court and parties in determining what evidence was relevant by reference to pleaded or particularised grounds. Regrettably, the appellant did not adopt such a procedure.
15Procedural difficulties with the appellant's case at first instance were raised by the Board. On whatever view of the appellant's originating application, she purported to invoke some form of judicial review. That does not entitle her to merits review. Her submissions largely seek merits review of the Board's decision and are largely a repetition of her submissions at first instance, but, impermissibly, with the incorporation of matters not raised or argued below."
The Board also submitted in its written outline that the appellant should not be permitted to "pervert" the appellate jurisdiction of this Court by seeking orders on appeal which should have properly been sought at first instance, and with all necessary parties properly joined, which would include the Prescribed Authority and the investigator who issued the s 572 notice. (For the sake of completeness it is noted that this Court, differently constituted, made an order that the notice of appeal be served on the Law Society of Tasmania, enabling the Court to give any judgment and make any order that might have been made if the Law Society had been a party from the outset; Supreme Court Rules 2000, r 672(2)).
The orders sought by the appellant are as follow:
"1The Order or Direction from the Board on 30 October 2017 directing the Prescribed Authority to suspend the appellant's Practising Certificate is stayed pending the handing down of judgment by the Full Court;
2The Order or Direction from the Board directing the Prescribed Authority to suspend the appellant's Practising Certificate is set aside;
3Upon the evidence before the Court it is declared that there is no legal basis upon which a suspension of the appellant's Practising Certificate is presently justified;
4The Notice from the Board dated 29 September 2017 directing the appellant to deliver up the 'GREER FILE' is set aside;
5Upon the evidence before the Court it is declared that there is no legal basis upon which a notice under section 572 of the Legal Profession Act 2007 directing the appellant to deliver up the 'GREER FILE' is presently justified;
6Costs; and
7Such other Order as the Court deems meet."
The Board contends that, not having been sought at first instance, the orders now sought are all matters that are within the original jurisdiction of the Court and, because of s 16(1) of the Supreme Court Civil Procedure Act, they are required to be determined by a single judge in proceedings brought within the original jurisdiction of the Court. The argument runs that this Court does not have jurisdiction to grant the relief now sought by the notice of appeal, and that on appeal the appellant is confined to a rehearing of the amended originating application filed by her that was before the learned primary judge, and a rehearing of the originating application filed by the Board.
In its written outline the Board develops the following contentions as to the orders sought by the appellant as follows (footnotes omitted):
"18An appeal is not a common law procedure, but is a creature of statute. In Tasmania, the Charter of Justice only provided for appeals to the Privy Council. Appeals from a single judge at first instance are now regulated by the Supreme Court Civil Procedure Act 1932, PtV. There is no inherent appellate jurisdiction of the Court and the Court cannot assume an appellant role that is not conferred on it by statute. The jurisdiction of a Full Court to hear and determine appeals exists because of s40 of the Supreme Court Civil Procedure Act. Section 15(1) of the Supreme Court Civil Procedure Act sets out the categories of causes and matters that are to be brought before a Full Court, and s16 provides that all other matters are to be heard and determined by a single judge. It is important to distinguish between the appellate jurisdiction of the Court and the original jurisdiction, because as will become apparent, the appellant seeks to have this Full Court exercise the original jurisdiction, but in appellate proceedings. It is submitted that she is not permitted to do so.
19An appeal to a Full Court is to be conducted by way of rehearing. The appellant must establish error. It is to be distinguished from a hearing de novo. The differences between an appeal by way of rehearing and a hearing de novo was explained by Gaudron, McHugh, Gummow and Hayne JJ in Allesch v Maunz where their Honours said:
… in the former case, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error, whereas, in the latter case, those powers may be exercised regardless of error.
20The appellant's approach to this appeal is as if it is treated as a hearing de novo and it is not necessary to establish error. The appellant's approach is wrong."
Because of the view I have reached as to the correctness of the learned primary judge's findings and orders it is unnecessary for me to consider those submissions made by the Board and I do no more than observe that the course suggested by the Board as being open to the appellant, namely proceedings against the Board and the Law Society under the Judicial Review Act, would indeed have been and may still be an appropriate method of seeking the relief the appellant desired.
Disposition
The appeal should be dismissed.
File No 13/2018
BARBARA ETTER v LEGAL PROFESSION BOARD OF TASMANIA
REASONS FOR JUDGMENT FULL COURT
MARSHALL AJ
9 July 2018
I have had the advantage of reading the reasons for judgment of Estcourt J in draft form. I agree with his Honour's reasons and the order he proposes. I also agree with the matters addressed by Wood J at [2] of her reasons for judgment.
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