Fittock v Legal Profession Conduct Commissioner
[2017] SASC 113
•31 July 2017
SUPREME COURT OF SOUTH AUSTRALIA
(Miscellaneous Appeal: Civil)
FITTOCK v LEGAL PROFESSION CONDUCT COMMISSIONER
[2017] SASC 113
Judgment of The Honourable Justice Vanstone
31 July 2017
PROFESSIONS AND TRADES - LAWYERS - COMPLAINTS AND DISCIPLINE - DISCIPLINARY PROCEEDINGS - SOUTH AUSTRALIA - PROCEEDINGS IN TRIBUNALS
LIMITATION OF ACTIONS - EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS - OTHER CAUSES OF ACTION AND MATTERS
Appeal against decision of the Legal Practitioners Disciplinary Tribunal extending time within which the Legal Profession Conduct Commissioner might lay a charge against the appellant.
Where application for an extension of time was made after substantial amendments to the Legal Practitioners Act 1981 (SA) came into force. Where the proposed charge were filed simultaneously with the extension application and endorsed as ‘laid subject to an order being made pursuant to s 82(2a)’. Where, by consent, extension application heard by the Tribunal constituted of one member.
Whether the Tribunal was properly constituted to hear the application and if so, whether the order extending time was a valid and effective exercise of jurisdiction. Further, whether the exercise of discretion proceeded on a correct basis, having regard to its nature.
Held: Appeal allowed. Because jurisdiction to proceed on that charge could only be conferred if the extension were granted, it was not a ‘procedural or interlocutory matter’ within the meaning of s 80(1b): [18]. An assessment of such an application requires an assessment of the merits of the prospects of the prosecution succeeding: [26]. Order granting extension of time set aside.
Legal Practitioners Act 1981 (SA) s 77J, s 77K, s 80, s 82, referred to.
Legal Profession Conduct Commissioner v Richardson (2016) 125 SASR 152; Jackamarra v Krakouer (1998) 195 CLR 516; Ulowski v Miller [1968] SASR 277; Keung v Abbott [2017] SASCFC 58; Finemores (No 3) v Evans [1998] SASC 6820; Hardell v Burrell (2009) 103 SASR 408; Richardson v Legal Profession Conduct Commissioner [2017] SASC 30, considered.
FITTOCK v LEGAL PROFESSION CONDUCT COMMISSIONER
[2017] SASC 113Miscellaneous Appeal
VANSTONE J: Laurence John Fittock appeals against the decision of Ms M Pyke QC, the presiding member of the Legal Practitioners Disciplinary Tribunal to extend the time within which the Legal Profession Conduct Commissioner might lay a charge against him. The main argument presented is that the Tribunal, consisting only of one member, was not properly constituted and so the order extending time was neither a valid nor effective exercise of jurisdiction. It is further argued that the exercise of discretion to extend time proceeded on an incorrect basis, that is, as if the issue were merely a procedural one.
For the reasons which follow the appeal succeeds. The application will be remitted to the Tribunal for rehearing.
Background
The application for an extension of time was made on 15 September 2014 pursuant to s 82(2a) of the Legal Practitioners Act 1981 (SA) (‘the Act’) which both sets a time limit within which the charges may be laid (three years) and empowers the Tribunal to allow an extension of time. Along with the application for an extension, the Commissioner filed the proposed charge against the appellant. The charge document was endorsed within the Registry as being ‘laid subject to an order being made pursuant to s 82(2a)’ of the Act.
Under s 80 of the Act, but subject to exceptions, the Tribunal consists of a panel of three members. Under s 80(1b) it may consist of one member chosen by the presiding member if it is to deal with a ‘procedural or interlocutory matter’. It is plain that the Commissioner’s application was seen as being a procedural or interlocutory one, because, on 10 December 2014 the presiding member chose herself to constitute the Tribunal to hear the Commissioner’s application. The parties consented to that course.
Following three directions hearings the application was argued before the Tribunal on 23 March 2015. On 9 January 2017 the presiding member delivered reasons for making an order extending the time within which the charges might be laid, to 15 September 2014.
The appellant attacks that order on several bases. He argues that, notwithstanding his earlier acquiescence to the procedure followed, the Tribunal should have consisted of a panel of three and, as constituted, had no power to make the order. He submits that the Tribunal has no power to make retrospective orders. In any event, he puts that the exercise of discretion by the presiding member miscarried.
It is convenient to set out parts of the sections of the Act upon which the appellant’s arguments rest. The relevant sections are 80 and 82 of the Act. These were altered by substantial amendments which came into force on 1 July 2014. In Legal Profession Conduct Commissioner v Richardson (2016) 125 SASR 152 the Full Court declared that the amended Act applies both to the commencement and prosecution of charges in the Tribunal whenever the conduct occurred: [25].
Sections 80 and 82 are found within Part 6, Division 3 of the Act. Section 80 is headed ‘Constitution and proceedings of Tribunal’. It relevantly provides:
(1)Subject to subsection (1a), in relation to proceedings instituted before the Tribunal alleging professional misconduct by a legal practitioner, the Tribunal consists of a panel of three of its members chosen by the presiding member to constitute the Tribunal for the purposes of those proceedings (one of whom may be the presiding member).
(1a)[applies to charges alleging conduct of a less serious nature, and need not be reproduced]
(1b)Despite subsections (1) and (1a), the Tribunal may, for the purposes of dealing with a procedural or interlocutory matter, consist of 1 of its members chosen by the presiding member to constitute the Tribunal or be otherwise constituted as determined by the presiding member.
(1c)-(5)[not relevant]
Section 82 contains the following relevant provisions:
(1)Subject to this section, a charge may be laid under this section alleging unsatisfactory professional conduct or professional misconduct—
(a) on the part of any legal practitioner; or
(b) on the part of any former legal practitioner who was at the time of the alleged unsatisfactory professional conduct or professional misconduct a legal practitioner.
(1a)[not relevant]
(2)A charge may be laid under this section by—
(a) the Attorney-General; or
(b) the Commissioner; or
(c) the Society; or
(d) a person claiming to be aggrieved by reason of the alleged unsatisfactory professional conduct or professional misconduct.
(2a)A charge relating to conduct by a legal practitioner must be laid before the Tribunal within 3 years of the conduct unless—
(a) the charge is laid by the Attorney General; or
(b) the Tribunal allows an extension of time.
(2c)[not relevant]
(3)[not relevant]
(4)Where a charge has been laid under this section, the Tribunal must, subject to subsection (5), inquire into the conduct of the legal practitioner or former legal practitioner to whom the charge relates.
(5)[not relevant]
Arguments on appeal
The argument for the appellant was presented by Mr J Wells QC, who did not appear before the presiding member.
Referring to the wording of s 80(1), Mr Wells argues that the application for an extension of time is itself ‘proceedings instituted before the Tribunal alleging [unprofessional conduct] by a legal practitioner’. The extension application is not merely a procedural or interlocutory step in proceedings. In the context of this legislation it is substantive and constitutive of jurisdiction. Mr Wells referred to Jackamarra v Krakouer (1998) 195 CLR 516 in support of that argument. He submits that the nature of the power to extend time under s 82(2a) does not lend itself to the description of ‘a procedural or interlocutory matter’. Section 80(1b) has no operation independently of a proceeding instituted before the Tribunal pursuant to either s 80(1) or 80(1a). It operates as an exception to the requirement that in proceedings under either of those subsections a panel of three members must sit.
Mr Wells further argues that an extension of time application properly answers the description of proceedings ‘instituted before the Tribunal alleging [unprofessional conduct] by a legal practitioner’. The wider context of Part 6 of the Act demonstrates that the word ‘proceedings’ does not refer exclusively to a charge. At the time it was filed (and still) the extension application was the only proceeding before the Tribunal. The charge, although filed, was not laid in accordance with s 82 and in particular s 82(2a). A charge laid under s 82 is a necessary precondition to the existence of jurisdiction to enquire into that conduct: s 82(4). Nor is there power to make a retrospective extension order – an order nunc pro tunc – such as a court of record inherently has.
Mr Wells also argues that the Tribunal’s discretion miscarried. He puts that the presiding member’s reference to the ‘calculus’ derived from Ulowski v Miller [1968] SASR 277 is misplaced, as that is relevant to extending time only for procedural steps in existing proceedings. The calculus is a shorthand method of referring to five factors said to be relevant to such extensions of time, namely the length of the delay, the explanation for it, the hardship to the plaintiff if the action is dismissed, the prejudice to the defendant if it is allowed to proceed and the conduct of the defendant in the litigation. Mr Wells submits that in restricting herself to a consideration of those factors, the Tribunal member placed insufficient weight on the constitutive nature of the application. Again, reference is made to Jackamarra, at 520. The legislative judgment was that the public interest required the charges to be laid within three years. The statutory time limit should have been the central focus in relation to the exercise of the discretion to extend time. The question to be determined was whether there was justification to depart from the legislative framework, not whether the delay was explicable. And, at the three year point, consideration should focus, not on the public interest, but on the individual case. Importantly, the merits of the application should have been, and were not, weighed.
Mr S Cole, for the respondent, argues that this was not a dispute as to jurisdiction, but rather concerned the application of the Act and the procedures to be applied. He puts that the parties’ clear acquiescence to the proposal that the presiding member sit alone to determine the application justified that course. In relation to the suggestion that an application for an extension of time should be made and dealt with before any charge was laid, Mr Cole noted that the Act made no provision for such a separate application. He contrasted that situation to provisions such as s 77J(7), s 77K and s 82 itself which give the rights to apply, to appeal, and to lay charges, respectively. Mr Cole referred to the ‘persuasive comment’ by Blue J in Legal Profession Conduct Commissioner v Richardson (2016) 125 SASR 152 at [17]. There, speaking for the Full Court, Blue J said:
The amendment effected two changes. First, it reduced the time limitation from five years to three years. Second, it transferred the function of allowing a charge to be laid outside the time limitation from the Attorney-General, normally to be exercised before laying the charge, to the Tribunal, to be exercised after laying the charge.
Mr Cole also referred to [25] of that decision, where Blue J said that the amending Act ‘changed the timing of the extension decision from being before laying of the charge to after laying of the charge’. He argues that this provides strong support for the submission that the Tribunal could make an order extending time which operates retrospectively to the date when the charge was laid. He also referred to the judgment of Kelly J in Keung v Abbott [2017] SASCFC 58 at [65]-[66]; but it seems to me that this reference does not advance his argument, as this issue is not addressed.
Mr Cole argues that an application for an extension of time is both procedural and interlocutory. He puts that under s 80(1b) the presiding member of the Tribunal therefore had a discretion to determine that the Tribunal be constituted of a single member to deal with such a matter. He referred to Finemores (No 3) v Evans [1998] SASC 6820 at [13] arguing that characterisation as interlocutory might depend on the nature of the resulting order. In Finemores Lander J considered the Limitations of Actions Act 1936 (SA) which required a claim for damages for personal injuries to be brought within three years. Lander J referred to long-standing High Court authority and described an order extending time as a procedural step in the proceedings. Mr Cole argues that, although there are differences between the Act and the relevant Limitations Act provisions, the Act effectively picks up what is a well‑established practice under the Limitations Act to issue proceedings and, at the same time, endorse the process with a statement that an extension of time is sought. Mr Cole also referred to statements of Kourakis CJ in Hardell v Burrell (2009) 103 SASR 408.
In relation to the exercise of discretion of the presiding member, Mr Cole relies on the decision of Stanley J, sitting as a single Judge, in Richardson v Legal Profession Conduct Commissioner [2017] SASC 30, applying the Ulowski v Miller calculus. He submits that the presiding member proceeded in a manner consistent with Stanley J’s decision. He argues that the merits had been considered and there was evidence of that consideration in the reasons of the presiding member, when she said:
It was submitted that the case involves dishonesty in dealing with a third party. The public expects such conduct to be dealt with in a manner which properly reflects the seriousness of the charge. The public interest supports the charge being laid.
At the very least, Mr Cole submits the Tribunal had material before it, upon which it could consider the merits.
Consideration
The laying of a charge ‘under this section’ (s 82) gives rise to the Tribunal’s obligation to enquire under s 82(4). It is a jurisdictional fact. Here, it is acknowledged that the charge was not ‘laid under this section’. As the endorsement on it indicated, it was subject to an order being made pursuant to s 82(2a)(b). The laying of a charge in that form together with the application for an extension of time was sufficient, in my view, to give the Tribunal jurisdiction first, to consider whether the charge was laid ‘under this section’ and second, to hear the application for an extension.
Because jurisdiction to proceed on that charge could only be conferred if an extension of time were granted, this was not ‘a procedural or interlocutory matter’ within the meaning of s 80(1b) and a tribunal consisting of three members should have been constituted to hear it. That the parties acquiesced in the presiding member sitting alone to hear it is not to the point.
This is a sufficient basis on which to allow the appeal. However, I shall go on to express an opinion about some further parts of Mr Wells’ argument.
I am not persuaded that the Commissioner was required to seek an extension of time before filing the charge, or that having obtained one he would need to file the charge again. There is no machinery in the Act to facilitate such an application, or to give the Tribunal power to entertain it in the absence of a charge being filed.
Whether the Tribunal has been given power to make an order enlarging time nunc pro tunc is a matter of interpretation of the provisions of the Act. It may be accepted that a tribunal does not inherently possess such a power, but the Parliament might have chosen to give it that power.
My earlier conclusion that the Act does not provide for a stand alone extension of time application is a basis for implying a power to make an order that any extension of time given is to operate on the charge as filed. In addition, the text of the provisions does not clearly imply that an extension of time application must be made before any charge is filed. Without a charge being filed there may be a question whether the Tribunal has jurisdiction to hear an application for an extension of time.
There is support for the view that both may be filed together in the statements of Blue J speaking for the Full Court in Richardson, although I acknowledge Mr Wells’ point that those statements do not form part of the ratio decidendi of the decision and that issue was not addressed in argument in the hearing of that matter. Nonetheless, those statements are persuasive.
I turn to the complaint that the presiding member’s discretion miscarried. In Jackamarra, Brennan CJ and McHugh J at 519-521 observed that there is a distinction between an application to extend time for instituting proceedings, as against an application to extend the time within which a procedural step may be taken. Kirby J, at 540, referred to the same distinction. One aspect of that distinction is that where an application of a procedural nature is in issue, no consideration of the merits of the wider proceedings is required.
I accept the appellant’s argument that what was in issue here was an application which was substantive as opposed to procedural. The appellant had the benefit of a time bar. Under s 82(2a) any charge that was to be laid against him had to be laid within three years. It had not been. What was left to the Commissioner was to apply for an extension of time under s 82(2a)(b). A charge could not be laid within the meaning of s 82 without an extension of time.
Accordingly, in terms of the breadth of factors to be considered when assessing the application for an extension of time, a consideration of the merits was required. That view is consistent with the approach taken by the Full Court in Keung v Abbott. It appears from what I was told that the Tribunal member did not have before her sufficient material on which to assess whether the charge had reasonable prospects of succeeding. I do not mean to imply that such a test would be the appropriate one; merely that what was before the presiding member was not sufficient to make any assessment at all. Mr Wells sought to put further material before me in relation to that matter. That material should be placed before the Tribunal when it sits to reconsider the Commissioner’s application. There is force in Mr Wells’ argument that the Ulowski calculus has only limited relevance in weighing an application of this nature. However, it is unnecessary for me to deal with Mr Wells’ criticisms of the decision of Stanley J in Richardson.
Conclusion
For the foregoing reasons I consider that the appeal must succeed. The order granting an extension of time within which to lay a charge is set aside and the application is remitted to the Tribunal for fresh consideration.