Fittock v Legal Profession Conduct Commissioner - [2015] SASC 175

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
FITTOCK v LEGAL PROFESSION CONDUCT COMMISSIONER
[2015] SASC 175
Judgment of The Honourable Justice Sulan
30 October 2015
PROFESSIONS AND TRADES - LAWYERS - COMPLAINTS AND DISCIPLINE - PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT - GENERALLY
PROFESSIONS AND TRADES - LAWYERS - COMPLAINTS AND DISCIPLINE - DISCIPLINARY PROCEEDINGS - SOUTH AUSTRALIA
This matter arises out of the appeal against a finding of unprofessional conduct by the Legal Practitioners Disciplinary Tribunal against the appellant, Laurence John Fittock.
Fittock v LPCC was initially heard before Sulan J sitting as a single Judge. After the hearing, it was considered that an appeal from the Tribunal should properly be heard by the Full Court, pursuant to r 366(1)(d) of the Supreme Court Civil Rules 2006 (SA).
Held:
1. This appeal from the Legal Practitioners Disciplinary Tribunal is to be determined by the Full Court.
2. The appeal has been referred to the Full Court of the Supreme Court.
Supreme Court Act 1935 (SA) s 48, s 48(2)(vi); Supreme Court Civil Rules 2006 (SA) r 10, r 16, r 117, r 361, r 366, r 366(1)(d), r 407, Part 9; Legal Practitioners Act 1981 (SA), referred to.
Harrington & Ors v Coote & Anor (No 2) [2012] SASC 206; Law Society of South Australia v Scott Malcolm Trueman [2000] SASC 359, distinguished.

FITTOCK v LEGAL PROFESSION CONDUCT COMMISSIONER
[2015] SASC 175
Magistrates Appeal: Civil

SULAN J: This matter arises out of the appeal against a finding of unprofessional conduct by the Legal Practitioners Disciplinary Tribunal against Laurence John Fittock.
The matter was initially heard before me sitting as a single Judge. Subsequent to hearing full argument, I considered that s 48 of the Supreme Court Act 1935 (SA) (“the Act”) and r 366(1)(d) of the Supreme Court Civil Rules 2006 (SA) (“the Rules”) required appeals against a final decision of the Tribunal to be heard by the Full Court.
Section 48 of the Act relevantly provides:
48—Jurisdiction of Full Court, single judge and master
(1)     Subject to any express enactment, and to the rules of court, the jurisdiction vested in, or exercisable by the court, shall be exercisable either by the Full Court or by a single judge sitting in court.
(2)     However—
(a)    the Full Court shall hear and determine—
…
(vi)all causes and matters which are required by the rules of court, or by the express provision of any other Act, to be heard or determined by the Full Court;
Rule 366(1)(d) provides:
366—Constitution and powers of the Court
(1) The jurisdiction of the Court to hear and determine—
…
(d) an appeal against a final decision of the Tribunal under Part 9,
is to be exercised by the Full Court.
Part 9 appeals include “appeals against decisions of the Tribunal under the Act”.[1] Rule 361 defines “Tribunal” as the Legal Practitioners Disciplinary Tribunal and “Act” as the Legal Practitioners Act 1981 (SA). I formed a preliminary view that this is an appeal to which r 366(1)(d) applies. I invited submissions from the parties on this issue.
[1] Supreme Court Civil Rules 2006 (SA) r 407.
Appellant’s submissions
Counsel for the appellant submitted that s 48 does not confer jurisdiction on the Court, but identifies the manner in which the Court may be constituted when exercising jurisdiction otherwise vested in or exercisable by it.[2]
[2] Harrington & Ors v Coote & Anor (No 2) [2012] SASC 206.
In Law Society of South Australia v Scott Malcolm Trueman, Lander J observed:[3]
The Act does not include any definition of Supreme Court and specifically, it does not defend the Supreme Court to be the Full Court of the Supreme Court. Section 48 of the Supreme Court Act 1935 provides:
“Subject to any express enactment, and to the rules of court, the jurisdiction vested in, or exercisable by the court, shall be exercisable either by the Full Court or by a single judge sitting in court.”
The section then provides for circumstances where the Full Court must exercise the jurisdiction of the court. The particular circumstances to which s 48 refers, where the Full Court must exercise the jurisdiction of the court, do not include applications of this kind.
Therefore on the face of it, the jurisdiction vested in the court, may be exercised either by the Full Court or by a single Judge sitting in court, unless there is an express enactment or the rule of court otherwise provide. The rules of court are silent in respect of this matter, so the question has to be answered by reference to the Act itself ...
[3] [2000] SASC 359 at [17]-[19].
Counsel submitted that insofar as s 48(2)(vi) refers to the Rules of Court, that includes all Rules of Court including rr 10 and 117.
Counsel for the appellant submitted that r 366(1)(d) is subject to rr 10 and 117, which provide:
10—Power of Court to control procedure
(1)     The Court may, on its own initiative or on application by a party, give directions about the procedure to be followed in a particular proceeding.
(2)     A direction may be given under this rule—
…
(d)to expedite the hearing or determination of a particular case or to avoid unnecessary delay or expense.
(3)     A direction may be given under this rule irrespective of whether it involves some departure from these Rules or the established procedures of the Court.
117—Power to make orders controlling conduct of litigation
(1)     The Court may make any order it considers necessary for the proper conduct of a proceeding or otherwise in the interests of justice.
…
(5)     An order under this rule prevails, to the extent of any inconsistency, over any rule relevant to the subject matter of the order.
Counsel submitted that r 366(1)(d) operates subject to a contrary direction being given by a single Judge, pursuant to rr 10, 117 or both, that an appeal from the Tribunal be heard by a single Judge.
Counsel argued that, insofar as the Rules require appeals from decisions of the Tribunal to be heard by the Full Court, r 366(1)(d) is qualified by the operation of rr 10 and 117. Therefore, where the interests of justice dictate, r 366(1)(d) can be varied. The appeal is only required to be heard by the Full Court if the Court declines to exercise its discretion and give a direction to the contrary pursuant to rr 10 or 117.
Counsel submitted that the Court should in this case exercise its discretion, having regard to the appeal having been fully argued before me, the appellant’s bankruptcy and inability to afford further legal costs, and the avoidance of lengthy delay. Counsel submitted that, in the circumstances, this was a case in which I should exercise my discretion.
Counsel for the respondent submitted that s 48 of the Act and r 366 specifically provide that appeals from a final decision of the Tribunal must be heard by the Full Court. Counsel referred to Harrington and to the observation of Gray J that there was no mechanism for determining which action should be heard by a Full Court, apart from s 48. Rule 16 provided that the Master had a discretion to refer a matter to a single judge or the Full Court.
The position is distinguishable from this case where s 366 specifically provides that appeals from the Tribunal are to be heard by the Full Court.
Conclusion
I reject the submission that s 48(2)(a)(vi) encompasses all Rules of Court, including rr 10 and 117. The words of the section are unambiguous. The section specifically provides that if the Rules of Court, or an express provision of any other Act requires, the case and matter is to be heard by the Full Court. Rule 366 specifically requires an appeal against a final decision of the Tribunal to be heard by the Full Court. I consider there is no discretion to vary the rules to hear the matter as a single judge. To read the section otherwise would mean that a judge could, when the rules specify a matter is to be heard by the Full Court, exercise an unfettered discretion to waive the requirement. I consider this is not what the Act and Rules require.
If I am wrong, this is not a case in which I would exercise my discretion to determine the matter as a single judge. Counsel has agreed it is appropriate that two additional judges read the outlines and oral submissions without a further hearing. The applicant is therefore not put to additional cost or inconvenience. Further, there will be no undue delay in two members of the Court considering the papers and determining the appeal.
The determination of whether a practitioner’s conduct amounts to unprofessional conduct is to be determined by the Full Court.
I direct that the appeal be determined by the Full Court. I have referred the papers to Blue and Nicholson JJ.