GANDINI and LEGAL PRACTICE BOARD (WA)

[2023] WASAT 103

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT:   LEGAL PROFESSION UNIFORM LAW (WA) 2022 (WA)

CITATION:   GANDINI and LEGAL PRACTICE BOARD (WA) [2023] WASAT 103

MEMBER:   PRESIDENT PRITCHARD

MR J O'SULLIVAN, SENIOR MEMBER

MR R POVEY, MEMBER

HEARD:   11 OCTOBER 2023

DELIVERED          :   6 NOVEMBER 2023

FILE NO/S:   VR 91 of 2023

BETWEEN:   LEN GANDINI

Applicant

AND

LEGAL PRACTICE BOARD (WA)

Respondent

Catchwords:

Legal Profession Uniform Law - State Administrative Tribunal Act 2004 (WA) - Vocational regulation - Stay Application - Review of the Legal Practice Board's decision to appoint a manager under s 334 of the Legal Profession Uniform Law - Statutory interpretation - Construction of s 334(2) of the Legal Profession Uniform Law - Singular/plural drafting principle - Where designated local regulatory authority has appointed two people as manager of a law practice - Whether the designated local regulatory authority has power to appoint more than one person as manager of a law practice at the same time

Legislation:

Interpretation of Legislation Act 1984 (Vic), s 35(a), s 37(c), s 41
Legal Profession Uniform General Rules 2015 (WA), r 99, r 100
Legal Profession Uniform Law (WA), s 3(c), s 3(e), s 6, s 7, s 105, s 282(2), s 323, s 323(a), s 326, s 327, s 327(2), s 327(2)(b), s 327(3), s 328, s 334, s 334(1), s 334(2), s 334(3), s 334(6), s 334(7), s 335, s 335(1), s 335(3), s 336, s 336(1), s 336(2), s 340(1), s 356(1), s 356(2), s 356(3), s 357, s 358, s 358(1), s 358(4), s 358(4)(a), s 358(4)(d), s 358(5), s 360, s 362, s 362(1), s 362(2)(g)
Legal Profession Uniform Law Application Act 2022 (WA), s 5
Legal Professional Uniform Law Application Act 2014 (Vic)
State Administrative Tribunal Act 2004 (WA), s 25(2), s 25(4), s 25(4)(a), s 25(4)(b), s 25(4)(c), s 27(2), s 108, s 109, s 110, s 111, s 128(1), s 133, s 138(1), s 138(4), s 138(5)

Result:

Applicant's application for a stay is dismissed

Category:    B

Representation:

Counsel:

Applicant	:	In Person
Respondent	:	J Winton

Solicitors:

Applicant	:	Chapmans Barristers & Solicitors
Respondent	:	Legal Practice Board

Case(s) referred to in decision(s):

Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378

Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; (2022) 96 ALJR 476

Mohammadi v Bethune [2018] WASCA 98

Nugawela and Medical Board of Australia [2023] WASAT 82

Programmed Industrial Maintenance Pty Ltd v The Construction Industry Long Service Leave Payments Board [2021] WASCA 208

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

1. On 22 August 2023, the Legal Practice Board (Board), by its delegate, the Professional Affairs Committee (PAC), resolved to appoint Ms Josephine McAllister and Mr Timothy Heard to each be the manager (Manager) of the law practice Chapmans Barristers and Solicitors (Chapmans).  Chapmans is operated by Eureka Services Pty Ltd trading as Chapmans Barristers and Solicitors.  Mr Gandini is a shareholder in that company. 

2. Mr Gandini commenced proceedings in the Tribunal, pursuant to s 358 of the Legal Profession Uniform Law (WA) (Uniform Law), for a review of the Board's decision to appoint Ms McAllister and Mr Heard as the Manager of Chapmans (Decision).[1]

   [1] The Uniform Law set out in Schedule 1 to the Legal Profession Uniform Law Application Act 2014 (Vic) applies in this State, by virtue of s 6 of the Legal Profession Uniform Law Application Act 2022 (WA) (Application Act).

3. In the course of the review, Mr Gandini made an interim application seeking various forms of relief, including the grant of a stay (Stay Application) pursuant to s 25(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) and orders pursuant to s 358(4) of the Uniform Law setting aside the appointment of each Manager.  Underlying each of those applications for interim relief was Mr Gandini's contention that the Board had no power under the Uniform Law to appoint more than one manager of a legal practice at any given time. 

4. On 19 September 2023, the President made orders including that the Stay Application be heard together with the determination of a preliminary question, namely 'whether the Board has the power under the Uniform Law to appoint more than one manager of a legal practice at the same time' (Preliminary Question).

5. By way of explanation, we should explain that the separate determination of the Preliminary Question, in advance of the balance of the review, was not ordered with a view to the Tribunal making any binding determination as to the validity of the appointment of Ms McAllister and Mr Heard as the Manager of Chapmans.  The Tribunal does not have jurisdiction to make any binding determination as to whether a decision made in the exercise of a statutory power was beyond power, or to determine whether the consequences of any invalidity would result in the decision being void.[2]  However, in order to determine the correct and preferable decision on a review,[3] the Tribunal must first form its own understanding of, and opinion as to, the legal framework for the decision under review.  If the Tribunal concludes that the legislative framework does not permit it (standing in the shoes of the original decision maker) to make the same decision as was made by the original decision-maker, that will assist to inform the Tribunal's decision as to what is the correct and preferable decision on the review. 

   [2] Citta Hobart PtyLtd v Cawthorn [2022] HCA 16; (2022) 96 ALJR 476.

   [3] SAT Act s 27(2).

6. For the reasons set out below, we have determined that the answer to the Preliminary Question is yes.  In our opinion, under the Uniform Law, the Board has the power to appoint more than one manager of a law practice at the same time. 

7. Because the Stay Application rested solely on Mr Gandini's contention that s 334 of the Uniform Law permitted only one manager of a law practice to be appointed at any given time, the Stay Application must also be refused.

8. In these reasons for decision, we deal with the following matters:

   (a)Our factual findings based on the evidence adduced for the purposes of the determination of the Preliminary Question and the Stay Application;

   (b)Overview of s 334 and other provisions of the Uniform Law relevant to the appointment of a manager of a law practice;

   (c)The party's submissions in relation to the proper construction of s 334(2) of the Uniform Law;

   (d)The proper construction of s 334(2) of the Uniform Law; and

   (e)Why the Stay Application fails.

(a)     Our factual findings based on the evidence adduced for the purposes of the determination of the Preliminary Question and the Stay Application

The evidence

1. The evidence on which the parties relied to establish the facts necessary for the determination of the Preliminary Question and the Stay Application comprised:

   (i)a Notice of Appointment of Manager dated 23 August 2023,[4] by which notice was given to various interested parties of the appointment of each of Ms McAllister and Mr Heard as the Manager. 

   (ii)An Instrument of Appointment of Manager dated 23 August 2023,[5] signed by two members of the PAC pursuant to a resolution of the PAC on 22 August 2023, by which the appointment of Ms McAllister and Mr Heard, as the Manager of Chapmans, was made. 

   (iii)A Notice of Termination of Manager's Appointment dated 23 August 2023,[6] by which notice was given of the termination of the appointment of the previous Manager of Chapmans, Ms Scarff.

   (iv)Notice of the Decision and a statement of the Reasons for the Decision.[7]

Factual findings relevant to the preliminary question

[4] Exhibit 1.

[5] Exhibit 2.

[6] Exhibit 3.

[7] Exhibit 4.

1. Having regard to those documents, we are satisfied, on the balance of probabilities, as to the existence of the following facts, and we find accordingly.

2. The Decision was made by a delegate of the Board, the PAC, on 22 August 2023.

3. In making the Decision, the PAC exercised (or purported to exercise) the power conferred by s 334(2) of the Uniform Law.

4. The Decision was made following the PAC's acceptance of Ms Scarff's resignation from her appointment as Manager, and the consequent termination of that appointment.

5. Following Ms Scarff's resignation as Manager, there was no other person within Chapmans who was authorised to act as a principal of the practice.  The only employee of Chapmans who is entitled to engage in legal practice is Mr Michael Lourey, but Mr Lourey does not hold a practising certificate which authorises him to engage in legal practice as a principal or to hold trust monies.[8] 

   [8] Exhibit 4.

6. Each of Ms McAllister and Mr Heard are entitled to engage in legal practice as a principal and to hold trust monies.[9]

   [9] Exhibit 4.

7. The appointment was made by the Instrument of Appointment.[10] 

   [10] Exhibit 1.

8. The Decision was to appoint each of Ms McAllister and Mr Heard to be the Manager of Chapmans. 

9. The term of appointment was for a term of 12 months from 5.00 pm on 22 August 2023 unless earlier terminated.

(b)     Overview of s 334 and other provisions of the Uniform Law relevant to the appointment of a manager of a law practice

1. While s 334 of the Uniform Law was the focus of the parties' submissions, it is convenient to begin by considering s 334 in its broader context within Chapter 6 of the Uniform Law, which deals with the subject of 'external intervention'. 

External intervention under Chapter 6 of the Uniform Law

1. The term 'external intervention' is defined in the Uniform Law to mean 'the appointment of, and the exercise of the functions of, a supervisor, manager or receiver under Chapter 6'.[11]

   [11] Uniform Law s 6.

2. The objectives of Chapter 6 include to ensure that an appropriate range of options is available for intervention in the business and professional affairs of a law practice for the purpose of protecting the interests of the general public, clients, and law practices and others, and to ensure that there is an accountable and transparent process for the appointment of interveners.[12]

   [12] Uniform Law s 323.

3. External intervention may take place in a range of specified circumstances, and where any other proper cause exists in relation to the law practice.[13] 

   [13] Uniform Law s 326.

4. If one of those circumstances exist, the designated local regulatory authority (DLRA) — in this case the Board, which may act through a delegate—may decide that, having regard to the interests of the clients of the law practice and to other matters that it considers appropriate, external intervention is warranted.[14] 

   [14] Uniform Law s 327.

5. In that event, the DLRA may determine to initiate the appointment of a supervisor, of a manager, or of a receiver, if certain criteria are met.[15]  Under s 327(2)(b) of the Uniform Law, the DLRA may appoint a manager if it 'is of the opinion that external intervention is required because of issues relating to the law practice's trust records; or that the appointment is necessary to protect the interests of clients in relation to trust money or trust property; or there is a need for an independent person to be appointed to take over professional and operational responsibility for the law practice'.

   [15] Uniform Law s 327(2).

6. A law practice is required to have at least one authorised principal (that is, a principal who is authorised by their Australian practising certificate to supervise others).[16]  In this case, the Managers were appointed because Chapmans no longer had a principal authorised by their practising certificate to supervise others. 

   [16] Uniform Law s 105.

7. Under s 328 of the Uniform Law, an appointment of an external intervener for a law practice may be made in respect of the practice generally or may be limited by the terms of the appointment, 'including for example to matters connected with a particular legal practitioner associate or to matters connected with a particular office or a particular subject matter'.

8. The appointment of an external intervener is subject to any conditions imposed by the appropriate authority and any conditions imposed under rules made under the Uniform Law.[17]  The appropriate authority may impose conditions either when the appointment is made, or during the term of appointment and may revoke or vary any such conditions.[18]

Appointment of a manager

[17] Uniform Law s 356(1).

[18] Uniform Law s 356(2) and (3).

1. If the DLRA determines to appoint a manager for a law practice, the provisions of s 334 of the Uniform Law apply.[19]

   [19] Uniform Law s 334(1).

2. The source of authority to appoint a manager lies in s 334(2) of the Uniform Law, which provides that 'the designated local regulatory authority may, by instrument in writing, appoint a person as manager'. 

3. If the manager is appointed to a law practice other than one that consists of a barrister, the manager must be the holder of an Australian practising certificate as a principal authorising the receipt of trust money.[20]

   [20] Uniform Law s 334(3).

4. The Legal Profession Uniform General Rules 2015 (WA) (Uniform Law General Rules) specify various matters that must be included in the instrument of appointment of a manager.[21]

   [21] Legal Profession Uniform General Rules 2015 (WA) (Uniform Law General Rules) r 99.

5. Notice of the appointment must be given in accordance with the Uniform Law General Rules, which specify to whom notice must be given and what the notice must contain.[22] 

   [22] Uniform Law s 334(7); Uniform Law General Rules r 100.

6. Under s 358 of the Uniform Law, any aggrieved person may seek a review by the Tribunal of the appointment in this jurisdiction of an external intervener for a law practice.[23]  That provision is the source of the Tribunal's jurisdiction to conduct the review commenced by the application filed by Mr Gandini. 

   [23] Uniform Law s 358(1).

7. On a review under s 358 of the Uniform Law, the Tribunal may confirm the appointment, set aside the appointment, impose or vary any conditions of the appointment; and make any other orders it thinks fit.[24] The appointment of an external intervener is not stayed by the application for review and the intervener may continue to exercise their powers and functions during the review except to the extent that the Tribunal directs otherwise.[25]

The role of a manager

[24] Uniform Law s 358(4).

[25] Uniform Law s 358(5).

1. The role of a manager for a law practice is to 'carry on the law practice and … do all things that the law practice or a legal practitioner associate of the law practice might lawfully have done'[26] including but not limited to transacting any business of the law practice that the manager reasonably believes to be urgent; transacting, with the approval of any existing clients, any business on their behalf including litigation, and property transactions; accepting instructions from new clients and transacting business on their behalf; charging and recovering legal costs; entering into or performing agreements; dealing with trust moneys or property; and winding up the affairs of the law practice.[27]

   [26] Uniform Law s 336(1).

   [27] Uniform Law s 336(1).

2. For the purpose of exercising their powers, and subject to certain limitations which need not be detailed here, the manager may exercise any or all of a range of powers including entering and remaining on premises used by the law practice in connection with its engagement in legal practice; operating equipment and facilities on the premises; requiring the law practice to give the manager access to the files and documents, or information relating to client matters, that the manager reasonably requires; taking possession and securing possession of relevant material on the premises; and taking possession of computer equipment or programs.[28]

   [28] Uniform Law s 336(2).

3. Acts or omissions of an external intervener for a law practice are, for the purpose of any proceedings or any transaction, taken to have been done or omitted by the law practice itself.[29]

   [29] Uniform Law s 357.

4. Once a law practice has been served with a notice of the appointment of a manager, a legal practitioner associate of the practice who is specified or referred to in the notice must not participate in the affairs of the practice except under the direct supervision of the manager.[30]  Similarly, any person served with a notice of appointment of a manager must not deal with any of the law practice's trust money.[31]

   [30] Uniform Law s 335(1).

   [31] Uniform Law s 335(3).

5. The appointment of a manager terminates in a number of circumstances, including when the term of appointment comes to an end; when the appointment is set aside under s 358 of the Uniform Law; when the appointment of a receiver for the law practice takes effect (but only if the terms of that appointment indicate that the receiver is authorised to exercise the powers and other functions of a manager); and when a determination by the local regulatory authority that the appointment be terminated has taken effect.[32]

(c)     The party's submissions in relation to the proper construction of s 334 of the Uniform Law

[32] Uniform Law s 340(1).

1. Mr Gandini submitted that s 334 of the Uniform Law did not permit more than one person to be a manager at the same point in time, nor did it permit the appointment of more than one person as joint manager.[33]

   [33] ts 9, 11 October 2023.

2. In summary, Mr Gandini advanced four reasons why s 334 did not permit the appointment of more than one person as a manager of a law practice at any given time. 

3. First, Mr Gandini relied on the ordinary meaning of the words used in s 334.  He relied on the fact that s 334(2) permitted the appointment of 'a person as manager' and contended that that provision did not permit more than one person to be appointed as a manager of a practice at the same time.[34]

   [34] Applicant's Submissions dated 20 September 2023 (Applicant's Submissions) [9], [10].

4. Secondly, Mr Gandini referred to the fact that other statutory provisions permitted the appointment of 'a person' to a particular position (such as the President of the Tribunal under s 108 of the SAT Act), and, in his submission, did not permit the appointment of more than one person at the same time.[35]  Mr Gandini also referred to the fact that some jobs—such as that of the Premier—could only be done by one person at a time.[36]

   [35] Applicant's Submissions [13]-[15].

   [36] ts 26, 11 October 2023.

5. Thirdly, Mr Gandini submitted that the surrounding statutory context indicated that the purpose of s 334 was to appoint one person to be a manager of a law practice.[37]  By way of example, he referred to s 327(2), which referred to the appointment of 'a manager', and s 334(3) and s 334(6) which referred to the 'appointee'.  In addition, he submitted that s 335 and s 336, which refer to the powers and functions of a manager, make clear 'that this is a one-person operation to work'.[38]  While Mr Gandini accepted that some of the functions of a manager under s 335 could be performed by more than one person at a time, that should not be considered in isolation.  Furthermore, Mr Gandini submitted that s 328 of the Uniform Law did not permit the appointment of more than one manager at a time.[39]

   [37] Applicant's Submissions [18].

   [38] ts 26, 11 October 2023.

   [39] ts 27, 11 October 2023.

6. Mr Gandini accepted that while words in the singular could include the plural, that principle of construction was subject to the manifestation of a contrary intention.  He submitted that the various provisions to which he referred, all of which were expressed in the singular, should be understood as the expression of a contrary intention.[40] He also submitted that s 41 of the Interpretation of Legislation Act 1984 (Vic) (Victorian Interpretation Act) which he accepted applied to the Uniform Law, did not resolve the question.[41]  He submitted that, under that section, the appointment of more than one person to a position only becomes possible if one of the trigger events for a further appointment occurred, and the result was that only one person would be in the role at a time.[42]

   [40] ts 14 – 15, 11 October 2023.

   [41] ts 31, 11 October 2023.

   [42] ts 32, 11 October 2023.

1. Fourthly, Mr Gandini submitted that if, under s 334(2), the Board could appoint more than one person to be a manager at the same time, absurd consequences would follow, and that this was a reason not to construe s 334(2) so as to permit that outcome.  He submitted that that would mean that the Board could appoint '3 or 5 or 6 or 9 or 15 managers at all once for the same Practice, or 3 or 5 or 6 or 9 or 15 persons to be 'joint manager' all at the same time'.[43]  Mr Gandini submitted that the consequences of such appointments would be unworkable and an absurd result.[44]

   [43] Applicant's Submissions [11].

   [44] Applicant's Submissions [19].

2. Mr Gandini submitted that as a result, the appointment of Ms McAllister and Mr Heard was ultra vires, void or voidable, and must be set aside.  Mr Gandini submitted that the Tribunal had power under s 358 of the Uniform Law to grant the orders he sought in the interim application, and that those powers were not confined to use in the final determination of a review.  Alternatively, Mr Gandini submitted that the Tribunal could stay the operation of the Decision and instead make an order appointing either Ms McAllister or Mr Heard as the Manager of Chapmans, pursuant to s 358(4)(a) or (d).[45]

   [45] Applicant's Submissions [24].

3. The Board submitted that on its proper construction, s 334 of the Uniform Law permitted the appointment of more than one person as a manager of a law practice at the same time, for four reasons.

4. First, the Board submitted that that construction accorded with the words of the provision itself.  Insofar as s 334 permitted the appointment of 'a person' as manager, the Board pointed to the fact that words expressed in the singular include the plural.[46]

   [46] Respondent's Submissions dated 29 September 2023 (Respondent's Submissions) [8] – [10].

5. Secondly, the Board submitted that contextual considerations supported the conclusion that the power in s 334 permitted the appointment of more than one person as a manager of a law practice.[47]

   [47] Respondent's Submissions [12] – [15].

6. Thirdly, the Board submitted that the appointment of more than one person as a manager was consistent with the purpose of Chapter 6 of the Uniform Law, and indeed of the Uniform Law itself.[48]

   [48] Respondent's Submissions [16] – [18].

7. Fourthly, the Board pointed to similar statutory provisions which had been construed to confer the power to appoint multiple persons to discharge a statutory function.[49] 

   [49] Respondent's Submissions [19] – [20].

8. The Board submitted that the preliminary question should be answered yes and that, as the application for a stay of the Decision turned entirely on the construction of s 334, the application for a stay should be dismissed.

(d)     The proper construction of s 334(2) of the Uniform Law

1. The starting point in the process of statutory construction is the ordinary and grammatical sense of the words used in the statute, interpreted having regard to their context and legislative purpose.[50]  While the focus is, of course, on the meaning of the text, the text must be construed in its context.[51]  Insofar as that context includes the statutory purpose, that purpose may be discerned from an express statement of purpose in the statute, an inference from its text and structure and, where appropriate, reference to extrinsic materials.[52]

   [50] Programmed Industrial Maintenance Pty Ltd v The Construction Industry Long Service Leave Payments Board [2021] WASCA 208 at [5] (Buss P and Murphy JA).

   [51] Mohammadi v Bethune[2018] WASCA 98 [31].

   [52] Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 [25].

2. In our view, for the reasons set out below, s 334(2) of the Uniform Law permits the appointment of more than one person as a manager of a law practice at the same time. 

3. First, while s 334(2) of the Uniform Law refers to the appointment of 'a person' as the manager, words in the singular include the plural. (We will refer to that as the singular/plural drafting principle).[53] 

   [53] See s 37(c) of the Victorian Interpretation Act.  The Victorian Interpretation Act, and not the Interpretation Act 1984 (WA) applies to the interpretation of the Uniform Law in Western Australia: see s 7 of the Uniform Law, and s 5 of the Application Act.

4. Secondly, the operation of the singular/plural drafting principle is subject to a legislative manifestation of a contrary intention.  There is no such contrary intention manifested in the Uniform Law.  The provisions to which Mr Gandini referred, as indicative of the existence of a contrary intention, do not convey an intention to exclude the operation of the singular/plural drafting principle.  All of those provisions simply adopt the drafting convention of using the singular rather than the plural, as do other provisions of the Uniform Law.[54]  None of them provides any basis for concluding that only one person was intended to be appointed as manager of a law practice at any given time.  No other provision in the Uniform Law conveys an intention to exclude the singular/plural drafting principle. 

   [54] See, for example, s 282(2) of the Uniform Law.

5. Had there been such an intention, it can be expected that Parliament would have made that intention very clear. By way of contrast, and to use an example relied upon by Mr Gandini, s 108 of the SAT Act permits 'a person' to be appointed as the President of the Tribunal. A number of other provisions in the SAT Act also refer to the appointment of 'a person' as the President.[55] But the SAT Act also contains provisions which permit the appointment of an acting President of the Tribunal in circumstances where the President 'is, or is expected to be, absent, or, for any other reason, unable to perform the duties of office'.[56] Furthermore, the SAT Act permits the appointment of a person as a supplementary President 'to act as the President in relation to a particular matter or matters or for a specified period'.[57]  A person thus appointed 'may act as the President in relation to a matter, or for the period, for which the person is appointed' and when doing so, 'the person is to be regarded as the President for the purposes of this Act and enabling Acts'.[58] Furthermore, a supplementary President is not authorised to perform specific functions allocated to the President of the Tribunal under the SAT Act.[59] Those provisions provide an unambiguous indication that the singular/plural drafting principle does not apply in respect of s 108 of the SAT Act.

   [55] See, for example, s 109, s 110, s 111 of the SAT Act.

   [56] See s 128(1) of the SAT Act and see also s 133 of the SAT Act.

   [57] SAT Act s 138(1).

   [58] SAT Act s 138(4).

   [59] SAT Act s 138(5).

6. That example also illustrates the point that reference to other legislative provisions apart from the Uniform Law which permit the appointment of ‘a person’ to a particular role are not helpful in discerning the legislative intention behind s 334 of the Uniform Law.

7. Furthermore, the position of a manager is not one which, by its nature, could only be performed by one person at a time.  Given that the role of a manager is effectively to act as the principal of a law practice, and given that nothing in the Uniform Law requires that a law practice operate with only with one principal, we do not consider that anything in the role of a manager requires that there be only one manager of a law practice at any given time.  On the contrary, as we discuss further below, performance of the wide range of tasks encompassed by the manager's role (as set out in s 336 of the Uniform Law) may, in some practices, be assisted by the appointment of more than one manager at the same time.  Accordingly, the singular/plural drafting principle is not excluded on the basis that the position of a manager is one which, by its nature, must be undertaken by only one person at a time. 

8. Thirdly, the statutory context supports the conclusion that it is open to the DLRA to appoint more than one external intervener, including more than one manager, to a law practice at any given point in time. The fact that more than one external intervener may be appointed to a law practice at any given time is expressly acknowledged in Chapter 6 of the Uniform Law.  Section 360 of the Uniform Law, for example, deals with the situation where a manager and a receiver are both appointed for a law practice (and deals with the question of whose decisions prevail, to the extent of any inconsistency).  Section 362 of the Uniform Law also expressly acknowledges that more than one external intervener may be appointed at any given time.  Subsection 362(2)(g) of the Uniform Law — which is one of the exceptions to the prohibition on disclosure of information under s 362(1) of the Uniform Law — permits an external intervener to disclose information to 'another external intervener appointed in relation to the law practice'.  Clearly, the other external intervener must be one whose appointment is on foot at the same time as that of the external intervener who is engaging in the disclosure.

9. Section 328 of the Uniform Law provides that an appointment of an external intervener may be made in respect of the law practice generally or may be limited by the terms of the appointment, including to matters connected with a particular legal practitioner associate, or to matters connected with a particular office or a particular subject matter.  That provision thus permits the appointment of a manager to deal with the files of a particular legal practitioner associate of the law practice, or for a particular office of a law practice.  That would have the result that the manager would undertake their role in managing the practice, to the extent of their specified responsibilities, alongside other legal practitioner associates of the firm.  The acts or omissions of the manager would be taken to be the acts or omissions of the law practice.[60]

   [60] Uniform Law s 357.

10. Similarly, s 328 of the Uniform Law would permit the appointment of a supervisor for the trust money of a law practice, and the appointment of a manager to be responsible for managing the conduct of a particular aspect of the work undertaken by a law practice, such as its litigation files, or the files of a particular legal practitioner associate.  In our view, s 328 of the Uniform Law would clearly also permit the appointment of a manager in respect of one office of a legal practice, or in respect of one kind of work undertaken by that legal practice, and the appointment, at the same time, of another manager, in respect of another office of the legal practice or of another kind of work undertaken by that legal practice.  That being the case, we see no reason to construe s 328 of the Uniform Law as not permitting the appointment, at the same time, of more than one manager of a law practice generally. 

11. That construction is also consistent with s 327(3) of the Uniform Law.  Under s 327(2), the DLRA may determine to initiate the appointment of a supervisor of trust money, or of a manager for the law practice, or of a receiver for the law practice.  Subsection 327(3) of the Uniform Law makes clear that the DLRA authority may make further determinations in relation to that law practice, and for that purpose it may, at its absolute discretion, revoke a previous determination with effect from a date or event.  However, it is clear from s 327(3) of the Uniform Law that the exercise of the power to make a further determination about the appointment of an external intervener does not depend upon the revocation of a previous appointment.  The result, necessarily, is that it is open to the DLRA to make determinations which result in there being more than one external intervener (including more than one manager) of a law practice at any given time.

12. Fourthly, the conclusion that s 334(2) of the Uniform Law permits the appointment of more than one manager at the same time is, in our view, a construction which would promote the purpose or object underlying Chapter 6 of the Uniform Law, and is to be preferred to the construction urged by Mr Gandini, which in our view would not promote that purpose or object.[61]  The objectives of Chapter 6 of the Uniform Law include 'to ensure that an appropriate range of options is available for intervention in the business and professional affairs of law practices for the purpose of protecting the interests of the general public, clients and law practices and others'.[62]  The achievement of that objective is likely to be promoted by the ability of the DLRA to appoint one, or more than one, external intervener to a law practice at any time. 

    [61] Victorian Interpretation Act s 35(a).

    [62] Uniform Law s 323(a).

13. The importance of flexibility is obvious when one considers the range of law practices to which external interveners might be appointed, the circumstances in which their appointment might be required, and the persons who are eligible for appointment as managers.  The appointment of a single person as a manager might be possible in a small firm, with a limited range of work, or a small file load.  But in many other cases, the appointment of more than one manager, at the same time, may be preferable, if not essential, for the protection of the interests of the public, the clients of the firm and others. 

14. Three examples will suffice to illustrate the point.  First, in the case of large law practices with multiple offices across different geographical locations, it may not be feasible for one person to be appointed to manage the entire law practice.  In a firm with distinct practice areas, the interests of the clients, the public and others may be best protected by different managers with responsibilities for the different practice areas.  Furthermore, persons willing to be appointed as managers, and who meet the criteria for appointment,[63] may have other responsibilities (including, for example, conducting their own legal practice or managing family responsibilities) which may mean that it is not possible for them to undertake the management of a law practice on a full-time basis, or without the assistance of another manager or managers, especially if the circumstances involve the need for urgent attention to the affairs of the practice.  And it is no answer to contend, as Mr Gandini did,[64] that a manager is entitled to have the assistance of the staff of the law practice or to engage additional staff.  While staff may carry out tasks at the direction of the manager, the manager's authority cannot be devolved to staff of the law practice. 

    [63] Uniform Law s 334(3).

    [64] ts 27 – 28, 11 October 2023.

15. In such cases, there can be no doubt that the ability to appoint more than one manager at a time would permit the DLRA the flexibility to tailor the external intervention to respond to the circumstances of the particular law practice, while taking into account the practicalities of appointment of a manager.  A construction of s 334(2) which permits that flexibility is more likely to achieve the purpose of protecting the interests of the public, clients and others, than a construction which permits the appointment of one person as a manager at any given time.  Furthermore, such a construction of s 334(2) would also be more likely to achieve the objectives of the Uniform Law as a whole, namely 'to promote the administration of justice and an efficient and effective Australian legal profession' by 'enhancing the protection of clients of law practices and the protection of the public generally' and by 'promoting regulation of the legal profession that is efficient, effective, targeted and proportionate'.[65]

    [65] Uniform Law s 3(c) and (e).

16. Fifthly, during the hearing we discussed the relevance, if any, of s 41 of the Victorian Interpretation Act in the context of the Preliminary Question. Relevantly, s 41 provides that if an Act confers power on a body to appoint a person to an office, the power, unless the contrary intention appears, includes a power to appoint a person to act in the office, to remove a person appointed to the office, to suspend a person appointed to the office, to appoint a person to act in place of the holder of the office if they are absent, or for any other reason are unable to perform the functions and duties of the office, or to act in place of the holder of the office if they are unable to act on a particular occasion, or in relation to a particular matter. Section 41 is a machinery provision which empowers a decision-maker who is given authority to appoint a person to an office, to make the full range of decisions which may be associated with that appointment (including acting appointments, and the termination of the appointment). There may be an argument that s 41 does not apply to the appointment of external interveners under the Uniform Law (because Chapter 6 deals fulsomely with the machinery of those appointments, and thereby manifests an intention contrary to the application of s 41). However, it is unnecessary for us to determine the question whether s 41 applies in respect of the appointment of a manager under Chapter 6 of the Uniform Law. Our conclusion as to the proper construction of s 334(2) provides the answer to the Preliminary Question, and that answer does not depend on the application of s 41 of the Victorian Interpretation Act.

17. Finally, we do not accept Mr Gandini's submission that the appointment of more than one manager at any given time would lead to results which are unworkable or absurd, even in cases where (as here) more than one manager is appointed to the law practice generally.  The practicalities of such concurrent appointments can be resolved in a variety of ways.  The instrument of appointment may specify conditions, such as that a particular manager is responsible for particular areas of work, or for the work of a particular legal practitioner associate, while another manager has responsibility for other areas of work.  Alternatively, the sharing or division of responsibility may best be resolved by the managers as between themselves.  In the event of any difficulty, it would be open to the managers to obtain direction from the DLRA, via the imposition of conditions on their appointment, during the term of their appointment.[66] 

    [66] Uniform Law s 356(2).

18. In his submissions, Mr Gandini pointed to the use of different terminology in the documents in evidence (such as references to Ms McAllister and Mr Heard as the 'joint Manager' or to them being under an obligation to do things 'collectively').  In our view, the Instrument of Appointment is determinative of the basis, and conditions, on which the appointments of Ms McAllister and Mr Heard were made.  The Instrument of Appointment simply refers to the appointment of each of Ms McAllister and Mr Heard to be the Manager for the law practice Chapmans, and does not prescribe any manner in which the powers and duties of the Manager are to be exercised or performed.  For the avoidance of doubt, nothing in these reasons should be understood to imply any conclusion on our part as to the proper manner of the exercise or performance of the powers and duties of the Manager in this case.

19. Having regard to these reasons, the answer to the Preliminary Question is yes.  The Board has the power under the Uniform Law to appoint more than one manager of a legal practice at the same time.

(e)     Why the Stay Application fails

1. In Nugawela and Medical Board of Australia,[67] the President discussed the principles applicable to the grant of a stay of a decision which was the subject of review proceedings in the Tribunal. We adopt those principles. It is unnecessary to set them out. For present purposes, all that needs to be said is that under s 25(4) of the SAT Act, the Tribunal may make an order staying the operation of a decision the subject of a review 'only if it considers it desirable to do so after taking into account:

   (a)the interests of any persons whose interests may be affected by the order; and

   (b)any submission made by or on behalf of the decision‑maker; and

   (c)the public interest.'

   [67] Nugawela and Medical Board of Australia [2023] WASAT 82 (Nugawela and Medical Board of Australia) [22] – [29].

1. The matters specified in s 25(4)(a) – (c) of the SAT Act are not an exhaustive list of the matters that the Tribunal may take into account in determining whether it is desirable to make an order staying the operation of a decision.[68]

   [68] Nugawela and Medical Board of Australia [24].

2. In the present case, the only basis on which Mr Gandini relied in support of his application for a stay of the Decision was his contention that the Board did not have power under s 334(2) of the Uniform Law to make the Decision.  The Board submitted that as that contention should be rejected, the Stay Application should necessarily be dismissed. 

3. In light of our conclusion that the Board does have power under s 334(2) of the Uniform Law to appoint more than one person as a manager of a law practice at the same time, and in circumstances where there was no suggestion, otherwise, that the public interest warranted the grant of a stay of the Decision, we are of the view that it is not desirable to grant a stay of the Decision. 

4. Mr Gandini's Stay Application will therefore be dismissed.

The orders which will be made

1. The orders which will be made to reflect these reasons for decision are:

   1.The answer to the Preliminary Question – whether the Respondent has power under the Legal Profession Uniform Law 2022 (WA) to appoint more than one manager of a legal practice at the same time – is yes.

   2.The Applicant's application for a stay is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

PM

Associate to the Honourable Justice Pritchard

6 NOVEMBER 2023