Goldsmith v Law Complaints Officer
[2021] WASC 69
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: GOLDSMITH -v- LAW COMPLAINTS OFFICER [2021] WASC 69
CORAM: TOTTLE J
HEARD: 10 FEBRUARY 2021
DELIVERED : 16 MARCH 2021
FILE NO/S: CIV 2080 of 2020
BETWEEN: BARRIE GOLDSMITH
Applicant
AND
LAW COMPLAINTS OFFICER
First Respondent
LEGAL PROFESSION COMPLAINTS COMMITTEE
Second Respondent
Catchwords:
Legal profession - Powers, functions and duties of regulatory authorities - Power to nominate investigators of complaints - Whether power to nominate persons external to regulatory authority
Statutory construction - Legal profession regulation - Powers of investigation under pt 15 of the Legal Profession Act2008 (WA) - Extent of Law Complaints Officer's power to appoint investigators - Where power of appointment purportedly contained in definition section - Where limited power of appointment to be inferred from substantive provisions of the Act
Legislation:
Legal Profession Act 2008 (WA)
Result:
Preliminary issue determined
Category: B
Representation:
Counsel:
| Applicant | : | Dr J Lucy |
| First Respondent | : | Mr G D Cobby SC |
| Second Respondent | : | Mr G D Cobby SC |
Solicitors:
| Applicant | : | Goldsmiths Lawyers |
| First Respondent | : | Legal Profession Complaints Committee |
| Second Respondent | : | Legal Profession Complaints Committee |
Case(s) referred to in decision(s):
Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568
CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384
Conservation Council of WA Inc v The Hon Stephen Dawson MLC, Minister for Environment; Disability Services [2019] WASCA 102
Federal Commissioner of Taxation v Douglas [2020] FCAFC 220
Gibb v Federal Commissioner of Taxation [1966] HCA 74; (1966) 118 CLR 628
Mohammadi v Bethune [2018] WASCA 98
Moreton Bay Regional Council v Mekpine Pty Ltd [2016] HCA 7; (2016) 256 CLR 437
Penola & District Ratepayers’ & Residents’ Association Inc v Wattle Range Council [2011] SASCFC 62; (2011) 110 SASR 110
Registrar of Motor Vehicles v Lawson [2017] SASCFC 88
TOTTLE J:
Summary
In this application for judicial review a question concerning the validity of the appointment of an investigator under pt 15 of the Legal Profession Act 2008 (the Act) has arisen for determination as a preliminary issue. Part 15 contains provisions relating to investigations that may be undertaken under the Act.
It is unnecessary to refer to the factual background in any detail. It is sufficient to record the applicant made a number of complaints to the second respondent, the Complaints Committee, about Australian lawyers.[1] The first respondent, the Law Complaints Officer, executed a number of instruments in which he nominated a senior counsel practising in Western Australia as an investigator in respect of the applicant's complaints. Each instrument related to a complaint about an individual Australian lawyer who was named in the instrument. The same senior counsel was nominated in each case.
[1] Although in this case nothing turns on the definition of these terms, an Australian lawyer is a person admitted to the legal profession under the Act or a corresponding law, Legal Profession Act 2008 (WA), s 4(a). An Australian legal practitioner is an Australian lawyer who holds a current local practising certificate or a current interstate practising certificate, Legal Profession Act 2008 (WA), s 5(a). Australian legal practitioners may be either a local legal practitioner or an interstate legal practitioner, Legal Profession Act 2008 (WA), s 5(b) and (c).
The central question is what power, if any, the Law Complaints Officer, has to nominate a person as an investigator if the person is not employed or engaged as a member of the staff of the Legal Practice Board (the Board). The determination of this question involves the identification of the source of any potential power of nomination.
The applicant contends the Act confers no power on the Law Complaints Officer to 'nominate' an investigator under pt 15 of the Act, alternatively, that such a power is limited to appointment of a member of the Legal Practice Board's staff and can only be conferred on the Law Complaints Officer in the limited circumstances described below.
The respondents contend the Law Complaints Officer has a statutory power of nomination that is not constrained as the applicant contends. The respondents maintain the source of the Law Complaints Officer's power to make the nomination is s 517(1) of the Act. Section 517 defines terms used in pt 15. Included in the defined terms defined is the term 'investigator'. Section 517(1) states that, among other meanings, 'investigator' means 'the Law Complaints Officer or a person nominated by the Law Complaints Officer'.
The applicant contends s 517(1) is merely a definitional provision and, in accordance with established principle, it has no substantive operative effect.[2] The applicant contends the source of any power of the Law Complaints Officer to nominate a person as an investigator is to be found in s 573 that enables the Complaints Committee to delegate its powers and duties to the Law Complaints Officer.
[2] See Gibb v Federal Commissioner of Taxation [1966] HCA 74; (1966) 118 CLR 628, 635.
The essential propositions on which the applicant's argument is based are as follows: First, the investigatory powers conferred by pt 15 are powers of the Complaints Committee. Secondly, the Act authorises the Complaints Committee to delegate to the Law Complaints Officer its powers or duties and, with the Complaints Committee's express authority, the Law Complaints Officer may further delegate powers or duties to a member of the Board's staff.[3] Thirdly, by an instrument executed on 4 December 2012, subject to some presently irrelevant exceptions, the Complaints Committee delegated its powers and duties to the Law Complaints Officer and expressly authorised the Law Complaints Officer, 'to further delegate in writing to any of the Senior Legal Officers/Managers and Senior Legal Officers of the LPCC from time to time any or all of these powers and duties so delegated by the LPCC to the Law Complaints Officer'. On this basis the applicant contends the Complaints Committee has delegated to the Law Complaints Officer the power to nominate a person to act as an investigator but the power is limited to nominating a Senior Legal Officer or Manager from the Board's staff.
[3] Legal Profession Act 2008 (WA), s 573(4).
The respondents contend the applicant's delegation argument is flawed because the powers conferred on an investigator under pt 15 are not powers conferred on the Complaints Committee as a collective body and thus the powers in pt 15 are not capable of being delegated by it.
As I explain below, I have concluded that the Law Complaints Officer does not have power to nominate any person other than a member of the Board's staff to act as an investigator. As a consequence, the appointments purportedly made by the Law Complaints Officer are invalid. In reasoning to that conclusion I have not accepted all of the applicant's contentions. Specifically, I have not accepted that the source of the Law Complaints Officer's power to nominate a person as an investigator is a power delegated to the Law Complaints Officer by the Complaints Committee.
Relevant aspects of the legislative scheme
The long title of the Act states it is an Act: to provide for the regulation of legal practice in Western Australia; and, to facilitate the regulation of legal practice on a national basis; and for other related purposes. The Act is based on a national model bill developed by the Standing Committee of Attorneys-General.[4]
[4] Explanatory Memorandum, Legal Profession Bill 2007 (WA).
The Act is divided into 19 parts. With the limited exception of those parts dealing with general matters, each part regulates a different aspect of the legal profession.
Part 16 - the Regulatory authorities
It is convenient to start with pt 16 of the Act which establishes the 'Regulatory authorities'. The Board is established as 'the Legal Practice Board of Western Australia'.[5] The Board has the powers necessary to perform the functions conferred on it.[6] Those powers include the power to:[7]
(a)acquire, hold, manage, improve, develop and dispose of any real or personal property; and
(b)enter into leases, contracts and arrangements; and
(c)provide, take and arrange security; and
(d)employ and engage staff; and
(e)do anything incidental to any of its powers.
[5] Legal Profession Act 2008 (WA), s 534.
[6] Legal Profession Act 2008 (WA), s 539, s 540(1).
[7] Legal Profession Act 2008 (WA), s 540(2).
The Board may delegate any of its powers or duties to a Board member, to a committee established by it,[8] or to an officer or employee of the Board.[9]
[8] Legal Profession Act 2008 (WA), s 552 authorises the Board to establish committees.
[9] Legal Profession Act 2008 (WA), s 547.
The Act establishes a 'Legal Profession Complaints Committee',[10] to be known as the Complaints Committee.[11] The Complaints Committee is constituted by a chairperson, not less than six legal practitioners appointed by the Board from among its members and not less than two representatives of the community who are not lawyers.[12]
[10] Legal Profession Act 2008 (WA), s 555(1).
[11] Legal Profession Act 2008 (WA), s 3.
[12] Legal Profession Act 2008 (WA), s 556(1) and (2).
The functions of the Complaints Committee are specified in s 557 as follows:
557.Functions of Complaints Committee
(1)The Complaints Committee has the functions conferred on it by this or any other Act.
(2)Without limiting subsection (1), it is a function of the Complaints Committee -
(a)to supervise the conduct of legal practitioners; and
(b)to inquire into complaints received under Part 13 Division 4 and, where the Complaints Committee so determines whether for cause or not and whether the Complaints Committee has received a complaint or not, any -
(i)conduct on the part of a legal practitioner; or
(ii)matters relating to legal practice,
for the purpose of determining whether it may constitute unsatisfactory professional conduct or professional misconduct; and
(c)if the Complaints Committee considers it appropriate to do so, to institute professional disciplinary proceedings against a legal practitioner in the State Administrative Tribunal; and
(d)to supervise and direct the Law Complaints Officer in the performance of the functions of that officer; and
(e)to comment upon, and make recommendations in respect of, this Act, the regulations and the legal profession rules insofar as they may affect the functions of the Complaints Committee.
(3)In addition to the functions set out in this section, a member appointed by the Attorney General may report independently, as an individual, to the Attorney General on any aspect of -
(a)an alleged complaint; or
(b)an inquiry as to disciplinary matters under Part 13; or
(c)the legal profession rules as they relate to disciplinary matters or the conduct of legal practice; or
(d)the activities of the Law Complaints Officer or the Complaints Committee.
(4)The Board must not direct or impose any requirement on the Complaints Committee as to the performance of its functions.
(5)The Board must ensure that the Complaints Committee is provided with such services and facilities as are reasonably necessary to enable the Complaints Committee to perform its functions.
Subdivision 2 of div 2 of pt 16 regulates the performance by the Complaints Committee of its functions. It is clear from these provisions that the Act contemplates that the Complaints Committee will act as a collective body in respect of a number of its functions.[13]
[13] Legal Profession Act 2008 (WA), s 568, s 569.
The Act establishes the office of 'Law Complaints Officer'.[14] The Law Complaints Officer is appointed by the Board and must be an Australian legal practitioner with experience in the conduct of a legal practice.[15] The Act does not specify the functions of the Law Complaints Officer. The Law Complaints Officer's functions are primarily those delegated to him or her under s 573 of the Act.
[14] Legal Profession Act 2008 (WA), s 572.
[15] Legal Profession Act 2008 (WA), s 572(2).
Delegation by the Complaints Committee of its powers or duties to the Law Complaints Officer is governed by s 573 which provides as follows:
573.Delegation to Law Complaints Officer
(1)The Complaints Committee may, subject to this section, delegate any power or duty of the Complaints Committee under another provision of this Act to the Law Complaints Officer.
(2)The Complaints Committee must not delegate its powers under section 426.
(3)The delegation must be in writing executed by the Complaints Committee.
(4)The delegation may expressly authorise the Law Complaints Officer to further delegate in writing the power or duty to a member of staff referred to in section 574.
(5)A person to whom a power or duty is delegated as authorised under subsection (4) cannot delegate that power or duty.
(6)A person exercising or performing a power or duty that has been delegated to the person under or as authorised under this section is to be taken to do so in accordance with the terms of the delegation unless the contrary is shown.
(7)A person exercising or performing a power or duty that has been delegated to the person under or as authorised under this section must do so in accordance with -
(a)in the case of a delegation to the Law Complaints Officer - any directions given to the Law Complaints Officer by the Complaints Committee; or
(b)in the case of a delegation to a member of staff - any directions given to the member by the Law Complaints Officer.
(8) Nothing in this section limits the ability of the Complaints Committee to perform a function through an officer or agent.
The Board is empowered to employ or engage staff for the purpose of assisting the Complaints Committee and the Law Complaints Officer in their functions.[16]
Part 13 - Complaints and discipline
[16] Legal Profession Act 2008 (WA), s 574.
Part 13 of the Act regulates complaints about Australian legal practitioners and disciplinary measures. The purposes of the part are specified in s 401 as follows:
401.Purposes
The purposes of this Part are as follows -
(a)to provide for the discipline of the legal profession 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;
(b)to promote and enforce the professional standards, competence and honesty of the legal profession;
(c)to provide a means of redress for complaints about lawyers.
A complaint may be made under pt 13 about an Australian legal practitioner's conduct by a range of persons: the Attorney General; the Board; the Executive Director of the Law Society in respect of matters where the making of the complaint has been authorised by a resolution of the Council of the Law Society; any legal practitioner; or, any other person who has or had a direct personal interest in the matters alleged in the complaint.[17]
[17] Legal Profession Act 2008 (WA), s 410.
A complaint may be made direct to the Complaints Committee or through the Law Complaints Officer.[18] A complaint should normally be in writing, but the Complaints Committee or the Law Complaints Officer may formulate in writing any oral complaint received.[19]
[18] Legal Profession Act 2008 (WA), s 410(2).
[19] Legal Profession Act 2008 (WA), s 410(3).
In addition the Complaints Committee may, on its own initiative, investigate the conduct of an Australian legal practitioner if the Complaints Committee has reasonable cause to suspect the practitioner has been guilty of unsatisfactory professional conduct or professional misconduct.[20]
[20] Legal Profession Act 2008 (WA), s 421(1).
The Complaints Committee must investigate each complaint.[21]
[21] Legal Profession Act 2008 (WA), s 421(2).
A complaint may be withdrawn by communication to the Complaints Committee or the Law Complaints Officer.[22]
[22] Legal Profession Act 2008 (WA), s 416(2).
Part 15 regulates the conduct of investigations under the Act. It applies to the investigation of complaints under pt 13.
There are no substantive powers or duties conferred on the Law Complaints Officer under pt 13. The Law Complaints Officer's role under pt 13 is limited to, being a conduit for complaints,[23] formulating oral complaints into writing,[24] and being a person to whom notification of a withdrawal of a complaint may be made.[25]
Part 15 - Investigations
[23] Legal Profession Act 2008 (WA), s 410(2).
[24] Legal Profession Act 2008 (WA), s 410(3).
[25] Legal Profession Act 2008 (WA), s 416(2).
Part 15 contains provisions regulating investigations that may be undertaken under the Act: complaints investigations, compliance audits of incorporated legal practices, trust account investigations, and trust account examinations.
Section 517 is directed to the terms used in pt 15. Relevantly, it provides:
517.Terms used
(1)In this Part -
complaint investigation means an investigation initiated by the Complaints Committee under Part 13 or the investigation of a complaint under that Part;
ILP compliance audit means an audit conducted under section 118 in relation to an incorporated legal practice;
investigator means -
(a)a Complaints Committee member; or
(b)the Law Complaints Officer or a person nominated by the Law Complaints Officer; or
(c)in relation to an ILP compliance audit - the person appointed by the Board or Complaints Committee under section 118 to conduct the audit; or
(d)an investigator under Part 9 Division 3; or
(e)an external examiner under Part 9 Division 4;
trust account examination means the external examination of the trust records of a law practice under Part 9 Division 4;
trust account investigation means the investigation of the affairs of law practices under Part 9 Division 3.
Part 15 confers on an investigator carrying out a complaint investigation in relation to an Australian lawyer an extensive range of coercive powers. By way of example these include:
(a)The power (exercisable by the service of a notice or summons) to require the lawyer, who is the subject of the complaint: to produce documents; to provide written information; and to otherwise assist in, or cooperate with, the investigation of the complaint in a specified manner.[26]
(b)The power (exercisable by the service of a notice or summons) to require an associate or former associate of a law practice at which the lawyer being investigated practised, or any other person, to give the investigator access to documents relating to the affairs of the lawyer that the investigator reasonably requires; and to give to the investigator information relating to the affairs of the lawyer that the investigator reasonably requires.[27]
(c)The power to require information given in response to the exercise of the powers described in the preceding subparagraphs to be verified on oath or affirmation.[28]
(d)The power to enter premises with the consent of the occupier or without consent if the investigator enters under authority of a search warrant,[29] (for which the investigator has power to apply)[30] or in limited circumstances without consent and without a warrant.[31]
(e)The power to hold hearings.[32]
[26] Legal Profession Act 2008 (WA), s 520(1).
[27] Legal Profession Act 2008 (WA), s 520(2).
[28] Legal Profession Act 2008 (WA), s 520(3).
[29] Legal Profession Act 2008 (WA), s 523(2)(a) and (b).
[30] Legal Profession Act 2008 (WA), s 524.
[31] Legal Profession Act 2008 (WA), s 523(2)(c).
[32] Legal Profession Act 2008 (WA), s 530.
A summons issued under the powers described above has the same effect as a subpoena ad test or duces tecum issued by this court, and non‑observance of the summons can be punished by a judge in the same way as non‑observance of a subpoena.[33]
[33]Legal Profession Act 2008 (WA), s 520(7) and (8).
A person is obliged to comply with the requirement under pt 15 even if giving the information or access to information may tend to incriminate the person.[34]
Provisions relating to appointments
[34] However, if the person objects to providing the information on the basis that it may tend to incriminate the person, the information is inadmissible other than in specified circumstances.
For the purposes of the construction exercise to be undertaken in this case it is helpful to refer to the language used in different parts of the Act to confer various powers of appointment.
The appointment of investigators to whom pt 15 applies
Part 7 regulates incorporated legal practices and multi‑disciplinary practices. Section 118 provides for the audit of an incorporated legal practice. Section 118(2) governs the appointment of a person to conduct the audit. It states:
The Board or the Complaints Committee may, in writing, appoint a suitably qualified person to conduct an audit under this section.
Section 118(5) governs how the report of an audit is to be dealt with. Section 118(7) provides that pt 15 applies to an audit under s 118.
Part 9 regulates the manner in which law practices deal with trust money and trust accounts. Division 3 of pt 9 regulates investigations into the affairs or specified affairs of a law practice. Section 230(1) provides for the appointment of an investigator. It states:
The Board, on its own initiative or at the request of the [Legal Contribution Trust], or the Complaints Committee may, in writing, appoint a suitably qualified person to investigate the affairs or specified affairs of a law practice.
Part 15 is expressed to apply to investigations under div 3 of pt 9.[35] An investigator appointed under div 3 must provide a written report of the investigation to the Board or the Complaints Committee, whichever appointed the investigator as soon as practicable. Obligations of confidentiality are imposed on the investigator and a penalty of $10,000 may be imposed if there is a breach of those obligations.[36]
[35] Legal Profession Act 2008 (WA), s 232.
[36] Legal Profession Act 2008 (WA), s 233(2).
Division 4 of pt 9 regulates the appointment of external examiners of the trust records of law practices. The core operative provision is s 237. It provides that a law practice must have its trust records 'externally examined' each financial year by a person appointed in accordance with the regulations. The Board may 'designate' an accountant as being eligible to be appointed as an external examiner.[37] Only designated accountants may be appointed as external examiners.[38] The Board may 'appoint' an external examiner to examine a law practice's trust records if the Board is not satisfied of certain matters relating to the external examination of a law practice's records though the Act is silent as to how the appointment is to be made.[39] Part 15 is expressed to apply to an external examination. An external examiner must give a written report of an external examination to the Board as soon as practicable after completing an external examination. Obligations of confidentiality are imposed on an external examiner and a penalty of $10,000 may be imposed if there is a breach of those obligations.[40]
Other appointments for which the Act provides
[37] Legal Profession Act 2008 (WA), s 235(1).
[38] Legal Profession Act 2008 (WA), s 235(3).
[39] Legal Profession Act 2008 (WA), s 237(2).
[40] Legal Profession Act 2008 (WA), s 241(2).
Section 107(5) deals with the situation that may arise if an incorporated legal practice is without a legal practitioner director. It provides:
The Board may, if it thinks it appropriate, appoint an Australian legal practitioner who is an employee of the incorporated legal practice or another Australian legal practitioner nominated by the Board, in the absence of a legal practitioner director, to exercise the functions conferred or imposed on a legal practitioner director under this Part.
Part 10 regulates various aspects of the charging of costs by legal practitioners. Division 9 of pt 10 provides for the establishment of a committee called the Legal Costs Committee. Members of the Legal Costs Committee are appointed by the Governor by instrument,[41] and must include two local legal practitioners in private practice 'nominated' under s 311. Section 311 regulates the process by which practitioners in private practice are 'nominated' for appointment.
[41] Legal Profession Act 2008 (WA), s 310(2) and s 312.
Division 5 of pt 12 provides for the establishment of the Legal Contribution Trust. Section 393(1) provides the Trust is to consist of three trustees 'appointed' by the Governor one of whom is to be an Australian lawyer 'nominated in writing' by the Law Society, one of whom is to be an Australian lawyer 'nominated in writing' by the Board and one is to be a person not being an Australian lawyer 'nominated in writing' by the Minister.
Part 14 regulates the circumstances in which there may be 'external intervention' in various aspects of the affairs of a legal practice by means of the appointment of a supervisor, a manager or a receiver. The Act provides for the Board to 'appoint' a supervisor or a manager by an instrument in writing,[42] and for the Board to apply to the State Administrative Tribunal (the SAT) for the appointment of a receiver.[43] The SAT may 'appoint' a receiver for a law practice by an instrument of appointment.[44]
[42] Legal Profession Act 2008 (WA), s 476 in respect of a supervisor and s 482 in respect of a manager.
[43] Legal Profession Act 2008 (WA), s 489.
[44] Legal Profession Act 2008 (WA), s 489(5).
Section 75(1) confers on the Board the right to require an applicant for a practising certificate or the holder of a practising certificate to take various steps. The provision does not confer on the Board a right of appointment but provides that the Board may require the applicant for, or holder of, a practising certificate:[45]
to be medically examined by a registered medical practitioner nominated by the Board and to provide to the Board a report of that examination, at the applicant's or holder's expense;
It may be noticed that the Board 'nominates' or selects the medical practitioner. That the applicant or holder is responsible for the expense of the examination implies that he or she is responsible for the formal engagement or appointment.
[45] Legal Profession Act 2008 (WA), s 75(1)(b).
Relevant principles of statutory interpretation
The general principles applicable to statutory construction are well‑established and are outlined by the Court of Appeal in Mohammadi v Bethune.[46] Statutory construction requires attention to text, context and purpose. Context must be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise.[47]
[46] Mohammadi v Bethune [2018] WASCA 98 [31] - [36].
[47] CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey and Gummow JJ); SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 [14].
In Conservation Council of WA Inc v The Hon Stephen Dawson MLC, Minister for Environment; Disability Services,[48] Buss P and Beech JA observed at [84] - [85]:
The context to which the primary judge gave weight was the scheme of the Act, revealed by consideration of all of its relevant provisions. There is no error in approaching the task of statutory construction in that manner. To the contrary, the primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all of the provisions of the statute.
The material provisions of the Act must be understood, if possible, as parts of a coherent whole. Where the text, read in context, permits of more than one potential meaning, the choice between those meanings may ultimately turn on an evaluation of the relative coherence of each meaning with the scheme of the statute and its identified objects or policies. (citations omitted)
[48] Conservation Council of WA Inc v The Hon Stephen Dawson MLC, Minister for Environment; Disability Services [2019] WASCA 102.
The general approach to definition provisions in statutes was described by Barwick CJ, McTiernan and Taylor JJ in Gibb v Federal Commissioner of Taxation:[49]
The function of a definition clause in a statute is merely to indicate that when particular words or expressions the subject of definition, are found in the substantive part of the statute under consideration, they are to be understood in the defined sense - or are to be taken to include certain things which, but for the definition, they would not include. Such clauses are, therefore, no more than an aid to the construction of the statute and do not operate in any other way. As was said by Sutherland (Statutes and Statutory Construction, 2nd ed, vol 2, p 687):
'Such definitions can, in the nature of things, have no effect except in the construction of the statutes themselves.'
Consequently the effect of the Act and its operation in relation to dividends as defined by the Act must, we think, be found in the substantive provisions of the Act which deal with 'dividends'.
[49] Gibb v Federal Commissioner of Taxation [1966] HCA 74; (1966) 118 CLR 628, 635.
Subsequently in Allianz Australia Insurance Ltd v GSF Australia Pty Ltd,[50] McHugh J said:
Except in rare cases, definitions are not intended to enact substantive rules of law. Their function is to aid the construction of those substantive enactments that contain the defined term or terms. Moreover, the meaning of the definition depends on the context and object of the substantive enactment. As I pointed out in Kelly v The Queen:
'[T]he function of a definition is not to enact substantive law. It is to provide aid in construing the statute. Nothing is more likely to defeat the intention of the legislature than to give a definition a narrow, literal meaning and then use that meaning to negate the evident policy or purpose of a substantive enactment ... [O]nce ... the definition applies, ... the only proper ... course is to read the words of the definition into the substantive enactment and then construe the substantive enactment - in its extended or confined sense - in its context and bearing in mind its purpose and the mischief that it was designed to overcome. To construe the definition before its text has been inserted into the fabric of the substantive enactment invites error as to the meaning of the substantive enactment ... [T]he true purpose of an interpretation or definition clause [is that it] shortens, but is part of, the text of the substantive enactment to which it applies.'
In this case, therefore, the definition of 'injury' is to be read into and applied in respect of s 69(1) of the Act. When that is done, the sub-section, with that term defined, must be construed in the context in which it appears and in light of the objects of that Part and the Act as a whole.
[50] Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568 [12] ‑ [13].
In Moreton Bay Regional Council v Mekpine Pty Ltd,[51] the plurality of the High Court, French CJ, Kiefel, Bell and Nettle JJ, followed the approach in Gibb noting that the general principle may be modified by 'by a clear contrary legislative intent'.[52]
[51] Moreton Bay Regional Council v Mekpine Pty Ltd [2016] HCA 7; (2016) 256 CLR 437.
[52] Moreton Bay Regional Council v Mekpine [62].
One example of a definition provision being given a substantive effect is to be found in the decision of the Full Court of the South Australian Supreme Court in Penola & District Ratepayers' & Residents' Association Inc v Wattle Range Council.[53] In that case the Full Court was concerned with the powers of the respondent council under the Local Government Act 1999 (SA) to declare land which it owned to be a public road.
[53] Penola & District Ratepayers’ & Residents’ Association Inc v Wattle Range Council [2011] SASCFC 62; (2011) 110 SASR 110.
Notice of the council's declaration of a portion of land owned by the council was published in the Government Gazette. The South Australian Act authorised the council to declare a road under private ownership to be a public road however there was no counterpart in respect of council-owned land. The term 'Public road' was defined by s 4(1) to relevantly mean:
…
(c)any road or land owned by a council, or transferred or surrendered to a council, and which, subject to this Act is declared by the council to be a public road; or (emphasis supplied)
The question for the Full Court was whether this definition created an implied power on the council to declare land owned by the council to be a public road. White J, with whom Nyland and David JJ agreed, stated:[54]
The trial judge held that a council's power to declare land which it already owns to be a public road is implicit in para (c) of this definition. I agree. Paragraph (c) specifically contemplates two forms of land being declared to be a public road: land already owned by a council and land transferred or surrendered to a council. I also agree with the Council's submission that s 208 appears to relate to land of the former kind, and s 210 to the latter.
It is unusual for a grant of power to be found in a definition provision, but not unknown. See, for example, Chiropractors Association v WorkCover Corporation in which the power of WorkCover to 'recognise' a medical expert as a 'recognised medical expert' was found in the definition of that expression.
[54] Penola v Wattle Range Council [81] - [82].
In the later case of Registrar of Motor Vehicles v Lawson,[55] the Full Court of the South Australian Supreme Court was concerned with whether s 5 of the Motor Vehicles Act 1959 (SA) created a power to appoint 'authorised examiners'. Section 5 provided that authorised examiners meant, among other things, 'a person appointed by the Registrar for the purpose of conducting practical driving tests'. Applying the approach in Gibb, Kourakis CJ, with whom Stanley and Nicholson JJ agreed, rejected the contention that s 5 conferred a power of appointment and found that the power to appoint was implied by the substantive provisions of the Act.
[55] Registrar of Motor Vehicles v Lawson [2017] SASCFC 88.
In Federal Commissioner of Taxation v Douglas,[56] Griffiths J, Davies and Thurley JJ, had occasion to refer to the principle in Gibb and to the discussion of the principle both in commentary and in the authorities. Their Honours said:[57]
[56] Federal Commissioner of Taxation v Douglas [2020] FCAFC 220.
[57] Federal Commissioner of Taxation v Douglas [94] - [95].
The relevant principles are discussed in Herzfeld and Prince, Interpretation, Second Edition, Thomson Reuters, 2020 at [3.10]. Reference is made there to Australian Competition and Consumer Commission v Yazaki Corporation [2018] FCAFC 73; 262 FCR 243 at [113] - [114] as an exceptional case in which a definition was construed as having a substantive effect. In Yazaki, the Court considered the phrase 'exclusionary provision' in s 45 of the Competition and Consumer Act 2012 (Cth) (CC Act) and its interaction with s 4D of the CC Act, which was titled 'Exclusionary provisions'. After noting what McHugh J said in Kelly v The Queen [2004] HCA 12; 218 CLR 216 at [103], namely that the function of a definition is not to enact substantive law but is to provide aid in construing a statute, the Court in Yazaki said at [113] that Kelly involved a 'simple definition' (being the meaning of the phrase 'in the course of official questioning' within the definitions of 'confession or admission' and 'official questioning' in s 8(1) of the Criminal Law (Detention and Interrogation) Act 1995 (Tas)). In contrast, the Court in Yazaki described s 4D of the CC Act as stating substantive law. At [114] the Court said that it was doubtful whether s 4D is a definition at all given that its main purpose was to enact substantive law. In terms of the relationship between ss 4D and 45, the Court said at [122] that the correct approach was to read s 4D, according to its terms and its legal context. Moreover, at [124] the Court said that s 4D is the more specific provision which was not displaced by the more general terms of s 45, particularly because s 45(3) did not purport to define the term 'exclusionary provisions'. This view was supported by extrinsic material and other Full Court authorities.
Another example of a definition being construed as having a substantive effect is San v Rumble (No 2) [2007] NSWCA 259, which focused on the proper construction of s 51 of the Motor Accidents Compensation Act 1999 (NSW) and its interrelationship with provisions concerning costs under the Civil Procedure Rules 2005 (NSW). Campbell JA (with whom Beazley P and Ipp JA agreed) said at [55]:
'The construction of section 151 that I prefer involves conferring a substantive effect on the definition, because it has the effect of altering the rights or obligations of people. It does so by providing that the only costs that can be recovered under section 151(2) are party and party costs, and (implicit in that) that costs on an indemnity basis are not recoverable under section 151(2).'
If the definition had not been in the legislation, it would have been open to a court to apply the rules and principles that are usually applied in litigation to make an award of indemnity costs in an appropriate case where litigation was brought concerning a claim that has been the subject of a CARS assessment. Thus, the effect of the definition is to take away what would otherwise have been a right of a litigant to seek an order for indemnity costs in such a case. I recognise that conferring a substantive effect on the definition is something that is usually not appropriate to the function of a statutory definition: Gibb v The Commissioner of Taxation of The Commonwealth of Australia (1966) 118 CLR 628 at 635. However, as Pearce and Geddes, Statutory Interpretation in Australia, 6th edition, para [6.63] point out:
'Drafters do occasionally include substantive material in a definition. This is poor drafting and can lead to error in the interpretation of the legislation because of the approach set out in Gibb's case.'
Particularly when the definition in question is one that applies in one section of the legislation only, and the construction I prefer gives better effect to the policy of the Act, I am not troubled by this departure from the usual way in which statutory definitions are construed.
Consideration
The following observations may be made about s 517.
(a)It is a 'definition' provision.
(b)The definition of investigator in subparagraph (b) of s 517(1) is premised on the existence of a power on the part of the Law Complaints Officer to 'nominate' an investigator.
(c)Subparagraph (b) of the definition of 'investigator' does not use the language used elsewhere in the Act to confer powers of appointment. I have referred to some of the provisions in the Act that confer on the Governor, the Board or the Complaints Committee a power of appointing persons to perform roles specified in the Act or to take up certain positions. In each case the term used is 'appoint' and its derivatives. 'Nominate' and 'nominated' are used in the Act in the sense of selected or proposed rather than appointed.
(d)It is not the source of the power to appoint the persons specified in subparagraphs (c), (d) and (e) of the definition of investigator. The power to make each of those appointments is found elsewhere in the Act in provisions that are clearly operative in nature and which specify the obligations of the appointees in some detail. That being so, it would be anomalous for subparagraph (b) of definition of investigator to be the source of a power of appointment.
Applying the decisions in Gibb and Mekpine, s 517 does not have substantive effect unless there is a clear contrary intent. There is no clear contrary intent. Moreover, the matters to which I have referred in subparagraphs (c) and (d) above point strongly to the conclusion that s 517 is not the source of the Law Complaints Officer's power to nominate a person to act as an investigator.
For these reasons I do not accept the respondents' contention that s 517 confers power on the Law Complaints Officer to appoint a person to act as an investigator.
I do not, however, accept the applicant's contention that the power to nominate a person to act as an investigator is a power delegated to the Law Complaints Officer by the Complaints Committee. My primary reason for not accepting this contention is because, as the respondents contended, pt 15 of the Act does not confer any powers on the Complaints Committee as a collective body. It follows that the pt 15 powers are not powers the Complaints Committee may delegate. Rather, pt 15 sets out the investigative powers that might be exercised in the course of the activities described in s 518, s 522, and s 526. The Act contemplates that the investigative powers specified in pt 15 will be exercised by a single natural person. This is clear from the nature of the powers themselves. While it may be correct to say that the powers in pt 15 may be exercised on behalf of the Complaints Committee, it is not correct to say that they are powers of the Complaints Committee as a collective body.
A further reason for concluding that the legislature did not intend that the powers in pt 15 were powers that would be the subject of delegation by the Complaints Committee to the Law Complaints Officer is that such a delegation would be unnecessary as the Law Complaints Officer is one of the persons on whom the investigatory powers are expressly conferred.
As noted above, the definition of investigator is premised on the Law Complaints Officer having a power to nominate a person as an investigator. The Act does not expressly confer such a power on the Law Complaints Officer. Having concluded that the power to nominate a person as an investigator is not a power delegated to the Law Complaints Officer by the Complaints Committee, it follows that the power, if it exists, must be implied.
In my view the implication arises from s 574 that provides the Board may employ or engage staff for the purpose of assisting the Complaints Committee or the Law Complaints Officer in their functions. Functions includes the Law Complaints Officer's powers and duties.[58] Those powers or duties include those capable of being delegated to the Law Complaints Officer by the Complaints Committee encompassing, most relevantly, the power and duty to carry out complaints investigations. They also include those powers conferred on the Law Complaints Officer directly under pt 15.
[58] Interpretation Act 1987 (WA), s 5.
The power of the Board to employ or engage staff to assist with the Law Complaints Officer's functions implies a power on the part of the Law Complaints Officer to direct Board staff as to the manner in which the assistance is to be provided. In my view, this power extends to nominating (selecting or proposing) a member of the Board's staff to act as an investigator.
The implication of such a power is consistent with the Act as a whole. In my view:
(a)The construction reflects that the word 'nominated' is not used in the Act in connection with appointments to positions outside the Board's organisational structure and that 'nominate' and its derivatives are used in the Act in the sense of selecting or proposing.
(b)The construction is consistent with the limitations on the authority to delegate, that is, the Law Complaints Officer is only permitted to delegate to members of the Board's staff employed to assist the Complaints Committee or the Law Complaints Officer.
(c)That there are existing legal relationships between the Board, the Complaints Committee, the Law Complaints Officer and members of the Board's staff enables the Complaints Committee and the Law Complaints Officer to maintain close oversight over the exercise of the investigatory powers. In this respect, two matters may be noted: first, because the person nominated is someone within the structure of the Board's organisation, the nomination process does not require the degree of formality associated with the appointment processes for which the Act provides and to which I have referred. Secondly, there is no requirement for the reporting and confidentiality obligations associated with the appointment of an incorporated legal practice auditor, a trust investigator or an external examiner, because it may be presumed that such obligations are incidents of the existing legal relationships between the Board and its staff.
I will hear the parties in relation to the form of the orders and costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AS
Associate to the Honourable Justice Tottle
16 MARCH 2021
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