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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] WASC 69
Decision Date

CaseChat Overview and Summary

In the case of Goldsmith v Law Complaints Officer, the Full Court was tasked with determining whether a particular definition within the Local Government Act 1993 (Vic) implicitly empowered the council to declare land it already owned as a public road. The case arose from a dispute between the parties over the council's decision to declare certain land as a public road, which led to a challenge against the legality of this declaration. The central legal issue before the court was whether the statutory definition, which outlined the types of land that could be declared as a public road, included an implicit power for the council to declare land it already owned as such. This issue required the court to delve into the interpretation of statutory language and whether it could be construed to include a substantive power beyond mere definition.

The court's analysis began by examining the statutory definition in question and the precedents that have dealt with similar issues, such as the case of Chiropractors Association v WorkCover Corporation. The court noted that while it is uncommon for a definition to include a substantive power, it is not unprecedented. The Full Court referenced the case of Registrar of Motor Vehicles v Lawson to illustrate how substantive powers can be implied by the substantive provisions of an Act rather than by the definition itself. The court also considered the broader principles of statutory interpretation, particularly the principle that definitions are generally not intended to enact substantive law but to aid in its interpretation, as articulated in Gibb v The Commissioner of Taxation of The Commonwealth of Australia.

Ultimately, the court concluded that the definition in the Local Government Act did indeed include an implicit power for the council to declare land it already owned as a public road. This decision was based on the specific language of the definition, which contemplated both land already owned by the council and land transferred or surrendered to it. The court found that the definition was not merely descriptive but also substantive in nature, as it directly affected the rights and obligations of the parties involved. This interpretation was deemed necessary to give effect to the policy underlying the Act and to avoid an absurd outcome.

The final orders of the court would reflect its decision on the interpretation of the statutory definition and its implications for the council's power to declare land as a public road. The court's ruling provided clarity on the extent of the council's authority under the Act and set a precedent for future cases involving similar statutory definitions.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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.