Keung v Abbott - [2017] SASCFC 58

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
KEUNG v ABBOTT & ANOR
[2017] SASCFC 58
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Kelly and The Honourable Justice Hinton)
26 May 2017
PROFESSIONS AND TRADES - LAWYERS - COMPLAINTS AND DISCIPLINE - DISCIPLINARY PROCEEDINGS - SOUTH AUSTRALIA - PROCEEDINGS IN TRIBUNALS
PROCEDURE - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - PRODUCTION AND INSPECTION - GROUNDS FOR RESISTING PRODUCTION - LEGAL PROFESSIONAL PRIVILEGE - WHAT CONSTITUTES - PARTICULAR CASES
Appeal against a decision of the Legal Practitioners Disciplinary Tribunal (the Tribunal) dismissing four of five charges brought by the appellant against the respondents as out of time. Cross-appeal by the respondents arguing that the remaining charge is also out of time.
The respondents represented the appellant in litigation in the Federal Court which ceased around the end of 2009. The appellant made a number of complaints about the respondents’ conduct of that litigation to the Legal Practitioners Conduct Board (the Board). The conduct complained of occurred between 2008 and 2009. The Board instructed Cosoff Cudmore Knox (CCK), a law firm, to investigate the appellant’s complaints. CCK provided a report (the CCK report) to the Board investigating each of the appellant’s complaints. In September 2012, the Board dismissed all the appellant’s complaints bar one. The final complaint was dismissed in November 2014. The Board claimed that the CCK report was the subject of legal professional privilege.
Eventually, on 17 April 2015, the appellant laid charges against the respondents before the Tribunal based on the conduct above. On 1 October 2015 the Tribunal dismissed four of the five charges laid against the respondents as out of time. The Tribunal considered that the relevant time limit for bringing charges was five years based on s 82(2a) of the Legal Practitioners Act 1981 (SA) which applied at the time of the alleged conduct. In the event that the Tribunal was wrong based on an amendment to that Act, which would shorten the time limit for laying charges to three years but granted the Tribunal a discretion to extend that time limit, the Tribunal considered the charges out of time and declined to extend the time limit.
The appellant argues on the appeal that if the CCK report had been disclosed to him then he would have brought the charges sooner and that he was also unaware of his right to lay charges until some time later. The Commissioner (the statutory successor to the Board) intervenes in the action and maintains a claim of legal professional privilege over the CCK report.
Held, per Kelly J (Kourakis CJ and Hinton J agreeing) dismissing the appeal and allowing the cross-appeal:
1. The amendment to s 82(2a) of the Legal Practitioners Act 1981 (SA) which grants the Tribunal a discretion to extend the three year time limit for laying charges applies retrospectively. The Tribunal could have extended the time in this case. Legal Profession Conduct Commissioner v Richardson (2016) 125 SASR 152, applied.
2.       The appellant has been aware of the conduct the subject of the charges since 30 November 2010 at the latest.
3.       The analysis and conclusions contained in the CCK report were made for the dominant purpose of giving legal advice to the Board in the exercise of its statutory function and was the subject of legal professional privilege. The appellant had access to all the factual material on which the CCK report was founded, and has not demonstrated any unfairness as a result of not receiving the entire report. That the appellant did not receive the CCK report is not an adequate explanation for his delay in bringing charges against the respondents.
4.       By at least 6 September 2012, the appellant was aware of his right to lay charges against the respondents as the Board had sent him a letter informing him of that right.
5.       The Tribunal was correct in exercising its discretion not to extend the time limit of three years within which the appellant could lay charges against the respondents. The Tribunal’s order in not dismissing count 3 is set aside and it is ordered instead that count is also out of time.
Legal Practitioners Act 1981 (SA) s 82; Legal Practitioners (Miscellaneous) Amendment Act 2013 (SA) s 47, referred to.
Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49; Legal Practitioners Conduct Board v Lind (2011) 110 SASR 531; Legal Profession Conduct Commissioner v Richardson (2016) 125 SASR 152; Osland v Secretary, Department of Justice (2008) 234 CLR 275; Waterford v The Commonwealth of Australia (1987) 163 CLR 54, applied.
Commissioner of Taxation v Rio Tinto Ltd (2006) 229 ALR 304; Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543; Mann v Carnell (1999) 201 CLR 1; New South Wales Council for Civil Liberties Inc v Classification Review Board (2006) 236 ALR 313; Snedden v Minister for Justice (2014) 230 FCR 82; Viscariello v Livesey [2013] SASC 99, considered.

KEUNG v ABBOTT & ANOR
[2017] SASCFC 58
Full Court: Kourakis CJ, Kelly and Hinton JJ

KOURAKIS CJ: I would hold that the amendment of s 82 by the Legal Practitioners (Miscellaneous) Amendment Act 2013 (SA) has retrospective effect, for the reasons given by Kelly J.
The only relevant questions on this appeal are, therefore, whether the Tribunal was correct to refuse an extension of time on counts 1, 2, 4 and 5, and whether or not an extension of time should be granted on count 3 of Dr Keung’s complaint.
In the exercise of the discretion to extend time, the failure of the Legal Practitioners Conduct Board to give reasons for dismissing the appellant’s complaint should be accorded substantial weight. The conduct of Dr Keung in seeking to understand the Board’s reasons by obtaining access to the CCK report, to which it expressly had regard, was both understandable and reasonable.
The CCK report was privileged when first obtained for the reasons given by Kelly J. However, it is, at least, arguable that the Board waived that privilege by expressly considering it for the purpose of determining Dr Keung’s complaints. There is a distinction between a statutory authority obtaining and relying on legal advice to exercise a unilateral power, and the ‘outsourcing’ to its legal advisors of an investigative function by a tribunal with a statutory obligation to accord procedural fairness. A tribunal burdened with that obligation which expressly discloses that it has considered the advice of its legal practitioner for the purposes of explaining the basis of its decision may, by so doing, waive the privilege which would otherwise attach to that advice.[1] For that reason it was not unreasonable for Dr Keung to seek to obtain it.
[1] Commissioner of Taxation v Rio Tinto Ltd (2006) 229 ALR 304 at [67]; Mann v Carnell (1999) 201 CLR 1 at [29]; New South Wales Council for Civil Liberties Inc v Classification Review Board (2006) 236 ALR 313 at [26]-[27].
Nonetheless, I would hold that the Tribunal was right to find that Dr Keung should not be allowed an extension of time.
Firstly, Dr Keung delayed bringing the charges in the Tribunal for far too long whilst he attempted to obtain the CCK report. In this respect, it must be remembered that Dr Keung was in possession of the factual material on which the report was based and in particular the explanations of the practitioners.
Secondly, the practitioners’ conduct was considered by the Board, a tribunal expressly established to prosecute breaches of professional standards, and found not to warrant the bringing of charges. On the face of the explanations given by the practitioners, that decision was well founded.
Finally, the primary interest in the prosecution of breaches of professional standards is the public interest in the maintenance of proper standards by the legal profession. The interest of the individual client is but an element of that broader interest. There is nothing in the material which discloses any risk to the public interest which warrants allowing such a long extension of time.
By reason of the combined circumstances of the long delay and the weakness of the evidence of unprofessional conduct it is not in the interests of justice to grant an extension of time.
KELLY J.
Introduction
The appellant, Dr Kenneth Keung, appeals against a decision of the Legal Practitioners Disciplinary Tribunal (the Tribunal) on 1 October 2015. That decision was in respect of an application by the appellant’s former lawyers for summary dismissal of charges laid by the appellant against them.
The effect of the Tribunal’s decision was that of the five charges brought against the respondents, which all broadly speaking charged the practitioners with professional misconduct, four were dismissed as out of time.
The appellant’s application for an extension of time within which to lay the charges was also dismissed.
The respondents have cross-appealed in respect of the order of the Tribunal failing to find count 3 alleged against them was also out of time.
The issues raised on the cross-appeal relate to whether the time limit prescribed by s 82 of the Legal Practitioners Act 1981 (SA) (the Legal Practitioners Act) for the laying of count 3 was three or five years and whether the time runs from the date of the relevant conduct or the time when the complainant first became aware of the conduct or of its wrongness, or whether it runs from the time the complainant’s complaint to the disciplinary authorities was finally rejected. If the relevant time limit is three years from the date of the conduct complained of, then the additional issue arises as to whether the Tribunal had the power to extend that time limit and whether its exercise of the discretion should stand.
The Legal Profession Conduct Commissioner (the Commissioner) has intervened in the appeal.
Background
In order to understand the appellant’s grounds of appeal and the issues which arise from them, it is necessary to set out the background of the appellant’s proceedings in the Federal Court and before the Tribunal in some detail.
At all relevant times the respondents were lawyers with the firm Piper Alderman. In 2006, Piper Alderman received instruction from Wilkinson & Grist, a law firm in Hong Kong. Wilkinson & Grist acted for Australian Medic‑Care Company Ltd (AMC). At all relevant times the appellant was a director and shareholder of AMC. Initially, Wilkinson & Grist instructed Piper Alderman to advise whether conduct engaged in by an Australian company, Hamilton Pharmaceutical Pty Ltd (Hamilton), was in breach of a distribution agreement between AMC and Hamilton. In February 2007, AMC commenced proceedings against Hamilton in the Federal Court (the Federal Court proceedings). Piper Alderman were the solicitors on record and engaged senior and junior counsel. Piper Alderman continued to be retained by Wilkinson & Grist until April 2009. From that time Piper Alderman was retained by and acted for the appellant and AMC directly.
Hamilton filed a cross-claim against AMC and the appellant, alleging breach of confidence. The appellant unsuccessfully applied that the cross-claim against him be heard separately from the Federal Court proceedings.[2]
[2] Australian Medic-Care Company Ltd v Hamilton Pharmaceutical Pty Ltd [2008] FCA 821.
Judgment was delivered in the Federal Court proceedings and cross-claim on 30 October 2009.[3] AMC was successful against Hamilton and received nominal damages for Hamilton’s breach of the distribution agreement. Hamilton’s cross-claim for breach of confidence was successful against AMC but unsuccessful against the appellant. AMC was ordered to account to Hamilton for its profits. Cost orders were made on 14 December 2009.[4]
[3] Australian Medic-Care Company Ltd v Hamilton Pharmaceutical Pty Ltd [2009] FCA 1220.
[4] Australian Medic-Care Company Ltd v Hamilton Pharmaceutical Pty Ltd (No. 2) [2009] FCA 1494.
Piper Alderman ceased to act for AMC and the appellant on 16 February 2010. At that time Piper Alderman had outstanding fees of approximately $85,000 and it sought to recover those fees from AMC and the appellant in the Supreme Court. A provisional adjudication was part heard on 14 August 2012 and the dispute was then resolved in September 2012 before the provisional adjudication was due to resume.
After Piper Alderman ceased to act, the appellant made complaints to the Legal Practitioners Conduct Board (the Board) about the conduct of the respondents, and also about senior and junior counsel engaged in the Federal Court proceedings.
The appellant’s complaints were the subject of numerous correspondence and documents dated between about 24 June 2010 and 15 April 2014, to which the respondents replied during an investigation conducted by the Board, which later, after the Act was amended, became the Commissioner.
During the course of the investigation, the Board instructed the law firm, Cosoff Cudmore Knox (CCK), to investigate the appellant’s complaints on behalf of the Board. All of the complaints made by the appellant were investigated by CCK. Subsequently the Board informed the appellant that with regard to all his complaints except one (complaint 17) the Board found no unsatisfactory or unprofessional conduct on the part of either practitioner. On 20 November 2014 the Commissioner as the statutory successor to the Board informed the appellant that with regard to complaint 17 and the other complaints of alleged overcharging he found no unsatisfactory or unprofessional conduct on the part of either practitioner.
The nature of the complaints made by the appellant
It is necessary to set out the nature of the complaints made by the appellant against the practitioners as they are, broadly speaking, the basis for the five charges which he later laid. In the course of setting out the relevant chronology of the appellant’s complaints, I shall also include a brief summary of the practitioners’ responses to the complaints and the course of proceedings before the Board and, after 1 July 2014, the Commissioner.
A proper understanding of these facts is important to the ultimate determination which this Court must make as to whether the exercise of the discretion given to the Tribunal under s 82(2a)(b) of the Legal Practitioners Act was attended by error.
All of the charges arise out of the appellant’s grievance as a consequence of the result of the Federal Court proceedings.
The first count relates to conduct alleged to have occurred between 29 November 2007 and 23 January 2008. In summary it alleges that the practitioners provoked a cross-claim in the Federal Court proceedings by disclosing a formula for the production of a certain skin cream said to belong to AMC and they did so with a view to running up unnecessary costs.
The practitioners responded to that complaint to the Board as follows. On instructions from the appellant, Piper Alderman on 12 October 2007 rejected Hamilton’s lawyers’ demands for documents relating to the development of the design of the Fuyunhon label and packaging on the basis that no proceedings making any claim in respect of the label and packaging had then been issued and no discovery was due. Later, pursuant to an order made by Mansfield J in the Federal Court, discovery was made after verification and review in discussion with one of the practitioners, Mr Magarey, and the appellant.
Hamilton pleaded a failure to mitigate in response to AMC’s claim for damages for unlawful termination of the distribution agreement between it and Hamilton. The formula was contained in a document attached to an email voluntarily supplied to Piper Alderman by the appellant in December 2007 in response to Piper Alderman’s requests for documents to rebut Hamilton’s defence plea of failure to mitigate. Unbeknown to both practitioners the formula supplied was actually based on a Hamilton document on which the appellant had masked the name “Urederm” and typed in its place the name “AMC”.
They said that at that time the appellant did not inform Piper Alderman and nor did the practitioners know, suspect or have any reason to suspect that the formula was a Hamilton document or that it contained any confidential material of Hamilton’s. The instructions given by the appellant to Piper Alderman were that the formula and manufacturing methods for 10 percent urea cream were common and widely known.
In due course the appellant filed an affidavit in the proceedings in compliance with an order of Finn J that AMC deliver all witness statements on which it intended to rely by 21 December 2007. That affidavit referred to the email containing the attachment. A draft of that affidavit was sent to the appellant’s Hong Kong solicitors for checking. Neither the appellant nor his solicitors gave Piper Alderman any warning or instruction in respect of the inclusion of the email and the formula document in that affidavit.
A draft of that affidavit was also sent to senior counsel, Mr Ian Robertson SC, in December 2007 for review. After discussions with Mr Robertson at that time, and having been informed by Mr Robertson that he was on holiday and then interstate assisting in an advocacy training course for the whole of January 2008, Mr Abbott formed the opinion that Mr Robertson did not have sufficient time to usefully review the various drafts of that affidavit together with the case book documents. The affidavit was sworn in Hong Kong on 23 January 2008.
It is apparent from the material before this Court that the appellant was aware of the conduct which constitutes this charge no later than 24 June 2010, which was the date when he first complained to the Board about it. All of this history was fully ventilated in the practitioners’ responses to the Board.
The charge laid in count 2 relates to alleged conduct by the practitioners between November 2008 and November 2009 when they are alleged to have persistently lied about the availability of senior counsel, Mr Robertson, during the relevant period. The appellant complains about the practitioners lying to him, as well as telling him falsely that no reply submissions were to be prepared. It is apparent that the appellant was aware of these alleged lies by 7 December 2010 when he wrote a letter to CCK about them.
The practitioners’ explanation for this conduct was that they had simply conveyed in an accurate manner advice from Mr Robertson that during the relevant period his health was seriously compromised and he was unable to undertake the full range of activities required by counsel and secondly, Mr Robertson’s advice concerning his other commitments after the part heard trial in July/August 2008.
As I understand this complaint, the basis of the appellant’s assertion that Mr Abbott lied about senior counsel’s availability is said to be a letter Mr Robertson wrote on 15 February 2010 charging for some work performed over the relevant period. This complaint was the subject of the investigation by the Board. No evidence of unsatisfactory conduct on the part of the practitioners was found.
Count 3, which was the only charge not dismissed by the Tribunal in light of its finding about the relevant time limit prescribed in s 82(2a) of the Act, is a complaint that during CCK’s investigation into the alleged misconduct of the respondents, both the respondents lied. The specific lie alleged is that both practitioners said in separate letters dated 30 November 2010 to CCK that, in Mr Magarey’s case he did not appear at an interlocutory hearing on 30 May 2008, and in Mr Abbott’s case, he was not present at that hearing. These assertions were made in the context of much larger responses dealing with other voluminous complaints made by the appellant.

They said that upon reviewing their responses over the Christmas holiday period, both practitioners were reminded that they had in fact been present, in Mr Abbott’s case sitting with the appellant in the public gallery. Accordingly on 8 February 2011 Mr Abbott notified the Board before any issue was raised by the appellant or anyone else. In Mr Magarey’s case he also advised that he was present, but that he had not “appeared” in the sense that he made a formal announcement of appearance at the hearing.
The appellant does not accept or acknowledge that Mr Magarey, in his initial response to CCK to the complaint made about the manner of the conduct of that interlocutory hearing, was using the word “appear” in a technical legal sense. The appellant became aware of this matter in February 2011 when Mr Abbott raised it with the Board.
Count 4 concerns events about which the appellant complained to the Board which occurred between 16 and 17 December 2008 when Hamilton made an offer to AMC but ultimately withdrew that offer before acceptance by the appellant.
The appellant complained before the Board, and again repeated that complaint in charge 4, that on 16 December 2008 Piper Alderman failed to seek urgent instructions from AMC on the wording of the proposed draft deed of settlement from Hamilton and later misled AMC by sending a text message asking AMC to respond by the next day instead of seeking an urgent reply from AMC.
The appellant claimed that this failure to facilitate the settlement offer was another method employed by Piper Alderman for mercenary reasons, namely to frustrate a possible settlement available to AMC.
Once again the practitioners replied in some detail about the events which occurred during those dates as follows. They confirmed that Hamilton did indeed make a settlement offer in writing on 16 December 2008 in conditional form. The offer included a requirement that the appellant, AMC and the new supplier of the cream undertake that they would cease manufacture of any cream that used the Hamilton formula.
As to the appellant’s complaint that the lawyers made insufficient attempts to convey that offer to the appellant, they said it was conveyed by email to the appellant and to his Hong Kong solicitors on that day, being 16 December 2008. The appellant’s response, again in email form, was that he could not give any instructions until the following morning.
Later that day Mr Magarey sent multiple emails to the appellant and to the Hong Kong lawyers and an SMS to the appellant. Neither the Hong Kong lawyers nor the appellant responded until the appellant’s email at 2.30 am South Australian time on 17 December 2008. Prior to that, both Mr Magarey and Mr Abbott said they had endeavoured to advance the settlement as best they could in the absence of instructions from the appellant. This was in light of the appellant’s email which included a note that to the extent that the settlement involved actions by the third party, Sphere, “they may need to take some time to digest the documents”. At no stage on that day did the appellant provide instructions to accept the offer.
Both practitioners acknowledged that they did not deal with the appellant’s email which had arrived in the Adelaide office at 2.30 am on the morning of 17 December, until later in the morning by which time the solicitors for Hamilton had phoned Piper Alderman and withdrawn the in principle offer. The appellant was informed of Hamilton’s termination of settlement discussions at about 2.00 pm on 17 December 2008 and was certainly aware of what had transpired no later than 24 June 2010 when he complained about it.
Count 5 (a-f) all represent complaints previously made by the appellant as to aspects of costs charged by Piper Alderman.
Count 5a is a complaint about alleged duplication of jobs by Piper Alderman. 5b was another complaint about items appearing in their schedule of costs said to be billings for a meeting between Mr Abbott and Mr Robertson on 26 October 2009 which never happened. 5c was a complaint about Piper Alderman billing multiple times for the same jobs in different terms in respect of various items found in their schedule of costs. The appellant alleged this was deceptive conduct because a Master made appropriate deductions during a taxation hearing on 14 August 2012. 5d is a complaint that Piper Alderman failed to send estimates of certain jobs to AMC before doing those jobs. In this context, once again the purported lies of the respondents about the unavailability of counsel was alleged to have been repeatedly used as an excuse to charge AMC for jobs done by the solicitors instead of counsel. 5e is a complaint that an amount was charged by Mr Abbott in respect of drafting a deed of release and negotiating terms of engagement between the appellant and Piper Alderman, which cost was disallowed during the taxation of Piper Alderman’s bills. 5f was a further complaint of being overcharged in respect of conduct already the subject of a complaint in counts 1, 2 and 4. Generally the appellant claimed that the lawyers continued to create unnecessary work for the purpose of excessive billing.
In summary, all of the charges laid by the appellant represented conduct or aspects of conduct which had been previously investigated by the Board (and later the Commissioner), and in respect of which the Board and the Commissioner ultimately determined that there had been no unsatisfactory or unprofessional conduct on the part of the practitioners.
The Legal Practitioners Disciplinary Tribunal decision
On 1 October 2015 the Tribunal dismissed the appellant’s application for an extension of time. The Tribunal said in its reasons:
As I have found that the five year limitation period applies, there is no discretion to grant an extension of time.
If I am wrong, and the amended s.82(2a) does apply to the laying of these charges before the Tribunal, then the time for laying all of the charges (three years) lapsed by November 2010 with the latest by November 2013. I would need to consider whether to allow an extension of time pursuant to the amended s.82(2a)(b).
I would decline to exercise the discretion to extend the time. There has been a substantial lapse of time from the date of the conduct to the laying of charges before the Tribunal. There has been no adequate explanation for the delay. Dr Keung was advised of the Board’s decision regarding the conduct the subject of these charges (other than count 5(e)) by letter dated 20 March 2012. On 5 September 2012, Dr Keung emailed the Board asking the following question:-
If I need to apply for further decision by the Tribunal myself or the Board can direct the complaints to the Tribunal for and on behalf of our company?
By emailed letter dated 6 September 2012, the Board responded. Dr Keung was advised that ‘pursuant to s82(2) of the Legal Practitioners Act a charge may be laid before the Legal Practitioners Disciplinary Tribunal by a person claiming to be aggrieved by reason of the alleged unprofessional or unsatisfactory conduct (of legal practitioners)’. A copy of section 82 was attached to the emailed letter. He was also advised that ‘The Board cannot direct a complaint to the Tribunal for or on behalf of your Company.’
Dr Keung was aware of his right to lay charges by September 2012 at the latest, but did not exercise that right for over 2.5 years. Dr Keung explained his delay by reference to his pursuit of the CCK Reports due to the Board not providing reasons in the letter dated 20 March 2012, complicated litigation and adjudication on bills of costs in the Supreme Court and the difficulties of self-representation. I find that Dr Keung made a deliberate decision to pursue those matters rather than lay charges before the Tribunal. On the basis of Dr Keung’s own submission, it would seem that the laying of these charges was considered by him to be yet another route by which he may obtain a copy of the CCK Reports and the report of Ms Manos.
[footnote omitted]
The appeal
The appellant filed a notice of appeal in respect of the Tribunal’s decision on 6 November 2015. He later sought to file an amended notice. A single Judge refused permission in respect of the application to file the amended notice and upon the hearing of this appeal the appellant renewed the application to amend.
The proposed amendments relate to the addition of some six paragraphs in the notice of appeal under a heading “The Conduct Commissioner’s Misrepresentation of the Practitioners’ misconduct”.
After seeking clarification from the appellant as to what was meant by those additional paragraphs, the respondents withdrew their objection to the amended notice except insofar as the respondents submitted that the proposed amendments contained new and scandalous allegations concerning their own conduct and conduct of the Commissioner.
Insofar as the proposed amendments deal with lies previously relied upon and agitated by the appellant, the respondents did not object, nor did they object to the additional paragraphs which dealt with this Court’s decision in Legal Profession Conduct Commissioner v Richardson.[5]
[5] (2016) 125 SASR 152.
As I understand the proposed amendments, the appellant accepts the correctness of the decision in Richardson and acknowledges the factors previously agitated in support of the argument about the correct time limit as now relevant to the question of whether an extension of time should have been granted.
Insofar as the remaining paragraphs in the proposed amended notice of appeal raise new grounds by way of additional lies which were not the subject of previous complaints, the Court disallowed the proposed amendments. Insofar as the paragraphs deal with lies previously alleged and relied on, the amendments were permitted. Thus in the end permission to amend the notice of appeal in respect of [27] to [30] inclusive, and the second half of [32] was allowed. Paragraphs [27] and [28] set out uncontroversial procedural facts and dates relating to the filing of applications by the Commissioner to become an intervener and by the respondents for permission to cross-appeal. In [29] the appellant accepts the Court’s decision in Richardson and asserts a need to amend his notice of appeal to place more emphasis on the factors favouring the granting of discretion to extend the time limit. In [30] the appellant refers to submissions previously filed with the Tribunal on 22 June 2015.
The paragraphs disallowed, namely [31] and the first half of [32], refer to four alleged lies, two of which were objected to by the respondents as being both new and scandalous. Those fresh allegations include a suggestion that during the investigation process the practitioners lied by denying that the appellant was their client at the material times and that they had instead asserted that their client was Wilkinson & Grist, as well as an allegation that the practitioners had lied in relation to the negotiation settlements the subject of count 4. The second half of [32], which was ultimately allowed, is a request for the CCK report and the granting of permission to extend the time limit for laying all five charges.
On appeal the appellant’s primary contention appears to be that the Tribunal erred in failing to exercise the discretion available to it under the amended s 82(2a) of the Legal Practitioners Act to allow an extension of time in which to lay charges against the respondents. The appellant complains that the Tribunal erred in applying the unamended version of s 82(2a) which did not vest any discretionary power in the Tribunal to extend the time limit for an aggrieved person to lay charges. The appellant now seeks that this Court, in accordance with the Court’s decision in Richardson, make orders extending the time limit to enable him to lay all five charges.
The appellant complains that it would be wrong and against natural justice for the time limit for the laying of charges to begin from the time of the conduct which is the subject of the charges. Instead, the appellant contends that the time should run from the date the appellant first became aware of the conduct of the practitioners. The appellant also complains about the finding of the Tribunal that he was aware of his right to lay charges by no later than September 2012. In making that finding the Tribunal referred to a letter emailed to the appellant on 6 September 2012 in which the Board expressly advised the appellant of that right.
Furthermore, the appellant complains that the Tribunal failed to properly consider his reasons for the delay in laying charges. The appellant relies on an extensive list of reasons for the delay, however it appears that his principal explanation relates to non-disclosure to him of the reasons of the Board and the contents of the CCK report. The appellant complains that he was deprived of his right to fully understand the complaints, alleging that as a lay person he was hesitant to lay any charges against a lawyer unless he was “quite sure of misconduct” on the part of the practitioners. He also says he was not familiar with the relevant legal provisions relating to complaints against legal practitioners.
Further issues cited by the appellant as explanation for his delay were: delay due to the complicated litigation and adjudication on the bills of costs of their payment; the inability of AMC to pay further lawyers to contest the decision of the Board and as a consequence of “the Commissioner’s suppression of transparency”; reinvestigation and declaration of “no misconduct” in respect of complaint number 17; delay due to the initial failure of the Board to investigate the complaint of overcharging; issues the appellant had with self-representation; and delayed awareness and confirmation of misconduct by the respondents due to the failure of the Board and the Commissioner to investigate the complaints fairly and openly.
The time limitation for the laying of a charge under the Legal Practitioners Act 1981 (SA)
The issues which arise in respect of the appellant’s appeal as to the dismissal of counts 1, 2, 4 and 5, and the respondents’ cross-appeal in relation to count 3, can be conveniently discussed together.
Both concern the limitation period for the laying of charges under s 82 of the Legal Practitioners Act. Prior to the amendment of the Legal Practitioners Act in 2013 (which came into effect on 1 July 2014) s 82 of the unamended Act provided that charges were to be laid within five years of the relevant conduct. However, charges could be laid after five years if the charge was laid by, or with the written consent of, the Attorney-General.
The 2013 amendments by virtue of the Legal Practitioners (Miscellaneous) Amendment Act 2013 (SA) (the Amendment Act) provided that charges are now required to be laid within three years of the relevant conduct. However, if the charge is laid by the Attorney-General or the Tribunal allows an extension of time, charges may be laid after three years from the relevant conduct.
Contrary to the decision of the Tribunal, this Court’s decision in Richardson relevantly determined that the transitional provisions in the Amendment Act indicated an intention that the amendment to the time limitation provided in s 82 of the Act have retrospective effect, both as to the laying of the charge and the subsequent conduct of the charge. Therefore the Tribunal’s decision that it had no power to consider any application for extension of time is incorrect. It necessarily follows that the Tribunal’s decision in relation to count 3 was also incorrect.
In Richardson this Court held that the Tribunal has power under s 82(2a) of the amended Act to allow an extension of time for the laying of the charge and whether or not the Tribunal exercises its discretion to allow such an amendment on the merits is a matter for the Tribunal. There has been no contention in this Court by any party, including the intervener, that the decision in Richardson is wrong.
Accordingly, the question now arises whether, on the assumption it did have the power to exercise the discretion, the Tribunal’s decision that it would not have exercised the discretion to extend the time in relation to any count was correct.
In its reasons the Tribunal held that there had been a substantial lapse of time between the date of the conduct and the date of laying the charges in respect of counts 1, 2, 4 and 5, and that there had been no adequate explanation for the delay. Further, that Dr Keung had been aware at least since September 2012 of his right to lay charges but had chosen not to do so for a period of over two and a half years.
The submission made by the appellant that the time for laying charges under s 82(2a) should run from the date when the appellant first became aware of the conduct cannot be accepted. That section clearly states that a charge must be laid within three years of the relevant conduct.
This is not to deny, however, that the time between when the appellant first became aware of the conduct and the laying of the charges is a relevant factor in weighing up whether the discretion under s 82(2a) should have been exercised in the appellant’s favour.
Other factors which are relevant include the length of the delay, the reasons proffered by the appellant for the delay, the prospects of the appellant succeeding in the prosecution of any or all of the charges, and the extent of any prejudice to either the appellant or the respondents consequent on the exercise of the discretion to permit an extension of time.
The first relevant matter is that in respect of each of the counts, as the Tribunal noted, there was a substantial delay between the date of the conduct said to be the basis of the charge and the laying of the charge.
The conduct alleged in count 1, which concerns allegations the practitioners provoked a cross-claim by disclosing the Hamilton formula, is said to have occurred between 29 November 2007 and 23 January 2008. In relation to count 2, the conduct alleged, which was the lies of the two practitioners about Mr Robertson’s availability and telling the appellant that no reply submissions needed to be prepared, occurred between November 2008 and November 2009. The conduct in relation to count 3, which was the alleged lies to CCK about the practitioners’ attendance at a hearing on 30 May 2008 before Besanko J occurred on 30 November 2010. As to count 4, which was based on events at the time when Hamilton through its solicitors made an offer of settlement to AMC, which was withdrawn before acceptance, occurred on 16 and 17 December 2008. Finally, in relation to count 5, each sub-paragraph (a)-(f) which concerns complaints about overcharging and in particular charging for drafting a retainer agreement for the appellant, occurred between November 2009 and the end of January 2010.
It is plain, therefore, that all of the conduct the subject of the five charges occurred in each case more than three years prior to the laying of the charges on 17 April 2015. It is also relevant to note at this point that the appellant was plainly aware of the conduct no later than August 2012. In fact, the subject of count 1 which occurred between November 2007 and January 2008 must have been known no later than May 2008 when Hamilton issued its cross-claim for breach of confidence against AMC and in it alleged that AMC and the appellant had appropriated the formula from Hamilton in breach of confidence. Thereafter the appellant instructed his lawyers that he had done nothing wrong and that there would be no liability to Hamilton as during the course of manufacture of the product Sphere Health Care had changed the formula and manufacturing method from that set out in the formula said to be Hamilton’s.
In relation to count 2, which conduct is said to have occurred between November 2008 and November 2009, it is evident from correspondence emanating from the appellant himself that he was aware of the conduct no later than 7 December 2010. The appellant contends that he became aware of this conduct only after he had completed his inspection of his former lawyers’ file in August 2012. The respondents contend that the appellant must have been aware both as to the alleged misinformation about Mr Robertson’s availability and of his actual availability no later than the date of the last invoice and report from the lawyers on 29 January 2010.

The conduct giving rise to count 3, namely the alleged lies to CCK, must have been known to the appellant no later than 24 February 2011 as that is the date on which he complained about it to the Board by letter. That conduct was numbered complaint 30 by CCK and was investigated.
The conduct relevant to count 4 arises out of the communications between the appellant and the respondents on 16 and 17 December 2008 and was conduct of which the appellant became aware by no later than 18 December 2008, namely the next day.
It is apparent that the complaints giving rise to count 5 concerning alleged overcharging is conduct about which the appellant became progressively aware as invoices were rendered between September 2009 and January 2010. The appellant was made aware of more detail during the Supreme Court adjudication proceedings in August 2012 when he inspected the entire file of his former lawyers.
In this context it is also relevant that during the investigation by CCK all of the respondents’ communications with CCK and/or the Board, which responded substantively to the complaints made by the appellant, were supplied to the appellant for him to make comment to the Board and/or to CCK with the sole exception of a letter dated 5 December 2013 which Mr Abbott had asked to remain confidential. That letter was subsequently annexed to an affidavit filed by the practitioner Mr Abbott on 16 July 2015. Consequently it appears that the appellant received from the Board in December 2013 a copy of the letter which Mr Ericson of Finlaysons wrote to Mr Abbott on 11 December 2013 in which he expressed a view about aspects of one of the complaints made in count 5 concerning the charging by the practitioner of a fee for the preparation of the retainer agreement with the appellant.
That is the background against which the appellant now submits that an extension of time to lay the charges should be granted.
Although the appellant gave a number of explanations for the delay in laying the charges, his principal reason appears to relate to the failure of the Board or Commissioner to release the CCK report to him at any time on or after the decisions were made in 2012. As I understood the appellant’s lengthy submissions about this, the gravamen of his complaint seems to be that the failure to disclose the CCK reports has left him in the dark and has prejudiced his ability to determine whether the Board or the Commissioner made any error in the process of the investigation against the two respondents. The appellant claims that had the CCK reports been disclosed on 20 March 2012 there would not have been any delay in laying the charges. The appellant has submitted that he was unaware of his right to lay charges until sometime between December 2014 and 31 March 2015. The appellant has also claimed that he only became aware of his right to lay charges during a Tribunal hearing on 31 March 2015.
In light of that submission it is necessary to examine first whether the appellant’s submission on that topic can be accepted, and secondly, whether the report of CCK should have been disclosed to the appellant.
Legal professional privilege
I deal first with the preliminary issue of legal professional privilege which the Commissioner maintains in respect of the CCK report. It is the Commissioner who makes the claim for legal professional privilege on this appeal because the functions of the Board were transferred to the Commissioner as and from 1 July 2014.
The appellant seeks access to CCK’s report to the Board as well as its letter of 5 October 2011 to the Board.
In determining this issue I have had regard to a schedule the Commissioner prepared and filed in these proceedings to assist the Court, setting out in some considerable detail the nature and category of documents contained in the CCK report. Although the Commissioner submitted that this Court may inspect the CCK report in order to determine whether or not it is in fact privileged without providing it to the appellant, for my part, I have not found it necessary to inspect the report in determining this issue.
The Board’s statutory function in investigating complaints was set out in s 76(1) of the unamended Legal Practitioners Act. That section stated:
76—Investigations by Board
(1)The Board may, of its own motion, make an investigation into the conduct of a legal practitioner or former legal practitioner who the Board has reasonable cause to suspect has been guilty of unprofessional or unsatisfactory conduct.
(1a)The Board must make an investigation into the conduct of a legal practitioner or former legal practitioner where—
(a) the Board has been directed to make the inquiry by the Attorney-General or the Society; or
(b) a complaint has been received in relation to the conduct of the legal practitioner or former legal practitioner.
…
As the Board’s successor, the Commissioner’s statutory function is to be found in s 77B(1) of the amended Act. Section 77B states:
77B—Investigations by Commissioner
(1)The Commissioner may, on his or her own initiative, make an investigation into the conduct of a legal practitioner or former legal practitioner who the Commissioner has reasonable cause to suspect has been guilty of unsatisfactory professional conduct or professional misconduct.
(2)Subject to this section and sections 67B and 77C, the Commissioner must make an investigation into the conduct of a legal practitioner or former legal practitioner if—
(a) the Commissioner has been directed to make the inquiry by the Attorney General or the Society; or
(b) a written complaint that complies with subsection (3a) has been received in relation to the conduct of the legal practitioner or former legal practitioner.
…
As a consequence of one of the practitioners about whom the appellant complained then being Chair of the Board, the Board determined to outsource the investigation to CCK, an independent firm of solicitors. CCK was retained by the Board to conduct the investigation. The Board did not delegate its function to CCK but simply retained it to investigate and provide advice. In that capacity CCK received submissions on the complaints from both the appellant and the practitioners, analysed the evidence adduced and gave legal advice to the Board.
The first observation I make is that the Commissioner did not and has not claimed privilege in respect of some of the documentation obtained in the course of completing the investigation. It appears that it is not in dispute that the appellant has been provided with the complaints and all of the responses of the practitioners, with the exception of one letter (provided later in these proceedings) and all correspondence from the complainant and the practitioners to CCK.
The schedule filed by the intervener at the Court’s request indicates the format adopted by CCK in considering each of the 32 complaints made by the appellant since 24 June 2010. In respect of each complaint CCK first stated the allegation, then stated the submissions made about the allegation, then examined the documentation and any other evidence provided, then provided legal advice about conclusions CCK drew from the facts, and finally, provided legal advice in respect of each complaint as to whether or not the Board should or should not be satisfied that there is evidence of unsatisfactory or unprofessional conduct.
The Commissioner submitted that each of the analyses of the complaints and observations made by CCK in respect of its summary of the conclusions was the basis for the legal advice given and recommendations made about each complaint.
In addition to the specific complaints, the CCK report also contains discrete legal advice on numerous topics including the following:
·whether the complaints or any of them were frivolous or vexatious;
·the legal function of the Board;
·the way in which the Board could use the report;
·the general meaning of unprofessional conduct and unsatisfactory conduct;
·the legal reason why CCK considered the information provided to them by the practitioners could not be used for any purpose other than for the purposes of the Act;
·legal advice whether the Board needed to make any concluded findings as to the contractual relationship between Piper Alderman and the appellant and AMC;
·advice as to whether there was any merit in the contention made by a member of Piper Alderman that, with regard to the two practitioners the subject of the complaints, by reason of legal professional privilege the complainants’ responses to the advisors should not be provided to the appellant;
·advice on the specific application of the meaning of unsatisfactory conduct and unprofessional conduct in relation to each complaint;
·advice as to the allegations made by the complainants that the two practitioners intentionally caused damage to AMC and the appellant, manipulated documents to be discovered by AMC, took certain steps in the proceedings with the aim of increasing Piper Alderman’s fees and blackmailed the appellant by the threat of ceasing to act;
·advice as to whether or not the overall conduct and supervision of the litigation met the standard of conduct to be observed in the circumstances of the litigation by a competent legal practitioner of good repute;
·the legal reason why CCK did not provide to the complainants information provided by the practitioner Mr Abbott on the topic of the overall conduct and supervision of the litigation on behalf of AMC and the appellant; and
·advice as to whether the request by the practitioner Mr Abbott that the complainants release Piper Alderman from any liability and claims which they might have had as a term of the firm agreeing to continue to act for AMC and the appellant, might constitute conduct which did not meet the standard of conduct to be observed by a competent legal practitioner of good repute.
In an additional report of the same date contained in a letter of 5 October 2011, CCK also provided legal advice concerning the taxation of costs issue in the Supreme Court between the appellant and Piper Alderman.
Counsel for the intervener explained that upon receipt of the CCK report, the Board commenced its own deliberations and then formed its own view on the complaints, having been informed by that report.
The Board’s statutory function was to investigate and determine if there was evidence of unsatisfactory or unprofessional conduct. With the exception of some minor conduct which can be dealt with without issuing a charge in Tribunal proceedings, all other misconduct was to be dealt with by charge before the Tribunal.
In the course of the investigation carried out by CCK, the appellant received all of the information which the practitioners provided in response to the allegations made by him, with the exception of one letter, which the appellant now has.
In addition CCK offered to meet with the appellant to discuss the complaints with him and the appellant was given ample opportunity to make full and detailed representations and submissions concerning the practitioners’ responses. It is evident from the volume of material generated during that period that the appellant took full advantage of that offer.
In a letter to the appellant on 20 March 2012 the Board resolved that there was no unsatisfactory or unprofessional conduct by the practitioners with the exception of the complaint numbered 17 which concerned the costs involved in preparing the retainer agreement between the practitioners’ firm and the appellant and AMC.
In due course, after hearing further submissions from the practitioner, and legal advice on the topic of costs for the preparation of retainer agreements, the Commissioner (as successor to the Board) also resolved that there was no unsatisfactory or unprofessional conduct in respect of the costs complaints made by the appellant.
The test to be applied in respect of the Commissioner’s claim for privilege has, since the decision in Esso Australia Resources Ltd v Federal Commissioner of Taxation,[6] been the “dominant purpose” test. Thus communications made or documents prepared for the dominant purpose of providing legal advice are documents which might properly be the subject of a claim for legal professional privilege.
[6] (1999) 201 CLR 49.
In my view the analysis and conclusions of CCK, together with its legal advice to the Board, was made for the dominant (if not the sole) purpose of giving legal advice to the Board in the exercise of its statutory function. I consider as well, that the material was made in contemplation of legal proceedings in the Tribunal. At no stage did the Board, or subsequently the Commissioner, waive privilege in respect of that report and advice. As such, I consider that aspect of the CCK report is and remains privileged. In my view the claim for privilege is properly made even though the entity to which CCK provided the advice is a statutory body charged with a statutory function under the Legal Practitioners Act.
Decisions of both the High Court and intermediate appellate courts have considered this question. In Waterford v The Commonwealth of Australia,[7] the High Court held there was no difference in determining whether privilege applied to a matter concerning a statutory tribunal or a government agency. Nor did it find any distinction between legal advice obtained by government agencies or persons and non-government clients and legal advisors.
[7] (1987) 163 CLR 54.
In New South Wales Council for Civil Liberties Inc v Classification Review Board[8] the issue again arose in the context of a challenge to a decision by the Classification Review Board of New South Wales. The Full Court of the Federal Court rejected a challenge for the application of the principle enunciated by the High Court in Waterford that the privilege did not extend to communications brought into existence for the dominant purpose of seeking or providing legal advice to a statutory board or tribunal. The Court held that no such exception could be read into the decision in Waterford.
[8] (2006) 236 ALR 313.
In a more recent case, Snedden v Minister for Justice,[9] the Court held that rules of procedural fairness do not compel a decision maker to produce documents the subject of legal professional privilege. In that case an advice was received by the Justice Department from the Office of International Law which considered and advised upon the requirement of Mr Snedden to be extradited in relation to war crimes. The Full Court held that an administrative decision maker cannot be compelled to disclose the gist of legal advice if this would result in the waiver of privilege.
[9] (2014) 230 FCR 82.
In any event, in my view there are sound reasons in principle as to why advice given to the Board and later to the Commissioner should not be treated any differently to the advice which is given to other statutory tribunals.
The Board is an independent statutory body charged with an important responsibility in investigating and regulating the conduct of legal practitioners. As Gray J pointed out in Legal Practitioners Conduct Board v Lind:[10]
A practitioner whose conduct is the subject of an inquiry by the Legal Practitioners Board or the Legal Practitioners Tribunal must uphold the obligations of candour and frankness to the Board and Tribunal. A practitioner has a duty to assist any such inquiry. Attendance to these obligations is an essential part of proper professional conduct.
[footnotes omitted]
[10] (2011) 110 SASR 531 at [15].
The outcome of an investigation can affect the livelihood and reputation of a practitioner. It is not surprising in these circumstances that the Board, Commissioner or the Tribunal may from time to time require legal advice on any number of aspects in the course of an inquiry, nor is it surprising that the statutory bodies concerned need to preserve the confidentiality of internal documents which may contain a forensic analysis of the strengths and weaknesses of a case to be made against a practitioner.
The appellant has not demonstrated any relevant unfairness as a consequence of not being provided with the whole of the CCK report as opposed to the foundational factual material which he is already in possession of.
It needs to be borne in mind that it was the appellant who formulated the original complaints and that a substantial amount of documentation and material subsequently generated by those complaints was either authored or provided by him or alternatively was given to him as part of the practitioners’ responses during the investigation.
There was no statutory obligation imposed on the Board to give reasons for its decision, although it is evident from the letter of 20 March 2012 that some explanation was given to the appellant of the reasons for the dismissal of all but one of the complaints made by him.
Even so, it is evident on the face of all of the material before this Court why the Board resolved the complaints in the way that it did and that the appellant’s decision to lay charges is in truth an attempt to re-agitate the same complaints made previously to the Board.
In these circumstances it is difficult to understand what prejudice has flowed to the appellant by not having the legal advice and recommendations made by CCK to the Board in the exercise of its statutory function.
A similar submission was made in the matter of Osland v Secretary, Department of Justice.[11]In Osland it was submitted that there was an obligation upon the Victorian Civil and Administrative Tribunal to disclose legal advice given to the Attorney-General as to whether Mrs Osland, who had previously been convicted of murder, should be granted an executive pardon.
[11] (2008) 234 CLR 275.
It was accepted by the Tribunal that there was some overarching duty of fairness to “clear the air and properly inform the public” about the terms of advice given to the Attorney-General.
Although the decision in Osland turned on the particular terms of a statutory scheme which allowed the Victorian Civil and Administrative Tribunal to review a decision to claim legal professional privilege and grant an applicant access to documents if it was in the public interest, the remarks of Hayne J are pertinent.
After citing with approval Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission,[12] Hayne J observed:[13]
It is thus to be observed that the balance which legal professional privilege strikes in favour of maintaining confidentiality of certain communications is fixed despite not only a competing public interest in the fair trial of litigation (civil and criminal), but also the competing public interests which underpin particular statutorily created processes for compulsory disclosure of documents or information.
[12] (2002) 213 CLR 543 at [9]-[11].
[13] Osland v Secretary, Department of Justice (2008) 234 CLR 275 at [142].
His Honour went on:[14]
Legal professional privilege gives effect to a particular balancing of public interests. The balance is struck in favour of confidentiality unless the client waives the privilege. A government client, whether a Minister or some other agency, obtaining legal advice to which legal professional privilege attaches is not in any different position from any other client except to the extent provided for by the FOI Act.
Unless particular considerations are identified as supporting the conclusion that the public interest requires disclosure of particular documents in respect of which legal professional privilege is maintained, the public interest in the maintenance of the client’s privilege is not to be set aside. It is to be expected (at least in all but the most exceptional case) that any such countervailing consideration could be described with particularity and that it would be an interest of weight and substance. So much follows from the considerations of public interest that underpin the privilege, and from the fact that s 50(4) is not engaged unless the Tribunal is of the opinion that the public interest requires disclosure of the documents in question. But no countervailing interest was identified in the present case beyond the invocation of a general proposition about the desirability of clearing the air and a general assertion that there is a public interest in information being fully available.
[footnote omitted]
[14] Osland v Secretary, Department of Justice (2008) 234 CLR 275 at [151]-[152].

In my view the comments of Hayne J apply to the circumstances here with equal force.
The appellant has identified no relevant or particular unfairness to him other than to assert that he has been kept “in the dark box” about the reasoning of CCK and the Board. However, in making this submission the appellant has ignored the fact that he is in precisely the same position as the Board was in respect of the factual foundation for its decision. All of the factual responses given to the Board are and have been in the possession of the appellant.
In addition, as I have observed earlier, it is apparent on the face of that material why the Board reached the conclusions it did. For example, in respect of the charge laid in count 2 about the alleged lies told by the practitioners about senior counsel’s availability, it is plain from the explanations given by both practitioners and Mr Robertson that on any sensible view of the material the practitioners did not lie to CCK.
The appellant has himself acknowledged that there has been a thorough investigation of his complaints by the Board and subsequently by the Commissioner.
In these circumstances the only material sought by the appellant which he does not already have is advice, comments and opinions expressed by CCK in the course of the investigation and reporting to the Board.
In my view the Tribunal was correct to conclude that the opinions of others contained in material already in the appellant’s possession could be of no relevance or assistance to the appellant in the prosecution of the charges.
For these reasons, in my view the claim for legal professional privilege is properly made and should be upheld by this Court.
In light of my conclusion that the claim for legal professional privilege is properly made, I do not find it necessary to go on to consider the alternative argument that the CCK report may be protected by public interest immunity.
I turn now to the explanations proffered by the appellant as to his delay in laying the charges against the practitioners.
The Tribunal, in exercising its discretion, found that the appellant had not provided any adequate explanation as to why he delayed laying charges for over two and a half years after he was first advised that he was entitled to do so in a letter from the Tribunal to him dated 6 September 2012.
The appellant claims that he was unaware of his right to lay charges until sometime after December 2014 and a hearing at the Tribunal on 31 March 2015. In his written submissions to the Tribunal dated 24 August 2015, which the appellant agreed should be treated as his sworn evidence on the topic, the appellant stated:
At the time when the Board sent me the information sheet on 16 January 2012 after making the Complaint of Overcharge on 11 January 2012, I did not grasp the meaning of laying charges as I needed to depend on the investigation of the Conduct Board. On 6 September 2012, I was only absorbed by the clauses relating to conciliation since it had been conducted on 3 September 2012. I did not notice any information about the laying of charges. In the hearing dated 31 March 2015 for action 12 of 2014, I asked the Chairman if I could lay charges in that action, she advised me to take legal advice. …
It is significant that the appellant in that submission acknowledged receipt of the letter which stated clearly that the appellant had the right to lay charges and in fact included a copy of the relevant section, s 82, in that letter.
In light of this I consider that the assertion by the appellant that he nevertheless remained unaware of his right to lay charges until after December 2014 cannot be accepted.
The appellant’s next submission was that he delayed laying charges because he wanted to obtain the CCK report first. He said he wanted to be sure that there was actual misconduct on the part of the practitioners before taking the step of laying charges.
That submission is to be evaluated in the light of the fact that the appellant has received all of the practitioners’ explanations and responses to his complaints. Those responses by the practitioners were thorough and addressed in detail each of the appellant’s complaints.
The appellant, as author of the complaints, was also invited to respond to the practitioners’ explanations and did so at length. In these circumstances I do not understand the appellant’s submission that he wished to delay laying the charges until he was absolutely certain that they amounted to professional misconduct. Since the first complaint was made the appellant has maintained that the conduct of the practitioners was professional misconduct. The appellant does not now seek to make any fresh complaint. He relies on matters about which he has always complained.
It is evident that he did not need the CCK report to lay the charges because in fact he did lay charges without the report.
In exercising its discretion whether to extend the time in which to lay the charges, the Tribunal was entitled to take into account not just the reasons proffered by the appellant for the delay, but also other aspects of the matter, including the prospects of success and any prejudice to the parties if an extension was not granted.
In Viscariello v Livesey[15] White J, in the context of discussing the scope and purpose of s 82, observed that the scheme of the Act is to empower the Board (as it then was), the Attorney-General and the Law Society, three independent and reputable bodies, to lay charges only in circumstances where they have reasonable cause to suspect that a practitioner is guilty of unprofessional conduct.
[15] [2013] SASC 99.
The fact that after a lengthy and thorough investigation, both the Board and the Commissioner declined to lay any charges, is a factor to be taken into account. It is also relevant that after an exhaustive investigation, neither the Board nor the Commissioner found evidence of any conduct on the part of the practitioners that amounted to either unsatisfactory conduct or professional misconduct.
The fact that the appellant remains aggrieved not only by the outcome of the Federal Court proceedings but also by the outcome of the complaints process which he initiated cannot amount to prejudice within the relevant sense. On the other hand there is considerable prejudice to the two practitioners involved who have spent many hundreds of hours over the past eight years answering each of the appellant’s complaints which have now been dismissed by both the Board and the Commissioner.
Had the Tribunal exercised the discretion in favour of the appellant those practitioners would have again had to devote significant time and resources to re‑explaining events which occurred over nine years ago. It is well over four and a half years since the complaint about lying in count 3 and the complaints which form the basis of counts 1, 2 and 4 were resolved by the Board, and it is now more than four years since the finalisation of the costs adjudication which the Commissioner ultimately dismissed (see count 5).
In light of the foregoing, I do not consider that the appellant has discharged the onus upon him to demonstrate that there has been any error in the exercise by the Tribunal of its discretion not to extend the time within which to lay any of the charges.
For these reasons I consider that the appellant’s appeal should be dismissed, the cross-appeal should be allowed and the following orders made.
The order of the Tribunal dismissing the appellant’s charges against the respondents as out of time in relation to counts 1, 2, 4 and 5 is confirmed. The order of the Tribunal in not dismissing count 3 as out of time is set aside and a new order is made dismissing that charge as out of time. The Tribunal’s order dismissing the appellant’s application for an extension of time in relation to all charges is confirmed.
HINTON J: I agree with Kelly J for the reasons her Honour gives that this appeal should be dismissed. I also agree with the concurring reasons of the Chief Justice.