Keung v Abbott (No 2) - [2019] SASCFC 39

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
KEUNG v ABBOTT & ANOR [NO 2]
[2019] SASCFC 39
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Kelly and The Honourable Justice Hinton)
12 April 2019
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT - REOPENING APPEAL
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT - REOPENING APPEAL
Application to reopen the appeal in Keung v Abbott [2017] SASCFC 58 and to recall and correct the orders made in disposing of that appeal.
In April 2015 the appellant commenced disciplinary proceedings in the Legal Practitioners Disciplinary Tribunal against the respondents. The disciplinary proceedings were constituted of a charge containing five counts of alleged professional misconduct. The respondents filed an application in the Tribunal that sought, amongst other things, orders dismissing the proceedings on the grounds that each count was out of time under s 82(2a) of the Legal Practitioners Act 1981 (SA) (the Act).
On 1 October 2015 the Tribunal, constituted of a single member, granted the respondents' application in part by determining that all counts save count 3 were out of time. The Tribunal further determined that it did not have the power to grant an extension of time in which to lay a charge, and even if it did, it would not grant such an extension.
The appellant appealed against the Tribunal’s orders and the respondents cross-appealed.
On 26 May 2017 this Court delivered judgment dismissing the appeal and allowing the cross-appeal. The orders were perfected on 29 June 2017.
Since judgment was delivered, this Court in Legal Profession Conduct Commissioner v Fittock [2017] SASCFC 169 (Fittock) determined that an application for an extension of time was not a procedural or interlocutory application within the meaning of s 80(1b) of the Act and, consequently, could not be heard by the Tribunal constituted of a single member.
The appellant made an application to this Court to recall the orders made on 26 May 2017 as perfected on 29 June 2017, allow the appellant’s appeal, set aside the orders made by the Tribunal and remit the matter to be heard by the Tribunal properly constituted. The respondents conceded that, applying Fittock, the Tribunal as constituted had acted beyond power in entertaining the appellant’s application for an extension of time, but submitted that the appeal to this Court being competent, the Court should proceed to determine the question of whether to grant the appellant an extension of time afresh.
Held, per Hinton J (Kourakis CJ and Kelly J agreeing), exercising the discretion to extend time afresh, no extension should be granted. As no different conclusion would be arrived at in terms of the orders made by this Court in disposing of this matter the application is dismissed.
Legal Practitioners Act 1981 (SA) ss 80(1c), 80(1b), 82(2a), 86; Legal Practitioners (Miscellaneous) Amendment Act 2013 (SA); Supreme Court Act 1935 (SA) s 72; Supreme Court Civil Rules 2006 (SA) r 242, referred to.
Players Pty Ltd (In Liq) v Clone Pty Ltd (2013) 115 SASR 547, not followed.
Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; Bailey v Marinoff (1971) 125 CLR 529; Castle Constructions Pty Ltd v Sahab Holdings Pty Ltd (No 2) (2013) 87 ALJR 1159; Clone Pty Ltd v Players Pty Ltd (In Liq) (2018) 92 ALJR 399; D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; Fittock v Legal Profession Conduct Commissioner [2017] SASC 113; Keung v Abbott [2017] SASCFC 58; Legal Practitioners Conduct Board v Nicholson [2006] SASC 21; Legal Profession Conduct Commissioner v Fittock [2017] SASCFC 169; Legal Profession Conduct Commissioner v Richardson (2016) 125 SASR 152; McAdam v Robertson (1999) 73 SASR 360; Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; NH v Director of Public Prosecutions (SA) (2016) 260 CLR 546; Pantorno v The Queen (1989) 166 CLR 466; Smith v New South Wales Bar Association (1992) 176 CLR 256; Viscariello v Legal Practitioners Conduct Board (No 2) [2013] SASCFC 27, considered.

KEUNG v ABBOTT & ANOR [NO 2]
[2019] SASCFC 39
Full Court: Kourakis CJ, Kelly and Hinton JJ

KOURAKIS CJ: I would dismiss the application for the reasons given by Hinton J.
KELLY J: I agree with the Order proposed by Hinton J for the reasons he has given.
HINTON J:
Introduction
This is an application to reopen the appeal in the matter of Keung v Abbott and to recall and correct the orders made in disposing of that appeal.[1] I would dismiss the application. My reasons follow.
[1] [2017] SASCFC 58.
Background
On 17 April 2015 the appellant commenced disciplinary proceedings (the disciplinary proceedings) in the Legal Practitioners Disciplinary Tribunal (the Tribunal) against the respondents, solicitors who had acted for him in litigation in the Federal Court. The disciplinary proceedings were constituted of a charge containing five counts of alleged professional misconduct particularised as occurring:
i.      count 1 — between 29 November 2007 and 23 January 2008.
ii.     count 2 — between November 2008 and November 2009.
iii.     count 3 — on 30 November 2010.
iv.     count 4 — between 16 and 17 December 2008.
v.      count 5(a)-(f) — between September 2009 and January 2010.
On 18 June 2015 the respondents filed an application in the Tribunal seeking, amongst other things, orders dismissing the disciplinary proceedings on the grounds that each count was out of time.
The time within which a charge of unprofessional or unsatisfactory conduct must be laid in the Tribunal was governed by s 82(2a) of the Legal Practitioners Act 1981 (SA) (the Act or Legal Practitioners Act). As at the date of the commission of the conduct subject of the five counts contained in the charge, s 82(2a) provided that a charge must be laid within five years of the relevant conduct unless it was laid by the Attorney-General or the Attorney-General gave written consent to the laying of the charge. Section 82(2a) was deleted by the Legal Practitioners (Miscellaneous) Amendment Act 2013 (SA) (the Amendment Act) and in its place a fresh s 82(2a) was substituted. Amended s 82(2a) came into operation on 1 July 2014. It provided that a charge must be laid before the Tribunal within three years of the conduct to which it relates occurring unless the charge was laid by the Attorney-General or the Tribunal allowed an extension of time.
The respondents’ application for summary dismissal was heard on 24 August 2015. The question arose as to which version of s 82(2a) applied. If the unamended section applied, all counts save count 3 were out of time. If amended section applied, all counts were out of time but it was open to the appellant to seek an extension of time from the Tribunal. In a document dated 23 June 2015 entitled, “Reply to Application of Andrew Robertson Dated 18 June 2015”, the appellant sought an extension of time, presumably in the event that the Tribunal determined that amended s 82(2a) applied.
On 1 October 2015 the Tribunal delivered its decision. The Tribunal determined that unamended s 82(2a) applied with the consequence that all counts save count 3 were out of time. Further, the Tribunal noted that unamended s 82(2a) did not vest power in the Tribunal to grant an extension of time. Accordingly, the respondents’ application was granted in part.
The Tribunal’s conclusion that unamended s 82(2a) applied foreclosed any question of the appellant being granted an extension of time because, unlike amended s 82(2a), the unamended section did not vest power in the Tribunal to grant an extension of time in which to lay a charge. Accordingly, the Tribunal dismissed the appellant’s application for an extension of time. Notwithstanding, in the event that the Tribunal was wrong in determining that unamended s 82(2a) applied, the Tribunal considered the question of whether an extension of time should be granted under amended s 82(2a). The Tribunal determined that if amended s 82(2a) were applicable, it would have refused the appellant’s application. The Tribunal said:
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 2.5 years. Dr Keung explained his delay by reference to his pursuit of the CCK Report 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 that basis of Dr Keung’s own submission, it would seem that the laying if 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.
[footnotes omitted]
At the same time the Tribunal dealt with an application to issue a summons to the Legal Practitioners Conduct Board to produce a report prepared by Cosoff Cudmore Knox solicitors (the CCK report)[2] who had been retained by the Board to investigate complaints made by the appellant, including complaints regarding the conduct subject of the charge. The Tribunal declined to issue the summons.
[2] Including a letter from Cosoff Cudmore and Knox to the Board dated 5 October 2011.
On 6 November 2015 the appellant appealed against the Tribunal’s orders including the refusal to issue the summons to produce. The respondents cross-appealed contending, in effect, that amended s 82(2a) applied and therefore that the Tribunal was wrong in concluding that count 3 was commenced within time.
The appeal was heard in September 2016. On 26 May 2017 this Court dismissed the appeal and allowed the cross-appeal.[3] The orders made on 26 May 2017 were perfected on 29 June 2017.
[3] Keung v Abbott [2017] SASCFC 58.
On 4 July 2017 the appellant filed an application for special leave to appeal to the High Court against the orders made by this Court as perfected on 29 June 2017.
Subsequently, on 14 August 2017, the appellant filed an application under r 242(2) of the Supreme Court Civil Rules 2006 (SA) (SCCR) seeking orders that this Court correct errors made in its judgment and set aside the orders as perfected on 29 June 2017. That application was called on for directions on 29 August 2017. As at that time, and since judgment had been handed down on 26 May 2017, a single judge of this Court in Fittock v Legal Profession Conduct Commissioner had determined that an extension of time could not be granted under s 82(2a) of the Act by the Tribunal constituted of a single member.[4] That matter was subject to appeal to this Court. In the present matter the respondents’ application for dismissal of the charge and the appellant’s application for an extension of time had been heard by the Tribunal constituted of a single member purportedly under s 80(1b) of the Act. In the circumstances it was thought appropriate to adjourn the appellant’s application under r 242(2) to await the outcome of the Full Court’s judgment.
[4] [2017] SASC 113.
On 12 September 2017 the High Court dismissed the appellant’s application for special leave.[5]
[5] Keung v Abbott [2017] HCASL 113.
On 19 December 2017 the Full Court dismissed the appeal in Legal Profession Conduct Commissioner v Fittock (Fittock) holding that an application for an extension of time made under amended s 82(2a)(b) of the Act was not a procedural or interlocutory matter within the meaning of s 80(1b) of the Act and, consequently, could not be heard by the Tribunal constituted of a single member.[6]
[6] [2017] SASCFC 169.
At a subsequent directions hearing in the present matter the appellant made plain that his position was that the Full Court should recall the orders made on 26 May 2017 as perfected on 29 June 2017, allow the appellant’s appeal, set aside the orders made by the Tribunal constituted of a single member, and remit the matter to be heard by the Tribunal properly constituted.
Keung v Abbott
After the appellant had instituted his appeal to this Court, and before the hearing of the appeal, a differently constituted Full Court in Legal Profession Conduct Commissioner v Richardson (Richardson) determined that amended s 82(2a) applied to disciplinary proceedings commenced in the Tribunal after 1 July 2014 irrespective of whether the conduct to which the proceedings related occurred before or after 1 July 2014.[7]
[7] (2016) 125 SASR 152.
On the hearing of the appeal to which the present application relates, neither party contended that Richardson was wrongly decided. Rather in his application to amend his Notice of Appeal the appellant embraced the conclusion in Richardson by contending that the Tribunal erred in not granting his application for an extension of time. Further, the cross-appeal was premised on the correctness of Richardson.
The appeal to this Court from the orders made by the Tribunal on 1 October 2015 was instituted pursuant to the right provided by s 86(1) of the Act. The appeal is in the nature of a rehearing and was conducted on that basis. Kelly J determined that the Tribunal did not err in refusing to grant an extension of time in relation to counts 1, 2, 4 and 5 and that an extension of time should not be granted in relation to count 3. In the course of arriving at her conclusions Kelly J considered whether the CCK report should have been disclosed to the appellant and the relevance of the non-disclosure to his explanation for delay in laying the charge. Kelly J determined that the report was privileged. Her Honour also considered that the non-availability of the report to the appellant did not result in any unfairness. All that was not available to him was the advice, comments and opinions expressed by Cusoff Cudmore and Knox solicitors which could be of no assistance to him in the prosecution of the charge.
Kourakis CJ arrived at the same conclusion but for different reasons. The Chief Justice agreed with Kelly J that the CCK report was privileged but considered that it was not unreasonable for the appellant to seek access to the CCK report. Despite this, the Chief Justice considered that the dismissal of counts 1, 2, 4 and 5 was correct and the refusal to dismiss count 3 incorrect. He said:[8]
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 doing so, waive the privilege which would otherwise attach to that advice. For that reason it was not unreasonable for Dr Keung to seek to obtain it.
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.
[footnote omitted]
[8] Keung v Abbott [2017] SASCFC 58 at [4]-[9].
I agreed with both Kourakis CJ and Kelly J. Kelly J may be considered to have found that no error in the House v The King sense was committed by the Tribunal in relation to counts 1, 2, 4 and 5, but such error was committed in relation to count 3.[9] Her Honour may also be considered to have exercised the discretion afresh in relation to count 3. Similarly, the Chief Justice may be considered to have applied House v The King, but determined that a relevant consideration was not taken into account in relation to counts 1, 2, 4 and 5, and that had it been, the same conclusion would have been reached. Like Kelly J the Chief Justice must be considered to have exercised the discretion afresh in relation to count 3.
[9] (1936) 55 CLR 499.
In effect the dispositive orders made by this Court under s 86(3) affirmed the Tribunal’s order granting the respondents’ application for the dismissal of counts 1, 2, 4 and 5, quashed the Tribunal’s order refusing to dismiss count 3 and substituted an order dismissing count 3.
The current application and submissions in support
On the hearing of the present application the appellant submitted that the erroneous constitution of the Tribunal had the effect that the decision made on 1 October 2015 was beyond jurisdiction and thus void and of no effect. This being so, he submitted, his application to correct the errors he contended this Court to have made in Keung v Abbott was unnecessary. The appeal had to be reopened, the orders made recalled and in their place orders made allowing the appeal and remitting the matter to the Tribunal to be dealt with afresh.
In elaborating upon this submission the appellant pointed to the fact that the Tribunal correctly constituted would include at least one member who is not a legal practitioner.[10] He contended that the part played by the layperson in any decision-making by the Tribunal was important and one not to be usurped by this Court. The input of laypersons in decisions of the Tribunal was, the appellant submitted, important to overcoming any appearance of bias.
[10] Legal Practitioners Act 1981 (SA), s 80(1c).

The appellant then turned to the summons to produce the CCK report. He submitted that no hearing was conducted on the question of whether that summons which he had filed with the Tribunal should issue. The hearing conducted on 24 August 2015 dealt exclusively with the question of whether the charge and its component counts were laid within time and whether an extension of time should be granted. As part of this argument the appellant implicitly contended that the question of whether the summons should issue was also one that should have been heard by the Tribunal constituted by three members.
The appellant then submitted that if the Full Court did reopen the appeal and recall the orders it had made, but chose not to remit the matter, preferring instead to determine for itself whether an extension of time should be granted, then the Tribunal properly constituted would not have considered the question. In those circumstances, he said, procedural unfairness would result.
In bringing his submission to a conclusion the appellant contended that this Court had no power to correct a judgment made beyond power and must remit the matter to the Tribunal. He then referred to his application for the correction of errors suggesting that it was not abandoned. That application asserted:
I.The Full Court erred in confirming the presence of legal professional privilege in the Cosoff Cudmore Knox (CCK) reports without considering its contents, and thus depriving the appellant’s right to have his complaints properly understood and a fair hearing;
II.The Full Court erred in assuming that the appellant had possession of all documents relating to his complaints when the CCK report is a crucial document and the appellant was denied access to it throughout;
III.The Full Court erred in assessing the strength of the appellant’s complaints or the lack of it without reference to the contents of the CCK reports and the appellant’s unchallenged evidence;
IV.The Full Court was wrong to conclude that the Boards’ decision was well-founded based on the explanations given by the practitioners without reference to the contents of the CCK reports;
V.The Full Court was wrong to conclude that the appellant’s chance of success in his complaints against the practitioners was poor without regard to the contents of the CCK reports, which on its face condemned the conduct of the practitioners;
VI.The Full Court was wrong to conclude that the Respondent’s explanations and responses to the appellant’s complaints were thorough or satisfactory and had addressed in detail each of the appellant’s complaints;
VII.The Full Court was wrong to assume that the alleged delay on the part of the appellant was the result of the persistent effort of the appellant without any regard to the fact that without the CCK reports, it would be unwise and imprudent for the appellant to formally lay charges against the respondents;
VIII.In refusing to exercising the discretion in favour of the appellant by allowing the appellant an extension of time, the Full Court had wrongly failed to take into consideration that;
i. The appellant was not legally represented and would have difficulties in understanding the full impact of Legal Practitioners Act and its amendments;
ii.    It was reasonable for the appellant to obtain access to the CCK reports;
iii.   It is reasonable to assume that the contents of the CCK reports are helpful to the appellant’s case;
iv.   The prejudice said to be suffered by the practitioners was the result of their professional misconduct, the concealment of the former presiding member’s misconduct of the Conduct Board by the Commissioner and that the delay, if any, did not cause any additional prejudice.
IX.The Full Court erred in not reversing the decisions of the Tribunal and not granting the Appellant an extension of time on counts 1, 2, 4 and 5 and the Full Court further erred in reversing the decision of the Tribunal on count 3.
X.The Full Court erred in ordering the Appellant to pay costs to the Respondents and the Legal Profession Conduct Commissioner without considering the misconduct of the former and the act of obstruction of justice of the latter through concealment of the CCK reports and without holding a hearing or asking the parties to file submissions on costs.
The appellant requested that the Court read the CCK report “to get the truth before making [a] decision on the application and to understand why the respondents have tried hard to persuade the court not to release them”. That report, he added, was not used by either the Legal Profession Conduct Commissioner or the Tribunal to assess the merits of the charges he laid. It may have been different had a Tribunal constituted of three members considered the summons to produce the CCK report. He concluded:
Hereby I request the — sincere request the Full Court to set aside the two judgments of the tribunal and the Full Court dated 1 October 2015 and 26 May 2017 respectively together with the associated costs orders and remit the case to a properly constituted tribunal, to settle the discovery issue before the tribunal determines extension of time limit to lay my charge.
The respondents conceded that this Court was empowered to reopen the appeal in order to consider the impact of the decision in Fittock. Having made that concession, the respondents submitted that Fittock in no way affected this Court’s decision that the Tribunal was correct not to issue the summons to produce the CCK report on the grounds that it was privileged. That matter was one falling within s 80(1b) of the Legal Practitioners Act.
Accepting that Fittock meant that the Tribunal as constituted acted beyond power in entertaining the appellant’s application for an extension of time and the respondents’ application for summary dismissal, the respondents submitted that the appeal to this Court was nonetheless competent and that this Court should proceed to determine the question of whether to grant the appellant an extension of time afresh.
Consideration
In conceding that the appellant’s application was competent under r 242 SCCR the respondents relied upon the judgment of this Court in Viscariello v Legal Practitioners Conduct Board (No 2) (Viscariello).[11] In that case Gray, Sulan and Blue JJ referred to the judgments of the High Court in Smith v New South Wales Bar Association[12] and Autodesk Inc v Dyason (No 2) (Autodesk)[13] and an earlier decision of this Court in McAdam v Robertson (McAdam)[14] as providing the applicable principles. In none of the cases relied upon in Viscariello had the order of the court been perfected as it has in this case. Further, Autodesk is a case concerning the power of a final court of appeal to reopen its own decisions, not an intermediate level appellate court such as this. Further again, it is unclear from Viscariello whether the orders made in disposing of the appeal had been perfected before the application to reopen was made.
[11] [2013] SASCFC 27.
[12] (1992) 176 CLR 256.
[13] (1993) 176 CLR 300.
[14] (1999) 73 SASR 360.
When taxed with the question of whether the perfection of the order in this case made any difference, counsel for the respondents answered in the negative referring to the breadth of r 242. I return to this issue below. For immediate purposes, I deal with the application on the basis that it is competent. The applicable principles drawn from Viscariello and the authorities to which it refers may be distilled to the following:
I.    the power to reopen is discretionary and is to be exercised with great caution having regard to the strong public interest in maintaining the finality of litigation;
II.   relevant considerations include:
i.      once a stage in the process of litigation has been completed, ordinarily it should not be revisited;
ii.     our system of adversarial litigation ordinarily obliges a party to present their whole case and to present their best case;
iii.     whether there is available an avenue of appeal;
iv.     whether the court has good reason to consider that in its earlier judgment it has proceeded on a misapprehension of fact or law in a significant respect which cannot be attributed solely to the neglect or default of the party seeking the rehearing;
v.      whether the party applying to reopen has had the opportunity to be heard on why orders should not be made;
III. the jurisdiction is not to be exercised for the purpose of re-agitating arguments already considered by the court or to elaborate on arguments previously put;
IV. the jurisdiction is not to be exercised to afford an opportunity to a party to persuade the court that a matter considered and decided has been wrongly decided.
In McAdam Doyle CJ added:[15]
As the High Court said in Smith (at 265) the power is discretionary. It is not a power that lends itself to detailed categorisation, but nor is the discretion an ample one. Indeed, it is fairly closely confined.
[15] (1999) 73 SASR 360 at [40] (Bleby and Martin JJ agreeing).
More recently in Castle Constructions Pty Ltd v Sahab Holdings Pty Ltd (No 2) the High Court returned to its judgment in Autodesk and said:[16]
All members of the Court in Autodesk (No 2) accepted that this Court may recall orders which it has made disposing of an appeal if those orders were made against a party who, without fault on the part of that person, has not had an opportunity to be heard as to why those orders should not be made. More particularly, it was accepted that this Court may recall its orders if they were made on a ground which the person against whom the orders were made had no opportunity to argue.
…
This Court divided in opinion in Autodesk (No 2) about whether the jurisdiction to recall this Court’s orders extended beyond cases where a party was not given an opportunity to be heard on an issue held to be determinative. Mason CJ took the broadest view of the power to reopen and, with Deane J, dissented as to the outcome in the particular case. Mason CJ said that the exercise of the jurisdiction to reopen should not be confined “in a way that would inhibit [the Court’s] capacity to rectify what it perceives to be an apparent error arising from some miscarriage in its judgment”. Nonetheless, Mason CJ emphasised that the jurisdiction to reopen “is not to be exercised for the purpose of re-agitating arguments already considered by the Court”. Rather, Mason CJ concluded that “[w]hat must emerge ... is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing”.
[footnotes omitted]
[16] (2013) 87 ALJR 1159 at [13], [15] (The Court).
Again, these remarks are made in the context of the power possessed by a final court of appeal to recall its orders. Such power is likely broader than that available to an intermediate level appellate court. Certainly the power possessed by an intermediate level appellate court is no greater.
Minister for Immigration and Multicultural Affairs v Bhardwaj stands as authority for the proposition that the legal effect or consequences of an administrative decision made beyond power must depend upon the statute vesting power.[17] Thus:[18]
… it is neither necessary nor helpful to describe erroneous administrative decisions as “void”, “voidable”, “invalid”, “vitiated” or, even, as “nullities”. To categorise decisions in that way tends to ignore the fact that the real issue is whether the rights and liabilities of the individual to whom the decision relates are as specified in that decision. And, perhaps more importantly, it overlooks the fact that an administrative decision has only such force and effect as is given to it by the law pursuant to which it was made. Further, the use of the term “appeal” and the proposition that an administrative decision must have sufficient vitality to provide the subject matter of such a curial proceeding should not obscure the fundamental proposition that such an “appeal” or other proceeding for judicial review is an exercise of original jurisdiction by the court concerned. It will be necessary to refer further to this consideration later in these reasons.
[footnote omitted]
[17] (2002) 209 CLR 597 at [11] (Gleeson CJ), [46] (Gaudron and Gummow JJ), [63] (McHugh J), [147] (Hayne J).
[18] Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [46] (Gaudron and Gummow JJ).
Section 86(1) of the Legal Practitioners Act provides:
Subject to subsection (2), a right of appeal to the Supreme Court lies against a decision of the Tribunal made in the exercise or purported exercise of powers or functions under this Act.
The section both confers a right and implicitly vests jurisdiction in this Court to determine any appeal instituted in the exercise of such right. Subsection (2) conditions the right. Significantly, s 86(1) extends the right and concomitant jurisdiction to purported decisions. A purported decision may be accepted as one made beyond power.[19] This being so, a decision made by the Tribunal that is beyond power has legal effect to the extent that it supports the right to appeal and the jurisdiction vested in this Court to determine such appeal. Accordingly, I reject the appellant’s contention that the appeal was incompetent.
[19] Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 at [103]-[105] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Batterham v QSR Ltd (2006) 225 CLR 237 at [26] (Gleeson CJ, Gumow, Hayne, Callinan and Crennan JJ); Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602 at 635 (Gaudron and Gummow JJ).
The respondents’ submission implicitly accepted that the appeal had been decided on the basis of a significant misapprehension of law which could not be attributed to the appellant. To my mind there is a distinction between an issue in a case being decided on a misapprehension of law shared by the parties and an error of law made at first instance not raised on appeal but raised on an application to reopen the appeal. In the former instance the issue in dispute is determined on an erroneous basis, in the latter the issue is not considered, not disputed and not determined.
The appellant was afforded a reasonable opportunity to present his case. True he did not have the benefit of this Court’s decision in Fittock, but the successful point taken in Fittock was one he could have run had he thought of it. He is in no different position to any other litigant who exhausts appeal rights only for this or a higher court in another matter to decide a different case on a basis that could have resulted in a different outcome in the litigant’s own matter had the subsequent decision been decided at an earlier time or had the appellant thought of the argument that succeeded. That is an ordinary incident of our legal system.
Pre-perfection of a court’s orders, that a party has failed to bring its best case may not necessarily be decisive of the exercise of the discretion to reopen. Much will depend upon any explanation for the failure. The respondents appear to have accepted that in this case the appellant is unrepresented and for that reason should be afforded some leniency. Further, the respondents chose to contest the application on the basis that, accepting Fittock, this Court should proceed to exercise the discretion whether to grant an extension of time afresh.
The appeal being competent, the dispositive powers vested in this Court by s 86(3) of the Act were enlivened. Those powers included that this Court may “affirm, vary, quash or reverse the decision subject to the appeal and administer any reprimand, or make any order, that should have been administered or made in the first instance”. Bearing in mind that an appeal may be instituted against a purported decision, s 86(3) necessarily contemplates that this Court may, error being established, exercise the powers vested in the Tribunal afresh notwithstanding that the Tribunal has committed a jurisdictional error. That is, this Court may, in effect, exercise a form of original jurisdiction in relation to a charge laid before the Tribunal. It also follows from this that Parliament has considered and accepted that where this Court considers it appropriate to make an order that should have been made in the first instance no layperson shall be involved in the making of such order. Accordingly, the appellant’s submission that this Court should stay its hand because of the non-involvement of a layperson in any re-exercise of the discretion cannot be accepted.
That is not to devalue the involvement of the non-legal practitioner members of the Tribunal in the work of the Tribunal. Clearly, the involvement of persons who are not part of the practising legal profession assists in overcoming any perception of bias in what is largely a disciplinary scheme for legal practitioners run by legal practitioners. The structural mechanisms that ensure the independence and impartiality of this Court defeat any perception of institutional bias. If there is otherwise an apprehension of bias, an application may be made in the usual way. In this regard it also should not be overlooked that this Court is ultimately responsible for supervising legal practitioners.[20]
[20] Legal Practitioners Conduct Board vNicholson [2006] SASC 21.
In my view it is appropriate for this Court to exercise the power contained in s 82(2a)(b) afresh. This Court is in no different position to the Tribunal. All the material upon which that question was to be considered by the Tribunal is before this Court and I have reminded myself of its content. If my analysis of the judgments of the Chief Justice and Kelly J is correct, this Court has already exercised the discretion contained in s 82(2a)(b) afresh in relation to count 3. Fittock does not affect this. Nothing in the explanation contained in the appellant’s document entitled, “Application for Correction of Errors in the Reasons of Judgement Dated 26 May 2017 and Setting Aside the Orders Sealed on 29 June 2017”, causes me to think that the discretion should have been differently exercised. Those submissions, in truth, seek to re-argue what has been determined.
I remain satisfied for the reasons given by Kourakis CJ as quoted above[21] and those given by Kelly J in her judgment at [126]-[139] that the appellant’s application in relation to all counts should be refused.
[21] At [21].
I do not accept that the Board’s letter to the appellant of 6 September 2012 would not have been understood by him on account of his not being legally trained. As I have previously indicated, I agree with Kourakis CJ that it is understandable that the appellant wished to obtain the CCK report, but the appellant’s pursuit of the report is but one factor to be taken into account. The delay was too long.
I turn to the specific complaints made in the appellant’s application for the correction of errors. I agree with the respondents that the complaints are in the nature of grounds of appeal. No misapprehension of law or fact is asserted, rather error in approach or outcome is argued. In essence the grounds seek to re-argue the exercise of the discretion and many are linked to the significance of the CCK report not being available to the appellant. That issue was specifically taken into account by Kourakis CJ and Kelly J. Both Kourakis CJ and Kelly J point out that the appellant was in possession of all factual material on which the CCK report was based and the practitioners’ explanations for their actions. As Kelly J notes, all he did not have was the opinions of others regarding that factual material and the conclusions to be drawn from it. In my opinion none of the grounds set out in the application for the correction of errors demonstrate that the Court has proceeded according to some misapprehension of the facts or the relevant law in relation to the question of the purported exercise of the power contained in s 82(2a)(b) of the Legal Practitioners Act.

The jurisdiction to reopen is not to be exercised to afford an opportunity to a party to persuade the court that a matter considered and decided has been wrongly decided. In his application for the correction of errors this is what the appellant seeks to do. I would dismiss each of the grounds in the application as providing no reason for this Court to reopen its judgment.
In the circumstances, as I would arrive at no different conclusion (in terms of the orders to be made by this Court in disposing of this matter), I would dismiss the present application.
Rule 242(2) SCCR
As I have indicated, there was no challenge to the competence of the application. Consequently, we did not hear argument on that issue. I have considered the application on the basis that it was contested, but I would not want it thought that I necessarily agreed with the respondents’ concession.
In future I would wish to hear full argument on the interpretation and scope of r 242(2) SCCR.[22] As I have said more than once, the order made on 26 May 2017 was perfected on 29 June 2017. In D’Orta-Ekenaike v Victoria Legal Aid Gleeson CJ, Gummow, Hayne and Heydon JJ said:[23]
A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances. That tenet finds reflection in the restriction upon the reopening of final orders after entry and in the rules concerning the bringing of an action to set aside a final judgment on the ground that it was procured by fraud. The tenet also finds reflection in the doctrines of res judicata and issue estoppel. Those doctrines prevent a party to a proceeding raising, in a new proceeding against a party to the original proceeding, a cause of action or issue that was finally decided in the original proceeding. It is a tenet that underpins the extension of principles of preclusion to some circumstances where the issues raised in the later proceeding could have been raised in an earlier proceeding.
The principal qualification to the general principle that controversies, once quelled, may not be reopened is provided by the appellate system. But even there, the importance of finality pervades the law. Restraints on the nature and availability of appeals, rules about what points may be taken on appeal and rules about when further evidence may be called in an appeal (in particular, the so-called “fresh evidence rule”) are all rules based on the need for finality. As was said in the joint reasons in Coulton v Holcombe: “[i]t is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial.”
[footnotes omitted]
[22] Rule 242(1) SCCR empowers this Court to correct an error in a judgment at any time, it should be construed as in the nature of a slip rule supported by this Court’s inherent power; NH v Director of Public Prosecutions (SA) (2016) 260 CLR 546 at [69]-[71] (French CJ, Kiefel and Bell JJ). See also, A E Terry’s Motors Ltd v Rinder (No 2) [1948] SASR 303 at 306 (Mayo J); L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) (1982) 151 CLR 590.
[23] (2005) 223 CLR 1 at [34]-[35]. See also, Achurch v The Queen (2014) 253 CLR 141 at [14] (French CJ, Crennan, Kiefel and Bell JJ); Burrell v The Queen (2008) 238 CLR 218 at [15] (Gummow A-CJ, Hayne, Heydon, Crennan and Kiefel JJ).
Further in NH v Director of Public Prosecutions (SA) (NH) French CJ, Kiefel and Bell JJ said:[24]
It was common ground in the Full Court that the judgments of acquittal and conviction, reflecting the trial court’s acceptance of the verdicts of the jury, were perfected, at the latest, when each of the Reports was signed. That is a matter of substance and not just of form. Five Justices of this Court cautioned in Burrell v The Queen that the use of the term “perfected” must not be seen as giving form and procedure precedence over substance and principle. The real question is “What is to mark the point at which a court concludes its consideration of a controversy?” Their Honours said:
“Identifying the formal recording of the order of a superior court of record as the point at which that court’s power to reconsider the matter is at an end provides a readily ascertainable and easily applied criterion. But more than that, identifying the formal recording of the order as the watershed both marks the end of the litigation in that court, and provides conclusive certainty about what was the end result in that court.”
When the matter came before the Full Court of the Supreme Court of South Australia the exercise of the original jurisdiction of the Supreme Court initiated by the information against the appellants had been completed and exhausted subject to the outcome of statutory appellate processes. Those processes could not be invoked by the DPP because appeals against acquittal in South Australia are precluded save in circumstances not relevant to these proceedings.
[footnotes omitted]
[24] (2016) 260 CLR 546 at [30].
In my view the rule-making power contained in s 72(1)(b) of the Supreme Court Act 1935 (SA) does not support a rule that vests jurisdiction.[25]
[25] Shrimpton v The Commonwealth (1945) 69 CLR 613 at 629-630 (Dixon J); Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 258 (Fullagar J); PT Bayan Resources TBK v BCBC SingaporePte Ltd (2015) 258 CLR 1 at [40] (French CJ, Kiefel, Bell, Gageler and Gordon JJ).
I see nothing in s 86(1) of the Legal Practitioners Act to suggest that it is amenable to a construction that confers a right that may be exercised from time to time and more than once. In fact, s 86(2) is a positive indicator to the contrary. If that is right, the question becomes, when is the power vested by s 86(1) spent? As indicated in NH, ordinarily, the exercise of judicial power is spent upon a court’s order being perfected.[26] Until that occurs a court may recall, review, correct or alter its judgment.[27]
[26] Bailey v Marinoff (1971) 125 CLR 529 at 530 (Barwick CJ), 531-532 (Menzies J), 536-537 (Walsh J). See also R v Nam [1968] SASR 107 at 108-110 (Bray CJ, Chamberlain and Walters JJ).
[27] Smith v New South Wales Bar Association (1992) 176 CLR 256 at 265 (Brennan, Dawson, Toohey and Gaudron JJ); In re Harrison’s Share under a Settlement [1955] Ch 260; In re St Nazaire Co (1879) 12 Ch D 88.
From the above it follows that in this case any power supporting a construction of r 242 as having an application after an order is perfected must be found somewhere outside s 72 of the Supreme Court Act 1935 (SA) and outside s 86 of the Legal Practitioners Act. NH[28] and Bailey v Marinoff[29] are authorities for the proposition that a court enjoys no inherent power to reopen perfected orders. The correctness of Players Pty Ltd (In Liq) v Clone Pty Ltd and older authorities on the predecessor to r 242 must now be doubted.[30] That leaves s 17 of the Supreme Court Act 1935 (SA) and the powers enjoyed by the common law courts referred to in that section. The equitable jurisdiction to set aside a perfected judgment for fraud is not engaged here. Nor is the supervisory jurisdiction. In Clone Pty Ltd v Players Pty Ltd (In Liq) the joint judgment refers to there being “other discrete grounds to set aside a perfected judgment which were not in issue” without identifying those grounds.[31] I very much doubt that the jurisdiction of this Court to reopen perfected orders may be exercised if the parties simply consent to that course, as the respondents suggested. One of the discrete grounds to which the High Court alluded may be where an intermediate court of appeal fails to provide procedural fairness.[32] That is not this case. Further, whatever power s 17 may confer as derived from the powers exercised by the common law courts of England must be construed in the light of the appellate jurisdiction conferred upon this Court and s 77(ii) of the Constitution. It is unnecessary to analyse the issue further. Suffice it to repeat, in future I would wish to hear full argument on the ambit of r 242(2).
[28] NH v Director of Public Prosecutions (SA) (2016) 260 CLR 546 at [67]-[71] (French CJ, Kiefel and Bell JJ).
[29] (1971) 125 CLR 529 at 530-531 (Barwick CJ), 531-532 (Menzies J), 537 (Walsh J).
[30] (2013) 115 SASR 547 at [20], [69] (The Court).
[31] (2018) 92 ALJR 399 at [2] (The Court).
[32] Pantorno v The Queen (1989) 166 CLR 466 at 474 (Mason CJ and Brennan J), 484 (Deane, Toohey and Gaudron JJ).
Conclusion
I would dismiss the application.