Keung v Abbott (No 2)

Case [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…

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Keung v Abbott (No 2) [2019] SASCFC 39
Case
[2019] SASCFC 39
Decision Date

CaseChat Overview and Summary

This matter concerned an application to reopen an appeal and recall orders previously made by the Full Court of the Supreme Court of South Australia in *Keung v Abbott*. The original appeal arose from disciplinary proceedings commenced by the appellant against the respondents, who were solicitors acting for him in Federal Court litigation. The core of the dispute in the original proceedings was whether disciplinary charges laid by the appellant against the solicitors were out of time, a question that turned on the application of different versions of s 82(2a) of the *Legal Practitioners Act 1981* (SA).

The Full Court was required to determine the legal issues surrounding the court's power to reopen a perfected appeal. Specifically, the court had to consider whether it possessed the inherent jurisdiction or statutory power to set aside its own final orders after they had been perfected, particularly in circumstances where the parties might consent to such a course. The court also had to assess the scope of rule 242 of the Supreme Court Civil Rules 2066 (SA) in relation to perfected orders.

The court reasoned that the power to reopen a perfected judgment is discretionary and should be exercised with great caution due to the public interest in the finality of litigation. Relevant considerations included whether a stage of the process had been completed, whether a party had presented their whole case, the availability of an avenue of appeal, whether the court had proceeded on a misapprehension of fact or law, and whether the applicant had been afforded an opportunity to be heard. The court noted that authorities such as *NH v Director of Public Prosecutions (SA)* and *Bailey v Marinoff* suggest that a court generally lacks inherent power to reopen perfected orders. The court expressed doubt about the correctness of older authorities that might have suggested a broader power under the predecessor to rule 242, particularly where parties simply consent to reopening. The court found that the equitable jurisdiction to set aside a judgment for fraud, or the supervisory jurisdiction, were not engaged in this case.

The application to reopen the appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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]

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.