Law Society of New South Wales v Young (LSD)

[2001] NSWADTAP 17

Appeal Panel

CITATION:	Law Society of New South Wales -v- Young (LSD) [2001] NSWADTAP 17
PARTIES:	APPELLANT Council of the Law Society of New South Wales RESPONDENT Lesley McIntosh Young
FILE NUMBER:	999021
HEARING DATES:	03/04/2001
SUBMISSIONS CLOSED:	04/20/2001
DATE OF DECISION:	06/12/2001
DECISION UNDER APPEAL:	Law Society of New South Wales -v- Young [1999] NSWADT 78
BEFORE:	O'Connor K - DCJ (President); Robinson WL QC -Judicial Member; Elliott K - Member
CATCHWORDS:	jurisidiction - effect of irregularity
MATTER FOR DECISION:	Ground 1 of Notice of Appeal; as amended.
FILE NUMBER UNDER APPEAL:	982002
DATE OF DECISION UNDER APPEAL:	09/03/1999
LEGISLATION CITED:	Legal Profession Act 1987 Legal Profession Amendment (Complaints and Discipline) Act 2000 Legal Profession Reform Act 1993
CASES CITED:	Barwick v Law Society of New South Wales Court of Appeal 16 July 1998, unreported Barwick v Law Society of New South Wales [2000] HCA 2 Sobania v Nitsche and Anor [1960] 16 FLR 329 Welsh v Anderson (1902) 5 WALR 1 Wilson v Liverpool City Council [1971] 1 WLR 302 Anderson v Judges of the District Court (1992) 27 NSWLR 701
REPRESENTATION:	APPLICANT Dr J Griffiths, counsel RESPONDENT P Capelin QC
ORDERS:	Order made on 07/06/2001; Ground 1 of the Notice of Appeal, as amended, is dismissed.

1 This appeal is brought by the Law Society in relation to the decision of the Legal Services Division of the Tribunal in the case of Law Society of New South Wales v Young [1999] NSWADT 78, decided 3 September 1999. The decision followed the hearing of an Information referred to the Tribunal for inquiry following complaints against the practitioner by the Council of the Law Society pursuant to Part 10 of the Legal Profession Act 1987. The Information alleged both professional misconduct and unsatisfactory professional conduct against a practitioner, Leslie McIntosh Young, arising from her conduct in the handling of two deceased estate matters between 1995 and 1997.

2 The first Information filed 25 November 1998 charged the solicitor with professional misconduct particularised as three separate forms of misconduct (misleading, forging, propounding) in her dealing with two deceased estates (the Estate of Stone, and the Estate of Brebner). The key allegation of misconduct was that instend of undertaking the appropriate steps to obtain letters of administration she had forged them. That Information engaged the jurisdiction of the Tribunal, and included particulars that remain within jurisdiction. By consent, on 18 December 1998, an amended Information was filed adding a ‘lower tier’ charge of unsatisfactory professional conduct, particularised as aspects of the conduct of both estates. When the matter came on for hearing leave was sought to rely on the additional matter. There was no objection from the practitioner’s counsel. That additional charge, it is now said, was without jurisdiction.

3 To understand the primary ground of appeal (seeking to put in issue the jurisdiction of the Tribunal) it is desirable to set out the full text of the allegations in the Information, as amended:

‘PROFESSIONAL MISCONDUCT

1. Mislead her client and her client’s husband: Estate of Stone
2. Forged Letters of Administration in the following matters: (A) Estate of Stone (B) Estate of Brebner
3. Propounded documents relating to each of the following matters, knowing the documents to be false: (A) Estate of Stone (B) Estate of Brebner

UNSATISFACTORY PROFESSIONAL CONDUCT

4. In making application for grant of Letters of Administration, the solicitor’s conduct fell short of the standard of competence, that a member of the public is entitled to expect of a reasonably competent practitioner. (A) Estate of Stone (B) Estate of Brebner.’

4 At hearing on 25 August 1999 (in line with her reply to the Information filed on 16 February 1999) the practitioner admitted the allegations made against her, referred to extenuating circumstances and expressed remorse and contrition. She consented to a costs order against her, and only opposed the application that she be struck off.

5 No oral evidence was presented by the Society, or tested by the practitioner, as to the detail and circumstances of the particulars alleged. The proceedings before the Tribunal took the form of a hearing on penalty. The Tribunal received evidence of a subjective kind in relation to the general circumstances of the misconduct from the practitioner and her husband as well as receiving evidence as to her general competence and character.

6 In its decision delivered 3 September 1999, the Tribunal decided not to order that her name be removed from the roll of legal practitioners. Instead it made the imposed the following punishment: (1) a fine of $11,500 in respect of professional misconduct; (2) a fine of $1,500 in respect of unsatisfactory professional conduct; (3) a public reprimand; and (4) periodic inspections of her practice by the Law Society.

7 The Law Society lodged its appeal on 30 September 1999. The notice of appeal alleged various errors of law in the Tribunal’s decision as to penalty; and sought leave to extend the appeal to the merits of the decisions (see generally see ss 112-115 of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act)).

8 The errors of law identified in the original notice of appeal were cast in a familiar form: irrelevant considerations, manifest unreasonableness, no evidence to support findings of fact. The original notice of appeal did not raise the question of the jurisdiction of the Tribunal.

9 The appeal had not proceeded to hearing when on 3 February 2000 the High Court delivered its decision in Barwick v Law Society of New South Wales [2000] HCA 2. In that decision the High Court found that procedural unfairness in the conduct of disciplinary investigations by the Law Society meant that Informations laid before the Legal Services Tribunal (the predecessor to the Legal Services Division of the Tribunal) were invalid; and consequently the Tribunal was without jurisdiction and prohibited from continuing to deal with a part-heard case against a practitioner.

10 Without objection from the practitioner and following the grant of leave so to do out of time, the Law Society filed an amended notice of appeal of 26 October 2000 adding a new question to its original notice of appeal that of jurisdiction. It referred to the original Informations and said that its processes of investigation in respect of some of the Informations were affected by the fundamental procedural invalidity identified in the Barwick decision.

11 The new question was described as the ‘primary ground of appeal’ and directions were given that it be heard by the Appeal Panel as a separate question, as, if it was resolved in favour of the Law Society, there might be no basis for going on to deal with the question of penalty with the entire underlying proceedings having been of no force and effect.

12 The primary ground was expressed as follows:

‘Primary Ground

Ground of appeal on a question of law

1. Certain of the grounds of the amended Information filed on 18 December 1998 and heard in the Tribunal below were not properly before the Tribunal, in consequence whereof the Tribunal lacked jurisdiction to deal with those grounds, being grounds numbered 1, 2(B) and 4 in the Amended Information:

‘PROFESSIONAL MISCONDUCT
1. Misled her client and her client’s husband. Estate of Stone
2. Forged letters of administration in the following matters: (B) Estate of Brebner

UNSATISFACTORY PROFESSIONAL CONDUCT
4. In making application for grant of letters of administration, the solicitor’s conduct fell short of the standard of competence that a member of the public is entitled to expect of a reasonably competent legal practitioner. (A) Estate of Stone (B) Estate of Brebner.’

13 It will be noted that Particular 2 of the Information as it relates to (A) Estate of Stone is not referred to. Nor is the whole of 3 (the propounding charge affecting both estates).

14 That was because the Law Society is of the view that those charges were not affected by the procedural invalidity identified in Barwick.

15 The Panel convened on 3 April 2001. There was some difference of opinion between counsel as to whether the proceedings on that day would be confined to the issues raised by the ‘primary ground’, or would go on to address the other grounds of appeal, being those forming the basis of the original notice of appeal. In the result, in light of the directions given on 5 December 2000 the Panel proceeded only to hear submissions on the new ‘primary ground’ and not the original grounds.

16 The Law Society says that if it is correct in relation to its jurisdictional objection to the validity of the proceedings as they related to Paragraphs 1, 2B and 4 of the Information, then the entire proceedings before the Tribunal must fail, as it is not practical to sever the valid from the invalid element. It noted that the findings that the charges were proven and as to penalty were global in character. Two charges (2A and 3) remained valid. Both related to alleged professional misconduct. As neither the findings nor the penalty for professional misconduct differentiated between the valid and invalid elements the submission was that all matters should be sent back for redetermination.

17 Counsel for the Law Society submitted that the Appeal Panel should set aside the entire decision of the Tribunal and remit it for rehearing by a differently constituted Tribunal.

18 Counsel for the practitioner agreed with the Law Society submission that applying the principles enunciated by the High Court to the chronology of steps followed by the Society in preparing the Information, the three nominated offences were affected by the fundamental invalidity identified there. But he submitted that the original order should not be interfered with at all or if at all only in relation to Order 2 (the fine linked to paragraph 4 of the Information). Counsel for the practitioner referred to the obvious prejudice that his client would suffer if the matter were sent back.

19 Order 2 is the unsatisfactory conduct finding and penalty. Were Order 2 set aside and the Orders otherwise affirmed, the result would be the unsatisfactory conduct penalty would lapse. If this course of action were adopted by the Tribunal, then it would seem necessary also for the Tribunal to consider in what manner the other penalties were to be confined in their application to the particulars that remained valid.

20 In the proceedings before the Tribunal below the issue of jurisdiction had not been taken by the practitioner (who stood to benefit from it), and who was represented by counsel. It was known that the point was on appeal to the High Court, but that it was not taken is hardly surprising given the decision of the Court of Appeal in Barwick v Law Society of New South Wales (unreported, 16 July 1998).

21 So far as the course followed by the Tribunal is concerned, equally it is not surprising that the penalty orders were expressed globally without differentiating between the forms of conduct enumerated in the particulars or by categorising them according to the estate affected, given the comprehensive nature of the practitioner’s admissions. The orders made approached the quantum of penalties for each category of conduct made out on a “totality” basis, rather than one in which the quantum of penalty was related to each individual particular relied upon.

22 The Appeal Panel was advised that the public reprimand had been administered (penalty order 3), one periodic inspection had occurred (penalty order 4) and that the payment of the fines (penalty orders 1 and 2) had been stayed pending the determination of this appeal, but that the practitioner was fully committed to complying with those orders if they remained intact.

23 Counsel for the practitioner submitted that the course he proposed was permissible by reference to the principles relating to severance. Both parties engaged on this point. Counsel for the Law Society contended that the particulars which had been invalidly alleged were inextricably intertwined with the penalty orders. Consequently, he submitted it was not a proper case for severance of the Information and the orders.

24 Leading cases relating to severance were cited. For reasons given below, we regard this issue as irrelevant.

25 It may be useful at this point to explain succinctly what the procedural invalidity identified in Barwick was. After receiving a report in relation to its officers’ investigation of a complaint against a practitioner, the Law Society often ‘telescoped’ two statutory steps. At the same meeting it would, one, enter a formal resolution to lay charges against the practitioner, and, two, make a formal finding that there was a reasonable likelihood that the practitioner was guilty of misconduct. Under the legislation, these steps are preconditions to referral of the charges to the Tribunal. But the governing legislation provided that there must be a further investigation after the decision to lay charges, giving the practitioner an opportunity to be heard before their referral. That had not occurred. Rejecting the view of the Court of Appeal that such ‘telescoping’ was not fatal, the High Court for reasons that will not be recited here, found that in these circumstances the Tribunal’s jurisdiction ‘was not regularly invoked’ (per Gleeson CJ at [63] as there had been ‘such a departure from the requirements of [the legislation] as to deprive the Tribunal of jurisdiction.’

26 It is apparent in this instance that had the appeal progressed quickly to hearing and decision it might have been disposed of prior to the decision in Barwick. Had the appeal been unsuccessful the view would presumably have been taken that the case was concluded, the proceedings functus and that there was no power to reopen the case. But as the appeal was still pending at the time of the Barwick decision, the Law Society added Barwick grounds to the appeal when it ascertained that there were three instances of ‘telescoping’ affecting the present charges.

27 We were informed that, understandably, the Council of the Law Society had after the Barwick decision inquired into the investigative steps and decision-making procedures it had followed in relation to all Informations awaiting hearing and determination by the Tribunal (as did the Bar Council in respect of barristers under charge). (A document was handed up setting out the steps which had been followed between receipt of complaint and referral to the Tribunal in relation to each of the particulars alleged in the Information.)

28 In light of the bringing of this case, it would seem that the inquiry went beyond those matters pending in the Legal Services Division and extended to appeals pending before the Appeal Panel. While that inquiry was appropriate in relation to matters yet to be disposed of at first instance, we question the adoption of that course in relation to pending appeals (at least where the prosecutor has lodged the appeal).

29 At the close of argument, the Panel expressed its concern as to the course which the submissions had followed. Both sides had accepted that there was a want of jurisdiction, and focussed on issues to do with severance.

30 The Appeal Panel noted that the decision under appeal was one delivered on 5 September 1999 some months prior to the Barwick decision. Counsel for the Law Society agreed that since 1 July 1994 when the procedures in issue in Barwick had been introduced (Legal Profession Reform Act 1993) there were likely to have been many Informations disposed of by the Tribunal which if revisited would be found to be affected by Barwick invalidity. The ‘telescoping’ procedure that had attracted the condemnation of the High Court had frequently been followed.

31 So the strange situation has arisen that the prosecutor relies on procedural conduct of its own which has since been declared invalid to seek to have undone a decision of the Tribunal. The practitioner, technically the victim of the procedural defect does not object - fundamentally - to the validity of the orders which were the outcome of the prior process; though she has sought to derive a limited advantage in the face of the conduct of this Appeal.

32 As counsel for the practitioner noted, if the prosecutor succeeds in having some or all of the charges remitted for rehearing de novo, it is in a position to repair any weaknesses in its presentation of the original case, whether as to liability or penalty. On the other hand the practitioner has accepted the decision of the Tribunal and has submitted to the penalty orders. The penalty orders 3 and 4 are already in effect.

33 The Appeal Panel has difficulty in seeing what public interest would be served by having these matters reagitated merely on the basis of a now-recognised invalidity in process.

34 Counsel for the practitioner contended that the appeal was an opportunistic attempt by the Law Society to have a second crack at a case that had not gone well for it on the first occasion, the Appeal Panel should exercise the discretion it had under s 114 of the Tribunal Act as to the orders it can make to dismiss the appeal and affirm the decision below; or affirm it subject to the limited variation of the kind that he had commended (excision of Order 2). As we have not heard any detailed argument in relation to the remainder of the grounds of appeal (the original grounds) such a step would be premature. The appeal is still a live one, even with Ground 1 dismissed.

35 The issue raised by this appeal is novel, at least in the experience of this Tribunal. The question as we see it is whether a completed matter at first instance can be challenged at appeal on jurisdictional grounds when that objection was not raised at first instance. The normal answer would be no, particularly where the difficulty might have been cured had the point been taken below, see: Sobania v Nitsche and Anor [1960] 16 FLR 329. Here, an objection below could have been cured by the Law Society abandoning the Barwick affected particulars.

36 However where the want of jurisdiction is complete and incurable, it cannot be conferred even by consent and an appellate court is bound to hold there was no jurisdiction: Welsh v Anderson (1902) 5 WALR 1. As is apparent from these reasons, it is our view that there was no complete lack of jurisdiction in the present matter, as not all of the particulars which fleshed out the Information were invalidated by Barwick, indeed there was in our view a sound jurisdictional foundation for the greater part of the proceedings and the resultant Orders 1,3 and 4.

37 The position in Barwick was different. The practitioner had always maintained the jurisdictional objection. He failed before the Tribunal and the Court of Appeal but succeeded in the High Court.

38 We were not referred to any decision of the appellate courts permitting an appeal in circumstances analogous to the present ones. Consequently at the hearing we adjourned and invited the parties to provide written submissions.

39 Written submissions were filed by the appellant, the Law Society, on 6 April and 19 April 2001 and by the respondent on 17 and 20 April 2001. The submissions were mainly addressed to the practitioner’s application that the Panel move immediately to exercise its s 114 discretion to conclude the appeal. These submissions will be considered further when the Panel resumes.

40 As to the point of immediate concern to the Panel, the Law Society claimed in its submissions that it was under a duty to raise the point of jurisdiction. It referred to the impact that the Barwick decision had had on a number of matters pending in the Tribunal. It drew attention to cl 79 of Part 14 of Schedule 8 of the Legal Profession Act 1987 (inserted by cl 12 of Schedule 1 of the Legal Profession Amendment (Complaints and Discipline) Act 2000).

41 That provision sought to overcome the consequences of the Barwick decision in relation to old investigations and decisions. Subclause (1) dealt with the effect of matters where the conduct had occurred more than 3 years before the initiating process. Subclause (2) dealt with the amendment of Informations to include new allegations outside the usual time period. Neither of those circumstances are relevant here.

42 Subclause (3) provides that: ‘This clause does not operate to reverse the decision of any court in a particular case in which proceedings were finally determined before the commencement of this clause. However, this subclause does not preclude further complaints with respect to the same or related conduct.’

43 There is no reference to the provision in the Second Reading Speech (Hansard, 31 May 2000, 6236). It appears to be directed at the circumstances in Barwick. The provision does not seek to upset that decision, but it does allow for cases affected by ‘telescoping’ to be recommenced after the procedural requirements have been properly observed.

44 It is clear from the Second Reading Speech that the other sub-clauses were directed to preserving the finality of existing orders especially those orders affected by ‘telescoping’ that had led to the striking off of practitioners, or other forms of discipline.

45 In our view it is clear that the Parliamentary intent was to ensure that there was no doubt as to the status of finalised matters. The situation that is presented - a proceeding finalised at trial level but still in train at the appeal level - was not directly addressed by these amendments.

46 It is our view that general principles as to finality of trial proceedings provide a support for our view that the original decision should not be interfered with. They correspond to the position reflected in the legislative amendments.

47 The nearest analogy we can find is in the area of criminal law. A prosecutor would not we consider be entitled to have a defendant recommitted for trial after conviction and sentence if it was found that there was a fundamental invalidity in the process giving rise to the proceedings; and there happened to be a Crown appeal on sentence pending. In the criminal trial context, ‘[t]here is a long line of authority, in relation to jury trials, that an appellant ought not be permitted to rely upon a point not raised at the trial’ - District Court Procedure NSW (Morahan (ed)) at 2348; numerous case cited. Noteworthy is the case of Wilson v Liverpool City Council [1971] 1 WLR 302; 1 All ER 628, summarised, we consider accurately, in these terms - ‘a point was not permitted to be raised even though it was supported by a House of Lords’ decision in another case which was only delivered after the trial’ (ibid, 2349). Similar propositions apply to the conduct of civil appeals: ibid, 2348-2349.

48 The case of Anderson v Judges of the District Court (1992) 27 NSWLR 701 was referred to by counsel for the Law Society. It deals with whether an order affected by irregularity should be upheld; and the applicability of principles of severance so as to divide regular from irregular elements of a multi-part order. The proceedings related to a trial before a magistrate for the offence of being in possession of things (here banknotes) reasonably suspected of being stolen. In that case the prosecutor/respondent and the defendant/claimant were agreed that a magistrate’s order of forfeiture of cash confiscated by the police was ultra vires the magistrate and consequently ultra vires the District Court judge whose decision was the subject of the appeal to the Supreme Court. The Court of Appeal set aside the judge’s order and remitted the matter for rehearing. There were various statutory restrictions on the Supreme Court’s ability to set aside the decision. The Court of Appeal was satisfied that its jurisdiction to grant relief, in its discretion, by way of certiorari, was unaffected by these restrictions and could be exercised.

49 The Court rejected the Crown’s submissions that to grant relief in the present circumstances would cover a windfall on the claimant (by way of having the primary conviction and sentence, as well as the forfeiture order quashed). The Court noted that the case would be retried ‘according to law’ and would ensure that any conviction entered was ‘manifestly lawful’ (see per Kirby P at 719). But it is clear, we consider, that the Court was engaged in an exercise of its discretion rather than laying down a rule of law applicable to all instances of irregularity in orders. In this case before coming to its conclusion it also examined the substantive approach taken by the judge in relation to the elements of the offence, and was satisfied that he had misdirected himself and misinformed the claimant, who was not legally represented. Kirby P concluded his analysis by stating that ‘It is just in the circumstances of the case that relief should be provided.’

50 In the present instance there are a number of factors in which we consider such a course would produce an unjust outcome.

51 Were we to accede to the Law Society’s submissions, a prosecutor (not the accused, as in Anderson’s case) would, as we have already noted, procure the windfall benefit of being able to re-cast its case before the Tribunal in light of the reasons given on the previous occasion. There would also be the possibility that fresh evidence could be brought forward. The practitioner would be exposed to the stress, costs and trauma of having to revisit a matter which she had treated as closed, and where she has submitted to the penalty orders (also a circumstance not present in Anderson’s case). The practitioner may not be prepared on the next occasion to make the full admissions to the reformulated Informations and evidence in support (also a circumstance not present in Anderson’s case).

52 Were the objection to be upheld and the matter remitted, justice in our view would demand a course of action that left the Law Society precisely in the position that it adopted in the first proceedings. It should not be able to advantage itself by a procedural error of its own making. That would in our view be unconscionable.

53 Similarly the clear intent of Parliament was that a practitioner against whom serious allegations are made should not be able now to advantage himself or herself conclusively by the procedural error. This equally ought not to be allowed.

54 Ultimately however the issue is one of our approach to the process which lies behind the earlier hearing and the orders which flowed from that hearing. The procedure under this Act is that the Information makes a single charge of professional misconduct and/or unsatisfactory professional conduct and then appends a number of particulars which correspond with individual "offences" or complaints. This contrasts with ordinary criminal procedure by indictment or the Local Court procedure by Information under which each count or Information must allege one offence only or be bad for duplicity. By this procedure, if only one of the particulars of the Information is proved, the charge made by the Information may be made out. It is immaterial if one or more of the other particulars is not made out by appropriate evidence. Equally, if one of the particulars cannot be made out because the Tribunal has no jurisdiction to deal with that complaint due to non-compliance with investigation requirements, the situation is no different.

55 Thus, a finding of professional misconduct is valid if there subsists even one properly made out particular to support it. In our view, this analysis demonstrates the fallacy of the Law Society’s central submission, namely that the lack of jurisdiction in respect of certain of the complaints taints the entire finding so that it cannot stand.

56 We do not consider that it is in the public interest or consistent with the proper administration of the disciplinary process for this ground of appeal to be entertained.

57 The consequence is that for the time being all parts of the original decision stand. At the next hearing we will go on to consider submissions in relation to the original grounds of appeal and hear further from the respondent in relation to Order 2. We note that the written submissions already received address many of the relevant points.