Law Society of Tasmania v a Practitioner

[1987] TASSC 29

TASSC A17/1987

CITATION:             Law Society of Tasmania v A Practitioner [1987] TASSC 29; A17/1987

PARTIES:  LAW SOCIETY OF TASMANIA
  v
  A PRACTITIONER

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 31/1986
DELIVERED ON:  2 April 1987
DELIVERED AT:  
HEARING DATE:  
JUDGMENT OF:  Green CJ

CATCHWORDS:

REPRESENTATION:

Counsel:
           Appellant:  
           Respondent:  
Solicitors:
           Appellant:  
           Respondent:  

Judgment Number:  TASSC A17/1987
Number of paragraphs:  6

Serial No A17/1987
  File No LCA 31/1986

REASONS FOR JUDGMENT  GREEN CJ
  2 April 1987

1. On 3 June 1983 the Disciplinary Committee of the Law Society of Tasmania in proceedings instituted by the appellant made findings against the respondent in relation to four matters and in respect of each matter, of its own motion and not upon the application of the appellant, ordered, inter alia, that "The practitioner shall pay the applicant's costs to be taxed by the Registrar or the Deputy Registrar of the Supreme Court". Upon bills of costs being brought in for taxation the Registrar held that he had no power to tax the costs as the Disciplinary Committee had no power to order that the costs be taxed by the Registrar. The appellant accepts that the Committee lacked the power to make those orders and, by these proceedings, appeals against them and seeks orders that they be set aside. The respondent also accepts that the Committee lacked the power to make the orders, but submits that the orders are nullities and no appeal can lie from them.

1. The Disciplinary Committee has no general or inherent power to order the Registrar to tax costs, so that in order to uphold the validity of the order it must be shown that the Committee was empowered to make it by some specific statutory provision. Section 16 of the Law Society Act 1962 confers upon the Committee the power to require a  practitioner to answer allegations or complaints and, amongst other things, provides that the Committee "has power to make any such order ... as to the payment by any party of costs ... as the Committee may think fit", but that does not confer any power to order the Registrar to tax those costs. By s16 of the Act the Committee is also given a wide power "to make any such order ... in relation to the case ... as the Committee may think fit", but in the absence of specific words that cannot be construed as including a power to make a mandatory order requiring a person – especially a stranger to the proceedings – to take some positive action. Section 18(1) of the Act provides that every order made by the Committee shall be filed with the Registrar and shall be acted upon by the Registrar and be enforceable in like manner as a judgment or order of the Court. But that sub–section pre–supposes the existence of a valid order made pursuant to some other provision and does not itself confer any power upon the Committee to make orders.

1. I hold that although the Committee had the power to order that the respondent pay the appellant's costs, it had no power to order the Registrar to tax those costs.

1. This appeal is brought pursuant to s19 of the Law Society Act 1962 which provides that "an appeal against any order made by the Committee under s16 lies to the Court at the instance either of the applicant or the practitioner to whom the application relates". The respondent argues that as the Committee had no power to make the orders which are the subject of this appeal, they were nullities and that for that reason, and also because they could not be characterised as orders "under s16", no appeal lies against them.

1. As the Committee has no powers save for those which have been expressly conferred upon it by law and as the orders made by the Committee were plainly not authorised by law, it world appear to logically follow that they are nullities having no legal effect and that therefore no appeal lies from them: Chapman v Earl [1968] 2 All ER 1214, 1230; Nelson Catchment Board v Waimea County [1955] NZLR 1126, 1129; Joseph v Egan (1969) 13 FLR 497; R v Jones [1969] 2 QB 33; Sykes v Collins [1971] ALR 672. I do not find it necessary to canvass the many cases which deal with the general question of whether a decision reached contrary to natural justice is void or voidable as the decision in this case was not vitiated by an irregularity in the way in which it was arrived at, but because the Committee purported to make an order which it had no power to make. But there are cases in which it has been held that under some circumstances, decisions made by administrative bodies which could for some purposes be regarded as void or vitiated, may nevertheless be appealable if they retain some residual legal or de facto effect. Thus in Calvin v Carr [1979] NSWLR 1 the Privy Council held at p8 that although a decision by racing club stewards was void it would have been "wholly unreal" to regard it as "totally void in the sense of being legally nonexistent" because the decision had immediate and serious consequences for the appellant and those consequences had "sufficient existence in law to justify an appeal". See also Meyers v Casey (1913) 17 CLR 90 and Crane v DPP [1921] 2 AC 299. But, in my view, the order made in this case does not fall into that category. The Committee's orders were ex facie made without jurisdiction and the person to whom they were directed has not acted upon them. The orders have not had, and will not have, any legal or de facto consequences for the parties or for anyone else.

1. The appeals are dismissed as incompetent.