Law Society v Ford (No 2) - [2024] ACTSCFC 2

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

FULL COURT

Case Title:	Law Society v Ford (No 2)
Citation:	[2024] ACTSCFC 2
Hearing Dates:	4-5 November 2024
Decision Date:	19 December 2024
Before:	Mossop and McWilliam JJ, Ainslie-Wallace AJ
Decision:	See [141]
Catchwords:	LEGAL PRACTITIONERS – DISCIPLINE – Application for removal from the roll of legal practitioners – recommendation by ACAT that defendant be removed from the roll of legal practitioners for professional misconduct and unsatisfactory professional conduct – whether defendant is a fit and proper person to practise law – where defendant shows no insight into inadequacies of his own conduct – unfitness indefinite – defendant’s name removed from the roll of legal practitioners PRACTICE AND PROCEDURE – JURISDICTION – Factual findings by ACAT of professional misconduct and unsatisfactory professional conduct – defendant sought to have Supreme Court conduct fresh fact-finding – inconsistent with statutory regime to permit unchallenged finality reached as part of ACAT process to be undermined in subsequent proceedings – factual findings of ACAT to be applied by Supreme Court in determining fitness to remain on the roll PRACTICE AND PROCEDURE – JURISDICTION – Whether Supreme Court has jurisdiction to hear and determine proceedings – submission by defendant that original decisions of Law Society invalid – submission that all subsequent proceedings, including present proceedings, were without jurisdiction – filing of ACAT orders under s 431(3) of Legal Profession Act 2006 (ACT) enlivens jurisdiction of Supreme Court to consider removal from the roll – separate statutory rights of appeal to Appeal Tribunal of ACAT and Supreme Court – no orders made in appeals or properly constituted judicial review proceedings setting aside ACAT orders – not open to seek prerogative relief by application in current proceedings
Legislation Cited:	ACT Civil and Administrative Tribunal Act 2008 (ACT), ss 79, 86 Court Procedures Rules 2006 (ACT), r 5052 Legal Profession Act 2006 (ACT), ss 27, 81(1)(b), 222, 269, 394(1), 410, 425(3)(a), 431, Pt 4.7, Ch 4, Dictionary Legal Profession (Solicitors) Conduct Rules 2015 (ACT), rr 4, 5, 19, 43
Cases Cited:	A Solicitor v Council of the Law Society of New South Wales [2004] HCA 1; 216 CLR 253 Barlow v Law Society of the Australian Capital Territory [2013] ACTSC 68; 272 FLR 470 Council of the Law Society of the ACT v Bandarage [2019] ACTSCFC 1 Council of the Law Society of the Australian Capital Territory v Giles [2020] ACTSCFC 1 Council of the Law Society of the ACT v Legal Practitioner LP 202012 (Hugh Ford) (Occupational Discipline) [2024] ACAT 11 Council of the Law Society of the Australian Capital Territory v LP 202012 (Hugh Ford) (Occupational Discipline) [2020] ACAT 80 Harlech Enterprises Pty Ltd v Beno Excavations Pty Ltd [2022] ACTCA 42; 18 ACTLR 245 In re Weare, a Solicitor; In re The Solicitors Act, 1888 [1893] 2 QB 439 Incorporated Law Institute of New South Wales v Meagher (1909) 9 CLR 655 Jadwan Pty Ltd v Secretary, Department of Health and Aged Care [2003] FCAFC…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] ACTSCFC 2
Decision Date: 19 December 2024

CaseChat Overview and Summary

The matter of Law Society v Ford (No 2) involved an application for the removal of Ford from the roll of legal practitioners. The dispute arose following a recommendation by the Administrative Appeals Tribunal (ACAT) that Ford be removed due to professional misconduct and unsatisfactory professional conduct. The central issue was whether Ford was fit to continue practising law, particularly given his lack of insight into the inadequacies of his conduct. The Supreme Court was tasked with determining the appropriate outcome based on the ACAT's findings.

The primary legal issue was whether the Supreme Court had jurisdiction to conduct a fresh fact-finding process or if it was bound to apply the factual findings made by the ACAT. The Court held that it was not within the jurisdiction of the Supreme Court to conduct a fresh fact-finding exercise, as this would undermine the statutory regime that ensures the finality of ACAT decisions. Instead, the Supreme Court was required to apply the findings of the ACAT in determining Ford's fitness to remain on the roll.

In reaching its decision, the Court emphasised that the filing of ACAT orders under section 431(3) of the Legal Profession Act 2006 (ACT) brought the matter within the jurisdiction of the Supreme Court. The Court also noted that Ford's submissions that the original decisions of the Law Society were invalid and that subsequent proceedings, including the current ones, lacked jurisdiction, were without merit. There were no orders from appeals or properly constituted judicial review proceedings setting aside the ACAT orders, and it was not permissible to seek prerogative relief in the current proceedings.

Ultimately, the Court concluded that Ford was not a fit and proper person to continue practising law and ordered his name to be removed from the roll of legal practitioners.

Orders

Orders of the court

See [141]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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