Legal Practitioner LP 202012 v The Council of the Law
[2023] ACTSC 391
•14 December 2023
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Legal Practitioner LP 202012 v The Council of the Law Society of the Australian Capital Territory |
Citation: | [2023] ACTSC 391 |
Hearing Date: | 14 August 2023 |
Decision Date: | 14 December 2023 |
Before: | Curtin AJ |
Decision: | (1) The application for leave to appeal is dismissed. (2) The applicant is to pay the respondent’s costs. |
Catchwords: | APPEAL – APPLICATION FOR LEAVE TO APPEAL FROM APPEAL TRIBUNAL OF ACAT – Finding by Appeal Tribunal of professional misconduct and unsatisfactory professional conduct – whether leave should be granted – test to be applied – whether ground of substance to be argued – whether applicant has identified questions of law or fact in issue – no potential or arguable error – leave refused |
Legislation Cited: | ACT Civil and Administrative Tribunal Act 2008 (ACT), s 86 |
Cases Cited: | Bailey v Bottrill [2023] ACTSC 45 |
Texts Cited: | Michael McHugh, ‘Preparing and arguing an appeal’ (2010) (Winter) Bar News: Journal of the NSW Bar Association 85 |
Representation: | Counsel Self-represented ( Applicant) D Moujalli ( Respondent) |
| Solicitors Self-represented ( Applicant) Thomson Geer ( Respondent) | |
File Number: | SCA 19 of 2023 |
Decision Under Appeal: | Court/Tribunal: ACT Civil and Administrative Tribunal Before: Presidential Member G McCarthy and Senior Member Professor T Foley Date of Decision: 10 March 2023 Case Title: LP 202012 v The Council of the Law Society of the ACT Court File Number: AA 64/2021 |
CURTIN AJ:
Introduction
1․The applicant seeks leave to appeal a decision of the Appeal Tribunal of the ACT Civil and Administrative Tribunal (the Appeal Tribunal) which confirmed an earlier decision of the ACT Civil and Administrative Tribunal (the Tribunal) that found him guilty of professional misconduct, unsatisfactory professional conduct, and recommended that the practitioner’s name by removed from the roll of legal practitioners kept by the Supreme Court of the ACT.
2․The applicant asserts that the Appeal Tribunal fell into errors of law and fact and seeks the following orders:
1.Certiorari be granted to quash the decision of the Appeal Tribunal.
2.Certiorari be granted to quash the decision of the original Tribunal decision.
3.Certiorari be granted to quash the decision of the ACT Law Council.
4.That there is now no impediment to the applicant being granted an unrestricted practicing certificate.
5.That the court in its inherent jurisdiction grant the applicant an unrestricted practicing certificate.
6.That the decision of the Appeal Tribunal be set aside.
3․For the reasons below, leave to appeal is refused.
Preliminary issues
4․Before turning to the substantive issues in this application, I shall deal with the three preliminary oral applications the applicant made at the commencement of the hearing. These were (in order):
(a)an application for an order that the appeal be expedited;
(b)an application for an adjournment; and
(c)an application that the respondent’s counsel excuse himself on the basis of apprehended bias.
5․I refused all three applications. My reasons for doing so may be shortly stated.
Application for the appeal to be expedited
6․The applicant made an application that any appeal, in the event leave to appeal was granted, be expedited. The applicant made some oral submissions and submitted that (errors in original):
Approximately four months ago, I commenced proceedings and we've had some directions hearings. We've now got to the stage we're seeking leave. Assuming leave is granted – and that's obviously a big if – it could be another year before we get a date for the hearing of the matter and then assuming the hearing is in about a year, it could be another year before we get to an actual decision of the court, so approximately two and a half years to three years.
Now, we have the High Court decision in Nais – that's n-a-i-s - which basically says that if a decision maker including a court engages in a reasonable delay, the decision is void ab initio. So even if we go through this whole procedure with the court and the court makes a decision, irrespective of the outcome of the decision, there is a potential for the decision to be void ab initio by virtue of the fact that of unreasonable delay.
The Nais case basically restates the principles as enunciated by the High Court in Bardwarsh which essentially states that where there is a case of unreasonable delay, the decision is void ab initio. A court doesn't have to come along and declare the decision to be void ab initio. It is by operation of aw void ab initio. So I raise that because what I'm seeking here is that this matter be expedited because essentially, your Honour, it has been five years – five and a half years. This matter has gone on way too long.
…
It's just that as I said, if we do nothing, your Honour, and we go on and have this whole procedure, in three years' time when a court makes a decision, I'll be pushing the Nais case.
7․The High Court’s decisions referred to above were NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77;228 CLR 470 (NAIS) and Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11;209 CLR 597 (Bhardwaj).
8․The applicant did not draw my attention to any specific paragraphs in either of those authorities which supported the submission made.
9․Neither authority supports the submission made, namely that delay voids a judicial decision (automatically) by operation of law.
10․NAIS only stands for the proposition that delay may (not will) lead to the consequence of an administrative decision being set aside. As Gleeson CJ described it in NAIS at [10]:
If the tribunal, by its unreasonable delay, created a real and substantial risk that its own capacity for competent evaluation was diminished, it is not fair that the appellants should bear that risk. The delay on the part of the tribunal in the present case was so extreme that, in the absence of any countervailing considerations advanced in the reasons of the tribunal, it should be inferred that there was a real and substantial risk that the tribunal’s capacity to assess the appellants was impaired. That being so, the appellants did not have a fair hearing of their claims by the tribunal.
11․Contrary to the applicant’s submission, NAIS did not restate “the principles as enunciated by the High Court in” Bhardwaj. Bhardwaj stands for different propositions.
12․In any event, the relevant delay is the delay in giving a decision after that decision has been reserved. It is not the delay between granting leave to appeal and delivery of judgment on that appeal as submitted by the applicant.
13․Had I granted leave to appeal, I would not have expedited the appeal.
Application for adjournment
14․An oral application was made by the applicant to adjourn this application for leave to appeal for three weeks so that he could adduce further evidence from a witness.
15․The applicant submitted that:
Now, the other issue which is quite an enormous issue is there is a solicitor out there in the ACT who has evidence in this matter which will completely vindicate my case and if this witness was called to give evidence, this whole matter could be resolved in 20 minutes. We wouldn't have to wait three years – five years down the track for this to be resolved. Once this person gives his evidence, then in my view, the whole case can be settled there and then on the spot and
16․The applicant said he became aware of this evidence three weeks before the hearing date of this application for leave to appeal but did not file and serve any affidavit setting out the evidence, or the thrust of the evidence, he says he wished to adduce, nor seek an adjournment of this application before its hearing date to allow him more time to do either of those two things.
17․I refused the application for an adjournment and gave oral reasons for refusing it at the time. In short, I refused the application because no application in proceedings was filed to adjourn the application before me, no affidavit was filed and served in support, and there was no affidavit informing me of the evidence the applicant anticipated this witness would give so that I and the respondent could assess the significance, if any, of this evidence, and the respondent could be given procedural fairness in being given a fair opportunity to respond to that evidence.
Application for the respondent’s counsel to recuse himself
18․The applicant made an oral application that counsel for the respondent recuse himself on the ground of apprehended bias. Supposedly, this apprehended bias arose out of the fact that both I and counsel for the respondent were members of the NSW Civil and Administrative Tribunal (the NSW Tribunal).
19․Whilst I currently hold an appointment as a Senior Member of the NSW Tribunal (in the appeals from the Consumer and Commercial Division) I have not been acting in that capacity since my appointment as an Acting Justice of this Court (other than completing a small number of reserved judgments). In addition, my recollection was that I had never sat with counsel on the NSW Tribunal, nor did counsel ever appear before me at the NSW Tribunal. This recollection accorded with counsel’s recollection. Therefore, there was no factual basis for the application.
20․Even if counsel and myself had crossed professional paths at the NSW Tribunal, that of itself would not have given rise to any reasonable apprehension of bias for the same reasons advanced by Campbell JA in Bakarich v Commonwealth Bank of Australia [2010] NSWCA 43, in which his Honour was asked to disqualify himself from a case because he had once been a member of the same chambers as the primary judge (from whose decision the applicant appealed) and senior counsel who had appeared for one of the parties before the primary judge.
21․Apprehended bias of the sort raised by the applicant and referred to in Ebner v The Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 concerns judicial officers, not counsel or solicitors acting for a party.
22․The real order the applicant may have desired (but did not pursue) was an injunction restraining counsel from appearing for his client: see Kallinicos v Hunt (2005) 64 NSWLR 561. The basis for such an injunction was explained in that case and was not relied on for the purposes of this application.
23․In any event, the application, although formally pressed, was in substance not pressed at all.
Background
24․The applicant was admitted as a barrister and solicitor of the Supreme Court of the ACT on 20 October 1995. He held an unrestricted practising certificate and was a principal of a firm of solicitors specialising in migration and administrative law. The applicant was also registered as a migration agent.
25․On 22 May 2018, the Council of the Law Society of the ACT (the Council) issued a letter to the applicant pursuant to s 59 of the Legal Profession Act 2006 (ACT) (the LPA) which gave notice that the Council believed there may be grounds to cancel his practicing certificate. The Council sought written submissions regarding the proposed action from the applicant at that time.
26․On 18 June 2018, after receiving written submissions from the applicant’s solicitor, the Council cancelled the applicant’s practising certificate. Reasons for this decision were provided to the applicant on 21 June 2018.
27․On 5 July 2018, the applicant filed an application in the Supreme Court of the ACT to appeal the Council’s decision to cancel his practising certificate pursuant to s 81(b) of the LPA.
28․On 18 December 2018, by consent, the Supreme Court dismissed the applicant’s appeal.
29․By four separate Applications for Disciplinary Action dated 1 July 2020 and filed in the Tribunal, the respondent sought findings pursuant to s 425(1) of the LPA that the applicant was guilty of professional misconduct, or alternatively, unsatisfactory professional conduct. Those applications were numbered OR 12, 13, 14 and 15 of 2020 respectively.
30․On 8 November 2021, the Tribunal (the original Tribunal) found the applicant guilty of a total of 16 counts of professional misconduct, two counts of unsatisfactory professional conduct, and recommended that the applicant’s name be removed from the roll of legal practitioners kept by the Supreme Court of the ACT.
31․The applicant appealed those decisions to the Appeal Tribunal, which dismissed the appeal on 10 March 2023 in a comprehensive decision of 97 pages and 405 paragraphs.
32․It is necessary to provide a summary of each application and the outcome reached by the original Tribunal.
OR 12
33․The charges in this application were summarised by the Appeal Tribunal at [142] as follows:
In proceeding OR12 the Council laid 3 charges against the practitioner arising from his conduct in five different proceedings brought in the High Court, the Federal Court and the Federal Circuit Court for review of applications for protection visas on behalf of four different clients. More specifically, the Council alleged he repeatedly (on at least 5 occasions) made an argument without merit (charge 1); failed to comply with court orders (charge 2); and knowingly or recklessly misled the Federal Circuit Court in his oral submissions (charge 3). The original tribunal found charge 1 not proved. It found charges 2 and 3 proved.
OR 13
34․The charges in this application were summarised by the Appeal Tribunal at [168]-[170] as follows:
168. In proceeding OR13, the Council laid 19 charges against the practitioner arising from his dealings with a migration agent, Ms R, and his subsequent conduct arising from those dealings and in other ways. The practitioner referred to the charges, globally, as charges involving another legal practitioner. The original tribunal referred to the other practitioner as Mr D to preserve his anonymity. We will do likewise.
169. The original tribunal found charge 1 not proved, but the remaining 18 charges proved.
170. The charges found proved were charges that the practitioner recklessly misled the Federal Circuit Court (charges 2 and 3); charges that the practitioner was dishonest to the Law Society in response to its investigation of his conduct (charges 4-13); charges that the practitioner misused trust money and failed to give required cost disclosures to his client (charges 14-16); a charge that the practitioner failed to comply with a court order requiring him to repay costs to his client (charge 17); a charge that he failed to deliver legal services competently and diligently by filing an application in the Federal Circuit Court in circumstances where he knew, or should have known, the application had no reasonable prospects of success (charge 18); and a charge that he made allegations of serious improper conduct against a judge of the Federal Circuit Court in a letter to the Chief Judge of that Court without particularising, justifying or substantiating the allegations (charge 19).
35․As noted at [169] by the Appeal Tribunal, charge 1 was found not to have been proved.
36․I shall briefly describe Charge 1 because the applicant spent some time on it on the application for leave to appeal.
37․Charge 1 related to a statement made in an affidavit affirmed by the applicant and read in proceedings commenced in the Federal Circuit Court of Australia in which he deposed that another migration agent had tried her best to resolve a particular issue and had requested another solicitor (Mr D) to file the application on the applicant' s behalf.
OR 14
38․The charges in this application were summarised by the Appeal Tribunal at [322]-[329] as follows:
322. In proceeding OR14, the Council laid 3 charges against the practitioner arising from his conduct in two matters in the Federal Circuit Court: the CFMMEU v Precision Painting Contractors Pty Ltd (CFMMEU) proceeding and the Singh proceeding. The original tribunal found the charges proved.
323. As to charge 1 arising from the CFMMEU proceeding, the practitioner acted for respondents in a Federal Circuit Court matter brought under the Fair Work Act 2009. On 17 July 2019 the Court ordered the respondents to file, inter alia, a defence. The practitioner failed to do so. On 26 September 2017, the Court again ordered the respondents to file a defence, and noted the respondents were at risk of default judgment if a defence was not filed.
324. The practitioner filed a defence on 3 October 2017 which asserted “the Court does not have legal authority to order the respondents to file a defence”; “the Court has acted ultra vires” and “the respondent is not bound by any statements made in the defence. The defence is irrelevant.” The defence did not plead to any of the substantial allegations in the application. The practitioner was plainly convinced a defence was not needed, in spite of the Court ordering him to file one.
325. On the applicant’s motion, the Court struck out the defence, entered default judgment for the applicant and ordered the practitioner personally to pay the applicant’s costs. His Honour Judge Neville attributed the practitioner’s conduct to “lack of knowledge (or refusal to accept) of [sic] basic legal principle”. The Court provided the Council with a copy of Judge Neville's order and judgment. On 18 June 2018, by reference to his Honour's order and his comments about the practitioner's conduct, the Council raised a complaint against the practitioner the substance of which became the subject of charge 1.
326. As to charges 2 and 3 arising from Singh proceeding, on 15 September 2015 the practitioner and Mr Singh attended a hearing in the Migration Review Tribunal (the MRT) for review of a decision not to grant Mr Singh a visa. The practitioner admitted that on the previous day, 14 September 2015, Mr Singh’s (then) authorised agent (who we will refer to as Mr H) informed the MRT that he would not be appearing on behalf of Mr Singh. The record of hearing records that the practitioner was to complete a Notice of Appointment as Mr Singh’s agent. He failed to do so. That failure became the subject of charge 2.
327. On 23 September 2015 the MRT affirmed the decision not to grant Mr Singh a visa. The practitioner admitted that Mr Singh’s then authorised agent, Mr H, was notified of the MRT’s decision. As a consequence of the practitioner’s failure to file a Notice of Appointment, the practitioner was not notified of the Tribunal’s decision at that time. On 27 March 2017, the AAT forwarded a copy of the MRT’s decision to the practitioner at the practitioner’s request.
328. On 28 March 2017 (some 18 months after the MRT’s decision) the practitioner filed an application in the Federal Circuit Court for review of the MRT’s decision and for an extension of time to make it. He affirmed and filed an affidavit in support. In outlining the procedural history of the matter in his affidavit, the practitioner failed to state the whole truth about the circumstances of the delay, in particular his failure to file a Notice of Appointment (so that he could have been notified of the decision) where that failure was well known to him.
329. The matter came before his Honour Judge Neville on 1 September 2017 where Mr Singh was represented by the practitioner's colleague. On 18 May 2018 his Honour refused the extension of time application and raised the issue as to whether the practitioner's affidavit "could (and likely would) constitute misleading the Court" The Court provided a copy of his Honour's order and judgment to the Council. On 18 June 2018, the Council raised a complaint against the practitioner referenced to his Honour's order and judgment. These circumstances became the subject of charge 3.
(Footnotes omitted.)
OR 15
39․The charges in this application were summarised by the Appeals Tribunal at [347]-[349] which said:
347. In proceeding OR15, the Council laid 3 charges against the practitioner arising from his conduct in two separate migration matters.
348. In the first matter (before the AAT), on 1 September 2016 the practitioner appeared (remotely) before Member Short on behalf of an applicant (his client) seeking review of a decision to refuse a protection visa. Arising from his conduct before Member Short, the practitioner was charged that he repeatedly interrupted the Member, was discourteous to the Member, directed his client not to answer the Member’s questions and left the hearing before its conclusion (charge 1).
349. In the second matter, the BNJ17 proceeding (before the Federal Circuit Court), on 27 April 2018 the practitioner appeared (in person) before Judge McNab on behalf of an applicant (his client) seeking review of a decision to refuse a protection visa. Arising from his conduct, the practitioner was charged that he certified the matter had reasonable prospects of success knowing it did not (charge 2), and that he breached rules 19.1 and 19.2 of the Conduct Rules and his common law duty of honesty by knowingly filing an application that contained false information or with reckless indifference as to the truth or falsity of its contents (charges 3).
Returning to the narrative
40․On 3 December 2021, the applicant filed an application to appeal the decision of the original Tribunal to the Appeal Tribunal.
41․On 10 March 2023, the Appeal Tribunal confirmed the decision of the original Tribunal.
42․The applicant now seeks leave to appeal from the Appeal Tribunal’s decision.
Granting of leave and applicable principles
43․The Court has the power to grant leave to appeal a decision of the Appeal Tribunal pursuant to s 86 of the ACT Civil and Administrative Tribunal Act 2008 (ACT) (the ACAT Act).
44․Section 86(1)(a) and (4) of the ACAT Act relevantly say:
86 Appeals to Supreme Court
(1)A party to an application, other than an application mentioned in subsection (2) or (3), for an appeal may appeal to the Supreme Court on a question of fact or law from either—
(a)one of the following:
(i) a decision of the appeal tribunal;
(ii) if the appeal president dismissed the appeal under section 80—the original decision of the tribunal;
(iii) if the appeal president decides not to deal with the appeal under section 85—the original decision of the tribunal; or
...
...
(2)However, the appeal may be brought only with the Supreme Court’s leave.
45․Rule 5072 of the Court Procedures Rules 2006 (ACT) (the Rules) says an application must be made within 28 days from the date of the making of the order giving rise to the appeal.
46․The applicable principles in granting leave were discussed by McWilliam AsJ (as her Honour then was) in Bailey v Bottrill [2019] ACTSC 45 (Bailey). Her Honour said:
[7] The discretion to grant leave conferred by s 86 of the ACAT Act is broad, and not susceptible to exhaustive definition: Wiser v Havelock Housing Assn Inc [2014] ACTSC 138 per Burns J at [3]. A number of cases have set out principles to guide the Court in the exercise of its discretion, they include: Pires v DibbsBarker Canberra Pty Ltd [2014] ACTSC 283 at [48]; and, Wsol v John James Memorial Hospital [2015] ACTSC 378 at [9]. These cases draw upon Victorian authorities where a similar statutory regime exists for appeals from the Victorian Civil and Administrative Tribunal. These cases include: Secretary to the Department of Premier and Cabinet v Hulls [1999] 3 VR 331 at 335-7; and, Myers v Medical Practitioners’ Board of Victoria (2007) 18 VR 48 at [28].
[8] The following principles emerge from those authorities to assist the Court in its task:
a. The need for leave is to reduce the number of appeals and provide a filter so that only those of some substance or where there is a miscarriage of justice should be able to be heard, though the test should be applied “in a liberal manner, and not begrudgingly”: Perry v Smith (1901) 27 VLR 66 at 68;
b. Whether leave should be granted or not must depend upon the justice of the case.
c. The application for leave must identify the question, of fact or law, which the applicant for leave claims arises and which is important to the substantive appeal succeeding or failing.
d. The applicant need not show error – that is for the appeal itself – but must show that there is a real or significant argument to be put that error exists.
e. Where a question has been identified which bears directly on the relief which will be sought on the appeal and once it has been shown that there is sufficient doubt attending the question to justify the grant of leave to appeal, leave will ordinarily be granted if the order below is a final order or final in effect.
f. The public importance of any question of fact or law is relevant but not decisive as to the question of whether leave to appeal should be granted.
g. It may be relevant to show that the error, if uncorrected, would impose substantial hardship.
47․It is common ground between the parties that those principles are the relevant principles to apply on this application.
48․Rule 5071 of the Rules sets out the requirements for an application for leave to appeal. It says:
5071 Appeals to Supreme Court—application for leave to appeal
(1)The application for leave to appeal must comply with this division.
(2)The application must be accompanied by—
(a)an affidavit showing—
(i) the nature of the case; and
(ii) the questions involved; and
(iii) the reasons why leave should be given; and
(b)the draft notice of appeal.
(3)If the applicant is also applying for leave to appeal out of time under division 5.3.3 (Appeals to Supreme Court—leave to appeal out of time), the application for leave to appeal under this division and for leave to appeal out of time under division 5.3.3 may be made in a single application (supported by a single affidavit).
(4)If the applicant wants to present the applicant’s case in writing under part 5.8 (Written cases), the application must state that the applicant wants to do so.
The applicant’s approach
49․The applicant filed an affidavit dated 5 April 2023 in purported compliance with r 5071 of the Rules.
50․The applicant’s affidavit said the questions involved (the Questions Involved) were (errors in original):
1. Whether the Appeals ACAT had the jurisdiction to hear the matter.
2. Whether the Appeals ACAT made jurisdictional errors of fact or law in the matter.
3. Whether the ACAT had the jurisdiction to deal with the matter.
4. Whether the ACAT made jurisdictional errors of fact or law in the matter.
5. Whether the Applications for disciplinary action were lawful.
6. Whether the decision of the Law Council was unlawful.
7. Whether the appellant mislead the Court.
51․The applicant’s affidavit said the reasons why leave should be granted were (the Leave Reasons) (errors in original):
8. Leave should be granted because there has been a grave miscarriage of justice.
9. The Legal Profession Act has no jurisdiction over the appellant.
10.When the Law Council decided to cancel the certificate, the Law Council was conflicted. There was a clear conflict of interest.
11. When the practicing certificate was cancelled by the Law Council, there were no complaints about the matters, and further, there was no investigation into the matters.
12.The person who conducted the investigation did not have the legal authority to conduct such an investigation.
13.When the law council cancelled the certificate, Law Council denied the appellant the presumption innocence.
14.The decision of the Law Council was unlawful. There never has been a decision of the law council to cancel the certificate.
15.There are issues of constitutional law to be dealt with by the Court.
16.The Law Society made a number of unlawful Applications for Disciplinary action to the ACAT.
17.The law society engaged in an abuse of process by making such applications.
18.The person who made the applications for disciplinary action had no legal authority to make such an application.
19.The ACAT had no jurisdiction to hear the matters. The decision of the ACAT is unlawful.
20.The Appeals ACAT made a number of jurisdictional errors when it made is decision. There never was a decision of the Appeals ACAT in this matter.
21.At no stage did the appellant mislead any court. The law society has destroyed the career of the appellant. The appellant is innocent of all the charges.
22.Leave should be granted because of the grave injustice of this case.
23.The appellant has provided a detailed description of the errors of the fact and law made by the appeals ACAT.
24.The Appeals ACAT decision is void ab initio because of unreasonable delay.
25. The LPA requires that the person in this case who made the applications for disciplinary action must be appointed by the law council. The person who made the applications for disciplinary action had no such legal authority. He had no delegation. There is a real or significant argument to be put that error exists.
26.The appellant contends that the law society has acted for an improper purpose. It has been engaged in a vendetta against the appellant and it is a matter of public importance that these matters be addressed by the Court.
27.The appellant has suffered a heart attack as a consequence of the cancellation of his certificate. The decision to cancel the certificate in those circumstances where there was no complaint, no investigation, a denial of the presumption of innocence, the destruction of his practice, all indicate that the error, if uncorrected, would impose substantial hardship.
52․Rule 5101 of the Rules sets out the requirements for Notices of Appeal. That rule relevantly says:
5101 Appeals to Supreme Court—requirements for notice of appeal etc
(1) The notice of appeal to the Supreme Court must state—
(a)the court or tribunal’s name; and
(b)the order of the court or tribunal appealed from and the date of the order; and
(c)whether the appeal is from all or part of the order; and
(d)if the appeal is from part of the order—the part appealed from; and
(e)whether the appellant will seek to put further evidence before the court; and
(f)if further evidence is to be put before the court—briefly the nature of the evidence and what is sought to be proved; and
(g)briefly, but specifically, the grounds relied on in support of the appeal, including, in particular, any grounds on which it is claimed that there is an error of law in the order of the court or tribunal; and
(h)the order sought.
…
53․The draft Notice of Appeal was 19 pages long and contained 147 paragraphs. It complied with r 5101(1)(a)-(e), but not (1)(f) and (1)(g) in terms of “briefly, but specifically” and also because it contained many paragraphs which were not grounds of appeal but were a collection of perceived grievances the applicant had with the Appeal Tribunal’s decision.
54․In relation to drafting grounds of appeal, former High Court judge, the Hon Michael McHugh AO QC wrote, in Preparing and arguing an appeal, NSW Bar Association Bar News, Winter 2010, at 85-92:
The cardinal rule for drafting a notice of appeal is to be selective. If the appeal notice contains too many grounds, the best points are likely to be hidden in a thicket of weak points. The notice of appeal should identify only those errors of ultimate fact or law which affected the result, and the fewer the better. As Justice Branson has explained (Sydneywide Distributors Pty Ltd & Anor v Red Bull Australia Pty Ltd & Anor (2002) 55 IPR 354 at 355-356):
Not every grievance entertained by a party, or its legal advisors, in respect of the factual findings or legal reasoning of the primary judge will constitute a ground of appeal. Findings as to subordinate or basic facts will rarely, if ever, found a ground of appeal. Even were the Full Court to be persuaded that different factual findings of this kind should have been made, this would not of itself lead to the judgment, or part of the judgment, being set-aside or varied. This result would be achieved, if at all, only if the Full Court were persuaded that an ultimate fact in issue has been wrongly determined. The same applies with respect to steps in the primary judge’s process of legal reasoning. Although alleged errors with respect to findings as to subordinate or basic facts, and as to steps in the process of legal reasoning leading to an ultimate conclusion of law, may be relied upon to support a ground of appeal, they do not themselves constitute a ground of appeal.
55․The applicant did not follow that advice.
56․The Notice of Appeal is discursive, disjointed, describes a host of perceived grievances and a multitude of subordinate and basic facts. They do not, or at least not in any clear fashion, isolate the errors of ultimate fact or law said to be erroneous and which allegedly affected the result of the case. Many grounds and paragraphs do not state any recognised appellable error, whether raising a question of law or fact. I note that the Appeal Tribunal expressed similar observations about the applicant’s written material in the appeal below (see at [35]-[37]).
57․The applicant’s oral submissions were no better.
58․His submissions commenced with taking me to some very specific pieces of evidence and factual findings made by the original Tribunal but did not relate that evidence and findings to any of the Questions Involved or any of the grounds of appeal.
59․After asserting that the original Tribunal had made an error of fact, namely that the Appeal Tribunal had undertaken a merits review of the original Tribunal’s decision, I asked the applicant to take me to the material he relied on to indicate that the Appeal Tribunal had made the factual error alleged.
60․The applicant would not do so. Rather, he proceeded on the basis that I should (in effect) conduct a merits review of his case without him being required to demonstrate that (summarising Bailey) there was a real or significant argument to be put that error existed on one or more questions of fact or law which were important to the substantive appeal succeeding or failing.
61․As a side note, the submission was wrong because the Appeal Tribunal did not conduct a merits review at all. Rather, it conducted a rehearing in which the applicant’s task was to persuade the Appeal Tribunal that the original Tribunal had made an error of fact or law and that the error materially affected the result: see [31]-[34] of the Appeal Tribunal’s reasons.
62․In the conduct of this application, it is fair to say that the applicant, although citing Bailey as setting out what was required on an application such as this, then proceeded to ignore it and its principles.
63․The following exchange illustrates the applicant’s disregard for the requirements set out in Bailey (referred to in the exchange below as “Bottrill”, with “s 86” being a reference to s 86 of the ACAT Act, and commencing at T 23.4):
HIS HONOUR: Which paragraph do they deal with that factual error, but in an erroneous way? Can you help me?
APPLICANT: I’m sorry, I can’t actually point to it now.
HIS HONOUR: Don’t you have to, if you are seeking leave to appeal?
APPLICANT: Well, I think we need to go back to section 86, your Honour.
HIS HONOUR: Yes.
APPLICANT: Of your – so when you look at section 86, this is your power.
HIS HONOUR: Yes.
APPLICANT: And section 86 says:
A party to an application, other than an application mentioned in subsection (2) or (3), for an appeal may appeal to the Supreme Court on a question of fact or law…
So on the issue of facts, it is up to you, your Honour, to make findings of fact. In this case - -
HIS HONOUR: No, no. It’s up to me to decide on a leave application per Botrill, I think, and other cases, whether there was some arguable error.
APPLICANT: Yes.
HIS HONOUR: And I’m just asking – you’ve told me the original tribunal made a factual error.
APPLICANT: Yes.
HIS HONOUR: But this is a leave to appeal from the appeal tribunal.
APPLICANT: Yes.
HIS HONOUR: So you have to, on this application, point to the arguable error made by the appeal tribunal.
APPLICANT: No, I don’t think so. I think you, quite independently of the ACAT and the appeals ACAT can make a finding of fact as to whether I did or did not mislead the court.
…
APPLICANT: The discretion – at the beginning, the discretion to grant leave confirmed by 86 is broad and not susceptible ...(inaudible)... exhaustive definition. Only those of some substance where there is a miscarriage of justice.
So quite - really irrespective – irrespective of what transpired in the ACAT or the appeals ACAT, if you are satisfied there is some sort of miscarriage of justice here, then based on the Bottrill principles, I think you can intervene and say there has been some miscarriage of justice. And then we have down here in (g):
…would impose substantial hardship.
So this gives you, in my submission, a very broad power to come in and that is why I have gone through the evidence, really quite irrespective of what happened in the ACAT and the appeals ACAT.
(Emphasis added)
64․I reject that submission. It is contrary to the principles that apply to an application seeking leave to appeal.
65․On the application, the applicant read an affidavit of his affirmed on 10 May 2023 and tendered an exhibit of 334 pages containing various documents. Whether any or all of those documents were in evidence before the Appeal Tribunal is unknown.
66․The respondent read an affidavit of its solicitor and tendered the exhibit to that affidavit of 1,842 pages.
67․The applicant’s submission was, in substance, that I should simply read all of that material and make a decision whether the applicant misled the Court or not, and if I decided he did not mislead the Court, I would grant leave to appeal, and if I decided he did mislead the court, I would not grant leave to appeal (T 25-27). As the applicant summarised it:
If on the merits you think I did not mislead the court, then it's open to you to grant me leave to appeal.
68․I reject that submission.
69․On an application for leave to appeal it is for the applicant to demonstrate that leave to appeal should be granted.
70․As McWilliam AsJ said in Bailey, the leave requirement is a filter. An applicant is required to show that there is a real or significant argument to be put that error exists on one or more questions of fact or law which are important to the substantive appeal succeeding or failing. It is not for judges to read all of the evidence below and, in the absence of any assistance from a legally trained applicant, analyse that material in a partisan way to determine whether or not sufficiently arguable error existed to justify the grant of leave.
71․Amongst other problems with that approach is one of procedural fairness to the respondent. If a legally trained applicant such as the applicant in this case does not identify for the respondent the case it has to meet on the application for leave to appeal, how (I ask rhetorically) is that respondent to be given a fair opportunity to make submissions in response?
72․This particular problem was highlighted in this case when I asked the applicant to identify where the Appeal Tribunal made a factual finding he wished to challenge and where the evidence was. I was told:
I can't remember it but I can find it for your Honour.
(He never did)
and
I can't remember, honestly, your Honour. I would have to find it and provide you with submissions on it.
(He never found it nor provided submissions on it)
73․The problem was again highlighted in the following exchange (at T 34.20 ff):
HIS HONOUR: All right. Are you going to take me to – because this is a leave to appeal from the appeal ACAT, are you going to take me to the appeal ACAT’s decision and show me where they made an error originating –
APPLICANT: I can’t do that – I can’t do that now because I simply don’t have the time, but if your Honour really wants to, I will provide you with submissions.
(No submissions were provided)
The grounds of appeal the subject of submissions
74․As mentioned earlier, the draft Notice of Appeal was 19 pages long and contained 147 paragraphs.
75․The applicant did not file any written submissions in advance of the hearing, which he knew was set down to commence at 2.15pm and finish at 4.15pm. As it turned out, the application concluded at 4.26pm.
76․I imposed a time limit on the applicant’s oral submissions to ensure the respondent would be given an adequate opportunity to put its case in the time available. In the event, the applicant used up all of the hearing time except for about 15 minutes, which was used by the respondent.
77․The applicant did not oppose this time limit, did not seek extra time to make submissions, and did not make any application to provide written submissions subsequent to the hearing.
78․In those circumstances, I will address the matters on which the applicant made oral submissions. Anything contained in the application or draft Notice of Appeal that was not the subject of any oral (or written) submissions, I will treat as impliedly abandoned.
79․Lest this seem harsh, I note that the applicant is legally trained and legally experienced. Further, in Mendonca v Legal Services Commissioner [2020] NSWCA 84 at [21], McCallum JA (with whom Basten and Leeming JJA agreed) observed that whilst there may be cases in which it is appropriate for a court to give the correct legal construction to an arguable point poorly articulated by a self-represented litigant, courts are not required to undertake a partisan analysis of lengthy, unstructured assertions and misconceptions with a view to ensuring that a self-represented litigant has not missed some arguable point.
80․Equally, I am not required to conduct a partisan analysis of this amount of material armed (relevantly) only with the legally trained applicant’s draft Notice of Appeal to see whether the applicant has some arguable ground of appeal. If nothing else, to do so would amount to procedural unfairness to the respondent who is entitled to know the case it has to meet on the application before I reserve judgment. The respondent is entitled to a fair hearing by a non-partisan judge knowing the case it has to meet so that it may make its submissions in response.
81․Therefore, I shall only address the matters which were the subject of submissions by the applicant together with the question of further evidence (which I shall address first simply for convenience).
82․Those grounds argued in addition to further evidence were as follows:
(a)There were no “complaints” as defined by the LPA and therefore the chain of decisions ending with the Appeal Panel were fundamentally flawed.
(b)The factual finding that the applicant misled the Federal Circuit Court was erroneous.
(c)The factual findings about the emails were erroneous.
(d)The LPA requires three elements: a complaint, an investigation and lawful authority (being held by the person conducting the investigation). None of those elements existed and so the chain of decisions ending with the Appeal Tribunal were fundamentally flawed.
(e)The respondent was required to complete its investigation before cancelling the applicant’s practising certificate.
(f)Members of the Law Council had a conflict of interest.
83․In one way or another, as I understood the applicant, these grounds were related to the Questions Involved and the Leave Questions set out above, except for:
(a)Leave Questions 15, 17, 24 and 26 which were never addressed in any form;
(b)Leave Question 23 which is an incorrect statement of fact; and
(c)Leave question 27 which is a generalised submission as to alleged hardship.
Further Evidence
84․The draft Notice of Appeal did not state, briefly or at all, the nature of the evidence and what would be sought to be proved by that evidence as required by r 5101(1)(f) of the Rules.
85․I observe that the applicant had made a similar application to the Appeal Tribunal and, as was the case here, did not provide any indication what this evidence was, nor did he comply with the Appeal Tribunal’s direction that he do so even in circumstances where he was given an extension of time (see at [23]-[27]).
86․In the absence of any indication as to what this evidence might be, in light of the fact the applicant was given the opportunity to lead further evidence before the Appeal Tribunal, and in light of the fact no explanation or evidence was given why that opportunity was not availed of, I would not grant leave to adduce any new evidence on the appeal (assuming leave was otherwise granted).
Complaints
87․The applicant submitted that there were never any “complaints” within the meaning of that term in the LPA and therefore everything that followed was unlawful or resulted in a lack of jurisdiction in the Council, the original Tribunal, and the Appeal Tribunal. I take this to mean that each and every charge found proven in proceedings OR 12, 13, 14 and 15 of 2020, and the Appeal Tribunal, were therefore legally flawed.
88․The applicant submitted that a “complaint” was required to identify the particular breach of the code of conduct.
89․The applicant only identified one letter of complaint that he submitted, and one of the complaint letters did not meet that description. The applicant submitted that despite not meeting that description, the respondent still declared or deemed this letter to be a complaint.
90․The particular letter concerned was not identified, but it seems to be that it was a letter dated 26 September 2017 from a person referred to by the Appeal Tribunal as Mr D (to preserve that person’s anonymity), because at T 33.40 the applicant said:
The Law Council met and even though the complaints which have been lodged were not complaints, for a number of matters here, there never were complaints, there never were complaints. And in relation to Mr (D), Mr (D’s) letter cannot be construed as being a complaint.
91․The submission was never developed. There was nothing submitted as to why this letter was not a ‘complaint’.
92․Section 383 of the LPA, found in Chapter 4, which is headed “Complaints and discipline”, defines “complaint” as meaning “a complaint under this chapter”.
93․Section 394 of the LPA sets out requirements for “complaints”. They must be made to the relevant council, be in writing, identify the complainant, if possible, identify the person about whom the complaint is made, and must describe the alleged conduct the subject of the complaint.
94․The particular letter meets all of those requirements, and the applicant did not make any particular submission identifying in what way this letter did not satisfy the terms of s 394 of the LPA.
95․I am otherwise not aware of any section of the LPA or common law principle which supports the applicant’s submission.
96․There is also the problem for the applicant that this argument does not seem to have been raised by him before the Appeal Tribunal. I cannot find anywhere in the transcript of the three days of hearing before the Appeal Tribunal any occasion when this argument was raised. If it was not raised below, I would not grant leave to raise it for the first time on appeal.
Misleading the Federal Circuit Court of Australia
97․As described by the applicant at T 31.30-.35:
Now, so the issue here is that the question is not whether I misled the court. The question is whether it was based on all of the evidence that was before me, whether it was open to me to conclude that (Mr D) was in the in the matter. Now, there is – in addition to what I have referred to here, there is other evidence, there are emails which also establish that Mr Dobbie was in the matter.
98․I take this to be a challenge to charges 2 and 3 in OR 13 of 2020, namely that the practitioner recklessly misled the Federal Circuit Court.
99․The applicant took me to various pieces of evidence (although far from the totality of the evidence on the point) and said that the original Tribunal had made a factual error and the Appeal Tribunal “also made that error” (T 22.29).
100․I asked the applicant:
HIS HONOUR: Which paragraph do they deal with that factual error, but in an erroneous way? Can you help me?
APPLICANT: I’m sorry, I can’t actually point to it now.
HIS HONOUR: Don’t you have to, if you are seeking leave to appeal?
APPLICANT: Well, I think we need to go back to section 86, your Honour.
101․The applicant then referred to s 86 of the ACAT Act and then said, in basic terms, that he did not need to identify an arguable error made by the Tribunal, but that I was required to read all of the material and decide myself whether there was an error. The following exchange encapsulates the applicant’s position as just described (at T 23.42-.47):
HIS HONOUR: So you have to, on this application, point to the arguable error made by the appeal tribunal.
APPLICANT: No, I don’t think so. I think you, quite independently of the ACAT and the appeals ACAT can make a finding of fact as to whether I did or did not mislead the court.
102․The applicant then took me to other evidence on this subject but made no attempt to identify the factual finding and how it was made in error.
103․Importantly, the applicant made no submissions as to his admissions to the original Tribunal. Before the original Tribunal, the applicant was represented by a solicitor (as advocate).
104․The original Tribunal said (the “respondent” being the applicant before me):
215. Charge 2 relates to the statements made in paragraph 6 of the written submissions filed on 31 July 2017 that "Unfortunately Mr [D] was unable to get the papers into the Tribunal within the prescribed period" and in paragraph 10 that "Mr [D] would be prepared to put on an affidavit attesting to the situation".
216. The respondent's closing submissions accepted that paragraphs 6 and 10 were misleading, attributing the respondent's conduct to "a catastrophic failure to understand his instructions" which "had the consequential effect of misleading the Court and the dogmatic reiteration of 'facts' which were incontrovertibly incorrect aggravated the conduct”.
217. We find the charge that the respondent breached rule 19.1 and his common law duty of honesty and candour to the Court by recklessly misleading the Court is proved. We refer to our findings at paragraphs 139 to 145.
218. We find the charge that the respondent breached rule 19.2 and his common on law duty of honesty and candour to the Court by failing to correct the misleading statements as soon as possible also is proved. We refer to our findings at paragraph 168.
(Citations omitted.)
105․The original Tribunal’s footnote citations said that the admissions came from the applicant’s closing written submissions, “Submissions on Breach, Characterisation and Penalty”, at paragraph 4.5. This document was not placed before me on this application.
106․About the original Tribunal’s findings on this point the Appeal Tribunal said:
202. On appeal, notwithstanding his admissions, the practitioner submitted there was "no evidence" to support the findings. This is simply not true. The original tribunal had in evidence the affidavit of Mr D and the affidavit of Ms R in which both denied the practitioner's claims. It also had in evidence Ms R's email of 14 February 2017 to Mr D which (for the reasons explained above) corroborates the sworn evidence of Mr D and Ms R that Mr D was not involved in the AAT proceeding.
203. By reference to the practitioner's admissions and the evidence before it, we see no error in the original tribunal finding charge 2 proved.
(Citations omitted.)
107․The Appeal Tribunal said the admissions were contained in the “(Applicant’s) amended reply to facts dated 22 April 2021” at paragraph 78 and the “(Applicant’s) submissions on penalty dated 23 April 2021 at paragraph 4.5. Neither of those documents was placed before me on this application
108․The only submission made by the applicant in relation to those admissions and supposed error in the Appeal Tribunal’s decision was (at T 49.17-.28):
… Rule of Browne v Dunn was broken. It was not complied with. I have looked through all of the major decisions dealing with Browne v Dunn. Not one of the decisions says that if there's been an admission that you can ignore the rule in Browne v Dunn. Not one of them.
Now on top of that, it is alleged that I made admissions in this matter hence no need for – be cross-examined. I did not make admissions. I provided a document which sets out the admissions. The admissions were made about certain things but in relation to the Dobbie misleading the court, which is the cornerstone of this matter, I did not make any admissions and therefore the rule in Browne v Dunn did apply. The court – the tribunal's ignored the rule in Browne v Dunn.
109․I reject the applicant’s submission. It is non-sensical. It was the applicant who, through his legal representative, made the admissions. There was thus nothing contrary to put to him by the respondent.
110․Further, Browne v Dunn (1894) 6 R 67 (Browne v Dunn) concerns evidence, not formal admissions made in submissions or replies.
111․Charge 3 related to the applicant’s oral submissions to the Federal Circuit Court on 19 July 2017.
112․The original Tribunal said:
222. The respondent's closing submissions acknowledged that the submissions were "incorrect and unfounded" and sought to explain the respondent's conduct as follows:
The dogmatic insistence on facts now known to be incorrect, betrays a temperament or disposition to certainty which, on the facts, was plainly misconceived. The inadvertent misleading of the Court was driven by the Respondent 's failure to adhere to ordinary expectations concerning the in making and maintenance of records and a willingness to listen, comprehend and then act on those instructions rather than to pursue a ‘case theory’ driven by his own dogmatic certainty.
223. These 'insights' into the respondent's character were not based on evidence before the Tribunal. The evidence does not provide any basis to find that the respondent misled the Court inadvertently. We find that, in making the submission, the respondent breached rule 19.1 and his common law duty of honesty and candour to the Court by recklessly misleading the Court. We refer to our findings at paragraph 171.
(Citations omitted.)
113․The original Tribunal sourced the admission to the applicant’s “Submissions on Breach, Characterisation and Penalty” at paragraph 4.7.
114․The Appeal Tribunal referred to this admission at [205] where it said:
Before the original tribunal, the practitioner (through his counsel acknowledged (by reference to facts admitted) that his statement to the Federal Circuit Court about migration lawyers who let the applicant down by not filing the application were "incorrect and unfounded".
(Citations omitted.)
115․The Appeal Tribunal then repeated (in substance) the applicant’s submission below which is quoted at [112] above and said at [219]:
The acknowledgement of the practitioner's counsel that the practitioner’s submissions to the Court on 19 July 2017 were "incorrect and unfounded" was properly made. We see no error in the original tribunal finding charge 3 proved.
116․It is noteworthy that the Appeal Tribunal was critical (on multiple occasions) of the applicant’s submissions to the Appeal Tribunal. For example, the Appeal Tribunal said at [220]:
What is much more significant, for the purposes of the appeal, is that the practitioner's submissions on appeal demonstrated his ongoing lack of honesty and candour and his ongoing willingness to misrepresent facts. His submissions in relation to charge 3 confirm, in our view, his lack of fitness to practise.
117․Suffice to say that the Browne v Dunn submission in relation to charge 3, and the Appeal Tribunal’s findings, is rejected for the same reasons as expressed above.
Emails
118․The applicant could not take me to the factual finding he challenged. I asked him twice (at T 27.27 and 30.16) but was told the applicant could not remember where it was but would find it. He never did. Therefore, I do not know what factual finding made by the Appeal Tribunal the applicant says was arguably wrong.
119․However, the applicant also made the following submissions about the emails relied upon below. The emails were contemporaneous evidence to the effect that the applicant knew Mr D was not involved at the time he made the misleading statements to the Federal Circuit Court.
120․The submission, which is nonsense, was that although Mr D was not involved at the Administrative Appeals Tribunal (the AAT) stage and within 28 days of the AAT’s decision (the time limit for seeking a review from the Federal Circuit Court), as the applicant had represented to the Federal Circuit Court, Mr D did become involved (much) later and, because there is no time limit for appeals on jurisdictional error, Mr D was therefore “involved” at the AAT stage. That is, Mr D was involved within the time allowed for setting aside the AAT decision for jurisdictional error.
121․The submission, with respect, is misconceived. One misleading representation was to the effect that Mr D was involved at a particular point in time, not within certain time limits. For example, charges 2 and 3 concerned paragraph 6 of the applicant’s submissions to the Federal Circuit Court, which said:
Unfortunately, Mr [D] was unable to get the papers into the Tribunal within the prescribed period.
122․The charge was not that the applicant made a misleading representation that Mr D was involved “at the AAT stage”, it was that Mr D didn’t do something with 28 days (the prescribed time) of the Tribunal’s decision.
123․The other offending paragraph, paragraph 10, had nothing to do with time limits. It said:
If necessary, both Ms [R] and Mr [D] would be prepared to put on an affidavit attesting to the situation.
The three alleged elements not made out
124․The applicant submitted that the LPA required three elements: a complaint, an investigation, and lawful authority (being held by the person conducting the investigation). He submitted that none of those elements existed and so the chain of decisions ending with the Appeal Tribunal were fundamentally flawed.
Complaints
125․I have dealt with complaints earlier in this judgment.
Cancellation and disciplinary action
126․The submission about the investigation was that the Council cancelled the applicant’s practising certificate before it had completed its investigation, and that he was entitled to the presumption of innocence.
127․The applicant elides two distinct and separate matters. The first is the cancellation of his practising certificate under s 55 of the LPA on the basis the applicant was not a fit and proper person. The second was the disciplinary action taken in this case by the institution of four proceedings pursuant to s 419 of the LPA.
128․Section 55(1)(a) of the LPA says:
55 Grounds for amending, suspending or cancelling local practising certificate
(1) Each of the following is a ground for amending, suspending or cancelling a local practising certificate:
(a)the holder is no longer a fit and proper person to hold the certificate;
…
129․If the council believes a ground exists to amend, suspend or cancel a local practising certificate, s 56(2)(c) of the LPA empowers the council to cancel the practitioner’s practising certificate if certain requirements are met. Notably, that power only exists in relation to the limited grounds set out in s 55(1) of the LPA or any regulations made pursuant to s 55(2) of the LPA.
130․In this case, the Council considered those requirements to have been met and cancelled the applicant’s practising certificate, having formed the view that the applicant was not a fit and proper person on the basis of various identified “suitability matters” (as defined in ss 11 and 36 of the LPA).
131․Section 419 of the LPA is different to s 55. It relevantly says:
419 Application to ACAT
(1) The relevant council for an Australian legal practitioner may apply to the ACAT for an order in relation to a complaint against the practitioner.
(2) ...
(3) The application must include the charge of unsatisfactory professional conduct, professional misconduct or unsatisfactory employment conduct that the relevant council considers arise out of the complaint.
132․Section 425 of the LPA then empowers the Tribunal, after it has finished considering an application under Part 4.7 of the LPA (which includes s 419), and if is satisfied that the practitioner is guilty of unsatisfactory professional conduct or professional misconduct, to make orders against the practitioner.
133․Thus, s 419 of the LPA has a much wider remit than s 55.
134․The Appeal Tribunal said at [71]:
We were not persuaded that the cancellation of the practising certificate, lawful or otherwise, had any bearing on the lawfulness of the Council bringing its four applications for disciplinary action against the practitioner or the lawfulness of the original tribunal hearing and determining them. Nor did it have any bearing on the Appeal Tribunal's jurisdiction to review the original tribunal's decision for error.
135․The applicant appealed the cancellation of his practising certificate to the Supreme Court, as he was entitled to do, but consented to an order dismissing his appeal part way through the hearing of that appeal.
136․Accepting for the purpose of argument that that consent did not estop the applicant from raising the point he did here (as the applicant submitted), the applicant did not provide any submissions to support his contention that any investigation (which may lead to disciplinary action per s 419 of the LPA) had to be completed before the Council could exercise its power to cancel a practising certificate under s 55 of the LPA.
137․That the action which may be taken under s 55 and Part 4.7 of the LPA is not mutually exclusive is made clear by s 59 (which, together with ss 55 and 56, are contained in Division 2.4.6), which says:
59 Relationship of div 2.4.6 with ch 4
This division does not prevent a complaint from being made under chapter 4 (Complaints and discipline) about a matter to which this division relates.
138․Further, one “suitability matter” that may be taken into account under s 55 of the LPA is whether a practitioner is currently the subject to an unresolved complaint, investigation, charge or order: see s 11(1)(g) of the LPA. That section makes clear that an unresolved investigation is not a bar to finding a practitioner not a fit and proper person.
Lawful Authority
139․The applicant submitted that the respondent’s solicitors had not been authorised to investigate the s 56 issue (T 38.16-.24). He took me to a letter dated 5 June 2018 from those solicitors to the applicant’s solicitor in which the respondent’s solicitor said that they had no delegated authority to investigate the s 56 issue.
140․However, the letter goes on to state that they were retained to write to the applicant pursuant to s 56 of the LPA to invite the applicant to make written representations about the proposed action (which I infer to be the cancelling of his practising certificate). It was put to the applicant that the Council was the decision maker, and the solicitors were simply the Council’s legal advisors.
141․I asked the applicant where the Appeal Tribunal (or the original Tribunal) had made findings about this point (at T 36.45), but he told me they had not made any findings.
142․I then asked him whether he had put this submission to the Tribunal or the Appeal Tribunal. He said he thought they would be in his submissions to the Tribunal (at T 37.19). He did not take me to any of his submissions, but took me to the letter referred to at [139] above.
143․In the transcript of the hearing before the Appeal Tribunal, it does appear that the applicant made the submission (at p 1537 of Ex KED1, or p 114 of the transcript itself), and it does not appear that the Appeal Tribunal came to any decision on the point.
144․Be that as it may, there is no evidence that the respondent’s solicitors conducted the investigation which led to the applications made to the Tribunal and with which this application is concerned. The letter, in terms, refers to the s 56 issue which was the cancellation of the applicant’s practising certificate.
145․It is true that s 234 of the LPA says that the Council may appoint a suitably qualified person to investigate the affairs or stated affairs of a law practice, and if that is to be done there is to be a written instrument of appointment.
146․But there was no evidence that the respondent’s solicitors did conduct the investigation (as opposed to providing legal services to the Council), and in submissions counsel for the Council submitted that those solicitors had not conducted the investigation (p 1679.23 of Ex KEB1).
147․Therefore, even if there was error in failing to decide a point raised, there was no evidence establishing the factual contention advanced and therefore the point was doomed to fail.
Completion of the investigation
148․The applicant submitted that the respondent was required to complete its investigation before cancelling the applicant’s practising certificate. He submitted (at T 34.42):
So at the time of cancellation, the complaints were still under investigation. They had not completed the investigation of the matter at the time of cancellation. Now, your Honour, one of the most fundamental principles of criminal law and the whole legal system is the presumption of innocence. What the Law Council should have done before they – before they cancelled is investigate and complete and fully investigate the matter. At page - at page 2, I’ll just point to you, for the avoidance of any doubt no decision has been made by the Council in relation to complaints, so the Law Council had no idea whether I’d breached the code of conduct at the time of cancellation. They simply shot first and asked questions later.
149․He then submitted (at T 35.18):
Now, I don’t have time to go through it, your Honour, but if you look through the Legal Profession act, it is abundantly clear that you must complete the investigation prior to cancellation.
150․The Appeal Tribunal held that what occurred in relation to the cancellation of the applicant’s practising certificate was essentially irrelevant to the issues it had to decide, namely the issues concerning the disciplinary proceedings heard and determined by the original Tribunal: see at [76]-[82].
151․I see no arguable error in the Appeal Tribunal’s decision, and none was identified. Despite the applicant submitting that the LPA is abundantly clear that an investigation must be completed before a practising certificate could be cancelled, he did not take me to the provisions of the LPA which supposedly supported that submission, nor did he link that decision with the issues in this case.
Conflict of interest
152․The applicant submitted that the Council members had a conflict of interest.
153․His submission was (at T 35.44):
The Law Society and Law Society are different bodies. They’ve been split, they’ve been separated in New South Wales and Victoria because of the perceived conflict of interest. Now members of the Law Society sat on the Law Council that made this decision which gives rise to a perceived conflict of interest.
154․The submission was never developed. There was no evidence of which I am aware (the applicant did not take me to any) which established any conflict, nor how that conflict is alleged to have manifested itself.
155․The short point is that four proceedings were brought before the original Tribunal, and the original Tribunal found most of the charges laid to have been proved. On appeal, the applicant did not establish any error in the original Tribunal’s findings. Quite what any conflict of interest by members of the Council, even if established, would have made to the original Tribunal’s findings or the Appeal Tribunal’s decision was not explained.
Conclusion
156․Doing the best I can given the almost total lack of assistance of the applicant in identifying any potential arguable error, I refuse leave to appeal.
157․I see no arguable error in any aspect of the Appeal Tribunal’s decision applying the principles set out in Bailey. I see no arguable point arising from the applicant’s Questions Involved nor the Leave Reasons.
158․The applicant did not identify any question, of fact or law, about which there was a real or significant (or even slight) argument that error was involved and which was important to a substantive appeal succeeding or failing.
Orders
159․ I make the following orders:
(1)The application for leave to appeal is dismissed.
(2)The applicant is to pay the respondent’s costs.
| I certify that the preceding one hundred and fifty nine [159] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Curtin. Associate: Date: |
2
13
3