Legal Practitioner “M” v Council of the Law Society of the Act (Appeal)
[2014] ACAT 18
•31 March 2014
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
LEGAL PRACTITIONER “M” v COUNCIL OF THE LAW SOCIETY OF THE ACT (Appeal) [2014] ACAT 18
AA 13/27
Catchwords: APPEAL – OCCUPATIONAL DISCIPLINE - LEGAL PRACTITIONERS – complaint to Law Society about legal practitioner’s communication with fellow legal practitioner’s firm – nature of appeal before Appeal Tribunal: review of decision of original tribunal – nature of proceedings before original tribunal: “hybrid” appeal from decision of Council of the Law Society (“Council”) – nature of proceedings in the Law Society: whether Council’s investigation of complaint is appropriate – natural justice –whether admission of new evidence by original tribunal appropriate – application of principle in Briginshaw v Briginshaw (1938) 60 CLR 336 – 1938) 60 CLR 336– whether penalty of caution appropriate for conduct complained of
Legislation: ACT Civil and Administrative Tribunal Act 2008, s 82
Legal Profession Act 2006, ss 413, 416 & 420, and Part 4.7
Subordinate
Legislation:Legal Profession Act (Solicitors) Rules 2007, Rule 24
Cases: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd [1976] HCA 62
Kozanoglu v Pharmacy Board of Australia [2012] VSCA 295
Lander v Council of the Law Society of the Australian Capital Territory [2009] ACTSC 117
Legal Practitioner “M” & Council of the Law Society in the ACT [2013] ACAT 42
Legal Professional Complaints Committee v in de Braekt (2013) WASC 124
Legal Services Commission v Douglas John Winning [2008] LPT 13Marine Hull & Liability Insurance Co Ltd v Hurford
(1985) 10 FCR 234
Murray v Legal Services Commissioner [1999] NSWCA 70
Re Coldham & Ors; Ex Parte Brideson (No. 2) (1990) 170 CLR 267
The Appellants v Council of the Law Society of the ACT and The Legal Practitioner [2011] ACTSC 133
Appeal Tribunal: Mr W.G. Stefaniak, AM – Appeal President
Ms E. Symons – Presidential Member
Date of Orders: 31 March 2014
Date of Reasons for Decision: 31 March 2014
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
AA 13/27
BETWEEN:
THE LEGAL PRACTITIONER “M”
Appellant
AND:
THE COUNCIL OF THE LAW SOCIETY
OF THE ACT
Respondent
APPEAL TRIBUNAL: Mr W.G. Stefaniak, AM – Appeal President
Ms E. Symons – Presidential Member
DATE: 31 March 2014
ORDER
1.The appeal is dismissed.
………………………………..
W.G. Stefaniak, AM
Appeal President
for and on behalf of the Tribunal
REASONS FOR DECISION
PRELIMINARY
This is an Application for Appeal from an ACAT decision dated 19 June 2013 which was lodged on 17 July 2013. The applicant is a legal practitioner (“the solicitor”). The matter was originally before ACAT (“the original tribunal”) for the purpose of appealing a decision which was made by the Council of the Law Society of the Australian Capital Territory (“the Council”) on 20 August 2012 in relation to the solicitor. The solicitor was the subject of a complaint to the Law Society of the ACT (“the Society”). The Council of the Society decided to deal with the complaint summarily pursuant to section 413 of the Legal Profession Act 2006 (“the LP Act”) and issued a caution to the solicitor on 20 August 2012.
The original tribunal heard the appeal over two days, 19 February 2013 and 4 April 2013, and published its Reasons for Decision on 19 June 2013 (the original decision). The original tribunal confirmed the Council’s decision. The original decision is reported as Legal Practitioner “M” & Council of the Law Society in the ACT (Occupational Discipline) [2013] ACAT 42.
The Council of the Society is given statutory responsibility to consider complaints where it is considered that legal practitioners have failed to reach appropriate standards.
BACKGROUND
The Tribunal adopts the outline of the circumstances of the complaint and the action taken by the Council set out in the original decision, but substitutes ‘appellant’ for ‘applicant’, namely:
a)The appellant and the complainant are principals of law firms in the Territory. They each represented clients involved in a dispute under the Family Law Act 1975.
b)The two practitioners were attempting to schedule a conciliation conference in those proceedings.
c)By letter dated 14 November 2011, the appellant wrote to the Registrar of the Federal Magistrates Court confirming that she was not available for a conference on a particular date as she would be recovering from surgery.
d)The complainant wrote to the appellant on 17 November 2011 and in the letter referred to the applicant s health difficulties. The letter was sent by fax on 17 November 2011.
e)The appellant telephoned the complainant’s office on 18 November 2011 to speak to her about the contents of the letter of 17 November 2011. The complainant was not available. During the telephone call the appellant spoke to two staff members of the complainant’s firm. When the complainant returned to her office, the two staff members complained to her about the content and tone of the appellant’s conversation with them.
f)A letter written by the appellant dated 18 November 2011 to the complainant indicated that it was the applicant’s opinion that it was totally unacceptable to write a letter which referred to her health difficulties.
g)After some consideration, the complainant telephoned the appellant on the same day in relation to the complaints that had been made to her. In that conversation she raised the possibility of an apology.
h)The appellant rejected that suggestion. While not denying that there had been a conversation, she broadly denied the staff members’ description of the content and tone of the conversation.
i)The complainant made a formal complaint to the Law Society of the ACT on 9 February 2012.
THE COMPLAINT
The complainant detailed in the complaint the events leading up to the telephone conversation of 18 November 2011. The complainant then detailed the description that her two staff members had given of the conversation. She described the tone of the conversation as being an angry outburst using inappropriate and distressing language. Attached to the original decision was a copy of the complaint marked as Annexure A.
The complaint also referred to the complainant’s conversation with the appellant on 18 November 2011. She said that not only had the appellant denied the words attributed to her by the staff members, but the appellant asserted that the staff members were lying about the conversation.
ACTION BY THE LAW SOCIETY COUNCIL
The Society’s Professional Standards Director wrote to the complainant after he received the complaint. His letter of 13 February 2012 set out the procedure followed in respect of complaints. A copy of the complaint was also sent to the appellant.
The appellant sent the Director a response to the complaint by letter dated 26 February 2011.
On 29 February 2012, the Director wrote to the appellant telling her that a copy of her response had been sent to the complainant for comment.
On 15 March 2012, the complainant wrote to the Director commenting on the appellant’s response. She took issue with much of the response. The Director wrote to the complainant on 16 March 2012 referring to her comments and told her that the matter would be considered by the Complaints Committee.
The matter was considered by the Complaints Committee which determined that it should be referred to the Executive of the Council of the Law Society. The Executive seems to have recommended a pastoral visit to the appellant. The visit took place.
On 18 June 2012, the President gave a report to the Council about the pastoral visit. The Council then determined that it would be appropriate for the complaint to be disposed of summarily pursuant to section 413 of the LP Act. The Professional Services Director wrote to the appellant on 20 July 2012 inviting her comments regarding that proposed procedure. The letter concludes by saying that the Council was next meeting on 20 August 2012 and requested submission of any comments by 15 August 2012.
The appellant responded to this letter by letter dated 15 August 2012. The letter is a little difficult to understand because it does not directly address the matters referred to in the letter from the Professional Standards Director. The appellant requested that the complaint be referred to ACAT or that she be given notice of when it would be dealt with summarily. She seems to have overlooked the reference in the letter to the Council considering the matter at its meeting on 20 August 2012.
The Council proceeded to consider the complaint at its meeting on 20 August 2012. Attached to the original decision and marked as Annexure ‘B’ was a copy of Council’s letter to the appellant which was written by the Professional Standards Director and set out Council’s decision.
APPLICATION FOR APPEAL FROM ORIGINAL TRIBUNAL DECISION
In the Application for Appeal the appellant set out the following Questions of Law or Fact:
i.The Tribunal fell into error and failed to afford the appellant natural justice, by failing to properly afford the appellant an opportunity to be heard on the question of whether the appellant had breached rule 26 of the Legal Profession (Solicitors) Rules 2007.
ii.The Tribunal fell into error by misrepresenting rule 26 of the Legal Profession (Solicitors) Rules 2007 so as to impose a general obligation of courtesy applying to solicitors in dealing with third parties.
iii.The Tribunal fell into error in misconstruing its task, namely, it embarked upon a hearing de novo when its task was limited to hearing an appeal.
iv.The Tribunal fell into error in construing its task as requiring it to “consider all the evidence that has been given at the hearing to date and [thereafter to] substitute my decision for that of Council.” (at paragraph 31).
v.The Tribunal erred in admitting evidence that was not before the Council of the Law Society on the basis that it “could have been considered by Council had its investigation proceeded to that level of detail” (at paragraph 31).
vi.The Tribunal fell into error by finding that there was a reasonable likelihood that ACAT would make a finding that the applicant had engaged in unsatisfactory professional conduct (at paragraph 61), without having made any findings of fact that would ground such a conclusion.
vii.The Tribunal fell into error by finding that there was a reasonable likelihood that ACAT would make a finding that the applicant had engaged in unsatisfactory professional conduct, despite having found that it could not assess whether the applicant’s or the complainant’s account was more likely.
The Tribunal fell into error by failing to properly apply the principles in Briginshaw v Briginshaw [1943] 60 CLR 336[1].
ix.The Tribunal fell into error by failing to give appropriate weight to the tendency evidence led by the Applicant.
x.The Tribunal erred in failing to address the Applicant’s submissions that the Council had failed to properly investigate the complaint before making a finding.
xi.The Tribunal erred in determining that the article published by Mr Robert Reis in the publication referred to at paragraph 64 of the judgment was not an appropriate matter to be taken into consideration.
[1] The correct citation is Briginshaw v Briginshaw (1938) 60 CLR 336
On 5 August 2013, the Appeal Tribunal made orders that the Appeal was to proceed as a review pursuant to section 82(b) of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act), set a timetable for the filing of submissions and set the matter down for hearing.
The matter was heard on 10 October 2013 and 11 December 2013. Mr T. Crispin of Counsel appeared on behalf of the solicitor. Another counsel, Mr Lawson, had appeared for the solicitor before the original tribunal. Mr G. Blank of Counsel appeared on behalf of the Council. At the conclusion of the hearing the Tribunal reserved its decision.
At the hearing Mr. Crispin submitted that:
1)there was no provision in the legislation governing the activities of the Society that covered solicitors being rude to other practitioner’s staff;
2)the original tribunal did not make any link between its assessment of the evidence and its acceptance that the Council had acted appropriately and that the appellant should be cautioned;
3)the penalty was not appropriate and if the matters were proved, which he said they could not be, then the fact that the appellant had spent a considerable amount of money taking the matter to ACAT both at first instance and on appeal, effectively meant she had been punished enough and a caution was unwarranted; and
4)he took issue with the original tribunal admitting additional evidence.
Mr Blank submitted that the eleven grounds identified in the Application for an Appeal could be subsumed into the following categories:
a.failure to Accord Natural Justice (Grounds i and ii);
b.the Tribunal embarked on a hearing de novo (Grounds iii, iv and v);
c.findings to the Briginshaw standard (Grounds vi, vii, viii);
d.weight of the tendency evidence (Ground ix);
e.failure to address submissions that Council had not properly investigated the complaint (Ground x); and
f.the Article published by Mr Reis (Ground xi).
The Appeal Tribunal will consider each of the matters raised by Counsel.
CONSIDERATION
Failure to accord natural justice
The appellant claimed that the Council had failed to afford her natural justice as it had not advised her of the substance of the complaint when it changed from ‘using rude and inappropriate language’ to a breach of Rule 24 of the Legal Profession Act (Solicitors) Rules 2007 (the Rules) in that the appellant failed to act with fairness and courtesy in dealings with the complainant’s office. Further, she was not invited to address the ‘new complaint’.
The respondent denied that the appellant had not been afforded natural justice and referred to the action taken by the Council which is set out above.
The Appeal Tribunal is satisfied, having considered all of the matters before it, that the appellant was offered every reasonable opportunity to participate in the Council process. The exchange of correspondence set out above is not in dispute. It was apparent from the complainant’s first letter that it was the appellant’s conduct in dealing with members of the complainant’s office which was the subject of the complaint. This included the allegation that the appellant had used rude and inappropriate language and the appellant’s tenor or tone. The subject matter and substance of the complaint did not change in any material way when the Council characterised the complaint as involving a breach of the Rules. The appellant should have been aware of her professional obligations under the Rules and that it was her alleged conduct and language that would be considered by the Council in determining its course of action.
The Tribunal noted that, in any event, the letter from the Professional Standards Director to the appellant dated 20 July 2012 clearly identified a breach of rule 24 and sought the appellant’s comments by 15 August 2012.
The nature of the original tribunal hearing
The Appeal Tribunal has considered, under this heading, the appellant’s submission that the original tribunal embarked on a hearing de novo[2] and incorrectly admitted additional evidence.
[2] Grounds iii, iv and v of the Application for Appeal
The appeal from the Council’s decision was brought under section 416 of the LP Act. Section 416 is in part 4.5 and states:
416 Appeals to ACAT against decisions of relevant council
(1)A person mentioned in table 416, column 2 may appeal a decision mentioned in column 3 to the ACAT.
(2)The appeal must be made not later than—
(a) 28 days after the day the relevant council gave the person making the appeal a statement of reasons under section 415; or
(b) any further time allowed by the ACAT.
(3)The ACAT may make any order it considers appropriate on the appeal.
(4)Without limiting subsection (3), the ACAT may make 1 or more of the orders mentioned in section 425 (3) to (5) (ACAT orders—Australian legal practitioners).
It is readily apparent from reading both the transcript of the proceedings before the original tribunal and the original decision that one of the original tribunal’s tasks was to determine what the word “appeal” in the particular context of that section means. Both parties made detailed submissions before, during and after the original tribunal hearing on the question of the procedure that should be adopted by ACAT when hearing an appeal under section 416.
Early in the original tribunal hearing Mr Lawson submitted:[3]
“…the question arises as to whether this is a hearing de novo in the sense that all prior decisions and considerations are irrelevant, and we simply invite the tribunal member on a determination of the facts with all available evidence now, or whether it is in the nature of an appeal whereby I, representing the applicant, must point to errors of law or procedural irregularities. And if, at the end of that process, you are satisfied that there are some procedural irregularity, you may then consider what should be done with the complaint considering all those matters.”
[3] Transcript, 19.2.13, p.3.37 - 44
After some discussion the transcript records the following exchange[4]:
SENIOR MEMBER LUNNEY: Let’s leave the section 24 issue aside for the time being, because we may be able to deal with this procedural issue quite quickly. And that is, are both parties content with the procedure which would be, as I’ve done, the tendering of the T documents to put into evidence, the evidence that was before the society, before the committee? And we hear any evidence that the parties had foreshadowed they’re proposing to call?
MR LAWSON: I’m content with that course.
MR BLANK: Would your Honour just give me a moment? We’re content with that course Senior Member.
….[4] Transcript, 19.2.13, p.8.10- 21
The transcript[5] records the following further exchange in relation to procedure:
MR LAWSON:…Now there is some dispute as to what function you are performing today, Senior Member, whether you’re entitled to receive new evidence or whether you’re simply limited to the material that was in front of the Law Society.
SENIOR MEMBER LUNNEY: Well, we settled that earlier on Mr Lawson, that our procedure would be to accept into evidence the material that was before the committee, and to then to hear further evidence that is relevant to the decision.
MR LAWSON: Sorry Senior Member. Yes
[5] Transcript, 19.2.13, p.21.27-37
When the hearing resumed on 4 April 2013, the original tribunal referred to the ACT Supreme Court decision in The Appellants v Council of the Law Society of the ACT and The Legal Practitioner[6] dealing with section 416 of the LP Act and asked Counsel “Whether we are dealing with the disciplinary provisions of the Legal Practitioners Act or whether we are simply dealing with an administrative review of an administrative decision.” After receiving submissions the original tribunal said[7]:
Well having had a look at the authorities, and I did that before the last hearing, it seemed to me that there were some difficulties in giving names to exactly what is going on because is it [Sperway] indicates that there is almost a sliding scale and that different circumstances and different appellate wording requires different approaches as to what is going on. And my recollection is that we proceeded on the basis that we would admit the T documents into evidence. That is to say the material that was before the original decision maker, and in addition to that admit any relevant information that the parties wished to bring into play. And that would tend to indicate that it was proceeding in the nature of a rehearing rather than a full hearing de novo.
[6][2011] ACTSC 133
[7] Transcript, 19.2.13, p.110.5 -16
In its decision the original tribunal dealt with the question of procedure as a preliminary issue. At paragraph 31 it stated:
“In these proceedings, the Tribunal Documents have been admitted into evidence, and further evidence has been admitted consisting of evidence which could have been considered by the Council had its investigation proceeded to that level of detail. On the basis of the authorities referred to above[8], I am to conduct an administrative review of the decision of the Council of the Law Society of the ACT. In doing so, I shall consider all of the evidence that has been given in the hearing to date and substitute my decision for that of the Council if it is appropriate to do so, on the merits. I shall not act only if it is shown that some error occurred affecting the Council’s decision.”
[8] Builders Licensing Board v Sperway [1976] HCA 62; Kozanoglu v Pharmacy Board of Australia [2012] VSCA 295 and The Appellants v Council of the Law Society of the ACT [2011] ACTSC 133
Mr Crispin submitted[9] that the proceedings before the original tribunal were neither a hearing de novo nor a strict appeal on points of law and that it went beyond the scope of the procedure contemplated in the Victorian Supreme Court of Appeal decision of Kozanoglu v Pharmacy Board of Australia[10] (“Kozanoglu”). Mr Crispin submitted that the original tribunal conducted the proceedings as an appeal de novo despite asserting to the contrary.
[9] Appellant’s Submissions, 23 August 2013, at [7], [8]
[10] [2012] VSCA 295
Mr Blank took issue with the appellant’s contentions in the previous paragraph and submitted[11] that the appellant failed to identify where the original tribunal went beyond the scope contemplated in Kozanoglu.
[11] Respondent’s Submissions 13 September 2013, at [11]
Mr Crispin submitted that the principle in Kozanoglu required that additional evidence must bear directly upon the decision as it was originally taken, which was a deliberate limitation of the role of further evidence in appeals. For the original tribunal hearing the Council obtained firsthand accounts of the events that were the subject of the complaint only after the appellant commenced proceedings in the tribunal. The bulk of this material was not available, nor sought, at the time the Council made its decision.
Mr Crispin submitted[12] that the material placed before the Council, which was before the original tribunal hearing as the T Documents, was hearsay and inadmissible in the proceedings.
[12] Appellant’s Submissions [9], [10]
He based this submission on section 420 of the LP Act which provides that the rules of evidence apply to the tribunal when it is hearing proceedings brought under part 4.7 of the LP Act. Part 4.7 deals with applications for disciplinary orders made to the ACAT by the Council. He said that when the Council made its decision, it did so relying on material that was hearsay. At the relevant time, the Council had no material that could have been admitted into evidence against the appellant had disciplinary proceedings been commenced in the tribunal. Mr Crispin submitted that this was important as the Council had to be satisfied, based on the material before it, there was a reasonable likelihood the practitioner would be found guilty of unsatisfactory professional conduct by the tribunal before deciding to impose the caution.
It appears to the tribunal that Mr Crispin’s submission may be summarised as follows: as the bulk of the material considered by the tribunal was not sought or available at the time of Council’s decision, it was not additional evidence bearing directly upon the decision as it was originally taken; rather it was new or original evidence and in receiving and considering it, the tribunal was not conducting proceedings in accordance with the Kozanoglu ‘hybrid’ principle but conducting a hearing de novo.
Mr Blank submitted[13] that the tribunal had implicitly determined that the application was of this ‘hybrid’ nature and, accordingly, ruled to admit evidence that related to the events surrounding the original decision. This included evidence which the appellant herself wished to adduce and did adduce.
[13] at [9] and [10] of the decision
Mr Blank took the tribunal to the original decision. He submitted[14] that the original tribunal had informed itself as to the principles in considering the nature of an application to a tribunal from an administrative decision. In paragraph , the tribunal referred to the decision of the Full Court of the High Court of Australia in Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd[15] which recognised that there are a range of categories into which such applications generally fall.
[14] at [7], Respondent’s submissions, 16 September 2013
[15] (1976) 135 CLR 616, at 619-622
In paragraphs 26 and 27, the original tribunal referred to Kozanoglu and said:
26. The authorities were recently brought together in the administrative review context in a Victorian Court of Appeal Case of Kozanoglu v Pharmacy Board of Australia [2012] VSCA 295. While the decision must be confined to the particular legislation and factual context that existed in it, the following statement of principles applied in that case has a bearing on the circumstances of the present application.
“119. ..The appeal to a responsible tribunal under the National Law is neither an appeal in the strict sense, nor a rehearing de novo. It is rather a hybrid, whereby the material to be considered is confined to that placed before the initial decision-maker, but with the opportunity available to both parties to present additional evidence which bears directly upon that decision as originally taken. It is not ‘open slather’, nor is it an appeal confined to error.”
27. The Court had earlier in its decision said that the admission of evidence of events which had occurred after the relevant decision was made would not be appropriate. This is what may have been at least partly what was meant by the reference to ‘open slather’ in the above quotation.
Further, in paragraphs 28, 29 and 30 of its decision, the original tribunal discussed the ACT Supreme Court decision, The Appellants v Council of the Law Society of the ACT and the Legal Practitioner[16] in which Refshauge ACJ examined the nature of an appeal to ACAT under section 416 of the LP Act. His Honour held that although the word ‘appeal’ was used, the nature of the proceedings was review by the tribunal of an administrative decision in the same way as under other legislation.
[16] [2011] ACTSC 133
In paragraph 31 of its decision, the original tribunal determined this preliminary issue as set out in paragraph 32 above.
Mr Blank noted[17] that the original tribunal’s ruling that it would admit evidence that related to the events surrounding the original decision, allowed the appellant herself to adduce further evidence. He submitted that the evidence filed by the appellant was broader than the scope of the original decision. In addition to her own affidavit, she filed eleven affidavits which she described as ‘character’ affidavits. On the other hand, the Council filed affidavit material relating directly to the circumstances surrounding the incident, namely affidavits from those deponents whose evidence had been summarised in the letter of complaint and reply letter sent by the complainant to the Council.
[17] at [9] and [10] of the decision
Mr Blank questioned why the appellant was now challenging the original tribunal’s decision to admit evidence that she sought to adduce, when she did not challenge that process at the hearing.
Mr Blank also referred the Tribunal to ReColdham & Ors; Ex Parte Brideson (No. 2)[18] (“Coldham”), where the High Court considered whether on an appeal from an act or decision of the Registrar of the Australian Industrial Relations Commission, the Commission had jurisdiction to hear evidence concerning matters which had arisen since the date of the act or decision of the Registrar. In other words, whether the appeal was in the nature of a rehearing or an appeal in the strict sense of the term. Their Honours, Deane J and Gaudron and McHugh JJ said at page 273,
…it is well settled that, when the legislature gives a court the power to review or hear an “appeal” against the decision of an administrative body, a presumption arises that the court is to exercise original jurisdiction and to determine the matter on the evidence and law applicable as at the date of the curial proceedings.[19]...Nevertheless, whether the right of appeal against an administrative decision is given to a court or to an administrative body, the nature of the appeal must ultimately depend on the terms of the statute conferring the right.[20]
After referring to the relevant statute, the Conciliation and Arbitration Act 1904 (Cth), and in particular to section 88F, their Honours stated at page 274:
In our opinion, upon the correct construction s.88F, the Commission was bound to make its own decision on the evidence before it, including evidence of events which had occurred since the Registrar’s decision. As Higgins J said in Federated Carters and Drivers’ Industrial Union of Australia v Motor Transport and Chauffeurs Association of Australia[21]: “the appellant is entitled to have…a re-hearing, a ‘review’ of the decision…He is entitled to such judgment as I can bring to bear on the question, independently of the Registrar, although, of course, I should attach a good deal of weight to the Registrar’s view.”
[18] (1990) 170 CLR 267, at pp. 272 – 274
[19] See Ex parte Australian Sporting Club Ltd; Re Dash (1947) 47 S.R. (N.S.W.) 283
[20] Builders Licensing Board v Sperway Constructions (Syd.) Pty. Ltd. (1976) 135 CLR. 616, at pp. 621-622.
[21] (1912) 6 C.A.R. 122, at p. 123
Mr Blank submitted that the original tribunal followed the process referred to in Coldham. In support of this, he drew the Tribunal’s attention to that part of the transcript which is set out at paragraph 29 above.
In his written submissions Mr Blank also said[22] that part of the review process was that proper proof enabled matters in the original investigation to be tested and any deficiencies in procedural fairness remedied, including by adducing exculpatory material. He referred to Marine Hull & Liability Insurance Co Ltd v Hurford[23]and Kozanoglu[24] and submitted that although those points in Kozanoglu were made in relation to National Law binding pharmacists, they are apposite in the present matter.
[22] at [15]
[23] (1985) 10 FCR 234 per Wilcox J (deficiencies in procedural fairness)
[24] at [77], [93] – [96] and [108] – [110]
Mr Crispin submitted that the respondent’s assertion that any shortcomings in the evidence could be made good by testing the evidence at the hearing failed to acknowledge the expense and effort for the Appellant and the Appeal Tribunal involved in litigation.[25] In his oral submissions, he described “testing the evidence at the hearing” as “shoring up the Council’s case” once proceedings were on foot and said that this was crossing the line as the wrong appeal process was applied.
Consideration
[25] Respondent’s Submissions in Reply [14]
As stated in Coldham, the nature of an appeal must depend upon the statute empowering the decision maker to hear the appeal. Section 416 of the LP Act is set out above.
The Appeal Tribunal has considered the detailed and helpful submissions of both Counsel. The crux of the appellant’s contention is that Council should have known that unless it obtained first hand and admissible evidence, it could not be satisfied, as required by section 413(1)(b) of the LP Act, that there was a reasonable likelihood that the practitioner would be found guilty of unsatisfactory professional conduct. The appellant claimed that, instead, the Council made its decision on hearsay material which was inadmissible. Had the material then in the Council’s possession been put before a Tribunal at that time, the Council’s case would have failed.
The Appeal Tribunal accepts the respondent’s submission that the appellant’s submission on this issue appears to imply that the Council should undertake a quasi-judicial investigation and overstates the nature of the inquiry the Council should undertake on receipt of a complaint. The Council is not acting as the ACAT. It does not have an obligation to investigate complaints such as this one with a level of higher rigour than required by the legislation. While it may be preferable that material before the Council be, without further action, admissible in ACAT hearings, there is no requirement that the material considered by Council be in a form that is admissible in accordance with the rules of evidence. It is the ACAT, not the Council, that is bound by the rules of evidence pursuant to section 420 of the LP Act.
The Council was required to afford the solicitor a fair opportunity to respond to the complaint before the Council decided what action to take.[26]Here the Council provided the complainant’s letter to the solicitor, received the solicitor’s response, received the complainant’s reply and sent a copy to the solicitor with a request for her comments in relation to dealing with the complaint pursuant to section 416 of the Act. The Council had all of these letters and the solicitor’s letter to Council dated 15 August 2012 before deciding the complaint. It had, through this process, afforded the solicitor a fair opportunity to respond to the complaint.
[26] Murray v Legal Services Commissioner [1999] NSWCA 70, Priestley JA [3]
The Council was required to investigate the complaint and on concluding the investigation, subject to whatever degree of robustness may be required, the Council had to decide what the Tribunal would do. If the Council was satisfied as required by section 413(1)(b) and had otherwise complied with section 413, it could, among other things, issue a caution. If the Council was wrong, an appeal would lie from that decision where a practitioner could say, for example, that the Council did not have the relevant material. The Tribunal is not satisfied that the Council was required to undertake a quasi- judicial investigation; there is no such requirement in the legislation.
The Tribunal is satisfied that the original tribunal did not conduct the hearing as a hearing de novo. The Tribunal has set out, above, parts of the transcript and of the original decision which related to the submissions on the procedure to be adopted at the hearing and the original tribunal’s determination of, and adherence to, that procedure.
The appellant’s Counsel accepted during the original hearing, more than once, that the hearing would be conducted as the hybrid ‘appeal’ identified in Kozanoglu and that the Tribunal would receive in evidence the original material before the Council and further evidence provided by the parties, provided it bore directly upon the decision as it was originally taken. The Tribunal is satisfied that the respondent’s material met this proviso.
The same cannot be said of all of the appellant’s material. Not one of the eleven deponents who provided affidavits for the appellant had been present when the conversations were alleged to have occurred. Their material was variously described as character evidence and tendency evidence. Nevertheless, the material was admitted into evidence and considered by the original tribunal.
For abundant clarity, the Appeal Tribunal is satisfied that the original tribunal adopted the correct procedure on hearing an appeal from a decision of the Council of the Law Society. That procedure was identified in Kozanoglu as a hybrid appeal in which the Tribunal would receive in evidence the original evidence before the Council and further evidence provided by the parties, provided it bore directly upon the decision as it was originally taken.
Findings to the Briginshaw standard (Grounds vi, vii, viii of the Application for Appeal)
Mr Crispin submitted that the original tribunal had not made any link between its assessment of the evidence and the finding[27] that the Law Society had acted appropriately.
[27] at [59]of the Decision
It is not in dispute that allegations of unsatisfactory professional conduct invoke the principle in Briginshaw. The Appeal Tribunal adopts Mr Crispin’s summary of this principle – ‘In essence, the principle provides that a tribunal of fact in determining whether it can be satisfied on the balance of probabilities of a serious allegation, will require a higher degree of persuasion.’[28]
[28] Appellant’s Submissions, at [14]
Mr Crispin submitted that the original tribunal had not correctly applied the Briginshaw principle. He said that, after noting the conflict between the evidence of the appellant and the complainant’s staff members, the original tribunal’s finding that it was not possible to assess one account as being more likely than the other, precluded, in the light of Briginshaw, the other findings made; especially when there was no clear articulation of what matters were found proved.
Mr. Crispin correctly points out that a reading of paragraph 59 at sub paragraph (2) and (3) of the original decision suggests that the original tribunal was still unsure about how to treat some of the evidence and made no definite finding as to whether the appeallant used swear words or not.
Mr Blank drew the Tribunal’s attention to the matters which the original tribunal considered; namely, section 413 of the LP Act and the Briginshaw principle,[29] that the concept of ‘reasonable likelihood’ in this context ‘does import a relatively high degree of confidence of the assessment of whether ACAT would make an order of the type referred to[30], and the statement by that tribunal that[31]-
48. In my view the task of the Council, and therefore the present Tribunal, is to weigh the strength of the evidence with the ultimate object of assessing the probability of that outcome. In doing so, it is not necessary to be driven in making the assessment of fact necessary to come to the actual outcome. It is a process of evaluation of the evidence to assess its strength and therefore weight in a legal sense so the defined probability is determined.
Consideration
[29] at [42]-[44]
[30] at [45]
[31] at [48]
The Appeal Tribunal acknowledges the strength of Mr Crispin’s submissions.
It would have been better had the original tribunal made findings such as – “having heard and seen the witnesses for the appellant and the respondent I make the following findings – I accept all witnesses were telling the truth as best they could and all witnesses were credible but despite the appellant’s denial that she swore and, at worst, used a term such as ‘bull’, I am satisfied; indeed I am comfortably satisfied that she used the swear words complained of. I am satisfied that her tone was aggressive and menacing. I am further satisfied that she genuinely does not believe that she used those swear words. It seems to me that she was very upset, emotional and/or angry and she used words she said she would not normally use. When angry, one may not even know or remember that they use such words. In my view I believe this would account for her denial of using the swear words. The evidence of several of her witnesses was that she could get upset and she could be verbally aggressive when she was upset.”
In the Appeal Tribunal’s view such findings would have been open to the original tribunal. Having read all of the evidence and the documentation that was before it, it is the Appeal Tribunal’s view that such findings were clearly available. Indeed, these are findings this Tribunal would make having considered all the issues and looked at all the facts that were before the original tribunal.
Whilst this Tribunal can deduce from the original decision that the original tribunal was satisfied that the conduct and tone of the appellant’s voice justified the Council’s decision, and this finding was certainly available on the evidence, the original tribunal should have ‘joined up the dots’.
Judicial officers and tribunal members should not be afraid of stating it as they see it. It is possible for a tribunal to find that everyone before it was trying their best to tell the truth as they remembered it and recounting the events as best they could but some were mistaken.
The original tribunal’s failure to’ join up the dots’ is not fatal to the original decision. The finding that the appellant’s conduct, tone and aggression justified the Council’s actions was clearly available to the original tribunal on the evidence before it.
The Appeal Tribunal is satisfied that the original tribunal applied the Briginshaw principle correctly. It evaluated the evidence and assessed the weight to be given to it so that the defined probability was determined.
Weight of tendency evidence (Ground ix in Application)
Interestingly, while this was an appeal ground, at the hearing Mr Crispin took issue with the original tribunal admitting additional evidence.
The Appeal Tribunal has already considered the hearing process including the admission of additional evidence, under the heading ‘The Nature of the Original Tribunal Hearing’, above. The Appeal Tribunal found that the hearing was conducted as a hybrid appeal and that, the original tribunal’s decision to receive into evidence the original material before the Council as well as further evidence provided it bore directly upon the decision as it was originally taken and this approach was consistent with the approach identified in Kozanoglu.
The only other material admitted into evidence by the original tribunal was the ‘tendency’ evidence submitted by the appellant. It is not readily apparent how that material related to the decision originally taken by the Council. Not one of the authors of the eleven witness statements tendered as “character evidence” was present when the conversations the subject of the complaint took place. The weight, if any, which could be attached to the evidence, is not significant.
Nevertheless, the Appeal Tribunal is satisfied that the original tribunal did consider that evidence in paragraph 58 of its decision. Having seen the witnesses and heard their evidence, the weight to be attached to their evidence was a matter for original tribunal. The Appeal Tribunal concurs with Mr Blank that the evidence of the appellant’s ‘tendency’ witnesses was clearly in that tribunal’s mind when considering whether the conclusion reached at paragraph 61 was open to it.[32]
Failure to address submissions that the Council had not properly investigated the complaint (Ground x)
[32] Respondent’s submissions, at [25]
The Appeal Tribunal considered above the Appellant’s submissions that the Council had decided, based on hearsay evidence, that were it to bring proceedings before the tribunal, those proceedings would likely be successful. The Appeal Tribunal has found that the Council properly investigated the complaint.
Mr Blank submitted[33]that the original tribunal had referred to this submission[34], but that consistent with the principles in Marine Hull & Liability Insurance Co Ltd v Hurford[35] did not further consider the submission as the appellant had had a full opportunity on the appeal to be represented and to put forward any material she considered relevant.
[33] Respondent’s submissions, at [26]
[34] at [39]
[35] (1985) 10 FCR 234 per Wilcox J
At the hearing, Mr Crispin submitted that there was no provision in the legislation governing the activities of the Law Society that covered solicitors being rude to the staff of other practitioners.
At paragraphs 49 and 50, the original tribunal referred to the Council’s finding that the appellant had breached rule 24 of the Rules and the respondent’s concession that the reference to rule 24 was an error. Unfortunately, the original tribunal then stated at paragraph 51 “Rule 26 deals with a solicitor’s relations with third parties.” This is not correct. Rule 26 refers to the transfer of a matter from one practitioner to another.
It appears that the reference to rule 26 is an error. It is possibly a typographical error as the original tribunal stated at paragraph 51 “This rule as it is expressed is not directly helpful although the note to it gives an indication of what is intended.” The appellant submitted [36] and the Appeal Tribunal agrees, that the original tribunal could only have been referring to the preamble or statement of principle under the heading “Relations with Third Parties” in the Rules which, while not a numbered provision, states:
Practitioners should, in the course of their practice, conduct their dealings with other members of the community, and the affairs of their clients which affect the rights of others, according to the same principles of honesty and fairness which are required in relations with the courts and other lawyers and in a manner that is consistent with the public interest.
[36] Appellant’s submissions, at [3]
Mr Crispin submitted that the quotation in paragraph 51 of the Decision was, incorrectly, attributed by the original tribunal to the ACT Supreme Court in the decision in Lander v Council of the Law Society of the Australian Capital Territory (Lander)[37]. Mr Crispin is correct. While this quotation is set out in that decision at paragraph 51, the quotation was taken from the reasons for the Legal Practitioners Disciplinary Tribunal decision, which had been set out in paragraph 23 of the Supreme Court decision. Mr Lander had appealed that Tribunal decision to the ACT Supreme Court. Higgins CJ, Gray and Refshauge JJ, at paragraphs 34 to 36, referred in their decision to the decision of the Solicitor’s Statutory Committee in Law Society of New South Wales re Constantine Karageorge[38] then said:
34. The solicitor’s comments in that case were undoubtedly gratuitously offensive….
35. Clearly, those comments and other like comments were extraneous to the matters legitimately being pursued and, as the Committee observed “the use of insulting language or behaving offensively towards members of the public is not conducive to the maintenance of the good name of the profession”.
36. That view must be supported emphatically. However, it seems to us that that principle in no way diminishes the right, indeed the duty, of a solicitor to represent his or her client’s interests forthrightly and without fear or favour. If the conduct of public officials adversely impacting on a client is considered on reasonable grounds to be “rude, unhelpful” or any similar characterisation, it is no breach of the obligation of courtesy to point that out to those in authority, even though those criticised, may consider the criticism unwarranted and offensive. Such communication may well be regarded as discourteous and provocative but, nevertheless, a subject that needs to be raised in the interests of the client as well as generally.”
[37] [2009] ACTSC 117
[38] Solicitor’s Statutory Committee (15 July 1987)
At paragraphs 43 and 52, the Supreme Court said:
43. The Tribunal noted, correctly in our view, that there is an obligation on a practitioner to deal with all persons, practitioners or not, opponents or not, with honesty and fairness. The question of courtesy is more difficult to assess. Courtesy connotes politeness. That clearly varies depending on the circumstances.
…
52. The essence of the respondent’s contentions, which must be rejected, is that there is a general obligation on a solicitor to refrain from that which the recipient might find to be discourteous, offensive or provocative statements. That is too broad and a sweeping proposition.
The ACT Supreme Court decision of Lander and the Queensland case of Legal Services Commission v Douglas John Winning [2008] LPT 13 (“Winning”) demonstrate that conduct such as using insulting language or behaving offensively towards members of the public, including staff employed by another solicitor, can constitute conduct prejudicial to the profession and the image solicitors as professional people should convey. The Western Australian case of Legal Professional Complaints Committee v in de Braekt (2013) WASC 124 is also of some assistance.
It is clear from these cases that ‘swearing’ in such a way as was alleged in the complaint, fits within the two not dissimilar situations in Winning and in Lander.
The Tribunal is, therefore, persuaded by the respondent’s argument that such conduct as is alleged to have occurred in this case, is something that can be dealt with in the way the Council dealt with this matter.
The Law Society may wish to recommend an addition to the Rules to make it clear that conduct prejudicial to the maintenance of the good name of the profession, such as the use of insulting language or behaving offensively towards persons, is a breach of the rules governing the conduct of solicitors. Such guidance may well be of assistance to members of the profession.
The article published by Mr Reis (Ground xi)
Mr Crispin submitted[39] that the original tribunal fell into error when determining the penalty to be imposed. The original tribunal took the view that negative publicity the appellant had been subject to by reason of the case being heard and its inclusion in an article in the March 2013 issue of Ethos, the Law Society’s Journal, was tenuous.
[39] at [19] and [20]
He submitted that, in the exceedingly small jurisdiction here, while the appellant may not have suffered damage to her reputation in the eyes of the public at large, her standing in the eyes of her professional colleagues is another matter entirely.
The original tribunal received similar submissions prior to making its decision. It is not disputed that the imposition of penalty by the Council is a matter of discretion[40] as is the imposition of penalty by the tribunal on appeal[41].
[40] Section 413(2) of the LP Act
[41] Section 416(3)
The penalty the Council imposed under the procedures it adopted pursuant to section 413 of the LP Act was to impose a caution. It was not a caution that would be published. In the list of actions the Council could take when summarily concluding a complaint after being satisfied of the matters in section 413(a)(b)(c), a caution is at the lower end. It was one of the most minor penalties that could be imposed.
The article did not name the appellant. The appellant named herself and the Council in the documents she filed in the tribunal. The original decision did not identify her, other than as Legal Practitioner “M”.
The original tribunal did not dismiss out of hand the appellant’s submissions regarding the article. The Appeal Tribunal is satisfied that the original tribunal correctly determined that, without direct evidence, the link between what the appellant has described as the ‘negative publicity’ she has been subjected to by reason of her case being heard and the article’s inclusion in the Law Society Journal was tenuous. There was no evidence before that tribunal that could have satisfied it that the appellant had suffered damage to her reputation in the eyes of her professional colleagues because of the article.
Penalty
Mr Crispin submitted[42] that the original tribunal:
“failed to take into consideration the natural consequences of conducting such litigation. The expense of bringing such proceedings is considerable, a great many times more than the maximum fine which the Council could have imposed under section 413(3)[43]. This cost is a very significant factor which ought to be taken into account when determining whether imposing the formal caution was necessary.”
[42] Appellant’s submissions, at [21]
[43] $1,500
The original tribunal was satisfied that a finding could be made by ACAT as to unsatisfactory professional misconduct pursuant to section 416 of the LP Act. It was open to the original tribunal to maintain the sanction imposed by the respondent[44] and it did.
[44] Respondent’s submissions, at [31]
The Appeal Tribunal accepts that the appellant would have incurred legal fees as a result of being represented at the original tribunal hearing and also at the hearing before this Tribunal. People choosing to be represented, particularly a practising legal practitioner, should know that it will come at a cost.
The appellant did not provide any case law which may have persuaded the tribunal that her costs of representation could be a sufficient penalty.
The Appeal Tribunal is not satisfied that the original tribunal’s decision to confirm the Council’s decision to impose a caution was incorrect or should be set aside. The decision was open to the original tribunal on the evidence. There is no basis for the Appeal Tribunal to interfere with the decision.
CONCLUSION
For the reasons set out above, the Tribunal is satisfied that the appeal should be dismissed.
.............................................
W.G. Stefaniak, AM
Appeal President
for and on behalf of the Tribunal
PUBLICATION DETAILS
TO BE PUBLISHED
FILE NUMBER: | AA13/27 |
PARTIES, APPELLANT: | Legal Practitioner M |
PARTIES, RESPONDENT: | Council of the Law Society of the ACT |
COUNSEL APPEARING, APPELLANT | Mr T. Crispin |
COUNSEL APPEARING, RESPONDENT | Mr G. Blank |
SOLICITORS FOR APPELLANT | |
SOLICITORS FOR RESPONDENT | Phelps Reid |
TRIBUNAL MEMBERS: | Mr W. Stefaniak, AM., Ms E. Symons |
DATES OF HEARING: | 10 October 2013, 11 December 2013 |
PLACE OF HEARING: | Canberra |
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