Legal Practitioner “M” v Council of the Law Society of the Australian Capital Territory

The respondent, Council of the Law Society of the Australian Capital Territory, brought a complaint against the appellant, a legal practitioner, alleging unsatisfactory professional conduct. The complaint was dismissed by the ACT Civil and Administrative Tribunal (ACAT), which was the subject of an appeal to ACAT by the appellant. The appeal raised several issues, including whether the ACAT had jurisdiction to hear the appeal, the burden of proof in disciplinary proceedings, and the appropriate approach to drafting grounds of appeal. The court found that ACAT had jurisdiction to hear the appeal and that it should conduct a merits review of the decision, receiving further evidence if necessary. The court also held that the burden of proof in disciplinary proceedings rested with the professional association, while the evidential burden lay on the practitioner. In relation to the drafting of grounds of appeal, the court emphasised the importance of being selective and avoiding a "scatter gun" approach. The appeal was allowed, and the matter was remitted to ACAT for further consideration.

The appellant argued that the disciplinary process was unnecessarily complex and that ACAT should not have conducted a merits review of the decision of the Council. The court rejected this argument, finding that ACAT had a wide role in hearing appeals from the Council and that it was appropriate for ACAT to conduct a merits review in this case. The court also held that the appellant had discharged the onus of showing that there was a serious conflict of fact that warranted ACAT ordering costs. The court found that the appellant had identified a serious issue of fact that went to the heart of the complaint and that the Council had failed to adduce sufficient evidence to support its decision. The court held that the appeal should be allowed and that ACAT should order the Council to pay the appellant's costs.