Legal Practitioner P1 v ACT Civil and Administrative Tribunal
[2017] ACTSC 173
•14 July 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Legal Practitioner P1 v ACT Civil and Administrative Tribunal |
Citation: | [2017] ACTSC 173 |
Hearing Dates: | 13 December 2016, 15 May 2017 |
DecisionDate: | 14 July 2017 |
Before: | Murrell CJ |
Decision: | The orders of the Tribunal made on 28 June 2016 are quashed. The Tribunal is prohibited from dealing with application OR 31/2015 other than by dismissing it. |
Catchwords: | PROFESSIONS AND TRADES – Lawyers – disciplinary action – complaint made more than three years after alleged conduct – failure to consider s 395(2) of the Legal Profession Act 2006 (ACT) – whether s 395(2) a procedural requirement – whether tribunal had jurisdiction to order that requirement be disregarded |
Legislation Cited: | Bankruptcy Act1966 (Cth) s 306(1) Court Procedures Rules 2006 (ACT) rr 3554, 3558(1) Supreme Court Act 1933 (ACT) ss 20, 34B Legal Profession Amendment (Complaints and Discipline) Bill 2000 (NSW) |
Cases Cited: | Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; 239 CLR 27 Appellants v Council of the Law Society of the ACT [2011] ACTSC 133; 252 FLR 209 Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2008] HCA 5; 233 CLR 259 |
Texts Cited: | Explanatory Statement, Legal Profession Bill 2006 (ACT) Legal Profession – Model Laws Project, Model Bill (Model Provisions), 2nd ed., 28 August 2006 New South Wales Law Reform Commission, Complaints against lawyers: an interim report, Report No 99 (2001) |
Parties: | Legal Practitioner P1 (Plaintiff) ACT Civil and Administrative Tribunal (First Defendant) Council of the Law Society of the Australian Capital Territory (Second Defendant) |
Representation: | Counsel Mr M Orlov (Plaintiff) No Appearance (First Defendant) Ms R Withana (Second Defendant) |
| Solicitors Mr M Orlov (Plaintiff) No Appearance (First Defendant) Eakin McCaffery Cox Lawyers (Second Defendant) | |
File Number: | SC 386 of 2016 |
MURRELL CJ:
The plaintiff (the practitioner) is a Canberra legal practitioner. He seeks review of a decision of the ACT Civil and Administrative Tribunal (the Tribunal) concerning the interpretation of ss 395(2) and 424 of the Legal Profession Act 2006 (ACT) (LPA): Council of the Law Society v Legal Practitioner P1 [2016] ACAT 66 (P1).
The issue is whether the requirements for dealing with a late complaint that are set out in s 395(2) are “procedural requirements” that the Tribunal may disregard under s 424 of the LPA or fundamental requirements that must be met in order for the Tribunal to have jurisdiction to deal with a complaint.
History of proceedings
On 23 May 2011, a complaint against the practitioner was made to the Council of the Law Society of the ACT (the Council). The complaint was made more than three years after the alleged conduct; the allegations related to the period February to November 2005.
The Council was required to address considerations under s 395(2) of the LPA. Section 395 provides that, although a complaint may be made at any time, if the complaint is made more than three years after the alleged conduct it cannot be “dealt with” (other than by way of dismissal or mediation) unless the relevant council decides the matters in s 395(2)(a) and (b) (i.e. that it is just and fair to deal with the complaint despite the delay and it is in the public interest to do so).
The Council failed to consider the matters in s 395(2).
The Council erroneously purported to dismiss the complaint under s 412, rather than under the appropriate provision, s 399 of the LPA. However, on the review, the practitioner does not rely upon this error.
On 19 September 2013, the complainant appealed to the Tribunal against the dismissal purportedly under s 416 of the LPA.
On 22 August 2014, the matter was heard by the Tribunal. Neither party raised the Council’s failure to address s 395(2) of the LPA.
On 3 March 2015, the Tribunal ordered the Council to bring proceedings against the practitioner under s 419(1) of the LPA: Byrne v Council of the Law Society of the ACT [2015] ACAT 19. For the purpose of complying with that order, on 4 August 2015 the Council commenced disciplinary proceedings under s 419 of the LPA: application OR 31/2015.
By a later application in those proceedings, on 11 March 2016 the Council sought an order under s 424 of the LPA that its failure to observe s 395(2) should be disregarded. Section 424 enables the Tribunal to order that a failure by a council to observe a “procedural requirement” in relation to a complaint before the application was made to the Tribunal be disregarded, if satisfied that the parties have not been prejudiced by the failure.
On 28 June 2016, the Tribunal dealt with the s 424 application, finding that s 395(2) imposed a “procedural requirement” which it could disregard if it was satisfied that the parties had not been prejudiced by the failure. The Tribunal was so satisfied. It listed the matter for further directions on a date to be fixed. In deciding that s 395(2) imposed a “procedural requirement” within the meaning of s 424, the Tribunal followed the decision of Burns J in Practitioner D3 v ACT Civil and Administrative Tribunal [2016] ACTSC 61 (D3).
In D3, Burns J decided that s 395(2) of the LPA imposes a “procedural requirement” that can be disregarded under s 424 of the LPA for three key reasons.
(a)The statutory text and context of the LPA showed that the reference in s 424 to “procedural requirement” is a reference to the requirements in Parts 4.2 to 4.6 inclusive of the LPA, including s 395. The procedural step in s 395(2) did not differ from any other procedural step in Parts 4.2 to 4.6, including the need to give notice, the obligation to investigate, the obligation to make a decision after investigation and the need to record and give reasons for the decision. This approach was consistent with the fact that the legislature had vested the Tribunal with discretion to amend an application under s 421(3) to include a late complaint.
(b)The interpretation was consistent with the legislative history. The decision in Barwick v Law Society (NSW) [2000] HCA 2; 74 ALJR 419 (Barwick) that provisions under the Legal Profession Act 1987 (NSW) (the 1987 NSW Act) requiring that there be an investigation before proceedings were instituted more than three years after the alleged conduct, and that the power to vary a complaint could not be used to defeat the three-year period, had been overcome by legislative reform. The reform included the introduction of a new s 171 into the 1987 NSW Act, enabling the NSW tribunal to disregard “procedural lapses”. Section 171 (which became s 561 under the Legal Profession Act 2004 (NSW) (the 2004 NSW Act)) was to the same effect as s 424 in the LPA.
(c)The decision in John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; 203 CLR 503 (Pfeiffer) should be distinguished because it concerned the distinction between substantive and procedural laws in the context of the common law approach to choice of law rules. The common law discourse was about the removal of rights and the barring of remedies, but s 395(2) of the LPA was concerned with balancing interests, including the public interest.
The appeal
The parties agreed that the Court had jurisdiction to entertain the appeal pursuant to s 34B of the Supreme Court Act 1933 (SCA) (which provides that the Court has power to grant relief by way of habeus corpus order or prerogative order) and/or s 20 of the SCA (which gives the Court all original and appellate jurisdiction that is necessary to administer justice in the ACT).
The practitioner sought declarations under r 3558(1) of the Court Procedures Rules2006 (ACT) (CPR) that:
(a)The Council’s failure to make a decision under s 395(2) of the LPA was not a “failure... to observe a procedural requirement in relation to a complaint before an application is made to the ACAT” within the meaning of s 424 of the LPA.
(b)The Tribunal did not have jurisdiction to make the order on 28 June 2016 that the Council’s failure to observe s 395(2) of the LPA in relation to the complaint against the practitioner should be disregarded.
(c)In the absence of a decision under s 395(2) in relation to the complaint against the practitioner, the Tribunal lacked jurisdiction to deal with application OR 31/2015, otherwise than to dismiss it for lack of jurisdiction.
Under r 3554 of the CPR, the practitioner sought orders:
(a)Quashing the orders of the Tribunal made on 28 June 2016.
(b)Prohibiting the Tribunal from dealing with application OR 31/2015 other than by dismissing it.
The defendant agreed that, if the practitioner succeeded in his argument, declaration and prohibition were appropriate remedies.
The practitioner submitted that, in relation to a late complaint where there has been no decision under s 395(2), there is an apparent bar to a council’s power to take disciplinary action against a practitioner and to a complainant’s entitlement to obtain compensation for loss suffered because of such conduct. The existence of a decision under s 395(2) was a “jurisdictional fact” in the sense described by French CJ in Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; 244 CLR 144 at [57], or a “condition precedent” in the sense described in Menon v Council of the Law Society of NSW [2016] NSWSC 1322; the power to deal with a late complaint is conditioned upon the making of the decision.
The practitioner argued that, in D3, Burns J erred in his approach to each of the three key matters (statutory text and context, Barwick and the legislative history, and the application of Pfeiffer) and, correctly understood, each of those matters supported the practitioner’s submission that a s 395(2) decision was not a “procedural requirement”.
Principles of statutory interpretation
In any exercise involving statutory interpretation, the starting point is a consideration of the text of the legislation: Baini v The Queen [2012] HCA 59; 246 CLR 469 at [14]–[15]; Marshallv Director-General, Department of Transport [2001] HCA 37; 205 CLR 603 at [62]; Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2008] HCA 5; 233 CLR 259 at [31]; Brennan v Comcare (1994) 50 FCR 555 at 573–575 per Gummow J.
In order to understand the meaning of statutory text it may be necessary to consider the context of the provision in question, including the legislative context and the general purpose and policy of the provision: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; 239 CLR 27 at [47].
Chapter 14 of the Legislation Act2001 (ACT) (Legislation Act) provides guidance about the interpretation of Acts, but it is not intended to be a comprehensive statement of the law of interpretation as it affects ACT Acts and it assumes that the common law presumptions operate in conjunction with the Legislation Act: s 137. Section 139 of the Legislation Act reflects the common law and requires that, when resolving an ambiguous or obscure provision of an Act, preference be given to the interpretation that would best achieve the purpose of the relevant Act. Section 140 of the Legislation Act requires a statutory provision to be read in the context of the Act as a whole.
Legislation
The LPA commenced on 1 July 2006. It was based on national draft Model Provisions and included the Core Uniform (CU) Provisions and most of the Non Core (NC) Provisions of the Model Provisions. The Model Provisions were intended to create a disciplinary scheme that was uniform in substance, i.e. to ensure that clients and practitioners in all States and Territories had similar rights and responsibilities: Explanatory Statement, Legal Profession Bill 2006 (ACT) (the ACT Bill), at 2 (Explanatory Statement). There was no intention to introduce a uniform process for dealing with complaints: Legal Profession – Model Laws Project, Model Bill (Model Provisions), 2nd ed., 28 August 2006, at 228.
Chapter 4 of the LPA deals with complaints and discipline. One of the stated purposes of Chapter 4 is to provide a nationally consistent scheme for the discipline of the legal profession in the ACT and for the protection of consumers of legal services: s 384 LPA.
Part 4.1 deals with preliminary matters and the application of Chapter 4.
Section 395(2) is located in Part 4.2, which is entitled “[c]omplaints about Australian legal practitioners and solicitor employees”. Section 393 deals with complaints generally. Section 394 sets out how a complaint is to be made. Section 395 provides:
395Complaints made more than 3 years after conduct
(1) A complaint may be made about conduct to which this chapter applies irrespective of when the conduct is alleged to have happened.
(2)However, the complaint cannot be dealt with (otherwise than to dismiss it or refer it to mediation) if the complaint is made more than 3 years after the conduct is alleged to have happened, unless the relevant council for the person about whom the complaint is made decides that—
(a)it is just and fair to deal with the complaint having regard to the delay and the reasons for the delay; or
(b)the complaint involves an allegation of professional misconduct and it is in the public interest to deal with the complaint.
(Emphasis added)
Section 396 enables a council to obtain further information and verification from a complainant. Section 397 requires a council to notify a person about whom a complaint has been made. Section 398 enables a practitioner to make submissions to a council. Section 399 provides that a council “may dismiss” a complaint if the complaint is vexatious, misconceived, frivolous or lacking in substance (s 399(1)(b)), or has been made more than three years after the conduct complained of, unless a decision is made under s 395(2) (s 399(1)(c)), or in other specified circumstances. Under s 399(2), a council “may dismiss” a complaint without completing an investigation if the council forms the view that the complaint requires no further investigation. Although the expression “may dismiss” is used in s 399(1), it is clear that a council would dismiss a complaint in some of the specified circumstances, including where the complaint is vexatious, misconceived, frivolous or lacking in substance
Part 4.3 deals with the mediation of complaints that do not involve an issue of professional misconduct.
Part 4.4 deals with the investigation of complaints. It “sets out various powers and requirements regarding investigations”: Explanatory Statement at 25 (emphasis added). Section 406(1) provides that a council “must investigate each complaint properly made to it”, but does not apply to a complaint that is dismissed, withdrawn or mediated under Chapter 4: s 406(2).
Part 4.5 is entitled “[d]ecision of council”. It provides that, “[a]fter finishing an investigation of a complaint”, a council must dismiss the complaint under s 412, summarily conclude the complaint under s 413 (e.g. by caution, public reprimand or fine) or make an application to the Tribunal under Part 4.7. Section 416 enables complainants and practitioners to appeal to the Tribunal against Part 4.5 decisions. On an appeal, the Tribunal “may make any order it considers appropriate”: s 416(3). A review under s 416 is akin to a merits review where the Tribunal stands in the place of the original decision maker: Appellants v Council of the Law Society of the ACT [2011] ACTSC 133; 252 FLR 209 at [111].
Part 4.6 is entitled “[g]eneral procedural matters about complaints”. It requires councils to observe procedural fairness and act efficiently (s 417) and to notify complainants and practitioners of decisions (s 418).
Part 4.7 is entitled “[d]isciplinary action”. It is concerned with disciplinary proceedings in the Tribunal. It “sets out the procedural requirements for applications to the disciplinary Tribunal, and the hearing and determination of complaints before the Tribunal”: Explanatory Statement at 26 (emphasis added). Section 421 provides:
421 Amendment of complaint application
(1)The ACAT may, on application by the relevant council or on its own initiative, amend an application to omit an allegation or to include an additional allegation, if satisfied that it is reasonable to make the amendment having regard to all the circumstances.
(2) Without limiting subsection (1), in considering whether or not it is reasonable to amend an application, the ACAT must have regard to whether amending the application will affect the fairness of the proceeding.
(3) The ACAT may amend an application to include an additional allegation even though the alleged conduct—
(a) happened more than 3 years before the amendment is made; or
(b) has not been the subject of a complaint or investigation under this chapter.
(Emphasis added)
Section 422 provides:
422 Nature of allegations in complaint applications
(1) An application to the ACAT in relation to a complaint cannot be challenged on the ground that the allegations contained in the application do not deal with all of the matters raised in the complaint or deal differently with matters raised in the complaint or deal with additional matters.
(2) This section applies whether the allegations were included in the application as made or were included by amendment of the application.
Section 424 states:
424ACAT power to disregard procedural lapses
The ACAT may order that a failure by the relevant council to observe a procedural requirement in relation to a complaint before an application is made to the ACAT is to be disregarded if satisfied that the parties to the hearing have not been prejudiced by the failure.
Note The ACAT may make rules about its practice and procedure under the ACT Civil and Administrative Tribunal Act 2008, s 24.
(Emphasis added)
Other provisions in Part 4.7 deal with the orders that the Tribunal may make and compliance with Tribunal orders.
Part 4.8 deals with compensation. It enables a compensation order to be made against a practitioner and in favour of a complainant who has suffered loss because of the conduct the subject of a complaint and, “imposes a number of procedural requirements for the making and enforcement of orders”: Explanatory Statement at 27 (emphasis added).
Consideration of the legislation
I respectfully disagree with the view expressed in D3 that the statutory text and context of the LPA support the conclusion that a failure to make a s 395(2) decision is a failure to observe a “procedural requirement” within the meaning of s 424 of the LPA, inter alia because of the terms of s 421(3).
The apparent purpose of the expression “the [late] complaint cannot be dealt with” in s 395(2) is to prevent a council from dealing with a late complaint by progressing the complaint to an investigation under Part 4.4, a decision under Part 4.5 or an application to the Tribunal under Part 4.7, unless the council has first decided under s 395(2) that it is just and fair to deal with the complaint having regard to the delay, or that it is in the public interest to deal with the complaint. In effect, the provision imposes a limitation period (it prevents the taking of further action), but one that does not apply if the council makes a decision under s 395(2). It is assumed that, prima facie, a practitioner will be prejudiced if a stale complaint is allowed to proceed. However, s 395(2) acknowledges that, depending on the extent and reasons for the delay in complaint, it may be just and fair to both the practitioner and the complainant that the matter be dealt with. The provision also acknowledges that, apart from the interests of the complainant and the practitioner, there is a broader public interest in allowing serious allegations to be dealt with.
Pursuant to s 424 of the LPA, only “procedural requirements” can be disregarded. In the LPA, the expression “procedural requirement” is used only in s 424. However, the Explanatory Statement makes several references to “procedural requirements”. The Explanatory Statement refers to:
(a)Part 4.7 setting out “the procedural requirements for applications to the disciplinary tribunal, and the hearing and determination of complaints before the Tribunal”;
(b)Part 4.8 imposing “a number of procedural requirements for the making and enforcement of orders”; and
(c)Part 4.10 “including the procedural requirements for inter-jurisdictional investigations of professional conduct and the enforcement of disciplinary orders made in any jurisdiction”.
The comments in the Explanatory Statement clarify that “procedural requirements” may attach to the making of applications to the Tribunal, the making and enforcement of orders, and the investigation of professional conduct. These are the sorts of matter to which “procedural requirements” commonly attach; “procedural requirements” are often rules of procedure and evidence that attach to powers to enforce rights and duties.
The expression “procedural requirement” appears to refer to the established and important, distinction between matters of procedure and substantive matters. It is commonly understood that “procedural requirements” are to be distinguished from the requirement of substantive law, which create duties, powers and liabilities. At least for choice of law purposes, “laws that bear upon the existence, extent or enforceability of remedies, rights and obligations should be characterised as substantive and not as procedural laws”: Pfeiffer at [102].
The expression “procedural lapses” used in the heading to s 424, and the expression “disregard” or “disregarded” used in the heading and the body of s 424 respectively, suggest that the provision is concerned with lesser matters (emphasis added). By way of contrast, in Barwick at [167], Callinan J described s 138 of the 1987 NSW Act (which was similar to s 395) as “treat[ing] the making of a complaint as a formal and substantive matter calling for a deliberative decision as to further formal process in relation to it”.
A decision under s 395(2) is quite different from a decision under s 424. Section 424 enables the Tribunal to disregard the failure to observe a procedural requirement “if satisfied that the parties to the hearing have not been prejudiced by the failure”, whereas s 395 states that a council cannot deal with a late complaint unless the council decides either that it is just and fair to do so having regard to the delay and reasons for the delay, or that the complaint involves an allegation of professional misconduct and it is in the public interest to deal with it. A s 424 decision-maker is to consider only the “prejudice” to the parties to the hearing, and decisions of the Tribunal have equated “prejudice” with “forensic prejudice”: Council of the Law Society of the ACT v Legal Practitioner D3 [2015] ACAT 7 at [100]–[105]; P1. On the other hand, a s 395(2) decision-maker is to consider whether it is “just and fair” to deal with the complaint having regard to the delay (this involves considering the positions of the complainant and the practitioner) or whether, apart from questions of fairness to the complainant and the practitioner, the broader public interest requires that the complaint be dealt with. The decisions are fundamentally different, both in relation to the persons and bodies whose circumstances must be considered and in relation to the questions to be addressed. As the plurality said in Barwick at [74], they are discretions “of a different character”.
Inevitably, the failure by a council to make a s 395(2) decision will result in prejudice to a practitioner; the practitioner will be subjected to the costs, distress and inconvenience associated with the complaint being “dealt with”. An order under s 424 may be made only if the Tribunal is satisfied that the practitioner has “not been prejudiced” by the failure to observe a procedural requirement; there appears to be no discretion in the Tribunal to make an order if there has been any significant prejudice. This suggests that s 424 is not designed to capture the failure to observe the requirements of s 395(2).
In D3, Burns J opined that the effect of s 421(3) is contrary to the proposition that a failure to comply with s 395(2) deprives the Tribunal of jurisdiction to hear a disciplinary application. I am of a different opinion.
Section 421(3) of the LPA allows the Tribunal to amend an application to include an additional allegation even though the alleged conduct occurred more than three years before the amendment is made and has not been the subject of an investigation. This provision was inserted following Barwick for the reasons explained at [57]–[58] below. In these proceedings, it is not necessary to decide the circumstances in which the addition of an allegation is or is not an “amendment”. Before the Tribunal can amend an application, there must first be a proper application before the Tribunal that is based on a valid complaint. The present case does not involve the addition of an allegation to an application that is conceded to have been based on a valid complaint.
In Council of the New South Wales Bar Association v Asuzu [2011] NSWADT 209 (Asuzu), the Administrative Decisions Tribunal of NSW (ADT) considered whether s 561 of the 2004 NSW Act could be used when the conduct had occurred outside NSW and there had been a failure to obtain the statutory consent that was required before a complaint was initiated in NSW. The ADT decided that, while the s 561 expression “procedural requirement in relation to a complaint” permitted the ADT to disregard a failure to observe a procedural requirement in relation to a complaint where it had jurisdiction, it did not permit the ADTl to acquire jurisdiction in relation to a complaint in respect of which it did not otherwise have jurisdiction because the condition precedent (the giving of consent before proceedings were commenced) had not been satisfied. I accept the Council’s submission that decisions on extraterritoriality are in a special category as they raise questions beyond straightforward statutory construction. Nevertheless, I consider that the approach to statutory construction in Asuzu is consistent with the approach that should be taken in the present case.
I do not accept the Council’s submission that s 422 points away from a narrow construction of s 424. Section 422 follows, and has more to say about, the s 421 amendment provisions. It provides that an application may proceed regardless of whether it deals with fewer matters than the number in the complaint, deals with them differently, or raises “additional matters”. Presumably, an “additional matter” differs from an “additional allegation”; the latter would require a s 421 amendment to the application.
Barwick and its aftermath
The practitioner submitted that, contrary to the decision in D3, the legislative changes that followed the decision in Barwick did not support the proposition that the requirement in s 395(2) was a “procedural requirement”.
The decision in Barwick
In Barwick, much of the alleged misconduct had occurred more than three years before the complaint. Section 138 of the 1987 NSW Act limited the time within which a complaint could be made to three years after the alleged conduct had occurred, but provided that the Commissioner could “accept” a late complaint if it was just and fair to do so having regard to the delay, or it was necessary in the public interest to investigate the complaint. Section 167A of the 1987 NSW Act permitted the Tribunal to vary an information to include an additional allegation if satisfied that it was reasonable to do so and that the variation would not affect the fairness of the proceedings.
The High Court considered whether, if the Commissioner had not “accepted” a late complaint, the tribunal had jurisdiction to consider the complaint, and whether s 167A could be used to add allegations of conduct that had occurred more than three years before the complaint was made. The Court answered both questions in the negative.
The Court considered that s 138 of the 1987 NSW Act affected substantive rights and was not merely procedural. At [71], the plurality said:
The purpose of s 138 is to set a time limit on complaints, whilst allowing the Commissioner an overriding discretion, to be exercised upon specified grounds, to accept complaints that would otherwise be out of time. That discretion protects the public interest. It has not been exercised in this case... There is nothing in the Act to suggest that the Council was intended to have the same power as the Commissioner to override any need for such protection. There are no statutory constraints governing the exercise by the Council of any such power, of the kind that apply to the Commissioner.
At [97], Kirby J observed that the Commissioner could not bypass the responsibilities under s 138(2) of the Act and, at [170], Callinan J found that the Commissioner was bound to turn his mind to the matters in s 138(2).
In relation to the question of amendment, the plurality said at [74]–[75]:
[74] In a case to which s 138 applies, and where there has been no exercise of discretion by the Commissioner under s 138(2), the clear intent of the statute is that the procedures of Pt 10 of the Act cannot be invoked after the period of three years referred to in s 138 has elapsed. A complaint which is not accepted by the Commissioner under s 138(2) has no statutory effect. The consequences of s 138 cannot be negated by an exercise by the Tribunal of its power of variation of an information under s 167A. The matters to be considered by the Commissioner in deciding whether to exercise the discretion under s 138(2) are not repeated in s 167A, which simply applies a test of reasonableness. What is there involved is a discretion of a different character.
[75] Section 167A is not intended to subvert the protection given by s 138.
The legislative response to Barwick – allowing amendments that include late allegations
Annexed to this decision is a table that reproduces the table at 22–24 of the Council’s written submissions. The table compares the relevant NSW provisions at the time of Barwick, after amendments to the 1987 NSW Act in 2000, and after the introduction of the 2004 NSW Act.
The 2000 amendments were a direct legislative response to Barwick.
When Barwick was decided, under s 138 of the 1987 NSW Act a complaint could only be “made” within three years but, in his or her discretion, the Commissioner could decide to “accept” a late complaint. The Legal Profession (Complaints and Discipline) Amendment Act 2000 (NSW) replaced s 138 with s 137, which was succeeded by s 506 of the 2004 NSW Act. Section 137 provided that a complaint could be made at any time, but “[could] not be made” more than three years after the alleged conduct unless the Commissioner or council made a determination that it was just and fair or in the public interest to do so (emphasis added). Section 137, its successor (s 506 of the 2004 NSW Act) and s 395 of the LPA state that a complaint may be “made” at any time, but a complaint made more than three years after the alleged conduct “cannot be dealt with” unless a determination has been made that it is just and fair or in the public interest to deal with the complaint.
It was not argued that the changes that were made to s 138 in 2000 and subsequently altered the import of the time limitation provision in a way that is relevant to the present proceedings.
Significantly, the 2000 post-Barwick statutory changes introduced s 167A(3). The new subsection addressed the problem identified in Barwick; a complaint had been made within time, but the High Court found that the old variation provision could not be invoked to add additional allegations concerning conduct that had occurred more than three years earlier. The new s 167A(3) (which became s 555 in the 2004 NSW Act) provided that a complaint that had been made within time could be varied to include an additional allegation that had not been made within time, if the tribunal considered that it was “reasonable” to include the additional allegation.
In the second reading speech for the Legal Profession Amendment (Complaints and Discipline) Bill 2000 (NSW), the Parliamentary Secretary said:
The bill permits the Administrative Decisions Tribunal to vary an information laid to the tribunal to include additional allegations against a practitioner, even if those allegations concern conduct that occurred more than three years ago. This amendment is also necessary as a result of the Barwick case, in which it was held that the tribunal’s power to vary an information could only be exercised for conduct that was less than three years old. However, conduct that took place more than three years ago sometimes comes to light only in the course of a hearing. Without this amendment, a fresh complaint would need to be made ... (New South Wales, Hansard, Legislative Assembly, 31 May 2000, p 6237, Kevin Moss, Parliamentary Secretary)
Section 421 of the LPA is very similar to the NSW amendment provision post-Barwick, except that s 421 allows an “amendment” to add an additional allegation, rather than a “variation”.
For the reasons discussed above at [44], s 421(3) of the LPA has no direct application to the present case because the whole of the complaint was a late complaint. It is not a case of amending or varying an application where a complaint has been made within time so as to add additional allegations concerning conduct that occurred more than three years before the amendment.
Power to disregard a procedural lapse/requirement
At the time of Barwick, there was no provision like s 424 of the LPA allowing a disciplinary tribunal to disregard a procedural requirement or procedural lapse. Such a provision was not introduced in NSW until 2004.
In April 2001, the NSW Law Reform Commission (NSW LRC) issued Report 99, an interim report concerning complaints against lawyers. In Chapter 4 of the Report (concerning the complaints handling process) the NSW LRC considered difficulties that had been identified in relation to non-compliance with Part 10 of the 1987 NSW Act, including difficulties identified in Barwick and in the decisions of Carson v Legal Services Commissioner [2000] NSWCA 308 (commencement of clearly untenable proceedings, inexcusable delay and failure to satisfy requirements of procedural fairness) and Murray v Legal Services Commissioner [1999] NSWCA 70; 46 NSWLR 224 (failure to satisfy procedural fairness requirements by failing to provide the practitioner with a copy of the complaint and an opportunity to respond to it). The report stated:
4.102 The Commission considers that a practitioner should not be able to rely on non-compliance by the LSC [Legal Services Commissioner], the Law Society or the Bar Association with the procedural requirements of Part 10 to invalidate Tribunal proceedings unless the procedural irregularity has caused the practitioner substantial injustice. To permit procedural defects to invalidate Tribunal proceedings when no substantial injustice has resulted creates unnecessary complexity and inefficiency in the administration of Part 10 and contributes to the serious delays referred to by Justice Kirby.
4.103 Accordingly the Commission recommends that Part 10 should be amended to provide that disciplinary proceedings against practitioners are not invalidated by non-compliance by the LSC, the Law Society or the Bar Association with the procedural requirements for investigating and referring complaints to the Tribunal, unless this has resulted in substantial injustice. The Commission recommendation is adapted from the Bankruptcy Act 1966 (Cth) s 306(1).
...
Recommendation 15
Part 10 of the Legal Profession Act 1987 (NSW) should be amended to provide that proceedings under Part 10 are not invalidated by a formal defect or an irregularity in the making or referral of the complaint to the Tribunal or the decision-making of the Commissioner, the Law Society or the Bar Association unless the court or Tribunal before which the objection on that ground is made is of the opinion that substantial injustice has been caused by the defect or irregularity and that injustice cannot be remedied by order of the court or Tribunal. (NSW Law Reform Commission, Complaints against lawyers: an interim report, Report No 99 (2001) 91-2)
(Emphasis added)
At the time, s 306(1) of the Bankruptcy Act1966 (Cth) provided:
Proceedings under this Act are not invalidated by a formal defect or an irregularity, unless the court before which the objection on that ground is made is of opinion that substantial injustice has been caused by the defect or irregularity and that the injustice cannot be remedied by an order of that court.
(Emphasis added)
The recommendation concerning defects and irregularities that was made in NSW LRC Report 99 received legislative expression in 2004 as s 171, which was headed “[p]ower to disregard procedural lapses”. When the amending bill inserting the section into the Act was read for the second time, the then Minister for Justice and Minister Assisting the Premier on Citizenship said:
Similarly, new section 171, taken from the National Model Laws, will allow the Tribunal to order that a failure to observe a procedural requirement may be disregarded if the parties have not been prejudiced by the failure. Giving the tribunal power to rectify technical errors made by the regulatory authorities is sensible and pragmatic, particularly when the only consequence has been that the practitioner has been able to practice for longer than they would have otherwise ... (New South Wales, Hansard, Legislative Assembly, 24 June 2004, p 10110, John Hatzistergos, Minister for Justice, Minister Assisting the Premier on Citizenship)
(Emphasis added)
Subsequently, under s 561 of the 2004 NSW Act, the NSW Tribunal was empowered to disregard the failure by a council to observe “a procedural requirement in relation to a complaint (including the making, investigation or referral of a complaint, the giving of notice in connection with a complaint, or the making of a decision in connection with the complaint)”. The Tribunal was empowered to disregard the failure (whether it occurred before or after the commencement of tribunal proceedings) if satisfied that the failure had not caused substantial injustice to the parties, any substantial injustice was outweighed by the public interest in having the complaint “dealt with” by the Tribunal, or substantial injustice could be remedied by an order of the Tribunal. The equivalent ACT provision, s 424 of the LPA, enables the Tribunal to disregard the failure of a council to observe “a procedural requirement in relation to a complaint before an application is made to the ACAT” if satisfied that the parties have not been prejudiced by the failure (emphasis added). Section 424 replaced s 427, which enabled the disciplinary tribunal to disregard a failure, whether the failure occurred before or after proceedings were commenced.
The above references by the NSW LRC and the NSW Minister for Justice to non-compliance “with the procedural requirements for investigating and referring complaints to the Tribunal”, “a formal defect or an irregularity” and to “technical errors” suggest that the expression “procedural requirement” was intended to have a relatively narrow content when used in s 171 and the parallel ACT provision, s 424.
Pfeiffer
In Pfeiffer, the plaintiff had sued in the ACT for damages arising from an accident in NSW. The question was whether the law applying to the assessment of damages was that of the ACT (where damages were unlimited) or NSW (where damages were limited). The answer depended largely upon whether the law limiting damages raised a question of substance or procedure. In finding that the law limiting damages was a matter of substance rather than procedure, the plurality said:
99. Two guiding principles should be seen as lying behind the need to distinguish between substantive and procedural issues. First, litigants who resort to a court to obtain relief must take the court as they find it ... Secondly, matters that affect the existence, extent or enforceability of the rights or duties of the parties to an action are matters that, on their face, appear to be concerned with issues of substance, not with issues of procedure. Or to adopt the formulation put forward by Mason CJ in McKain (1991) 174 CLR 1 at 26 – 27 “rules which are directed to governing or regulating the mode or conduct of court proceedings” are procedural and all other provisions or rules are to be classified as substantive.
100. These principles may require further elucidation in subsequent decisions but it should be noted that giving effect to them has significant consequences for the kinds of case in which the distinction between substance and procedure has previously been applied. First, the application of any limitation period, whether barring the remedy or extinguishing the right, would be taken to be a question of substance not procedure (which is the result arrived at by the statutes previously referred to). The application of any limitation period would, therefore, continue to be governed (as that legislation requires) by the lex loci delicti. Secondly, all questions about the kinds of damage, or the amount of damages that may be recovered, would likewise be treated as substantive issues governed by the lex locati delicti.
The reference to McKain in this extract is a reference to McKain v RW Miller & Co (South Australia) Pty Ltd (1991) 174 CLR 1.
The Council submitted that Pfeiffer is irrelevant to the question of statutory construction before the Court, inter alia because it concerns a choice of law issue.
Pfeiffer is not determinative of the construction question and it did concern a question of choice of laws. Nevertheless, it is important in the present context because it speaks generally of the distinction between a procedural issue and a substantive issue and makes it plain that a provision that limits an action, whether by barring a remedy or extinguishing a right, should be characterised as imposing a substantive requirement rather than a procedural requirement.
In D3 at [32], Burns J found that s 395(2) neither removed a right vested in the practitioner or the Council nor barred a remedy for any such right; it was concerned with interests including the public interest, not rights. Consequently, his Honour considered that Pfeiffer did not assist in relation to whether the provision imposed a “procedural requirement”.
I am of a different opinion. There are many contexts, both legal and non-legal, in which a distinction is made between substance and procedure. The ordinary meaning of procedure is that it refers to the manner or process of taking an action, rather than the availability of the action itself. The action itself is a matter of substance. Pfeiffer approached the distinction between substantive issues and procedural issues in the same way, albeit in a particular legal context. I accept that s 395(2) is concerned to balance interests, including the public interest, but that does not detract from the fact that it limits an action. Rather than mandating a process, it prevents an action from occurring or being “dealt with”.
In any event, s 395 would be characterised for choice of law purposes as part of the substantive law of the ACT and choice of law issues may arise in the context of disciplinary proceedings, including where a claim for compensation concerns conduct that occurred partly or entirely outside the ACT. It is most unlikely that it was intended that s 395 would impose a requirement that was procedural within the meaning of s 424, but a substantive for choice of law purposes.
Declarations and Orders
I make declarations under r 3558(2) of the CPR that:
(a)The Council’s failure to make a decision under s 395(2) of the LPA was not a “failure to observe a procedural requirement in relation to a complaint before an application is made to the ACAT” within the meaning of s 424 of the LPA.
(b)The Tribunal did not have jurisdiction to make the order on 28 June 2016 that the Council’s failure to observe s 395(2) of the LPA in relation to the complaint against the practitioner should be disregarded.
(c)In the absence of a decision under s 395(2) in relation to the complaint against the practitioner, the Tribunal lacked jurisdiction to deal with application OR 31/2015, otherwise than to dismiss it for lack of jurisdiction.
Under r 3554 of the CPR, I make orders:
(a)Quashing the orders of the Tribunal made on 28 June 2016.
(b)Prohibiting the Tribunal from dealing with application OR 31/2015 other than by dismissing it.
The Council is to pay the practitioner’s costs of the proceedings in this Court.
The practitioner submitted that, pursuant to CPR r 3558(1) the Court should make a mandatory injunction requiring the Council to pay his costs of the Tribunal proceedings. However, there would appear to be no power to do so. Should the parties wish to make written submissions on this point, I will allow them to do so.
| I certify that the preceding seventy-four [74] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. Associate: Date: 14 July 2017 |
Annexure 1
3 Year Provision
| Legal Profession Act 1987 (NSW) – At time of Barwick | Legal Profession Act 1987 (NSW) – Post-2000 reforms | Legal Profession Act 2004 (NSW) (as at 23/05/11 when complaint was made) | Legal Profession Act 2006 (ACT) (as at 23/05/2011) |
| 138 (1) A complaint may only be made within 3 years after the conduct is alleged to have occurred. (2) However, the Commissioner may accept a complaint made after that time if: (a) the Commissioner is satisfied that it is just and fair to do so having regard to the delay and the reason for the delay, or (b) the Commissioner is satisfied that the complaint concerns an allegation of professional misconduct and that it is necessary in the public interest to investigate the complaint. | 137 Complaints made over 3 years after conduct concerned (1) A complaint may be made about conduct of a legal practitioner irrespective of when the conduct is alleged to have occurred. (2) However, a complaint cannot be made more than 3 years after that conduct is alleged to have occurred unless a determination is made under this section that: (a) it is just and fair to deal with the complaint having regard to the delay and the reasons for the delay, or (b) the complaint involves an allegation of professional misconduct and it is in the public interest to deal with the complaint. (3) A determination under this section: (a) in the case of a complaint made to or by the Commissioner—is to be made by the Commissioner, or (b) in the case of a complaint made by a Council—is to be made by the Council. (4) A determination made under this section is final and cannot be challenged in any proceedings by the complainant or the legal practitioner concerned. (commenced 14 July 2000) | 506 Complaints made over 3 years after conduct concerned (1) A complaint may be made about conduct of an Australian legal practitioner irrespective of when the conduct is alleged to have occurred. (2) However, a complaint cannot be dealt with (otherwise than to dismiss it or refer it to mediation) if the complaint is made more than 3 years after the conduct is alleged to have occurred, unless a determination is made under this section that: (a) it is just and fair to deal with the complaint having regard to the delay and the reasons for the delay, or (b) the complaint involves an allegation of professional misconduct and it is in the public interest to deal with the complaint. (3) A determination under this section: (a) in the case of a complaint made to or by the Commissioner—is to be made by the Commissioner, or (b) in the case of a complaint made by a Council—is to be made by the Council. (4) A determination made under this section is final and cannot be challenged in any proceedings by the complainant or the Australian legal practitioner concerned. | 395 Complaints made more than 3 years after conduct (1) A complaint may be made about conduct to which this chapter applies irrespective of when the conduct is alleged to have happened. (2) However, the complaint cannot be dealt with (otherwise than to dismiss it or refer it to mediation) if the complaint is made more than 3 years after the conduct is alleged to have happened, unless the relevant council for the person about whom the complaint is made decides that— (a) it is just and fair to deal with the complaint having regard to the delay and the reasons for the delay; or (b) the complaint involves an allegation of professional misconduct and it is in the public interest to deal with the complaint. |
Disregard Provision
| Legal Profession Act 1987 (NSW) - At time of Barwick | Legal Profession Act 1987 (NSW) – Post-2004 reforms | Legal Profession Act 2004 (NSW) (as at 04/08/2015 when disciplinary proceedings commenced) | Legal Profession Act 2006 (ACT) (as at 04/08/2015) |
| Not in existence | 171 Power to disregard procedural lapses (1) The Tribunal may order that a failure by the Commissioner or a Council, or a person acting for them or under their direction, to observe a procedural requirement in relation to a complaint is to be disregarded, if satisfied that the parties to the hearing have not been prejudiced by the failure. (2) This section applies to a failure occurring before proceedings were instituted in the Tribunal in relation to the complaint as well as to a failure occurring afterwards. (commenced 15 August 2004) | 561 Procedural lapses and defects in appointments (1) The Tribunal may order that a failure by the Commissioner or a Council, or a person acting for them or under their direction, to observe a procedural requirement in relation to a complaint (including the making, investigation or referral of a complaint, the giving of notice in connection with a complaint, or the making of a decision in connection with a complaint) is to be disregarded, if satisfied that: (a) the failure has not caused substantial injustice to the parties to the hearing, or (b) any substantial injustice caused by the failure is outweighed by the public interest in having the complaint dealt with by the Tribunal, or (c) any substantial injustice caused by the failure can be remedied by an order of the Tribunal. (2) Subsection (1) applies to a failure occurring before proceedings were commenced in the Tribunal in relation to the complaint as well as to a failure occurring afterwards. (3) A defect or irregularity in the appointment of any person exercising, or purporting to exercise, a power or function under this Chapter or Chapter 6 does not invalidate an act done or omitted by the person in good faith. | 424 ACAT power to disregard procedural lapses The ACAT may order that a failure by the relevant council to observe a procedural requirement in relation to a complaint before an application is made to the ACAT is to be disregarded if satisfied that the parties to the hearing have not been prejudiced by the failure. Note The ACAT may make rules about its practice and procedure under the ACT Civil and Administrative Tribunal Act 2008, s 24. (commenced 2 February 2009) Note: Prior to 2/2/09, the equivalent section was s 427 which provided: 427 Disciplinary tribunal power to disregard procedural lapses (1) The disciplinary tribunal may order that a failure by the relevant council to observe a procedural requirement in relation to a complaint is to be disregarded if satisfied that the parties to the hearing have not been prejudiced by the failure. (2) This section applies to a failure that happened before the proceeding was started in the disciplinary tribunal in relation to the complaint as well as to a failure happening afterwards. |
Amendment Provision
| Legal Profession Act 1987 (NSW) - At time of Barwick | Legal Profession Act 1987 (NSW) – Post-2000 reforms | Legal Profession Act 2004 (NSW)[1] (at all relevant times since disciplinary proceedings commenced) | Legal Profession Act 2006 (ACT) (at all relevant times since disciplinary proceedings commenced) |
| 167A (1) The Tribunal may, on the application of a Council or the Commissioner who laid an information, vary the information laid so as to omit allegations or to include additional allegations if the Tribunal is satisfied, having regard to all the circumstances, that it is reasonable to do so. (2) Without limiting subsection (1), when considering whether or not it is reasonable to vary an information, the Tribunal is to have regard to whether varying the information will affect the fairness of the proceedings. | 167A Tribunal may vary an information (1) The Tribunal may, on the application of a Council or the Commissioner who laid an information, vary the information laid so as to omit allegations or to include additional allegations if the Tribunal is satisfied, having regard to all the circumstances, that it is reasonable to do so. (2) Without limiting subsection (1), when considering whether or not it is reasonable to vary an information, the Tribunal is to have regard to whether varying the information will affect the fairness of the proceedings. (3) The variation of an information by the Tribunal to include an additional allegation is not precluded because the alleged conduct concerned occurred more than 3 years before the variation is made. (commenced 14 July 2000) | 555 Variation of disciplinary application (1) The Tribunal may vary a disciplinary application, on the application of the person who made the disciplinary application or on its own motion, so as to omit allegations or to include additional allegations, if satisfied that it is reasonable to do so having regard to all the circumstances. (2) The Commissioner is to be regarded as the applicant in connection with a disciplinary application for the purposes of an application by the Commissioner under section 545 (1) (i) (Decision of Commissioner on review). (3) Without limiting subsection (1), when considering whether or not it is reasonable to vary a disciplinary application, the Tribunal is to have regard to whether varying the disciplinary application will affect the fairness of the proceedings. (4) The inclusion of an additional allegation is not precluded on any or all of the following grounds: (a) the additional allegation has not been the subject of a complaint, (b) the additional allegation has not been the subject of an investigation, (c) the alleged conduct concerned occurred more than 3 years ago. (5) (Repealed) | 421 Amendment of complaint application (1) The ACAT may, on application by the relevant council or on its own initiative, amend an application to omit an allegation or to include an additional allegation, if satisfied that it is reasonable to make the amendment having regard to all the circumstances. (2) Without limiting subsection (1), in considering whether or not it is reasonable to amend an application, the ACAT must have regard to whether amending the application will affect the fairness of the proceeding. (3) The ACAT may amend an application to include an additional allegation even though the alleged conduct— (a) happened more than 3 years before the amendment is made; or (b) has not been the subject of a complaint or investigation under this chapter. |
[1]The Legal Profession Act 2004 (NSW) was repealed with effect from 1 July 2015 and has been replaced by the Legal Profession Uniform Law Application Act 2014 (NSW). Section 140 of that Act is in substantively equivalent terms to the former s 555.
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