Legal Practitioner v Council of the Law Society of the ACT

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	The Legal Practitioner v Council of the Law Society of the ACT
Citation:	[2016] ACTCA 35
Hearing Date:	13 November 2015
DecisionDate:	5 August 2016
Before:	Penfold, Burns, Rangiah JJ
Decision:	See [84]-[86]
Catchwords:	PROFESSIONS AND TRADES – Lawyers – appeal against findings of professional misconduct – appeal from single judge of the Supreme Court – where practitioner seeks to agitate a different issue than was before the primary judge – practitioner had to demonstrate an error on part of the primary judge – no error demonstrated – issue raised by the practitioner was not before the primary judge – analysis of evidence reveals no merit in appeal grounds – appeal dismissed. PROFESSIONS AND TRADES – Lawyers – Law Society cross-appeal – where the ACAT determined penalty without hearing submissions from the practitioner – where the ACAT reopened the proceedings – where the practitioner contended the ACAT was functus officio – where the practitioner did not make submissions at the further hearing on penalty – where the primary judge found there were no “extraordinary circumstances” within the meaning of s 56(c)(iii) of the ACAT Act to reopen the proceedings – whether considerations of efficiency constitute “extraordinary circumstances” – ACAT entitled to reopen proceedings on basis of procedural fairness – failure of the ACAT to afford the practitioner procedural fairness constitutes “extraordinary circumstances” – ACAT entitled to reopen proceedings – cross-appeal allowed.
Legislation Cited:	ACT Civil and Administrative Tribunal Act 2008 (ACT), ss 6, 7, 56, 83 Administrative Appeals Tribunal Act 1975 (Cth), s 42A Civil And Administrative Tribunal Act 2013 (NSW), s 55 Legal Profession Act 2006 (ACT), ss 419, 425 Migration Act 1958 (Cth), ss 353, 360 Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 138, 140, sch 3 State Administrative Tribunal Act 2004 (WA), s 84
Cases Cited:	Chandler v Alberta Association of Architects [1989] 2 SCR 848 Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 Fox v Percy (2003) 214 CLR 118 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 Northern New South Wales FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39 Ridge v Baldwin [1964] AC 40
Parties:	Legal Practitioner (Appellant) Council of the Law Society of the ACT (Respondent)
Representation:	Counsel Mr T Crispin (Appellant) Mr N Beaumont SC with Ms T Power (Respondent)
Solicitors Self-represented (Appellant) Phelps Reid (Respondent)
File Number:	ACTCA 8 of 2015
Decision under appeal:	Court: ACT Supreme Court Before: Murrell CJ Date of Decision: 24 December 2014 Case Title: Legal Practitioner v Council of the Law Society of the ACT (No. 2) Citation: [2014] ACTSC 352

PENFOLD J:

I have read in draft the judgment of Burns and Rangiah JJ, and gratefully adopt their description of the factual background of this matter. Unfortunately, I have not come to the same conclusions as their Honours in respect of all matters canvassed on this appeal.

The practitioner’s appeal

In January 2013, in proceedings brought by the Council of the Law Society of the ACT (the Law Society), the ACT Civil and Administrative Tribunal (ACAT) found the practitioner guilty of 18 counts of professional misconduct.

The practitioner’s appeal to this Court concerned ACAT’s treatment of the evidence relevant to one of those counts, which related to a particular payment allegedly made to the practitioner by a complainant, TT. The evidence given by TT before ACAT was said to be inconsistent with the evidence of one Dr Douglas Hassall, counsel practising in this jurisdiction.

The immediate significance of the alleged payment was the Law Society’s further allegation that the practitioner had failed to deposit the amount in his trust account, and had failed to issue a trust receipt. As explained by Burns and Rangiah JJ at [61] below, the ultimate significance, in the practitioner’s eyes, was:

(a)that ACAT’s acceptance of TT’s evidence had affected ACAT’s assessment of the practitioner’s credibility in relation to that count;
(b)that if TT’s evidence had been rejected, the practitioner’s own credibility would have been restored; and
(c)that ACAT, as well as finding in the practitioner’s favour in relation to TT’s complaint, would, or perhaps could, then have dismissed all the other complaints against the practitioner.

I agree with their Honours’ conclusion that this was a “dubious proposition”. I also agree that, on proper analysis, there was no inherent inconsistency between the evidence of TT and that of Dr Hassall, and that no error has been shown in the primary judge’s approach to the evidence.

Finally in relation to the practitioner’s appeal, I note that counsel made various submissions about Dr Hassall along the following lines:

there has never been any allegation against Dr Hassall of any wrongdoing that I'm aware of in this or any other proceeding. He is a counsel in good standing of many years. He enjoys the respect of this and other superior courts, and it would be in my submission a very unusual circumstance in which the credibility of a legal practitioner of his standing would be called into question without being challenged.

I do not question in any way counsel’s description of Dr Hassall as an experienced counsel of this Territory in good standing, and I note also the conclusion of Burns and Rangiah JJ, with which I have agreed, that there was in any case no inherent inconsistency between the evidence of TT and that of Dr Hassall (at [59] below). Nothing I say below should be interpreted as any criticism of Dr Hassall.

However, counsel for the practitioner at several points submitted to the effect that as a general proposition, a tribunal’s rejection of the evidence of a person who can be described, for instance, as “a counsel in good standing of many years”, would be “extraordinary” or “indefensible” or “contrary to compelling inferences” so as to bring the matter within the category of cases in which, in reliance on Fox v Percy [2003] HCA 22; 214 CLR 118 at [28] and [29], the tribunal’s finding of fact may be overturned despite being based on a credibility assessment.

It seems to me that proceedings against a legal practitioner for professional misconduct are not proceedings in which it is enough for counsel to say that a witness is “a barrister in good standing” or “an upstanding member of the profession” (as was done in the appellant’s written submissions to the primary judge, quoted at [51] below), or “an experienced counsel ... in good standing” (as was done in oral submissions before the primary judge, quoted at [53] below), in order to exclude any challenge to such a witness’s reliability.

This is because, by definition, such proceedings involve allegations of misconduct against a member of the legal profession (in this case the appellant, rather than any witness); they cannot sensibly be conducted on the assumption that all members of the legal profession necessarily and at all times act honourably.

Accordingly, I agree with Burns and Rangiah JJ that the practitioner’s appeal should be dismissed.

The Law Society’s cross-appeal

As explained in more detail by their Honours below, the Law Society’s appeal is against the primary judge’s order remitting the matter to ACAT for further hearing and decision. That further hearing and decision was to relate to the question of what orders should be made consequent on the findings of professional misconduct made by ACAT and not disturbed by the primary judge (at [41] below).

I agree with Burns and Rangiah JJ that the efficiency considerations referred to by ACAT and by the primary judge (at [78] and [79] below) did not constitute “extraordinary circumstances” so as to permit ACAT, in reliance on s 56(c)(iii) of the ACTCivil and Administrative Tribunal Act 2008 (ACT) (the ACAT Act), to re-open the hearing and reconsider its orders as to penalty. However, I do not agree that, by analogy with the principles expressed in Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597 (Bhardwaj), this was a case in which ACAT’s original decision on penalty was a nullity and in which the ACAT Act permitted or even required ACAT to correct its failure to exercise jurisdiction.

First, I do not consider that the circumstances in which ACAT made its first decision on penalty, or the decision it made, are sufficiently similar to the circumstances and the decision in Bhardwaj to be relied on to justify ACAT’s decision to re-open the proceedings. Nor do I consider that, consistently with or apart from Bhardwaj, s 56(c) permits re-opening proceedings for a further substantive exercise of power.

In Bhardwaj, Gleeson CJ at [14]; 605-606 described the process which led to the Immigration Review Tribunal (the IRT) re-opening a matter and making a new decision:

In the present case there was a denial of procedural fairness; but there was more to it than that. There was an error of the kind described as "error in fact" in the context of proceedings by writ of error: the non-fulfilment or non-performance of a condition precedent to regularity of adjudication such as would ordinarily induce a tribunal "to stay its hand if it had knowledge, or to re-open its judgment had it the power." - The Act, in Pt 5 Div 5, prescribed the procedures according to which the Tribunal was required to conduct its review of the delegate's decision. If the Tribunal was not prepared to decide in the respondent's favour on the written material before it, then s 360 required that it give the respondent an opportunity to appear and give evidence and present arguments. The Tribunal set out to give the respondent such an opportunity. It intended to follow the statutory procedure. As a result of an administrative slip, it denied the respondent the opportunity that he wanted to have, and that the Tribunal intended to give him. And, in consequence, it dealt with the matter in the belief that the respondent had nothing to say by way of explanation of the conduct that had resulted in the cancellation of his visa. The Tribunal, through an administrative error, failed to implement its own intention, and failed to comply with the statutory requirement to give the respondent an opportunity to be heard. In its reasons for its "decision", the Tribunal merely noted the delegate's decision, and observed that nothing had been put before it as to why the decision was unfair or inappropriate. That did not amount to the conduct of a review. The Act provided, in s 353, that the Tribunal, in reviewing the delegate's decision, was not bound by technicalities or legal forms and should act according to substantial justice. When it learned of its own administrative error, the Tribunal recognised that it had not performed its functions and proceeded to do so. (citations omitted)

His Honour went on to conclude at [15]; 606:

In those circumstances, it was not inconsistent with the statutory scheme for the Tribunal, upon becoming aware that it had not given effect to its own intention, and that it had failed to conduct a review of the delegate's decision, to give the respondent the opportunity which the statute required, which he wanted, and which the Tribunal had intended to give him. On the contrary, it was in accordance with the requirements of the Act.

The significant factors identified by Gleeson CJ in Bhardwaj were:

(a)That the legislation explicitly required the IRT, unless it was willing to find in the appellant’s favour on the papers, to give an appellant “an opportunity to appear and give evidence and present arguments”.
(b)The IRT intended, and attempted, to follow the statutory procedure, but failed as a result of an administrative slip.
(c)The IRT then dealt with the matter in the belief that the appellant “had nothing to say by way of explanation of the conduct that had resulted in the cancellation of his visa”.
(d)In its reasons for its "decision", the IRT merely noted the decision appealed from, and observed that nothing had been put before it as to why the decision was unfair or inappropriate.
(e)That procedure did not amount to the conduct of a review.
(f)Accordingly, the IRT had, through administrative error, not exercised its statutory function, and it subsequently proceeded to do so.

Gleeson CJ concluded that the IRT’s failure to exercise its function under the legislation was appropriately corrected by providing a hearing as required by the legislation. Given that, after hearing the appellant’s submissions, the IRT overturned the decision under review, there was no ground for claiming (or suspecting) that the IRT had not given genuine consideration to what was put before it by the appellant.

This case is different.

(a)First, ACAT was not reviewing anything, but exercising a first instance power, which it did by reaching substantive conclusions as to penalty and recording them in substantive orders.
(b)Secondly, having initially exercised that power substantively but, as a result of an administrative error, without giving a hearing, ACAT then purported to set that substantive exercise of power aside, conduct a hearing, and then again exercise the power substantively.
(c)After the flaw in ACAT’s process came to light (as a result of being identified by the practitioner in his notice of appeal), the Law Society invited ACAT to re-open the proceedings in preference to going through what counsel for the Law Society before us described as “an unnecessary appeal”.
(d)The practitioner, perhaps understandably, resisted the re-opening, and declined to take part in the next stage of the proceedings.
(e)ACAT then reconvened and, in the absence of submissions from the practitioner, purported to re-make a substantive decision on penalties.

Unsurprisingly, perhaps, ACAT reached the same decision it had reached initially. This does not prove it did not consider its decision from scratch based on what was then before it. On the other hand, it does exclude any conclusion that the second decision represented the outcome of a new and unqualified consideration of the submissions of both parties.

As indicated above, Gleeson CJ concluded in Bhardwaj that the applicable legislation intended reviews to be conducted in a specified way, and that it was within the powers of the IRT to rectify its own failure to conduct a review in compliance with the procedure laid down in the legislation. In this case, ACAT had exercised substantive powers (as distinct from failing to do so), albeit without providing procedural fairness. In this case, however, while procedural fairness was generally implicit in what was required of ACAT, the requirement to provide a hearing was not, in effect, the essential pre-requisite to making a decision against the appellant. It is necessary to look closely at the ACAT Act to see whether the legislative scheme provided a basis on which ACAT could in specified circumstances re-open its proceedings to correct a failure to give procedural fairness or whether in this case, in Gleeson CJ’s words in Bhardwaj (at 603, after his Honour has quoted from Ridge v Baldwin [1964] AC 40 at 79):

[the] general proposition [that if an officer or body realises that it has acted hastily and reconsiders the whole matter afresh, after affording to the person affected a proper opportunity to present his case, then its later decision will be valid] must yield to the legislation under which a decision-maker was acting.

An examination of the legislative scheme in the current case requires consideration of s 56 of the ACAT Act.

In this respect too I have reached a different conclusion from that of Burns and Rangiah JJ. I do not agree that s 56(c)(iii), permitting an order to be amended or set aside where “extraordinary circumstances make it appropriate”, extends to permitting decisions that have been made in breach of the rules of procedural fairness to be set aside by the body that made the decision, such that a new hearing can be held and a new substantive decision can be made.

I do not have any doubt that s 56 is in general terms a procedural provision, and one that is not intended to have any particularly controversial or substantive effect.

Sections 56(a) and (b), providing respectively for hearing related matters together and for making consent orders, have only procedural significance.

Section 56(d) permits ACAT to take “any other action in relation to an application” that is appropriate and consistent with the ACAT Act or an authorising law. This provision may go beyond the purely procedural, but only for actions that can be identified as consistent with (not just not inconsistent with) other specified provisions.

Sections 56(c)(i) and (ii) have a very limited scope.

Section 56(c)(i) is a provision of a kind common in legislation dealing with the procedures of courts and tribunals, permitting matters to be dismissed if parties do not attend hearings and permitting dismissed matters to be reinstated if the tribunal is satisfied that the non-attendance was explicable (for other examples see eg Administrative Appeals Tribunal Act 1975 (Cth), s 42A; State Administrative Tribunal Act 2004 (WA), s 84; Civil And Administrative Tribunal Act 2013 (NSW), s 55).

Section 56(c)(ii) provides a very narrow power to amend orders containing mistakes in the names or addresses of parties.

Section 56(c)(iii) gives an unqualified power to amend or set aside an order, but only in “extraordinary circumstances”. However, that provision must be read in the context of the rest of s 56, as well as the legislation more broadly.

While I do not disagree that the failure of an administrative tribunal to provide procedural fairness may in one sense be characterised as extraordinary, I am not convinced that such a failure by the tribunal itself should be accepted as “extraordinary circumstances” permitting the tribunal to set aside its own decision and have another go at getting the decision right.

For a start, the provision permits the amendment and setting aside of a decision, but it does not expressly or, in my view, by implication permit such amendment or setting aside to be followed by a further hearing and the making of a new substantive decision. It is clear from the wording of the provision that it confers a power in respect of a particular order that has been made by ACAT, and no more (“a” tribunal order may be amended or set aside if it is appropriate to amend or set aside “the” order).

This may be contrasted with some of the legislation creating other Australian administrative tribunals – for instance, see the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act), which provides a specific re-opening power that enables issues to be “heard and decided by way of a fresh hearing on the merits” (ss 138 and 140 and the definition of “reopening ground” in the Dictionary to that Act); a “reopening ground” is, in general terms:

(a)a reasonable excuse for a party’s failure to appear at a hearing (dealt with in the ACAT Act by s 56(c)(i)); and
(b)the availability of “significant new evidence” not previously available, the exclusion of which would cause a “substantial injustice”.

The Queensland legislation provides that after the fresh hearing, a previous final decision may be confirmed, amended or set aside and replaced (s 140).

The Law Society’s submission would require s 56(c)(iii) to be read as containing equivalent provisions to those of ss 138 and 140, and other related provisions, of the QCAT Act. I do not consider that such an expansive interpretation is available.

Furthermore, the interpretation of the provision suggested by the Law Society would have potentially dramatic effects. The primary judge suggested (at [147]) that if tribunals were able to re-open their proceedings as a matter of course, “then appeal and review processes would be thrown into chaos”. That is one possibility. Another is that such processes would simply become increasingly inaccessible as litigants coped with regular requests (whether originating with the tribunal or other parties) to appear at re-opened proceedings aimed at giving tribunals repeated opportunities to “get it right” before being exposed to appeal or review processes. The exact nature of these outcomes does not seem to matter – either way, interpreting s 56(c)(iii) as empowering ACAT to re-open, re-consider and re-make substantive decisions as some kind of alternative appeal process in my view goes far beyond what can be found in the plain words of a provision otherwise clearly aimed at uncontroversial procedural “tidying-up”.

Accordingly, I consider:

(a)that ACAT, having made findings in relation to the complaints about the practitioner and orders about penalties, was functus officio before it decided, on application by the Law Society, to re-open its proceedings and hear submissions on penalty; and
(b)that the re-opening of the proceedings was not permitted by s 56(c)(iii) of the ACAT Act, because ACAT’s inadvertent failure to give procedural fairness before reaching substantive conclusions in the proceedings did not amount to “extraordinary circumstances” that made it “appropriate to amend or set aside” the penalty orders; and
(c)that even if the circumstances of this case had been sufficiently extraordinary to permit ACAT to set aside its penalty orders under s 56(c)(iii), that provision would not have permitted ACAT to re-open the proceeding, hold a further hearing about penalty and make a new set of substantive orders.

This seems to mean that none of the cross-appellant’s grounds of appeal have been made out, and accordingly I would dismiss the Law Society’s cross-appeal.

Costs

In the circumstances, I would order that each party pay its own costs of this appeal.

I certify that the preceding thirty-nine [39] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold.

Associate:

Date: 4 August 2016

BURNS AND RANGIAH JJ:

The appellant (the practitioner) was a legal practitioner who practised as a sole practitioner in the Australian Capital Territory (ACT) with an unrestricted practising certificate. On 24 January 2013, the Australian Capital Territory Civil and Administrative Tribunal (the ACAT) found the practitioner guilty of 18 counts of professional misconduct. The Second Further Amended Application for Disciplinary Action upon which the hearing proceeded before the ACAT, alleged that the practitioner was guilty of professional misconduct on the basis of 18 specified grounds, some of which were the subject of “particulars” in numbered paragraphs under the specified ground. The ACAT found the practitioner guilty of professional misconduct with respect to Grounds 2 (particulars 2.1, 2.2 and 2.3), 4, 5 (particulars 5.2, 5.3 and 5.4), 6, 7, 7A, 8, 9, 10, 11, 12, 13, 16 and 17. At that time it also purported to make an order recommending that the name of the practitioner be removed from the local roll. This was, unfortunately, in contravention of an earlier agreement that the initial proceedings before the ACAT would only determine whether any allegations of misconduct by the practitioner were proven (liability), and, if so, a separate hearing would be conducted to determine what orders should be made (penalty). The attention of the ACAT was then drawn to the fact that it had not given the practitioner an opportunity to be heard on “penalty”, and the ACAT then conducted a further hearing limited to what orders it should make. On 8 July 2013, the ACAT made orders recommending that his name be removed from the local roll, that he be publically reprimanded, and that he pay the costs of the Council of the Law Society of the ACT (the Society), the respondent to the present appeal. The ACAT published its reasons for that decision on 28 August 2013.

The appellant appealed from the findings of guilt and the orders made by the ACAT. That appeal was removed from the ACAT into the ACT Supreme Court pursuant to s 83 of the ACT Civil and Administrative Tribunal Act 2008 (ACT) (the ACAT Act) and was heard by a single judge of that Court. On 24 December 2014, the primary judge upheld the appeal in part, effectively dismissing the appeals against the findings of guilt but remitting the matter to the ACAT for further hearing and decision on what orders should be made consequent upon the ACAT’s findings concerning professional misconduct. The order remitting the matter to the ACAT on this limited basis was made because the primary judge was satisfied that there had been a breach of the rules of procedural fairness by the ACAT in making orders, as to penalty on

24 January 2013, and that the ACAT had no power to “reopen” the proceedings and hear further submissions and make further orders on penalty.

The practitioner has appealed from the orders made by the primary judge dismissing his appeal from the ACAT’s findings of guilt. The grounds of appeal were not felicitously drafted, but they essentially allege:

(a)the primary judge erred by ruling that the evidence given by Dr Hassall in the ACAT did not contradict the evidence of TT;
(b)the primary judge erred by failing to rule that the ACAT, having failed to recognise the conflict between the evidence given by Dr Hassall and TT, should not have accepted the evidence of TT; and
(c)the primary judge erred by failing to rule that the ACAT’s wrongful acceptance of TT’s evidence over that of Dr Hassall, fatally compromised the ACAT’s assessment of the appellant’s credibility.

The Society lodged a cross-appeal against the orders made by the primary judge, seeking orders that the appeal from the ACAT to the Supreme Court be dismissed. The grounds for the cross-appeal are:

Ground 1
(1)Her Honour erred by:
(a) holding that even where as here, there had been a complete denial of procedural fairness – and thus in truth a failure to exercise the jurisdiction to make penalty orders – it was still necessary, in order for the Tribunal to conduct a fresh hearing on penalty, to satisfy the requirements of s 56(c)(iii) of the ACT Civil and Administrative Tribunal Act 2008 (ACT) (“the ACAT Act”);
(b) failing to hold that by reason of the denial of procedural fairness in the circumstances of this case, the Tribunal had not in fact ever truly exercised its jurisdiction to make penalty orders under s 425 of the Legal Profession Act 2006 (ACT) and that accordingly:
(i)the Tribunal was not functus officio; and
(ii)the Tribunal had a discretion, if not a duty, quite independently of s 56(c)(iii) of the ACAT Act, to exercise its unexercised jurisdiction by holding a fresh hearing on penalty.

Ground 2
(2)Her Honour should have held that:
(a) where as here, there had been a complete denial of procedural fairness – and thus in truth a failure to exercise the jurisdiction to make penalty orders – it was not necessary, in order for the Tribunal to conduct a fresh hearing on penalty, to satisfy the requirements of s 56(c)(iii) of the ACAT Act;
(b) by reason of the denial of procedural fairness in the circumstances of this case, the Tribunal had not in fact every truly exercised its jurisdiction to make penalty orders under s 425 of the Legal Profession Act and that accordingly:
(i)the Tribunal was not functus officio; and
(ii)the Tribunal had a discretion, if not a duty, quite independently of

s 56(c)(iii) of the ACAT Act, to exercise its unexercised jurisdiction by holding a fresh hearing on penalty.

Ground 3
(3)In the alternative to Grounds 1 and 2, even if it was necessary to satisfy the requirements of s 56(c)(iii) of the ACAT Act, her Honour erred in misunderstanding the proper nature of the test to be applied under that section by finding that:
(a) the Tribunal’s premature and inadvertent making of the penalty orders absent a penalty hearing constituted an ordinary error; and
(b) the Tribunal’s premature and inadvertent making of penalty orders absent a penalty hearing did not constitute extraordinary circumstances which made it appropriate for the Tribunal to set aside the penalty orders and reopen the penalty hearing under s 56(c)(iii) of the ACAT Act.

Ground 4
(4)In the alternative to Grounds 1 and 2, even if it was necessary to satisfy the requirements of s 56(c)(iii) of the ACAT Act, her Honour should have found that:
(a) the Tribunal’s premature and inadvertent making of penalty orders absent a penalty hearing did not constitute an ordinary error; and
(b) the Tribunal’s premature and inadvertent making of penalty orders absent a penalty hearing constituted extraordinary circumstances which made it appropriate for the Tribunal to set aside the penalty orders and reopen the penalty hearing under s 56(c)(iii) of the ACAT Act.

Ground 5
(5)In the alternative to Grounds 1 and 2, her Honour further erred:
(a) by finding that scenarios involving an error of the kind in question occur frequently (J [145]), when in truth there was no evidence to support that conclusion and the conclusion is incorrect;
(b) by finding that the appeal and review processes would be thrown into chaos if Tribunals were to reopen their proceedings in such scenarios (J [147]), when in truth there was no evidence to support that conclusion and the conclusion is incorrect; and
(c) consequential upon making the findings in (a) and (b) above, by taking those findings into account when deciding that the Tribunal had erred in setting aside the penalty orders and reopening the penalty hearing under s 56(c)(iii) of the ACAT Act.

Ground 6
(6)In the alternative to Grounds 1 and 2, her Honour should have:
(a) held that there was no evidence to deny that the circumstances of this case were extraordinary within s 56(c)(iii); and
(b) held that the Tribunal had not erred in setting aside the penalty orders and reopening the penalty hearing under s 56(c)(iii) of the ACAT Act.

These grounds of appeal may be summarised as raising two propositions:

(a)the ACAT was not functus officio because it had not exercised its jurisdiction on penalty on 24 January 2013; and
(b)that reopening of the proceedings in the ACAT was permitted by s 56(c)(iii) of the ACAT Act.

The proceedings in the ACAT

The proceedings in the ACAT were commenced by an Application for Disciplinary Action pursuant to s 419 of the Legal Profession Act 2006 (ACT) and dated

18 August 2010. After extensive procedural steps, which it is unnecessary to set out here, the matter proceeded to hearing in the ACAT based on a Second Further Amended Application for Disciplinary Action dated 6 December 2011. The hearing commenced on 23 September 2011 and occupied seven hearing days before concluding on 23 February 2012. The appellant was represented by senior counsel throughout the hearing.

There was an agreement between the appellant and the Society, communicated to the ACAT, that this initial hearing would be limited to determining whether the grounds of the complaint against the practitioner were made out, and, if so, it was anticipated that a further hearing would occur to determine what orders should be made by the ACAT based on its findings. For convenience, we will refer to these two aspects of the proceedings as the hearing on liability and the hearing on penalty respectively. Unfortunately, in the period that elapsed between the hearing on liability and the ACAT handing down its decision on 24 January 2013 and reasons on 30 January 2013, the ACAT apparently overlooked the agreement that a second hearing would take place if any of the grounds of complaint against the practitioner were upheld, and on 24 January 2013 it purported to make the orders recommending that the practitioner’s name be removed from the roll of local practitioners, and that he be publicly reprimanded.

After the ACAT handed down its decision on 24 January 2013 and reasons on 30 January 2013 the practitioner appealed, complaining of a breach of procedural fairness by the ACAT. Subsequently, and, at the invitation of the Society, the ACAT reopened the proceedings to allow the practitioner an opportunity to present evidence and submissions concerning the appropriate orders to be made under s 425 of the Legal Profession Act 2006 (ACT) (the penalty hearing). The practitioner declined to present further evidence or submissions in the penalty hearing, contending that the ACAT was functus officio.

On 8 July 2013, the ACAT made further orders recommending that the name of the practitioner be removed from the local roll, and also reprimanding him.

Background to the complaints

The key background facts and allegations are set out in the primary judge’s reasons, and they have not been challenged in this appeal. For convenience, we will gratefully adopt her Honour’s summary:

9.In March 2007, [TT] and her former husband instructed the practitioner to act for them. [TT] said that she paid the practitioner $6,000 in cash.

10.   [TT] alleged that thereafter she made weekly cash payments to the practitioner of          $1,000 and then $500 until December 2008 (a total of about $75,000).
11.   There was no dispute that [TT] paid the practitioner $6,000 on 6 January 2009.
12.[CC] engaged the practitioner to act for her brother, [NC]. [CC] alleged that, between May 2007 and June 2009, she paid more than $90,000 to the practitioner. The practitioner said that ten invoices totalling $46,231.80 were issued, but [CC] said that she received only four of the 10 invoices, reflecting a total amount of $15,561.00. On 1 July 2008, she paid the practitioner $26,000 for trial fees. There is no dispute that, at or about that time, she had a conversation with the practitioner to the following effect (AB 1014 [77]):
Practitioner:    You need to give me money in trust for the trial. [Barrister   engaged by the appellant] wants to see that there is money in   trust for his fees before the trial.
[CC]:               OK, how much do you need?
Practitioner:     $20,000 for ... [the barrister’s] fees and $6,000 for my fees for the trial.
[CC]:OK – I’ll give you $20,000 for ... [the barrister’s] fees and $6,000 for your fees. I’ll pay you the extra $3,000 for your fees at the time of the trial.

13. In late 2007 the practitioner began to act for [GC]. In November 2008, he received a settlement cheque for $123,091 in relation to the sale of [GC]’s house.
14. The practitioner denied that he was under financial stress in 2009, but the Council furnished evidence from a financial analyst showing that the practitioner had exceeded his credit card limits, his office rent was paid irregularly, he was unable to service loans and that he banked more money than he disclosed to the Australian Taxation Office.
15.In relation to the $6,000 that [TT] paid to the practitioner on 6 January 2009, [TT] said that the payment was a loan. She said that, when the practitioner asked for a further loan, she refused, and she sought repayment of the first loan. On 28 April 2009, the practitioner gave [TT] a cheque for $3,500 by way of part payment. These monies were drawn on [GC]’s trust monies.
16.[GC] alleged that, on 10 March 2009, the practitioner asked her for a loan of $10,000. He made out a cheque to her for $15,000 drawn on her trust funds, which enabled her to lend $10,000 to the practitioner on 19 March 2009. In late August/early September 2009, he asked her for a further loan of $10,000, but she refused. The practitioner conceded that, on 31 August 2009, he transferred $10,000 from [GC]’s trust monies to his office account. [GC] said that this transfer was unauthorised.

17.   On 9 September 2009, [GC] made a complaint. On 11 September, records were collected from the practitioner’s office.
18.   On 1 October, [CC] made a complaint.
19. It was agreed that on 30 November 2009, the practitioner responded to the complaints     by [GC] and [CC].
20.Between 31 March 2010 and 12 April 2010, [GC]’s new solicitors corresponded with the practitioner regarding the release of [GC]’s files and the return of her trust monies.
21.On 1 July 2010, a manager was appointed to the practitioner’s practice and on 5 July the manager gained access to the practitioner’s office.
22.On 18 August 2010, the Law Society filed an application for disciplinary action in the tribunal. As noted above, the proceedings before the tribunal were finally decided on

8 July 2013.

The proceedings before the primary judge

The practitioner appealed from the decision of the ACAT. The appeal was, as already noted, removed from the ACAT into the Supreme Court. The practitioner pleaded some 30 grounds of appeal, but we will only touch upon those relevant to the present appeal. The practitioner claimed that the ACAT had erred by “ignoring the evidence of

Dr Doug Hassall of counsel, whose evidence directly contradicted that of [TT]. Dr Hassall’s gave (sic) evidence that he had not received payment for his services on behalf of [TT] and [KT]. The ACAT made no mention of Dr Hassall’s evidence and found that the payment had been made” (Ground 2.4). The practitioner also alleged that the ACAT fell into error by failing to afford him procedural fairness by not providing him an opportunity to be heard on “penalty” after having found him guilty of professional misconduct (Ground 4).

In support of Ground 2.4 the practitioner provided the following written submissions to the primary judge:

32. One set of allegations before the Tribunal concerned a payment of $6,000.00 said to have been made by [TT] to the appellant for counsel’s fees in March 2007. It was alleged that the appellant had failed to deposit the sum into his trust account, or issue a trust receipt.
33.The counsel said to have received the payment is Dr Douglass Hassall [sic]. Dr Hassall gave evidence by way of affidavit that he had not been paid for any of the work he undertook for the [complainants TT and KT], save for the sum of $3,000.00 for advice, paid for by [KT]. Under cross-examination he confirmed that his understanding was that any fees to be paid would be paid by [KT].

34. The respondent submitted that [TT]’s evidence ought to be preferred to that of Dr Hassall. Dr Hassall is a practising barrister in good standing. He has practised in the Australian Capital Territory for many years and enjoys the respect and trust of its Courts. His evidence was not challenged in cross-examination and the respondent made no application to treat him as an unfavourable witness. The submission that his evidence ought to be rejected, in the absence of compelling reason, was an outrage. The submission was wholly inappropriate and should not have been made, much less entertained by the Tribunal.
35.In the course of her evidence [TT] confessed that she had filed a fraudulent Financial Statement in proceedings before the Federal Magistrates Court. The Financial Statement is a formal document which carries the status of evidence. It must be sworn or affirmed in the same manner as an affidavit. She admitted that she understood that the document was important and that she had sworn its contents on oath. She then admitted that the Financial Statement omitted the significant income derived from a bridal cleaning business she conducted. She admitted that the omission was not an error, but a deliberate attempt to conceal the income and hence mislead the court. By doing so, [TT] not only admitted to having perjured herself in the Federal Magistrates Court, but in the Tribunal itself mere moments earlier.

36.The significance of these admissions cannot be overstated. [TT] admitted that her own testimony before the Tribunal as to the accuracy and truthfulness of the Financial Statement was a lie. She did not volunteer the falsehood of the document in her evidence in chief. Indeed, she confessed it only when she was clearly trapped in cross-examination.
37.In the Tribunal’s reasons, Dr Hassall’s denial that he received payment was not directly addressed. However, the Tribunal found at 95 that he had been paid. The word of a barrister in good standing should not be lightly disregarded by a Court or Tribunal. That the Tribunal would prefer the word of a witness as tainted as [TT] over that of Dr Hassall is not only absurd but unjust. The decision effectively slanders an upstanding member of the profession and undermines the respect and trust which has persisted between the independent Bar and Courts and tribunals since well before federation.
38.Other than [TT]’s highly dubious word, there is no evidence that the payment of $6,000.00 was ever made. As her evidence should have been rejected, it follows that the finding that the payments were made was made in error. In consequence, the findings that the practitioner had failed to deposit the funds into trust and issue receipts were also in error.

The following oral submissions were made to the primary judge concerning Ground 2.4:

MR CRISPIN:          Ground 2.4 concerns where ACAT has accepted the evidence of a   witness.
HER HONOUR:      That being [TT], is it?
MR CRISPIN:         Yes, indeed. That evidence being directly contrary to evidence given   by a practitioner in this Territory of good standing.
HER HONOUR:      That being Dr Hassall?
MR CRISPIN:          Yes, indeed. I should also add that Dr Hassall’s evidence was not   challenged under cross-examination.
HER HONOUR:       Because what Dr Hassall said that he was paid $3,000 so what was   the conflict?
MR CRISPIN:          It concerned a sum of money which the witness said she had been   paid to the practitioner and then had been paid by the practitioner to   Dr Hassall.
HER HONOUR:       So [TT] said she paid $6,000 to the practitioner. Is that what you’re e   (sic) saying?
MR CRISPIN:         Yes, which was then paid to the practitioner – to Dr Hassall.
HER HONOUR:       That’s what [TT] said, is it?
MR CRISPIN:          Yes.
HER HONOUR:       So she said she paid $6,000 to the practitioner who then paid it to   who?
MR CRISPIN:          To Dr Hassall.
HER HONOUR:       To Dr Hassall, right.
MR CRISPIN:          Yes.
HER HONOUR:       What, without her authority or something was it?
MR CRISPIN:          No, without it being recorded in the trust account.
HER HONOUR:       Yes. All right.
MR CRISPIN:          Doctor Hassall gave sworn testimony to the effect that he had never   been paid.
HER HONOUR:       He had not been paid any of it.
MR CRISPIN:          Yes. And that evidence by Dr Hassall was not rejected by the Tribunal. They appear to have forgotten about it. It’s not mentioned – it’s not referred to in the judgment at all.
HER HONOUR:       Right. Let me just have a look at the Tribunal’s – where are the Tribunal’s reasons in relation to that to be found?
MR CRISPIN:          There’s a section dealing with the credibility of “witnesses”, your Honour, at the beginning of the judgment. Just one moment while I find the correct page.
MR BEAUMONT:    Paragraph 91 of the judgment, your Honour, is the immediate reference.
HER HONOUR:      What page of your Appeal Book is that?
MR CIRSPIN:         And I should say it’s also dealt with at paragraph 23 which is at page 44 of the Appeal Book.
MR BEAUMONT:    The first one is page 60.
MR CRISPIN:          The way the Tribunal has written those reasons is a tad confusing, your Honour, but if your Honour looks at paragraph 95 there’s a reference to – “He has asserted that he would withdraw proceedings unless paid”. That was an assertion given in evidence by Dr Hassall, rather than by the appellant. It would appear that the two different practitioners have been conflated to some degree in this part of the section.
HER HONOUR:       All right. So I just need to understand that [TT] was saying that she pays $6,000. Her note says that $3,000 was for Dr Hassall. That’s in paragraph 91. The Tribunal found that Dr Hassall had been paid. Doctor Hassall said that he - - -
MR CRISPIN:          I will say, your Honour, you will not find in the judgements (sic) anywhere the words said by Dr Hassall.
HER HONOUR:       Sorry?
MR CRISPIN:          I should say, your Honour, you will not find in the ACAT judgment anywhere any direct dealing with the evidence given by Dr Hassall.
HER HONOUR:       Right. Okay.
MR CRISPIN:         It would appear that his evidence was simply overlooked or forgotten.
HER HONOUR:      Well, let me just have a look at the respondent’s submissions in that regard. I suspect it might be easier just to go through these sequentially, otherwise there’s too much.
MR CRISPIN:          It may have been.
HER HONOUR:       Looking backwards and forwards.
MR CRISPIN:          The only reason I bring up this ground now, your Honour, is that it’s an example where – yes, it’s an issue dealing with the credibility of witnesses but it’s what might be regarded as a rather extraordinary one. It’s one which would – if made out – would justify the intervention of an appellant court even with the usual caveats on the reluctance of Appeal Courts who intervene in matters of credit. It is a conflict between a witness who has been caught and had confessed to perjury and that of a barrister of this court (sic) in good standing of many, many years. It’s certainly not what one might think of as an ordinary issue of credibility.
MR BEAUMONT:    Your Honour, with my friend’s indulgence could I just correct a reference. If your Honour is looking at our submissions on this topic?
HER HONOUR:       Yes.
MR BEAUMONT:    Page 20, paragraph 114.
HER HONOUR:       Yes.
MR BEAUMONT:    That reference to where Dr Hassall proposes that he was paid $3,000 for his opinion it says 5(a)(b) 1024 – that’s a typo, I apologise – it should be 5(a)(b)1042, at paragraph 9.
HER HONOUR:       So Dr Hassall did depose that he was paid $3,000 for his opinion?
MR BEAUMONT:      Yes, indeed, your Honour. Yes.
HER HONOUR:       And that appears to be consistent with the note.

MR BEAUMONT:    Yes.
HER HONOUR:       There was a note apparently from - - -
MR BEAUMONT:    [TT].
HER HONOUR:       - - - [TT] to that effect.
MR CRISPIN:         However, your Honour, Dr Hassall gave evidence that he had received a sum of $3,000 from [KT] – not [TT] – and at that stage they were going through a divorce. So they were not the same and that he required a further amount of funds to continue to act and it’s that further amount of funds that is the subject of this controversy.
HER HONOUR:       Is it?
MR CRISPIN:          Yes.
HER HONOUR:       Well, I’m not sure Mr Beaumont agrees with that.
MR CRISPIN:          Well, he may not agree with it, your Honour, but certainly they’re the subject of the allegation that was made.
HER HONOUR:       You’re saying it’s a different $3,000?
MR CRISPIN:          It is, indeed, a different $3,000 but I’m happy to deal with that when we get to the sequential order.
HER HONOUR:       yes.

Later in his oral submissions, counsel for the practitioner returned to this issue:

MR CRISPIN: No. Your Honour it’s our submission that when handling evidence –the evidence of a witness who had made those admission and only made them when caught that the entire process completely miscarried. To compound the error, [TT]’s evidence, about payments that were made for payment of Dr Doug Hassall were directly contrary to his own testimony. In other words - - -

HER HONOUR:       So I think you were speaking about Dr Hassall previously.
MR CRISPIN:          Yes.
HER HONOUR:       So he said he didn’t receive any money. She said that she paid what - $3,000 – she paid $6,000 of which $3,000 was for Dr Hassall or something to that effect?
MR CRISPIN:          If I may your Honour, it was common ground that there was an initial payment by [TT]’s then ex-husband of about $3,000 to obtain an initial opinion from Dr Hassall. Doctor Hassall then expressed the view that he would not continue to act unless there were funds put in trust for him to do so, given the somewhat precarious nature of the finances that were revealed thus far.
HER HONOUR:       Right.
MR CRISPIN:          That that’s not unsurprising. [TT] then says that she paid a further sum of money – that she paid a sum of money herself. Not the initial money that was paid by her husband to the appellant.
HER HONOUR:       That’s the $6,000 was it?
MR CRISPIN:          Yes. And that he then made payments to Dr Hassall. And Dr Hassall gave uncontested evidence that he never received any further payment, that he only ever received that initial sum from the ex-husband. Doctor Hassall’s evidence is not addressed in the judgment at all. He is not referred to. His evidence is not referred to at all. There appears to be conflation of the appellant and Dr Hassall when dealing with this allegation and there is eventually a finding that it was, indeed, made – the payment was indeed made.
HER HONOUR:       So where does that appear?
MR CRISPIN:          You still go to paragraphs 92 to 97. If it appears quite confusing to your Honour, it is quite confusing to us as well, because as I said there does not appear to be a complete conflation of [the practitioner] and Dr Hassall. But his express denial that the $6,000 was paid towards Dr Hassall’s – is what is eventually rejected. In other words, your Honour, the uncontested word of an experienced counsel of this Territory in good standing has been rejected in favour of the testimony of a self-confessed perjurer. That is not only an extraordinary finding. That is an outrageous finding.

The primary judge dealt with the issue as follows:

88.In 2007, [TT] and her former husband [KT] instructed the practitioner to act for [KT] in relation to an appeal. Dr Hassall of counsel was briefed. [TT] said that, in about March 2007, the practitioner asked her to pay $6,000 to obtain an opinion from

Dr Hassall and, on about 27 March 2007, she paid that sum. From that sum, $3,000 was ultimately paid to Dr Hassall for a written opinion.
89.[TT] said that, from about 9 April 2007 to 25 June 2008, she paid the practitioner $1,000 a week in cash. From about 9 July 2008, the weekly amount was reduced to $500, which [TT] paid until December 2008. By that stage, she had made cash payments to the practitioner totalling about $75,000 (including the sum of $6,000). The practitioner had estimated that the cost of the matter would exceed $50,000.
90. The council alleged that, apart from one sum of $1,000 deposited on 5 October 2008, none of the cash payments made by [TT] found their way into the practitioner’s trust account, nor did the practitioner issue receipts for the payment or invoices for legal work undertaken for [TT].
91.The practitioner agreed that he had received $6,000 from [TT], but he denied that it was for Dr Hassall’s fees, asserting that “to the best of (his) recollection” it was paid in relation to separate proceedings in which [TT] and her former husband were defendants to an action for possession of their property. He also denied receiving regular cash sums of $1,000 and $500.
92.The tribunal accepted in evidence of [TT] that she paid $6,000 to the practitioner so that he could obtain an opinion from Dr Hassall of counsel, and found that the practitioner did not pay the money into his trust account. The tribunal concluded that [TT] was a credible and reliable witness when she said that she had made regular cash payments. In reaching this conclusion, the tribunal considered the fact that [TT] (by her own admission) had failed to completely disclose her income in a financial statement prepared for Family Court proceedings: AB 59 (J [88]). The tribunal accepted [TT]’s evidence that the practitioner had assisted her to complete the false financial statement, and had encouraged her to conceal the fact that she was making weekly cash payments to the practitioner. The tribunal had regard to documentary evidence that supported [TT]’s version of events, including contemporaneous handwritten notes made by [TT], a facsimile sent by [TT] to [KT] in May 2007 (in which [TT] stated that she was making weekly payments) and communications between [KT] and the practitioner in which [KT] referred to payments that were being made by [TT] to the practitioner in relation to the appeal.
93.On the appeal, the practitioner contended that the evidence of [TT] should have been rejected for two reasons. First, because she admitted that she had filed a false financial statement in Family Court proceedings. Second, because her evidence was “directly contradicted” by that of Dr Hassall of counsel.
94.As to the false Family Court document, [TT] volunteered that she had produced a false document, and explained the circumstances. The tribunal was entitled to accept her explanation.
95.The practitioner submitted that, although [TT] said that she had paid $6,000 to the practitioner for the purpose of Dr Hassall providing a written advice, Dr Hassall said that he did not receive the sum of $6,000.
96.The practitioner’s submission that Dr Hassall’s evidence “directly contradicted” that of [TT] is not substantiated. In fact, it appears that Dr Hassall was paid $3,000 for his opinion in relation to the appeal, and that the money was paid by [KT], although [TT] had undertaken to pay the costs of the appeal: AB1042.
97.However, the issue of whether Dr Hassall received the sum of $6,000 and the source of any payment to him was largely irrelevant to an assessment of [TT]’s credit. The only issue was whether [TT] should be accepted when she said that she paid that sum to the practitioner for the purpose of paying Dr Hassall to provide a written opinion on the appeal. If she did pay the money to the practitioner, then it should have found its way into the practitioner’s trust account.
98.The practitioner admitted that he received a sum of $6,000. The only real dispute concerned the purpose for which that money was paid. The practitioner made a vague assertion that it related to separate proceedings, but failed to produce evidence to substantiate that claim.
99.On the other hand, [TT] produced a significant quantity of contemporaneous documentary material, which provided strong corroboration of [TT]’s evidence that she made regular payments.
100.The tribunal’s findings turned on whether the evidence of [TT] should be accepted. There was substantial documentary material supporting [TT]’s account of events. The tribunal was entitled to accept her as a credible witness. The tribunal found the practitioner to be a witness who lacked credibility in relation to most matters and, consistent with that approach, it rejected is (sic) concerning these matters. The tribunal was entitled to accept the evidence of [TT], reject the evidence of the practitioner and find that each of these grounds was made out.

Consideration – the practitioner’s appeal

We have quoted extensively from the practitioner’s pleadings and submissions before the primary judge to demonstrate that the issue the practitioner now seeks to agitate concerning the credibility of TT is very different to, and in one respect entirely inconsistent with, the issues as they were agitated before the primary judge. Before the primary judge, the practitioner challenged what was said to have been the finding

at [95] of the ACAT’s reasons of 30 January 2013 that Dr Hassall’s fees had in fact been paid from the $6,000 said to have been paid by TT to the practitioner. This submission was, incidentally, based on a misconception of the ACAT’s findings, because the finding of the ACAT at [95] of its reasons is a finding that $6,000 was paid by TT to the practitioner (i.e. the appellant), which of course was the fact disputed by the practitioner. The ACAT did not make a finding that this sum was paid to Dr Hassall. The issue that the primary judge was asked to consider was whether the evidence of TT that she paid $6,000 to the practitioner, at least part of which was for payment of Dr Hassall’s fees, was inconsistent with Dr Hassall’s evidence that he had not been paid for his services, with the exception of a cheque in the sum of $3,000 which was given to him personally by KT.

In the proceedings before the primary judge, the practitioner accepted that the amount of $3,000 paid by KT to Dr Hassall was a separate sum to the $6,000 said to have been given to him by TT. In the present appeal, the practitioner’s submissions were based on the opposite proposition, that if TT had paid $6,000 to the practitioner, then the cheque for $3,000 given to Dr Hassall by KT must have been drawn from that sum of $6,000. In other words, in this appeal the practitioner seeks to link the alleged payment of $6,000 by TT to him with the accepted payment of $3,000 to Dr Hassall by KT so as to cast doubt on TT’s evidence concerning the payment of the $6,000. This must be contrasted with his approach before the primary judge, where he submitted that the two were entirely separate.

Of greater significance, however, is the fact that the alleged inconsistency between the evidence of TT and that of Dr Hassall, which the primary judge was called upon to consider is different to the inconsistency the practitioner now alleges. Before the primary judge the inconsistency was said to be found in TT’s evidence of payment of the $6,000 to the practitioner, at least part of which was for Dr Hassall’s fees, and

Dr Hassall’s evidence that apart from the $3,000 he received from KT he had not been paid. In these proceedings, the practitioner submitted that the inconsistency is to be found between TT’s evidence and the evidence of Dr Hassall that payment for his advice came from KT and not TT.

At no point in her evidence did TT claim to have personally paid Dr Hassall for his advice or for any other service he may have rendered. TT’s evidence was to the effect that the practitioner told her that he needed “$6,000 ... upfront to get an opinion from Doug Hassall”. TT said that she gave the practitioner the requested sum of $6,000, but she never purported to say from her personal knowledge how that money was dealt with by the practitioner. There was no evidence that TT was aware of the payment of $3,000 by KT, her estranged husband, to Dr Hassall, and the evidence concerning the conference at which KT gave Dr Hassall the cheque for $3,000 for his opinion was to the effect that TT was not present.

It is very clear from the above that there is no inherent inconsistency between the evidence of TT and that of Dr Hassall. The evidence is reconcilable on the basis of two separate payments, one by TT and one by KT. The practitioner, in fact, before the primary judge, embraced the proposition that there must have been two separate payments, if the evidence of TT was to be believed.

The practitioner accepted that he had to demonstrate an error on the part of the primary judge before this Court could interfere with her Honour’s findings. The error which he alleged was made by the primary judge for the purposes of these proceedings was the failure of the primary judge to recognise an inconsistency between the evidence of TT and that of Dr Hassall over who paid for Dr Hassall’s advice. Each of the three grounds of appeal depends upon this Court being satisfied that the primary judge made the alleged error. For two reasons the practitioner’s appeal should be dismissed. First, the supposed inconsistency the practitioner now identifies was not an issue raised by the practitioner in the proceedings before the primary judge, so that she did not make the supposed error alleged by the practitioner. Secondly, an analysis of the evidence reveals that there is no inherent inconsistency of the type now alleged by the practitioner.

The approach taken by the practitioner in his appeal is curious and, we think, misconceived. The practitioner submitted that if the primary judge erred in failing to find that there was an inherent conflict between the evidence of TT and that of Dr Hassall (and to find, by inference, that TT had lied), this failure would affect the ACAT’s findings with respect to the practitioner’s credibility, with the result that not only those complaints concerning TT would fall, but all of the other complaints concerning the other complainants would also fall like a row of dominoes. In the circumstances of the present case that is a dubious proposition. The findings of fact made by the ACAT, and not disturbed by the primary judge, concerning the complaints not relating to TT would remain. The bulk of the reasons given by the ACAT for concluding that the practitioner was not a credible witness would stand, including a finding that the practitioner lied on oath in denying that he had engaged in a sexual relationship with TT, which did not depend on the word of TT alone, being supported by telephone and text message records. A review of the ACAT’s reasons also reveals that the ACAT did not rely upon its findings concerning the practitioner’s credit when finding the practitioner guilty of at least two grounds of complaint (Grounds 4, 7 and 7A). The practitioner’s approach to this appeal may be based upon his recognition of the difficulty in an appeal such as this, of disturbing the findings of fact and findings on credibility made at first instance. It must be accepted that it is difficult to successfully challenge such findings, but where the grounds of appeal do not directly challenge findings concerning facts, an appellate court is entitled to approach those facts as unchallenged.

We would dismiss the practitioner’s appeal.

The cross-appeal by the Society

It is accepted by both parties that the ACAT failed to afford the practitioner procedural fairness when it purported to impose a penalty on 24 January 2013. It appears that this occurred because the ACAT overlooked the agreement that there should be a separate hearing on penalty if any of the alleged complaints were upheld. The ACAT sought to remedy this defect in the proceedings by reopening the proceedings, setting aside the orders concerning penalty that it made on 24 January 2013, and conducting a further hearing on the issue of penalty. The practitioner declined to present any further evidence or submissions, advancing the submission that the ACAT was functus officio and that the further hearing on penalty was a nullity. In the alternative, the practitioner submitted that if the ACAT determined to reopen the proceedings and conduct a further hearing on penalty, that hearing should be conducted by a differently constituted tribunal. In support of the alternative submission the practitioner cited Northern New South Wales FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39 at 42 in which it was said:

If a decision has been set aside for error and remitted for rehearing, it will generally seem fairer to the parties that the matter be heard and decided again by a differently constituted tribunal. This is because the member constituting the Tribunal in the original inquiry or hearing will already have expressed a view upon facts that will have to be determined in the rehearing. The aggrieved party may think that a rehearing before a Tribunal as originally constituted could be worthless, for the member’s views have been stated.

The ACAT reopened the proceedings and gave the practitioner an opportunity to present further evidence and submissions on penalty. The appointment of one of the original three panel members in the ACAT had by then expired, and the further hearing on penalty was conducted by the remaining two members who had sat on the liability hearing. The practitioner did not avail himself of that opportunity, and he did not participate in the further hearing on penalty. On 8 July 2013, the ACAT made orders recommending that the practitioners name be removed from the roll of local practitioners, and that he be subject to public reprimand.

The Society submitted to the ACAT before it reopened the proceedings that it had power under s 56(c)(iii) of the ACAT Act to reopen the proceedings and amend or set aside its previous decision on penalty. It is convenient at this point to set out the terms of s 56 of the ACAT Act:

The tribunal may, by order–
(a)   hear an application jointly with another application that arises from the same or similar facts; or
(b)   make other orders with the consent of the parties to the application or as the tribunal considers necessary or convenient; or
(c)   amend or set aside a tribunal order if–
(i)      the order was made after hearing an application in the absence of a party; or
(ii)      the order is in error in relation to an amount or the name or address of a party, and the tribunal proposes to amend or set aside the order only to correct the error; or
(iii)     extraordinary circumstances make it appropriate to amend or set aside the order; or

(d)   take any other action in relation to an application–
(i)      that the tribunal considers appropriate; and
(ii)      that is consistent with this Act or an authorising law.

Before this Court, and before the primary judge, it was submitted by the Society that as an alternative to the powers vested in the ACAT by s 56, the ACAT also had power to reopen the proceedings and take further evidence by virtue of the principles referred to by the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 (Bhardwaj). It appears from the reasons of the ACAT that a similar submission was made to it. The ACAT, in its reasons of 28 August 2013, refers to the decision in Bhardwaj, and the Society’s reliance on that decision for the proposition that, “not only was there a power to remake a decision, but there was in fact a duty to do so”.

It is useful at this point to consider the decision in Bhardwaj. The respondent

Mr Bhardwaj applied to the Immigration Review Tribunal (the IRT) for review of a decision by a delegate of the Minister to cancel his student visa. The IRT proposed dealing with the matter on 15 September 1998 and advised the respondent accordingly. On 14 September 1998, the IRT received a facsimile letter from the respondent’s agent stating that the respondent was ill and unable to attend the next day, and requesting an adjournment. By an administrative oversight that letter did not come to the attention of the member of the IRT to whom the matter had been assigned. The IRT dealt with the matter adversely to Mr Bhardwaj, and notified his agent of the decision. At this point the IRT’s attention was drawn to the letter of 14 September. A new hearing date was arranged and, after hearing from the respondent, the order cancelling his visa was revoked by a further order made in October 1998. The Minister appealed to a single judge of the Federal Court, and subsequently to the Full Court, on the ground that the IRT had been functus officio after deciding the matter adversely to Mr Bhardwaj. The respondent Minister was unsuccessful in these appeals, and appealed further to the High Court.

The Migration Act 1958 (Cth) (the Migration Act) provided the statutory scheme under which the IRT was required to operate. Relevantly, s 353(1) of the Migration Act required the IRT to “pursue the objective of providing a mechanism of review that is fair, just, economical, informed and quick”. In concluding a review the IRT was obliged to give the applicant an opportunity to appear before it to give evidence and present arguments: s 360(1).

In his reasons for dismissing the appeal, Gleeson CJ, citing Ridge v Baldwin [1964] AC 40, observed that there is nothing in the nature of an administrative decision which requires a conclusion that a power to make a decision, once purportedly exercised, is necessarily spent. This general proposition, however, must yield to the legislation under which the decision-maker is acting. Gleeson CJ then referred to the decision of the Supreme Court of Canada in Chandler v Alberta Association of Architects [1989] 2 SCR 848, where Sopinka J, speaking for the majority of the Court, said that, as a general rule, a tribunal cannot revisit its own decision because it has changed its mind, or recognises that it has made an error within jurisdiction or because there has been a change in circumstances. The Court, however, held that the principle of functus officio should not be strictly applied if the tribunal has failed to discharge its statutory function and “there are indications in the enabling statute that a decision can be reopened in order to enable the tribunal to discharge the function committed to it by enabling legislation”.

Whilst finality is a powerful consideration, his Honour said, the question is whether the statute under consideration manifests an intention to permit or prohibit reconsideration in the circumstances that have arisen. In considering that question, an examination of the statutory scheme, including the conferring and limitation of rights of appeal, may evince an intention inconsistent with the capacity of the tribunal to reopen proceedings to correct an error.

Gleeson CJ found that the circumstances in Bhardwaj went beyond a denial of procedural fairness, and amounted to a failure to perform its statutory function, because what it had done did not amount to a review under the Migration Act.

In a joint judgment, Gaudron and Gummow JJ also determined that the original decision by the IRT was not a “decision on review” for the purposes of the Migration Act as Mr Bhardwaj was not given a reasonable opportunity to present evidence and argument. To say that the original decision of the IRT was not a “decision on review’, they said, “is simply to say that it clearly involved a failure to exercise jurisdiction, and not merely jurisdictional error constituted by the denial of procedural fairness”.

Later, at [51], they said: “There is, in our view, no reason in principle why the general law should treat administrative decisions involving jurisdictional error as binding or having legal effect unless and until set aside. A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all”, citing Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 at 420. At [53], they continued:

As already pointed out, a decision involving jurisdictional error has no legal foundation and is properly to be regarded, in law, as no decision at all. Once that is accepted, it follows that, if the duty of the decision maker is to make a decision with respect to a person’s rights but, because of jurisdictional error, he or she proceeds to make what is, in law, no decision at all, then, in law, the duty to make a decision remains unperformed. Thus, not only is there no legal impediment under the general law to a decision-maker making such a decision but, as a matter of strict legal principle, he or she is required to do so.

Having considered the position under the general law, Gaudron and Gummow JJ then turned to the provisions of the Migration Act to determine whether it evinced an intention that decisions of the IRT were to be given legal effect unless and until set aside, but found no such legislative intention. Accordingly, the IRT was entitled to make the decision setting aside the decision to cancel Mr Bhardwaj’s visa.

Hayne J, in a separate judgment, agreed with Gaudron and Gummow JJ that what the IRT did in making its original “decision” was not authorised by the Migration Act and did not constitute performance of its duty under that Act. His Honour went on to say, at [155]:

Once it is recognised ... that in September 1998 the Tribunal had not performed the duty imposed on it (to review in accordance with the statutory procedures, including allowing the respondent to be heard) it is clear that not only was there no bar to the Tribunal completing its task by the steps it took in October, it was bound to do so.

Callinan J, in a further judgment, also concluded that in making its original decision in September 1998 the IRT had failed to exercise the jurisdiction it was bound to exercise.

Returning to the present matter, in deciding to reopen the proceedings and take further evidence on the question of penalty, the ACAT clearly relied on the power found in

s 56(c)(iii) of the ACAT Act, and in making its decision relied on the following matters:

a.the Society did not delay in bringing its application to set aside the orders made;
b.there could be no detriment flowing to either party from having those issues revisited prior to the hearing of the pending appeal;
c.it would not be futile to allow each party to file evidence and submissions on the issues of costs and penalty;
d.no third parties would be adversely affected if the ACAT was to make substituted orders;
e.that the interests of justice arguably require that the matter be reopened to determine whether substituted orders should be made;

f. this circumstance has arisen through the fault of neither party;
g.the alternate process to reopening the matter was an appeal which may involve a number of appeals, and would delay finality and incur greater costs for each party;
h.the nature of the costs order made by the ACAT may be said to indicate that the matter was not finalised;
i.the question of penalty, while considered by the fully constituted tribunal, was not decided on the basis of any submissions made by either party;
j.In Cox v Department of Health and Human Services and Others [2010] TASADT 2

(19 May 2010) the notion of functus officio was examined. It was noted that the principle of functus officio, the Latin term for ‘having performed his office’, expresses a policy of the law that there should be finality in litigation. It was noted however, that that doctrine is always subservient to the fundamental requirement that a litigant is to receive a fair hearing and is to have a determination by the court of the case on its merits. A person against whom a charge is made ought to be given a reasonable opportunity of appearing and presenting his case if that principle is not observed, the person affected is entitled to have any determination which affects him set aside; and
k.the proposed substituted orders would not require a revisiting of the substantive issues or findings of fact already made by ACAT.

The primary judge, after considering the decision in Bhardwaj, reviewed the provisions of the ACAT Act, stating:

138.The procedures of the tribunal are governed by goals of simplicity, speed and procedural fairness. Pursuant to s 6 of the ACAT Act, the objects of the Act include ensuring that access to the Tribunal is simple and inexpensive, that applications are resolved as quickly as possible (consistent with achieving justice) and that decisions of the tribunal are fair. Section 7 provides that the tribunal must ensure that its procedures are as simple, quick and inexpensive as is consistent with achieving justice, and must observe procedural fairness. To those ends, the tribunal may determine its own procedures: s 23.
139.On the other hand, the tribunal is designed to function very like an inferior court, and a similar level of protection is provided by way of appeal processes. Under s 61, an order of the tribunal is “made” when it is pronounced or “entered”, and it “takes effect” on the day that it is made. In contrast to the scenario that was considered in Chandler (where the only appeal was available was on a point of law), under s 79(3) of the ACAT Act, a party to an original application may appeal the decision on a question of fact or law. Generally, that will result in the appeal president constituting an appeal tribunal (differently constituted) to review the decision on the original application: s 81. The appeal tribunal may, as the tribunal considers appropriate, deal with the appeal either as a new application or as a review of all or part of the original decision. By consent, or if the tribunal considers it to be appropriate, an appeal may be removed to the Supreme Court: s 83. If a question of law arises on an application or an appeal raises an issue of public importance, the tribunal may refer the question to the Supreme Court: s 84. There is a right to seek leave to appeal to the Supreme Court on a question of fact or law from a decision of an appeal tribunal: s 86.
140.The court-like appeal and review structure applying to the tribunal suggests that, like a court, the principal of finality may have some application to the orders made by the tribunal. As noted in Burrell, that principle serves to protect parties from attempts to re-agitate what has already been decided and provides an incentive to all participants in the adversarial process to “get it right the first time”. Where adequate appeal and review processes apply, there is limited opportunity for conflict between the principle of finality and the entitlement of procedural fairness.
141.The combination of finality and adequate appeal and review processes supports the two key objects and principles behind the ACAT Act: first, ensuring the quick and simple resolution of matters and, second, ensuring fairness.
142.Importantly, s 56 of the ACAT Act refers to the tribunal having the power to set aside an order in only three circumstances: the order was made ex parte, a limited “slip rule” applies, or “extraordinary circumstances make it appropriate to amend or set aside the order”. In the context that a comprehensive appeal and review process is available,

s 56 should be read as providing the only circumstances in which an order can be set aside.
143.It was under s 56(c)(iii) that the tribunal set aside the penalty order in this case, thereby reopening the proceedings.
144.In its decision of a July 2013, the two member tribunal did not specifically address the s 56(c)(iii) question of whether there “were extraordinary circumstances” that “(made) it appropriate” to set aside the penalty order made on 24 January 2013. Rather, it was guided by general considerations of “fairness”. The tribunal’s reasons for setting aside the orders and reopening the proceedings are summarised above. Essentially, the tribunal decided that it was more efficient to reopen the proceedings for the purpose of affording procedural fairness rather than await the outcome of the tortuous appeal procedure that had been instituted. One further matter that was raised by the tribunal, i.e. that the original costs order “may be said to indicate that the matter is not finalised”. The tribunal did not elaborate upon this possibility, and it was not the subject of argument on appeal.
145.It is unnecessary to consider the scope of “extraordinary circumstances”. When an error on the part of any original tribunal is identified to that tribunal, it may accept that it has erred. It would often be more efficient for the original tribunal to reopen the case and re-decide the matter. The frequency with which such a scenario may occur suggests that the circumstances in the present case were not “extraordinary”.
146.The nature of the review and appeal processes in the ACAT Act also informs a consideration of whether the circumstances under consideration constitute “extraordinary circumstances” that make it “appropriate” to set aside an order.
147.Not only were the circumstances in the present case far from “extraordinary” they were not circumstances which indicated that it was “appropriate” to reopen the proceedings. If, in such circumstances, original tribunals reopened their proceedings as a matter of course, then appeal and review processes would be thrown into chaos.

148.In this case, the undoubted greater efficiency associated with the original tribunal reopening the proceedings to correct acknowledged error did not constitute “extraordinary circumstances” that made it “appropriate” to do so.

We would respectfully agree with the observation of the primary judge that the considerations of efficiency referred to by the ACAT do not constitute “extraordinary circumstances” that made it appropriate for the ACAT to set aside its original penalty orders. In our opinion, however, that is not the end of the matter. In our opinion, the ACAT was entitled to revisit the question of penalty as it did, but for different reasons than those which it articulated. In our opinion the circumstances in the present case are closely analogous to those in Bhardwaj; as part of the mandatory procedures the ACAT must apply in exercising its functions, it must “observe natural justice and procedural fairness”: s 7(b) of the ACAT Act. This requirement is consistent with the objects of the ACAT Act, as set out in s 6, which emphasises that the decisions of the ACAT are to be fair, and that the object of the ACAT is to achieve justice. Whilst efficiency and cost effectiveness are also objects of the ACAT Act, it is clear from the terms of ss 6 and 7 that the objectives of providing a fair hearing and a just outcome are as important, if not more so, than objectives of efficiency. The ACAT was obliged to determine the issues which were before it by virtue of the application lodged by the Society and in exercising that jurisdiction, it was required to observe the rules of natural justice and fairness, including allowing the practitioner an opportunity to present evidence and argument on the question of penalty, just as the IRT was obliged to give Mr Bhardwaj an opportunity to present evidence and argument. It is difficult to imagine a more profound breach of procedural fairness than occurred in this case, where the ACAT purported to decide to recommend that the practitioner’s name be removed from the roll without giving him the opportunity to present evidence or argument concerning penalty. In our opinion, in proceeding in the way in which it did, the ACAT failed to perform its statutory function, with the consequence that, subject to the provisions of the ACAT Act, the original decision on penalty handed down on 24 January 2013 was a nullity.

There is nothing in the ACAT Act in our opinion, to suggest that it is the intention of the legislature that such a decision by the ACAT is to be given legal effect unless and until it is set aside. The discretion vested in the ACAT by s 56(c)(iii) of the ACAT Act argues to the contrary, and suggests a legislative intention that the ACAT be entitled to correct an error amounting to a failure to exercise jurisdiction.

In any event, even if we are wrong in the above analysis, we would respectfully disagree with the conclusion of the primary judge that the circumstances in relation to the making of the original penalty decision did not constitute “extraordinary circumstances” making it appropriate that the ACAT set aside its original penalty orders. The relevant circumstances went beyond those expressed by the ACAT, and relevantly included the circumstance that by reason of administrative error the practitioner had not been given an opportunity to present evidence or argument before penalty orders were made. Such a complete failure to accord a party procedural fairness cannot, in our opinion, be characterised as anything other than extraordinary.

We are therefore satisfied that the ACAT was entitled to conduct the hearing on penalty which it conducted in 2013. The practitioner was given a reasonable opportunity to present evidence and argument at that hearing, but he declined the opportunity to do so. The cross-appeal should be upheld, and the decision of the primary judge to remit the matter to the ACAT should be set aside.

There is one final matter which should be addressed. Before the ACAT the practitioner submitted that if the proceedings were to be “reopened”, any hearing on penalty should be conducted by a differently constituted tribunal. The practitioner raised the issue of apprehended bias in support of that submission. The ACAT rejected that submission. We note that none of the grounds of appeal argued by the practitioner before the primary judge challenged that decision of the ACAT. Nevertheless, in the proceedings before the primary judge, the practitioner submitted that if the matter was to be remitted back to the ACAT for further hearing, it should be heard before a differently constituted tribunal. This submission was rejected by the primary judge, and that decision has not been challenged by the practitioner in these proceedings. As such, the question whether the ACAT was correct to rule against the practitioner’s submission on apprehended bias is not raised in these proceedings.

Orders

The appeal by the practitioner is dismissed.

The cross-appeal by the Society is allowed, and orders 1, 2, 3 and 4 made by the primary judge on 24 December 2014 are set aside. In substitution, there will be an order that the appeal from the decision of the ACAT is dismissed. The costs order made by the primary judge on 24 April 2015 is also set aside, and in lieu there is an order that the practitioner pay the costs of the Society in the proceedings before the primary judge.

The practitioner is to pay the costs of the Society of the present appeal and

cross-appeal.

I certify that the preceding forty-seven [47] paragraphs numbered [40] to [86] are a true copy of the Reasons for Judgment of his Honour Justice Burns and his Honour Justice Rangiah.

Associate:

Date: 4 August 2016

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Citations

Legal Practitioner v Council of the Law Society of the ACT [2016] ACTCA 35

Most Recent Citation

Commonwealth of Australia v Stamatov [1999] FCA 105

Cases Citing This Decision

48

Singh & Anor v Minister for Immigration & Anor [2016] FCCA 387

RAHMAN v Minister for Immigration [2015] FCCA 2461

Cases Cited

3

Statutory Material Cited

7

Fox v Percy [2003] HCA 22

Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11

Johnson v Johnson [2000] HCA 48

[2016] ACTCA 35

5 August 2016