Legal Practitioner v The Law Society of the Australian Capital Territory
[2018] ACTSC 29
•23 February 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Legal Practitioner v The Law Society of the Australian Capital Territory |
Citation: | [2018] ACTSC 29 |
Hearing Date: | 16 February 2018 |
DecisionDate: | 23 February 2018 |
Before: | Burns J |
Decision: | See [2] and [22] |
Catchwords: | PRACTICE AND PROCEDURE – APPEAL – Preliminary issue – Appeal against a decision of the Law Society of the Australian Capital Territory – decision to appoint manager of practitioner’s legal practice – nature of appeal – hearing de novo or rehearing – significant question relevant to leading evidence in appeal – statutory interpretation – legislative intention regarding nature of appeal – appeal is not limited to evidence of material before the Law Society during original decision |
Legislation Cited: | Court Procedures Rules 2006 (ACT) r 5052 Legal Profession Act 2006 (ACT) ss 6, 81(1)(a), 474, 479, 480, 487, 488, 489, 490, 493, 514, Chapter 5 |
Cases Cited: | Cinar v Law Society of Tasmania [2014] TASSC 44; 23 Tas R 139 Eastman v The Queen [2000] HCA 29; 203 CLR 1 Veghelyi v Council of the Law Society of New South Wales (1989) 17 NSWLR 669 |
Parties: | Legal Practitioner (Appellant) The Law Society of the Australian Capital Territory (Respondent) |
Representation: | Counsel Mr D Hassall (Appellant) Mr J Buxton (Respondent) |
| Solicitors Nelson and Co Solicitors (Appellant) McInnes Wilsons Lawyers (Respondent) | |
File Number: | SCA 42 of 2017 |
BURNS J:
These proceedings are an appeal under s 514 of the Legal Profession Act 2006 (ACT) (the Act) against a decision of the Law Society of the Australian Capital Territory to make and issue an Instrument of Appointment of a Manager under s 487 of the Act with respect to the practitioner’s legal practice in the Australian Capital Territory. The appeal is set down for hearing on 6 March 2018, but a preliminary issue has arisen regarding the nature of the appeal. The Law Society submits that the appeal is by way of hearing de novo, whereas the practitioner submits that the appeal is either a rehearing based upon the material before the Law Society when it made the decision to appoint a Manager (augmented by such material as the Court may allow) or is a strict appeal. The question is of some significance in the present matter because the Law Society, I am told, proposes to lead evidence of matters that have come to the attention of the Manager since he was appointed. The practitioner intends to object to this material being led on the basis that it was not before the Law Society at the time it appointed the Manager, and the nature of the appeal under s 514 of the Act does not permit the Law Society, as of right, to lead this evidence.
For the reasons which follow, I am satisfied that the submission of the Law Society is correct, and the appeal pursuant to s 514 is not limited to evidence of the material that was before the Law Society at the time that it made its decision to appoint a Manager.
Relevant legislation
The following provisions of the Act are relevant:
6 Purposes of Act
The purposes of this Act are as follows:
(a) to provide for the regulation of legal practice in the ACT in the interests of the administration of justice and for the protection of consumers of the services of the legal profession and the public generally;
(b) to facilitate the regulation of legal practice on a national basis across State and Territory borders.
…
474 Purpose—ch 5
(1) The purpose of this chapter is to ensure that an appropriate range of options is available for intervention in the business and professional affairs of law practices and Australian-registered foreign lawyers for the purpose of protecting the interests of—
(a) the general public; and
(b) clients; and
(c) lawyers, including the owners and employees of law practices, so far as their interests are not inconsistent with the interests of the general public and clients.
(2) It is intended that interventions happen consistently with—
(a) similar interventions in other jurisdictions, especially if a law practice operates in the ACT and 1 or more other jurisdictions; and
(b) other provisions of this Act.
…
479 Circumstances justifying external intervention
External intervention may take place in relation to a law practice in any of the following circumstances:
(a) if a legal practitioner associate involved in the practice—
(i) has died; or
(ii) stops being an Australian legal practitioner; or
(iii) has become an insolvent under administration; or
(iv) is in prison;
(b) for a firm—if the partnership has been wound up or dissolved;
(c) for an incorporated legal practice—if the corporation concerned—
(i) stops being an incorporated legal practice; or
(ii) is being or has been wound up; or
(iii) has been deregistered or dissolved;
(d) in any case—if the relevant council believes, on reasonable grounds, that the practice or an associate of the practice—
(i) is not dealing adequately with trust money or trust property or is not properly attending to the affairs of the practice or an associate of the practice; or
(ii) has committed a serious irregularity, or a serious irregularity has happened, in relation to trust money or trust property or the affairs of the practice; or
(iii) has failed properly to account in a timely way to anyone for trust money or trust property received by the practice for or on behalf of the person; or
(iv) has failed properly to make a payment of trust money or a transfer of trust property when required to make the payment or transfer by a person entitled to the money or property or entitled to give a direction for payment or transfer; or
(v) is in breach of a regulation or the legal profession rules with the result that the record-keeping for the practice’s trust account is inadequate; or
(vi) has been or is likely to be convicted of an offence relating to trust money or trust property; or
(vii) is the subject of a complaint relating to trust money or trust property received by the practice; or
(viii) has failed to comply with any requirement of an investigator or external examiner appointed under this Act; or
(ix) has stopped engaging in legal practice without making provision for properly dealing with trust money or trust property received by the practice or for properly winding up the affairs of the practice;
(e) if any other proper cause exists in relation to the practice.
480 Decision about external intervention
(1) This section applies if the relevant council becomes aware that 1 or more of the circumstances mentioned in section 479 exist in relation to a law practice and decides that external intervention is justified, having regard to the interests of the clients of the practice and to other matters that it considers appropriate.
(2) The relevant council may decide—
(a) for a law practice other than the law practice of a barrister—to appoint a supervisor for the law practice, if the relevant council is of the opinion—
(i) that external intervention is required because of issues relating to the practice’s trust accounts; and
(ii) that it is not appropriate that the provision of legal services by the practice be wound up and ended because of those issues; or
(b) to appoint a manager for the law practice, if the relevant council is of the opinion—
(i) that external intervention is required because of issues relating to the practice’s trust records; or
(ii) that the appointment is necessary to protect the interests of clients in relation to trust money or trust property; or
(iii) that, for this to happen, there is a need for an independent person to be appointed to take over professional and operational responsibility for the practice; or
(c) for a law practice other than the law practice of a barrister—to apply to the Supreme Court under section 494 for the appointment of a receiver for the law practice, if the relevant council is of the opinion—
(i) that the appointment is necessary to protect the interests of clients in relation to trust money or trust property; or
(ii) that it may be appropriate that the provision of legal services by the practice be wound up and ended.
(3) The relevant council may, from time to time, make further decisions in relation to the law practice and for that purpose may revoke a previous decision with effect from a date or event stated by the council.
(4) If the relevant council decides to revoke a decision to apply to the Supreme Court for the appointment of a receiver, the council must apply to the court for the revocation of the appointment.
(5) A further decision may be made under subsection (3)—
(a) whether or not there has been any change in the circumstances in consequence of which the original decision was made; and
(b) whether or not any further circumstances have come into existence in relation to the law practice after the original decision was made.
(6) An appointment of a supervisor or manager for a law practice may be made in relation to the law practice generally or may be limited in any way the relevant council considers appropriate, including, for example, to matters in relation to a particular legal practitioner, associate or to matters in relation to a particular position or a particular subject matter.
NoteAn example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
…
487 Appointment of manager
(1) This section applies if the relevant council decides to appoint a manager for a law practice.
(2) The relevant council may appoint a person as manager.
Note 1For the making of appointments (including acting appointments), see the Legislation Act, pt 19.3.
Note 2In particular, a person may be appointed for a particular provision of a law (see Legislation Act, s 7 (3)) and an appointment may be made by naming a person or nominating the occupant of a position (see s 207).
(3) The appointee must be an Australian legal practitioner who holds an unrestricted practising certificate, and may (but need not) be an employee of the law society.
(4) However, for the appointment of a manager for the law practice of a barrister, the appointee may (but need not) be an employee of the bar association and need not be an Australian lawyer or the holder of an Australian practising certificate.
(5) The appointment must—
(a) identify the law practice and the manager; and
(b) indicate that the external intervention is by way of appointment of a manager; and
(c) state the term of the appointment; and
(d) state any conditions imposed by the relevant council when the appointment is made; and
(e) state any fees payable by way of remuneration to the manager specifically for carrying out his or her duties in relation to the external intervention; and
Note Par (e) is intended to exclude remuneration payable generally, eg as an employee of the law society or bar association.
(f) provide for the legal costs and expenses that may be incurred by the manager in relation to the external intervention.
(6) The appointment may state any reporting requirements to be observed by the manager.
488 Notice of appointment
(1) As soon as possible after a manager is appointed for a law practice, the relevant council must give written notice of the appointment to—
(a) the practice; and
(b) anyone else authorised to operate any trust account of the practice; and
(c) any external examiner appointed to examine the practice’s trust records; and
(d) the ADI with which any trust account of the practice is kept; and
(e) any legal practitioner associate of the practice named under subsection (2) (f); and
(f) anyone whom the council believes, on reasonable grounds, should be given notice of the appointment.
(2) The notice must—
(a) identify the law practice and the manager; and
(b) indicate that the external intervention is by way of appointment of a manager; and
(c) state the term of the appointment; and
(d) state any reporting requirements to be observed by the manager; and
(e) state any conditions imposed by the relevant council when the appointment was made; and
(f) name any legal practitioner associate of the practice who must not participate in the affairs of the practice except under the direct supervision of the manager; and
(g) include a statement that the law practice may appeal against the appointment of the manager under section 514; and
(h) contain or be accompanied by any other information or material prescribed by regulation.
489 Effect of service of notice of appointment of manager
(1) A person commits an offence if—
(a) the person is given notice under section 488 of the appointment of a manager for a law practice; and
(b) the person is a legal practitioner associate of the practice who is named in the notice under section 488 (2) (f); and
(c) the person participates in the affairs of the practice otherwise than under the direct supervision of the manager.
Maximum penalty: 100 penalty units.
(2) Strict liability applies to subsection (1) (a) and (b).
(3) If an ADI is given notice under section 488 of the appointment of a manager for a law practice, then, while the appointment is in force, the ADI must ensure that no funds are withdrawn or transferred from a trust account of the practice unless—
(a) the withdrawal or transfer is made by cheque or other instrument drawn on the account signed by—
(i) the manager; or
(ii) a receiver appointed for the practice; or
(iii) a nominee of the manager or receiver; or
(b) the withdrawal or transfer is made by means of electronic or internet banking facilities by—
(i) the manager; or
(ii) a receiver appointed for the practice; or
(iii) a nominee of the manager or receiver; or
(c) the withdrawal or transfer is made in accordance with an authority to withdraw or transfer funds from the account signed by—
(i) the manager; or
(ii) a receiver appointed for the practice; or
(iii) a nominee of the manager or receiver.
(4) A person commits an offence if—
(a) the person is given notice under section 488 of the appointment of a manager for a law practice; and
(b) while the appointment is in force, the person does any of the following:
(i) deals with any of the practice’s trust money;
(ii) signs a cheque or other instrument drawn on a trust account of the practice;
(iii) authorises the withdrawal or transfer of funds from a trust account of the practice.
Maximum penalty: 100 penalty units.
(5) Strict liability applies to subsection (4) (a).
(6) Subsection (4) does not apply to an ADI, the manager for the law practice, a receiver for the practice or a legal practitioner associate to whom subsection (1) applies.
(7) The manager for a law practice may, for subsection (3) (b), enter into arrangements with an ADI for withdrawing funds from a trust account of the practice using electronic or internet banking facilities.
(8) If an amount is withdrawn or transferred in contravention of subsection (3) from a trust account of the law practice kept with an ADI, the manager for the practice, or a receiver for the practice, may recover the amount from the ADI as a debt in a court of competent jurisdiction.
(9) The manager or receiver for the law practice must pay any amount recovered from the ADI under subsection (8) into the trust account of the practice or another trust account nominated by the manager or receiver.
490 Role of manager
(1) A manager for a law practice may carry on the practice and may do everything that the practice or a legal practitioner associate of the practice might lawfully have done, including, for example, the following:
(a) transacting any urgent business of the practice;
(b) transacting, with the approval of any or all of the existing clients of the practice, any business on their behalf, including—
(i) starting, continuing, defending or settling any proceeding; and
(ii) receiving, retaining and disposing of property;
(c) accepting instructions from new clients and transacting any business on their behalf, including—
(i) starting, continuing, defending or settling any proceeding; and
(ii) receiving, retaining and disposing of regulated property;
(d) charging and recovering legal costs, including legal costs for work in progress at the time of the manager’s appointment;
(e) entering into, executing or performing any agreement;
(f) dealing with trust money in accordance with this Act;
Note This Act is defined in the dictionary.
(g) winding up the affairs of the practice.
NoteAn example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
(2) For the purpose of exercising powers under subsection (1), the manager may do any or all of the following:
(a) enter and remain on premises used by the law practice for or in relation to its engaging in legal practice;
(b) require the practice, an associate or former associate of the practice, or anyone else who has, or has had, control of client files and associated documents (including documents relating to trust money received by the practice), to give the manager either or both of the following:
(i) access to the files and documents the manager reasonably requires;
(ii) information relating to client matters the manager reasonably requires;
(c) operate equipment or facilities on the premises, or to require anyone on the premises to operate equipment or facilities on the premises, for a purpose relevant to the manager’s appointment;
(d) take possession of any relevant material and keep it for as long as may be necessary;
(e) secure any relevant material found on the premises against interference, if the material cannot be conveniently removed;
(f) take possession of any computer equipment or computer program reasonably required for a purpose relevant to the manager’s appointment.
(3) If the manager takes anything from the premises, the manager must issue a receipt for the thing and—
(a) if the occupier or a person apparently responsible to the occupier is present at or near the premises—give it to the occupier or person; or
(b) otherwise, leave it at the premises in an envelope addressed to the occupier.
(4) If the manager is refused access to the premises or the premises are unoccupied, the manager may use whatever appropriate force is reasonable and necessary to enter the premises and may be accompanied by a police officer to assist entry.
…
493 Ending of manager’s appointment
(1) The appointment of a manager for a law practice ends in the following circumstances:
(a) the term of the appointment ends;
(b) the appointment is set aside under section 514 (Appeal against appointment of supervisor or manager);
(c) the appointment of a receiver for the practice takes effect, if the terms of the appointment indicate that the receiver is authorised to exercise the powers and duties of a manager;
(d) the manager has wound up the affairs of the practice;
(e) a decision of the relevant council that the appointment be ended takes effect.
(2) The relevant council may decide that the appointment be ended immediately or with effect from a stated date.
(3) The relevant council must give written notice of the ending of the appointment to everyone given notice of the appointment.
(4) If the appointment ends in the circumstances mentioned in subsection (1) (a), (c) or (e), the former manager must transfer and give the regulated property and client files of the law practice to—
(a) another external intervener appointed for the practice; or
(b) the practice, if another external intervener is not appointed for the practice.
(5) However, the former manager need not transfer regulated property and files to the law practice in compliance with subsection (4) unless the manager’s expenses have been paid to the relevant council.
…
514 Appeal against appointment of supervisor or manager
(1) The following people may appeal to the Supreme Court against the appointment of a supervisor or manager for a law practice:
(a) the practice;
(b) an associate of the practice;
(c) anyone authorised to operate a trust account of the practice;
(d) anyone else whose interests may be adversely affected by the appointment.
(2) The appeal must be filed not later than 7 days after the day notice of the appointment is given to—
(a) the person who proposes to appeal; or
(b) the law practice, if a notice is not required to be served on the person who proposes to appeal.
(3) The appointment of a supervisor or manager for a law practice is not stayed by the filing of an appeal, and the supervisor or manager may continue to exercise his or her functions as a supervisor or manager during the appeal proceeding except to the extent that the Supreme Court otherwise directs.
NoteSee the Court Procedures Rules 2006, r 5052 (Appeals to Supreme Court—general powers).
The powers of the Supreme Court on an appeal under s 514 of the Act are set out in the Court Procedures Rules 2006 (ACT)(Court Procedures Rules):
5052 Appeals to Supreme Court—general powers
(1) For an appeal to the Supreme Court, the court—
(a) has all the powers and duties of the court or tribunal that made the order appealed from; and
(b) may draw inferences of fact; and
(c) may, on special grounds, receive further evidence about questions of fact, either orally in court, by affidavit or in another way; and
(d) may make any of the following orders:
(i) an order confirming, amending or setting aside the order of the court or tribunal appealed from;
(ii) an order remitting the case to be heard and decided again, either with or without the hearing of further evidence, by the court or tribunal in accordance with any direction the court considers appropriate; and
(e) may make any other order that it considers appropriate.
(2) If the Supreme Court orders that it will receive further evidence, and the evidence is to be given by an expert witness, the following rules apply, with necessary changes, to the appeal:
· division 2.12.1 (Expert evidence generally)
· division 2.12.2 (Multiple expert witnesses for same issue)
· rule 1242 (Supplementary expert reports)
· rule 1243 (Expert evidence to be covered by expert report)
· rule 1244 (Expert reports admissible as evidence of opinion etc)
· rule 1245 (Requiring attendance of expert for cross-examination etc)
· rule 1246 (Tender of expert report).
(3) Subrule (1) (c) is subject to rule 5193 (Further evidence on appeal to Supreme Court—Magistrates Court Act 1930, s 214).
It should be noted that the definition of “tribunal” for the purposes of r 5052 includes any entity other than a court from which an appeal may be made to the Supreme Court: see r 5050.
The following provisions of the Legislation Act 2001 (ACT) are also relevant:
138 Meaning of working out the meaning of an Act—pt 14.2
In this part:
working out the meaning of an Act means—
(a) resolving an ambiguous or obscure provision of the Act; or
(b) confirming or displacing the apparent meaning of the Act; or
(c) finding the meaning of the Act when its apparent meaning leads to a result that is manifestly absurd or is unreasonable; or
(d) finding the meaning of the Act in any other case.
139 Interpretation best achieving Act’s purpose
(1) In working out the meaning of an Act, the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation.
(2) This section applies whether or not the Act’s purpose is expressly stated in the Act.
NoteThe Human Rights Act 2004, s 30 (which is about interpreting legislation to be consistent with human rights) is also relevant to interpreting territory laws.
The Law Society’s Submissions
The Law Society submitted that there are no decided cases specifically considering the provisions of s 514 of the Act. It pointed, however, to a number of decisions concerning appeals from a refusal of the Law Society to issue a practising certificate to a legal practitioner as providing guidance on the current issue.
In The Legal Practitioner v Council of the Law Society of the ACT [2011] ACTSC 110 (The Legal Practitioner v Council of the Law Society of the ACT), the Full Court of the Supreme Court of the Australian Capital Territory considered an appeal instituted by a legal practitioner against a decision made by the Council of the Law Society to refused to renew his restricted practising certificate on the basis that he was not a fit and proper person to continue to hold such a certificate. The Full Court was called upon to determine the nature of the appeal. The appeal was brought under s 81(1)(a) of the Act, which simply provides that a person may appeal to the Supreme Court against a decision of a licensing body to refuse to grant or renew a local practising certificate. In determining that the right of appeal granted by s 81(1)(a) was a right to a hearing de novo, the Full Court (Penfold, North JJ and Matthews AJ) said at [21] to [26]:
21. The Law Society Council contended that s 81(1)(a) of the Act provides for an appeal by way of a hearing de novo. The parties are not confined to the evidence which was before the Law Society. The opinion of the Court is substituted for the opinion of the Law Society. In the present appeal the Law Society sought to introduce evidence of events which occurred after the decision of the Law Society was made on 3 June 2010.
22. Whether the appeal is intended to be by way of hearing de novo or otherwise depends on the statutory intent. In Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 (Sperway), Mason J said at 621-622:
Where a right of appeal is given to a court from a decision of an administrative authority, a provision that the appeal is to be by way of rehearing generally means that the court will undertake a hearing de novo, although there is no absolute rule to this effect. … There are, of course, sound reasons for thinking that in many cases an appeal to a court from an administrative authority will necessarily entail a hearing de novo … The nature of the proceeding before the administrative authority may be of such a character as to lead to the conclusion that it was not intended that the court was to be confined to the materials before the authority. There may be no provision for a hearing at first instance or for a record to be made of what takes place there. The authority may not be bound to apply the rules of evidence or the issues which arise may be non-justiciable. Again, the authority may not be required to furnish reasons for its decision. In all these cases there may be ground for saying that an appeal calls for an exercise of original jurisdiction or for a hearing de novo.
On the other hand the character of the function undertaken by the administrative authority in arriving at its decision may differ markedly from the instances already supposed. The authority may be required to determine justiciable issues formulated in advance; to conduct a hearing, at which the parties may be represented by barristers and solicitors, involving the giving of oral evidence on oath which is subject to cross-examination; to keep a transcript record; to apply the rules of evidence; and to give reasons for its determination. In such a case a direction that the appeal is to be by way of rehearing may well assume a different significance.
But in the end the answer will depend on an examination of the legislative provisions rather than upon an endeavour to classify the administrative authority as one which is entrusted with an executive or quasi-judicial function, classifications which are too general to be of decisive assistance. Primarily it is a question of elucidating the legislative intent, a question which in the circumstances of this case is not greatly illuminated by the Delphic utterance that the appeal is by way of rehearing. (emphasis added) (citations omitted)
23. The Legal Profession Act does not require or provide for the Law Society Council to conduct a hearing before it refuses to renew a practising certificate. It does not require the Law Society Council to make a record of what takes place or to give reasons for the decision. It does not require the Law Society Council to apply the rules of evidence. In contrast, where the Law Society Council investigates and decides complaints against legal practitioners, it is bound to give notice of the complaint to the legal practitioner and allow the legal practitioner to make submissions and to keep a record of the proceedings, give reasons for the decision and accord procedural fairness (see Legal Profession Act, Pts 4.2, 4.4, 4.5 and 4.6).
24. In these circumstances, by reference to the reasoning in Sperway, s 81(1)(a) was intended to confer a right of appeal involving a hearing de novo.
25. That was also the result reached by the application of Sperway by Smart J in Veghelyi v Council of the Law Society of New South Wales (1989) 17 NSWLR 669 (Veghelyi), in relation to s 37(1) of the Legal Profession Act 1987 (NSW); that section provided for an appeal to the Supreme Court by a solicitor against a refusal of the Law Society of NSW to grant him a practising certificate. Smart J said at 675:
[T]his administrative decision has far-reaching consequences which affect the livelihood and the professional reputation of the solicitor. He is not entitled to know in advance what the Council is considering and the particular reasons which are guiding it nor to be heard. The right of appeal would be of limited use if the appeal were restricted, for example, to the materials before the Society. The solicitor needs to be able to deal fully with the material relied on by the Council.
26. The judgment in Veghelyi was applied in the ACT by Higgins J to s 129 of the Legal Profession Act 1970 which gave a solicitor a right of appeal to the Supreme Court against a refusal by the Law Society to renew his practising certificate: Re A Solicitor (1992) 107 FLR 389.
The Law Society took me to the decision in Veghelyi v Council of the Law Society of New South Wales (1989) 17 NSWLR 669 (Veghelyi), which was referred to in the above extract. Veghelyi was an appeal against the Law Society’s refusal to issue a practising certificate under s 37 of the Legal Profession Act 1987 (NSW). Section 37 of the New South Wales enactment provided a right of appeal to a person who had been refused a practising certificate and provided that, on such an appeal, the Supreme Court “may make such order in the matter as it thinks fit”. In determining that the appeal provided by s 37 was by way of hearing de novo, Smart J said at pages 673-675:
It was common ground that the Council had reached its decision without notifying the solicitor of the matters upon which it proposed to rely and the course it proposed to take or hearing him. The solicitor was not invited to place materials before the Council. There was no suggestion that the Council was under any obligation to do so.
The decision of the Council was an administrative one reached by an administrative body. Ex parte Australian Sporting Club Ltd; Re Dash (1947) 47 SR (NSW) 283; 64 WN (NSW) 63 per Jordan CJ; Phillips v The Commonwealth (1964) 110 CLR 347 at 350 and Dwyer v National Companies G & Securities Commission (1988) 15 NSWLR 285, establish that an appeal to the court from a decision of an administrative authority is not an appeal in the strict sense but an exercise by the court of its original jurisdiction.
His Honour then went on to refer to the passage from Builders Licensing Board v Sperway Constructions set out in the decision of the Full Court in The Legal Practitioner v Council of the Law Society of the ACT, and quoted in the preceding paragraph.
The Law Society also referred to the decision of Blow CJ in Cinar v Law Society of Tasmania [2014] TASSC 44; 23 Tas R 139 where a legal practitioner appealed to the Supreme Court of Tasmania from a decision of the Law Society of Tasmania to refuse him a practising certificate. The appeal was pursuant to s 84 of the Legal Profession Act 2007 (Tas), which empowered the Court to make any orders that it considered appropriate on the appeal. The parties agreed that such an appeal was by way of hearing de novo, but in any event Blow CJ considered that the statutory context made it clear that the appeal was of such a nature. His Honour said at [3]:
The Society is not obliged to hold a hearing or give reasons for its decision. The Court is empowered by s84(2) to make any order that it considers appropriate on the appeal. There is no restriction on the grounds of appeal, nor is there any requirement to identify grounds of appeal. Counsel for the parties referred me to a number of decisions that support the conclusion that the appeal is one by way of hearing de novo: Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616; Veghelyi v Council of the Law Society of New South Wales (1989) 17 NSWLR 669; Legal Practitioner v Council of the Law Society of the Australian Capital Territory [2011] ACTSC 110; Barakat v Law Society (NSW) [2014] NSWSC 773.
Finally, the Law Society took me to the decision of Refshauge ACJ in Legal Practitioner M v Council of the Law Society of the Australian Capital Territory [2015] ACTSC 312; (2015) 302 FLR 254 concerning the nature of an appeal from a decision of the Law Society to the ACT Civil and Administrative Tribunal in disciplinary proceedings under the Act. In his reasons, Refshauge ACJ referred to the decision of the High Court in Re Coldham; Ex Parte Brideson (No 2) (1990) 170 CLR 267 at 273, where the Court said:
[I]t is well settled that, when the legislature gives a court the power to review or hear an “appeal” against the decision of administrative body, a presumption arises that the court is to exercise original jurisdiction and to determine the matter on the evidence and law applicable as at the date of the curial proceedings: see Ex parte Australian Sporting Club Ltd; Re Dash (1947) 47 SR (NSW) 283. Nevertheless, whether the right of appeal against an administrative decision is given to a court or to an administrative body, the nature of the appeal must ultimately depend on the terms of the statute conferring the right: Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd [1976] HCA 62; (1976) 135 CLR 616 at p 621 – 622.
The Law Society submitted that while the Act required it to give the law practice and certain nominated others notice of the appointment of a Manager as soon as possible after the appointment, it does not require it to conduct a hearing before it appoints a Manager, nor does it require it to accord procedural fairness by giving the practitioner an opportunity to respond prior to a decision being made it to appoint a Manager, nor is the Law Society required to apply rules of evidence, and the Law Society is not required to give reasons for its decision. In these circumstances, the Law Society submitted that the appeal granted by s 514 was intended to be a hearing de novo.
The Legal Practitioner’s Submissions
In his written submissions, the Legal Practitioner submitted that when a statute, such as the Act, confers a right of “appeal”, that appeal ought generally be regarded as one which the legislature intended to be a rehearing for error of the order or decision in question and not an appeal by way of a hearing de novo. No authority was provided for this submission. The practitioner further submitted that the appeal was properly to be considered as a rehearing in the sense referred to by Gleeson CJ, Gummow and Kirby JJ in Fox v Percy [2003] HCA 22; 214 CLR 118 (Fox v Percy) at [22] – [23]:
[22] The nature of the “rehearing” provided in these and like provisions has been described in many cases. To some extent, its character is indicated by the provisions of the sub-sections quoted. The “rehearing” does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits. No such fresh evidence was admitted in the present appeal.
[23] The foregoing procedure shapes the requirements, and limitations, of such an appeal. On the one hand, the appellate court is obliged to “give the judgment which in its opinion ought to have been given in the first instance”. On the other, it must, of necessity, observe the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.
(Footnotes omitted)
The practitioner submitted that the appointment of a Manager affects his ordinary rights to manage his legal practice, which right is not to be interfered with except as prescribed by law. The question to be determined, he submitted, was whether the Law Society had acted properly, which was to be judged on the material before it at the time.
The practitioner referred me to the provisions of r 5052 of the Court Procedures Rules, and in particular to r 5052(1)(c) which provides that on an appeal to the Supreme Court to which the rule applies, the Court may, on special grounds, receive further evidence about questions of fact. The practitioner submitted that this was a clear indication that the present appeal, which was an appeal to which r 5052 applied, is in the nature of a rehearing.
In the alternative, the practitioner submitted that the appeal under s 514 is an appeal in the strict sense, that is, an appeal decided on facts and law that existed on the date of the decision appealed from, citing Eastman v The Queen [2000] HCA 29; 203 CLR 1 at [107] per McHugh J.
Consideration
The issue for present consideration is one of statutory interpretation: what is the legislative intention regarding the nature of the appeal provided for in s 514 of the Act? I say at the outset that little assistance is gained by considering the powers given to the Court by r 5052 of the Court Procedures Rules. That provision is generic, in that it applies to all appeals from a court or tribunal (as defined) to this Court where other provision is not made. Not all of the provisions of r 5052 will apply to all such appeals. For example, r 5052(1)(c) will apply where the appeal is by way of rehearing, but cannot apply where the nature of the appeal granted is a hearing de novo. The nature of the appeal provided by s 514 must be determined by reference to the relevant provisions of the Act.
A plain reading of s 514 provides little assistance in determining the nature of the appeal provided by that section. It is therefore important to consider the structure of the Act. Section 487 of the Act, which provides for the appointment of a Manager by the Law Society Council, is found within Chapter 5 of the Act, dealing with External Intervention. The purpose of the Chapter is set out in s 474. External intervention by way of appointment of a supervisor of trust money, a manager or a receiver is for the purpose of protecting the interests of the general public, clients and lawyers (including the owners and employees of law practices): see s 474(1). The circumstances in which external intervention may be justified, as set out in s 479 of the Act, are generally directed towards protection of clients with regard to trust property, but also extends to circumstances where “any other proper cause exists” in relation to the practice. It would be entirely contrary to the legislative intention underpinning Chapter 5, and indeed the Act itself as expressed in s 6, if the nature of an appeal under s 514 was such that this Court was ordinarily limited to considering only such material as was before the Law Society at the time it made its decision to appoint a Manager. The importance of the interests of clients, the public interest and the interests of others such as employees of legal practices, in the provisions of the Act dealing with external intervention, including s 487, is inconsistent with the submission that an appeal under s 514 should ordinarily be restricted to consideration of the material that was before the Law Society.
In addition, as was recognised by Smart J in Veghelyi, a determination that an appeal under s 514 should ordinarily be restricted to consideration of the material that was before the Law Society will, in many cases, work great injustice. As his Honour said, the right of appeal would be of limited use if the appeal were restricted to the material before the Law Society, and a legal practitioner who has that right of appeal needs to be able to deal fully with the material relied upon by the Law Society. In the present case, of course, it is convenient for the practitioner to argue that the appeal should be limited to the material before the Law Society at the time that it made its decision, but that will frequently not be the case. It will frequently be the case that legal practitioners will wish to put evidence before the Court to explain or place in context the material that was before the Law Society. It is improbable that the legislature intended that such evidence could only be put before the Court on an appeal under s 514 where special circumstances exist or with leave of the Court.
It is also important to consider the provisions of the Act regarding the process by which a determination is made by the Law Society to appoint a Manager. There is no requirement that notice be given to the practice or any legal practitioner associated with the practice before a manager is appointed. There is no requirement for a formal hearing to be conducted by the Law Society, or for reasons for its decision to be provided. It is difficult to envision how an appeal by way of rehearing, in the sense referred to in Fox v Percy, could be undertaken with respect to the exercise of such a function.
In my opinion, the provisions of s 514 of the Act provided for a hearing de novo in which this Court is not limited to consideration of the material that was before the Law Society. This Court then stands in the shoes of the original decision maker and determines the appeal based upon the evidence presented as at the date of the appeal.
| I certify that the preceding twenty-two [22] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns Associate: Date: 23 February 2018 |
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