Legal Practitioners Complaints Committee v Camp [No 2] - [2010] WASC 207

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : FULL BENCH

CITATION: LEGAL PRACTITIONERS COMPLAINTS COMMITTEE -v- CAMP [No 2] [2010] WASC 207

CORAM: EM HEENAN J
BLAXELL J
BEECH J

HEARD: 28 JULY 2010

DELIVERED : 28 JULY 2010

PUBLISHED : 10 AUGUST 2010

FILE NO/S: LPD 1 of 2007

MATTER :In the matter of the Legal Practitioners Act 1893 (WA), the Legal Practice Act 2003 (WA) and the Legal Profession Act 2008 (WA), s 438(1) and s 444
and
In the matter of a Practitioner of this Honourable Court
and
In the matter of a report dated 15 February 2007 by the State Administrative Tribunal to the Full Bench of this Honourable Court under the Legal Practitioners Act 1893 (WA), s 29A(2)(a), s 30 and the Legal Practice Act 2003 (WA), s 185(2)(a) and s 194 and the Legal Profession Act 2008 (WA), s 438(a) and s 444

BETWEEN: LEGAL PRACTITIONERS COMPLAINTS COMMITTEE
Applicant
AND
ALAN JAMES CAMP
Respondent

Catchwords:

Application to defer delivery of judgment - Proposed application for leave to make supplementary submissions - Gross delay - Alternative remedies - Alleged jurisdictional error - Public interest in concluding litigation - No likelihood of success for proposed submissions - Application to defer judgment to make supplementary submissions refused

Legislation:

Legal Practice Act 2003 (WA), s 194
Legal Profession Act 2008 (WA), s 444
State Administrative Tribunal Act 2004 (WA), s 77(2), s 105

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant: Ms G L Roberts
Respondent: In person

Solicitors:

Applicant: Legal Practitioners Complaints Committee
Respondent: In person

Case(s) referred to in judgment(s):

AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Camp v Legal Practitioners Complaints Committee [2008] WASCA 253
Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20; (1981) 147 CLR 246
CDJ v VAJ (No 1) [1998] HCA 67; (1998) 197 CLR 172
Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161
Fingleton v The Queen [2005] HCA 34; (2005) 227 CLR 166
Gipp v The Queen [1998] HCA 21; (1998) 194 CLR 106
Jackson v Goldsmith [1950] HCA 22; (1950) 81 CLR 446
Kirk v Industrial Relations Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1 [100]; (2010) 239 CLR 531
Mobil Oil Canada Ltd v Canada‑Newfoundland Offshore Petroleum Board [1994] 1 SCR 202; (1994) 111 DLR (4th) 1
MZXOT v Minister for Immigration and Citizenship [2008] HCA 28; (2008) 233 CLR 601
O'Neill v O'Connell [1946] HCA 59; (1946) 72 CLR 101
R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres [1949] HCA 33; (1949) 78 CLR 389
Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16; (2002) 209 CLR 372
State Rail Authority of New South Wales v Codelfa Construction Pty Ltd (No 2) [1982] HCA 51; (1982) 150 CLR 29
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 669

EM HEENAN J: The court listed this motion for judgment for the morning of 28 July 2010 and the solicitors for both parties were notified by the court on the morning of 26 July 2010 of the date and time set for judgment.
On the afternoon of 26 July 2010 and again on 27 July 2010 the practitioner or his solicitors forwarded to the court drafts of certain materials sought to be relied upon for a foreshadowed application for the court to defer delivering judgment and to grant leave to the respondent to make supplementary submissions going to the merits. Copies of those materials were also sent to the solicitor for the applicant.
The materials sought to be relied upon by the respondent in support of the proposed applications comprised:
•a letter of explanation from the practitioner dated 26 July 2010;
•a draft memorandum of submissions in support of the proposed applications which had not been signed;
•an unsigned, unsworn draft of a proposed affidavit by the respondent's solicitor intended, in its final form, to be used in support of the applications; and
•an unsigned, unsworn draft of an affidavit by the practitioner, also intended to be used in its final form on the proposed applications.
When the matter was called by the court on the morning of 28 July 2010 the practitioner, appearing in person, moved for a deferral of delivery of judgment to allow the proposed application for leave to make supplementary submissions to be lodged and considered. At that point, there was still no formal application filed either for the court to defer delivering judgment or for leave to make supplementary submissions. Nor had the draft affidavits in sworn and final form been filed or served. Similarly, the draft submissions had not been finalised or filed and served.
This is not the first occasion upon which the respondent sought to raise the possibility of making supplementary submissions after the full hearing had been completed on 20 April 2010. As the progress of events described below reveals, that possibility had first been raised by a letter from the respondent's solicitors to the court dated 30 April 2010 and to which there had been a response by the court dated 4 May 2010. As will emerge, the practitioner has been on notice from 4 May 2010 that he had no right to make further supplementary submissions without leave and that if an application for leave to file supplementary submissions were to be made, it would be necessary for the respondent to act with the greatest despatch. Notwithstanding that notification, no formal application for leave to make supplementary submissions has been made, and the details of the proposed foreshadowed application were only disclosed on 26 July and 27 July 2010 as described.
Nevertheless, the court heard oral submissions from the practitioner advancing his foreshadowed application for leave to make supplementary submissions and also his oral application to defer delivery of judgment. In the course of those submissions the practitioner made it clear that the materials upon which he would seek to rely in support of the proposed application, if and when he was granted leave to file them, would be the same as the draft materials which had been sent informally to the court over the last two days. Counsel for the applicant opposed the application on the basis that the respondent had had a full opportunity to present all submissions which he wished to advance before and at the hearing of 20 April 2010, because of the delay by the practitioner since the hearing and, further, because considerable time and effort would be involved in attempting to respond to the respondent's foreshadowed applications, bearing in mind that counsel who had advised and appeared for the applicant throughout and at the hearing on 20 April 2010 was no longer available, having since been appointed to the Bench.
The court retired to consider the submissions and then returned to announce the unanimous decision that the application to defer judgment on the motion should be refused. Short oral reasons for that decision were given at the time, which included a statement that more detailed reasons would be published later. These then are my reasons for reaching those conclusions and refusing the application.
This reference was heard on 20 April 2010 when counsel for the applicant made written and oral submissions and when the respondent appeared in person, made oral submissions, and relied on written submissions by his solicitor in support. At the conclusion of the hearing, the court reserved its decision. It did not grant, nor was it asked to grant, leave to any party to make further submissions.
Once a cause has been heard, there is no right for any party to make any further supplementary submissions without leave because it is at the hearing itself that the parties are expected to make a complete statement of their case and position - Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20; (1981) 147 CLR 246, 258 (Mason J). This is only one facet of the wider principles that it is in the public interest that there should be an end to litigation and that actions, causes and matters in the court should be managed and determined with a view to promoting the just resolution of litigation, disposing efficiently of the business of the court, and maximising the efficient use of available judicial and administrative resources and the associated principles enshrined in O 1 r 4A and r 4B of the Rules of the Supreme Court 1971 (WA). For the proposition that it is in the public interest that there should be an end to litigation see Jackson v Goldsmith [1950] HCA 22; (1950) 81 CLR 446, 466 (Fullagar J); CDJ v VAJ (No 1) [1998] HCA 67 [185]; (1998) 197 CLR 172 (Kirby J); and State Rail Authority of New South Wales v Codelfa Construction Pty Ltd (No 2) [1982] HCA 51 [16]; (1982) 150 CLR 29 (Mason J). With regard to the need for the court to manage litigation efficiently and with a view to despatch and without unnecessary use of resources, see Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 where, with regard to an application to make a late amendment to a pleading, French CJ said at [35]:
It might be said that the adjournment effected by the primary judge’s decision to entertain the amendment application and to allow written submissions to be filed and evidence to be put on, and the subsequent delay in his decision, rendered academic any concern about further waste of court resources or inefficiencies flowing from the amendment ultimately being allowed. It might be said that, in those circumstances, to refuse the amendment would be punitive. It is true that a punitive response to the substance of a late amendment application is not appropriate. But neither is a party to be rewarded by weighing in its favour the disruptive consequences of its own application. In any event the granting of the amendment in this case, at the time it was granted, meant that there would still be further delay while interlocutory processes flowing from the new claims were put in place …
These considerations were also addressed in the joint reasons of Gummow, Hayne, Crennan, Kiefel and Bell JJ at [73] ‑ [83]. The passages emphasise that whenever an application is made for some procedural relief which is made late, or well out of time, or which is likely to cause further delay to the determination of proceedings, the matter should be dealt with on its merits but bearing in mind the disruptive consequences which may follow if an indulgence being sought is granted.
The first sign of any such proposed application in this case was contained in a letter dated 30 April 2010, addressed to the presiding Judge, from the solicitors for the respondent which informed the court that:
We are about to file an application for leave to file a Supplementary Submission responding to matters:
•raised by the letter dated 19 April 2010 which was read out in Court by the Applicant but which the Respondent had not previously seen,
•foreshadowed in paragraph 5(f) of the Respondent's Outline of Argument that was before the Court at the hearing of 20 April 2010…
The statement that the solicitors were 'about to' file an application should be noticed.
The letter went on to give some general indication of the intended grounds for the proposed application.
By letter dated 4 May 2010 from the associate to the presiding Judge, written at the direction of all three judges sitting, the solicitors for the respondent were advised that there was no right to make further supplementary submissions and that at the time of writing no formal application for leave to file supplementary submissions had come to the notice of the court. By that letter the solicitors for the practitioner were further advised:
If and when your client does make a formal application for leave to file supplementary submissions then notice of that should be given to the solicitors for the applicant. That application, together with any written response by the solicitors for the applicant, will then be referred to their Honours for consideration. If such an application is to be made it should include, in final form, the additional submissions sought to be advanced on behalf of your client, if leave to do so were to be granted. The LPCC would be invited to include in any submissions which it seeks to file, not only submissions in opposition to the application for leave (if so desired) but also such submissions as the LPCC might wish to advance in answer to the additional submissions which your client wishes to have considered by the court.
If and when that is done, their Honours will consider whether or not to give leave to rely on supplementary submissions and, if leave is given, will without any further hearing or notice, consider the submissions in respect of which leave may have been granted.
This letter should not be taken as any indication that leave to adduce further submissions will be given or that your client has been granted time to apply for such leave. The position remains, as set out earlier, that the hearing of this case has concluded and that the decision is under consideration. If any such application is intended, it will obviously be necessary for your client to act with the greatest despatch.
before proceeding to address other matters which need not now be mentioned.
Time passed without any such application as had been foreshadowed being made. Again, by letter from the solicitors for the respondent dated 16 June 2010 to the associate to the presiding Judge, the solicitors informed the court that 'the submission to be filed has taken more time to develop than had been anticipated' before proceeding to state that they intended to file the leave application, an affidavit in support, and the proposed supplementary submission 'as soon as possible' and to address certain issues then mentioned.
More than a month then passed without any application being made and the court, having considered the application and the submissions made at the hearing, reached its decision on the materials received at the hearing of 20 April 2010 and notified the solicitors for the parties on 26 July 2010 that the decision would be delivered by the court on the morning of 28 July 2010 as already mentioned. The next day the papers which have been identified at the outset of these reasons were received. On 28 July 2010 the respondent appeared and applied for the court to defer delivering the decision until the proposed application had been heard and determined.
Having regard to the background, the delay in making this application is extreme and has not been satisfactorily explained. The only explanation which has been offered for the recent conspicuous delay following the letter from the court of 4 May 2010 is that the proposed submission had been referred to senior counsel for settling but that senior counsel was away for some of the time and upon return was not able to deal with the instructions. The submissions which have been produced have, therefore, not been signed by the unidentified counsel and it seems are to be treated as being the submissions of the solicitors who have been acting for the respondent throughout. There is no attempt to explain why such an important matter was allowed to wait for so long or why no alternative arrangements were made to engage other counsel or to have these submissions settled, filed and served by the solicitors much earlier. However, even if such submissions had been filed soon after 4 May 2010, there would still have been a very significant delay in raising the points which they seek to address, as is explained later. This long delay itself constitutes a substantial consideration against the grant of the leave sought.
Nevertheless, I have examined the written submissions, the draft affidavits, and considered the further submissions made on 28 July 2010 in order to determine whether there is any point or issue emerging which might justify the most unusual course sought of deferring judgment and entertaining further submissions at this late stage.
By far the greater part of the submissions sought to be advanced canvass findings of fact reported to this court by the SAT. They seek to challenge these findings by contending that they were not justified on the evidence before the SAT, or that there was other evidence before the SAT in conflict with the evidence which the SAT did accept on those particular issues. They contend, further, that there was evidence on other issues in respect of which no findings were made by the SAT or reported to the court. This failure by the SAT to make necessary findings of fact, the submission continued, was a breach of the tribunal's duty under s 77(2) of the State Administrative Tribunal Act 2004 (WA) and amounts to a jurisdictional error by analogy with the principles applied in AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438. The court has set out in our reasons on the motion why on such a motion review of findings of fact cannot occur. Moreover, the motion now before us sitting as the Supreme Court (full bench) does not provide an occasion for any application for jurisdictional review of the Tribunal's reasons or orders. If judicial review were to have been sought, that would have been by initiating separate proceedings.
The next submission advanced is that the report of the SAT transmitted to this court contains a report of the adverse finding and the facts relied upon for that adverse finding made on Reference 22D of 2003 which, as the applicant has explained and other events subsequent to the report have established, was later quashed by the decision of the Court of Appeal in Camp v Legal Practitioners Complaints Committee [2008] WASCA 253 on 8 December 2008.
The respondent seeks to contend that in the light of the changed circumstances, which he submits are significant changes, the SAT should have made a supplementary report to this court advising of that development and reporting on what, if any, effect it had on the earlier decision to make and transmit a report to this court and, in particular, on what consequences the SAT considered should follow - particularly with regard to the manner in which the practitioner ought to be dealt with on the remaining findings on References 22A and 22C.
It was also submitted, and I accept, that if the SAT had, in those changed circumstances, decided to impose any of the sanctions upon the practitioner which it is itself empowered to do, which would have the effect of restricting his right of practice, then the practitioner would have a more ample avenue for seeking leave to appeal on issues not only of law but also of fact, if the leave to appeal were to be granted. The reasons for this have been set out in our reasons dealing with the motion.
The respondent also seeks to submit that the provisions of the Legal Profession Practice Act 2008 (WA) s 444 rendering findings in such a report conclusive cannot be regarded as excluding judicial review for jurisdictional error. These provisions have been referred to in [15] and [51] of our earlier reasons. The respondent submits that the supervisory power of this court over jurisdictional error cannot constitutionally be removed: Kirk v Industrial Relations Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1 [100]; (2010) 239 CLR 531 (French CJ, Gummow, Hayne, Crennan, Kiefel & Bell JJ) and that, consequently, s 194(1) of the Legal Practice Act 2003 (WA) and s 444(1) of the Legal Profession Act do not by the use of the term 'conclusive' prevent or inhibit the court from dealing with jurisdictional error or that, alternatively, the statutory restriction in s 444(1) of the 2008 Act should be read as subject to the statutory imperative of s 77(2) of the State Administrative Tribunal Act. From this proposition the respondent further submits that, in the circumstances, this court should have the power to review the findings in the report in relation to alleged jurisdictional error or to remit the report to the SAT for further consideration.

Insofar as these submissions advance the proposition that because of some factual error or alleged failure to make material findings of fact there has been a jurisdictional error by the SAT in the course of determining the two references now under consideration by this court, it is evident that any detailed analysis and resolution of those submissions would require further comprehensive examination, not merely of the contents of the report containing its findings but all the evidence adduced at the hearings before the SAT. For reasons which will shortly appear, I do not consider that this could or should be undertaken by this court.
Even assuming that the findings of the SAT did involve a jurisdictional error that would, by definition, amount to an error of law and would be susceptible to challenge in the exercise of the avenue of appeal available under s 105 of the State Administrative Tribunal Act. I do not imply that any such assumption is justified but it is convenient to examine the position which would exist if it were. This must mean that such an error of law if contained in the report transmitted to the court was amenable to review by appeal. For leave to appeal to be granted it would need to be demonstrated that it constituted an arguable ground of appeal with some prospects of success but, clearly, an arguable ground of appeal alleging jurisdictional error should be the subject of a grant of leave to appeal. If leave to appeal were granted then the determination of the appeal would involve a scrutiny of all the evidence and associated submissions in order to determine whether the alleged ground had been made out and, if it had, that would, almost inevitably, lead to success on the appeal. It follows from this that the conclusive nature of findings in such a report must be treated as being subject to the results of any successful appeal instituted from the decision to make and transmit the report.
A further question, however, is whether or not there may exist certain forms of other error involved in the decision and action of the SAT in deciding to make and transmit a particular report to this court, or in relying upon such a report once so transmitted, which are not subject to challenge by appeal under s 105 and, if so, what other rights of review in such cases of alleged error do exist. That question is taken up and addressed later, for the moment, I address the situation where there is alleged to be a jurisdictional error in the decisions of the SAT which is reviewable under the avenues of appeal contained in s 105.
It is pertinent to note that in relation to Reference 22C, although an application for leave to appeal from the decision of the SAT on that reference was made by the respondent, that application did not include any ground alleging jurisdictional error by the SAT. There was no application for leave to appeal in relation to the findings of the SAT on Reference 22A of 2003. Mr Camp's appeal by leave from the decision on Reference 22C was dismissed on 19 December 2007. His later appeal to the Court of Appeal and then his later application for special leave to appeal to the High Court of Australia, in respect of the decision in Jenkins J refusing leave to appeal on one of the eight grounds sought originally on Reference 22C, both failed.
From this it emerges that, until now, no attempt has been made by the respondent to challenge the decisions on the references 22A and 22C, on any grounds alleging jurisdictional error in relation to any findings of fact or material failures to make findings of fact. That being the case, and the time for seeking leave to appeal in relation to the decision of the SAT on 22A having expired in early 2007, there can now be no review of alleged errors of fact or failure to make material findings of fact.
With respect to the submission that there is jurisdictional or other error by the SAT in proceeding with the present report without a supplementary report or a further decision by the SAT to address, and if necessary to take into account, the subsequent decision of the Court of Appeal quashing the decision of the SAT on Reference 22D, somewhat different considerations arise. For present purposes, it may be assumed, without deciding, that the decisions by the SAT to make and transmit a report to this court, and having transmitted the report, to proceed with the reference, without making any supplementary report or taking into account the later decision of the Court of Appeal quashing the findings on Reference 22D which are included in that report is based, do not give rise to any right to apply for leave to appeal under s 105 of the State Administrative Tribunal Act. On that assumption, it would follow that the respondent has not had, and still does not have, any right to appeal from the decision of the SAT to proceed with the report as transmitted without reconsidering the references and, if necessary, making a supplementary report in the light of the successful appeal relating to the findings on Reference 22D.
If it were the case that the course followed by the SAT did involve an error of law, and certainly if it involved any jurisdictional error of law, that does not mean that the procedure followed and continued reliance on the existing report from the SAT are unreviewable. There has been every opportunity for the respondent, if aggrieved by the procedure followed, to have sought judicial review by other means in order to have the report quashed or any reliance upon it by the applicant or others restrained. Proceedings challenging the report or continued reliance upon it in the form of applications for certiorari or prohibition or even for an injunction and/or a declaration could have been instituted once it became apparent that the applicant intended to proceed in reliance upon that report.
Relief of that kind by way of prerogative remedies, injunctions or declarations is discretionary. One of the considerations to be taken into account in exercising or withholding the exercise of the discretion to grant any such remedy is delay by the person aggrieved in seeking redress and the reasons for delay. The discretion to grant or withhold prerogative relief in the form of certiorari or prohibition has been long‑established. The course of authority was examined by Hayne J in Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16 [281] ‑ [284]; (2002) 209 CLR 372 and this included a recognition that delay by an applicant is an established ground for refusing to the grant those remedies in. The discretion was also recognised by Gleeson CJ at [21] and by McHugh J at [95] ‑ [97], [108] and [128].
Recent confirmation of the discretion to grant or withhold such remedies can be found in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 669 where, at [28] Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ cited with approval the passage from R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres [1949] HCA 33; (1949) 78 CLR 389, 400:
For example, the writ [in that case, mandamus] may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay, or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made. The court's discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld.
In SZBYR the constitutional writ of certiorari was refused because the particular circumstances were such that no useful result could ensue from the grant of relief desired by the appellants. Mobil Oil Canada Ltd v Canada‑Newfoundland Offshore Petroleum Board [1994] 1 SCR 202; (1994) 111 DLR (4th) 1 is also an example of the remedy being withheld because of lack of utility.
Once the decision of the Court of Appeal quashing the decision of the SAT on Reference 22D was given on 8 December 2008, the stage was set for any objection to be made by the respondent to reliance upon the report as prepared and transmitted to this court in early 2007. This was even more obvious after the High Court refused the respondent's special leave application on 31 July 2009. There is no evidence of any objection being made on behalf of the respondent to the SAT or to the LPCC about reliance on that report or of an alleged need for the SAT to reconsider the position in the light of the decision of the Court of Appeal at any time since. Even now there has been no attempt made or foreshadowed to seek judicial review of the report by any of the remedies identified or otherwise. Rather the respondent's submissions are confined to contentions that this court can or should review the report or remit it to the SAT for further consideration. In view of the time which has elapsed and the advanced stage which these present proceedings have reached without this issue being raised before, the prospects of discretionary prerogative or other relief being granted in collateral proceedings appear to be insignificant.
Even if the present report were to be the subject of judicial review in collateral proceedings, it is obvious that the most that could be expected to result from a successful challenge would be either the quashing of so much of the report as dealt with Reference 22D and/or an order for the proceedings to be stayed unless or until the SAT provides a supplementary report outlining the results of the appeal quashing the decision on Reference 22D. In either event, that would leave the adverse findings made against the practitioner as reported on References 22A and 22C standing.
If the form of collateral judicial review were to be an application for certiorari, or any other application in which it would be open for the court to grant certiorari, that would involve removing the cause from the SAT into this court for the purpose of determining whether or not it should be quashed. That gives rise to further considerations which are pertinent to the utility of any such process. In O'Neill v O'Connell [1946] HCA 59; (1946) 72 CLR 101 Dixon J said at [125]:
But once the 'cause' is lawfully removed here, then the determination of the cause lies within the jurisdiction of this Court, which, unless it exercises the power conferred by s 42 [of the Judiciary Act as it then stood] or exercises its discretion to remit the whole or any part of it, may dispose of the matters in controversy and give what judgment and make what order appears right upon the facts and the law.
This passage was cited with approval by Gleeson CJ, Gummow and Hayne JJ in MZXOT v Minister for Immigration and Citizenship [2008] HCA 28 [49]; (2008) 233 CLR 601. This raises the prospect that even if the respondent were to be successful in seeking certiorari to remove into this court the report of the SAT, with a view to having it quashed for alleged jurisdictional or other error, or if on any application brought by the respondent for other collateral relief it were open to this court to order that the report be removed into this court for the purpose of quashing, any necessary relief could be given but the ultimate disposal of the report, subject to the relief of the court as ordered, could then be dealt with.
Again, the passage of over two years from the decision of the Court of Appeal on Reference 22D before the foreshadowing of any proposed collateral challenge to the present report from the SAT would give rise to discretionary considerations about the impact of that delay. There is simply no adequate explanation given by the respondent why such a potential remedy was not pursued. The appearances all are that the potential availability of such a remedy was not recognised.
Sometimes the failure to recognise a legal error; to seek appropriate legal relief; or to raise a point of material substance until a very late stage in proceedings will not prove fatal if the point to be raised or the remedy sought will obviously be conclusive. Fingleton v The Queen [2005] HCA 34; (2005) 227 CLR 166 is an example of a conclusive defence arising from statutory immunity, which had been overlooked at all stages in a criminal prosecution until the matter had reached the High Court of Australia, being successfully invoked at that point - see per Gleeson CJ at [6]; Gummow and Heydon JJ at [125] ‑ [126]; Kirby J at [136]; and Hayne J at [195]; Gipp v The Queen [1998] HCA 21; (1998) 194 CLR 106; and Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161. In such cases, however, leave to introduce such a ground or point at a late stage in the case 'will be granted only in exceptional circumstances' - see per Hayne J at [195] in Fingleton. In Fingleton the effect of the statutory provision granting immunity to the appellant was such that the appellant always had had a complete defence to the charge and should never have been put on trial.
Fingleton, Gipp and Crampton were all cases in which the point sought to be raised for the first time was only taken in an ultimate application for special leave to appeal or an appeal in the High Court rather than being cases where the point was being raised in the court where the cause was under consideration for the first time, although at a very late stage. This may suggest that the test for the late introduction of such a point in the ultimate court of appeal might be expected to be more rigorous than the test for the late introduction of a point in an original trial or on a first reference to a court such as this. That may, occasionally, be the case but whether it is or is not will depend upon the particular circumstances, the potential significance of the point sought to be raised, the length of the delay and other considerations particular to the individual case. As already said, the delay in this case has been gross and the potential significance of the point now under consideration can only be inconclusive. I turn now to the reasons why this is so.
It can be said that in the present case if the existing report were quashed or supplemented by a further report informing the court of the outcome of the respondent's successful appeal from the decision of the SAT on Reference 22D there would be no change to the existing findings of unprofessional conduct in respect of the findings made by the SAT on References 22A and 22C. The question would be how the practitioner should be dealt with in consequence of those findings.
There can be no doubt that this court has jurisdiction over the respondent in light of the report which has been transmitted to the court. The court would not lose that jurisdiction or have it diminished in any way if a supplementary report were to be issued by the SAT reporting on the results of the successful appeal. As there is no controversy over the historical course of events associated with that appeal, this court is now in as good a position to deal with the two references remaining as it would be if such a supplementary report were prepared and transmitted. The situation is obviously less than satisfactory and if ever these or similar circumstances were to be repeated then a supplementary report from the SAT reporting upon material changes and circumstances since making its first report and addressing the question of whether or not those circumstances materially affected the recommendations or proposals by the SAT for the disposition of the case should be prepared and transmitted to this court.
In our reasons for decision on the motion the court had occasion to remark on the absence of any specific proposal by the SAT for the orders which might be made for the disposition of the motion and the significance that this lack of assistance has upon the difficulty and responsibility of this court in dealing with the motion. Nevertheless, being seized of the reference in circumstances where there has been no recommendation by the SAT for the eventual disposition of the case either before, or after, the determination of the appeal from the decision on Reference 22D, this court must, on the facts relating to References 22A and 22C, determine the proper disposition. It is not as if the result of the appeal on Reference 22D was likely to have altered any specific recommendations for the eventual outcome made by the SAT because, as already stated, no such recommendations were made.
In these circumstances, therefore, although the situation is less than ideal, I was satisfied that the court could and should reach its own decision about the appropriate disposition of these references based solely on those findings relating to References 22A and 22C, and to do so in the knowledge that one of the references relied upon by the SAT has since been dismissed.
On this approach there can be no material prejudice to the respondent because this court is making its determination of the outcome of References 22A and 22C on undisputed or unchallengeable facts. Any

shortcomings in the procedure followed by the SAT in not making any supplementary report or reconsidering its report in the light of the outcome of the appeal on Reference 22D, has not affected or determined our ultimate decision.

It follows, therefore, that there is the factor of over two years' delay by the respondent in seeking any form of review of this report of the SAT. Even now there has been no reference by the practitioner to any form of collateral review. There is the additional factor that even a successful review would lead to no more than a correction of the report dealing with the historical sequence following the report by the SAT of 15 February 2007 by reporting further on the outcome of the appeal. That would not affect the capacity of the court to deal with the two remaining references or the manner in which they should be dealt with by this court. Accordingly, collateral judicial review of the report, even if successful, would not be likely to lead to a result for the respondent which would, in any practical sense, be more beneficial than the basis upon which this court has been able to deal with this motion. That being the case, there is no utility in deferring the resolution of this long outstanding reference because of the possible outcome of a potential and belated collateral challenge to the existing report. That is another factor which would tell against the grant of collateral discretionary relief.
For these reasons, I concluded that the court should proceed to determine the present motion without embarking upon a closer examination or final determination of the supplementary issues which the respondent has recently attempted to raise. It will be sufficient to refuse the respondent's application to defer the delivery of the court's decision on the motion. There still has not been any application made for leave to make supplementary submissions, although, as described, the intended application was precisely foreshadowed.
BLAXELL J: On 28 July 2010 I joined in this court's decision to refuse the respondent's oral application to defer judgment. I did so essentially for two reasons: Firstly, the respondent had not provided an adequate explanation for his long delay in making the submissions that he now wished to raise. Secondly, there was no apparent merit or prospects of success in respect of the respondent's proposed supplementary submissions.

Nevertheless, I have had the benefit of seeing a draft of EM Heenan J's very comprehensive reasons for refusing the application. I fully agree with those reasons and have nothing to add.
BEECH J: The facts and circumstances are set out in the reasons of EM Heenan J.
For the reasons and in the circumstances outlined by EM Heenan J [1] ‑ [12], delay was a weighty factor against the practitioner's application to defer the delivery of our reasons pending the foreshadowed application for leave to make further submissions.

The primary focus of the practitioner's submission is summarised in [19] of EM Heenan J's reasons. I agree with his Honour's observations in that paragraph. The practitioner did not propose to bring separate proceedings to quash the report of the Tribunal. Apparently, that was because he did not accept the need for separate proceedings. In any event, it would have been futile to adjourn delivery of our primary reasons to enable the practitioner to commence such proceedings. Given the history, and the practitioner's appeals, the prospects of success of any such proceedings would be slender indeed. Those prospects did not justify delaying the delivery of our reasons.
The practitioner also proposed to submit that the failure of the tribunal to make a supplementary report, following the quashing of findings on Reference 22D, meant that the full bench 'should not, arguably cannot, proceed' without a further report from the tribunal. This was a matter raised at the hearing on 20 April 2010. We dealt with it in our primary reasons: [72] ‑ [76]. The practitioner could have advanced submissions on this point at the hearing. There is nothing to explain why that was not done. The proposed submissions on this point are brief (two paragraphs). In the circumstances, I was not persuaded that delivery of our reasons should be delayed to enable the practitioner to make the submissions in pars 21 and 22 of the proposed supplementary submissions.
Nothing else advanced in the respondent's proposed supplementary submission seemed to me to warrant delaying the delivery of the reasons for decision.
For these reasons, I joined in the decision not to adjourn the delivery of our primary reasons to enable the practitioner to make the foreshadowed application to make supplementary submissions.