Legal Profession Board of Tasmania v Disciplinary Tribunal
[2022] TASSC 65
•15 November 2022
[2022] TASSC 65
| COURT: | SUPREME COURT OF TASMANIA |
| CITATION: | Legal Profession Board of Tasmania v Disciplinary Tribunal [2022] |
| TASSC 65 | |
| PARTIES: | LEGAL PROFESSION BOARD OF TASMANIA |
| v | |
| DISCIPLINARY TRIBUNAL | |
| WILLIAMSON, Michael and WATMORE, Karen | |
| A Legal Practitioner | |
| FILE NO: | 739/2020 |
| DELIVERED ON: | 15 November 2022 |
| DELIVERED AT: | Hobart |
| HEARING DATE: | 24 June 2020 |
| JUDGMENT OF: | Wood J |
| CATCHWORDS: |
Appeal and new trial – Appeal – General Principles – Right of appeal – When appeal lies – Error of law –
What is – Generally – No right of appeal because an "order" not made by the Tribunal.
Legal Profession Act 2007 (Tas), ss 466(1)(g), 484.
Aust Dig Appeal and New Trial [20]
Professions and Trades – Lawyers – Complaints and discipline – Disciplinary proceedings – Tasmania – Re- hearing by Tribunal under s 458 – Power of Tribunal to make order for further investigation by the Board - Nature of "re-hearing" – Discretion to admit fresh material survives amendment to s 458 – Jurisdiction of Tribunal to conduct re-hearing of summary dismissal.
Legal Profession Act 2007 (Tas), ss 428, 433, 458, 467.
Boland v Boxall (2016) 26 Tas R 444, applied.
Aust Dig Professions and Trades [1274]
REPRESENTATION:
Counsel:
Appellant: C Gunson SC First Respondent: Submitted to jurisdiction Second Respondents: Submitted to jurisdiction Third Respondent: T Barrett Intervener: P Turner SC, D Osz
Solicitors:
Appellant: Tremayne Fay and Rheinberger First Respondent: Submitted to jurisdiction Second Respondents: Submitted to jurisdiction Third Respondent: Tierney Law Intervener: Office of the Solicitor-General
| Judgment Number: | [2022] TASSC 65 |
| Number of paragraphs: | 104 |
Serial No 65/2022 File No 739/2020
LEGAL PROFESSION BOARD OF TASMANIA v DISCIPLINARY TRIBUNAL and MICHAEL WILLIAMSON and KAREN WATMORE and A LEGAL PRACTITONER
| REASONS FOR JUDGMENT | WOOD J 15 November 2022 |
1 The Legal Profession Board of Tasmania appeals an order made by the Disciplinary Tribunal on 5 March 2020. The Tribunal was hearing an application made under s 458 of the Legal Profession Act 2007 in relation to a determination of the Board. During the hearing, the Tribunal made an order requiring the Board to conduct an investigation with respect to aspects of the complaint. The single appeal ground is that that the Tribunal erred in law by making an order that it did not have jurisdiction to make.
2 The order was in terms that:
"Order
On the hearing of an Application pursuant to S.458(1) of the Legal Profession Act
2007 (The Act) the Tribunal makes the following Order:-Pursuant to S 466(1)(g) of The Act, the Legal Profession Board Tasmania ('the Board') conduct an investigation of the complaints by the Applicants … against the Respondent [the legal practitioner], identified as:
(i) complaints B & C in the Board's Decision & Reasons for Decision No 28/2015 dated the 24th of July 2015; and;
(ii) those parts of complaints J, K & L of the Board's decision in No 28/2015 of alleged conduct made between August 2009 and 2nd December 2010, in so far as any such conduct is not included in the Investigation Report to the Board of Emily Warner dated the 3rd December 2013."
3 The parties to this appeal are the Board as the appellant, the Tribunal as the first respondent, the applicants who brought the complaint as the second respondents, and an Australian legal practitioner the subject of the complaint as the third respondent. The complainants submit to the jurisdiction of the Court. The Tribunal also filed a notice submitting to the jurisdiction of the Court.
4 The Attorney-General intervenes in this appeal pursuant to s 16(1)(a) of the Crown Proceedings Act 1993 (Tas). At the hearing of the appeal submissions were advanced on behalf of the Board, the Attorney-General and the practitioner.
5 There are multiple arguments on behalf of the Board, the Attorney-General and the practitioner. A central argument for the Board is that s 466(1)(g) cannot be invoked on the hearing of an application pursuant to s 458 of the Legal Profession Act, in light of the role of the Tribunal in re- hearing a determination of the Board and that it is not concerned with hearing and determining the complaint. It is also argued that the requirement for an investigation by the Board was founded on an erroneous understanding about the Tribunal's discretion to receive fresh evidence. It is argued for the Attorney-General that this Court has no jurisdiction to hear an appeal because an order has not been made by the Tribunal pursuant to s 466(1)(g) of the Legal Profession Act even though it was described as such. It is also argued that the Tribunal had no jurisdiction to make an "order" with respect to aspects of the complaint because the application was out of time.
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Background
6 It is unnecessary to canvass the factual background in detail. It is sufficient to outline the progress of the complaint before the Board and the Tribunal. The merits of the complaint and the correctness of the Board's determination do not fall for consideration and will be considered by the Tribunal in due course. The progress of the complaint is as follows.
7 On 3 December 2013 the Board received a complaint made by the complainants regarding the conduct of the legal practitioner. There were a number of divisible parts to the complaint, described for the purpose of the proceedings as allegations A-L. Some of the alleged conduct occurred more than three years before the complaint. Unless the Board made a determination that it was just and fair to deal with the complaint having regard to the delay and the reasons for the delay, that the complaint was capable of amounting to an allegation of professional misconduct and it was in the public interest to deal with the complaint, it could not be dealt with, other than to dismiss it: s 428 of the Act.
8 The Chief Executive Officer of the Board, Mr Frank Ederle, prepared a Complaint Report dated 7 April 2014 which considered all matters of complaint and in which he observed that even if the reasons for the complainants' delay in bringing the complaint were accepted by the Board, the conduct alleged was not capable of amounting to professional misconduct, nor was there any public interest component evident in the complaint more generally. It was recommended that the Board consider that only those parts of the complaint which alleged conduct said to have occurred within three years of the complaint being made should proceed to an investigation.
9 At a meeting of the Board on 24 April 2014, the Board resolved "to adopt the Chief Executive Officer's recommendation that the Board is unable to consider a summary dismissal of those parts of the complaint which alleged conduct that is said to have occurred within three years of the complaint being made, and accordingly only those parts of the complaint are to proceed to investigation (s 440)." The Board did not, at that time, make an order dismissing the parts of the complaint concerning conduct that occurred more than three years before.
10 The complaints concerning conduct within the three year time frame were investigated. Allegations B and C were not investigated in accordance with to the Board's resolution of 24 April 2014 as they concerned conduct occurring more than three years before the complaint was made. A thorough investigation report dated 12 March 2015 was prepared. It can be seen from the investigation report that in the case of allegations within time, the investigator reviewed and referred to all of the material including the practitioner's conduct outside the time frame so that the practitioner's conduct could be fully understood. It is worth noting that this was the case in relation to allegations J and K, referred to in the order above at [2]. Having conducted the investigation, the recommendation of the investigator was "that the complaint be dismissed pursuant to section 451(a) on the basis that there is no reasonable likelihood that the practitioner will be found guilty of either unsatisfactory professional conduct or professional misconduct."
11 On 24 July 2015, the Board made its decision and provided lengthy written reasons. The Board concluded as follows:
"Having not made a determination under s 428(2) of the Act, in respect to the allegations referred to in particulars of complaint paragraphs B and C, by virtue of s 433(1) of the Act those matter of complaint must be dismissed. In respect to all other particulars of complaint, the Board, being satisfied that there is no reasonable likelihood that the practitioner will be found guilty of either unsatisfactory professional conduct or professional misconduct, exercises its discretion under s 451 of the Act, and dismisses the complaint."
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12 On 9 August 2015, the complainants made an application to the Tribunal under s 458 to have the matter to which the Board's determination related determined by the Tribunal. It is worth noting that the Board is not a party to these proceedings before the Tribunal.
13 Approaching five years later, on 24 February and 5 March 2020 the Tribunal, constituted by Mr D Wallace, as Chairperson and members Ms L Mackey and Mr M Kitchell heard the complainant's application. On 5 March, the Chairperson canvassed an order under s 466(1)(g) as an idea of how the matter might resolve, but first made various comments which included the following:
• Having noted documents that were not before the Board, the conclusion was expressed that "this is a re-hearing of a matter of complaints before the Board. The Legal Profession Act makes it quite clear that on such a re-hearing neither party may give or adduce any evidence or ask any questions of the other party." • It was noted that with respect to allegations B and C there is material in the complaints that needs to be considered. However because those were dismissed summarily, the practitioners have not filed any material or been given an opportunity to do so. It was also noted that it is not open to them now to give or adduce any evidence in respect of those matters. The idea of requiring the Board to conduct an investigation was then canvassed as an alternative favoured by the Tribunal.
14 At this point of the comments, the complainants indicated that they agreed with that course and counsel for the practitioner agreed on the qualified basis that the Tribunal was not persuaded to dismiss allegations B and C. It should also be noted that by this stage the Tribunal had made it clear that on the determination, only the material before the Board would be permitted and that other material would not be received. Having heard from the parties, the Chairperson went on to state the following: It was appropriate "in the interests of justice that we do not exercise a power on the material which is simply before us, to summarily dismiss the complaint under s 466(7)(c)(ii). We do have power under s 466(g), as stated earlier, to require the Board to conduct an investigation that we consider necessary so that we can hear and determine the matter." Further, he proposed to "make an order that the Board does investigate the circumstances in respect of the complaints prior to the three- year period."
15 On 5 March 2020 the Tribunal made the order which is the subject of the appeal, set out
above at [2].
16 On 10 March 2020, the Secretary of the Tribunal wrote to the Chief Executive Officer of the Board enclosing the Tribunal's order for the Board to investigate the relevant complaints about the practitioner's conduct between August 2009 and 2 December 2010.
17 It can be seen that the order for the Board to investigate is confined to allegations B and C and those parts of allegations J, K and L occurring between August 2009 and 2 December 2010. All of the alleged conduct, the subject of the order, relates to conduct that occurred more than three years before the making of the complaint.
18 Before leaving the chronology of the complaint it is worth noting that pursuant to s 461 of the Act the complaint is divisible and the Board may dismiss any part or parts of a complaint "or exercise any of its powers under this Chapter or Chapter 6 in respect of any part or parts of a complaint."
Jurisdiction to hear this appeal
19 The Attorney-General raises a preliminary point contending that the Court has no jurisdiction to hear this appeal. The argument is that in reality the Tribunal did not make an "order" which is required before there can be an appeal to this Court.
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20 The right to appeal to this Court is found in s 484(a) of the Legal Profession Act which
provides in part:
"The Board and any party to a complaint who is aggrieved by an order made by the
Tribunal under this Part may – appeal against that order."
The Tribunal purported to make an "order" pursuant to s 466(1)(g). That section states:
"466 (1) In respect of an application under this Division, the Tribunal may do any or all of the following:
…
(g) require the Board to conduct any investigation that the Tribunal considers necessary in order to hear and determine a complaint."
21 The submissions for the Attorney-General surveyed the Act, specifically provisions under Pt 4.7 of the Act which expressly refer to the Tribunal making "orders", (Pt 4.7 is the Part in which s 484 appears, giving the right to appeal). These are: s 466(1)(k) giving power to order the joinder of an application; s 466(3), the imposition of fines upon a person who neglects or fails to comply with a summons, a requirement to make an oath or affirmation, a requirement to produce documents or answer questions or to assist the Board in an investigation; s 467(3), the Tribunal may make an order that the hearing of an application is closed to the public; 467(7), an order imposing a fine on any person who obstructs, hinders or interrupts the proceedings of the Tribunal or other conduct such as giving an answer or statement which is knowingly false; s 470(1), orders on completion of a hearing and if the Tribunal is satisfied that the practitioner has engaged in unsatisfactory professional conduct or professional misconduct; ss 470(2), 474, 476(3), other consequential orders or ancillary orders to such a finding; s 478(1), interlocutory or interim orders; s 479(1), consent orders; s 481(1), (2), (3) and (4), costs orders.
22 There is a strong argument that the word "order" in the phrase "aggrieved by an order made by the Tribunal under this Part" in s 484 is to be given the same meaning as the word "order" used elsewhere in Pt 4.7.
23 The submissions also pointed out a number of provisions under Pt 4.7 that enable enforcement of the Tribunal's orders: ss 466(5) and (6), 467(9) and (10), 470(3), 480(1),(3),(6),(7) and (8). The provision that is made for enforcement of the orders does not refer to or relate to a requirement under s 466(1)(g) or indeed, any provision in Pt 4.7 that is not expressly an "order".
24 The Tribunal is able to make an order to impose a fine where there is a failure to comply with certain requirements: s 466(3)(a)-(e). An order imposing a fine is enforceable in accordance with s 466(5) and (6).
25 It can be seen that there is no provision in the Act to enable the enforcement of requirements made by the Tribunal under s 466(1)(g). Similarly, other decisions of the Tribunal under s 466(1), such as to take evidence by affidavit or adjourn the hearing of the application, are not enforceable. This is not a surprising result. It was argued for the Attorney-General that it is inconceivable that the Board would not comply with a lawful command in terms of a requirement. It was pointed out that the Board has the functions imposed upon it by the Act: s 591(i).
26 The practitioner argues that the word "order" in the appeal provision should be interpreted so that it encompasses requirements and that this interpretation facilitates appeals under the Act. Otherwise, the only remedy would be judicial review in cases where that was available.
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27 The Board argues that the simple answer to the question of whether the purported order is to be regarded as an order lies in s 478. This provision states:
"478 Interlocutory and interim orders of Tribunal
(1) The Tribunal may make interlocutory or interim orders as it thinks fit before
making its final decision about a complaint against an Australian legal practitioner.
(2) Without limiting subsection (1) , orders of the kinds referred to in this Division
may be made as interlocutory or interim orders."
28 There is tension between the Board's argument in relying on the power to make interlocutory or interim orders and its position on s 466(1)(g) that the section is not engaged because the Tribunal is not hearing and determining the complaint. Section 478 allows interlocutory and interim orders to be made by the Tribunal "before making its final decision about a complaint against an Australian legal practitioner". The point could equally be made that the section is not engaged because the Tribunal will not be making a "final decision about a complaint".
29 However, I accept as a general proposition that this power to make interlocutory or interim orders can be invoked by the Board in relation to s 458 applications. Section 478 appears in Pt 4.7, and s 458(5) expressly allows the Tribunal to determine an application made to it under s 458, in accordance with Pt 4.7. Given the effect of s 458(5) the Tribunal may invoke s 478 and make an interim order or interlocutory order. But that is not the answer to the jurisdictional point taken here. For a start, the Tribunal did not make an order under s 478, it made the order under s 466(1)(g) which allows for an investigation to be required. Also, it cannot be the case that the existence of s 478 legitimises every so called "order" made under a specific provision which fits the description of being interim or interlocutory in nature. As was put on behalf of the Attorney-General, it is only those things which are orders which would be captured by s 478.
30 It is plain from a consideration of the statute, that a "requirement" made under s 466(1)(g) does not have the status of an order. The Tribunal did not make an order. Calling it an order does not alter the nature of what it is. Equally, calling it an order does not detract from its validity as a requirement. I consider that the word "order" should have the same meaning in s 484 as it has
elsewhere in Pt 4.7. If the Board seeks to challenge this "order", it cannot do so by an appeal.
31 Accordingly, the appeal is incompetent because the requirement, the subject of the appeal, is not an order of the Tribunal that can be appealed. Notwithstanding this conclusion, fatal to the appeal, I will go on and consider the other arguments advanced by the parties.
32 It is argued for the Board that the genesis of this appeal arises from three misapprehensions by
the Tribunal:
• The role that the Tribunal was to perform when hearing an application under s 458(1) of the Legal Profession Act 2007; • The proper construction of s 458(5) and its consequences; and • The operation and effect of s 428. 33 The starting point for a consideration of these arguments is the role of the Tribunal in hearing an application under s 458(1) of the Act. This involves a consideration of the nature of the proceedings before the Tribunal.
The nature of the proceedings before the Tribunal
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34 The scheme of the Act when considered at its most generalised level, is that the Board is to receive and investigate complaints and deal with them if they might result in a finding of unsatisfactory professional conduct; and the Tribunal is to deal with complaints which might result in a more serious finding of professional misconduct. Applications made to the Tribunal under s 458 concern determinations made by the Board such as summary dismissal of complaints, dismissal of complaints or a determination of the Board.
35 The application to the Tribunal was under s 458(1) which confers jurisdiction on the Tribunal to review determinations of the Board. It relevantly provides:
"458 Application against determinations
(1) The complainant, or the Australian legal practitioner who is the subject of the complaint, who is served with a notice of the determination of the Board in relation to a complaint may, within 21 days after the date of that determination –
(a) apply to the Tribunal or Supreme Court to have the matter to which the determination relates determined by the Tribunal or Supreme Court; and (b) make an application to the Tribunal or Supreme Court to stay the determination pending the finalisation of the application. (2) For the purposes of this section, a decision of the Board to dismiss a complaint under section 433 (Summary dismissal of
complaints), section 451 (Dismissal of complaint) or section 454(1) (Determination of Board) is a determination of the Board. (3) The determination of a matter pursuant to an application made
under subsection (1)(a) is to be by way of a re-hearing."
36 This has been the wording of the section since it was amended on 1 January 2014 by s 20 of the Legal Profession Amendment Act 2013. It is useful to consider the wording of the provision as it was before it was amended:
"(1) The complainant, or the Australian legal practitioner who is the subject of the complaint, who is served with a notice of the determination of the Board in relation to a complaint may, within 21 days after the date of that determination –
(a) apply to the Tribunal or Supreme Court to have the matter to which the determination relates heard by the Tribunal or Supreme Court; and (b) make an application to the Tribunal or Supreme Court to stay the determination pending the finalisation of the application."
37 The Attorney-General's second reading speech (House of Assembly Hansard, 14 November 2013, pp 44- 47) explained the purpose of the amendment:
"Section 458 provides that a party to a determination of the board can apply to the tribunal or Supreme Court to have the matter to which the determination relates heard by the tribunal or Supreme Court. The hearing is 'de novo', which means that all the evidence must be heard afresh and the witnesses must submit to cross-examination as though there had been no earlier decision by the board.
Understandably, complainants may be reluctant to go through a second hearing. In a recent case where a complaint against a practitioner had been upheld by the board, the practitioner applied to the court for a re-hearing. The complainants determined not to
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proceed further because of the burden of an entire new hearing in which they may need to obtain legal representation and risk a costs order if unsuccessful. Because the complainants have chosen not to proceed the court will have no option but to dismiss the complaint.
The bill amends section 458 so that rather than a full hearing, there will be a re- hearing of the matter. A re-hearing is a reconsideration of the evidence and submissions presented in the original hearing. Fresh evidence that has arisen since the original hearing can also be provided, but it need not be. A re-hearing will relieve the complainants of the burden of giving all the evidence again and the matter will be determined more quickly on already existing ere in line with the usual practice on appeal."
38 The nature of a re-hearing was considered by Blow CJ in Boland v Boxall [2016] 26 Tas R
444:
"[8] There is an element of ambiguity in the use of the word 're-hearing' in s 458(3). Section 8B of the Acts Interpretation Act 1931 permits recourse to the second reading speech for the purpose of resolving that ambiguity. Having regard to the second reading speech and the history of the legislation, it is clear that the word 're- hearing' is used to refer to the sort of re-hearing that the Full Court undertakes in an appeal from a decision of a single judge in a civil matter. The nature of such a re- hearing was well described by Gleeson CJ, Gummow and Kirby JJ in Fox v Percy [2003] HCA 22, 214 CLR 118 at [22], as follows:
'The "re-hearing" 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.'
[9] On such an appeal by way of re-hearing, the issues for determination are defined by the grounds of appeal. Since this proceeding is not an appeal, but one involving a re-determination, the issues are not so confined. Unless otherwise ordered, the parties may not rely upon any evidence other than the record of the proceedings before the Board and the documents or other exhibits that were before the Board."
39 This determination was applied by Tennent J in Boland v Legal Profession Board of Tasmania [2016] TASSC 444 and on appeal, in Boland v Boxall [2018] TASFC 11, it was approved by Estcourt J at [6], in dissent but not on this point.
Did the Tribunal have power to make the "order" at a re-hearing?
40 The "order" in question was made pursuant to s 466(1)(g). It is useful to set out all of the subsection and the powers it bestows:
"466 Powers of Tribunal
(1) In respect of an application under this Division, the Tribunal may do any or
all of the following:
(a)
summon any person whose evidence appears to be material to the application;
(b)
proceed to hear and determine the application in the absence of any party who has been summoned to appear before it and who has failed to appear in response to the summons;
(c) take evidence by affidavit; (d)
take evidence on oath or affirmation and, for that purpose, administer oaths and affirmations;
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(e) require any person to produce or authorise another person to produce any documents or records, or class of documents or records, in that person's possession or subject to that person's control that in the opinion of the Tribunal appear to be material to the application; (f) require a person who appears before it to answer any question that, in the opinion of the Tribunal, appears to be material to the application; (g) require the Board to conduct any investigation that the Tribunal considers necessary in order to hear and determine a complaint; (h) require any person to assist the Board in such an investigation; (i) adjourn the hearing of an application or any part of an application from place to place and from time to time;
(j) regulate its own procedure in relation to the hearing of an application; (k) subject to its rules, order the joinder of more than one application against the same or different Australian legal practitioners."
41 Section 466 falls in Div 2 of Pt 4.7 of the Act. This Part is concerned with applications made under s 464(1) for the "hearing and determination of a complaint" by the Tribunal. These applications may be made by any person, including the Board. Pt 4.7 sets out requirements in relation to applications, the powers of the Tribunal and the procedure at the hearing of the application and the orders of the Tribunal. Section 458 applications are in Pt 4.5 of the Act, not in Pt 4.7.
42 By virtue of a relatively recent amendment to s 458, some of the powers and other procedures in Pt 4.7 may be invoked by the Tribunal when conducting re-hearings under that section. Section 4 of the Legal Profession Amendment Act 2018, which commenced on 16 November 2018, added subs (5) to s 458:
"(5) The Tribunal may determine an application, made to it under this section, in accordance with Pt 4.7 , other than sections 464 , 466(7)(b) , 467(5)(b) and 468 , as if the application were an application made under Division 2 of that Pt." (emphasis added)
43 Therefore, by virtue of s 458(5) the Tribunal when determining an application has power to invoke Pt 4.7 and the various powers and procedures set out in that Pt, with certain exceptions. Section 466(1)(g) is not excluded. Therefore the Tribunal has power to invoke s 466(1)(g) when conducting a re-hearing under s 458(1)(a) even though it is not hearing and determining a complaint.
44 The Board's argument is that "Put simply, because the Tribunal was not embarking on a procedure to 'hear and determine [the] complaint', s 466(1)(g) was not, and could not be, engaged." In effect, this was the position of the Attorney-General as the intervenor and also the practitioner. However, the terms of s 458(5) fly in the face of that argument. The legislature has expressly excluded powers considered inappropriate, but not s 466(1)(g). The power that resides there has been purposefully extended to a re-hearing. That intention is plain, notwithstanding that s 466(1)(g) refers to what is considered necessary by the Tribunal "in order to hear and determine a complaint". That test of what is necessary is to be adapted and applied by the Tribunal to its role in re-hearing the complaint. There is nothing difficult about that adaptation and it was plainly intended by Parliament.
45 However, that is not to say that it is easy to envisage circumstances where a requirement for further investigation by the Board would be appropriate given the limited function of the Tribunal in the context of s 458 applications. Notwithstanding this observation, I conclude that it was the intention of Parliament that the Tribunal should have this power at its disposal for the purpose of determining an application under s 458. It is worth bearing in mind that s 458 applications include
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review of summary dismissal of complaints, dismissal of complaints after investigation (s 451 determinations) and determinations made by the Board after a hearing of a complaint (s 454 determinations). Perhaps, it was contemplated that a re-hearing of one of these determinations may potentially warrant a requirement for further investigation by the Board.
46 The arguments for the Board were that the order was not only without jurisdiction but it rested on a mistaken understanding of the effect of s 458(5) and the exception of s 467(5)(b). I will consider this argument but I note that I have some reservations about whether this goes to a question of jurisdiction in making the impugned "order". There may be a question as to whether the asserted errors fall within the ground of appeal specifying error as to jurisdiction.
The effect of s 458(5)
47 Section 458(5) provides that the Tribunal may determine an application in accordance with Pt 4.7, including various procedures in s 467 and also the powers stipulated in s 466, with certain exceptions. One of the exceptions stipulated in subs (5) is 467(5)(b) which provides that at the hearing of an application a party may give and adduce evidence and examine any other person who gives evidence at the hearing.
48 In this case, it can be seen that the Tribunal proceeded on the basis that the effect of this provision, in carving out s 467(5)(b), precluded the parties from advancing material that was not before the Board. In essence, Boland v Boxall was regarded as having been overridden by the provision. This approach can be seen in the concluding remarks of the Chairperson set out above at [13]. It can also be seen in exchanges with counsel for the complainants, Mr Barrett, during the hearing of the application. Mr Barrett submitted that a file note annexed to the investigator's report was not the correct file note and he sought to place before the Tribunal the correct file note which he had annexed to his written submissions. The following exchange between Mr Barrett and the Chairperson took place:
"MR BARRETT: …
Now it's here that I'm wondering whether that exceptional jurisdiction that the
Tribunal may have, at least according to the Chief Justice in Boxall v Boland -
CHAIRPERSON: The action (sic: Act) has changed – move on since then, I'm afraid.
MR BARRETT: Yes, I'm wondering about that, whether in fact you have the exceptional decision to admit the correct file note.
CHAIRPERSON: No, the Act quite – makes it quite clear that we're extending the boundaries a bit in this hearing already I think. The parties cannot give nor adduce evidence or question any other party.
…
CHAIRPERSON: But this is a strict hearing purely on the record before the Board."
49 It was pointed out in submissions that the letter from the Secretary of the Tribunal to the Board reiterated this approach stating "the provisions of s 467(5)(b) of the Act do not permit the parties and more relevantly the practitioner to give or adduce evidence or ask questions of the other parties during the re-hearing."
50 It is submitted for the Board that such a construction is wrong and would lead to absurdity, perversity and injustice. Four examples were proffered by the Board and set out in written submissions:
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"(a) if the Board had summarily dismissed a complaint under s433(2)(a) on the basis that the complainant had not provided further information required by the Board under s429, the complainant would be unable to adduce evidence providing an explanation as to the failure; (b) if the Board dismissed a complaint under s433(1)(a) on the basis that it was of the opinion that the complaint was lacking in substance, the complainant would be unable to adduce evidence which might suggest otherwise; (c) if the Board dismissed a complaint under s451, a complainant would be unable to adduce evidence of matters that were not before the Board; (d) lawyers who are the subject of complaints would be unable to provide a more detailed explanation to the Tribunal or adduce evidence of exculpatory matters that were not before the Board."
51 It was contended that it cannot have been the intention of Parliament to have produced such potential unfairness. In the case of applications made under s 458(1), the plain reading of s 458(5) has the effect of removing the statutory right in s 467(5)(b) to give and adduce evidence and cross- examine witnesses, but it does not operate to prevent the Tribunal from permitting that to occur in appropriate circumstances.
52 It was further argued that the opening words of s 458(5) use the word "may" and, read in context, the word should be construed as enabling (Acts Interpretation Act, s 10A). It enables but does not require the Tribunal to determine an application brought under s 458(1) in accordance with
Pt 4.7. The Tribunal may adopt its own procedures.
53 It can be seen that the addition of s 458(5) was to remove uncertainty with respect to the procedures and powers of the Tribunal. As noted, the amendment was inserted into the Act by s 4 of the Legal Profession Amendment Act 2018. The Minister's second reading speech referred to s 458(5):
"In addition, section 458 provides for what I will describe as a right of review. Under that section, a party to a determination of the board can apply to the tribunal or Supreme Court to have the matter to which the determination relates determined by the tribunal or Supreme Court. This is to be by way of a re-hearing. Concerns have recently been raised as to the powers and procedures of the tribunal in relation to applications made under section 458. Pt 4.7 of the act sets out the powers of the tribunal, including powers to summons persons to give evidence; to take evidence by affidavit or on oath or affirmation; to require the production of documents or records; and to require the answering of questions that are material to the application.
Pt 4.7 also provides for the types of orders that the tribunal can make, including an order that the name of a practitioner be removed from the local roll by the Registrar of the Supreme Court or an order recommending that a practitioner's name be removed from an interstate roll. However, these powers and procedures appear to be specifically limited to applications made under division 2 of Pt 4.7 - that is, applications made under section 464. Section 458 is not in Pt 4.7 of the act; it is in Pt 4.5. Therefore, it would seem that the powers set out in Pt 4.7 do not apply to applications made under section 458. This has led to uncertainty about the tribunal's powers in dealing with section 458 applications.
The bill addresses this uncertainty by amending section 458 of the act to provide that the tribunal may determine an application made under section 458 in accordance with Pt 4.7 of the act, with the exception of some specified provisions in that Pt that are not considered to be appropriate to re-hearing proceedings. As section 458 also allows an application for re-hearing to be made to the Supreme Court, it was considered prudent for the sake of completeness to clarify that the Supreme Court can determine its own practice and procedure for determining an application made to it under section 458." (emphasis added)
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54 The purpose of the amendment mentioned in the second reading speech to address uncertainty about the powers of the Tribunal in dealing with s 458 applications, suggests that the effect of the amendment in s 458(5) is to maintain the status quo. Indeed, even if the effect of s 458(5) is to expand the powers of the Tribunal, the status quo is maintained in the case of the exceptions. Boland v Boxall speaks to the status quo.
55 The other observation that can be made is that there is no suggestion in the second reading speech that the "uncertainty" regarding the Tribunal's powers relates to the nature of the re-hearing under s 458. The nature of a re-hearing is a given.
56 It can be seen from the scheme and the consideration of s 458 by the Chief Justice in Boland v Boxall that the proper characterisation of the proceedings before the Tribunal is conceptually different to proceedings under Pt 4.7 involving applications to the Tribunal to hear and determine a complaint at first instance. It can be seen from the "carve-outs" in s 458(5) that some of these provisions could have no application to the nature of proceedings under s 458. For example, one of the exceptions listed in s 458(5) is s 464, concerning the content of applications for the hearing and determination of complaints.
57 Section 458(5) is in terms which enables the Tribunal to invoke certain powers and procedures under Pt 4.7. I accept that the provision is enabling. Section 458(5) permits or enables the Tribunal to determine an application in accordance with Pt 4.7 with specified exceptions. Similarly, the Tribunal is empowered under s 466 in respect of the hearings of complaints pursuant to Pt 4.7. By contrast, the wording of s 467(5) effectively provides certain procedural rights to the parties: enabling a party to the application to be represented by an Australian legal practitioner; to give and adduce evidence and examine any other person who gives evidence at the hearing and to give the Tribunal a written submission in respect of the matter to which the hearing relates.
58 So, s 467(5) provides for a right to certain processes at the hearing of an application, and the amendment to s 458 enables the Tribunal, but does not require the Tribunal, to invoke that section, with certain exceptions. Is the effect of the provision and the exceptions that the Tribunal is left with a discretion to allow parties to give and adduce evidence?
59 It is clear that the answer lies in a closer consideration of the effect of s 467(5). If not for the exception in s 458(5), the Tribunal could determine a s 458 application under Pt 4.7 including s 467(5). If the Tribunal so determined, the result would be to give the parties a right to give and adduce evidence and examine any other person who gives evidence at the hearing. The parties would have carte blanche to give and adduce evidence and cross-examine. It would take the hearing far beyond the nature of a re-hearing countenanced in Boland v Boxall. According to Boland v Boxall, additional evidence is exceptional and the discretion would be exercised with respect to each piece of evidence with regard to the nature of the evidence and how it may assist the Tribunal, not globally in relation to the hearing as a whole and extending to all parties. In other words s 467 (5) provides for a full hearing, which if transplanted into the scheme concerning applications under s 458, would result in a discretion for the Tribunal to hold a hearing de novo.
60 Section 458(5) has the effect that the statutory right of the parties to adduce evidence and examine witnesses cannot be invoked by the Tribunal. However, that provision does not touch on the Tribunal's discretion to allow fresh evidence in the exercise of its discretion.
61 There is nothing in the wording of s 467(5)(b) that suggests it should be applicable to the hearing of a determination under s 458. The inapplicability of the provision is not in conflict with Boland v Boxall and its pronouncement about the nature of the proceedings. In fact, it accords with Boland v Boxall. The effect of the amendment in s 458(5) and the exception is to preserve the status quo. There remains a discretion to admit new evidence.
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62 Whilst I speak of a discretion regarding "evidence", in reality that would not arise in this case given the nature of the determination of the Board which the Tribunal was re-hearing. Indeed, the giving or adducing of evidence would not arise in a re-hearing of a preliminary determination such as the one under consideration here. There would be no question of new evidence if the determination made by the Board was pre-hearing and so, no evidence had been presented before the Board at a hearing. Rather, in such a context the relevant discretion would be to allow additional material or to allow additional allegations to be made.
63 The statutory scheme is that the Tribunal has a wide jurisdiction under s 458, the section relating to a "determination of the Board in relation to a complaint". In addition to the decisions stipulated in subs (2), others described as "determinations" in the Act, which would fall within s 458 include:
• a determination under s 428(2) regarding complaints that relate to conduct that occurred more than three years before the complaint and concerning the criteria in subs (a) and (b); • a determination to summarily dismiss a complaint on specified grounds: s 433; • a determination to dismiss the complaint, after investigation in s 451; • determinations made after a hearing if the legal practitioner is found guilty of unsatisfactory professional conduct: s 454; • determinations under s 456(7) concerning less serious complaints.
Boland v Boxall is authority for the meaning of re-hearing in subs (3) and that authority applies to all of these types of determinations as they could all be dealt with by the Tribunal as a re- hearing. They all have that in common.
Boland v Boxall was specifically concerned with a particular type of determination of the Board concerning the outcome of a hearing. Boland v Boxall does not suggest that additional evidence would be appropriate if the determination was preliminary in nature. However, consistent with the nature of a re-hearing as determined by Boland v Boxall, the Tribunal would not be necessarily confined to those materials advanced before the Board.
66 The Tribunal would have a discretion to allow the additional material to be presented at the re-hearing. Thus, the need for the Tribunal to provide procedural fairness to the parties would be addressed by the discretion to receive new information.
67 Indeed, the various examples of potential perversity and unfairness given by Mr Gunson can be used to illustrate how the Tribunal's discretion may be exercised in this way on a re-hearing. In the case of examples (a) and (b), evidence would not be appropriate. In both cases, the determination the subject of a re-hearing involves an assessment of the complaints and information. It is the allegations that are being assessed and the potentiality of the allegations to establish unsatisfactory professional conduct or professional misconduct under the Act. There would have been no "evidence" taken by the Board and similarly on a re-hearing there would no occasion to do so. In the event that there is new information that has come to light, the Tribunal may as part of the re-hearing of the determination, receive that information in the exercise of its discretion.
68 In the case of example (c), the Board would have completed an investigation of a complaint, and the determination the subject of the re-hearing is the determination to dismiss the complaint. Evidence could not be appropriate at a re-hearing of this kind, there having been no evidence presented before the Board. On a re-hearing a complainant may wish to present additional information to demonstrate a reasonable likelihood that the practitioner will be found guilty. The information might be assertions or allegations not included in a complaint or supporting documentation in relation to allegations made. It is premature to talk of evidence at this stage, evidence is presented before the Board at the hearing of a complaint. Under s 458 the Tribunal is not concerned with hearing and determining a complaint.
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69 In relation to (d), if exculpatory material is available to the practitioner as was suggested in the letter dated 10 March 2020 (this letter is referred to above at [16], full text below at [73]), then the nature of the proceedings would allow for it to be provided to the Tribunal in an appropriate and exceptional case as determined in Boland v Boxall at [10].
70 The only remaining point to make is that the absurd and perverse consequences do not arise on the interpretation I have taken to the relevant sections. The Tribunal would not be necessarily confined to the evidence or materials before the Board. Evidence or information would be allowable on a re-hearing as an exceptional step in accordance with the authority of Boland v Boxall.
71 It follows from this analysis that it would only be in the case of re-hearings of determinations made by the Board after a hearing that the question of a discretion to receive fresh "evidence" would arise. It is in the case where the application relates to a hearing that Fox v Percy is applicable. In the case of preliminary determinations the re-hearing is based on the materials before the Board with a discretion to receive fresh material.
72 It can be seen that the requirement made by the Tribunal for the Board to investigate parts of the complaint rested on a misapprehension about the Tribunal's discretion to receive fresh material or evidence. This is apparent from the exchanges between the Chairperson and counsel at the hearing and the reference to the idea of ordering an investigation as a way of enabling the parties to present additional material before the Tribunal. The Tribunal made the requirement because it considered that it did not have power to receive the material sought to be presented at the re-hearing.
73 It is submitted that the approach of the Tribunal also arose from a misapprehension that it's role under s 458 is to hear and determine the complaint. This erroneous approach is said to arise from a decision of the Tribunal differently constituted in EP v Legal Practitioner [2019] TASLPDT 6, repeated in EAP v Legal Practitioner [2019] TASLPDT 7 at [11]. Counsel for the Board addressed the reasoning in EP in some detail as did the Attorney-General. It was contended that I should take this opportunity to expressly overrule those decisions of the Tribunal and that the Tribunal has been and is erroneously acting on the assumed correctness of those decisions and that the Tribunal should be disabused of reasoning it has employed in EP. I queried whether it was appropriate for me do so noting EP was not cited or referred to by the Tribunal in this case. Counsel for the Board pointed out that the Tribunal's letter to the Board, attaching the order, mentioned above, expressly raised these views. This is the letter dated 10 March 2020 mentioned above, as part of the background, and it states:
"The Tribunal is part heard on the S 458(1) of the Legal Profession Act 2007
application of the Complainants complaints.The effect of the decisions of the Tribunal, such as EAP v Legal Practitioner [2019] TASLPDT 7, is that conduct of the practitioner between August 2009 and the 2nd December 2010, when otherwise outside 3 years of the complaint made to the Board, is relevant to the Tribunal hearing and determining complaints B & C and where relevant, complaints J, K & L.
The Board did not investigate complaints B & C because the conduct complained of occurred more than three years before the making of the complaint and was satisfied the conduct would not amount to professional misconduct. It seems in respect of the other complaints the investigator did partially investigate the practitioners conduct.
On 're-hearing' pursuant to S 458(1) the Tribunal finds itself with no evidentiary material from the practitioner that was before the Board during the above periods that it considers necessary in order to hear and determine those complaints.
The provisions of S 467 (5)b of the Act do not permit the parties and more relevantly the practitioner to give or adduce evidence or ask questions of the other parties during the re-hearing. The practitioner particularly submitted that exculpatory material is
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available. That he is prevented from giving or adducing it. The Complainant's material was before the Board. They have asked for a full and independent investigation.
I enclose* the Tribunal's Order for the Board to investigate the relevant complaints of the practitioner's conduct between August 2009 and 2nd December 2010."
74 This is a letter sent by the Secretary, as part of the administrative arm of the Tribunal. It does not seem to have been adopted by the Tribunal hearing the s 458 application or forecast as its position. The Secretary does not state that the contents of the letter are to be regarded as the reasons for the Tribunal in making the order. I consider that the contents of the letter should not be attributed to the Tribunal constituted to hear the s 458 application. I cannot imagine that counsel would suggest that a letter sent by the registrar of the Supreme Court after a ruling had been made should be regarded as the reasons of a judge in making a ruling unless expressly and appropriately attributed to the judge or adopted by the judge.
75 There is no cause for me to consider the two decisions of the Tribunal. In any event, the nature of a "re-hearing" and that the Court is not hearing and determining the complaint is well established by Boland v Boxall.
76 I conclude for the reasons expressed that it has been demonstrated that there was error in the reasons for making the "order" but a question remains as to whether the Tribunal erred in law as to its jurisdiction.
Section 428
77 The Attorney-General takes another preliminary point. It is argued that implicit within the resolution of the Board made on 24 April 2014 is that those allegations of the complaint that fell outside the time period specified in s 428(1) could not be investigated and must be summarily dismissed. The purported exercise of the power to summarily dismiss under s 433(1)(e) was apparently delayed to 24 July 2015.
78 It was submitted that in fact the Board's resolution on 24 April 2014, not the resolution made on 24 July 2015, was a determination under s 433(1)(e) of the Act. When the Board notified the practitioner and complainant of the resolution made on 24 April 2014 the right to make an application to the Tribunal under s 458(1)(a) within 21 days was then engaged. It was pointed out that the application was not made within that time and that there is no power to extend the time within which an application can be made.
79 It is further argued for the Attorney-General that a letter sent to the complainants from Mr Ederle of 28 April 2014 is notice of the determination of the Board for the purpose of s 458 (1). This letter has been provided on the hearing of the appeal by counsel on behalf of the legal practitioner. It provides that the matters that occurred more than three years before the compliant was made "will be dismissed pursuant to s 433(1)(e) of the Legal Profession Act 2007". It is contended for the practitioner that as at 24 April 2014 the Board had decided to dismiss those allegations in the complaint that were more than three years old.
80 On behalf of the practitioner it is argued that in light of the proper construction of s 428(2) the Board was required to dismiss those allegations in the complaint that were more than three years old in the absence of a determination. It is contended that the application is out of time as it was not made within 21 days of the Board's resolution of 24 April 2014.
| 81 | It is not demonstrated that the determination was made at the time of the resolution on 24 April 2014 and that notice of that determination had been given to the parties when notification of the resolution was sent. That resolution could have been revisited if further information had come to |
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light. It is plain from the content of the Board's lengthy decision and reasons dated 24 July 2015, that the decision and reasons amounts to the determination in relation to the entirety of the complaint including allegations B and C. It is expressed as the Board's decision and reasons concerning the complaint in its entirety. The content of this document complies with the requirements of s 462 of the Act in providing notice and a statement of reasons to the parties. It can be argued that the outcome was resolved earlier by the Board and deferred but I do not see that detracts from the status of the decision and reasons of 24 July 2015 as the determination.
Question of jurisdiction in relation to allegations B and C
82 The Board presses a jurisdictional argument with respect to allegations B and C which were the complaints that were dismissed by the Board under s 433 of the Act, having regard to the time limit in s 428. This argument is said to have implications for whether the Board had jurisdiction to make an "order" under s 466(1)(g) that those allegations be investigated.
83 The relevant part of s 433(1)(e) provides:
"s 433
(1) The Board must dismiss a complaint if -…
(e) the complaint is not one that the Board has power to deal with."
84 As mentioned above at [11], the Board considered that it had no power to deal with these allegations in the complaint because of the application of s 428(2). Section 428 applies to complaints made more than three years after conduct occurred. Section 428 provides:
"428 Complaints made more than 3 years after conduct concerned
(1) A complaint may be made about conduct of an Australian legal practitioner
irrespective of when the conduct is alleged to have occurred.(2) However, a complaint cannot be dealt with (otherwise than to dismiss it) if the complaint is made more than 3 years after the conduct is alleged to have occurred, unless the Board determines that –
(a) it is just and fair to deal with the complaint having regard to the delay and the reasons for the delay; and (b) the complaint is capable of amounting to an allegation of professional misconduct and it is in the public interest to deal with the complaint. (3) A determination made under subsection (2) is final and cannot be challenged in any proceedings by the complainant or the Australian legal practitioner concerned."
85 Thus, a complaint cannot be dealt with if it is made more than three years after the conduct is alleged to have occurred unless the Board determines: it is just and fair to deal with the complaint having regard to the delay and the reasons for the delay; the complaint is capable of amounting to an allegation of professional misconduct; and it is in the public interest to deal with the complaint.
86 Absent such a determination, s 428(2) operates so that the complaint cannot be "dealt with". This section was considered by Blow CJ in EFG v Legal Profession Board of Tasmania [2020] TASSC 26. The words in s 428(2), "a complaint cannot be dealt with" were construed to refer to the Board dealing with a complaint in the sense of it taking one of the steps listed in s 450: [38].
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However, EFG makes it clear that the Board would not be precluded from proceeding to investigate the complaint: [40].
87 It is evident from the Act and uncontentious, that the ambit of a re-hearing under s 458 is confined to the matter to which the determination relates and which is the subject of the application. Section 458 provides that the complainant or legal practitioner who is "served with a notice of the determination of the Board in relation to a complaint may, apply to the Tribunal or Supreme Court to have the matter to which the determination relates determined by the Tribunal or Supreme Court; …". The Tribunal's consideration in this case of allegations B and C of the complaint dismissed by the Board as out of time is necessarily particularly limited. It can been seen from an examination of s 428 that unless the Board makes a determination under s 428(2), there is no "determination of the Board" under that section.
88 It is argued for the appellant that the Tribunal's task on an application under s 458 with respect to the Board's determination regarding allegations B and C is to ask itself whether those allegations of the complaint should have been dismissed under s 433(1)(e), essentially on the materials before the Board. This proposition is uncontroversial. However, the Board would confine the Tribunal's consideration of this question to matters concerning the timing of the alleged conduct. Confining the Tribunal's consideration to this question is contentious.
89 It is further argued for the Board that if the Board does not make a determination under s 428(2) there is no "determination of the Board" and thus the Tribunal's jurisdiction under s 458(1) cannot be enlivened. The implications of this argument would seem to be that the Tribunal could have no jurisdiction to make the order under s 466(1)(g).
90 It is pointed out by the Board that s 428(3) is a privative clause and even if the Board were to make an affirmative determination under s 428(2)(a) and (b), neither the practitioner nor the complainant could challenge that determination in the Tribunal under s 458 or otherwise except in the supervisory jurisdiction of the Supreme Court and then only on the ground of jurisdictional error.
91 It is argued for the practitioner that s 428(3) has application regardless of whether the determination under s 428(2) is an affirmative determination or not. Either way, the Board has turned its mind to the task it is required to undertake and has made a determination and the immunity from challenge attaches to it. A decision under s 428(2), one way or another, is that of the Board and is not amenable to review by the Tribunal. The Tribunal would be bound on any application made to it under s 458(1) to dismiss the application pursuant to s 466(7)(c)(iii). The Board and the Attorney- General did not make submissions on this particular point about the impact of s 428(3).
92 As a privative clause, with potential application to proceedings in the Supreme Court, s 428(3) should be construed narrowly, and its application read down insofar as is ambiguous: D Pearce, Statutory Interpretation in Australia, ninth edition at [5.48]; Dixon J in Magrath v Goldsbrough Mort & Co Ltd (1932) 47 CLR 121 at 134. I adopt this approach and I construe the phrase "a determination made under subsection (2)" to be confined to a determination that (2)(a) and (b) apply. I reject the practitioner's argument. This means that in this case, the dismissal under s 433 is able to be the subject of the application to the Tribunal.
93 Further, it is argued for the practitioner that a dismissal that results because of the application of s 428(2) and the absence of a determination under subs (a) and (b) is not an exercise of power under s 433. This means that there is no jurisdiction available to the Tribunal to review such a dismissal, and the Tribunal had no power to require the Board to investigate the allegations in the complaint that were out of time.
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94 I can see no justification for reading s 433(1) in such a way that it excludes a dismissal of a complaint by virtue of s 428(2). The terms of s 433(1)(e) fit the terms of s 428(2) and even echo the phrase in subs (2), "a complaint cannot be dealt with."
95 It is submitted for the Attorney-General that the Tribunal has jurisdiction under s 458(1). The relevant inquiry for the Tribunal is whether in dismissing the complaint the Board was correct to conclude that it could not be satisfied of the matters under s 428(2). As will be seen, it is unnecessary for me to decide whether this is the relevant inquiry.
96 In my view, a blanket proposition that the Tribunal's jurisdiction under s 458(1) cannot be enlivened because there is no determination, cannot stand. Section 458(2) provides that a decision of the Board to dismiss a complaint under s 433 is a determination of the Board. I understand the Board's argument to be more nuanced to the effect that the "determination" is confined and does not extend to s 428 and the considerations therein. This is because a decision not to make a determination is not a determination in itself.
97 Accepting the Board's argument would mean that the Tribunal at least had limited jurisdiction in relation to the allegations dismissed under s 433. On the Board's argument, this would involve a very narrow inquiry involving consideration of matters such as the timing of conduct and whether it fell outside the three year period.
98 So even on the Board's argument, the Tribunal has jurisdiction under s 458 with respect to allegations B and C. Admittedly, the order made under s 466(1)(g) does not sit well with the very narrow inquiry that is defined by the Board's argument. But it also does not sit well even with a more expansive inquiry defined by the Attorney-General. Really, the point that carries force is that the order that was made under s 466(1)(g) is at odds with the nature of the role of the Tribunal in merely re-hearing a determination. In essence, the making of the order is stepping into the zone of hearing and determining the complaint.
99 Because it was not the role of the Tribunal to hear and determine the complaint, it is difficult to see how the Tribunal could have formed the view that in carrying out its role it was necessary for the Board to conduct any investigation. As explored, the reason why the Tribunal formed this view was because of an error made about the statutory scheme and s 458(5) in particular. While error has been shown, the difficulty for the appellant is that this error does not seem to fall within the ground of appeal as an error about jurisdiction.
100 A final point for the applicant is that the investigation in this matter had in fact extended to conduct alleged to have occurred more than three years before the complaint. There is support for this argument in the investigation report, see above at [10]. Extracts of the investigation report were quoted as demonstrating that the investigator had conducted a very thorough review of the entire matter during her investigation. That does not fall for consideration, it raises a potential error by the Tribunal that is not reflected in the appeal ground.
101 The arguments bearing on whether the Tribunal had jurisdiction to make "orders" in relation to allegations B and C that were summarily dismissed under s 433, do not succeed.
Conclusions
102 The main conclusions reached on this appeal are summarised as follows:
- The Court does not have jurisdiction to hear this appeal because the Tribunal's "order", the subject
of this appeal, was not an order for the purpose of the appeal provision in the Act, s 484.- The Tribunal had jurisdiction to make a requirement under s 466(1)(g) and was not precluded
from doing so merely because it was not hearing and determining a complaint.18 No 65/2022
- The order that was made pursuant to s 466(1)(g), was based on an error of law as to the effect of ss 458(5) and 467(5)(b). Contrary to the approach taken by the Tribunal, the Tribunal had a discretion to admit fresh material or evidence on a re-hearing. - The "order" for further investigation under s 466(1)(g) does not sit well with the Tribunal's role in re-hearing the Board's determinations, particularly the very narrow re-hearing as to the allegations that were summarily dismissed because they were out of time. It is also difficult to envisage circumstances where further investigation would be warranted on a re-hearing of a determination by the Board that the remaining allegations should be dismissed as there is no reasonable likelihood that the professional will be found guilty of either unsatisfactory professional conduct or professional misconduct. - The time limit for filing an application under s 458 runs from the date of the Tribunal's
determination dated 24 July 2015.- The Tribunal had jurisdiction under s 458 with respect to the summary dismissal of allegations B
and C of the complaint, pursuant to ss 433 and 428(2) of the Act.- Section 428(3) applies to an affirmative determination under subs (2)(a) and (b) and prevents the Tribunal re-hearing such a determination. That determination was not made in this case and the summary dismissal under s 433(1)(e) was able to be the subject of a s 458 application. 103 The submissions of all parties pressed the point that the Tribunal had no jurisdiction to make a requirement under s 466(1)(g) because this power only arose if the Tribunal was hearing and determining a complaint. That jurisdictional argument has not been successful. The argument that does succeed is that the Tribunal misconceived its powers under the Act as to whether it could admit fresh evidence or material. This erroneous approach informed the making of the "order" that was ill suited to the task that the Tribunal had to perform. This may be correctly characterised as an error of law in the exercise of jurisdiction rather than an error as to jurisdiction. I have not heard submissions on this point. If it were not for the fact that the appeal was doomed to fail, I would invite submissions from the parties regarding whether the successful arguments demonstrating error fall within the only ground of appeal. The agreed position was that the approach taken by the Tribunal should be corrected. It may be noted that the Supreme Court Rules govern appeals from the Tribunal and there is provision to amend appeal grounds. However, given the appeal cannot succeed, there is no warrant for imposing a burden on the parties to provide further submissions on this point.
| Order |
104 The appeal is dismissed.
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