Legal Profession Conduct Commissioner v A Practitioner

[2019] SASCFC 126

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Case Stated)

Question of Law Reserved 2 OF 2016

LEGAL PROFESSION CONDUCT COMMISSIONER v A PRACTITIONER

[2019] SASCFC 126

Judgment of The Full Court (ex tempore)

(The Honourable Chief Justice Kourakis, The Honourable Justice Kelly and The Honourable Justice Parker)

11 October 2019

PROFESSIONS AND TRADES - LAWYERS - COMPLAINTS AND DISCIPLINE - DISCIPLINARY PROCEEDINGS - SOUTH AUSTRALIA - PROCEEDINGS IN TRIBUNALS

LIMITATION OF ACTIONS - EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS - OTHER CAUSES OF ACTION AND MATTERS

The Legal Practitioners Disciplinary Tribunal referred the following question of law to this Court:

The Court in Fittock (No 2) has determined that the jurisdiction of the Tribunal to inquire into the conduct the subject of a charge laid outside of the three year time limit specified in s 82(2a) of the Legal Practitioners Act 1981 (SA) is enlivened only upon the Tribunal granting an extension of time within which to lay that charge. Does the Tribunal have power to commence an inquiry into the conduct of a practitioner where the charge has been laid outside of the three year time limit prescribed by s 82(2a) without having first heard and determined an application to extend the time within which to lay the charge?

Held:

1.  The answer to the question referred by the Legal Practitioners Disciplinary Tribunal is answered: No.

Legal Practitioners Act 1981 (SA) ss 82, 83, 84, referred to.
Legal Profession Conduct Commissioner v Fittock [2017] SASCFC 169, considered.

Question of Law Reserved 2 OF 2016
LEGAL PROFESSION CONDUCT COMMISSIONER v A PRACTITIONER
[2019] SASCFC 126

FULL COURT:         Kourakis CJ, Kelly and Parker JJ (ex tempore)

1. THE COURT:      For the reasons which follow, the Court answers the question of law stated by the Legal Practitioners Disciplinary Tribunal (the Tribunal), no.

2. Section 82 of the Legal Practitioners Act 1981 (SA) (the LPA) does not empower the Tribunal to embark upon the inquiry proper of a charge laid out-of-time by the Commissioner nor to exercise the powers conferred by s 84 unless and until the Tribunal has determined to allow an extension of time pursuant to s 82(2a) of the LPA.

3. The decision in the Full Court of Fittock (No 2) concerned the power of the Tribunal to hear and determine an application for an extension of time before embarking on the inquiry proper.[1]

   [1]    See Legal Profession Conduct Commissioner v Fittock [2017] SASCFC 169 at [14], [32], [34] (Kourakis CJ and Blue J); [37] (Parker J).

4. The answer given to this question does not preclude the Tribunal, the Commissioner and the Practitioner fashioning procedures which would facilitate the expeditious determination of both the extension of time application and the inquiry proper.

5. Some of those procedures were discussed in the course of the submissions we have just heard.  The Court emphasises that it is the duty of both the Commissioner and the Practitioner charged to facilitate the expeditious determination of both an application for an extension of time and the inquiry itself.

6. There is no reason why the Practitioner charged could not consent to the hearing and determination of the application for an extension of time and, if the extension is granted, the conduct of the inquiry into the charge on the same day or immediately following days.

7. The private right to seven days’ notice of the hearing of the inquiry may be waived by the Practitioner. 

8. If consent is not given, the Tribunal may list the hearing of an application for an extension of time on one day, having tentatively listed the inquiry on a day not less than seven days after that day. That procedure would enable the Tribunal, if it were in a position to announce its decision to extend time on the day on which the application for an extension is heard, to give the notice required by s 83 of the LPA of the holding of the inquiry on the day which had earlier been set aside.