Legal Profession Conduct Commissioner v Fittock
[2017] SASCFC 169
•19 December 2017
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
LEGAL PROFESSION CONDUCT COMMISSIONER v FITTOCK
[2017] SASCFC 169
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Blue and The Honourable Justice Parker)
19 December 2017
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 allowed an application from the Legal Profession Conduct Commissioner who sought an extension of time within which a charge of unprofessional conduct may be laid against the respondent. The Tribunal constituted itself with a single presiding member pursuant to section 80(1b) of the Legal Practitioners Act 1981 (SA), as it considered the application for an extension of time to be a ‘procedural or interlocutory matter’ with respect to section 80(1b).
This is an appeal against the decision of a Judge of this Court who allowed an appeal against the orders of the Tribunal, setting aside the Tribunal’s decision and remitting the matter back to the Tribunal for fresh consideration.
In issue on the appeal to the single Judge and on this appeal is whether the matter was ‘procedural or interlocutory’ within the meaning of s 80(1b) and therefore whether the Tribunal was not permitted to sit as a singular presiding member.
Held, per Kourakis CJ and Blue J (Parker J concurring):
1. An application for an extension of time is not a procedural or interlocutory matter within the meaning of section 80(1b) (at [34]).
2. Appeal dismissed (at [35]).
Legal Practitioners Act 1981 (SA) ss 68, 69, 80, 80(1), 80(1b), 82, 82(1), 82(2), 82(2a), 82(2a)(b), 82(4); Limitation of Actions Act 1936 (SA) s 38A, referred to.
Cowie v State Electricity Commission of Victoria [1964] VR 788; Mibor Investments Pty Ltd & Ors v Commonwealth Bank of Australia [1994] 2 VR 290; Hall v The Nominal Defendant (1966) 117 CLR 423; Agtrack (NT) Pty Ltd v Hatfield (2005) 223 CLR 251; Licul & Ors v Corney (1976) 180 CLR 213; Hardel Pty Ltd v Burrell & Family Pty Ltd (2009) 103 SASR 408, discussed.
City of Onkaparinga v Hassell Pty Ltd & Ors [2007] SASC 163, considered.
LEGAL PROFESSION CONDUCT COMMISSIONER v FITTOCK
[2017] SASCFC 169Full Court: Kourakis CJ, Blue and Parker JJ
KOURAKIS CJ and BLUE J: On 31 July 2017 a Judge of this Court allowed an appeal brought by the legal practitioner, Mr Fittock, against an order made by a single member of the Legal Practitioners Disciplinary Tribunal (‘the Tribunal’) allowing the Legal Profession Conduct Commissioner (‘the Commissioner’) an extension of time in which to charge Mr Fittock with unprofessional conduct. The particulars of the charge were that Mr Fittock engaged in false and misleading conduct in that he purported to assert that certain legal works had been performed by him, and that monies were owing to him for the said works, in circumstances where Mr Fittock had not in fact performed the works. The Judge held that an exercise of the power of the Tribunal to grant an extension of time is not ‘a procedural or interlocutory matter’ within the meaning of s 80(1b) of the Legal Practitioners Act 1981 (SA) (‘the LP Act’). It followed that the Tribunal was bound to constitute itself as a panel of three of its members pursuant to s 80(1) of the LP Act. The Commissioner appeals against that decision on the ground that the matter constituted by an application to extend time is an interlocutory one.
In the respondent’s written outline, it was contended for Mr Fittock that the judgment of the Judge was in itself an interlocutory judgment and that permission to appeal to this Court was required. On the hearing of the appeal however the parties informed the Court that they had come to the following agreement:
1.To the extent permission to appeal to the Full Court is required, the respondent practitioner will not oppose such permission being granted.
2.In the event that the Commissioner’s appeal is successful as to the composition of the Tribunal:
a. The Commissioner’s application for an extension of time is remitted to the Tribunal for a re-hearing, including as to the merits of the charge.
b. The Commissioner is to pay the respondent practitioner’s costs of the Full Court appeal (as per order 1 of 13 October 2017 per Stanley J).
c. The respondent practitioner is to have his costs of the appeal before Vanstone J in any event.
The question is one of general importance and is arguable. We would accept Mr Fittock’s concession and grant permission to appeal noting the agreement between the parties on the questions of remitter and costs. In the context of Part 6 Division 4 of the LP Act, the grant of an extension of time finally determines a substantive right of the parties. It conclusively removes a practitioner’s immunity from disciplinary conduct on a charge brought out of time by the Commissioner. The grant of an extension of time is also determinative of the jurisdiction of the Tribunal. It is therefore more than a ‘procedural or interlocutory matter’. We would dismiss the appeal. We elaborate on our reasons below.
The Legislation
Section 80 of the LP Act relevantly provides:
80—Constitution and proceedings of Tribunal
(1)Subject to subsection (1a), in relation to proceedings instituted before the Tribunal alleging professional misconduct by a legal practitioner, the Tribunal consists of a panel of three of its members chosen by the presiding member to constitute the Tribunal for the purposes of those proceedings (one of whom may be the presiding member).
(1a)In relation to—
(a) proceedings instituted before the Tribunal alleging professional misconduct by a legal practitioner where—
(i)the charge is laid by the Commissioner; and
(ii)the Commissioner indicates to the Tribunal when laying the charge that, in the opinion of the Commissioner, the alleged misconduct does not warrant any of the following orders:
(A)an order that the legal practitioner's name be struck off the roll of legal practitioners;
(B)an order suspending the practitioner's practising certificate for a period exceeding 3 months;
(C)an order that the legal practitioner pay a fine exceeding $10 000; or
(b) proceedings instituted before the Tribunal alleging only unsatisfactory professional conduct by a legal practitioner; or
(c) proceedings on an appeal against a determination of the Commissioner under section 77J,
the Tribunal consists of 1 of its members chosen by the presiding member to constitute the Tribunal for the purposes of those proceedings (and that member may be the presiding member).
(1b)Despite subsections (1) and (1a), the Tribunal may, for the purposes of dealing with a procedural or interlocutory matter, consist of 1 of its members chosen by the presiding member to constitute the Tribunal or be otherwise constituted as determined by the presiding member.
(1c)The Tribunal when constituted of a panel of 3 of its members must include at least 1 member who is a legal practitioner and at least 1 member who is not a legal practitioner but when the Tribunal consists of only 1 of its members the member constituting the Tribunal must be a legal practitioner.
…
Section 80 of the LP Act does not confer jurisdiction on the Tribunal. It regulates how the Tribunal is to be constituted when hearing particular matters falling within its jurisdiction. Section 80(1b) of the LP Act confers a discretion on the presiding member of the Tribunal to constitute the Tribunal by a single member determined by him or her ‘for the purposes of dealing with a procedural or interlocutory matter’ in a proceeding which is within jurisdiction.
It is convenient here to mention the distinction between a ‘procedural or interlocutory matter’ and an interlocutory application or judgment.
An application may be interlocutory even though it seeks orders which will finally determine the substantive rights of the parties. For example, an application may be brought for a judgment on the whole action or a particular issue in the action based on what is said to be an alleged admission in a pleading. If the application is successful the rights and interests of the parties in the controversy, or at least some of them, will be finally determined. However the application itself is properly described as interlocutory in that if it is dismissed it may nonetheless be renewed. At the very least it may be dismissed without finally determining the action or any of the rights or interests of the parties. We acknowledge that there is disputed authority on the question of whether a summary judgment is a final or interlocutory order. Nonetheless if it be the case that a summary judgment is a final order, an application for summary judgment is nonetheless an interlocutory application because if it is dismissed it does not finally determine the action and a further application may be brought.
A final judgment on only part of the legal controversy arising in an action, for example a judgment determining a preliminary question of law or fact ahead of a trial, is nonetheless an interlocutory judgment for the purpose of an appeal provision until all of the issues in the action are determined, even though it may finally determine some of the substantive rights and interests in dispute.[1]
[1] City of Onkaparinga v Hassell Pty Ltd & Ors [2007] SASC 163 at [28]-[30].
Section 82 of the LP Act provides:
82—Inquiries
(1)Subject to this section, a charge may be laid under this section alleging unsatisfactory professional conduct or professional misconduct—
(a) on the part of any legal practitioner; or
(b) on the part of any former legal practitioner who was at the time of the alleged unsatisfactory professional conduct or professional misconduct a legal practitioner.
…
(2)A charge may be laid under this section by—
(a) the Attorney-General; or
(b) the Commissioner; or
(c) the Society; or
(d) a person claiming to be aggrieved by reason of the alleged unsatisfactory professional conduct or professional misconduct.
(2a)A charge relating to conduct by a legal practitioner must be laid before the Tribunal within 3 years of the conduct unless—
(a) the charge is laid by the Attorney-General; or
(b) the Tribunal allows an extension of time.
…
(4)Where a charge has been laid under this section, the Tribunal must, subject to subsection (5), inquire into the conduct of the legal practitioner or former legal practitioner to whom the charge relates.
(5)The Tribunal may summarily dismiss any charge that it considers frivolous or vexatious and may, for the purpose of dealing with such a charge, consist of 1 member.
(6)If after conducting an inquiry under this section the Tribunal is satisfied—
(a) that a legal practitioner is guilty of unsatisfactory professional conduct or professional misconduct it may exercise any one or more of the following powers:
…
(8)If, after conducting an inquiry into a charge alleging professional misconduct by a person who is a legal practitioner or former legal practitioner, the Tribunal—
(a) is not satisfied that the person is guilty of professional misconduct; but
(b) is satisfied that the person is guilty of unsatisfactory professional conduct,
the Tribunal must find the person not guilty of professional misconduct, but may find the person guilty of unsatisfactory professional conduct.
Section 82(1) of the LP Act limits the charges which may be laid before the Tribunal to charges of unsatisfactory professional conduct or professional misconduct, which are, in turn, defined by ss 68 and 69 of the LP Act, and s 82(2) of the LP Act prescribes who may lay those charges.
In that context, ss 82(1) and 82(4) of the LP Act both confer jurisdiction on the Tribunal, and impose a duty, save for frivolous or vexatious charges, to inquire into the conduct of the charged practitioner.
It is next important to observe a peculiar feature of the drafting of s 82(2a) of the LP Act. We refer to a charge laid outside the period of three years as a ‘stale charge’. Insofar as that subsection provides for the bringing of a stale charge by the Attorney-General, there is no difficulty in the application of its text. The inquiry of the Tribunal will simply be to identify the complainant as the Attorney-General, in which case the time elapsed between the conduct and the laying of the charge has no legal significance.
If the complainant laying a stale charge is the Commissioner, the Law Society or an aggrieved person, the stale charge will not effectively have been laid pursuant to s 82(2) of the LP Act unless an extension of time is granted. The LP Act does not confer a jurisdiction on the Tribunal, independently of s 82(1) and s 82(4) of the LP Act, to consider an ancillary application relating to a charge and in particular to exercise its discretion pursuant to s 82(2a) of the LP Act before a charge is laid. Accordingly the preamble to s 82(2a) of the LP Act cannot be applied literally because a charge must be laid before the Tribunal can consider whether or not to allow an extension of time.
The practitioner contends that a provision should be read into the LP Act which both empowers a complainant other than the Attorney-General to make an application for an extension of time before laying a charge and confers a jurisdiction on the Tribunal to hear that application. There is no doubt that the express words of subsections (2) and (2a) are somewhat elliptical. However the provision which the practitioner contends should be implied is more extensive, as a matter of statutory construction, and, as a matter of procedure, more cumbersome, than is necessary. The better construction is that a stale charge laid by a complainant other than the Attorney-General properly invokes the jurisdiction of the Tribunal unless and until at some point in the course of the proceeding the Tribunal refuses to allow an extension of time. On the Tribunal allowing an extension of time, s 82(2a) of the LP Act operates as a condition subsequent, retrospectively authorising the laying of the charge, and conferring jurisdiction on, and enlivening the duty of, the Tribunal to inquire into the conduct pursuant to s 82(4) of the LP Act.
Section 82(2a)(b) extension is not interlocutory
In Cowie v State Electricity Commission of Victoria[2] Gowans J held that an application for permission to bring an action against a statutory authority, notwithstanding a failure to give notice of action pursuant to the Limitation of Actions Act 1958 (Vic), was not an interlocutory motion because the determination of the application would finally decide the vulnerability to, or immunity from, suit of the statutory authority.
[2] [1964] VR 788.
In Mibor Investments Pty Ltd & Ors v Commonwealth Bank of Australia,[3] in the context of an action to set aside a statutory demand, Hayne J explained the distinction between interlocutory and substantive applications by reference to Cowie as follows:[4]
The question whether an application is interlocutory for the purposes of r.43.03(2) is not to be decided according to whether the order made on determination of the application would be interlocutory for purposes of appeal: see eg Cowie. It is to be determined according to whether the application will decide the rights of parties or is ‘… made for the purpose of keeping things in statu quo till the rights can be decided, or for the purpose of obtaining some direction of the Court as to how the cause is to be conducted, as to what is to be done in the progress of the cause for the purpose of enabling the Court ultimately to decide upon the rights of the parties’.
In my view this application is an interlocutory proceeding. Unlike the question in Cowie’s Case (which was whether a statutory authority had immunity from suit in a particular case because of a failure to give notice under the Statute of Limitations) the present proceeding determines only whether a demand may stand or not. If the demand stands, the consequences are serious but there is no final determination of any right. All that follows from the demand not being set aside is that the company will have a further perhaps short period within which it must meet the demand or face a conclusion that it is to be presumed insolvent (unless it proves the contrary). No order can be made under s 459G which finally determines the rights of parties.
(citations omitted)
[3] [1994] 2 VR 290.
[4] Mibor Investments Pty Ltd & Ors v Commonwealth Bank of Australia [1994] 2 VR 290 at 296-297.
In Hall v The Nominal Defendant[5] the Court by majority (Taylor, Windeyer and Owen JJ, Barwick CJ dissenting) held that an order made pursuant to s 65A(3) of the Traffic Act 1925 (Tas) (‘the Traffic Act’)[6] refusing an application for an extension of time within which to institute proceedings against a nominal defendant is not a final order for the purposes of s 35(1)(a) of the Judiciary Act 1903 (Cth) (‘the Judiciary Act’). Section 35(1)(a) of the Judiciary Act then provided that an appeal to the High Court could not be brought from an interlocutory judgment of a State Supreme Court without leave of the Supreme Court or the High Court. Taylor and Owen JJ held that the dismissal of an application for an extension of time in which to proceed did not preclude the unsuccessful applicant from making a further application.
[5] (1966) 117 CLR 423.
[6] Section 65A of the Traffic Act provided:
(1)Subject to this section, where the death of, or bodily injury to, a person is caused by or arises out of the use of a motor vehicle but the identity of the motor vehicle cannot be established, any person who could have obtained a judgment against the driver of the motor vehicle in respect of that death or bodily injury may obtain against the nominal defendant the [same] judgment …
(2)A person is not entitled to obtain a judgment under this section unless -
(a) within one month after the occurrence of the accident he gives to the Attorney-General notice of intention to make a claim under this section, together with a short statement of the grounds thereof; and
(b) he institutes proceedings against the nominal defendant within six months after the occurrence of the accident.
(3)Notwithstanding anything in subsection (2) of this section, the court, upon application being made in that behalf, may, after hearing such of the persons affected or likely to be affected by the application as it thinks fit, extend the time limited by that subsection for giving notice of intention to make a claim or for instituting proceedings, or both, for such further period as the court thinks fit.
(4)The powers conferred on a court by subsection (3) of this section may be exercised notwithstanding that the times limited by subsection (2) of this section have, or either of those times has, expired.
Windeyer J acknowledged the difficulty caused by the mass of apparently conflicting decisions on the distinction between final and interlocutory orders and then continued:[7]
In most cases the test that seems to be most satisfactory, and the one that accords most nearly with what has been said on the subject in this Court, is it seems to me to look at the consequences of the order itself and to ask does it finally determine the rights of the parties in a principal cause pending between them. It is never enough to ask simply does the order finally determine the actual application or matter out of which it arises; because, subject to the possibility of an appeal, every order does that, unless it be an order that is expressly declared to be subject to variation.
[7] Hall v The Nominal Defendant (1966) 117 CLR 423 at 443.
Windeyer J concluded that even an order granting an extension of time was merely interlocutory for the following reasons:[8]
The effect of such decisions as there are of this Court on the point seems to me to be that when an action has been commenced between parties then whether an order in that action is interlocutory depends on whether or not it results in a final determination of that action. I say of ‘that action’ because it appears that the question depends more upon the action actually brought by a writ than upon the cause of action upon which the writ was founded. For example, it has been held that a judgment of non-suit is a final judgment, notwithstanding that it leaves the plaintiff at liberty to bring another action for the same cause. A judgment on a demurrer may thus be either final or interlocutory depending upon circumstances. These cases are all illustrative of the general proposition that a final order is one which finally disposes (subject only to appeal) of an action or an existing dispute between parties … But I find it hard to relate the test of finality or otherwise in the determination of a dispute between parties to an application under s 65A(3), because in such a case there is no existing dispute between parties and no existing action, and unless the prescribed times be complied with or extended there is no cause of action it seems to me … The question is, in effect, whether he should be permitted to bring an action. A refusal of this application means that he cannot do so. I am prepared to assume that in practical effect, if not in strict law, a refusal would preclude him from making another application for an extension of time. But does this mean that such a refusal would be a final order? On the whole I think not … The position when there is an existing dispute between the defined parties does not, I think, provide an analogy. There, as I have said, the cases shew that the determining factor is the effect of the order in establishing finally or otherwise the rights of the disputant parties — does it put an end to an existing dispute or existing action? But in a case such as this the character of the proceedings in which the order is made seems to me of more significance than is the result for the applicant. I am unable to accept the view that if an extension of time as sought were granted such an order would be a final order. It seems to me it would be interlocutory; and I think that the position is the same if the extension be refused or if a lesser time were allowed than was sought.
(underlining added; citations omitted)
[8] Hall v The Nominal Defendant (1966) 117 CLR 423 at 443-445.
Taylor and Owen JJ expressed no opinion on whether an order extending the time to bring an action pursuant to s 65A(3) of the Traffic Act was final or interlocutory.
It is the proper characterisation of an order granting an extension of time which is most apposite to the issue on this appeal. If an order granting an extension of time is a final order, then the underlying matter is not an interlocutory one even if a refusal to grant an extension is an interlocutory decision. It is helpful therefore to consider more closely the reasons of Barwick CJ who held that both orders dismissing and granting an extension of time were final.
Whereas Windeyer J’s conclusion was influenced to a large degree by the view that a final order is generally one which is dispositive of an entire action, Barwick CJ closely analysed the nature of the statutory limitation on bringing the action. Barwick CJ held that s 65A of the Traffic Act gave a right of action if the action was instituted within the stated time but not otherwise. An order of the court extending time in a matter brought out of time restored a lost right. Substantive rights and liabilities were therefore dependent on, and finally determined by, the grant of an extension of time.
Barwick CJ concluded that:[9]
It is clear that the statute gives a right of action to a person of the described class in the stated circumstances if the right is exercised by the commencement of an action within the stated time after due notice to the nominal defendant.
(emphasis added)
[9] Hall v The Nominal Defendant (1966) 117 CLR 423 at 428.
Having so characterised the limitation period, it is not surprising that Barwick CJ held that an order extending the time was final and not merely procedural. An order of a court extending the time for bringing an action which is otherwise statute barred effectively determines an element of the cause of action. The limitation is, to use the language adopted in a more recent decision of the High Court, enacted as ‘a condition which is of the essence of the right to damages rather than providing for no more than a bar to the enforcement of an existing right’.[10]
[10] Agtrack (NT) Pty Ltd v Hatfield (2005) 223 CLR 251 at [51].
Barwick CJ then turned to a consideration of whether an order refusing an extension of time is also a final order. He held that it is. Barwick CJ distinguished an extension of the time within which to bring an action from applications to extend the time in which to take a step in an action and applications to set aside a default judgment. The latter are classically interlocutory. His Honour explained that such interlocutory steps were ‘under the control of and generally within the discretion of the Court in which the action is brought’, whereas the action itself ‘is brought to enforce rights which, if they exist, derive from facts or circumstances apart from the statute or jurisdiction which gives the court control of the proceedings’.[11] Barwick CJ also distinguished the order sought in Hall from the dismissal of an action for a deficiency in the statement of claim. His Honour explained that in such cases ‘the right, if any exists, is not determined by the order’.
[11] Hall v The Nominal Defendant (1966) 117 CLR 423 at 429.
Contrasting the non-suiting of a plaintiff referred to by Windeyer J in the passage cited at [19] above and the dismissal of a claim for a deficiency in the statement of claim is instructive. A non-suit disposes of an action but does not preclude a plaintiff bringing another action. Yet from the perspective of the defendant the order of a non-suit denied it the practical certainty of a final order dismissing the plaintiff’s claim on the merits. There was good reason therefore to treat the order as final and therefore subject to appeal by an aggrieved defendant. A deficient, frivolous or vexatious statement of claim on the other hand does not effectively bring a legal controversy before a court and therefore, when dismissed, does not finally determine any controversy.
In Licul v Corney[12] the High Court held that orders made for substituted service and orders made setting aside those orders were interlocutory orders for the purposes of s 35(1)(a) of the Judiciary Act. Gibbs J said:
The distinction between final and interlocutory judgments is not always easy to draw and there has been disagreement as to the test by which the question whether a judgment is final or interlocutory is to be determined. One view — which was preferred by the Court of Appeal in Salter Rex & Co v Ghosh — is that the test depends on the nature of the application made to the Court. The other view which, since Hall v Nominal Defendant, should, I think, be regarded as established in Australia, depends on the nature of the order made; the test is: Does the judgment or order, as made, finally dispose of the rights of the parties? Within either of those tests the judgment of the Full Court in the present case is not a final judgment. It does not have the effect of finally disposing of the rights of the parties. It leaves it open — at least in theory — to the applicants to make a further application, upon prior notice served on the respondent himself, for an extension of time for service of each summons, and if that extension is granted, and the summonses are served, to proceed with the actions. The order is therefore not final in nature whatever its practical effect may be.
(citations omitted)
[12] (1976) 180 CLR 213 at 225.
In Hardel Pty Ltd v Burrell & Family Pty Ltd, Kourakis CJ summarised the authorities as follows: [13]
[13] (2009) 103 SASR 408 at [24]; [34]-[36].
[24]The discussion in those passages of the interrelationship between the underlying dispute or matter involving the parties and the action which is instituted to resolve it is of considerable importance. An action is brought so that the controversy between the parties may be adjudicated. A final order determines the underlying matter, or some part of it, and for that reason will generally dispose of the action or an element of it. An interlocutory order, on the other hand, determines an aspect of the forensic procedure in accordance with which the matter will be adjudicated. For that reason it will generally direct the course of further proceedings rather than determine any part of the subject matter of the dispute. It must be remembered that the action itself is no more than the procedure by which the court’s jurisdiction is invoked; it must not be conflated with the subject matter of the controversy. Consequently, an order bringing an action to an end by dismissal of the action or default judgment may still be interlocutory. The anomalous position of an order non-suiting a party is the result of the peculiar history and features of that procedure.
…
[34] In my respectful opinion there is much utility in the reformulation of the interlocutory/final dichotomy by reference to the concept of procedural or adjectival orders on the one hand, and orders determining substantive rights and obligations on the other. Disputed questions of law may arise between persons about the scope and extent of those rights and obligations, as may factual disputes about the circumstances which attract them. Rights carry with them a co-relative right to enforcement or remedial orders if those obligations are breached. It is the function of courts to adjudicate those controversies. As Kitto J observed in R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd:
[J]udicial power involves, as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons.
[35]A final order is generally one that creates the ‘new charter’ to which Kitto J referred. It is the very essence of the exercise of judicial power that it finally settles the controversy which is the subject matter of the action, and thereby precludes any further application for another or different orders with respect to that matter; to ask whether a further application can be brought for the purpose of determining whether an order is final or interlocutory conflates cause and effect.
[36]Conversely, decisions on whether the court’s jurisdiction to adjudicate a controversy has properly been invoked, and on whether its procedures for determining that controversy have been complied with, are generally adjectival and therefore interlocutory. Speaking loosely it might be said that parties have a right to the correct and proper application of the procedural rules of the court to the litigation they conduct within it. Indeed, if the proper procedure is not applied, the parties can generally seek leave to appeal procedural orders. However, parties do not have ‘rights’ against the judicial tribunals that determine their controversies in the same sense that they have rights against each other under the substantive law.
(citations omitted)
As a general rule, procedural and interlocutory matters do not concern the substantive rights or interests of the parties. Interlocutory or procedural matters are adjectival, that is they relate to the course the action will take and not the determination of the substance of a legal controversy. Most commonly they deal with the course of the proceedings including such things as timetabling, discovery, the form in which evidence will be taken and submissions. Section 80(1b) of the LP Act, which contemplates that procedural or interlocutory matters may be dealt with by a member of the Tribunal who is not one of the panel of three members constituted pursuant to s 80(1) of the LP Act, reinforces that connotation of the phrase.
Limitation of Actions Act 1936 (SA)
Mr Fittock contended that s 38A of the Limitation of Actions Act 1936 (SA) (the Limitation Act) determines as a matter of law that no matters arising out of a limitation law can be procedural or interlocutory. The section provides:
38A—Limitation laws are substantive laws
(1) A limitation law of the State is a substantive law of the State.
(2) A limitation law of another State or a Territory of the Commonwealth, or of New Zealand, is to be regarded as a substantive law of that place and applied accordingly.
(3) If a court in this State applies a limitation law of another State or a Territory of the Commonwealth, or of New Zealand, a discretion conferred by that law is to be exercised, as far as practicable, in the same way as courts in that other place exercise the discretion in comparable cases.
The purpose of s 38A of the Limitation Act is to remove the uncertainty of the common law conflict rules by providing that a limitation law is treated in the same way as laws governing liability. The statutory characterisation of a limitation law as a ‘substantive law’ cannot control the meaning of the phrase ‘interlocutory or procedural matter’ in s 80(1b) of the LP Act.
Conclusion
Section 82(2a) confers on a legal practitioner immunity from a charge of unprofessional conduct laid by a person other than the Attorney-General relating to conduct occurring more than three years before the charge is laid. Moreover, the Tribunal has no jurisdiction to conduct an inquiry into a stale charge brought by a complainant other than the Attorney-General.
Whether or not a decision dismissing an application for an extension of time is a final order, and whether a subsequent application relating to the same conduct may be brought after dismissal, need not be decided for the purposes of this appeal. There is some utility in allowing subsequent applications having regard to the protective nature of the jurisdiction. More cogent evidence of the same charge may be discovered or other charges of similar conduct may be made. On the other hand, because the application is brought within, and as part of the laying of a charge, the refusal of the extension of time may effect a final dismissal of the charge.
Whether an order dismissing an application is interlocutory or not, the ‘matter’ constituted by an application for an extension of time is not a procedural or interlocutory matter because the disposal of the application favourably to the applicant will finally determine a condition on the Tribunal’s power to inquire and discipline. The Tribunal will thereafter proceed to inquire into the practitioner’s conduct, and to make final orders on that inquiry. It is therefore not a ‘procedural or interlocutory matter’ within the meaning of s 80(1b) of the LP Act.
We would dismiss the appeal.
PARKER J: I agree that the appeal should be dismissed. I also agree with the joint reasons of the Chief Justice and Blue J, save that I would take a different approach to one aspect of the matter.
The Chief Justice and Blue J have discussed at [14] the contention by the practitioner that a provision should be read into the LP Act that empowers a complainant other than the Attorney-General to apply for an extension of time before laying a charge and also confers jurisdiction on the Tribunal to hear such an application. Their Honours have rejected that contention and found that a stale charge properly invokes the jurisdiction of the Tribunal, unless and until the Tribunal refuses to allow an extension of time. The grant of an extension retrospectively authorises the laying of the charge and empowers and requires the Tribunal to inquire into the impugned conduct.
My analysis proceeds on a somewhat different basis. In my view, the introductory words in s 82(2a) operate as a prohibition upon the laying of a charge against a practitioner after three years have passed from the impugned conduct. Paragraph (a) creates an exception to that prohibition where the charge is laid by the Attorney-General. Paragraph (b) creates a further exception. That further exception only operates in cases where the Tribunal has allowed an extension of time.
The authorisation granted by the LP Act to allow an extension of time necessarily also operates as a conferral of jurisdiction to consider whether an extension should be allowed. Before the Tribunal can consider the exercise of its jurisdiction and power under s 82(2a)(b), the proposed charge must come before the Tribunal. That necessarily requires the Tribunal Registry to receive what is effectively an inchoate charge and for that to be transmitted to the Tribunal for hearing under s 82(2a)(b). In that sense, the lodgement of an inchoate charge is tantamount to the making of an application for an extension of time. I see no reason why lodgement of an inchoate charge cannot be referred to, for administrative purposes, as the making of an application for an extension of time.
It is not necessary for the LP Act to authorise the lodgement with the Tribunal of an inchoate charge against the practitioner. The only effect of the receipt of such a document is that the Tribunal must consider the exercise of its power under s 82(2a)(b) to grant or refuse an extension of time. In that sense, the inchoate charge effectively operates as a request for the Tribunal to consider the exercise of its power to extend time.
If and when the Tribunal exercises its power under s 82(2a)(b), an exception to the three year time limit is created in the particular case. The three year time limit thereby ceases to have any application. Upon that occurring, what had hitherto been an inchoate charge operates in the ordinary way and thereby empowers and requires the Tribunal to inquire into the impugned conduct.
My preferred construction avoids the difficulty that may arise if a stale charge is regarded as properly invoking the jurisdiction of the Tribunal until such time as it may decide otherwise. In my view, that interpretation does not give proper effect to the opening words of s 82(2a), which operate as a prohibition upon the laying of a charge after three years unless one of the exceptions contained in paragraphs (a) or (b) are satisfied. Furthermore, under that interpretation a stale charge might be regarded as operative and of full effect under the LP Act until it is annulled by a refusal by the Tribunal to grant an extension of time. I do not regard that as correct. In my view, the correct position is that a charge made more than three years after the impugned conduct has no effect under the LP Act until the Tribunal grants an extension of time.
While my interpretation of s 82(2a) differs from that of the Chief Justice and Blue J, I agree with their ultimate conclusions. It is unnecessary to decide whether a decision by the Tribunal to refuse an extension of time is a final order and whether that request may be renewed with the Tribunal. A decision to allow an extension of time will remove the prohibition upon the Tribunal enquiring into and determining a stale charge. Such a decision is not ‘a procedural or interlocutory matter’.
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