Legal Profession Conduct Commissioner v Richardson - [2016] SASCFC 42

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Civil)
LEGAL PROFESSION CONDUCT COMMISSIONER v RICHARDSON
[2016] SASCFC 42
Judgment of The Full Court
(The Honourable Justice Kelly, The Honourable Justice Blue and The Honourable Justice Nicholson)
20 April 2016
PROCEDURE - INFERIOR COURTS - SOUTH AUSTRALIA - OTHER COURTS AND TRIBUNALS
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GENERALLY
ADMINISTRATIVE LAW - JUDICIAL REVIEW - PROCEDURE AND EVIDENCE - EXTENSION OF TIME - GENERALLY
ADMINISTRATIVE LAW - JUDICIAL REVIEW - REVIEWABLE DECISIONS AND CONDUCT
Action seeking declarations.
On 30 April 2015, the Legal Profession Conduct Commissioner laid in the Legal Practitioners Disciplinary Tribunal a charge alleging unprofessional conduct by Mr Richardson. The charge contained three counts relating to conduct alleged to have occurred more than five years earlier and two counts alleging conduct some of which was alleged to have occurred more than five years earlier and some of which was to have occurred more than three years earlier.
On 1 July 2014, subsection 82(2a) of the Legal Practitioners Act 1981 had been amended to reduce the prima facie limitation for laying charges from five years to three years and to empower the Tribunal to allow an extension of time instead of the Attorney-General consenting to the laying of a charge outside the prima facie limitation period.
At a preliminary hearing of the charge before the Tribunal, the issue arose whether the Tribunal had power to allow an extension of time and whether the Commissioner had power to lay the charge. That issue turned on the question whether the amendment to subsection 82(2a) applied to conduct that occurred more than five years ago before 1 July 2014.
Held per Blue J (Kelly and Nicholson JJ agreeing):
1. On the proper construction of paragraph 14(1) of Schedule 2 to the Legal Practitioners (Miscellaneous) Amendment Act 2013. The amended Act applied both to the commencement and prosecution of proceedings in the Tribunal (at [21]-[25]).
2. Paragraph 14(1) applies to proceedings commenced outside the old five year limitation period notwithstanding that they are commenced without the Attorney-General’s consent (at [21]–[25]).
3. The presumption than an amendment that increases or relaxes a limitation period is not intended to apply to a proceeding barred by the expiration of the limitation period in the absence of express provision or necessary intendment has no operation in light of the express provisions of paragraph 14(1) (at [25]).
4. The Commissioner is entitled to declarations that the charge is not invalid to the extent that it relates to conduct that occurred more than five years before 1 July 2014 and that the Tribunal has power to allow an extension of time for the laying of the charge (at [26]–[28]).
Acts Interpretation Act 1915 SA s 16; Legal Practitioners Act 1981 (SA) s 14(1), s 14(2), s 71, s 72, s 74, s 82, s 82(2a), s 84, s 77J; Legal Practitioners (Miscellaneous) Amendment Act 2013 (SA); Supreme Court Act 1935 (SA) s 48, referred to.
Australian Iron & Steel Ltd v Hoogland (1962) 108 CLR 471; G F Heublein and Bro Incorporated v Continental Liqueurs Proprietary Limited (1962) 109 CLR 153; Jennings Constructions v Workers Rehabilitation & Compensation Corporation (1998) 71 SASR 465; Karounos v Flavel (1984) 75 FLR 46; Maxwell v Murphy (1957) 96 CLR 261; Rodgers v Revenue SA, Department of Treasury and Finance (2014) 240 IR 202; Yrttiaho v The Public Curator of Queensland (1971) 125 CLR 228, considered.

LEGAL PROFESSION CONDUCT COMMISSIONER v RICHARDSON
[2016] SASCFC 42
Full Court: Kelly, Blue and Nicholson JJ
KELLY J:

I agree with Blue J.
BLUE J:
The Legal Profession Conduct Commissioner seeks declarations that he has power to lay charges in the Legal Practitioners Disciplinary Tribunal against Paul Anthony Richardson in relation to conduct alleged to have occurred before 1 July 2009 and that the Tribunal has power to extend the time within which the Commissioner may lay charges in relation to such conduct.
By consent of the parties, the action was referred to the Full Court pursuant to section 48 of the Supreme Court Act 1935 (SA).
Background
Before 1 July 2014, it was the function of the Legal Practitioners Conduct Board under section 74 of the Legal Practitioners Act 1981 (SA) (the Act), amongst others, to investigate suspected misconduct by legal practitioners, impose sanctions in relation to minor misconduct, lay charges in the Tribunal alleging misconduct, and commence disciplinary proceedings in the Supreme Court on the recommendation of the Tribunal.
Before 1 July 2014, section 82 empowered the Board, the Attorney-General, the Law Society or any person aggrieved to lay a charge in the Tribunal alleging misconduct. Subsection 82(2a) provided that a charge laid in the Tribunal must be laid within five years of the relevant conduct unless laid by the Attorney-General or the Attorney-General gave written consent to the laying of the charge.
On 1 July 2014, under amendments to the Act effected by the Legal Practitioners (Miscellaneous) Amendment Act 2013 (SA) (the Amendment Act), the office of Legal Profession Conduct Commissioner was created. Gregory Mornington May was appointed as Legal Profession Conduct Commissioner (the Commissioner) pursuant to section 71 of the amended Act. The functions of the Commissioner under section 72 of the amended Act encompassed and became more extensive than the functions of the Board under the unamended Act.
Clause 13 of Schedule 2 to the Amendment Act (Schedule 2) provided for the transfer of functions from the Board to the Commissioner. It provided for the assumption on 1 July 2014 by the Commissioner of the conduct of a complaint, investigation, charge in the Tribunal or disciplinary proceeding in the Supreme Court formerly conducted by the Board. Clause 14(1) of Schedule 2 contained transitional provisions relating to complaints, investigations and disciplinary proceedings which it is necessary to analyse in some detail.
On and from 1 July 2014, under the Amendment Act the concepts of “unsatisfactory conduct” and “unprofessional conduct” previously the subject of investigations by the Board and proceedings by the Board in the Tribunal and the Supreme Court were replaced by new concepts of “unsatisfactory professional conduct” and “professional misconduct”. The new concepts were defined in different terms to the old concepts and, speaking generally, were broader concepts. Clause 14(2) of Schedule 2 contained a transitional provision to the effect that the Amended Act applied in relation to conduct before 1 July 2014 but as if the new concepts were replaced with the old concepts as defined under the unamended Act.
On and from 1 July 2014, subsection 82(2) empowered the Commissioner, the Attorney-General, the Law Society or any person aggrieved to lay a charge in the Tribunal alleging misconduct. Subsection 82(2a) provided that a charge laid in the Tribunal must be made within three years of the relevant conduct unless the charge is laid by the Attorney-General or the Tribunal allows an extension of time.
On 30 April 2015, the Commissioner laid in the Tribunal a charge alleging unprofessional conduct by Mr Richardson. The charge contained five counts relating to conduct alleged to have occurred between January 1999 and August 2000 (the first and second counts); between January 1999 and February 2000 (the third count); in October 2005 and between May and August 2010 (the fourth count); and between July 2005 and August 2007 and between April and June 2011 (the fifth count).
The conduct the subject of the first to third counts and part of the fourth and fifth counts occurred more than five years before the charge was laid. The conduct the subject of the balance of the fourth and fifth counts occurred more than three years before the charge was laid. The Commissioner sought an extension of time from the Tribunal in which to lay the charge pursuant to subsection 82(2a)(b) of the amended Act.
On 18 November 2015, at a hearing in the Tribunal the question was raised whether the time limitation in respect of the laying of the charge was governed by subsection 82(2a) of the amended Act (as contended by the Commissioner) or by subsection 82(2a) of the unamended Act (as contended by Mr Richardson). If the latter, the Tribunal has no power to allow an extension of time and the Commissioner had no power to lay the charge, or at least to prosecute the charge, in the absence of the written consent of the Attorney-General.
Contentions of the parties
The Commissioner contends that, whatever might have been the position in the absence of paragraph 14(1) of Schedule 2, that provision expressly provides that the amended Act, including the amended version of subsection 82(2a), applies to the proceeding in the Tribunal.
Mr Richardson contends that, under common law and section 16(1)(c) of the Acts Interpretation Act 1915 (SA), the unamended version of subsection 82(2a) applies to the proceeding in the Tribunal and paragraph 14(1) of Schedule 2 has no application.
The legislative provisions
The unamended version of subsection 82(2a) provided:
A charge relating to conduct by a legal practitioner must be laid before the Tribunal within five years of the conduct unless the charge is laid by, or with the written consent of, the Attorney-General.
The amended version of subsection 82(2a) provides:
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.
The amendment effected two changes. First, it reduced the time limitation from five years to three years. Secondly, it transferred the function of allowing a charge to be laid outside the time limitation from the Attorney-General, normally to be exercised before laying the charge, to the Tribunal, to be exercised after laying the charge.
Paragraph 14(1) of Schedule 2 to the Amending Act provides:
14—Application of principal Act as amended to complaints, investigations, disciplinary proceedings and conduct
(1)Subject to this Schedule, the principal Act as amended by this Act applies in relation to—
(a)     any complaint received by the Commissioner or for which the Commissioner has assumed the conduct; and
(b)     any investigation commenced or continued by the Commissioner; and
(c)     any disciplinary proceedings commenced by the Commissioner, the Society or another person or for which the Commissioner has assumed the conduct,
whether the conduct to which the complaint, investigation or proceedings relates occurred before or after the relevant day.
Construction of paragraph 14(1)
It is common ground on appeal that the reference to “disciplinary proceedings” in paragraph 14(1)(c) encompasses proceedings in the Tribunal under Division 4 as well as proceedings in the Supreme Court under Division 5 of Part 6 of the Act. This is consistent with provisions contained within Division 4 itself that refer to “proceedings” in the Tribunal (including sections 84(1)(a), 84(2), 84A(3), 84B, 84C(1), 84C(2) and 85(2)). Any other construction of “disciplinary proceedings” would lead to an obvious lacuna in paragraph 14(1) contrary to the evident intention of the legislature.
Disciplinary proceedings in the Tribunal are governed by sections 82 to 88 of the Act. The principal provision is section 82 which addresses the commencement of proceedings (subsections (1) to (3)), summary determination of proceedings (subsection (5)), the hearing of proceedings (subsection (4)) and the determination of proceedings (subsections (6) to (8)). Mr Richardson accepts that, by virtue of paragraph 14(1) of Schedule 2, the amended form of section 82 applies generally to proceedings in the Tribunal in respect of pre-1 July 2014 conduct. However, Mr Richardson contends that the previous form of subsection 82(2a) applies to proceedings in respect of pre-1 July 2009 conduct.
On its face, subsection 82(2a) appears to be a provision of the Act as amended by the Amending Act that applies in relation to disciplinary proceedings pursuant to paragraph 14(1)(c) of Schedule 2 regardless of when the relevant conduct occurred. Mr Richardson contends that this is not so for three reasons.
First, Mr Richardson contends that paragraph 14(1)(c) applies only to proceedings that have already been commenced and not to the commencement itself. Secondly, Mr Richardson contends that paragraph 14(1)(c) only applies to proceedings that have been validly commenced and proceedings commenced outside the five year limitation period without the Attorney-General’s consent are invalid, null and void. Thirdly, the presumption that an amendment that increases or relaxes a limitation period is not intended to apply to a proceeding barred by the expiration of the limitation period in the absence of express provision or necessary intendment applies.[1]
[1] Maxwell v Murphy (1957) 96 CLR 261 at 268-269 per Dixon CJ, 273-277 per Williams J and 293 per Kitto and Taylor JJ; Yrttiaho v The Public Curator of Queensland (1971) 125 CLR 228 at 242 per Gibbs J (with whom Windeyer and Walsh JJ agreed); Acts Interpretation Act 1915 (SA) s 16(1)(c).
Mr Richardson’s first contention must be rejected. It would involve reading into paragraph 14(1)(c) words to the effect “that have already been” before the word “commenced” so that it would only apply to “any disciplinary proceedings that have already been commenced” and would have no application to the commencement of such proceedings. There is no warrant to read in such words and no warrant to distinguish between the commencement of proceedings and their subsequent prosecution. It would produce anomalous results. For example, it would entail that in respect of pre-1 July 2014 conduct a charge could be laid by the Board, which ceased to exist on 1 July 2014, and could not be laid by the Commissioner, who succeeded the Board. Similarly, subsection (1a) would not apply to preclude the laying of a charge if the Commissioner had exercised the power under section 77J to impose a penalty on a practitioner in respect of pre-1 July 2014 conduct.
Mr Richardson’s second contention must also be rejected. First, under the unamended Act on its proper construction, a charge laid outside the five year limitation period without the consent of the Attorney-General is not a nullity. The Tribunal must have jurisdiction to determine whether a charge has in fact been laid outside the five year limitation period and whether the Attorney-General has in fact consented to the laying of the charge, which may involve complex factual and legal issues. This entails that the laying of the charge is not a nullity but rather the charge is liable to be dismissed if the Tribunal determines that it has been laid outside time and the Attorney-General does not consent. A subsequent consent by the Attorney-General would enable the prosecution of the charge even if laid without the prior consent of the Attorney-General. Secondly, Mr Richardson’s contention is circular in that it assumes that the question whether the proceedings have been validly commenced is to be determined under the unamended Act rather than the amended Act. There is no warrant for making that assumption. The wording, context and evident purpose of paragraph 14(1)(c) all indicate that the legislature’s intention was that the amended Act should govern both the commencement and prosecution of proceedings in the Tribunal regardless of when the conduct occurred.
Mr Richardson’s third contention must also be rejected. First, the presumption relied upon by Mr Richardson has reduced, if any, force when the time limitation is not absolute but is liable to be extended in the exercise of a discretion by a decision-maker.[2] The substitution of subsection 82(2a) effected by the amending Act reduced the prima facie limitation period from five to three years but continued to provide for a discretionary extension of the prima facie limitation period. In the latter respect, it changed the decision-maker from the Attorney-General to the Tribunal and changed the timing of the extension decision from being before laying of the charge to after laying of the charge. The legislature must have considered that it was preferable that the Tribunal make a judicial decision rather than the Attorney-General making an administrative decision on extension, and is likely to have considered that this change was in the interests of practitioners against whom charges might be laid. Given the nature of the change, the presumption on which Mr Richardson relies has no application to paragraph 14(1) of Schedule 2. Secondly, even when it applies, the presumption is subject to a contrary intention being manifested by transitional provisions expressly or by necessary intendment.[3] The provisions of paragraph 14(1) evince a clear intention that the amended Act, including its time limitation provisions, is to apply to the commencement and prosecution of charges in the Tribunal in respect of conduct whenever it occurred, including conduct occurring more than five years before 1 July 2014.
[2] Australian Iron & Steel Ltd v Hoogland (1962) 108 CLR 471 at 476 per Dixon CJ, 483-484 per Taylor J and 489-490 per Windeyer J; Rodgers v Revenue SA, Department of Treasury and Finance [2014] SASCFC 2, (2014) 240 IR 202 at [84] per Blue J (with whom Vanstone J agreed).
[3] G F Heublein and Bro Incorporated v Continental Liqueurs Proprietary Limited (1962) 109 CLR 153 at 161-162 per Dixon CJ, Taylor and Windeyer J; Karounos v Flavel (1984) 75 FLR 46 at 55 per Zelling J (with whom Wells and Bollen JJ relevantly agreed); Jennings Constructions v Workers Rehabilitation & Compensation Corporation (1998) 71 SASR 465 at 472 per Doyle CJ (with whom Prior and Nyland JJ agreed).
Conclusion
The charge laid by the Commissioner against Mr Richardson on 30 April 2015 is not invalid because, or to the extent that, it relates to conduct that occurred more than five years before 1 July 2014.
The Tribunal has power under section 82(2a) of the amended Act to allow an extension of time for the laying of the charge. Whether the Tribunal exercises its discretion to allow such an amendment on the merits is a matter for the Tribunal.
I would hear the parties as to the precise form of the declarations to be made in light of the above conclusions.
NICHOLSON J:
I agree with Blue J.