Legal Services Commissioner v Murray

[2000] HCATrans 26

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S55 of 1999

B e t w e e n -

LEGAL SERVICES COMMISSIONER

Applicant

and

CRAIG WILLIAM MURRAY

First Respondent

ADMINISTRATIVE DECISIONS TRIBUNAL

Second Respondent

Application for special leave to appeal

GAUDRON J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 FEBRUARY 2000, AT 2.04 PM

Copyright in the High Court of Australia

MR W.R. HAYLEN, QC:   If the Court pleases, I appear with my learned friend, MS S.M. McNAUGHTON, for the applicant, the Legal Services Commission. (instructed by I.V. Knight, Crown Solicitor for New South Wales)

MR P.LeG. BRERETON, SC:   May it please the Court, I appear for the respondent. (instructed by Atanaskovic Hartnell)

GAUDRON J:   Yes.  Now before you say that exactly, you appear for the first respondent.

MR BRERETON:   Quite so, your Honour.

GAUDRON J:   And I hold a certificate from the Deputy Registrar, who certifies that she has been informed by the second respondent, who I believe is now the Administrative Decisions Tribunal, is that correct?

MR BRERETON:   Yes, that is so.

GAUDRON J:   That that respondent does not wish to be represented at the hearing of this matter and will submit to any order of the Court, save as to costs.  Yes, Mr Haylen.

MR HAYLEN:   Your Honour, this is, perhaps I can say, another case involving Part 10 of the Legal Profession Act 1987 of New South Wales.

GAUDRON J:   That does not advance your case very far.  We have had enough of them, have we not?

MR HAYLEN:   I thought the judgment of the Court on 3 February, especially in Justice Kirby’s judgment, was not exactly favourable in terms of the terms in which this Part is cast.  Can I just remind the Court that in August of last year this Part was looked at in Walsh’s Case; the 3 February decision this year is in Barwick.  A case that we say was of real significance and not properly dealt with by the Court of Appeal is a 1995 decision of the Appeal Division of the Victorian Supreme Court in Cornall. It really arises, if I can put it briefly, concerning the institution of proceedings under section 155 of the Legal Profession Act and the requirement that the Court of Appeal found that there was to be accorded natural justice and procedural fairness at the stage of the investigation and prior to the institution of proceedings.

HAYNE J:   What is the interest that the appellant has in agitating that issue when it has a ruling from the Court of Appeal of this State which, if unchallenged, would settle the law?  Why should it now be coming, seeking to agitate the matter again?

MR HAYLEN:   Well, your Honour, two things: firstly, the Legal Services Commissioner is a primary body, we would submit, allocated the task of investigating, although there are councils that can investigate, has a supervisory role and a role he can intervene and take over an investigation. So he has got a statutory role of some importance in terms of enforcing and taking the necessary investigative action under this Part of the Act, Part 10. The second point is this, and it goes very much to the question of why leave should be granted in our submission. The Legal Services Commissioner argued before the Court of Appeal that, in effect, the case was indistinguishable from Cornall.  The High Court - we took the Court of Appeal to this - the High Court refused leave in Cornall on the basis that there was no demonstrable error.  So the Legal Services Commissioner in this special role under the statute says that the role he perceives for himself is the one found in Cornall.  He agitated that before the Court of Appeal and the Court of Appeal did not analyse, in our submission, Cornall.

GAUDRON J:   We have to look at it in the context of the particular statute, where there are alternative methods of proceeding.  It is not simply an investigative power with then one outcome only, is it?

MR HAYLEN:   This is so.

GAUDRON J:   And was that the case in Cornall?

HAYNE J:   Cornall was charge or not charge, was it not, or result of an investigation?

MR HAYLEN:   There is an investigation by the secretary, is a tiered approach.  The secretary has got certain powers to, I think, remove a name from the list of practitioners, usually when there has been a bankruptcy or perhaps a criminal trial on a finding and lots of those applications, I think in the judgment in Cornall, were said to be ones that are usually, of course, not defended, had that power.  The secretary had the power to investigate and then could refer to a registrar or to the board.  Under this particular Act, the Legal Services Commissioner investigates, the Law Society can investigate, the Bar Association through its counsel committees can investigate.  The Tribunal can only proceed once there is an information laid by one of those bodies.

HAYNE J:   But the result of the investigation can be a result other than charge or not charge, the result of investigation can be reprimand, can it not?

MR HAYLEN:   It can, with the consent only of the practitioner and in relation only to unsatisfactory conduct, not professional misconduct.  The similarities were these:  in both Acts the secretary had no express power or here, the Legal Services Commissioner, to conduct hearings or to take evidence on oath at the investigative stage.  The secretary in the Victorian legislation could deal with certain matters to finality – I think under section 84 of the Victorian legislation – for standards breaches, rather than professional misconduct; the Legal Services Commissioner here has the same type of power in relation to unsatisfactory conduct.  He can dismiss a charge – I think that is one distinction – but he can proceed to deal with a matter where the practitioner will accept a reprimand, but for unsatisfactory conduct or, as I say, he can dismiss.  There are, nevertheless, similarities.  The secretary refers to the registrar or to the board; the Legal Services Commissioner commences or institutes proceedings by way of information to the Tribunal.  Both statutes expressly retain the inherent jurisdiction of the Supreme Court and in both legislation there is an appeal from the board – or in this State, the Tribunal – to the Supreme Court.  The important similarity ‑ ‑ ‑

GAUDRON J:   Now, there must at all stages be an issue before the Commissioner, must there not, as to whether it was unsatisfactory conduct or professional misconduct?

MR HAYLEN:   I am not sure at all stages there must be, but I am just trying to think of a situation where it might be of a nature that professional misconduct does not really arise; it is going to be an unsatisfactory conduct matter or nothing ‑ ‑ ‑

GAUDRON J:   Or nothing.

MR HAYLEN:   That would be the only ‑ ‑ ‑

GAUDRON J:   And then, even with an unsatisfactory conduct or nothing, there can be reprimand or reference?

MR HAYLEN:   Yes.

GAUDRON J:   With respect to other conduct, there will be an issue whether it is professional misconduct or unsatisfactory conduct.  There will be an issue whether the Commission can deal with it itself with consent or cannot deal with it.  Why would that not attract the requirements of procedural fairness?

MR HAYLEN:   Well, your Honour, can I just say this:  in Cornall, the power – and you will find this under tab, I think, 4 or 5 of the documents we have provided to the Court.

GAUDRON J:   Number 4, I think.

MR HAYLEN:   Number 4, yes; I think it is the transcript in the special leave case that is in the next tab.  There is a paragraph on page 393 about line 20 and the appeal division said this:

the duty imposed upon the secretary is not a duty to decide upon the facts and opinions he has received or obtained in the course of the investigation whether the solicitor ought to be found guilty of misconduct or standards breach, but only whether on that evidence there is a reasonable likelihood that he could lawfully be found guilty of such misconduct or standards breach.

That categorisation of the function, the power, is very, very close; it is almost indistinguishable from the legislation in New South Wales.  What we say we have is a case that is indistinguishable, where the High Court has refused special leave, and an inadequate analysis by the Supreme Court in Murray’s Case ‑ ‑ ‑

GAUDRON J:   But, look at the next sentence in that passage, Mr Haylen:

If the answer to the question is in the affirmative, the secretary may form the required opinion and proceed either to refer the matter to a hearing by the registrar or the board or to exercise his powers pursuant to section 84.

There are more options in this case, are there not?  First of all there must be a decision as to into which category it falls; there must be.  It is not whether it is one or ‑ ‑ ‑

MR HAYLEN:   On the both legislations you have the distinction between a standards breach and professional misconduct, so they both have to do that.

GAUDRON J:   Yes, but under the Victorian legislation was it necessary, or could it be necessary, to decide which it was?

MR HAYLEN:   Under the Victorian legislation there was no decision, as such; it was this state of satisfaction only that had to be reached, described by the Appeal Division of ‑ ‑ ‑

GAUDRON J:   As to one or the other, or as to the ‑ ‑ ‑

MR HAYLEN:   The decision did not make any distinction; it just said, it was almost like a prima facie case, I think is the way they categorised it, and made the point that there was no facility for hearing and that all that was being done was an assessment was being made of the material and procedural fairness would be applied at the registrar or the board stage, as would happen here, the Tribunal, and as would happen in both States if there was an appeal to the Supreme Court.  So that is the similarity.

GAUDRON J:   Yes, but now, what are the differences?

MR HAYLEN:   The difference that the secretary has was perhaps not a power to dismiss ‑ ‑ ‑

HAYNE J:   And not a power to determine into which of the two categories it was likely that the allegations would fall.

MR HAYLEN:   I think that may be right, but he had then to refer the whole of the matter to the registrar or the board.

HAYNE J:   Where there would be a hearing.

MR HAYLEN:   Where there would be a hearing.  Here, of course, and in this particular case, the Legal Services Commissioner says, well, it is either professional misconduct or unsatisfactory professional conduct; if it is not the highest, it has got to be the lowest, and I send them both up.

HAYNE J:   He must choose between the two.

MR HAYLEN:   No, he did not.

HAYNE J:   Which is likely to be proven?

MR HAYLEN:   In New South Wales he does not have to choose, he did not choose, and he sent them both up in the information.

GAUDRON J:   And did not give the practitioner the opportunity to address him as to which it was.

MR HAYLEN:   Well, can I say this ‑ ‑ ‑

GAUDRON J:   And which course was the more appropriate.

MR HAYLEN:   The quick chronology is this:  there was a complaint received, the practitioner was informed of the substance of it.  During the proceedings in the Court of Appeal it was, I think, accepted that the substance, except for one matter, appears in the information.  So there was information in the hands of the practitioner.  The point that the Court of Appeal accepted was, it was not sufficient - there was some 14 months when the practitioner knew that there was an investigation and where documents had been directed to be produced for the purposes of the investigation by the Legal Services Commissioner, there had to be an opportunity directly offered to make a representation.  There was no suggestion that the Legal Services Commissioner would not entertain any representation that was made, once the practitioner had the documents.

I take you to the next stage.  Part of the argument was this:  since Evatt v Bar Association in 1967, which was followed, although not expressly referred to, by the Court of Appeal in New South Wales in Dennis about 1979, there has never been an obligation to accord rules of natural justice or procedural fairness at the investigation stage before proceedings were instituted.

GAUDRON J:   It not the question this:  given the powers of the Commissioner, can the functions be described as solely investigative?  If you came to the view that they were solely investigative, then perhaps you would be on firm ground.

MR HAYLEN:   Your Honour, there is nothing in this legislation that empowers or requires the Legal Services Commissioner to make any finding of fact, any finding that would impugn of itself the practitioner, or would have the effect of, before the Tribunal had concluded its hearing ‑ ‑ ‑

HAYNE J:   What does 155(3) amount to then?  What is the proper construction of 155(3), if that submission is right.

MR HAYLEN:   That is a small and limited power for the Commissioner to finally determine a complaint and that does not go to the Tribunal.

GAUDRON J:   But that is something other than investigative.

MR HAYLEN:   It has gone beyond investigative, that power has.

GAUDRON J:   Yes, that is what I am saying; if it were purely investigative, there might be merit in what you say.

MR HAYLEN:   But in this case he is not exercising the subsection (3) power.  As long as he is exercising the subsection (2) power, the fact ‑ ‑ ‑

HAYNE J:   That is what the practitioner is complaining of, perhaps in part, that he has not chosen to exercise the 155(3) ‑ ‑ ‑

MR HAYLEN:   He could not, your Honour, because once pursuant to 155(2) he had formed the view, he was satisfied, that there was a reasonable likelihood that the practitioner would be found guilty of professional misconduct, which he did ‑ ‑ ‑

GAUDRON J:   Yes, but he had to form that view, either that view or the other view ‑ ‑ ‑

MR HAYLEN:   No, your Honour, he did not have to find that or the other; he could not distinguish, and he did not here, and it was never suggested in the Court of Appeal that he had to choose one or the other, and once under 155(2) he decided, or reached the state of satisfaction, that there was professional misconduct, as he did here, although he put it in the alternative in the information, he was obliged then to commence proceedings in the Tribunal; he had no other option.  The only option he had was, he got to the point of saying, the only thing this could be is unsatisfactory professional conduct.  If the practitioner will accept the reprimand, I can deal with it to finality.  That is the only circumstance.  In this case, it did not reach that point, and that is the ‑ ‑ ‑

GAUDRON J:   But it depends which way you proceed, in essence.  Why cannot somebody say, I want to address you on whether it is A or B, as to whether you will be satisfied that it is A or B, for example, because ‑ ‑ ‑

MR HAYLEN:   Well, your Honour, let us not be at cross-purposes about that; they can do that.  The Legal Services Commissioner is not saying, I will not hear you.

GAUDRON J:   Well, they may be able to do it, but this question goes to something else; it goes to whether that is the sort of consideration that would attract procedural fairness at common law and, of course, it has not been negated.

MR HAYLEN:   Well, your Honour, it says, in relation to our proceedings in the Tribunal, that in disciplinary proceedings – it does not say in the Tribunal – natural justice and procedural fairness applies.  So the legislation first turns its mind to when it applies and it says, in terms of instituting proceedings or where there are disciplinary proceedings.  The material that was before the Court of Appeal demonstrated this.  As your Honour knows Evatt’s Case referred to Dennis.  There was a Royal Commission Report, as your Honours are aware, from Barwick’s Case in 1993.  It informed the amendments in 1994, which brought about this scheme.  It referred to giving further protections to legal practitioners, as well as looking after complainants, but there was never a suggestion, in either the Law Reform Commission Report or the parliamentary speeches, that the longstanding approach in Evatt and Dennis would be departed from.

GAUDRON J:   No, well, very often there is not much in speeches or Law Reform Commission Reports that one has got to go to and ‑ ‑ ‑

MR HAYLEN:   But, your Honour, here the Law Reform Commission was saying, we are looking particularly at giving more protections.

GAUDRON J:   But if you look at section 155(3), the first step is, is it one or the other, or does it fall within the category of A and/or B? Then does not subsection (3) require a positive decision that there is a reasonable likelihood that the practitioner will be found guilty of unsatisfactory conduct, but not professional misconduct?

MR HAYLEN:   That is a decision.

GAUDRON J:   Yes.

MR HAYLEN:   The decision in subsection (3)(a) and (b) are a decision and you will see in subsection (5) ‑ ‑ ‑

GAUDRON J:   Yes, and does not the section require such a decision to be made?

MR HAYLEN:   I would not put it that way, your Honour.  What it requires is, if the Commissioner reaches the point where it is only unsatisfactory conduct and not anything else ‑ ‑ ‑

GAUDRON J:   No.

MR HAYLEN:- - -then those things can happen.

GAUDRON J:   Yes.

MR HAYLEN:   That stage was not reached here, because he started off with professional misconduct and instituted proceedings for that; subsection (3) could not come into play.

GAUDRON J:   So, subsection (3) is entirely discretionary, in your view?  The Commissioner may or may not at his own choice decide whether or not he will make that further decision.

MR HAYLEN:   When you say “entirely discretionary”, he has to satisfy ‑ ‑ ‑

GAUDRON J:   There is no obligation upon the Commission to take the further step of deciding whether there is a reasonable likelihood that the legal practitioner will be found guilty of unsatisfactory professional

conduct, but not professional misconduct, because the Commission can avoid deciding that altogether if it wishes?

MR HAYLEN:   No, your Honour; if he decides that it is professional misconduct, subsection (3) does not come into play.

GAUDRON J:   All right.

MR HAYLEN:   If he decides that it is unsatisfactory conduct, subsection (3) comes into play and then he is making decisions.

GAUDRON J:   Yes, but then why, given the consequences, would you not say, as a matter of ordinary principle, there has to be procedural fairness so that the practitioner has an opportunity to put his or her case that it is one rather than the other?

MR HAYLEN:   Your Honour, on this basis:  cases like Annetts and Ainsworth are all about saying, look at the entirety of the process.  Natural justice, procedural fairness applies undoubtedly at the Tribunal, the statute says so, quite apart from anything.  There is an appeal to the Supreme Court.  There is no doubt about the stages in this three-tired structure, where the full hearing will be given.  So that is why we say, procedural fairness is given to the practitioner.  The second point is, there are a number of types of actions taken at an investigative stage, where it has long been held - and the Privy Council held in Crane v Rees - that usually there is no intervention at the investigative stage; you do not get an intervention or procedural fairness when the police investigate.  This is the natural extension of this.  In certain tax notices, the Federal Court on a number of occasions has said they are investigating a complaint and documents are required and investigation has started, there is no right to procedural fairness, so long as the totality of the process accords a hearing at a certain stage.  That is the situation here.  And what the Full Court in Cornall did was distinguished between what was the detriments, the cases that led to results such as in Ainsworth.  Here the practitioner loses nothing; there is no suspension of the practicing certificate, the full hearing is at the Tribunal stage.  So that is why we say, the case falls within those principles.

GAUDRON J:   Yes.  We understand that, Mr Haylen.  Thank you.  We need not trouble you, Mr Brereton.

We are of the view that the proposed appeal does not enjoy sufficient prospects of success to justify the grant of special leave.  Accordingly, the application is dismissed.  Written submissions having been made on the question of costs, it is dismissed with costs.

The Court will adjourn now briefly to reconstitute.

AT 2.30 PM THE MATTER WAS CONCLUDED