Malgorzata Urbaniak-Bak v Council of the Law Society of the Australian Capital Territory & “RA” (Occupational Discipline)
[2016] ACAT 14
•15 February 2016
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
MALGORZATA URBANIAK-BAK v COUNCIL OF THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY & “RA” (Occupational Discipline) [2016] ACAT 14
OR 3 of 2016
Catchwords: OCCUPATIONAL DISCIPLINE – LEGAL PRACTITIONERS – Tribunal practice and procedure - review of decision of Law Society – joinder of Legal Practitioner to proceedings – non-publication order
Legislation cited: Legal Profession Act 2006 (ACT) ss 412, 423A, 426A(repealed)
ACT Civil and Administrative Tribunal Act 2008 (ACT) ss 23, 28, 29, 39, 60
Cases cited: Appellants v Council of the Law Society [2011] ACTSC 133;
Legal Practitioner "M" v Council of the Law Society of the Australian Capital Territory [2015] ACTSC 312
“T” v Council of the Law Society (Occupational Discipline) [2014] ACAT 42
Trustees of the Roman Catholic Church for the Archdiocese of Canberra and Goulburn & ACT Heritage Council (Administrative Review) [2012] ACAT 81.
Tribunal: President M-T Daniel
Date of Orders: 15 February 2016
Date of Reasons for Decision: 7 March 2016
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) OR 3 of 2016
BETWEEN:
MALGORZATA URBANIAK-BAK
Applicant
AND:
COUNCIL OF THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY
Respondent
AND:
“RA”
Party Joined
TRIBUNAL: President M-T Daniel
DATE:15 February 2016
ORDER
Being of the opinion that the following person has interests that are affected by the decision under review, the Tribunal orders that it be joined as a party to these proceedings:
(a) “RA”.
The name of the party joined is not to be published in the title of the proceedings and the party joined is instead to be referred to as "RA".
The applicant is to file with the tribunal and give to each other party by 29 March 2016 all affidavits and other documents on which she proposes to rely.
The party joined is to file with the tribunal and give to each other party by 5 April 2016 all affidavits and other documents on which he proposes to rely.
The respondent is to file with the tribunal and give to each other party by 12 April 2016 all affidavits and other documents on which he proposes to rely.
The applicant is to file with the tribunal and give to each other party by 26 April 2016 any written submissions setting out the orders the tribunal should make, and why the tribunal should make those orders.
The party joined is to file with the tribunal and give to each other party by 29 April 2016 any written submissions setting out the orders the tribunal should make, and why the tribunal should make those orders.
The respondent is to file with the tribunal and give to each other party by 3 May 2016 any written submissions setting out the orders the tribunal should make, and why the tribunal should make those orders.
The matter is listed for a final directions hearing 9:00am on 9 May 2016.
If a party intends to rely on authorities, the party is required to prepare a list of authorities and a double sided copy of each authority, to be placed in a binder if the authorities exceed 10 in number. The list and copies of the authorities are to be provided by that party to all other parties and to the Tribunal by 9 May 2016. One copy is to be provided to each party and 3 copies are to be provided to the Tribunal.
The matter is listed for a hearing on Thursday 12 May 2016 at 10:00am and will be 1 day in duration.
………signed……………..
President M-T Daniel
REASONS FOR DECISION
These proceedings consist of an application to appeal a decision by the Council of the Law Society to dismiss the applicant’s complaint against a legal practitioner, under section 412 of the Legal Profession Act 2006 (the substantive application).
On 15 February 2016 I conducted an initial directions hearing in the matter. At the conclusion of that directions hearing, I listed the substantive application for hearing and made directions for the filing of evidence and submissions necessary to prepare the matter for hearing.
I also made orders joining the legal practitioner as a party to the proceedings, and requiring that in the title of the proceedings the legal practitioner be referred to as “RA”.
On 25 February 2016 the applicant requested reasons for the decisions made on 15 February 2016. Section 60(4) of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) provides that written statements of reason do not need to be provided for interim or procedural matters, nevertheless I decided do so and these are those reasons.
Directions to file documents and affidavits
Among the directions made on 15 February 2016 were directions to the parties to file with the Tribunal and give to each other “all affidavits and other documents” on which they would rely at the hearing of the substantive application.
It is unusual for the Tribunal to make a direction requiring evidence to be filed in affidavit form. Under section 8 of the ACAT Act the rules of evidence do not ordinarily apply in the Tribunal, and the rules of evidence are not required by the Legal Profession Act 2006 (LP Act) to apply to the hearing of the substantive application.
Section 23 of the ACAT Act allows the Tribunal to decide its own procedure when dealing with an application if no particular procedure is prescribed for that type of application. In some previous appeals of decisions made under section 412 of the LP Act, the Tribunal has chosen to apply to the rules of evidence as a matter of fairness, because of the potential for final disciplinary orders to be made under the LP Act.[1] It seemed most efficient to require the parties to prepare their witness statements in affidavit form at the outset.
[1] See “T” v Council of the Law Society (Occupational Discipline) [2014] ACAT 42
At the directions hearing the applicant raised a concern that the Committee of the Law Society which made the decision to dismiss her complaint was not properly delegated to make that decision.
The respondent’s representative told the Tribunal that the Committee was properly delegated by written instrument.
Where a decision under a statute is made by a delegate rather than the legislated decision-maker, the instrument of delegation is an important document for review of the decision. This document should be included in the documentation filed with the Tribunal on behalf of the decision-maker.
Accordingly, I indicated that the instrument of delegation must be included in the documentation filed on behalf of the respondent.
Decision to join the practitioner as a party
On 10 February 2016 the legal practitioner applied to the Tribunal to be made a party to the substantive application. This application was considered at the directions hearing.
The legal practitioner submitted that as the person the subject of the complaint, and exposed to potential adverse outcomes from the hearing, he had a clear interest in the proceedings. Further, the legal practitioner submitted that he had knowledge and understanding of the events in question which would be relevant for the Tribunal in hearing the substantive matter. He said he did not wish to make submissions about the outcome of the substantive hearing, and would accept the decision of the Tribunal, but wished to participate as a party and provide evidence.
The applicant opposed the legal practitioner being joined as a party to the proceedings. She provided the Tribunal a letter dated 15 February 2016 in which she explained that in her view:
a.the Law Society ought to be able to explain the reasons for its actions without the influence of the solicitor that the complaint was made against;
b.inclusion of the legal practitioner in the proceedings would create a conflict of interest; and
c.inclusion of the legal practitioner would show that the legal practitioner was influencing the decision without a proper independent investigation of the Law Society.
The applicant further submitted that the legal practitioner should not be joined to the proceeding because:
a.the original decision was in the legal practitioner’s favour;
b.the legal practitioner had been given opportunity to provide all of his evidence at the review committee stage, and so there was no need for the legal practitioner to be involved in the hearing of the substantive application; and
c.it was inappropriate for the legal practitioner to be able to influence the Tribunal hearing the substantive application.
The respondent submitted that the legal practitioner should be joined as a party to the proceeding not only because of the practitioner’s interest in the proceedings, but also because this would clarify the roles of the protagonists in relation to the complaint. The respondent said that its role in relation to the complaint was not to protect the solicitor the subject of the complaint, but to protect the public.
The respondent referred the Tribunal to a previous case in which, the legal practitioner not having been involved in the proceedings, the requirements of natural justice had necessitated the legal practitioner being contacted during the conduct of the hearing and given opportunity to make submissions on the orders the Tribunal might make at the conclusion of the hearing.[2]
[2] See “T” v Council of the Law Society (Occupational Discipline) [2014] ACAT 42
The respondent submitted that, contrary to the applicant’s view, the joinder of the legal practitioner as a party, enabling him to give evidence in his own right as to the facts, and make his own submissions on what was the correct decision to make about the complaint, would support the independence of the Law Society in the complaint process and reduce any possibility or perception of a conflict of interest.
Section 29 of the ACAT Act provides that the Tribunal may join a person as a new party to an application if the person has an interest in the application.
The application of section 29 was comprehensively considered by the Tribunal in Trustees of the Roman Catholic Church for the Archdiocese of Canberra and Goulburn & ACT Heritage Council (Administrative Review) [2012] ACAT 81. The principles set out in that case for the application of section 29 are well established.
Having considered the submissions of the applicant, respondent and legal practitioner on this point, I decided to order that the legal practitioner be joined as a party. This was for two reasons.
First, because the legal practitioner had an indisputable direct interest in the outcome of the substantive application as contemplated by section 29 of the ACAT Act. That interest was not remote or merely intellectual.
Secondly, involvement of the legal practitioner was consistent with the Tribunal’s guiding principles of efficiency and fairness as set out in section 7 of the ACAT Act, given:
a.the more fluid nature of the current proceedings before the Tribunal[3] as review proceedings in which the parties are not strictly bound to positions taken or evidence provided to the original decision maker; and
b.the obligation of the Tribunal in the current proceeding, and the Council of the Law Society in the original investigation, to accord procedural fairness; and
c.the fact that after hearing the substantive application the Tribunal is empowered to proceed to make final disciplinary orders under s.425(3), (4) or (5) of the LP Act.
[3] See discussion in Appellants v Council of the Law Society [2011] ACTSC 133; Legal Practitioner "M" v Council of the Law Society of the Australian Capital Territory [2015] ACTSC 312
Accordingly, I ordered that the legal practitioner the subject of the complaint be joined as a party to the proceedings.
Decision to suppress the name of the practitioner in the title of the proceedings
At the conclusion of the directions hearing on 15 February 2016, the respondent queried how the practitioner should be described in the title to the proceedings. The respondent referred to section 423A of the LP Act, which prohibits the publication of an account of disciplinary proceedings which discloses the identity of the legal practitioner or allows the identity to be worked out.
Section 423A applies to proceedings brought under Part 4.7 of the LP Act. It does not on its terms apply in relation to appeals from a decision of the Council of the Law Society, which are brought under Part 4.5 of that Act.
The approach taken by section 423A is contrary to the usual position for proceedings in the Tribunal. Section 38 of the ACAT Act provides as a starting point that the hearing of an application by the Tribunal must be in public. It is a usual incident of the requirement for a public hearing that the names of the participants in the proceeding are also public.
The starting point of a public hearing can be varied by legislation applying to particular jurisdictions of the Tribunal[4]. Section 423A is one example of this.
[4] [4] Section 27 ACAT Act
The starting position of a public hearing can also be varied in an individual case, where the Tribunal is satisfied that the right to a public hearing is outweighed by competing interests. In such cases, it is open to the Tribunal to make various orders, including an order restricting the publication of the names of parties, under section 39 of the ACAT Act. Such an order may be made on application by a party or on the Tribunal’s own motion.
In the current matter, the respondent submitted it would be appropriate to make an order under section 39 in relation to the legal practitioner’s name, in order to maintain consistency with the overarching approach taken by the LP Act.
The applicant opposed the section 39 order being made, and submitted that it was in the public interest that the public know the identity of the practitioner complained about.
The legal practitioner did not wish to be heard on whether or not a non-publication order was made.
I indicated to the parties that I was concerned that the purpose of section 423A, which would apply to any future disciplinary proceedings brought against the practitioner if the applicant was successful in the substantive application, would be undermined by publication of the practitioner’s name in these proceedings. This would be contrary to the interests of justice. Further, there would be real practical problems for the Tribunal itself complying with section 423A in such disciplinary proceedings, if the Tribunal also had published information connecting the legal practitioner to this complaint. This was so notwithstanding that there had already been some degree of publication in relation to the matters of the complaint.
I advised the parties I had formed a preliminary view that it was appropriate to make an order suppressing the name of the practitioner, even noting the strong objection of the applicant, but that I would consider the matter further at the conclusion of the directions hearing, and refer to the relevant legislation, before deciding whether to make the order.
An important factor in reaching that preliminary view was the fact that a decision to maintain the anonymity of the legal practitioner would be put in place only until the successful conclusion of any disciplinary proceedings. If the applicant’s complaint about the legal practitioner was ultimately upheld in disciplinary proceedings, the name of the practitioner would be made public. The directions hearing then concluded.
Having further considered the legislation and the importance of a public hearing, together with the obligation on the Tribunal to comply with section 423A in any future proceedings arising from the complaint, I am satisfied that the right to a public hearing served by disclosing the name of the legal practitioner at this stage is outweighed by a competing interest. Specifically, I am satisfied that publicity of the name of the practitioner when reviewing dismissal of the complaint would undermine the ability of the Tribunal to conduct any future disciplinary proceedings in accordance with the legislated requirements and would thereby prejudice the interests of justice.
For those reasons I made orders requiring the practitioner to be referred to as “RA” in the title to these proceedings.
………………………………..
President M-T Daniel
HEARING DETAILS
FILE NUMBER: | OR 15/03 |
PARTIES, APPLICANT: | URBANIAK-BAK |
PARTIES, RESPONDENT: | COUNCIL OF THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY |
COUNSEL APPEARING, APPLICANT | |
COUNSEL APPEARING, RESPONDENT | |
SOLICITORS FOR APPLICANT | |
SOLICITORS FOR RESPONDENT | |
TRIBUNAL MEMBERS: | President M-T Daniel |
DATES OF HEARING: | 15 February 2016 |
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