Margiotta v Law Society of New South Wales

[2006] NSWADT 37

CITATION:	Margiotta v Law Society of New South Wales [2006] NSWADT 37
DIVISION:	Legal Services Division
PARTIES:	APPLICANT Anthony Steven Margiotta RESPONDENT Council of the Law Society of New South Wales
FILE NUMBER:	052032
HEARING DATES:	24/01/2006
SUBMISSIONS CLOSED:	01/24/2006
DATE OF DECISION:	02/08/2006
BEFORE:	Karpin A - ADCJ (Deputy President)
CATCHWORDS:	Jurisdiction
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Legal Profession Act 1987 Legal Profession Act 2004
CASES CITED:	Law Society of New South Wales v Connolly (LSD) [2001] NSWADTAP 40
REPRESENTATION:	APPLICANT D Perrigonon, Counsel RESPONDENT L Pierotti, Solicitor
ORDERS:	1. Substantive proceedings to be dealt with pursuant to s. 540(5) Legal Profession Act. 2004; 2. Council of the Law Society of New South Wales to appear as a party to the proceedings.

1 The Applicant seeks a review of a decision of the Council of the Law Society of New South Wales. By letter dated 15 September 2005, the Council advised the Applicant that at a meeting of the Professional Conduct Committee on 8 September 2005, he had been found guilty of unsatisfactory professional conduct. The Committee resolved that he be reprimanded pursuant to s. 155 (3) (a) of the Legal Profession Act 1987.

2 The Applicant had 28 days within which to appeal to the Administrative Decisions Tribunal.

3 On 13 October 2005 the Applicant filed the present application.

4 At the time of the original decision of the Council, the Legal Profession Act 1987 was in force. On 1 October 2005 the Legal Profession Act 2004 came into force.

5 The parties seek a preliminary determination as to whether the present proceedings should be dealt with under the Legal Profession Act 1987 or the Legal Profession Act 2004.

6 At the commencement of proceedings, counsel for the Applicant foreshadowed an intention to withdraw the application for review pursuant to s. 540 Legal Profession Act 2004, and instead to pursue an appeal under s. 155 Legal Profession Act 1987. Ultimately, counsel for the Applicant submitted that the Applicant’s right for review remains on foot under both acts.

7 The Respondent submitted that the Applicant is restricted to bringing proceedings for review pursuant to s. 540 Legal Profession Act 2004. Whilst the parties canvassed the possibility of commencing the substantive hearing without the issue being resolved, the Tribunal was firmly of the view that the proceedings must fall for determination under one or other of the statutes, and that issue should be determined prior to commencing the substantive hearing. Thus, following argument, the matter was adjourned for decision on that issue.

8 Mr. Pierotti, appearing for the Respondent, also sought a ruling from the Tribunal, as to whether, if the matter proceeded as a review pursuant to s. 540 Legal Profession Act 2004, the status of the Respondent was an appearance to assist the Tribunal, or, alternatively, an appearance, as a party to the proceedings, and thus as respondent in the full sense of that term, carrying with it the full rights and obligations of a party to proceedings before the Tribunal. Mr. Pierotti indicated that the Respondent's preferred position was an appearance to assist the Tribunal. He referred the Tribunal to the decision of the Appeal Panel in Law Society of New South Wales v. Connolly (LSD) [2001] NSWADTAP 40, a decision dealing with the status of the Law Society of New South Wales, in proceedings under s. 48K Legal Profession Act 1987, an application to permit a solicitor to employ a person convicted of an indictable offence.

9 In Connolly the applicant served the application upon the Council of the Law Society, in accordance with the legislative provisions. The application sought an original decision from the Tribunal within the meaning of s.57 Administrative Decisions Tribunal Act 1997. The Council filed an appearance, but did not seek to be joined as a party pursuant to the provisions of s. 67 (4), pursuant to which the Tribunal may make an order joining a party to the proceedings. The Council unsuccessfully argued that by filing an appearance it had become a party by necessary implication. That argument was rejected by the Tribunal.

10 In this instance, however, the Applicant seeks a review of the original decision of the Respondent Council. Thus it an application for a review of a reviewable decision.

11 S. 67 (2) of the Administrative Decisions Tribunal Act 1997 provides:

67 Parties to proceedings before Tribunal

…

(2) The parties to proceedings before the Tribunal for a review of a reviewable decision are:

(a) any person who, being entitled to do so, has duly applied to the Tribunal for a review of the decision, and

(b) the administrator who made the decision, and

…

(d) any other person who has been made a party to the proceedings by the Tribunal in accordance with subsection (4), and

…

12 The position of the Law Society in this case can thus be distinguished from its position in Connolly where the Tribunal was dealing with an original application. This is an appeal from, or review of, a reviewable decision made by the Council of the Law Society of New South Wales. As a consequence, and pursuant to the provisions of s. 67 (2) (b) Administrative Decisions Tribunal Act 1997, the Respondent, is not merely in the position of appearing to assist the Tribunal, the role it undertakes in applications pursuant to s48K, but is bound to appear as a party to the proceedings. As the original decision maker, the Council is necessarily a party to the proceedings, with the usual rights and obligations attaching to that role.

13 Nonetheless, the Tribunal recognizes the distinction between a respondent party to proceedings appearing in a quasi prosecutorial role, as opposed to a character which may be said to be more analogous to the respondent’s role in a merits review. The latter approach will generally prevail in proceedings of the present nature.

14 The primary duty of the respondent is to place before the Tribunal the totality of the material which was considered by the original decision maker, and assist the Tribunal in understanding the processes leading to that decision.

15 The respondent is a party to these proceedings.

16 Early in the proceedings, counsel for the Applicant, flagged the Applicant’s intention to file an application pursuant to the provisions of s. 53 Administrative Decisions Tribunal Act 1997, seeking a review of the decision of the Law Society of New South Wales refusing an internal review of the Council’s decision of 15 September 2005. That refusal is deemed to be contained in a letter from the Respondent dated 26 October 2005. That application, at least in its initial stage, was readily disposed of by an order that the Applicant file and serve the application not later than 27 January 2006. In the event, that did not occur, and by written submissions filed in the Tribunal on 1 February 2006, Counsel for the Applicant indicated that it was not proposed to pursue that course.

17 Counsel for the Applicant submits that the Applicant is entitled to maintain proceedings in the Tribunal under s. 155 (6) of the Legal Profession Act 1987, and s.540(5) of the Legal Profession Act 2004. The relevant provisions of those sections are:

Section 155:

(1) After a Council or the Commissioner has completed an investigation into a complaint against a legal practitioner, the complaint is to be dealt with in accordance with this section.

…

(3) However, if the Council or the Commissioner is satisfied that there is a reasonable likelihood that the legal practitioner will be found guilty by the Tribunal of unsatisfactory professional conduct (but not professional misconduct), the Council or the Commissioner may instead:

(a) reprimand the legal practitioner, or

…

(6) If a Council or the Commissioner decides to reprimand a legal practitioner under this section and the practitioner does not consent to the reprimand, the practitioner may appeal to the Tribunal against the decision. Section 171N applies to an appeal under this subsection.

540 Summary conclusion of complaint procedure by caution, reprimand or compensation order

(1)This section applies if:

(a) either:

(i) the Commissioner or a Council completes an investigation of a complaint against an Australian legal practitioner, or

and

(b) the Commissioner or Council (as the case requires):

(i) is satisfied that there is a reasonable likelihood that the practitioner would be found by the Tribunal to have engaged in unsatisfactory professional conduct (but not professional misconduct), and

(ii) is satisfied that the practitioner is generally competent and diligent, and

(iii) is satisfied that the taking of action under this section is justified having regard to all the circumstances of the case (including the seriousness of the conduct concerned) and to whether any other substantiated complaints have been made against the practitioner.

(2) The Commissioner or Council may do any or all of the following:

(a) caution the practitioner,

(b) reprimand the practitioner,

…

(4) If action is taken under subsection (2), no further action is to be taken under this Chapter with respect to the complaint.

(5)If the Commissioner or Council decides to reprimand or make a compensation order against an Australian legal practitioner under this section, the practitioner may apply to the Tribunal for a review of the decision.

18 Counsel for the Applicant concedes that the right to review under s. 540(6) is likely to be more beneficial to the Applicant, but submits that as a matter of statutory interpretation, the Applicant retains his rights under both statutes. He relies upon the provisions of Clause 3, Schedule 9 of the 2004 Act which relevantly provides:

3 General saving and transitional provision

(1) If anything of a kind required or permitted to be done under a provision of this Act was done under a corresponding provision of the old Act and still had effect immediately before the commencement day, the thing continues in effect on and after that day as if:

(a) this Act had been in force when it was done, and

(b) it had been done under this Act.

…

(4) This clause does not have effect to the extent that other provision is made by this Schedule or that the context or subject-matter otherwise indicates or requires, and has effect subject to the regulations.

19 The Respondent argues that had the Applicant filed his application prior to 1 October 2005, he would have been limited to bringing an appeal under section 155 of the Legal Profession Act 1987, and the provisions of section 171N of the Legal Profession Act 1987

20 The relevant legislation is:

171N Appeals to Tribunal concerning reprimands

(1) This section applies to an appeal referred to in section 155 (6) or 160 (5) against a decision by a Council or the Commissioner to reprimand a legal practitioner.

(2) The appeal is an external appeal within the meaning of the Administrative Decisions Tribunal Act 1997.

…

(4) In determining the appeal, the Tribunal may:

(a) affirm the decision to reprimand the legal practitioner and dismiss the appeal, or

(b) quash the decision to reprimand the legal practitioner and remit the matter back to the Council or Commissioner for the complaint concerned to continue to be dealt with under this Part, or

(c) quash the decision to reprimand the legal practitioner and dismiss the complaint concerned.

…

(10) Without limiting anything in the Administrative Decisions Tribunal Act 1997, rules or regulations may be made under that Act in connection with appeals to which this section applies, including the making, hearing and determination of appeals.

(11) This section prevails to the extent of any inconsistency with the Administrative Decisions Tribunal Act 1997 or any rules or regulations made under that Act.

21 The Tribunal is not persuaded that the provisions of clause 3 Schedule 9 can be interpreted in the manner argued on behalf of the Applicant. After the decision was handed down on 15 September 2005, the Applicant had a right to seek a review of the Council’s decision, and 28 days within which to lodge his application. As at 1 October 2005, there were no current proceedings on foot, there were no proceedings pending in the Tribunal. Had the Applicant filed his application for review prior to 1 October 2005, that application would have been dealt with under s. 155 (6). Once the new Act came into force, the Applicant’s rights were preserved under the new Act and the procedures relating to a review application are those procedures provided by the Legal Profession Act 2004. As counsel for the Applicant correctly observes, the right of appeal is a valuable right. That right has been preserved in the transition from the 1987 Act to the 2004 Act, and again, as counsel for the Applicant correctly observed, those rights are at least equal to those he enjoyed under the 1987 Act, and arguably his rights are enhanced by the application of the provisions of the 2004 Act.

22 The Applicant retains the right to appeal which arose on 15 September 2005; he has exercised that right. As a procedural matter it will proceed under the provisions of the 2004 Act, having regard to the time at which he exercised his right of appeal. Counsel for the Applicant has been unable to point to any prejudice that will arise from that procedure, and concedes that arguably the Applicant’s position is enhanced. Apart from suggesting that in some way the Applicant is losing a right that had accrued under the 1987 Act, counsel for the Applicant has not identified any procedural unfairness, nor any prejudice to the Applicant’s legitimate expectations, rights and interests, in obtaining a hearing in circumstances at least as favourable as those available to him under the 1987 Act. When the Applicant filed his application in the Tribunal on 13 October 2005, his right to seek a review arose pursuant to the provisions of s. 540(5) Legal Profession Act 2004.

23 The Tribunal notes that the applicant wishes to adduce further evidence that was not before the Council when the initial decision was made. As the matter will proceed as a review pursuant to s. 540(5), the applicant has the right to adduce further evidence. That places the applicant in a more advantageous decision than he would have experienced had he brought his application to prosecute an appeal under the 1987 Act.

24 The Tribunal is not persuaded that the Applicant can in effect “double dip” by choosing to run his appeal under whichever statute he chooses, or, perhaps, as was argued on his behalf, under both.

25 The Applicant will be limited to his right of review pursuant to s. 540 (5) Legal Profession Act 2004.

26 The orders of the Tribunal are:

(1) The substantive proceedings are to be dealt with pursuant to s. 540(5) Legal Profession Act 2004 .

(2) The Council of the Law Society of New South Wales is to appear as Respondent and party to the application, not merely to assist the Tribunal.