PM v Council of the New South Wales Bar Association

[2005] NSWADTAP 47

Appeal Panel - External

CITATION:	PM v Council of the New South Wales Bar Association [2005] NSWADTAP 47
PARTIES:	APPELLANT PM RESPONDENT Council of the New South Wales Bar Association
FILE NUMBER:	058004
HEARING DATES:	3/08/2005
SUBMISSIONS CLOSED:	08/03/2005
DATE OF DECISION:	10/05/2005
DECISION UNDER APPEAL:	Complaint against PM by Council of the New South Wales Bar Association
BEFORE:	Karpin A - ADCJ (Deputy President); Officer D QC - Judicial Member; Kirkby E - Non Judicial Member
CATCHWORDS:	Legal Practitioner - reprimand - appeal against decision
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	N/A
DATE OF DECISION UNDER APPEAL:	11/04/2004
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Legal Profession Act 1987 Legal Profession Amendment Act 2004
CASES CITED:	Annetts v McCann (1990) 170 CLR 596 Baker v Australian Asbestos Insulations Pty Ltd (1985) 3 NSWLR 280 Bakker v Stewart (1980) VR 17 Borg v Barnes (1987) 10 NSWLR 734 Carson v Legal Services Commissioner (2000) NSWCA 308 Doro v Victorian Railway Commissioners (1960) VR 84 Georgiadis v Australian and Overseas Telecommunications Corp. (1994) 119 ALR 629 Myer Melbourne Ltd v Hammond (1984) VR 40 Tuitupou v Minister for Immigration and Multicultural Affairs (2000) 60 ALD 361
REPRESENTATION:	APPELLANT In person RESPONDENT P Brereton, barrister
ORDERS:	Appeal dismissed

Background

1 On 28 August 2003 the Bar Council resolved to dismiss a complaint by Mallesons Stephen Jaques against PM (hereinafter called "the Barrister") and further resolved to make a complaint against the Barrister pursuant to s.134(2) of the Legal Profession Act 1987 alleging that the Barrister was guilty of unsatisfactory professional conduct in six different respects including a complaint that he did not comply with Rule 80 of the New South Wales Barristers Rules while acting for a Ms Beaver on a direct access basis.

2 The Bar Association wrote to the Barrister on 29 September 2003 advising him of the resolution made by the Bar Council on 28 August 2003. The letter to the Barrister was sent to him by prepaid post on 29 September 2003 to the address of his practice at Level 4, 332 Pitt Street, Sydney.

3 By letter dated 3 November 2003 the Barrister responded to the Bar Council setting forth a detailed response and an assertion that the Barrister believed he had complied with Bar Rule 80 for the reasons which he set forth.

4 Following further correspondence between the Bar Association and the Barrister, a draft PCC report dated 12 July 2004 was prepared which draft report proposed that the Bar Council resolve to dismiss three complaints and proposed a resolution in respect of three further complaints in respect of which the Bar Council was satisfied that there was a reasonable likelihood that the Barrister would be found guilty by the Legal Services Division of the Administrative Decisions Tribunal of unsatisfactory professional conduct. The draft report further proposed a resolution that if the Barrister did not provide his consent to a reprimand then the complaint made by the Bar Council against the Barrister be referred to the Legal Services Division of the Administrative Decisions Tribunal pursuant to s.155(2) of the Legal Profession Act 1987 on the basis there was a reasonable likelihood that the Barrister would be found guilty by the Tribunal of unsatisfactory professional conduct.

5 A letter dated 13 July 2004 was sent by prepaid post to the Barrister at his said chambers address and enclosed a copy of the draft report and expressly invited him to put forward any further material in relation to the last mentioned three complaints and sought an indication from the Barrister concerning the suggested consent to a reprimand, noting that it should not be assumed that the finding or penalty recommended by the Committee in its draft report would automatically be adopted by the Bar Council.

6 On or about 6 August 2004 the Barrister advised an officer from the Bar Association that he did not recall having received the letter of 13 July 2004. A further copy of the report and the Bar Council's letter of 13 July 2004 was sent to the Barrister's said chambers address by courier on 6 August 2004. The letter extended the time for the Barrister's reply to 23 August 2004.

7 On 15 August 2004 amendments to the Legal Profession Act 1987 came into force and, in particular, s.155 was amended in substance so as to no longer require a barrister's consent to a reprimand under subsection (3) of s.155. The amendments were expressly made to extend a conduct occurring before the commencement of the amendments. The amending legislation will be dealt with in more detail later in these reasons.

8 By letter dated 16 August 2004 the Barrister responded to the letter of 6 August 2004 and its enclosures and indicated why he thought the complaint ought to be "disregarded in its entirety" and why he did not consent to a reprimand as the Barrister said had been suggested in the Bar Council's letter.

9 By letter dated 10 September the Bar Council advised the Barrister of the said amendments to the Legal Profession Act 1987 and gave the Barrister a further opportunity to make submissions in relation to the draft report of 12 July 2004 and to do so by 20 September 2004. The Barrister did not respond to this invitation, although there is no suggestion in the evidence before this Tribunal that the said letter of 10 September 2004 was not received.

10 A final PCC report dated 19 October 2004 was prepared and the complaint concerning Rule 80 of the Barrister's Rules was dealt with in paragraphs 62-67 of the report. The Committee concluded that there was a reasonable likelihood that the Tribunal would find the Barrister guilty of unsatisfactory professional conduct in respect of that complaint.

11 On 4 November 2004 the Bar Council resolved in respect of the Rule 80 complaint that the Barrister be reprimanded pursuant to s.155(3)(a) of the Legal Profession Act 1987 on the basis that, after an investigation, the Bar Council was satisfied that there was a reasonable likelihood that the Barrister would be found guilty by the Legal Services Division of the Administrative Decisions Tribunal of unsatisfactory professional conduct.

12 On 16 November 2004 by letter addressed to the Barrister's said chambers the Barrister was advised of the Council's resolution and of his right of appeal under s.155(6) of the Legal Profession Act 1987. The Barrister says he did not receive the said letter.

13 By letter dated 1 March, similarly addressed, the Barrister was advised by the Bar Association of the time and date fixed for his attendance on the President of the New South Wales Bar Association to be reprimanded in accordance with the Council's resolution.

14 On 18 March the Barrister filed a Notice of Appeal in the Tribunal which asserted that the decision appealed against was dated 1 March 2005 and that the Barrister had received written reasons for the decision on 4 March 2005. The questions of law the subject of the Notice of Appeal were set out as follows:

"1. Failure to apply s.155(3) correctly.

2. Failure to dismiss a complaint or reprimand when there is an objection."

15 The notice also sought leave pursuant to s.118B(1)(b) to appeal on the following ground, "Decision to reprimand is a witch hunt and innuendo when there is no complainant." This application for leave to appeal has been abandoned.

16 The Bar Council filed a Notice of Reply to Appeal on 7 April 2005. On 8 July 2005 the Bar Association filed an application that the Notice of Appeal be dismissed on the basis that it had been brought out of the time limited by s.118B of the Legal Profession Act 1987 and also on the basis under s.73(5)(h) of the Administrative Decisions Tribunal Act 1997, namely that the appeal was frivolous or vexatious or otherwise misconceived or lacking in substance.

17 On 19 July 2005 the Barrister filed a document described as "Amended Application" which relevantly in paragraphs 1 and 2 sought orders in the following terms:

"The Appellant seeks orders that:

1. The Respondent had failed to comply with the requirements of natural justice in that the Bar Council failed to expeditiously investigate its complaint against me.

In particular

The Bar Council was not impartial in laying a complaint in 2002 and delaying making of the decision to reprimand until I was caught by adverse retrospective amendment.

2. The Bar Council had failed to accord procedural fairness to me by failing to apply the law in operation at the date of the offence, through its delayed decision to reprimand process.

In particular

The Bar Council had not adopted investigative procedure within the purpose of s.155, to dismiss, if I did not consent to reprimand, when its decision was of a kind to affect my rights, interests and legitimate expectations.

3. That there had been a gross and inexcusable delay in the investigation of the complaint, so that the decision to reprimand should be permanently stayed.

In particular

The Bar Council's delayed investigation and achieved objective to disregard the need for me to consent to a reprimand is oppressive."

18 On the hearing the Barrister advised the Tribunal that he wished to proceed in relation to the amended application as it better expressed the grounds set out in the first Notice of Appeal. The hearing and submissions proceeded upon this basis.

Consideration

19 The relevant decision of the Bar Council, as set out above, was 4 November 2004. The Barrister asserts that he did not receive the Bar Council's letter of 16 November 2004, as referred to above, he asserts that it was not until he received the Bar Council's letter of 1 March 2005 that he became aware of the Council's resolution. The Notice of Appeal having been filed on 18 March 2005 was clearly, on one view of the facts, outside the 28 day period permitted by s.118B. As indicated by the Tribunal at the commencement of the hearing, the Tribunal was of the opinion that bearing in mind the asserted reason for the appeal being out of time and bearing in mind the lack of prejudice to the Bar Association if the appeal period were extended that appeal period ought to be extended. The Tribunal allowed the period for an appeal to be extended under s.118B(2)(b) up to and including 18 March 2005.

20 Central to a consideration of this matter is an understanding of the amendments that were made to s.155 of the Legal Profession Act 1987. Prior to the Legal Profession Amendment Act 2004, that section permitted the Bar Council to reprimand a legal practitioner for unsatisfactory professional conduct instead of instituting proceedings in the Tribunal only in circumstances where the legal practitioner consented to the reprimand.

21 With effect from 15 August 2004 s.155 was amended. The primary obligation of the Council under s.155(2) remained, namely to institute proceedings in the Tribunal with respect to a complaint against a legal practitioner if satisfied that there is a reasonable likelihood that the practitioner would be found guilty by the Tribunal of unsatisfactory professional conduct or professional misconduct. Subsection (3) provided a limited alternative for the Bar Council and is in the following terms:

"(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

(b) dismiss the complaint if satisfied that the legal practitioner is generally competent and diligent and that no other material complaints have been made against the legal practitioner."

22 A new subsection (6) was added to the section in the following terms:

"(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."

23 By Schedule 8 of the amending legislation it was expressly provided in clause 102 "sections 155 and 160 as amended by the amending Act extend to conduct occurring before the commencement of the amendments".

24 A number of things are, in the opinion of the Tribunal, patently clear from the amending legislation, namely:

(1) A practitioner's consent to a reprimand is no longer a prerequisite of such a reprimand being administered.

(2) In the event that the legal practitioner does not consent to the reprimand, then a right of appeal to this Tribunal against the Council's decision to reprimand the legal practitioner is expressly provided for. By s.171N of the Legal Profession Act 1987 such an appeal is an external appeal within the meaning of the Administrative Decisions Tribunal Act 1997 and in determining the appeal the Tribunal may affirm the decision to reprimand the legal practitioner and dismiss the appeal or quash the decision to reprimand the legal practitioner and remit the matter back to the Bar Council or quash the decision to reprimand the legal practitioner and dismiss the complaint.

(3) Such amendments expressly extend the conduct occurring before 15 August 2004.

25 The Tribunal has had the benefit of both written and oral submissions from the Barrister and on behalf of the Bar Council.

26 The Barrister complains of the amendments referred to above and submits that the Tribunal ought uphold his right to object to being reprimanded. He complains that it would be contrary to procedural fairness to allow a change in the Act so as to now permit him to be reprimanded without his consent. The Appellant's submissions almost go so far as to suggest that the legislation was one which "singled" him out. The Barrister submitted that, while not challenging the validity of the amending Act per se, he nevertheless insisted that his case required an exception to be made to it.

27 In the Tribunal's opinion, the effect of the legislation in the present case is clear and is as set out above. The Parliament has, in clear and unambiguous words, provided that the amendments to s.155 are to apply to conduct occurring prior to 15 August 2004. In those circumstances, the Tribunal is of the opinion that there is no scope to give to the legislation some more restrictive meaning as contended for by the Barrister. The Parliament has decreed otherwise and has done so in clear and unambiguous terms.

28 The Barrister submits that there was undue delay in the investigation and the decision to reprimand such that the Bar Council's decision to reprimand ought to be permanently stayed. The Tribunal is of the opinion that these assertions are without foundation. The history of the complaint and its investigation and final decision by the Bar Council is set out above and occupied just over 14 months. To the extent to which there was some delay, it certainly was not for an unreasonable period and certainly did not constitute either gross or inexcusable delay. The suggestion by the Barrister that such delay may have been intentional on the part of the Bar Council is totally without foundation.

29 The Barrister complains that the amendments to the legislation as referred to above denied him an opportunity to justify his behaviour before this Tribunal in the sense that the legislation in its unamended form required his consent to a reprimand and had that consent not been forthcoming then the Bar Council would have had no realistic alternative but to institute proceedings against the Barrister in the Tribunal. While there may be some merit in this complaint, it nevertheless fails to adequately deal with the express words of the legislation and fails to give adequate weight to the appeal rights provided for under s.155(6) of the Act as amended. While the rights of appeal under the amended legislation are not as extensive, prima facie, as a hearing would have been under the unamended legislation, nevertheless, such rights have been expressly granted and, as this Tribunal has said, such amendments to the legislation are clear and unambiguous.

30 The Barrister complains of a breach of natural justice. This complaint incorporates allegations of undue delay and deliberate delay which allegations are for the above reasons rejected. The complaint also incorporates aspects of statutory construction which are dealt with above. The Tribunal is of the opinion that no case for a breach of any rule of natural justice has been articulated with any substance.

31 The Barrister complains of a breach of procedural fairness which again incorporates the submissions, referred to above, of statutory construction and delay. These submissions are rejected for the above reasons.

32 The Bar Association submits that the proceedings instituted by the Barrister ought to be dismissed on the basis that they are frivolous or vexatious or otherwise misconceived or lacking in substance within the meaning of s.73(5)(h) of the Administrative Decisions Tribunal Act 1997. This Tribunal, for the reasons set out above, is of the opinion that the proceedings are misconceived or lacking in substance and ought to be dismissed and the Tribunal so orders.

33 The Bar Association in its application of 8 July 2005 seeks an order that the Barrister pay the Respondent's costs of the appeal and of the said application. The Tribunal orders that the Respondent file and serve any written submissions it wishes to on this question within 14 days from the date of this decision and that within 21 days thereafter the Barrister file any written submissions as to why such an order for costs ought not to be made.