Practitioner D3 v Council of the Law Society of the Australian Capital Territory
[2018] ACTCA 47
•17 October 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Practitioner D3 v Council of the Law Society of the Australian Capital Territory |
Citation: | [2018] ACTCA 47 |
Hearing Date(s): | 11 October 2018 |
DecisionDate: | 17 October 2018 |
Before: | Murrell CJ |
Decision: | The application is dismissed. By 24 October 2018 the applicant is to file Appeal Folder A and pay the setting down fee. The Applicant is to comply with the other requirements of the Practice Direction The parties have leave to file and serve written submissions regarding costs by 23 October 2018. |
Catchwords: | COURTS AND JUDICIAL SYSTEM — CROSS-VESTING —Transfer of proceedings to the Federal Court under s 6 of the Jurisdiction of Courts (Cross-Vesting) Act 1993 (ACT) — Whether the proceedings involve a “special federal matter” — Whether the interpretation of an ACT legislation is a matter “arising under a law made by the Parliament” — section 39B(1A)(c) of the Judiciary Act 1903 (Cth) COURTS AND JUDICIAL SYSTEM — CROSS-VESTING —Transfer of proceedings to the Federal Court under s 5 of the Jurisdiction of Courts (Cross-Vesting) Act 1993 (ACT) — Whether the proceedings “arises out of, or is related to” proceedings in the Federal Court — Whether the Federal Court is a more appropriate forum |
Whether Legislation Cited: | Australian Capital Territory (Self Government) Act 1988 (Cth) ss 7, 22 Community Welfare Act (NT) Workmens Liens Act 1893 (NT) |
Cases Cited: | Amalia Investments Ltd v Virgtel Global Networks N.V. (No. 2) [2011] FCA 1270; 198 FCR 248 Bateman v Fairfax Media Publications Pty Ltd [2013] ACTSC 72; 8 ACTLR 13 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 |
Parties: | Practitioner D3 (Applicant) Council of the Law Society of the Australian Capital Territory (First Respondent) ACT Civil and Administrative Tribunal (Second Respondent) |
Representation: | Counsel Self-represented (Applicant) Ms L M Johnson (First Respondent) Submitting appearance (Second Respondent) |
| Solicitors Self-represented (Applicant) Phelps Reid Foster Johnson Lawyers (First Respondent) ACT Government Solicitors (Second Respondent) | |
File Number(s): | ACTCA 23 of 2018 |
Decision under appeal: | Court/Tribunal: ACT Supreme Court Before: Penfold J Date of Decision: 6 March 2018 Case Title: Council of the Law Society of the ACT v The Legal Practitioner D3 Citation: [2018] ACTSC 45 |
Murrell CJ
The Application
The applicant is a former legal practitioner who was the subject of disciplinary proceedings brought by the Council of the ACT Law Society (the Society) in the ACT Civil and Administrative Tribunal (ACAT).
Penfold J (the primary judge) determined that the Legal Profession Act 2006 (ACT) (LPA) gave the ACAT jurisdiction to hear and determine the disciplinary proceedings: Council of the Law Society of the ACT v Legal Practitioner D3 [2018] ACTSC 45; 331 FLR 132 (D3 Primary Judgment).
The applicant appealed, challenging the primary judge’s interpretation of the LPA.
The appeal is listed for hearing on 16 November 2018.
By an application filed belatedly on 8 October 2018, the applicant seeks to transfer the appeal to the Federal Court of Australia pursuant to s 5(1)(b)(i) or s 6(1) of the Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT) (ACT CVA).
History of proceedings between the parties
The history of proceedings between the applicant and the Society is long and complicated. For the present purposes, only a few events are significant.
The ACAT proceedings
On 19 June 2013, the Society brought proceedings in the ACAT alleging misconduct on three grounds: see Council of the Law Society of the ACT v Legal Practitioner D3 (Occupational Discipline) [2017] ACAT 9 at [6].
Ground 1 asserted that the applicant had engaged in professional misconduct by committing fraud on the Commissioner of the ACT Revenue in connection with an application for a First Home Owner Grant. Grounds 2 and 3 alleged breaches of the Legal Profession (Solicitors) Rules 2007 (ACT): see D3 Primary Judgment at [9].
Ground 1 alleged that the applicant had engaged in misconduct prior to 1 July 2006, the date on which the relevant parts of the LPA commenced: D3 Primary Judgment at [11].
The decision of the primary judge
10. The question before the primary judge was whether the ACAT had jurisdiction under the LPA to hear disciplinary matters concerning conduct that predated the commencement of the LPA.
11. On 6 March 2018, the primary judge determined that the ACAT had jurisdiction under the LPA to hear and determine Ground 1: D3 Primary Judgment at [163].
12. On 11 April 2018, the applicant appealed against the primary judge’s decision.
13. On 13 April 2018, the primary judge refused to grant a stay of the orders made in D3 Primary Judgment pending determination of the appeal from her orders: Council of the Law Society of the ACT v Legal Practitioner D3 [2018] ACTSC 95.
Finalisation of the ACAT proceedings
14. As an appeal does not operate as a stay of the order appealed from (see Court Procedures Rules 2006 (ACT) r 5301(1)) and a stay was refused, the ACAT proceedings continued while the appeal was on foot.
15. On 19 July 2018, the ACAT proceedings were finalised by consent orders. The applicant consented to a finding that he was guilty of professional misconduct otherwise than in relation to Ground 1. He consented to orders that the ACAT recommend that his name be removed from the rolls of practitioners in the ACT, South Australia and Victoria, and that the ACAT recommend the cancellation of his Victorian practicing certificate. He also consented to an order that the Society’s application for disciplinary action be otherwise dismissed.
16. Although the Society’s complaint concerning Ground 1 was dismissed by consent, the appeal concerning Ground 1 remains on foot. In those circumstances, the applicant concedes that the Court of Appeal may decline to grant relief. However, he does not concede that the appeal lacks merit.
The Federal Court proceedings
17. The applicant was a resident of the Australian Capital Territory until June 2012, when he relocated to Victoria. When the ACAT proceedings were commenced, he resided in Victoria.
18. On 18 April 2018, the High Court handed down its decision in Burns v Corbett [2018] HCA 15; 92 ALJR 423 (Burns). The High Court held that it is unconstitutional for the NSW Civil and Administrative Tribunal to adjudicate a matter between residents of different States, as the administrative tribunal is not a ‘Court of a State’ and only a ‘Court of a State’ may engage federal diversity jurisdiction under s 75(iv) of the Constitution.
19. On 14 August 2018, the applicant commenced proceedings in the Victorian registry of the Federal Court of Australia (Federal Court proceedings), seeking a declaration that the consent orders made by the ACAT were invalid, and an injunction preventing enforcement of the orders. Relying on Burns, the applicant argues that the consent orders were an impermissible exercise of federal diversity jurisdiction because they involved a Victorian resident (the applicant) and an ACT resident (the Society). The applicant claims relief under s 39B of the Judiciary Act 1903 (Cth) (Judiciary Act).
20. On 14 September 2018, the Society was joined as a party to the Federal Court proceedings, and the ACT Attorney-General intervened: Practitioner D3 v ACT Civil and Administrative Tribunal [2018] FCA 1454.
21. On 13 December 2018, the Federal Court will hear the applicant’s application to amend the Federal Court statement of claim and the Society’s application for summary judgment in the Federal Court proceedings.
The applicant’s submissions
22. The applicant asks that the appeal be transferred to the Federal Court under s 5(1)(b)(i) or s 6(1) of the ACT CVA.
23. It would be remiss to turn to the substance of the applicant’s arguments without observing that there is no matter of practical substance that remains in issue between the parties in the appeal. Quite apart from any order that has been made by the ACAT, the parties have agreed that Ground 1 of the disciplinary complaint should be dismissed.
24. Relying on s 6(1) of the ACT CVA, the applicant contends that the appeal is a “special federal matter” within s 3 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) (Cth CVA), being “a matter that is within the original jurisdiction of the Federal Court by virtue of section 39B of the Judiciary Act 1903”. He argues that the substantive issue in the appeal is the interpretation of the LPA, which is a matter arising under a law made by the Parliament (see s 39B(1A)(c) of the Judiciary Act). Further, there is no “special reason” for the appeal to remain in this Court: s 6(3) of the ACT CVA.
25. In relation to s 5(1)(b)(i) of the ACT CVA, the applicant contends that the appeal “arises out of, or is related to”, the Federal Court proceedings and it is more appropriate that the Federal Court determine it.
Legislation
26. The Federal Court may exercise appellate jurisdiction in an “ACT matter”: ACT CVA s 4(1). “ACT matter” means a matter in which the Supreme Court has jurisdiction otherwise than by reason of a law of the Commonwealth or of another State: dictionary to the ACT CVA. The appeal does concern an ACT matter.
27. Relevantly, sections 5 and 6 of the ACT CVA provide:
5Transfer of proceedings
(1)If—
(a) a proceeding (in this subsection called the relevant proceeding) is pending in the Supreme Court; and
(b) it appears to the Supreme Court that—
(i) the relevant proceeding arises out of, or is related to, another proceeding pending in the Federal Court or the Family Court and it is more appropriate that the relevant proceeding be determined by the Federal Court or the Family Court; or
…
the Supreme Court shall transfer the relevant proceeding to the Federal Court or the Family Court, as the case may be. …
6Special federal matters—general rules
(1) If—
(a)a matter for determination in a proceeding that is pending in the Supreme Court is a special federal matter; and
(b) the court does not make an order under subsection (3) in respect of the matter;
the court shall transfer the proceeding in accordance with this section to the Federal Court or a court mentioned in subsection (2) (b).
(2) If the Supreme Court orders that a proceeding be transferred, the proceeding shall be transferred—
(a) if the matter for determination in the proceeding is a matter mentioned in the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), section 3 (1), definition of special federal matter, paragraph (a), (b), (c), (d) or (e)—to the Federal Court …
…
(3) The Supreme Court may order that the proceeding be determined by that court if it is satisfied that there are special reasons for doing so in the particular circumstances of the proceeding other than reasons relevant to the convenience of the parties.
…
(6) In considering whether there are special reasons for the purposes of subsection (3), the Supreme Court shall—
(a) have regard to the general rule that special federal matters should be heard by the Federal Court …
…
28. Section 3 of the Cth CVA relevantly provides:
3 Interpretation and application
(1) In this Act, unless the contrary intention appears:
special federal matter means:
…
(e) a matter that is within the original jurisdiction of the Federal Court by virtue of section 39B of the Judiciary Act 1903;
being a matter in respect of which the Supreme Court of a State or Territory would not, apart from this Act, have jurisdiction.
29. Section 39B(1A) of the Judiciary Act provides:
39BOriginal jurisdiction of Federal Court of Australia
(1A)The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:
…
(c) arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter.
Should the appeal be transferred under s 6 of the ACT CVA?
30. Relevantly, the appeal must be transferred to the Federal Court under s 6 of the ACT CVA if:
(a)A matter for determination in the appeal is a “special federal matter” because it is both within the original jurisdiction of the Federal Court as it arises under laws made by the Commonwealth Parliament and it is a matter in respect of which the Supreme Court would not, apart from the Cth CVA, have jurisdiction; and
(b)The Court does not make an order under s 6(3).
31. There is no “special federal matter” that is for determination on the appeal.
32. The matter in issue concerned the interpretation of the LPA, which was enacted pursuant to a law made by the Commonwealth Parliament, namely s 22 of the Australian Capital Territory (Self Government) Act 1988 (Cth) (Self Government Act).
33. As far as I understand the submissions, the applicant argues that, either the LPA is itself a law “made by the [Commonwealth] Parliament”, or the LPA covers matters “arising under” the Self Government Act within the meaning of s 39B(1A)(c) the Judiciary Act. Presumably, if the argument was correct, all enactments of the ACT Legislative Assembly would “arise under” a law made by the Commonwealth Parliament.
34. As to the first contention, the phrase “laws made by the [Commonwealth] Parliament” is found in s 76(ii) of the Constitution and s 39B(1A)(c) of the Judiciary Act. It does not extend to laws made by the ACT Legislative Assembly, which is a distinct law-making body of a body politic under the Crown that is separate from the Commonwealth: see s 7 of Self Government Act. In GPAO, Gleeson CJ and Gummow J explicitly distinguished between the Family Law Act 1975 (Cth) (a law “made by the Parliament”) and the Community Welfare Act (NT) (“a law made by the Legislative Assembly of the Northern Territory of Australia”): GPAO at [1].
35. I do not accept that, just because the Self Government Act is a law made by the Commonwealth Parliament and the LPA is a law made under s 22 of the Self Government Act, it follows that the LPA itself is a law made by the Commonwealth Parliament within the meaning of s 39B(1A)(c) the Judiciary Act.
36. In support of his second contention, the applicant referred to Northern Territory v GPAO [1999] HCA 8; 196 CLR 553 (GPAO) and Bateman Project Engineering Pty Ltd v Pegasus Gold Australia Pty Ltd [2000] NTSC 34 (Pegasus).
37. However, the decisions in GPAO and Pegasus do not support the applicant’s contention.
38. The relevant issues in GPAO included whether the expression “laws made by the Parliament” in s 76(ii) of the Constitution extends to laws made by the Commonwealth Parliament under the Territories power (s 122 of the Constitution). On that issue, the “laws” in question were the relevant parts of the Family Law Act 1975 (Cth) as applicable to the Northern Territory by virtue of the Territories power. They were made directly by the Commonwealth Parliament, not by the Northern Territory Legislative Assembly. The applicant did not explain the manner in which that case assisted him, given that the law in question on the appeal is a law made by the Legislative Assembly of the ACT.
39. In Pegasus, the Full Court of the Supreme Court of Northern Territory considered whether proceedings before it could be validly transferred to the Federal Court under s 5 of the Cth CVA. The proceedings involved claims by the plaintiffs for work carried out at the request of the defendant and for orders for enforcement of statutory liens under the Workmens Liens Act 1893 (NT): Pegasus at [3]. The Full Court applied the majority decision in GPAO, deciding that a Commonwealth law may validly vest in a federal court jurisdiction in respect of a territory, and a proceeding before a territory court may be validity transferred to a federal court under cross-vesting legislation, i.e. that the decision in Re Wakim; Ex parte McNally [1999] HCA 27; 198 CLR 511 does not affect the cross-vesting arrangement between the Commonwealth and the Territories. The Full Court did not consider the meaning of “special federal matters”, nor did it make any reference to s 39B(1A)(c) of the Judiciary Act.
40. The cases upon which the applicant relied do not support the proposition that a matter connected with the LPA is a matter “arising under” the Self Government Act and therefore falls within the scope of s 39B(1A)(c) the Judiciary Act. This argument was not otherwise developed.
41. In any event, it is not necessary to decide this issue. The subject matter of the appeal does not satisfy the second requirement for a matter to be a “special federal matter”. The appeal does not involve “a matter in respect of which the Supreme Court … would not, apart from this Act, have jurisdiction”: s 3 of the Cth CVA. This Court has jurisdiction in its own right over matters arising under the LPA. It does not rely upon the Cth CVA to acquire jurisdiction.
42. Consequently, the appeal does not involve a “special federal matter”.
Should the appeal be transferred under s 5 of the ACT CVA?
Applicable Legal Principles
43. The leading authority on the interpretation of the uniform cross-vesting laws is BHP Billiton Ltd v Schultz [2004] HCA 61; 221 CLR 400 (Schultz). It has been applied in the ACT: see, e.g., Bateman v Fairfax Media Publications Pty Ltd [2013] ACTSC 72; 8 ACTLR 13 (Bateman) and Langton v Western Sydney Local Health District [2017] ACTSC 352 (Langton). In Bateman, the principles were summarised by Refshauge J at [68]–[70].
44. Section 5(1)(b) prescribes three alternative criteria for transfer. If it “appears to the [Court]” that any criterion is satisfied, the Court “shall” transfer the proceedings. There is no discretion: Langton at [6]; Bateman at [68]; Schultz at [62]-[63] (Gummon J) and [222] (Callinan J). Contrary to the applicant’s written submissions, the criterion under sub-paragraph (ii) is not relevant to a determination under sub-paragraph (i). In any event, sub-paragraph (ii) is not applicable, since this court has jurisdiction over the matter under appeal in its own right (see above [41]).
45. It is only necessary to consider the applicant’s argument based on s 5(1)(b)(i) of the ACT CVA.
Does the appeal arise out of or is it related to the Federal Court proceeding?
46. Analysing the corresponding provision in the Cth CVA, Greenwood J made the following observation in Amalia Investments Ltd v Virgtel Global Networks N.V. (No. 2) [2011] FCA 1270; 198 FCR 248 at [41]:
A relevant proceeding arises out of another proceeding if there is some causal element between the two even if the causal element is not “… direct or proximate”: Re Hamilton Irvine (1990) 94 ALR 428 at 432. A pending proceeding relates to another proceeding if the two are associated or connected: Re Hamilton Irvine at p 433; Leithead v Leithead (1991) 109 FLR 177; Hoddell v Hoddell Pty Ltd [1999] WASC 156; Armstrong v Armstrong [2004] WASC 121, [49] to [56]; Bell Group Ltd v Westpac Banking Corporation (2000) 173 ALR 427 at [186] to [203]. A proceeding is related to another proceeding where “… a substantial and common question” arises in both proceeding (Mattock v Mattock (1989) 13 Fam LR 288 per McLelland J at 290) or where the “… facts and circumstances in the two proceedings … appear to be intertwined” (Foley v Green [2011] VSC 155 per Almond J at [21]. In Buckley v Gibbett, the two proceedings were found to be related on the footing of the “… essential commonality of facts and of parties” thus satisfying the “… requirements of relationship” per RD Nicholson J at p 560F.
47. The appeal does not arise out of the Federal Court proceedings; the appeal preceded the Federal Court proceedings and is completely independent of those proceedings. There is no causal relationship. The appeal deals with a narrow jurisdictional issue that does not arise from, and has no real relationship with, the Federal Court proceedings. There is no “substantial and common question” arising in the two proceedings. The appeal concerns the jurisdiction of the ACAT under the LPA with respect to conduct predating the commencement of the LPA; it does not involve an issue of federal diversity jurisdiction. Further, the facts and circumstances of the two proceedings are not “intertwined” in any relevant sense.
Is the Federal Court the more appropriate forum?
48. The correct approach to determining the appropriate forum is to be distinguished from the approach that applies in relation to the doctrine of forum non conveniens, where the question is whether the forum court is a ‘clearly inappropriate forum’: Deane J in Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 at 248, and endorsed by Mason CJ, Deane, Dawson and Gaudron JJ in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 557.
49. Instead, the common law test of identifying the ‘natural and more appropriate forum’ applies: Schultz at [7]-[11] (Gleeson CJ, McHugh and Heydon JJ), [77] (Gummow J) and [161]–[168] (Kirby J). See also Spiliada Maritime Corp v Cansulex Ltd [1987] 1 AC 460, 476 (Lord Goff). A court must consider all the relevant connecting facts informing the interests of justice: Bateman at [68].
50. Importantly, the analysis concerns only whether the various forums are the more appropriate forum with respect to “the relevant proceeding”, i.e. the appeal pending before this Court: s 5(1)(a) of ACT CVA.
51. This Court is the far more appropriate forum to determine the appeal. The appeal has no federal dimension. On the other hand, it is very closely connected with the ACT. It concerns conduct that occurred entirely within the ACT. It concerns parties that have their closest connection with the ACT (an ACT legal practitioner who was a resident of the ACT during the period of the alleged misconduct and the ACT Law Society). It is an appeal from the ACT administrative body. It turns on the interpretation of ACT legislation. It is an appeal from proceedings conducted entirely within the ACT.
52. The issues in the Federal Court proceedings are discrete issues that can be dealt with quite independently of the issues on the appeal.
53. A further reason that this Court is the more appropriate forum to determine the appeal is that the viability of the Federal Court proceedings is in issue.
Orders
54. The application to transfer is refused.
55. The hearing date of 16 November 2018 is confirmed.
56. I note that the applicant has not yet lodged Appeal Folder A as required by Practice Direction 1 of 2016. Nor has he paid the prescribed setting down fee.
57. I direct the applicant to file Appeal Folder A by 24 October 2018 and pay the setting down fee by the same day. The applicant must also comply with the other requirements of the Practice Direction.
58. The parties have leave to file and serve written submissions regarding costs by 23 October 2018. If no submissions are received, the Court will make an order in chambers that the applicant is to pay the respondent’s costs of the application. If submissions are received, a determination will be made on the basis of the written submissions.
| I certify that the preceding fifty-eight [58] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. Associate: Date: 17 October 2018 |
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