Prescott v Legal Practitioners Disciplinary Tribunal
[2009] SASC 309
•30 September 2009
SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
PRESCOTT v LEGAL PRACTITIONERS DISCIPLINARY TRIBUNAL & ORS
[2009] SASC 309
Judgment of The Honourable Justice Layton
30 September 2009
ADMINISTRATIVE LAW - PREROGATIVE WRITS AND ORDERS - PROHIBITION - DISCRETION OF COURT AND MATTERS PRECLUDING RELIEF - EXISTENCE OF OTHER REMEDY
ADMINISTRATIVE LAW - PREROGATIVE WRITS AND ORDERS - MANDAMUS - ON WHAT GROUNDS AND FOR WHAT PURPOSES - TO COURTS AND TRIBUNALS
EQUITY - EQUITABLE REMEDIES - INJUNCTIONS - CONSIDERATIONS UPON WHICH COURT EXERCISES DISCRETION - OTHER SUFFICIENT REMEDY AT LAW
PROCEDURE - MISCELLANEOUS PROCEDURAL MATTERS - DECLARATIONS - APPROPRIATE FORM OF RELIEF - DISCRETION OF COURT - EXISTENCE OF ALTERNATIVE REMEDY
Application for judicial review of proceedings before the Legal Practitioners Disciplinary Tribunal – charges of unprofessional conduct against the plaintiff – plaintiff claimed continuation of Tribunal proceedings would constitute an abuse of process and a denial of natural justice – orders in the nature of prohibition and mandamus, as well as an injunction and declaratory order sought – plaintiff did not challenge any decision on the part of defendant Legal Practitioners Board or Tribunal – plaintiff had not made application to Tribunal for a stay of its own proceedings for abuse of process – threshold legal and jurisdictional issues to be determined – whether Tribunal has power to stay proceedings before it – whether appropriate exercise of discretion to make orders where alternative remedy not pursued.
Held: Orders refused – Tribunal has power to stay proceedings – the plaintiff had not pursued an alternative and more appropriate remedy before the Tribunal.
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT
Plaintiff sought to invoke Court’s inherent jurisdiction in applying for prerogative relief – Supreme Court Rules 199 and 200 of 2006 set out requirements for judicial review applications – whether Rules replace or modify Court’s inherent jurisdiction for prerogative relief – whether plaintiff required to comply with the Rules in invoking Court’s inherent jurisdiction.
Held: The plaintiff was required to comply with Rules 199 and 200 of the Supreme Court Rules – the procedure in Rules 199 and 200 are precise and cannot be ignored for convenience.
Legal Practitioners Act 1981 (SA) s 80(4), s 82(2a), s 82(4), s 82(5); Supreme Court Act 1935 (SA) s 17, s 29, s 31; Supreme Court Civil Rules 2006 (SA) r 192, r 199, r 200, r 264; Supreme Court Rules 1987 (SA) r 98; Supreme Court Act 1981 (UK) s 21(1), referred to.
Newcombe v Medical Board (SA) (2007) 96 SASR 564; Walton v Gardiner (1993) 177 CLR 378; Herron v McGregor (1986) 6 NSWLR 246; Re a Medical Practitioner (1993) 2 Tas R 90; James v Medical Board of South Australia (2006) 95 SASR 445; Re Ross [1995] 1 QR 319; Jago v The District Court of New South Wales (1989) 168 CLR 23; Medical Board of South Australia v N, JRP (2006) 93 SASR 546; Hinton Demolitions Pty Ltd v Lower (No. 2) (1971) 1 SASR 512; Clayton v Ralphs (1987) 45 SASR 347; S v Metanomski [1971] SASR 206; Doyle v Commonwealth (1985) 156 CLR 510; Landsel Pty Ltd (In Liq) v REI Building Society (1993) 41 FCR 421; Vardon v Promotion and Grievance Appeals Tribunal [2007] SASC 63; R v Wright; Ex parte Waterside Workers’ Federation of Australia (1955) 93 CLR 528; R v Galvin; Ex parte Metal Trades Employers’ Association [1949] 77 CLR 432; Dickison v Perrignon [1973] 1 NSWLR 72; GH Michell & Sons v Minister of Works (1974) 8 SASR 7; R v Tower Hamlets L.B.C; ex parte Kayne–Levenson [1975] QB 431; R v Cockburn; Ex parte Fomin (1981) 51 FLR 79; R v Magistrates Court at Lillydale; Ex parte Ciccone [1973] VR 122; Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421; Gudgeon v Black (1994) 14 WAR 158; R v Epping and Harlow General Commissioners, Ex parte Goldstraw [1983] 3 All ER 257; R v Chief Constable of Merseyside Police; Ex Parte Cavelely [1986] QB 424, considered.
PRESCOTT v LEGAL PRACTITIONERS DISCIPLINARY TRIBUNAL & ORS
[2009] SASC 309
LAYTON J: This matter was listed for trial to commence before me on Wednesday 26 August 2009. Prior to the commencement of the trial, some concerns were raised as to whether this Court has jurisdiction to grant the relief sought by the plaintiff. Accordingly, the parties agreed that prior to hearing evidence as to the merits of the case, I should consider as a preliminary issue whether it is appropriate for this Court to make the orders sought. It was also agreed that this preliminary issue would be decided on limited agreed evidence.
After initial uncertainty as to the precise relief sought by the plaintiff (which I will discuss later in these reasons), the orders sought now are in the following form:
1.A declaration that the taking of any further step in relation to Legal Practitioners Disciplinary Tribunal Matter No. 2 of 2006 (“the proceeding”) or in relation to the charge or the subject matter of the charge would constitute a denial of natural justice and/or an abuse of process;
2. An order in the nature of prohibition restraining the First Defendant from:
2.1 Hearing, taking any further step or entertaining any further proceeding in relation to the charge or the subject matter of the charge laid by the Second Defendant on the 14th day of July 2006 (“the charge”) alleging unprofessional conduct on the part of the plaintiff; and
2.2 Taking any further step in relation to the proceeding;
3.In the alternative, an order in the nature of mandamus directing the First Defendant to dismiss the proceeding, and
4.In the alternative, that an injunction be granted forever restraining the first and second defendants from prosecuting the charge or taking any further steps in relation to the charge or the subject matter of the charge.
Allegations of abuse of process
The orders sought by the plaintiff are based on allegations which are said to amount to an abuse of process or breach of natural justice if the first defendant, the Legal Practitioners Disciplinary Tribunal (“Legal Practitioners Tribunal”), proceeds to hear the complaint against him. The allegations include the following. The length of delay in the bringing of charges against him, in combination with the relatively minor nature of the charges being pursued, and the long period of time already taken for the Legal Practitioners Tribunal hearing. Further, that through no fault of the plaintiff, the Legal Practitioners Tribunal is now seeking to re-hear the complaint with yet further delay and causing additional stress. Finally, he is suffering from a psychiatric condition which he alleges would prevent him from being able to give evidence at any Legal Practitioners Tribunal hearing.
These allegations are contested by counsel for the second defendant, the Legal Practitioners Conduct Board (“the Board”), in a number of respects. These need not be addressed here as they concern the merits which await my conclusion on the preliminary issues between the parties. I also note at this point that the Board, and not the Legal Practitioners Tribunal, was represented at the hearing, however counsel for the Board indicated that he was instructed to inform me that the Legal Practitioners Tribunal would abide the decision of the Court.
Brief background facts
The plaintiff, Mr Prescott, and the third defendant, Mr Reynolds, are both legal practitioners. In September 1998, the plaintiff and the third defendant went into partnership together and between 1998 and 2000 they conducted business as a law firm, trading as Reynolds Prescott. Prior to going into business together they had both been practising at the law firm of Townsends, Barristers and Solicitors.
During the period from about 1997 to 2000, the two practitioners carried out legal work and provided advice to a number of clients in relation to an investment scheme which the parties refer to as the “Lateral Trading Matter”.
The Board first received a complaint about the practitioners from one of the clients of the Lateral Trading Matter on 24 June 1999. Thereafter, there was correspondence and communications between the Board and the practitioners.
On 19 May 2005, the Board resolved that charges of unprofessional conduct be laid against the practitioners in relation to their conduct in respect of clients of the Lateral Trading Matter between 1998 and 2000.
Because the impugned conduct occurred more than five years prior to the laying of the charges, s 82(2a) of the Legal Practitioners Act 1981 (“the Act”) required the consent of the Attorney-General to lay the charges. The Attorney-General, the Honourable Michael Atkinson, sent a letter to the Board indicating his consent and on 14 July 2006 the Board laid four charges against the practitioners for unprofessional conduct. Those charges were contested by the practitioners.
The matter went to a hearing before the Legal Practitioners Tribunal composed of three members and proceeded at various intervals over a period from May to September 2007.
On 24 September 2007 the plaintiff’s counsel made an application to have the matter adjourned so that medical evidence could be obtained to consider the effect of the plaintiff’s mental state on the giving of his evidence. The Legal Practitioners Tribunal granted the adjournment.
Subsequently, there were difficulties about continuing the matter before the same members of the Legal Practitioners Tribunal, as one had been appointed as a magistrate and a second had unfortunately passed away, leaving only one member who was able to continue to hear the matter.
Whilst the Act specifically provides for a hearing to continue with only two members of a panel, it does not contain any provision for proceeding with only one member. Section 80(4) of the Act states:
80—Constitution and proceedings of Tribunal
(4)If, before proceedings are finalised, a member of a panel chosen under subsection (1) dies or is otherwise unable to continue acting, the two remaining members of the panel may continue to hear and determine the proceedings.
A proposal was made by the Presiding Member of the Legal Practitioners Tribunal, Mr Morcombe QC, that because there would only be one remaining member, it was appropriate to constitute a new Legal Practitioners Tribunal panel. The plaintiff objected to the constitution of a new panel. The Board argued that the Legal Practitioners Tribunal had the power to re-constitute the Legal Practitioners Tribunal with a new panel of three members to re-hear the current charges and it indicated that it would not be relaying charges.
On 21 July 2008, Mr Morcombe heard argument from the parties regarding the power of the Legal Practitioners Tribunal to reconstitute with a new panel. On 17 October 2008 Mr Morcombe delivered reasons for his decision, indicating that he considered he had the power under the Act to re-constitute the Legal Practitioners Tribunal (“the Morcombe Decision”). A new panel was constituted for a directions hearing on 18 November 2008, which comprised three new members.
It was at this point that the plaintiff brought these proceedings in the Supreme Court.
Evidence admitted in these proceedings
By agreement between the parties, certain evidence came before me for the purposes of deciding the threshold issues. This evidence is drawn from paragraphs 38.1 to 38.6,[1] 38.9 to 38.11 and 38.20 to 38.24 of the affidavit of the plaintiff filed on 16 December 2008 and their exhibits (“the affidavit”), together with further matters agreed between the parties as indicated in the transcript of these proceedings. This evidence can be summarised as follows.
[1] The last sentence of paragraph 38.6 was not included as part of the evidence.
The plaintiff carried out legal work on the Lateral Trading Matter in 1997 and 1998. He first received a request from the Board on 7 July 1999 to explain his conduct in relation to this work. Pursuant to the Act, the Board was compelled to seek the consent of the South Australian Attorney-General to lay the charges out of time.[2]
[2] MTP 5.
The relevant section of the Act states:
82—Inquiries
…
(2a) A charge relating to conduct by a legal practitioner must be laid before the Tribunal within five years of the conduct unless the charge is laid by, or with the written consent of, the Attorney-General.
On 8 June 2008, the Attorney-General sent a letter to the Board consenting to the laying of charges. The text of the letter was:[3]
I refer to your letter dated 11 May, 2006, about the conduct of legal practitioners, Mr Leo Reynolds and Mr Michael Prescott.
Pursuant to section 82 (2a) of the Legal Practitioners Act 1981, I consent to the laying of a charge of unprofessional conduct against Mr Leo Reynolds and Mr Michael Prescott, the particulars of which appear in the draft charge attached to your letter of 11 May, 2006.
[3] MTP 31.
On 14 July 2006 charges alleging unprofessional conduct were laid by the Board, in the Legal Practitioners Tribunal proceeding Action No.2 of 2006, as summarised below:[4]
1That between about 9 March and 19 October 1998, the practitioners, contrary to s 41(1) of the Act, failed to deliver to their clients, either personally or by post, a bill specifying the total amount of the costs before appropriating money in satisfaction of a claim for legal costs;
2That between February 1998 and October 1998, the practitioners failed to comply with the requirements of the Legal Practitioners Regulations 1994 in relation to their trust account.
3That between about 13 January 1998 and 10 August 1998, the practitioners made inappropriate and improper charges to the clients in so far as they made separate charges for a number of letters without categorising the letters as circular, resulting in gross overcharging.
4That between about March 1998 and September 2000, the practitioners failed to maintain communication as agreed with clients who had accepted the practitioners’ Terms of Engagement, or any adequate communication with all clients.
[4] MTP 7.
A Legal Practitioners Tribunal panel consisting of Ms Maureen Pyke QC, Mr Paul Anderson and Ms Joanne Tracey began a hearing of the charges on 15 May 2007.
The hearing of the charges against the practitioners proceeded until 19 May 2007. The hearing was later reconvened on 17 September and continued. A report obtained by the plaintiff from Dr Michael Healy, General Practitioner, dated 24 September 2007, indicated that the plaintiff was “suffering from major depression with associated anxiety disorder/panic attack”. Dr Healy also certified that the plaintiff would be “unfit to face court proceedings”.[5] On 25 September 2007 counsel for the plaintiff indicated that his client had been diagnosed with an anxiety depressive condition and sought an adjournment. The Legal Practitioners Tribunal adjourned to a date to be fixed.
[5] MTP 33.
As at the date of the adjournment on 25 September 2007, the third defendant had completed his evidence, including having been cross-examined. The plaintiff had also completed his evidence-in-chief and was nearing completion of his cross-examination by counsel for the Board at the time of the adjournment.
Subsequently, a report dated 26 November 2007 from Professor Alexander McFarlane, Professor of Psychiatry, indicated that the plaintiff “has suffered from a major depressive disorder and avoidant personality disorder”. The report also expressed the opinion of Professor McFarlane that the plaintiff “is currently fit to give evidence”.[6]
[6] MTP 34.
Following the adjournment of the hearing, the Legal Practitioners Tribunal was vacated by two of its members, for the reasons to which I have earlier referred.[7]
[7] See MTP 27.
On 17 October 2008, after hearing argument, Mr Morcombe resolved that he had the power to appoint a new Legal Practitioners Tribunal panel to replace the first one.[8] The new panel, which was appointed by Mr Morcombe, would be composed of Ms Sashi Maharaj QC, Mr Malcolm Montgomery and Mr Jon Clarke. This new panel would proceed with the existing charges.
[8] MTP 27.
A directions hearing took place before the new panel on Tuesday 18November 2008.[9]
[9] MTP 29.
First formulation of relief
This action has had a rather curious past in terms of the precise form of orders that the plaintiff seeks and the basis on which the plaintiff argues that the orders should be made. There is no doubt that the plaintiff ultimately desired this Court to put a stop to the prosecution of the disciplinary proceedings against him in the Legal Practitioners Tribunal, however he had some difficulty articulating the legal grounds that would lead to this desired result.
The action began by Summons dated 17 December 2008. The relevant order sought on the Summons was “an order permanently staying Legal Practitioners Disciplinary Tribunal Matter No. 2 of 2006” and referred to an application which would be made pursuant to 6R 199 of the Supreme Court Rules 2006 (SA) (“the Rules”). Accordingly, on the same date an interlocutory application was filed seeking permission to proceed with an action for judicial review pursuant to 6R 200.
6R 199 sets out the Court’s jurisdiction to make an order for judicial review. The rule states:
199—Power to make order for judicial review
(1) The Court may make an order for judicial review.
(2) An order for judicial review is an order of one of the following kinds—
(a) an order preventing another court or a tribunal that has a duty to act judicially from acting beyond its jurisdiction or in contravention of the requirements of natural justice (prohibition);
(b) an order setting aside the decision of another court or a tribunal that has a duty to act judicially because of error, absence of jurisdiction, failure to observe the requirements of natural justice or fraud (certioriari);
(c) an order to compel the performance of a duty of a public nature that cannot be enforced by some other adequate legal remedy (mandamus);
(d) an order to prevent a person from wrongfully exercising, or purporting to exercise, functions of a public character (quo warranto).
Permission to seek judicial review was granted by Master Lunn on 23 January 2009.
The matter first came before me for a directions hearing on 18 August 2009. At that hearing, I expressed concern that the Summons and affidavit material did not sufficiently identify the precise basis for the judicial review or the body against which orders were sought. Paragraph 41 of the plaintiff’s affidavit indicated that he sought:
judicial review so as to obtain an order in the nature of prohibition permanently staying the charge including (but not limited to) an order enjoining the [Board] from seeking the consent of the Attorney-General for the re-laying of any further charge in relation to the Lateral Trading matter.
I noted that both the Board and the Legal Practitioners Tribunal were defendants.
Counsel for the Board also expressed concern about the lack of clarity as to the relief sought.
During the course of submissions in response, counsel for the plaintiff indicated, inter alia, that judicial review was sought in respect of the Morcombe Decision. Following that discussion, I made orders requiring the plaintiff to file and serve a document by 21 August 2009 setting out the orders which he sought and a brief statement setting out the bases for the orders. I then adjourned the matter for hearing to commence on 26 August 2009.
Second formulation of relief
On 21 August 2009, the plaintiff filed a document entitled “Summary of Relief Sought and Grounds for Relief”, which was revised in some minor respects in a subsequent document filed in the Court on 25 August 2009. The relief sought in the “Summary of Relief Sought and Grounds for Relief” filed on 25 August was as follows:
The relief sought is:
1.Legal Practitioners Disciplinary Tribunal Matter No 2 of 2006 (“the proceeding”) in relation to the charge laid against the plaintiff by the second defendant on the 14th day of July 2006 (“the charge”) is permanently stayed pursuant to Rule 192 of the Supreme Court (Civil) Rules 2006 (“R6 SCR”);
2.The first defendant is prohibited from taking any further steps in relation to the proceeding or charge pursuant to R6 SCR 199(2a);
3.The decision delivered in the proceeding by the Presiding Member on 17 October 2008 pursuant to s80 of the Legal Practitioners Act 1981 whereby a new panel was constituted to hear the charge does hereby stand quashed pursuant to R6 199(2b);
4.The second defendant be restrained and enjoined from;-
4.1Further prosecuting the charge; and
4.2 Seeking the consent of the Attorney General to the laying of a charge in relation to the subject matter of the charge;
pursuant to R6 SCR 199(2c).
This new formulation of the orders sought referred to relief pursuant to 6R 192 in order 1, as well as 6R 199 in orders 2 to 4.
At the hearing on 26 August 2009, counsel for the plaintiff developed and clarified these proposed orders. In particular he confirmed that order 1 was being sought for a stay of the proceeding before the Legal Practitioners Tribunal pursuant to 6R 192. Orders 2 and 3 related to an order in the nature of prohibition and certiorari pursuant to 6R 199(2a) and 6R 199(2b) in respect of the Morcombe Decision. Further, he explained that order 4 was seeking an order in the nature of quo warranto pursuant to 6R 199(2d), rather than 6R 199(2c), as the document stated.
At that point I raised with the plaintiff’s counsel whether 6R 192 was restricted to staying the Court’s own proceedings, or whether it empowered the Court pursuant to that Rule to stay an order of the Legal Practitioners Tribunal. Counsel for the Board also expressed similar concerns.
The matter was adjourned for a short time for the plaintiff to consider these issues. When the matter resumed in the afternoon, the plaintiff provided the Court with new draft Minutes of Order in the third form of the relief sought.
Third formulation of relief
Although I have set out at the beginning of these reasons the relief sought, I will repeat them for convenience at this point:
1.A declaration that the taking of any further step in relation to Legal Practitioners Disciplinary Tribunal Matter No. 2 of 2006 (“the proceeding”) or in relation to the charge or the subject matter of the charge would constitute a denial of natural justice and/or an abuse of process.
2. An order in the nature of prohibition restraining the First Defendant from:
2.1 Hearing, taking any further step or entertaining any further proceeding in relation to the charge or the subject matter of the charge laid by the Second Defendant on the 14th day of July 2006 (“the charge”) alleging unprofessional conduct on the part of the plaintiff; and
2.2 Taking any further step in relation to the proceeding;
3.In the alternative, an order in the nature of mandamus directing the First Defendant to dismiss the proceeding;
4.In the alternative, that an injunction be granted forever restraining the first and second defendants from prosecuting the charge or taking any further steps in relation to the charge or the subject matter of the charge.
The above draft minutes contained substantial differences from the orders previously sought. First, 6R 192 was abandoned, and I interpolate, in my view correctly. Second, it was made clear that the plaintiff no longer pursued any review of the Morcombe Decision. Third, counsel explained that proposed order 1 sought a declaration that further action in the Legal Practitioners Tribunal proceedings would constitute a denial of natural justice or an abuse of process. Fourth, that orders 2 and 3 were seeking to invoke the Court’s inherent jurisdiction to issue prerogative writs and the relief was no longer sought pursuant to 6R 199. Finally, in order 4 an injunction was sought in the exercise of the Court’s inherent jurisdiction.
There were, therefore, a number of legal and jurisdictional issues which arose as a consequence of the formulation of the relief. A major argument sought to be addressed by counsel for the Board was that it was not appropriate for this Court to hear the merits of an argument about abuse of process, when the Legal Practitioners Tribunal had power to hear such an argument and it had not previously been the subject of any application by the plaintiff. The plaintiff in response sought to argue that the Legal Practitioners Tribunal did not have jurisdiction to hear an application for abuse of process and it had no power to order a stay of proceedings before it.
This circumstance led to the parties agreeing that it was appropriate for these matters to be determined as threshold legal and jurisdictional issues prior to receiving evidence on the merits of the application.
I therefore adjourned the matter to the following day to allow the parties to prepare for these arguments and to permit the plaintiff finally to refine the relief sought and to provide the Court with an outline of the relevant questions for me to consider in relation to jurisdiction. On resumption, counsel for the plaintiff provided the Court with a list of issues and indicated that the relief sought remained the same.
Issues for consideration
This proceeding, in my view, raises the following issues:
·Does the Court have inherent jurisdiction to stay the Legal Practitioners Tribunal proceedings for abuse of process?
·Does the Legal Practitioners Tribunal have power to stay proceedings itself pursuant to the Act?
·Does 6R 199 modify or replace the historical supervisory jurisdiction of the Court to grant prerogative writs?
·Should the Court issue a writ of either prohibition or mandamus or make orders in the nature of prohibition or mandamus in the circumstances?
·Should the Court make the declaration sought in the circumstances?
·Should the Court grant an injunction in the circumstances?
Supreme Court’s inherent jurisdiction to stay Legal Practitioners Tribunal proceedings for abuse of process
Whilst a survey of the case law has not provided any case where the Supreme Court has entertained an application for a stay of proceedings which are before the Legal Practitioners Tribunal, there is no doubt that this Court has inherent jurisdiction to stay proceedings of the Medical Professional Conduct Tribunal (“Medical Tribunal”) on the ground that they amount to an abuse of process. Such an application was brought before this Court in Newcombe v Medical Board (SA) (2007) 96 SASR 564. In that case Duggan J refused to grant a stay in the circumstances, but his Honour made it clear that the Court had jurisdiction to order a stay if the circumstances so warranted. His Honour said:[10]
The power of superior courts to stay proceedings before disciplinary tribunals on the ground that those proceedings are oppressive or an abuse of process is well established.
[10] Newcombe v Medical Board (SA) (2007) 96 SASR 564, 566[9].
For this proposition his Honour relied substantially upon Walton v Gardiner (1993) 177 CLR 378. In the course of their Honours’ reasons in Walton v Gardiner, the High Court (Mason CJ, Dean and Dawson JJ) considered an argument that the Supreme Court of New South Wales did not have inherent jurisdiction to stay proceedings of the equivalent of the Medical Tribunal of that State. Their Honours found there to be no reason to depart from previous New South Wales authority[11] to the effect that the Supreme Court had such power.[12] In particular, the High Court said:[13]
the appeal must be disposed of on the basis that it is now settled that the Court of Appeal's supervisory jurisdiction with respect to "the administration of justice in New South Wales" [Supreme Court Act 1970 (NSW), s 23] extends, in the absence of legislative intervention, to the making of an order staying proceedings in the Tribunal on the ground that they constitute an abuse of the Tribunal's process.
[11] In particular, Herron v McGregor (1986) 6 NSWLR 246.
[12] Walton v Gardiner (1993) 177 CLR 378, 389-91.
[13] Walton v Gardiner (1993) 177 CLR 378, 391-92.
Whilst the High Court was dealing with the precise wording of the Act which confers jurisdiction on the New South Wales Supreme Court, there is no reason why the inherent jurisdiction of this Court should be in any lesser. The general jurisdiction of this Court is set out in s 17 of the Supreme Court Act 1935 (SA), which states:
17 – General Jurisdiction
(1) The court shall be a court of law and equity.
(2) There shall be vested in the court—
(a) the like jurisdiction, in and for the State, as was formerly vested in, or capable of being exercised by, all or any of the courts in England, following:
(i)The High Court of Chancery, both as a common law court and as a court of equity:
(ii) The Court of Queen's Bench:
(iii) The Court of Common Pleas at Westminster:
(iv)The Court of Exchequer both as a court of revenue and as a court of common law:
(v) The courts created by commissions of assize:
(b) such other jurisdiction, whether original or appellate, as is vested in, or capable of being exercised by the court:
(c) such other jurisdiction as is in this Act conferred upon the court.
Whilst, unlike the New South Wales legislation, this section does not refer to "the administration of justice in [the State]", it clearly envisages a wide jurisdiction.
In Re a Medical Practitioner [1993] 2 Tas R 90, Green CJ of the Tasmanian Supreme Court dealt with the application of Walton v Gardiner and said (at [4]):[14]
There is no precise equivalent to that provision in the Tasmanian legislation and instruments which confer and define the jurisdiction of the Supreme Court of Tasmania but I would have thought that the words used in s23 are also apt to describe the jurisdiction of the Supreme Court of Tasmania, it being a superior court of record, exercising, subject to immaterial exceptions, plenary jurisdiction in the State of Tasmania.
[14] Re a Medical Practitioner [1993] 2 Tas R 90, 92.
Consistent with this view, the South Australian Full Court of the Supreme Court in James v Medical Board of South Australia (2006) 95 SASR 445, although not deciding the issue, proceeded on the basis that it had inherent jurisdiction to make such an order if it were appropriate.
There is no reason why this inherent power of the Court to order a stay of proceedings which are before tribunals such as the Medical Tribunal, should not extend to the Legal Practitioners Tribunal. In fact, it may be that the reasoning in the above cases applies a fortiori to the Legal Practitioners Tribunal, given that the Supreme Court has additional inherent jurisdiction to control its legal practitioners. [15]
[15] Law Society of SA v Nicholson (No 2) (2004) 234 LSJS 45.
For those reasons, I consider that there is an inherent jurisdiction of this Court to stay proceedings of the Legal Practitioners Tribunal as an abuse of process. I also note, inter alia, that the Court has power to grant an interim stay of proceedings pending determination of an application for judicial review, pursuant to 6R 200(6). That rule was not sought to be invoked by the plaintiff.
The next issue is whether or not the inherent power of the Court to grant a stay should be exercised and, in particular, whether the Legal Practitioners Tribunal itself has power to stay proceedings before it.
Does the Legal Practitioners Tribunal have power to itself stay proceedings pursuant to the Act?
In James v Medical Board of South Australia[16] (“James”), in the context of considering the jurisdiction of this Court to stay the proceedings of the Medical Board of South Australia (“Medical Board”), the Court concluded that the power to stay proceedings for an alleged abuse of process ought not be exercised, in the absence of special reasons, if the Medical Board itself is capable of entertaining such an application. In that case Anderson J (Gray and Bleby JJ agreeing) said:[17]
It is my conclusion that there is no reason why the argument regarding abuse of process cannot and, in the circumstances of this matter, should not be put to the Board. The argument should be put to the Board because it is part of the jurisdiction of the Board to deal with such matters. If the parties are dissatisfied with the decision of the Board they can bring the matter before this Court by way of judicial review.
[16] (2006) 95 SASR 445.
[17] James v Medical Board of South Australia (2006) 95 SASR 445, 458[64].
Bleby J adopted these comments, stating:[18]
The Medical Board constituted under the Medical Practitioners Act 1983 (SA) has jurisdiction to hear a complaint alleging unprofessional conduct on the part of a medical practitioner when laid by a person who is aggrieved by conduct of the medical practitioner. Mr Keogh appears to be such a person. For reasons given by Anderson J the Board also has jurisdiction to determine whether proceedings before it constitute an abuse of the process of the Board. The Board may also consider that a complaint is frivolous or vexatious. Any such application, if made to the Board, is yet to be heard and determined by it. There are therefore no grounds on which this Court can properly intervene to prevent the Board from exercising its jurisdiction.
[Footnotes omitted.]
[18] James v Medical Board of South Australia (2006) 95 SASR 445, 447[2].
By parity of reasoning, if the Legal Practitioners Tribunal has the jurisdiction to hear an application to stay its proceedings, then absent some special or particular reason, the issue should be dealt with by the Legal Practitioners Tribunal. If the practitioner is dissatisfied with the decision then, as the Full Court in James indicated, there are mechanisms to review that decision in this Court.
Two relatively recent decisions indicate that, in the past, the Legal Practitioners Tribunal has entertained applications made to stay proceedings before it for abuse of process. In Re Fuller and Cummings[19] (“Fuller”) there was a considerable delay between the impugned conduct by the practitioners against whom charges had been laid and the hearing of the charges. The proceedings were ultimately stayed on the basis that, given the delay, a continuation of the proceedings would constitute an abuse of process.[20] The Board had argued that a stay should not be granted, based on the wording of s 82(4) of the Act which was said to compel the Legal Practitioners Tribunal to hear all charges except those where the impugned conduct was frivolous or vexatious. The Legal Practitioners Tribunal stated in reply:[21]
The tribunal does not accept that this was the intention of Parliament. The tribunal finds it must have been Parliament’s intention that section 82(4) was subject to all the normal rules of fair play, and procedural fairness including natural justice and including any rules relating to abuse of process. In the Tribunal’s view there exists an implied power to deal with these matters including allegations of abuse of process.
[19] Re Fuller and Cummings (unreported decision of the South Australian Legal Practitioners Disciplinary Tribunal, TR Anderson QC and M Montgomery, 21 October 1999).
[20] Re Fuller and Cummings (unreported decision of the South Australian Legal Practitioners Disciplinary Tribunal, TR Anderson QC and M Montgomery, 21 October 1999), 2.
[21] Re Fuller and Cummings (unreported decision of the South Australian Legal Practitioners Disciplinary Tribunal, TR Anderson QC and M Montgomery, 21 October 1999), 4.
The Legal Practitioners Tribunal went on to consider a number of decisions, which it conceded were not definitive authority for the Legal Practitioners Tribunal granting a stay, but were nevertheless persuasive in their statement of relevant principle,[22] or in showing analogous circumstances where stays had been granted,[23] or in giving implied authoritative acceptance of a similar tribunal’s power to stay.[24] Some of these decisions will be considered here later.
[22] (1989) 168 CLR 1 at 16
[23] Re Ross [1995] 1 QR 319; Walton v Gardiner (1993) 177 CLR 378.
[24] Jago v The District Court of New South Wales (1989) 168 CLR 23 at 60.
In the second case, Re English,[25] the practitioner against whom charges of misconduct had been laid was suffering from a mental condition which rendered him without capacity to testify in Legal Practitioners Tribunal proceedings. Following the decision in Fuller, the Legal Practitioners Tribunal determined it had a power, albeit narrow, to stay proceedings. The power was implied (rather than inherent) from the principle that “a grant of power carries with it everything necessary for its exercise”.[26]
[25] Re English (unreported decision of the South Australian Legal Practitioners Disciplinary Tribunal, AJ Besanko QC, GA Brown and DF Stratford, 27 June 2000).
[26] Re English (unreported decision of the South Australian Legal Practitioners Disciplinary Tribunal, AJ Besanko QC, GA Brown and DF Stratford, 27 June 2000), 8.
These decisions of the Legal Practitioners Tribunal are persuasive in their reasoning, but there is no determination by this Court as to whether the Legal Practitioners Tribunal has jurisdiction to hear an application to stay its proceedings as an abuse of process. The judicial discussion in relation to the jurisdiction of statutory bodies to stay proceedings has largely concerned the Medical Board and Medical Tribunal, which bodies have loosely analogous disciplinary functions to the Board, and the Legal Practitioners Tribunal, respectively. However, these decisions and their reasons are helpful in deciding this issue.
The question of the ability for the Medical Tribunal to entertain such an application was the subject of consideration in Medical Board of South Australia v N, JRP (2006) 93 SASR 546 (“N, JRP”). In that case an application for judicial review was brought against a decision of the Medical Tribunal, which had found that it did not have jurisdiction to stay proceedings as an abuse of process. Bleby J (with whom I agreed) dismissed the application, finding that, as a matter of statutory construction, it could not be said that the Medical Tribunal has jurisdiction to stay its proceedings.[27]
[27] Medical Board of South Australia v N, JRP (2006) 93 SASR 546, 566 [80].
Bleby J reached that conclusion on several grounds. First, and most importantly, there was no explicit legislative provision empowering the Medical Tribunal to hear an application to stay proceedings.[28] I observe that this is also the case with respect to the Legal Practitioners Tribunal, however that is clearly not determinative of the issue; it may be that such jurisdiction is implied.
[28] Medical Board of South Australia v N, JRP (2006) 93 SASR 546, 565 [73]-[74].
Second, Bleby J said that the powers of the Medical Tribunal suggested that jurisdiction to stay proceedings would be inappropriate. His Honour said:[29]
[T]he fact that certain orders and acts of the [Medical] Tribunal are only enforceable by or through orders of this Court is an indicator that Parliament did not consider that the Tribunal would be a body with wide-ranging implied powers.
[29] Medical Board of South Australia v N, JRP (2006) 93 SASR 546, 566[77].
In my view, there are some similarities in this respect between the Medical Tribunal and the Legal Practitioners Tribunal.[30]
[30] For example, the Legal Practitioners Act 1981 s 84(4) and (5).
Third, that the legislation which regulated the Medical Tribunal specifically stated that the Medical Tribunal shall conduct an inquiry into charges, rather than that it may. Bleby J said:[31]
In terms of the express provisions of the Act, the starting point is s 58(2), which provides that the [Medical] Tribunal shall inquire into the subject matter of a complaint. The use of the word shall implies that in this case the power to inquire must be exercised (Acts Interpretation Act [1915], s 34). A power to stay proceedings on the ground of abuse of process would be inconsistent with such an obligation.
[31] Medical Board of South Australia v N, JRP (2006) 93 SASR 546,565.
By contrast, the Medical Board had power to dismiss charges as frivolous or vexatious, the Medical Tribunal did not. His Honour said: [32]
The power to dismiss a complaint on the ground that it is frivolous or vexatious and the power to stay proceedings on the ground that they constitute an abuse of process overlap, but are not identical. Nevertheless, the fact that the Board is given the power to dismiss a complaint on the ground that it is frivolous or vexatious, and the Tribunal is not, is suggestive of a legislative intent that the Tribunal cannot decline to inquire into the subject matter of a complaint. It seems to me that this follows, first, simply because the power is given to the Board but not to the Tribunal and, secondly, because it highlights the two-tiered nature of the disciplinary procedure, with frivolous and vexatious complaints "filtered out" by the Board, which is the only body which can then lay a complaint before the Tribunal.
[32] Medical Board of South Australia v N, JRP (2006) 93 SASR 546, 565-6[76].
In respect of the third point set out by Bleby J, in my view, the Legal Practitioners Tribunal differs from the Medical Tribunal. Section 82(4) and (5) of the Act sets out the Legal Practitioners Tribunal’s power to dismiss charges:
(4)Where a charge has been laid under this section, the Tribunal must, subject to subsection (5), inquire into the conduct of the legal practitioner or former legal practitioner to whom the charge relates.
(5)The Tribunal may summarily dismiss any charge that it considers frivolous or vexatious.
Thus the Legal Practitioners Tribunal’s obligation that it “must” inquire into conduct is clearly subject to the power to dismiss charges that are frivolous or vexatious. Moreover, unlike the medical disciplinary regime, the legal disciplinary bodies do not strictly operate in what Bleby J called a “two-tiered” system and it is possible for people other than the Legal Practitioners Conduct Board to lay charges. Accordingly, there is less protection against improper proceedings being brought against legal practitioners in the Legal Practitioners Tribunal than under the medical disciplinary regime. The Legal Practitioners Tribunal is therefore given powers under the Act to prevent such proceedings being pursued.
These differences suggest that the legislative regime in relation to the Legal Practitioners Tribunal in this matter is quite different from the Medical Tribunal. Rather it may be that, for present purposes, the Legal Practitioners Tribunal is more similar to the Medical Board than the Medical Tribunal. Moreover, in James, Anderson J (with whom Bleby and Gray JJ agreed), in finding that the Medical Board had power to stay its proceedings for abuse of process, provided some commentary, albeit in obiter, that the Legal Practitioners Tribunal does have the power to order a stay. His Honour said (at 457[55]):
Disciplinary tribunals such as the [Medical] Board and the Legal Practitioners Disciplinary Tribunal are vested with implied powers to control all aspects of procedure which relate to procedural fairness. That, of course, is subject to the overriding supervisory power of the Supreme Court. It is my view that an allegation of an abuse of process comes within the implied powers of the Board.
[Emphasis added.]
For this proposition, his Honour relied upon Forbes, Disciplinary Tribunals (2nd ed), where the author states (at 147):[33]
The courts of law have inherent power to see that their processes are not abused. One application of the “abuse of process” doctrine is an order dismissing or permanently staying an action which is so long delayed that the defendant cannot be expected to assemble a case and make effective use of the right to be heard. Frivolous or vexatious proceedings may be treated in the same way. The courts have extended the principle to prevent abuse of disciplinary proceedings and Tribunals may apply it themselves.
[33] The latest edition of the text is now entitled J R S Forbes, Justice in Tribunals (2002). The text of the quote has not changed in the new edition although the author provides additional authority supporting the assertion (at 153-4).
Anderson J further relied upon the implied acceptance of a tribunal’s power to stay its proceedings by the High Court in Walton v Gardiner. The quotation which was said to contain this implied acceptance was in the reasons of Mason CJ, Deane and Dawson JJ:[34]
After the Court of Appeal’s decision in Herron v. McGregor, the Tribunal itself stayed the earlier proceedings against Dr. Gardiner. It has not been suggested that Dr Gardiner’s case for a stay of the present proceedings is a weaker one than that of Dr. Herron or Dr. Gill by reason of the fact that the earlier proceedings against him were stayed by the Tribunal, and not by the Court of Appeal.
[34] Walton v Gardiner (1993) 177 CLR 378, 385.
Anderson J stated that these comments supported the conclusion that the Medical Board had an implied power to stay its own proceedings.
Given the distinguishing features of N, JRP, it seems appropriate to follow the comments of the Full Court in James that the Legal Practitioners Tribunal has jurisdiction to entertain an application for the stay of proceedings on the ground that it amounts to an abuse of process. Further, that absent any special features, this Court should not exercise its inherent jurisdiction to stay proceedings of the Legal Practitioners Tribunal, but instead allow the Legal Practitioners Tribunal to exercise its jurisdiction.
Although I heard detailed argument from the parties about the jurisdiction of the Legal Practitioners Tribunal and this Court to grant a stay, in the new formulation of the orders sought by the plaintiff, he no longer specifically sought to stay the proceedings of the Legal Practitioners Tribunal. Instead, the plaintiff sought to invoke the jurisdiction of the Court to issue prerogative writs and to grant an injunction. I turn to those arguments.
Does R6 199 modify or replace the historical supervisory jurisdiction of the Supreme Courts to grant prerogative writs?
As previously set out, this action commenced as an application for judicial review pursuant to 6R 199, after the plaintiff had obtained permission for it to be commenced pursuant to 6R 200. However, by the time the plaintiff finally identified the orders and relief sought, the plaintiff no longer sought to proceed pursuant to 6R 199, but instead sought to invoke the inherent supervisory jurisdiction of the Supreme Court to issue the prerogative writs of prohibition and mandamus.
Although the plaintiff no longer pursued relief pursuant to 6R 199, the terminology used to express the orders sought still confusingly referred to “orders in the nature of mandamus and prohibition” as though they were sought under 6R 199.
The major arguments which originally founded the application pursuant to 6R 199 largely remained the same, namely, that an alleged abuse of process and denial of natural justice would result if the hearing against the plaintiff continued before the Legal Practitioners Tribunal. However, there was one important change, namely that the plaintiff abandoned any challenge to the decision of Mr Morcombe given on 17 October 2008 to set up a new panel to re-hear the complaints against the plaintiff.
The chameleon-like processes adopted by the plaintiff in an endeavour to articulate the cause of action and the relief sought, thus gave rise to the issue of the relationship between the inherent jurisdiction of this Court to issue prerogative writs and the process for obtaining the orders for judicial review provided for in 6R 199 and 6R 200.
It is well-recognised that the Court historically has inherent supervisory jurisdiction previously exercised by the Court of King’s Bench in relation to the issuing of prerogative writs.[35] This has also been expressed in s 17(2)(ii) of the Supreme Court Act 1935.
[35] For example, Hinton Demolitions Pty Ltd v Lower (No. 2) (1971) 1 SASR 512.
Section 29(1) of the Supreme Court Act 1981 (UK) as it read in 1981, also reserved to the High Court the “jurisdiction to make orders of mandamus, prohibition and certiorari in those classes of cases in which it had power to do so immediately before the commencement of this Act”. As indicated in de Smith,[36] the jurisdiction exercised by the Queen’s Bench of today is thereby directly linked to that of the court of King’s Bench, which historically issued the writs.[37]
[36] De Smith, Woolf & Jowell, Judicial Review of Administrative Action, (6th ed, 2007) [15-002].
[37] Although section 29(1) of the Supreme Court Act 1981 (UK) was amended in 2004, the relationship remains. See de Smith, Woolf & Jowell, Judicial Review of Administrative Action, (6th ed, 2007) [3‑016] – [3-018], [15-008].
The historical development of the prerogative writs and judicial review in England is comprehensively reviewed in de Smith.[38] The court rules in England have been amended over time in relation to the process of judicial review. Since 1994 they have been expressed in the Civil Procedure Rules (“CPR”) Pt 54. Part 54.2 expressly states:
The judicial review procedure must be used in a claim for judicial review where the claimant is seeking—
(a) a mandatory order;
(b) a prohibiting order;
(c) a quashing order; or(d)an injunction under section 30 of the Supreme Court Act 1981 (restraining a person from acting in any office in which he is not entitled to act).
[38] De Smith, Woolf & Jowell, Judicial Review of Administrative Action, (6th ed, 2007).
Chapter 15.
A commentary on a precursor to CPR Pt 54.2, namely RSC Order 53 which was to similar effect, is regarded as having provided a single procedure for seeking and obtaining the prerogative writs.[39]
[39] De Smith, Woolf & Jowell, Judicial Review of Administrative Action, (5th ed, 1995) [15-011], [16‑002]; de Smith, Woolf & Jowell, Judicial Review of Administrative Action, (6th ed, 2007) [16-010] concerning the greater flexibility required when interpreting CPR Pt 54, especially in a European law context.
Returning to the situation in this Court, the precursor to 6R 199, namely R 98 of the Supreme Court Rules 1987 was expressed in the following terms:
98.01(1) An order in the nature of mandamus, prohibition, certiorari or quo warranto shall be sought by way of judicial review by summons in accordance with the provisions of this Rule.
Prerogative writs not to be issued but orders to be made in the nature of such writs
(2) The prerogative writs of mandamus, prohibition and certiorari shall no longer be issued by the Court and informations in the nature of quo warranto are hereby abolished, but in any case in which relief could have been granted by means of any of the said writs or of the said information, the Court shall have jurisdiction to make an order in the nature, and to have the effect, of the remedy or of the remedies which would have been available if this Rule were not in force.
This Rule, which is not dissimilar to CPR Pt 54 (UK), expressly stated that the prerogative writs were no longer to be issued and indeed that they were abolished. Instead, orders could be sought by way of judicial review.
The scope of R 98.01 of the 1987 Rules was the subject of consideration by Jacobs J in Clayton v Ralphs:[40]
The scope of judicial review
Rule 98.01 of the new rules incorporates into the Rules of Court for the first time a procedural concept which has already found expression in other jurisdictions. It does not alter the substantive law. It embraces in one order the supervisory jurisdiction over inferior courts and tribunals which was formerly exercisable by means of the prerogative writs, and authorises, to a limited extent, declaratory orders and injunctions in aid of that supervisory jurisdiction: r 98.01(3). It does not supersede or displace the action for a declaration and injunction in the resolution of disputes involving private rights.
[40] (1987) 45 SASR 347, 354.
Jacobs J did not affirm that the jurisdiction to issue writs was abolished but rather expressed the effect of the power in R 98 as embracing the earlier supervisory jurisdiction exercised by the Court in relation to the issuing of writs.
King CJ in S v Metanomski said that:[41]
The rule, however, merely enlarges the remedies which may be granted and does not purport to widen the grounds upon which relief by way of judicial review may be granted. Relief by way of judicial review remains confined to situations in which one or other of the prerogative orders could formerly have been made.
[41] (1993) 65 A Crim R 352, 353.
The Chief Justice was expressing his view on a different point, namely the breadth and scope of the orders which could be made under judicial review, but the grounds for the orders remained those which would otherwise have attracted the issue of a writ.
Unlike R 98, the present 6R 199 does not expressly exclude the issuing of prerogative writs and does not expressly indicate that the Court is empowered instead to make orders in the nature of the writs. Further, there is now a new rule, 6R 6 which, inter alia, states that:
6—Application of rules
…
(3) These rules do not derogate from the Court's inherent jurisdiction.
The relationship between the inherent jurisdiction of a superior court and the Act and rules which apply in relation to such a court, has been the subject of a number of decisions. In Doyle v Commonwealth,[42] the High Court was considering whether the Supreme Court of Victoria was able to exercise its inherent jurisdiction to hear a motion for committal ex parte for breach of an injunction when there was a rule of the Court which permitted the Court to hear such a motion upon certain defined conditions being satisfied. The High Court held that the rule governed the power of the Court to proceed to hear a motion for committal ex parte and that the inherent power of the Court could not be used to escape from the necessity of ensuring that the conditions in the rule had been fulfilled.[43] The Court could not rely on its inherent jurisdiction to circumvent the statutory condition contained in a rule which required the Court to be satisfied of conditions before it was empowered to hear such a motion ex parte.[44]
[42] (1985) 156 CLR 510.
[43] Doyle v Commonwealth (1985) 156 CLR 510, 517.
[44] Further discussed and applied in Landsel Pty Ltd (In Liq) v REI Building Society (1993) 41 FCR 421.
In my view, the combined effect of Rules 6R 6 and 199 as well as 6R 200, do not derogate from the Court’s inherent jurisdiction to hear and grant relief in response to circumstances which would otherwise have attracted the issuing of prerogative writs. However, 6R 199 and 6R 200, do provide for the process and manner of the application for relief of a prerogative nature and the prerequisites for the granting of such relief. The requirements of 6R 199 and 6R 200 cannot be circumvented by seeking instead to invoke the inherent jurisdiction. The absence of express wording as contained in R 98 of the Supreme Court Rules 1987, does not alter this interpretation. The outcome is the same by reason of the content of the rule.
Consequently, in order to invoke the inherent jurisdiction of this Court to seek prerogative relief, the plaintiff is required to comply with the procedures set out in 6R 199 and 6R 200 and, further, the Court is required to be satisfied as to matters set out in those rules before granting the relief sought.
The more explicit wording of 6R 199, which describes the circumstances in which orders in the nature of prerogative relief may be obtained, may potentially lead to nice questions in the event that the inherent jurisdiction may embrace broader circumstances of application than the express wording of 6R 199. This is not an issue on the circumstances of this case.
Further, the procedure in 6R 199 and 6R 200 is quite precise and cannot be ignored merely for convenience, such as seeking to obtain different relief by way of orders for judicial review, when such relief has not been the subject of permission being granted under 6R 200.[45]
[45] Vardon v Promotion and Grievance Appeals Tribunal [2007] SASC 63 [29-31].
Procedural confusion aside, in my view the relief sought by the plaintiff fails for more fundamental reasons, as discussed hereafter.
Prohibition
A writ of prohibition was traditionally issued as a remedy whereby an inferior court, tribunal, or body exercising judicial power, was prevented from commencing or continuing to hear a matter in which it had no jurisdiction or had lost jurisdiction, or was otherwise persisting in such other fundamental error.[46] The wording of 6R 199(2)(a) differs little for the purposes of this matter, from the pre-requisites for the jurisdiction to be exercised to issue a prerogative writ. The rule explicitly refers to prevention of a tribunal from acting in contravention of natural justice which would also be included in the circumstances that would attract the issuing of a writ.
[46] JRS Forbes, “Justice in Tribunals” The Federation Press, 202 [16.33]; R v Wright; Ex parte Waterside Workers’ Federation of Australia (1955) 93 CLR 528, 541-542.
There is nothing on the face of the information placed before me which suggests that the Legal Practitioners Tribunal has already acted beyond its jurisdiction or that there is presently a want of jurisdiction. The challenge made to the order of Mr Morcombe has been abandoned. There is therefore no challenge to the validity of a new panel and no challenge to the power of the new panel to re-hear the current complaint following the aborted earlier hearing.
Instead, it is contended by the plaintiff that if the new panel of the Legal Practitioners Tribunal proceeds to hear the complaint against the plaintiff, then this would amount to a breach of natural justice and an abuse of process.
Where want of jurisdiction is not apparent, it is normally the circumstance that an application for an order by way of prohibition must wait until the Legal Practitioners Tribunal has actually stepped outside its jurisdiction or is about to step outside its jurisdiction, such as where it has announced an intention to entertain matters into which it has no power to enquire.[47] Whilst there can be occasions when an anticipatory order can be made in advance before a tribunal actually acts beyond its jurisdiction, this is usually limited to a situation in which the circumstances reveal that the tribunal is in some way likely to act either outside or contrary to its jurisdiction.[48]
[47] See discussion generally in de Smith, Woolf & Jowell, Judicial Review of Administrative Action, (6th ed, 2007) [18-028] and the cases referred to therein.
[48] For example The King v Galvin; Ex parte Metal Trades Employers’ Association & Ors [1949] 77 CLR 432 at 445.
For reasons set out earlier herein, the Legal Practitioners Tribunal has jurisdiction to hear an application made by the plaintiff to have his complaint dismissed or stayed. No such application has been made. If such an application was made, then the plaintiff could seek to put before the Legal Practitioners Tribunal the matters that he now seeks to put to this Court. This could also be done less expensively than a hearing in this Court.
In the absence of the Legal Practitioners Tribunal having the opportunity to hear such an application, I am not satisfied that the foundation for prohibition has been made out. The application to this Court is premature and hypothetical.
Mandamus
In relation to mandamus, not only is there inherent jurisdiction of this Court to issue a writ for mandamus, but also s 29 of the Supreme Court Act preserved the right for an interlocutory order for statutory mandamus. The relief pursuant to s 29 can be sought in lieu of a prerogative order for mandamus.[49]
[49] See Dickison v Perrignon [1973] 1 NSWLR 72.
Whether mandamus is sought pursuant to s 29 or pursuant to 6R 199, there are normally two conditions precedent to the issuing of a writ or granting of mandamus. First, a demand is made of a person or body which has a duty to act; and second, there is a refusal to respond to the demand. It is the refusal which is sought to be the subject of the order of mandamus.[50] There are exceptions to this requirement, such as where there has been inappropriate delay which has been regarded as tantamount to refusal.[51]
[50] See GH Michell & Sons v Minister of Works (1974) 8 SASR 7, 19; further see discussion at de Smith, Woolf & Jowell, Judicial Review of Administrative Action, (5th ed, 1995) [16-012] and the cases referred to therein.
[51] See R v Tower Hamlets L.B.C;, ex parte Kayne–Levenson [1975] QB 431 and discussion in de Smith, Woolf & Jowell, Judicial Review of Administrative Action (6th ed, 2007) [18-025].
In the circumstances of this case, there has been no demand made by the plaintiff to the Legal Practitioners Tribunal either to stay or dismiss the proceedings for abuse of process. It would be both premature and inappropriate to compel the Legal Practitioners Tribunal either to dismiss the complaint or to stay the proceedings in the absence of a specific demand having been made.
Further, I note that even if mandamus was to be ordered against a Legal Practitioners Tribunal, 6R 201(2) provides that the Court “may remit the matter back to the …tribunal to be dealt with in accordance with the Court’s directions”. As a general principle, the Court on hearing a judicial review claim, does not substitute its decision for that of the Legal Practitioners Tribunal, but would usually leave this to the discretion of the Legal Practitioners Tribunal to hear and determine according to law.[52]
[52] See discussion in de Smith, Woolf & Jowell, Judicial Review of Administrative Action, (6th ed, 2007) [18-029 – 18-033].
In relation to the particular wording of 6R 199, the rule specifically refers to whether or not some other adequate legal remedy is available. In my view, an appropriate legal remedy is available, namely, an application may be made by the plaintiff before the new panel of the Legal Practitioners Tribunal either to dismiss or stay the proceedings.
It was further argued by counsel for the Board that the plaintiff had an alternative remedy which was available, being the ability to appeal against the Morcombe Decision, and that the plaintiff had not taken that opportunity. In my view, any appeal against that decision, which was not dealing with the topic of abuse of process or natural justice per se, could not have been the subject of appeal on that basis. I therefore do not consider that the failure to institute an appeal against his decision is fatal to the remedy now being sought. However, the other arguments put forward by the Board appear sound and there are cases which indicate that failure to take a point before a tribunal may be fatal.[53]
[53] R v Cockburn; Ex parte Fomin (1981) 51 FLR 79, 82-3; R v Magistrates Court at Lillydale; Ex parte Ciccone [1973] VR 122, 134.
For these reasons, I am not satisfied that the foundation for an order in the nature of mandamus has been made out in this case.
Injunction
An application for injunction is not governed by 6R 199. The power to order an injunction is set out in 6R 246. I also note that an injunction, if granted, is indistinguishable in its practical effect from the order of prohibition and mandamus.[54] However, injunctions can be awarded on an interim basis, whereas prohibition and mandamus can not.
[54] See discussion de Smith, Woolf & Jowell, Judicial Review of Administrative Action, (6th ed, 2007) [16-002], [17-001].
In this case, the application for injunction is not sought as an interlocutory or interim injunction, but a permanent injunction. An injunction is a form of equitable relief. The reasons which I have earlier expressed in deciding that the other orders sought should be refused, also apply to whether I should grant an injunction. The plaintiff has a remedy available in his own hands,[55] namely to apply to the Legal Practitioners Tribunal for a stay or dismissal. The application is premature and hypothetical. I would therefore refuse to grant an injunction.
[55] See discussion de Smith, Woolf & Jowell, Judicial Review of Administrative Action, (6th ed, 2007) [16-014 – 16-021].
Declaration
In relation to the power of the Court to give a declaration, a number of the inhibitors which can restrain the granting of an order of a prerogative nature or for an injunction, do not apply to the exercise of the jurisdiction of the Court to grant a declaration. The Court not only has inherent jurisdiction to grant a declaration, but is specifically given jurisdiction to make a declaratory order pursuant to s 31 of the Supreme Court Act.
It is well-recognised that the jurisdiction of the Supreme Court to make declarations is, in the words of Gibbs J in Forster v Jododex Australia Pty Ltd,[56] “almost unlimited; I might say only limited by its own discretion”.[57] In that case the High Court said (at 437-8):
It is neither possible nor desirable to fetter the broad discretion given by s. 10 by laying down rules as to the manner of its exercise. It does, however, seem to me that the Scottish rules summarized by Lord Dunedin in Russian Commercial and Industrial Bank v. British Bank for Foreign Trade Ltd., should in general be satisfied before the discretion is exercised in favour of making a declaration:
“The question must be a real and not a theoretical question; the person raising it must have a real interest to raise it; he must be able to secure a proper contradictor…”
[Reference omitted.]
[56] (1972) 127 CLR 421.
[57] Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421, 435.
However, notwithstanding that affirmation of the very broad nature of the circumstances in which a declaration may be sought, there are still matters which courts have regarded as being relevant to the exercise of that discretion.
The primary purpose of a declaration is to determine rights between parties that are not merely of academic interest or hypothetical, or whose resolution would be of no practical utility.
The matters which are regarded as being relevant to the exercise of discretion are fully discussed in de Smith.[58] Those matters include: utility; whether alternative procedures and remedies are available; whether the dispute is based on hypothetical facts; and matters of convenience.
[58] See discussion de Smith, Woolf & Jowell, Judicial Review of Administrative Action, (6th ed, 2007) [3‑024], [18-048 – 18-060].
In this case, the application for a declaration has been set out in the following terms, namely:
A declaration that the taking of any further step in relation to Legal Practitioners Disciplinary Tribunal Matter No. 2 of 2006 (“the proceeding”) or in relation to the charge or the subject matter of the charge would constitute a denial of natural justice and/or an abuse of process.
The terms of the declaration sought are so broadly expressed that they would include the mere calling on of the matter before the Legal Practitioners Tribunal in order to consider any application to adjourn, defer, dismiss or stay proceedings. Further, the declaration sought appears to assume implicitly a hypothetical conclusion, namely that if an application was made to the Legal Practitioners Tribunal to dismiss or stay proceedings, such application is likely to be denied. Also, the formulation of the declaratory order sought is not simply in regard to the current proceedings in the Legal Practitioners Tribunal, but is more broadly expressed to include “the charge or the subject matter of the charge”. In theory this would include a circumstance in which the Legal Practitioners Tribunal may entertain an application to vary the charge, to reduce the nature of the charge or to reformulate the charge. Bearing in mind that there is no suggestion of these matters occurring, such a formulation of the declaration is hypothetical in the extreme.
In essence, the foundation for the declaration is hypothetical and it may not arise. As the Legal Practitioners Tribunal has not had any occasion to consider the application for a stay or dismissal, it is inappropriate in the exercise of discretion to grant a declaration either in the interests of justice or as a matter of convenience. It is far more convenient for the application to be taken before the Legal Practitioners Tribunal with less costs involved on all sides. Furthermore, any order made by the Legal Practitioners Tribunal may then be the subject of judicial review by either of the parties in the case of a stay, or in the case of a dismissal, an appeal would lie.[59]
[59] In accordance with the approach indicated in James v Medical Board of South Australia (2006) 95 SASR 445, 447[2] and 458[64].
A further factor relevant to the exercise of discretion in granting a declaration is the question of delay and the conduct of the plaintiff himself. Counsel for the Board drew my attention to transcript evidence from 15 May 2007, which showed the Legal Practitioners Tribunal raised the issue of whether or not a stay of proceedings would be sought. The same transcript shows that in response to the raising of the issue of a stay, counsel for the plaintiff specifically indicated that no such application was being made.[60] In my view, this conduct of the plaintiff reinforces that it is not appropriate to exercise my discretion in favour of granting a declaration in the manner sought by the plaintiff.
[60] MTP 9, at 10.24 and 14.12.
Exercise of discretion
At all times, it is recognised that prerogative relief is discretionary.[61] I have already set out above the reasons which have influenced me in concluding that the foundation for the granting of relief by way of prohibition or mandamus have not been made out. I again emphasise the fact that the plaintiff did not pursue an available alternative remedy, namely a stay in the Legal Practitioners Tribunal proceedings, before seeking prerogative relief in this Court. In choosing this path, the plaintiff triggered a significant barrier to prerogative relief, namely: [62]
[the] cardinal principle that, save in the most exceptional circumstances, [the judicial review jurisdiction] will not be exercised where other remedies available have not been used.
[61] R v Cook; Ex parte Twigg (1980) 147 CLR 15; R v Brisbane City Council; Ex parte Read [1986] 2 Qd R 22, 43; Ex parte Hodgens [1990] 1 Qd R 1; R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389, 400.
[62] R v Epping and Harlow General Commissioners, Ex parte Goldstraw [1983] 3 All ER 257, 262.
The kinds of “exceptional circumstances” which would warrant an exception to this principle were considered by Malcolm CJ (with whom Pidgeon and Nicholson JJ agreed) in Gudgeon v Black (1994) 14 WAR 158, in relation to an unpursued right of appeal. Referring to a speech of Sir John Donaldson MR in R v Chief Constable of Merseyside Police; Ex Parte Cavelely,[63] Malcolm CJ stated that where the appellant had been the victim of an abuse of power or of unlawful, as opposed to unjustified, conduct by a decision-maker, the Court would be justified in making judicial review available, notwithstanding the availability of other remedies.[64] However, Malcolm CJ denied judicial review in that case, since the decision-maker in question had always acted in good faith and the appellant had been merely “the victim of a mistaken interpretation of a statutory provision”.[65] In the present case, there is no suggestion that the Board or the Legal Practitioners Tribunal have acted other than in good faith. Neither is there any suggestion that the appellant is the victim of any unlawful conduct in the relevant sense.
[63] [1986] QB 424, 433.
[64] Gudgeon v Black (1994) 14 WAR 158, 188.
[65] Gudgeon v Black (1994) 14 WAR 158, 188.
A further matter of relevance is that Mr Reynolds is named in the application as a defendant. He has been jointly charged with the plaintiff for unprofessional conduct. He clearly has an interest in these proceedings. Although he made no specific submissions in respect of the relief sought by the plaintiff and indicated that he would abide the decision of the Court, he did highlight his particular situation in relation to the proceedings before the Tribunal. This was that he had completed his evidence and, so far as he was concerned, the case against him had been finalised so far as evidence was concerned. His situation now is that he is being kept on hold while these proceedings are decided, when he would otherwise wish for the matter to be expeditiously heard by the new panel and that the evidence adduced already be tendered and regarded as the evidence in the case against him in the Legal Practitioners Tribunal. His professional life is kept on hold while the plaintiff pursues these remedies.
Even if a proper foundation had been made out and there was arguably a prima facie case on the merits, I would have exercised my discretion to refuse to grant the relief sought. The proper body to hear an application for a stay of proceedings on the grounds sought by the plaintiff is the Legal Practitioners Tribunal itself.
Conclusion
For the above reasons I dismiss the application and each of the orders sought by the plaintiff.
6
19
1