QT v Legal Services Commissioner (LSD)

[2006] NSWADTAP 13

Appeal Panel - External

CITATION:	QT v Legal Services Commissioner (LSD) [2006] NSWADTAP 13
PARTIES:	APPELLANT QT RESPONDENT Legal Services Commissioner
FILE NUMBER:	058010
HEARING DATES:	21/02/2006
SUBMISSIONS CLOSED:	02/22/2006
DATE OF DECISION:	04/03/2006
BEFORE:	Chesterman M - ADCJ (Deputy President)
CATCHWORDS:	Legal Practitioner - reprimand - appeal against decision
MATTER FOR DECISION:	Preliminary matter
FILE NUMBER UNDER APPEAL:	Legal Services Commissioner file no. 16121
DATE OF DECISION UNDER APPEAL:	05/06/2005
LEGISLATION CITED:	Administrative Appeals Tribunal Act 1975 (Cth) Administrative Decisions Tribunal Act 1997 Legal Profession Act 2004 Legal Profession Amendment Act 2004 Legal Profession Amendment Act 2005
CASES CITED:	Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338 Council of the New South Wales Bar Association v LI [2005] NSWCA 415 Re Davina and Defence Force Retirement and Death Benefits Authority (1996) 43 ALD 761 Re Dunn & Department of Defence (2004) 84 ALD 419 Mitchell v Noble (1981) 7 NTR 19 R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 R v Industrial Court; Ex parte Hunkin [1934] SASR 208
REPRESENTATION:	APPELLANT In person RESPONDENT N J Beaumont, barrister
ORDERS:	1. The Appellant’s request for referral of a question of law to the Supreme Court is refused; 2. The matter is set down for further directions before me at 9.30 a.m. on 12 April 2006.

Introduction

1 This decision deals with an application made by the Appellant in the course of an external appeal instituted by her against a decision made by the Respondent, the Legal Services Commissioner. The Appellant, who is a legal practitioner, maintains the pseudonym ‘QT’ in these proceedings.

2 Since the Appellant filed her appeal in the Tribunal on 7 June 2005, the matter falls for determination under the now-repealed Legal Profession Act 1987 (‘the LP Act’): see Legal Profession Act 2004, Schedule 9, clause 15.

3 By a letter dated 6 May 2005, the Respondent issued to the Appellant a private reprimand, purportedly under s 155(3)(a) of the Act, in respect of conduct about which a complaint had previously been made against her under Part 10 of that Act. His decision to issue this reprimand is the subject of this appeal. It was based on a finding that, for reasons set out in the letter, the conduct in question would result in a finding of unsatisfactory professional conduct if the matter were to be brought before the Legal Services Division of this Tribunal.

4 At a hearing on 21 February 2006, the Appellant requested that the Appeal Panel should refer to the Supreme Court, pursuant to s 118D(1) of the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’), the question whether, as a matter of law, the Respondent had power under s 155(3)(a) of the LP Act to issue a private reprimand.

5 Since this is an interlocutory issue, the making of a decision on the Appellant’s application is an ‘interlocutory function’ within the meaning of s 24A(1) of the ADT Act. It was therefore appropriate for me, sitting alone, to determine the application, pursuant to an assignment from the President under s 24A(2)(a) of this Act.

6 I should mention here that at an earlier stage of the hearing, I held, in an ex tempore judgment, that (a) the Respondent, as the relevant decision-maker, had duly elected, in accordance with clause 1.2 of the Tribunal’s Practice Note No 11, to be a party to this appeal pursuant to s 67(2B) of the ADT Act; and (b) that the Respondent was entitled to be heard on the present application, because it concerned the scope of the Respondent’s powers as a decision-maker under s 155(3)(a) of the LP Act. In making the latter ruling, I relied on dicta in the joint judgment of the High Court in R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 at 35-36. I did not decide whether the Respondent’s entitlement to be heard in this appeal was or might be limited in any other respect.

Relevant legislation

7 The relevant provisions of s 155 of the LP Act, in the form that it took in May and June 2005, were as follows:-

155 Decision after investigation of complaint

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

(2) The Council or the Commissioner must institute proceedings in the Tribunal with respect to the complaint against the legal practitioner if satisfied that there is a reasonable likelihood that the legal practitioner will be found guilty by the Tribunal of unsatisfactory professional conduct or professional misconduct.

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

(a) reprimand the legal practitioner, or

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

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

8 Section 171N of the LP Act relevantly provided that an appeal under s 155(6) was an external appeal within the meaning of the ADT Act (subsection (2)) and that the Tribunal, in determining the appeal, could affirm or quash the decision to reprimand (subsection (4)). In the latter event, it could either remit the matter back to the relevant Council or the Commissioner, or could dismiss the complaint concerned. In subsection (5), the section further provided as follows:-

If the Tribunal affirms the decision to reprimand the legal practitioner, the Tribunal must forthwith make an order publicly reprimanding the legal practitioner, whether or not the reprimand appealed against has already been administered.

9 Under ss 171N(9) and 171F of the LP Act, an appeal lay to the Supreme Court from any decision or order of the Tribunal made under s 171N(4) on an appeal against a reprimand that had been issued pursuant to s 155(3)(a). The appeal to the Supreme Court was by way of rehearing.

10 References to some further provisions of the LP Act appear later in this judgment.

11 Section 118D(1) of the ADT Act provides in the following terms for the referral of a question of law to the Supreme Court:-

An Appeal Panel determining an external appeal may, of its own motion or at the request of a party, refer a question of law arising in the appeal to the Supreme Court for the opinion of the Court.

12 Under s 118D(2), the Court has jurisdiction to hear and determine any question that has been referred. Section 118 contains similar provisions for referral by an Appeal Panel determining an internal appeal.

General principles governing referral to the Supreme Court

13 At the hearing, neither of the parties cited any cases dealing with the criteria for determining whether a question of law should be referred to a superior court under a provision such as s 118D(1). I granted leave to both parties to file within seven days supplementary submissions drawing my attention to any such cases. The Respondent, though not the Appellant, filed a supplementary submission notifying me of two cases, which are discussed below.

14 The Appellant’s submissions. The Appellant, representing herself, argued that because s 118D(1) of the ADT Act uses the term ‘request’, the test to be applied is less onerous than if a formal application were required. The question of whether to invoke this subsection did not depend, she said, on whether the Appeal Panel could or should itself determine the question of law. Instead, the subsection should be viewed as providing an avenue for obtaining the Supreme Court’s opinion on the question. It should be invoked when an arguable point of law arose, which was not covered by any authority.

15 With reference to the particular circumstances of this case, the Appellant argued that it would be preferable to determine at the outset the scope of the Respondent’s power under s 155(3)(a) of the LP Act rather than to address the merits of her appeal against his decision to issue a private reprimand.

16 The Respondent’s submissions. Mr Beaumont, counsel for the Respondent, argued that in determining whether a question of law should be referred, the following factors were relevant:-

(a) Whether or not the question of law was appropriately formulated.

(b) Whether or not the question was ‘seriously arguable’, as opposed to being no more than ‘possibly arguable’.

(c) Whether the question fell outside or within the ‘ordinary jurisprudential experience’ of the Tribunal.

(d) Whether or not there were conflicting Tribunal decisions on the point of law involved.

(e) Whether referral would resolve the dispute between the parties or simply prolong this dispute.

17 With reference to the present case, Mr Beaumont made no explicit argument regarding the first of these factors. But he argued that when the remaining four factors were given consideration, it became clear that the Appellant’s request for referral should be denied.

18 In this connection, Mr Beaumont contended that the question of law raised was not in fact ‘seriously arguable’. He contended also that it arose within the ordinary work of the Tribunal in administering the LP Act, that there were no conflicting Tribunal decisions relating to it and that referral of it might well prolong the dispute unnecessarily. In relation to this last factor, he pointed out that the Appeal Panel, in hearing this appeal, had jurisdiction to determine the question whether the Respondent had power to issue a private reprimand. In support of this proposition, he cited the decision of the Full Court of the Federal Court in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338 at 346 (per Bowen CJ) and 373 (per Smithers J). He added that if the Appeal Panel decided this question adversely to the Respondent, it could quash his decision and remit the matter back to him, pursuant to s 171N(4)(b) of the LP Act.

19 Pursuant to the leave that I granted, the Respondent, in a supplementary submission, drew my attention to two decisions of the Administrative Appeals Tribunal (‘AAT’). In both of them, the relevant provision was s 45(1) of the Administrative Appeals Tribunal Act 1975 (Cth), which stated as follows:-

The Tribunal may, of its own motion or at the request of a party, refer a question of law arising in a proceeding before the Tribunal to the Federal Court of Australia for decision but:
(a) in the case of a proceeding before the Tribunal constituted by 2 or more members at which a presidential member presides – a question shall not be so referred without the concurrence of that presidential member; or

(b) in the case of a proceeding before the Tribunal at which a presidential member does not preside – a question shall not be so referred without the concurrence of the President.

20 In the first of these cases, Re Davina and Defence Force Retirement and Death Benefits Authority (1996) 43 ALD 761, the AAT held at [11 – 14] that the word ‘may’ in this provision should be interpreted according to its natural meaning. It did not impose an obligation to refer, but conferred a discretion.

21 At [14], the AAT adopted the following guide as to the exercise of this discretion from the judgment of Gallop J in Mitchell v Noble (1981) 7 NTR 19 at 21:-

… in considering whether to accede to the application to refer, the court should consider whether:
(1) the question is of general importance and involves a substantial argument fit for consideration by the Supreme Court…

(2) the answer to this question will determine or ought to determine the issue between the parties… and

(3) the course of stating the case is preferable on the grounds of expense or otherwise to deciding the question of law and disposing of the appeal.

22 At [15], the AAT referred to the judgment of the Full Court of the Supreme Court of South Australia in R v Industrial Court; Ex parte Hunkin [1934] SASR 208. In this case, the President of the Industrial Court refused to state a case to the Supreme Court. The only avenues for review of the Industrial Court’s decision were on a stated case or a writ of certiorari for excess or want of jurisdiction. The Full Court said:-

If the point, upon which it is desired to bring the case before this court, is one of any general importance, and the application is made in good faith, we see nothing in the section which requires the President of the Industrial Court to refuse the application. The matter is left to his discretion, but upon a question of this kind we see no reason why should not respect the honest doubt of the party, who has the misfortune to disagree with him, and we think that that is the established practice in comparable cases.

23 In the Davina case, the request for referral, which covered more than one question, was made at both the commencement and the conclusion of the hearing. At [17], the AAT refused the first request on the ground that the questions had not yet formulated with precision. It referred to a dispute between the parties as to the number of people who might be affected by resolution of the questions raised. The party requesting referral had given an estimate of 70,000.The estimate given by the opposing party was ‘in the order of 50’.

24 At [18 – 20], it refused the second request. Its grounds for so doing were (a) that it could itself proceed to determine the questions in the usual way; (b) in contrast to the situation in Ex parte Hunkin, the parties had the right to appeal on any question of law to the Federal Court; and (c) it was not enough that, with respect to the particular questions involved, the views of the parties were ‘diametrically opposed’.

25 In the second of the two AAT cases cited to me, Re Dunn & Department of Defence (2004) 84 ALD 419, the AAT again rejected a request for referral under s 45(1) of the Administrative Appeals Tribunal Act. It relied on the passages in Re Davina, Mitchell v Noble and Ex parte Hunkin to which I have referred. Its grounds for refusal, set out at [110], were (a) that the question of law involved was essentially one of procedure; (b) that its determination would not resolve the issues between the parties; (c) that referral would most likely lead to further expense and delay; and (d) that the question could be raised on appeal after the AAT had made its decision.

26 My observations on these matters. I have obtained useful guidance from these authorities, and the accompanying submissions of the parties, as to what general criteria I should apply in determining this request for referral. But before discussing what outcome they suggest, I will investigate further one of the clearly relevant factors, on which opposing contentions were put before me. This is whether, to quote from Mitchell v Noble, the question sought to be referred – namely whether the Respondent had power under s 155(3)(a) to issue a private reprimand – ‘involves a substantial argument fit for consideration by the Supreme Court’.

27 A significant proportion of the hearing was devoted, not only to this issue of ‘arguability’, but also to what indeed was the correct answer to the question. I will outline the competing submissions.

The type or types of reprimand available to the Legal Services Commissioner

28 The Appellant’s submissions. The Appellant argued that the word ‘reprimand’, in s 155(3)(a) of the LP Act, covered only public reprimands, and that the Respondent therefore could not issue a private reprimand under this provision.

29 She pointed out that before the LP Act was enacted in 1987, the only complaints against solicitors referred by the Council of the Law Society to the Statutory Committee were those giving grounds for an order of removal from the Roll, or otherwise of a serious nature. Where the conduct complained of was less serious but still warranted disapproval by the Council, it would customarily administer a ‘private admonition’: see Riley, Solicitors Manual, Butterworths, para [34005.5]. But the LP Act clearly had the purpose of moving the task of disciplining legal practitioners from the private into the public domain. As explained by Spigelman CJ in Council of the New South Wales Bar Association v LI [2005] NSWCA 415 at [9 – 14], it achieved this aim by establishing in Part 10 a comprehensive regime, in which the Councils of the Law Society and the Bar Association, the Legal Services Commissioner and the Tribunal had ‘interlocking functions’, and by requiring that complaints should only be dealt with in accordance with this regime.

30 The Appellant placed significant reliance on other aspects of the LI case. For present purposes, the relevant facts were as follows. After the Bar Council had satisfied itself under s 155(2) of the LP Act that there was a reasonable likelihood that the Tribunal would find LI, a barrister, guilty of professional misconduct or unsatisfactory professional conduct, it instituted Tribunal proceedings with respect to the relevant complaint against the barrister. Subsequently, the Bar Council came to an arrangement with the barrister whereby (a) it would withdraw the Information that it had filed in the Tribunal, (b) the President of the Council would administer a reprimand to the barrister and (c) the barrister would apologise to the complainant. The Tribunal refused to dismiss the proceedings, prompting an appeal by the Bar Council to the Court of Appeal.

31 The Court of Appeal dismissed the appeal, holding that the question whether the Information could be withdrawn was a matter involving the exercise by the Tribunal of a discretion conferred by s 73(5)(g) of the ADT Act, and that this discretion had been properly exercised.

32 The Appellant drew my attention to the following passage in the judgment of Spigelman CJ (with whom Mason P and Brownie AJA agreed) at [9]:-

The result of all the [Bar Council’s] submissions is that the [Council] can, in its complete discretion, act completely outside the legislative scheme by issuing what was referred to in the proceedings as a “private reprimand”, on the undertaking of the barrister to issue an apology to the complainant. The reference to “private reprimand” is intended to distinguish the step proposed to be taken in this case, from the “reprimand” for which s 155(3)(a) expressly provides. The action proposed to be taken, in accordance with the agreement between the [Council] and the [barrister], is entirely outside the Act.

33 The Appellant also relied on the following passage in this judgment (at [14]):-

Important objectives of the legislative scheme would be undermined if the “private reprimand”, which the [Council] proposes to impose, was an outcome open to be adopted in dealing with a complaint under the Act. A formal reprimand under s 155(3)(a) differs in its incidents from the proposed “private reprimand” in important respects. Specifically, there would be no right on the part of a complainant to request under s 155(5) that a compensation order be made. Nor is a complainant entitled to apply to the Commissioner for review of a decision to do no more than issue a reprimand, pursuant to s 158(1)(b) of the Act.

34 In the Appellant’s submission, these observations demonstrated that a private reprimand, such as the Respondent had purported to issue in his letter of 6 May 2005, was outside the ‘legislative scheme’ established by the LP Act for dealing with complaints against legal practitioners.

35 The Appellant argued also that amendments to the LP Act effected by the Legal Profession Amendment Act 2004 provided guidance as to the interpretation of s 155(3)(a). Amongst other things, this amending Act, which came into force on 15 August 2004, removed a requirement of consent by the practitioner to a reprimand under this provision. It also required the Commissioner to establish and maintain a publicly accessible register on which specified particulars of any ‘disciplinary action’ against a practitioner were to be entered (LP Act, s 171C). It inserted a definition of ‘disciplinary action’, the definition of which, as set out in s 171LA, included the following:-

(d) any order made by a regulatory authority in respect of a legal practitioner following a finding of professional misconduct or unsatisfactory professional conduct, other than an order under this Part privately reprimanding the practitioner.

36 It should be noted at this point that under s 48N of the LP Act, a ‘regulatory authority’ of this State was defined to mean ‘the Supreme Court, the Bar Council, the Law Society Council, the Tribunal or the Commissioner’.

37 The Appellant relied on these provisions as support for the proposition that since a private reprimand under Part 10 did not constitute ‘disciplinary action’ under s 171LA, it did not ‘trigger the relief provisions’ in s 155, such as the right of appeal in s 155(6).

38 She argued that the reference to private reprimands in s 171LA extended only to orders made by the Tribunal under s171C(1)(e). This provision stated:-

(1) If, after it has completed a hearing relating to a complaint against a legal practitioner, the Tribunal is satisfied that the legal practitioner is guilty of professional misconduct or unsatisfactory professional conduct, the Tribunal may do any one or more of the following:
……

(e) publicly reprimand the legal practitioner or, if there are special circumstances, privately reprimand the legal practitioner,….

39 The Appellant pointed out that under s 155(3)(a) there was no mention of a requirement of ‘special circumstances’ if a reprimand by the Commissioner was to be issued privately. This, she said, was a factor indicating that the Commissioner had no power of private reprimand. She suggested also that the ‘special circumstances’ referred to in s 171C(1)(e) were those set out in s 171LF(3). This provision, inserted by the amending Act of 2004, stated that the register of disciplinary action maintained by the Commissioner under s 171LC should not include information revealing that an ‘infirmity, injury or physical illness’ of a person was the ground for refusal, suspension or cancellation of a practising certificate for that person, or any other information relating to the ‘infirmity, injury or physical illness’.

40 Finally, the Appellant argued that the legislative policy of requiring reprimands to be public, subject only to limited exceptions, was further demonstrated by an amendment to the Legal Profession Act 2004, made before this Act commenced operation on 1 October 2005. As originally enacted, s 562(10) of this Act (which represents the equivalent, roughly speaking, of s 171C of the LP Act) empowered the Tribunal to make an order privately reprimanding a legal practitioner. But this power was removed by the Legal Profession Amendment Act 2005, leaving public reprimands as the only form of reprimand permitted.

41 The Respondent’s submissions. Mr Beaumont argued that the position maintained on this issue by the Appellant was not ‘seriously arguable’, because it was quite clear that the Respondent had power to issue a private reprimand under s 155(3)(a) of the LP Act.

42 Mr Beaumont’s primary submission on this issue was that this power was confined to private reprimands. In the alternative, he said, it included both private and public reprimands.

43 In support of his primary submission, he referred to the provision in s 171N(5) that if in an appeal such as this the Tribunal affirmed a decision under s 155(3)(a) to reprimand a legal practitioner, the Tribunal was required forthwith to issue a public reprimand. This suggested, he said, that the initial reprimand could only be a private one. By appealing against it, the practitioner ran the risk that it would be, in effect, converted to a public reprimand.

44 He argued also that in a penal or quasi-penal provision such as s 155(3)(a), any ambiguity as to the nature of a stipulated sanction should be resolved in favour of the less drastic alternative, which in this case was a private reprimand.

45 In support of his secondary submission, he argued that it would be strange if the Respondent, or indeed the Bar Council or the Law Society Council, did not have power under s 155(3)(a) to issue the same two types of reprimand as were available to the Tribunal under s 171C(1)(e). This interpretation, he said, was not precluded by the existence of a requirement of ‘special circumstances’ applying to private reprimands under the latter, but not the former, provision

46 In response to the Appellant’s arguments based on Council of the New South Wales Bar Association v LI [2005] NSWCA 415, Mr Beaumont pointed out that, in the passages quoted above, the Chief Justice expressly differentiated the ‘private reprimand’ proposed by the parties in that case from any reprimand issued under s 155(3)(a). The important point being made by his Honour was that the proposed measure fell outside the legislative regime established under Part 10 of the LP Act, whereas what he called a ‘formal’ reprimand under s 155(3)(a) was a measure for which this regime expressly provided. Accordingly, to treat his rejection of the ‘private reprimand’ proposed by the parties as extending to reprimands issued under s 155(3)(a) involved a total misunderstanding of his line of reasoning.

The Tribunal’s conclusions

47 The issue of referral. Having considered all the factors that are relevant to my decision on this request for referral of a question of law to the Supreme Court, I am left in no doubt that the request should be denied. The following four considerations, raised in the authorities and submissions outlined above, militate strongly against referral.

48 First, the question to be referred cannot be characterised as one of ‘general importance’. The reason for this, already mentioned in this judgment, is that the provision giving rise to the question has been repealed, along with the rest of the LP Act, and the replacement legislation – i.e., the Legal Profession Act 2004, as amended in 2005 – does not authorise private reprimands. There is no evidence to suggest that a significant number of cases involving this question will arise for determination during the period of transition between the two Acts.

49 Secondly, the question is one that the Tribunal may itself determine in the course of this appeal. It is comparable to many questions of law, involving the interpretation of Part 10 of the LP Act, that the Tribunal has had to resolve over a period of several years in the discharge of its functions under that Act.

50 Thirdly, a decision by the Supreme Court on the question might resolve the issues between the parties, but would not necessarily do so. If it did not, the referral would have subjected the parties to unnecessary expense and delay.

51 Fourth and finally, if the Tribunal makes a decision on the question that is incorrect, it can be corrected through an appeal to the Supreme Court under ss 171N(9) and 171F of the LP Act. In contrast to R v Industrial Court; Ex parte Hunkin [1934] SASR 208, this is not a case where the procedure of referral constitutes the only way to obtain a decision by a superior court.

52 I do not accept Mr Beaumont’s submission that the question of law sought to be referred was not ‘seriously arguable’. But since the other factors that I have described, taken in combination, furnish strong grounds for not referring it, this is far from sufficient to compel a different conclusion. In the ordinary course of its work, the Tribunal is regularly called on to determine questions that are ‘seriously arguable’.

53 The question of law itself. At the conclusion of the hearing, it was suggested by both parties that if my decision on the application for referral was that it should be refused, I should proceed, on the basis of submissions presented at the hearing, to determine the question of law itself. I indicated that I might be prepared to do so.

54 On reflection, however, I consider that to make such a determination might well fall outside the scope of an ‘interlocutory function’ under s 24A of the ADT Act. If this were so, the Tribunal would be incorrectly constituted.

55 The considerations relevant to this issue of constitution include the following. If the question of law were decided in the Appellant’s favour, that would resolve the issues between the parties. It would seem then – though the authorities on the matter are far from straightforward – that the order to be made would have the character of a final order.

56 No submissions were made to me on these potentially difficult issues relating to the distinction between interlocutory and final orders. For these reasons, I will not in this judgment give a ruling on the question whether the Respondent had power under s 155(3)(a) of the LP Act to issue a private reprimand to a legal practitioner.

57 I will, however, set out my provisional opinion on the question, based on the relatively detailed argument that has been presented so far in this case. It appears to me that the following matters suggest that this power to reprimand includes both public and private reprimands.

58 First, there is no obvious reason why the power conferred through the use of the term ‘reprimand’ in s 155(3)(a) should be narrower than that conferred on the Tribunal through the use of the phrases ‘publicly reprimand’ and ‘privately reprimand’, as alternative forms of order, in s 171C(1)(e). In ordinary English parlance, ‘reprimand’ may quite appropriately be used, in these circumstances, as a shorthand term covering both public and private reprimands.

59 Secondly, the Appellant’s case on this issue necessarily involves demonstrating that this term, despite its generality, was intended in s 155(3)(a) to refer to one species of reprimand – the public form – while excluding the other. But the other provisions in the LP Act on which she relied did not convey any such implication. The fact, for instance, that private reprimands were excluded by subparagraph (d) from the definition of ‘disciplinary action’ in s 171LA does not assist her because the role of this definition was simply to designate the categories of disciplinary order that must be put on a publicly accessible register. It was entirely logical that private reprimands would not constitute one of these categories. They were mentioned in the subparagraph for this purpose, not in order to indicate which ‘regulatory authorities’ were or were not authorised to issue them. In similar fashion, her submissions based on the requirement of ‘special circumstances’ in s 171C(1)(e) and its alleged link with the matters mentioned in s 171LF(3) appear to me to misconceive entirely the meaning and operation of the latter provision. I will add here that ‘publicity’ is not an essential ingredient of a decision made under s 155(3) since, as Mr Beaumont pointed out, dismissal of the relevant complaint under subparagraph (b) is not an outcome that must be publicised.

60 I might add that this linguistic consideration also inclines me to prefer Mr Beaumont’s secondary submission to his primary submission. Evidently some inferences may be drawn, as he argued, from the provision in s 171N(5) that if a an appeal such as the present one is unsuccessful the Tribunal is bound to issue a public reprimand, and from the fact that s 155(3)(a) is a ‘quasi-penal’ provision. But these do not seem sufficient, in my opinion, to warrant reading down the general term ‘reprimand’ in s 155(3)(a) in the way contemplated in his primary submission – i.e., to refer to private reprimands only.

61 Thirdly, in so far as the Appellant relied on the apparent concerns of the amending Act of 2004 and the wholly new Legal Profession Act 2004 to enhance further the public nature of the disciplinary regime established by Part 10 of the LP Act, she committed herself to a claim that, solely by implication, the relevant changes reduced the scope of the pre-existing power conferred by s 155(3)(a) by eliminating private reprimands from it. The short answer to this contention is that if the legislature had wanted to make this change to s 155(3)(a), it could and most likely would have done so by simply amending this subparagraph, rather than relying on implications to be drawn from other amendments to Part 10.

62 Fourthly, I agree with Mr Beaumont, for the reasons that he advanced, that the type of ‘private reprimand’ that the Court of Appeal held in Council of the New South Wales Bar Association v LI [2005] NSWCA 415 to be impermissible is quite distinct from any ‘formal’ reprimand made under s 155(3)(a). The language of the Chief Justice in the two paragraphs quoted above make this clear. Nothing else in his judgment bears on the question raised in this case.

63 Finally, it appears illogical to me, having regard to the apparent policy underlying s 155 of the LP Act, that public but not private reprimands would fall within s 155(3)(a). The section as a whole requires that any case potentially involving professional misconduct and/or a more serious instance of unsatisfactory professional conduct should be referred to the Tribunal under subsection (2), while less serious instances of the latter ‘offence’ may be dealt with by the imposition of a reprimand, or by dismissal of the complaint, under subsection (3). It would be strange if under this subsection the more serious species of reprimand – a public one – could be imposed, but not the less serious species, particularly since both species – public and private – are available to the Tribunal under s 171C(1)(e).

64 The orders to be made. For reasons that I have explained, I am not in this decision making a ruling on the Appellant’s argument regarding the scope of the Respondent’s power of reprimand. It is fully open to her to pursue this argument further at the hearing of her appeal by a full Appeal Panel. The opinion that I have outlined is provisional only and my fellow-members will, as far as I know, be considering the question for the first time. A transcript of the submissions put to me on 21 February 2006 is being prepared, in order to shorten the time that would be needed for any further submissions on this question by the parties.

65 My order on the Appellant’s request for referral of a question of law to the Supreme Court is that it must be refused.

66 The matter is set down for further directions before me at 9.30 a.m. on 12 April 2006.