QT v Legal Services Commissioner (No 2)

[2006] NSWADTAP 27

Appeal Panel - External

CITATION:	QT v Legal Services Commissioner (No 2) [2006] NSWADTAP 27
PARTIES:	APPELLANT QT RESPONDENT Legal Services Commissioner
FILE NUMBER:	058010
HEARING DATES:	26/04/06
SUBMISSIONS CLOSED:	04/26/2006
DATE OF DECISION:	05/19/2006
BEFORE:	Chesterman M - ADCJ (Deputy President)
CATCHWORDS:	Restraint of legal practitioner from acting in appeal - Role of Respondent in defending an appeal
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 Privacy and Personal Information Protection Act 1998 Residential Tribunal Act 1998
CASES CITED:	Barwick v Law Society of New South Wales [2000] HCA 2 Commonwealth v Human Rights Commission (1997) 76 FCR 513 Corporate Affairs Commission v Bradley [1974] 1 NSWLR 391 Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666 Geographical Indications Committee v The Honourable Justice O’Connor & Ors (2000) 64 ALD 325; [2000] FCA 1877 Green v Law Society of NSW [2002] NSWSC 25 Kallinicos v Hunt [2005] NSWSC 1181 Holloway v Chairperson of the Residential Tribunal (2001) 51 NSWLR 716 LA v Protective Commissioner [2004] NSWADTAP 39 Metropolitan Properties Co (FGC) Ltd v Lannon [1969] 1 QB 577 Murray v Legal Services Commissioner [1999] NSWCA 70 New Broadcasting Ltd v Australian Broadcasting Tribunal (1987) 73 ALR 420 Oshlack v Richmond River Council (1998) 193 CLR 72 Peacock v Human Rights and Equal Opportunity Commission [2005] FCAFC 45 QT v Legal Services Commissioner (LSD) [2006] NSWADTAP 13 R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 TXU Electricity Ltd v Office of the Regulator General & Ors [2001] VSC 4 Vice-Chancellor, Macquarie University v FM (GD) [2003] NSWADTAP 43 Wardell v New South Wales Bar Association [2002] NSWSC 548
REPRESENTATION:	APPELLANT In person RESPONDENT N J Beaumont, barrister
ORDERS:	1. The Appellant’s application for an order limiting the role of the Respondent in defending this appeal is dismissed; 2. The Appellant’s application for an order restraining Ms Lynda Muston from continuing to act as solicitor for the Respondent in these proceedings is dismissed; 3. After the Appellant has filed her evidence, the Respondent is to give consideration to (a) advising the Attorney General of relevant aspects of these proceedings, including these reasons, and (b) seeking his views as regards intervention by him in the proceedings; 4. The appeal is set down for further directions before me at 9.30 a.m. on 23 May 2006.

Introduction

1 This decision deals with two applications made by the Appellant in the course of an appeal instituted by her against a decision made by the Respondent, the Legal Services Commissioner. The Appellant 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. The Appellant is a legal practitioner within the definition in s 3 of the LP Act.

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 The appeal was instituted on 7 June 2005, pursuant to s 155(6) of the LP Act. This subsection provided that if the Legal Services Commissioner, or the Council of the Bar Association or the Law Society, decided to reprimand a legal practitioner under s 155 and the practitioner did not consent to the reprimand, the practitioner could appeal to the Tribunal against the decision. It stated also that s 171N applied to an appeal under the provision.

5 Subsection (2) of s 171N of the LP Act provided that an appeal under s 155(6) was an external appeal within the meaning of the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’). Subsection (4) stated that the Tribunal, in determining the appeal, could affirm or quash the decision to reprimand, and in the latter event, could either remit the matter back to the relevant Council or the Commissioner ‘for the complaint concerned to continue to be dealt with under this Part’, or dismiss the complaint.

6 It is useful here to note relevant aspects of three provisions of the ADT Act. Under subsections (2A) and (2B) of s 67, the parties to proceedings for an external appeal include the appellant, ‘the decision-maker’ (if ‘the decision-maker’ so wishes) and the Attorney General (if the Attorney General intervenes under s 69). Section 69(1) states: ‘The Attorney General may, on behalf of the State, intervene in proceedings before the Tribunal.’

7 The Appellant filed a Further Amended Notice of Appeal on 21 April 2006. It set out thirteen grounds of appeal under the following headings: errors of law – jurisdictional error; failure to take into account relevant considerations; failure to exercise discretion; abuse of power; findings not open on the evidence; policy considerations; bias; conflict of interest; and ‘private reprimand’. Under this last heading, the Appellant claimed that the Respondent had erred in fact and in law by issuing a reprimand to her that was ‘private’. She has indicated that she will seek to tender evidence in support of her appeal. The Respondent, on the other hand, has indicated that, having filed copies of a number of documents under the heading ‘Decision-maker’s list of documents’, he does not presently intend to adduce any further evidence.

8 The present decision deals with two applications made by the Appellant. The first is for an order to the effect that the role of the Respondent in these proceedings should be limited to that of a party assisting the Tribunal, as opposed to a party with full adversarial rights. The second, which the Appellant only wishes to press if her first application proves unsuccessful, is for an order restraining Ms Lynda Muston, who is the solicitor on the record for the Respondent, from continuing to act for him in these proceedings.

9 Since these are interlocutory issues, the making of a decision on each of these applications is an ‘interlocutory function’ within the meaning of s 24A(1) of the ADT Act. It is therefore appropriate for me, sitting alone, to hear and determine both applications, pursuant to an assignment from the President under s 24A(2)(a) of this Act.

The proper role for the Legal Services Commissioner

10 An earlier interlocutory application by the Appellant, relating to the last ground of appeal in the Further Amended Notice, raised the question of the scope of the Respondent’s powers under s 155(3)(a) of the LP Act. In the course of hearing that application on 21 February 2006, I held, in an ex tempore judgment (see QT v Legal Services Commissioner (LSD) [2006] NSWADTAP 13 at [6]), that the Respondent, as the relevant ‘decision-maker’ within the meaning of s 67(2B) of the ADT Act, had duly elected, in accordance with clause 1.2 of the Tribunal’s Practice Note No 11, to be a party to this external appeal. I further held that he was entitled to be heard on the application, because the matter in dispute related to the ‘powers and procedures’ of the Respondent, within the meaning of a statement of principle (quoted below) to be found in the High Court’s judgment in R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 at 35-36.

11 I indicated then that I was not deciding whether the Respondent’s entitlement to be heard in this appeal was or might be limited in any other respect. That is the question to be decided now.

12 The Appellant’s submissions. The starting-point in the Appellant’s argument on this question was the proposition that, in issuing the reprimand to her, the Respondent was a ‘decision-maker’, performing a function akin to that of a court or a tribunal. The determination that he made was indeed of the same kind that the Tribunal itself might have made if (a) he had laid an Information against her pursuant to s 155(2) and s 167 of the LP Act, and (b) the Tribunal, at the conclusion of a hearing, had found her to have been guilty of unsatisfactory professional conduct and had made an order, under s 171C(1)(e), that she should be reprimanded.

13 This characterisation of the Respondent’s functions under s 155(3) was correct, she submitted, even though at an earlier point of time, following the making of the relevant complaint, his role was that of an investigator (see LP Act, ss 147A 155(1)), and if he had determined under s 155(2) that proceedings should be instituted in the Tribunal his role would have been that of a prosecuting authority.

14 The existence of these different functions within the responsibilities of the Respondent is in fact clearly discernible from the terms of subsections (1), (2) and (3) of s 155 of the LP Act. In the form that they took in May 2005, they were as follows: -

155 Decision after investigation of complaint

(1) After a Council or the [Legal Services] 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.

15 The Appellant argued that since the Respondent, in issuing the reprimand to her under s 155(3)(a), took on the functions of a court or tribunal, he was bound by principles stemming from the High Court’s judgment in R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 to adopt a limited role in these appellate proceedings.

16 That case concerned a decision by the Australian Broadcasting Tribunal approving certain share transactions under Commonwealth broadcasting legislation. Prosecutors representing the Australian Labor Party applied for orders of mandamus and prohibition against the Tribunal on the ground that by virtue of various rulings that it had made, the Tribunal had failed to conduct an inquiry of the type required by the legislation. The parties seeking approval for the share transactions resisted the applications. In addition, the Tribunal itself appeared by counsel to defend the rulings that it had made.

17 At the conclusion of the joint judgment of Gibbs, Stephen, Mason, Aickin and Wilson JJ, in which their Honours granted relief by way of mandamus, they observed (at 35-36): -

Mr Hughes was instructed by the Tribunal to take the unusual course of contesting the prosecutors’ case for relief and this he did by presenting a substantive argument. In cases of this kind the usual course is for a tribunal to submit to such order as the court may make. The course which was adopted by the Tribunal in this Court is not one which we should wish to encourage. If a tribunal becomes a protagonist in this Court there is the risk that by so doing it endangers the impartiality which it is expected to maintain in subsequent proceedings which take place if and when relief is granted. The presentation of a case in this Court by a tribunal should be regarded as exceptional and, where it occurs should, in general, be limited to submissions going to the powers and procedures of the Tribunal.

18 The Appellant relied on a number of further cases in which this statement of principle was discussed and, in some instances, applied. It is sufficient here to refer in detail to four of them.

19 The first in point of time is Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666. Here the appellant was refused compensation by the respondent, the Crimes Compensation Tribunal, under Victorian criminal injuries legislation. He appealed to the High Court against an order of the Supreme Court of Victoria upholding this decision. His appeal was allowed with costs and the matter was remitted to the Tribunal for assessment of damages.

20 At the conclusion of his judgment, at 681-682, Brennan J said: -

In this case the Tribunal appeared by counsel as respondent to contest the appellant’s case. Where curial proceedings arise out of a matter which is contested between parties appearing before a tribunal, it is not ordinarily appropriate for the tribunal to appear to contest the curial proceedings brought by one of the parties before it ( R v Australian Broadcasting Tribunal; Ex parte Hardiman ). But where the proceedings before the tribunal are not inter partes, and where the Attorney-General cannot or does not intervene to represent the public interest (cf. Corporate Affairs Commission v Bradley [1974] 1 NSWLR 391) and neither a law officer nor a public official is heard by the court…, it may be desirable that the tribunal should appear by counsel to make such submissions as it thinks calculated to assist the court and, in an appropriate case, to argue against the applicant’s case. That is what was done in this case. Here, the Tribunal’s function was to determine whether and to what extent a claimant was entitled under a statute to a payment out of public moneys. Though the Tribunal was bound to act impartially, it was in a sense the guardian of the moneys appropriated by Parliament to answer the proper claims for compensation under the Act. In proceedings to review its decision, the Tribunal properly represents the public purse, and it was right that the Tribunal should appear by counsel as a party to respond substantially to the application. It follows that the Tribunal should then be treated as an ordinary party in the matter of costs. Therefore I would make an order awarding the applicant his costs against the Tribunal both here and in the Supreme Court.

21 Secondly, in Holloway v Chairperson of the Residential Tribunal (2001) 51 NSWLR 716, residential tenants applied to the Supreme Court for prerogative relief with respect to a decision by the Chairperson of the Residential Tribunal under s 63 of the Residential Tribunal Act 1998 that a claim by them against their landlord, in which they had been successful, should be reheard. They claimed to have been denied natural justice because this decision, given on an application by the landlord, had been reached without notice to them. They appealed to the Court of Appeal against orders by Master Harrison denying prerogative relief. The landlord did not appear at the hearing in the Supreme Court, and he filed a submitting appearance in the Court of Appeal. The Chairperson filed a submitting appearance in both hearings.

22 The Court of Appeal allowed the tenants’ appeal. It set aside the orders made by Master Harrison and by the Chairperson. Giles JA, with whom Beazley JA agreed, expressed the view (at 725) that the Chairperson’s order was properly to be regarded as an order of the Tribunal itself. He said (at 731) that an order of remittal to the Chairperson was unnecessary, though on account of the quashing of her order it would be necessary for her to reconsider the landlord’s application for the tenant’s claim to be reheard.

23 At 726-728, Giles JA discussed the Chairperson’s decision to file a submitting appearance only. After outlining the facts of R v Australian Broadcasting Tribunal; Ex parte Hardiman and quoting the passage set out above, he said, at 728: -

In the present case, if the Chairperson was acting administratively…, the constraint on participation is by no means the same. Even if, as I consider to be the preferable view, the Chairperson’s order is an order of the Tribunal, presentation of substantive argument as to the exercise of the power conferred upon the Chairperson by s 63 of the Residential Tribunal Act would hardly risk endangering the impartiality of the Tribunal in any rehearing of the original applications. It is true that, depending on the result in the proceedings, the Chairperson may have to reconsider [the landlord’s] application, but there is much to be said for the view that the Chairperson would be in no different position from any other decision-maker whose decision is challenged for want of procedural fairness and who might, if the challenge succeeds, be required to readdress the matter.

It is unfortunate, in my opinion, that neither the Master nor this Court had the assistance of argument in support of the Chairperson’s opinion… that there is no obligation to provide a copy of a s 63 application form to other parties in the matter, and of the consequential course adopted in this case… In other circumstances it might have been appropriate to adjourn the hearing of the appeal so that the Chairperson could be invited to present submissions. Regard to the tenant’s means made it inappropriate in this case.

24 Thirdly, in Vice-Chancellor, Macquarie University v FM (GD) [2003] NSWADTAP 43, an Appeal Panel of this Tribunal discussed the proper scope of involvement of the Privacy Commissioner in a Tribunal review of the conduct of a public sector agency under the Privacy and Personal Information Protection Act 1998. Under s 55(7) of that Act, the Commissioner was entitled ‘to appear and be heard in any proceedings before the Tribunal’. The parties to the proceedings were a university and a former student of the university. My attention was specifically drawn by the Appellant in the present case to the following passages in the Appeal Panel’s judgment at [44] and [46]: -

44… The normal rule is that the tribunal or court makes a ‘submitting appearance’ to the appeal body, and takes no active part in the appeal. The basis for the principle is the concern that the affected court or tribunal not be seen to advocate a position before the appeal body and in this sense become a partisan against the appellant, especially in circumstances where there is a possibility that the matter be remitted to that court or tribunal for its further consideration.

46 In this Tribunal it would be unthinkable that the presiding member of the Division under appeal would appear at the appeal hearing to make submissions.

25 The Appeal Panel held, however, that the Privacy Commissioner was not bound by these restrictions.

26 The fourth and final case cited by the Appellant to which I should refer in detail is Peacock v Human Rights and Equal Opportunity Commission [2005] FCAFC 45. Here the appellant’s employment with the Commonwealth Department of Defence was terminated on grounds of age. After earlier proceedings by him alleging age discrimination in the Human Rights and Equal Opportunity Commission (‘HREOC’) and the Federal Court proved unsuccessful, the President of HREOC declined to exercise in his favour a discretion to inquire further into his complaints. Following the dismissal by a Federal Magistrate of an application for judicial review of this decision, he appealed to the Full Federal Court. Neither the Commonwealth nor the Commonwealth Attorney-General appeared in the proceedings before the Federal Magistrate or in the Full Federal Court. There was no evidence as to whether either of them had been invited to do so. Before the Magistrate, HREOC sought to make a submitting appearance. But because there was no contradictor, the Magistrate directed HREOC to provide a response to the appellant’s application. It did so, providing a non-controversial affidavit and written submissions in support of the President’s submission. In the appeal to the Full Federal Court, one of the grounds advanced was that the Magistrate erred in directing HREOC to participate in this way.

27 In the joint judgment of the Court, concern was expressed at the fact that neither the Commonwealth nor the Commonwealth Attorney-General had appeared in the proceedings. This had the consequence that, despite the principles stated by the High Court in Hardiman, HREOC had been put in the invidious position of having to appear and defend its decision, both before the Magistrate and in the Federal Court itself.

28 At [62], the Court held that the Federal Magistrate’s decision was free of legal error and was correct. In consequence, it said, the ground of appeal based on his direction to HREOC to participate did not strictly need to be answered. The Court, however, made some observations on this question. They included the following passage, at [76]: -

HREOC is an arm of the Executive… However, a body like HREOC is not to be equated with a Minister, or other senior government official. It is required by statute to carry out a series of important functions. One of its main roles is the task of inquiring into whether there has been unlawful discrimination. This includes discrimination by government officials. HREOC must be independent of government. It must be, and be seen to be, impartial. When one of its decisions is challenged by way of judicial review, it should ordinarily be the case that either the Commonwealth, or the Attorney-General, has the carriage of the proceeding. That is very much in HREOC’s own interests, but more importantly it is also in the interests of the proper administration of justice. The Court must be assured, wherever possible, that any argument presented in defence of HREOC’s conduct is that of a dispassionate advocate, and not that of a determined adversary.

29 Earlier in the judgment, at [38], the Court pointed out that HREOC ‘fully understood the importance of the Hardiman principle’, as ‘it had once previously been rebuked by this Court for having adopted an adversarial role’. The Court here cited a further case to which the Appellant referred me, Commonwealth v Human Rights Commission (1997) 76 FCR 513 at 526-27, 531 and 537-39. It is not necessary for me to discuss this case, as the principles stated there closely resembled those set out in Peacock.

30 The Appellant also referred me to Appeal Panel decisions in this Tribunal where, in hearing an external appeal from a decision of the Guardianship Tribunal, the Panel has referred to the Hardiman principle. A representative example is LA v Protective Commissioner [2004] NSWADTAP 39, in which the son of a 92 year old woman appealed against a decision of the Guardianship Tribunal appointing the Protective Commissioner as manager of her estate. Her daughter appeared and was separately represented. The Panel observed at [5]: -

The Guardianship Tribunal elected to be a party…. In accordance with the principles in R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 at 35, the Guardianship Tribunal’s role is limited to making submissions in relation to the powers and procedures of the Tribunal.

31 Relying on these authorities, the Appellant advanced an argument along the following lines. Even though there was no evident contradictor to her appeal other than the Respondent, the Respondent should not be permitted to adopt the position of a ‘determined adversary’, seeking to justify his conduct before the Appeal Panel. He should instead maintain the position of a ‘dispassionate advocate’, doing no more than presenting argument on the exercise of the powers conferred on him by the LP Act. This followed from the consideration that, under s 171N(4) of this Act, one of the orders that we might make in disposing of the appeal is to remit the matter back to the Respondent to be further dealt with. In such event, the Respondent, through having become (to quote the language of Hardiman) a ‘protagonist’ before the Appeal Panel, would have risked endangering the impartiality that he would be expected to maintain in the subsequent proceedings. The lack of a full contradictor to the appeal could and should be remedied, as Brennan J envisaged in Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666, by a direction from the Appeal Panel that the Attorney General be invited to exercise the right conferred by s 69 of the ADT Act to intervene in these proceedings, thereby becoming a party to them under s 67(2A). This direction should be given, she maintained, even though the Respondent had indicated to the Panel that he did not intend to tender any further evidence in the appeal.

32 The Respondent’s submissions. Mr Beaumont, counsel for the Respondent, submitted first that the legislation governing this external appeal – specifically, ss 155(6) and 171N of the LP Act and ss 67(2A) to (2C), 67(4), 69, 70, 73(4)(c) and 118A to 118C of the ADT Act – evinced a clear intention by Parliament that the Respondent should assist the Tribunal by presenting a substantive argument.

33 The majority of these provisions are set out or summarised above. Amongst the remainder, it is sufficient to note only ss 70 and 73(4)(c). In differing terms, these require the Tribunal to ensure that every party to proceedings before it has a ‘reasonable’ opportunity (s 70) and indeed ‘the fullest opportunity practicable’ (s 73(4)(c)) to be heard or have their submissions considered by it.

34 Mr Beaumont placed significant reliance on the passages cited above (at [20] and [23] respectively) from Fagan and from Holloway v Chairperson of the Residential Tribunal (2001) 51 NSWLR 716. These authorities produced the clear outcome, he said, that since the present proceedings were not inter partes proceedings the Respondent was both a necessary and an appropriate contradictor. He pointed out that in both of these cases, the matter was remitted to the tribunal concerned. But the High Court, in Fagan, and the Court of Appeal, in Holloway, did not consider this to be a reason for holding that it was improper for the tribunal to present substantive argument in the proceedings for review of its decision. Indeed, in Holloway, at 628, Giles JA expressly stated that ‘presentation of substantive argument’ in the review proceedings ‘would hardly risk endangering the impartiality of the Tribunal in any rehearing’.

35 With further reference to the dicta of Brennan J in Fagan, Mr Beaumont submitted that just as the Crimes Compensation Tribunal in that case was a ‘guardian of the public purse’, the Respondent in the present case was a guardian of the public interest, having statutory responsibilities with regard to disciplinary proceedings against legal practitioners and enjoying independence from government. Mr Beaumont referred here to ss 59B and 59D of the LP Act.

36 In further support of the proposition that the Hardiman restrictions on participation in appellate or review proceedings by the relevant court, tribunal or other decision-maker are only applicable when there is no other contradictor available, Mr Beaumont relied on dicta of the High Court in Oshlack v Richmond River Council (1998) 193 CLR 72 at 77-78, 90 and on two cases relating to proceedings in the Administrative Appeals Tribunal (‘the AAT’).

37 The first of these cases was New Broadcasting Ltd v Australian Broadcasting Tribunal (1987) 73 ALR 420, a decision of the then President of the AAT, Davies J. He held at 430-431 that in the administrative review proceedings that the AAT conducted, it was ‘normal and desirable’ for a representative of the relevant decision-maker (who under s 30(1) of the Administrative Appeals Tribunal Act 1975 (Cth) was made a party to the proceedings) ‘to play an active role in examining and cross-examining witnesses and to put substantive arguments’. He indicated that only ‘seldom’ did the AAT remit a matter for reconsideration by the decision-maker, since ‘in the overwhelming proportion of cases’ the AAT determined for itself what was the ‘correct and preferable decision’ in the matter. He pointed out that if the decision-maker did not, through a representative, fulfil the role ‘of adducing evidence, of questioning evidence and of presenting substantive submissions’, then unless another party was present to undertake that role, the AAT itself would have to do so. In relation to this possibility, he said: -

Such a role does not stand well with the AAT’s function of providing a hearing to parties, including the decision-maker, and of coming to an impartial and informed decision after hearing what the parties before it put forward at the hearing by way of evidence and submissions.

38 The second of these cases was Geographical Indications Committee v The Honourable Justice O’Connor & Ors (2000) 64 ALD 325; [2000] FCA 1877. This involved an application by the Geographical Indications Committee (‘the GIC’) to the Full Federal Court for judicial review of a decision by O’Connor J, the then President of the AAT, directing that the GIC’s role in proceedings for review of a decision by the GIC should be limited to providing assistance when called upon, making opening submissions if it so wished, making closing submissions as to the public interest and providing any further material that might assist the AAT. The GIC, in pursuance of its statutory functions, had made a determination of ‘geographical indications’ in relation to a wine growing in a region of South Australia. Proceedings challenging this determination had been brought by representatives of a number of wine growers and were opposed by other wine growers.

39 In a joint judgment, the Full Court upheld the impugned directions, noting that they left leeway for the GIC’s role to be enlarged if this proved desirable at a later stage of the proceedings. It quoted (at [34]) the above observations of Davies J in New Broadcasting. But it went on to say in the next paragraph, referring to Brennan J’s dicta in Fagan, that ‘the situation would be different where there were other parties before the tribunal who it could be expected would adopt the role of contradictor, and who could be expected to add whatever evidence was necessary… to fully inform the tribunal on relevant matters’. At [43], it held that ‘the nature of the application, and the parties before the tribunal, are likely to lead to relevant evidentiary material being presented to the tribunal’. At [45], it pointed out that the AAT might set aside the GIC’s determination and remit the matter for reconsideration by the GIC. It said at [45] that in this event the GIC’s participation in the AAT proceedings in the manner that the GIC wished to adopt would ‘endanger the impartiality which it is clearly expected to maintain’.

40 In Mr Beaumont’s submission, these two authorities dealing with AAT proceedings, notably the former, were relevant here because, as he put it, the present appeal was akin to an application for administrative review in an administrative tribunal. This was the case, he said, even though the Appeal Panel would in the first instance be considering, pursuant to s 118B(1)(a) of the ADT Act, whether there was an error of law in the decision under appeal. By contrast, he said, the dicta in Hardiman were clearly limited in their application to appellate or review proceedings that were ‘curial’.

41 Mr Beaumont drew to my attention a useful discussion of the issues arising from the Hardiman dicta in Enid Campbell, ‘Role of Respondents to Applications for Judicial Review’ (1998) 6 Australian Journal of Administrative Law 5.

42 In response to the Appellant’s arguments regarding intervention by the Attorney General under s 69 of the ADT Act, Mr Beaumont made two submissions.

43 The first was that since the fact of the matter was that the Attorney General had not intervened, this was sufficient to attract the principle stated by Brennan J in Fagan, namely, that due to the lack of any contradictor, it was ‘desirable’ that the decision-maker itself ‘should appear by counsel to make such submissions as it thinks calculated to assist the court and, in an appropriate case, to argue against the applicant’s case’. The implication conveyed by his Honour was that the mere possibility that the Attorney General might intervene was not relevant.

44 Secondly, Mr Beaumont argued that it has become a ‘time-honoured practice’ for the Respondent (as also for the Bar Council and the Law Society Council) to appear before relevant courts and tribunals and defend his decisions in disciplinary proceedings under the LP Act without attracting any adverse comment. It appears that the Attorney General has never intervened in such proceedings. Two important recent cases where this occurred, both of them involving challenges to the procedures adopted by the authority concerned, are Murray v Legal Services Commissioner [1999] NSWCA 70 and Barwick v Law Society of New South Wales [2000] HCA 2. Similarly, when decisions by the Bar Council or the Law Society Council under s 37 of the LP Act to cancel or suspend a practising certificate have been the subject of an appeal to the Supreme Court under s 38B or an application for judicial review, the relevant Council has been permitted to entered a full appearance and defend its decision, even though it was possible that the matter could be remitted to it by the Court.

45 In reply to the Appellant’s observation that the Respondent had foreshadowed not tendering any further evidence in this appeal, Mr Beaumont advised us that this indication from the Respondent was based on the assumption that the appeal was concerned with errors of law only. He said that the Respondent might wish to tender further evidence if the Appellant at some later stage obtained leave under s 118B(1)(b) of the ADT Act for the appeal to extend to the merits.

46 My conclusions. In addition to the authorities that I have mentioned, I have obtained useful guidance from TXU Electricity Ltd v Office of the Regulator General & Ors [2001] VSC 4, a case in the Supreme Court of Victoria to which the Appeal Panel referred in Vice-Chancellor, Macquarie University v FM.

47 One important point illustrated in the TXU case, amongst others, is that no hard and fast principles of specific application are to be derived from the High Court’s judgment in Hardiman. The dicta in Hardiman, quoted above at [17], indicate what is the ‘usual course’ for a tribunal whose decision is challenged in appellate or review proceedings, not what a tribunal must do in every case, or in every case subject to clearly defined exceptions. The later cases, notably Fagan and Holloway, demonstrate well why the ‘usual course’ of simply entering a submitting appearance is not always the appropriate course.

48 As I said above at [12], the starting-point for the Appellant’s argument was the proposition that in issuing the reprimand to her under s 155(3) of the LP Act, the Respondent was a ‘decision-maker’, performing a function akin to that of a court or a tribunal, and therefore potentially fell within the scope of the principles stated in Hardiman.

49 In accepting this proposition, I reject the counter-argument by Mr Beaumont that these principles are inapplicable because the function of the Appeal Panel in this case is not a ‘curial’ one, but involves subjecting the Respondent’s decision to administrative review. As I read the provisions of ss 155(6) and 171N of the LP Act, pursuant to which these proceedings were instituted, they use the terminology of appeal, not of administrative review. In any event, two cases on which Mr Beaumont relied – the New Broadcasting and Geographical Indications cases – illustrate the potential application of the Hardiman principles to cases where a decision by a decision-maker is being subjected to administrative review – in each of these instances, by the AAT.

50 I accept Mr Beaumont’s submission, however, that because these are not proceedings inter partes, it would be inappropriate for me at this stage to direct that the Respondent’s role in the proceedings should be limited to entering a submitting appearance and providing submissions dealing with its ‘powers and procedures’. To do so would to ignore the emphasis given by Brennan J in Fagan and the Court of Appeal in Holloway to the importance of ensuring that a contradictor exists, who is properly placed to assist the Appeal Panel in assessing the strength of the Appellant’s case.

51 As I see it, this need for a contradictor is particularly important in the present case because in her Further Amended Notice of Appeal the Appellant has not only challenged the correctness of the legal principles applied by the Respondent in issuing the reprimand to her, but has also alleged bad faith and abuse of power on his part. If there were no party assuming the role of contradictor, the Appeal Panel itself, as Davies J pointed out in the New Broadcasting case, would have to take on the task of ‘questioning evidence’ and ‘presenting substantive submissions’ to the extent necessary to test properly the substance and the legal implications of allegations of this level of seriousness. In my view, the Appeal Panel would, or at least might, thereby jettison the appearance of being both independent and impartial in making its determination on the appeal.

52 In Holloway, a broadly comparable situation arose. The decision of the Chairperson of the Residential Tenancy Tribunal to order a rehearing of the tenants’ application was challenged on grounds of denial of procedural fairness. The Court of Appeal held that the Tribunal should have presented ‘substantive argument’ in the review proceedings. It recognised that, ‘depending on the result in the proceedings, the Chairperson may have to reconsider’ the matter, but pointed out that ‘the Chairperson would be in no different position from any other decision-maker whose decision is challenged for want of procedural fairness and who might, if the challenge succeeds, be required to readdress the matter’. The Court of Appeal, in short, gave priority to the need for an effective contradictor in the review proceedings over the concerns arising from the possibility of a remitter to the decision-maker.

53 There remains, however, the question of intervention by the Attorney General. There is force in Mr Beaumont’s submission that without attracting adverse comment the Respondent, the Bar Council and the Law Society Council have regularly appeared and defended their decisions in disciplinary proceedings under the LP Act when these decisions have been challenged in appellate or review proceedings. It appears that the Attorney General has not intervened in any of these cases.

54 The two authorities cited by Mr Beaumont to illustrate this point – Murray v Legal Services Commissioner [1999] NSWCA 70 and Barwick v Law Society of New South Wales [2000] HCA 2 – are distinguishable from the present case because in each of them the challenged decision or decisions related only to the institution or subsequent conduct of proceedings in the Tribunal. By contrast, the present case relates to a decision disposing of the complaint made against the Appellant by (a) recording a finding that she had been guilty of unsatisfactory professional conduct and (b) imposing the penalty of a reprimand.

55 On the other hand, Mr Beaumont’s proposition also embraced decisions by the Bar Council or the Law Society Council cancelling or suspending a practising certificate. Such decisions do, from a practical point of view, dispose of the matter that has been raised against the practitioner. When they have been challenged in the Supreme Court – for example, in Green v Law Society of NSW [2002] NSWSC 25 and in Wardell v New South Wales Bar Association [2002] NSWSC 548 – there has been no evidence to suggest either (a) that the Council concerned was criticised for advancing substantive arguments in opposition to the appeal or (b) that the intervention of the Attorney General was or should have been sought. This does not mean, however, that in every such case the approach adopted by the Council was beyond criticism.

56 As I indicated earlier, the Respondent has filed copies of a number of documents under the heading ‘Decision-maker’s list of documents’, but does not envisage adducing any further evidence. Mr Beaumont said that, on present indications, the Respondent wished to go no further at the hearing of the appeal than to offer legal arguments opposing the various grounds set out in the Amended Notice of Appeal. He added, however, that if the Appellant obtained leave for her appeal to extend to the merits, the Respondent might wish to file further evidence.

57 It is also relevant that the Respondent has instructed independent counsel to represent him to date in these proceedings and has indicated that he will continue to do so until the proceedings are concluded.

58 As the matter presently stands, I consider that the level of participation foreshadowed by the Respondent would not be such as to cast doubt on his impartiality, or on his capacity to appear impartial, in the event that this matter were remitted to him for reconsideration at the conclusion of the appeal. I consider also that, so long as there is no other contradictor, it would be undesirable for him to be restrained by a direction by me that he should not participate in this way. But it is possible that, following the filing of evidence by the Appellant – notably evidence supporting her allegation of bias and/or abuse of process on his part – he will consider it necessary to file evidence in rebuttal and to contest strenuously some factual aspects of her evidence. In these circumstances, the possibility that the Respondent might not be seen to be impartial in the event of a remitter becomes more real.

59 In these circumstances, I favour an approach akin to that adopted by Ashley J in TXU Electricity Ltd v Office of the Regulator General & Ors [2001] VSC 4 at [80 – 81]. At this time, I will not make any order such as the Appellant seeks, limiting the degree of participation of the Respondent in these proceedings. Equally, I will not make any formal direction to the Respondent, nor indeed to the Appellant, that the Attorney General is to be notified of these proceedings and invited to intervene in them. But I wish to allow for the possibility that, after the filing of further evidence, the steps that Respondent will feel bound to take in order to contest the appeal effectively will be such as to cast doubt on his capacity to appear impartial in the event of a remitter.

60 With this mind, I direct that, after the Appellant has filed her evidence, the Respondent should give consideration to (a) advising the Attorney General of relevant aspects of these proceedings, including these reasons, and (b) seeking his views as regards intervention by him under s 69 of the ADT Act, in order to take over from the Respondent the task of presenting a substantive defence to this appeal.

61 If in such circumstances the Attorney General were to intervene, it would be appropriate to give further directions, if necessary, to the effect that the Respondent’s participation in the proceedings should be subject to limitations such as were imposed by O’Connor J in the Geographical Indications case (see [38] above). If the Attorney General decided not to intervene, such directions would not be appropriate. As the Court of Appeal said in Holloway (see [52] above), the need for an effective contradictor in these appeal proceedings would then have to prevail over any concerns arising from the possibility that the matter might be remitted to the Respondent.

62 My formal order on the Appellant’s application for an order limiting the role of the Respondent in defending this appeal is that it must be dismissed.

The continuance of Ms Muston as solicitor for the Respondent

63 As indicated above, the second of the two applications made by the Appellant is for an order restraining Ms Lynda Muston, who is the solicitor on the record for the Respondent, from continuing to act for him in these proceedings.

64 The circumstances on which the Appellant relies in making this application are these. In Ground 12 of her Further Amended Appeal, she has alleged that the Respondent ‘acted in circumstances which constituted a conflict of interest on its part by failing to refer this matter to the Council of the Law Society or to an independent investigator as required by the Legal Profession Act 1987’. The supporting Particulars state as follows: -

Ms Lynda Muston, the Assistant Commissioner and the solicitor on the record for the Legal Services Commissioner has failed to disclose that she has a conflict of interest in the investigation and in these proceedings, in that, she had been retained to ( sic ) the Complainants firm Conway Leather Shaw Lawyers as Counsel prior to her appointment as Assistant Commissioner at the Office of Legal Services Commissioner.

65 The evidence adduced by the Appellant in support of this application comprised an affidavit sworn by her on 21 November 2005. In it, she stated as follows: (a) the Respondent, in issuing the reprimand to her, acted on correspondence received from Mr Leather, of Baringer Leather Lawyers; (b) until 2004, Mr Leather was a partner in the firm Conway Leather Shaw; (c) Ms Muston, while practising as a barrister before her appointment to the Office of the Legal Services Commissioner, was briefed by Conway Leather Shaw on a number of occasions; and (d) the Appellant intended to call both Mr Leather and Ms Muston as witnesses in the present proceedings.

66 Paragraph 7 of the affidavit contained an assertion to the effect that the number of cases in which Ms Muston had been briefed by Conway Leather Shaw was 19. An annexed copy of a search in against the phrase ‘conway leather shaw’ gave the names and citations for these cases. The dates on which they were heard ranged between 1998 and 2001.

67 The evidence on which the Respondent relied in opposing this application was an organisational chart of the Office of the Legal Services Commissioner and some material within the ‘Decision-maker’s list of documents’, to which I have already referred (at [7]). Relevantly for present purposes, this evidence showed (a) that Mr Leather forwarded his complaint against the Appellant to the Respondent on 21 September 2004; (b) that in the Respondent’s handling of this complaint, Ms Muston was neither the investigator nor the decision-maker, though two members of the Respondent’s staff who conducted the investigation reported to her; (c) that neither the Legal Services Commissioner himself nor any of the two investigators had been required to determine issues of credit as between Mr Leather and the Appellant; and (d) that the Respondent did not intend to call Ms Muston as a witness in these proceedings.

68 The Appellant put forward two grounds in written submissions relating to her application. With reference to both of them, she submitted that a power to make an order of the type sought fell within the scope of the powers necessary to enable this Tribunal to act effectively within its jurisdiction. Mr Beaumont did not dispute this proposition.

69 The Appellant argued further that an order restraining a legal practitioner from representing, or continuing to represent, a party should be made in any proceedings in which ‘the integrity of the judicial process’ was at risk. She relied in particular on the following statement of principle by Brereton J in Kallinicos v Hunt [2005] NSWSC 1181 at [76]: -

The test to be applied in this inherent jurisdiction is whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner should be prevented from acting, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice.

70 One of the two grounds put forward by the Appellant was that Ms Muston, in remaining on the record, had ‘a conflict of interest’. The Appellant did not describe in detail the nature of this alleged conflict or the circumstances in which it arose. It appeared, however, that she relied on the alleged conflict of interest specified in Ground 12 of the Further Amended Notice of Appeal, namely, that Ms Muston had been retained by the complainant’s firm, Conway Leather Shaw, as counsel prior to her appointment as Assistant Commissioner at the Office of Legal Services Commissioner.

71 In my judgment, no ‘conflict of interest’ whatsoever arose from this aspect of Ms Muston’s professional activities before she joined the staff of the Respondent. The Appellant’s submissions went little further than to assert that such a conflict existed. They conspicuously failed to take account of (a) the fact that the phrase ‘conflict of interest’ is a shorthand for ‘conflict of interest and duty’; and (b) the need, when endeavouring to show that such a conflict is or was present, to identify a tangible ‘interest’ of the person concerned which is actually or potentially in conflict with the relevant duty imposed on that person.

72 Evidence that Ms Muston, during her practice as a barrister, received a number of briefs to appear from Mr Leather’s firm over a period of about three years is entirely insufficient to show that, some three years after the latest of the hearings in which she was briefed, she had or might have a tangible interest in the manner in which Mr Leather’s complaint was handled by the Respondent. There was no evidence to suggest that any professional or other relationship between Ms Muston and Mr Leather or his firm existed once her retainer in the latest of these briefs had come to an end. No other basis for holding that a relevant interest existed was suggested. Similarly, as Mr Beaumont pointed out, Ms Muston has no ongoing duties or loyalty to Mr Leather or his firm, other than a duty of confidentiality.

73 It is important to note here also that in the present context the relevant duties binding Ms Muston, to which an ‘interest’ is claimed by the Appellant to be in conflict, are those relating only to her position as solicitor for the Respondent in these proceedings. Her duties in that regard do not require her to act impartially with regard to the issues in contest between the complainant, Mr Leather, and the Appellant. This point was overlooked by the Appellant in so far as she relied in her submissions on some authorities relating to judicial bias (for example, Metropolitan Properties Co (FGC) Ltd v Lannon [1969] 1 QB 577).

74 In fact, the Respondent’s evidence and submissions on this application included material designed to show that no actual or potential conflict of interest and duty arose out of Ms Muston’s past retainers by Mr Leather’s firm and her alleged roles more recently as investigator and/or decision-maker in relation to the complaint against the Appellant – one of the asserted reasons being that she played no significant role in the investigation and no role at all as decision-maker. But for the reasons just outlined, this material does not, strictly speaking, bear upon the issues raised in the present application.

75 The other ground advanced by the Appellant proceeded from the proposition that if Ms Muston remained on the record as solicitor for the Respondent, a breach by her of Rule 19 of the Revised Professional Conduct and Practice Rules (‘the Solicitors’ Rules’) would occur since it was the Appellant’s intention to call her as a witness. This Rule relevantly provides that save in exceptional circumstances a legal practitioner ‘must not act, or continue to act, in a case in which it is known, or becomes apparent, that the practitioner will be required to give evidence material to the determination of contested issues before the court’. The Appellant argued that on account of this impending breach of Rule 19 the integrity of the judicial process in this appeal would be threatened if Ms Muston continued to act for the Respondent.

76 In my judgment, however, this line of reasoning cannot be accepted. It is based initially on an assertion that Ms Muston will be, or is likely to be, a material witness in these appeal proceedings. But the Respondent has indicated, both in his reply to this application and through Mr Beamont, that he does not intend to call Ms Muston.

77 The Appellant’s statement in evidence that she herself intends to call Ms Muston cannot, without more, provide grounds for an order restraining Ms Muston from continuing to act. If this were the case, any litigant could obtain an order of this nature against the solicitor for an opposing party simply by asserting an intention to call the solicitor as a witness.

78 The scope of any testimony that Ms Muston could provide is significantly confined by ss 171Q and 171R of the LP Act. The effect of these is that, on account of being a member of the staff of the Respondent (see s 171Q(1)(l)), she is not compellable to give evidence in proceedings (including Tribunal proceedings) in respect of any matter in which she was ‘involved’ in ‘the course of the administration of’ Part 10 of the Act.

79 The Appellant maintained that the evidence that she would wish to elicit from Ms Muston would relate to Ms Muston’s relations with Mr Leather and his firm, rather to her ‘involvement’, as a member of the Respondent’s ‘staff’, in the present matter that has arisen under Part 10. Without deciding the issue, I accept (though I suggested otherwise at the hearing of this application) that some at least of this evidence might be relevant and admissible in these proceedings.

80 My conclusion, however, is that unless and until it becomes a distinct probability (having regard to the impact of ss 171Q and 171R and to the Respondent’s intention not to call Ms Muston) that she will in fact appear as a witness to give evidence in this appeal, it is clearly not appropriate to order that she be restrained from acting as solicitor for the Respondent. The fact that in the absence of such an order a breach of Rule 19 of the Solicitors’ Rules on her part might possibly occur provides insufficient grounds for an order of this nature.

81 In so holding, I take account of a statement by Brereton J in Kallinicos v Hunt [2005] NSWSC 1181 at [76] that the jurisdiction to make such an order ‘is to be regarded as exceptional and is to be exercised with caution’. His Honour also said that ‘due weight should be given to the public interest in a litigant not being deprived of the lawyer of his or her choice without due cause’. In my opinion, a more tangible threat to the integrity of the judicial process must be shown than the possibility that the principle of professional ethics that is encapsulated in Rule 19 might be infringed.

82 It is relevant too that if Ms Muston’s appearance as a witness became a distinct probability, she might of her own accord seek to be discharged of her current responsibilities as solicitor for the Respondent. It is preferable that the issues raised in the present application should be resolved, if necessary, by action of this nature, rather than by the exercise of the Tribunal’s ‘exceptional’ jurisdiction to restrain a legal practitioner from acting.

83 The Appellant argued that the Tribunal itself might compel Ms Muston to attend and give evidence, in fulfilment of its duty under s 75(5)(b) of the ADT Act to ensure that all relevant material is disclosed to it. There is no doubt that s 83(1) of the ADT Act empowers the Tribunal to issue a summons to a witness of its own accord. But the same considerations apply: it is at this stage only a possibility that the Tribunal might act in this way.

84 I should add that I am not convinced that even the probability – as opposed to a mere possibility – that a solicitor retained by a litigant might at some future time become a material witness and thereby commit a breach of Rule 19 is enough, without more, to give grounds for an order restraining the solicitor from continuing to act. But I do not have to rule on this issue of principle.

85 A further submission put to me by Mr Beaumont was that the Appellant, in a letter that she wrote to the Respondent on 29 November 2004, waived any right that she might have had to object to Ms Muston’s continuance as solicitor for the Respondent. Again, I do not have to rule on this matter.

86 My formal order on the Appellant’s application for an order restraining Ms Lynda Muston from continuing to act as solicitor for the Respondent in these proceedings is that it must be dismissed.

87 This appeal is set down for further directions before me at the time and date stipulated in Order 4 above.