Richardson v Legal Profession Conduct Commissioner - [2017] SASC 30

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
RICHARDSON v LEGAL PROFESSION CONDUCT COMMISSIONER
[2017] SASC 30
Judgment of The Honourable Justice Stanley
15 March 2017
LIMITATION OF ACTIONS - EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS - OTHER CAUSES OF ACTION AND MATTERS
LIMITATION OF ACTIONS - LIMITATION OF PARTICULAR ACTIONS - PENALTIES AND FORFEITURE
PROFESSIONS AND TRADES - LAWYERS - COMPLAINTS AND DISCIPLINE - PROFESSIONAL MISCONDUCT - IMPROPER DEALINGS
Appeal from a decision of the Legal Practitioners Disciplinary Tribunal extending time for the respondent to lay five charges against the appellant on 30 April 2015.
A Supreme Court judgment was obtained against Mr Frost, whom the appellant subsequently commenced acting for in November 1997. In July 1998, a freezing order was made against Mr Frost and at the same time, Mr Frost appealed the Supreme Court judgment. The appeal having been dismissed, Mr Frost applied for special leave to appeal to the High Court, which was refused in August 2000. The appellant was acting for Mr Frost in all of those subsequent proceedings.
In January 1999 and February 2000, the appellant took two mortgages over property of which Mr Frost and his wife were registered proprietors, and in August 2000, Mr Frost granted a bill of sale and an assignment of a chose in action. These purportedly secured Mr Frost’s legal fees which the appellant had not charged. The appellant advised Mr Frost this was not in breach of the freezing order.
The appellant was declared bankrupt in September 2000, and Mr Sheahan was appointed trustee. In June 2005, Mr Sheahan lodged a complaint with the Legal Practitioners Conduct Board as to the appellant’s conduct in relation to the mortgages, and in November 2009, Mr Sheahan sought declarations in the Federal Court that the mortgages were void. Following judgment in favour of Mr Sheahan in June 2011, the appellant and Mr Frost unsuccessfully appealed to the Full Court of the Federal Court, and were refused special leave to appeal to the High Court in December 2012.
In 2007, the appellant requested the Board delay its investigation pending the outcome of related litigation. The appellant notified the Board that the litigation had concluded in January 2013. The Board laid charges against the appellant on 30 April 2015.
The appellant argued that the Tribunal should not have granted the Board an extension of time pursuant to section 82(2a) of the Legal Practitioners Act 1981 (SA) to lay charges against him.
Held: Appeal dismissed. An appeal from the grant or refusal of an application to extend time pursuant to s 82(2a) is to be determined in accordance with the approach of House v King (1936) 55 CLR 499. The Tribunal is allowed considerable latitude in exercising its discretion under s 82(2a), constrained only by the statutory subject matter and object of the Act. In this case, the appellant did not make out any relevant error (at [52]).
Legal Practitioners Act 1981 (SA) s 82; Real Property Act 1886 (SA) s 233; Limitation of Actions Act 1936 (SA), referred to.
Prince Alfred College Inc v ADC (2016) 335 ALR 1; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; House v King (1936) 55 CLR 499; Ulowski v Miller [1968] SASR 277, applied.
Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194; Wentworth v NSW Bar Association (1992) 176 CLR 239; Law Society of South Australia v Murphy (1999) 201 LSJS 456; NSW Bar Association v Evatt (1968) 117 CLR 177; Legal Practitioners Conduct Board v Clisby [2012] SASCFC 43; Barwick v The Law Society of NSW (2000) 169 ALR 236; Jago v District Court (NSW) (1989) 168 CLR 23; Walton v Gardiner (1993) 177 CLR 378; R v Jacobi (2012) 114 SASR 227; R v Polyukhovich (Unreported) SA Supreme Court, Cox J, 22 December 1992, S3782, considered.

RICHARDSON v LEGAL PROFESSION CONDUCT COMMISSIONER
[2017] SASC 30
Miscellaneous appeal
STANLEY J:
Introduction

This is an appeal from a decision of the Legal Practitioners Disciplinary Tribunal extending time to 30 April 2015 for the respondent to lay five charges against the appellant.
Factual background
The charges arise from conduct of the appellant in acting for a client, Allen Gordon Frost (Mr Frost). The appellant commenced acting for Mr Frost in about November 1997. A judgment had been obtained against Mr Frost in an action in the Supreme Court. Mr Frost was represented by other solicitors in that action. Following the judgment, Mr Frost’s professional indemnity insurer declined to indemnify him in respect of the judgment. In July 1998 a freezing order was made against Mr Frost. At the same time he instituted an appeal against the Supreme Court judgment. That was dismissed by the Full Court in July 1999. Mr Frost made an application for special leave to appeal to the High Court. Leave was refused in August 2000. The appellant was acting for Mr Frost in those proceedings subsequent to the judgment at trial.
In January 1999 and February 2000 the appellant took two mortgages over property of which Mr Frost and his wife were the registered proprietors. In August 2000 Mr Frost granted a bill of sale and an assignment of a chose in action purporting to secure legal fees which the appellant had not charged. The appellant advised Mr Frost that the mortgages could be granted without breaching the freezing order made in July 1998. The appellant asserts he did so on the advice of counsel, Mr Cummins, he had retained to act for Mr Frost.
In September 2000 Mr Frost was declared bankrupt. Mr John Sheahan was appointed as his trustee.
In June 2005 Mr Sheahan made a complaint to the Legal Practitioners Conduct Board (the Board) about the appellant’s conduct in relation to the mortgages.
In October 2005 Mrs Frost commenced proceedings in the Family Court for a property settlement. Mr Sheahan was joined as a party to the proceedings. The appellant intervened in the Family Court proceedings and opposed Mrs Frost’s application for orders discharging the two mortgages on the basis, inter alia, that the consideration for each was his legal fees.
In October 2005 the appellant also gave evidence to the Federal Court in Mr Frost’s bankruptcy examination.
In November 2009 Mr Sheahan commenced proceedings in the Federal Court seeking, inter alia, declarations that the two mortgages were void. The appellant gave evidence before Mansfield J. In June 2011 Mansfield J gave judgment in favour of Mr Sheahan. The appellant and Mr Frost unsuccessfully appealed to the Full Court of the Federal Court. Special leave to appeal was refused by the High Court in December 2012.
Following receipt of Mr Sheahan’s complaint, the Board undertook an investigation. It engaged in extensive correspondence with the appellant. In 2007 the appellant demanded that the Board suspend its investigation pending the outcome of the litigation in which the appellant was embroiled in the Family Court relating to the mortgages. It appears the Board acquiesced in this demand. The appellant notified the Board in January 2013 that the litigation had concluded.
On 1 July 2014 amendments to the Legal Practitioners Act 1981 (SA) (the Act) commenced operation. Those amendments, inter alia, created the office of the Legal Profession Conduct Commissioner (the Commissioner). The Commissioner assumed the conduct of all matters that had been before the Board. The amendments also reduced the limitation period for bringing charges of professional misconduct against a practitioner from five years to three years. In February 2015 the Commissioner instructed counsel to finalise charges against the practitioner.
On 30 April 2015 charges were laid in the Legal Practitioners Disciplinary Tribunal.
The charges
Charge one alleges that in 1999 and 2000 the appellant took two mortgages from his client, Mr Frost and his wife, and a bill of sale and an assignment of a chose in action from Mr Frost, purportedly to secure legal fees owing to the appellant in circumstances where there were no such fees owing and, to the knowledge of the appellant, the security were shams and had the true purpose of assisting Mr Frost in evading and delaying his creditors by preventing the property from becoming divisible among them.
Charge two alleges that with that knowledge the appellant caused the mortgages to be registered on the Certificate of Title of the property, which comprised a fraudulent use of the mortgage, or in the alternative, he assisted or was privy to a fraudulent use of the mortgage contrary to s 233(e) of the Real Property Act 1886 (SA).
Charge three alleges that the appellant advised, encouraged, assisted and aided Mr Frost’s breach of the freezing order by providing legal advice to Mr Frost that it was permissible to grant the mortgages to the appellant.
Charge four alleges that the appellant knowingly gave false evidence to the Federal Court in a bankruptcy examination in 2005 and in a trial before Mansfield J in 2010 in relation to the mortgages.
Charge five alleges that between 2005 and 2011 the appellant made false and misleading statements to the Board in relation to the mortgages.
Extension of time
The charges were considerably out of time. Relevantly, s 82(2a) of the Act provides that a charge must be laid by the Commissioner within three years of the conduct unless the Tribunal allows an extension of time. The respondent sought an extension of time. He relied on affidavits of Michael William Ahern sworn on 30 September 2015 and 21 June 2016. The appellant opposed the application for an extension of time. He relied upon his affidavit sworn on 27 October 2015 and a further affidavit of 13 May 2016. In addition he gave sworn evidence before the Tribunal.
The Tribunal granted the extension of time.
Reasons of the Tribunal
The Tribunal identified the length of the delay in laying the charges as ranging from one to thirteen years. The Tribunal referred to the Commissioner’s explanation for the delay. The explanation was multifactorial. First, the conduct the subject of the charges one to three was not brought to the attention of the Board until June 2005 when it received the letter of complaint from Mr Sheahan. Second, between 2005 and 2007 the Board and the appellant engaged in extensive correspondence concerning the Board’s investigation. Third, in 2007 the appellant demanded the Board stay its investigation until the conclusion of legal proceedings concerning the grant of two mortgages. Those proceedings did not conclude until December 2012. The Board was notified of this fact by the appellant in January 2013. Fourth, the delay from January 2013 to April 2015 was explained by the need for the Board to consider voluminous materials and obtain counsel’s advice, and then for the Commissioner to independently consider the matter following his assumption of office. In February 2015, the Commissioner decided charges should be laid, and instructed counsel to draw the charges which were laid on 30 April 2015.
The Tribunal identified matters relevant to the harm to the public interest if the extension of time was not granted, the prejudice to the appellant if the extension of time was granted, and the conduct of the appellant relevant to whether an extension of time should be granted. The matter relevant to the harm to the public interest was the necessity to protect the public from the conduct of the appellant.
The Tribunal referred to the appellant’s submission that there was gross delay in laying the charges which concerned his conduct in giving advice in 1998 regarding the freezing order and about the merits of the subsequent proceedings, which partly relied upon the advice of counsel, which was all rendered problematic by the loss of notes, records and failing memories, together with the death of one witness and the cost and stress of further litigation concerning these matters.
The Tribunal also referred to the Commissioner’s submission that the appellant was aware from 2005 that he was under investigation in relation to these matters. From that time he had provided detailed responses to the Board without any complaint concerning prejudice as a result of missing evidence. The Commissioner submitted that the appellant demanded the Board delay its investigation from 2007 to 2013 and any failure by him to take steps to preserve documentary evidence or obtain witness statements was demonstrative of the absence of real prejudice to him or represented a failure by him to preserve evidence and thereby avoid prejudice.
In exercising the discretion to grant the extension of time in relation to all five charges the Tribunal reasoned as follows:
35.In relation to the first three charges in particular, there is no doubt the delay in laying the charges in the Tribunal is extremely lengthy, even if the delay is taken to start from mid-2005 when the Board became aware of the conduct. However, it is significant that from mid-2007, the practitioner wrote to the Board stating he ‘required’ the Board delay the investigation until the judicial proceedings were finalised. In January 2013, he advised the Board of the finalisation of the proceedings. Given the practitioner’s insistence for postponement and the relevance of the subject matter of the various proceedings to the Board’s investigation, it was not unreasonable for the Board to delay the laying of charges in the Tribunal until those proceedings were resolved.
36.The delay from January 2013 to April 2015 when the charges were laid is in itself considerable even allowing for the voluminous nature of the materials gathered during the investigation. It would be expected the Board would have kept itself apprised of the material as it was provided by the practitioner, minimising the time required for assessment and the decision to lay charges. Had it not been for the significant amendments to the legislation in July 2014 which abolished the Board and established the Office of the Commissioner, further explanation for the delay during that time frame would have been required.
37.The laying of charges in the Tribunal has a protective purpose which is an important consideration. That is so despite the passage of 15 – 16 years from the time of the conduct the subject of the first three charges and the laying of those charges in the Tribunal and the fact the practitioner has continued to practise during that time. The Board had no legislative power in 2005 to take immediate action to protect the public[1] in relation to this complaint (or any other complaint), pending further investigation or the laying of charges in the Tribunal. On the face of the charges, the allegations are serious, involving dishonest conduct in 1999/2000 and subsequently in 2005, 2010 and 2011 in various proceedings and toward the practitioner’s professional Board.
38.Should the application be granted, there is necessarily prejudice to the practitioner simply by virtue of the passage of time. Ordinarily, consideration should be given to a practitioner’s need to be protected from stale complaints[2]. In this case, it is noted that the practitioner urged the Board to delay its investigation at least until the beginning of 2013.
39.I do not consider the prejudice is of the magnitude asserted by the practitioner. Most of the matters raised by him regarding difficulties with witnesses or records are founded in his suggestion that the Tribunal proceedings would require a re-litigation of the merits of the Supreme Court matter leading to the Injunction Order and the subsequent legal proceedings. I do not agree with that suggestion. The five charges do not require such an inquiry by this Tribunal. The charges focus the inquiry on the practitioner’s conduct and state of mind regarding the mortgages, the bill of sale and the assignment of the chose in action as well as his subsequent evidence and statements about those matters.
40.The practitioner has been on notice since 2005 that his conduct in 1999/2000 was to be investigated by the Board. He made no complaint in his lengthy response to the Board in 2005 of difficulties arising from destruction or loss of records and it would be expected he would take steps to preserve necessary records knowing of the Board’s investigation.
[1] Compare the ability of the various Boards to take immediate action in regard to the investigation of notifications concerning health practitioners under the Health Practitioner Regulation National Law (South Australia) Act 2010, s 156.
[2] Barwick v Law Society of New South Wales and Others (2000) 169 ALR 236 at [71] per Gleeson CJ, Gaudron and McHugh JJ.
Submissions of the parties
The appellant’s submissions sought to rely on the approach taken to the analysis of the application of limitation periods by the High Court in Prince Alfred College Inc v ADC.[3]The appellant submits, first, that the Tribunal erred in its finding that the magnitude of the prejudice suffered by the appellant was not as great as he asserted. Second, he submits that the Tribunal erred in finding that he should have taken steps to preserve necessary records knowing of the Board’s investigation. He submits this amounted to a reversal of the onus of proof on the issue of prejudice. The onus was on the respondent to demonstrate that a fair trial could have taken place in respect of relevant events that occurred in 1998, 1999 and 2000. Third, he submits that once the Tribunal accepted that there was a real possibility of prejudice arising from the extraordinary delay in laying the charges an extension should not have been granted. He submits the Tribunal erred in failing to have regard to the loss of records and the absence of witnesses due to the effluxion of time. This should have been fatal to the grant of an extension of time. None of this was the fault of the appellant. Fourth, he submits that the Tribunal failed to consider that by the time Mr Sheahan lodged a complaint with the Board the matters complained of were already out of time. More than 10 years elapsed from that time before charges were laid. Confining the period of delay to the period from when the Board first had notice of the complaint was an error. Mr Sheahan had waited five years from when he became aware of matters relevant to the appellant’s conduct before making a complaint to the Board. This was not the fault of the appellant. Fifth, the appellant submits that the Commissioner had not established a proper basis to enliven the discretion to extend time. There was no assertion that new facts had come to the attention of the Commissioner in the period from January 2013. The Board and Commissioner failed to act promptly given they had ample opportunity to investigate the allegations. Sixth, the appellant submits that the Tribunal also erred in finding that amendments to the legislation, which commenced operation in 2014, provided an explanation for the respondent’s delay. Seventh, he submits that the merits of the Supreme Court litigation are relevant to any trial of the charges in the Tribunal given that the adverse credibility finding made in the Federal Court against the appellant is based, in part, on a view that the Supreme Court litigation lacked merit. Moreover, the appellant cannot obtain a fair trial as the subject matter of charges goes not just to the merits of the Supreme Court litigation but to the very circumstances in which the mortgages were created in 1999 and 2000.
[3] [2016] HCA 37, (2016) 335 ALR 1.

The appellant submits these errors justify setting aside the decision of the Tribunal to extend time. The Board was aware of the material facts upon which charges 1 to 3 are based by June 2005 and the material facts of which charges 4 and 5 are based by the time of the Federal Court judgment in 2011. There is no proper explanation for the delay from January 2013 to April 2015. He submits that evidence has been lost and witnesses are not available. The respondent has not discharged its onus of showing that the appellant can receive a fair trial in 2017 or later, in relation to events that occurred in 1997 to 2000. He submits in these circumstances that the starting point must be that the limitation period should be enforced. In the context of what is now a three-year limitation period, the appellant submits there is no proper justification for an extension of time to April 2015. As far as the Board was concerned and subject to questions of prejudice, a short extension of time to 2005 was justified as the conduct only came to light in 2005 when the limitation period had already expired.
The respondent submits that this is an appeal against a discretionary judgment and the appellant has failed to identify any relevant House v King[4] error. The Commissioner submits that the Tribunal proceeded in accordance with the applicable principles set out in Ulowski v Miller.[5] The Tribunal addressed the evidence relevant to the length of the delay and the reasons for the delay and the public interest in the enforcement of the regulatory regime established by the Act for the protection of the public, the prejudice that the delay has occasioned the appellant and the conduct of the appellant relevant to the delay and any resulting prejudice. The respondent submits that there has been no error identified in relation to the Tribunal’s consideration of the principles based on the facts found. The respondent submits that the Tribunal is correct in finding that the prejudice suffered by the appellant was not of the magnitude asserted, because the matters raised by him are only relevant to re-litigating the Supreme Court action which is unnecessary for the Tribunal’s enquiry into the practitioner’s conduct in relation to the grant of the mortgages and the breach of the freezing order. The respondent submits that the appellant’s case on prejudice proceeds at a high level of generality and fails to address the proposition that the evidence he asserts has been lost is irrelevant to the issues arising on the charges. Questions as to the applicable principles of evidence and whether a fair trial is possible simply do not arise. He contends that the High Court’s judgment in Prince Alfred College Inc v ADC[6] is distinguishable.
[4] (1936) 55 CLR 499.
[5] [1968] SASR 277 at 283.
[6] [2016] HCA 37, (2016) 335 ALR 1.
The respondent submits that the Tribunal recognised the onus of establishing a proper basis for granting an extension of time was on the Commissioner. The Tribunal correctly had regard to the public interest in charges of professional misconduct proceeding. The Tribunal considered the actual prejudice the appellant would suffer from the grant of an extension of time and weighed the evidence of the explanation for the delay in laying the charges. The respondent submits the Tribunal did not hold that the onus he bore in seeking an extension of time was discharged by an assertion that the appellant should have been more astute to conserve his own interests in preserving evidence that might be relevant to charges he should have anticipated. Rather the Tribunal reasoned that there was no prejudice in fact and the explanation for the delay largely lay at the feet of the appellant who had known since 2005 that he was the subject of an investigation that might result in charges being laid.
Finally, the respondent submits there was no error in the Tribunal’s findings as to the explanations for the delay. The Tribunal accepted evidence before it. There is no relevant error in preferring evidence supporting a particular factual finding over evidence against it.
Approach on appeal
The power to extend time is conferred on the Tribunal by section 82(2a) of the Act. It provides:
(2a)A charge relating to conduct by a legal practitioner must be laid before the Tribunal within 3 years of the conduct unless—
(a) the charge is laid by the Attorney‑General; or
(b) the Tribunal allows an extension of time.
The power to extend time is unfettered by any specific statutory requirements or limitations. The only constraint on the exercise of the Tribunal’s power is that it must be exercised judicially and in accordance with the statutory subject matter and object of the legislation.[7]
[7] Coal and Allied Operations Pty Ltd v AIRC [2000] HCA 47 at [19], (2000) 203 CLR 194 at 205.
Any appeal from the grant or refusal of an application to extend time pursuant to s 82(2a) is to be determined in accordance with the approach in House v King and the oft-cited passage in the joint judgment of Dixon, Evatt and McTiernan JJ who said:[8]
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
[8] (1936) 55 CLR 499 at 504-505.
The Tribunal is allowed considerable latitude in the exercise of the discretion conferred by s 82(2a). It is constrained solely by the requirement only to consider relevant matters. What is relevant is determined by the statutory subject matter and object of the Act.
Statutory subject matter and object of the Act
The Act confers disciplinary powers upon the Tribunal. Pursuant to s 82(6), a range of powers are conferred on the Tribunal from reprimand to suspension. In exercising those powers, the Tribunal acts in the public interest as it is primarily concerned with protecting the public, not punishing the practitioner who has done wrong.[9] The Tribunal will exercise those powers to protect the public and to maintain public confidence in the administration of justice in which practitioners play such an integral role. It is of the utmost importance that public confidence in the legal profession be maintained. The Court, the Tribunal and the public demand high standards from practitioners. This is reflected in the legislative processes that regulate the admission of practitioners and govern their conduct.[10]
[9] Wentworth v NSW Bar Association [1992] HCA 24, (1992) 176 CLR 239 at 250-251; Law Society of South Australia v Murphy (1999) 201 LSJS 456 at 460-461; NSW Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177 at 183-184.
[10] Legal Practitioners Conduct Board v Clisby [2012] SASCFC 43 at [4]-[6].
In the Law Society of South Australia v Murphy,[11] Doyle CJ said of the disciplinary process:[12]
In dealing with a charge of unprofessional conduct, the Court acts in the public interest, and not with a view to punishment: New South Wales Bar Association v Evatt; Wentworth v NSW Bar Association. The Court is concerned to protect the public, not to punish a practitioner who has done wrong, although of course the removal of the practitioner’s name from the Roll will operate as a punishment. The Court acts to protect the public and the administration of justice by preventing a person from acting as a legal practitioner, and by demonstrating that the person is, by reason of his or her conduct, not fit to remain a member of a profession that plays an important part in the administration of justice and in which the public is entitled to place great trust.
[Citations omitted.]
[11] (1999) 201 LSJS 456.
[12] (1999) 201 LSJS 456 at 460-461.
It is against this background that the power conferred by s 82(2a) to extend the time limit prescribed by the Act for the bringing of charges against a practitioner are to be considered. In Barwick v The Law Society of NSW,[13] Gleeson CJ, Gaudron and McHugh JJ addressed grants of extension of time in which complaints are made under the equivalent New South Wales legislation in terms which apply equally to the regulatory scheme established by the Act. They said:[14]
The purpose of s 138 is to set a time limit on complaints, while allowing the Commissioner an overriding discretion, to be exercised upon specified grounds, to accept complaints that would otherwise be out of time. That discretion protects the public interest ...
[13] [2000] HCA 2, (2000) 169 ALR 236.
[14] [2000] HCA 2, (2000) 169 ALR 236 at [71].
The plurality recognised that the balancing act involved in the exercise of that discretion required consideration of the practitioner’s need for protection against stale complaints.
Principles applicable to an extension of time
It is the applicant for an extension of time who bears the onus of showing that there exists good reason for exercising the discretion to extend time. The exercise of the discretion to grant an extension of time must take account of the reasons for the limitation regime, and the discretionary nature of the decision to be made must be respected when conducting appellate review of that decision. The purpose of conferring the discretion for extending time is to ensure a fair trial on the merits of the case.[15] In Prince Alfred College Inc v ADC,[16] French CJ, Kiefel, Bell, Keane and Nettle JJ in a joint judgment cited with approval a passage from the judgment of McHugh J in Brisbane South Regional Health Authority v Taylor[17] that the enactment of time limitations has been driven by the general perception that where there is delay the whole quality of justice deteriorates. McHugh J said:[18]
Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo, “what has been forgotten can rarely be shown”. So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now “knowing” that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.
[Citations omitted.]
[15] Prince Alfred College Inc v ADC [2016] HCA 37, (2016) 335 ALR 1 at [99]–[100].
[16] [2016] HCA 37, (2016) 335 ALR 1.
[17] [1996] HCA 25, (1996) 186 CLR 541 at 551.
[18] [1996] HCA 25, (1996) 186 CLR 541 at 551.
Of course, those observations were made in the context of an application for an extension of time within which to institute a civil claim for damages. That is a different legislative context from a statutory scheme for the regulation of legal practitioners. Section 82 does not impose a limitation period that terminates a plaintiff’s right of action at the conclusion of that period. It regulates the time within which the regulatory authority charged with responsibility for supervision of the conduct of legal practitioners can lay charges where it is alleged the practitioner’s conduct has contravened the standards required to be observed by legal practitioners. In Taylor, McHugh J identified four broad rationales for the enactment of limitation periods. First, with the effluxion of time, evidence is likely to be lost. Second, it is oppressive to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them once a limitation period has expired. Fourth, there is a public interest in disputes being settled as quickly as possible.[19] In my view, those broad rationales for the enactment of limitation periods generally apply to the statutory regimes of which the Limitation of Actions Act 1936 (SA) is an example. Different considerations apply where the legislature has enacted a limitation period such as the Court is dealing with in this case.
[19] [1996] HCA 25, (1996) 186 CLR 541 at 552-553.
Unlike an action for damages for personal injury, charges laid pursuant to the Act are not concerned with rights in lis inter partes. This is not a matter between two private parties seeking to vindicate private rights. In laying charges, the respondent is acting to protect the public interest. Accordingly, a somewhat different approach to the exercise of the discretion in considering whether to grant an extension of time for the laying of charges is warranted.
Section 82(2a) prescribes the time within which a charge relating to conduct by a legal practitioner must be laid before the Tribunal. It confers an unfettered power upon the Tribunal to allow an extension of time. The limitation period is to be considered in the context of the subject matter and object of the Act. That is to protect the public interest through the proper regulation of the conduct of legal practitioners. In that context, while the first rationale identified by McHugh J in the context of limitation of actions legislation is relevant to a provision such as s 82(2a), the third rationale has no relevance to s 82(2a) and the second and fourth rationales, while relevant, are of diminished importance to s 82(2a). The Act is not concerned with the vindication of private rights. Rather, it is concerned with the protection of the public interest.
Those considerations have some parallel in the approach taken by the courts to the exercise of the power to stay a criminal prosecution where it is claimed that an accused person cannot obtain a fair trial because of the delay in bringing charges. In those circumstances, the Court must determine what the interest of justice requires. Whether or not to grant a stay is ultimately a balancing exercise. On the one hand, a court must consider the public interest in the administration of criminal justice to guarantee the peace and order of the community, the determination of serious charges and the maintenance of public confidence in the administration of justice. On the other hand, consideration must be given to any injustice or oppression that a continuation of the proceedings might bring, which too could erode public confidence in the judicial system.[20]
[20] Jago v District Court (NSW) [1989] HCA 46, (1989) 168 CLR 23; Walton v Gardiner [1993] HCA 77, (1993) 177 CLR 378 at 395-396; R v Jacobi [2012] SASCFC 115 at [55], (2012) 114 SASR 227 at 238.
Where there is an application to the Tribunal to extend the time within which charges of professional misconduct can be laid, the Tribunal must balance on the one hand the public interest in the proper regulation of legal practitioners, the determination of serious charges of professional misconduct and the maintenance of public confidence in the administration of justice with, on the other hand, consideration of any injustice or oppression that the grant of an extension of time might bring to an individual practitioner which could erode public confidence in the system of statutory regulation of the legal profession.
Against that background, I consider it relevant that, in exercising the discretion conferred by s 82(2a), the Tribunal should have regard to the length of the delay, the explanation for the delay, the harm to the public interest if the extension of time is not granted, the prejudice to the practitioner if it is and the conduct of the practitioner, if any, relevant to the delay in laying the charges. This is the Ulowski v Miller[21] calculus broadly adopted to the work to be performed by s 82(2a) in the statutory regime established by the Act.
[21] [1968] SASR 277 at 283.
Consideration
The appellant’s grounds of appeal fall into three broad categories. First, that the Tribunal erred in failing to recognise that the onus of demonstrating that a fair trial was possible was on the respondent, as opposed to finding that the appellant should have taken steps to preserve evidence. Second, it erred by giving insufficient weight to the prejudice suffered by the appellant in the delay in laying the charges which brought about a loss of documentary evidence and witnesses. Third, it erred in finding that there was an acceptable explanation for the delay in laying charges between 2005 and 2007 and then from January 2013 to April 2015.
In my view, the appellant has not made out these grounds.
The Tribunal approached its exercise of the discretion in accordance with the principles in Ulowski v Miller.[22] At the time of the Tribunal’s decision, the High Court had not delivered judgment in Prince Alfred College Inc v ADC.[23] The Tribunal separately addressed the evidence relevant to the length of the delay and the explanation for the delay on the one hand and the hardship, prejudice and conduct of the practitioner in relation to the delay on the other hand. From that foundation, it turned to the exercise of its discretion.
[22] [1968] SASR 277.
[23] [2016] HCA 37, (2016) 335 ALR 1.
It is convenient to address first the grounds of appeal relating to the third category, namely, the explanation for the delay.
It is undoubtedly desirable for charges to be laid promptly and it is unsatisfactory if they are not. The greater the delay, the greater the risk that relevant documents will be lost or destroyed and memories will deteriorate. However, recognition of those factors plainly does not prevent charges being laid outside the prescribed limitation period. Plainly, Parliament intended that this should occur in certain circumstances.
In my view, the explanation for the delay must be considered in this case in two distinct ways. First, there is the question of the explanation for the delay which focusses attention on the conduct of the Commissioner and the Board in failing to lay charges before 30 April 2015. For this purpose, the period of “delay” only commences to run once a complaint had been made to the Board concerning the appellant’s conduct. This did not occur until 22 June 2005. Second, there is the question of delay which occasions actual prejudice to the appellant in his defence of the charges. For that purpose, the period of “delay” is the period between the conduct the subject of the charges and 30 April 2015. That is a period variously between nearly 17 years and four years.

The grounds of appeal concerning the explanation for the delay focus on the period between 2005 to 2007 and the period from 2013 to 2015.The appellant appears to accept that there is no basis for complaint about the delay in the period 2007 to 2013, given that this delay was as a result of the Board acceding to the appellant’s demand that it should suspend its investigation into his conduct in relation to the mortgages until such time as all litigation concerning the subject matter was concluded. The appellant wrote to the Board in June and August 2007 in this regard. It is not apparent precisely when the Board acquiesced in this demand, but it is apparent that little appears to have occurred in the Board’s investigation between August 2007 and February 2009. It appears likely that in August 2007, or shortly thereafter, the Board determined to await the outcome of litigation before proceeding further with the investigation into the appellant’s conduct in accordance with his requirement.
As at mid-2007, the appellant had made no complaint that his capacity to address the complaint made by Mr Sheahan was hindered by the absence of any relevant evidence. Moreover, in my view, in requiring the Board stay its investigation in mid-2007, the appellant effectively waived any complaint about delay on the part of the Board in laying charges with respect to the period preceding his request for a stay of the investigation in mid-2007. The appellant cannot approbate and reprobate. It is not open for him to secure a stay of the Board’s investigation in 2007 and then complain eight years later about the failure of the Board to lay charges during that time. In any event, I am satisfied there is no error in the Tribunal’s reasoning that it was not unreasonable for the Board to delay the laying of charges prior to the appellant giving the Board notice in January 2013 that all proceedings relating to the mortgages were resolved.
That leaves the explanation for the period of delay from January 2013 to 30 April 2015. The Tribunal found the explanation for this delay was the need for the Board to consider the voluminous materials that had been compiled during the Board’s earlier investigation which had been stayed in 2007, the need to obtain advice from counsel and the need for the Commissioner to independently consider the matter following his assuming office on 1 July 2014.[24] The Tribunal accepted the explanation for this delay as satisfactory. The Tribunal obviously had reservations about the length of the delay but considered that, given the changes to the legislation involving the appointment of the Commissioner with effect from 1 July 2014, and the time required for the Commissioner to apprise himself of this matter and to satisfy himself that it was appropriate that charges be laid, the delay was not unreasonable. Those were all considerations relevant to the exercise of the discretion. It is not a question of whether I would have found the explanation satisfactory. The Tribunal was required to consider the period of the delay. It was required to consider the explanation for that delay. It did so. No House v King error has been demonstrated. That a different decision-maker might have taken a different view is not a sufficient basis for appellate intervention.
[24] Reasons of the Tribunal at [28].
I now turn to consider the first category of the grounds of appeal, namely, the contention that the Tribunal reversed the onus by effectively requiring the appellant to demonstrate that a fair trial was impossible. The submission is founded on the Tribunal’s conclusion that the prejudice suffered by the appellant was not of the magnitude he asserted[25] and its conclusion that, given that the appellant had been on notice since 2005 that his conduct from 1999 was under investigation, it would be expected he would have taken steps to preserve necessary records knowing of the Board’s investigation.[26]
[25] Reasons of the Tribunal at [39].
[26] Reasons of the Tribunal at [40].
In my view, there was no error of the kind asserted by the appellant. The Tribunal did not hold that the respondent discharged the onus of establishing a proper basis for the exercise of the discretion to extend time because of the failure of the appellant to protect his own interests. It is tolerably clear that the Tribunal proceeded on the basis that it was the respondent’s application for an extension of time and the respondent had to prove the facts which would provide a supporting basis for the exercise of the discretion in his favour. The appellant having submitted he would be prejudiced by the grant of an extension of time, the Tribunal addressed that submission. In doing so, it was not reversing the onus. The absence of express reference in the Tribunal’s reasons to who bore the onus does not establish relevant error, and does not and cannot establish that the Tribunal considered that the appellant bore the onus. The reference in the Tribunal’s reasons to the expectation that the appellant would have preserved records since 2005 knowing of the Board’s investigation of his conduct in 1999/2000 is to be understood in two ways. First, as a response to the contention that evidence had been lost, in circumstances where no such complaint was made by the appellant in 2005, and second, as part of its consideration of the relevant manner of the defendant’s conduct[27] referred to in Ulowski v Miller.[28] A consideration of the reasons as a whole satisfy me that the Tribunal proceeded on the basis that it was the respondent who bore the onus of establishing the proper basis for the exercise of the Tribunal’s discretion to extend time for the laying of the charges.
[27] Relevantly in this context the appellant’s conduct.
[28] [1968] SASR 277.
Finally, I turn to consider the second category of the grounds of appeal, namely, that the appellant has suffered irreparable prejudice by reason of the effluxion of time since the events constituting the basis for the charges occurred, such that a fair trial of those charges is now impossible due to missing evidence.
The appellant put evidence before the Tribunal of actual prejudice. This is unsurprising. He was in a better position to identify prejudice. Having done so, the Tribunal was obliged to address the claim of actual prejudice. The Tribunal’s observation that, given the appellant had been on notice since 2005 that his conduct was under investigation and it would be expected he would take steps to preserve relevant records, does not demonstrate any impermissible reasoning on the part of the Tribunal that the appellant should have mitigated his prejudice and, therefore, had brought any prejudice on himself. Rather, the observation evidenced the Tribunal’s consideration of the fifth factor in the Ulowski v Miller calculus, namely, the conduct of the defendant in the litigation.[29] The observation was made in the context of the Tribunal’s rejection of the appellant’s claim of actual prejudice because evidence relevant to the charges had been lost. This was the basis of the Tribunal’s consideration that the prejudice suffered by the appellant was not of the magnitude he asserted. This flowed from the Tribunal’s finding that consideration of the five charges laid by the Commissioner would not require a re‑litigation of the merits of the Supreme Court action in which judgment was entered against Mr Frost in 1997. Accordingly, the Tribunal held that most of the matters the appellant asserted constituted actual prejudice, because of difficulties with witnesses who were no longer living or whose memories had faded, or with records which had been lost or destroyed, were misconceived. Consideration of the charges laid involved an inquiry into the appellant’s conduct and state of mind regarding the mortgages, the bill of sale and the assignment of the chose in action, as well as his subsequent evidence in the Federal Court and statements to the Board relating to these matters.
[29] [1968] SASR 277 at 283.
It is to be remembered that the appellant was not acting for Mr Frost in the Supreme Court action until after judgment had been entered against Mr Frost. He was only acting in relation to the subsequent appeal to the Full Court and the application for special leave to appeal to the High Court.
The overwhelming majority of the appellant’s complaints of actual prejudice are founded in the merits of the Supreme Court action and his desire to re-litigate a variety of matters arising out of that proceeding.
None of this demonstrates relevant error on the part of the Tribunal. The appellant’s complaints of actual prejudice are put at a high level of generality. Many of the assertions of actual prejudice are purely speculative. The charges do not concern the merits of the Supreme Court trial. Rather, the charges are concerned with the appellant’s response to the judgment against his client, by the taking of allegedly sham securities from Mr Frost in an attempt to prevent Mr Frost’s assets from being sold and Mr Frost bankrupted, and the appellant’s subsequent conduct in allegedly misleading the Federal Court and the Board in relation to these events.
The appellant has failed to demonstrate that any of the documentary evidence he asserts is missing, or any of the witnesses whom he asserts are unavailable or no longer remember relevant events, are relevant to these charges.
The appellant asserts there is uncertainty as to whether Mr Brenton Ellery, an expert who gave evidence of valuation at the Supreme Court trial, still has his original files. The appellant wishes to impugn the reasons of the trial Judge, the Full Court and the High Court on the basis that a wrong conclusion had been reached in reliance on the expert evidence of Mr Ellery. These matters are irrelevant to the charges the appellant faces. In any event, speculation as to whether Mr Ellery’s files are still available does not establish actual prejudice.
The appellant says he is unable to locate documents relating to certain cost calculations he is alleged to have performed in preparing the draft costs in the “Frost v The World” document drawn at the time of the taking of the first mortgage. The appellant’s files relating to his professional charges for the Supreme Court appeal and special leave application are irrelevant. The Federal Court subsequently found that the arrangements between the appellant and Mr Frost were such that no liability for legal costs arose, as the agreement in respect of his charges was that the appellant would only be paid when there were funds available to meet his charges. Accordingly, the quantum of his professional charges is irrelevant. In any event, the evidence before the Federal Court was that any liability for legal costs would have been offset against the debt owed by the appellant by way of rent for serviced premises he occupied owned by Mr Frost.
The appellant complains that the quality of older facsimile copies of documents have degraded over time. The only facsimile which the appellant identifies is a facsimile from Mr Cummins to Mr Peter Scragg, with whom the appellant formerly worked, dated 17 July 1998. That document is readable. In any event, it is irrelevant to the charges. No other document has been identified which is relevant to the charges but no longer readable.
The appellant complains that his “daily work book” is unavailable and the floppy discs onto which information contained in the book was backed up, have degraded and were not readable by 2011. The books and the floppy disc back‑ups are irrelevant. The asserted relevance is that they would record the advice of Mr Cummins to the effect that the freezing order against Mr Frost permitted him to grant a mortgage to the appellant. However, whether or not counsel gave that advice is irrelevant. The issue is whether the freezing order permitted the grant of the mortgages. That is an objective question. Counsel’s opinion is not relevant.
The appellant complains that the back-up computer discs are no longer readable. This complaint is vague and generalised. No specific “computer file” is identified. Neither is it shown that the contents of these discs have any specific relevance to the charges identified.
The appellant says that the two original mortgages tendered in the Federal Court have been lost. However, there are copies available and so there can be no question of any prejudice suffered by the appellant as a result.
The appellant complains that McRostie Conveyancers have “most likely” lost their file. They were the conveyancers who assisted the appellant to register the mortgages. Their files are not relevant to the charges. In any event, like the complaint concerning Mr Ellery, speculation as to whether these files have been lost does not establish actual prejudice.
The appellant submits that Mr Cummins’ papers are not available and he no longer has an independent recollection of events. Mr Cummins gave evidence in the Federal Court proceedings. He gave evidence that he had difficulty remembering precisely what advice he proffered to the appellant. Mansfield J, however, accepted Mr Cummins’ evidence that he would not have provided advice suggesting that taking the mortgages was consistent with the restraining order, at least not without researching the point, and that he had not done. In any event, as I have noted earlier, counsel’s advice is irrelevant to the objective question as to whether the injunction permitted the grant of the mortgage. Further, it is apparent that if any actual prejudice has been suffered by the appellant as a result of the loss of Mr Cummins’ papers or the deterioration of his memory of relevant events, that occurred much earlier than January 2013.
The appellant submits it would be necessary to call the Chief Justice as a witness to give evidence about the merits of the appeal to the High Court and the appropriateness of the appellant’s acting. He submits that it is unknown whether the Chief Justice would still have his papers or independent recollection of these events. The appellant also submits it would be necessary to call Judge Dart and Mr Gary Bigmore QC to give evidence that he acted believing that Mr Frost had an arguable case, and also to show that he had at all times complied with the Board’s directions and that the original complaint had no substance. The evidence of the Chief Justice, Judge Dart and Mr Bigmore QC is irrelevant to the charges. At best, they go to the bona fides of the appellant and Mr Frost pursuing the appeal to the Full Court and the application for special leave to the High Court. The issue on the charges, however, is whether the mortgages were taken to secure genuinely owing legal fees. The evidence of the Chief Justice, Judge Dart and Mr Bigmore cannot assist on this question. In any event, merely because counsel has given particular advice to the appellant, either in relation to his conduct in acting for Mr Frost or in the appellant’s dealings with the Board, is not probative of the objective issue of whether the mortgages were taken for an improper purpose, and whether the statements made by the appellant to the Board were objectively misleading. Finally, I merely observe that judicial officers and legal practitioners may be subject to a summons to give evidence pursuant to s 84(1)(a) of the Act. Accordingly, there is no reason they could not be called if their evidence is relevant.
The appellant submits that Nabil Moukachar has died. Mr Moukachar allegedly was a former client of the appellant who informed the appellant that the person who was suspected of lighting a fire in a delicatessen, the subject of the Supreme Court proceedings, had threatened the appellant in an attempt to stop him asking further questions about the fire. Such evidence is irrelevant to the charges and probably inadmissible as hearsay.
The appellant submits that Mr Ron Flavel may be unavailable to give evidence. He is the author of a book on valuation of businesses in South Australia. It is asserted he could give evidence that contradicts the expert evidence of Mr Ellery. There is no actual evidence that Mr Flavel is unavailable to give evidence. In any event, his evidence would be irrelevant. The valuation of the business is irrelevant to the specific charges the appellant is facing. Finally, other expert evidence, if it is relevant, could be obtained.
The appellant submits that Mr Rob Brooke and Mr Peter Scragg are unavailable. It is unclear what relevant evidence either of them could give. It is also not explained why they are unavailable to give evidence.
In the circumstances, the appellant cannot demonstrate that there is any error in the conclusion of the Tribunal rejecting the submission that, by reason of the effluxion of time, he has suffered significant actual prejudice in defending those charges.
In any event, in my view, it is highly relevant that, in the context of the particular exercise of the discretion to extend time in this case, the evidence is strongly suggestive that such prejudice as the appellant asserts had all occurred prior to January 2013. In the exercise of the Tribunal’s discretion in deciding whether to grant an extension of time for the laying of serious charges of misconduct against the appellant, it is a relevant consideration that any prejudice that the appellant might have suffered is likely to have occurred during a period when the Board had stayed its investigation into the subject matter of those charges at the insistence of the appellant.
I do not overlook the fact that these charges concern events that occurred quite some years ago, but neither did the Tribunal. It is the case that where a trial is conducted long after the events which give rise to the charges, there is a risk that the trial will be a “mere simulacrum”[30] of the process of doing justice. That risk becomes greater with the passage of time. Also, it is important to recognise the cogency of the warning proffered by McHugh J in Taylor that, in cases of long delay, prejudice may exist without the parties or anyone else realising that it exists.[31] However, delay, even lengthy delay, does not necessarily make a fair trial impossible. In R v Polyukhovich,[32] Cox J observed that a fair trial is not the same as a perfect trial. The Court in these circumstances is required to undertake a balancing exercise. It is a different balancing exercise from the one required in determining whether to grant an extension of time in a civil action for personal injuries. That is because the bringing of charges against legal practitioners for professional misconduct is conducted for the protection of the public and in the public interest. That must be weighed against any injustice or oppression that the appellant might suffer by the granting of an extension of time, which itself could be productive of an erosion of public confidence in the system of regulating legal practitioners. However, after reviewing the Tribunal’s approach and the evidence upon which it was based, I am not persuaded that the Tribunal acted upon a wrong principle, overlooked any material consideration or took into account any irrelevant considerations.
[30] Prince Alfred College Inc v ADC [2016] HCA 37, (2016) 335 ALR 1 at [105].
[31] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551.
[32] Unreported judgment, SA Supreme Court, Cox J, 22 December 1992, S3782.
The decision to extend the time was not so unreasonable or plainly unjust as to indicate error. It is not an appellable error, in accordance with the principles in House v King, to assert that a decision-maker has placed too little or too much weight on a relevant consideration. It is in the very nature of a discretion that different decision-makers will evaluate considerations relevant to its exercise in different ways.

I do not consider that the appellant’s criticism of the approach taken by the Tribunal, based in his reliance upon the High Court’s recent judgment in Prince Alfred College Inc v ADC,[33] is justified. In Prince Alfred College the High Court applied the principles identified in Brisbane South Regional Health Authority v Taylor.[34] Taylor and Prince Alfred College are authority for two propositions. First, that it is the applicant for an extension of time who must prove the facts which establish that good reason exists to grant an extension of time, and that onus is not discharged by saying that the putative defendant should have been more astute to conserve his own interests by anticipating litigation that did not eventuate until many years after the limitation period. Second, that the loss of evidence which will tend against the prospects of a fair trial would usually be a fatal deficit in an argument that good reason has been shown to exercise the discretion to grant an extension.
[33] [2016] HCA 37, (2016) 335 ALR 1.
[34] (1996) 186 CLR 541.
In this case, for the reasons I have explained, there was no reversal of the onus. Further, it has not been demonstrated that there is any basis to interfere with the conclusion of the Tribunal that there has not been a loss of evidence which will tend against the prospects of a fair trial. In any event, as I have explained, I consider that, given the particular nature of these proceedings, which are not concerned merely with the enforcement of private rights but with the protection of the public interest, there is a balancing exercise to be undertaken in determining whether there is an unacceptable risk that the appellant will not enjoy a fair trial. That requires an assessment of the strength or importance of the public interest considerations relevant to the nature of the proceedings. Those considerations are the public interest in the disposition of charges of serious professional misconduct, and the need to maintain public confidence in the regulation of the legal profession against the legitimate need to protect a practitioner from stale complaints. There is nothing in that balancing exercise which compels a different conclusion from that reached by the Tribunal.
Conclusion
For these reasons, I would dismiss the appeal.