“T” v Council of the Law Society of the Act
[2014] ACAT 42
•8 July 2014
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
“T” v COUNCIL OF THE LAW SOCIETY OF THE ACT
(Occupational Discipline) [2014] ACAT 42
OR 33 of 2013
Catchwords: OCCUPATIONAL DISCIPLINE – LEGAL PRACTITIONER – appeal from decision of the Council of the Law Society dismissing complaint against legal practitioner – complaint against legal practitioner for failing to follow instructions to commence defamation proceedings – expiry of limitation period for commencing proceedings – rules of evidence applied even though ACAT proceedings not disciplinary proceedings – whether legal practitioner should be made a party in appeal to the ACAT – legal practitioner declined opportunity to become a party - procedural fairness met – professional judgment in not pursuing defamation proceedings until divorce proceedings finalised: contrary opinion of complainant does not alone constitute a ground of complaint against legal practitioner – no reasonable likelihood that legal practitioner would be found guilty by the ACAT of unsatisfactory professional conduct or professional misconduct
Legislation:ACT Civil and Administrative Tribunal Act 2008, ss 8 and 26 Legal Profession Act 2006, ss 410, 412, 416, 420 and 425
Cases:Legal Practitioner M and the Council of the Law Society of the ACT [2013] ACAT 42
Hocking v Medical Board of Australia and Griffin [2014] ACTSC 48
Kozanoglu v Pharmacy Board of Australia [2012] VSCA 295
Shi v Migration Agents Registration Authority (2008) HCA 31
Tribunal: Ms M-T. Daniel – Member (Presiding)
Mr R. Watch – Member
Mr M. Sexton OAM - Member
Date of Orders: 8 July 2014
Date of Reasons for Decision: 8 July 2014
Reasons for Decision amended
with the consent of the parties
and republished on: 16 September 2014
ACT CIVIL AND ADMINISTRATIVE TRIBUNAL OR 13/33
BETWEEN:
“T”
Applicant
AND:
COUNCIL OF THE LAW SOCIETY OF THE ACT
Respondent
TRIBUNAL: Ms M-T. Daniel – Member (Presiding)
Mr R. Watch – Member
Mr M. Sexton OAM - Member
DATE:8 July 2014
ORDER
The Tribunal Orders that:
1.The appeal is dismissed.
2.The decision of the Council of the Law Society of the ACT is confirmed.
3.No person shall publish the name or any identifying details of the Applicant, his former wife or daughter in relation to this decision or these proceedings.
4.The Applicant is to be referred to as “T”.
………………………………..
Ms M T Daniel
Member
for and on behalf of the Tribunal
REASONS FOR DECISION
These proceedings are in the nature of an appeal from a decision of the Council of the Law Society of the Australian Capital Territory (“the Society”).
The Applicant has complained to the Society about the conduct of a practitioner (“the Practitioner”). In his complaint to the Society the Applicant alleged that the Practitioner had failed to follow his instructions to commence defamation proceedings against the Applicant’s former wife.
Background to the complaint
The Applicant alleged that his former wife had told a number of people that, because of certain conduct of his towards their daughter, he was a pedophile. The Applicant strenuously denied the allegations and regarded the statements as defamatory.
The Applicant and his former wife separated in March 2009. On his account, this happened shortly after his former wife commenced making these defamatory statements.
The Applicant had been a client of the Principal of a certain firm of lawyers for a number of years and he regarded the Principal as “his lawyer”.
In or around late March 2009, after the separation, the Applicant had a discussion with the Principal to tell him of his legal problems. The Applicant needed legal advice about divorce, a property settlement, his employment and the alleged defamatory statements about him made by his former wife. He also discussed with the Principal the implication of his former wife’s allegations, vis a vis his employment as a Commonwealth public servant.
In the event, the Principal did not handle these matters himself, but referred the Applicant to one of his employed solicitors (the Practitioner).
The Applicant met with the Practitioner in or about July 2009. At that meeting the Applicant discussed matters relating to family law matters, a voluntary redundancy which had been offered to him by his former employer, and the alleged defamation. The Practitioner gave the Applicant no advice about the voluntary redundancy.
The Applicant’s former wife commenced proceedings against the Applicant in the Federal Magistrates Court in November 2009. The former wife raised the allegations against the Applicant in her affidavit filed in those proceedings. From about 8 December 2009, Counsel was briefed in these matters on behalf of the Applicant. Consent orders regarding parenting and property matters were made on 8 September 2010.
The family law proceedings were largely unremarkable and are not the subject of the Applicant’s complaint to the Society. The alleged defamatory statements made by the Applicant’s former wife lead to this appeal.
It is the Applicant’s case that he instructed the Practitioner to commence defamation proceedings against his former wife on several occasions commencing as early as July 2009, and that the Practitioner failed to act on those instructions.
The Practitioner, on the other hand, asserts that he did not receive definitive instructions to commence those proceedings until early May 2011.
The difference in the Applicant’s and the Practitioner’s versions of these events are at the heart of these proceedings.
Preliminary issues
These proceedings also raised a number of procedural and legal issues which fell to be decided at the commencement of the hearing. It is convenient to address those issues at this point, before proceeding to the substance of the application.
The Nature of the Tribunal Proceedings for an ‘appeal’ under section 416 of the Legal Profession Act
Pursuant to section 412 of the Legal Profession Act 2006 (LP Act), the Society dismissed the Applicant’s complaint to it.
This present appeal was instituted by the Applicant pursuant to section 416 of the LP Act.
The LP Act does not make it clear, nor does it give any guidance, as to how an appeal pursuant to section 416 is to be conducted.
This Tribunal has two possible approaches to the conduct of these proceedings. The application may be dealt with either:
(a)as an administrative review, with the Tribunal standing in the shoes of the original decision maker (the Society) and then confirming, or setting aside and substituting whatever decision it thinks fit in the place of the original decision; or
(b)as an appeal, in the strict sense, of the decision of the Society to determine whether that decision was correct.
This issue was canvassed in Legal Practitioner M and the Council of the Law Society of the ACT [2013] ACAT 42 (Legal Practitioner M) by Mr G. Lunney SC, Senior Member.
After referring to various authorities, at paragraph 31 Senior Member Lunney concluded
“…I am to conduct an administrative review of the decision of the Council of the Law Society of the ACT. In doing so, I should consider all the evidence that has been given in the hearing to date and substitute my decision for that of the Council if it is appropriate to do so, on the merits. I shall not act only if it is shown that some error occurred affecting the Council’s decision.”
In a recent decision of Murrell CJ in the Supreme Court of the ACT in Hocking v Medical Board of Australia and Griffin [2014] ACTSC 48 at [121], her Honour referred to the case of Kozanoglu v Pharmacy Board of Australia [2012] VSCA 295 as authority for the proposition that in exercising its jurisdiction the ACAT is to take into account the material that was before the Board when it made its decision and any additional evidence that bears directly upon the position as it was when the original decision was made.
This Tribunal considers that it is appropriate to adopt a similar approach when considering an ‘appeal’ brought under section 416 of the LP Act.
The nature of a tribunal’s merits review jurisdiction was discussed by Kirby J in the majority in Shi v Migration Agents Registration Authority (2008) HCA 31 (SHI). His Honour cited the proposal of the Commonwealth Administrative Review Committee (the Kerr Committee) to create the Commonwealth Administrative Appeals Tribunal:
“The jurisdiction [of a tribunal] should be to hear and determine an application by a person who is aggrieved or adversely affected by a decision on the ground that the decision was erroneous on the facts and merits of the case. (emphasis added).”
The decision to be reviewed - Section 412 Legal Profession Act
The legislation dealing with complaints to the Society appears in Part 4.5 of the LP Act.
Section 410 provides:
410Decision of council after Investigation
(1) After finishing an investigation of a complaint against a person, the relevant Council must –
(a)dismiss the complaint under section 412; or
(b)take action under section 413 (summary conclusion of complaint procedure by fine, etc); or
(c)make application to the ACAT under part 4.7.
(2) This section does not affect section 400 (withdrawal of complaints).
Section 412 provides:
412Dismissal of Complaint
(1) After finishing an investigation of a complaint against an Australian legal practitioner, the relevant council may dismiss the complaint if satisfied that –
(a)there is no reasonable likelihood that the practitioner will be found guilty by the ACAT of either unsatisfactory professional conduct or professional misconduct; or
(b)it is in the public interest to dismiss the complaint.
(2) After finishing an investigation of a complaint against an employee of a solicitor, the relevant council may dismiss the complaint if satisfied that there is no reasonable likelihood that the employee will be found guilty by the ACAT of unsatisfactory employment conduct.
It is under this latter section that the Society dismissed the Applicant’s complaint.
In a letter dated 29 August 2013 the Professional Standards Director of the Society wrote to the Applicant. That letter informed the Applicant that the Society had considered the complaint but concluded that the complaint should be dismissed pursuant to section 412 of the LP Act.
Relevantly, that letter stated:
“The Council considered the matter and determined that your complaint should be dismissed as there was no reasonable likelihood of a finding of unsatisfactory professional conduct or professional misconduct.”
The ‘reasonable likelihood’ test provided by section 412 was considered in Legal Practitioner M. In that matter, Senior Member Lunney stated as follows;
“41. This requires the Council to make an estimate of the likelihood of the ACAT taking certain action. The degree of likelihood is a ‘reasonable’ one. Those words appear to import more than a bare likelihood which could be expressed as a 51/49% probability.
42. The High Court in the case of Briginshaw v Briginshaw [1938] HCA 34; [1983] 60 CLR 336 is a case frequently quoted in relation to standard of proof. The issue was whether proof of adultery in a divorce case required the criminal standard of proof beyond reasonable doubt. In finding that it did not, Latham CJ and Rich J expressed views relevant to the issue of ‘reasonable likelihood’ used in section 413.
43. Latham CJ said at page 343
There is no mathematical scale according to which degrees of certainty of intellectual conviction can be computed or valued. But there are differences in degree of certainty, which are real, and which can be intelligently stated, although it is impossible to draw precise lines, as upon a diagram, and to assign each case to a particular subdivision of certainty. No Court should act upon mere suspicion, surmise or guesswork in any case. In a civil case, fair inference may justify a finding upon the basis of preponderance of probability. The standard of proof required by a cautious and responsible tribunal will naturally vary in accordance with the seriousness or importance of the issue.
44. Rich J said at page 350.
…By sec. 80 of the Marriage Act 1928, which is taken from sec. 29 of the English Act it is provided that:
“Upon any petition for dissolution of marriage, it should be the duty of the Court to satisfy itself, so far as it reasonably can, as to the facts alleged”.
The phrase “satisfy itself so far as it reasonably can” obviously reflects the influence of the common expression “reasonable satisfaction”.
In a serious matter like a charge of adultery the satisfaction of a just and prudent mind cannot be produced by slender and exiguous proofs or circumstances pointing with a waving finger to an affirmative conclusion. The nature of the allegation requires as a matter of common sense and worldly wisdom the careful weighing of testimony, the close examination of facts proved as a basis of inference and a comfortable satisfaction that the tribunal has reached both a correct and just conclusion. But to say this is not to lay it down as a matter of law that such complete and absolute certainty must be reached as is ordinarily described in a criminal charge as “satisfaction beyond reasonable doubt.”.
Senior Member Lunney then said:
45. Based on the views there referred to, and the significance of the probability assessment to the interests of the practitioner, the Tribunal considers that use of the criterion a ‘reasonable likelihood’ does import a relatively high degree of confidence of the assessment of whether ACAT would make an order of the type referred to. This is not a standard of proof capable of precise description mathematically or verbally since it will vary from case to case, however, it will generally require a likelihood greater than a simple slight excess of positive considerations over negative.
And at paragraphs 47 and 48, Senior Member Lunney continued:
47 The task of estimating what the ACAT would do is one of estimating the weight of the evidence which would be available to and considered by the ACAT. What the Council is authorised to do is to estimate the probability of an outcome. It is not to embark upon the process itself which would lead to that outcome. A finding by the ACAT would necessarily involve the Tribunal determining what evidence to accept or reject in the case of conflict, and whether an onus of proof had been met.
48 In my view the task of the Council, and therefore the present Tribunal, is to weigh the strength of the evidence with the ultimate objective of assessing the probability of outcome. In doing so, it is not necessary to be driven to making the assessments of fact necessary to come to the actual outcome. It is a process of evaluation of evidence to assess its strength and therefore its weight in a legal sense so that the defined probability is determined.
Application of the rules of evidence to the hearing of an ‘appeal’ under section 416 of the Legal Profession Act
At the commencement of the hearing, this Tribunal also needed to address the question of the application of the rules of evidence to the hearing of the appeal before it.
Proceedings brought before the Tribunal in a matter of this nature pose an interesting dilemma.
Section 8 of the ACT Civil & Administrative Tribunal Act 2008 (“ACAT Act”) provides “To remove any doubt, the Tribunal need not comply with the rules of evidence applying in the ACT”.
Section 26 of the ACAT Act provides “The Tribunal may inform itself in any way it considers appropriate in the circumstances”.
In part 4.7 (Disciplinary action) of the LP Act, section 420 provides “The ACAT is bound by the rules of evidence in hearing an Application under this part”.An application by the Council of the Law Society for disciplinary action in relation to a practitioner is brought under part 4.7.
The ‘appeal’ in this matter is brought pursuant to section 416 of the LP Act, which is contained in part 4.5 (Decision of council).
This means that the rules of evidence would not apply to the hearing of the ‘appeal’, although in determining the likelihood of a future tribunal making a finding, as required by section 412, the Tribunal would necessarily consider the weight of the evidence which would be admissible in that hypothetical disciplinary proceeding brought under part 4.7 of the LP Act.
At the outset of the hearing, this Tribunal considered then whether it should hear the appeal without application of the rules of evidence, or whether it should choose to impose the rules of evidence upon the hearing of the appeal. In determining that question, it is relevant to consider the possible outcomes at the conclusion of the appeal.
Section 416(3) of the LP Act provides “The ACAT may make any order it considers appropriate on the appeal” and specifically section 416(4) provides “[w]ithout limiting subsection (3), the ACAT may make 1 or more of the orders mentioned in section 425 (3) – (5) (ACAT orders – Australian Legal Practitioners)”.
Section 425(3) – (5) provides:
(3)The ACAT may make the following orders in relation to the Australian legal practitioner:
(a) an order recommending that the name of the practitioner be removed from the local roll;
(b) an order that the practitioner’s local practicing certificate be suspended for a stated period or cancelled;
(c) an order that a local practicing certificate not be granted to the practitioner before the end of a stated period;
(d) an order that –
(i)stated conditions be imposed on the practitioner’s practising certificate granted or to be granted under this Act; and
(ii)the conditions be imposed for a stated period; and
(iii)states the time (if any) after which the practitioner may apply to the ACAT for the conditions to be amended or removed;
(e) an order publicly reprimanding the practitioner or, if there are special circumstances, privately reprimanding the practitioner.
(4)The ACAT may make the following orders in relation to the Australian legal practitioner:
(a) an order recommending that the name of the practitioner be removed from an interstate roll;
(b) an order recommending that the practitioner’s interstate practising certificate be suspended for a stated period or cancelled;
(c) an order recommending that an interstate practising certificate not be granted to the practitioner before the end of a stated period;
(d) an order recommending –
(i)that stated conditions be imposed on the practitioner’s interstate practising certificate; and
(ii)that the conditions be imposed for a stated period; and
(iii)a stated time (if any) after which the practitioner may apply to the ACAT for the conditions to be amended or removed.
(5)The ACAT may make the following orders in relation to the Australian legal practitioner:
(a) an order that the practitioner pay a fine of a stated amount of not more than the amount mentioned in section 427;
(b) an order that the practitioner undertake and complete a stated course of further legal education;
(c) an order that the practitioner undertake a stated period of practice under stated supervision;
(d) an order that the practitioner do or not do something in relation to the practice of law;
(e) an order that the practitioner cease to accept instructions as a public notary in relation to notarial services;
(f) an order that the practitioner’s practice be managed for a stated period in a stated way or subject to stated conditions;
(g) an order that the practitioner’s practice be subject to periodic inspection by a stated person for a stated period;
(h) an order that the practitioner seek advice in relation to the management of the practitioner’s practice from a stated person;
(i) an order that the practitioner not apply for a local practising certificate before the end of a stated period.
Thus, it is possible for this Tribunal, if it found against a practitioner, to impose very harsh disciplinary penalties including making a recommendation that the practitioner’s name be removed from the local roll.
The Tribunal does not make such a recommendation lightly, and given the nature of the penalties it is entitled to impose, will only do so after thorough consideration. It is anomalous that, in an appeal such as the current matter involving contested facts, such outcomes could be made available by reference to evidence which would have been inadmissible had the proceedings been brought under part 4.7.
The Tribunal is of the view that although these proceedings are brought pursuant to part 4.5 of the LP Act, in light of the penalties it is entitled to impose pursuant to section 425(3) – (5) the proceedings should be approached as though they had been bought under part 4.7 of the LP Act and that the better approach in this matter is that the rules of evidence should be applied.
Involvement of the Practitioner in the hearing of the appeal
A consideration of the potential ramifications of the appeal for the practitioner raised a further preliminary issue for the Tribunal. These proceedings are an appeal by the Applicant from a decision of the Council of the Law Society of the Australian Capital Territory. Of themselves, the proceedings do not involve a practitioner, although it is the conduct of the Practitioner that is the subject of the appeal.
The Practitioner has not been joined in the proceedings, nor has he sought to be joined.
This is of concern to the Tribunal in view of the penalties that the Tribunal could impose on the Practitioner pursuant to section 425 of the LP Act.
Essentially, this means that if the Tribunal were to uphold the Applicant’s appeal and find against the Practitioner, it could impose the penalties without the Practitioner appearing before the Tribunal.
This would be an undesirable situation and would not afford procedural fairness.
Accordingly, the Tribunal was concerned that the Practitioner be made aware of the possible outcomes of the proceedings were the appeal to be upheld.
To this end, the Tribunal directed Mr. Phelps on behalf of the Law Society to contact the Practitioner to make him aware of the possible outcomes and the Tribunal’s concerns.
At the commencement of the second day of the proceedings, Mr. Phelps for the Society provided a letter addressed to the Tribunal indicating that he had sent an email to the Practitioner advising of the Tribunal’s concerns. Mr. Phelps also indicated that he had had a telephone conversation with the Practitioner.
Mr. Phelps informed the Tribunal that the Practitioner had told him that he was aware of the provisions of section 425 of the LP Act but nevertheless did not want to be joined as a party to the proceedings. He told Mr. Phelps that as he was now living permanently in Sydney it was not convenient for him to appear before the Tribunal, but that he was available to be contacted by phone should the Tribunal wish to do so.
At this stage of the proceedings the principal of the firm (which had until just recently employed the Practitioner) appeared before the Tribunal.
The Principal informed the Tribunal that:
(a)he was the Practitioner’s former employer;
(b)he had spoken with the Practitioner;
(c)he understood from the Practitioner that he (the Practitioner) had obtained legal advice from Counsel;
(d)as a result of that advice the Practitioner did not wish to be joined in the present proceedings; and
(e)the Practitioner understood the scope of the powers of this Tribunal.
The Principal went on to say that, despite the above, the Practitioner was available to speak with the Tribunal by phone should the Tribunal so wish.
It was noted that the Practitioner had provided an affidavit in the Respondent’s case, and would be available to be cross examined upon that affidavit later in the proceedings.
The Tribunal was consequently satisfied that the Practitioner had been accorded adequate and informed opportunity to participate in the proceedings as a party, and had declined to do so. The Tribunal was satisfied that the requirements of procedural fairness had been met, and proceeded with the hearing of the appeal.
The Hearing of the appeal
The Applicant, who was self-represented, was then invited to put his case to the Tribunal. At the outset, the Tribunal asked the Applicant whether or not he wished to have legal representation. He stated that he could not afford legal representation and was prepared to proceed without it.
The Tribunal informed the Applicant that the Tribunal would offer as much assistance and make reasonable allowances as it could for the fact that he was self-represented, but it could not run the Applicant’s case for him.
Applicant’s case
The Applicant had filed an affidavit setting out his complaint in some detail, and during the course of the hearing he also tendered copies of email correspondence between himself and the Practitioner. He also gave evidence to the Tribunal and was cross-examined. The Applicant’s evidence was consistent with the background set out at paragraphs 3 – 13 above.
In his oral evidence the Applicant stated that his primary concern was the defamatory statements made by his wife. He continued that he was unaware of how to handle that and sought advice in early 2009 of the Principal because that firm had been his solicitors for many years. He said that he wanted clarification of his wife’s statements and wanted advice as to the approach to take. He stated that the Principal said to him that defamation proceedings were very difficult and they discussed the question of procedures and costs. The Applicant said that he thought that the Principal was indicating to him that he should not proceed to pursue the defamation proceedings. He indicated at that stage he had a brief discussion about the impact of the defamatory statement on his employment as a Commonwealth public servant.
The Applicant then stated that he had it in his mind that the Principal would eventually get back to him about these matters, but he said that the next contact was from the Practitioner. The Applicant said that in his mind the Principal had indicated to the Practitioner that he was to handle the family law matters but deflected the question of defamation and, consequently, in his mind the Practitioner never saw the defamation matters as being critical.
The Applicant stated that in his view it was a failure on the Principal’s part not to notify him (the Applicant) of the handover of the matter to the Practitioner. He thought that he should have been told of this and had his instructions reflected back to him. The Applicant then stated that at no stage did the Principal indicate that there was a 12 months’ time limit for bringing defamation proceedings and stated that when he raised the matter again with the Practitioner and Counsel, he felt that this question was deflected.
The Applicant admitted that he gave the Principal no written instructions to commence the defamation proceedings, however, he stated it was always in the front of his mind.
The Applicant also stated that he did not find out about the 12 months’ time limit until he consulted another lawyer.
The Applicant stated that, according to his daughter, his wife was still making defamatory statements. He said that his concern was always about his daughter, and he felt that the continuing defamatory statements made by his wife were detrimental to her welfare. He felt that lots more could have been done to stop the defamatory statements. Whilst he acknowledged that a part of the interim consent agreement in the family law proceedings was a requirement that neither party denigrate the other, he was concerned that no retraction was sought and an insufficiently strongly worded letter was sent to his wife by the Practitioner seeking a cessation of the defamatory statements.
Following the Applicant’s statement he was cross-examined on the affidavit and statement by Counsel for the Law Society. During the course of the cross-examination the Applicant agreed with Counsel for the Law Society that the Practitioner had exercised his professional judgment in not pursuing the defamatory statements in order that he might maintain a relationship with his daughter. The Applicant also admitted that he acknowledged that defamation proceedings would be expensive. The Applicant also conceded that in every case the Practitioner advised him to leave the defamation proceedings until after the divorce was concluded because it may be seen as an abuse of process.
The Applicant admitted in cross-examination that he did not raise the issue of seeking a retraction of defamatory statements and, in particular, the Applicant agreed that he accepted the Practitioner’s advice to wait until divorce proceedings had been concluded.
Throughout the cross-examination of the Applicant it became clear that the Practitioner, the Principal, and Counsel had each advised the Applicant of the inadvisability of commencing defamation proceedings until the divorce proceedings had been concluded, and, whilst the Applicant may have been concerned by this advice, particularly in hindsight, on each occasion he had agreed that the defamation action should be deferred.
Respondent’s case
The Respondent filed with the Tribunal a bundle of documents relevant to its investigation of the complaint (‘T documents’) which were before the Tribunal for the hearing.
The Respondent relied upon an affidavit of Mr Reis setting out the history of investigation of the complaint and annexing relevant documentation. Mr Reis was not required for cross-examination, and his affidavit was admitted unchallenged into evidence.
Although a part of the complaint relied upon the content of the initial meeting between the Applicant and the Principal, the Respondent did not file an affidavit of the Principal in relation to that meeting. At the commencement of the hearing, when the Principal appeared before the Tribunal in relation to the Practitioner’s involvement in the proceedings, the Tribunal asked the Principal about his recollection of that meeting. The Principal did not disagree in any significant way with the account provided by the Applicant set out at paragraph 61 and following, and neither party sought to ask him any questions. In the end, as is apparent from these reasons, nothing turned upon the content of that meeting.
The Respondent also relied upon an affidavit of the Practitioner, who was called and gave evidence by telephone. The Practitioner’s evidence as to the facts was also broadly consistent with what is set out at paragraphs 3 – 13.
Significantly, the Practitioner’s evidence was that the first time defamation proceedings were raised ‘in earnest’ was in September 2009, at which time it was suggested the Applicant obtain statements. Although the Applicant obtained some witness statements after the initial family law proceedings were finalized in October 2010, these were not provided to the Practitioner at that time.
Later in October and November 2010, there was email communication from the Applicant to the Practitioner expressing keenness about commencing defamation proceedings. The Practitioner suggested meeting for a conference to discuss the action. However, in December 2010 the Applicant consulted a different solicitor about defamation proceedings, and left a message to that effect with the Practitioner. The Practitioner’s evidence was that from that point, it was his understanding that the Applicant did not propose to instruct the Practitioner to institute those proceedings. This understanding was confirmed in January 2011 when the Applicant emailed the Practitioner advising that he had separately instituted defamation proceedings against his former wife.
The Practitioner’s evidence was that in May 2011 he was formally instructed by the Applicant to institute defamation proceedings, and was at that time provided with the witness statements outlining the alleged defamatory statements made in early 2009. The Practitioner then sought and obtained, on 30 May 2011, Counsel’s advice in relation to the institution of proceedings.
Counsel’s opinion highlighted the one-year limitation period for the bringing of proceedings, and noted the possibility of applying for an extension of the limitation period for a further 2 years. The opinion did not address whether extension of the limitation period might apply in the Applicant’s case due to the allegations at the relevant time being ventilated in the family law proceedings, such that the institution of concurrent defamation proceedings might be considered an abuse of process.
The Practitioner’s evidence was that although attempts were made to discuss Counsel’s advice with the Applicant in conference with the Principal, this was unable to be arranged in a timely manner and ultimately, the retainer was ceased upon the Applicant making a complaint to the Law Society.
Findings of fact
The Tribunal is satisfied that, whilst there were at times during the family law proceedings, discussions regarding the defamation proceedings that the Applicant proposed, both the Practitioner and Counsel gave the Applicant advice to the effect that it was not strategically advisable to commence such an action at that time, and that their professional opinion was that such action should be delayed until the completion of the family law matters.
It is clear from the evidence that on each occasion the Applicant accepted that strategic advice, and no instructions to institute defamation proceedings were provided at that time.
It is the evidence of both the Applicant and the Respondent, supported by the contemporaneous documents, that while the prospect of defamation proceedings being undertaken was again raised around October and November 2010, these communications did not, in the understanding of either party, amount to instructions to institute proceedings, and this possible course was in any event overtaken by the separate briefing by the Applicant of a different legal practitioner in December 2010.
Formal instructions to institute defamation proceedings were provided to the Practitioner in May 2011, at which time Counsel’s advice was obtained as a first step. That retainer was terminated in November 2011.
It is not contested that the initial one-year limitation period for the alleged defamatory statements made March 2009 expired in March 2010, while the family law proceedings were on foot, and any extended limitation period (if granted) would have expired in March 2012.
Conclusion
The Applicant’s core complaint against the Practitioner is that the Practitioner failed to act upon instructions to institute legal proceedings. On the evidence before the Tribunal, no such instructions were provided until May 2011, at which time appropriate steps were taken by the Practitioner.
Implicit in the Applicant’s complaint was the suggestion that the Practitioner failed to advise as to the relevant time limit for instituting defamation proceedings such that the opportunity to institute proceedings within time was lost. There is no certain evidence that the Applicant’s right to institute defamation proceedings was entirely lost while the Practitioner was retained by the Applicant. While it is clear that the initial one-year limitation period expired during the course of the family law proceedings, Counsel’s advice in relation to the unavailability of an extension of the limitation period was preliminary and did not consider the ‘abuse of process’ argument.
It seemed from the evidence of the Applicant that, with the benefit of hindsight, he considers that it would have been strategically better to institute defamation proceedings while the family law proceedings were on foot, notwithstanding that this was against the advice of both the Practitioner and Counsel. Such an opinion, while genuinely held, does not alone constitute a ground for a complaint of unsatisfactory professional conduct or professional misconduct in relation to a practitioner.
In hearing the appeal, this Tribunal is tasked with weighing the strength of the evidence and assessing the likelihood that the Practitioner would be found guilty by the ACAT of either unsatisfactory professional conduct or professional misconduct. Having regard to the evidence at the hearing, this Tribunal is satisfied that there is no reasonable likelihood that the Practitioner will be found guilty by the ACAT of either unsatisfactory professional conduct or professional misconduct if an application for disciplinary action was brought against him.
Accordingly the decision of the Society should be confirmed, and the appeal dismissed.
The hearing in this matter was conducted as a public hearing in accordance with section 38 of the ACAT Act. In preparing these reasons for decision, the Tribunal became concerned that by publishing the decision and reasons in the usual manner, there would be potential for the identity of the child who was the alleged victim, to be worked out. The Tribunal asked the parties’ for their views about this and about the necessity for orders restricting the publication of any identifying material. The parties did not oppose the making of non-publication orders under section 39 of the ACAT Act for that purpose. Consequently, while these reasons have been written so as to reduce the amount of identifying information available, orders have also been made to prohibit publication of the name or any identifying details of the Applicant, his former wife and their child in relation to this decision.
……………………………..
Ms L. Crebbin
General President
for and on behalf of the Tribunal
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