The Council of the Law Society of the Act v ACT Civil and

[2025] ACTSC 251

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	The Council of the Law Society of the ACT v ACT Civil and Administrative Tribunal
Citation:	[2025] ACTSC 251
Hearing Date:	13 June 2025
Decision Date:	17 June 2025
Before:	McCallum CJ

Decision:	(1)	Quash the decision of the Tribunal dated 29 May 2025; and
(2)	Compel the defendant to determine the matter according to law.

Catchwords:	JUDICIAL REVIEW – Unreasonableness – where orders prevented discharge of statutory function – where tribunal declined to hear an application for non-publication orders –
whether tribunal had given evident and intelligible reason for declining to exercise jurisdiction
Legislation Cited:	ACT Civil and Administrative Tribunal Act 2008 (ACT) Administrative Decisions (Judicial Review) Act 1989 (ACT) Legal Profession Act 2006 (ACT) Ch 4, ss 384, 406, 410(1), 417 Supreme Court Act 1933 (ACT) s 34B
Cases Cited:	Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332
Parties:	The Council of the Law Society of the ACT (Plaintiff)
ACT Civil and Administrative Tribunal (Defendant)
“A Firm” (Interested Party)
Representation:	Counsel
D Moujalli with N Olson (Plaintiff) T Brennan SC with E Steer (Interested Party)
Solicitors
Thomson Geer (Plaintiff)
Norton White (Interested Party)
File Number:	SC 205 of 2025
McCALLUM CJ:
Introduction
1․	The administration of justice depends for its proper functioning on the existence of a legal
profession that adheres to professional standards and is competent and honest. The
enforcement of those standards is governed in the Territory by Chapter 4 of the Legal
Profession Act 2006 (ACT), which adopts a nationally consistent scheme for the
discipline of the legal profession: s 384 of the Act. Under the provisions of Chapter 4,
the statutory function and responsibility for investigating a complaint properly made
against a lawyer repose in the Council of the Law Society. The Council accordingly
stands in a quasi-prosecutorial role in respect of disciplinary proceedings against lawyers
in the Territory. The Council is bound in the investigation of a complaint and the
prosecution of any subsequent disciplinary action by the rules of procedural fairness and
is obliged to deal with complaints as efficiently and quickly as practicable: s 417 of the
Act.
2․	The powers and functions of the ACT Civil and Administrative Tribunal (ACAT)
complement the quasi-prosecutorial function of the Council. Following the investigation
of a complaint, any disciplinary proceedings against the lawyer in question are to be
brought in the Tribunal: s 410(1)(c) of the Legal Profession Act.
3․	The Council brought disciplinary proceedings in the Tribunal against a lawyer referred to
as LP9 [redacted]. There were proceedings and counter-proceedings [redacted].
4․	The Council brought disciplinary proceedings in the Tribunal against LP9 [redacted].
During the course of those proceedings, the Council issued a subpoena seeking the
production of specified client files of the firm. The firm vigorously opposes the disclosure
of the contents of those files in the protection of its commercial interests and the legal
confidentiality of the clients.
5․	On 11 April 2024, the Tribunal made broad-ranging non-publication orders which, among
other things, prohibited the disclosure or publication of the contents of the client files.
6․	On 28 May 2024, the firm made a complaint against [redacted] other lawyers [redacted].
As to one of those lawyers, the Council subsequently refused to renew their practicing
certificate. That lawyer is referred to as LP7. I will refer to the others as X and Y. The
subject matter of that complaint did not form part of the disciplinary proceedings against
LP9.
7․	The Council contends that it cannot properly investigate the firm’s complaint against LP7,
X and Y without affording them an opportunity to respond to the allegations.
8․	On 15 May 2025, the Council applied to the Tribunal to have the non-publication orders
varied. One of the purposes of the application was to permit the Council to disclose or
publish certain material to the three lawyers (there were other aspects to the application
as originally framed but they do not arise on the present application) [redacted].
9․	The application to have the non-publication orders came before the Tribunal on 29 May
2025. As at that date, the Tribunal had heard the disciplinary proceedings against LP9
but had not yet published its decision in those proceedings (that decision has since been
published). The Tribunal took the view that the determination of the Council’s application
should abide the publication of that decision. The firm supported the Tribunal’s stance
on that issue and discouraged the Tribunal from hearing the application pending the
publication of its decision in respect of the disciplinary proceedings against LP9.
10․	The orders of the Tribunal were:

(1)	The Tribunal declines to hear the application at this time.
(2)	The application is listed for mention at 9:30am on Friday 18 July 2025.

11․	By Originating Application filed 10 June 2025, the Council seeks judicial review of the
Tribunal’s decision. The application was, of its nature, required to be heard and
determined urgently. The hearing was interposed between other matters and this
decision has been written after hours. Its brevity is a reflection of those circumstances.
12․	The application seeks relief under the Administrative Decisions (Judicial Review) Act
1989 (ACT) and alternatively s 34B of the Supreme Court Act 1933 (ACT). The relief
sought is an order quashing the decision and an order compelling the Tribunal to
determine the matter according to law “by varying the non-publication orders so as to
allow the plaintiff to disclose the material to [the three lawyers]”.
13․	The grounds for the relief sought are that the decision prevented the Council from further
investigating the complaint; deprived LP7 of procedural fairness contrary to s 417(1) of
the Legal Profession Act; and prevented the plaintiff from dealing with the complaint as
efficiently and quickly as practicable, as required by s 417(2) of that Act. Those errors
are framed respectively as making a decision the Tribunal was not authorised to make
under the ACT Civil and Administrative Tribunal Act 2008 (ACT), the Legal Profession
Act or otherwise; exercising the power to decide its own procedures under s 23 of the
ACT Civil and Administrative Tribunal Act for a purpose other than that for which the
power is given; and making a decision which was so unreasonable that no reasonable
decision-maker could have made it.
14․	The acute urgency of the application concerns LP7. As already noted, the Council has
declined to renew LP7’s practicing certificate. LP7 has brought proceedings challenging
that decision which are due to be heard by the Full Court on 30 July 2025. The position
concerning X and Y is less acute. They were each provided with a copy of the firm’s
complaint on 27 June 2024, with a response provided on 25 July 2024. The urgency of
those matters is that the Council is bound by the statutory duty to investigate the
complaint efficiently and quickly.
15․	When the matter was called on 29 May 2025, the Tribunal commenced by stating its
position before calling on the Council. The Senior Member explained that the members
had received the papers late but that they had read enough to “get the gist of what’s
going on”. The Senior Member said that his personal knowledge of the file (apparently
from a time before it was allocated to him) was that there was “a flurry of applications
prompted by [LP9 and X] [redacted]. The Senior Member said that was “put to an end”
when Presidential Member McCarthy made the orders that the Council now seeks to
vary. He described the gist of the firm’s complaint as being [redacted].
16․	The Senior Member identified two reasons why the application should not be heard that
day. First, he indicated that the Tribunal’s decision in respect of LP9 was “not that far
off” and suggested that may influence the parties’ approach. In that context, he referred
first to an aspect of the Council’s application that was later not pressed and need not be
considered here. The Senior Member then expressed the view in respect of the
“allegations and counter allegations flying between [the firm], the Law Society, [X] and
others”, that the Tribunal’s findings, while not binding on the Council or the firm or the
lawyers under investigation, “would certainly have a very significant bearing on the
appropriateness of any decision that the Law Society makes in relation to the
investigation of the various complaints, the basis of the investigation and the scope of
the investigation”.
17․	The Senior Member said that, for those reasons, the Tribunal would need “a lot of
persuasion” that it would be appropriate at that “late stage” for the application to be heard
at a time when the Tribunal was “sitting on a final draft which sensibly ought to be taken
into account by all parties before doing the various things that they are proposing to do”.
18․	The Senior Member then raised a second reason for being reluctant to hear the
application, which was the risk of apprehended bias if the Tribunal heard the application
before publishing its decision concerning LP9. The basis for that concern was that LP9
might later contend that the Tribunal’s decision concerning him had been affected by
material extraneous to the hearing.
19․	The Council acknowledged the validity of that concern and submitted that, if that was the
issue, the application could be dealt with by a differently constituted Tribunal. The
Council submitted, however, that the firm had made a complaint and that the Council is
under a statutory obligation to investigate it and to afford procedural fairness to the three
lawyers, which it cannot presently do because of the non-publication order. In those
circumstances, the Council pressed for the relief sought so far as it concerned disclosure
to the three lawyers.
20․	Mr Moujalli, who appears for the Council, further submitted to the Tribunal that a report
it has received from LP7 “raises [redacted]” which the Council cannot presently
investigate because the report is based on the contents of material currently governed
by the non-publication orders (the client files produced on subpoena in the Tribunal in
the proceedings against LP9).
21․	The Senior Member insisted that an investigation of those matters “without the benefit of
the Tribunal’s reasons and decision would involve the expenditure of a large amount of
money, quite possibly unnecessarily”. Those remarks implicitly assume a binary
characterisation of the allegations and counter-allegations. The Senior Member appears
to have been suggesting that its findings against LP9 will resolve [redacted] and
[redacted]. But those are all distinct allegations. As repeatedly contended by Mr Moujalli
to the Tribunal, the Council has a statutory mandate to investigate the firm’s complaint
against LP7, X and Y, regardless of the Tribunal’s findings against LP9. Furthermore, if
the Council has received information suggestive of [redacted], it must plainly investigate
those matters too.
22․	The Senior Member stated that the course proposed by the Tribunal was simply “pausing
the process”. That submission was embraced by the firm, at the hearing of the
application before me. Mr Brennan SC, who appears for the firm, submitted that the
Tribunal’s decision was an orthodox (my word) timetabling decision in circumstances
where all that was said by the firm was that the Council’s application to vary the non-
publication order was an important application that needed to be timetabled and “dealt
with properly”.
23․	The difficulty with that position, and its adoption by the Tribunal pending the publication
of the decision concerning LP9, was that it tended to overlook, if not override, the
Council’s statutory obligations.
24․	I do not accept that this was a simple timetabling decision. The matter was listed before
the Tribunal for hearing. The order of the Tribunal declining to hear the application “at
this time” was an order declining to exercise the Tribunal’s jurisdiction properly invoked
by the Council. The reason given for not hearing the application at that time did not sit
comfortably with the Council’s statutory functions or those of the Tribunal. In suggesting
that the publication of its decision in respect of LP9 would inform the Council’s
investigation of [redacted], the Tribunal implicitly arrogated to itself a function devolved
by statute on the Council. The effect of the decision declining to hear the application at
that time, pending publication of a decision of the Tribunal concerning a different
complaint based on different (albeit related) allegations, was to impede the Council’s
investigation of a complaint properly made.
25․	At the hearing before me, the firm provided proposed orders to resolve the Council’s
application by permitting the Council to provide the draft disciplinary application to LP7.
The firm submitted that I could make an order to that effect in the exercise of the Court’s
inherent jurisdiction to supervise solicitors. The Council submitted that the firm’s
proposed orders would be insufficient because the Council would remain hamstrung in
its investigation of the complaint made by the firm. Mr Moujalli contended (with respect,
correctly) that it will not always be enough for the Council simply to receive a complaint,
seek a response from the solicitor and prepare a draft disciplinary application. Its
statutory obligation under s 406 of the Legal Profession Act is to investigate each
complaint properly made to it.

26․ Mr Moujalli submitted that the decision declining to hear the application was

unreasonable in the sense discussed by the High Court in Minister for Immigration and

Citizenship v Li [2013] HCA 18; 249 CLR 332. In that case, the Migration Review

Tribunal refused to grant an adjournment notwithstanding the fact that the applicant was

awaiting further information which could critically have informed her entitlement to a

“Skilled-Independent Overseas Student (Residence)” visa. The High Court held that the

decision entailed jurisdictional error. French CJ characterised the error as a denial of

procedural fairness that was arbitrary and accordingly unreasonable: at [31]. Hayne,

Kiefel and Bell JJ considered the fact that the power to grant an adjournment was a

discretionary power. Their Honours said at [63]:

Because s 363(1)(b) contains a statutory discretionary power, the standard to be applied to the exercise of that power is not derived only from s 357A(3), but also from a presumption of the law. The legislature is taken to intend that a discretionary power, statutorily conferred, will be exercised reasonably.

Their Honours further noted at [64] “[a] standard of reasonableness in the exercise of a

discretionary power given by statute had been required by the law long before the first

statement of “Wednesbury unreasonableness”…”.

27․	It may be accepted, as the plurality in Li did at [66], that there is an area within which a
decision-maker has “a genuinely free discretion”. But any discretion conferred on an
authority must be exercised according to law, that is to say, in a manner that is “legal
and regular, not arbitrary, vague and fanciful”: Li at [65].
28․	I do not mean to suggest the decision declining to hear the Council’s application met that
precise description. However, with respect, there was no cogent reason to decline to
hear the application on the day on which it was listed for hearing. As explained by the
plurality in Li at [68], the legal standard of unreasonableness is not limited to a decision
that is so unreasonable that no reasonable person could have arrived at it.
29․	The Tribunal in its occupational jurisdiction is charged with important powers and
functions concerning the supervision and discipline of the legal profession. In the present
case, it was asked by the quasi-prosecutorial body (the Council) to vary orders, the
operation of which was impeding the discharge of its statutory function.
30․	In the circumstances, I am satisfied that the Tribunal’s decision that “the tribunal declines
to hear the application at this time” was unreasonable in the sense discussed in Li. It
was, in effect, a decision declining to exercise jurisdiction properly invoked by the
Council. There was no evident, intelligible justification for declining to exercise the
jurisdiction. It is no answer to point to the qualifying words “at this time” because the
reason for deferring the hearing was irrelevant to the exercise of the jurisdiction invoked.
The Council is obliged to investigate the complaint and to do so fairly, in a way that
affords procedural fairness to the lawyers, as quickly and efficiently as possible. With
respect, the Council’s discharge of those statutory functions is not liable to be curated or
informed by the Tribunal’s determination of a complaint against a different practitioner or
the firm’s opposition to the inspection of the very material underlying its complaint, which
levels very serious allegations against three lawyers.
31․	The Council submitted that the Court should make a specific order requiring the Tribunal
to make the variation sought. Both parties took me to authorities directed to the
appropriateness of making an order in those terms. It is not necessary to discuss those
cases. I am not satisfied that I should direct the Tribunal how to determine the
substantive application.

Orders

32․ For those reasons, I make the following orders:

(1)	Quash the decision of the Tribunal dated 29 May 2025; and
(2)	Compel the defendant to determine the matter according to law.

I certify that the preceding thirty-two [32] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum

Associate:

Date: 17 June 2025