The Council of the Law Society of the Australian Capital Territory v LP 12
[2018] ACTCA 60
•6 December 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | The Council of the Law Society of the Australian Capital Territory v LP 12 |
Citation: | [2018] ACTCA 60 |
Hearing Date: | 8 November 2018 |
DecisionDate: | 6 December 2018 |
Before: | Murrell CJ, Burns and Charlesworth JJ |
Decision: | Appeal allowed. Notice of contention dismissed. Set aside orders made by Elkaim J on 23 February 2018 and 27 April 2018, in their place order that the respondent’s application for judicial review is dismissed with costs. Respondent to pay the appellant’s costs of the appeal. |
Catchwords: | ADMINISTRATIVE LAW – Judicial Review – Whether ACAT fell into error – Whether allegations against the practitioner vague, uncertain and ambiguous – Whether ambiguity in the evidence amount to latent duplicity – Whether prerogative remedies were available – Whether error by the primary judge concerning the agreement alleged by the Society – Whether the Court should dispose of the matter by determining the application for judicial review on the grounds specified before the primary judge Legal practitioners – disciplinary proceeding – Where the practitioner made a no case submission – Whether the ACAT is obliged to entertain a no case submission – Whether judicial review of an interlocutory ruling by the ACAT is appropriate – Courts should be exceptionally reticent to interfere in legal practitioner disciplinary proceedings before the ACAT |
Legislation Cited: | ACT Civil and Administrative Tribunal Act 2008 (ACT) s 23 Legal Profession Act 2006 (ACT) ss 419, 426 Supreme Court Act 1933 (ACT) s 32 |
Cases Cited: | Alexander v Rayon [1936] 1 KB 169 Australian Securities and Investment Commission v Healey [2011] FCA 717; 196 FCR 291 James v Australian and New Zealand Banking Group Ltd (1986) 64 ALR 347 J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (Western Australian Branch) (No 2) (1992) 38 FCR 458 Johns v Law Society of New South Wales [1982] 2 NSWLR 1 Zanetti v Hill (1962) 108 CLR 433 |
Parties: | The Council of the Law Society of the Australian Capital Territory (Appellant) LP 12 (First Respondent) Senior Member G Lunney SC and Member R Vassarotti in their capacity as members of the Australian Capital Territory Civil and Administrative Tribunal (Second Respondent) |
Representation: | Counsel Mr N J Beaumont SC with Ms R Withana (Appellant) Mr P Menzies QC with Ms B K Nolan (First Respondent) Submitting appearance (Second Respondent) |
| Solicitors McInnes Wilson Lawyers (Appellant) Capital Lawyers (First Respondent) ACT Government Solicitor (Second Respondent) | |
File Number: | ACTCA 12 of 2018 |
Decision under appeal: | Court/Tribunal: ACT Supreme Court Before: Elkaim J Date of Decision: 23 February 2018 Case Title: LP 12 v The Council of the Law Society of the ACT Citation: [2018] ACTSC 27 |
Murrell CJ and Burns J:
The respondent, LP 12, is a legal practitioner practising in the Australian Capital Territory. In 2009, a person to whom we will refer as HT instructed a firm of lawyers with whom the respondent was not associated to act for HT on a claim for damages arising from a motor vehicle accident (the MVA claim). In 2009, that firm commenced (and later discontinued) a workers compensation claim by HT against his former employer relating to the motor vehicle accident, which had occurred in the course of HT’s employment (the WC journey claim).
In November 2010, HT instructed the firm in which the respondent was then employed to take over the MVA claim. The respondent advised HT that there was a basis for a separate workers compensation claim against his former employer for a knee condition arising from the nature and conditions of his employment. The practitioner commenced such a claim (the nature and conditions claim). He also revived the WC journey claim which had been discontinued by the former lawyers.
On 15 November 2010, HT signed a trust account authority authorising transfers from the trust account to office account in respect of fees and disbursements.
On 1 February 2011, the respondent became a legal practitioner director of the firm conducting HT’s claims.
On 27 June 2011, there was a settlement conference concerning the MVA claim, the WC journey claim and the nature and conditions claim. All three proceedings were resolved. It is unnecessary to refer to the terms of that resolution, except to note that the MVA claim was settled for a sum of $330,000.00 inclusive of costs, the WC journey claim was settled for a nominal sum and the nature and conditions claim was settled for $10,000.00 plus an agreed sum of $12,000.00 in costs.
On 5 July 2011, HT signed settlement instructions authorising his lawyers to settle his claims as follows:
(a)$330,000.00 inclusive of costs and workers compensation payments already made with regard to the MVA claim; and
(b)$10,000.00 plus $12,000.00 in costs with regard to the WC claim and the nature and conditions claim.
The settlement instructions included the following:
You have advised me that my legal costs for the two matters that I have now settled will be approximately $47,000 which include all disbursements paid, counsel fees, your fees and [my former lawyer’s] fees. I authorize you to deduct that sum from the settlement monies but withhold the portion for [my former lawyers’] fees in your trust account pending a satisfactory resolution of my dispute with [my former lawyers] in relation to their fees.
In an affidavit sworn 12 September 2016, HT asserted that, on 15 July 2011, he had participated in a telephone conversation with another lawyer director of the respondent’s firm, to whom we will refer as QD. At that time, the respondent was absent on holidays. HT stated that, in that conversation, QD agreed to “limit the total legal costs, including [the former lawyers’ costs], to $42,000”.
By a letter dated 19 July 2011, QD wrote to HT stating:
I understand that your motor vehicle accident claim settled on 27 June 2011 for $330,000.00 inclusive of:
1.all amounts paid to you (that is all worker’s compensation benefits paid to you, which need to be repaid);
2.all amounts payable by you (that is any amounts to be reimbursed to medicare or health care providers for health services you have received but not yet paid for); and
3.your legal costs and disbursements.
…
In relation to 3, I have offered, and you have agreed, to pay $42,000.00 in total for all legal costs and disbursements.
10. The appellant, the Law Society of the Australian Capital Territory (the Society), alleged that, in the conversation between HT and QD on 15 July 2011, an agreement was struck between HT and his lawyer that HT’s legal costs and disbursements, including any costs owing to his former lawyers, would be limited to $42,000.00. The Society asserted that this agreement was confirmed in writing in the letter of 19 July 2011. The Society further asserted that, as a consequence, the authority provided by HT on 5 July 2011 in the settlement instructions authorising the respondent to deduct $47,000.00 from the trust account by way of costs and disbursements (leaving aside for the moment the amount to be determined as payable to the former lawyer) had been impliedly altered to delete the figure of $47,000.00 and substitute $42,000.00. The Society alleged that, notwithstanding this agreement and the implied authority to withdraw only $42,000.00 from the trust account, the respondent proceeded to withdraw about $47,000.00 for costs and disbursements and that, in doing so, the respondent acted contrary to the directions of HT and without authority.
11. The Society commenced disciplinary proceedings in the Australian Capital Territory Civil and Administrative Tribunal (the ACAT) pursuant to s 419(1) of the Legal Profession Act 2006 (ACT) (the LP Act). Relevantly for present purposes, in four “charges” (described as Charges 2, 2A, 3 and 3A), the Society alleged that the respondent had breached s 223 of the LP Act by causing the disbursement and misappropriation of trust monies contrary to HT’s instructions.
12. Ultimately, the hearing before the ACAT proceeded on the basis of a further amended application (the FAA) by the Society. In the introduction to the FAA, the Society recited the facts to be alleged in the proceedings. With regard to the charges concerning withdrawal of trust monies without authority, the Society alleged:
33. On or about 15 July 2011, [HT] had a telephone conversation with [QD] who advised HT that [the firm] would agree to reduce the amount of total costs and disbursements payable by [HT] including those of [the former lawyers’] costs [sic] (inclusive of GST) by $5000.
34. On 19 July 2011 [QD] wrote to HT confirming this agreement and stated that “I have offered, and you have agreed, to pay $42,000 in total for all legal costs and disbursements”.
13. On the first day of the hearing before the ACAT, junior counsel for the respondent foreshadowed that there would be a no case submission at the conclusion of the evidence for the Society. At the conclusion of the evidence for the Society on 7 December 2016, the respondent advanced a no case submission. After hearing submissions on whether a no case submission could be entertained by the ACAT, and, if so, whether the respondent should be required to elect whether he would call evidence, the ACAT determined to entertain a no case submission without requiring the respondent to make the election.
14. One submission that was advanced by the respondent was not reflected in the response to the FAA which the respondent had filed. The very experienced presiding senior member described this failure by the respondent as “extraordinary”, and required the respondent to file an amended response. For present purposes, it is unnecessary to elaborate on the submission.
15. On 16 December 2016, the parties were directed to file written submissions on the no case application.
16. The proceedings recommenced on 2 March 2017. At that time, the respondent was represented by senior and junior counsel. The respondent applied, in effect, to remove the no case submission into the Supreme Court. The application was refused. The ACAT then heard lengthy submissions from counsel on the no case submission.
17. On 7 July 2017, the ACAT delivered a written decision. In the decision, the ACAT observed “[t]here were telephone conversations between [HT] and a partner in the firm at [sic] which an agreement regarding costs payable by [HT] was made. This agreement was confirmed by the partner in a letter of 19 July 2011”. The ACAT went on to say:
47. The parties have pressed competing interpretations on the agreement confirmed in the letter of 19 July 2011. The applicant in paragraph 33 of the FAA refers to total costs, and the respondent in the submissions filed on 27 March refers to costs and disbursements of the motor vehicle accident claim. However, on the threshold issue of whether there is evidence which could establish the charge, it is the Tribunal’s view that the evidence referred to above, if accepted, could establish either of the charges 2 or 2A on the basis that the 19 July 2011 agreement related to total costs and disbursements together with the outgoing firm’s costs. The respondent’s submissions relating to the entitlement to pay out the costs as at the 30 August 2011 is controversial because of interpretation of the letter of 19 July 2011 and the contingent outstanding costs at the time. Submissions by the respondent and answered by the applicant relating to the status of the workers’ compensation costs including analysis of NSW authorities are controversial issues of law. These issues should, if pressed, be dealt with at an eventual hearing. Depending on the determination of those issues the evidence could support a finding that either of the two charges is made out.
48. The respondent’s submission is rejected in relation to charges 2 and 2A.
(emphasis added)
18. With regard to Charges 3 and 3A, in dealing with allegations of misappropriation, the ACAT said:
61. In coming to its decision on this aspect of the application the Tribunal notes the differing interpretations of the authorities taken by the parties in their submissions. The Tribunal has set out a sizeable quotation from the judgment of Bell J in Brereton and has found guidance from the passages there. It is evident from the submissions of the parties that there is controversy about the interpretation of Brereton and other authorities referred to.
62. Whether or not either charge 3 or 3A is found made out will depend on interpretation of the meaning and application of ‘misappropriation’ in the circumstances found to exist, including the issues involved in charges 2 and 2A. Depending on resolution of those issues, the evidence called by the applicant is capable of establishing each charge.
63. The Tribunal finds that either of charges 3 and 3A could be found established on the evidence led by the applicant and the respondent’s submission fails.
19. The practical effect of the ACAT decision was that aspects of the no case submission were rejected, while other aspects were deferred until all the evidence had been taken and final submissions had been made. A further practical result was that the practitioner had to decide whether to give or call any evidence.
The proceedings before the primary judge
20. The respondent sought judicial review of the ACAT decision of 7 July 2017. The application for judicial review came before the primary judge through a further amended originating application (FAOA) dated 16 November 2017, in which the respondent alleged that the ACAT had constructively failed to exercise its jurisdiction by not ruling on all of the respondent’s no case submissions, and by reason of this constructive failure had failed to address the question of whether the respondent could lawfully be found guilty of the charges on the evidence as it then stood in the proceedings. The FAOA further asserted that, if the ACAT had determined the no case submission correctly, there was “no realistic prospect” that the ACAT could have found Charges 2, 2A, 3 and 3A capable of being made out. The FAOA stated that the respondent sought “prerogative and declarative relief”.
21. In written submissions in support of the application for judicial review, the respondent submitted that, on a “no prima facie case” submission, the question is whether the defendant can lawfully be convicted on the evidence as it then stands, which is a question of law: R v Bilik (1984) 36 SASR 321 (Bilik) at 335. The respondent referred to the following passage in the judgment of King CJ in Bilik, at 337:
The question to be answered by the trial judge is whether there is evidence with respect to every element of the offence charged which, if accepted, could prove that element beyond reasonable doubt.
22. In support of this submission, the respondent referred to the decision of Kitto J in Zanetti v Hill (1962) 108 CLR 433 at 442:
The question whether there is a case to answer, arising as it does at the end of the prosecution’s evidence in chief, is simply the question of law whether the defendant could lawfully be convicted on the evidence as it stands, – whether, that is to say, there is with respect to every element of the offence some evidence which, if accepted, would either prove the element directly or enable its existence to be inferred. That is a question to be carefully distinguished from the question of fact for ultimate decision, namely whether every element of the offence is established to the satisfaction of the tribunal of fact beyond a reasonable doubt.
23. The respondent submitted that the ACAT had erred in two respects: first, it misunderstood its legal task on the “no prima facie case” submission; and secondly, it constructively failed to exercise its jurisdiction. The respondent submitted that the Society’s case against him involved an interpretation of the agreement with HT, an interpretation of the LP Act (and perhaps other legislation) and the resolution of propositions of law. He submitted that the ACAT had erred by failing to resolve these issues when dealing with his “no prima facie case” submission.
24. In its written submissions, the Society submitted that the respondent’s claim for relief in the nature of prerogative relief should fail because:
(a)a ruling that there is a case to answer is not an order or decision for the purposes of relief in the nature of certiorari or mandamus;
(b)in any event, the ruling involved neither jurisdictional error nor error of law on the face of the record;
(c)the claim for a declaration that there was no case to answer was misconceived; and
(d)even if there was an error, there were powerful discretionary reasons why the Court would not interfere in the proceedings before the ACAT, particularly bearing in mind the stage that those proceedings had reached.
25. The primary judge heard the application for judicial review on 12 and 16 February 2018. On the latter date, counsel for the respondent told the primary judge that, until 12 February 2018, they had understood that the alleged agreement between HT and QD was to be found in the letter of 19 July 2011, but in the course of submissions on 12 February 2018 counsel for the Society had changed the way in which the Society put its case and to allege that the agreement was an oral agreement made in the telephone conversation between HT and QD on 15 July 2011.
26. In written submissions dated 16 February 2018 (and presumably provided to the primary judge on the same day), the respondent elaborated on this theme. The respondent submitted that the “revelation” that the Society was alleging an oral agreement rendered “Charges 2, 2A, 3 and 3A bad as vague, uncertain and ambiguous”. The respondent explained that the Society appeared to rely on three possible agreements, being:
(a)an agreement set out in FAA [33], to reduce the amount of total costs and disbursements payable by HT, including those payable to his former lawyers, by $5,000;
(b)an agreement set out at [25] of HT’s affidavit to limit the total legal costs, including those payable to the former lawyers, to $42,000.00; or
(c)an agreement found at [34] of the FAA, that HT would pay $42,000.00 in total for legal costs and disbursements, inclusive of costs owing to his former lawyers.
27. The respondent submitted that he did not know the nature of the agreement with HT upon which the Society relied. He submitted that, in submissions to the primary judge on 12 February 2018, senior counsel for the Society had elected the second of these possible agreements, being an agreement that HT would pay $42,000.00 in total costs, including costs payable to the former lawyers. The respondent asserted that, significantly, this agreement made no reference to disbursements. The respondent pointed to a statement made by senior counsel for the Society on 12 February 2008 that the agreement was to be found in [25] of HT’s affidavit. That paragraph is as follows:
[QD] and I had a long discussion as to [my lawyers] and [my former lawyers’] costs. I recall expressing to [QD] my dissatisfaction with the whole question of costs and general state of uncertainty as to how they had been calculated. On that occasion I recall an exchange in words to the following effect:
Me:“The total costs are too high due to the costs incurred by [you] and by [my former lawyers]. I want my fees reduced by at least $5,000.”
[QD]“We will limit the total legal costs, including [your former lawyers’] costs, inclusive of GST, to $42,000.”
Me:“I need to get this finalised. I am running out of money. I am looking after my mother and I am only receiving a carer’s pension. I am not able to go back to work yet.”
28. The respondent submitted that, if the agreement related only to total costs (and did not include disbursements), then the evidence led by the Society in the ACAT proceedings demonstrated that less than $42,000.00 had been disbursed from the trust account in relation to such costs. Accordingly, the respondent submitted, the Society could not succeed on the remaining charges.
29. Finally, the respondent submitted to the primary judge that it was his Honour’s task to “quell the controversy between the parties”, citing s 32 of the Supreme Court Act 1933 (ACT). The respondent invited the primary judge to grant declaratory relief.
30. On 23 February 2018 the primary judge made the following orders:
(a)a declaration that on the evidence as it stood in the ACAT proceedings, the respondent could not lawfully be found guilty of the remaining charges in the FAA;
(b)an order quashing the part of the decision of the ACAT that related to the remaining charges; and
(c)an order remitting the proceedings to the ACAT to determine the respondent’s no case submission on the remaining charges according to law.
31. Despite the remission to the ACAT, the effect of the declaration was that the ACAT would be obliged to dismiss the proceedings.
32. On 27 April 2018, the primary judge ordered the Society to pay the respondent’s costs of the application for judicial review.
33. In reasons published on 23 February 2018, LP 12 v The Council of the Law Society of the ACT [2018] ACTSC 27; 330 FLR 107, the primary judge referred to the respondent’s submissions that there were three possible agreements which could be asserted on the evidence of the ACAT (see [26] above). His Honour rejected the submission that senior counsel for the Society had made an election as to the nature of the alleged agreement as asserted by the respondent (see [27] above). His Honour then posed for himself the question of whether the ACAT had dealt with the case “in a manner consistent with the case that [the Society] says exists against [the respondent]”. In answer to this question the primary judge stated, at [64]-[65]:
64. Paragraph [47] of ACAT’s reasons states:
The parties have pressed competing interpretations on the agreement confirmed in the letter of 19 July 2011. The applicant in paragraph 33 of the FAA refers to total costs, and the respondent in the submissions filed on 27 March refers to costs and disbursements of the motor vehicle claim. However, on the threshold issue of whether there is evidence which could establish the charge, it is the Tribunal’s view that the evidence referred to above, if accepted, could establish either of the charges 2 or 2A on the basis that the 19 July 2011 agreement related to total costs and disbursements together with the outgoing firm’s costs. The respondent’s submissions relating to the entitlement to pay out the costs as at the 30 August 2011 is controversial because of interpretation of the letter of 19 July 2011 and the contingent outstanding costs at the time. Submissions by the respondent and answered by the applicant relating to the status of the workers’ compensation costs including analysis of NSW authorities are controversial issues of law. These issues should, if pressed, be dealt with at an eventual hearing. Depending on the determination of those issues the evidence would support a finding that either of the two charges is made out.
65. It is immediately apparent from the above passage that ACAT has proceeded on the basis that the letter of 19 July 2011 is a confirmation of the oral agreement made on 15 July 2011 and is, in itself, a statement of the agreement. This is not a correct reflection of the agreement as relied upon by the defendant and as clearly stated in this Court to be comprised only of the oral agreement made on 15 July 2011.
34. The primary judge agreed with the respondent’s submission that the ACAT was obliged to decide the no case submission when it was made, but his Honour stated that this error was not decisive as his Honour would have rejected the respondent’s submissions that were not (but should have been) addressed by the ACAT.
35. Having identified error in the ACAT’s decision, in that the ACAT had considered the application based on a misconception of the agreement alleged by the Society, his Honour considered whether, in the exercise of his discretion, he should grant relief. At [83]-[88] his Honour said:
83. I have already found that I have jurisdiction to intervene. Without in any way cavilling with the defendant’s observation about the sacrosanct principles relating to trust accounts, I think the history of this matter, including the unnecessary duplication of charges, the small amount of money involved (ultimately perhaps as little as $2000), the resolution of the dispute between the complainant and LP 12 (by the agreement made on 21 November 2011) and the disproportionate amount of time and costs that have already been expended, compels me to bring the proceedings to finality.
84. In addition, although there was obviously a good deal of correspondence between the parties following the making of the complaint, it does seem an inordinately long time before proceedings at ACAT were commenced.
85. The quest for finality is made possible by s 32 of the Supreme Court Act 1933 (ACT). Section 32 states:
32 Final determination of matters
(1)In the exercise of its jurisdiction under this Act in relation to proceedings in the court, the court shall, so far as practicable, ensure that—
(a) all the matters in issue between the parties to the proceedings are finally determined; and
(b) all multiplicity of legal proceedings concerning those matters is avoided.
(2) For subsection (1), the court may grant legal or equitable relief absolutely or conditionally.
86. The plaintiff submitted that I should first make a declaration “that on the evidence as it stands in the Proceedings the plaintiff could not lawfully be found guilty of the charges numbered 2, 2A, 3 and 3A of the Further Amended Application…”
87. A declaration in these terms might not be seen as consistent with my finding which is more concerned with the identity of the contract than the evidence led by the defendant.
88. However it is axiomatic to state that if the terms of the contract have not been identified there could not have been evidence sufficient to establish whatever the contract may have been. Accordingly, I have decided that the declaration and subsequent orders suggested by the plaintiff are appropriate.
The present proceedings
36. By a notice of appeal dated 23 March 2018, the Society appealed from the orders made by the primary judge. Five broad grounds of appeal were pleaded, although each contained multiple alleged errors under the heading of the ground. Those broad grounds were:
(a)the primary judge erred in holding that certiorari was available with respect to the ACAT’s determination of the no case submission;
(b)the primary judge erred in straying beyond the judicial review function and into the merits;
(c)the primary judge erred concerning the alleged misunderstanding of the agreement alleged by the Society;
(d)the primary judge erred in granting a declaration that there was “no case to answer”; and
(e)the primary judge erred in the exercise of his discretion as to whether to grant relief.
37. The respondent filed a notice of contention, challenging certain decisions of law made by the primary judge in rejecting the submission that was not addressed by the ACAT (see [34] above).
Consideration
38. The decision of the primary judge hinged upon a finding of error by the ACAT as to the terms of the agreement with HT.
39. There was no such error by the ACAT. The Society’s case was always that there was an agreement to limit costs and disbursements in all matters (including the costs and disbursements payable to HT’s former lawyers) to $42,000.00. This agreement was said to arise from the telephone conversation between HT and QD on 15 July 2011. It was said to have been confirmed in the letter of 19 July 2011.
40. The respondent is perfectly entitled to submit to the ACAT that neither the telephone conversation as deposed to by HT nor the letter establishes an agreement in the terms alleged by the Society. That is a matter of fact for the ACAT to determine. In doing so, it may consider other evidence, including the file note of the telephone conversation made by QD. The ACAT may choose to place greater weight on some parts of the letter of 19 July 2011 than other parts, particularly as the letter was not authored by HT.
41. On the question that was crucial to his Honour’s determination that ACAT had fallen into error, there is no scope for a finding that the Society changed its case such that the ACAT addressed the wrong issue. There is no scope for any argument of latent duplicity in the allegation against the respondent. The arguments advanced by the respondent confuse possible ambiguity in the evidence with latent duplicity. Whether such ambiguity exists and, if so, what that means for the proceedings against the respondent, is a matter for the ACAT to decide as the tribunal of fact.
42. If the respondent’s lawyers were confused as to the nature of the case alleged by the Society, it was a confusion which cannot be laid at the door of the Society. The Society has consistently said that its case against the respondent was based on the conversation between HT and QD on 15 July 2011 and confirmed by the letter of 19 July 2011; it was an agreement that the respondent’s firm would limit total costs and disbursements (including those owed to HT’s former lawyers) to $42,000.00. Whether the evidence establishes such an agreement is a separate issue. In deciding that issue, the ACAT is entitled to look to all of the evidence, and to determine what weight it attributes to different parts of the evidence.
43. The present appeal must be upheld on the ground that the primary judge erred concerning the alleged misunderstanding of the agreement alleged by the Society.
44. The question then becomes: should this Court dispose of the matter by determining the application for judicial review on the grounds specified in the FAOA before the primary judge? We think not.
45. First, the Court should be exceptionally reticent to interfere in the conduct of legal practitioner disciplinary proceedings before the ACAT. ACAT is designated as the appropriate body to determine such proceedings, although the Supreme Court retains its inherent jurisdiction. A perceived readiness by the courts to intervene in such proceedings whenever an interlocutory ruling, even a ruling of law, is given against a legal practitioner will result in fragmentation of proceedings, additional costs and a loss of confidence in the legislated process for resolution of disciplinary proceedings. In the exercise of its discretion, this Court should resist any invitation to review the ACAT’s approach to the respondent’s no case submission.
46. Secondly, the respondent’s application for judicial review was premised on the ACAT being obliged to entertain a no case submission, and to then rule upon all matters raised in the submission. The primary judge accepted that submission. We do not believe that the authorities support such a broad proposition.
47. In J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (Western Australian Branch) (No 2) (1992) 38 FCR 458, French J (as his Honour then was) considered the nature of a decision to entertain a no case submission, and whether a party making such a submission should be required to elect not to call evidence in its case before such a submission is entertained. At 461, his Honour said:
The question whether a defendant should be required to elect before a no case submission is entertained falls for determination as a matter of judicial case management. Under that characterisation which reflects the general approach adopted by Australian courts, there is an irreducible element of discretion for the judge confronted with a no case submission. That discretion is informed by the long experience of the courts which indicates strongly that the better course in most cases is to hear all of the evidence before making any decision on its effect. There have been some cases when the accumulated experience of the law in this respect has been expressed as a somewhat inflexible direction to trial judges. But these cases taken overall do not support inflexibility in the resolution of these essentially procedural questions.
48. French J noted that the principles regarding election differed from a simple case with one respondent, to a more complicated one with several respondents. His Honour, after considering the decision in Alexander v Rayon [1936] 1 KB 169, said at 463-464 with regard to the decision of Toohey J in James v Australian and New Zealand Banking Group Ltd (1986) 64 ALR 347:
In my respectful view, which I hope is not inconsistent with what his Honour said in that case, the question whether or not to entertain a no case submission by one of several respondents is, like the simple case of one respondent, a matter of proper case management having regard to the interests of justice, including the convenience and economy in time and money that might be achieved in an appropriate case.
(emphasis added)
49. In Stack v Brisbane City Council (1998) 41 IPR 69, Cooper J refused to entertain a no case submission, saying at 75:
The first question is whether or not the court will entertain the application at this stage of the proceedings. Central to that question is whether, in the particular circumstances, to hear and determine the application is likely to save the litigants expense, time and trouble and whether the course proposed would be a just and convenient disposition of the litigation …
(emphasis added) (citation omitted)
50. More recently, in Australian Securities and Investment Commission v Healey [2011] FCA 717; 196 FCR 291, Middleton J said, at [538]:
The Court has a broad discretion not to put the moving party to its election (or, alternatively, to refuse to hear the no case submission at all) …
(emphasis added)
51. In a civil case, the decision whether to entertain a no case submission and on what terms is a procedural matter for determination by the court or tribunal hearing the case. Different considerations apply to a submission of no prima facie case in criminal proceedings. In any event, the ACT Civil and Administrative Tribunal Act 2008 (ACT) (the ACAT Act) provides that the Tribunal may determine its own procedures: s 23. In general, the decision about whether to entertain a no case submission is an essentially procedural matter to be decided by the ACAT.
52. Further, in the case of legal practitioner disciplinary proceedings, it is doubtful whether the ACAT has power to dispose of the proceedings before all of the evidence has been received. The relevant dispositive provision is s 426 of the LP Act, which provides:
426 Dismiss complaint—Australian legal practitioners
If, after the ACAT has finished a hearing under this part in relation to a complaint against an Australian legal practitioner, the ACAT is not satisfied that the practitioner is guilty of unsatisfactory professional conduct or professional misconduct, the ACAT must dismiss the complaint.
53. It may be that the ACAT has not “finished a hearing” until all of the evidence is before it. It may be necessary for a legal practitioner to make an election to call no evidence before the ACAT may entertain a submission that the complaint should be dismissed. Because of the way in which these proceedings were conducted before the primary judge and this Court, we decline to resolve this issue.
54. For similar reasons, we decline in the exercise of discretion to rule upon the respondent’s notice of contention.
55. The present appeal should be upheld and the orders made by the primary judge on 23 February 2018 and 27 April 2018 should be set aside. The respondent’s application for judicial review should be dismissed with costs. The notice of contention should be dismissed. The respondent should pay the Society’s costs of the present appeal.
56. We feel obliged to comment on the respondent’s approach to the ACAT proceedings, those before the primary judge and the present proceedings. The respondent has approached all proceedings as if they were criminal proceedings in which he was charged with an offence. An unduly confrontational and aggressive approach has been adopted, which does little credit to him or those representing him. In disciplinary proceedings, the scope of the inquiry will be determined by the nature and scope of the complaint in relation to which the Society seeks an order from the ACAT: see s 419 of the LP Act. It is inappropriate to attempt to confine the scope of the inquiry by semantic or obfuscatory argument. This is a case in point. It involves a simple complaint, which should be addressed on its merits. The respondent claims that he has a “defence on the merits”. He should advance it. Even in the absence of a “defence on the merits”, a confrontational and obstructive approach to disciplinary proceedings, and taking technical issues in an endeavour to bring the complaint to a conclusion otherwise than on the merits, is inappropriate and inconsistent with a practitioner’s obligation to provide reasonable assistance in the conduct of such an inquiry, by reason of their position as officers of the court. In Johns v Law Society of New South Wales [1982] 2 NSWLR 1 at 6, Moffitt P, with whom Hope and Mahoney JJA agreed, said:
The obligation to inform and assist has always been regarded as resting upon a solicitor or barrister whose conduct is the subject of an inquiry whether by the court or the committee, as appears in the court’s observations on numerous occasions, an example being in Re Vernon; Ex Parte Law Society of New South Wales (1996) 84 WN (Pt 1) 136, at p 141.
57. We do not suggest that it is never appropriate to seek judicial review in legal practitioner disciplinary proceedings. For example, there may be cases where the jurisdiction to hear a complaint is in issue, or where procedural unfairness is alleged. However, this Court is loath to entertain applications concerning disputed interlocutory rulings. Practitioners should be slow to commence such proceedings.
58. Legal practitioners are entitled to know the particulars of any complaint against them so that they may inform and assist the body conducting the disciplinary inquiry. Sometimes such assistance will result in the complaint being dismissed; at other times it may not. Although cast as disciplinary proceedings, complaints are primarily brought and determined in the public interest. In considering complaints, neither the Court nor the ACAT is restricted to considering the precise allegation as formulated: Re Robb (1996) 134 FLR 294 at 297 per Miles CJ, Gallop and Higgins JJ. If the respondent had adopted a proper approach to the present complaint, it would have been determined long ago.
| I certify that the preceding fifty-eight [58] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Chief Justice Murrell and Justice Burns. Associate: Date: 6 December 2018 |
Charlesworth J:
59. I have had the benefit of reading the reasons for judgment of Murrell CJ and Burns J in draft. I agree that this appeal should be allowed for the reasons given by their Honours and for the additional reasons given below.
60. The erroneous contention that the “charges” were ambiguous and thus irremediably bad was raised by the respondent’s junior counsel in the course of submissions in reply before the primary judge. Underlying that submission was an assertion that the continuation of the proceedings before the Tribunal would be productive of incurable unfairness because of an alleged change of position by the Society.
61. The contention ought to have been roundly rejected on the basis that it found no expression in the FAOA and, more importantly, there had been no change in the manner in which the Society had advanced its case in the course of the judicial review proceedings. As the joint judgment has identified, the Society has consistently alleged that there existed a direction by HT limiting all costs to $42,000.00. The direction is said to have been given in, and evidenced by, a series of communications.
62. The respondent has sought to seize upon an actual or perceived inconsistency in the communications. His argument is that the letter of 19 July 2011 does not “confirm” the oral conversation of 15 July 2011 (as the Society alleges) because the two are inconsistent: the conversation evidences the inclusion of disbursements in the agreed figure whereas the letter, according to the respondent, does not. Before the primary judge, and on appeal, the respondent sought to transform that apparent inconsistency in the evidence into an incurable defect affecting the proceedings: he complained that he did not know the case he had to meet. I wish to add my own reasons for firmly rejecting that submission.
I agree that the existence and significance of any inconsistency between the conversation of 15 July 2011 and the letter of 19 July 2011 is properly a matter for submissions on the merits of the charges in the ACAT proceedings. The existence of any such inconsistency does not affect the jurisdiction of the ACAT to hear and determine the disciplinary proceedings. Such an inconsistency (if it exists) could provide no proper basis for the primary judge to interfere. It would especially provide no footing for a declaration that, on the evidence as it stood in the ACAT proceedings, the respondent could not lawfully be found guilty of the relevant charges. Counsel led the primary judge into error by submitting otherwise.
64. If there be an inconsistency in the communications, two things may be said about it.
65. The first is that the inconsistency is one that could readily have been identified by the practitioner from the outset of the disciplinary proceedings. The submission that something of significance occurred before the primary judge so as to give the charge (or, more accurately, the particulars of the charge) a different complexion, or so as to make patent a previously latent ambiguity, had no proper foundation.
66. The second is that the respondent has not sought to challenge the evidence adduced by the Society in respect of the fact and content of the various communications upon which the Society relies. Indeed, the fact and content of the same communications is admitted by the respondent in the disciplinary proceedings. No objection was made to the admission into evidence of the various communications, whether on the basis of irrelevance or otherwise.
67. The conduct of the proceedings to date does not suggest genuine confusion on the part of the respondent or his legal representatives. To my mind, the circumstances are consistent with a strategy in which the respondent sought to exploit the terms of the 19 July 2011 letter after the Society closed its case on the evidence, particularly by way of a no case submission.
68. On appeal, Counsel sought to explain away the respondent’s admissions by asserting that the respondent at all times proceeded on the assumption that the terms of HT’s direction must be discerned from the 19 July 2011 letter without regard to the prior conversation and confirmatory file note at all. It is difficult to see how the respondent or his advisers could reasonably have perceived the Society’s allegation in that way. I do not accept the assertion that the respondent and his advisers are genuinely confused as to the case the respondent has to meet. The gravamen of the charge is that the respondent applied more than $42,000 from the trust account towards costs and disbursements, contrary to a direction from the client. It happens that the content of the direction is open to dispute.
69. As has said in the joint judgment, it remains open to the respondent to submit to the ACAT that the 19 July 2011 letter does not support the Society’s case and that all other unchallenged evidence as to the content of HT’s direction may be simply ignored. It is for the Tribunal to determine the merits of any that submission, should it be made.
70. Having discerned appealable error affecting the judgment and orders of the primary judge, this Court should not entertain the arguments arising on the notice of contention. For my part I would, as a matter of discretion, decline to entertain any argument as to whether ACAT’s ruling on the no-case submission (if amenable to review) is affected by jurisdictional error. The ordinary course of disciplinary proceedings in the Tribunal ought not to have been fragmented and so unduly delayed by the respondent’s foray into the Supreme Court, irrespective of whether the Tribunal’s ruling on the no case submission is affected by jurisdictional error.
71. I especially agree with the cautionary comments expressed by the joint judgment at [56] above and will join in orders allowing the Society’s appeal.
| I certify that the preceding thirteen [13] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Charlesworth Associate: Date: 6 December 2018 |
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