The Legal Practitioner v Council of the Law Society of the ACT

[2017] HCATrans 18

[2017] HCATrans 018

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Canberra  No C10 of 2016

B e t w e e n -

THE LEGAL PRACTITIONER

Applicant

and

COUNCIL OF THE LAW SOCIETY OF THE ACT

Respondent

Application for special leave to appeal

KIEFEL CJ
NETTLE J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 10 FEBRUARY 2017, AT 9.28 AM

Copyright in the High Court of Australia

MR T.L. CRISPIN:   May it please the Court, I appear for the applicant.  (instructed by the applicant)

MR N.J. BEAUMONT, SC:   May it please the Court, I appear with MS T.M. POWER for the respondent.  (instructed by Phelps Reid Lawyers)

KIEFEL CJ:   Yes, Mr Crispin.

MR CRISPIN:   Thank you, your Honours.  This is an application for leave brought on relating to two special leave questions.  The first relates to the status of the ACT Civil and Administrative Tribunal with respect to the doctrine of functus officio.  Until the ACAT, as it is colloquially known, was established, there was a fairly straightforward division between tribunals and courts regarding the application of functus officio.

Administrative tribunals held a power to reopen their own proceedings in circumstances where procedural fairness or other errors had been detected; a failure to afford procedural fairness…..whereas, of course, courts were bound by stricter rules and errors could only be corrected on appeal, other than very limited errors such as could be covered by the slip rule.

The rationale for this distinction, which was endorsed by this Court, was formulated by the Supreme Court of Canada in Chandler v Alberta Association of Architects.  The justification for the departure of functus officio was put as being because administrative tribunals could not be appealed from on issues of fact that it would afford injustice to the community if they were unable to seek some form of correction of an obvious mistake.

What makes the ACT Civil and Administrative Tribunal different is that there is an express power to appeal from questions of fact.  So on its face the rationale for the departure from functus officio in Chandler does not apply.  It is the applicant’s submission that which category an institution should be put into is not determined by the use of the word “tribunal” in its name but by an analysis of the ability to appeal from that institution and so ‑ ‑ ‑

KIEFEL CJ:   Well, you would go first to the Act, would you not, that governs the appeal and determine what that says?

MR CRISPIN:   Yes, indeed.

KIEFEL CJ:   You would consider what that says about the status of the decision that has been made and its legal efficacy?

MR CRISPIN:   Yes, and in the case of this body in particular, unlike the great breadth of administrative tribunals elsewhere, the ACT Civil and Administrative Tribunal Act 2008, in section 79, has within it an express provision for appeals on issues of fact. In these proceedings the ‑ ‑ ‑

KIEFEL CJ:   What does that say then about the status of the decision made by the Tribunal?

MR CRISPIN:   In this case, your Honour, it would mean, in our submission, that when the Tribunal attempted to reopen its own proceedings, having proceeded to issue a judgment on penalty without having conducted a hearing on penalty, that it had no ability to do so and the reopened proceedings were hence void; that the only way that an error of that nature could be corrected was by the institution of an appeal.

That analysis was agreed with by the Chief Justice on the appeal at first instance to the Supreme Court.  The Court of Appeal…..In my submission, notwithstanding the Court of Appeal’s view, the reasoning in Chandler on its face is compelling.  How that reasoning is to be applied has not yet been authoritatively explored.  Were this Court to intervene, that would provide an opportunity to clarify those issues to ensure that it would be far easier to determine whether or not the doctrine of functus officio would apply.  At the moment, it would appear, if the Court of Appeal’s decision were to stand, that ACAT would not be bound by the doctrine, but the reasoning for why it would not be bound is fairly opaque.

KIEFEL CJ:   Mr Crispin, was there an appeal provision in Bhardwaj -Minister for Immigration v Bhardwaj 209 CLR 597.

MR CRISPIN:   Appeals were permissible in Bhardwaj but only on questions of law.

KIEFEL CJ:   Did that statutory provision form any part of the reasoning of the Court?  I do not recall that it did.

MR CRISPIN:   Not in express terms.

EDELMAN J:   There was nothing the equivalent of section 56(c)(iii), was there?

MR CRISPIN:   No, not in my recollection, your Honours.  Bhardwaj did cite that passage from Chandler to which I referred and had a discussion in general terms about when appeals were and were not possible, but a key distinction between Bhardwaj and this case is that in Bhardwaj it was clear that on the legislation only appeals on law were permissible and that if there had been an error on facts, even a clear error, then unless there was some exception to functus officio, that injustice would be entrenched and be redressed.

KIEFEL CJ:   What do you make of section 56(c)(iii) to which Justice Edelman has directed your attention?  Does it say anything about the legal efficacy of the decision of the Tribunal?

MR CRISPIN:   In my submission, your Honour, the difficulty with sections like this is that they have typically been interpreted – I withdraw that.  The lens through which sections like that have been seen has depended very much upon whether or not the doctrines have been found to apply more broadly.  It is not unusual for legislation enabling courts to have what would, on their face, appear to be provisions with very broad powers to allow decisions to be reopened.

Those powers have been interpreted quite restrictively where functus officio applies, such as in traditional common law courts.  So, in one sense, the terms of the legislation themselves are of limited assistance, without determining first whether or not the reasoning in Chandler will apply and which way it will apply.  If, for example, it were found to be restricted in the same way as a court, then the section 56 provisions would be interpreted more in lines with the usual approach to slip rules and where there were other very limited exceptions allowing procedures to be reopened.

Another exception I am aware of is where, for example, a party who had been served by way of substituted service and proceedings concluded, was able to establish that despite the substituted service they did not actually in fact receive notice of the proceedings that would entitle the court to set it aside.  If functus officio applies, those principles apply in a very restrictive manner.  If it does not, they become much more permissive and could be interpreted more on their face.

KIEFEL CJ:   The error that occurred in the decision‑making of the Tribunal was jurisdictional error; an error going to jurisdiction, breach of procedural fairness, was it not?

MR CRISPIN:   Yes, in particular that they proceeded to pass a finding on an aspect of the proceedings on which they had not heard submissions.

KIEFEL CJ:   Yes.  Was it possible, do you say, for your client to have sought mandamus of the Tribunal, on account of not having been heard?

MR CRISPIN:   Probably not, your Honour.  If the Chief Justice’s reasoning is to be accepted that once the decision had been made the only recourse available would have been the institution of an appeal, the Tribunal’s hands would have been tied.

NETTLE J:   Would not certiorari have gone to quash the purported decision and mandamus to compel it to be remade?

MR CRISPIN:   Potentially, your Honour, but – that is an interesting question, not one I have considered I must confess, your Honours.

KIEFEL CJ:   That is what we are here for.

MR CRISPIN:   Certainly my understanding of the situation was – certainly on the Chief Justice’s reasoning that there was very little that could be done, particularly if ACAT is treated essentially as an inferior court.  Without some analysis of the substantive legislation that establishes the Tribunal, the only guide one has as to what category of entity this Tribunal is to be treated as is the name. 

It is our submission that if the Territory establishes a body which functions as a court then it bearing the name of a tribunal is immaterial.  If it functions as a court, if it can be appealed from as a court then it is a court.  If the legislature intended it to function as a tribunal then the actual legislation should be put in the same position as other tribunals.  The second leave question, your Honours, I am not certain but I suspect this may be the one that attracted more of your Honours’ curiosity ‑ ‑ ‑

KIEFEL CJ:   Yes.

MR CRISPIN:   ‑ ‑ ‑ relates to the degree of delay involved in these proceedings.

KIEFEL CJ:   How does that work in your favour?  How is that a legal ground of appeal?

MR CRISPIN:   It goes to whether or not proceedings can be fair when they are infected by an excessive delay.  We have sought to draw your Honours’ attention to a decision by the Supreme Court of Canada of R v Jordan that was published this year – sorry, I withdraw that – last year, early last year.  Jordan was a decision where a criminal proceeding had been infected by a high degree of institutional delay.  This included delays both by police, prosecutors and courts.  Now, in fairness in Jordan there was a specific provision of the Canadian Constitution that provided for a swift trial in addition to a fair trial.

KIEFEL CJ:   All that gives rise to some form of legal right, presumably.

MR CRISPIN:   It does.

KIEFEL CJ:   Therefore the court has a power and possibly a duty to exercise – where would the power or duty derive from here?

MR CRISPIN:   The reasons ‑ ‑ ‑

NETTLE J:   It could only be a stay for lack of fair trial, could it not?

MR CRISPIN:   Yes, indeed, and the reasoning that is adopted in Jordan, though it does invoke this other section, it is clear that their Honours considered the concept of a timely trial and a fair trial to be inseparable from each other.

NETTLE J:   But if you have to put it here on the basis of a stay because you cannot get a fair trial, you run up against Dupas (No 3), do you not?

MR CRISPIN:   If we were seeking a stay that would be true.

NETTLE J:   You do not have a constitutional right like they have in Canada, so you have to put it on some other basis.

MR CRISPIN:   Yes.  What we say is different about this is that under the Canadian scheme it was not a stay of the proceedings that were sought.  These were concluded proceedings that were then overturned on the basis that excessive delay was an error because, by being excessive, it had breached the obligation to ensure that there was a fair trial.  A trial that is not fair, we think it is uncontroversial to say, is in error.

NETTLE J:   It is a miscarriage of justice and you would appeal against it on that basis.

MR CRISPIN:   Yes, indeed.  What is not all about this, about the Jordan decision, is that the delay itself constituted the miscarriage of justice.  There was little question that the accused in that case was guilty.  There was little question that the trial was conducted in an otherwise fair manner.

NETTLE J:   If you put it into Australian terms you would need to demonstrate that the delay had resulted in a miscarriage of justice.  The mere fact of delay of itself, no matter how long it was, would not mean that there was a miscarriage of justice.  You would need to demonstrate why the delay had resulted in such.

MR CRISPIN:   Again, your Honour, the reason that was adopted in Jordan their Honours took the firm view that the miscarriage could be inferred from the delay itself, that there was an acceptable timeframe for

proceedings to take and that, if exceeded, that miscarriage would be evident.  But, in any event, even if your Honour is not persuaded of that point, the way that the Legal Profession Act operates in the ACT is fairly curious. 

A recommendation is given by the Tribunal.  That recommendation is appealed and goes through this process.  A final application to the Supreme Court to exercise its jurisdiction to remove from the roll does not take place until after that has all been done.  What authority or what credence the Supreme Court gives to a recommendation from a tribunal is not clear on its face. 

There has not yet been a contested strike‑off application under the new Act.  What has been clear is that even where strike‑off applications have been brought by consent the Supreme Court has taken the view that it nonetheless needs to undertake an independent assessment of the facts.  That would mean that, by reason of these delays, if those proceedings were commenced against my client this year it would be 10 years since some of the allegations had been made and eight years since the ones which ultimately led to the institution of proceedings.

If the Supreme Court is of the view that it needed to hear those proceedings itself, then the normal effects that one would expect of that amount of time on memory, on the destruction of documents and so forth would be quite burdensome.

EDELMAN J:   But that is not the trial which you allege to have been unfair.

MR CRISPIN:   That is certainly true, although it would be unfair in the final rub, but even as it stands, a legal practitioner who has been denied a practising certificate while this is all sorted out has been put into a financially ruinous position, unable to derive any income from their business for a period of eight years, while having to fund appellate proceedings and would then be in a position of having to defend themselves against proceedings to have them struck off, having already been depleted of resources.

KIEFEL CJ:   I see the time, Mr Crispin.

MR CRISPIN:   Thank you, your Honours.

KIEFEL CJ:   Yes, Mr Beaumont.

MR BEAUMONT:   Thank you, your Honours.  Could I deal first with the first proposed ground which I will call, for convenience, the Bhardwaj ground and begin by reminding your Honours that there were two alternative bases upon which the majority of the Full Court decided in the Law Society’s favour below and you will find those alternative bases in the application book, the ultimate conclusions at page 141, paragraph 80 and page 142, paragraph 81 and these are only the ultimate conclusions. In relation to the applicability of Bhardwaj the ultimate conclusion in 80 is that:

There is nothing in the ACAT Act in our opinion, to suggest that it is the intention of the legislature that such a decision by the ACAT is to be given legal effect unless and until it is set aside.

So that their Honours, the majority, held that accordingly, as in Bhardwaj, the ability of the Tribunal to set aside its own orders was not displaced by the statutory scheme. Over at 81 and possibly, logically anterior to it, their Honours also say that:

even if we are wrong in the above analysis, we would respectfully disagree . . . that the circumstances . . . did not constitute “extraordinary circumstances” –

and set out their reasons for that, as discussed before in paragraph 81, in short compass, that there had been a complete failure to conduct a hearing on penalty, a complete failure to hear submissions or evidence on the issue.

KIEFEL CJ:   Did their Honours identify why it was that these circumstances were extraordinary?

MR BEAUMONT:   Well, firstly, in summary in paragraph 81 they say that the fact:

that by reason of administrative error the practitioner had not been given an opportunity to present evidence or argument before . . . Such a complete failure to accord a party procedural fairness cannot, in our opinion, be characterised as anything other than extraordinary.

KIEFEL CJ:   It is a breach of procedural fairness but what do you say is intended by the reference to “extraordinary circumstances”?

MR BEAUMONT:   For present purposes, a circumstance which is, on any view, out of the ordinary course of litigation.  Now, I accept that you cannot in advance come up with a parsing of the words to cover all future circumstances, but where – and there is reference to this – the parties agreed that there would be a separate hearing on penalty – there ordinarily at least is ‑ if both parties put and accepted that as a matter of procedural fairness that was required, there is a provision in the ACAT Act ‑ I think it is section 6 – requiring the ACAT to forward procedural fairness.

But as in Bhardwaj, this was no mere denial of procedural fairness; this was a total breakdown – and I do not say that hyperbolically – of the normal and proper processes of the Tribunal, notwithstanding that the parties had agreed that there would be a separate hearing on penalty and at least the usual position, the usual practice, is for there to be evidence and submissions on penalty.

KIEFEL CJ:   In the ACAT Act there is a provision which obliges the Tribunal to afford procedural fairness, is there?

MR BEAUMONT:   Yes, section 7, which is at page 168, Ms Power reminds me, of the application book.  At about point 5 on the page:

the tribunal must –

. . . 

(b)      observe natural justice and procedural fairness.

We do not submit and we do not have to submit that every breach of the rules of procedural fairness are ipso facto extraordinary; it is rather the totality of the circumstances here that the majority held was extraordinary.

EDELMAN J:   It was the same members of the Tribunal who determined the application in the presence of the practitioner as the Tribunal which determined it in his absence.

MR BEAUMONT:   Yes, it was, your Honour, at that point.  That is so because what they did was there was a hearing on liability, which you have heard something about.  The trial ran for about a week and then there were submissions early the next year on liability and no one said a word about penalty.  At some point there was reference by Mr Burnside of Queen’s Counsel to, in some form, a later hearing on penalty.  When that same Tribunal, to respond to your Honour Justice Edelman’s question, delivered its judgment, it did not just deliver it on liability; it did so on penalty as well.

EDELMAN J:   Was it ever suggested that it might not be extraordinary within the meaning of the Act for a rehearing of a matter to be conducted by the same members who had already determined the matter in the absence of a practitioner?

MR BEAUMONT:   There was one of the grounds of appeal before the Chief Justice, the first layer of appeal, the first appeal was that in the event that appeal ‑ or part of it was that if the matter were – sorry, let me take that in stages.  Firstly, it was put to the Tribunal that some other tribunal should hear the penalty matter and, secondly, on behalf of the practitioner and secondly that was a ground of appeal before the Chief Justice at first instance.  However ‑ and their Honours observed this ‑ that contention was not pursued before the Court of Appeal and that fact is recorded by their Honours at page 142, paragraph ‑ ‑ ‑

EDELMAN J:   It was never suggested that that fact might feed into the consideration of what is “extraordinary”.

MR BEAUMONT:   I do not believe it was, your Honour.  It certainly was not so suggested by our side and I think I am right in saying it was not suggested by Mr Crispin.  He is agreeing.  So, the starting point is, we say there is not actually a challenge in the proposed ground of appeal to that alternative and logically perhaps anterior basis of decision, namely, that there were extraordinary circumstances, and even if one might ‑ and we do not concede this ‑ potentially take a different view as to whether these particular circumstances were extraordinary - firstly, that is not raised in the ground of appeal and, secondly, we would submit, it is not a special leave point. 

It is a question of fact, discretion and assessment which would not establish any principle, in our submission, even if it were ventilated on any appeal.  So we do put, and we continue to put it as high that in truth that alternative basis is not in truth challenged in the proposed ground of appeal, but if you are against us on that we submit there is no special leave point there.

For good order, and I do not shy away from it, even if we were to focus solely on the Bhardwaj ground, which for the reasons I have just submitted, would not arise, that is to say, solely on the proposition that there is a question as to whether the ACAT can do what it did in reliance on Bhardwaj, a couple of things I should say:  the first is that there was the capacity in the legislation in Bhardwaj to apply for judicial review of the first decision.

However, the ability to complain about a denial of procedural fairness or natural justice was excluded but that is why in Bhardwaj, part of the reason why their Honours said, for example, the Chief Justice said that, yes, there was a denial of procedural fairness but there was more to it than that.  There was, in truth, a failure to exercise jurisdiction at all.  They just did not conduct the hearing, the Immigration Review Tribunal simply did not conduct the hearing that they were supposed to conduct.

KIEFEL CJ:   I think it was Justice Hayne who pointed to the possibility of mandamus, and as Justice Nettle has pointed out, that in this case, if one puts the effect of the particular extraordinary circumstance provision to one side there was arguably a possibility of the applicant seeking certiorari and mandamus, posited upon the obligation to provide procedural fairness.

MR BEAUMONT:   Yes, we respectfully adopt that, your Honour the Chief Justice.  The Supreme Court had power to issue writs in the nature of both of those forms of relief and there would have been – so the contention that – we accept that.

KIEFEL CJ:   But then notably the legislation in Bhardwaj did not have the particular provision that formed the alternative basis for the Court of Appeal’s decision.

MR BEAUMONT:   No, it did not, but in a sense that simply means that you could either look – and I think it is fair to say that the Court of Appeal, the majority looked at it ‑ 56(c)(iii), either it is the only pathway, in which case they held circumstances were extraordinary or, in the alternative, it and provisions around it are not a sufficient displacement of the principle that a tribunal or, indeed, in theory a court or indeed superior court – I have in mind decisions such as Cameron v Cole – can, if they have denied procedural fairness in the sense of failed to give somebody a hearing, fix the problem themselves rather than wait for an appeal court to tell them to do it for them.

So whichever pathway, there is no reason to doubt that the Tribunal had power to do what it did and no reason, we respectfully submit, to doubt the correctness on either or both limbs of the Court of Appeal’s reasons in that regard.

KIEFEL CJ:   Yes.

MR BEAUMONT:   Unless I can otherwise assist, that is all I wish to say about the first ground.  As to the second ground, we respectfully adopt what has fallen from your Honours, including Justice Nettle, that no application, as we point out in our written submission, was made to stay these proceedings on the ground that a fair trial could not be attained and the propositions emerging from the recent decision of the Supreme Court in Jordan emerged because of a completely different statutory scheme, a charter of rights which does not have a relevant equivalent here.  Unless I can otherwise assist, those are our submissions.  If it please the Court.

KIEFEL CJ:   Thank you, Mr Beaumont.  Do you have anything in reply, Mr Crispin?

MR CRISPIN:   There are a couple of short points, your Honours.  My friend was right to point out that it was the same tribunal that heard the re‑heard penalty hearing but it was not the whole of that tribunal.  The senior judicial member had resigned his commission, so it was only heard by the two junior members.

My friend made some points about the alternative basis on which the Court of Appeal grounded its conclusion.  In my submission, that is not an answer to the problem.  If the Tribunal is bound by the doctrine of functus officio, then both bases that are put forward need to be interpreted in that light.

Extraordinary circumstances for a court which is bound by functus officio might well encompass the usual sorts of exceptions that one would expect such as I indicated before, the slip rule or where a substitute service had subsequently proven to have been ineffective.  These events are properly unusual, properly extraordinary. 

Denials of procedural fairness, even fairly extreme ones, though lamentable when they appear, in my submission, are though not a common feature of the behaviour of tribunals, they are not nearly so unusual or extraordinary as those other exceptions.  So, in my submission, pointing to the alternative basis only complicates the problem further.  There is another provision to be interpreted:  the role of the doctrine in interpreting that provision is still open to question.

The other thing I should point out ‑ yes, also with regards to my friend’s argument about a stay having been sought, the difficulty with taking that course in this case is that a great deal of the delay, in fact the bulk of the delay, has been in the course of appellate proceedings which were brought by the applicant.  Were an appeal such as that to be stayed, that is of no assistance to him, the unfairness continues for even longer.

There may be some merit in seeking a stay of subsequent strike‑off proceedings if they are implemented as is expected, and it is not possible to seek a stay of proceedings which have not been implemented.  In particular, I would draw your Honours’ attention to the fairly extraordinary timeframe in handing down both the original decision judgment and the Court of Appeal judgment.  The prejudice, one certainly cannot seek a stay of a decision that has been reserved.

KIEFEL CJ:   Thank you, Mr Crispin.

We are of the view that there is insufficient reason to doubt the correctness of the conclusion reached by the Court of Appeal with respect to the applicant’s first ground of appeal.  The second ground has no prospects of success.  Special leave is refused with costs.

The Court will now adjourn to reconstitute.

AT 10.02 AM THE MATTER WAS CONCLUDED