The Legal Practitioner v Council of the Law Society of the ACT
[2011] ACTSC 207
•23 December 2011
HUMAN RIGHTS ACT
THE LEGAL PRACTITIONER v COUNCIL OF THE LAW SOCIETY OF THE ACT
[2011] ACTSC 207 (23 December 2011)
ADMINISTRATIVE LAW – particular tribunals and bodies – ACT Civil and Administrative Tribunal – internal appeal – referral of appeal to Supreme Court – nature of proceedings – whether appeal by rehearing or hearing de novo.
PROFESSIONS AND TRADES – lawyers – discipline – whether appeal referred from ACT Civil and Administrative Tribunal should be heard by Full Court.
ACT Civil and Administrative Tribunal Act 2008 (ACT), ss 41A, 44, 79, 80, 81, 82, 83, 84, 85, 86 94
Court Procedures Rules2006 (ACT), rr 5051, 5052
Legal Profession (Solicitors) Rules 2007 (ACT), rr 1.1, 1.2, 39.1
ACT Civil and Administrative Tribunal Procedure Rules 2009 (No 2) (ACT), r 21
Legal Profession Act 2006 (ACT), s 419, 420, 425, 462, ch 4
Judiciary Act 1903 (Cth), s 44
Supreme Court Act 1933 (ACT), ss 11, 13, 37E
Human Rights Act 2004 (ACT), s 21
ACT Hansard, 8 May 2008
The Appellants v Council of the Law Society of the ACT and Anor [2011] ACTSC 133
Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149
Council of the Law Society of the Australian Capital Territory v The Legal Practitioner [2010] ACAT 2
Council of the Law Society of the Australian Capital Territory v The Legal Practitioner [2010] ACAT 45
Council of the Law Society of the Australian Capital Territory v The Legal Practitioner [2010] ACAT 46
The Legal Practitioner v Council of the Law Society of the Australian Capital Territory [2011] ACTSC 110
Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616
Robinson v Shirley (1982) 149 CLR 132
McCauley v Hamilton Island Enterprises Pty Ltd (1986) 61 ALJR 235
Hamers-Coogan and Commissioner for Social Housing in the ACT [2011] ACAT 31
ACT Medical Board v Javaid [2011] ACAT 65
Rudder v ACT Planning and Land Authority and Ors [2010] ACAT 24
The Medical Practitioner and The ACT Medical Board [2010] ACAT 63
CDJ v VAJ (1998) 197 CLR 172
Eastman v The Queen (2000) 203 CLR 1
In re Davis (1947) 75 CLR 409
Re A Barrister and Solicitor; Re Legal Practitioners Ordinance 1970 (ACT) (1979) 39 FLR 467
Re Guild (1979) 32 ACTR 13
Re Robb and Anor (1996) 134 FLR 294
Preiss v General Dental Council [2001] 1 WLR 1926
Delcourt v Belgium (1970) 1 EHRR 355
Robb and Anor v Law Society of the Australian Capital Territory (1997) 72 FCR 225
The Law Society of the Australian Capital Territory and The Legal Practitioner [2011] ACAT 57
Council of the ACT Law Society and The Legal Practitioner [2010] ACAT 73
No. SCA 86 of 2010
Judge: Refshauge J
Supreme Court of the ACT
Date: 23 December 2011
IN THE SUPREME COURT OF THE )
) No. SCA 86 of 2010
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN: THE LEGAL PRACTITIONER
Appellant
AND:THE COUNCIL OF THE LAW SOCIETY OF THE ACT
Respondent
ORDER
Judge: Refshauge J
Date: 23 December 2011
Place: Canberra
THE COURT DIRECTS THAT:
The appeal be heard as a review as under s 82(b) of the ACT Civil and Administrative Tribunal Act 2008 (ACT), that is as a rehearing, subject to r 5052 of the Court Procedures Rules 2006 (ACT).
The appeal be heard by a single judge of the Court.
Whilst the establishment of the ACT Civil and Administrative Tribunal (the ACAT) was a welcome reform and remains a valuable part of the administration of justice in this Territory, there continues to be a flow of cases which raise the need to explore aspects of the legislation establishing the ACAT, the ACT Civil and Administrative Tribunal Act 2008 (ACT) (the ACAT Act), which are perhaps not as clear in practice as they may appear in theory. See, for example, The Appellants v Council of the Law Society of the ACT and Anor [2011] ACTSC 133 (the Costs Case).
In particular, the nature and extent of the interface between the ACAT and this Court is by no means as clear as it could be.
In introducing the ACAT Act, the Attorney-General stated in his Presentation Speech (ACT Hansard, 8 May 2008, p 1579):
While appeal from the tribunal to the Supreme Court will be allowable – with, of course, the leave of the court – to reduce the incidence of appeals to the Supreme Court and to enable the tribunal to best control the quality of its decisions, the legislation provides for internal review of tribunal decisions by presidential members in the first instance.
While that is an admirable approach, the ACAT Act as enacted has not restricted such involvement of the Supreme Court as substantially as those words might suggest.
For example, as in this case, s 83 of the ACAT Act requires that an internal appeal within the ACAT be removed to this Court if both parties consent and, in addition, the appeal may be so removed if the ACAT “considers it appropriate”, a term providing wide discretion for the transfer. Appeals have been removed in a number of cases, including the Costs Case and this case.
In order to understand the process and what is being transferred, it is necessary to set out briefly the process that is referred to in that provision.
Section 79 of the ACAT Act, provides for appeals within the ACAT. It provides relevantly:
(1)This section applies if –
(a)the tribunal has decided an application (the original application); and
(b)the original application was not an appeal from a decision by the tribunal.
...
(3)A party to the original application may, by application, appeal the decision to the tribunal on a question of fact or law.
The effect is to give a party to any application to the ACAT a right of a full appeal within the ACAT (except applications under certain legislation specified in s 79(2), not presently relevant).
Section 80 of the ACAT Act empowers the appeal president (defined in s 94(1)(b) of the ACAT Act), upon appropriate notice, to dismiss an appeal where the “subject matter of the appeal is substantively similar to other appeals rejected by the tribunal”.
Section 85 empowers the appeal president not to deal with the appeal if he or she considers that the appeal “could be dealt with more conveniently or effectively by the Supreme Court; and ... it would be appropriate for the appeal to be dealt with by the Supreme Court”.
Section 81 regulates the constitution of the ACAT to hear the appeal.
Section 82 then provides:
An appeal tribunal may, as the tribunal considers appropriate, deal with an appeal –
(a)as a new application; or
(b)as a review of all or part of the original decision on the application by the tribunal.
The drafters have, for reasons to which I am not privy, decided not to use terms that have relatively clear meanings, such as “hearing de novo” and “rehearing”. These terms have received considerable judicial interpretation and, though the precise boundaries of their meaning may not be exact, are tolerably well understood. See Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149 (at [67] to [78]).
It seems to me that the appeal in s 82(a) is what is usually called a “hearing de novo” and that the appeal in s 82(b) is what is usually called a “rehearing”.
The effect of these provisions is that what is removed under s 83 of the ACAT Act, is the appeal commenced under s 79 which has not otherwise been disposed of under ss 80 and 85.
In the Costs Case, I made some reference to the position of the Supreme Court on the transfer of an appeal under s 79 (at [17]). I said:
The removal of an appeal from the ACAT into the Supreme Court ... is, in this court, simply the exercise of its original jurisdiction in place of the internal appeal process of the ACAT. The ACAT Act is not helpful in deciding the nature of the proceedings, but it seems to me that, in this instance, this Court is hearing the appeal from the decision of the ACAT on the original application that the ACAT in its appellate jurisdiction under Div 8.1 of the ACAT Act would otherwise have heard and it is, therefore, the exercise of the appellate jurisdiction of the ACAT but within the jurisdiction of a single judge, as the appellate jurisdiction of this Court is exercised by a single judge from a decision of a Magistrate. The hearing should be conducted within the procedural framework of this Court. Fortunately, no specific issue arose out of this question.
Unfortunately, two further specific issues have now arisen about those proceedings with which I shall now deal.
The course of the proceedings
In order to understand the first issue, some explanation of the proceedings that were before the ACAT is desirable.
In this case, the Council of the Law Society of the Australian Capital Territory (the Law Society Council) had laid complaints against the Legal Practitioner: on 27 August 2008 (No LP 6 at 2008), alleging a breach of Rule 39.1 of the Legal Profession (Solicitors) Rules 2007 (ACT), and on or about 18 June 2009 (No LP 1 of 2009), alleging breaches of all or one or more of Rules 1.1, 1.2 and 39.1 of those Rules.
It is not necessary for the purposes of these reasons to detail the complaints or the proceedings, save to say that the ACAT made findings on 1 February 2010, namely that, on the first complaint, the Legal Practitioner was found guilty of unsatisfactory professional conduct and, on the second complaint, he was found guilty of professional misconduct.
It is necessary, however, to say something more about some parts of the proceedings. The ACAT described this in its reasons, Council of the Law Society of the Australian Capital Territory v The Legal Practitioner [2010] ACAT 2, (at [14]):
In relation to both complaints, the Practitioner, despite having filed affidavits sworn by him, chose not to give affidavit evidence in the proceedings, or to submit himself to cross-examination. Additionally, with the exception of the evidence led from the Practitioner’s three colleagues and DC’s client, none of the affidavits of the remaining witnesses were read and none of those witnesses were called. In respect of both the Practitioner and the other witnesses in his case, no evidence was lead to explain his failure to give evidence or the failure to call the remaining witnesses.
This was subsequently described by the ACAT as the Legal Practitioner’s “conscious and deliberate tactical decision not to give evidence himself” at the hearing: Council of the Law Society of the Australian Capital Territory v The Legal Practitioner [2010] ACAT 45 (the Reopening Decision) (at [13]).
I will return to this issue.
After the findings of unsatisfactory professional conduct and of professional misconduct, the Legal Practitioner appealed against those findings of the ACAT under s 79 of the ACAT Act and, on 31 March 2010, the appeal president struck the appeal out as incompetent.
The proceedings were then listed, on 27 May 2010, for hearing on penalty, but, on 19 May 2010, the Legal Practitioner gave notice that he would seek leave to re-open the proceedings. The purpose of the application for leave to re-open appears to have been so that the Legal Practitioner could present evidence to the ACAT which he had failed or decided not to present at the hearing of the substantive applications. He could, of course, then be cross-examined. The evidence to be led was said to be particularly directed at one issue on which the ACAT had found against the Legal Practitioner.
No explanation was offered as to why the evidence had not been adduced at the hearing. It appears that the ACAT accepted the submission of the Law Society Council that the evidence as presented had no probative value. The application for leave to re-open was made but refused on 27 May 2010. See the Reopening Decision.
The ACAT then proceeded to consider penalty.
On 4 August 2010, the ACAT ordered that the local practising certificate of the Legal Practitioner be cancelled and recommended that his name be removed from the local roll of practitioners. See Council of the Law Society of the Australian Capital Territory v The Legal Practitioner [2010] ACAT 46.
On 13 August 2010, the ACAT ordered that the Legal Practitioner pay the costs of the Law Society Council on a party-party basis. There do not seem to be any published reasons for this decision.
The Legal Practitioner then appealed against all the orders made against him, that is those made on 1 February 2010 (see [21]), 31 March 2010 (see [24]), 27 May 2010 (see [26]), 4 August 2010 (see [28]), and 13 August 2010 (see [29]).
On 13 September 2010, the general president of the ACAT ordered “on the joint application of the parties, that this appeal be removed to the Supreme Court”.
The first issue
The appellant, the Legal Practitioner, has taken the view that the appeal in this Court, as removed, should proceed as a hearing de novo. He frankly says that he made a decision not to give evidence at the hearing of the original applications, that he made an error in doing so and now wishes to give evidence which, of course, he can only do without leave if the appeal is conducted as a hearing do novo.
The respondent, the Law Society Council, takes a different view and submits that the appeal is to be conducted as a re-hearing. It submitted that, unlike an appeal from a decision of the Law Society Council (as in The Legal Practitioner v Council of the Law Society of the Australian Capital Territory [2011] ACTSC 110, where such an appeal was held (at [18] to [26])) to be a hearing de novo), an appeal from a decision of the ACAT was “at the opposite end of the spectrum” of the range of kinds of appeal proceedings identified in Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 (at 618-25).
This, in part, was because, it was submitted, the ACAT undertakes, in its hearings, effectively the same function as that of a court at first instance: it is bound by the rules of evidence (s 420 of the Legal Profession Act 2006 (ACT)), conducts a full hearing in which a transcript is taken, provides for legal representation of the parties (s 41A of the ACAT Act) and requires the Law Society Council to bring a particularised charge (s 419(3) of the Legal Profession Act). In written submissions, the Law Society Council referred in some detail to the relevant statutory provisions of both the Legal Profession Act and the ACAT Act showing the powers and procedures which the ACAT exercised in such hearings. I do not need to set them out in these reasons.
Those indicia, it was submitted on behalf of the Law Society Council, point to the conclusions that the processes of the ACAT in deciding applications such as those considered by the ACAT in this case are, for all intents and purposes to be equated with a court at first instance. Hence any appeal should be by rehearing.
Consideration of the first issue
The answer to the first issue depends on the nature of the removal of the appeal to this court under s 83 of the ACAT Act; that is to say, whether the removal thereby effected merely a replacement of one deciding body with another or is it a truncation of the process, as it were “leapfrogging” the internal appeal, so that the internal appeal is overtaken by this process to become converted into an appeal to the Court under s 86 of the ACAT Act.
The answer is not easy to determine because of the multifarious ways in which the proceedings from the ACAT can end up in the Supreme Court:
(a) removal under s 83;
(b) referral of questions of law under s 84;
(c) refusal of appeal hearing under s 85 and invitation to appeal under s 86;
(d) direct appeal under s 86.
In many ways, s 83, especially s 83(2), is very similar to s 85, though, unlike s 83(2), s 85 permits the appeal president unilaterally to make the decision not to deal with the appeal. There is, however, a significant difference, in that s 83 refers to “removal” of the proceeding to the Supreme Court (either an application or an appeal) and, presumably, once removed, the Supreme Court has jurisdiction and must exercise it, whereas in s 85 (and, therefore, s 86) the appellant has actually to take the step of commencing an appeal.
This difference seems to me to make it clear that there is a difference in what is occurring. In my view, s 83 simply requires that, once the proceedings are removed, the Supreme Court exercise the jurisdiction of the ACAT, whereas s 86 is a true appeal to this Court. I add that, insofar as the latter, the appeal under s 86, is concerned, the approach of the Law Society Council is, in my view, correct and the appeal will be a rehearing.
The submissions of the Law Society Council as to the nature of the removed proceedings would be persuasive were the matter not otherwise dealt with by the ACAT Act.
In respect of s 83, however, what is removed is the appeal. It was not an appeal to this Court under provisions such as ss 84 or 86 of the ACAT Act. It was simply the replacement of one body (the appeal tribunal in the ACAT) with another (this Court) to decide the appeal.
This is reinforced by the fact that s 83 applies not just to appeals but also to applications, that is first instance hearings on which no decision of the ACAT has been made. It would not make sense to speak of the removal of applications as appeals to the Supreme Court or as rehearings. The removal in this context must clearly be the replacement of one decision-making body with another. If that is so, for an application, there is no reason to suggest that an appeal, the removal of which is dealt with in the same section, should be any different.
The removed appeal (or, indeed, a removed application) will, however, attract the statutory provisions applicable to hearings of such proceedings in this Court. Thus, for example, r 5052 of the Court Procedures Rules 2006 (ACT) is made applicable by
r 5051. While r 5052(1)(c) may seem somewhat inconsistent with the applicability of s 82 of the ACAT Act, I do not consider that provisions in the Court Procedures Rules can override the statutory provisions in the ACAT Act itself, though they do make, in my view, for some unclarity about the way in which the removal operates.
It seems to me that there is some limited assistance to be gained from the notion of a remitter under s 44 of the Judiciary Act 1903 (Cth), though, of course, that provision involves the exercise of a much wider discretion. Nevertheless, as Brennan J (as his Honour then was) said in Robinson v Shirley (1982) 149 CLR 132 (at 136), though in the context of substantive, rather than procedural law:
... the exercise of the discretion [to remit under s 44 of the Judiciary Act] ... is intended to facilitate the course of litigation rather than to enhance or diminish a plaintiff’s rights or correspondingly alter a defendant’s obligations.
As Mason J (as his Honour then was) said in McCauley v Hamilton Island Enterprises Pty Ltd (1986) 61 ALJR 235 (at 238), the court to which the High Court remits the matter upon remitter “relevantly stands in the jurisdictional shoes” of the High Court.
It seems to me that s 83 of the ACAT Act operates, a little like s 44 of the Judiciary Act, as a statutory power to cause this Court to exercise the jurisdiction of the appeal tribunal of the ACAT. The right of the party to have fair consideration of the statutorily provided alternative method of hearing the appeal under s 82 of the ACAT Act should not be denied by the removal.
The removed appeal, then, must attract the relevant provisions of the ACAT Act which directly apply to such a proceeding, though, of course, the Court has and may apply the procedures applicable in this Court and its processes so long as they are not inconsistent with or ousted by the relevant legislation. Thus, for example, I considered in the Costs Case (at [150]), that, although the Court had ordinarily an undoubted power to make a costs order, when exercising the power of the appeal tribunal under a referral through s 83 of the ACAT Act, it probably did not have that power.
On the other hand, in this case, I consider that this Court, as, effectively, the appeal tribunal, is obliged to make the decision under s 82 of the ACAT Act as to how the appeal should be conducted, if it has not been made by the ACAT prior to removal.
The terms of s 82 of the ACAT Act have been set out above (at [12]). It gives the “appeal tribunal” a choice as to the method by which the appeal should be heard.
The Law Society Council submitted that this section “has no application here (even if it could otherwise apply) because the parties jointly applied for the matter to be removed to the Supreme Court.”
I do not accept that. It seems to me that this is part of the jurisdiction that the Court exercises on removal.
Thus, in my view, the court can decide either to conduct the appeal as a hearing de novo or as a re-hearing.
The question then is on what basis should I do so. I have looked at a number of decisions of the ACAT where a decision as to the nature of the appeal under s 82 of the ACAT Act was made, including Hamers-Coogan and Commissioner for Social Housing in the ACT [2011] ACAT 31, (at [9] to [10]), ACT Medical Board v Javaid [2011] ACAT 65 (at [5]), Rudder v ACT Planning and Land Authority and Ors [2010] ACAT 24 (at [6]) and The Medical Practitioner and The ACT Medical Board [2010] ACAT 63 (at [29]).
Few reasons were given for the choices there made. I am not able to identify any particular jurisprudence that has been developed within the ACAT as to how that decision is made. It may be that, where the conduct of the original hearing of the application was such that there was a complete or substantial failure of process, the appeal should be conducted as a hearing de novo. Additionally, where a party has not appeared at the hearing of an application, there appears to be no provision to set aside a decision made under s 44(2)(d) or (e) of the ACAT Act (cf r 1128 of the Court Procedures Rules); the absent party would have to appeal the decision which would, no doubt, usually be heard as a hearing de novo under s 82(a) of the ACAT Act.
As no significant submissions were made to me on this aspect and as, for the reasons set out below, it does not seem necessary for me to determine the general grounds for making such a decision in order to decide the question on these proceedings, I shall not set out any guidelines or considerations to be taken into account when such a decision is made. That will have to await another day.
In this case, the Legal Practitioner was quite frank that he sought a hearing de novo (that is, that the appeal be dealt with under s 82(a) as a new application) so that he could give evidence which he had earlier decided not to give. He had not, as noted above (at [21]), given evidence at the original hearing of the application. That appears to have been a forensic decision he or his counsel or both had made at the time.
Importantly, later in the proceedings, the Legal Practitioner sought leave of the ACAT to re-open the proceedings so that he could give evidence (see [25] above). The application was refused in the Reopening Decision. This is one of the decisions against which the Legal Practitioner appeals.
It seems to me that to permit the appeal now to be heard as a new application would be to decide, in advance, the appeal in respect of the decision of the ACAT not to permit the Legal Practitioner to re-open. I should not do that.
If the decision of the ACAT to refuse that application is set aside on appeal, the Legal Practitioner will clearly then be allowed to give evidence. I do not consider, however, that in exercising the power I have held that I have under s 82 of the ACAT Act, I should thereby decide one of the issues on the appeal.
Accordingly, the decision on this issue is:
(1) that the Court, when exercising jurisdiction under s 83 of the ACAT Act, has the powers of the appeal tribunal and, in particular, the power to decide the nature of the appeal under s 82 of that Act; and
(2) the appeal in this case should proceed as a review of the original decision on the application by the ACACT under s 82(b) of the ACAT Act.
I note that, in the ACAT, it has been held that on a review under s 82(b) of the ACAT Act, the appeal tribunal may receive additional evidence. See, for example, Hamers-Coogan and Commissioner for Social Housing in the ACT (at [10]). While there is no express power to that effect in the ACAT Act, r 21(c) of the ACT Civil and Administrative Tribunal Procedure Rules 2009 (No 2) (ACT), does so provide. There does, of course, need to be statutory authority for the reception of evidence on appeal: CDJ v VAJ (1998) 197 CLR 172.
The Court Procedures Rules have made similar provision on removal under s 83 of the ACAT Act so far as this Court is concerned. Thus r 5052(1)(c) permits the court in such proceedings to receive further evidence “on special grounds”. In this, it seems to me, the powers of this Court on the hearing of an appeal are little different to those of the appeal tribunal of the ACAT, strengthening my view.
Should the Legal Practitioner seek to adduce evidence on the review, the Court will have to decide that matter.
The second issue
The Law Society Council also sought to have the matter referred to a Full Court of this Court under s 13 of the Supreme Court Act 1933 (ACT). This was because the recommendation of the ACAT, namely the second penalty order made in the proceedings (Council of the Law Society of the Australian Capital Territory v The Legal Practitioner [2010] ACAT 46), being a recommendation that the name of the Practitioner be removed from the local roll pursuant to s 425(3) of the Legal Profession Act, had to be made to a Full Court. The ACAT has no power itself to order removal of a practitioner’s name. Such orders can only be made by this Court, whose inherent jurisdiction and powers are unaffected by ch 4 (Complaints and discipline) of the Legal Profession Act: s 462.
Although s 11 of the Supreme Court Act does not expressly provide that the exercise of the inherent jurisdiction of the Court in respect of the discipline of legal practitioners must be exercised by a Full Court, that has always been the practice.
The inherent jurisdiction of the Court to discipline practitioners is, however, an incident of the power to admit practitioners: In re Davis (1947) 75 CLR 409 (at 414). As s 11 of the Supreme Court Act requires practitioners to be admitted by a Full Court, it seems to me that discipline must, in the exercise of the inherent jurisdiction and in the absence of other statutory provision, be exercised by a Full Court. Thus, were I to refer the matter, the Full Court could not only hear the appeal but also, if it dismissed the appeal, thereupon act on the recommendation of the ACAT and remove the name of the Legal Practitioner from the roll if it chose to do so. There is some convenience in this.
That, however, does not dispose of this issue. The hearing of the appeal may permit the admission of evidence, either because the Legal Practitioner is permitted to re-open, if the Reopening Decision is set aside, or under the power to receive further evidence “on special grounds” in the exercise of a discretion under r 5052(1)(c) of the Court Procedures Rules.
While the Full Court has, in the past, heard evidence in such proceedings (see, for example, Re a Barrister and Solicitor; Re Legal Practitioners Ordinance 1970 (ACT) (1979) 39 FLR 467; Re Guild (1979) 32 ACTR 13; Re Robb and Anor (1996) 134 FLR 294), it is probably more desirable for evidence to be adduced before a single judge and for the Full Court, if appropriate, to deal with the recommendations made in accordance with the statutory regime.
The Law Society Council submits that, were the Full Court to hear the appeal, then there would be no further right of appeal within the Supreme Court. That is because s 37E(2)(a)(ii) of the Supreme Court Act provides that there is no appeal to the Court of Appeal from a decision of the Full Court when exercising appellate jurisdiction.
Consideration of the second issue
It is not at all clear to me that, when an appeal is removed into the Court from the ACAT under s 83 of the ACAT Act, the Court is exercising appellate jurisdiction for the purposes of s 37E(2)(a)(ii). I am, however, reasonably sure that the Full Court would not be exercising appellate jurisdiction when making any decision to remove the Legal Practitioner’s name from the roll. Thus, even were it to hear the removed appeal, the removal of the Legal Practitioner’s name from the roll is not a power the Full Court would be exercising as part of the appeal. In the appeal, the Full Court could only exercise the powers of the ACAT. So far as the separate issue of the discipline itself is concerned, namely any removal of the Legal Practitioner’s name from the roll, the Full Court would exercise original jurisdiction in respect of which the prohibition of appeal to the Court of Appeal would not apply. Such decisions have previously been the subject of appeal, though not in quite the same legislative context: Robb and Anor v Law Society of the Australian Capital Territory (1997) 72 FCR 225.
If that were not so, then I would be strongly inclined not to accede to the submission of the Law Society Council. Were the recommendation as to removal of the Legal Practitioner’s name from the roll alone been heard by the Full Court, then an appeal would certainly lie to the Court of Appeal. While expedition is desirable, the denial of an appeal to the Legal Practitioner from the ultimate sanction of the removal of his name from the roll would, in my view, be unfair. It may well breach the Practitioners right to a fair trial under s 21 of the Human Rights Act 2004 (ACT). While the right to practice a profession was held in Preiss v General Dental Council [2001] 1 WLR 1926 to engage a provision such as s 21, there are suggestions that in civil proceedings, the right to a fair trial does not include a right of appeal: Delcourt v Belgium (1970) 1 EHRR 355.
It would, however, not be fair to make a discretionary decision of the kind sought by the Law Society Council to achieve expedition and in order to deny the Legal Practitioner a right of appeal unless there was clear and unmistakable evidence that, for example, he had been responsible for unnecessary, unreasonable or unconscionable delay. There is, in this case, no such evidence before me.
The Law Society Council submits that the public interest speaks strongly in favour of a referral to the Full Court because of the lengthy history of the proceedings. As noted above (at [19]), they were commenced over two years ago. There is, the Law Society Council submits, a public interest in their expeditious resolution. That, in principle, must be so.
The Legal Practitioner, on the other hand, notes that there are other proceedings in the ACAT in which a decision was made on 23 August 2011: The Law Society of the Australian Capital Territory and The Legal Practitioner [2011] ACAT 57, the penalty phase in respect of proceedings on the complaint in Council of the ACT Law Society and The Legal Practitioner [2010] ACAT 73. He submits that he is to appeal against that decision and expects the Law Society Council to consent under s 83 of the ACAT Act to a referral of that appeal to this Court. He notes that there is, further, still other proceedings in the ACAT.
His submission is that it “makes no sense ... that any application for the removal of [his] name from the roll should not [sic] occur until all of the Tribunal matters are before this Court”. I cannot accept that submission. Indeed, were any complaints sufficient to justify removal of the Practitioner’s name from the roll, then the public interest would require that to be done as soon as possible, regardless of what other disciplinary matters were pending.
I am also conscious of the state of the court’s lists. Indeed, it is likely that a single judge, possibly an additional judge, could be made available to hear these proceedings more quickly than could a Full Court, especially if there is to be evidence heard. That possibility must be considered.
While the matter is finely balanced and the reasons for the submission by the Law Society Council are sound and strong, it seems to me that the need to proceed promptly in fact justifies a refusal of the referral of the proceedings to a Full Court for such a hearing at this stage. Were the state of the Court’s lists otherwise, I think the balance could well be different.
Conclusion
Accordingly, I am of the view that the proceedings should be conducted as a review of the decision of the ACAT the subject of the appeal and not as a hearing de novo.
I am also of the view that the proceedings should be heard by a single judge as soon as can reasonably be listed.
I shall give directions to give effect to these reasons.
I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 23 December 2011
Counsel for the appellant: The appellant appeared for himself
Counsel for the respondent: Mr M Phelps
Solicitor for the respondent: Phelps Reid
Date of hearing: 20 October 2011
Date of judgment: 23 December 2011
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