The Legal Practitioner v Council of the Law Society of the Australian Capital Territory (Stephen Stubbs).

[2010] ACAT 19

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

THE LEGAL PRACTITIONER v COUNCIL OF THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY (Stephen Stubbs) (Occupational Discipline)

[2010] ACAT 19

AA 10/3

Catchwords:       OCCUPATIONAL DISCIPLINE – LEGAL

PRACTITIONERS -  Competency of appeal under

section 79 of the ACT Civil and Administrative Tribunal Act 2008 –

order of the Tribunal - disciplinary order under section 425 of the

Legal Profession Act 2006 -  – interpretation of an order –whether

an order is final – stay of appeal

ACT Civil and Administrative Tribunal Act 2008, sections 59, 60, 61, 77, 78, 79, 83 and 86.

Legal Profession Act 2006, sections 419 and 425.

ACT Civil and Administrative Tribunal Procedure Rules 2009 (No 2), Rule 13.

Ah Toy v Registrar of Companies (1985) 10 FCR 280

Australian Telecommunications Commission v Colpitts (1986) 12 FCR 395

Blue Mountains City Council v Hudson (1985) 56 LGRA360

Bromley v Housing Commission of New South Wales
(1985) 3 NSWLR 407
Brooks v Upjohn & Co (1998) 85 FCR 469

Capital Property Projects (ACT) Pty Ltd v ACT Planning and Land Authority[2008] ACTCA 9

Director-General of Social Services v Chaney [1980] 47 FLR 80

Duff v R (1979) 28 ALR 663
Erasmus v Jackson (NSWSC, Wotton J., 15/4/1975, unreported)

Hinton v The Queen [2000] FCA] 1019

Jodi-Anne Brooks v Upjohn Co & ors [1998] FCA 929

Kowalski v Repatriation Commission [2009] 259 ALR 444

Lim v Hales (2004) 180 FLR 428
Mellifont v Attorney-General for the State of Queensland
 [1991] 173 CLR 289
Minister of Agriculture Lands and Forest v NSW Aboriginal Land Council (1987) 8 NSWLR 51

Moller v Roy [1975] 132 CLR 622

Musgrove v McDonald (1905) 3 CLR 132

Niemann v Electronic Industries Ltd [1978] VR 431

Rogers v The Queen (1995) 64 SASR 280

R v Bright [1980] Qd R 490

R v Snow (1915) 20 CLR 315
Ryde City Council v Pedras [2009] NSWCCA 248

The Queen v Ireland (1970) 126 CLR 321

Walsh v The Law Society of NSW (1999) 198 CLR 73

Tribunal:             Bill Stefaniak, Appeal President

Date of Orders:      31 March 2010    

Date of Reasons for Decision:         31 March 2010

AUSTRALIAN CAPITAL TERRITORY      )

CIVIL & ADMINISTRATIVE TRIBUNAL    )        AA 3 OF 2010

BETWEEN:  

THE LEGAL PRACTITIONER

Appellant

AND:

COUNCIL OF THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY

Respondent

Tribunal:Bill Stefaniak                Appeal President

Date:                   31 March 2010

ORDER

1. The appeal is struck out as incompetent.

………………………………..

Bill Stefaniak

Appeal President

REASONS FOR DECISION

Historical background

1. In 2009, the Council of the Law Society of the Australian Capital Territory brought an application against the legal practitioner (the appellant in this appeal)[1], pursuant to the provisions of section 419 of the Legal Profession Act 2006 in relation to a complaint against the practitioner to the ACT Civil and Administrative Tribunal (ACAT).  During the hearing before ACAT, both parties agreed to the proceedings being adjourned for further arguments if a finding was made against the practitioner in respect of his conduct.
   
   

   [1] This decision was previously anonymised and cited as The Legal Practitioner & Council of the Law Society of the ACT [2010] ACAT 19 pursuant to section 423A of the Legal Profession Act 2006. As the appeal period has ended, the practitioner has now been identified in the citation of this decision. The reason for decision otherwise remain unchanged from the date of publication.

2. On 1 February 2010, a finding was made against the practitioner and the proceedings were stood over for further hearing concerning any order to be made pursuant to section 425 of the Legal Profession Act.  The terms of the Tribunal determination are as follows:

   “  ORDER
   
   
   Upon being satisfied that the respondent has breached rules 1.1, 1.2 and 39.1 of the Legal Profession (Solicitors) Rule 2007 (ACT); and is guilty of unsatisfactory professional conduct in relation to LP 6 of 2008; and guilty of professional misconduct in relation to LP 1 of 2009, the Tribunal orders that:

   the applications be stood over for further hearing concerning any orders to be made pursuant to s 425 of the Legal Profession Act 2006 (ACT).
   
   

   AND IT IS NOTED THAT section s 423A Legal Profession Act 2006 (ACT) operates to restrict publication of certain identifying material from these applications.”
   
   

3. The practitioner appealed pursuant to section 79 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) against the findings and order of the Tribunal made on 1 February 2010.  The Law Society of the ACT (the respondent in this appeal) contended that the appeal is incompetent as although the Tribunal had made factual findings about the practitioner’s conduct it had not at this point in time made a decision upon which an appeal could be based.  It went on to say that the findings thus far were interlocutory in nature and it remained for the Tribunal to subsequently make orders consequent upon those findings and that it is from those orders that an appeal would lie.

1. The practitioner (hereafter referred to as the appellant) contends that the appeal is competent.

1. Learned Counsel for both the appellant and the respondent provided written submissions and lengthy verbal submissions when the matter was heard by me on the 18^th of March 2010.

1. Counsel for both parties indicated that they wanted the matter to be finally determined in the Supreme Court of the ACT, the appellant wanting this referred to the Supreme Court now, the respondent after the proceedings under section 425 of the Legal Profession Act were concluded.

Appellant’s submissions

1. The appellant said the document made by the Tribunal on
   1 February 2010 and duly signed and sealed was an order from which he is entitled to appeal pursuant to section 61 and section 79 of the ACAT Act. 

1. The appellant’s arguments are briefly as follows:

• Orders of Territory Courts, whether they are interlocutory or final, are appealable. The ACAT Act ‘does not draw a distinction between interlocutory, or final orders – an order which has “decided an application” is appealable pursuant to section 79 of that Act.
• The Tribunal order of 1 February 2010 reflects the declaratory relief sought by the Law Society in its applications, and it is determinative of the issue in dispute between the parties. The fact the order enlivens the jurisdiction of the Tribunal to make a penalty order under section 425 of the Legal Profession Act does not change the character of the order. Section 61(1) of the ACAT Act makes this clear: Brooks v Upjohn & Co (1998) 85 FCR 469, 474-6 per Beaumont, Carr & Branson JJ.
• The fact that there is a remaining issue, namely that of penalty, to be determined is not to the point.  Neither application sought the imposition of a penalty.
• The Tribunal order was not provisional and its effect was not delayed, pursuant to section 61(3) of the ACAT Act.
• As the Tribunal has decided the application, an appeal on a question of law lies as of right under section 79 of the ACAT Act.
• “The legal and factual issues raised in the appeal are of such significance and public importance, that where leave of the Supreme Court is required for an appeal to that Court it would be expected that leave would be granted”.
• An analogous situation is “[w]here the order appealed from is the verdict of a jury, the sentence proceedings will be stayed until that appeal, which will usually be in the form of a stated case,  or a reference appeal, is determined”.
• The Tribunal has made the order and “it has been entered and Reasons for decision have been published”.  The order “is binding upon the parties and is definitive of legal rights”.

1. The appellant relies upon the following authorities:
   Ah Toy v Registrar of Companies (1985) 10 FCR 280; Brooks v Upjohn & Co (1998) 85 FCR 469; Mellifont v Attorney-General for the State of Queensland (1991) 173 CLR 289; Moller v Roy (1975) 132 CLR 622; The Queen v Ireland (1970) 126 CLR 321; and Rogers v The Queen (1995) 64 SASR 280.
   
   

2. The appellant also refers to the following authorities:
   Australian Telecommunications Commission v Colpitts (1986) 12 FCR 395; Duff v R (1979) 28 ALR 663, Erasmus v Jackson (NSWSC, Wotton J., 15/4/1975, unreported); Lim v Hales (2004) 180 FLR 428; Musgrove v McDonald (1905) 3 CLR 132; R v Bright [1980] Qd R 490 Ryde City Council v Pedras [2009] NSWCCA 248; and R v Snow (1915) 20 CLR 315.

1. The Federal Court decision of Brooks v Upjohn & Co involved an appeal from two interlocutory orders made by the NSW Supreme Court, one of them being the refusal by the judge to disqualify herself from hearing the application before her.  One of the respondents sought the judge’s disqualification on the ground of perceived bias – the perceived bias arising from the fact that there was a complaint pending before the Legal Services Tribunal against the judge’s son who was before that complaint employed by the respondent’s solicitor. The Federal Court took the view that the judge’s refusal, in substance, was an interlocutory order tantamounting to an order dismissing the respondent’s motion and said that “a disqualification order or an order refusing to disqualify might be regarded as being in its nature declaratory and self-operative in the vast majority of cases”.[2]

   [2]  p.8

1. In relation to a whether the applications for special leave to appeal on such matters would encourage “judge shopping”, the Court said that “such a perception would, in our opinion, under-estimate the capacity of judges at first instance to recognise such a tactic and the controls which exist at appellate level to discourage what might otherwise be a flood of appeals against disqualification decisions. They include, of course, stringent scrutiny at the stage of application for leave and, where appropriate, a variety of costs orders”.[3]

   [3] Ibid, p.9.

1. The Court granted leave to appeal on the basis that the matter is of considerable public importance.  Their Honours considered that the applicant’s case was reasonably arguable and “in those circumstances, it was in the interests of justice that the issue of perceived bias be reviewed at appellate level in the unusual circumstances in the matter (italics added)”.  Their Honours regarded this as a test case and did not want them to be understood as  suggesting that an arguable appeal on perceived bias would always warrant a grant of leave.[4]

   [4] Ibid.

1. The appellant submits that the Tribunal has decided each application within section 79 of the ACAT Act and appeal as of right lies therefrom. While the penalty issue is reserved for decision, allowing the appeal before me would be similar to allowing an interlocutory appeal from a part of the decision.   

Respondent’s submissions

1. The respondent contends that the matter is not complete and relies on a line of authorities from the NSW Court of Appeal and the Federal Court dealing with tribunals, the Administrative Appeals Tribunal and the Land and Environment Court of NSW.

1. The respondent refers to the Appeal proceedings as interlocutory proceedings and understands that the purpose is to determine the competence of the appeal and whether it should be struck out or stood over until the penalty decision is made in the substantive proceedings.

2. The respondent argues as follows:

• The Tribunal has still not made an order from which an appeal lies.
• The Tribunal has not made a decision because it is still to make a decision about the penalty.
• The Tribunal decision should be in relation to an application under section 419 of the Legal Profession Act in relation to a complaint against the legal practitioner.
• The Tribunal may make a penalty order under section 425 of the Legal Profession Act.
• Section 425 [i.e. Sections 425 (3), (4) & (5)] orders are disciplinary orders.
• A finding under section 425(2) is only a preliminary step to ultimate orders.
• The Tribunal has stood over the penalty issue and invited submissions. So, it has not “finished” considering the application (cf. section 425(1)).
• “decision” is defined in the ACAT Act dictionary as “(a)n original decision on a matter stated in an application”. Considering this along with sections 419 and 425 of the
  Legal Profession Act, the decision, to be appealed from, should be the final, dispositive decision and
  orders.
• The ACAT Act does not enable appeals from interlocutory decisions or orders.
• Brooks case does not help the Applicant. That decision was that a judge refusing to disqualify herself was an interlocutory order from which an appeal with leave might be brought under section 24(1A) of the Federal Court of Australia Act 1976 (Cth). However, section 79 of the ACAT Act is different in that it does not provide for leave to appeal from an interlocutory order. 
• Even if it is taken that an appeal from an interlocutory order is possible, the Tribunal has discretion to stand over the matter pending the finalisation of the matter.
• As there is no penalty order yet, there is no prejudice to the legal practitioner. Prejudice flows from the penalty order, from which an appeal is possible.
• Fragmenting the process is against the public interest as the process is designed to protect the public from persons unfit to practise.
  
  

1. The respondent relies on the relevant provisions of the ACAT
   Act, Legal Profession Act and Legal Practitioners Act 1970 (repealed) and also the following authorities: Walsh v The Law Society of NSW (1999) 198 CLR 73; Blue Mountains City Council v Hudson (1985) 56 LGRA 360; Bromley v Housing Commission of NSW (1985) 3 NSWLR 407; Director-General of Social Services v Chaney (1980) 47 FLR 80; Minister of Agriculture Lands and Forest v NSW AboriginalLand Council (1987) 8 NSWLR 51; and Kowalski v RepatriationCommission (2009) 259 ALR 444.

1. As regards the competency of an appeal from an interlocutory order, the Federal Court decision of Director-General of Social Services v Chaney is cited by the respondent as a crucial case to consider.

1. In that case, the applicant applied to the Federal Administrative Appeals Tribunal to have the Director-General’s decision to suspend her widow’s pension reviewed.  The Tribunal President ruled against the Director-General’s objection that the Tribunal had no jurisdiction to hear the application, and also made an order to stay the Director-General’s decision pending the Tribunal’s determination of the review.   The Director-General appealed to the Federal Court against these orders – which were interlocutory orders.  The Court decided that an appeal could only lie from the ultimate decision of the Tribunal and that there could be no appeal from both the interlocutory orders.

1. With regard to section 44 of the Administrative Appeals Tribunal Act 1975 (Cth), which provides a party’s right to appeal from the Tribunal decision on a question of law, Deane J said,
   
   

   “The provisions of s.44 themselves tend to indicate that the decision of the Tribunal from which an appeal may be brought, as of right, to this Court is the final decision which disposes of the proceedings and which will have been reduced to writing and served upon the parties in accordance with s.43 of the Act.”[5]

   [5] [1980] 47 FLR 80 at p.102.

1. His Honour’s view is consistent also with the public interest of providing simple, quick, inexpensive and informal procedures for achieving justice.[6] 

   [6] See note 1, section 23, ACAT Act.

1. His Honour’s conclusion was that an appeal under section 44(1) of the Commonwealth legislation “lies only from a decision of the Tribunal which constitutes an effective decision or determination of the application for review”.[7]  One of the two qualifications, according to His Honour, to this conclusion was ‘the case where the proceeding before the Tribunal can properly be divided into two or more separate parts in respect of which independent "decisions" may properly be given’.[8]

   [7]  Supra no 4, p.103.

   [8]  Ibid.

1. The Tribunal’s order to suspend the Director-General’s decision had an independent operative effect but was held not appealable.  “Indeed, the power to make such an interim order pursuant to s.41(2) of the Act is, in terms, for the purpose of securing the effectiveness of the hearing and determination by the Tribunal of the application for review and could hardly have been intended to provide the occasion whereby the hearing and determination of an application for review could be frustrated and delayed by preliminary appeals brought, as a matter of right, upon any question of law that might happen to be involved in the making of an interim order.”[9]

   [9]  Ibid, at p.104 (Deane J.)

1. The respondent also relied on Blue Mountains City Council v Hudson[10] (NSW Supreme Court decision) which related to an appeal on a question of law from an interlocutory or preliminary order made by the NSW Land and Environment Court. 

   [10] [1985] 56 LGRA 360.

1. Under section 57 of the Land and Environment Court Act 1979 (NSW), an appeal may be made “against an order or decision of the Court”. The appellant and the Council held different views about the ambit of the application for development. The Land and Environment Court determined that the application and the appeal were limited to the construction of six units (that is, stage 1). The Court also made an order remitting the matter to the Registrar for allocation conformably with the ruling. The appeal to the NSW Supreme Court was against the determination.[11] 

   [11] Ibid at p.361.

2. Hope J discussed the issue of whether an appeal was limited to a final order or could be extended to an interlocutory order and referred to Deane J’s statement in Chaney’s case, which was to the effect “the question must be determined by reference to the context which the particular provision and the relevant Act provide and also......to the possibility of cases being divisible into two or more separate parts in respect of which independent decisions may be given”.[12]

   [12] Ibid.

3. His Honour concluded that the determination made by the Land and Environment Court was not an “order” under section 57 of the NSW Land and Environment Act and hence, not appealable.[13] It did not have the character of finality.  He did not decide whether
   

   [13] Ibid at p.364.

   section 57 includes an order or decision of an interlocutory character.

4. Acknowledging that an appeal from an interlocutory order would lie only by leave and refuting the appellant’s submission that an appeal as of right would lie from such an order, Hope J said that, “If appeal were authorised from interlocutory orders or decisions, there is no basis for limiting the appealable orders or decisions to any particular categories.  If a party were so minded, proceeding could be held up interminably whilst appeals were taken as of right to this Court from every procedural order or decision of some limited point.  This argument of convenience is, in my opinion, a strong one....”[14]

My observations

[14] Ibid at p.362.

1. Part 6 of the ACAT Act deals with powers and decisions of the Tribunal. Several sections here refer to the Tribunal making an order on an application (e.g., sections 60(1) and section 59). Section 61 deals with making orders and the effect of orders.

1. Section 79 grants parties before ACAT a right of internal appeal against a decision when ACAT has decided the original application, i.e. the application brought before ACAT in the first instance.

2. Appeals within tribunal

   (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.

   (2)A party to the original application may, by application, appeal the decision to the tribunal on a question of fact or law.”

3. 
   An appeal (unlike some other Tribunals at State and Territory level) can be on a question of fact or law (or both).

1. Section 77 of the ACAT Act also provides for referrals during the course of proceedings before ACAT in dealing with original applications to the internal appeal component of ACAT for a ruling on a question of law.

“77       Referral of questions of law within tribunal

(1)This section applies if a tribunal (the requesting tribunal) is dealing with an application.

(2)The requesting tribunal may, on its own initiative or on application by a party, ask the appeal president to allocate 1 or more tribunal members to a tribunal (the ruling tribunal) to give a ruling on a question of law.

(3)If the ruling tribunal gives a ruling on a question of law, the requesting tribunal is bound by the ruling.

NoteQuestion of law includes whether a question is a question of law (see dict).

(4)A ruling tribunal is made up of 1 or more of the following tribunal members allocated by the appeal president:

(a)a presidential member;

(b)a senior member who is a lawyer and has been a lawyer for 5 years or more.

(5)However, a ruling tribunal must not contain a tribunal member allocated to the requesting tribunal.”

1. 
   Rule 13 of the ACAT Procedure Rules 2009 ( No 2) (Notice of appeal-requirements) sets out what a notice of appeal must state.

2. Notice of appeal—requirements

   A notice of appeal to the tribunal must state—

   (a)the appellant’s name, postal address, email address (if any) and contact telephone numbers; and

   (b)if the appellant is represented by someone else—the name, postal address, email address and contact telephone numbers of the representative; and

   (c)the ACAT file number; and

   (d)the date of the decision appealed from and the date the appellant received the decision; and

   (e)the reasons for the appeal, including the following:

   (i)the nature of the case;

   (ii)whether the appellant will seek to put further evidence before the tribunal;

   (iii)if further evidence is to be put before the tribunal—briefly the nature of the evidence and what is sought to be proved;

   (iv)briefly, but specifically, the grounds relied on in support of the appeal; and

   (f)the order sought; and

   (g)whether the appellant intends to apply for the appeal to be removed to the Supreme Court.”

3. 
   The appellant appears to have complied with Rule 13 in his appeal document lodged with the Tribunal in so far as what he states in that document.

1. In deciding the appeal, I have regard to all the submissions, case law and statute law, referred to above.  I thank Counsel for their most helpful and learned submissions.

1. The ACAT Act, unlike some of the other State and Federal Acts quoted above, allows an appeal on a question of both law and fact.

1. Whilst the explanatory statement and reading speeches do not advance the issue of interpretation, as is the often the case when dealing with legislation, the words of the Act are clear and are to be given their normal everyday meaning.

1. In fact, there is a specific provision in section 77 for a referral of questions of law during the proceedings, which is particularly helpful to me in determining this issue. So is the ability given to the General President in section 78 to request a correction to an order made on an original application.

1. The fact that neither Counsel for the appellant nor the respondent were able to find a case directly in point in another tribunal at either State or Federal level is also of relevance.  The fact that such appeals are rarely brought in similar circumstances after verdict and before sentence in the criminal jurisdiction is also relevant, although I accept the contention of Counsel for the respondent that the criminal law is naturally governed by different rules, legislation and principles. 

1. However, the appellant is correct in stating that the Tribunal has raised the issue of whether it is unusual for an appeal to be mounted prior to sentence being imposed. He submits an analogy between such a practice in criminal proceedings and the matter before me in relation to which the Applicant lodged the appeal before the disciplinary order is made under section 425 of the Legal Profession Act.  It is, therefore, important to look at this point.

2. The appellant points out that in a criminal preceding the issue of an appeal before sentence would arise where a jury has returned a finding of guilt.  On this basis, the appellant contends as follows:

   “The returning of a finding of guilt constitutes a verdict and in several Australian jurisdictions the trial judge can then state a case on a question of law for determination by a superior court, which will usually be the Supreme Court.....In this way, the trial judge will be provided with direction and guidance by the superior court in relation to the issues of law raised in the trial prior to considering sentence....”

   “The [ACAT] Act....does not provide for such a mechanism, so that the Tribunal which hears the matter at first instance cannot obtain the guidance of the Supreme Court except by way of the appeal mechanism(italics added)”

3. I agree with the appellant that the ACAT Act does not provide for a mechanism to seek the Supreme Court’s direction or guidance on a question of law. It is simply because the scheme under the Act does not envisage it and also provides for a special process under section 77 for the Tribunal to ask me to set up the Ruling Tribunal for giving a ruling on a question of law. In the matter before me, this process has not been invoked (and indeed it would be difficult to invoke it as the appellant’s appeal document appeals on the basis of law and fact).

4. However, in relation to the issue of an appeal before sentence,
   I observe that in Duff v R 28 ALR 663, referred to by the respondent, the Federal Court (at 670) took the view that the jury verdict is not itself a judgment from which an appeal may be brought and that “the appeal lies from the judgment which is entered upon a verdict in a criminal trial .. unless it be a judgment of acquittal”. In Musgrove v McDonald [1906] 3 CLR 132 (at p.144), the High Court said that that it is the judgment by the Judge “that appears to be the only act of the Court, and it is only against an act of the Court that an appeal lies.........the verdict is not the act of the Court; the verdict is the act of the jury...”

5. Other cases and legislation are also of help on this point.  In Hinton v The Queen [2000] FCA] 1019 [Full Federal Court decision on an appeal from the ACT Supreme Court] [The online version is at the jury found the accused guilty on eight counts of possession and supply of illicit drugs.  The Supreme Court had not yet recorded a conviction.  The accused purported to appeal from “the whole of the judgement....given on 31 March 2000”.

6. Their Honours cited Duff v R and Musgrove v McDonald, among
   other decisions. I quote some relevant parts of their Honours’ decision as follows[15]:

   [15]   The paragraph numbers in the extracts are from

“An appeal to this Court lies from the judgment which is entered upon a verdict in a criminal trial, and not the verdict itself.” [paragraph 13]

“The statutory provisions which govern criminal appeals in the States generally provide that a person convicted on indictment may appeal against his conviction or, with the leave of the Court, against the sentence passed on his conviction - see Criminal Appeal Act 1912(NSW) s 5; Crimes Act 1958 (Vic) s 567; Criminal Code Act 1899 (Qld) s 668D; Criminal Law Consolidation Act 1935 (SA) s 352; The Criminal Code (WA) s 688 and The Criminal Code Act 1924 (Tas) s 410.” [paragraph 14]

“The term "conviction" has sometimes been understood, in context, to mean the complete orders made by a court after finding an accused person guilty of an offence. These orders will include both the finding of guilt and the sentence passed as a consequence.” [paragraph 15]

“Thus, it may be seen that at least in New South Wales and Victoria appeals against conviction may be brought against jury verdicts in circumstances where those verdicts have been accepted by the Court, even though the Court has not formally recorded a conviction as having been entered. There is also at least one reported instance of an appeal against conviction having been entertained where that appeal had been lodged before sentence had been imposed - see R v De Marchi [1983]
1 VR 619.” [paragraph 20]

“The position with regard to an appeal to this Court is, however, different. Section 24(1)(b) of the Federal Court Act does not provide for any right to appeal from a conviction, still less from the verdict of a jury. It is only after the Supreme Court of the Australian Capital Territory has formally entered judgment upon that verdict, as for example, by recording a conviction, that there is a "judgment" which may give rise to an appeal.” [paragraph 21]

“It must be remembered that appeals are entirely creatures of statute. Close attention must be paid to the precise terms of the relevant statute creating the right to appeal.” [paragraph 21]

1. I note the appellant’s explanation that “Where the order appealed from is the verdict of a jury, the sentence proceedings will be stayed until that appeal, which will usually be in the form of a stated case, or a reference appeal, is determined”.

1. I do not think that an appeal in the form of a stated case or a reference appeal can be said to be comparable to an appeal that the ACAT Act allows under section 79. They are different in the sense that they are not from an order or decision of the Tribunal. Close attention must be paid to the precise terms of the statute creating the right of appeal.

1. In my view, the ACAT Act giving the section its normal everyday meaning envisages appeals under section 79 being made only after the original application has been decided (see, section 79(1)). It seems to me to be the clear intent of the legislature that in the normal course of events appeals will be brought after the matter brought to ACAT has been finally decided and orders made.

1. The words of section 79(1) state “an” application, not “any” application (see, Bromley’s case & discussion of this point , and also Deane J p.101 of Chaney , who at any rate feels the distinction to be slight).  I agree with Deane J’s comments in Chaney when at p.100 he refers to the Privy Council decision Rajah Taffadduq Raful Khan v Manik Chand (1902) L.R 30 Ind. App. 35- where he says ....’the natural, obvious and prima facie meaning of the word “decision” is decision of the suit by the Court’.

1. Justice Deane makes some other, in my view, telling observations in Chaney which are relevant and applicable to this case. At p.102, he says “Any question of law arising in the course of the proceedings is to be determined by the Tribunal in the manner prescribed in s.42 unless the Tribunal thinks it appropriate to seek the opinion of this Court during the currency of the proceedings when, either on its own motion or at the request of a party to the proceedings, it may refer a question of law for the decision of the court.” This is directly in point with the provision and entitlements of section 77 of the ACAT Act confer on parties. 

1. Justice Deane went on to state “It would seem unlikely that it was the legislative intent that any party to a proceeding should be entitled to disrupt its orderly hearing before the Tribunal by instituting an appeal, as of right, from any of the various "decisions", involving a question of law, which the Tribunal might find itself called upon to make in the course of dealing with the proceeding before it and which might ultimately prove irrelevant to the final operative decision. In the context of the clear right to appeal, on a question of law, from the ultimate decision of the Tribunal and of the intermediate procedure of stating a question of law for the decision of this Court, it would seem more likely that it was the legislative intent to limit judicial intervention during the actual hearing before the Tribunal to the supervisory, and, to some extent, discretionary, jurisdiction provided by the prerogative writs.”

1. His point that a decision a tribunal might find itself called upon to make in the course of dealing with the appeal proceeding before it might ultimately prove irrelevant to the final operative decision, is also relevant in the present case. 

1. The orders sought under sections 425(3)-(5) of the Legal Profession Act will provide the final operative decision.  It may well be those orders may be something the appellant can live with. 

1. Justice Deane, (quoted approvingly on this point in other cases by other Justices such as Hope J in Blue Mountains City Council v Hudson (1985) 56 LGRA 360)) is also, in my view, on the money when he says (at p.103) “It may be suggested that the proliferation of opportunities to appeal should be seen as a safeguard of the rights of the individual subject. Such a suggestion would, in my view, be misconceived. Indeed, if the view propounded on behalf of the Director-General in the present matter, namely, that an appeal lies as of right from every intermediate decision on a question of law in the course of the hearing by the Tribunal of an application to review, be accepted, the result would be that the individual subject who challenged a decision of the Executive before the Tribunal would not only have no assurance of an orderly and reasonably prompt resolution of his or her case by the Tribunal but that, in confronting the Executive even if only to claim a widow's mite, he or she would be stepping into a maze in which the financial ruin of a myriad of possible appeals awaited at the whim of those who fund their enthusiasm for the fray not from their own purses but from the long purse of Government”.

1. I also note his comments in relation to “independent decision” that could be appealed from envisages something very different to the present case. It envisaged a situation where one licence is given and another is refused.  Clearly a different scenario to this matter. 

1. I also accept the respondent’s argument about section 419 and section 425 (3)-(5) of the Legal Profession Act and the contention that the orders sought flow from section 425(3)-(5).

1. Section 419 provides as follows:

2. Application to ACAT

   (1)The relevant council for an Australian legal practitioner may apply to the ACAT for an order in relation to a complaint against the practitioner.

   (2)The relevant council for an employee of a solicitor may apply to the ACAT for an order under this part in relation to a complaint against the employee.

   (3)The application must include the charge of unsatisfactory professional conduct, professional misconduct or unsatisfactory employment conduct that the relevant council considers arise out of the complaint.”
   
   

3. Section 425 provides as follows:

4. ACAT orders—Australian legal practitioners

   (1)If, after the ACAT has finished considering an application under this part in relation to an Australian legal practitioner, the ACAT is satisfied that the practitioner is guilty of unsatisfactory professional conduct or professional misconduct, the ACAT may—

   (a)make 1 or more of the orders mentioned in subsections (3) to (5); or

   (b)any other order it considers appropriate.

   (2)The ACAT may find an Australian legal practitioner guilty of unsatisfactory professional conduct even though the complaint or charge alleged professional misconduct.

   (3)The ACAT may make the following orders in relation to the Australian legal practitioner:

   (a)an order recommending that the name of the practitioner be removed from the local roll;

   (b)an order that the practitioner’s local practising certificate be suspended for a stated period or cancelled;

   (c)an order that a local practising certificate not be granted to the practitioner before the end of a stated period;

   (d)an order that—

   (i)stated conditions be imposed on the practitioner’s practising certificate granted or to be granted under this Act; and

   (ii)the conditions be imposed for a stated period; and

   (iii)states the time (if any) after which the practitioner may apply to the ACAT for the conditions to be amended or removed;

   (e)an order publicly reprimanding the practitioner or, if there are special circumstances, privately reprimanding the practitioner.

   (4)The ACAT may make the following orders in relation to the Australian legal practitioner:

   (a)an order recommending that the name of the practitioner be removed from an interstate roll;

   (b)an order recommending that the practitioner’s interstate practising certificate be suspended for a stated period or cancelled;

   (c)an order recommending that an interstate practising certificate not be granted to the practitioner before the end of a stated period;

   (d)an order recommending—

   (i)that stated conditions be imposed on the practitioner’s interstate practising certificate; and

   (ii)that the conditions be imposed for a stated period; and

   (iii)a stated time (if any) after which the practitioner may apply to the ACAT for the conditions to be amended or removed.

   (5)The ACAT may make the following orders in relation to the Australian legal practitioner:

   (a)an order that the practitioner pay a fine of a stated amount of not more than the amount mentioned in section 427;

   (b)an order that the practitioner undertake and complete a stated course of further legal education;

   (c)an order that the practitioner undertake a stated period of
      practice under stated supervision;

   (d)an order that the practitioner do or not do something in relation to the practice of law;

   (e)an order that the practitioner cease to accept instructions as a public notary in relation to notarial services;

   (f)an order that the practitioner’s practice be managed for a stated period in a stated way or subject to stated conditions;

   (g)an order that the practitioner’s practice be subject to periodic inspection by a stated person for a stated period;

   (h)an order that the practitioner seek advice in relation to the management of the practitioner’s practice from a stated person;

   (i)an order that the practitioner not apply for a local practising certificate before the end of a stated period.”

60. Section 419(2) enables the Council of the Law Society to apply for an order under this part (Part 4.7 (Disciplinary action). The order provision is section 425. The order has yet to be made. The hearing for this part of the original application brought to the tribunal will not occur until 27 May 2010.

61.     I now turn to the “order” of February 1, 2010.

62.     The words “Upon being satisfied that the respondent has breached rules 1.1, 1.2 and 39.1 of the Legal Profession (Solicitors) Rule 2007 (ACT); and is guilty of unsatisfactory professional conduct in relation to LP 6 of 2008; and guilty of professional misconduct in relation to LP 1 of 2009” are really a preamble when one considers section 419 and section 425 of the Legal Profession Act.  Perhaps the bold word “ORDER” above these words should not have been put there.

63.     It may not matter at any rate if the applicant is correct in his submission that however phrased these words may amount to an order, but it may have been tidier if they had been used/made as a preamble and the Order then highlighted after the words “LP 1 of 2009”.

64.     Having considered the authorities it does seem to me that the only actual order made was the order to stand the application over for further hearing concerning any orders to be made pursuant to
section 425 of the Legal Profession Act. 

65.There are a long line of authorities which have decided that findings or reasons are not appealable and that appeals can be made only from an operative judgment.  For example, Mellifont v Attorney-General for the State of Queensland[16](quoting From Driclad Pty Ltd v Federal Commissioner of Taxation[17] that the word “judgment” refers to operative judicial acts not for reasons for judgment); The Queen v Ireland[18](“The reasons for judgment are not themselves judgments though they may furnish the Court’s reasons for decision and thus form a precedent” per Barwick CJ); Ah Toy v Registrar of Companies[19]; and Moller v Roy[20] (“It is fundamental to our jurisprudence that an appeal is brought against an order and not against the reasons which support the order” per Barwick CJ).

[16] [1991] 173 CLR 289 at p. 324.

[17] (1968) 121 CLR 45 at p.64.

[18] [1970] 126 CLR 321 at p.331.

[19] (1985) 10 FCR 280 at pp.285-286.

[20] [1975] 132 CLR 622 at p.627.

66.I also accept the respondent’s argument that any prejudice that flows to the appellant will flow after a penalty order is made.  Even if I am wrong in my findings above, I am not satisfied that a substantive injustice will be done by leaving that potentially erroneous decision of the Tribunal dealing with the original application unreversed at this stage.  (See, Niemann v Electronic Industries Ltd [1978] VR 431 and Capital Property Projects (ACT) Pty Ltd v ACT Planning and Land Authority [2008] ACTCA 9)

67.     Again the correct time to appeal is after any order was made as to penalty. 

68.     Finally, as this is the first appeal of this type before ACAT, I feel it is important to reiterate my interpretation of the ACAT Act as I have set out above, together with the ACAT’s stated role as set out in Part 2 (sections 6 and 7, particularly) of the ACAT Act.   This to me reinforces my interpretation of the Act and the intent of the legislature when it comes to dealing with appeals, which I note is very similar to the line of cases quoted by the respondent and dealt with in this decision. 

69.     Both learned Counsel indicated that they would prefer a simple order either dismissing the appeal as incompetent or allowing it to be brought and referring it to the Supreme Court.

70.     To start with, I note both Counsel wish the matter to go to the Supreme Court and accordingly in accordance with our Act that must occur.

71. For the reasons given, it is my view that can only occur after the proceedings pursuant to section 425 of the Legal Profession Act have been dealt with and the original application before the Tribunal decided once and for all. 

72.     I feel that the appeal on its face appears competent so far as it goes in complying with Rule 13, but is not competent at this point in time.  I would have been quite prepared to stay it until after the penalty proceedings were dealt with and the matter finalised, and then allow it to proceed (with any modification necessary) to the Supreme Court.

73.     As neither Counsel appears to desire this, it is just as simple a matter to decide the appeal as incompetent at this point in time.  That is what therefore I will do.  My order shall be that the appeal is struck out as incompetent.

Bill Stefaniak

Appeal President

PUBLICATION DETAILS

TO BE PUBLISHED

To be completed by Tribunal Staff

PART A  FILE NO:      

APPLICANT:                  The Applicant            

RESPONDENT:             Council of the Law Society of the Australian Capital Territory

COUNSEL APPEARING:         APPLICANT: Mr Richard Thomas

RESPONDENT:       M r N J Beaumont

SOLICITORS:  APPLICANT: Capital Lawyers

RESPONDENT:       Phelps Reid Lawyers

OTHER:  APPLICANT:

RESPONDENT:       

TRIBUNAL MEMBER/S:        Mr Bill Stefaniak, Appeal President

DATE/S OF HEARING: 10 March 2010,          PLACE: CANBERRA

18 March 2010

DATE/S OF DECISION:           31 March 2010           PLACE: CANBERRA

PART B

RECOMMENDATION:

FULL REPORT ( )         CASE NOTE ( )        UNREPORTED DECISION ( )

COMMENTS: