Thurairajah v Law Society of New South Wales (LSD)

[2002] NSWADTAP 22

Appeal Panel

CITATION:	Thurairajah -v- Law Society of New South Wales (LSD) [2002] NSWADTAP 22
PARTIES:	APPELLANT Thambipillai Thambithurai Thurairajah RESPONDENT Council of the Law Society of New South Wales
FILE NUMBER:	029030
HEARING DATES:	28/06/2002
SUBMISSIONS CLOSED:	06/28/2002
DATE OF DECISION:	06/28/2002
DECISION UNDER APPEAL:	Ruling as to Jurisdiction
BEFORE:	O'Connor K - DCJ (President); Staff C - Judicial Member; Bennett C - Member
CATCHWORDS:	interim order
MATTER FOR DECISION:	Preliminary matter
FILE NUMBER UNDER APPEAL:	012003
DATE OF DECISION UNDER APPEAL:	10/09/2001
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Legal Profession Act 1987 Legal Profession Amendment (Complaints and Discipline) Act 2000
CASES CITED:	Barwick v Law Society of New South Wales [2000] HCA 2; (2000) 74 ALJR 419 Lloyd v Veterinary Surgeons Investigating Committee [1999] NSWCA 68
REPRESENTATION:	APPELLANT H Thurairajah, solicitor RESPONDENT J Griffiths SC, counsel
ORDERS:	1. The application for a stay is refused.; 2. The order as to costs made on 28 June 2002 is vacated; and instead the respondent’s application is reserved for further submissions on a date to be fixed after the determination of the information before the Legal Services Division of the Tribunal.; 3. The notice of appeal is adjourned to a date to be fixed after the determination of the information before the Legal Services Division of the Tribunal.

Delivered Ex tempore

1 On Friday 28 June 2002 the Appeal Panel dismissed an application made pursuant to s 116 of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act) by the appellant for an urgent interlocutory order staying proceedings under the Legal Profession Act 1987 (the Legal Profession Act), then part heard, before the Legal Services Division of the Tribunal. The Appeal Panel also ordered the appellant to pay the respondent’s costs of the appeal; an order now vacated (see further below). The decisions were given ex tempore.

2 The appellant has requested written reasons for decision, as he is entitled to do under s 89 of the Tribunal Act. The following reasons are given in response to that request. They replicate, where indicated, the oral reasons.

Background

3 The appellant is a solicitor. He is the respondent to an information alleging professional misconduct laid before the Tribunal by the Council of the Law Society on 29 March 2001. The hearing of the information had proceeded over two days, 9 October 2001 and 12 April 2002, and was due to resume on Monday 1 July 2002.

4 The information is the second information laid against the appellant in respect of the same conduct. The first information was dealt with by the Tribunal on 28 February 2000. The information was ‘dismissed’ by the Tribunal following advice from the Law Society that it was affected by the same procedural defect that had caused the High Court in Barwick v Law Society of New South Wales [2000] HCA 2; (2000) 74 ALJR 419 to find that the defect deprived the Tribunal of jurisdiction.

5 The Tribunal did not hear any evidence on 28 February 2000, and, as mentioned, entered an order of ‘dismissal’. Strictly speaking, it probably should have simply ruled that it was without jurisdiction, and made no further order. Technically, it had no competent application; and arguably at least, therefore it had nothing to dismiss. (The presiding member on that occasion did consider such a submission made by the Law Society, and rejected it. He expressed the view that the ruling did not in any way preclude the Law Society lawfully laying a fresh information. See Transcript, p 6.)

6 Subsequently, Parliament enacted remedial legislation amending the Legal Profession Act enabling the Law Society to re-institute proceedings affected by ‘Barwick invalidity’: Legal Profession (Complaints and Discipline) Act 2000, commenced 14 July 2000. It was pursuant to that legislation that the Law Society laid a fresh information in relation to the conduct that had been the subject of the original information.

7 When the new hearing commenced on 9 October 2001 the appellant submitted that the Tribunal should not proceed to consider the information. He contended that as the previous information had been dismissed, the allegation against him had been finally disposed of, and he should not be tried again.

8 After a short adjournment, the Tribunal dismissed the objection: Transcript, 9 October 2001, p 6:10-25. It is that ruling which is the subject of the notice of appeal lodged on 24 June 2002. This fact only emerged clearly in the course of oral submissions. The text of the notice of appeal is uninformative as to what precisely was being put in issue by the appeal. (It says only: ‘In reaching its decision the Tribunal failed to take into account relevant law which it was obliged to consider.’) The notice of appeal was accompanied by the present application for a stay.

9 As can be seen there has been a long delay between the making of the ruling in issue and the lodgment of the notice of appeal. The ordinary rule is that an appeal must be lodged within 28 days of the decision: s 113, Tribunal Act. Ordinarily the Appeal Panel would strike out such a late notice of appeal. The Law Society so applied. But a complication arises because the rule is not a simple time-limited one. The relevant provision is s 113(3) which provides (emphasis added):

‘(3) An appeal must be made:
(a) within 28 days after the Tribunal furnishes the party with written reasons for the appealable decision under section 89, or

(b) within such further time as the Appeal Panel may allow.’

10 The appellant has stated that he inquired from the Registry of the Tribunal after the ruling on 9 October 2001 as to what the rules were. He was told, he said, that as it was an ex tempore decision, he should not appeal until he is able to attach written reasons to the notice of appeal. To that end, he states that he orally requested the provision of written reasons. He made several enquiries over the following months as to what action was being taken on his request. (We note that the only record of such a request in the Registry file is dated 10 April 2002.) He did not receive a response until 11 June 2002 when he was supplied with the transcript for 9 October 2001.

11 As to the question of the stay, the power to stay proceedings is not expressly conferred on the Appeal Panel, but is to be implied from s 116 of the Tribunal Act, which provides:

‘ 116. Appeal does not stay decision

Subject to any interlocutory order made by the Appeal Panel, an appeal under this Part does not affect the operation of the decision concerned or prevent the taking of action to implement the decision.’

12 The Appeal Panel heard submissions from the appellant’s solicitor as to why it should exercise its discretion favourably to the appellant. The submissions mainly focussed on the arguability of the point of appeal. In opposing the application, the Law Society submitted that no arguable point was raised, and referred to various public interest considerations that favoured the continuation of the proceedings below.

13 Clearly a very strong justification would have to be demonstrated before an Appeal Panel would bring to a halt part-heard proceedings in the Tribunal. The appellant contended that this was such a case, as, in his view, the proceedings were incompetent as the allegations raised by the information had already been dealt with, and he had been exonerated.

Stay Application: Ex Tempore Reasons

14 Against that background, the following reasons for decision were delivered ex tempore by the President. There have been some minor editing of the text, for reasons of clarity only; and the addition of case and statutory authority where that was alluded to in the oral reasons.

15 We have an application for stay of a proceeding which is part heard before the Legal Services Division of the Tribunal. The application is made by the practitioner who is the respondent to the disciplinary proceedings initiated by the Law Society who is the respondent to today’s application.

16 The Tribunal Act allows for appeals to be made in respect of decisions in proceedings that are continuing as well as final decisions: s 112 – a ‘decision made in proceedings’ is appealable, read in conjunction with s 171F of the Legal Profession Act. This is the interpretation that has been routinely adopted by the Appeal Panel and appears to have been endorsed by the Court of Appeal in one case: Lloyd v Veterinary Surgeons Investigating Committee [1999] NSWCA 68 per Priestley JA at [23].

17 The power of the Appeal Panel to stay underlying proceedings pending determination of an appeal in respect of an interlocutory ruling flows from s 116 of the Tribunal Act. I acknowledge Dr Griffiths’ submission that the words are less than express on that point. In any case the Law Society does not take any objection along any of the lines that I have just indicated. So I just make those points by way of preliminary.

18 The notice of appeal has been filed only a few days ago on 24 June and had accompanying it a stay application in respect of the part heard proceeding due to resume next Monday, 1 July. So we are sitting here late on Friday afternoon dealing with the question of whether proceedings that are part heard and due to commence on Monday morning should be stayed.

19 There has been some difficulty in ascertaining precisely what is the point of appeal and the Appeal Panel agrees with Dr Griffiths’ submission that it is less than clear on the face of the notice of appeal.

20 It has emerged in the course of submissions this afternoon that the point, as we understand it, on which the appeal seeks to focus is the question of the finality of the order made in respect of the original information filed against the practitioner, that order being made on 28 February 2000.

21 It is said that the present proceedings which are based on a fresh information in respect of the same conduct are ineffective because of the principles that concern the finality of orders and the principles that relate to issue estoppel and res judicata.

22 The first question and the most important question in a stay application of this kind is the arguability of the point of appeal. It is not our role to make any final judgments today on its arguability. On the basis of the material that is before us today, the submissions that we have heard on both sides, we are of the view that the point of appeal would appear to have little or no merit.

23 The proceedings, as we understand the material before us, on 28 February 2000 avowedly proceeded on what I will call for today’s purposes an agreed jurisdictional fact and that is that the information was affected by what has come to be known as Barwick invalidity.

24 If that perception is correct, and maybe one day additional material may show that I have mis-perceived the matter, but if that perception is correct then the Tribunal, whatever it ultimately did, was without jurisdiction to proceed that day and to make any order, in whatever form.

25 Further, there is no evidence before us today that would suggest that the Tribunal on that occasion did proceed in any way to a substantive consideration of the merits of the information such as to give rise to any colourable argument to the effect that a substantive finding of ‘not guilty’ was entered.

26 There was a submission put to us on behalf of the practitioner today that s 76 of the Tribunal Act was the procedure under which the Tribunal had conducted itself on that occasion (this section allows for a determination to be made by the Tribunal on the papers without a formal hearing). We certainly can see nothing in the material before us to provide any basis for such a submission. It would be extraordinary in our view if a proceeding in the nature of a professional disciplinary proceeding were ever to proceed in the manner that s 76 contemplates.

27 So our view on the arguability question is that on the material presented today there is little or no merit in the point.

28 The next issue on which I sought submissions but, in my view, did not really get any concerned the question of what prejudice might be suffered by the appellant if the stay was refused. As I see it there is no immediate prejudice to the practitioner if the matter proceeds on Monday. He is continuing to practise and if he is successful in the proceedings any prejudice may well be able to be addressed by way of an appropriate costs order. So there appears to be no relevant prejudice.

29 The third consideration that is obviously relevant to a stay application of this kind is the broader public interest. Clearly there is a public interest in having part heard matters in Tribunals proceed expeditiously; and a public interest in not incurring costs for Tribunals or parties that are ready to proceed (in this case the Law Society) in having proceedings discontinued or stayed at the last minute.

30 So for all those reasons the application for the stay is refused.

31 There is a further application from the Law Society for dismissal of the notice of appeal.

32 Two grounds are put forward, as I understand it, one that the notice of appeal is so unsatisfactory on its face that it ought to be dismissed; and secondly that it is out of time.

33 As to the out of time question, that is tied up with administrative provisions in s 89 of the Tribunal Act having to do with the giving of written reasons in response to requests from parties; and the way the time requirement is expressed in s 113(3)(a). Given the communications said to have taken place with the Registry, as to which findings of fact may be needed, we are not in a position today to form any final view on whether or not the notice of appeal is out of time in terms of s 113.

34 We agree substantially with Dr Griffiths’ submission as to the inadequacy of the notice of appeal. It is a notice of appeal filed by a practitioner, it relates to a point of law which was simply and quickly dealt with by the Tribunal some months ago. It is a point that one would have thought was capable of being articulated more clearly than is presented in the notice, especially a notice filed after the transcript of oral reasons had been provided.

35 Nonetheless, it is our view that rather than proceed down the track of dismissing the notice of appeal at this stage the preferable course would simply be to adjourn the notice of appeal until the determination of the proceedings or further order. So essentially it is stood aside until such time as the Tribunal disposes of the proceedings before it.

Costs

36 Following delivery of the above oral ruling the Law Society applied for costs. The appellant opposed the application, and his solicitor referred initially to the provision in s 88 of the Tribunal Act stating in effect that the usual rule in the Tribunal is that each party bears their own costs. The Appeal Panel noted that the usual rule was subject to the qualification that it was ‘subject to’ any other Act. It stated that the usual rule in professional disciplinary proceedings was that costs follow the event. The submissions proceeded on that basis.

37 The following ex tempore reasons granting the Law Society’s application were given:

‘There have been no matters put to us which in our view would justify departing from the usual rule as it applies in the Legal Services Division and that is that costs ordinarily follow the event.

This was a stay application brought on in close proximity to the main hearing, the continuing hearing, as I have said, and it was accompanied by little or no supporting material which plainly left the Law Society having to put on substantial material so as to inform the Tribunal as to the matter. As I have already indicated, our perception of the point of claim is that it is particularly weak. So for all those reasons the Tribunal is minded to the view that the usual costs order be made and that is that the applicant pay the respondent’s costs of today’s proceedings. That is our order.’

38 In the course of preparing these reasons it has become apparent that the Appeal Panel may have misled the appellant as to the legal position. The Legal Profession Act only has one provision dealing with the costs of proceedings in the Tribunal:
‘ 171E. Award of costs by Tribunal

(1) The Tribunal may make orders requiring a legal practitioner whom it has found guilty of unsatisfactory professional conduct or professional misconduct to pay costs (including the costs of the Commissioner, the appropriate Council and the complainant).

(2) If, after it has completed a hearing relating to a complaint against a legal practitioner, the Tribunal is satisfied that the practitioner is not guilty of unsatisfactory professional conduct or professional misconduct, the Tribunal may (but only if it considers that special circumstances so warrant) order payment from the Public Purpose Fund to the practitioner of the legal practitioner's costs.

(3) An order for costs:

(a) may be for a specified amount or an unspecified amount, and

(b) if for an unspecified amount, may specify the basis on which the amount is to be determined, and

(c) may specify the terms on which costs must be paid.’

39 The Tribunal Act provides:
‘ 88. Costs

(1) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that there are special circumstances warranting an award of costs.

(2) The Tribunal may:

(a) determine by whom and to what extent costs are to be paid, and

(b) order costs to be assessed on the basis set out in Division 6 of Part 11 of the Legal Profession Act 1987 or on any other basis.

(3) However, the Tribunal may not award costs in relation to proceedings for an original decision unless the enactment under which the Tribunal has jurisdiction to make the decision provides for the awarding of costs.

(4) In this section, "costs" includes:

(a) costs of or incidental to proceedings in the Tribunal, and

(b) the costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application.’

40 It will be seen that it is open to be argued that no costs order can be made against a practitioner prior to a finding of guilt. There is a question as to whether s 88(3) of the Tribunal Act confers some broader power to award costs than that granted by s 171E of the Legal Profession Act.

41 It may be that the Appeal Panel has no power at this stage to award costs; or its only power derives from s 88(1). As the decision proceeded on a mistaken assumption, the Appeal Panel proposes now to vacate the earlier order as to costs, and simply to reserve that question for further submissions when the proceedings below are disposed of.

Orders


1. The application for a stay is refused.

2. The order as to costs made on 28 June 2002 is vacated; and instead the respondent’s application is reserved for further submissions on a date to be fixed after the determination of the information before the Legal Services Division of the Tribunal.

3. The notice of appeal is adjourned to a date to be fixed after the determination of the information before the Legal Services Division of the Tribunal.