Urbaniak-Bak v Council of the Law Society of the Act and “RA” - [2016] ACAT 156

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

URBANIAK-BAK v COUNCIL OF THE LAW SOCIETY OF THE ACT & “RA” (Appeal) [2016] ACAT 156

AA 43 of 2016 (OR3/2016)
Catchwords: APPEAL – application for leave to appeal out of time – original orders made by consent - principles to be considered – reasons for delay – prejudice – whether a consent order can be appealed – merits of proposed appeal – no miscarriage of justice

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 50, 51, 53, 55, 56, 79, 81, 83, 84
Legal Profession Act 2006 ss 410, 413, 416

Subordinate

Legislation:ACT Civil and Administrative Tribunal Procedural Directions 2010 (No 1)
ACT Civil and Administrative Tribunal Procedure Rules 2009(No 2) rr 14, 22
Court Procedures Rules 2006 r 1613

Cases cited:Concerned Citizens of Canberra Inc v Chief Executive (Planning and Land Authority) [2015] ACTCA 56
Giusida Pty Limited v Commissioner for Revenue [2016] ACTSC 275
Harris v Caladine [1991] HCA 9
Legal Practitioner v Law Society of the ACT [2016] ACTSC 203
Wang v Lin & Jiang [2016] ACAT 84

Tribunal: President L Crebbin

Date of Orders: 23 December 2016
Date of Reasons for Decision: 23 December 2016

AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AA 43 of 2016
(OR 3/2016)

BETWEEN:
MALGORZATA URBANIAK-BAK
Applicant

AND:
COUNCIL OF THE LAW SOCIETY OF THE ACT
Respondent

AND:
“RA”
Party Joined

Tribunal: President L Crebbin

Date: 23 December 2016

ORDER

The Tribunal orders that the application for leave to appeal out of time be dismissed.

.........................................................
President L Crebbin

REASONS FOR DECISION

Mrs Malgorzata Urbaniak-Bak has applied for leave to file an application to appeal from a decision of the tribunal out of time, and also asks that the whole of her original application, or at least a question of law, be referred to the Supreme Court.
The decision she wishes to appeal is a consent order made on 1 April 2016 in proceedings between her, the Council of the Law Society of the ACT (the Council) and a lawyer identified as ‘RA’ who was joined to the proceedings.
The Legal Profession Act 2006 includes a scheme that allows complaints about lawyers to be investigated by the Council. A complaint may be dismissed, or concluded summarily with disciplinary action, or result in an application by the Council to the ACAT for disciplinary orders.[1] Mrs Urbaniak-Bak complained to the Council about RA and initially, her complaint was dismissed after it was investigated. She appealed the Council’s decision to dismiss her complaint to the tribunal. This was the original proceedings. The application was authorised by section 416 of the Legal Profession Act. The history of the original proceedings is described in greater detail below.
[1] Section 410, Legal Profession Act2006
On 1 April 2016 the original proceedings finished when the tribunal made an order by consent that set aside the decision to dismiss the complaint and sent the complaint back to the Council for reconsideration. The order vacated the hearing of the original application scheduled for early May 2016 and noted that an application for a reasons statement in relation to the decision did not need to be considered further because the decision had been set aside.
Mrs Urbaniak-Bak says that she now wishes to appeal the consent order within the tribunal pursuant to section 79 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act), because she believes that her case involves a matter of public importance that should be considered by the Supreme Court, or some other senior authority. If the consent order isn’t set aside and her case isn’t revived and referred to the Supreme Court, the issue of public importance will not come to light and will not be properly considered. The Council queries whether there is some other motivation for her wanting to challenge the order she was once prepared to consent to, but it isn’t necessary to consider that issue.
What is said to be the matter of public importance concerns the way in which the Council’s powers to deal with the complaint were exercised. During the course of the original proceedings a document was produced that caused Mrs Urbaniak-Bak to be concerned that her complaint was investigated by the Complaints Committee of the Council, acting under a delegation of the Council’s powers, when the delegation may not have been validly made. She is concerned that the decision to dismiss her complaint was made without lawful authority. While she is concerned about this in relation to her own complaint, she says she has a broader concern that the Committee may have purported to make decisions about other complaints, without the authority to do so, for some years.
Her application to appeal is well out of time and the tribunal must give her leave before the appeal can proceed.

Applications for Leave to Appeal out of Time – Principles

Section 79 of the ACAT Act allows a party to appeal a decision made by an original tribunal on a question of fact or a question of law. Appeals are considered within the tribunal by an appeal tribunal.[2]
[2] section 81, ACAT Act
A notice of appeal must be filed no later than 28 days after the day the original decision is made.[3] Once time runs out, the party has to apply for leave to appeal out of time. No specific form has to be used but the application must have a draft notice for appeal, and must have a statement showing the nature of the case, the questions of fact or of law that the person says is involved in the appeal and explain why leave should be granted.[4]
[3] rule 14, ACAT Rules
[4] rule 22, ACAT Rules
An application for leave to appeal out of time is not an appeal in itself, and a decision about such an application is not a decision of an appeal tribunal. There is no appeal unless leave is granted.[5] The application for leave is dealt with as an original application but is given an ‘AA’ case identifier. As a matter of practice, presidential members are allocated to the tribunal for the application. If leave is given and time extended an appeal can progress using the same file and, subject to availability, the same presidential member.
[5] See the discussion of this by Elkaim J in Legal Practitioner v Law Society of the ACT [2016] ACTSC 203
In this case, the consent order was made at the hearing of an interim application in circumstances that are detailed below. Ignoring for the moment any question of whether a consent order constitutes a decision of the tribunal for the purposes of section 79 of the ACAT Act, I note that the applicant was present when the order was made. If an appeal was available it should have been filed by 29 April 2016.
The principles that the ACAT must follow when considering an application for leave to appeal out of time are well-established and used regularly by courts and tribunals. In Concerned Citizens of Canberra Inc v Chief Executive (Planning and Land Authority)[6], his Honour Justice Refshauge repeated the principles he had set out in an earlier case:
[6] [2015] ACTCA 56 at [20] – [21]
1. Time limits are important and must, prima facie, be obeyed.
2. In order to justify a court acceding to an application to extend time, there must be some material on which the court can exercise its discretion.
3. Such an application should only be granted if, having regard to the important value of finality in litigation and the need for time limits to be respected, it is proper to do so.
4. There should be an explanation for the delay, as to which any action (other than to appeal) that has been taken by the applicant is relevant.
5. The court must consider any prejudice to the respondent in defending the proceeding, as caused by the delay, and any such prejudice will tell against the extension.
6. The mere absence of prejudice is not enough to justify the extension of time.
7. The merits of the appeal itself must be taken into account in deciding whether an extension of time should be granted.
8. The court, on considering an application for an extension of time within which to appeal, should not decide the appeal and, in an appropriate circumstance, an arguable case may be sufficient, though in the case of long delay it may be necessary to show that the applicant has a strong case.
9. Nevertheless, the application is to be determined by the court’s view of the demands of justice in accordance with a broad judicial discretion and not by the mere application of a verbal formula.
10. In particular, the court will look, above all else, to determine whether there has not been and will not be, if the application is refused, a miscarriage of justice which will always be an overriding consideration.
The principles were most recently considered by the tribunal in Presidential Member Symons’ decision of Wang v Lin & Jiang.[7] In essence, the principles require the tribunal to consider the applicant’s explanation for delay, prejudice, the merits of the proposed appeal and whether justice requires that the application be allowed.
[7] [2016] ACAT 84
Considering the merits of the proposed appeal in the context of an application for extension of time to appeal requires that the tribunal consider whether there is an arguable basis for concluding that the original tribunal has made an error of fact or of law that is material, in the sense that it is an error that might make a difference to the outcome of the case.[8]

The original proceedings

[8] See the consideration of the approach that the ACAT should take on appeal in Giusida Pty Limited v Commissioner for Revenue [2016] ACTSC 275 at [29] to [42]

The consideration of these principles is easier to follow if the original proceedings are described in greater detail.
The original proceedings started on 5 January 2016 when Mrs Urbaniak-Bak (the applicant) filed an application with ACAT appealing a decision to dismiss her complaint to the Council about RA. Section 416 of the Legal Profession Act 2006 provides the ACAT with authority to receive and consider applications from complainants to appeal decisions made to dismiss their complaints after investigation.
On 15 February 2016 orders were made joining RA to the original proceedings, prohibiting publication of his name and setting a timetable for evidence and submissions to be filed before a hearing listed for May 2016.
At a directions hearing held on 7 March 2016 some of the dates set for documents to be filed were varied and the presiding member provided reasons for her decision to make the orders of 15 February 2016.
On 11 March 2016 the applicant filed an application that she wanted dealt with before the substantive hearing (the interim application). Part of the interim application is reproduced here because it helps to explain the issue that she wants to have referred to the Supreme Court. She wrote:
...I seek that the tribunal investigate the authenticity, validity and authority of the document provided by Mr Reis as an instrument of delegated power to the Complaints Committee of the ACT Law Society. This document was provided at the directions hearing on 7 March 2016 and may be used as important evidence in my case before the tribunal.
At the directions hearing on 10 February 2016, the Presidential Member M.T. Daniel urged Mr Reis to provide this instrument of delegation which gives the Committee power as it is an important legal issue…
I seek that the Tribunal identify this document and the Laws that are relevant to this situation and then how those Laws apply in this particular situation. If this document is not a written instrument of delegation from the Attorney-General, or an executive branch of government, the power in question has the potential to adversely affect the rights of individuals…
I apply for orders to be made by ACAT to revoke the decision of the Complaints Committee and forward my application to the ACT Law Society Council to deal appropriately regarding the complaint. (emphasis added)
Another interim application was filed by the applicant on 18 March 2016 seeking a reasons statement from the Society.
The two interim applications were listed for hearing on 1 April 2016. The applicant appeared assisted by her son. Mr Buxton, who is a solicitor, appeared for the Council with Mr Reis, and Mr Whybrow of Counsel appeared with Ms Roxburgh for RA.
The hearing opened with a discussion about the document referred to as a delegation. The minutes of a meeting of the Council held in August 2012, which were said to record a decision to delegate some of the powers of the Council to its Complaints Committee, had been provided on an earlier date to the tribunal and to the applicant. Mr Buxton said that the Council confirmed or ratified the minuted decision to delegate powers at a meeting on 31 March 2016.
After a discussion about the powers of the tribunal, about whether the interim application raised an issue that could be dealt with on an interim basis or was actually something to be dealt with in the substantive application, about referrals of questions of law to the Supreme Court, and about the judicial review powers of the Supreme Court, Mr Buxton asked for a short adjournment.
When the hearing resumed Mr Buxton announced he had instructions from the Council to the effect that the decision under appeal would be rescinded and the applicant’s complaint referred to the Council to be considered afresh. This was the very outcome the applicant sought in her application of 11 March 2016.
The applicant agreed that this was the outcome she wanted but she said:
…I also ask if the case could be allocated to the Supreme Court because now I consider that I don’t think I can trust ACT Law Society Council...
There then followed a lengthy and wide-ranging discussion including whether the tribunal had the power to consider the validity of the purported delegation or whether that was a matter solely for the Supreme Court exercising judicial review powers; what the Council could decide when it considered the applicant’s complaint afresh, whether the applicant could still go to the Supreme Court, whether Mr Buxton should put his instructions in writing and give the applicant a week to think about it, how the interim applications listed for hearing that day should be disposed of and the possible disposition of the substantive application.
On several occasions the applicant’s son spoke of the applicant’s wish to have the Supreme Court consider the validity of the delegation and of the decision making processes of the Society so as to expose the possibility that the Society had been dismissing complaints, at least since 2012, relying on an invalid delegation.
The presiding member described the options on that day available to her to be first, to make the orders that the applicant asked for by consent so that the matter before the tribunal was finalised or second, for the applicant to withdraw the application for interim orders and to file another application asking the tribunal to refer a question of law to the Supreme Court pursuant to section 84 of the ACAT Act.[9]
[9] Transcript of Proceedings 1 April 2016 page 42, lines 10 - 30
In relation to the second option the member said that she would not make an order referring the question of law to the Supreme Court if she were dealing with such an application. She talked about her reasons for that view. The hearing was adjourned so that the applicant could consider the options.
When the hearing resumed the applicant’s response was ambivalent. She said that she would like the matter to “get back to Law Society Council or refer to the Supreme Court.” This generated further discussion about the Supreme Court and a question from the applicant’s son about whether, by agreeing to have the decision set aside and her complaint referred back to the Council, the applicant would limit her ability to “then appeal in the Supreme Court.” The member replied that she didn’t know.
The applicant asked for one week to think about the situation – the member declined what was in effect an adjournment request, saying that she needed to make a decision on the interim applications before her that day because the final hearing was coming up, but that there was nothing stopping the parties “reaching a consent outcome separately.” She noted that Mr Buxton had agreed to send a proposed consent order to the applicant to resolve the proceedings and to give the applicant a week to think about it. That could still occur whether or not the hearing then before the tribunal continued.
There was further discussion about the consequence of making the orders the applicant had asked for by consent. The member explained that if the orders were made the matter would go back to the Council and that would take care of the “whole proceedings here and now”, another decision would be made by the Council and if the applicant was not happy with that decision she may or may not have rights of review, depending on the decision. The discussion continued. Because of some of the matters raised in the draft application for appeal it is useful to set out a substantial part of the transcript for the closing stages of the hearing:
MS URBANIAK-BAK:   So one more question.
PRESIDENTIAL MEMBER:   Yes?
MS URBANIAK-BAK:   If for example I withdraw the interim orders and you make an order to get it back to Law Society Council ‑ ‑ ‑
PRESIDENTIAL MEMBER:   No, I won’t. If you withdraw your interim orders, I’m not making that order.
MS URBANIAK-BAK:   I don’t understand this one, actually. I don’t understand withdraw and making order to get back to Law Society.
PRESIDENTIAL MEMBER:   I’m making it because you asked for it, and they agreed. But if you’re no longer asking for that order, then I’m not making it.
MR WHYBROW:   I think perhaps where the confusion might be is, if the interim order is granted by consent, we go back to council, the substantive underlying order will need to be withdrawn because there’s nothing left.
PRESIDENTIAL MEMBER:   I would make the interim order as a consent order. It finalises your case here today. It finalises you here, your review application today. I would make it as a consent order.
MR WHYBROW:   Yes. So that Ms Urbaniak-Bak understands that ‑ ‑ ‑
PRESIDENTIAL MEMBER: And because it’s not being committed to writing, I’m taking great pains to make sure everyone understands what’s happening.
MS URBANIAK-BAK:   So we’re going to get in writing what you ‑ ‑ ‑
PRESIDENTIAL MEMBER:   You would ultimately get an order. But if I make it an order by consent today, everyone needs to be very clear who’s asking for it and who’s agreeing to it. At the moment, you’re asking for the order for this complaint to go back to the Council of the Law Society, because that’s your interim orders application. That’s what it asks for. You’re asking for that. Mr Buxton and Mr Whybrow are saying yes. Okay, so I would make that order for you. If you’re asking for it and everyone else is agreeing.
MS URBANIAK-BAK:   Yes, I’m not coming back here to ACAT if you make an order that the ‑ ‑ ‑
PRESIDENTIAL MEMBER:   That it go back to the council. No.
MS URBANIAK-BAK:   Yes. Is that correct?
PRESIDENTIAL MEMBER:   That’s correct. You would be finished here, and you would be back at the Council of the Law Society level, telling them what you think should happen with your complaint, back where you started. But they’ve got this much material already, you’d be adding to that and having a go at that level.
MS URBANIAK-BAK:   Yes, I think so.
PRESIDENTIAL MEMBER:   You think so?
MS URBANIAK-BAK:   Yes, but just my health is at stake. I mean, you know, it too much. My job ‑ ‑ ‑
PRESIDENTIAL MEMBER:   All right, and that’s all right too. Because people can make their decisions about their legal actions for a range of reasons, and it’s okay to say, “That’s what you wanted and now I will make that order.”
MS URBANIAK-BAK:   Well, that was my request.
PRESIDENTIAL MEMBER:   That was your first request.
MS URBANIAK-BAK:   Yes, like that.
PRESIDENTIAL MEMBER:   And then, we don’t know what will happen. You may be happy with the decision or you may not be, and you will take ‑ ‑ ‑
MS URBANIAK-BAK:   Hopefully I will be happy.
PRESIDENTIAL MEMBER:   All right.
MS URBANIAK-BAK:   Fingers crossed, anyway.
PRESIDENTIAL MEMBER:   So what that will mean is that I will make an order today, by consent of the parties, that the decision under review is set aside and the matter is remitted back to the decision‑maker for consideration. All right?
MR URBANIAK:   Thank you.
PRESIDENTIAL MEMBER:   And the understanding of everybody is that that’s going back in fact to the council. But I don’t have the power to say the council must hear this matter. That is beyond my power. But I note that you’ve all reached this agreement on a shared understanding that, in fact, it will be the Council and not a committee. Is that right?
MR BUXTON:   The Law Society can ensure that.
PRESIDENTIAL MEMBER:   All right. Well, it’s been a very long journey to get to this point and hard I think for everyone but I hope that from this point onwards things will unfold a bit more clearly for you and you might have more satisfaction with the outcomes. All right?
MR URBANIAK:   Thank you.
PRESIDENTIAL MEMBER:   So I’ll make those orders and that will be typed up and sent to you all, and I, with luck, won’t see you again.
MR BUXTON:   Thank you, Madam President.
MR WHYBROW:   Thank you, Madam President.
PRESIDENTIAL MEMBER:   You’ll all do your best not to have to come back here again.
MR URBANIAK:   Thank you, President.
PRESIDENTIAL MEMBER:   All right.

The application for leave

The applicant filed a ‘Draft’ Application for Appeal on 1 August 2016 – some 94 days or just more than three months, after the due date. There was no separate application form asking for an order for leave to appeal, but noting that the applicant was representing herself, that there is no approved form for this purpose, that the document filed contained sufficient information to make clear what was sought and why, and the applicant’s intention was clear; this application was accepted as incorporating an application for leave. This is consistent with the tribunal’s objects and principles. The respondents were not disadvantaged. The Council noted the absence of a specific application that complied with the requirements of rule 22 of the ACAT Procedure Rules 2009 (No 2) but, appropriately, did not press an objection.

Explanation for Delay

The applicant wrote on the draft appeal application by hand saying that it was out of time because she had filed an application for her case to be referred by the ACAT to the Supreme Court earlier and that had been rejected.
The original file shows that on 4 July 2016 the applicant attempted to file an application asking the tribunal to refer what was described as a question of law and fact, to the Supreme Court. The question was whether decisions about complaints had been made without authority and in the absence of a valid delegation. This application was rejected by the Registrar because there was no application before the tribunal at that time in respect of which a referral of a question of law could be made.
At the hearing of her application for leave on 15 August 2016 the applicant identified a number of things that contributed to the delay. First, she did not know there was a time limit. Second, she was waiting for a response to a letter she had sent to the Attorney-General which she hoped would address her concern. Third, she made an application direct to the Supreme Court which was rejected, and then made the application to the tribunal referred to in paragraph 12 above. In summary, the delay occurred because the applicant was not certain how to proceed to progress her concern – she tried a number of different pathways without appreciating that there was a time limit.
The Council submitted that the applicant’s explanation for delay was not adequate for the tribunal to be satisfied that it is proper to grant her application. Reference was made to High Court decisions said to be authority for the proposition that it is necessary to establish “exceptional circumstances” where there is a delay of many months.[10] In both cases referred to the delays involved periods of 16 months. The delay here is much less.
[10] Outline of Council’s submissions, 12 August 2016, paragraph 3
I don’t accept that a different standard needs to be met by an applicant for extension of time if there is a delay of many months. The relevant inquiry for all matters must be whether it is proper in all the circumstances, noting the importance of finality, the need for time limits to be respected, any explanation for delay, consideration of prejudice, the merits of the proposed appeal and the demands of justice; for an extension to be granted.
In this case the delay of three months is explained to an extent by the applicant’s attempts to work out a pathway that would allow her to take her concerns to the Supreme Court. It is not an unreasonable explanation, nor is it sufficient by itself to lead to a conclusion that it is proper to extend time.

Prejudice

I note the applicant’s submission that she will be prejudiced generally and that the interests of others, whose complaints may have been considered by the Committee acting without lawful authority be adversely affected, if her appeal cannot proceed. It was not suggested to me that the applicant will receive any payment or other direct personal benefit as a result of the outcome of the original proceedings, or of this appeal. Her complaint was, as a result of the consent order, considered by the Council (having been earlier considered by its Complaints Committee) and a decision was made to discipline RA using powers under section 413 of the Legal Profession Act 2006. The actions she consented to, and that she asked for in her interim application, have been undertaken. The prejudice to her might be described as the loss of an opportunity to make public her concern about the decision-making process of the Council, rather than the deprivation of any entitlement in relation to her complaint about RA. Her complaint has been reconsidered, a decision made and finalised.
Neither the Council’s, nor RA’s representative addressed this issue directly although RA’s representative did say that his client “has already been through the ringer here with this.” It is apparent that RA will suffer prejudice if leave is granted because after the consent order was made, the Council further considered the complaint and then took action against him under section 413 of the Legal Profession Act. Both the Council and RA will have additional expenses and there will potentially be additional stress for RA, in circumstances in which he was entitled to assume that the complaint process was finalised.
I accept that both parties will experience prejudice to some degree although the prejudice to the applicant is general in nature and not directly related to her complaint about RA. The personal prejudice that RA may experience and the prejudice to the Council in terms of resources, is more direct and evident. A consideration of prejudice is not, in this case, by itself sufficient to decide whether time should be extended but it weighs in favour of refusing the application.

Merits of the proposed Appeal

Can a consent order be appealed?

There is a real doubt about whether section 79 of the ACAT Act permits an appeal in relation to a consent order. This is because making an order by consent does not usually involve the making of a decision by the tribunal and no question of fact or law could usually be associated with it. The usual process followed by a person who changes their mind about a consent order is to apply to set it aside and request that the application be restored to a hearing list. Such an application could perhaps be made relying on the powers given to the tribunal under section 56 of the ACAT Act. I note that, the ACAT procedural directions deal with such applications by saying[11]:
45.3 The tribunal may set aside a consent judgment only if any of the following apply in relation to the application for judgment or the entry of judgment:
45.3.1 fraud;
45.3.2 duress;
45.3.3 suppression of relevant information or evidence;
45.3.4 false evidence or information given and relied on;
45.3.5 change of circumstances;
45.3.6 impracticability of enforcement;
45.3.7 any other ground the tribunal considers just.
[11] ACT Civil and Administrative Tribunal Procedural Directions 2010 (No 1), PD 45.3
The Council raised this issue in its submissions referring to the remarks of Brennan J in his High Court decision of Harris v Caladine [1991] HCA 9 at paragraph 13, and to the provisions of Rule 1613 of the Court Procedures Rules 2006. The Rule does not apply to tribunal proceedings but its content is similar to procedural direction 45.3 and in both cases, the procedures reflect the position described by Brennan J – that is, that a consent order finalising a matter embodies the terms of a contract between the parties and should only be disturbed on the same grounds as any other contract.
The applicant’s submissions did not address this issue and I have decided not to reject her application on this basis but to consider whether the reasons for appeal proposed show at least an arguable case in accordance with the seventh and eighth principles set out in paragraph 12 above.
I note however, that if an application to set aside the consent order had been made, I am of the view that the application could not succeed. A review of the transcript of the hearing shows no hint of fraud, false information or evidence, suppression of relevant information or evidence, or duress. The member was at pains to make clear to the applicant that she did not have to consent to what had been proposed – even though it was what she said she wanted – and that she could continue to consider the proposal after the hearing. This issue is considered further below. There is no suggestion of a relevant change in circumstances since the order was made. The order has been enforced in the sense that what was agreed would be done, has been done.

Grounds for proposed appeal

The draft application for appeal has an attachment headed ‘Reasons for Appeal’ that sets out 10 reasons, some of which cover the same things.
Reason 1 says “The appellant was unsuccessful in her endeavours in relation to question of law to be taken into account and refer to the Supreme Court by presiding member of the Tribunal, Ms Daniel...the President violated the appellant’s rights in ACAT proceedings.” A number of transcript references are then given. This reason is difficult to follow because it does not explain what rights were violated or in what way, and neither is it apparent from the transcript references. The tribunal did not have an application to refer a question of law or to remove the whole application to the Supreme Court, before it. At one point the applicant’s son said “we’re still undecided whether we will be going down that road.” The member clearly told the applicant what she needed to do if she wished to pursue such an application.[12] The member expressed a view about the potential outcome if an application to refer a question of law were made, but made no decision about it because that was not the application before her. The reason does not disclose an arguable basis for appeal.
[12] Transcript of Proceedings 1 April 2016 page 42, lines 10 - 14
Reason 2 and 4 cover similar ground and refer to a failure to “deal correctly according to tribunal’s powers and acts over the issue of interim orders under section 53 and 55” and a failure to have consent in writing under section 55(1)(b). The references to sections here are to the ACAT Act.
Section 53 of the ACAT Act permits the tribunal to make any order “that it considers appropriate to protect the position of the party that applied for the order” if the threshold requirements in section 53(1) are met. This section is intended to allow the tribunal to make orders that assist to maintain a status quo for a party while a matter is dealt with by the tribunal. Most commonly, orders made under this section are in the nature of stay orders, or interim injunctive relief pending the hearing of the substantive application.
The order sought in the application filed on 11 March 2016 and described in paragraph 19 above was not an application for an interim order pursuant to section 53. There is no sense in which it could be said that the order sought was an order that was relevant to the protection of the position of the applicant – in truth, it was an application for substantive orders. Had the Council not indicated that it agreed to the orders sought by the applicant and the hearing of the application proceeded, at best the tribunal could have decided to consider the matters raised as part of the hearing of the substantive application, that is, the application to appeal the dismissal of the complaint. The only other possible outcome was a dismissal of the application. As it transpired, the tribunal did not need to deal with it because an agreement was reached. This is not an arguable basis for appeal.
Section 55 provides the tribunal with a power to make a decision in accordance with agreed terms that are reduced to writing, signed by the parties and lodged with the tribunal. The reasons for appeal contend that the consent order was not correctly made because there were no written terms of agreement signed by the parties.
This misunderstands the role of section 55 and the powers of the tribunal. Section 55 is permissive and does not proscribe the tribunal’s power to make consent orders. It is most commonly used when parties reach an agreement outside of a formal tribunal listing such as a conference or hearing. That was not the case here. Section 56 (b) of the ACAT Act provides a clear power to make orders with the consent of the parties and it is also clear that the power extends to the making of consent orders that finalise or decide proceedings. The example provided for section 56(b) is of an order dismissing a proceeding with the consent of the parties. It is not the case that consent orders can only be made after the terms of an agreement have been reduced to writing and signed by the parties. There was no error in the way in which the consent order was made in this case.
Reasons 2 and 4 do not disclose any arguable case for appeal.
Reason 3 is that the member “was leading the appellant to make consent with the respondent and other party on the day of the hearing ...regarding the appellant application back to ACT Law Society for reconsideration instead of referring the matter to the Supreme Court...” This reason does not disclose an arguable basis for appeal. First, there was no application for a referral to the Supreme Court before the tribunal. Second, as a matter of fact the member made it clear that it was for the applicant to say what she wanted to do. It is true that on a number of occasions the member reminded the applicant that what was proposed was exactly what the applicant had asked for in the application that was before the tribunal and that if she didn’t want that order any more, she should withdraw her application. That was an appropriate reminder. It would have been an abuse of the tribunal’s processes for the applicant to insist on there being some sort of hearing of her application in circumstances in which the respondent and party joined said they agreed with the order she wanted. Her choices were accurately described by the member – to either withdraw the application if she no longer wanted the order she had sought and allow her substantive hearing to proceed while continuing to consider the offer if she wished to do so, or to accept the agreement offered there and then.
The member engaged in lengthy discussions with the applicant and her son about the actual and potential consequences of the various options available. The Council’s representative protested at one point about the discussion and the member responded by referring to the obligation to ensure that the applicant understood what would happen to her application.[13] The member adjourned to give the applicant some time to talk to her son outside the hearing room. To the extent to which this reason suggests that there was some duress applied by the member, the suggestion cannot be sustained on a reading of the transcript.
[13] Transcript of Proceedings 1 April 2016 page 48, lines 18 - 29
Reason 5 is that the member “erred by failing to obtain the statement of reasons for ACT Law Society dismissal decision ...” I take this to mean that the member erred by not deciding the second application listed for hearing on 1 April, that is, the application filed on 18 March 2016, and making the order sought by the applicant. The orders made on 1 April 2016 noted that the application in relation to the reasons statement did not need to be considered because the relevant decision had been set aside. The application had been opposed by the Council and RA, both contending that an adequate reasons statement had been provided.
The member heard submissions from the parties before the agreement was reached. RA’s representative said:
MR WHYBROW: I just want to add that if we’re at a point where effectively the applicant is getting the exact relief that she seeks, which is that the decision be set aside and it goes back to the council of the Law Society, not to the committee, and be considered afresh, then I agree with Mr Buxton’s use of the word “otiose”. It’s totally otiose to still seek reasons for a decision that no longer exists.
PRESIDENTIAL MEMBER: That will no longer exist.
MR WHYBROW: That will no longer exist if we get to that point.
...But in the circumstances where everybody is effectively putting a proposal to the applicant that we will go back and do it again, or consent to it, it is a matter that should be, in effect, put in abeyance until we know whether she accepts it.
These submissions are correct. It would not have been reasonable for the member to make an order requiring the provision of a further reasons statement when the applicant had yet to make up her mind about what she wanted to do.
Once the parties agreed to set aside the decision under appeal, there was no basis to require a further statement of reasons, whether or not the existing statement was adequate. The substantive application was finalised. The tribunal’s function was discharged and no further orders could or needed to be made.
Reason 5 does not disclose an arguable case for appeal.
Reason 6 is that the member “failed in her professional competency when expressing her own view regarding whether to refer a question of law to the Supreme Court and what outcome will be from it.” Three transcript references are given.
This reason needs to be considered in context. The application being considered asked that the tribunal investigate the validity of the Council’s delegation instrument. At the hearing the applicant confirmed that she wanted the tribunal to determine whether the decision under review was a valid decision.[14] The powers of the tribunal were clearly central to a consideration of what the applicant was seeking. At page 11 of the transcript the member refers to having asked the parties in an earlier hearing to look at the question of whether the tribunal had the power to decide if the decision under review was unlawful.
[14] Transcript of Proceedings 1 April 2016 page 9, line 10
The applicant’s son asked the member to explain the procedure for referral of questions of law to the Supreme Court.[15] She did so. She explained her concern that the referral of a question of law would not necessarily achieve what the applicant wanted. The applicant’s son asked questions about the potential outcomes. She answered the questions. She indicated that if she were dealing with such an application she would not grant it and explained why.
[15] Transcript of proceedings 1 April 2016 page 26, line 21
It was proper and appropriate in that context for the member to give an indication of the outcome of an application for the referral of a question of law. In doing so she may have created a situation in which she could not be allocated to the tribunal to decide such an application if it was in fact made because it might be said that she had pre-judged the issue, but in the context of the application that was before her and the unrepresented applicant’s wish to understand procedures and outcomes it was appropriate for her to express this view. It was also consistent with the tribunal’s obligation to assist unrepresented parties to understand proceedings and with the tribunal’s objects and principles in so far as they require that the tribunal deal with matters quickly and simply.
Moreover, the view she expressed was correct. The substantive application to appeal the decision to dismiss the complaint, did not give the tribunal a wide ranging power to investigate or inquire into the validity of any delegation by the Council of its powers to the Committee. The member’s analysis was correct as a matter of law. Any referral to the Court must relate to a question that the tribunal needs to know the answer to, so that it can discharge its function. The tribunal’s function in this case was a merits review function. That is not a function that involves investigating the validity of the decision making process. The member made reference on at least two occasions to the difference between the tribunal’s function and the Court’s powers on an application for judicial review of an administrative decision. The Court’s powers to consider the validity of a decision and to make a declaration cannot be triggered by the tribunal referring a question of law to the Court under section 84 of the ACAT Act, or by the tribunal removing an application to the Court under section 83 of the ACAT Act.

No arguable case for appeal can arise from reason 6.
Reason 7 is that the member “erred by failing to provide an opportunity for appellant to appeal from reconsidered decision of the Law Society Council because she said, she would dispose of the application anyway.” This reason involves a misunderstanding of what was said, ignores the rest of the conversation and misunderstands the powers of the tribunal. It does not disclose an arguable case for appeal. The transcript reference given is to the following:
PRESIDENTIAL MEMBER: If I make the interim order that you sought asking for the matter to go back to the Council of the Law Society, that takes care of your whole proceedings here and now and you would go back to the Law Society and then if you’re not happy with the decision that they make you may or may not have rights of review depending on what decision they do make. You see? But you wouldn’t be coming back here because I would have disposed of your application. I would have made an order that your complaint go back to the Council of the Law Society to be considered and that disposes of your application for review.
MS URBANIAK-BAK: Right.
PRESIDENTIAL MEMBER: Do you see?
MS URBANIAK-BAK: Yes, now I understand (indistinct)
PRESIDENTIAL MEMBER: The use of the legal terminology, it’s not always clear the first time you say it.
MS URBANIAK-BAK: No, it’s not especially for me.
This discussion had nothing to do with the decision that the Council was going to reconsider. The reference to the disposal of the application was a reference to the substantive application seeking to appeal or review the decision made on 21 December 2015. The member correctly stated the law. The tribunal’s power was limited to appealing that decision. If the decision was rescinded or set aside, the tribunal had no power, or no authority, or no jurisdiction to do anything further in relation to that decision. The application was finished. The tribunal could not somehow hold the application open so that the Council could reconsider the decision and then continue with the substantive application if the applicant was unhappy with the outcome the second time around. The tribunal’s power was restricted to the application to appeal the decision made on 21 December 2015. It did not mean that any future rights of appeal could not be pursued, and the applicant clearly understood that that was the case. The conversation continued:
PRESIDENTIAL MEMBER: So that means there’s an end for now, and you go to the council and you give any further information about your complaint, let them sort it out. If you’re not happy with the decision ‑ ‑ ‑
MS URBANIAK-BAK: I can appeal it.

PRESIDENTIAL MEMBER:   It depends on the decision. Some decisions you can appeal. Some decisions you can’t.
MR URBANIAK:   What does 413 – I haven’t really read it – state about when the council can reject the decision without it going to ACAT?
PRESIDENTIAL MEMBER:   I haven’t read that, I’m sorry.

Reason 8 generally asserts that the member denied the applicant natural justice and procedural fairness. No particulars are given of how this is the case. A review of the transcript shows that the applicant was given generous opportunities to put her case and to respond to matters raised on behalf of the Council and RA. Further, nothing in the transcript supports an assertion of actual or apprehended bias on the part of the member.
Reason 9 asserts that the member erred by failing to give the applicant an opportunity to have time to consider the consent decision. This assertion cannot be made out. A review of the transcript shows that the member adjourned the hearing to give the applicant time to consider the Council’s proposal that her application be accepted and the order that she asked for made, and then repeated on several occasions that the applicant could elect to withdraw her application and continue to consider the proposal which the Council’s representative said he would put in writing to her, outside the tribunal hearing process. The applicant was clearly given that opportunity but decided not to pursue it.
Reason 10 says that the member failed to deal with the issue of the Council’s delegated powers as it was an important matter in an application concerning public interest under section 50 and 51 of the ACAT Act. This reason involves a misunderstanding of the law and of the role of the tribunal. Section 50 and 51 of the ACAT Act relate to the procedure to be followed when a member allocated to a tribunal has a material interest in a matter before the tribunal. The sections have nothing to do with general matters of public interest.
Further, for the reasons set out in paragraph 66 above, the tribunal could not “deal with the issue of the Council’s delegated powers.” The functions of the tribunal and the powers available to it in reaction to the substantive application did not allow the tribunal to do so.
No arguable case for appeal is shown in any of the proposed reasons for appeal.
While I understand the applicant is concerned about the decision making process initially adopted by the respondent in relation to her case and that she wishes to make those concerns public, the tribunal is not the vehicle to pursue those concerns. The tribunal cannot ignore its statutory limitations and its obligation to only deal with matters that it has power to deal with. Whether or not there is a matter of public interest, section 84 of the ACAT Act does not give the tribunal a broad ranging power to refer any matter of public interest or any question of law that might engage a public interest to the Court. It is not a “stand alone” power. It operates only to give the tribunal a power to ask the Court to consider questions of law that the tribunal must determine in order to discharge its function in relation to an application that it is authorised to deal with. The question that the applicant wishes to pursue is not such a question.
There is a further practical problem – the decision that the tribunal was authorised to deal with by section 416 of the Legal Profession Act has been rescinded. Another decision has been made. The applicant’s complaint has been considered and an outcome reached. The tribunal is not authorised to review the new decision. As a matter of practice there is now no decision that the tribunal can review.
I have considered whether justice demands that leave be given to appeal out of time and whether a miscarriage of justice will occur if it is not. Given the conclusions set out in paragraphs 74 to 76 above, I am satisfied that there will not be a miscarriage of justice and that justice does not demand that the applicant’s application for leave be granted. In all the circumstances, including the reason for delay, the prejudice to her and to the other parties and the merits of her proposed appeal, it is proper that the application be dismissed.

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President L Crebbin

HEARING DETAILS

FILE NUMBER:	AA 43/2016
PARTIES, APPLICANT:	Mrs Urbaniak-Bak
PARTIES, RESPONDENT:	Council of The Law Society of The ACT
PARTY JOINED	“RA”
COUNSEL APPEARING, APPLICANT	N/A
COUNSEL APPEARING, RESPONDENT	N/A
COUNSEL APPEARING, PARTY JOINED	N/A
SOLICITORS FOR APPLICANT	N/A
SOLICITORS FOR RESPONDENT	N/A
SOLICITORS FOR PARTY JOINED	Snedden Hall & Gallop
TRIBUNAL MEMBERS:	President L Crebbin
DATES OF HEARING:	15 August 2016