Viscariello v Livesey - [2013] SASC 99

SUPREME COURT OF SOUTH AUSTRALIA
(Miscellaneous Appeal: Civil)
VISCARIELLO v LIVESEY & ANOR
[2013] SASC 99
Judgment of The Honourable Justice White
27 June 2013
PROFESSIONS AND TRADES - LAWYERS - COMPLAINTS AND DISCIPLINE - PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT - OTHER MATTERS
PROFESSIONS AND TRADES - LAWYERS - COMPLAINTS AND DISCIPLINE - DISCIPLINARY PROCEEDINGS - SOUTH AUSTRALIA - PROCEEDINGS IN TRIBUNALS
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - ADMISSION OF FRESH EVIDENCE
The appellant laid charges of unprofessional conduct against the respondents in the Legal Practitioners Disciplinary Tribunal - he claimed standing to do so under s 82(2)(d) of the Legal Practitioners Act 1981 (SA), as "a person claiming to be aggrieved by reason of the alleged unprofessional or unsatisfactory conduct" of the respondents - the alleged conduct was said to have occurred in the respondents' representation of a Ms George in litigation involving the appellant's former partner Ms Hamilton-Smith, in relation to which Mr Macks, the liquidator of two companies of which the appellant is a director and creditor, had provided a costs indemnity.
The appellant contended that he was a person really and directly affected by the alleged conduct on three alternative bases - first, that Mr Macks had improperly expended funds of the two companies in liquidation, and thereby diminished the funds available to him as a creditor - the appellant contended that, but for the respondents' alleged conduct, he would have been able, by action, to have restrained Mr Macks from expending the companies' funds in this way - secondly, that in acting as solicitor for Ms Hamilton-Smith on a pro bono basis in the litigation involving Ms George, he had incurred costs which, but for the alleged conduct of the respondents, would not have been incurred - thirdly, that he had standing under subs (2)(d) as a legal practitioner and officer of this Court.
The Tribunal held that s 82(2)(d) required a complainant to be "really and directly" affected by the alleged conduct - the Tribunal found that the appellant's grievances were too remote, did not arise "by reason of" the respondents' alleged conduct, and that the appellant lacked standing - it dismissed the charges - he appeals against those dismissals.
Held (dismissing the appeal):
(1) The Tribunal's construction of the expression "a person claiming to be aggrieved by reason of the alleged unprofessional or unsatisfactory conduct" was correct (at [64]).
(2) The evidence did not establish a real possibility of actual detriment suffered by the appellant in his capacity as a creditor, nor that the claimed detriment resulted from the alleged conduct of the respondents (at [76], [79]).
(3) Any "loss" suffered by the appellant by acting without charge for Ms Hamilton-Smith could not be attributed to the alleged conduct of the respondents (at [97]-[98]).
(4) Section 82(2)(d) should not be understood as indicating that all practitioners, by virtue of their status as legal practitioners and their responsibility to uphold appropriate standards of conduct, can be regarded as persons really and directly affected by the unprofessional conduct of another (at [102]).
(5) The applications of the appellant for this Court to amend the charges laid before the Tribunal, to receive further evidence and, with one exception, to amend the notice of appeal are refused (at [122], [144], [152]).
Legal Practitioners Act 1981 (SA) s 5, s 74, s 76, s 77, s 77AB, s 82, s 86, s 89, Pt 6; Federal Court of Australia Act 1976 (Cth) s 24; Summary Procedure Act 1924 (SA); Extradition Act 1988 (Cth); Racial Discrimination Act 1975 (Cth); Supreme Court Civil Rules 2006 (SA) r 286; Supreme Court Rules 1987 r 96C.06, r 97.18, referred to.
Legal Practitioners Conduct Board v Viscariello [2013] SASCFC 37; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; R v Ward; ex parte Brambles Holdings Ltd (1983) 34 SASR 269; Health World Ltd v Shin-Sun Australia Pty Ltd (2010) 240 CLR 590; The Law Society of South Australia v Jordan (1998) 198 LSJS 434; The Law Society of South Australia v Murphy (1999) 201 LSJS 456; George v Rockett (1990) 170 CLR 104; Finlayson v Legal Practitioners Conduct Board (2012) 112 SASR 549; Maurice v London County Council [1964] 2 QB 362; Attorney-General of the Gambia v N'Jie [1961] AC 617; Day v Hunter [1964] VR 845; Shire of Lillydale v Albion Reid Pty Ltd [1966] VR 481; Access for All Alliance (Hervey Bay) Inc v Hervey Bay City Council (2007) 162 FCR 313; Wardley Australia Ltd v The State of Western Australia (1992) 175 CLR 514; March v E & M H Stramare Pty Ltd (1991) 171 CLR 506; Republic of Croatia v Snedden (2010) 241 CLR 461; Waters v Public Transport Corporation (1991) 173 CLR 349; Human Rights and Equal Opportunity Commission v Mt Isa Mines Ltd (1993) 46 FCR 301; Macabenta v Minister for Immigration and Cultural Affairs (1998) 90 FCR 202; Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616; Fox v Percy (2003) 214 CLR 118; Spencer v Commonwealth (2012) 206 FCR 309; Hull v Nuske (1974) 8 SASR 587; Lepadatu v Police [1999] SASC 400; Robey v Police (1993) 18 MVR 121; Ireland v Police [2005] SASC 202; CDJ v VAJ (1998) 197 CLR 172; Wollongong Corporation v Cowan (1955) 93 CLR 435; McCann v Parsons (1954) 93 CLR 418, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"a person claiming to be aggrieved", "by reason of"

VISCARIELLO v LIVESEY & ANOR
[2013] SASC 99
Miscellaneous Appeal

WHITE J. By s 82(2)(d) of the Legal Practitioners Act 1981 (SA) (LPA), a person “claiming to be aggrieved by reason of the alleged unprofessional or unsatisfactory conduct” of a legal practitioner may lay a charge of that conduct before the Legal Practitioners Disciplinary Tribunal (the Tribunal).
The Tribunal held that this expression had the meaning of “a person aggrieved” and that it required that a complainant be “really and directly” affected by the conduct charged against the practitioner in question. The Tribunal then found that the nature of the interest asserted by the appellant meant that he was not such a person in relation to the charges of unprofessional conduct which he had laid against the respondents. It considered that his grievances were too remote from the alleged conduct of the respondents and, in any event, arose from the conduct of another and therefore not “by reason of” the respondents’ conduct.
This appeal raises the correctness of that decision.
Background
At the times of the hearing before the Tribunal and the hearing of this appeal the appellant was himself a legal practitioner.[1] He represented himself in the proceedings before the Tribunal and on this appeal. The appellant was (and remains) a director of two companies: Bernsteen Pty Ltd (in liquidation) (Bernsteen) and Newmore Pty Ltd (in liquidation) (Newmore). Palm Hills Pty Ltd as trustee for the John Viscariello Family Trust and the appellant are the sole shareholders in those companies. Bernsteen and Newmore were involved in the sale of manchester.
[1] On 21 May 2013 the Full Court ordered that the appellant’s name be removed from the roll of legal practitioners (Legal Practitioners Conduct Board v Viscariello [2013] SASCFC 37), but that order is of no consequence in the present appeal.
On 5 December 2001, an administrator was appointed to each of Bernsteen and Newmore and a short time later, as a result of a creditor’s resolution on 21 December 2001, they went into liquidation. Mr Peter Macks was appointed the Liquidator.
In the course of the liquidations, Mr Macks provided support, in a manner which I will outline later, to a Ms George (now Ms Sachse) in relation to certain litigation involving a Ms Hamilton‑Smith. The latter is the former domestic partner of the appellant. The respondents acted on behalf of Ms George in the litigation involving Ms Hamilton‑Smith. The conduct which was the subject of the appellant’s charges in the Tribunal is said to have occurred in their representation of Ms George.
On 7 June 2012, the appellant laid two sets of charges in the Tribunal: one relating to the alleged conduct of the first respondent, Mr Livesey QC; and one relating to the alleged conduct of the second respondent, Ms Flaherty. Each set of charges alleged unprofessional conduct.[2] The two sets of charges were not identical, but had much in common. In essence they were charges that the respondents misled or attempted to mislead courts by making statements, or allowing evidence to be adduced, which they knew to be false or incomplete. The conduct charged against Ms Flaherty is said to have occurred in the performance of her role as instructing solicitor, and that charged against Mr Livesey, in his role as counsel. In the summary which follows, it is convenient to treat the charges as comprising four pairs of charges.
[2] “Unprofessional conduct” is defined in s 5(1) of the LPA to mean, in relation to a legal practitioner:
(a)an offence of a dishonest or infamous nature committed by the legal practitioner in respect of which punishment by imprisonment is prescribed or authorised by law; or
(b)any conduct in the course of, or in connection with, practice by the legal practitioner that involves substantial or recurrent failure to meet the standard of conduct observed by competent legal practitioners of good repute.
The First Charges
The conduct relied upon for the first and second charges in relation to each respondent is said to have occurred in bankruptcy proceedings in the Federal Magistrates Court (the FMC). Ms George had served a bankruptcy notice on Ms Hamilton‑Smith. The latter applied to have the bankruptcy notice set aside, but her application was dismissed by the Registrar, Ms Christie, on 22 September 2005.
Ms George then filed a creditor’s petition against Ms Hamilton‑Smith. As part of her resistance to that petition, Ms Hamilton‑Smith filed an affidavit from a Mr Gawronski, sworn on 9 June 2006 (the Gawronski affidavit). In [12]-[13] of that affidavit Mr Gawronski deposed (relevantly) that:
1. Ms George was a close friend of his former wife;
2. He had spoken to Ms George in late January or early February 2006;
3.Ms George had told him then that Mr Macks was out to “get” Ms Hamilton‑Smith because the appellant and Mr Macks were “in some big dispute” and Mr Macks “wanted to get Hamilton‑Smith to get at Viscariello”;
4.Ms George had told him that she and Mr Macks had done a “deal” under which the latter would pay to Ms George the amount of her claim against Ms Hamilton‑Smith in exchange for her cooperation, including Ms George allowing Mr Macks to use her name to sue Ms Hamilton‑Smith for that amount, on the basis that he would meet all legal fees in doing so; and
5.Ms George had told him that Macks had told her that he would do whatever it took to bankrupt Ms Hamilton‑Smith “to prove a point” to the appellant.
At the same time, Ms Hamilton‑Smith filed an application seeking an order that Ms George and Mr Macks discover a wide range of documents relating to communications between them, including the matters to which Mr Gawronski deposed.
In response, Ms George filed an affidavit sworn by her on 19 June 2006 in which she deposed (relevantly):
[5]I have read the affidavit of Michael Gawronski sworn on 9 June 2006 and I deny the depositions therein contained.
The Registrar, Ms Christie, refused the discovery application and, relying on Ms George’s affidavit that the debt remained owing, made a sequestration order.
In relation to these proceedings, the charge against Ms Flaherty was that she had prepared Ms George’s affidavit of 19 June 2006 knowing that the statements made in it by Ms George were false or misleading, and without a proper basis, and that she had instructed Mr Livesey QC to refer to and rely upon the affidavit, knowing that it would deceive the FMC. As against Mr Livesey, the charge was that he had referred to and relied upon Ms George’s affidavit of 19 June 2006 knowing that the statements made in it were false or misleading, would deceive the FMC and that Ms George had no proper basis for them.
The Second Charges
The second charges arose from the review in the FMC of the sequestration order made by Registrar Christie which was heard by Federal Magistrate Raphael on 5 July 2006. At that review, Ms Hamilton‑Smith sought again to rely upon the Gawronski affidavit. In response, Mr Livesey QC referred the Federal Magistrate to Ms George’s affidavit of 19 June 2006 and, in addition, said that he was instructed that “Mr Macks has never met with [Ms] George”. In response to an objection from Ms Hamilton‑Smith’s counsel that this was an assertion from the bar table, Mr Livesey acknowledged that there was no affidavit from Mr Macks or Ms George on the topic but said that one could be obtained if that was required by Ms Hamilton‑Smith.
The second charge against Mr Livesey QC was that he had referred the FMC to Ms George’s affidavit of 19 June 2006 knowing that it was false or misleading, would deceive the FMC and that Ms George had no proper basis for her affidavit. The appellant also alleged that Mr Livesey’s submission that Mr Macks had never met with Ms George was misleading.
The charge against Ms Flaherty was that she had instructed Mr Livesey QC to make those submissions knowing that they were false or misleading, that they would deceive the FMC and that Ms George had no proper basis for her affidavit.
The Third Charges
The third charge in each case arose from appellate proceedings in this Court. Ms Hamilton‑Smith commenced proceedings in the Adelaide Magistrates Court seeking a declaration that she had satisfied the indebtedness to Ms George upon which the latter relied for the bankruptcy petition considered by Registrar Christie and Federal Magistrate Raphael. Ms O’Connor SM refused that declaration. Ms Hamilton‑Smith appealed and a hearing of the appeal occurred on 19 September 2006. In response to questions from Gray J, Mr Livesey QC said that, on his instructions, Mr Macks did not have an interest in the debt which was the subject of the action nor any interest in the action; that Mr Macks had never had such an interest; that Mr Macks had not paid the debt to Ms George; that Mr Macks had never met Ms George; and that Mr Macks denied an agreement with Ms George to which the Gawronski affidavit referred.
The third charges alleged that those submissions were misleading or deceptive, that Mr Livesey QC had no proper basis on which to make them, and that they were prejudicial to the administration of justice. The charge against Ms Flaherty appears to be that she had allowed Mr Livesey to make the submissions and did not correct him.
The Fourth Charges
Ms Hamilton‑Smith appealed against the judgment of Federal Magistrate Raphael to which I referred in connection with the second charges. The appeal was heard by Besanko J. In his outline of submissions dated 9 October 2006, Mr Livesey QC referred again to Ms George’s affidavit of 19 June 2006 and denied the allegations made in the Gawronski affidavit.
The fourth pair of charges made the same allegations as were made in the first charge against each respondent.
The Statutory Provision
Part 6 of the LPA provides for the investigation of allegations of unprofessional and unsatisfactory conduct by legal practitioners and for the disciplining of those who do not meet the high standards expected of practitioners. I will refer to features of the Part later in these reasons.
Division 3 of Pt 6 establishes the Tribunal and s 82 requires it, subject to the terms of the section, to inquire into charges of unprofessional or unsatisfactory conduct. Section 82 provides (relevantly):
(1)A charge may be laid under this section alleging unprofessional or unsatisfactory conduct—
(a)     on the part of any legal practitioner; or
(b)     on the part of any former legal practitioner who was at the time of the alleged unprofessional or unsatisfactory conduct a legal practitioner.
(2)     A charge may be laid under this section by—
(a)     the Attorney-General; or
(b)     the Board; or
(c)     the Society; or
(d)     a person claiming to be aggrieved by reason of the alleged unprofessional or unsatisfactory conduct.
(2a)A charge relating to conduct by a legal practitioner must be laid before the Tribunal within five years of the conduct unless the charge is laid by, or with the written consent of, the Attorney-General.
…
(4)Where a charge has been laid under this section, the Tribunal must, subject to subsection (5), inquire into the conduct of the legal practitioner or former legal practitioner to whom the charge relates.
(5)The Tribunal may summarily dismiss any charge that it considers frivolous or vexatious.
…
(7)After completing an inquiry under this section, the Tribunal must transmit the evidence taken by the Tribunal on the inquiry together with a memorandum of its findings to the Attorney-General, the Society and the Board.
(8)If, after conducting an inquiry into a charge alleging unprofessional conduct by a person who is a legal practitioner or former legal practitioner, the Tribunal—
(a)     is not satisfied that the person is guilty of unprofessional conduct; but
(b)     is satisfied that the person is guilty of unsatisfactory conduct,
the Tribunal must find the person not guilty of unprofessional conduct, but may find the person guilty of unsatisfactory conduct.
The effect of subss (1) and (2) is that a charge of unprofessional or unsatisfactory conduct by a legal practitioner may be laid before the Tribunal by the Attorney‑General, the Legal Practitioners Conduct Board (the Board), the Law Society (the Society) or “a person claiming to be aggrieved by reason of the alleged unprofessional or unsatisfactory conduct”. Unless the charge is laid by, or with the written consent of, the Attorney‑General, it must be laid within five years of the conduct which is the subject of the charge (subs (2)(a)).
When a charge has been laid under s 82, the Tribunal must, unless it considers it to be frivolous or vexatious, inquire into the conduct of the practitioner to whom the charge relates (subss (4)-(5)). If, as a result of its inquiry, the Tribunal is satisfied that a practitioner is guilty of unprofessional or unsatisfactory conduct, it is empowered to take disciplinary action in a variety of forms. These include the issue of a reprimand, the imposition of a fine, the imposition of conditions on a legal practitioner’s practising certificate, an order of suspension, and the making of a recommendation that disciplinary proceedings be commenced against the legal practitioner in this Court (subs (6)).
As noted, the Tribunal’s jurisdiction is conditioned upon a charge having been laid “under this section” (subs (4)). This requires, amongst other things, that the charge be laid by a person or entity having standing to lay the charge, as specified in subs (2).
The Tribunal Decision
By applications filed on 17 August 2011, each respondent sought, amongst other things, dismissal of the respective charges on the basis that the appellant was not a person aggrieved by the unprofessional conduct he alleged, within the meaning of s 82(2)(d) of the LPA. Their applications were expressed slightly differently, but nothing turns on those differences for present purposes.
The respondents’ applications were listed for 7 and 8 February 2012. At that hearing the parties agreed that the challenges to the appellant’s standing should be determined first, as these went to the Tribunal’s jurisdiction.

The appellant relied at the hearing on affidavits sworn by him on 5 December 2011, 14 December 2011, 30 January 2012 and 6 February 2012. The affidavit of 5 December 2011 contained, in [265]-[273], a statement of the basis upon which he asserted that he had standing.
For the purposes of the determination of the challenge to the Tribunal’s jurisdiction, and for those purposes only, counsel for Mr Livesey QC indicated that he did not dispute (subject to one qualification) the factual matters to which the appellant had deposed which were said to make him “a person claiming to be aggrieved” by the charged conduct.[3] For the same purposes, Ms Flaherty accepted, subject to one qualification, the allegations in the particulars to the charges concerning her.[4]
[3] Reasons at [15.1] referring to [265]-[275] of the appellant’s affidavit of 5.12.11.
[4] Ibid at [15.2].
The issue as to the appellant’s standing arose from the circumstance that the appellant was not himself a party to any of the proceedings in the FMC, the Federal Court or this Court in which the charged conduct of the respondents had occurred. The appellant submitted that that was immaterial, contending that his mere assertion that he was aggrieved by the alleged conduct was sufficient to give him standing.
After reviewing s 82 in its statutory context and a number of authorities, the Tribunal concluded that the expression “a person claiming to be aggrieved” in s 82(2)(d) had the same meaning as “person aggrieved”.[5] It went on to hold, on my understanding of its reasons, that that requires that the person have, considered objectively, an interest in “a real and direct” way in the subject matter of the inquiry. This requires in turn an examination on a case by case basis of the circumstances alleged, bearing in mind the subject, scope, purpose and objects of the LPA.[6] In addition, the Tribunal held that the appellant had to establish that he was aggrieved “by reason of” the alleged conduct of the practitioners,[7] that is, that it was their conduct, rather than that of anyone else, which gave rise to his grievance.
[5] Ibid at [35], [64].
[6] Ibid at [80].
[7] Ibid at [102].
Accordingly, the Tribunal rejected the construction of s 82(2)(d) for which the appellant had contended.
The appellant contended that three distinct circumstances gave him, in any event, a “real and direct interest” in the charged conduct of the respondents. First, he referred to his capacity as a creditor of Bernsteen and Newmore, given Mr Macks’ use of funds belonging to those companies in the assistance which he had provided to Ms George in her proceedings against Ms Hamilton‑Smith. Secondly, the appellant relied on his interest as solicitor for Ms Hamilton‑Smith. The firm of Commercial and General Law Pty Ltd, in which the appellant was engaged, had acted for Ms Hamilton‑Smith in each of the proceedings giving rise to the charged conduct, and the appellant had attended as instructing solicitor at all but one of the proceedings. Thirdly, the appellant claimed a real and direct interest as “a legal practitioner and an officer of the Court”.
The Tribunal addressed each of the identified matters and concluded that they arose “by reason of” the alleged conduct of Mr Macks, and not by reason of the conduct of either of the two respondents. The Tribunal ruled further that the matters relied upon by the appellant for standing were too remote from the conduct which he charged against the two respondents.
Accordingly, the Tribunal found that the appellant lacked standing to bring the charges and dismissed them.
The Grounds of Appeal
The appellant’s notice of appeal did not contain a ground complaining of the Tribunal’s construction of the term “a person claiming to be aggrieved”. The grounds complained instead of the Tribunal’s characterisation of the charges having regard to that construction.
However, on the appeal the appellant repeated the submissions which he had made to the Tribunal as to the construction of s 82(2)(d). He submitted that the Tribunal had failed to give effect to the plain meaning of the words “a person claiming to be aggrieved” and to the principle that, in the construction of a statutory provision, meaning should, so far as possible, be given to every word.[8]
[8] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 at [71]; (1998) 194 CLR 355 at 382.
The respondents also addressed the construction of s 82(2)(d), accepting that that construction was central to the determination of whether the appellant’s circumstances were sufficient to give him standing to lay the charges.
I will accordingly address first the proper construction of s 82(2)(d).
“A Person Claiming to be Aggrieved”
The expression “a person aggrieved” and like expressions have been the subject of significant judicial consideration, so much so that in 1983 Zelling J protested that “it [was] about time Parliament gave up using the words ‘a person aggrieved’”.[9]
[9] R v Ward; ex parte Brambles Holdings Ltd (1983) 34 SASR 269 at 272. Zelling J went on to say “[They] invariably give rise to a barren controversy as to locus standi, and it would be a great deal more beneficial to the community if Parliament would specify in each statute who has a right to mount a challenge to the decision of the Court or tribunal sought to be impugned”.
The authorities show that the meaning of expressions like “a person aggrieved” may vary according to the context in which they are used. There is accordingly no settled meaning capable of application in all cases. Thus, in Health World Ltd v Shin‑Sun Australia Pty Ltd[10] the majority in the High Court said:
[T]he meaning of a general expression like “aggrieved” will depend on an examination of the language of the particular statute in which it appears. That examination will reveal the subject, scope and purpose of the statute, and the meaning of “aggrieved” may vary as the subject, scope and purpose varies.[11]
(Citation omitted)
[10] [2010] HCA 13; (2010) 240 CLR 590.
[11] Ibid at [21]; 597.
Consideration of the subject, scope and purpose of s 82(2) is therefore necessary in order to determine the proper construction of subs (2)(d). The subject matter of subs (2) and its purpose is, obviously enough, the identification of those with the standing to lay charges of unprofessional and unsatisfactory conduct before the Tribunal and thereby to invoke its jurisdiction. That jurisdiction exists not for the vindication of private rights but principally for the protection of the public.[12] In my opinion, an understanding of the scope of subs (2)(d) requires an understanding of these matters and of the respective roles of the Attorney‑General, the Board and the Society who are also specified in subs (2) as having standing to lay charges before the Tribunal.
[12] The Law Society of South Australia v Jordan (1998) 198 LSJS 434 at 460, 465.
As previously noted, Pt 6 of the LPA provides for the investigation of allegations of unprofessional and unsatisfactory conduct by legal practitioners, and for the disciplining of those who do not meet the high standards expected of practitioners. Part 6 contemplates proceedings relating to a practitioner’s unprofessional conduct at three levels: before the Board (ss 74‑77B); before the Tribunal (ss 78-88); and before this Court (ss 89-89A).
The purpose of Pt 6 is principally protective. Its provisions are intended to protect the public rather than to punish practitioners for misconduct. The provision of means by which practitioners who engage in unprofessional or unsatisfactory conduct may be dealt with is a means of preserving public confidence in the legal profession and, more generally, in the administration of justice in which practitioners play an important role.[13]
[13] Cf The Law Society of South Australia v Murphy [1999] SASC 83 at [30]; (1999) 201 LSJS 456 at 460‑1.
The principal functions of the Board in the achievement of this purpose are to investigate suspected unprofessional or unsatisfactory conduct by legal practitioners, to take certain forms of disciplinary action following an investigation or to lay charges before the Tribunal, and to commence disciplinary proceedings against legal practitioners in this Court on the recommendation of the Tribunal (s 74(1)). A number of provisions in Pt 6 regulate the discharge by the Board of its functions.
Part 6 gives the Attorney‑General an important role in the maintenance of high standards by legal practitioners. It contemplates, amongst other things, that the Attorney‑General may direct the Board to make an inquiry into the conduct of a legal practitioner (s 76(1a)); if the Board is satisfied that there is evidence of unprofessional conduct by a practitioner, it must make a report on the matter to the Attorney-General and the Society (s 77(1)) and must, on request, furnish the Attorney-General with any material in its possession relevant to the investigation or prosecution of a suspected offence (s 77(5)); and the Attorney‑General, along with the Board and the Society, may act upon a recommendation of the Tribunal that disciplinary proceedings be commenced in this Court, by instituting such proceedings (s 89(1)). In the exercise of these (and the other) powers under Pt 6 of the LPA, the Attorney‑General acts in the public interest.
Historically, the Society has also had an important role in the maintenance of proper professional standards. That role is not so prominent under Pt 6 as was previously the case but, nevertheless, Pt 6 recognises the function of the Society as a professional body in promoting and maintaining proper standards of conduct amongst the profession. For example, the Society, like the Attorney‑General, may direct the Board to make an inquiry into the conduct of a legal practitioner (s 76(1a)) and the Board is required by s 77(1) to report evidence of unprofessional conduct by a practitioner to the Society as well as to the Attorney‑General. The Society may also act on the recommendation of the Board to commence disciplinary proceedings in this Court against a practitioner (s 89(1)).
Thus, subs (2)(a)-(c) limit standing to three reputable and independent persons with responsibilities established or recognised by statute to act for the protection of the public in relation to the disciplining of legal practitioners. The standing contemplated by subs (2)(a)-(c) is based upon the status and functions of these persons.
On the other hand, subs (2)(d) establishes standing for persons who have no formal role or responsibility in the maintenance of proper professional standards. Their standing (considered broadly) can be seen to rest instead on their relationship with the unprofessional or unsatisfactory conduct which they allege. The causal term “by reason of” suggest that that relationship lies in the effect on the complainant of the alleged misconduct. That being so, it is natural to expect that subs (2)(d) contemplates an actual relationship of the defined kind as giving rise to standing, and not the mere subjective claim of a claimant to have such a relationship.
The apparent care with which the legislature has, by subs (2)(a)-(c), limited standing to persons with a recognised status and function makes it unlikely, in my opinion, that it contemplated that subs (2)(d) could have the effect that, by the mere use of a verbal formula, a person could invoke the Tribunal’s jurisdiction. Put slightly differently, it seems unlikely that the legislature intended that the Tribunal’s jurisdiction could be invoked on the basis of a complainant’s subjective belief and assertion that he or she is aggrieved by the charged conduct.
In addition, the checks and balances contained in s 76 of the LPA on the discharge by the Board of its responsibilities provide a contextual indication that subs (2)(d) does not have the literal meaning for which the appellant contended. Section 76 provides (relevantly):
(1)The Board may, of its own motion, make an investigation into the conduct of a legal practitioner or former legal practitioner who the Board has reasonable cause to suspect has been guilty of unprofessional or unsatisfactory conduct.
(1a)The Board must make an investigation into the conduct of a legal practitioner or former legal practitioner where—
(a) the Board has been directed to make the inquiry by the Attorney-General or the Society; or
(b) a complaint has been received in relation to the conduct of the legal practitioner or former legal practitioner.
(1b)Despite subsection (1a), the Board may determine not to commence or continue an investigation that would otherwise be required as a result of receipt of a complaint if it is apparent to the Board that the complaint is frivolous or vexatious or if the Board is satisfied that the subject matter of the complaint has been resolved prior to commencement or completion of an investigation.
(2)No direction may be given to the Board under this section unless the Attorney-General or the Society (as the case may require) has reasonable cause to suspect that the legal practitioner or former legal practitioner to whom the proposed investigation relates has been guilty of unprofessional or unsatisfactory conduct.
...
As can be seen, the Board may make an investigation of its own motion into the conduct of a legal practitioner only when it has reasonable cause to suspect that the practitioner has been guilty of unprofessional or unsatisfactory conduct (subs (1)). Such a state of mind “requires the existence of facts which are sufficient to induce that state of mind in a reasonable person”.[14] Further, although the Attorney‑General and the Society may direct the Board to make an inquiry into a practitioner’s conduct, they may not do so unless they have reasonable cause to suspect that the practitioner has been guilty of unprofessional or unsatisfactory conduct (subs (2)).
[14] George v Rockett (1990) 170 CLR 104 at 112.
The requirement in subs (1a)(b) that the Board make an investigation into the conduct of a legal practitioner when it receives a complaint in relation to the practitioner’s conduct is subject to the qualification that the Board need not do so if it is apparent that the complaint is frivolous or vexatious (subs (1b)) and, in all cases, the scope of the investigation which the Board may undertake is confined, at least in the first instance, by the terms of the complaint made to the Board.[15] If, following an investigation, the Board is satisfied that there is evidence of unprofessional or unsatisfactory conduct by a practitioner but that the misconduct is relatively minor and can be dealt with appropriately without charges being laid before the Tribunal, it may exercise the disciplinary powers contained in s 77AB(1) of the LPA.
[15] Finlayson v Legal Practitioners Conduct Board [2012] SASC 77 at [24]-[33]; (2012) 112 SASR 549 at 555-7.
Thus, the LPA establishes a number of checks on the discharge by the Board of its functions and on the circumstances in which the Board will, even if satisfied there is evidence of unprofessional or unsatisfactory conduct, lay charges before the Tribunal. Counsel for the respondents characterised these checks as “filters”.[16] I consider that characterisation to be appropriate.
[16] Counsel referred in this respect to Health World Ltd v Shin‑Sun Australia Pty Ltd [2010] HCA 13 at [26]; (2010) 240 CLR 590 at 598.
It is true that these filters operate in relation to the laying of charges only in the case of the Board and not the Attorney‑General and the Society. However, given the office of the Attorney‑General and the responsible position of the Society, it is to be expected that they too would not lay charges before the Tribunal unless they had reasonable cause to suspect that the legal practitioner in question has been guilty of unprofessional or unsatisfactory conduct.
In this context, the literal construction of subs (2)(d) for which the appellant contends would stand incongruently. At its broadest, it would mean that complainants’ self‑serving statements that they are aggrieved by the charged conduct would give them standing to lay charges before the Tribunal. They would not have to establish that they were affected in any way by the charged conduct nor that they had reasonable cause to suspect that the practitioner had been guilty of unprofessional conduct. In fact, claimants could invoke the Tribunal’s jurisdiction even if the Attorney-General, the Board or the Society had previously concluded that their complaints lacked merit. Subject to the charges not being frivolous or vexatious, the Tribunal would then be bound to inquire into the charged conduct, with all the use of resources that that would entail. This would be so despite the fact that the complainants would be invoking a jurisdiction which exists primarily for the protection of the public and not the vindication of private rights and entitlements.
It is difficult to conclude that, despite the careful specification of roles and safeguards to which I have referred, s 82 nevertheless intends that the regime in Pt 6 may be circumvented in this way. This Court should be slow to adopt a construction which produces such apparently incongruent results.
Expressions similar to “a person claiming to be aggrieved” have been considered in several authorities. In Maurice v London County Council,[17] the Court of Appeal considered a provision permitting a landholder “who may deem himself aggrieved” to appeal against the grant of a building consent to a nearby owner. Lord Denning considered that the expression was synonymous with “person aggrieved”.[18] His Lordship held that the latter expression should not be given a restrictive interpretation and, quoting from his own earlier reasons in Attorney‑General of the Gambia v N’Jie,[19] continued:
They do not include, of course, a mere busybody who is interfering in things which do not concern him: but they do include a person who has a genuine grievance because an order has been made which prejudicially affects his interests.[20]
(Emphasis added)
[17] [1964] 2 QB 362.
[18] Ibid at 378.
[19] [1961] AC 617 at 634.
[20] Maurice v London County Council [1964] 2 QB 362 at 378.
In Day v Hunter,[21] the Full Court in Victoria considered a provision permitting “any person who feels aggrieved by the summary conviction or by any order of any court of petty sessions” to apply to the Supreme Court for an order to review. After considering the standing of a person who was a party to the proceedings at first instance, the Full Court said:
Where someone, who is not a party to the proceedings below, seeks to review a decision therein, a very different situation arises. As he is not a party, he has to show he is not an intermeddler merely, and that he is a person who can properly be regarded as one “who feels aggrieved” by the decision. He will not establish this by swearing positively himself that he is such a person, for it is not his opinion or his view with which the court is concerned. Whether he can bring himself within these words depends on the facts of the case, and whether he is able to show that he is really and directly interested in the proceedings.[22]
(Citation omitted, emphasis added)
Later, the Full Court reiterated that whether an applicant is or is not a “person who feels aggrieved” depends upon the circumstances of the case and not upon “the say‑so” of a deponent.[23]
[21] [1964] VR 845.
[22] Ibid at 848.
[23] Ibid at 849.
The approach in Day v Hunter was applied by Adam J in Shire of Lillydale v Albion Reid Pty Ltd[24] in relation to the right of appeal of “a person who feels aggrieved” by a planning decision. Adams J said:
I would have thought that the restriction of the right to appeal to a person who feels aggrieved by the decision was intended to preclude officious strangers to the proceedings with no real or direct interest therein from appealing against decisions that dissatisfy them, and not to preclude those with a real and direct interest in the decision having the opportunity of having it reversed on appeal.[25]
[24] [1966] VR 481.
[25] Ibid at 484.

A number of authorities involving the construction of the expression “person aggrieved” were reviewed by Collier J in Access for All Alliance (Hervey Bay) Inc v Hervey Bay City Council.[26] Collier J was then determining a challenge to the standing of Alliance to lodge a complaint with the Human Rights and Equal Opportunity Commission as a “person aggrieved” by alleged unlawful discrimination. Collier J noted that the term “person aggrieved” should not, ordinarily, be interpreted narrowly, and that it is appropriate to interpret it in a way which promotes the purpose or object underlying the relevant legislation.[27] Her Honour went on to say:
[I]n order for a person to be “aggrieved” the test is objective, not subjective. A person does not qualify merely because he or she feels aggrieved by the conduct. He or she, in the judgment of the Court, must, in truth, be aggrieved by that conduct and not merely have an intellectual or emotional concern in the subject matter of the proceedings.[28]
(Citations omitted)
[26] [2007] FCA 615; (2007) 162 FCR 313.
[27] Ibid at [44]-[45]; 329.
[28] Ibid at [41]; 328.
I consider these authorities to be of assistance presently but, ultimately, the proper construction of s 82(2)(d) is to be determined by reference to its terms and the subject, scope and purpose of s 82(2).
At first blush, the appellant’s submission that the Tribunal’s equation of “a person claiming to be aggrieved” with “a person aggrieved” fails to give meaning to all the words used has some attraction. However, on closer analysis, that attraction evaporates.
It is helpful to consider the position as it would have been if the term “a person aggrieved” had been used in subs (2)(d). At the time of laying a charge, that is, when asserting standing, a complainant so described can do no more than claim to be aggrieved by the charged conduct and point to matters showing the reasonableness of that claim. Hence, the term “a person aggrieved” involves, in essence, a claim by the complainant that he or she is aggrieved by the charged conduct. Once the element of a claim in the phrase “a person aggrieved” is recognised, it becomes understandable that in subs (2)(d) the legislature used a more explicit phrase, albeit intending it to have the same meaning.
In my opinion, subs (2)(d) can be understood as using a shorthand composite expression to vest standing in those persons who have a particular kind of relationship with the charged unprofessional or unsatisfactory conduct. Complainants will establish that relationship if they show that, on the hypothesis that the charged unprofessional or unsatisfactory conduct did occur, they are persons who, considered objectively, are really and directly affected by that conduct. If subs (2)(d) is understood in this way, meaning is given to all its words. Accordingly, complainants will not establish standing if their interest is no more than academic, emotional or of an intermeddling kind.
This meaning of subs (2)(d) gives effect to the subject, scope and purpose of s 82(2) and, in my opinion, is consistent with the authorities to which I have referred. Accordingly, I consider that the Tribunal was correct to regard the expression “a person claiming to be aggrieved” as having the same meaning as “a person aggrieved” and to regard it as requiring the appellant to show that, objectively considered, he was a person really and directly affected by the conduct which he sought to charge against the respondents.
I turn then to the appellant’s challenge to the Tribunal’s assessment of his standing on the basis of this understanding of subs (2)(d).
Appellant’s Relationship with the Charged Conduct
The appellant contended that on three separate and alternative bases he was a person really and directly affected by the conduct which he alleged against the respondents, and that the Tribunal had been wrong to find to the contrary. It is convenient to address these three alternative bases separately.
Interest as a Creditor of Bernsteen and Newmore
The appellant claimed that he had a “direct personal grievance” arising from his status as a creditor of Bernsteen and Newmore, and as a secured creditor in the case of the latter. Lying behind that claim is his contention that Mr Macks has improperly used assets of Bernsteen or Newmore to fund litigation between Ms George and Ms Hamilton‑Smith for purposes unrelated to the affairs of those companies. That claim is the subject of litigation in this Court.[29]
[29] Action No 165 of 2006 commenced on 13 February 2006.
Since at least 22 December 2006, Mr Macks and Ms George have acknowledged the existence of an agreement between them pursuant to which Mr Macks was to indemnify Ms George in relation to at least some of her costs in proceedings relating to the bankruptcy of Ms Hamilton‑Smith. I understand this to include the proceedings before Registrar Christie, Federal Magistrate Raphael and Besanko J, to which I referred in my summary of the four pairs of charges. The bankruptcy proceedings arose from a judgment which Ms George obtained against Ms Hamilton‑Smith in August 2003 in the Mt Barker Magistrates Court for the sum of $4,079.80. A dispute arose between Ms George and Ms Hamilton‑Smith as to whether the judgment had been satisfied by a payment in kind. Eventually, on 1 July 2005 Ms George served Ms Hamilton‑Smith with a bankruptcy notice. As I understand it, the firm of Minter Ellison prepared and served that notice on Ms George’s behalf.
It seems that Minter Ellison, who also acted for Mr Macks in the liquidation of Bernsteen and Newmore, came to be retained by Ms George on the initiative of Mr Macks. Minter Ellison wrote to Ms George on 7 June 2005 in the following terms:
We act for a creditor pursuing a debt against Ms Tanya Hamilton‑Smith.
Our client is attempting to bankrupt Ms Hamilton‑Smith and we understand that you have a judgment entered in your favour against her. Accordingly, we would be grateful for any information that you could provide us to assist with our client’s bankruptcy petition.
Subsequently Ms George retained Minter Ellison. It seems to be undisputed that a letter from Minter Ellison to Ms George of 28 June 2005 contained the terms of the retainer, or at least the initial terms of the retainer. Two paragraphs of that letter are relevant for present purposes:
Scope of Work
I confirm that the work you require us to do is to enforce the Mt Barker Magistrates Court judgment held in your favour against Ms Tanya Hamilton‑Smith and in particular to prepare and attend to Federal Magistrates Court proceedings to enable a sequestration order to be made against Ms Tanya Hamilton‑Smith.
...
Indemnity for Legal Fees
We confirm that Mr Peter Macks of PPB will fund the bankruptcy proceedings to the value of $2,000. As previously discussed, should funds become available in the bankrupt estate of Ms Tanya Hamilton‑Smith or should your debt be paid by Ms Tanya Hamilton‑Smith, Mr Peter Macks will be repaid the funds made available for your legal costs in the matter to the value of $1,000.
...
On the hearing of the appeal, the appellant referred to evidence indicating that, under this indemnity arrangement or a variation of it, Mr Macks may have expended more than $100,000 in legal fees in the various proceedings following the service of the bankruptcy notice on Ms Hamilton‑Smith. As indicated earlier, his underlying contention was that these funds were those of the two companies in liquidation and that this was an improper use of them.
The elements of the appellant’s claim that in these circumstances he was really and directly affected by the alleged unprofessional conduct of the respondents appear to be these:
1.Mr Macks had expended improperly monies of Bernsteen or Newmore or both in his endeavours to assist Ms George to bankrupt Ms Hamilton‑Smith;
2.The improper expenditure had diminished the funds in the liquidations and thereby the amounts available to the appellant as a creditor, or as a secured creditor, as the case may be;
3.The appellant is now embroiled in major litigation with Mr Macks for the purpose, amongst other things, of attempting to redress the position caused by the improper expenditure;
4.Had the existence of the indemnity arrangement been disclosed in the proceedings before Registrar Christie in June 2006, or on any of the subsequent occasions when the alleged unprofessional conduct was said to have occurred, the appellant would have had the opportunity at that time to take action to enjoin Mr Macks from expending the companies’ funds in this way; and
5.Had the appellant commenced proceedings for some form of injunctive relief, he may have obtained that relief in such time as to have precluded a further diminution of the funds in the respective liquidations and to have avoided his current proceedings against Mr Macks.
It is neither necessary nor desirable in these proceedings to make any comment at all regarding the merit of the first element. As I have said, that is the subject of other proceedings in this Court.
At least in a theoretic sense, an improper expenditure of funds, if not reimbursed, could result in a reduction of the monies available in a liquidation for distribution to creditors. However, that trite proposition does not, without more, mean that the appellant is really and directly affected by the alleged unprofessional conduct of the respondents. The appellant provided only limited evidence as to the reality of any effect on him. That was a report of Mr Macks to the Committee of Inspection. That report indicated that, at the time when Bernsteen and Newmore went into liquidation, shortfalls in the amounts available to creditors were expected. However, the position at the time the appellant laid the charges is not clear. It is at least theoretically possible that there may then have been sufficient funds in the liquidations to satisfy the claims of all creditors. Alternatively, any diminution may have been so small as to be negligible. Even were the diminution more than negligible, there may be so many creditors that the effect on each was negligible. If there were a large number of creditors, it may be unrealistic to think that each could claim reasonably to be “really and directly” affected by any improper expenditure, let alone by the alleged unprofessional conduct of the respondents.
In any event, it is one thing for the appellant to assert now that, had he known in June 2006 or later of the true state of affairs, he could have commenced proceedings seeking some form of injunctive relief against Mr Macks. It is another to show that such proceedings, if commenced, may possibly have had some practical consequence. Whether or not that may have been so would turn on the nature of any order which could have been obtained and the time when it may have been obtained. That is especially so given that the alleged unprofessional conduct occurred over a relatively short period, commencing in June 2006 and concluding in early October 2006. The period in which it was open to the appellant to have sought and obtained injunctive relief was accordingly quite short. Further, the appellant’s own material indicates that he had confirmation of the existence of the indemnity agreement very soon after that period, as it was disclosed in late December 2006.
In these circumstances, the appellant’s standing on this asserted basis required that there be at least some evidence showing an actual detriment, or the real possibility of actual detriment, by reason of an inability, in a relatively short timeframe, to have obtained injunctive relief and that that inability resulted from the alleged unprofessional conduct of the respondents. Evidence of that kind was lacking.
Quite apart from this consideration, it is not apparent that the matter preventing the appellant from seeking some form of injunctive relief was a lack of knowledge of an indemnity arrangement between Ms George and Mr Macks or, at least, the lack of confirmation of its existence. The appellant knew from at least 9 June 2006 from the Gawronski affidavit that some form of funding arrangement may have existed between Mr Macks and Ms George. Despite that knowledge, it seems that he did not seek any injunctive relief against Mr Macks after June 2006. That circumstance underlined the importance of the appellant deposing to his reasons for not commencing proceedings earlier if he wished to show a real and direct effect by reason of the respondents’ alleged conduct.
These considerations indicate weaknesses in the second, fourth and fifth elements of the appellant’s claim as outlined earlier. The appellant’s evidence and submissions did not attempt to overcome these shortcomings.
In my opinion, the appellant’s claim for standing on the basis that he claimed to be really and directly affected in his capacity as a creditor in the liquidation of Bernsteen and Newmore was not made out. His status as a creditor of Bernsteen and Newmore did not indicate that he was affected really and directly by the impugned conduct.
Interest as Solicitor of Ms Hamilton‑Smith
The appellant deposed that he had been present at each of the hearings at which the alleged unprofessional conduct had occurred (other than at the proceedings before Federal Magistrate Raphael on 5 July 2006). He said that he was present as “instructing solicitor” while acting for Ms Hamilton‑Smith “on a pro bono basis”. The appellant said that in acting for Ms Hamilton‑Smith he had retained counsel to appear and had thereby incurred a personal liability for their fees. He had paid the majority of the accounts rendered by counsel amounting to “tens of thousands of dollars”. His affidavit did not indicate whether he had recovered that expenditure from Ms Hamilton‑Smith.
The appellant also said that in acting pro bono, he had spent “hundreds and hundreds” of hours in relation to the litigation between Ms George and Ms Hamilton‑Smith, all of which was unpaid. He had thereby incurred a form of opportunity cost by not performing remunerative solicitor’s work for others and in not building his own legal practice.
The appellant submitted that these matters meant that he was “really and directly” affected by the alleged unprofessional conduct as these costs (both the costs actually incurred and the opportunity cost) would not have been incurred had the alleged unprofessional conduct not occurred.
There was an unstated assumption in this submission that, without the alleged unprofessional conduct, the indemnity agreement would have been disclosed earlier and the later proceedings relating to the bankruptcy of Ms Hamilton‑Smith unnecessary. This assumption is of dubious validity. It by no means follows that, if the alleged unprofessional conduct had not occurred, the appellant would thereby have been informed of the existence of the indemnity agreement or provided with a copy. Further, if a copy had been produced under an order for discovery of documents, or by another coercive process, there would have been an issue as to the use which the appellant could have made of it in pursuit of his own interests, rather than those of Ms Hamilton‑Smith in the same litigation.[30]
[30] Harman v Home Office [1983] 1 AC 280.
Leaving those issues to one side, the basis on which the appellant sought to establish standing in this way was that the asserted “losses” were caused in the relevant sense by the alleged misconduct of the respondents. That gives rise to the question of whether “losses” of this kind can be said, for the purposes of determining standing under subs (2)(d), to have been caused “by reason of” the alleged misconduct of the respondents. The resolution of that question turns on the degree of connection between the “losses”, on the one hand, and the alleged misconduct on the other.[31]
[31] Wardley Australia Ltd v The State of Western Australia (1992) 175 CLR 514 at 525.
The Tribunal rejected the appellant’s characterisation, holding that it was much more natural to regard the asserted losses as having been caused, relevantly, by the conduct of Mr Macks. To this one might also add the conduct of Ms George. They, on the appellant’s case, were the ones who had given instructions for each set of proceedings and on whose instructions, prima facie, the respondents were acting in the proceedings. One of the appellant’s submissions before the Tribunal recognised this:
Macks was the puppet master, Ms George was the puppet and the practitioners were the connection between the two.[32]
[32] Reasons at [107].
This submission tends to highlight the point made by the Tribunal. It also indicates an obscuring by the appellant of the distinction between the cause of his asserted losses, on the one hand, and the means by which that cause brought about his losses, on the other.
The appellant’s submissions tended to suppose that an application of the “but for” test of causation would establish the causal link for which he contended. However, satisfaction of that test is usually a necessary, but not a sufficient, condition in establishing causation for the purposes of the law.[33] There remains a question of whether, as a matter of commonsense or common experience, one event should be regarded as the cause of another.[34] In that assessment, other considerations such as forseeability, intervening events, and remoteness may be significant. There is no reason to suppose that a similar approach is not required by the phrase “by reason of” in subs (2)(d).
[33] March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 at 515-6, 523, 530-1.
[34] Ibid.
In Republic of Croatia v Snedden,[35] the High Court considered the phrase “by reason of” in the context of the Extradition Act 1988 (Cth). In particular, the Court considered whether it had been established that, on the surrender of the person whose extradition was sought, that person might be punished, detained or restricted in liberty by reason of his political opinions. The majority confirmed that the phrase requires “some causal connection between the matters relied upon and a person’s ‘race, religion, nationality or political opinions’”[36] and ultimately construed it as being equivalent to “because of”.[37] In his separate reasons, French CJ said:
The causal connection between punishment and political opinion in s 7(c) is defined by the words “by reason of” ... [In other contexts, those words] have been equated to terms such as “because of”, “due to”, “based on” and “on the ground of”. Generally speaking “by reason of” has been held to connote a cause and effect relationship.[38]
(Citations omitted)
[35] [2010] HCA 14; (2010) 241 CLR 461.
[36] Ibid at [53]; 478-9.
[37] Ibid at [69]; 482.
[38] Ibid at [22]; 471.
Statements to similar effect appear in numerous other authorities. See for example Waters v Public Transport Corporation[39] and Human Rights and Equal Opportunity Commission v Mt Isa Mines Ltd.[40] I note that in Macabenta v Minister for Immigration and Cultural Affairs,[41] the Full Court of the Federal Court considered the phrase “by reason of” in the context of a provision in the Racial Discrimination Act 1975 (Cth). The question in that case was whether the Migration Regulations (Amendment) 1997 (Cth) had nullified or impaired the enjoyment of the appellant’s rights “by reason of” his national origin, such that the amendment offended a provision of the Racial Discrimination Act 1975 (Cth). The Court said:
[T]he words “by reason of” ... require the practical application of causation principles explained in March v E & M H Stramare Pty Ltd ...[42]
[39] (1991) 173 CLR 349 at 401.
[40] (1993) 46 FCR 301 at 321-2.
[41] (1998) 90 FCR 202.
[42] Ibid at 213.
The expression “by reason of” in s 82(2)(d) should be understood in the same way. This means that the appellant had to show more than that the “but for” test was satisfied.

Ms Hamilton‑Smith was the party to the various proceedings relating to the attempts to secure her bankruptcy. As such, she appears to be a person who may have been really and directly aggrieved by the conduct of the respondents, if that conduct occurred. That is because she was the one who stood to be affected directly as a result of any misleading of the courts as alleged by the appellant. Further, Ms Hamilton‑Smith was the person who, in ordinary circumstances, would have incurred the liability for costs to which the appellant referred.
The circumstance that the appellant was not a party to the proceedings in which the alleged unprofessional conduct occurred and indeed, was involved in those proceedings in the manner of a volunteer, serves to make the connection between the alleged conduct, on the one hand, and the “losses” he asserts, on the other, less direct. The alleged effect on the appellant could arise only from his acting in his capacity as a legal practitioner and not because of his pursuit of some personal interest.
The appellant deposed that he and Ms Hamilton‑Smith had previously been living together as domestic partners. It may be natural that the appellant would have acted without charge for Ms Hamilton‑Smith if their domestic relationship was still current in 2006. However, the appellant’s evidence did not indicate the nature of their relationship at relevant times in 2006 so as to provide a possible basis for a submission that he and Ms Hamilton‑Smith may have had some substantive common interest in the various proceedings.
In any event, the appellant’s position appears little different from that of any retained practitioner acting for a client in litigation. It is the client who may suffer loss as a result of the manner of conduct of proceedings by an opponent in litigation. Not untypically, the client may incur a liability, or an increased liability, for the costs of their own representation in such cases. It is not usual to speak of the retained practitioner’s work in such circumstances, nor the rendered fees, as a “loss” or “detriment” suffered by the practitioner, let alone a loss suffered by reason of the conduct of the opponent’s legal representatives.
If a practitioner does not recover the costs of his or her representation that will usually be because of the terms of the retainer, as is the case when a practitioner acts pro bono or without charge, or on a contingency, or it may be because of the impecuniosity of the client. That is the cause of the “loss” in a commonsense understanding. That “loss” is not usually attributed to the conduct of the client’s opponent in the litigation. The fact that the appellant chose to act for Ms Hamilton‑Smith without charge cannot have the effect that his unremunerated work becomes a “loss” arising really and directly from the alleged conduct of the respondents.
Understood in this way, there does not seem to be a sufficiently close connection between the “loss” arising from the practitioner having acted without fee, on the one hand, and the alleged conduct of the respondents, on the other.
There is inevitably a degree of speculation and uncertainty in losses said to be comprised of opportunity costs. Courts usually require precise evidence before recognising that such costs should be compensated. The appellant did not adduce any evidence indicating that the losses of this kind which he alleged were more than speculative, or which would have allowed the Tribunal to conclude that there had been a real effect on him. His claim did not really rise above the level of assertion.
Accordingly, the losses (actual losses and opportunity cost) asserted by the appellant arising from his acting as solicitor for Ms Hamilton‑Smith appear to be only indirectly related to the impugned conduct of the respondents. To my mind, they lack the quality of a real and direct effect.
For these reasons, I uphold the Tribunal’s conclusion that the “losses” asserted by the appellant did not arise, really and directly, by reason of the respondents’ conduct. They were, in the language of the Tribunal, too remote.
Interest as a Legal Practitioner and an Officer of the Court
Finally, the appellant contended that he had the “right”, as a legal practitioner and as an officer of this Court, to have the Tribunal “take up [his] complaint”. He contended that all legal practitioners have such a right in the interests of the legal profession generally, in the public interest in having the time of the courts used efficiently and effectively, and in the wider public interest of preventing practitioners as officers of the courts from abusing court processes.
The appellant did not articulate the basis of this asserted right nor did he refer to any authority supporting its existence. Instead, he asserted that legal practitioners, in comparison with others such as clients or an opposing party, are in the best position to appreciate that a departure from the accepted rules of proper professional conduct has occurred.
As to this submission the Tribunal said:
The Tribunal accepts that legal practitioners have the right to raise ... their complaints about the conduct of other legal practitioners ... However, that right is available by complaining to the Board through the investigative powers of the Board. If, as in this case, the Complainant wishes to complain about the conduct of the Practitioners, utilising s 82(2)(d) of the Act, then the Complainant needs to come within the requirement of being a “person aggrieved” and that grievance must be “by reason of the alleged unprofessional or unsatisfactory conduct” of the Practitioners.[43]
The Tribunal regarded the appellant’s complaint as too remote from the alleged conduct of the practitioners and, in any event, as not arising by reason of their conduct.[44]
[43] Reasons at [123].
[44] Ibid at [124].
I agree with the Tribunal’s reasons. Of course, practitioners generally should be concerned to ensure that proper standards of professional conduct are upheld. The reputation of, and confidence in, the legal profession and the administration of justice generally may be diminished by reason of the unprofessional or unsatisfactory conduct of one member. However, those matters cannot of themselves mean that any legal practitioner will satisfy the requirement for standing contained in subs (2)(d). They do not give rise to the kind of real and direct interest required by subs (2)(d). Section 82(2)(d) should not be understood as indicating that all practitioners, by virtue of their status as legal practitioners and their common responsibility to uphold appropriate standards of conduct, can be regarded as persons really and directly affected by the unprofessional conduct of another. The standing of a legal practitioner to lay charges before the Tribunal must be assessed in the same way as in the case of any other complainant.
I consider that the Tribunal was correct in rejecting this basis of the appellant’s claim to have standing to bring the charges.
Conclusion on Basis for Standing
For the reasons given above, I consider that the Tribunal was correct in finding that the appellant lacked standing to bring the charges. It was correct to dismiss the charges on the basis that it lacked jurisdiction to inquire into them under s 82(4).
Interlocutory Matters
The reasons given above indicate that an appropriate order for the disposition of the appeal is one of dismissal. However, it is necessary to address some other matters.
By an interlocutory application filed on 9 November 2011, the appellant sought permission to “file” amended charges against the respondents, to amend his notice of appeal, and to adduce fresh evidence. The three applications were, to a significant extent, interrelated. Although the appellant did not say so expressly, it was apparent that he made the applications in an attempt to overcome the lack of standing which the Tribunal’s decision revealed. Each of the applications, apart from one aspect of the application to amend the notice of appeal, was opposed by the respondents.
I heard submissions on the interlocutory application at the commencement of the hearing of the appeal and, apart from the aspect which was not opposed, refused each application. I gave some brief reasons at the time for the refusal of the first two applications and said that I would provide reasons for the third as part of this judgment. Because of their interrelationship, it is appropriate that I record my reasons on all three applications.
The Application to Amend the Charges
The proposed amended charges in relation to the respondents are in relevant respects identical. With all respect to the appellant, they are not well drafted and this makes summary of their effect difficult.
In substance, the proposed new allegations appear to be that in 2005 and 2006 each respondent brought, maintained or defended each of six separate legal proceedings involving Ms George and Ms Hamilton‑Smith in the implementation of a “strategy” developed between them and Mr Macks. The strategy was to bankrupt Ms Hamilton‑Smith as a means (expressed generally) of causing difficulties to the appellant in a variety of ways. The appellant contends that the conduct of each was accordingly an abuse of process of the “Court”. Alternatively, he contends that the respondents were “recklessly indifferent” as to whether their conduct was such an abuse.
The appellant had not previously made any allegation that the respondents were active participants in a strategy, let alone a strategy which had him as its object and in the development of which they had participated.
The proposed charges particularised the strategy by reference to an agreement apparently made as early as June 2005, and as later varied, under which Mr Macks agreed to fund the bankruptcy proceedings by Ms George.
The Court’s power to amend charges on an appeal under s 86 of the LPA is by no means clear. The appellant submitted that such a power was implicit in the appeal being by way of rehearing.[45] He contended that this meant that this Court “stands in the shoes” of the Tribunal and has all of its powers at first instance.
[45] Supreme Court Civil Rules 2006 (SA), r 286(1).
The authorities indicate that the nature of an appeal by way of rehearing may vary according to statutory context.[46] The appeal may, in effect, be a hearing de novo, a hearing on the material which was before the court or tribunal at first instance, or a rehearing on that material supplemented by such further material as the appellate court admits under a statutory power to do so.[47]
[46] Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616.
[47] Ibid. See also Fox v Percy [2003] HCA 22 at [20]; (2003) 214 CLR 118 at 124-5.
There are indications in the LPA[48] and in the Rules of this Court governing appeals[49] that the present appeal is of the third kind, but it is not necessary to express a final view about that.
[48] Legal Practitioners Act 1981 (SA), s 86, in particular s 86(3).
[49] Supreme Court Civil Rules 2006 (SA), r 286.
It is sufficient to say that, contrary to the submission of the appellant, I do not regard this Court, on an appeal under s 86 of the LPA, as “standing in the shoes” of the Tribunal with the effect that the appeal is a hearing de novo. The reasons of the Full Court of the Federal Court in Spencer v Commonwealth[50] in relation to appeals under s 24 of the Federal Court of Australia Act 1976 (Cth) are pertinent in this respect. The mere fact that the appeal is one by rehearing does not mean that this Court can exercise all of the powers which were available to the Tribunal at first instance.
[50] [2012] FCAFC 169; (2012) 206 FCR 309.
This Court has held that it may, on an appeal, exercise the power of the Magistrates Court to amend a summons or complaint laid under the Summary Procedure Act 1921 (SA): Hull v Nuske;[51] Lepadatu v Police;[52] Robey v Police;[53] Ireland v Police.[54] The precise origins of the Court’s power referred to in these cases are not clear. It may have rested on rr 96C.06 and 97.18 of the Supreme Court Rules 1987 (SA), for which there is no present counterpart.
[51] (1974) 8 SASR 587 at 593.
[52] [1999] SASC 400 at [20].
[53] (1993) 18 MVR 121 at 123-4.
[54] [2005] SASC 202 at [14].
In the present circumstance, however, a power to amend may exist under s 86(3) of the LPA, in particular under subs (3)(c). Section 86(3) provides:
(3)The Supreme Court may, on the hearing of an appeal exercise any one or more of the following powers, as the case requires:
(a)     affirm, vary, quash or reverse the decision subject to the appeal and administer any reprimand, or make any order, that should have been administered or made in the first instance;
(b)     remit the subject matter of the appeal to the Tribunal for further hearing or consideration or for rehearing;
(c)     make any further or other order as to costs or any other matter that the case requires.
As the Court did not receive full submissions on the question of its power to amend the charges laid in the Tribunal, it is preferable not to express a concluded view. I was content to proceed on the basis that the Court does, on the present appeal, have power to amend the charges laid before the Tribunal.
However, accepting that the Court does have that power, I was firmly of the view that it ought not to be exercised in favour of the appellant on this occasion. The appellant sought to introduce, by amendment, charges of a significantly different kind from those originally laid before the Tribunal. This is not a case of an appellant seeking to correct some technical shortcoming in the existing charges or wishing to have the charges accord with the basis on which the first instance hearing was conducted.
Further, the appellant seeks to introduce the new charges after the five year limitation period fixed by s 82(2a) has expired. This means that, before the Tribunal, the laying of the charges would require the written consent of the Attorney‑General. The appellant did not adduce evidence that any such consent had been granted.
Further still, if the amendments were allowed, this Court would be conducting a first instance inquiry into the Tribunal’s jurisdiction to inquire into those amended charges. That is not appropriate on an appeal.
For these reasons I refused the appellant’s application for permission to amend the charges which he laid before the Tribunal.
Reception of Fresh Evidence
I referred earlier to the substantial affidavit material which the appellant filed in the Tribunal. The appellant informed the Tribunal at the hearing that he relied on the whole of that material in relation to the challenge to his standing, even though several of the affidavits had been prepared in relation to the respondents’ interlocutory applications generally.
The appellant’s appeal to this Court was commenced on 31 August 2012 and listed for hearing on 9 November 2012. The parties were notified of that listing on 17 October 2012. On 18 October, the hearing was relisted for 15 November 2012 in order to accommodate the convenience of counsel.
On 6 November 2012, the Court received notification for the first time that the appellant intended to file an affidavit of some 1200 pages in length. The appellant informed the Court that he intended to file an application for permission to adduce further evidence, and that the bulk of the foreshadowed 1200 page affidavit would comprise that evidence. It was then obvious that the foreshadowed interlocutory application and further evidence had the potential to dislocate the arrangements made for the hearing of the appeal. The Court thereupon, on its own motion, held a directions hearing in relation to the appeal on 9 November 2012.
At the directions hearing, I ordered that, instead of filing the foreshadowed affidavit, the appellant was to file and serve that same day an application for permission to adduce the further evidence, limited to four pages, and, as part of the application, to provide particulars sufficient to indicate the further evidence proposed to be adduced, and its purport and effect. In addition, I directed that the appellant file and serve a short affidavit in which he deposed to the matters relied upon to establish the circumstances in which the Court should, on the appeal, receive the further evidence.
My intention was that the appellant should thereby provide to both the Court and the respondents sufficient information so that the application to adduce further evidence could be determined without the Court or the parties having to consider, as part of the application itself, all the proposed further evidence. I informed the parties that I would deal with the foreshadowed application to adduce further evidence at the commencement of the hearing of the appeal on 15 November.
The appellant did not comply with these orders in the manner intended. Instead, his interlocutory application said only that he sought permission to adduce the further evidence referred to in the accompanying affidavit, and did not provide any particulars. The affidavit identified five categories but with only limited particularity of the kind contemplated by the orders of 9 November.
Although the appellant had not mentioned at the directions hearing any intention to apply to amend the charges which had been considered by the Tribunal, his interlocutory application did contain such an application. The appellant filed a second affidavit on 12 November 2012 exhibiting the form of the proposed amended charges against each respondent. As will be seen, it was apparent that much of the supporting affidavits and the proposed further evidence were directed to the proposed amended charges.
Leaving aside any inherent jurisdiction, the Court’s power to receive further evidence arises presently from r 286(3)(a) of the Supreme Court Civil Rules 2006 (SA) which provides (relevantly) that the Court may “in its discretion, hear further evidence on a question of fact”.
The nature and exercise of a power to receive further evidence such as that contained in r 286(3)(a) was considered by the High Court in CDJ v VAJ.[55] The present appeal is not the occasion to review in detail the principles stated in CDJ. The following principles relevant to the determination of the appellant’s application to adduce further evidence may be stated:
1.The exercise of the discretion to receive further evidence under r 286(3)(a) is not necessarily to be approached in the same manner as discussed in Wollongong Corporation v Cowan[56] and McCann v Parsons,[57] which are appropriate to the procedures of the common law courts.
2.The discretion is to be exercised in the context that the substantive issue before the Court is whether the decision of the Tribunal as to the appellant’s standing involved error. The context is not one involving a person’s liberty or the care and custody of children (as was the case in CDJ).
3.The circumstance that this Court is concerned with the existence or otherwise of error suggests that the further evidence must be capable of having a material bearing on that question, although it need not be decisive.
4.The discretion is not so wide that the Court may receive further evidence merely because it is useful.
5.The ability or otherwise of the appellant to have obtained the evidence for use at first instance, and any explanation for him not having done so, are important considerations. Ordinarily, further evidence is not received in order to allow a party to patch up deficiencies in its case if those deficiencies could have been addressed by the exercise of ordinary diligence at first instance.
6.The public interest in the finality of litigation is an important consideration.
[55] [1998] HCA 67; (1998) 197 CLR 172.
[56] (1955) 93 CLR 435.
[57] (1954) 93 CLR 418.

The proposed further evidence comprised the following:
1.Orders made by Kourakis CJ on 15 August 2012 in the appellant’s proceedings against Mr Macks;
2.An unsettled transcript of the reasons given by Kourakis CJ on 16 August 2012 for the orders made on 15 August;
3.A so‑called “Watching Brief” maintained by Minter Ellison Lawyers and Mr Macks’ firm, PPB;
4.Documents produced by Mr Macks pursuant to the orders of Kourakis CJ on 15 August 2012;
5.Extracts from the transcript of evidence given by Mr Macks in the proceedings before Kourakis CJ.
The orders of Kourakis CJ of 15 August 2012 required Mr Macks to produce for inspection by the Court records of certain communications between Minter Ellison, or counsel engaged by them, on the one hand, and PPB, on the other. The terms of the orders were as follows:
His Honour directs:
1.The defendant to produce to the Court for inspection by his Honour all records of communications made in the period 1 June 2005 and 25 February 2007 between Minter Ellison, or counsel engaged by them, on the one hand and PPB on the other, referring to:
(a)     the prospects of recovery of money or other forensic success in, and the likely costs of, the actions by Bernsteen and George respectively, against Ms Hamilton‑Smith;
(b)     the lawfulness or propriety of Bernsteen through Mr Macks entering into a funding arrangement with Ms George to enable her to prosecute bankruptcy proceedings against Ms Hamilton‑Smith;
(c)     the strategy referred to in the letter from Minter Ellison to PPB, which is Exhibit D377;
(d)     any conflict of interest between Mr Macks and the creditors of Bernsteen in making the arrangement to fund Ms George’s bankruptcy proceedings;
(e)     the consequences which the prosecution of Ms Hamilton‑Smith to bankruptcy on either of the Bernsteen or George debts may have:
i)in facilitating the insolvent trading proceedings against Mr Viscariello; or
ii)in causing Mr Viscariello to discharge Ms Hamilton‑Smith’s indebtedness to Bernsteen or Ms George or to pay any costs incurred in recovering those debts.
2.The documents be marked in a way which facilitates discussion in open Court about their contents.
3.There be a cross‑reference to either document discovery number or a number in the subpoena or notice to produce.
Order
1.     Decision reserved on the question of the issue waiver.
The communications which were the subject of these orders had been the subject of a claim of legal professional privilege by Mr Macks. The appellant contended in the proceedings before Kourakis CJ that that privilege did not arise because the communications recorded in the documents had been made for an improper purpose. He contended, in the alternative, that any privilege had been waived by reason of the manner of the conduct of Mr Macks’ defence to his claim.
After reviewing some features of the evidence before him, Kourakis CJ concluded that there were characteristics of “the George proceedings” (by which I understand him to be referring to the litigation between Ms George and Ms Hamilton‑Smith in relation to the bankruptcy of the latter) which were capable of being viewed as calculated to abuse the processes of the Court. Kourakis CJ expressly refrained from expressing a view as to whether the material before him constituted reasonable grounds on which to believe that the communications in question were for an improper purpose, but considered that there was sufficient material to warrant the Court viewing for itself the communications in order to determine the disputed claim of privilege.
Significantly for present purposes, Kourakis CJ did not make findings concerning the conduct of either of the present respondents or concerning the manner in which the interests of the appellant may have been affected by their conduct. In those circumstances, it is not easy to see that the reasons of Kourakis CJ of 16 August 2012, or his orders of 15 August, could have a material bearing on the correctness of the Tribunal’s determination concerning the appellant’s standing in relation to the charges before it.
The appellant described the “Watching Brief” as comprising, for the most part, the results of investigations undertaken by PPB and/or Minter Ellison in relation to the personal and business activities of Ms Hamilton‑Smith, himself, and his family during the period May 2002 to May 2006. I took the view that it was not necessary for the Court to examine those documents more closely given the way in which the appellant asserted they were relevant:
These documents are relevant in that they show, in combination with the evidence given at the hearing before the LPDT on 7 and 8 February 2012, the Kourakis CJ Reasons, the Fresh Evidence, and the Macks’ Evidence that the purpose in bringing, maintaining and defending the Legal Proceedings (referred to in the Charges) was for an improper purpose as alleged in the Proposed Amended Charges.[58]
(Emphasis added)
[58] Appellant’s affidavit sworn 9 November 2012 at [14.4].
The appellant gave the same statement as to the relevance of the documents produced by Mr Macks pursuant to the orders of Kourakis CJ and in relation to the extracts of evidence given by Mr Macks.[59]
[59] Ibid at [14.8] and [14.10].
The emphasised portion indicated the appellant’s intended use of the further evidence. That was to demonstrate the improper purpose of the respondents which he alleged in the proposed amended charges. The charges as laid before the Tribunal did not contain any allegation of improper purpose, and the appellant did not contend that the further evidence was material to his standing in relation to those charges.
This meant that once the appellant’s application to amend the charges before the Tribunal was refused, these aspects of the proposed further evidence did not satisfy one of the important discretionary considerations relating to the reception of that evidence.
The appellant’s submissions emphasised that he had come into possession of much of the proposed further evidence only on and after 15 August 2012 and, accordingly, that it had not been available to him at the time of the hearing before the Tribunal. That is obviously so in relation to the orders and reasons of Kourakis CJ, and appears to be so in relation to the evidence of Mr Macks in the proceedings before the Chief Justice. I accept that the other material was not actually in the appellant’s possession at the hearing before the Tribunal on 7 and 8 February 2012.
However, the appellant did not establish that that material could not, with an exercise of reasonable diligence, have been obtained by him at that time. In fact, one of the appellant’s proposed amended grounds of appeal is that the Tribunal erred by not ordering the respondents to disclose and produce all documents in their possession, custody or power relevant to the question of whether he was a person “claiming to be aggrieved” for the purposes of s 82(2)(d). That ground seems to contain an implicit acknowledgement by the appellant that the Tribunal could have made such an order had it been sought and considered appropriate. The appellant’s submissions also seemed to assume that, had such an order been made, the respondents would have had to disclose the material to which he obtained access in the proceedings before Kourakis CJ.
As will be seen I am satisfied that the appellant did not seek such an order. The appellant should not be permitted now to rely upon his own failure to invoke interlocutory processes reasonably available to him before the Tribunal as a means of justifying his application to adduce fresh evidence.
In short, I refused the application to adduce fresh evidence on the grounds of lack of materiality and because I was not satisfied that the appellant could not, with reasonable diligence, have obtained much of the material for use in the hearing before the Tribunal.
Proposed Amended Notice of Appeal
The appellant also applied to amend the notice of appeal. The proposed amended grounds may be considered in three categories.
First, by proposed Grounds 1.13 and 1.14 the appellant wished to contend that, “in light of the further evidence”, the Tribunal had erred in identified respects. As I ruled against the reception of the further evidence, these grounds fell away.
Secondly, the appellant wished to add a new Ground 2 to read that:
(2)The LPDT erred at [64] in finding that a person “claiming to be aggrieved” means the same as a “person aggrieved”.
This ground raised a question of law and the amendment was allowed without opposition by the respondents. I have dealt with this ground in the first part of these reasons.
Proposed Ground 3 was as follows:
(3)The LPDT erred in dismissing the Charges and not exercising its statutory obligation:
3.1 to inquire into those allegations for the purpose of determining the truth or otherwise of the allegations in circumstances where very serious allegations of unprofessional conduct had been brought to its notice and in particular brought to its notice by a legal practitioner;
3.2 in making an order that the Practitioners disclose and produce to it all documents in their possession, custody or power relevant to and bearing upon the question as to whether or not the Appellant was a person claiming to be aggrieved for the purposes of section 82(2)(d) of the Act.
Proposed Ground 3.1 seems on its face to be a complaint that the Tribunal should, irrespective of its view about the appellant’s standing, have undertaken an inquiry into the respondents’ conduct. Such a complaint is untenable having regard to the statutory nature of the Tribunal’s jurisdiction. As such, allowing an amendment to raise that ground would have been futile. To the extent that proposed Ground 3.1 may also have been regarded as a complaint about the Tribunal’s finding on standing, I considered it to be merely repetitious of the existing grounds and therefore unnecessary.
Proposed Ground 3.2 complains, in effect, that the Tribunal had erred in failing to order the respondents to disclose and produce all documents in their possession relating to the appellant’s standing. I considered that this ground also was untenable as the appellant acknowledged that he had not sought such an order from the Tribunal. It is also apparent that the appellant had not overlooked the possibility of obtaining an order for disclosure from the Tribunal. At the preliminary directions hearings, the appellant had raised with the Tribunal the question of disclosure of documents by the respondents and he had referred to this topic at [276] of his affidavit of 5 December 2011. That was at a time when it appeared that the Tribunal would be addressing all aspects of the respondents’ interlocutory applications, including summary dismissal, striking out and further and better particulars.
When the parties agreed to have the Tribunal determine the respondents’ challenge to the appellant’s standing as a preliminary issue, the appellant did not seek any disclosure of documents limited to that issue. His assertion now that the Tribunal erred in failing to make an order which he had not sought is accordingly untenable.
For these reasons, I allowed the amendment to add the new Ground 2 as well as some formal amendments, but otherwise disallowed the application to amend the notice of appeal.
Conclusion
The appellant concluded his submissions with a suggestion that even if the appeal was otherwise to be disallowed, this Court should of its own motion direct an investigation into the respondents’ conduct of which he complains. The fact that he had brought allegations of unprofessional conduct to the Court’s attention was sufficient by itself, he submitted, to warrant the Court ordering such action.
I decline to make an order to that effect. The LPA contains adequate provisions for the investigation of allegations of unprofessional conduct. I refer in particular in this respect to s 76 of the LPA. It is open to the appellant, if so minded, to make a complaint to the Board concerning the conduct of the respondents which is the subject of his allegations. There is no reason to suppose that the Board would not, in the event that such a complaint was received, discharge appropriately its functions in the manner contemplated by Pt 6 of the LPA.
For the reasons given above, I dismiss the appeal against the dismissal of both sets of charges. I will hear the parties as to any further orders.