Walsh v Law Society of New South Wales

[1999] HCA 33

HIGH COURT OF AUSTRALIA

GLEESON CJ,
McHUGH, GUMMOW, KIRBY AND CALLINAN JJ

RONALD JOHN WALSH  APPELLANT

AND

LAW SOCIETY OF NEW SOUTH WALES  RESPONDENT

Walsh v Law Society of New South Wales [1999] HCA 33
5 August 1999
S136/1998

ORDER

1. Appeal allowed with costs.

1. Set aside the orders made by the New South Wales Court of Appeal on 15 December 1997, except for those orders numbered 6 and 7, and in place of the orders set aside order that the New South Wales Court of Appeal hear and determine the appeal and cross-appeal to that court conformably with the reasons for judgment of this Court.

On appeal from the Supreme Court of New South Wales

Representation:

D F Jackson QC with J J Priestley for the appellant (instructed by Stockman & Evans)

J Basten QC for the respondent (instructed by Law Society of New South Wales)

Notice:  This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Walsh v Law Society of New South Wales

Appeal – Jurisdiction – New South Wales Court of Appeal – Appeal from Legal Services Tribunal – Whether court exercising statutory or inherent jurisdiction with respect to the discipline of legal practitioners – Whether jurisdiction conferred by statute entitled court to treat appeal as a new hearing.

Appeal – Nature of appeal – Consideration by court of matters outside grounds of appeal and particulars – Procedural fairness to parties and non-parties – Substitution of views of court for findings of primary tribunal – Whether errors of law by court require rehearing of appeal and cross­appeal.

Legal practitioners – Solicitors – Professional misconduct – Unsatisfactory professional conduct – Conduct in connection with the practice of law – Fitness to remain on roll of legal practitioners.

Words and phrases – "appeal".

Courts Legislation Further Amendment Act 1995 (NSW).
Judiciary Act 1903 (Cth), s 37.
Legal Profession Act 1987 (NSW), ss 11, 127(b), 167, 168, 171C, 171F, 171M.
Supreme Court Act 1970 (NSW), s 75A.

1. GLEESON CJ. This matter was argued in the Court of Appeal of New South Wales upon the basis, adopted by counsel who then appeared for the parties, that the appeal to that court from the Legal Services Tribunal was by way of a new hearing. That assumption was evidently made in the belief that s 171F(4) of the Legal Profession Act 1987 (NSW) applied. When, in the course of argument in this Court, Gummow J questioned that assumption, it was found, and accepted by counsel, to be erroneous. The error was important, because the Court of Appeal regarded itself as free to take an approach to the issues, and facts, substantially different from that taken by the Legal Services Tribunal.

2. I agree with the orders proposed by Gummow J and with his reasons for those orders.

1. McHUGH, KIRBY AND CALLINAN JJ.   In 1962 Mr Ronald Walsh (the appellant) was admitted to practise as a solicitor of the Supreme Court of New South Wales.  He practised variously in partnership and as a sole practitioner.  He served on a number of professional bodies becoming a councillor of the Law Society of New South Wales (the Law Society) and eventually its Treasurer.  In December 1997 the New South Wales Court of Appeal[1], in an appeal by the Law Society, ordered that his name be removed from the roll of legal practitioners. 

   [1]Unreported, Court of Appeal (NSW), 15 December 1997 (hereafter "Court of Appeal Judgment").

2. In this appeal from that order, Mr Walsh complains about several aspects of the reasoning of the Court of Appeal and of the Legal Services Tribunal[2] (the Tribunal) which preceded it.  Mr Walsh's complaints mainly concern the approach, procedures and findings of the Court of Appeal.  He submits that that Court misconceived the nature of the "appeal" before it; misunderstood the particularity proper to the jurisdiction which it was exercising; and made findings adverse to him which were not open to it because they involved procedural unfairness.  These complaints are justified.  They require the redetermination of the proceedings by the Court of Appeal.

   [2]Legal Services Tribunal (NSW) in the Matter of Ronald John Walsh, unreported, 12 September 1996 (hereafter "Tribunal decision").

   The factual background

3. The circumstances which bring Mr Walsh to this Court arise almost wholly out of his conduct in connection with the estate of his late mother, Mrs Mavis Walsh, and his two sisters, Mrs Brain and Mrs Farlow.  With him, the sisters were the sole beneficiaries named in their mother's will.  That will, of March 1967, named Mr Walsh and Mrs Brain as co-executors.  The chief assets of the estate were five cottages and a farm.

4. In July 1986, because of a decline in their mother's health, Mrs Farlow proposed to Mr Walsh that it would be prudent to obtain a power of attorney from their mother.  This was done.  The document named Mr Walsh and Mrs Farlow as the mother's attorneys.  It was executed before a reputable solicitor.  A little more than a year later, the mother left her residence and was admitted to a nursing home.  By this stage she was suffering from an advanced form of dementia.  She died in July 1988.  By the terms of her will, her estate, after payment of debts and expenses, was to be divided equally amongst her three children.

5. Prior to the mother's death, but after she had been admitted to the nursing home, the appellant and his two sisters removed various personal possessions from the mother's residence, including jewellery belonging to the mother, which they divided in a manner agreed amongst themselves.  At the time they did this, it was clear that the mother would not be returning to her residence.  Her needs in the nursing home were fully met from the income received from rent of her several properties.  At the time of the mother's death, one of those properties, at Bruce Street in Brighton-le-Sands, Sydney, was in the course of renovation.  Using the power of attorney, Mr Walsh withdrew sums from accounts in the St George Building Society (the building society) standing in his mother's name.  The sums were paid into his own bank account.  They were paid to reduce the costs of the renovation.  It was not suggested that the moneys were used for any purpose other than the discharge of the debts owed by the mother's estate[3].  For three years after his mother's death, Mr Walsh did not notify the building society of her death.  Instead, he used the power of attorney to execute forms to change the ownership of the account to his own name.

   [3]This fact was made clear at the outset of the proceedings before the Tribunal.

6. None of the foregoing events would probably have come to light but for a dispute which arose in about September 1988 between the appellant and Mrs Brain.  That dispute developed from differences between them about the value of the properties which were to be acquired from the estate by the beneficiaries.  Mrs Brain declined to execute an affidavit of assets and liabilities of the estate prepared by Mr Walsh.  She retained solicitors to act on her behalf.  Mr Walsh immediately applied for probate of the mother's will to be granted to him alone.  He omitted to give Mrs Brain the 14 days prior notice of the application required in such a case by the Rules of the Supreme Court of New South Wales (the Rules)[4].  The Supreme Court issued a requisition requiring Mr Walsh to give notice to Mrs Brain.  He did so.  Later, he was to explain to the Tribunal that his failure to notify Mrs Brain earlier was occasioned by ignorance of the Rules. 

   [4]Supreme Court Rules (NSW), Pt 79 r 24(3).

7. Mrs Brain's solicitors lodged a caveat against any grant of probate to Mr Walsh.  However, by oversight in the registry, probate was granted to Mr Walsh.  This occasioned the institution by Mrs Brain of proceedings for an order setting aside the grant of probate.  Eventually, that suit was settled by the execution of a deed of family arrangement.  This provided for the revocation of the grant of probate and the filing of an amended affidavit of assets and liabilities.  Those steps were taken.  In December 1989 probate was granted jointly to Mr Walsh and Mrs Brain.

8. The disagreements between Mr Walsh and Mrs Brain continued.  For the most part, they related to the accounts of the estate.  In November 1990, Mrs Brain complained to the Law Society about her brother's conduct.  Specifically, her letter included complaints that Mr Walsh had continued to use the power of attorney to operate the mother's banking accounts notwithstanding the mother's death and that he had incorrectly prepared the affidavit of assets and liabilities of the estate.  In January 1991 the Complaints Committee of the Law Society (the Committee) resolved to dismiss Mrs Brain's complaint.  The Committee's reasons recorded that it could not be satisfied that the conduct the subject of complaint fell within the ambit of Mr Walsh's activities as a solicitor.  The Committee concluded that the proper forum to resolve the disputes between the two executors was the Supreme Court of New South Wales.

9. In February 1991 Mrs Brain required that this decision of the Committee be reviewed by the Legal Profession Conduct Review Panel of the Law Society (the Panel).  It was not until after this step that, for the first time, Mr Walsh notified the building society of his mother's death.  The Panel, meanwhile, expressed an intention to recommend to the Attorney-General that Mr Walsh be referred to the Disciplinary Tribunal.  This appears to have prompted the Committee, of its own motion, to reopen the matter. 

10. In July 1993 the Supreme Court proceedings between Mr Walsh and Mrs Brain were settled.  The latter wrote to the Law Society advising it that she was "now satisfied in relation to the complaints made".  However, if Mr Walsh was hopeful that this accommodation would bring to an end the professional enquiries which she had initiated, his hopes were soon dashed.  Mrs Brain, in October 1993, wrote a further complaint to the Law Society alleging that she had been coerced into reaching the settlement.  In May 1994 the Committee resolved to reopen the investigation into her original complaints. 

11. By letter of 27 May 1994, the Committee asked Mr Walsh to respond to questions concerning various matters including (1) his continued use of his mother's power of attorney after her death; (2) his failure to notify the building society of her death; (3) his application for a grant of probate to himself to the exclusion of Mrs Brain and the late service upon her of the notice of intention to apply for probate; and (4) the manner of his completion of the affidavit of assets and liabilities.  In July 1994, the solicitors for Mr Walsh provided answers to these enquiries.  Those to issues (2), (3) and (4) do not need to be examined.  However, in answer to (1), the solicitors stated that Mr Walsh had not used "in any way" the power of attorney after his mother's death.  That answer presented a simple conflict of fact.  It was one readily resolved.  Further enquiries by the Committee produced the change of account ownership forms and a demand by the Professional Standards Department of the Law Society for an explanation.  In September 1994 Mr Walsh's solicitors conceded, on his behalf, that the signature on those forms was his "as his late mother's attorney".  In November 1994 Mr Walsh furnished a statutory declaration to the effect that the other beneficiaries under the will had concurred in his taking steps to ensure that funds were used "as and when necessary to meet the debts and obligations" of the estate.  Following further investigation in March 1996, the Law Society filed an information[5] with the Tribunal, specifying the five grounds of complaint which initiated the present proceedings.

    [5]Pursuant to the Legal Profession Act 1987 (NSW) ("the Act"), s 167(1).

    Proceedings in the Tribunal

12. The information before the Tribunal identified the five grounds of complaint.  It annexed particulars of each of them.  The complaints alleged that Mr Walsh was guilty of professional misconduct (PM) or, in the alternative, unsatisfactory professional conduct (UPC), as specified:

    1.In his use of the general power of attorney in favour of himself and Mrs Farlow executed by their late mother (PM and UPC);

    2.In his delay in notifying the building society of his mother's death (PM and UPC);

    3.In erroneously advising the Law Society that, after his mother's death, he had not used the power of attorney (PM and UPC);

    4.In failing to serve a notice of intended proceedings on his co-executor prior to his application for probate (UPC); and

    5.In the manner of the drawing and/or verification of the affidavit of assets and liabilities sworn in the estate (UPC).

13. In relation to complaint (1), Mr Walsh admitted the facts which gave rise to it.  He agreed that it amounted to a deception of the building society.  He relied on the fact that his conduct did not result in any misappropriation or loss to any person and that all of the moneys drawn from the mother's accounts were spent solely for purposes of the estate.  He asserted that the steps had been taken with the concurrence of the co-executor and Mrs Farlow and that they amounted to an isolated incident in an otherwise unblemished legal career exposing no person affected to the risk of loss.

14. In relation to complaint (2), Mr Walsh admitted his failure to inform the building society of the death of his mother until July 1991.  However, he disputed that he was acting as a solicitor at the time rather than in his capacity as an executor.

15. In relation to complaint (3), Mr Walsh admitted that his first statement to the Law Society, denying use of the power of attorney, had been incorrect.  However, he denied that the error had been known to him at the time of that statement or that it was made without a proper review of the facts.  He claimed that he had no intention by his answer to mislead the Law Society and, in effect, that he had simply forgotten his use of the power of attorney. 

16. As to complaint (4), Mr Walsh admitted the facts but stated that his application for probate to the exclusion of his co-executor and without due notice to her had been made in ignorance of the requirements of the Rules.

17. As to complaint (5), the Law Society's particulars relied on the failure of the affidavit of assets and liabilities, as originally drawn by Mr Walsh, to disclose certain properties of his late mother in Blakehurst and Hilldale, and the existence of money advances to and from, or on behalf of the estate made by and between, the beneficiaries.  The particulars also referred to the erroneous characterisation of the interest of the deceased in a property at Sylvania Waters as an equitable interest only.  Deliberate falsity in the preparation of the affidavit was not alleged.

18. Mr Walsh's case on complaint (5) was that he had not been acting as a solicitor when he drew and verified the affidavit but solely in his capacity as executor.  The cross-examination before the Tribunal addressed issues relevant to whether, in preparing it, Mr Walsh had been acting as a solicitor.  It also suggested inconsistency between an earlier draft of the affidavit of assets and liabilities and that which was finally lodged.  Mr Walsh's case on the merits of this complaint was that the affidavit, as filed, did not conceal the existence of the two properties in question.  It disclosed that there was due to the estate from Mrs Brain a sum of $110,000 in respect of the property at Sylvania Waters and that a balance was payable under two agreements related to identified real estate.  Mr Walsh said that after he had received advice that, contrary to his earlier view, the agreements were not enforceable, he swore a second affidavit disclosing the properties as assets of the estate. 

19. The Tribunal found complaint (1) proved.  It concluded that Mr Walsh had practised deception on the building society and thereby obtained an unlawful transfer of property from the name of his deceased mother to his own name.  On this footing, the Tribunal concluded that a finding that Mr Walsh was "not of good fame and character" should be made.  This meant that he was guilty of professional misconduct[6].  But the Tribunal noted that the misconduct in question was to be judged at the time it occurred; that no misappropriation had taken place; and that there was no ultimate loss to any person[7].  It therefore concluded that the conduct constituting the misconduct did not warrant a finding that Mr Walsh was not a fit and proper person to remain on the roll of legal practitioners[8].

    [6]The Act, s 127(1)(b).

    [7]Tribunal decision at 12-13.

    [8]Tribunal decision at 13.

20. As to complaint (2), the Tribunal concluded that neither as executor nor solicitor did Mr Walsh have an obligation or duty to notify the building society of the death of the deceased.  Accordingly, standing on its own (ie apart from complaint (1)) the Tribunal found that the complaint of delay in notifying the building society of the death of his mother did not constitute professional misconduct or unsatisfactory professional conduct.  It dismissed the complaint[9].

    [9]Tribunal decision at 14.

21. As to complaint (3), the Tribunal accepted the evidence of Mr Walsh that he did not know that the original statement to the Law Society from his solicitor was erroneous.  Given the passage of six years after the event when the enquiry was made, the Tribunal did not regard as unreasonable Mr Walsh's omission to review the facts further at that stage.  Accordingly, it also dismissed this complaint[10].

    [10]Tribunal decision at 16.

22. As to complaint (4), the Tribunal rejected Mr Walsh's defence that, in making his application for probate to the Supreme Court, he had acted as executor only and not "in connection with the practice of law"[11].  However, it concluded that his omission to give the notice to his co-executor required by the Rules, although negligent, did not fall short of the standard of competence and diligence required of a reasonably competent legal practitioner.  Accordingly, the Tribunal also dismissed complaint (4)[12].

    [11]See the Act, s 127(1)(b).

    [12]Tribunal decision at 18.

23. As to complaint (5), the Tribunal accepted that the original affidavit of assets and liabilities was incorrect in its description both of the real estate assets and of the debts of the estate of Mr Walsh's mother.  It rejected, once again, the argument that the affidavit was prepared as executor and not as a solicitor acting "in connection with the practice of law".  The Tribunal pointed out that the application for probate had been filed on a form of document which bore the name of the firm of which Mr Walsh was principal.  It concluded that he was guilty of unsatisfactory professional conduct in respect of complaint (5), that being the only matter complained of.  Nonetheless, the Tribunal went on to find that it could "only conclude that the motive of the Solicitor in describing the assets and debts as he did in this Affidavit was to ignore the interests of his sisters and in some way to establish an entitlement" to one of the properties at an under-value[13].

    [13]Tribunal decision at 23.

24. In the result, only two of the five complaints were upheld, viz complaints (1) and (5).  The other complaints were dismissed.  The Tribunal took into account Mr Walsh's years of practice, "excellent character and reputation" and service to the legal profession.  It ordered him to pay fines of $8,000 in respect of complaint (1) and $2,000 in respect of complaint (5).  A measure of the Tribunal's view of Mr Walsh's success was its order that he pay only 50% of the costs of the Law Society.

    Issues before the Court of Appeal

25. The Law Society appealed against the Tribunal's orders to the New South Wales Court of Appeal.  Mr Walsh cross-appealed.  The Law Society's four grounds of appeal were limited to challenging the Tribunal's determination in respect of complaints (1), (3) and (4).  This meant that the Law Society accepted the dismissal of complaint (2).  Accordingly, it was not before the Court of Appeal.  The Law Society also accepted the determination made on complaint (5).

1. So far as complaint (1) was concerned, the Law Society's grounds of appeal raised two objections to the Tribunal's findings.  The first, (ground 1) challenged the Tribunal's determination that complaint (1) did not occur "in connection with the practice of law" within the meaning of the Legal Profession Act 1987 (NSW) ("the Act"), s 127(1)(b). The second, (ground 2) complained that the Tribunal had erred in holding that a person found guilty of professional misconduct, who was not a person of good fame and character, was yet a fit and proper person to remain on the roll of legal practitioners.

2. So far as complaint (3) was concerned, the Law Society's ground of appeal (ground 3) challenged the finding of the Tribunal that it was unreasonable to expect that Mr Walsh should have made a review of the facts before erroneously advising the Law Society that he had not used the power of attorney after the death of his mother and in failing to find that such failure amounted to unsatisfactory professional conduct, having regard to the facts reasonably available to Mr Walsh before furnishing his response.

3. So far as complaint (4) was concerned, the Law Society's ground of appeal (ground 4) complained that the Tribunal had erred in holding that Mr Walsh's conduct in failing to notify his co-executor did not fall short of the standards of competence and diligence that a member of the public was entitled to expect of a legal practitioner or, having so found, in failing to uphold the complaint.

4. It will be observed that the gravamen of the Law Society's position, as revealed by the notice of appeal, was that, having found that Mr Walsh was not a person of good fame and character in respect of complaint (1), the Tribunal was virtually bound to order the removal of his name from the roll of legal practitioners.  The Law Society had not pressed complaint (2); had confined complaint (3) to one of unsatisfactory professional conduct (rather than professional misconduct as alternatively charged in the information); had sought to secure a finding of unsatisfactory professional conduct in respect of complaint (4); and, by inference, to maintain the finding of unsatisfactory professional conduct which the Tribunal had made on complaint (5).

5. Mr Walsh's cross-appeal challenged the finding on complaint (1) that he was not of good fame and character (ground 1) and the finding of unsatisfactory professional conduct made on complaint (5) in relation to the completion of the affidavit of assets and liabilities (grounds 2 to 5).  There was also a ground of cross-appeal complaining about the fines which Mr Walsh was ordered to pay (ground 6) but one suspects that Mr Walsh had no real complaint about those penalties.  It was the Law Society which argued that the fines were quite inadequate, even on the premises of the two complaints upheld by the Tribunal and more so if findings adverse to Mr Walsh should have been made on complaints (3) and (4).

6. This was the state of the issues when the matter came before the Court of Appeal.  We have taken some pains to describe those issues as they emerge from the particularised complaints before the Tribunal, the determinations of the Tribunal and the grounds of appeal and cross-appeal to the Court of Appeal.  We have done so for a purpose.  They define the issues which the Court of Appeal was required to resolve in the appeal.  To the extent that it went beyond those issues, the Court of Appeal ran the risk of exceeding the particular jurisdiction conferred upon it in the proceedings and of occasioning procedural unfairness to Mr Walsh.  The latter could arise if findings were made adverse to him which went outside the issues.

   Decision of the Court of Appeal

7. The principal judgment in the Court of Appeal was given by Powell JA.  The other members of the Court (Beazley JA[14] and Clarke AJA[15]) respectively agreed or "substantially" agreed with Powell JA's reasons.  Beazley JA added some observations "as to penalty"[16].  Clarke AJA expressed himself in agreement with the reasons of Beazley JA (and of Powell JA) on the order proper to the finding that Mr Walsh was not of good fame and character.  The Court of Appeal did not deal explicitly with Mr Walsh's cross-appeal; but it must be taken to have rejected it and it so ordered.  Although Powell JA identified, with particularity, the Law Society's various grounds of appeal challenging the findings of the Tribunal on complaints (3) and (4), and although some remarks were made by his Honour relevant to complaint (4)[17] and also to complaint (2) which was not before the Court of Appeal[18], no express finding was recorded by Powell JA in relation to the Law Society's challenge to the conclusions of the Tribunal on the still contested complaints (3) and (4).

   [14]Court of Appeal Judgment at 1, per Beazley JA.

   [15]Court of Appeal Judgment at 3, per Clarke AJA.

   [16]Court of Appeal Judgment at 1, per Beazley JA.

   [17]Court of Appeal Judgment at 66, per Powell JA.

   [18]Court of Appeal Judgment at 50, per Powell JA.

8. In the course of his reasons, Powell JA offered an explanation of why he felt at liberty to depart from the "manner in which the complaints contained in the Information had been formulated, and the manner in which the [Law Society] conducted its case before the Tribunal"[19].  He said that this course was justified because of the nature of the appeal to the Court of Appeal from the determination and orders of the Tribunal[20]. Powell JA "noted" that s 171F of the Act provided:

   "(4)   An appeal is to be by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence received at the original hearing, may be given."

   On this footing, Powell JA followed what he described as "the proper approach" explained in an earlier decision of the Court of Appeal[21] in terms of s 164(4) of the Act as then in force. That provision was not relevantly different to s 171F(4) upon which Powell JA relied. It led his Honour to the opinion that the duty of the Court of Appeal was "to consider whether [Mr Walsh's] conduct as revealed by the materials which are before the Court for its consideration demonstrates that [he] is not a person of good fame and character or is a person who is not fit to remain upon the roll of legal practitioners"[22]. Powell JA concluded[23]:

   "[I]t was open to the Tribunal, as it is open to this Court, to have regard to the whole of the evidence as to [Mr Walsh's] conduct revealed by the evidence, and not merely to that part of the evidence which might be directly related to the complaints as formulated and as particularised.  Once those facts are accepted, then the matters which concerned me at the commencement, and during the course, of the hearing of this appeal and cross-appeal tend to disappear. 

   I say this since, although some of the matters to which I will shortly refer are not the subject of the complaints as formulated or particularised, they are matters which have been put forward by [Mr Walsh] as justifying his conduct in relation to the matters the subject of the complaints as formulated and particularised, and have a considerable bearing upon the ultimate question which the Court is called upon to determine".

   [19]Court of Appeal Judgment at 59, per Powell JA.

   [20]Court of Appeal Judgment at 60, per Powell JA.

   [21]Law Society of New South Wales v Bannister (1993) 4 LPDR 24 per Sheller JA.

   [22]Court of Appeal Judgment at 62, per Powell JA.

   [23]Court of Appeal Judgment at 63, per Powell JA.

9. From this conclusion, Powell JA proceeded to make a number of observations (many of them collected as numbered conclusions) which were outside the complaints before the Court of Appeal, in terms of the issues raised by the grounds of appeal and cross-appeal.  Some were also outside the particulars of those complaints which remained alive.  Thus, his Honour referred to "conduct with which I am concerned" as not casting "a favourable light on either Mrs Brain or Mrs Farlow", the only mitigation of which was that they, unlike Mr Walsh, were not legally qualified[24].  Neither Mrs Brain nor Mrs Farlow were parties to the proceedings in the Court of Appeal.  Neither was represented there.  Neither had any opportunity to defend their conduct. 

   [24]Court of Appeal Judgment at 63, per Powell JA.

10. Powell JA also took as demonstrated that Mr Walsh had "not the slightest comprehension of the fiduciary duties to which, as the grantee of the deceased's Power of Attorney, he was subject, or, if he were aware of, and comprehended, those duties, had not the slightest compunction in disregarding them and in acting in the deceased's affairs to his own advantage"[25].  This finding went beyond the particulars of any of the complaints relevant to that conduct.  It reflects an earlier comment of his Honour, which contained stringent criticism of Mr Walsh (and his sisters) in relation to the way in which they had shared between them the personal effects and jewellery of the late Mrs Walsh whilst she was still alive.  Powell JA stated that this did not "reveal [Mr Walsh] or his sisters in any favourable light - indeed, even if one accepts [Mr Walsh's] version of the events which occurred, it is, in my view, clear, that, at the very least, [Mr Walsh] and Mrs Farlow acted in a way which was completely at odds with their position as the deceased's attorneys"[26].  These observations did not relate to a matter before the Court of Appeal on any of the complaints as particularised.  As stated, Mrs Farlow was not even a party to the proceedings.

    [25]Court of Appeal Judgment at 64, per Powell JA.

    [26]Court of Appeal Judgment at 8, per Powell JA.

11. The fourth conclusion of Powell JA related to what he described as "the real burden of the second complaint"[27].  This was, his Honour noted, the failure to inform the building society of the deceased's death.  Although that complaint had been resolved by the Tribunal in favour of Mr Walsh and was not the subject of an appeal by the Law Society, Powell JA remarked that[28]:

    "[H]is failure to inform the [Building] Society enabled him both to practise a deception upon the [Building] Society and also to deal with the deceased's accounts with the [Building] Society".

    [27]Court of Appeal Judgment at 65, per Powell JA.

    [28]Court of Appeal Judgment at 65, per Powell JA.

12. The fifth conclusion of Powell JA arose out of a concession which Mr Walsh made during cross-examination before the Tribunal.  This was to the effect that he had, at unspecified times and in unspecified circumstances, advised clients in the past to use a bank or building society account after the death of a client where money was urgently needed to meet liabilities.  Although this was not the subject of further exploration by the cross-examiner, nor any application to amend the information to specify a fresh complaint or to amend the particulars of the complaints already made, Powell JA identified it as a consideration within the "whole of the material" to which weight was to be given. 

13. In the sixth conclusion, Powell JA stated that Mr Walsh and his sisters "were prepared so to act as to obtain an improper advantage for themselves" in the carrying out of maintenance and repairs to the deceased's properties[29].  This conclusion was recorded although, as has been stated, the sisters were not parties.  The only complaint that might have been indirectly relevant was complaint (5).  That had been found by the Tribunal against Mr Walsh but only upon the footing that it established unsatisfactory professional conduct, as charged and not professional misconduct.  Powell JA went on to conclude, beyond the terms of complaint (5) and the particulars of that complaint, that Mr Walsh was "not averse to ignoring what he understood to be the true legal position if, by so doing, he could obtain an improper revenue advantage"[30].  What that advantage was and how it bore upon the issues remaining in the appeal or cross-appeal was not indicated.  Likewise with his Honour's seventh conclusion, that Mr Walsh's "knowledge of, and attitude to (inter alia) the law of contract, the law of vendor and purchaser and the requirements of the revenue laws was rather less than it should have been"[31].

    [29]Court of Appeal Judgment at 66, per Powell JA.

    [30]Court of Appeal Judgment at 66, per Powell JA.

    [31]Court of Appeal Judgment at 66, per Powell JA.

14. In the eighth conclusion, Powell JA referred to "the real bite in the fourth complaint".  This, it will be recalled, was the failure by Mr Walsh to serve his co­executor with prior notice of the application for probate to be granted to himself.  According to Powell JA[32], the gravamen of this complaint was:

    "not so much that [Mr Walsh's] failure to serve on Mrs Brain a Notice of Intended Application reflected an inadequate knowledge of the rules of Court, or a negligent performance of the duties of a solicitor making an application for a grant of Probate with leave reserved, but that, because of the disputes that existed between himself and Mrs Brain, [Mr Walsh] was prepared to ignore such rights as Mrs Brain had as an Executrix and to proceed to obtain a grant of Probate in his name alone … conduct which was, at the least, devious, and conduct in which a solicitor should not indulge". 

    On the stated premises, one might have some sympathy for Powell JA's criticism of such conduct.  However, complaint (4) as framed by the Law Society, and as particularised, made no reference to "devious" or deliberate misconduct.  It was confined to a complaint of "unsatisfactory professional conduct".  It was always open to the Law Society, holding to the same view as Powell JA reached, to have made a complaint of professional misconduct.  But it did not do so.  Unsurprisingly, therefore, its appeal did not include such an assertion but was confined to the issues presented by the complaint as originally advanced by the Tribunal.

    [32]Court of Appeal Judgment at 66-67, per Powell JA.

15. Powell JA's ninth conclusion was relevant to complaint (3).  It disputed Mr Walsh's assertion that his original mistake, in answer to an enquiry by the Law Society in which he denied use of the power of attorney after the death of his mother, was due to faulty recollection.  Powell JA indicated that, whilst at first he was prepared to accept this explanation, "upon a more detailed consideration of the material which is before the Court … it seems to me that [Mr Walsh's] assertion ought to be treated as having been, if not made with knowledge of its falsity, nonetheless as having been made recklessly, not caring whether it be true or not"[33].  The difficulty of this conclusion is that the Tribunal, which had the advantage of observing Mr Walsh when he gave evidence, expressly accepted "that ... he did not know the statement … was erroneous"[34].  Furthermore, whereas originally the complaint relevant to this item had charged, in the alternative, professional misconduct and unsatisfactory professional conduct, by the time it came to the Court of Appeal, the only complaint alleged by the Law Society was of conduct of the latter kind.  In these circumstances, the conclusion expressed by Powell JA, which could only be relevant to, and lead to a finding of, professional misconduct, was not a matter which Mr Walsh was properly called upon to answer.

    [33]Court of Appeal Judgment at 67, per Powell JA.

    [34]Tribunal decision at 15.

16. In the tenth conclusion, Powell JA addressed the generality of Mr Walsh's conduct.  He said that the particular items reviewed by him did not represent "an isolated incident but a course of conduct indulged in by [Mr Walsh] over an extended period and one in which the motivating factor appears to have been the pursuit of [his] personal interests"[35].  This was likewise a conclusion which went beyond the complaints which Mr Walsh was required to meet.  Although it reflects, in a more generalised way, an opinion which the Tribunal itself had expressed in relation to complaint (5), that opinion appears to have gone beyond the nature of complaint (5) which was confined to a charge of "unsatisfactory professional conduct" rather than of deliberate and wilful professional misconduct. 

    [35]Court of Appeal Judgment at 67, per Powell JA.

17. Powell JA's eleventh, and final, conclusion was the failure of Mr Walsh to express regret or contrition for the conduct with which he stood charged[36].  Certainly, Mr Walsh did not express contrition for the wide variety of misconduct which, directly or indirectly, Powell JA seems ready to have found against him.  But that was doubtless because he was never called upon, by the complaints, by the particulars, by the conduct of the case of the Law Society before the Tribunal or in the Court of Appeal or by the grounds of appeal to defend himself (and his sisters) on the wide variety of misdeeds which were eventually laid at his and their doorstep.  In a statutory declaration provided to the Law Society in April 1996, Mr Walsh accepted that it was incorrect of him to withdraw the moneys from his mother's building society accounts as he did.  He expressly accepted that any authority afforded by the power of attorney had been revoked by his mother's death and that, for urgently required expenses on behalf of the estate, the appropriate course was to apply for a limited grant of probate or letters of administration.  This was not a fulsome acknowledgment.  It was accompanied by an attempt at exculpation, to the effect that the "moneys withdrawn were for legitimate estate expenses and, had the moneys not been expended as I did, the estate could well have suffered loss as a consequence"[37].  But at least it expressed an awareness of error.

    [36]Court of Appeal Judgment at 67, per Powell JA.

    [37]Statutory Declaration of Mr Walsh, 26 April 1996 at 5.

18. Powell JA's decision that Mr Walsh's conduct "marks him out as one who, as the Tribunal found, was not of good fame and character" followed immediately the eleven conclusions, to most of which we have referred[38]. His Honour noted that a person not of good fame and character could not, under the Act, be admitted as a legal practitioner[39].  It followed, in his view, "almost inevitably" that a person found not to be of good fame and character should not be permitted to remain on the roll.  Whilst accepting that provision was made for the imposition of a fine[40], including in the case where a legal practitioner was found guilty of professional misconduct, Powell JA concluded, by reference to Mr Walsh's case[41]:

    "I must say that I find it difficult to understand how it can be said that, in a case in which a legal practitioner has been privy to, or has facilitated the deceit of, and has, in all probability, by so doing, contributed to loss by, a third party, it can be said that the appropriate protective order called for is no more than the imposition of a fine."

    [38]Court of Appeal Judgment at 68, per Powell JA.

    [39]The Act, s 11.

    [40]The Act, s 171C(1)(d).

    [41]Court of Appeal Judgment at 70, per Powell JA.

19. In this Court Mr Walsh submitted that, although deception of the building society was involved in the continued use of the power of attorney after his mother's death, no complaint was made which warranted a conclusion, in the probabilities or at all, that he had contributed to the loss of a third party.  On the contrary, the evidence indicated that there had been no loss to the assets of the estate.  Although there had been various objections by Mrs Brain, all of these were ultimately resolved in a deed of family arrangement.  The only persons affected by his conduct, within the complaints made, were Mr Walsh and his two sisters, the sole beneficiaries under the will of their mother, the building society and the Law Society.  Mr Walsh argued that neither he (nor still less his sisters) deserved the opprobrium cast upon them in the reasons of Powell JA.

1. A similar complaint was voiced in relation to a finding recorded in the reasons of Beazley JA.  In the course of her Honour's reasons, she said[42]:

   "[T]he wrongful conduct was engaged in over a period of several years.  It touched nearly all, if not all, aspects of the arrangements relating to the estate.  … [H]e failed to comprehend or ignored the fiduciary duty to which he was subject as grantee of the Power of Attorney.  This failure was compounded by his evidence before the Tribunal as to the use of the Power of Attorney, which was false and either made with knowledge of the falsity, or recklessly, not caring whether it be true or not.  His lack of honesty on that occasion was not an isolated instance of dishonesty.  The respondent drafted three different Affidavits of Assets and Liabilities in support of the application for probate.  … [H]e had failed or neglected to give [Mrs Brain] notice of his intention to apply for probate as he was required to do.  Not only was the second affidavit false, its contents demonstrated a sophisticated knowledge of the legal and equitable principles of property law as well as of the fiscal consequences which flowed from characterising the interests in the properties as he did.  The only possible conclusion is that he sought to benefit himself by his dishonesty. 

   In my opinion, the solicitor's conduct was of such a serious nature as to require that his name be removed from the Roll of Solicitors."

   [42]Court of Appeal Judgment at 10-11, per Beazley JA.

2. It is possible that Beazley JA, like Powell JA, was led into these remarks by the comments of the Tribunal in disposing of complaint (5) adversely to Mr Walsh.  But that complaint, from first to last, was confined to one of unsatisfactory professional conduct.  Neither in its terms, nor in the particulars which supported it, was an allegation of dishonesty and self-interested conduct alleged against Mr Walsh.  This should have been clear to the Court of Appeal from the terms of Mr Walsh's cross-appeal.  It challenged the findings of the Tribunal on complaint (5).  Hence, it challenged the terms in which those findings were recorded.  Be that as it may, the nature of the complaint, which refrained from charging professional misconduct, made findings of deliberate dishonesty, pursued for Mr Walsh's own benefit, outside the complaint before the Court.  Because Clarke AJA agreed in Beazley JA's reasons on this point, it cannot be concluded that this was a mere slip which did not affect the ultimate disposition of the appeal by the Court of Appeal.  So much was ultimately conceded by the Law Society.

   The issues

3. This analysis of the reasons of the Court of Appeal presents four issues for decision:

   1.Did the Court of Appeal err in the view which it took of the character of the "appeal" before it and hence of its powers and duties in disposing of that appeal?

   2.Did the Court of Appeal err in the approach which it adopted to what it saw as the "ultimate question" of the solicitor's fitness to remain on the roll of legal practitioners?

   3.In the circumstances, did the Court of Appeal err in recording findings adverse to the solicitor, upon which it acted, outside those complaints made against him by the Law Society as they remained in the proceedings before the Court of Appeal?

   4.In light of the conclusions upon the foregoing, should this Court exercise the jurisdiction of the Court of Appeal or should the matter be returned to that Court to hear and determine the appeal and cross-appeal as the law obliges?

   Misapprehension of the nature of the appeal

4. An appeal is a creation of statute[43].  There are various forms of appeal[44].  Accordingly, it is always important, where a process called "appeal" is invoked, to identify the character of the appeal and the duties and powers of the court or tribunal conducting it.

   [43]Fleming v The Queen (1998) 73 ALJR 1 at 6; 158 ALR 379 at 385; State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306 at 322 par [72]; 160 ALR 588 at 609.

   [44]In Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281 at 297-298, Glass JA catalogued six forms of process loosely called "appeal"; cf Clarke & Walker Pty Ltd v Secretary Department of Industrial Relations (1985) 3 NSWLR 685 at 691-692. See also Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616.

5. The appeal to the Court of Appeal in the present case was that provided by the Act. It was conducted solely on the basis of the record of the Tribunal. This was done by consent of both parties. No witnesses were called. In particular, Mr Walsh gave no evidence such as has sometimes occurred in appeals under the Act heard by the Court of Appeal[45].  No reference was made to the nature of the appeal by counsel for the Law Society when opening its case.  However, counsel then appearing for Mr Walsh, in opening his case, observed that the proceeding was "of course" a "hearing de novo".  He remarked that the parties had agreed "to run the matter on paper as a conventional appeal".  On this footing, he suggested that the Court of Appeal would not "differ from findings of fact where demeanour and the like were relevant to the Tribunal" nor would the Law Society "advance a case that was never put to the Tribunal …".  But counsel conceded that, because the case was a "hearing de novo", the Court of Appeal's function was not, as such, to review the exercise of the powers of the Tribunal but to make up its own mind on the facts ultimately found by it.  The Law Society did not demur from these assertions.

   [45]For example Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 at 412.

6. Clearly, Powell JA (with whom the other members of the Court agreed on this point) regarded the character of the appeal as fixed by the provisions of s 171F of the Act. In this he was correct. However, in the extracted passage of his reasons, Powell JA accepted that the precise scope of the appeal was that stated in s 171F(4) of the Act. In this, unfortunately, he was in error. By the Courts Legislation Further Amendment Act 1995 (NSW) that sub-section was repealed with effect from 8 March 1996. By coincidence, that was the date upon which the information containing the complaints against Mr Walsh was signed on behalf of the Law Society. However, the information was not lodged with the Tribunal until 11 March 1996. By this date s 171F(4) had been deleted from the section. Accordingly, the statutory provision requiring the appeal to the Court of Appeal to be "by way of a new hearing" and allowing "fresh evidence, or evidence in addition to or in substitution for the evidence received at the original hearing" to be given had been removed. All that was left was an "appeal" so described.

7. The provisions governing the appeal were accordingly those of the Supreme Court Act 1970 (NSW), s 75A. Contrary to the proposition put to the Court of Appeal that the appeal was in nature a de novo hearing which for convenience was to be dealt with on the papers, its nature was limited to an appeal of the character specified in s 75A. It is unfortunate that the applicable legislation was not drawn to the notice of the Court of Appeal by the Law Society. As the party having carriage of many proceedings of a disciplinary character, including in the Court of Appeal, it would have been reasonable for that Court to expect the Law Society to know, and to indicate, the character of the process which it had invoked. In fact, the repeal of s 171F(4) of the Act, with application to the present proceedings, was not drawn to the notice of this Court by the parties. It only emerged as a result of questioning by this Court.

8. Some aspects of the appellate procedure will remain the same where the appeal is conducted solely on written materials, whether those materials be technically evidence in a de novo hearing or the record under consideration in an appeal under s 75A of the Supreme Court Act.  In either case, the appellate court will be bound generally to defer to any conclusions on the questions of credibility formed by the court or tribunal from whom the appeal is brought where the latter has seen and heard the witnesses[46].  In particular circumstances, it will be open to an appellate court to reach conclusions contrary to those of the court or tribunal below, notwithstanding a credibility finding[47].  Sometimes it will be authorised to reject those findings where they are "glaringly improbable"[48] or "contrary to compelling inferences" of the case[49].  But the caution required of all appellate courts in such matters has long been recognised and frequently upheld in decisions of this Court[50]. 

   [46]Uranerz (Aust) Pty Ltd v Hale (1980) 54 ALJR 378 at 381; 30 ALR 193 at 197­198; cf McCormack v Federal Commissioner of Taxation (1979) 143 CLR 284 at 323-324.

   [47]See eg State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306 at 321 pars [63-64], 331-332 par [93], 340 par [146]; 160 ALR 588 at 607, 620-622, 632-633.

   [48]Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842 at 844; 62 ALR 53 at 57.

   [49]Chambers v Jobling (1986) 7 NSWLR 1 at 10; cf State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306 at 331-332 par [93]; 160 ALR 588 at 620-622.

   [50]See eg Jones v Hyde (1989) 63 ALJR 349; 85 ALR 23; Abalos v Australian Postal Commission (1990) 171 CLR 167; Devries v Australian National Railways Commission (1993) 177 CLR 472. For a recent example see Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd (1999) 161 ALR 599.

9. In so far as the Tribunal's conclusions in this case rested on express findings arising from its assessment of the credibility of Mr Walsh (eg on complaint (3)) or which must indirectly have been affected by the Tribunal's acceptance of his testimony in evaluating his conduct (eg on complaints (4) and (5)) or in estimating the seriousness of that conduct (eg in determining the order proper to the findings made on complaint (1)) due regard would have to be paid a court conducting an appeal to the advantages which the Tribunal enjoyed and which it did not. 

10. More relevantly for present purposes, the repeal of the provisions which had previously fixed the character of the appeal as a "new hearing", and which required that it henceforth be approached as an appeal under s 75A of the Supreme Court Act, altered the function which the Court of Appeal had to perform.  Its function was to decide whether the Law Society, as appellant, had shown error on the part of the Tribunal on any of the grounds by which it challenged the Tribunal's decision.

11. The importance of this misapprehension can be seen at the threshold of Powell JA's reasoning. Basing himself on an approach considered proper to an appeal "by way of a new hearing" and encouraged by the assertions or silence of the parties, he proceeded to put aside the concern which he had acknowledged had troubled him "at first". Instead, he conceived his function as one of considering for himself the "whole of the material" which was before the Court of Appeal in the light of his own conclusions based on that material. This was an incorrect approach as his Honour would doubtless have agreed had the repeal of s 171F(4) been drawn to his notice. The error explains the course which Powell JA's reasoning then took which otherwise would have been quite different. This alone requires that the appeal to this Court be allowed.

12. Although, in the grounds of appeal before this Court reference is made to the error in which those advising Mr Walsh persisted at the outset before this Court (repeating that the appeal was a "hearing de novo"[51]) when the mistake was appreciated, counsel for Mr Walsh sought to delete that assertion. This apart, the grounds as framed are apt to a challenge to this threshold error. The reference to the "hearing de novo" should be deleted from the grounds of appeal. Mr Walsh is entitled to succeed on the grounds so amended. In a sense, he did not have his appeal to the Court of Appeal conducted in accordance with law. This was certainly to his disadvantage. The decisions of the Tribunal (or at least its orders) were, upon one view, benevolent to him. An appeal under s 75A of the Supreme Court Act would confine the scope of appellate interference.  It would increase the chances that Mr Walsh might be able to defend the orders of the Tribunal which took a particular view of those complaints which it found to have been established against him.  In such an appeal, the Law Society would be obliged to show that the findings and orders of the Tribunal were erroneous and that the Tribunal's decisions and orders required correction.

    [51]Notice of Appeal, par 2(b).

    The appeal is confined to the complaints

13. By s 171M of the Act, it is provided (relevantly):

    "(1)   The inherent power or jurisdiction of the Supreme Court with respect to the discipline of legal practitioners … is not affected by anything in this Part or Part 2."

    Part 2 is that Part of the Act which deals with the admission of legal practitioners to practise. It contains s 12 of the Act which obliges the Admission Board to consider, on application for admission as a legal practitioner, whether it is satisfied that "the candidate is of good fame and character and is otherwise suitable for admission". Thus s 171M preserves the inherent jurisdiction of the Supreme Court over both the admission and discipline of legal practitioners, including Mr Walsh[52].

    [52]cf Legal Practitioners Act 1898 (NSW), s 79: Datt v Law Society of New South Wales (1981) 148 CLR 319 at 328-329.

14. This notwithstanding, the scheme of the Part of the Act in which s 171M appears (Pt 10), dealing with complaints and discipline, introduces significant changes in the law governing the investigation of such complaints against legal practitioners and the conduct of disciplinary proceedings arising out of the investigation of such complaints. The general objects of Pt 10 include to redress "consumer complaints of users of legal services"[53] and to ensure compliance by individual legal practitioners with the necessary standards of "honesty, competence and diligence"[54].  As part of the statutory scheme, a differentiation is introduced between "professional misconduct" and "unsatisfactory professional conduct"[55].  Clearly, this distinction was designed to meet dissatisfaction with the response of those charged with deciding the complaints of users of legal services and the suggestion that they sometimes tended to neglect conduct falling short of proper standards of competence and diligence.  A special statutory officer, the Legal Services Commissioner (the Commissioner), was created by the amending Act which introduced the new scheme[56].  The Commissioner has a wide range of functions including the receipt of complaints about professional misconduct or unsatisfactory professional conduct of legal practitioners[57].  The Commissioner is empowered to monitor investigations by the relevant Council (in this case the Law Society Council) into a complaint[58].  He or she is empowered to give directions[59] and to arrange for a complaint to be independently investigated in certain circumstances[60].  He or she is afforded large statutory powers in doing so[61]. The Act also establishes the Tribunal[62] which is empowered to conduct hearings with respect to a complaint against a legal practitioner brought before it[63].  

    [53]The Act, s 123(a).

    [54]The Act, s 123(b).

    [55]The Act, s 127.

    [56]Legal Profession Reform Act 1993 (NSW), s 3 (Sched 2).

    [57]The Act, s 131(1).  See also s 134.

    [58]The Act, s 149(1).

    [59]The Act, s 150.

    [60]The Act, s 151(1).

    [61]The Act, s 152.

    [62]The Act, s 162.

    [63]The Act, s 167.

15. In this scheme of discipline, a number of protections are included for the legal practitioner brought before the Tribunal. Proceedings may only be instituted "with respect to a complaint" by "an information laid by the appropriate Council or the Commissioner" in accordance with Pt 10 of the Act[64].  The function of the Tribunal is confined to that of conducting a hearing "into each allegation particularised in the information"[65].  The Tribunal has certain powers of amendment to vary the information laid against the legal practitioner, for example, to permit the inclusion of additional allegations where that is justified[66].  For the purpose of a hearing into a question of professional misconduct, the Tribunal "is to observe the rules of law governing the admission of evidence"[67].  In other hearings, the Tribunal is not so bound but may inform itself of any matter in such manner as it thinks fit[68].

    [64]The Act, s 167(1).

    [65]The Act, s 167(2).

    [66]The Act, s 167A. This section was introduced into the Act by the Legal Profession Amendment Act 1996 (NSW), having effect from 1 April 1997.

    [67]The Act, s 168(1).

    [68]The Act, s 168(2).

16. Given the scheme of the legislation, and the introduction of new statutory bodies for the task of discipline of members of the legal profession formerly conducted by professional bodies and by the Supreme Court, the requirements of particularity contained in the Act (and the safeguards thereby introduced for the practitioner concerned) would not be narrowly construed.

17. The function of the Tribunal, after having completed a hearing "relating to a complaint against a legal practitioner"[69], is to determine whether it is satisfied that the legal practitioner is guilty of professional misconduct or unsatisfactory professional conduct. Only if it is so satisfied may it make any of the orders specified in the Act, including an order for the removal of the name of the legal practitioner from the roll[70] and an order that the legal practitioner pay a fine[71]. The scheme of specificity continues into the provision for an appeal against the order of the Tribunal. By s 171F it is provided (and we add emphasis to the words):

    "(1)   Any party to a hearing conducted by the Tribunal may appeal to the Supreme Court against the Tribunal's determination of a complaint."

    It is only an appeal against such determinations which the Supreme Court, by the Act, is empowered to hear and determine[72].

    [69]The Act, s 171C(1).

    [70]The Act, s 171C(1)(a).

    [71]The Act, s 171C(1)(d). The fine is not to exceed $50,000 if the legal practitioner is guilty of professional misconduct or $5,000 if guilty of unsatisfactory professional conduct.

    [72]The Act, s 171F(3). Note that this provision has now been repealed and replaced by the Administrative Decisions Legislation Amendment Act 1997 (NSW). See Datt v Law Society of New South Wales (1981) 148 CLR 319 at 331 where the distinction, under the previous legislation, between the exercise by the Court of Appeal of the inherent jurisdiction of the Supreme Court and of the appellate jurisdiction under the legislation is called to notice.

18. A question arises as to whether the preservation of the inherent jurisdiction of the Supreme Court in s 171M of the Act, previously noted, empowers that Court, in an appeal from the Tribunal heard by the Court of Appeal, to go beyond the "determination of a complaint" which is otherwise expressed to ground the Supreme Court's jurisdiction[73]. In favour of that view might be the specification that the appeal lies to the Supreme Court whose inherent jurisdiction is preserved and whose ancient functions include the maintenance of standards and enforcement of discipline in relation to legal practitioners whom such courts admit to legal practice. But, by the scheme of the Act, it is clear that this is not what the legislation provides. The provision preserving the inherent power or jurisdiction of a Supreme Court appears in Div 10 (Miscellaneous) of Pt 10 of the Act. In the context, the section's purpose is to permit the Supreme Court to deal directly with cases other than appeals (provided for in Div 8 of Pt 10) where it is appropriate or necessary to invoke the inherent power and jurisdiction of the Court.

    [73]The Act, s 171F(1).

1. An instance which springs to mind in which the inherent power might be invoked is the case of a legal practitioner who is convicted of a relevant criminal offence warranting immediate removal of his or her name from the roll. In New South Wales, proceedings of that kind are commonly brought by the Prothonotary of the Supreme Court. They are ordinarily uncontested. But for appeals from the Tribunal, invoking the jurisdiction of the Supreme Court as provided by s 171F, the measure of particularity which runs through Div 8 applies. Neither the jurisdiction of the Tribunal nor the power and jurisdiction of the Supreme Court are at large, as formerly the latter were under the common law and within the inherent jurisdiction of the Supreme Court untouched by legislation[74]. 

   [74]Even before the Act, a high measure of particularity was required by the principles of procedural fairness in respect of complaints against legal practitioners. See eg Smith v NSW Bar Association (1992) 176 CLR 256; Johns v Law Society of New South Wales [1982] 2 NSWLR 1 at 6; O'Reilly v Law Society of New South Wales (1988) 24 NSWLR 204.

2. The provisions of the Act must be complied with. The focus of its attention is the "complaint against a legal practitioner" expressed in the "information laid by the appropriate Council or the Commissioner" in accordance with the Act[75].  That complaint, and the information containing it, may be varied and amended[76].  Notwithstanding dismissal of the complaints contained in one information it remains open to the relevant Council or the Commissioner to bring later complaints[77].  But the function of the Tribunal is to determine the complaint.  And the function of the Supreme Court, in this aspect of its power and jurisdiction is, and is only, to hear and determine the appeal "against the Tribunal's determination of a complaint"[78]. To the extent that the Tribunal proceeded beyond that function or the Supreme Court on appeal did likewise, they would be exceeding the jurisdiction conferred by the Act.

   [75]The Act, s 167.

   [76]The Tribunal had power at the time of the proceedings before it to allow amendment of the information. See Legal Services Tribunal Rules (NSW). As from 1 April 1997, the Act conferred such a power by s 167A. That section applied to information filed before 1 April 1997. See Legal Profession Amendment Act 1996 (NSW), Sched 5, cl 50. By s 75A(6) of the Supreme Court Act 1970 (NSW), the Court of Appeal enjoyed powers to make amendments to the information if it was appropriate to do so.

   [77]Weaver v Law Society of New South Wales (1979) 142 CLR 201.

   [78]The Act, s 171F.

3. This conclusion reinforces our view about the error in the approach of the Court of Appeal.  Instead of addressing its attention to determining the appeal and cross-appeal against the Tribunal's determination of the several complaints about Mr Walsh, it addressed itself to what was described as the "ultimate question"[79] of Mr Walsh's good fame and character and his suggested unfitness to remain on the roll of legal practitioners.  In this, it consciously went outside the "complaints as formulated and particularised"[80]. In doing so, it strayed beyond its power and jurisdiction. By reason of the preservation of the inherent jurisdiction of the Supreme Court, it may have been open to the Law Society or the Prothonotary in this case to invoke the Supreme Court's inherent jurisdiction and to seek immediate relief in relation to Mr Walsh within that jurisdiction. We leave aside questions of procedural fairness and other objections that might be raised if such an exceptional course had been taken. But if it were, different procedures would have been followed and a different hearing would have ensued. That course was not taken. Instead, the ordinary course, envisaged by Div 8 of Pt 10 of the Act, was followed. In going outside the scheme of the Act and proceeding to ignore the "complaints as formulated and particularised", the Court of Appeal erred. It was an error substantially disadvantageous to Mr Walsh. He is entitled to complain about it and, on this ground too, to succeed on his objection to the course which the appeal took.

   [79]Court of Appeal Judgment at 63, per Powell JA.

   [80]Court of Appeal Judgment at 63, per Powell JA.

   The appeal involved procedural unfairness

4. Connected with the foregoing conclusion are the complaints which Mr Walsh made, and which are also justified, concerning a number of the findings recorded in the reasons both of Powell JA and of Beazley JA.  These have already been indicated.  We will not repeat all of them.  Suffice it to say that there was no warrant, in the proper conduct of the appeal as one confined to a review of the Tribunal's "determination of a complaint", to make critical findings on issues which, by an analysis of the outstanding issues, were either never properly before the Court of Appeal or no longer before it having regard to the earlier determination made by the Tribunal and the grounds raised by the Law Society's appeal.  In particular, there was no justification for adverse findings, or comments (if that they be), concerning Mr Walsh's sisters.  Powell JA misdirected himself, in our respectful opinion, in stating that the sisters "were prepared so to act as to obtain an improper advantage for themselves"[81] and in criticising the sisters on the basis that they were not revealed "in any favourable light"[82] for their action in dividing the personal assets of their mother with Mr Walsh.  They were not parties and were not before the Court.  The Court was not called upon by any of the issues before it on any of the complaints to hear and determine the propriety of their conduct or, for that matter, Mr Walsh's conduct in making the arrangement to clear out and renovate the mother's residence when she departed to a nursing home with no prospect of return. 

   [81]Court of Appeal Judgment at 66, per Powell JA.

   [82]Court of Appeal Judgment at 8, per Powell JA.

5. More to the point, several of the conclusions recorded in terms highly unfavourable to Mr Walsh were unfair to him.  They also went outside the issues defined by the complaints of the Law Society, the determination by the Tribunal and the grounds of appeal.  The specific comment on complaint (2) was uncalled for as that complaint had been decided favourably to Mr Walsh and was not the subject of an appeal.  The comment that Mr Walsh was "devious", made in connection with complaint (4) was unwarranted, given that the only complaint there made was of unsatisfactory professional conduct.  The finding that Mr Walsh (and his sisters) were prepared to act for an improper advantage, including an improper revenue advantage, was outside the matters of complaint (5).  The sole complaint made in respect of the affidavit of assets and liabilities under that complaint was one of unsatisfactory professional conduct, not professional misconduct.  Scattered throughout the reasons of Powell JA are many findings or conclusions which exceed the issues that were before the Court of Appeal.  The findings of Beazley JA of dishonesty on the part of Mr Walsh[83] also went beyond the complaint to which they were addressed, namely complaint (5).

   [83]Court of Appeal Judgment at 11, per Beazley JA.

6. Mr Walsh complained that the adverse findings made against him were not only made without notice by the complaint, particulars and grounds of appeal but that no warning, or adequate warning, was given to him during the hearing in the Court of Appeal.  This Court was supplied with the transcript of argument in the Court of Appeal.  It is fair to say that, from the outset, the judges, and particularly Powell JA, made plain the tendency of their minds concerning the matters, or most of them, upon which they later ventured criticism of Mr Walsh and his sisters.  It is unfruitful to go through that transcript and to deal with such complaints of lack of notice.  It is sufficient to say that adverse findings could only be made within the terms of those complaints that were properly before the Court of Appeal.  And in the case of a number of them, they went beyond the complaints and thus of the issues proper to the Court of Appeal's determination.

7. In these circumstances, Mr Walsh is entitled to succeed on his submission that the adverse findings made against him, upon which the Court of Appeal based its conclusions, were flawed by procedural unfairness.  If he were to face allegations of deliberate dishonesty, revenue fraud, impropriety in the disposal of the property of his mother, ignorance of rudimentary principles of law, or sophisticated mastery of legal and equitable principles and revenue law marshalled to his own private advantage, it was open to the Law Society and the Court of Appeal to proceed on that footing.  But the requirements of the applicable legislation, as well as the obligations of procedural fairness, necessitated that such a course be taken in other proceedings, either within the inherent jurisdiction of the Supreme Court or in fresh proceedings on new complaints before the Tribunal.  It could not be done within the confines of the appeal with which the Court of Appeal was concerned.

   The proper order:  return to Court of Appeal

8. Both Mr Walsh and the Law Society made submissions encouraging this Court to hear and determine the appeal as ought to have occurred in the Court of Appeal.  The power of this Court to do so is clear[84]. Certain arguments supported the parties' request. They included the desirability of bringing this protracted litigation to a close and a consideration of the object of discipline proceedings under the Act which is, ultimately, to protect the public in relation to legal practitioners against whom complaints of professional misconduct or unsatisfactory professional conduct are established. The Court was informed that execution of the orders successively of the Tribunal and of the Court of Appeal were stayed pending the resolution of the appeals. This, it seems, was done without any objection on the part of the Law Society. Accordingly, although the Tribunal had found that Mr Walsh was not a person of good fame and character and although the Court of Appeal found that his name should be removed from the roll of legal practitioners, he has continued to practise, dealing with the public as a legal practitioner. Clearly, his status should be determined as quickly as possible. Otherwise the primary purpose of the jurisdiction which has been invoked, is frustrated. On the premises advanced by the Law Society, the public is not protected.

   [84]Judiciary Act 1903 (Cth), s 37.

9. On the other hand, it will be plain from what has been said that the appeal to the Court of Appeal miscarried at the threshold because the Court's jurisdiction was not clarified.  Furthermore, the particularity required by the process of appeal from a determination of the Tribunal to the Court of Appeal was not observed.  Serious instances of unwarranted or excessive findings adverse to Mr Walsh (and to others) were made which appear to have affected the reasoning and orders of that Court.  In truth, until the Court of Appeal determines the appeal in a proper way and reaches the conclusion on the particular complaints before it, it is difficult to see how a proper determination of the outcome of the appeal and cross-appeal could be made.  Specifically, on the face of things, until the Law Society's appeals in relation to complaints (3) and (4) are determined, and Mr Walsh's cross-appeal in relation to the determinations of complaints (1) and (5), the foundation for the consideration of the appeal from the Tribunal's orders is not established.  In this sense, although the forms of the process required were followed and undoubted orders were made by the Court of Appeal, neither the Law Society nor Mr Walsh really had a hearing of their appeal and cross-appeal as the law required. 

10. Before this Court, the Law Society was as adamant as Mr Walsh in complaint about this fact. It made it clear that it regarded the determination, adverse to it, of complaint (3) as completely unwarranted in the facts found, as not depending upon findings of credibility and as serious for the administration of the Act which depends (as it was put) on the candid and honest answers of legal practitioners to enquiries made of them arising in the course of the investigation of complaints. It is unnecessary now to decide whether the previous law[85], which initially arose in the context of the common law obligations of legal practitioners (and the duty ultimately owed by them to the Supreme Courts exercising their inherent jurisdiction) has survived the introduction of the scheme of particularised complaints now provided by Div 8 of Pt 10 of the Act. It is enough to say that the Law Society's appeal on complaint (3) was not determined. The proper resolution of that complaint could be an important element in the ultimate decision in the appeal against the Tribunal's orders and in the evaluation of the sufficiency of the fines as an appropriate and proper order to the complaints as ultimately determined.

    [85]cf Bridges v Law Society of New South Wales [1983] 2 NSWLR 361; Johns v Law Society of New South Wales [1982] 2 NSWLR 1 at 6; Re Veron; Ex parte Law Society of New South Wales (1966) 84 WN (Pt 1) (NSW) 136 at 141-142; New South Wales Bar Association v Thomas [No 2] (1989) 18 NSWLR 193 at 206. See also the Act, s 152(1) and (4). Clarke AJA, like Powell and Beazley JJA, was of the view that the Tribunal had erred in dismissing the third complaint. See Court of Appeal Judgment at 2, per Clarke AJA.

11. Therefore, although there would be undoubted advantages in bringing the proceedings to a close, it is beyond the proper and necessary functions of this Court to sift, for the most part for the first time, through the detailed facts and to make findings in relation to the remaining complaints as now formulated. There is no alternative but to require that this be done by the Court of Appeal. Although the Act has once again been amended so that appeals against decisions of the Tribunal now lie, in the first instance, to the Administrative Decisions Tribunal of New South Wales[86] and thence on questions of law only to the Supreme Court[87] the present proceedings, when remitted, must be dealt with under the former law upon the basis that the earlier attempt miscarried. 

    [86]Administrative Decisions Legislation Amendment Act 1997 (NSW), s 3 and Sched 1.

    [87]Administrative Decisions Legislation Amendment Act 1997 (NSW), s 3 and Sched 1.

12. We have given consideration to whether relief should be withheld in this appeal on the ground that the conclusion of the Tribunal that Mr Walsh was not of good fame and character was inevitable within the findings of the Tribunal which Mr Walsh did not contest and that it necessarily followed that his name must be removed from the roll of legal practitioners. However, to approach the matter in that way would be to repeat the error which occurred in the Court of Appeal. The language of s 171C(1)(d) of the Act accepts that, notwithstanding a finding that a legal practitioner is guilty of professional misconduct, a fine not exceeding $50,000 may be the appropriate order. That is what the Tribunal decided in Mr Walsh's case. He is entitled to have the Law Society's challenge to that decision, and his own cross-appeal, determined according to law. The fact that, without objection by the Law Society, he has been allowed to continue to practise during the entire course of the proceedings suggests that the removal of his name from the roll has not, until now, been regarded as an urgent necessity to protect the public from dealing with him as a legal practitioner. This, together with the fact that what took place occurred entirely within a family context and no financial detriment to anyone was found to have been intended or caused will be important matters to be taken into account in balancing any need for protection of the public against the mitigating factors of a personal kind which the Tribunal took into account. In the circumstances which have occurred, it is desirable that the law should take its course, but as the Act and proper legal principle require.

    Costs

13. This Court heard submissions on the costs order appropriate to this outcome.  The Law Society drew attention to the fact that the Court of Appeal, although ordering that the appeal from the Tribunal be allowed and that Mr Walsh's name be removed from the roll of legal practitioners, had acceded to Powell JA's proposal that no order should be made as to the costs of the appeal and the cross­appeal.  This was itself an unusual order.  Where the Law Society succeeds in a disciplinary appeal (and sometimes where it does not) the practitioner usually pays the Law Society's costs.  In this case, the Law Society succeeded in the Court of Appeal in the primary submission in its appeal which was that, if Mr Walsh was not of good fame and character he could not remain on the roll of solicitors.  It may be inferred that the order for costs was designed to mark the disapproval of the Court of Appeal of the Law Society's conduct in  its proceedings against Mr Walsh.  The Law Society submitted that a like order should be made by this Court.

14. We do not agree.  Mr Walsh has demonstrated three bases upon which the Court of Appeal erred in its approach to the proceedings before it.  Undoubtedly, those errors disadvantaged him.  They justified his bringing the appeal in which he has now succeeded.  The first of these grounds was a matter upon which the Court of Appeal, and this Court, were entitled to look for assistance to the Law Society.  There is therefore every reason why the ordinary rule as to costs should follow.  The special orders for the costs in the Court of Appeal and before the Tribunal should not be disturbed.  However, the Law Society should pay Mr Walsh's costs in this Court.

    Orders

15. The appeal should be allowed with costs.  The orders of the Court of Appeal except orders 6 and 7 should be set aside.  In place of the remaining orders of the Court of Appeal it should be ordered that the appeal and cross-appeal be returned to the Court of Appeal for hearing and determination conformably with the decision of this Court.

1. GUMMOW J. The appellant was admitted in November 1962 as a solicitor of the Supreme Court of New South Wales. On 7 March 1996, the Council of the Law Society ("the Council") resolved to initiate a complaint against the appellant under s 135(1) of the Legal Profession Act 1987 (NSW) ("the Legal Profession Act"). The Council also resolved, pursuant to s 155(2) of that statute, that, it being satisfied that there was a reasonable likelihood that the appellant would be found guilty by the Legal Services Tribunal ("the Tribunal") of unsatisfactory professional conduct or professional misconduct, the Council institute proceedings in the Tribunal with respect to that complaint.

2. Part 10 of the Legal Profession Act (ss 123-171T) is headed "COMPLAINTS AND DISCIPLINE". It was substituted for the Pt 10 in the statute as enacted in 1987 by s 3 and Item 2 of Sched 2 to the Legal Profession Reform Act 1993 (NSW) ("the 1993 Act"), with effect from 1 July 1994. Division 7 (ss 162-166) deals with the constitution of the Tribunal and Div 8 (ss 167-171I) with the hearings and determinations by the Tribunal. For the purposes of Pt 10, "professional misconduct" includes[88]:

   "conduct (whether consisting of an act or omission) occurring otherwise than in connection with the practice of law which, if established, would justify a finding that a legal practitioner is not of good fame and character or is not a fit and proper person to remain on the roll of legal practitioners".

   The expression "unsatisfactory professional conduct" for the purposes of Pt 10 includes[89]:

   "conduct (whether consisting of an act or omission) occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner".

   [88]s 127(1)(b).

   [89]s 127(2).

1. The hearing of the complaint was conducted on 4 and 5 July 1996.  The parties to the hearing were the Law Society of New South Wales ("the Law Society") and the appellant.  On 12 September 1996, the Tribunal issued its written determination, with detailed reasons, and ordered that the appellant pay fines totalling $10,000 within 60 days.  Proceedings were then instituted in the Supreme Court.  An appeal by the Law Society was filed on 8 October 1996 and a cross­appeal by the appellant was filed on 5 November 1996.

2. The jurisdiction of the Supreme Court which was invoked by those procedures was entirely statutory. It was conferred by s 171F of the Legal Profession Act in conjunction with ss 48 and 75A of the Supreme Court Act 1970 (NSW) ("the Supreme Court Act"). Although styled an "appeal", the proceeding involved the first exercise by a court of jurisdiction with respect to the dispute.

3. Section 171F of the Legal Profession Act comprised sub-ss (1)-(3) and stated:

   "(1)   Any party to a hearing conducted by the Tribunal may appeal to the Supreme Court against the Tribunal's determination of a complaint.

   (2)    The complainant may not make such an appeal except with respect to those aspects of the hearing that deal with the loss, if any, suffered by the complainant because of the conduct the subject of the hearing.

   (3)    The Supreme Court is to hear and determine an appeal under this section."

   Sub­section (4) had provided:

   "An appeal is to be by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence received at the original hearing, may be given."

   This sub-section was omitted with effect from 8 March 1996 by s 3 and Sched 1.6 of the Courts Legislation Further Amendment Act 1995 (NSW) ("the Amendment Act").

4. In this Court, it was accepted that the result of the Amendment Act was that s 171F(4) had no application to the proceeding in the Supreme Court.

5. The effect of sub-par (a)(viii) of sub-s (1) and par (f) of sub-s (2) of s 48 of the Supreme Court Act was to assign the proceeding to the Court of Appeal. To that appeal, s 75A of the Supreme Court Act applied and sub-ss (5)-(10) thereof stated:

   "(5)   Where the decision or other matter under appeal has been given after a hearing, the appeal shall be by way of rehearing.

   (6)    The Court shall have the powers and duties of the court, body or other person from whom the appeal is brought, including powers and duties concerning:

   (a)amendment,

   (b)the drawing of inferences and the making of findings of fact, and

   (c)the assessment of damages and other money sums.

   (7)    The Court may receive further evidence.

   (8)    Notwithstanding subsection (7), where the appeal is from a judgment after a trial or hearing on the merits, the Court shall not receive further evidence except on special grounds.

   (9)    Subsection (8) does not apply to evidence concerning matters occurring after the trial or hearing.

   (10)  The Court may make any finding or assessment, give any judgment, make any order or give any direction which ought to have been given or made or which the nature of the case requires."

6. The explanatory note to Sched 1.6 of the Amendment Act does not form part of that Act. Section 4 of the Amendment Act so states. However, the explanatory note, as matter set out in the document containing the text of the Amendment Act as printed by the Government Printer, may be considered in the interpretation of that statute to confirm the meaning of the omission of s 171F(4) of the Legal Profession Act. This follows from s 34 of the Interpretation Act 1987 (NSW), in particular, s 34(2)(a). The explanatory note states:

   "At present, an appeal lies to the Supreme Court against any determination of a complaint by the [Tribunal]. Presently, section 171F(4) of the [Legal Profession Act] provides that an appeal is by way of a new hearing and further evidence may be given. The proposed amendment removes that provision from the Act. Section 75A of the [Supreme Court Act] will then apply in relation to the appeal. Under that section, the Supreme Court may receive further evidence only on special grounds. Any appeal will be heard by way of rehearing."

   The significance of that change to the nature of any appeal from the Tribunal for the present litigation will shortly appear.

7. The Court of Appeal (Powell and Beazley JJA, Clarke AJA) delivered its reasons for judgment on 15 December 1997 and ordered, in place of the order of the Tribunal imposing fines totalling $10,000, that the name of the appellant be removed from the roll of legal practitioners.  The Court of Appeal also dismissed the appellant's cross-appeal.  From those orders, the appellant appeals to this Court by special leave.

8. The leading judgment in the Court of Appeal was delivered by Powell JA.  In the course of his reasons, his Honour said:

   "Although I was, at first, concerned that, if this Court were to depart from the manner in which the complaints contained in the Information had been formulated, and the manner in which the [Law Society] conducted its case before the Tribunal, the [appellant] might be heard justifiably to complain that he had thereby been subject to procedural unfairness, upon reflection, it seems to me that, given the basis upon which the matter proceeded before the Tribunal, and given the nature of an appeal to this Court from the Determination and Orders of the Tribunal, that would not be so.

   In this regard, it is to be noted that s 171F of the Legal Profession Act provides:

   '(4)An appeal is to be by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence received at the original hearing, may be given.'

   That the approach which I have just indicated is one appropriate for this Court to adopt is, in my view, established by the decision of this Court in Law Society of New South Wales v Bannister[90]."

   Powell JA went on to refer to a passage in the judgment of Sheller JA in Bannister in which reference was made to s 164(4) of the Legal Profession Act as it then stood. Section 164(4) was in the terms later taken by s 171F(4)[91].

   [90](1993) 4 LPDR 24.

   [91]Section 164 was included in Pt 10 (ss 123-172) as enacted in 1987. Part 10 was then headed "PROFESSIONAL MISCONDUCT". Part 10 was omitted and a fresh Pt 10 substituted by the 1993 Act.

9. In Law Society of New South Wales v Foreman[92], Mahoney JA had construed s 164 as providing for "a hearing de novo" upon which it was the duty of the court "to form its own assessment of the evidence and its own view of the principles to be applied".  On the other hand, as Gleeson CJ emphasised in Doherty v Liverpool District Hospital[93], the "rehearing" spoken of in s 75A of the Supreme Court Act is not a re-trial.

   [92](1994) 34 NSWLR 408 at 440; see also at 410 per Kirby P, 452 per Giles AJA.

   [93](1991) 22 NSWLR 284 at 293.

10. In this case, the Court of Appeal proceeded as if the nature of the appeal was dictated by s 171F(4), in the same form as its predecessor, s 164(4), rather than on the basis provided by the Amendment Act in conjunction with s 75A of the Supreme Court Act. Counsel appearing before that Court appeared to have invited the Court of Appeal to proceed as it did. The Court had been told that there was before it "a hearing de novo" and that the matter was to be conducted "as a conventional appeal".

11. On that footing, and because the appeal was treated as a new hearing, the Court of Appeal acted as if it were entitled to form its own view of the matter and prefer it to that of the Tribunal and as if it was not restricted to intervening where there was a demonstrated error or the order of the Tribunal was shown to be manifestly insupportable.  That this is so is apparent from the passage in the judgment of Sheller JA, with whom Gleeson CJ and Handley JA agreed, in Bannister, which Powell JA set out in his reasons for judgment.  In the passage quoted from Bannister, Sheller JA referred by way of comparison to a passage in the judgment of Owen J in Re Hodgekiss[94].

    [94][1962] SR (NSW) 340 at 343.

12. In Hodgekiss, the Full Court had before it an appeal under s 78 of the Legal Practitioners Act 1898 (NSW) from an order of the Statutory Committee[95]. Section 78 provided that such an appeal be "in the nature of a rehearing". The term "rehearing" does not necessarily have a fixed or settled meaning[96]. Of its use in s 78, Owen J had said that the findings of the Statutory Committee "should be regarded by the Court in the same way as are those made, for example, by a judge sitting without a jury"[97].

    [95][1962] SR (NSW) 340 at 343.

    [96]Fleming v The Queen (1998) 73 ALJR 1 at 6-7; 158 ALR 379 at 385-386.

    [97][1962] SR (NSW) 340 at 343.

13. The effect that reference to these authorities had in the approach taken by Powell JA and the reliance upon s 171F(4) is apparent in the passage where, having set out extracts from the judgment of Sheller JA in Bannister, his Honour said:

    "Such being the approach which I consider appropriate to be adopted to the questions arising for determination on this appeal and the cross-appeal, I turn, now, to consider whether the [appellant's] conduct as revealed by the materials which are before the Court for its consideration demonstrates that the [appellant] is not a person of good fame and character or is a person who is not fit to remain upon the roll of legal practitioners."

14. It follows that the Court of Appeal mistook the statutory basis and the nature of the jurisdiction which it was called upon to exercise. The consequence is that the appeal must be allowed and the matter returned for the Court of Appeal for consideration on the footing provided by s 75A of the Supreme Court Act.

15. There was some discussion in argument in this Court as to whether the appropriate course was to bring about a result whereby the appeal and cross­appeal to the Court of Appeal were dismissed, thereby leaving standing the orders of the Tribunal and bringing the matter to an end.  In order to indicate why this would not be the appropriate outcome of the appeal in this Court, it is necessary to say a little more of the nature of the proceedings in the Tribunal and the Court of Appeal.

16. The appellant's mother died on 2 July 1988.  In addition to the appellant, she was survived by two daughters, Beverley Brain and Dianne Farlow.  The effect of Mrs Walsh's last will was that she appointed the appellant and Beverley Brain executors and trustees and devised the whole of her estate to her three children in equal shares.  Earlier, on 11 July 1986, Mrs Walsh granted a general power of attorney to the appellant and Dianne Farlow.  At the time of her death, Mrs Walsh owned various properties, one of which, that at 62 Bruce Street, Brighton-Le-Sands, was then being extensively renovated.  Mrs Walsh had a number of accounts at the Hurstville Branch of the St George Building Society ("the Building Society").  The appellant dealt with these after her death to pay progress payments for the renovations and certain other estate expenses and debts.  He did not notify the Building Society of his mother's death until 22 July 1991.

17. On 4 November 1988, the appellant applied to the Supreme Court for a grant of probate to him as executor, with leave being reserved to Beverley Brain to come into and join in the application.  A grant was made to the appellant but litigation ensued and it was only on 12 December 1989 that the matter was resolved by a grant being made to the appellant and Beverley Brain.

18. On 27 November 1990, Beverley Brain made a complaint to the Law Society with respect to the conduct of her brother in relation to the estate.  It was only on 11 March 1996 that the Council laid the information to which I have referred.  The information specified five grounds on which the complaint was made.  The first three alleged professional misconduct or, in the alternative, unsatisfactory professional conduct and the remaining two unsatisfactory professional conduct.  The first complaint related to the use by the appellant of the power of attorney, the second the delay in notifying the Building Society of the death of Mrs Walsh, the third the erroneous advice by the appellant to the Law Society that he had not used the power of attorney after the death of his mother, the fourth the alleged failure of the appellant to serve a notice of intended proceedings upon his sister prior to his application for probate, and the fifth related to the drawing and verification of the affidavit of assets and liabilities sworn in support of his application for probate.

19. The materials before the Tribunal included oral evidence of the appellant, with cross-examination.  The Tribunal dismissed the second, third and fourth complaints.  It found the appellant guilty of statutory "professional misconduct" in relation to the first complaint and of "unsatisfactory professional conduct" in relation to the fifth complaint.  It ordered the appellant to pay a fine of $8,000 in respect of the finding of professional misconduct and of $2,000 in respect of the unsatisfactory professional conduct.

20. The powers of the Tribunal under s 171C of the Legal Profession Act, consequent upon a finding of professional misconduct or unsatisfactory professional conduct, had included cancellation of the practising certificate, a public reprimand, and a compensation order under s 171D. In the case of professional misconduct, the Tribunal had been empowered to impose a fine not exceeding $50,000 and to order removal from the roll. The maximum fine in respect of unsatisfactory professional conduct had been $5,000.

21. In its appeal to the Court of Appeal, the Law Society did not challenge the dismissal by the Tribunal of the second complaint, respecting the delay in notifying the Building Society.  However, the Law Society sought to set aside the dismissal of the third and fourth complaints and sought findings that the appellant was guilty of professional misconduct (on the third ground of complaint) and of unsatisfactory professional conduct (on the fourth ground), together with the imposition of penalties.

22. With respect to the first complaint which concerned the use of the power of attorney and which had attracted a fine of $8,000 on a finding of professional misconduct, the Law Society sought orders in the alternative. It did so by reference to par (b) of the definition of "professional misconduct" in s 127(1) of the Legal Profession Act, the text of which is set out earlier in these reasons.

23. The Law Society claimed a declaration that the conduct with respect to the use of the power of attorney did occur "in connection with the practice of law" within the meaning of par (b) and, on that footing, sought no variation in the penalty.  Alternatively, if the court did find that the conduct did not occur "in connection with the practice of law", the Law Society sought an order that the name of the appellant be removed from the roll of legal practitioners.

24. By his cross-appeal, the appellant sought dismissal of the complaints found against him by the Tribunal, namely the first and fifth complaints.

25. The Court of Appeal dismissed the cross-appeal.  On the appeal by the Law Society, the Court of Appeal set aside the order made by the Tribunal imposing fines, and in place thereof ordered the removal of the name of the appellant from the roll of legal practitioners.

26. Powell JA approached the determination of the issues before the Court of Appeal on the following footing:

    "The manner of the formulation of the complaints against the [appellant] and the manner of the conduct of the [Law Society's] case before the Tribunal have, as it seems to me, tended to obscure the facts, first, that the ultimate question for the Tribunal was, and the ultimate question for this Court is, to determine whether the conduct of the [appellant] renders him a person not of good fame and character or a person who is unfit to remain upon the roll of legal practitioners; and, second, that, in determining that question, it was open to the Tribunal, as it is open to this Court, to have regard to the whole of the evidence as to the [appellant's] conduct revealed by the evidence, and not merely to that part of the evidence which might be directly related to the complaints as formulated and as particularised.  Once those facts are accepted, then the matters which concerned me at the commencement, and during the course, of the hearing of this appeal and cross-appeal tend to disappear."

27. The reference in the last sentence appears to be to the discussion with counsel which, as indicated earlier in these reasons, had led to the Court being told that what was before it was a hearing de novo which was to be conducted as a conventional appeal.  That, as I have indicated, was a misstatement of the nature of the statutory jurisdiction to be exercised by the Court of Appeal.

28. Further, in this Court, the appellant correctly submits that the above statement involves a further misapprehension. This is that the Court of Appeal had been called upon, not to rule upon the specific grounds in the notices of appeal and of cross-appeal with respect to the findings by the Tribunal, but to exercise the inherent power or jurisdiction of the Supreme Court with respect to the discipline of legal practitioners. That inherent power or jurisdiction is not affected by anything in Pt 10 of the Legal Profession Act. Section 171M so states. Disciplinary proceedings under the Legal Profession Act and in the inherent jurisdiction are sui generis and the outcome of the first does not dictate an outcome in the second[98]. The process before the Court of Appeal invoked the jurisdiction conferred by s 171F for the hearing and determination of an appeal from the decision of the Tribunal, not the inherent power or jurisdiction of the Supreme Court.

    [98]Weaver v Law Society of New South Wales (1979) 142 CLR 201 at 207.

29. This Court should not embark upon the determination of the essentially hypothetical question whether, if the Supreme Court had accurately perceived the nature of its jurisdiction, it necessarily would have reached conclusions which dictated the making of orders for the dismissal of the appeal by the Law Society and the allowing of the cross-appeal by the appellant.

30. The proper course is to allow the appeal to this Court, to set aside the orders of the Court of Appeal entered on 2 November 1998 and to remit the matter to the Court of Appeal for rehearing of the appeal and cross-appeal. On the hearing of those proceedings, the Court of Appeal will have the powers and duties conferred by those provisions of s 75A of the Supreme Court Act to which reference is made earlier in these reasons.

31. The Tribunal was abolished with effect from 6 October 1998 by the Administrative Decisions Tribunal Act 1997 (NSW)[99] and a fresh s 171F has been inserted[100] in the Legal Profession Act. Nothing for present purposes turns upon these changes[101].

    [99]s 144 and Div 2 of Sched 5.

    [100]By s 3 and Sched 3 of the Administrative Decisions Legislation Amendment Act 1997 (NSW).

    [101]Interpretation Act 1987 (NSW), s 30.

32. No order for costs was made in the Court of Appeal.  I would not disturb that position.  However, in this Court, the appellant should have his costs of the appeal.  The appropriate orders as to costs of the further proceedings in the Court of Appeal will be for that Court.