Wyvill v Law Society Northern Territory
[2018] FCA 2110
•21 December 2018
FEDERAL COURT OF AUSTRALIA
Wyvill v Law Society Northern Territory [2018] FCA 2110
File number: NSD 2366 of 2018 Judge: BROMWICH J Date of judgment: 21 December 2018 Date of publication of reasons: 10 January 2019 Catchwords: ADMINISTRATIVE LAW – interlocutory application for urgent injunctive relief – where applicant seeks orders restraining respondent from commencing proceedings in Disciplinary Tribunal or taking action under s 499 of Legal Profession Act (NT) in relation to complaint – where question raised as to scope or content of written complaint – held: not satisfied that applicant has arguable case of not having been provided with complaint in writing, nor of having been denied opportunity to respond to complaint – held: prima facie case for grant of interlocutory relief not sufficiently made out – held: interlocutory application dismissed Legislation: Legal Profession Act (NT) ss 471, 472(1), 475(1)(a), 476(1), 488(1), 496, 499, 515(1), 516(1) Date of hearing: 21 December 2018 Registry: New South Wales Division: General National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 28 Counsel for the Applicant: Mr S Robertson Solicitor for the Applicant: Squire Patton Boggs Counsel for the First Respondent: Mr A Moses SC with Mr D Habashy Counsel for the Second Respondent: The Second Respondent filed a submitting notice including as to costs ORDERS
NSD 2366 of 2018 BETWEEN: ALISTAIR WYVILL SC
ApplicantAND: LAW SOCIETY NORTHERN TERRITORY
First RespondentTIMOTHY SCOTTER
Second Respondent
JUDGE:
BROMWICH J
DATE OF ORDER:
21 DECEMBER 2018
THE COURT ORDERS THAT:
1.The application for urgent injunctive relief be dismissed with costs.
2.The matter be stood over for a case management hearing before the docket judge, Justice Markovic, on a date to be fixed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
Revised from transcriptBROMWICH J:
The applicant is a barrister holding the rank of Senior Counsel and practising in the Northern Territory. On 1 April 2015, a judgment was delivered by Southwood J of the Supreme Court of the Northern Territory in a proceeding to which the applicant was not a party. Despite him not being a party, adverse comments were made about the applicant in relation to his conduct as counsel advising one of the parties to that proceeding. On 2 June 2016, the particular comments made about the applicant by that judge were disapproved of in reasons given in subsequent appeal proceedings in the Northern Territory Court of Appeal. However, by majority, that appeal was dismissed.
On 7 May 2015, the Associate to Southwood J sent a letter to Mr Michael Grant QC, who was then the Solicitor-General for the Northern Territory. The Solicitor-General for the Northern Territory holds an additional statutory position under the Legal Profession Act (NT) as the “Statutory Supervisor”: see s 471(1)(c). That letter referred to the conduct of the applicant.
On 26 May 2015, Mr Grant, in his capacity as Statutory Supervisor, sent a letter to the Chief Executive Officer of the Law Society Northern Territory. The heading of the letter referred to a complaint under Chapter 4 of the Legal Profession Act against the applicant and a solicitor who had instructed him in the course of an inquiry to which the prior proceeding before Southwood J related. The letter referred to the Statutory Supervisor making the complaint in that capacity.
The Statutory Supervisor’s letter dated 26 May 2015 had a number of attachments, including:
(1)Attachment A, which was referred to in the letter as describing and particularising the conduct of the applicant that was the subject of the complaint;
(2)Attachment B, which was a similar document that related to the applicant’s instructing solicitor; and
(3)Attachment C, which was also referred to in the Statutory Supervisor’s letter and was the letter dated 7 May 2015 from the Associate to Southwood J.
I only need mention broadly the nature of the conduct being referred to, being conduct that was said to have occurred during what was known as the Stella Maris inquiry before Commissioner John Lawler that had been canvassed in proceedings before Southwood J. The letter from the Associate to Southwood J dated 7 May 2015 also included certain of the Court documents that had emerged from the proceeding that was before his Honour.
On 8 October 2015, the second respondent, Mr Timothy Scotter, a barrister practising in Victoria, sent a letter to the applicant’s legal representative advising that he had been appointed as an investigator. The letter enclosed copies of Attachments A and C to the Statutory Supervisor’s 26 May 2015 letter, but did not include the Statutory Supervisor’s letter itself.
It seems likely that the investigator was aware that there had been an appeal from the judgment of Southwood J, but in any event the chronology indicates that nothing happened from that point until after the judgment of the Court of Appeal on 2 June 2016, and indeed for some time afterwards.
On 14 November 2016, the applicant invited the then new Statutory Supervisor to withdraw the complaint in light of the findings of the Court of Appeal. The reason for there being a new Statutory Supervisor was that Mr Grant had by then become the Chief Justice of the Northern Territory. By a letter dated 16 November 2016, the new Statutory Supervisor advised that she refused to withdraw the complaint.
On 30 January 2018, the investigator’s report issued, but was not provided to the applicant until 29 March 2018. That report, and an accompanying memorandum, recorded the views of persons described as “non-conflicted members of the Ethics Committee”, being members of the Ethics Committee of the Law Society who made recommendations to the Council of the Law Society in relation to the complaint brought against the applicant. On 21 May 2018, a supplementary report from the investigator issued. On 19 July 2018, the applicant made submissions in response to the grounds in Attachment A, and made references therein to the letter from the Associate to Southwood J dated 7 May 2015.
On 3 September 2018, the Law Society provided to the applicant a copy of the Statutory Supervisor’s letter dated 26 May 2015. On 10 September 2018, the applicant’s legal representative wrote to the Law Society indicating that further submissions may be provided in response and that they would not be in a position to obtain instructions until the week commencing 8 October 2018. Unbeknownst to the applicant, the Law Society met and discussed the complaint, however described, on three occasions in the second half of 2018. That seems to have culminated on 7 November 2018 with a decision by the Law Society to commence disciplinary proceedings against the applicant.
On 9 November 2018, the applicant, via his legal representative, requested that the Law Society provide what he described as a “full and undisturbed copy of the Complaint Letter and its Attachments” and confirm that it would not make a decision on the complaint until he had had a reasonable opportunity to respond to the “new material”. On 28 November 2018, the Law Society responded to that letter of 9 November 2018, making various comments but without giving the requested undertaking and without advising at that stage that it had purported to make a decision on the complaint. On 14 December 2018, the applicant commenced this proceeding by way of an originating application and statement of claim. That has since been replaced with an amended originating application and amended statement of claim.
In the amended originating application (as in the initial originating application), the applicant seeks interlocutory relief in respect of a particular aspect of the substantive claim that he brings. The substantive relief that he seeks is a writ of prohibition or injunction prohibiting or restraining the Law Society from starting proceedings in the Disciplinary Tribunal in relation to the complaint as defined, or taking action under s 499 of the Legal Profession Act (being a summary process in relation to complaints by final reprimand).
The Court was advised, and I accept, that no disciplinary proceeding has yet been commenced in the Disciplinary Tribunal. Accordingly, the component of the claim for interlocutory relief that refers to proceedings having been started is not presently operative.
The operative component of the claim for interlocutory relief is the order sought restraining the Law Society from starting proceedings in the Disciplinary Tribunal in relation to the complaint or taking action by way of summary conclusion under s 499 of the Legal Profession Act until further order of the Court. That relief is sought in aid of the balance of the applicant’s case, which presently turns on a disciplinary proceeding not being commenced without first:
(1)providing the applicant with what is described as a full copy of the complaint;
(2)advising the applicant as to the identity of the “non-conflicted” members of the Ethics Committee who made recommendations to the Council of the Law Society in relation to the complaint;
(3)giving the applicant an invitation or further invitation to make submissions in relation to the complaint; and
(4)providing the applicant with a period of no less than three months, or such other period of time ordered by this Court, in which to make such submissions, such period being calculated from the date upon which the prior steps referred to had been taken.
Despite the applicant’s reliance upon the necessity of finding out the identity of the non‑conflicted members of the Ethics Committee, in my view, that is not his best argument as to why he should receive the injunctive relief that has been sought from this Court. Rather, the applicant’s key and best, albeit not only, basis for seeking interlocutory relief is that he was labouring under the false impression that the complaint that he was facing was confined to the Attachment A document containing the grounds of the complaint against him, whereas he contends that, properly considered, the complaint in fact comprised three documents, being:
(1)the Statutory Supervisor’s letter of 26 May 2015 (which, in its terms, refers to making a complaint);
(2)Attachment A to that letter (which sets out the grounds); and
(3)Attachment C to that letter, being the letter from the Associate to Southwood J dated 7 May 2015.
The applicant says that the metes and bounds of the complaint that he was faced with had to be clear so that he knew precisely what he was responding to. He makes reference to the provisions of the Legal Profession Act that refer to:
(1)the making of complaints: see s 471 and, in particular, s 471(2), which refers to complaints needing to be in writing, and s 471(3), which refers to the requirement that a complaint describe the alleged conduct the subject of the complaint;
(2)that a complaint so described must be made to the Law Society, unless it is made by the Law Society: s 472(1);
(3)that the legal practitioner affected must be notified of the complaint, in that the Law Society must ensure that the legal practitioner about whom the complaint is made is given a copy of it: s 475(1)(a);
(4)that the legal practitioner affected may, within a period specified by the Law Society, make submissions to it about the complaint or its subject matter or both: s 476(1);
(5)that the Law Society, subject to certain exceptions that are not presently relevant, must investigate each complaint under Part 4.6 of the Legal Profession Act: s 488(1);
(6)that, after completing an investigation of a complaint against an Australian legal practitioner, the Law Society must do one of three things in respect of each part of a complaint – start proceedings in the Disciplinary Tribunal, dismiss the complaint, or take summary action under s 499: s 496(1);
(7)that, unless the summary provisions apply, the Law Society must start proceedings in the Tribunal in relation to a complaint against a legal practitioner if it is satisfied that there is a reasonable likelihood that the practitioner will be found by the Disciplinary Tribunal to have engaged in unsatisfactory professional conduct or professional misconduct: s 496(2);
(8)that, in relation to commencing proceedings in the Disciplinary Tribunal, such proceedings may be started in relation to a whole or part of a complaint against a legal practitioner by an application made by the Law Society under Chapter 4 of the Legal Profession Act: s 515(1); and
(9)that such an application may be made to the Disciplinary Tribunal at any time within six months after the Law Society decides that proceedings are to be started in the Disciplinary Tribunal in relation to the complaint concerned: s 516(1).
As referred to above at [10], the decision to commence proceedings in the Disciplinary Tribunal was made on 7 November 2018 and, accordingly, the six-month period stipulated in s 516(1) has started to run.
In response to the applicant’s contention as to the scope or content of the written complaint that is required both to be investigated and to form the subject of any disciplinary proceedings that are commenced in the Disciplinary Tribunal, the Law Society submits that the written complaint comprised Attachment A, being the document describing the grounds of the complaint, and Attachment C, being the letter from the Associate to Southwood J dated 7 May 2015, but did not extend to what the Law Society describes as the covering letter from the Statutory Supervisor dated 26 May 2015. The Law Society submits that lengthy and detailed submissions have already been provided by the applicant in relation to both the grounds in Attachment A and the letter from the Associate to Southwood J.
I consider below the competing submissions as to what it is that constitutes “the complaint”, as I accept that the metes and bounds of the complaint and its communication to an applicant who is the subject of such a complaint is an important part of the statutory scheme by which a response can be given, and by which any disciplinary proceedings can be decided to be commenced (and, indeed, be commenced).
The legislation referred to above at [16(1)] makes it clear that whilst a complaint must be in writing, it does not have to be in any particular form. Relevantly, the Statutory Supervisor’s letter dated 26 May 2015, at paragraph 5, referred to the conduct of the applicant and the solicitor having been referred to him by Southwood J by way of the letter from the Associate to Southwood J dated 7 May 2015, and at that point referred to a copy of that letter being Attachment C. The second sentence of that paragraph was then as follows:
I incorporate that referral into this complaint to the extent that the matters in that referral are not covered by the description and particulars at attachments A and B.
There was no suggestion by the Statutory Supervisor that Attachment B, which referred only to the solicitor, had anything to do directly with the applicant, although Attachments A and B were in broadly similar terms. Thus, by paragraph 5 of the Statutory Supervisor’s letter dated 26 May 2015, it is clear that the applicant needed to be on notice that what he was required to respond to was not just Attachment A, containing the grounds of the complaint, but also Attachment C, being the letter sent by the Associate to Southwood J. The question is whether or not that notice was achieved at some time prior to the applicant providing his submissions, such that he was, or is to be taken to have been, responding to the complaint referred to in paragraph 5.
The applicant contends that the complaint is required to be constituted by the Statutory Supervisor’s letter itself. However, in my view, the absence of a particular requirement of form for a complaint means that the relevant focus should be on the substance of the complaint, particularly as that is what is to be investigated and responded to, as well as what will form the basis for any possible proceeding commenced in the Disciplinary Tribunal. The question then emerges as to whether the description of the complaint as comprising both the grounds for complaint laid out in Attachment A, and the letter from the Associate to Southwood J contained in Attachment C, was communicated to the applicant via his former or current legal representative.
As referred to above at [6], the investigator provided a letter dated 8 October 2015 to the applicant’s legal representative, including copies of Attachments A and C. The body of that letter was in the following terms (emphasis in original):
I have been advised that you act for Mr Wyvill SC in respect to complaint matters and that I should communicate with you.
I have been appointed by the Law Society Northern Territory (the Society) as an investigator pursuant to s.491 of the Legal Profession Act 2006 (NT) to investigate a complaint against Mr Wyvill SC made by … the NT Legal Profession Statutory Supervisor, Michael Grant QC on 26 May 2015.
Pursuant to s.475 of the Act, I notify your client of the complaint by the Statutory Supervisor.
I am carrying out the investigation of the complaint in accordance with Part 4.6 of the Act.
Complaint documents
In accordance with the Act I enclose:
1.A copy of the complaint dated 26 May 2015.
2.A letter from the Associate to the Honourable Justice Southwood to the Statutory Supervisor dated 7 May 2015 (the Associate’s letter), submitted with the complaint.
I do not propose to provide you with copies of further documents which were provided by the Statutory Supervisor with the complaint, as they are documents from the proceeding Lawrie v Lawler No. 68 of 2014 in the Supreme Court of the Northern Territory which I assume you have copies of already. They are listed in the Associates’ letter. If I am wrong in that assumption please let me know.
In my view the complaint speaks for itself and I have not sought to clarify it with the Statutory Supervisor.
So far as I am aware, prior to the provision of this notice to you, the Society has not taken any action in respect to the complaint apart from my appointment.
Response to the complaint
Your client has the right to make submissions to me in writing regarding this complaint. The submissions may be about the complaint or its subject matter, or both (see s.476 of the Act).
Any such submissions must be made within 21 days of your receipt of this letter, unless an extension of time is sought within those initial 21 days and is granted by me.
Your client should also be aware that rule 32.2 of the Rules of Professional Conduct and Practice (PCR) applies:
“32.2A practitioner should respond within a reasonable time and in any event within 14 days (or such extended time as the Law Society may allow) to any requirement of the Society for comments or information in relation to the practitioner's conduct or professional behavior and in doing so the practitioner should furnish in writing a full and accurate account of his or her conduct in relation to the matter.”
Rule 32.2 of the PCR applies in respect to this investigation as, pursuant to s.491 of the Act, I am appointed as an agent of the Society. As noted above, I have decided to extend the time from 14 to 21 days. Please let me have your client’s full and accurate account of his conduct in respect to the complaint within 21 days. If further time is required please let me know.
Notice under s.621
For the purposes of carrying out the investigation of this complaint I require your client to comply with the enclosed notice under s.621 of the Act.
You will observe that in the notice I require a copy of your client’s brief for the relevant matter. It may be that your client’s brief contains copies of Cabinet documents from the NT Cabinet. If that is so, please let me know as I am agreeable to limiting the Notice in that regard, at least in the meantime.
If you have any queries please contact me.
As may be seen, the key part of that letter that is of present concern is at the bottom of the first page, headed in bold as “Complaint documents”, and the subsequent paragraph with two subparagraphs, stating:
In accordance with the Act, I enclose:
(1)a copy of the complaint, dated 26 May 2015;
(2)a letter of the Associate to Southwood J to the Statutory Supervisor, dated 7 May 2015 (the Associate’s letter), submitted with the complaint.
Put shortly, the contention on behalf of the applicant is that the words used in the investigator’s letter reinforce the complaint being the Attachment A document, and only the Attachment A document. The applicant contends that the Associate’s letter forming Attachment C is referred to as being “submitted with” that complaint, but not forming part of the complaint.
The Law Society submits that those particular words should be read quite differently, and that heed should be paid to the heading, which refers to “Complaint documents” in the plural. The Law Society submits that the proper way to read the sentence under that heading reproduced above at [25] is that, whilst the term “the complaint” is used in respect of Attachment A, the complaint documents are constituted by both Attachment A and Attachment C, and it is both documents that the applicant was being told formed the basis of what was being investigated, along with other documents that are also adverted to and about which no present complaint is made. The Law Society submits that what matters here is that the applicant was put on notice of the substance of what was being investigated, and that he not only had the opportunity to respond to the substance but, in fact, also did so.
I consider that the Law Society has the better argument. That is, first, because both the Attachment A and Attachment C documents are referred to in the investigator’s letter and, secondly, because the way in which the investigator expressed what was being provided more than adequately corresponded to the description in the second sentence of paragraph 5 of the Statutory Supervisor’s letter, as reproduced above at [20]. In my view, therefore, the substance of the complaint was the documents comprised in Attachment A and Attachment C in the context of the clear-enough communication that the two documents were to be read together, along with any other documents that were also referred to. I consider that the substance of the complaint was adequately communicated to the applicant.
I am therefore not satisfied that the applicant has an arguable case that he was not provided with the complaint in writing, as contemplated by the Legal Profession Act, nor that he was denied an opportunity to respond to the complaint so described. I am therefore not satisfied that he has a sufficiently strong prima facie case that the commencement of disciplinary proceedings would be invalid, so as to favour the grant of the interlocutory relief sought. In those circumstances, it is not necessary to go further and consider the question of balance of convenience. I therefore conclude that the application for the injunctive relief must be dismissed with costs.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromwich. Associate:
Dated: 10 January 2019
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