Objection to Jurisdiction
26 On 10 April 2000 this Appeal Panel was convened to hear two applications:
a) Application by the Law Society filed 24 November 1999 seeking an order that the appeal filed 23 July 1999 be struck out. The supporting affidavit of Mr Collins made 24 November 1999 refers to the failure of Mr Hughes to comply with orders of the Tribunal that he provide further and better particulars of his appeal.
b) Application by Mr Hughes for leave to adduce fresh evidence on his appeal on the merits. This application is not contained in a single document but in various of the materials filed by him.
27 Before the hearing commenced, the Law Society objected to the jurisdiction of the Appeal Panel to hear the appeal, asserting a want of jurisdiction in the Tribunal below and consequently in this Panel, on the ground that the Information in the 1996 matter was wholly affected by procedural defects in the investigation of the complaints against Mr Hughes, of the category considered by the High Court in Barwick v Law Society of NSW . That objection had been notified to the Tribunal on 20 March 2000 by letter.
28 Mr Hughes agreed (transcript pages 8 to 10) that the investigation leading to the laying of the 1996 Information was flawed and he too requested the Panel to make a determination of want of jurisdiction. He said (transcript page 10 line 29):
"I would be seeking to have the Appeal Tribunal hand down a decision on the application of Barwick to the facts of my case and the orders I will be seeking are that these proceedings are a nullity, they have always been a nullity ..."
29 At transcript page 11 line 23:
"DEPUTY PRESIDENT: So do you agree that the matter of 1996 is Barwick affected?"
MR HUGHES: It is null and void".
30 Mr Hughes' submission is that all of the proceedings brought against him were procedurally flawed. He informed the Tribunal (transcript page 8 line 37) that he had not produced any witness in any of the matters because "It was my view that the proceedings were a nullity". He informed us that he had himself taken the jurisdictional point after the hearing concluded, which was prior to the High Court's decision in Barwick . At transcript page 9 line 1 Mr Hughes said:
"Of course, we now have the judgment in Barwick, and in relation to the post-hearing submissions I made to the Tribunal, it was almost as though I wrote the High Court judgment in Barwick myself for them, for the judges."
31 Mr Hughes submitted (transcript page 9, 10):
"My submission is that the Law Society has breached the Legal Profession Act in an even more serious manner than it did in the case of Barwick . In my case, instead of telescoping two resolutions in breach of some mandatory provisions, what the Law Society did was initiated proceedings. All the solicitors' protections were completely and totally overridden by the Law Society ... There was no investigation at all. There were some initial inquiries, but nothing that would constitute an investigation".
32 After we received the supplementary submissions of the parties, Mr Hughes by application filed 27 September 2000 sought an order that we adjourn our decision on the jurisdictional issue and proceed with the hearing of his appeal. However the judgment has been challenged on jurisdictional grounds by both the Law Society and Mr Hughes. Although Mr Hughes now seeks to have us ignore his challenge, once an objection to jurisdiction is made we cannot proceed unless we are satisfied that we have jurisdiction. Clearly we must determine the jurisdictional objection before proceeding with the appeal. Accordingly we do not accede to this request.
33 If the Tribunal below lacked jurisdiction, so does this Appeal Panel. A void decision is not an "appealable decision" within the meaning of section 112 of the Administrative Decisions Tribunal Act 1997.
34 The challenge by the Law Society was made on the basis that the 1996 Information was defective and upon the assumption that the orders of the Tribunal were based solely upon its findings in the 1996 matter. During argument, the Appeal Panel drew attention to the findings of the Tribunal in matter no 36 of 1994. It was and is our opinion that the Tribunal's order for strike off was based to some extent on its findings in the 1994 matter.
35 In relation to the 1994 matter, the Law Society's position was unclear. Ultimately (transcript page 7 line 22) the Law Society was unable to inform the Tribunal whether the 1994 matter was procedurally defective or not, but could not exclude this possibility. In the supplementary written submissions for the Law Society filed February 2001, it is not conceded that the 1994 matter is defective for procedural defects.
36 In the result, the Law Society asserts and Mr Hughes agrees that the 1996 Information is void by reason of procedural defects in the preceding investigation by the Law Society. Mr Hughes asserts but the Law Society does not concede that the 1994 complaint was similarly defective. No evidence was given of the procedural irregularities said to have occurred.
37 Both parties to the appeal in the 1996 matter agree that the Tribunal below had no jurisdiction to entertain that matter. If this is so, the appeal from that matter cannot proceed. However and especially in view of Mr Hughes' request that his appeal proceed nonetheless, we should not act solely upon the agreement of the parties where a judgment has been delivered in the matter.
38 The appropriate course is for the Law Society to provide evidence of the facts which render the Information void. If we are satisfied upon the evidence, we will not proceed to hear the appeal from matter No. 36 of 1996.
39 We consider that the same course should be followed for the 1994 matter, so that in the event of a further appeal, at least the facts will be known. If the Law Society forms the view that the investigation leading to the institution of the 1994 matter was procedurally flawed, we will receive evidence of those facts from the Law Society.
40 However regardless of whether the 1994 investigation was conducted in accordance with the relevant statutory provisions, it is our view that the judgment and orders of the Tribunal below are void by reason of the want of jurisdiction in the 1996 matter. The reasons are flawed by the failure to make separate orders in each of the matters before the Tribunal and for failing to identify the ground relied upon in making the order that the practitioner's name be removed from the Roll. Although we agree with the submission of the Law Society that in all likelihood the order which was made was based substantially, if not solely, on its findings in the 1996 matter, it is futile to speculate.
41 It is not open to us to remit the 1994 matter to the same Tribunal to make separate orders in the 1994 matter if that Complaint is valid. The Tribunal below is functus and/or disqualified from further considering the 1994 matter by its hearing of the 1996 matter.
42 Subject to being satisfied by evidence of the matters set out above we find that the judgment and orders are null and void by reason of want of jurisdiction. Accordingly we hold the Law Society's objection is established.
43 Subject to what has been said above, our finding will be that in relation to the costs of 10 April 2000, the Society has succeeded upon the jurisdictional question. However since we lack jurisdiction, we have no power to order costs of the application. In any event we would not be inclined to make an order for costs against Mr Hughes, whose attitude was frank and co-operative upon the hearing of the application and who substantially agreed with the Society's submissions.