Boland v Boxall [2016] TASSC 30

(a) apply to the Tribunal or Supreme Court to have the matter to which the determination relates determined by the Tribunal or Supreme Court; and

(b) make an application to the Tribunal or Supreme Court to stay the determination pending the finalisation of the application.

(2) For the purposes of this section, a decision of the Board to dismiss a complaint under section 433 (Summary dismissal of complaints), section 451 (Dismissal of complaint) or section 454(1) (Determination of Board) is a determination of the Board.

(3) The determination of a matter pursuant to an application made under subsection (1)(a) is to be by way of a re-hearing."

1. At a directions hearing on 2 December 2015, I directed that the nature of a s 458(3) re-hearing be determined as a preliminary point. Written submissions were made on behalf of the applicant and the Board. They were in agreement. I decided that their submissions were correct. At the next directions hearing, on 22 December 2015, I announced that I agreed with the submissions I had received, and that I would state my reasons for my conclusions as to the nature of a s 458(3) re-hearing in my final decision. I was expecting to hear and determine the s 458 application, but circumstances changed, and the hearing has now been listed before another judge. I have therefore decided to publish my reasons in relation to the preliminary point at this stage.
2. It is clear from the wording of s 458(1)(a) that a proceeding under s 458 involves a re-determination of the issue determined by the Board, as distinct from an appeal or a review. The language of s 458(1) could not be clearer. It refers to "the determination of the Board". It provides for an application "to have the matter to which the determination relates determined by the Tribunal or Supreme Court". The words "appeal" and "review" are not used.
3. One would ordinarily expect such a re-determination to be by way of a hearing de novo - that is to say, a fresh hearing at which witnesses give evidence and are cross-examined, and documents may be tendered. At first glance, the use of the word "re-hearing" in s 458(3) might be taken to refer to a hearing de novo or a fresh hearing. But, when one considers the legislative history, it becomes clear that a different interpretation is appropriate.
4. Section 458 was amended by the Legal Profession Amendment Act 2013. The amendments commenced on 1 January 2014. Before then, s 458(3) did not exist, and s 458(1)(a) made provision for an application to have a matter to which a determination of the Board related "heard" by this Court, not "determined".
5. The purpose of the amendments to s 458 was made clear by the then Attorney-General, Mr Wightman, in the relevant second reading speech (Hansard, House of Assembly, 14 November 2013). He said this:

"Section 458 provides that a party to a determination of the board can apply to the tribunal or Supreme Court to have the matter to which the determination relates heard by the tribunal or Supreme Court. The hearing is 'de novo', which means that all the evidence must be heard afresh and the witnesses must submit to cross-examination as though there had been no earlier decision by the board.

Understandably, complainants may be reluctant to go through a second hearing. In a recent case where a complaint against a practitioner had been upheld by the board, the practitioner applied to the court for a rehearing. The complainants determined not to proceed further because of the burden of an entire new hearing in which they may need to obtain legal representation and risk a costs order if unsuccessful. Because complainants have chosen not to proceed the court will have no option but to dismiss the complaint.

The Bill amends section 458 so that rather than a full hearing, there will be a rehearing of the matter. A rehearing is a reconsideration of the evidence and submissions presented in the original hearing. Fresh evidence that has arisen since the original hearing can also be provided, but it need not be. A rehearing will relieve the complainants of the burden of giving all the evidence again and the matter will be determined more quickly on already existing documentation. This will bring the practice here in line with the usual practice on appeal."

1. There is an element of ambiguity in the use of the word "re-hearing" in s 458(3). Section 8B of the Acts Interpretation Act 1931 permits recourse to the second reading speech for the purpose of resolving that ambiguity. Having regard to the second reading speech and the history of the legislation, it is clear that the word "re-hearing" is used to refer to the sort of re-hearing that the Full Court undertakes in an appeal from a decision of a single judge in a civil matter. The nature of such a re-hearing was well described by Gleeson CJ, Gummow and Kirby JJ in Fox v Percy [2003] HCA 22, 214 CLR 118 at [22], as follows:

"The 'rehearing' does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits."

1. On such an appeal by way of rehearing, the issues for determination are defined by the grounds of appeal. Since this proceeding is not an appeal, but one involving a re-determination, the issues are not so confined. Unless otherwise ordered, the parties may not rely upon any evidence other than the record of the proceedings before the Board and the documents or other exhibits that were before the Board.
2. I did not make a formal determination on 22 December 2015. I now determine that a s 458(3) re-hearing is a fresh hearing of a matter of complaint at which, unless otherwise ordered, the parties may rely only upon the record of the proceedings before the Legal Profession Board of Tasmania and the documents or other exhibits that were before the Board. I make no comment as to what approach the judge should take if a party seeks to give or adduce additional evidence at such a re-hearing.