Caruana v Dental Council of NSW

NCAT Occupational|2021-11-05|Before: Deputy President J, Boland AM

Background

On 15 June 2021 the respondent in these proceedings, the Dental Council of NSW determined to suspend the registration of the appellant Dr Richard Charles Caruana as a dental practitioner pursuant to the provisions of section 150 of the Health Practitioner Regulation National Law (NSW). The appellant has instituted an appeal from that determination to this Tribunal.
The appeal proceedings were the subject of a directions hearing conducted by audio visual facility before The Hon Deputy President J Boland AM as List Manager of the Health Practitioner List, on 20 August 2021. At that hearing Ms S Teffaha appeared for the appellant, and Ms S Kennedy solicitor on behalf of the respondent. Deputy President Boland asked Ms Teffaha whether she was a legal practitioner. She responded that she was not and said "I'm a paid agent, so I'm not a legal practitioner." Ms Kennedy said that the Council had no objection to the appellant being represented by Ms Teffaha. A number of directions were then made for the purpose of preparing the proceedings for a hearing of the appeal to be held on 9 and 10 December 2021.
On 26 October, 2021 Ms Kennedy forwarded an email communication to the Registrar of the Occupational Division of this Tribunal referring to the directions hearing held on 20 August, 2021 and stating that since that hearing the Council had become aware of the decision of the Victorian Legal Services Board to cancel the practising certificate of Ms Teffaha as a legal practitioner in the State of Victoria with a consequence that she had become a "disqualified person" and thereby prevented from engaging in legal practice or employment in a law practice. In that email Ms Kennedy referred to a decision of the Administrative Division of the Victorian Civil and Administrative Tribunal in Teffaha v Victorian Legal Services Board (Legal Practice) [2021] VCAT 590. I shall refer to aspects of this decision later in these reasons for decision. A copy of that email communication was forwarded to Ms Teffaha.
After the directions hearing had been completed, I was appointed as the presiding member for the purpose of conducting the hearing of the appeal. Upon receipt of the information received from the respondent, I conducted a directions hearing by audio visual facility on 5 November, 2021 to determine whether Ms Teffaha should be permitted to continue to represent the appellant. Ms Teffaha appeared for the appellant, who was also in attendance and listened to the proceedings. Ms Kennedy appeared for the respondent. At the conclusion of the hearing, I informed Ms Teffaha that I would not permit her to continue to represent the appellant before this Tribunal in these appeal proceedings, and I informed the appellant that if he wished to be represented at the appeal proceedings, he should secure alternative representation.

The circumstances attending to the cancellation of the registration of Ms Teffaha

Ms Teffaha instituted an application to stay the decision to cancel her registration as a legal practitioner before the Victorian Civil and Administrative Tribunal pending the hearing of her appeal from that decision. The stay application was heard by Judge Hampel, Vice President who, by order of 9 June 2021 refused to grant a stay ("the stay decision").
In the stay decision Judge Hampel described the basis for the cancellation of Ms Teffaha's registration as being "a reasonable belief that (she) was unable to fulfil the inherent requirements of an Australian legal practitioner." In addition to the cancellation of registration, Ms Teffaha had been prohibited from applying for a practising certificate until 1 April 2022. The conduct of Ms Teffaha which gave rise to the cancellation of the registration arose out of complaints referred to the Victorian Legal Services Board by the Family Court of Australia and the Queensland Magistrates Court which included her conduct as a legal practitioner representing parties in matters before those courts, disparaging remarks made about the Family Court and its members, and public statements made by her at a public rally in relation to conduct prohibitions associated with the Covid 19 pandemic.
I set out below an extract from the decision of Judge Hampel which summarises succinctly the conduct complained of, and which gave rise to the cancellation of Ms Teffaha's registration. The reference to "the Commissioner" is a reference to the Victorian Legal Services Commissioner. 42 The Commissioner, as the Board's delegate considered the failure to provide the documents and information sought in the 19 March 2021 notice to be a serious matter, particularly in relation to that part of the request which concerned funds in the applicant's trust account. She took into account, as expressly permitted by section 95(2) of the Uniform Law, the applicant's failure to provide the documents and information sought in the 19 March 2021 notice, as a ground for making an adverse decision in relation to the proposed cancellation of the applicant's practising certificate. 43 By relying on the matters set out in the 19 March 2021 notice in reaching the level of reasonable satisfaction the applicant was unable to fulfil the reasonable requirements of an Australian legal practitioner, the Commissioner, as the Board's delegate found: a) the applicant, in her rally speech, induced the public to breach the law, by encouraging or condoning violence, and encouraging the public not to abide by the law and public health directives. b) the applicant had engaged in conduct as a practitioner which was likely, to a material degree, prejudice or diminish public confidence in the administration of justice or bring the profession into disrepute, by inciting others to engage in violence or breach the law and public health directives, contrary to s 321G of the Crimes Act (1958)(Vic), and by making allegations, without foundation, of corruption and other serious misconduct by the family court and its judges, and by police and prosecutors. c) the applicant was unable to act in the best interests of her clients due to the beliefs she holds about the profession and the judiciary. 44 It was on those findings the Commissioner, as the Board's delegate decided to cancel the applicant's practising certificate in order to protect the public, the reputation of the profession and the administration of justice.
In determining to refuse to grant a stay Judge Hampel also referred to the conduct of Ms Teffaha after cancellation of the registration directed to a number of institutions including the Queensland Legal Services Board and the Victorian Legal Services Commissioner.
Judge Hampel also referred in her reasons for decision to the fact that an external manager had been appointed to the legal practice of Ms Teffaha which she conducted under the name Advocate Me.

The consequences of cancellation of registration

The consequences of cancellation of the registration of Ms Teffaha are described in the provisions of the Victorian Legal Profession Uniform Law which is to be found within Schedule 1 of the Victorian Legal Profession Uniform Law Application Act 2014.
That Act is intended, by section 4 to have an extraterritorial operation The operation of this Law is, as far as possible, to include operation, according to its terms, in relation to the following - (a) things situated within or outside the territorial limits of this jurisdiction; (b) acts, transactions and matters done, entered into or occurring within or outside the territorial limits of this jurisdiction; (c) things, acts, transactions and matters (wherever situated, done, entered into or occurring) that would, apart from this Law, be governed or otherwise affected by the law of another jurisdiction.
By reason of the cancellation of the registration Ms Teffaha is a "disqualified person" as defined in section 6 of that Act "disqualified person" means - (a) a person whose name has been removed from a Supreme Court roll and who has not subsequently been admitted or readmitted by the Supreme Court of any jurisdiction; or (b) a person who has been refused the grant or renewal of an Australian practising certificate and who has not been granted an Australian practising certificate at a later time; or (c) a person whose Australian practising certificate is suspended (for the period of the suspension); or (d) a person whose Australian practising certificate has been cancelled and who has not been granted an Australian practising certificate at a later time; or (e) a person who is the subject of a decision under section 94 that the person is not entitled to apply for a certificate for a specified period; or (f) a person who is disqualified under section 119;
By section 10 Ms Teffaha is prohibited from engaging in legal practice 10 Prohibition on engaging in legal practice by unqualified entities (1) An entity must not engage in legal practice in this jurisdiction, unless it is a qualified entity. Penalty: 250 penalty units or imprisonment for 2 years, or both. (2) An entity is not entitled to recover any amount, and must repay any amount received, in respect of anything the entity did in contravention of subsection (1). Any amount so received may be recovered as a debt by the person who paid it. (3) Subsection (1) does not apply to an entity or class of entities declared by the Uniform Rules to be exempt from the operation of subsection (1), but only to the extent (if any) specified in the declaration.
I note that an "entity" is defined in section 6 to include an individual person "entity" includes - an individual, an incorporated body and an unincorporated body or other organisation
There are further definitions contained within section 6 which assist in the meaning of the provisions of section 10 "engage in legal practice" includes practise law or provide legal services, but does not include engage in policy work (which, without limitation, includes developing and commenting on legal policy); "legal services "means work done, or business transacted, in the ordinary course of legal practice; "litigious matter" means a matter that involves, or is likely to involve, the issue of proceedings in a court or tribunal; Note A matter is a litigious matter when proceedings are initiated or at any stage when proceedings are reasonably likely.
It follows that by reason of the cancellation of her registration Ms Teffaha is prohibited from engaging in the practice of law including carrying out work or transacting any business matter which would be carried out or transacted in the ordinary course of carrying on a legal practice. By reason of section 4, this prohibition will arguably extend to her activities carried out outside Victoria, provided there is a necessary jurisdictional connection with Victoria.

In purporting to represent the appellant in these proceedings was Ms Teffaha engaged in legal practice in the State of Victoria?

During the course of the hearing on 5 November 2021 Ms Teffaha denied that she was engaged in work of a kind which was carried out in the ordinary course of a legal practice whilst representing the appellant in these proceedings. She insisted that she was acting only as a "paid agent", and that she had been permitted to so act by other tribunals throughout Australia. I regard her insistence that she is only acting as a "paid agent" as a submission which lacks substance. Her submission begs the question of the description and characterisation of the nature and extent of the work performed by her as "paid agent" for the appellant. By way of example, a dentist performing dental work might endeavour to characterise herself or himself as a "paid agent" of the patient, but such characterisation would not hide the fact that the work being performed was dental work, requiring registration to perform it. The same approach applies to the circumstances in which Ms Teffaha has performed work for the appellant. If that work is capable of being characterised in a manner falling within the prohibition contained within section 10 of the Victorian Legal Profession Uniform Law, then Ms Teffaha will be in breach of that provision, no matter how she describes the capacity in which she undertook that work. What matters is the nature of the work undertaken.
In corresponding by email with the Registry of this Tribunal on 1 November 2021 Ms Teffaha concluded her communication with the following which is indicative that she has a place of business in Victoria Serene Teffaha | Advocate ADVOCATEME A: PO Box 7015 Reservoir Victoria 3073 M: 0425754299 E: serene.teffaha@advocateme.com.au W: www.advocateme.com.au
During the course of conducting the hearing on 5 November 2021 Ms Teffaha informed me that she was then physically present in the State of Victoria.
I set out below an extract of the contents of the email of Ms Teffaha of 1 November 2021, because they indicate the nature and extent of her involvement in these proceedings on behalf of the appellant From: Serene Teffaha Sent: Monday, 1 November 2021 2:03 PM To: NCATAdministrativeandEqualOpportunity Cc: Sarah Kennedy (Ministry of Health) ; Richard Caruana Subject: Re: NCAT 2021/00217990-001 - Richard Charles Caruana v Dental Council of New South Wales - Generic Correspondence Importance: High Dear Registrar, Thank you for the correspondence. I refer to this paragraph: "the Dental Council of NSW note that you did not disclose to the Tribunal at the directions hearing that you are an Australian lawyer whose practising certificate has been cancelled." This statement suggests that I am a liar or that I am distorting the truth. I clearly indicated that I am representing Dr Caruana as a paid agent and when asked if I had a practicing certificate, I answered truthfully. ………………………………………………… My client has complied with all orders to date and there have been no issues with misconduct in these proceedings and now the Respondent and NCAT are wanting to make this about character assassination. My client and I will not participate in the hearing on 12 November 2021. I am not on trial here. I trust that this makes our position clear. Kind Regards Serene Teffaha | Advocate ADVOCATEME A: PO Box 7015 Reservoir Victoria 3073 M: 0425754299 E: serene.teffaha@advocateme.com.au W: www.advocateme.com.au Please consider the environment before printing this email This communication and any attachments are confidential and may be privileged.
As is obvious from the contents of the above email Ms Teffaha has been involved in the preparation of these proceedings in anticipation of the hearing. Certainly, she uses language redolent of that of a legal practitioner including a reference to the appellant as her "client."
Documentation filed in the proceedings by Ms Teffaha on behalf of the appellant includes the following 1. an extensive eight page affidavit to be affirmed by the appellant which includes reference to his background as a dentist, relevant correspondence with regulatory authorities, his relationship with patients and the impact of the complaint and investigative process on him. The front cover of the affidavit states that it is filed for the appellant by his "Paid Agent Serene Teffaha, Advocate Me." Ms Teffaha informed me during the course of the hearing on 5 November 2021 that she participated in the drafting and settling of the affidavit. 2. written submissions prepared by Ms Teffaha on behalf of the appellant, for the purpose of the appeal proceedings which are dated 1 October 2021 under the name of Ms Teffaha, "Advocate Me, Paid Agent and Advocate for the Applicant." Those submissions are comprehensive, extensive and consist of 23 closely typed pages. They include reference to 1. the factual background to the proceedings 2. the orders sought by the appellant, including certain orders put on an alternative basis 3. an assertion that the decision to suspend did not have a sufficient evidentiary basis 4. the asserted irrelevance of certain private opinions expressed by the appellant 5. an assertion that the appellant has been denied procedural fairness 6. an assertion that the decision to suspend was "otherwise unlawful." 7. reference to and analysis of certain provisions of the Health Practitioner Regulation National Law (NSW) including in particular sections 150 and 159 8. reference to and analysis of the reasons for decision of delegates of the Council to suspend registration 9. the citation of many decided cases and an exposition of the principles which may be derived from them.
In addition to the above matters, Ms Teffaha at all times intended to represent the appellant at the appeal hearing and perform a role which would normally be undertaken by counsel or solicitor advocate.
It is next necessary to consider whether or not in having undertaken the tasks referred to above, and in intending to appear at the hearing on behalf of the appellant Ms Teffaha was engaging in and intending to engage in the practice of law.
We live in a highly regulated society, and "the law" whether statutory or otherwise pervades almost every activity undertaken by members of the community. In many instances, industries and professions have been established whose activities involve a consideration of legal principles and the work of advocating on behalf of clients. In some respects, consideration by those who practice in these industries and professions intersect with and overlap any claim by the legal profession to have exclusive ownership of anything to do with "the law." Contemporary examples are provided by the proliferation of tax agents, migration agents, work health and safety consultants, planning and environmental consultants and real estate agents, to name a few. There are a few limited and well-recognised examples which relate to specialised areas where preparation of litigation and advocacy are performed by persons other than registered legal practitioners. Some of the callings which I have referred to above fall within this description; another would include industrial advocates who appear before industrial tribunals.
However, all of the callings which I have referred to above apply to well-recognised specialised areas. Whilst Ms Teffaha endeavoured to submit otherwise, "paid agents" rarely appear in the Occupational Division of this Tribunal, which is concerned with a determination of complaints and other matters dealing with a wide range of professional and other activities including health practitioners and the legal profession.
The legal profession is highly regulated for good reason. It is well recognised in legislation applying throughout Australia and in the jurisprudence of Australian courts that it is essential that the public have confidence in the ability, honesty and integrity of legal practitioners. There are comprehensive codes of conduct designed to uphold the integrity of the legal system. Legal practitioners are required to comply with extensive trust account provisions, and regimes which regulate their costs. They must hold professional indemnity insurance cover. In compliance with these requirements legal practitioners owe a concurrent duty not only to their clients but also to the courts and tribunals in which they practice when engaged in litigation of any kind. These obligations are not held by "paid agents" who are not concurrently practising legal practitioners.
The mere recitation of the work performed and intended to be performed by Ms Teffaha in these proceedings which I have referred to in [21] to [24] above is sufficient to indicate that this is work which is traditionally performed by legal practitioners. Significantly it demonstrates that in undertaking that work, Ms Teffaha has used what I shall refer to as legal expertise, a feature of the practice of law. In the aggregate I have no hesitation in characterising the involvement of Ms Teffaha in these proceedings as providing legal services to the appellant and the work that she performed in doing so and intending to undertake as being of a kind traditionally undertaken in the course of carrying on a legal practice. The activities referred to in these paragraphs including acting as advocate, they involve and are enmeshed within a consideration of legal principles, decided cases, the interpretation of statutory provisions and the formulation of arguments reflecting these matters.
I am fortified in this conclusion by observations made by Hall J in the Supreme Court of NSW in The Council of The New South Wales Bar Association v Davison [2006] NSWSC 65.
The defendant in those proceedings had practised as a barrister for many years specialising in the fields of local government law, environmental and planning law and in compulsory acquisition compensation claims. A significant part of his practice was in the Land and Environment Court of New South Wales. He continued to practice as a barrister until the cancellation of his Practising Certificate by the Bar Council. After this occurred a company was incorporated of which the sole director and shareholder was the defendant's wife. That company commenced to provide the professional services of the defendant to a number of entities engaged in the local government industry for a fee. The Council of the NSW Bar Association commenced proceedings in the Supreme Court seeking an injunction to restrain the defendant from "practising as a barrister" without holding a current practising certificate.
In determining the proceedings Hall J considered "the nature or character of the services that have been provided by the defendant to third parties since his Practising Certificate was cancelled."
The defendant asserted that the work that he was undertaking on behalf of the company was work which was habitually performed by town planners and could not be characterised as practising as a barrister. In considering this argument Hall J said 41 There will sometimes be no clear boundary or bright-line between the work undertaken by legal practitioners and other professionals in certain areas of legal practice including the areas of local government and those involving environmental regulation and planning issues. Work performed in areas such as these may involve a number of professionals (including lawyers) who necessarily interact one with the other in the provision of advice to clients and in assisting them in disputes or proceedings. Accordingly, the work of a town planner, for example, may involve advising clients in both a non-litigious context and in the provision of advice in relation to legal proceedings. Their advice may draw on and expressly refer to precedent cases for the purposes of identifying and applying authoritative principles in relation to particular issues with which clients are concerned. In such cases, legal practitioners may perform overlapping or similar functions. A question can arise, as in the present proceedings, as to whether a particular aspect of work involves or requires the application of legal expertise by a legal practitioner (in particular that of a barrister), or whether it falls within the province of a town planner or of both.
It will be noted in the material extracted above that his Honour focused on the application of legal expertise as a significant characteristic of the work of a legal practitioner. He expanded on this by considering what constituted "legal advice," and in doing so emphasised that the work of a legal practitioner also extends beyond an understanding of relevant legal principles and their application to particular circumstances 113 The expression legal advice is a generic term that covers or applies to advice on a wide range of matters. The advice may pertain to strict legal questions but advice provided by a barrister is not necessarily limited to technical issues of law. Inevitably in litigation there are many issues of fact to be proved by evidence in proceedings. Advice on such issues may equally be classed as "legal advice" although they are essentially directed to addressing questions of fact which, in due course, a court will be called upon to determine within the legal framework of the case. Accordingly, the distinction which the defendant on occasions sought to draw between legal advice and other advice provided by him was, in the circumstances and, on the facts of this case, substantially a meaningless one. ……………………………………… 128 Since the establishment of the Land and Environment Court in 1979, barristers have routinely been briefed to advise and appear, inter alia, in the Court in compulsory acquisition cases (as in Ballast Point litigation) and in proceedings like the Ironhill litigation. Barristers' advice in practice in preparation for a hearing of legal proceedings includes advice directed to the marshalling of evidence, especially expert evidence, relevant to the proof of specific matters subjacent or relevant to a claim or defence in an endeavour to construct on behalf of their clients an evidentiary case of strength. Such work in the Land and Environment Court often calls for the exercise of the skill and experience of specialist legal practitioners. The work undertaken by the defendant as described elsewhere in this judgment accords, in the words of Gavan Duffy, J., to the common usage or practice of specialist barristers in the Land and Environment Court. The "legal work" of a barrister in a specialist field will not always entail in-depth legal analysis. The outcome of many cases turns on one or more issue(s) of fact and/or expert opinion to be determined in accordance with well-understood legal principles that operate within a particular statutory context. …………………………………………………. 129 Even though in everyday practice, many proceedings may be described as "fact cases" the input of a skilled barrister is often necessary for the purpose of constructing a sound evidentiary case and in particular to determine the evidence (often including expert evidence) required for or against a claim. Such advice work is conventionally undertaken by a barrister who practices in the field and who has the necessary skill and experience to know how to prove or establish by admissible evidence relevant evidential facts essential to the case. …………………………………………………. 145 A barrister who is involved in the practice of law will in many cases conduct that practice in a specialised area of the law. In providing legal advice he or she applies his or her legal knowledge with the skill acquired through experience in conducting legal proceedings and otherwise. Even allowing for the fact that town planners have a knowledge of relevant law which they bring into account as necessary, the knowledge and skill held and exercised by the defendant in the many instances detailed in this judgment was plainly not that of a town planner. It was acquired by him during his years in practice, firstly, as a solicitor, and later as a member of the Bar. Whilst no doubt, aspects of his knowledge may have overlapped the discipline of town planning in some respects that is not determinative of the nature of his activities. The very nature of the advice provided by him as identified in this judgment was in the nature of legal advice which barristers are called upon to provide. 146 On a significant number of occasions identified earlier in this judgment, the knowledge and skill applied by him was that of a specialist barrister in the fields of local government, planning and environmental law. The advice given on those occasions included advice as to the legal rights or powers of local government authorities and of others. On many occasions, the advice related to the preparation and conduct of proceedings instituted in the Land and Environment Court. In some instances, the defendant provided advice direct to clients. In other cases, the advice was tendered by him to solicitors on matters involving legal issues in performance of the contract or retainer made with Sydney Development Services. The advice required the defendant to employ his legal and other specialist knowledge and to exercise a measure of the skill and judgment of the specialist barrister.
Hall J concluded that in the circumstances of those proceedings the defendant had provided advice as a barrister in relation to the conduct of legal proceedings, in relation to relevant planning laws and planning instruments, concerning documents which were to be used in legal proceedings, in relation to the evidentiary requirements for those legal proceedings and the preparation of evidence, in settling and drafting correspondence, in preparing written submissions, in advice in relation to the preparation of documents for use in proceedings, and in conferring with clients with respect to those matters.
I have earlier identified many of these matters as applying to the work performed and intended to be performed by Ms Teffaha in these proceedings. I rely on the observations of Hall J set out at in [34] above as substantiating and confirming the basis for the conclusion reached by me at [29] above.
All of the available evidence is to the effect that Ms Teffaha carries on her business from an office in Victoria. As I have already pointed out, she participated in the hearing on 5 November 2021 from premises situated in Victoria. Victoria is noted on her email communication as representing her place of business. It follows that to the extent that Ms Teffaha operates her services from Victoria, she is engaged in legal practice in Victoria prima facie in breach of section 10 of the Victorian Legal Profession Uniform Law.

In purporting to represent the appellant in these proceedings is Ms Teffaha engaged in legal practice in the State of New South Wales?

The regulation of the legal profession in New South Wales is governed by the Legal Profession Uniform Law (NSW) No 16a of 2014. Unsurprisingly, because New South Wales is part of the same uniform regulatory scheme as is Victoria, most of the provisions of the New South Wales legislation are in similar form. It is only necessary to refer to section 10 of the New South Wales Act 10 Prohibition on engaging in legal practice by unqualified entities (1) An entity must not engage in legal practice in this jurisdiction, unless it is a qualified entity. Penalty: 250 penalty units or imprisonment for 2 years, or both. (2) An entity is not entitled to recover any amount, and must repay any amount received, in respect of anything the entity did in contravention of subsection (1). Any amount so received may be recovered as a debt by the person who paid it. (3) Subsection (1) does not apply to an entity or class of entities declared by the Uniform Rules to be exempt from the operation of subsection (1), but only to the extent (if any) specified in the declaration.
As is the case with the Victorian Act, an entity is defined to include an individual person. Furthermore, the definition of "qualified entity" contained in section 6 makes it clear that only an individual who is an Australian legal practitioner is qualified to engage in legal practice in New South Wales. Sec 6 qualified entity means - (a) an Australian legal practitioner; or (b) a law practice;
Once Ms Teffaha ceased to be a legal practitioner in Victoria, she ipso facto ceased to be an Australian legal practitioner. There is no information available to the Tribunal which would indicate that Ms Teffaha is registered to practice law in New South Wales, or indeed in any other jurisdiction within Australia.
The appellant in these proceedings is resident in New South Wales. When attending upon him for the purpose of advising the appellant and performing work on his behalf, Ms Teffaha will arguably be doing so in New South Wales. If Ms Teffaha were to participate in the proceedings as advocate for the appellant, it is arguable that she would be undertaking the work of a legal practitioner in New South Wales, notwithstanding that the hearing which will be conducted commencing on 9 December 2021 is scheduled to utilise an audiovisual facility. It is therefore arguable that if Ms Teffaha were permitted to continue to represent the appellant in these proceedings, she would prima facie be in breach of section 10 of the New South Wales legislation.

Should Ms Teffaha be permitted to continue to represent the appellant in these proceedings?

I have concluded that the work performed to date by Ms Teffaha and the further work which she wishes to perform is prima facie in breach of the prohibition contained within section 10 of the Victorian Legal Profession Uniform Law.
This Tribunal has a discretion when considering whether a party to proceedings before it is entitled to be represented, as contained in section 45 of the Civil and Administrative Tribunal Act, the relevant portions of which are set out below 45 Representation of parties (1) A party to proceedings in the Tribunal - (a) has the carriage of the party's own case and is not entitled to be represented by any person, and (b) may be represented by another person only if the Tribunal grants leave - (i) for that person to represent the party, or (ii) in the case of representation by an Australian legal practitioner - for a particular or any Australian legal practitioner to represent the party. ……………………………………………. (3) The Tribunal may at its discretion - (a) grant or refuse leave under subsection (1)(b), and (b) revoke any leave that it has granted.
There is also provision to allow representation by a person who is not an Australian legal practitioner in proceedings conducted under the Health Practitioner Regulation National Law contained in section 165J(2) 165J Representation before Tribunal [NSW] (1) At an inquiry conducted or appeal heard under this Law by the Tribunal, the registered health practitioner or student and any complainant concerned are entitled to attend and to be represented by - (a) an Australian legal practitioner; or (b) with the leave of the member presiding, another adviser. (2) The Tribunal may grant leave for another person to appear (whether in person or by an Australian legal practitioner or another adviser) at an inquiry or appeal if the Tribunal is satisfied that it is appropriate for the person to appear. (3) This section does not prevent the Tribunal from proceeding in the absence of the registered health practitioner or student concerned, as long as the practitioner or student has been given notice of the inquiry or appeal.
I note that the right to grant leave to appear under section 165J is vested in the "member presiding" at the inquiry or appeal. This raises the question whether this right vests also in the Member of the Tribunal conducting interlocutory or ancillary proceedings in the nature of case management, or whether it is confined to the Member who is appointed to preside at the hearing of the inquiry or appeal itself.
It is probable that the more specific provisions of section 165J will govern the grant of leave in the circumstances of these proceedings rather than the general provisions of section 45 of the Civil and Administrative Tribunal Act, to which I shall shortly return.
It will have been seen that I have endeavoured to produce these reasons for decision quickly. This is because at the conclusion of the directions hearing on 5 November 2021 when I informed her that I would not permit her to represent the appellant any further in these proceedings and would be publishing reasons therefor, Ms Teffaha announced her intention to institute an appeal, obviously without any regard to these reasons. In order to ensure that, if possible, any appeal which is instituted by her (presumably with the consent of the appellant and on his behalf) is dealt with expeditiously so as to preserve the appellant's entitlement to have his appeal heard commencing on 9 December 2021, I intend to deal with both alternatives.
Assuming that section 165J(2) entitled Deputy President Boland to grant leave to Ms Teffaha to represent the appellant, I take the view that this Tribunal has inherent jurisdiction and power to exercise a general discretion to withdraw that grant of leave. So much may be derived from section 29(2)(a) of the Civil and Administrative Tribunal Act. 29 General jurisdiction (1) The Tribunal has general jurisdiction over a matter if - (a) legislation (other than this Act or the procedural rules) enables the Tribunal to make decisions or exercise other functions, whether on application or of its own motion, of a kind specified by the legislation in respect of that matter, and (b) the matter does not otherwise fall within the administrative review jurisdiction, appeal jurisdiction or enforcement jurisdiction of the Tribunal. Note - The general jurisdiction of the Tribunal includes (but is not limited to) functions conferred on the Tribunal by enabling legislation to review or otherwise re-examine decisions of persons or bodies other than in connection with the exercise of the Tribunal's administrative review jurisdiction. (2) The Tribunal also has the following jurisdiction in proceedings for the exercise of its general jurisdiction - (a) the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings, (b) the jurisdiction to exercise such other functions as are conferred or imposed on the Tribunal by or under this Act or enabling legislation in connection with the conduct or resolution of such proceedings. (3) A general decision of the Tribunal is a decision of the Tribunal determining a matter over which it has general jurisdiction. (4) A general application is an application made to the Tribunal for a general decision. (5) Nothing in this section permits general jurisdiction to be conferred on the Tribunal by a statutory rule unless the conferral of jurisdiction by such means is expressly authorised by another Act.
If section 165J(2) does not apply to leave granted other than by a Member presiding at the actual inquiry or appeal, Deputy President Boland would have been entitled to grant leave pursuant to section 45 of the Civil and Administrative Tribunal Act set out above. If so, the provisions of Division 2 of the Civil and Administrative Tribunal Rules 2014 contain a specified power to revoke leave to appear once granted. Division 2 Representation of parties 31 Application for leave to represent a party (1) An application by a person under section 45 of the Act for leave to represent a party to proceedings may be made orally or in writing at any stage in the proceedings. (2) In making an order granting leave to a person to represent a party to proceedings, the Tribunal may impose such conditions in relation to the representation as the Tribunal thinks fit. 32 Granting and revocation of leave for a person to represent party (1) In dealing with an application under section 45 of the Act for leave to be granted to a person (other than an Australian legal practitioner) to represent a party to proceedings, the Tribunal is to have regard to - (a) such of the following circumstances as it considers are relevant to the proceedings - (i) whether the proposed representative has sufficient knowledge of the issues in dispute to enable him or her to represent the applicant effectively before the Tribunal, (ii) whether the proposed representative has the ability to deal fairly and honestly with the Tribunal and other persons involved in the proceedings, (iii) whether the proposed representative is vested with sufficient authority to bind the party, and (b) any other circumstances that it considers relevant. (2) The Tribunal may revoke leave granted to a person to represent a party to proceedings only if the Tribunal is satisfied that - (a) the party no longer consents to the person representing the party, or (b) the person applied for leave to represent that party without the consent of the party, or (c) the person does not have the qualities referred to in subrule (1)(a)(i) or (ii) to act as the party's representative, or (d) the party is, or has become, incapable of instructing the representative, or (e) any other grounds are present that the Tribunal considers sufficient to justify the revocation.
I now proceed to consider in the alternative the nature of the discretion to revoke the leave to appear provided by the more specific provisions of Rule 32.
The respondent has made available to the Tribunal a transcript of the directions hearing conducted by Deputy President Boland on 20 August 2021 in the course of managing a busy Health Practitioner List. Ms Teffaha did not seek leave to appear for the appellant, and merely announced herself as appearing on his behalf. The transcript discloses that Deputy President Boland had originally assumed that Ms Teffaha was a legal practitioner. However, in the course of conversation Ms Teffaha was asked whether she was a legal practitioner. She responded "No, Deputy President, I am a paid agent, so I'm not a legal practitioner….." Ms Teffaha then immediately proceeded to indicate that she had discussed the proceedings with Ms Kennedy on the previous day and that a proposed timetable had been agreed. Ms Kennedy then said that there was no objection by the respondent to Ms Teffaha representing the respondent. There then followed discussion concerning the proceedings leading up to hearing dates being fixed for 9 and 10 December 2021.
I proceed on the assumption that Ms Teffaha had been granted leave to represent the appellant in the proceedings on 20 August 2021 on the basis that she was not a legal practitioner but a "paid agent" and that the respondent made no objection to this grant of leave.
In these circumstances I proceed on the basis that my consideration is to be confined to whether that grant of leave should be revoked. I should also confirm that as at 5 November 2021 the respondent had not yet determined its attitude to whether it would object to the participation of Ms Teffaha in the proceedings representing the appellant. Accordingly, the involvement of the respondent in connection with this matter to date has been confined to bringing the circumstances which pertained to Ms Teffaha to the attention of the Tribunal.
The discretion as to whether to revoke the leave granted to Ms Teffaha is a discretion which may be exercised by the Tribunal of its own motion. Relevant matters for consideration are set out in Rule 32 (2) extracted above. Subrules (2) (c) and (e) are arguably relevant.
There is no basis upon which I might conclude that Ms Teffaha does not have sufficient knowledge of the issues in dispute to enable her to represent the appellant effectively before the Tribunal. Indeed, as I have previously noted her written submissions are comprehensive and extensive. Whether those submissions will ultimately have some bearing on the outcome of the proceedings is entirely irrelevant for present purposes, but they are indicative that Ms Teffaha does have the requisite sufficient knowledge of the issues in dispute.
The next matter for consideration, namely whether Ms Teffaha has the ability to deal fairly and honestly with the Tribunal and other persons involved in the proceedings creates greater difficulty. On one view, Ms Teffaha was less than forthcoming when she informed Deputy President Boland that she was not a legal practitioner, and merely a "paid agent." Disclosure of her circumstances might have affected the consent of the respondent and might have affected the grant of leave to represent the appellant. It is also possible that some of the matters which excited the attention of the Victorian Legal Services Commissioner to cancel Ms Teffaha's registration might arguably impact upon whether she has the ability to deal fairly and honestly with this Tribunal. However, a consideration of this latter matter would require a more detailed examination of factual circumstances which are not currently available to the Tribunal and a consideration of the two former matters involves some conjecture. In these circumstances I do not proceed to consider the exercise of discretion by reference to the provisions of these Subrules.
This invites attention to the general discretionary basis for the revocation of the right to represent the appellant, whether leave was granted under section 165J or section 45.
I have previously concluded that the known circumstances of the nature and extent of the representation of the appellant by Ms Teffaha involves a breach by her of the provisions of section 10 of the Victorian Legal Profession Uniform Law and arguably may also involve a breach of section 10 of the equivalent NSW legislation. This Tribunal occupies an important and integral part in the administration of justice in New South Wales. Its functions include those which are also administered within the traditional court system. This Tribunal is bound to facilitate the just, quick and cheap resolution of the real issues in proceedings before it. Section 36 of the Civil and Administrative Tribunal Act 2013 provides 36 Guiding principle to be applied to practice and procedure (1) The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The Tribunal must seek to give effect to the guiding principle when it - (a) exercises any power given to it by this Act or the procedural rules, or (b) interprets any provision of this Act or the procedural rules. (3) Each of the following persons is under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal - (a) a party to proceedings in the Tribunal, (b) an Australian legal practitioner or other person who is representing a party in proceedings in the Tribunal. (4) In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings. (5) However, nothing in this section requires or permits the Tribunal to exercise any functions that are conferred or imposed on it under enabling legislation in a manner that is inconsistent with the objects or principles for which that legislation provides in relation to the exercise of those functions.
In addition, this Tribunal is charged with an important role in the regulation of the legal profession in New South Wales. It is the designated Tribunal under the Legal Profession Uniform Law (NSW) No 16a of 2014 to deal with complaints made against members of the legal profession, and other matters.
If this Tribunal were to allow Ms Teffaha to continue to represent the appellant in these proceedings after becoming aware of the cancellation of her registration as a legal practitioner and the consequences of her continuing to endeavour to represent the appellant in breach of the statutory provisions which I have described above, this would have the result that this Tribunal would have condoned such breach. Furthermore, this Tribunal would be complicit in allowing Ms Teffaha to circumvent important statutory provisions which regulate the legal profession in the public interest. These are powerful consequences which militate strongly against the exercise of discretion to allow Ms Teffaha to continue to represent the appellant, and which must result in a revocation of any leave granted to permit her to do so. Permitting her to continue to do so would also be anathema to the provisions of section 36 (3) set out above.
The above constitute my reasons for having ordered at the conclusion of the proceedings on 5 November 2021 that Ms Teffaha is not permitted to continue to represent the appellant in these proceedings.

Referral to the Victorian Legal Services Board

Having regard to the conclusions which I have reached concerning the circumstances of Ms Teffaha in connection with these proceedings, I ask the Registrar of the Tribunal to refer a copy of these reasons for decision to the Victorian Legal Services Board.

Orders 1. Serene Teffaha is not permitted to continue to represent the Appellant in these proceedings.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 November 2021

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