Council of the Law Society of New South Wales v Buckley

The preliminary issues raised by Mr Buckley in his Reply

1. The 'Preliminary issues to be determined' set out by Mr Buckley in his Reply are as follows: Preliminary issues to be determined 1. The Respondent objects to the jurisdiction of the Tribunal to hear and determine the application in relation to Grounds 1 through 4 inclusively, and Grounds 6 through 9 inclusively, on the following basis. a. The conduct referred to in Grounds 1 through to 4 inclusively, and Grounds 6 through to 9 inclusively, formed the basis upon which the Applicant on 12 November 2021 pursuant to section 82(1)(d) of the Legal Profession Uniform Law (NSW) suspended the Respondent's practising certificate until 30 June 2022 ("Suspension"). b. The conduct referred to in Grounds 1 through to 4 inclusively, and Grounds 6 through to 9 inclusively has previously been dealt with to finality and was subject to a final judgment on 24 March 2022 before Ward CJ in Equity in the Supreme Court of New South Wales in the matter of Buckley v Council of the Law Society of New South Wales [2022] NSWSC 328 ("Earlier Proceedings"), where the Suspension was upheld. c. The Suspension was for a period exceeding 7 months and had the same disciplinary effect as an order otherwise made under section 302(1)(h) of the Legal Profession Uniform Law (NSW). d. Whilst the Earlier Proceedings dealt with the question of whether the Respondent was unable to fulfil the inherent requirements of an Australian legal practitioner, this new application before the Tribunal amounts to the Respondent being proceeded against twice in relation to the same conduct and for the same cause. Effectively, the Applicant seeks further regulatory and or disciplinary remedies and or outcomes in relation to the same conduct and the same facts upon which it issued the Suspension and which the Applicant ought to have brought forward as part of the subject in contest either at the time of issuing the Suspension around October or November 2021 and again on or around the time of the Earlier Proceedings, but which was not brought forward by the Applicant. e. Accordingly, it is submitted that estoppel per res judicata and or issue estoppel operates. f. Further, the Respondent relies upon the estoppel principle expressed in Henderson v Henderson (1843) 3 Hare 100; 67 ER 313; at Hare 115; ER 319; affirmed by the High Court of Australia in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.

Provisions of the Uniform Law

1. Chapter 3 of the Uniform Law is entitled 'Legal practice'. Part 3.5 of Chapter 3 of the Uniform Law is entitled 'Variation, suspension or cancellation of certificates'.
2. Section 73 of the Uniform Law is in Division 1 of Part 3.5 and provides: 73 References to certificate The term certificate in this Part refers to an Australian practising certificate or an Australian registration certificate.
3. The 'designated local authority' for the purposes of ss 82, 83 and 84 of the Uniform Law is specified in Table 1 in s 11(1) of the Legal Profession Uniform Law Application Act 2014 ('the Application Act') to be the Council.
4. Division 3 of Part 3.5 of the Unform Law is entitled 'Variation, suspension or cancellation on specific grounds'. Sections 82, 83 and 84 are in Division 3 of Part 3.5 of the Uniform Law and provide as follows: 82 Grounds for action under this Division (1) The designated local regulatory authority may vary, suspend or cancel a certificate under this Division on the ground that - (a) the holder has contravened a condition of the certificate; or (b) the holder has failed without reasonable excuse to comply with a requirement under Chapter 7 made in connection with an investigation of the holder in connection with this Chapter or has committed an offence under Chapter 7 in connection with any such investigation; or (c) a local regulatory authority has made a recommendation to that effect under section 278, 299(1)(g) or 466(7); or (d) in the case of an Australian practising certificate - the designated local regulatory authority reasonably believes that the holder is unable to fulfil the inherent requirements of an Australian legal practitioner. Note Section 227 empowers the designated local regulatory authority to suspend an Australian practising certificate or Australian registration certificate for failure to pay an annual contribution or a levy. (2) The designated local regulatory authority may vary or suspend a certificate under this Division (if it considers it appropriate to do so having regard to the seriousness of the offence concerned and to the public interest) on the ground that the holder has been charged with a serious offence, a tax offence or an offence specified in the Uniform Rules for the purposes of this section and - (a) the charge has not been determined; or (b) the holder has been convicted of the offence but proceedings taken or likely to be taken in relation to the offence have not been concluded. (3) The variation or suspension referred to in subsection (2) has effect until the earliest of the following occurs - (a) the designated local regulatory authority revokes it; (b) the end of the period specified by the designated local regulatory authority; (c) if the holder is convicted of the offence - 28 days after the day of the conviction; (d) if the charge is dismissed - the day of the dismissal. (4) The designated local regulatory authority may recommend to another designated local regulatory authority that consideration be given as to whether the holder of an Australian practising certificate is, or may be, unable to fulfil the inherent requirements of an Australian legal practitioner (as referred to in subsection (1)(d)). (5) Subsection (4) does not by implication limit the powers of any local regulatory authority. 83 Local regulatory authority to give notice before acting under this Division If the designated local regulatory authority considers that a certificate should be varied, suspended or cancelled on a ground specified in section 82, it must give the holder notice in writing - (a) stating that it proposes to take that action and the ground or grounds for the proposed action; and (b) if it proposes to vary or suspend the certificate, stating the proposed variation or period of suspension, as the case requires; and (c) inviting the holder to respond in writing to the designated local regulatory authority within a specified period (not being less than 7 days nor more than 28 days after the notice is given) as to why the proposed action should not be taken. 84 Action taken after giving notice If the designated local regulatory authority - (a) has given notice under section 83 to the holder of a certificate of its proposed action; and (b) the time specified in the notice for a response from the holder has expired - it may, after considering any response made by the holder, by notice in writing given to the holder, take the proposed action or take less onerous action that it considers appropriate.
5. Section 97 of the Uniform Law, which is in Division 5 of Part 3.5 says: 97 Relationship of this Part with Chapter 5 (1) Nothing in this Part prevents a matter to which this Part relates from being dealt with under Chapter 5, whether or not it is being, or has already been, dealt with under this Part. (2) Without limitation, a matter to which this Part relates may be made the subject of a complaint and dealt with under Chapter 5 even if adverse action has been taken under this Part against the Australian legal practitioner or Australian-registered foreign lawyer concerned.
6. Chapter 5 of the Uniform Law is entitled 'Dispute resolution and professional discipline'. Part 5.4 of Chapter 5 is entitled 'Disciplinary matters'.
7. The 'designated tribunal' for the purposes of Chapter 5 of the Uniform Law, is specified in Table 2 in s 11(3) of the Application Act to be this Tribunal (see also s 6 of the Uniform Law, in which both terms are defined).
8. In the Application, the Council seeks orders under s 302 of the Uniform Law, which is in Division 3 of Part 5.4 of Chapter 5. The Council also seeks findings under Division 1 of Part 5.4 of Chapter 5 of the Uniform Law.

Res judicata

1. In Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231, McColl JA, with Giles and Campbell JJA agreeing, described the doctrine of res judicata estoppel ('res judicata') (also sometimes called 'cause of action estoppel') in the following way, with reference to the decision of the High Court in Dow Jones v Gutnick [2002] HCA 56: The doctrine of res judicata properly so-called (the first principle referred to in Dow Jones) applies where a plaintiff establishes his cause of action so that, upon judgment, the cause of action and any matters which were necessarily established as its legal foundation or as the justification for its conclusion, or were legally indispensable to the conclusion merge in the judgment, and no longer have an independent existence and cannot be re-litigated in subsequent proceedings between the parties of their privies: Blair v Curran [1939] HCA 23; (1939) 62 CLR 464 (at 531 - 532) per Dixon J; Anshun (at 597) per Gibbs CJ, Mason and Aickin JJ; Chamberlain v Deputy Commissioner of Taxation (ACT) [1988] HCA 21; (1988) 164 CLR 502 (at 508) per Deane, Toohey and Gaudron JJ; James Hardie and Co v Seltsam Pty Ltd [1998] HCA 78; 196 CLR 53 (at [40]) per Gaudron and Gummow JJ.
2. A 'cause of action' cannot be relitigated when res judicata applies.
3. Res judicata applies when all of the following circumstances are present:

• a final judicial decision has been given which disposes of the cause of action in a matter ('the original decision', in this case the Supreme Court judgment),
• the original decision determined the same cause of action which is the subject of the subsequent litigation (in this case, the Application),
• the subsequent litigation is between the same parties (or their privvies) as the original litigation, or the original decision was in rem. (see Spencer, Bower and Handley: Res Judicata (LexisNexis, 2019)

1. Mr Buckley argued that res judicata applies to the Application. He argued, in effect, that the Supreme Court judgement (see [3] above) was the original decision, and that these proceedings are the subsequent litigation. He referred to Grounds 1 to 4 and Grounds 6 to 9 of the Application and said "the same cause in this instance is the same conduct and the same facts and issues which supported the Suspension and the determination of Ward CJ in the Earlier Proceedings as set out in the Judicial Review Judgment." He pointed to extracts from his pleadings in the Supreme Court proceedings, which were set out in the Supreme Court decision, and which repeated the grounds relied upon by the Council when suspending Mr Buckley's practising certificate (see the Schedule to the Supreme Court judgment).
2. The Council submitted that res judicata does not apply to these proceedings in the present circumstances for two reasons: firstly, because the Supreme Court judgement did not determine the same cause of action as the cause of action in the present proceedings and, secondly, because s 97 of the Uniform Law excludes any application that res judicata might otherwise have had in the present circumstances.

The Supreme Court proceedings

1. As I have said at [4]-[6] above, the cause of action in the Supreme Court proceedings was an application by Mr Buckley for the judicial review of a decision of the Council on 12 November 2021, pursuant to s 82(1)(d) of the Uniform Law, to suspend his practising certificate until 30 June 2023.
2. The basis argued by Mr Buckley in the Supreme Court for his assertion that the Council had proceeded on a misunderstanding of the law in making its decision to suspend, and had thereby committed jurisdictional error, was two fold:

• firstly, Mr Buckley argued that the Council had misinterpreted or failed to apply 'proportionality testing' to its interpretation and application of an asserted legislative restriction in s 82(1)(d) of the Uniform Law on freedom of speech because it had not had proper regard to the principles of freedom of speech set out by the High Court in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 and McCloy v New South Wales (2015) 257 CLR 178, and,
• secondly, Mr Buckley argued that the Council had committed jurisdictional error in the exercise of its discretion as to penalty because the penalty it imposed on him (ie, suspension) was punitive rather than protective, and excessive because there were reasonably available alternatives which would have achieved the same protective function.

1. In the Supreme Court judgment, Ward CJ in Eq noted that Mr Buckley had not exercised his statutory right of appeal under s 101 of the Uniform Law against the decision of the Council (see [15] and [96] of the Supreme Court judgment).
2. Ward CJ in Eq further noted that Mr Buckley did not dispute that he made the posts and comments relevant to the Council's decision to suspend his practising certificate (see [38] of the Supreme Court judgment).
3. When considering the findings made by the Council when forming its belief that Mr Buckley was unable to fulfil the inherent requirements of a legal practitioner, Ward CJ in Eq said, at [107]: Here, the defendant [ie the Council] clearly addressed in its reasons what those inherent requirements entailed and how it was that the impugned conduct failed to meet those requirements: the Court is not (and cannot be) called upon to review the merits of those findings. (my emphasis).
4. Ward CJ in Eq determined that the Council's decision was not affected by jurisdictional error. Mr Buckley's amended summons was dismissed with costs. The Supreme Court judgment was, without doubt, a final judicial decision by a Court.
5. The decision by the Council to suspend Mr Buckley's practising certificate until 30 June 2023 was undisturbed by the Supreme Court judgment and remained in force under the Uniform Law.

The present proceedings

1. The Application before the Tribunal seeks findings as to Mr Buckley's conduct, including the conduct the subject of Grounds 1 to 4 and 6 to 9 of the Application. It is alleged that the conduct amounts to professional misconduct within the meaning of the Uniform Law. An order under s 302 of the Uniform Law is applied for.

Meaning of 'the cause of action' in res judicata

1. The meaning of 'the cause of action' in res judicata was considered by the High Court in Clayton v Bant [2020] HCA 44 in the context of a dispute between a former husband and wife about property in the wake of a divorce. A decision was given by the Personal Status Court of Dubai with respect to some of the property of the marriage, and then a subsequent application for orders with respect to the division of property was pursued by the wife in the Family Court of Australia. The husband argued that the application in the Family Court of Australia was affected by Anshun estoppel and res judicata. When considering res judicata, the plurality (Keifel CJ, Bell and Gageler JJ) said, at [28] and [34]: 28. Two forms of estoppel are potentially applicable. One is that sometimes referred to as "cause of action" estoppel[33]. The terminology has been recognised as problematic given the range of senses in which the expression "cause of action" tends to be used[34]. The relevant sense is that of title to the legal right established or claimed[35]. Especially in a statutory context such as the present, the form of estoppel would be better referred to by the more generic description of "claim" estoppel[36]…. … 34. Founded on the twin policies of ensuring finality in litigation (thereby promoting respect for and efficient use of courts as well as avoiding inconsistent judgments) and of ensuring fairness to litigants (by sparing them the stress and expense of duplicative proceedings)[44], the focus of the common law doctrine of estoppel is on "substance rather than form"[45]. The doctrine looks not for absolute identity between the sources and incidents of rights asserted or capable of being asserted in consecutive proceedings. The doctrine looks rather for substantial correspondence between those rights. Enough for its operation is that the rights are of a substantially equivalent nature and cover substantially the same subject matter. A common law right to damages for negligent misstatement has been held to correspond to a statutory right to damages for misleading and deceptive conduct[46], for example, whereas a common law right to damages for personal injury has been held not to correspond to a common law right to damages for property damage arising from the same negligent conduct given that damage is a necessary element of a cause of action in negligence. Justice Edelman said, at [66] - [68]: Merger or res judicata in the strict sense 66. First, where a cause of action, or "the very right ... claimed"[99], has previously been established by a local court then at common law the "merger of the right or obligation in the judgment"[100] can be relied upon to preclude re-assertion of the extinguished right. The doctrine of merger is not merely based upon principles of finality. It exists because when a court order "replicates" the prior right[101], with added consequences such as enforcement mechanisms, the prior right "has no longer an independent existence"[102]. No action can be brought upon that extinguished right. The successful plaintiff's only right is a right on the local judgment, which is "of a higher nature"[103]. Since the expression "res judicata" has also been loosely used to describe all four rules discussed below, each of which is underpinned by a policy of finality[104], the effect of the doctrine of merger is sometimes described as "res judicata in the strict sense"[105]. Cause of action or claim estoppel 67. Secondly, if the judgment finally resolved a conflict about the existence or extent of a "cause of action" then the parties to that proceeding, or their privies, will be precluded from relitigating that cause of action. This rule is independent of the doctrine of merger because even if the rights adjudicated upon were determined not to exist in the earlier proceeding, so that there was nothing to merge into the judgment[106], "the unsuccessful plaintiff can no longer assert" that a right exists[107]. The Full Court of the Family Court of Australia in this proceeding described the rule as "res judicata estoppel"[108]. In Australia, it is usually described as "cause of action estoppel". But, as has been pointed out on a number of occasions, the expression "cause of action" is imprecise and might extend either to the legal right claimed or to the facts that the plaintiff must establish for their claim[109]. 68. The best approach is to recognise that both the legal right claimed and decided and the pleaded or asserted facts are relevant: "cause of action normally means a right alleged to flow from the facts pleaded"[110]. The focus is upon the whole claim, including the right and the essential facts upon which the right depends[111]. But much can depend upon the level of generality at which the claim is characterised. As Gummow J said in Trawl Industries of Australia Pty Ltd (In liq) v Effem Foods Pty Ltd[112], characterisation must proceed by reference to substance rather than form. Regard can be had to the pleadings, the evidence, and the reasons for decision[113].
2. In Thayananthan v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1054, Merkel J said, at [33]: 33 I considered the tests to be applied for res judicata and issue or Anshun estoppel in Somanader in which, like the present case, there were successive applications for judicial review under Pt 8 of the Act and then s 75(v) of the Constitution. The question in respect of res judicata is whether the cause of action in the present proceeding is the same cause of action that was determined by Marshall J in the original proceeding: see Somanader at 688 [45]. In determining that question the Court should focus on the substance of the two proceedings, rather than their form. As I explained in Somanader (at 690 [54]) the fact that the later proceeding takes the form of an application for constitutional writs, as distinct from an application under Pt 8, does not prevent the cause of action determined in the earlier proceeding from being the same cause of action as that raised in the later proceeding.
3. The 'right' asserted by Mr Buckley as the plaintiff in the Supreme Court proceedings was a right to have the decision of the Council to suspend his registration until 30 June 2023 declared to be invalid and set aside on the basis that the Council's decision was affected by jurisdictional error. The Supreme Court was not required to, and did not, make findings of fact about Mr Buckley's conduct. The Supreme Court determined that the Council's decision was not affected by jurisdictional error in the manner alleged by Mr Buckley, and his amended summons was dismissed.
4. In the Application before the Tribunal, the Council seeks findings of fact in relation to allegations about Mr Buckley's conduct, the characterisation of the conduct alleged as unsatisfactory professional conduct or professional misconduct, and a disciplinary order under s 302 of the Uniform Law. Mr Buckley is the respondent to the Application and is not in the position of asserting any right in the proceedings. There is, therefore, no correspondence of rights asserted in the two sets of proceedings. The cause of action is not the same.
5. Focussing on the substance of the two sets of proceedings rather than the form, it is evident that the proceedings are not of a substantially equivalent nature. They are of an entirely different nature from each other. The only commonality is that some of the relevant facts or allegations are the same. That is not sufficient for the operation of res judicata.
6. The Application before the Tribunal is not affected by res judicata (or cause of action estoppel).
7. The question of whether res judicata applies to the Tribunal when determining professional disciplinary matters is contestable (see Bogaards v McMahon (1988) 80 ALR 342 at 350, Comcare v Grimes (1994) 121 ALR 485 at 492, R (on the application of Coke-Wallis) v Institute of Chartered Accountants in England and Wales [2011] 2 AC 146 and M Paterson, "Res judicata at the Administrative Appeals Tribunal: Re-opening the case" (2019) 30 PLR 58). This issue was raised with the parties. The Council did not wish to make submissions upon it. Mr Buckley simply asserted that res judicata did apply in accordance with his written submissions. Given that the two sets of proceedings so not raise the same 'cause of action', it is not necessary to decide this issue.
8. Mr Buckley asserted that a 'principle of finality' applied in the circumstances, and barred the Application from proceeding. No proper basis was made out for this submission. Neither the decision of the Council to suspend Mr Buckley's practising certificate nor the Supreme Court judgment finally determined the facts or issues raised in the Application. Mr Buckley's argument is misconceived, and I reject it.

Issue Estoppel

1. In Kuligowski v Metrobus (2004) 220 CLR 363 at [21], the High Court quoted, with approval, the description of the elements of issue estoppel set out by Lord Guest in Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853 at 935: 21. In his speech in Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2)[4], Lord Guest, after noting that the doctrine of issue estoppel had been accepted by Australian courts for a number of years, indicated that, for the doctrine to apply in the second set of proceedings, the requirements were: (1) that the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final; and, (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.
2. In the present circumstances, requirements (2) and (3) are satisfied. However, requirement (1) is not. The Supreme Court, in the Supreme Court judgment, determined that the decision of the Council to suspend Mr Buckley's practising certificate was not affected by the jurisdictional errors pressed by Mr Buckley, and dismissed Mr Buckley's amended summons. The Tribunal, in determining the Application, will make findings of fact with respect to the conduct alleged against Mr Buckley, and will determine whether or not that conduct is properly characterised as professional misconduct or unprofessional conduct under the Uniform Law, and, if so, what disciplinary orders are appropriate in all of the circumstances. Mr Buckley argued that "the issues of fact and the conduct" underlying the Supreme Court proceedings were "disposed of once and for all" by the Supreme Court decision. This, plainly, is not so, and Ward CJ in Eq made it clear that no issues of fact with respect to the conduct could be decided in the Supreme Court proceedings (see [27], above).
3. The Application in the Tribunal is not affected by issue estoppel.
4. It is arguable that the Application in the Tribunal cannot be affected by issue estoppel on account of the nature of the Tribunal (which is not a Court) and the nature of the proceedings, being the application of an administrative system to an individual (see Smith v Caltex Australia Petroleum Pty Ltd (2004) 80 ALD 106; [2004] FCA 480, Lambidis v Commissioner of Police (1995) 37 NSWLR 320, Attorney-General v Kowalski (No 4) [2015] SASC 155 at [23] and Special Protection Services (NSW) Pty Limited v Commissioner of Police, NSW Police Force; Constantin v Commissioner of Police, NSW Police Force [2015] NSWCATOD 112). This issue was raised with the parties, but the Council asked that the preliminary issues be decided on the basis of s 97 of the Uniform Law and the arguments that the requirements of issue estoppel are not met in the present circumstances. Mr Buckley asserted that issue estoppel was applicable in accordance with his written submissions. In all of the circumstances, it is not necessary to decide this issue.

Anshun Estoppel.

1. In Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 ('Anshun') the plurality of the High Court said: 22. The critical issue, then, is whether the case falls within the extended principle expressed by Sir James Wigram V.C. in Henderson v. Henderson (1843) 3 Hare, at p 115 (67 ER, at p 319) . The Vice-Chancellor expressed the principle in these terms: "where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time." (at p598) … 36. In these cases in applying the Henderson v. Henderson principle to a plaintiff said to be estopped from bringing a new action by reason of the dismissal of an earlier action, Somervell L.J. and Lord Wilberforce insisted that the issue in question was so clearly part of the subject matter of the initial litigation and so clearly could have been raised that it would be an abuse of process to allow a new proceeding. Even then the abuse of process test is not one of great utility. And its utility is no more evident when it is applied to a plaintiff's new proceeding which is said to be estopped because the plaintiff omitted to plead a defence in an earlier action. 37. In this situation we would prefer to say that there will be no estoppel unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it. Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff's claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding. In this respect, we need to recall that there are a variety of circumstances, some referred to in the earlier cases, why a party may justifiably refrain from litigating an issue in one proceeding yet wish to litigate the issue in other proceedings e.g. expense, importance of the particular issue, motives extraneous to the actual litigation, to mention but a few. See the illustrations given in Cromwell v. County of Sac. (1876) 94 US (24 Law Ed, at p 199). [my emphasis] 38. It has generally been accepted that a party will be estopped from bringing an action which, if it succeeds, will result in a judgment which conflicts with an earlier judgment. In this respect the discussion in Brewer v. Brewer [1953] HCA 19; (1953) 88 CLR 1 is illuminating.
2. Mr Buckley submitted that the principles in Anshun had the effect that the Council "should have brought forward its entire case at the time in which it issued the Suspension".
3. There is nothing in the principles in Anshun that speaks to the relative timing for the taking of action by the Council under Chapter 3, s 82(1)(d), and under Chapter 5 of the Uniform Law.
4. In order for there to be Anshun estoppel in relation to the Application, the Council would have to be relying on a defence in the action in the Tribunal which was so relevant to the subject matter of the Supreme Court proceedings that it would have been unreasonable for the Council not to have relied upon it in those proceedings. However, the Council is the applicant in the Tribunal, so it is not in a position where the raising of a defence by it can arise. Mr Buckley is the respondent.
5. It is clear from both the scheme of the Uniform Law and the Supreme Court judgment that the Council could not have sought factual findings in the Supreme Court proceedings in relation to the allegations regarding Mr Buckley's conduct which are set out in Grounds 1 to 4 and 6 to 9 in the Application. As I have said, Ward CJ in Eq made that clear in the Supreme Court judgment (see [27], above). Mr Buckley asserts in the 'preliminary issues', 1.d, (see [10], above) that the Supreme Court proceedings "dealt with the question of whether the Respondent was unable to fulfil the inherent requirements of an Australian legal practitioner". However, that was not an issue which fell to be decided in the Supreme Court proceedings.
6. The Application is not affected by Anshun estoppel.

Section 97 of the Uniform Law

1. I have set out s 97 of the Uniform Law at [15], above, but I will repeat it here: 97 Relationship of this Part with Chapter 5 (1) Nothing in this Part prevents a matter to which this Part relates from being dealt with under Chapter 5, whether or not it is being, or has already been, dealt with under this Part. (2) Without limitation, a matter to which this Part relates may be made the subject of a complaint and dealt with under Chapter 5 even if adverse action has been taken under this Part against the Australian legal practitioner or Australian-registered foreign lawyer concerned.
2. The Council suspended Mr Buckley's practising certificate under s 82(1)(d) of the Uniform Law, which is in Chapter 3, Part 3.5 of the Uniform Law. Section 97 is also in Chapter 3, Part 3.5 of the Uniform Law. The words 'this Part' in s 97(1) therefore refer to Chapter 3, Part 3.5 of the Uniform Law.
3. The Application is brought in the Tribunal under Chapter 5 of the Uniform Law.
4. As I have indicated above, the Uniform Law provides for the Council to be the decision maker in relation to s 82 of the Uniform Law, and for the Tribunal to be the decision maker in relation to orders sought under s 301, which is in Chapter 5, part 5.4, Division 3 of the Uniform Law (see [13] and [17] above).
5. Section 97 of the Uniform Law makes it abundantly clear that a matter which has been subject to action under s 82, which is in Chapter 3 Part 3.5 may subsequently also be dealt with under Chapter 5.
6. Mr Buckley asserted, in the 'preliminary issues' at 1.c, and in submissions, that the suspension of his practising certificate by the Council "had the same disciplinary effect as an order otherwise made under s 302(1)(h)" of the Uniform Law. This submission finds no support in the Uniform Law, which clearly sets out two separate and different processes, with different decision makers, and provides, in s 97, that both processes may take place, either at overlapping times, or at successive times, with the action under Chapter 5 being the second process.
7. The operation of s 97 of the Uniform Law alone is a sufficient reason to reject the preliminary issues raised by Mr Buckley.

Conclusion

1. The circumstances of this matter do not give rise to a 'principle of finality' which prevents the Application from proceeding in the Tribunal or otherwise deprives the Tribunal of jurisdiction.
2. For the reasons set out above, I reject the contention that res judicata estoppel, issue estoppel or Anshun estoppel are present in the circumstances of the Application before the Tribunal.
3. I make the following orders: 1. The application made by the respondent in his Reply, filed on 22 May 2023, under the heading "Preliminary issues to be determined", for the Tribunal to decline jurisdiction, is dismissed. 2. The matter is listed for a directions hearing on 7 February 2024 at 9:40am via AVL.

---

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: 07 December 2023