Council of the Law Society of New South Wales v Taylor

THE SUBMISSIONS OF THE RESPONDENT

1. The respondent provided, at the hearing, a document which was marked as A7. The document was titled "Respondent's Roadmap". It contained 5 items as follows: 1. Onus. 2. Did the Applicant (the Society) make a complaint at all? 3. If a complaint exists, are the other legislative requirements satisfied? Other jurisdictional issues arising re investigation? 4. Legislative amendments since 14 November 2019. 5. Necessity for proof/formalise evidentiary position.
2. Although the document marked A7 outlined the case the respondent was arguing, we do not hold her to that document to the extent her detailed submissions might be seen to depart from it.
3. The respondent set out in the document identified as A5 her submissions as to "Jurisdictional Questions". The submissions were filed on 30 October 2019. We now address those submissions.

Submissions in Respondent's Document A5

1. The respondent in her introduction submits that if her case is accepted then the Tribunal would find it lacks jurisdiction to deal with the Law Society application and therefore the application should be dismissed.
2. The submission addresses questions posed by the respondent. The first question addressed is as follows:

Did the Law Society Council make a complaint under: (i) The Legal Profession Act 2004 (NSW) ("the Legal Profession Act, 2004); or (ii) the Legal Professional Uniform Law (NSW) (the Uniform Law)?

1. The respondent, by way of preamble to the submission made in relation to the above question, asserted that the Law Society holds the clear onus to establish the Tribunal has jurisdiction to hear the application brought in this case (we discuss that submission later in these reasons). The respondent then sets out a critical analysis of what she sees as the case presented by the Law Society. We note that criticism, however, we will consider the case brought by the Law Society and its submission in relation to same, later in these reasons.
2. We now move to outline the submission of the respondent under the heading set out above.
3. The respondent says that regardless of whether the proceeding brought by the Law Society is brought under the Legal Profession Act, 2004 or the Uniform Law, for the Tribunal to be able to exercise the requisite jurisdiction the Law Society must first establish there was a "complaint" contained within a written document containing "specific information" (this is the respondent's term not words found in the Legal Profession Act, 2004.)
4. The respondent refers the Tribunal to sub-sections 504(2) and 504(3) of the Legal Profession Act, 2004.
5. Section 504 of the Legal Profession Act, 2004 is as follows: 504 Making of complaints (1) A complaint about an Australian legal practitioner may be made by: (a) a client of the practitioner, or (b) a Council, or (c) the Commissioner, or (d) any other person. (2) A complaint must be in writing. (3) A complaint must: (a) identify the complainant, and (b) identify the Australian legal practitioner about whom the complaint is made or, if it is not possible to do so, identify the law practice concerned, and (c) describe the alleged conduct the subject of the complaint. (4) This section does not affect any other right of a person to complain about the conduct of an Australian legal practitioner.
6. Section 504(5) requires the Council to ensure that the complainant is notified in writing of the receipt of a complaint.
7. The respondent then submits that s 508 requires further, the Australian legal practitioner, is to be notified and provided with a copy of the complaint, and informed of his/her right to make submissions within a specified period. There are exceptions which are set out in the body of the section.
8. Section 508 of the Legal Profession Act, 2004 is as follows: 508 Practitioner to be notified of complaint (1) The Commissioner, or the Council by which a complaint is made or to which a complaint is referred for investigation, is to ensure that as soon as practicable after the complaint is made the Australian legal practitioner about whom the complaint is made is given: (a) a copy of the complaint, and (b) a notice in writing informing the practitioner of the practitioner's right to make submissions to the Commissioner or Council and specifying the period within which submissions must be made, unless the Commissioner or Council advises the practitioner that the Commissioner or Council has dismissed or intends to dismiss the complaint. (2) Subsection (1) does not apply if the complaint is dismissed under section 511 (Summary dismissal of complaints). (3) Subsection (1) does not apply if the Commissioner, after such consultation with the relevant Council as the Commissioner thinks appropriate in the circumstances, is of the opinion that the giving of the notice will or is likely to: (a) prejudice the investigation of the complaint, or (b) prejudice an investigation by the police or other investigatory or law enforcement body of any matter with which the complaint is concerned, or (c) place the complainant or another person at risk of intimidation or harassment, or (d) prejudice pending court proceedings. (4) In a case in which subsection (3) applies, the Commissioner, or the Council by which a complaint is made or to which a complaint is referred for investigation: (a) may postpone giving the practitioner a copy of the complaint and notice about making submissions, until of the opinion that it is appropriate to do so, or (b) may at their discretion: (i) notify the practitioner of the general nature of the complaint, and (ii) inform the practitioner of the practitioner's right to make submissions to the Commissioner or Council, specifying the period within which submissions must be made, if of the opinion that the practitioner has sufficient information to make submissions. (5) Nothing in this section requires the Commissioner or a Council to give written notice under this section to the practitioner until the Commissioner or Council has had time to consider the complaint, seek further information about the complaint from the complainant or otherwise undertake preliminary inquiries into the complaint, and properly prepare the notice.
9. It is the respondent's case that she has never been provided with a copy of "the complaint" against her.
10. The respondent asserts the evidence before the Tribunal demonstrates the complaint, if it exists at all, came into existence later than 30 June 2015. If that is so then the Legal Profession Act, 2004 ceases to have effect and the Uniform Law is the relevant legislation which would apply to the respondent.
11. The respondent relies upon the evidence in exhibit BRW-1 at page 1 (see exhibit A2), a statement contained in the Law Society document that "the complaint was opened on 2 July 2015". Pausing there, it is instructive to read the portion of the letter which is set out in BRW-1. The document is also contained in the evidence attached to the affidavit of Ms Haddad. It is a copy of the letter sent by Ms Natuba, Administrative Assistant, Professional Standards to Mr J McKenzie, Legal Services Commission and is dated 2 July 2015. Professional Standards is not the Council of the Law Society rather it is a "department" within the Law Society. The wording of the letter upon which the respondent relies names the respondent and then states as follows: "On 2 July 2015, the above complaint was opened by the Professional Standards Department. Any enquiries should be directed to the legal officer handling this matter, Emma Essey. The primary complaint diagnosed is: BREACH s.255(TRUST MONEY) (LEGAL PROFESSION ACT , 2004)" We will consider this document and its meaning later in these reasons.
12. The respondent relies on the evidence in exhibit BRW-1 page 47(see exhibit A2), which she submits, asserts in a letter dated 2 July 2015 from the Law Society to the Commissioner about the "Law Society Initiated Complaints" and acknowledged receipt of same, by the Legal Services Commissioner, on 3 July 2015, supports her submission that the investigation of the complaint commenced after 1 July 2015. Further the respondent relies upon the Law Society letter to the Commissioner dated 19 December 2017 which she submitted explains that the complaint or investigation, was initiated on 2 July 2015. See exhibit BRW-1 at page 48 (part of exhibit A2).
13. The respondent submits it is a belated claim of the Law Society, that the resolution, passed by the Council on 30 June 2015, "effected" or became "the complaint" for the purpose of the Legal Profession Act, 2004 and such a claim, is not supported by the evidence referred to above.
14. The respondent submits the wording of the resolution itself contemplates a further step to bring about the complaint. The use of the words "that a complaint be made" demonstrate such a contemplated process she submits.
15. If the above is found by the Tribunal to be established, then it is submitted the Tribunal would find the answer to the question posed above, is "no" and consequently the Tribunal would dismiss the proceeding for want of jurisdiction.
16. Before considering the balance of the questions posed by the respondent, we propose to set out the submission of the Law Society which will help us understand the steps taken by the Law Society in commencing the proceedings and to determine if the Law Society made a complaint as required by s 504 of the Legal Profession Act, 2004.

THE LAW SOCIETY'S SUBMISSIONS

1. The Law Society provided its answer to the submission of the respondent, in a document filed on 6 November 2019 and identified as R6 in the proceeding.
2. The Law Society submits that on 30 June 2015 it made a complaint against the respondent, within the requirements of s 504(1)(b) of the Legal Profession Act, 2004, by passing a resolution in the following terms: "FURTHER RESOLVED that pursuant to the provisions of Section 504 of the Legal Profession Act, 2004 [the Act], the following complaint be made against Erica Brooke Taylor [the Solicitor]: The Solicitor has wilfully breached sections 255, 260, 262 and 264 of the Legal Profession Act, 2004. The Solicitor has misappropriated trust funds."
3. The Law Society submits the complaint was in writing, as required by s 504(2) of the Legal Profession Act, 2004. It further submitted the complaint satisfied the requirements of s 504(3) of the Legal Profession Act, 2004.
4. The Law Society submits that as a result of those actions, together with the terms of s 551(1) of the Legal Profession Act, 2004, the Tribunal has jurisdiction to hear the matter.
5. The Law Society submits that contrary to the respondent's current position in relation to the complaint, she has accepted, in submission to the Law Society on 5 January 2018 that the Law Society had made a complaint against her on 30 June 2015, such complaint being made pursuant to s 504 of the Legal Profession Act, 2004.
6. Even if such an acknowledgment had been made we consider that the parties, in agreement, cannot invest the Tribunal with jurisdiction if, in fact, it does not have jurisdiction because of a failing to comply with the legislative requirements which would be required to enable the jurisdiction. Ultimately, the action of the respondent in apparently accepting the Law Society had made a complaint against her pursuant to the Legal Profession Act, 2004 and then later challenging that concession, may be a matter to be taken into account when the Tribunal comes to consider the question of costs of the proceeding which each of the parties have put as an issue to be determined.
7. The Law Society submits the evidence provided to the Tribunal illustrates the respondent was provided with a copy of the complaint "on multiple occasions" thus complying with s 508(1)(a) of the Legal Profession Act, 2004. It further submits: "there was at least purported compliance with the requirement in s.505(3) to provide a copy of the complaint to the Legal Services Commissioner. To the extent that there was non-compliance with s505(3), that is of no consequence to the validity of the complaint. Alternatively, any non -compliance is to be disregarded, pursuant to s 561(1) of Legal Profession Act, 2004."
8. The Law Society relied upon the evidence of Nadya Haddad contained in her affidavits marked as exhibits R4 and R5.
9. The Law Society in its submission set out some background facts which, to the extent it alleges admitted misappropriation of trust monies, are largely irrelevant as the Tribunal is not hearing the merits of the Application brought by the Law Society, as above set out, rather the issue to be determined is a prerequisite to that exercise.
10. There is no issue that on 30 June 2015, the day the Law Society passed a resolution, Ms Taylor was a legal practitioner practising in the State of NSW. There is no issue that immediately prior to that date she held a Practising Certificate issued by the Law Society and was entitled to practise as that certificate permitted.
11. There is no issue that on 30 June 2015 the Council of the Law Society passed a resolution which in part is detailed earlier in these reasons. A full copy of the resolution passed on that day and which affected the respondent, is set out at pages 539 and 540 of NJH-3 being annexures to the affidavit of Ms Haddad marked as exhibit R5. The respondent does challenge whether a document evidencing the resolution or part of same can be admitted as evidence. We address that argument later in these reasons.
12. At page 534 of NJH-3 (exhibit R5) Ms Haddad provided the respondent with a copy of the resolution passed by the Law Society on 30 June 2015. In providing the copy of that resolution to the respondent's solicitor on 26 July 2019, Ms Haddad stated the action brought against the respondent is brought pursuant to the Legal Profession Act, 2004 and not the Uniform Law. She further stated: "I note that, in accordance with its obligations, the Society has provided your client (the respondent) with copies of documents it relies on, including resolutions it has passed that concern your client, and it has provided detailed particulars of the allegations made against your client."
13. The Law Society in its submission detailed the history leading to the filing of the application in this Tribunal on 14 May 2019. Again that history identifies matters which go both to the question of jurisdiction and to matters which impact upon the application brought by the Law Society on 14 May 2019.
14. The Law Society has reproduced that part of the resolution made 30 June 2015, which it says establishes it constituted a "complaint" for the purpose of s 504(2) and s 504(3) of the Legal Profession Act, 2004. Particular portions of the resolution were underlined to emphasise how the Law Society says those sections were satisfied. In order to illustrate, that which the Law Society asserts, we here repeat the resolution with the underlining shown by the Law Society in its submission: "RESOLVED that Council deal with this matter on an urgent basis. FURTHER RESOLVED that pursuant to the provisions of Section 504 of the Legal Profession Act 2004 [the Act], the following complaint be made against Erica Brooke Taylor [the Solicitor]: The Solicitor has wilfully breached sections 255, 260, 262 and 264 of the Legal Profession Act 2004. The Solicitor has misappropriated trust funds. FURTHER RESOLVED that, pursuant to the provisions of section 548 of the Act, the Council considers that it is necessary in the public interest to immediately suspend the local practicing certificate of the Solicitor on the ground of the seriousness of the conduct in respect of which complaints have been made against the Solicitor and determines to immediately suspend the local Practicing Certificate of the Solicitor."
15. We have determined the resolution, as set out above, is admissible as evidence before the Tribunal as will be seen later in these reasons. The Law Society submits that pursuant to s 504(1)(b) of the Legal Profession Act, 2004 the Law Society made a complaint against the respondent on 30 June 2015 when it passed the resolution we have set out above.
16. In further support of its submission that it had pre-warned the respondent as to the way in which a complaint would be made, the Law Society relies upon a "show cause letter" dated 25 June 2015 which had been sent to the respondent. A copy of the letter is attached to the affidavit of Ms Haddad exhibit R4 at NJH Tab 1 page 1.
17. The letter of 25 June 2015 is addressed to the respondent. It is on a letterhead signifying the writer represents or writes on behalf of "Professional Standards, The Law Society of New South Wales." The letter is signed by Anne-Marie Foord, Manager, Professional Standards. The letter advises that there is enclosed, a copy of a report of Mr Connor dated 23 June 2015. It points out the report notes a "number of serious matters relating to your dealings with trust funds." It then states as follows: "As a result of Mr Connor's report, the Council of the Society will be asked to consider passing resolutions to give effect to the following: 1. The making of the following complaints against you: • The Solicitor has wilfully breached Sectionms 255, 260, 262 and 264 of the Legal Profession Act, 2004. • The Solicitor has misappropriated trust funds. 2. Immediately suspending your Practising Certificate [see section 548 of the Legal Profession Act 2004]; and 3. Appointing a Manager to your Law Practice."
18. The letter invited the respondent "to make such submissions as you may wish the Council to consider on the above proposed resolutions and/or any other matters which you believe would assist Council in considering the matters raised in Mr Connor's report." The respondent was requested to have her submissions delivered to the Council by 3.00pm on 29 June 2015. She was informed "The Council will meet the following day when it will consider the matters raised in Mr Connor's report and the above proposed resolutions."
19. The Law Society relies on the response to the above referred to letter. The respondent wrote to Ms Anne-Marie Foord on 29 June 2015 responding to her letter of 25 June 2015. In that letter (NJH-1 Tab 1 page 3) the respondent said "I set out below my submissions with respect to the findings of Mr Connor in his report dated 23 June 2015 (Report)."
20. Under the heading "Operation of the Trust Account" the respondent wrote as follows: "I acknowledge and take full responsibility of my actions in relation to the operation of my trust account. I am deeply ashamed of my conduct and sincerely remorseful for what has happened. I realise that my conduct in dealing with my trust account is a serious breach of my professional obligations"
21. Although the above quote may go to the merits of the complaint sought to be prosecuted by the Law Society against the respondent, it is also a matter which we can take note of because it demonstrates that on 29 June 2015, the day before the resolution relied upon by the Law Society was passed, the respondent well knew what had occurred with her trust account, which could be the subject of a complaint to be made by the Law Society Council in meeting the following day.
22. In the balance of the letter from the respondent to Ms Foord, dated 29 June 2015, the respondent said, inter alia: "I made withdrawals from the trust account to fund shortfalls in cashflow, rectifying the deficits when the funds were required to be paid out pursuant to directions by clients, or prior to trust account inspections." This demonstrates to us that the respondent knew what the Law Society was concerned about. That she knew it was a serious breach of her obligations as a solicitor and that she understood the Law Society would be considering, inter alia, the making of a complaint against her and the suspension of her practicing certificate. The last point is manifest in the words of the respondent when she said "I believe it would be in the best interests of my clients, and in the public interest, to allow me to continue to practice as a lawyer."
23. On page 7 of her letter to Ms Foord, the respondent set out a heading "Resolutions to be considered by the Council". Under that heading the respondent said: "I accept that I have by my own actions now caused myself to be in a position where the Council will be asked to consider passing the resolutions set out in your letter… I accept that complaints should be made against me in respect of my operation of the trust account as set out in your letter. If passed the immediate suspension of my practicing certificate and winding up of my practice would be, in a word, devastating."
24. The respondent concludes her detailed 8 page submission with "I thank you for the opportunity to make these submissions." The submission is very detailed and there is no suggestion it was rushed. No additional time was sought by the respondent to prepare her submission. The personal detail contained in the submission portrays a sad picture of a hard working sole practitioner, who was clearly well regarded within her profession and was delivering the services sought of her by her clients.
25. The knowledge of the respondent as to what the Law Society Council would consider in relation to resolutions, which might be made on 30 June 2015, is not directly addressing the legal argument of the respondent as to whether the resolution which was passed, was "a complaint." However, should it be necessary to exercise a discretion (as required by s 561 of the Legal Profession Act, 2004, or otherwise) in the event of the respondent convincing us that the resolution relied upon by the Law Society was not a "complaint" for the purpose of s 504 of the Legal Profession Act, 2004, then it seems to us that matters such as the knowledge of the respondent about the concerns of the Law Society in relation to her operating her trust account prior to 30 June 2015, may be relevant to that exercise.
26. The Law Society argues that the words "that a complaint be made" do not contemplate any further step. It submits the dictionary meaning of the word "be" (both Macquarie and Shorter Oxford quoted) is that it is a verb and used in its present tense has the meaning of "is". Consequently the Law Society submits the subject resolution can be read as "the following complaint is made against Erica Brooke Taylor".
27. As if to reinforce that interpretation, the Law Society submits the third resolution made on 30 June 2015, forming part of the group of resolutions passed in relation to the respondent on 30 June 2015, contains the following words "on the ground of the seriousness of the conduct in respect of which complaints have been made against the Solicitor". The Law Society says those words clearly reference the second resolution and establish the Law Society Council considered it had made complaints by passing the second resolution.
28. The Law Society submission goes further. It says that the respondent's argument that another document should have issued following the passing of the resolution on 30 June 2015, which would be titled "Complaint," would require the resolution to use the words "is to" before the words "be made" in the second resolution.
29. In a further submission the Law Society argues that this resolution was passed on the eve of the commencement of the operation of the Uniform Law. It says: "it would have been nonsensical for the Society to pass a resolution that contemplates that some other step be taken to make a complaint under s 504 of the Legal Profession Act, 2004, at some future point in time, knowing that Sch 4 to the Uniform Law requires that complaints made after 30 June 2015 be dealt with under that Act."
30. The Law Society submits the Tribunal should find that it made a complaint against the respondent, within s 504(1), in terms of the second resolution passed on 30 June 2015.
31. In further submission the Law Society says there have been proceedings brought by the Law Society under the Legal Profession Act, 2004 in the Supreme Court of NSW, where the complaint moved upon, was created by a resolution of the Council of the Law Society and where no finding has been made about lack of jurisdiction. Two cases are cited: Helby v Council for the Law Society of New South Wales and Anor [2013] NSWSC 1938; The Law Society of New South Wales v William Daniel Clapin [2007] NSWSC 1096. The submission acknowledges that the point raised by the respondent, in this matter, was not argued in either of the above cited cases.
32. The Law Society submits that although s 504(2) states that a complaint "must be in writing" the section does not stipulate any particular writing or document. It is submitted in the subject case the complaint was in writing.
33. On 2 July 2015 Miliana Natuba, Administrative Assistant, Professional Standards, wrote to Mr J McKenzie, Legal Services Commissioner. A copy of that letter is contained at TAB 3 of NJH-1 of exhibit R4. That letter is short and is worth setting out here, in full, because of the issue raised by the respondent. "Dear Commissioner Law Society c/a Erica Brooke Taylor, solicitor On 2 July 2015, the above complaint was opened by Professional Standards Department. Any enquiries should be directed to the legal officer handling this matter, Emma Essey. The primary complaint diagnosed is: BREACH s.255 (TRUST MONEY) (LEGAL PROFESSION ACT, 2004) Other complaint diagnosed is: N/A I would be grateful if you could activate your reference and advise me in due course. Yours faithfully, MILANA NATUBA Administrative Assistant Professional Standards."
34. A reply to the above letter was sent by the Legal Services Commissioner dated 3 July 2015. It was addressed to Ms Anne-Marie Foord, Manager, Professional Standards Department, Law Society of New South Wales. This response is short and again it is helpful to repeat the document here. "Our Reference: Law Society Initiated Complaints. Contact: Lynda Muston. 3 July 2015 Dear Ms Foord, Law Society Initiated Complaints I refer to your complaints received in this office on 3 July 2015 and advise that these complaints were opened in our office and allocated reference numbers listed below. Law Society File No: 41530 OLSC File No: 46834. Lawyer: Erica Brooke Taylor. Further enquiries regarding these complaints should be referred to Ms Lynda Muston on 9377-1831. Yours sincerely, Signed for John McKenzie, Commissioner." (See TAB 4 NJH-1 exhibit R4)
35. On 5 January 2016 the Law Society sent a letter to the respondent. A copy of that letter is contained at TAB 5 of NJH-1 exhibit R4. This letter contained, inter alia, the following: "I refer to the Society's letter of 25 June 2015 in which you were notified that the Council of the Law Society of New South Wales would be asked to pass resolutions to give effect to the making of the following two complaints against you: 1. The Solicitor has wilfully breached Sections 255, 260, 262 and 264 of the Legal Profession Act, 2004. 2. The Solicitor has misappropriated trust funds. I confirm that at its' meeting on 30 June 2015, the Council resolved to make the above two (2) complaints against you under section 504 of the Legal Profession Act, 2004. As you are aware, the complaints arise from the report dated 23 June 2015 made by Mr Gavin Connor pursuant to section 270 of the Legal Profession Act, 2004 (a copy of which under cover of the Society's letter of 25 June 2015). I note that by letter of 29 June 2015, you responded to the Society's letter of 25 June 2015 and made written submissions with respect to the findings in Mr Connors report. To enable the Professional Conduct Committee to fairly consider the complaints, you must provide me with your written response to the complaints by no later than 2 March 2016. You should include copies of any documents which may support your account. If the Society is to treat your letter of 29 June 2015 as your response (or part thereof) to the complaints, would you please confirm this in writing."
36. The letter also enclosed brochures entitled "Senior Solicitors Scheme" and "Complaints Process Information". Copies of those documents were not included in the evidence filed by the Law Society and a request from the Tribunal that the documents be provided was answered by letter from the Law Society advising that the documents were no longer available.
37. It seems to us that the content of the last-mentioned letter makes clear that the Law Society regarded the passing of the resolutions relating to the respondent on 30 June 2015 as "giving effect to" the making of the complaints against the respondent. The Council of the Law Society, as stated in the letter, understood it had resolved to make the stated complaints against the respondent under s 504 of the Legal Profession Act, 2004. The position of the Law Society is clearly that the passing of the resolution created the complaint, as it was entitled to do, as a Council, pursuant to s 504(1)(b) of the Legal Profession Act, 2004.
38. The respondent did choose to provide a response to the complaint as she was invited to do so in the letter to her of 5 January 2015 (sic). A copy of her response is contained in the evidence at TAB 6 of NJH-1 exhibit R4. The response was provided under cover of letter dated 2 March 2016.
39. In her response Ms Taylor stated she was responding to the letter from the Law Society dated 5 January 2015 (sic). She advised "I have now had an opportunity to get legal advice and properly reflect on what it is I would like to say" (emphasis added). She said: "In no way am I seeking to excuse my behaviour and my breach of my professional and ethical obligations. I am merely wishing to put forward an explanation as to what happened with the trust monies I held on behalf of my clients."
40. In relation to the last quote from the "Response" the respondent provided to the Law Society, we include it not to show a concession to the Complaint which the Law Society has filed in the Tribunal, rather, we include it to show that at that time, having received legal advice, the respondent did not make any challenge to the Law Society's process in dealing with the complaint made against her. Again, this is a matter which may impact upon the exercise of a discretion which the Tribunal may be required to exercise either pursuant to section 561 of the Legal Profession Act, 2004 or otherwise.
41. In the body of her submission, we have noted that the respondent accepted her Local Practising Certificate, for the year ended 30 June 2015, had been suspended by the Law Society in one of the resolutions passed on 30 June 2015. However, prior to that date the respondent had in fact been provided with her Local Practising Certificate for the year ended 30 June 2016. She was unsure whether that certificate remained as effective and permitted her to practise as a solicitor. It seems that she did not seek to practise as a solicitor after 30 June 2015, rather she obtained employment with another solicitor as a paralegal. She sought and obtained approval for her to be employed in that capacity, albeit that the Law Society advised her employer did not need its approval to employ her as a paralegal.
42. At paragraph 98 of her submission to the Law Society, the respondent set out the following: "98. I understand that in disciplining solicitors' conduct the Law Society is exercising a protective power. That is, that the protection of the public, including clients, as well as other legal practitioners. 99. The question to be determined is fitness to practice."
43. The above quoted portion of the respondent's response document makes clear she had a good understanding of what the Law Society was undertaking and the manner in which it was conducting same, following the report of Mr Connor into the defalcation he alleged was evident in the Trust account conducted by the respondent.
44. On or about 10 June 2016 the respondent applied for a practising certificate for the 2016/2017 practising year. As a result of a letter in response from the Law Society the respondent provided a very detailed submission dated 3 August 2016. That submission referred the Law Society to a number of decisions of the NSW Court of Appeal. The wording of the submission suggests it was made by the respondent after significant research of the relevant authorities and legislation, or alternatively, it was written by a lawyer engaged by the respondent. Again, we note in that submission there is no suggestion that the Law Society had departed from the requirements of the Legal Profession Act, 2004 when it dealt with the respondent.
45. On 5 January 2018 the respondent provided further submissions to the Law Society. These submissions addressed the Law Society's continued consideration of the complaint the Law Society submits was made on 30 June 2015. The respondent's understanding of that was evident in the following extract from that submission: "The Proceedings The Proceedings concerned an appeal, commenced by way of summons, from a decision of the Council of the Law Society of NSW (the "Council") to consider my application for, and subsequently refuse the grant of, a local practising certificate for the year ending 30 June 2017 (the "Application"). The Council's decision was based on complaints made against me by the Council under s 504 of the Legal Profession Act, 2004 (now repealed) (the "2004 Act") with regard to: (a) Wilful breaches of ss 255,260, 262 and 264 of the 2004 Act; and (b) The misappropriation of trust funds (the "Complaints"). The appeal was brought pursuant to s 100(1) of the Legal Profession Uniform Law (NSW) (the "LPUL")"
46. The above quote illustrates to us that as at 5 January 2018 the respondent understood, that the Council of the Law Society were the complainants against her in relation to the "wilful breaches" and "misappropriation of trust funds" under the Legal Profession Act, 2004. The fact of clear knowledge and understanding of the complaint, which the Council of the Law Society made against the respondent in its resolution of 30 June 2015, is another matter which might be relevant to the exercise of a discretion under s 561 of the Legal Profession Act, 2004, or otherwise, should it ultimately be necessary to have regard to that section.
47. On 12 January 2018 the respondent provided a "Supplementary Further Submission" to the Law Society. Again, in that document she said the following: "The Complaints 1. The Complaints the subject of the Law Society's investigation are: (a) That I wilfully breached ss 255, 260, 262 and 264 of the Legal Profession Act, 2004; and (b) That I misappropriated trust funds."
48. On 17 August 2018 the Law Society wrote to the respondent setting out a copy of the resolution which the Council had passed on 16 August 2018. That resolution was in relation to the respondent and required that she be informed that consideration was to be given to proceedings being instituted in the Tribunal in respect of the complaint, pursuant to s 537(2) of the Legal Profession Act, 2004. The resolution set out the orders which the Council considered should be sought in the Tribunal, subject to any submission the respondent might wish to make. Further it resolved that the "whole of the Professional Conduct Committee" was to consider the complaint after the expiration of 14 days from the date of the letter notifying the respondent of the resolutions.
49. We note this is the resolution which the respondent submits resolved that the Law Society was to commence proceedings in the Tribunal against the respondent. The terms of this resolution are quite different to the resolution of the Law Society made 15 November 2018 which we refer to in these reasons and which we are satisfied is the resolution which required the institution of proceedings in the Tribunal. We conclude the resolution of 16 August 2018 was the preliminary step towards the making of the resolution on 15 November 2018 which was the final determination to commence proceeddings in the Tribunal.
50. The letter to the respondent invited any further submission by 31 August 2018 (see TAB 15 NJH-1 exhibit R4).
51. The respondent wrote to the Law Society on 31 August 2018 (see TAB 16 NJH-1 exhibit R4). She sent a letter by email and post. The letter responded to the letter she received from the Law Society which was dated 17 August 2018. In her letter the respondent asked the following: "So that I might properly understand and consider the Committee's opinion and the matters in support of the allegations of professional misconduct and seek appropriate advice concerning next steps, please furnish me with the following: 1. A copy of the complaint identified in paragraph 1; 2. Particulars of 'the issues of professional misconduct' referred to in paragraph 1 (unless they are those identified in paragraph 2); 3. Particulars of the conduct relied upon in support of each of the allegations; and 4. The grounds upon which the Committee holds the opinion that I have wilfully breached each of sections 255, 260, 262 and 264 of the Legal Profession Act, 2004."
52. The letter sought other information, detail and particulars.
53. The resolution of 16 August 2018 is set out in paragraph 25 of the affidavit of Ms Haddad sworn 14 May 2019 (exhibit R4). Importantly she recites that the resolution is that of "a sub-Committee of the Professional Conduct Committee" (our emphasis added). The importance of knowing the resolution was that of a sub-committee is highlighted in resolution 4 made that day and which we set out below.
54. Paragraph 1 of the resolution of 16 August 2018, about which the respondent sought a "copy of the complaint", is set out in the letter to the respondent of 17 August 2018 and is worded as follows: "RESOLVED that ERICA BROOKE TAYLOR (the Australian Lawyer) be informed of: 1. The issues of professional misconduct which, in the opinion of the Committee, are involved in the complaint and in respect of which the Committee invites submissions within 14 days of the date of the letter notifying the Australian lawyer of these resolutions; and 2. The Committee's opinion that, subject to any submissions, it should resolve that it is satisfied there is a reasonable likelihood the Australian lawyer will be found by the Tribunal to have engaged in professional misconduct and that proceedings be instituted in the Tribunal with respect to the complaint pursuant to Section 537(2) of the Legal Profession Act, 2004."
55. The resolution then set out the professional misconduct detail and the committee's opinion about appropriate orders which could be sought subject to any submissions. It is important to note the final paragraph of the resolution which is as follows: "4. Consideration of this complaint is to be placed on the agenda of the whole of the Professional Conduct Committee after the expiration of 14 days from the date of the letter notifying the Australia lawyer of these resolutions." (Our emphasis added)
56. The request from the respondent to the Law Society, as above set out, at first seems somewhat extraordinary given all that had been submitted by her to the Society at earlier times and which has been set out in these reasons. However, the letter of 17 August 2018 from the Law Society to the respondent did not provide the information which the resolution required. That was clearly an oversight by the writer of the letter of 17 August 2018 which was remedied by letter dated 6 September 2018 (see TAB 17 NJH-1 exhibit R4). That letter clearly set out that the complaint referred to in the resolution of 16 August 2018 was that made in the resolution of the Law Society Council of 30 June 2015. The particular resolution was again set out in the letter of 6 September 2018. The letter clearly stated that the only allegations made against the respondent are those set out in the resolution of 30 June 2015. The letter provided answers to the balance of the questions asked by the respondent in her letter of 30 August 2018.
57. As set out in paragraph 30 of the affidavit of Ms Haddad (exhibit R4), the Professional Conduct Committee (PCC), passed a resolution on 15 November 2018. That resolution is set out in two parts. The first part is the resolution which was passed and the second part provides "Reasons for Decision". The resolution differs from that made 16 August 2018 in two important area's. Firstly it was a resolution of the whole Committee and not of a sub-Committee. Secondly it provided for no further submission from the respondent. This is clearly the final determination of the investigation of the complaint made on 30 June 2015.
58. The wording of the resolution, as set out in paragraph 30 of Ms Haddad's affidavit, as aforementioned is as follows: "RESOLVED that the Committee is satisfied there is a reasonable likelihood ERICA BROOKE TAYLOR (MN: 35651) (the Australian lawyer) will be found by the Tribunal to have engaged in professional misconduct and that proceedings be instituted in the Tribunal pursuant to Sect 537(2) of the Legal Profession Act, 2004. Professional Misconduct 1. The Solicitor has wilfully breached Sections 255, 260, 262, and 264 of the Legal Profession Act, 2004. 2. The Solicitor has misappropriated trust funds. Orders to be sought 1. The Australia lawyer's name be removed from the Roll. 2. The Australia lawyer pay the costs of the Law Society as agreed or as assessed. 3. Any further or other order the Tribunal deems fit."
59. The resolution document then sets out under the heading "Reasons for Decision" a lengthy set of reasons as to why the PCC had concluded it was necessary and appropriate to resolve as it had done. There are 13 pages of reasons given. It is clear the resolution of the PCC passed on 15 November 2018 and as set out above was the final task in the long process of considering what action, if any, the Council of the Law Society through the PCC should take in relation to the complaint made by it on 30 June 2015.
60. In further support of the conclusion we have reached that the resolution of 15 November 2018 was the final step for the PCC and the resolution which authorised the filing of the Application in the Tribunal (now filed 14 May 2019) we note the content of paragraph's 31 and 32 of the affidavit of Ms Haddad (exhibit R4). Paragraph 31 states that on 23 November 2018 the respondent was notified of the PCC resolution made 15 November 2018. A copy of the letter was attached at TAB 18 of the affidavit. Paragraph 32 states that on 23 November 2018 the Law Society sent a letter to the Legal Services Commissioner "regarding the completion of the investigation of the complaint and the resolution of the PCC in respect of it." A copy of that letter was attached at Tab 19.
61. The letter to the respondent dated 23 November 2018 is succinct. It sets out the terms of the resolution passed by the PCC and encloses a copy of the reasons provided for the resolution. It does not invite any further submission from the respondent it simply advises that the Law Society "will contact you again once a Disciplinary Application has been filed with the NSW Civil and Administrative Tribunal, Occupational Division."
62. The letter of 23 November 2018 from the Law Society to the Legal Services Commissioner is also succinct. The letter heading is "Law Society complaint about Erica Brooke Taylor." It includes the following information provided to the Commissioner: "The Professional Standards Department has completed its investigation of the above complaint and reported to the Law Society's Professional Conduct Committee. That Committee has now resolved to refer Ms Erica Brooke Taylor to the Tribunal, seeking orders which include an order that Ms Taylor's name be removed from the Roll." The letter enclosed a copy of the letter to the respondent together with the reasons for the resolution. The final paragraph is as follows: "The Society has closed its complaint file. I would be grateful if you could update your records accordingly."
63. All of the above establishes to our satisfaction that the resolution of 15 November 2018 of the PCC was the determination of the Law Society Council to commence a proceeding against the respondent in this Tribunal.

DETERMINATION ON ISSUES OF: 1. Did the Law Society ever make a complaint against the respondent, capable of being a complaint under s 504 of the Legal Profession Act, 2004? 2. If so was that complaint made prior to 30 June 2015?

1. We are satisfied that the Law Society did make a complaint against the respondent on 30 June 2015 and that they did so by passing a resolution which has been set out in these reasons. Consequently, we conclude the answer to question 1 is: Yes the Law Society did make a complaint against the respondent. It was a complaint in writing, which complied with s 504 of the Legal Profession Act, 2004. The answer to question 2 is "The complaint was made on 30 June 2015." The reasons for our conclusions, as stated in this paragraph are as follows.
2. The relevant section is 504 of the Legal Profession Act, 2004. That Act was in force on 30 June 2015 however, it was no longer in force the following day. There is no issue between the parties about that fact.
3. Section 504(1)(b) permits "a Council" to make a complaint. We are satisfied that the Council of the Law Society is "a Council" for the purpose of s 504(1)(b) of the Legal Profession Act, 2004. There was no argument to the contrary proffered to us.
4. Section 504(2) requires the complaint must be in writing. We are satisfied the resolution of the Council of the Law Society was reduced to writing. So much is evident from the publication of the resolution to the respondent as has been illustrated by reference to the evidence provided by the Law Society in this hearing.
5. Section 504(3) requires the complaint must: (a) identify the complainant, and (b) identify the Australian legal practitioner about whom the complaint is made or, if it is not possible to do so, identify the law practice concerned, and (c) describe the alleged conduct the subject of the complaint.
6. The resolution which the Council of the Law Society used as a vehicle to create the complaint for the purpose of s 504, has been set out in part in these reasons. However, the respondent provided a full text of the resolution passed on 30 June 2015 as part of exhibit A4. That document is headed "RESOLUTION OF THE COUNCIL OF THE LAW SOCIETY OF NEW SOUTH WALES ON TUESDAY 30 JUNE 2015."
7. We are satisfied that the resolution of 30 June 2015, which creates the complaint against the respondent, identifies the Council of the Law Society as the complainant. We are also satisfied that the preponderance of evidence, provided under the hand of the respondent in this matter and which we have set out herein, establishes that the respondent acted with knowledge that the Council of the Law Society was the complainant.
8. In response to the submission of Ms Taylor on whether the Law Society had complied with all the preconditions to commence the proceeding in this Tribunal as it has done, the Law Society submits that where the respondent says compliance with each of the provisions of ss 504(2), 504(3), 505(3) and 508(1)(a) is required to enable the jurisdiction of the Tribunal to hear the application filed by the Law Society, should not be accepted as being "generally correct".
9. The Law Society submits that it is well established that whether a failure to comply with a statutory requirement should be taken to lead to invalidity raises an issue of statutory construction. It submitted that Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [93] stated the "test to determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid."
10. The Law Society submitted that the resolution of 30 June 2015 clearly was in writing, identified the Council as the complainant and named the respondent as the Australian legal practitioner. It set out the conduct the subject of the complaint. We note the respondent submits far more detail is necessary, in a complaint, than that set out in the Law Society Council resolution of 30 June 2015, if it is to satisfy the requirement of s 504(3)(c).
11. In so far as s 504(3)(c) is concerned the Law Society says the provision requires the complaint to describe the alleged conduct. It does not require that complaint include particulars. The Law Society submits it is sufficient for the conduct to be described in a general way. The description of "misappropriation of trust funds" as it appeared in the resolution, is sufficient the Law Society submits to satisfy s 504(3)(c).
12. In further support of its submission about s 504(3)(c) the Law Society says other wording used in the Legal Profession Act, 2004 such as "particulars" in sections within Chapter 4 (e.g. see 577(2)) demonstrated the legislature would have stated it required "particulars" of the conduct to comply with s 504(3)(c). The Law Society refers the Tribunal to the decisions in CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 and Project Blue Sky Inc at [69] and [70] generally in support of the submission.
13. The Law Society draws upon the provisions of s 495 which defines "conduct" to mean "conduct whether consisting of an act or omission". That is conduct can consist of a single "act". The Law Society says this supports the conclusion that within the statute, at least in some instances, the alleged conduct may be described succinctly.
14. The Law Society submits the Legal Profession Act, 2004 contemplates that further information about the complaint may be provided at some point after the complaint is made e.g. see s 507(a).
15. The Law Society draws on the provisions of the Legal Profession Act, 1987 (NSW) which was in force immediately before the Legal Profession Amendment (Complaints and Discipline) Act 2000 (NSW) on 14 July 2000. Section 137 of that Act required "A complaint" "must give particulars of the alleged conduct." That provision was repealed by the 2000 Act and replaced with s 136 which provided, relevantly the complaint must "(b) describe the alleged conduct of the legal practitioner the subject of the complaint."
16. The Legal Profession Act, 1987 remained in force with the 2000 amended s 136 until the Legal Profession Act, 2004 was enacted. The Law Society says that: "evidently, when enacting s 504(3)(c) of the Legal Profession Act, 2004, Parliament adopted wording which was comparable to s. 136 of the Legal Profession Act , 1987; it did not seek to revert back to the historical requirement (for particulars) in s.137 of the Legal Profession Act , 1987."
17. The Law Society submits that if the Tribunal accepts its submission then it will be satisfied the Law Society has complied with the requirements of s 504(1), (2) and (3) of the Legal Profession Act, 2004.
18. We are satisfied the complaint identifies the respondent as the Australian legal practitioner about whom the complaint is made. So much is evident in the early part of the resolution as follows: "RESOLVED that the Council deal with this matter on an urgent basis. FURTHER RESOLVED that pursuant to the provisions of Section 504 of the Legal Profession Act, 2004 [the Act] the following complaint be made against Erica Brooke Taylor [the Solicitor]"
19. We are satisfied the complaint described the alleged conduct the subject of the complaint. The complaint did so in the following words: "The Solicitor has wilfully breached Sections 255, 260, 262 and 264 of the Legal Profession Act, 2004. The Solicitor has misappropriated trust funds."
20. We are also satisfied that the respondent clearly understood what it was about her conduct as a solicitor in the management and use of trust monies which backgrounded the Councils complaint.
21. We are satisfied the respondent was notified in writing of the complaint. She was notified first on 25 June 2015 that the Council had received a report from Mr Connor dated 23 June 2015. In that same letter she was provided with a copy of the report and her attention was drawn to the fact that the report contains "a number of serious matters relating to your dealings with trust funds."
22. The letter of 25 June 2015 then put the respondent on notice that: "As a result of Mr Connor's report, the Council of the Society will be asked to consider passing resolutions to give effect to the following: 1. The making of the following complaints against you: • The Solicitor has wilfully breached Sections 255, 260, 262 and 264 of the Legal Profession Act, 2004. • The Solicitor has misappropriated trust funds. 2. Immediately suspending your Practising Certificate [see Section 548 of the Legal Profession Act, 2004]; and 3. Appointing a Manager to your Law Practice." (The emphasis added to this paragraph is referred to below)
23. The respondent was invited to make any submission she wished the Council to consider. She was asked to have any submission or other material to the Law Society by 29 June 2015. We note the respondent did avail herself of that invitation and provided a lengthy submission of 8 pages to the Law Society by the required time. A reading of the submission (TAB 2 NJH-1 exhibit R4) makes clear the respondent well understood the allegations made against her in the report of Mr Connor. She well understood what was to be considered by the Council on 30 June 2015.
24. The emphasis we included to the quote from the letter of 25 June 2015, demonstrates to us, that the respondent was put on notice that "the Council of the Society will be asked to consider passing resolutions to give effect to the following: 1. The making of the following complaints against you." She was therefore, we conclude, on notice that the complaint, if made, would be made within a resolution passed by the Council.
25. Section 505 of the Legal Profession Act, 2004 required: (3) A copy of a complaint made by a Council is to be forwarded as soon as possible to the Commissioner by the Council.
26. The Law Society through the services of the Professional Standards department wrote to the Legal Services Commissioner on 2 July 2015. That letter, although concise, named the respondent, notified that a "complaint was opened by the Professional Standards Department". It disclosed a "primary complaint diagnosed is: BREACH s.255 (TRUST MONEY) (LEGAL PROFESSION ACT 2004)."
27. The communication did not satisfy the requirement of providing a copy of the complaint to the Commissioner.
28. In relation to the submission of the respondent in relation to s 505(3) and 508(1)(a) the Law Society says there is at least purported compliance with s 505(3) of the Legal Profession Act, 2004 in the letter to the Legal Services Commissioner dated 2 July 2015. The submission then states: "The Law Society accepts that the letter is deficient in that it does not contain a complete copy of the complaint made on 30 June 2015. It refers only to an aspect of the complaint."
29. In further submission the Law Society says that the failure, above conceded, "is of no consequence for the question of the Tribunal's jurisdiction." The Law Society submits the Legal Profession Act, 2004 does not make it a prerequisite for the making of a complaint, for it to be forwarded to the Legal Services Commissioner and/or that the complaint only "is made" after that process has been engaged. The legislation prescribes a process after the complaint has been made by the council. The Law Society submits "given that for the purpose of s 551, the relevant issue is whether a complaint has been made (within s 504), an absence of proper compliance with s 505(3) is of no significance to that issue."
30. We will again return to consider the consequences to the question of jurisdiction for the Tribunal to hear the Law Society's application when we consider the impact on this omission of s 561 of the Legal Profession Act, 2004. We do however accept the submission of the Law Society in relation to s 505(3) so far as it is stated above.
31. As stated earlier in these reasons the respondent also relied upon the letter from the Law Society to the Legal Services Commissioner in support of her case. She focused on the words "On 2 July 2015, the above complaint was opened by the Professional Standards Department." She submitted that demonstrated the complaint was made on 2 July 2015 and not 30 June 2015. We are satisfied that is a wrongful interpretation of the words selected. We find that after considering all the documents set out in the evidence of the Law Society to which we have referred in these reasons, there was a process in place in the Law Society as at 30 June 2015. Following the making of the complaint, the complaint was referred to the Professional Standards Department for investigation and then report to the Professional Conduct Committee of the Society which would then determine, by resolution, what further action it would take in relation to the complaint. That is what happened in this case. The letter advising the respondent of that outcome is dated 23 November 2018 (see TAB 18 NJH-1 exhibit R4).
32. We are satisfied the Law Society has complied with s 508(1) of the Legal Profession Act, 2004. The section is as follows: 508 Practitioner to be notified of complaint (1) The Commissioner, or the Council by which a complaint is made or to which a complaint is referred for investigation, is to ensure that as soon as practicable after the complaint is made the Australian legal practitioner about whom the complaint is made is given: (a) a copy of the complaint, and (b) a notice in writing informing the practitioner of the practitioner's right to make submissions to the Commissioner or Council and specifying the period within which submissions must be made, unless the Commissioner or Council advises the practitioner that the Commissioner or Council has dismissed or intends to dismiss the complaint.
33. We note the provisions of section 508(5). That sub-section has application to this case. It is as follows: (5) Nothing in this section requires the Commissioner or a Council to give written notice under this section to the practitioner until the Commissioner or Council has had time to consider the complaint, seek further information about the complaint or otherwise undertake preliminary inquiries into the complaint, and properly prepare the notice.
34. The content of section 508(5), perhaps can be seen as a shield, for the Law Society against an assertion that notice of the complaint to the respondent was not provided in a manner which could be seen as promptly after the complaint was made ("as soon as practicable"). Such a provision appears to fit within the spirit of the Act in that it enables the Law Society Council to carry out an investigation of the complaint, even if a preliminary one, before it moves further with a complaint which might see the matter going before the Tribunal. We consider the words in s 508(1) "as soon as practicable" are deliberately used by the legislature in light of the provision of s 508(5).
35. We are satisfied the Law Society complied with section 508 as above set out. The respondent was given an opportunity to provide submissions via letter from the Professional Standards, Law Society of NSW, following the making of the complaint on 30 June 2015. She was given that opportunity on 5 January 2016 and again following the conclusion of the Supreme Court of NSW proceeding instituted by her against the Law Society in 2016. The respondent did provide submissions in response to each letter to her giving her that opportunity.
36. The respondent's case has been, in part, that no separate document exists which contains the complaint against the respondent which would comply with the requirements of s 504 of the Legal Profession Act, 2004. The Law Society says that the wording of the resolution itself creates the complaint for the purpose of s 504. Whilst we are satisfied the document relied upon by the Law Society as the complaint is a complaint within the meaning of s 504 we do appreciate that the wording of the resolution does have the possibility of a different interpretation.
37. The words which may confuse are "a complaint be made". The Law Society has asserted that the word "be", in that context, has the same meaning as "is" and we have accepted that argument. We have been satisfied the respondent understood that meaning, as her own correspondence with the Law Society shows. However, common usage of the word "be" as used in the context under consideration, also has the meaning of a future event. Thus the respondent's case is that the resolution of 30 June 2015 was a precursor to the Council of the Law Society creating another document which might be titled "Compliant" and that document would be given to the respondent as the Legal Profession Act, 2004 requires.
38. In the respondent's submission she referred us to the decision in Council of the Law Society of NSW v DXW [2019] NSWCATOD 101 (DWX). The case was referred to in relation to another of the respondent's submissions as will be seen hereafter. However, in that decision the Tribunal referred to the High Court decision in Barwick v NSW Law Society [2000] HCA 2 (Barwick). In particular to [18] of the decision where, in part, the following was said without criticism of the apparent means utilised by the Law Society Council of making a complaint under the predecessor legislation for the Legal Profession Act, 2004 namely the Legal Profession Act 1987 (NSW): "Notwithstanding the references to 'the complaint', up to that time there had been no resolution that the Council should initiate a complaint against the appellant, and there was no such resolution on 29 September 1994."
39. The relevant act to which the above decision referred was the Legal Profession Act 1987 (NSW). That Act provided as follows in relation to the making of a complaint against a legal practitioner. "[Section] 135 (1) A Council may initiate a complaint against any legal practitioner or interstate legal practitioner under this Part. (2) A copy of any such complaint is to be forwarded immediately to the Commissioner. (3) A complaint that is made to a Council instead of to the Commissioner is to be forwarded immediately to the Commissioner by the Council. [Section] 136 (1) The Commissioner may initiate a complaint against any legal practitioner or interstate legal practitioner under this Part. (2) Any such complaint is, for the purposes of this Part, taken to have been made to the Commissioner. [Section] 137 A complaint: (a) must be in writing, and (b) must identify the complainant and the legal practitioner against whom the complaint is made, and (c) must give particulars of the alleged conduct of the legal practitioner that is the subject of the complaint."
40. The particular section, to which the particular extract from Barwick addressed was s 155(2) which is as follows: "Section 155 provides: (1) After a Council or the Commissioner has completed an investigation into a complaint against a legal practitioner or interstate legal practitioner, the complaint is to be dealt with in accordance with this section. (2) The Council or the Commissioner must institute proceedings in the Tribunal with respect to the complaint against the legal practitioner or interstate legal practitioner if satisfied that there is a reasonable likelihood that the legal practitioner or interstate legal practitioner will be found guilty by the Tribunal of unsatisfactory professional conduct or professional misconduct."
41. The point we seek to note from the judgment of the High Court, is that there appeared to be an acceptance that a complaint, for the purpose of s 135 of the Legal Profession Act 1987, could be or was initiated by the passing of a resolution of the Council of the Law Society of NSW.
42. We note from exhibit R4, the exhibit to the affidavit of Ms Haddad marked NJH-3 TAB 4, (An affidavit of the respondent 20 September 2016 in the Supreme Court of NSW proceeding) she sets out the steps taken by her following the telephone call she received from Mr Richard Flynn of the Law Society on 2 July 2015. She exhibited the copy of the Notice she received from the Council of the Law Society dated 30 June 2015 which was served on her by Mr Flynn on 3 July 2015. It is important to note the content of that Notice.
43. The Notice (annexed by the respondent to her affidavit as exhibit 9) informs as follows: "FURTHER RESOLVED that, pursuant to the provisions of section 548 of the Act, the Council considers that it is necessary in the public interest to immediately suspend the local practising certificate of the Solicitor on the ground of the seriousness of the conduct in respect of which complaints have been made against the Solicitor and determines to immediately suspend the local Practising Certificate of the Solicitor".
44. Apart from the body of the above resolution informing of the "seriousness of the conduct in respect of which complaints have been made", the reference to s 548 is also important in terms of conveying information.
45. Section 548(1) of the Legal Profession Act, 2004, is as follows: (1) This section applies if the Commissioner or the relevant Council considers it necessary in the public interest to immediately suspend a local practicing certificate on the ground of the seriousness of the conduct in respect of which a complaint has been made in relation to the holder of the certificate.
46. We note that the action performed in reliance upon s 548(1) has as a prerequisite that "a complaint has been made".
47. The reality of the circumstance in which the respondent found herself, in the short period before 30 June 2015, was that she knew (as her concessions in her correspondence with the Law Society reveal) she had serious problems with the administration of her trust account. She knew there were serious consequences which could flow to her right to practise as a result of same. On 2 July 2015 she knew the Law Society had appointed Mr Flynn, by resolution passed by the Council, to manage her practice for a period of two years.
48. In her affidavit the respondent said that from 3 July 2015 until early September 2015 she worked with Mr Flynn to effect the winding down of her practice. In September 2015 all of her files were sent to a storage facility and in the same month she terminated her lease and vacated her office.
49. The respondent now asks the Tribunal to accept that all that happened without there having been any notice given to her that a complaint had been made against her pursuant to the Legal Profession Act, 2004 or the Uniform Law. This is a matter which the Tribunal may consider, should it be necessary to exercise a discretion pursuant to section 561 of the Legal Profession Act, 2004, or in any other capacity.
50. In the submission from the respondent A5 the 2nd question posed is as follows:

"Q2. If a complaint was made, on what date did the Society commence its investigation of that complaint?"

1. The respondent submits that this question only needs to be considered if the Tribunal finds for the Law Society in relation to the first question, namely "Did the complainant make a complaint?" We have so found and now address this second question.
2. The respondent refers the Tribunal to section 476 of the Uniform Law which section then brings for consideration Schedule 4, and relevantly clauses 24 to 27. In particular, the respondent submits clause 25 stipulates, under the heading "Investigations under this Law of prior matters."
3. Clause 25 permits the commencement of an investigation under the Uniform Law after the commencement of the operation of the Act, in relation to matters occurring before that day.
4. The respondent submits that the assertion by the Law Society that an investigation commenced after 6 July 2015 is not available to be made because the society has not provided evidence of that fact by affidavit.
5. We do not accept that there is no evidence that the Law Society undertook an investigation of the complaint. We have referred to evidence found in the exhibits to the Affidavit of Ms Haddad together with the content of that affidavit which establishes there was an investigation.
6. At paragraph 19 of her affidavit, exhibit R4, Ms Haddad deposes that on 18 August 2016 the Council resolved to appoint Ms Sayer to investigate the affairs of Erica B Taylor P/L trading as Lexicon Legal and to furnish the Council with a confidential report. The Society acted under ss 162 and 163 of the Uniform Law in making that appointment.
7. Ms Haddad deposes that Ms Sayer provided two reports, one dated 13 December 2016 and the second dated 1 May 2017. The reports were not read in this application, however, the fact that the reports were commissioned and obtained is a relevant fact. It speaks of the investigation the Law Society was conducting into the complaint against the respondent at that time.
8. Ms Haddad said that on 20 September 2016 the respondent filed a Summons in the Supreme Court of NSW for a review of the decision of the Law Society refusing to grant her a local practising certificate for the 2016/2017 Practising year. Each of the respondent and the Law Society provided evidence to that hearing. That evidence, from the Law Society, included evidence from Ms Sayer as above referred to. We note the Supreme Court of NSW delivered its judgment on 18 July 2017.
9. On 28 November 2017 the Professional Standards wrote to the respondent, as has earlier been stated. Part of the letter listed all of the affidavit evidence filed in the Supreme Court of NSW proceeding which the Professional Standards proposed to take into account "in its consideration of the complaints". We note that some of the affidavit evidence in that list was possibly evidence which the respondent had provided. Our attention is drawn to the reference to an affidavit of Anthony Malouf, identified as the solicitor who had employed the respondent, albeit as a paralegal, after 30 June 2015.
10. The respondent was invited by the Law Society to make further submission if she so desired. The letter sought any further submissions be provided by 22 December 2017. It then stated "after that date will proceed to prepare a report on the material then available." It is clear to us that what was occurring at that time was the investigation of the complaint.
11. The respondent did provide further submissions in response to the letter from Professional Standards dated 28 November 2017, her submission being dated 5 January 2018. In that submission the respondent herself relied upon "the evidence and materials contained in the evidence and materials tendered in the Supreme Court of NSW proceeding No. 2016281873". The respondent then set out an argument for issue estoppel. In that submission the respondent said at paragraph 7, TAB 13 NJH-1 Exhibit R4, "As the Complaints (having been made on 30 June 2015) were not disposed of prior to 1 July 2015 they must continue to be dealt with under the 2004 Act." She went on to argue that the Law Society should have and could have, sought the outcome, which it now seeks in this Tribunal, in that Supreme Court of NSW proceeding. She argued that if the Law Society was to commence proceeding in the Tribunal then "an issue estoppel would arise".
12. We note the Law Society submission that it could not have sought the orders it seeks, in its 14 May 2019 application in this Tribunal, in the Supreme Court of NSW proceeding. No reason was proffered and not authority or legislative provision was supplied in support of the submission.
13. Although obliquely referred to in the submission marked A5, the respondent has not sought, in this proceeding, to take further any argument in relation to issue estoppel nor has she sought any order for the proceeding to be stayed or permanently stayed (or any other remedy) as a consequence to the Tribunal being satisfied that issue estoppel applied. We note that an application for such a remedy does not contest jurisdiction rather it draws on equitable principle to support that outcome.
14. In further submission on this question 2, the respondent said the date upon which the investigation commenced, informs the applicable statutory framework: Uniform Law, s 476, Sch 4, clauses 24 to 27. She said "only one of the two possible statutory frameworks can apply to an investigation: see clause 25."
15. Clause 25 of Schedule 4, which is relied upon by the respondent above, appears under Division 6 "Investigation of Certain matters." The clause then provides as follows: 25 Investigations under this Law of prior matters (1) An investigation may be commenced under this Law on or after the commencement day in relation to matters (including acts and omissions) occurring before that day, for the purpose of - (a) monitoring compliance by a law practice or person with the provisions of the old legislation (or of regulations under the old legislation) relating to trust money and trust accounts; or (b) determining whether or not a law practice or person has contravened any of those provisions; or (c) detecting or preventing defaults, fraud or defalcation in relation to a law practice; or (d) investigating the affairs or specified affairs of a law practice - so long as the same matters had not been, or had not commenced to be, investigated before that day under Chapter 3 of the old legislation. (2) This clause does not authorise an investigation to be commenced after the commencement day in relation to a matter if an investigation of the relevant kind could not have been commenced under the old legislation in relation to the matter had the old legislation not been repealed.
16. In this matter it is somewhat difficult to determine if "an investigation" was commenced before the complaint was made on 30 June 2015. It seems clear that the resolution of that date was passed because of a report of Mr Connor, which report has been referred to previously in these reasons. The construction of the Legal Profession Act, 2004 however, suggests that the relevant investigation, which is the subject of clauses 25 and 26 of the Schedule 4 in the Uniform Law, is an event which follows the receipt or the making of a complaint by the Council. As such, the appointment of Ms Sayer as an investigator, which appointment was made under the Uniform Law, leads us to the conclusion that an investigation had not commenced on or before 30 June 2015. As such we accept that clause 25, as above stated, has application in this case. As will be seen below the Law Society says it is clause 26 and not clause 25, which applies to this case.
17. In an aside to an argument about whether clause 25 or 26 is applicable to this case, the respondent turned to the notice to the Legal Services Commissioner, which notice contained the words "on 2 July 2015n the above complaint was opened." The respondent draws upon the decision in Council of Law Society of NSW v DXW [2019] NSWCATOD 101 at [22]-[25] to submit "The procedure adopted in communication with the Commissioner, concerning that complaint, appears to be the same procedure which was adopted in this case".
18. Paragraphs [22]-[24] of the decision above recited, demonstrate the submission and are as follows: [22] On 23 September 2016, Milania Natuba, an Administrative Assistant of Professional Standards of the applicant wrote a letter to the Commissioner under the heading "making of Complaints Pursuant to Section 266, Legal Profession Uniform Law (NSW)." The letter said; Attached for your information, is a list detailing complaints made which have been made under s 266 which the Society is proceeding to investigate. Please activate your reference number and advise me in due course. [23] The accompanying list stated that; Pursuant to the provisions of Section 266 of the Legal Profession Uniform Law (NSW) and to the power delegated to the Manager, Professional Standards Department, the following complaints have been made. [24] There then followed a schedule referring to: File 42731 Complaint Made 22 September, 2016 File opened 23 September, 2016 Solicitor [DXW] Firm Swaab Attorneys Legal Officer Emma Essey, followed by the particulars of the wilful breach of the provisions of the Uniform Law and other legislation previously referred to.
19. The respondent concludes her submission in relation to this question 2 at paragraph 26 of her document with the following. "For these reasons, Ms Taylor submits that the answer to question 2 is that the Tribunal is 'unable to say', and thus it is unable to find that any investigation commenced after 6 July 2015 (or at all after the Supreme Court of NSW proceeding)."
20. The Law Society in its submission (exhibit R6) at paragraph 32 responds to the submission of the respondent on question 2. The Law Society submits that the question does not arise because: "clause 26(1) of Schedule 4 to the Uniform Act is enlivened if either a complaint was made under the Legal Profession Act, 2004 (but had not been completed) OR an investigation had been commenced under the Legal Profession Act, 2004, (but not completed before 1 July 2015). In this instance, the complaint was made, but not completed before 1 July 2015. On its face it seems that clause 26(1) of Schedule 4 is enlivened and the complaint is to be dealt with under the Legal Profession Act, 2004."
21. The Law Society submits that as clause 26(1) is applicable to this case then Clause 26 (2) also applies. That clause provides as follows: (2) On and after the commencement day - (a) the complaint or investigation is to continue to be dealt with in accordance with the provisions of the old legislation; and (b) for that purpose, the complaint or investigation is to continue to be dealt with by the entity responsible for dealing with it under those provisions (the current entity).
22. The current entity, referred to in clause 26(2), in this case, was and is the Law Society either through its Council or duly constituted and empowered bodies within the Law Society, in particular the Professional Conduct Committee.
23. We are satisfied that each of clauses 25 and 26 are applicable to the subject case. We conclude clauses 25 and 26 are about different aspects of the conduct and control of legal practitioners under each of the Legal Profession Act, 2004 and the Uniform Law. Clause 25 is under Division 6 of Schedule 4. Schedule 4 has a heading of "Savings and Transitional Provisions". Clause 26 is under Division 7. The heading for Division 6 is "Investigation of Certain Matters". The heading for Division 7 is "Dispute resolution and Professional Discipline". If we be wrong in that conclusion then we find that the Law Society has complied with each clause and has conducted an investigation of the complaint against the respondent.
24. Given that the resolution, which created the complaint, was made on 30 June 2015, the post complaint investigation had not commenced before "the commencement date" of the Uniform Law. The Legal Profession Act, 2004 makes provision for the investigation of complaints to be conducted pursuant to Part 4.4 of Chapter 4. Sections 525 to 536 inclusive, are the relevant provisions.
25. We are satisfied that the Law Society had significant material upon which to form a view as to the complaint following its investigation into the conduct of the respondent as a legal practitioner. It had at least three types of evidence to consider. There was the report of Mr Connor, the two reports of Ms Sayer and perhaps most revealing of all, was the unrestrained concessions made by the respondent in submission to the Law Society. For our part we consider the Law Society, through the Professional Standards department, had ample material in those three sources, to consider the complaint, as part of their investigation.
26. Nowhere in the submission by the respondent, in relation to this question posed by her, does she set out any legislative requirement for the investigation of the complaint to commence within a specific time period. The only apparent requirement is found in Part 4.4 of Chapter 4 of the Legal Profession Act, 2004, as earlier referred to, together with the transitional provisions of the Uniform Law under Schedule 4 Savings and Transitional Provisions. A copy of that schedule forms part of exhibit R7.
27. Clause 4 of Schedule 4 provides that "If the time for doing any act was fixed by or under the old legislation, that time continues to apply on and after the commencement day…"
28. The respondent posed a third question in her submission A5 as follows:

"Q3. If a complaint was made, has the Society complied with the necessary preconditions to commencement of these proceedings?"

1. Under this heading the respondent asserted a number of propositions. We propose to consider those propositions seriatim.

Was the Complaint reduced to writing following the meeting of the Council?

1. We note the underlying assertion/assumption in the submission of the respondent in relation to the complaint is that "the writing" of the complaint needed to be completed on 30 June 2015 in order for the Legal Profession Act, 2004 to apply and s 504(2) to be satisfied. We do not accept that is the case. We are satisfied that the complaint was made on 30 June 2015. It is axiomatic that the resolution became effective the moment it was passed. That means the complaint was made by the Council of the Law Society at that moment. The minute which captures the words of the resolution may be (and usually as a practical matter can be) created at a later time, be that on the day the resolution was passed, or later. There is nothing in s 504 which convinces us that the legislature intended or required that the written evidence of the wording of the resolution containing the complaint, needed to be created on the same day as the resolution was passed. We are further satisfied that even if the writing up of the resolution occurred after 30 June 2015 it would not follow that the complaint was made on that date rather than the date upon which the resolution was passed.
2. The meeting of the Council was convened urgently as the minute of the resolution shows. The meeting of the Council took place on the last day of the operation of the Legal Profession Act, 2004. The next day, 1 July 2015, was designated as the commencement date for the Uniform Law. There was a clear imperative to conclude all necessary business for the Law Society which was then extant and invoking the provisions of the Legal Profession Act, 2004, prior to midnight on 30 June 2015. Those facts lead us comfortably to be satisfied, upon the requisite standard, that the relevant minute of the Complaint, made by the Council against the respondent, was reduced to writing on 30 June 2015. If that not be the case we are satisfied, for the reasons stated earlier, that it does not render the complaint invalid as the respondent asserts.

Did the content of the Complaint identify the complainant, identify the Australian legal practitioner about whom the complaint was made and describe the alleged conduct the subject of the complaint?

1. We find the answer to all parts of the above question is answered in the affirmative for the reasons set out in these reasons thus far. A copy of the resolution is set out in full earlier in these reasons.
2. The Law Society submits the respondent is asserting that particulars of the complaint need to be contained in the complaint document. The Law Society provided a submission which addresses that matter and which we set out, have already considered and consider further later in these reasons. Lest it be unclear, we here state we are satisfied the description of "the alleged conduct" in the complaint was sufficient to comply with s 504(3)(c).

Was a copy of the Complaint made by the complainant forwarded as soon as possible to the Commissioner s 505(3)?

1. We have set out in these reasons the evidence which the Law Society relies upon to show the Commissioner was notified of the complaint. The notice was minimalistic in its form. A copy of the resolution, which we have found constituted the complaint, was not provided. A bare bone notice of the complaint was provided with the words "The primary complaint diagnosed is: BREACH s.255 (TRUST MONEY) (LEGAL PROFESSION ACT, 2004)". The name of the respondent was included. No other detail was provided.
2. The "notice" was provided by letter dated 2 July 2015. It was sent by the Professional Standards department of the Law Society to the Commissioner. Surprisingly the response to that notice was provided the next day. It was very formulaic and provided details of the reference to the file number the Commissioner had given the complaint. The letter had a heading "Law Society Initiated Complaints". In the circumstance of this case we find that letter conveyed to the Law Society, the understanding of the Commissioner, as to what was happening, or to take place, on the part of the Law Society, progressing the complaint through its internal processes.
3. Of particular note to us is that nowhere in the response, from the Commissioner, to the Law Society's letter of 2 July 2015, is there any request for further detail at that time.
4. We are entitled to assume that the relevant officers of the Law Society and the Commissioner were well aware of the provisions of s 505 of the Legal Profession Act, 2004. Clearly the process which had developed between them, in the administration of s 505, had been complied with to both parties' satisfaction. For our part we are unable to see that the notice by the Law Society or the response from the Commissioner satisfactorily satisfied the provisions of s 505(3).
5. The Law Society submits any failing on the Law Society's part can be satisfied by applying s 561 of the Legal Profession Act, 2004 and accordingly, the Tribunal can disregard the failure if the criteria which enables it to be disregarded, is applicable.
6. Section 561 is available to the Tribunal when any of the sub-paragraphs of s 561(1)(a) to (c) are met by the facts of the case.
7. Section 561 of the Legal Profession Act, 2004 states as follows: 561 Procedural lapses and defects in appointments (1) The Tribunal may order that a failure by the Commissioner or a Council, or a person acting for them or under their direction, to observe a procedural requirement in relation to a complaint (including the making, investigation or referral of a complaint, the giving of notice in connection with a complaint, or the making of a decision in connection with a complaint) is to be disregarded, if satisfied that: (a) the failure has not caused substantial injustice to the parties to the hearing, or (b) any substantial injustice caused by the failure is outweighed by the public interest in having the complaint dealt with by the Tribunal, or (c) any substantial injustice caused by the failure can be remedied by an order of the Tribunal. (2) Subsection (1) applies to a failure occurring before proceedings were commenced in the Tribunal in relation to the complaint as well as to a failure occurring afterwards. (3) A defect or irregularity in the appointment of any person exercising, or purporting to exercise, a power or function under this Chapter or Chapter 6 does not invalidate an act done or omitted by the person in good faith.
8. The respondent submits that s 561, as above set out, is not available to remedy failures to strictly comply with the provisions of the Act where a section requires mandatory compliance, which ultimately informs the question of jurisdiction, for the Tribunal to determine an applicant for disciplinary action. The respondent asserted this fact is well known to the Law Society which she says it has conceded in numerous cases. In relation to this last assertion we called for a further targeted submission for both parties. The submissions were provided.
9. The Law Society provided a detailed submission in relation to s 561 and its availability to cure the defect in its compliance with s 504(3)(c) and s 505(3).
10. The Law Society submitted that should the Tribunal determine the Law Society had not strictly complied with s 504(3)(c) or that s 505(3) is relevant to the question of the Tribunal's jurisdiction, then it relies upon s 561 of the Act and seeks the Tribunal disregard the omissions having found no prejudice flows or substantial injustice arises to the respondent from that omission. Alternatively if the Tribunal determines there is a substantial injustice arising from the failure then the Law Society submits the Tribunal would find that "any injustice caused by such non-compliance is outweighed by the public interest in having the complaint dealt with by the Tribunal".
11. The Law Society submits s 561 encompasses procedural requirements "in relation to…the making of a complaint". It submits s 504(3)(c) is one such procedural requirement (as is s 504(3)(a) and (b)).
12. The Law Society further submits that any non-compliance by the Law Society with s 504(3)(c) has not caused any substantial injustice to the respondent. The Law Society refers to the engagement by the respondent with the Law Society in relation to the complaint and before the complaint was made via the resolution of 30 June 2015. The respondent has been invited on a number of occasions to provide any submission she wished the Law Society to have regard to at different points in the lead up to the filing of the application by the Law Society in the Tribunal. Further, it is submitted by the Law Society that the respondent has previously accepted the resolution of 30 June 2015 is the complaint made against her. We note we have set out in these reasons submissions made by the respondent to the Law Society evidencing those matters.
13. The Law Society submits that given the respondent has previously acknowledged her understanding that the resolution of 30 June 2015 was the complaint which was made against her and was being pursued by the Society, it would be an injustice to the Law Society, and an affront to the public interest to permit any non-compliance with s 504(3)(c) to result in a dismissal of the proceedings.
14. The application of s 561(1) to compliance with s 505(3) is said by the Law Society to be clearly evident by the correlation of the requirement to give notice under s 505(3) and the inclusion of the words "the giving of notice in connection with a complaint" in s 561(1).
15. The Law Society submits that any failure on its part to comply with s 505(3) had no practical impact upon the respondent. It did not impede her engagement in the process which the Law Society undertook to investigate the complaint. She was able to and did engage in that process by the provision of lengthy submissions when she was invited to do so.
16. The Law Society submits there is evidence of further communication between the Legal Services Commission and the Law Society about the complaint made against the respondent. On 19 December 2017 the Commissioner wrote to the Professional Standards Department of the Law Society asking for an update in relation to the complaint against the respondent, of which the Commissioner was notified on 2 July 2015 (see Exhibit R4 exhibit NJH-3 Tab 15). That letter was responded to by letter dated 3 January 2018. That letter, which is contained in the evidence of Ms Haddad at NJH-3 TAB 15, provided a history of the interaction between the Law Society and the respondent in relation to the complaint, including the proceeding in the Supreme Court of NSW. It detailed the request of the respondent dated 28 November 2017 to make any further submission.
17. Having called for further submissions on the respondent's assertion that s 561 was not available to cure the deficiencies she alleged were present in the Law Society purported compliance with the Legal Profession Act, 2004, as a pre-requisite to jurisdiction, the Law Society responded by letter dated 16 April 2020. It confirmed it relied on the submissions it had already provided in relation to the availability of s 561 in the determination of the issues it addressed. Further it stated that it has been unable to find any decision "which supports the ambiguous assertion in paragraph 40 of Ms Taylors' submission filed 30 October 2019". The Law Society said further "to the best of our knowledge, the Society has never made a concession in any matter in the terms of the (ambiguous) assertion in paragraph 40 of Ms Taylor's submission."
18. The Law society further, in its letter of 16 April 2020, referred the Tribunal to the decision of NSW Bar Association v Asuzu [2011] NSWADT 209 ("Asuzu"). The case warrants a wider quotation of its decision which we set out hereunder.
19. The decision in Asuzu involved an action brought by the NSW Bar Association against a barrister in relation to conduct, some of which, occurred in Queensland. The Legal Profession Act, 2004 permitted such an action only if the complainant and the practitioner consent to it being dealt with under the Legal Profession Act, 2004 (see section 501(2)(a)(ii)). That had not occurred and the Tribunal was asked to disregard the failure pursuant to s 561. It should be noted that s 501(2) critically uses "but only" in its construction and deals with the Act having application to deal with conduct of an Australian legal practitioner, which occurred outside of the State of NSW and therefore outside the jurisdiction of the State.
20. The following extract from the decision is of assistance in considering if s 561 is available to disregard any failures to comply with ss 504(3)(c), 505(3) and 508(1) should the Tribunal determine there are failures by the Law Society to comply with any of those sections of the Legal Profession Act, 2004.
21. Council of the New South Wales Bar Association v Asuzu [2011] NSWADT 209: [248] The Council in their submissions point out that the requirement of consent is to prevent unfair multiplicity of investigation and has a procedural quality and the irregularity does not lead to any jurisdictional error. The Tribunal accepts that not every departure from the procedures laid down in the LPA will result in a lack of jurisdiction in the Tribunal or in jurisdictional error. [249] Nonetheless, s 503 (which is in Part 4.2) provides that a complaint " must not be dealt with under this Part unless this Part is or becomes applicable to it " (underlining added). Part 4.2 of the LPA, which relates to the initiation of complaints, only becomes applicable to conduct occurring outside New South Wales when the necessary consents have been obtained. In relation to the complaints which constitute the Gant Ground and the Gant Serious Allegation Ground, the Council was required not to deal with those complaints under Part 4.2 unless the consents were obtained. Without the consents of the relevant authorities, the complaints could go no further than being lodged under s 503(2). At the time the Tribunal's jurisdiction was sought to be invoked under s 551 in respect of those complaints, the Tribunal had no jurisdiction to deal with them because the conduct the subject of the complaints occurred in Queensland and was not conduct to which Chapter 4 of the LPA applied. Further, the steps taken in relation to the complaints had been taken contrary to s 503(2). [250] No objection to jurisdiction was taken by the Barrister when the matter came before the Tribunal. This is relevant to the issue of whether or not the lack of consent has led to a substantial injustice to a party. It cannot, however, be determinative of the question of whether or not the Tribunal has jurisdiction. It appears from the second reading speech that one of the purposes of Chapter 4 is to encourage the exchange of information between the various jurisdictions concerning complaints. No such exchange appears to have taken place during the investigation stage of "complaints" which constitute the Gant Ground and the Gant Serious Allegation Ground. [251] The issue then becomes whether s 561 permits the Tribunal to remedy such a situation. Section 561 applies where there is " a failure by the Commissioner or a Council, or a person acting for them or under their direction, to observe a procedural requirement in relation to a complaint (including the making, investigation or referral of a complaint, the giving of notice in connection with a complaint, or the making of a decision in connection with a complaint) ". [252] This Tribunal ordinarily has no jurisdiction over conduct occurring in another State or Territory. Section 501(2) renders the LPA applicable to certain conduct outside New South Wales but only if the requisite consents are obtained. [253] Section 561 of the LPA gives this Tribunal a wide discretion to disregard any failure to observe a " procedural requirement in relation to a complaint ". It is a matter of statutory construction whether the words " in relation to a complaint " refer to a complaint which the Tribunal has jurisdiction to hear or to a complaint that can be made but cannot be dealt with, under s 503(2), unless Part 4.2 becomes applicable to it by the obtaining of the relevant consents. The Tribunal is of the view that the former construction is to be preferred, that is, s 561 permits the Tribunal to disregard a failure to observe a procedural requirement in relation to a complaint which it has jurisdiction to hear and determine. Section 561 should not be construed so as to permit the Tribunal by relying on s 561 to acquire jurisdiction in relation to a complaint in respect of which it does not otherwise have jurisdiction. [254] Adopting this construction, the Tribunal does not have power to disregard the failure to take a step which is necessary to bring the conduct within the operation of the LPA and within the scope of the Tribunal's jurisdiction. [255] Further, the Tribunal does not accept that obtaining the consent of the relevant authorities in a case involving conduct outside the jurisdiction is a procedural rather than a substantive requirement. The step of obtaining consents is substantive because, without it, the Chapter 4 does not apply to the conduct and the procedures described in Part 4.2 must not be taken. Thus, even if the Tribunal were wrong in relation to the construction of " complaint " adopted above, it would nonetheless find that it did not have power to disregard the failure to obtain the requisite consents as this was not a failure to comply with a " procedural requirement " in the circumstances.
22. In relation to s 504(3)(c), the provision which requires the complaint to be in writing, and "describe the alleged conduct the subject of the complaint" we are not satisfied s 561 can have application to non-compliance with that section as the requirement is mandatory. The words which commence the sub-section are: "(3) A complaint must:". Further the fault in the complaint, if there be one, relates to the construction of the complaint itself. The actual words used are said by the respondent to not fulfil the requirements of the sub-section, in circumstances where compliance with that sub-section is mandatory.
23. In relation to section 505(3) we are satisfied s 561 is available to consider any failure of the Law Society to have complied with that provision. The wording of the section does not indicate it is mandatory to strictly comply with its provisions in order to establish a complaint. We agree with the submission made by the Law Society on that issue.
24. The Law Society acknowledges that section 505(3) has not been complied with to the extent that a copy of the complaint was not sent with the notice to the Commissioner on 2 July 2015. As we have said earlier there was no adverse response from the Commissioner about that omission and details of the complaint were ultimately provided to the Commissioner, in particular following the resolution of the Professional Conduct Committee made 15 November 2018.
25. The failure of the Law Society was not that it did not send a "copy of the complaint made by a Council … as soon as possible to the Commissioner" its failing is that it did not send a copy at all until a significant time thereafter (years). Further, it may be that the notice which was sent by the Law Society to the Commissioner on 2 July 2015 was not sent "as soon as possible."
26. The wording of s 561 clearly indicates it is available to be considered where there has been a failure to comply with a procedural requirement relevant to a complaint "including the making, investigation or referral of a complaint, the giving of notice in connection with a complaint, or the making of a decision in connection with a complaint". The requirement to provide the Legal Services Commissioner with a copy of the complaint, is, we conclude, a procedural requirement.
27. We are satisfied that sub-sections (a) and (b) are satisfied by the following findings:

• The failure did not adversely impact upon the respondent in any manner and therefore she has suffered no injustice.
• The failure was clearly of no adverse consequence to the Commissioner.
• The Commissioner was ultimately given a copy of the complaint which the Professional Conduct Committee informed him would be prosecuted in the Tribunal.
• Any injustice to either party is outweighed by the public interest in having the complaint dealt with by the Tribunal.

1. In such circumstances we would apply the provisions of s 561 to this circumstance and disregard any failure of the Law Society to comply with s 505(3) of the Legal Profession Act, 2004.
2. We are also satisfied that the notice was given quickly following the making of the complaint. The only evidence as to when the notice was sent by the Law Society to the Commissioner is the date of the letter tendered by the Law Society. It was sent within 2 days of the date of the complaint. We consider that to be "expeditious treatment" of the giving of notice and satisfies us that the period of time taken in this case ought not be the subject of serious question. To the extent that strict compliance with the relevant section as to the time of giving the notice, was not achieved, we find that the provisions of s 561 of the Legal Profession Act, 2004 apply and we find pursuant to that section that the failure has not caused substantial injustice to the respondent to this hearing. Accordingly, as the section permits, we disregard any failure on the part of the Law Society to establish that the notice of the subject complaint against the respondent was provided to the Commissioner either in a proper form or "as soon as possible" after the making of the complaint.

As soon as practicable after the complaint was made was the Respondent given a copy of the complaint s 508(1)(a)?

1. We have considered this matter earlier in these reasons and do not repeat our findings here.
2. Section 508(5), as we have set out earlier, does reinforce the pathway for the Council to follow before providing the respondent with a copy of the complaint. It relieves the Council of the obligation to give the legal practitioner notice under the section until it "has had time to consider the complaint, seek further information about the complaint from the complainant or otherwise undertake preliminary inquiries into the complaint, and properly prepare the notice." The provision in s 508(5) therefore gives a better understanding to the time it took the Law Society to provide the respondent with a copy of the complaint.
3. The evidence which we have already set out in these reasons illustrates that the respondent had received written notice of the resolution, which the Council would consider making, when it met on 30 June 2015. She had provided a lengthy submission for the Council to consider on 30 June 2015. We are satisfied she understood on 30 June 2015 she had significant unsatisfactory compliance with the requirements of practice as a legal practitioner in relation to the conduct of her Trust account.
4. There is other evidence provided under the hand of the respondent which clearly put her on notice that the complaint foreshadowed to her, had been passed on 30 June 2015.
5. In a submission made by the respondent to the Law Society she set out what had happened to her immediately after the passing of the 30 June resolution. At annexure "I" to the submission of the respondent, made to the Law Society 0n 2 March 2016 (see TAB 6 NJH-1 exhibit R4), is a copy of a document issued by the Law Society titled "Information Notice". The document is addressed to the respondent and sets out one of the resolutions made by the Council of the Law Society on 30 June 2015. The document is dated 30 June 2015. It notified the respondent of the immediate suspension of her local practising certificate. It also informed her the grounds for the suspension were "the seriousness of the conduct in respect of which complaints have been made against the Solicitor." The notice must be seen to have given the respondent information that the complaint, foreshadowed by the letter to her from the Law Society dated 25 June 2015, had been made by the passing of the resolution set out in that letter.
6. Further attached to annexure "I" to the respondent's submission, as above outlined, the respondent attached a copy of another document received from the Law Society which was titled "Notice of Appointment of Manager". That notice dated 30 June 2015, informed the respondent that Richard Flynn, solicitor had been appointed as manager of her legal practice for a period of two years. The respondent set out in her submission of 2 March 2016, at paragraph 75, that "on Thursday 2nd of July 2015 I was telephoned by Mr Richard Flynn of the Law Society. Mr Flynn notified me of my suspension and his appointment as manager of my practice."
7. Whilst we are not satisfied the respondent was given written notice of the complaint "as soon as practicable after the complaint" was made, we are satisfied the time at which the respondent was provided with a written copy of the complaint, in the particular circumstances of this case, was not excessive and has not caused substantial injustice to her and that, in any event, the provisions of s 508(5) provide context to what time frame may be included in the phrase "as soon as practicable" where it is used in s 508(1).
8. Section 508(5) states as follows: (5) Nothing in this section requires the Commissioner or a Council to give written notice under this section to the practitioner until the Commissioner or Council has had time to consider the complaint, seek further information about the complaint from the complainant or otherwise undertake preliminary inquiries into the complaint, and properly prepare the notice. Given the wording of the above sub-section it must give context to the words "as soon as practicable" as contained in s 508(1). It would follow, we find, that the time taken by the Law Society to notify the respondent of the complaint could have been "as soon as practicable", however, the evidence, given by the Law Society, does not address why it was necessary to have taken from 30 June 2015 until, possibly as late as 15 November 2018 (we note we have found the respondent was provided with notice that the resolution of 30 June 2015 had been passed, at earlier times), to provide the complaint to the respondent. Consequently, we are unable to conclude that the complaint was provided to the respondent as soon as practicable after it was made.
9. Notwithstanding the above finding we do find that the respondent has suffered no injustice as a result of any tardiness on the part of the Law Society to comply with s 508(1). We also find that any substantial injustice which may have been caused by the failure is outweighed by the public interest in having the complaint dealt with by the Tribunal and consequently, we propose to disregard that failure as s 561 of the Legal Profession Act, 2004 permits. We have set out earlier our conclusion as to the availability of s 561 to the Tribunal in relation to failures to comply with procedural provisions in particular sections of the Legal Profession Act, 2004 (s 508 being one of those sections). We conclude that the giving of notice "as soon as practicable" as required in s 508(1) is a procedural provision.
10. The respondent in her submissions in exhibit A5 at paragraph 34 submitted that the Law Society is required to file a proceeding being a disciplinary application in the Tribunal within 6 months after the Council decides that proceedings be commenced in the Tribunal with respect to the complaint. The provision is not mandatory rather it permits the Council to make application for extension of time.
11. This argument does not go to the issue the respondent is agitating in this hearing, that being that there is no jurisdiction available for the Tribunal to hear the application filed by the Law Society for disciplinary action. The question of the timing of the filing of the application is a matter clearly within the jurisdiction of the Tribunal to determine with the exercise of a discretion provided under section 552 of the Legal Profession Act, 2004.
12. In any event, the evidence shows to our satisfaction that the Professional Conduct Committee ("the PCC") resolved to commence proceedings in the Tribunal on 15 November 2018 (paragraph 30 of exhibit R4). That was marginally less than 6 months before 14 May 2019 when the Application was filed in this matter.
13. As has been determined by us elsewhere in these reasons, the relevant resolution from which the time for the filing of an Application in the Tribunal commences was not one passed on 16 August 2018 rather it was the resolution of the Professional Conduct Committee made 15 November 2018.
14. The Professional Conduct Committee holds a delegation, from the Council of the Law Society, which was created by Council resolution made 15 January 2015 (see paragraph 35 of exhibit R4). The full text of the resolution is set out in exhibit R4 and we are satisfied that body had the power and authority to resolve to commence a proceeding in the Tribunal against the respondent as it did on 15 November 2018. Further, following the commencement of the Uniform Law, the Council of the Law Society passed another resolution on 15 July 2015 which confirmed the delegated powers granted on 15 January 2015, as they relate to the Legal Profession Act, 2004 (see paragraph 37 of exhibit R4), continue. That resolution further delegated to the PCC necessary powers pursuant to section 32 of the Uniform Act. It provided that the Joint Committee of the PCC may pass a resolution referring a matter to a designated Tribunal as defined by the Uniform Law.
15. In further submissions by the respondent she is critical of the affidavit evidence of Ms Haddad, in particular that she did not provide, as exhibits to her affidavit, the actual minute of the Council in respect of which she provided relevant extracts. Ms Haddad, in her affidavit of 14 May 2019 sets out that she is the "Acting Director, Professional Standards of the Law Society of NSW (the Society). I am authorised to make this affidavit on its behalf." She went on to say the affidavit "is based upon a review of records held by the Society."
16. Ms Haddad was not required for cross-examination in this hearing nor were we asked to find that she has not accurately recited those portions of the relevant resolution. There is nothing put by the respondent about the evidence of Ms Haddad that suggests to us she is not who she purports to be and/or that she does not hold a position in the Law Society which would enable her to provide the evidence she has with the authority she claims to hold.
17. Further, the Law Society submits section 732 of the Legal Profession Act, 2004 operates to dismiss the objection of the respondent in relation to the evidence of Ms Haddad. That section is as follows: 732 Proof of certain matters not required In any legal proceedings, no proof is required (unless evidence to the contrary is given) of: (a) the constitution of any body, incorporated or unincorporated, on which functions are conferred or imposed by or under this Act, (b) any resolution of such a body, (c) the appointment of, or the holding of office by, a member of such a body, or (d) the presence or nature of a quorum at a meeting of such a body.
18. We accept that submission.
19. The rules of evidence do not apply to the proceedings in this Tribunal nor is the Tribunal required to have parties put to strict proofs which might otherwise be required in Criminal or in commercial litigation.
20. The Civil and Administrative Tribunal Act 2013 provides in section 38 the following: 38 Procedure of Tribunal generally (1) The Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision. (2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. (3) Despite subsection (2) - (a) the Tribunal must observe the rules of evidence in - (i) proceedings in exercise of its enforcement jurisdiction, and (ii) proceedings for the imposition by the Tribunal of a civil penalty in exercise of its general jurisdiction, and (b) section 128 (Privilege in respect of self-incrimination in other proceedings) of the Evidence Act 1995 is taken to apply to evidence given in proceedings in the Tribunal even when the Tribunal is not required to apply the rules of evidence in those proceedings. Note. Section 67 also prevents the compulsory disclosure of certain documents in proceedings in the Tribunal that would, in proceedings before a court, be protected from disclosure by reason of a claim of privilege. (4) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
21. We do not see any reason not to accept the evidence of Ms Haddad in its entirety and to accept she has accurately recited the relevant extracts from the Law Society's records as she has been authorised by them to do.
22. The Law Society attached to its submission marked R6 a copy of a resolution of the Council of the Law Society of NSW made 15 January 2015. That resolution, relevant to the matters under consideration in this hearing, demonstrates that by the said resolution and pursuant to s 699(3) of the Legal Profession Act, 2004 the Council delegated to the Professional Conduct Committee, as constituted on and from the date of the resolution, all of the Councils powers contained in Chapter 4 (complaints and discipline) of the Legal Profession Act, 2004 other than those contained in s 548 (immediate suspension of a local practising certificate). Further the power under s 699(1)(c) to determine to commence and prosecute proceedings for breaches of the Legal Profession Act, 2004. Other powers were delegated to the Professional Conduct Committee under that resolution.
23. The resolution passed by the Council on 15 January 2015 is important because it explains how the correspondence between the Law Society and the respondent, as has been referred to in these reasons, emanates from the Professional Standards Department of the Law Society.

The Law Society submissions to be considered if the Tribunal considers that the complaint did not describe the alleged conduct (for the purpose of s 504(3)(c)) or that s 505(3) is of relevance to the question of jurisdiction AND the Tribunal concludes section 561 is not available to permit the Tribunal to disregard the omission.

1. The Law Society submits that any non-compliance with s 504(3)(c) and/or s 505(3) does not render the complaint invalid.
2. In relation to s 504(3) the Law Society submits the term "must", as contained in the section is part of a statutory scheme which expressly contemplates the gathering and provision of information after the making of a complaint (e.g. s 507, s 535). Failure to provide sufficient details at the time of the complaint being made is of little consequence because additional information can be provided at a later time.
3. The Law Society also submits the provision of s 561 of the Act need to be considered because it permits the remedy of procedural defects associated with the making of a complaint. The Law Society submits that shows the legislature did not intend any failure in the process would necessarily render the complaint invalid.
4. In relation to s 505(3) the Law Society submits that any non-compliance does not necessarily render the complaint invalid. It submits the section is not concerned with the making of the complaint. It prescribes a requirement after the complaint is made. Again the effect of s 561 needs to be considered to understand the intent of the legislature.
5. The Law Society in its submission said that should the Tribunal determine section 561 was not available to remedy any deficiency in the complaint as it is required to comply with s 504(3), then that does not necessarily mean the Tribunal needs to find that the complaint is invalid and determine the consequence is that the Tribunal should dismiss the complaint filed by the Law Society.
6. The Law Society submits a determination of whether or not the failure to comply with the statutory requirement should be taken to lead to invalidity, raises an issue of statutory construction. It then submits the decision of the High Court in Project Blue Sky Inc. v Australian Broadcasting Authority (1998) 194 CLR 355 at [93] sets out the basis for such a submission.
7. We have considered the passage referred to in Project Blue Sky and set out portion of that judgment commencing with paragraph 91 so that context can be seen. We have added emphasis in the underlined portion. Does the failure to comply with s 160 mean that cl 9 of the Australian Content Standard is invalid? [91] An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue. [92] Traditionally, the courts have distinguished between acts done in breach of an essential preliminary to the exercise of a statutory power or authority and acts done in breach of a procedural condition for the exercise of a statutory power or authority. Cases falling within the first category are regarded as going to the jurisdiction of the person or body exercising the power or authority. Compliance with the condition is regarded as mandatory, and failure to comply with the condition will result in the invalidity of an act done in breach of the condition. Cases falling within the second category are traditionally classified as directory rather than mandatory. In Pearse v Morrice, Taunton J said "a clause is directory where the provisions contain mere matter of direction and nothing more". In R v Loxdale, Lord Mansfield CJ said "[t]here is a known distinction between circumstances which are of the essence of a thing required to be done by an Act of Parliament, and clauses merely directory". As a result, if the statutory condition is regarded as directory, an act done in breach of it does not result in invalidity. However, statements can be found in the cases to support the proposition that, even if the condition is classified as directory, invalidity will result from non-compliance unless there has been "substantial compliance" with the provisions governing the exercise of the power. But it is impossible to reconcile these statements with the many cases which have held an act valid where there has been no substantial compliance with the provision authorising the act in question. Indeed in many of these cases, substantial compliance was not an issue simply because, as Dawson J pointed out in Hunter Resources Ltd v Melville when discussing the statutory provision in that case: "substantial compliance with the relevant statutory requirement was not possible. Either there was compliance or there was not." [93] In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood in criticising the continued use of the "elusive distinction between directory and mandatory requirements" and the division of directory acts into those which have substantially complied with a statutory command and those which have not. They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning. That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to "the language of the relevant provision and the scope and object of the whole statute". (footnotes omitted)
8. Applying the above decision to the facts in the current case it is necessary to look at the whole of the Legal Profession Act, 2004 in order to draw out "whether it was a purpose of the legislation that an act done in breach of the provision should be invalid."
9. The Law Society submits in relation to s 504(3)(c), that the statutory scheme expressly contemplates the gathering and provision of information after the making of the complaint (s 507). It says the absence of sufficient information/detail at the time the complaint was made is of little consequence because the additional information can be provided to the subject of the complaint at a later time.
10. Further the Law Society submits s 535 allows for the Council, after investigating the complaint, may, "by instrument in writing, modify the complaint by doing either or both of the following: (a) Omitting or altering any allegations or details in the complaint, (b) Adding additional allegations or details to the complaint."
11. Other sub-sections of s 535 provide further requirements, if the original complaint is modified.
12. There is another aspect to compliance with s 504 which we consider adds to the description of the "alleged conduct" of the respondent.
13. On 5 January 2016 the Law Society "Professional Standards" wrote to the respondent. The heading on the letter was "Law Society Complaint about you." The letter confirmed that following on from the letter to the respondent of 25 June 2015, the Law Society had passed the resolution, of which she was given notice. It confirmed the resolutions were passed on 30 June 2015, and the resolutions made two complaints against the respondent. As stated earlier the complaints were: "1. The solicitor has wilfully breached sections 255, 260, 262, and 264 of the Legal Profession Act, 2004. 2. The solicitor has misappropriated trust funds."
14. The letter of 5 January 2016 then stated further: "As you are aware, the complaints arise from the report dated 23 June 2015 made by Mr Gavin Connor pursuant to section 270 of the Legal Profession Act, 2004 (a copy of which under cover of the Society's letter of 25 June 2015)." The words, in the parenthesis, slightly misstate what occurred, namely, that a copy of the report was provided to the respondent with the Law Society letter of 25 June 2015. There is no issue that occurred as the submission of the respondent provided to the Law Society confirms.
15. We conclude that the report of Mr Connor can be treated as part of the description of "the alleged conduct" required to be given pursuant to 504(3). The respondent clearly was provided with the report of Mr Connor as she referred to it in her submission to the Law Society made 29 June 2015. Additionally, the respondent annexed a copy of the letter from the Law Society to her, dated 25 June 2015, with the annexed report of Mr Connor, in her submission to the Law Society dated 2 March 2016.
16. At paragraph 13 the report of Mr Connor is as follows: "13. Executive Summary Ms Taylor has admitted withdrawing money from the law practice trust account without authorisation on repeated occasions over an extended period for her personal use. She says the money she took in contravention of her obligations under the Legal Profession Act, 2004 has been repaid. The most recent of these repayments was on 5 June 2015 when the sum of $69,500 was deposited by her to the trust bank account … Ms Taylor has been advised by me to cease operating the trust account until she hears further from the Law Society. Breaches of sections 255, 260, 262 and 2664 of the Legal Profession Act, 2004."
17. The report then went into detail of particular transaction in accounts in the trust account of the respondent. The respondent was cooperative with his investigation. She was asked questions by Mr Connor about the Trust account dealings noted in the report and she responded to those questions. An example of this can be seen at paragraph 16 of Mr Connor's report where the following is stated: "When asked what had caused her to make multiple unauthorised withdrawals from the trust account Ms Taylor told me she had cash flow problems with her practice and her husband had not worked for two years."
18. At paragraph 17 of his report Mr Connor makes a heading "Conclusion." Thereunder he said: "Ms Taylors conduct, on her own admissions, brings into play section 615 of the Legal Profession Act, 2004. Ms Taylor was quick to admit her misconduct … Ms Taylor has committed serious irregularities in relation to the trust money of her law practice."
19. We conclude the clear intent of the legislature in enacting s 504(3) was that the local legal practitioner, against whom the complaint was being made, understood clearly what the complaint was. The framework of the legislation gives the local legal practitioner a number of occasions, along the pathway of the Council considering and investigating the complaint, to make submissions in relation to same. It is clear that the final step for the Council, in the process of considering the complaint, is to determine what action, if any, should be taken in relation to same. In this case it was not until November 2018 that the Council, through the Professional Conduct Committee, determined it would commence proceedings in the Tribunal and provided a lengthy and detailed reason for doing so.
20. We conclude, given that the Council can amend the complaint pursuant to section 507, the Legal Profession Act, 2004, prior to the Council determining what action is to be taken in relation to the complaint following an investigation, the Act requires by section 504(3) that the local legal practitioner be informed of sufficient detail of the alleged complaint so that the practitioner can respond to the complaint and make any submission he/she may choose to make at times set out in the legislation. This conclusion is supported by section 494. That section is as follows: 494 Purposes and objects … (3) The objects of this Chapter relating to the providers of legal services are as follows: (a) to ensure that information is readily available to lawyers about the means of redress that are available under the scheme, (b) to ensure that the rules of natural justice (being rules for procedural fairness) are applied to any disciplinary proceedings taken against lawyers, (c) to ensure that lawyers are aware of the standards of honesty, competence and diligence expected of them. ….
21. We also have regard to section 22 of the Legal Profession Act, 2004 as follows: 22 Purpose (1) The purpose of this Part is, in the interests of the administration of justice and for the protection of clients of law practices, to provide a system under which only applicants who have appropriate academic qualifications and practical legal training and who are otherwise fit and proper persons become qualified for admission and are admitted to the legal profession in this jurisdiction. (2) A person is admitted to the legal profession in this jurisdiction by being admitted as a local lawyer.
22. We have also had regard to section 25 (set out hereafter) and section 9 which defines "suitability" for the purpose of section 25. 25 Suitability for admission (1) In deciding if an applicant is a fit and proper person to be admitted, the Admission Board: (a) must consider each of the suitability matters in relation to the applicant to the extent a suitability matter is appropriate, and (b) may consider any other matter it considers relevant. (2) However, the Admission Board may consider a person to be a fit and proper person to be admitted despite a suitability matter because of the circumstances relating to the matter.
23. We also have regard to s 561 where the words "any substantial injustice caused by the failure is outweighed by the public interest in having the complaint dealt with by the Tribunal" are used.
24. It is clear to us that an important purpose of the Legal Profession Act, 2004 is to protect "clients of law practices" and uphold the public interest in having complaints dealt with by the Tribunal. As such it is imperative that within the bounds of affording natural justice and procedural fairness to a legal practitioner, the Council of the Law Society can oversee the compliance by solicitors in NSW with the provisions of that Act (and its subsequent version) and where necessary take action in the Tribunal seeking disciplinary orders.
25. Having regard to all the above referred to sections of the Legal Profession Act, 2004, together with the words of the High Court, we conclude that the questioned posed in Project Blue Sky, as above quoted, "whether it was a purpose of the legislation that an act done in breach of the provision should be invalid?" is to be answered in the negative so far as section 504(3) is concerned.
26. In this matter we are satisfied the respondent has been afforded procedural fairness and natural justice, in the way in which the Law Society Council made and investigated the complaint against her and then determined to institute proceedings in the Tribunal.
27. We are satisfied that the respondent was provided with sufficient descriptions of "the alleged conduct" upon which the complaint was grounded. We are satisfied she was able to make her submission to the Law Society in relation to the complaint in a manner which afforded her procedural fairness and that the Law Society Council complied with the principles of Natural Justice in their dealings with her.
28. What flows from the above is that we are satisfied failure to include in a part of a complaint, sufficient detail of the complaint to satisfy section 504(3) is not an omission which would render the giving of the notice as invalid, provided that the legal practitioner is given sufficient detail, at any time he/she is able to be heard, via their submission, in relation to the complaint. We are satisfied that did occur in this case as the evidence adequately demonstrates.

Other matters

1. In relation to other assertions/submissions made by the respondent, the Law Society submitted it was incorrect to say the Law Society could have sought "these disciplinary proceedings" in the Supreme Court of NSW proceeding. No supporting reference was provided, however, given that no injunction of the proceeding in the Tribunal has been sought by the respondent, nor any other remedy, said to arise from issue estoppel, we do not consider that matter further.
2. In relation to matters raised in the submission of the respondent A5, at paragraphs 5-10, the Law Society submits the issues raised by the respondent are tangential issues of no significance to the real issues for determination. The Law Society submits the respondent took until 30 September 2019 to raise a question of jurisdictional issue. Further the Law Society says the respondent has previously accepted that the Law Society has acted pursuant to the terms of the Legal Profession Act, 2004.
3. The Law Society further submits that, contrary to the assertion of the respondent, there is no legal onus on the Law Society to "establish" jurisdiction. No references are provided to legislation or authority to support that submission.
4. In reply to the submission of the respondent filed 28 February 2020, the Law Society says the submissions go far beyond a Reply and in substance seek to re-argue the Respondent's case on jurisdiction.
5. In relation to the argument that the Law Society bears the onus to establish the Tribunal has jurisdiction to determine the application we find as follows.
6. Clearly the Tribunal has the ability to determine whether it does have jurisdiction to hear the application filed by the Law Society. The jurisdiction challenged by the respondent is not the jurisdiction to hear disciplinary actions brought by the Law Society per se, rather the question is whether the process and actions engaged in by the Law Society, in the period prior to the filing of the subject complaint, complied with the mandatory provisions of the Legal Profession Act, 2004. The case brought by the respondent is that failure to comply with particular sections of the Legal Profession Act, 2004, relevant to this case, prohibits the Tribunal hearing the case. If the Tribunal so finds, the consequence is, that the application should be found to be invalid as a consequence of the Legal Profession Act, 2004 requirements not being met.
7. There is a general position in civil litigation that the party who commences an action seeking an outcome, must establish the case. The case may have a number of different elements to it and the onus/burden of establishing those elements may shift from the applicant to the respondent in certain circumstances.
8. In this case the question of onus has been largely ignored by the parties themselves. The reality is that the applicant in this case, Ms Taylor, challenged the jurisdiction of the Tribunal to hear the application filed by the Law Society. She asserted the Law Society had failed to comply with mandatory sections of the Legal Profession Act, 2004 as we have set out above. The Law Society denied that was the case. Ms Taylor then set out her case in support of her assertion. That case was made through the process of submission addressing evidence which in large part was uncontroversial. The Law Society answered those submissions, again relying upon evidence it had filed.
9. The process of submission saw the Tribunal directing Ms Taylor to file any further submission she relied upon by 28 February 2020 and that the Law Society provide any reply a short time thereafter.
10. As it has transpired it has been necessary for the Tribunal to call upon the parties to provide a further submission on one aspect of the dispute and the last of the submissions on that point was received in late April 2020. In those further submissions the Law Society asserted a position in relation to the availability of s 561 of the Legal Profession Act, 2004 to the question of compliance with other sections of that Act which are the subject of dispute. Ms Taylor in her submissions refuted that availability. Ms Taylor referred the Tribunal to a number of decisions which we have considered. Those decisions largely focused on the issues presented in DWX and the failure of establishing delegated authorities. The cases also addressed the availability of provisions under the Uniform Law to allow the Tribunal to disregard failure by a party to comply with procedural failures in relation to the making of a complaint against a legal practitioner (the equivalent of s 561 of the Legal Profession Act, 2004 which we have considered earlier in these reasons). Legal Profession Uniform Law (NSW) Section 305 Power to disregard procedural lapses (1) The designated tribunal may order that a failure by the designated local regulatory authority to observe a procedural requirement in relation to a complaint is to be disregarded, if satisfied that the parties to the proceedings have not been prejudiced by the failure. (2) This section applies to a failure occurring before proceedings were instituted in the designated tribunal in relation to the complaint as well as to a failure occurring afterwards.
11. In all the submissions made in this matter (the Law Society three and Ms Taylor three) the question of onus has not been seriously disputed by either party and in the end is probably of little importance. We have referred to the provisions of the Civil and Administrative Tribunal Act 2013 in these reasons in relation to the applicability of the rules of evidence to Tribunal hearings. Section 38 of that Act further provides for the proceedings to be conducted as follows: (4) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.

The Respondent's submission of 28 February 2020

1. The submission filed on 28 February 2020 does, as the Law Society says, seek to argue that which has been addressed in the earlier submission. To that extent we will not set out further aspects of those submissions.
2. At paragraph 24 the respondent provides submissions under the heading "Proof of Delegation".
3. At paragraph 35 of the affidavit of Ms Haddad (exhibit R4), she sets out a copy of a resolution of the Law Society Council of 15 January 2015. This resolution is set out in Ms Haddad's affidavit under the heading "Delegations". The resolution provides for the establishment of the PCC. It sets out the powers and functions available to the PCC.
4. At paragraph 37 of exhibit R4 Ms Haddad sets out a copy of a resolution of the Council of the Law Society passed 18 August 2016. The resolution sets out the constitution of the PCC. The resolution largely related to the requirements of the Uniform Law, however, it confirmed that the PCC's "delegated powers granted on 15 January 2015 are hereby confirmed as they relate to the Legal Profession Act, 2004."
5. The Law Society relied upon s 699(3) of the Legal Profession Act, 2004 to establish the validity of the delegations contained in the resolutions set out above in the affidavit of Ms Haddad. That section provides as follows: (3) The Law Society Council may delegate to any of its committees, to an officer of the Law Society Council or to an employee of the Law Society the exercise of any of the Law Society Council's functions under this Act, other than this power of delegation.
6. The respondent submits there is no "instrument of delegation" to the PCC. There is nothing in the submission which refers to a requirement for such a named document/instrument. The Law Society relies upon the resolutions, as quoted above, as providing the necessary delegation.
7. We do not accept that a delegation, made by resolution of the Law Society Council, needs to be thereafter embodied into a separate document and named "Delegation" or some similar descriptive, then provided to the body which is the recipient of the delegation, in order to make that delegation effective. It is also to be remembered that the PCC was already a part of the Law Society and probably was in itself also, by its constituent membership, the body of the Council itself.
8. The respondent at paragraph 36 of the submission submitted as follows: "For the avoidance of doubt, the Respondent accepts that a properly created delegation could be a business record and proved using the provisions of s69 of the Evidence Act. However, this does not include resolutions concerning investigations or a complaint against individuals or resolutions concerning decisions to institute proceedings. That is because of the exclusion in sub-section 69(3) of the Evidence Act."
9. The above set out submission does not have regard to s 38(2) of the Civil and Administrative Tribunal Act 2013 which provides as follows: (2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. (3) Despite subsection (2) - (a) the Tribunal must observe the rules of evidence in - (i) proceedings in exercise of its enforcement jurisdiction, and (ii) proceedings for the imposition by the Tribunal of a civil penalty in exercise of its general jurisdiction, and (b) section 128 (Privilege in respect of self-incrimination in other proceedings) of the Evidence Act 1995 is taken to apply to evidence given in proceedings in the Tribunal even when the Tribunal is not required to apply the rules of evidence in those proceedings. Note. Section 67 also prevents the compulsory disclosure of certain documents in proceedings in the Tribunal that would, in proceedings before a court, be protected from disclosure by reason of a claim of privilege. (4) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
10. Further, even if the Evidence Act did apply, the documents would be admissible not as to the truth of the matters set out therein, rather, they would be admissible to show a certain event took place or that a particular notice was given (see sections 60 and 135 of the Evidence Act).
11. It is further important to remember that the Tribunal is not hearing the Application filed by the Law Society seeking disciplinary orders, rather the Tribunal is asked to determine, as a preliminary matter, that the Tribunal does have jurisdiction to hear that application.

CONCLUSION ON THE APPLICATION OF THE RESPONDENT

1. We are satisfied that the Council of the Law Society of NSW is able to commence proceeding in the Tribunal pursuant to s 551 of the Legal Profession Act, 2004. We are satisfied the Law Society has established the Tribunal does have jurisdiction to hear the Application lodged by the Law Society against the respondent on 14 May 2019.
2. We conclude that, in the particular circumstances of this case, to find that the respondent did not know either, what the complaint was that the Law Society Council made against her on 30 June 2015, or why it was made, either on the date the complaint was made or at any time thereafter until the date the Law Society filed and served its application in this Tribunal, would make a mockery of the provisions of the Legal Profession Act, 2004, which have been considered in this case and in particular, s 504(3).
3. We propose to make the following order: 1. The application filed by the respondent on 9 October 2019 is dismissed. 2. Each party is to provide submissions in relation to the question of costs within 14 days from the date of the orders made herein unless there be an agreement in relation to same prior to that time. 3. In the event of the parties reaching an agreement in relation to costs they are to provide to the Registrar a minute of the agreed consent order within the said 14 day period referred to in order 2 hereof. 4. The Registrar is to list the Law Society's application for disciplinary findings and orders, filed 14 May 2019, for mention before a Tribunal member, for the purpose of listing that application for hearing and the making of any further necessary directions to prepare the matter for hearing.

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: 13 May 2020