Council of the Law Society of NSW v Clarke

NCAT Occupational|2017-08-25

Solicitors: A-M Foord (Applicant) T A Williams (Respondent) File Number(s): 17/48401

reasons for decision on stay application brought by respondent

Background

The applicant in these proceedings, the Council of the Law Society of NSW filed an application in this Tribunal on 15 February 2017 seeking a finding of professional misconduct against the respondent, a solicitor, Daniel Christopher Clarke. The application alleges that the respondent applied to the then NSW Roads and Traffic Authority ("the RTA") between approximately 29 April 2007 and 8 September 2010 seeking a large number of certificates which contained details of the registered owners of motor vehicles. It was further alleged that in support of each application the respondent was required to give an undertaking that the information sought would be used solely for purposes "related to commencing legal proceedings in respect of a motor traffic accident and not for the purpose of commencing legal proceedings in respect of a judgement, other than the subject of (the) undertaking." The application asserts that the certificates obtained by the respondent were used for the purpose of a client of the respondent in identifying the registered owners of the motor vehicles to enable it to pursue debt recovery and repossession of motor vehicles from them because they were in default under certain financial transactions.

Grounds and evidentiary basis for the application of a permanent stay order

We summarise the grounds relied upon by the respondent as follows; 1. the delay in their commencement has caused the proceedings to be characterised as vexatious and oppressive and they amount to an abuse of process 2. this Tribunal does not have jurisdiction to determine the matter because the applicant failed to take into account its own conduct including the delay in commencing proceedings since 2012 when resolving to commence proceedings pursuant to section 537(2) of the Legal Profession Act 2004 ("the Act").
It was common ground between the parties that the provisions of the Act, which has now been repealed, apply to the circumstances of these proceedings because of the period when the alleged misconduct of the respondent occurred. We agree and proceed accordingly.
The evidentiary basis for the grounds set out in the amended stay application includes, relevantly; 1. the original complaints concerning the conduct of the respondent were initiated by the Legal Services Commissioner on 26 June 2012 and were referred by him to the applicant for investigation on 28 June 2012. 2. the respondent was not at that stage provided with a copy of the complaint or an information notice as required by Section 508 (1) of the Act or otherwise informed of the making of the complaint. We shall refer to the provisions of this section later. The applicant arranged for an investigation to be commenced on 19 July 2012 which was not completed until 23 September 2013. 3. the applicant did not initiate its own complaint with respect to the conduct of the respondent until 18 March 2014, a copy of which was then provided to the respondent by letter of 18 March 2014. 4. on 29 May 2014 the applicant resolved under section 506 (2) (b) of the Act to accept the complaint notwithstanding that it was more than three years after the conduct was alleged to have occurred. 5. it was not until 15 October 2015 that the applicant purported to decide that there was a reasonable likelihood that the respondent would be found to have engaged in professional misconduct and to commence proceedings in this Tribunal. 6. the respondent, together with another solicitor also involved in the same allegations, sought judicial review of the decision of the applicant in a timely manner. On 20 September 2016 Fagan J in the Supreme Court of New South Wales declared the decision of the applicant to commence the proceedings void and restrained it from taking any further steps in the original proceedings before this Tribunal. We shall refer to his Honour's judgement later. 7. On 15 December 2016 the applicant resolved to commence these proceedings pursuant to section 537 (2) of the Act. In doing so it was alleged that it failed to take into account its own failures to comply with the provisions of the Act including the delay since the original complaint was made by the Commissioner on 26 June 2012. It was noted that the applicant purported to rely on evidence collected within the period October 2012 to April 2016. 8. these proceedings concern the same conduct which was the subject of the judicial review in the Supreme Court
The particulars of the alleged vexatious and oppressive conduct and the abuse of process were said to be: 1. the failure of the applicant to comply with section 508 (1) of the Act 2. the lengthy delay in commencing proceedings including a failure to comply with section 592 of the Act 3. the failure of the applicant to comply with section 542 of the Act 4. the respondent had incurred significant legal costs in defending the proceedings to date 5. the applicant had received no complaints concerning the respondent since the conduct complained of either with respect to matters before or after that period of conduct 6. the respondent had cooperated with the investigators appointed by the applicant 7. there was presumptive prejudice by reason of the lengthy delay in commencing these proceedings which has caused prejudice to the respondent in meeting the allegations made against him

The Reply filed by the applicant

The applicant filed a Reply document on 31 July 2017 in which it resisted the making of a stay order, denied each and every one of the allegations of the respondent, asserted that the delay in the hearing of the proceedings had been "largely and materially contributed to and caused by the conduct and actions" of the legal representatives of the respondent, and further asserted that the proceedings raised "serious questions" as to the respondent's fitness to practice.

The evidence in these proceedings

A large amount of documentary evidence was tendered by each of the parties. We shall refer to such parts of this material which are relevant in the course of these reasons for decision.
In addition, oral evidence was given by Ms Anne-Marie Foord, solicitor for the applicant primarily by way of cross examination on an affidavit sworn by her and tendered in the proceedings.
We note that the respondent did not provide any evidence by way of affidavit or oral testimony in the proceedings. We make this observation, not by way of criticism, but because the applicant relied upon it in resisting the stay application.
We now refer to some of the evidentiary documentary material tendered for the limited purpose of the stay application. The respondent first came to the attention of the applicant when the applicant received, on 3 July 2012, a letter from the Office of the Legal Services Commissioner by way of a referral to investigate a complaint against the respondent and two other solicitors. The referral was made pursuant to section 513 of the Act which was in the following terms: 513 REFERRAL OF COMPLAINTS TO COUNCIL (1) The Commissioner may refer a complaint made to or by the Commissioner to the relevant Council if the complaint is not to be investigated by the Commissioner under Part 4.4 (Investigation of complaints). (2) When referring a complaint to a Council, the Commissioner may recommend that the Council investigate the complaint or refer it to mediation, or both. (3) A decision to refer a complaint to a Council is to be made, as far as practicable, within 21 days after the complaint is made or, if further information or verification is required, within 21 days after the further information or verification is given or provided. A Council is not excused from dealing with a complaint because it is referred to the Council after the time prescribed by this subsection. (4) The Commissioner may refer a complaint to a Council even though the Commissioner commenced but did not complete an investigation into the complaint. (5) This section does not apply to a complaint that is dismissed by the Commissioner under this Part.
The letter from the Commissioner stated that he had decided to initiate separate complaints against the respondent and the two other solicitors under section 504 (1) (c) on 26 June 2012. Section 504 was in the following terms; 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. (5) The Commissioner, or the Council to which a complaint is referred, is to ensure that the complainant is notified in writing of receipt of a complaint (other than an official complaint).
Under a heading in that letter, "Liaison with the NSW Police" the Commissioner said that he had been advised that NSW Police were still investigating the matter and asked the applicant to liaise with them so that any investigation did not prejudice their criminal investigation and to enable them to "determine an appropriate way forward." The letter then continued "it follows that I have not advised any of the practitioners of my complaint about them pursuant to section 508 (3) (b) of the……. Act……." A copy of the Commissioner's letter to the NSW Police was said to be enclosed with the letter.
The provisions of section 508 (3) (b) assumed significance in the course of the proceedings because it was asserted that in the circumstances it did not apply so as to entitle the Commissioner to refrain from giving a copy of the complaint and the relevant notice to the respondent. Section 508 was in the following terms; 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.
It was submitted on behalf of the respondent that the Commissioner could not have formed an opinion that notification to the respondent would or was likely to prejudice the police investigation because, essentially, he had left it to the Law Society to make those enquiries of the investigating police and to determine whether there would be any relevant prejudice to the investigation. Accordingly, the respondent should have been given a copy of the complaint and the relevant notice as at that date namely June 2012. As will be seen, no notification of the complaint was given to the respondent for some considerable time thereafter, and this was said to be one of the matters to be taken into account in determining whether the proceedings constitute an abuse of process.
In fact, there is before us a copy of an email communication purportedly to be from Emma Bayley of the RTA to the respondent on 26 October 2010. This referred to a schedule requesting 33 Information Searches and a declaration forwarded by letter dated 29 April 2010. The email sought details concerning a motor traffic accident presumably referred to in the schedule said to have involved a nominated registered motor vehicle with a nominated registered owner and which occurred on 28 October 2010. There is also before us a copy of a hand written file note purporting to be a record made by Emma Bayley of a telephone conversation with the respondent which occurred at 4:50 PM on 27 October 2010. By letter dated 5 November 2010 addressed to the respondent the RTA informed him that it was currently investigating the provision of a certain certificate for a nominated vehicle. He was informed that until the investigation was concluded a separate form should be used for each request for information and supporting information should be provided concerning, what we assume, is directed to the circumstances of a motor accident.
It may be concluded, therefore, that whilst the respondent had not been formally informed that a complaint had been made against him by the Commissioner, he was in fact aware that upon receipt of the letter of 5 November 2010 the circumstances in which applications had been made by him for certificates from the RTA were under investigation, at least by the RTA. We recognise that in so concluding we have assumed that the letter was in fact forwarded to the respondent, and was received by him in the normal course of the post. The respondent, as we have observed, has not adduced any evidence in these proceedings.
By letter dated 19 July 2012 Ms Elizabeth Barnes, a solicitor in the Professional Standards area of the applicant wrote to an investigating police officer, referring to a telephone discussion on 12 July 2012 and confirmed that she was responsible for the investigation of complaints referred by the Commissioner. She indicated that the applicant had that day "made its own complaints" against the respondent and the other solicitors and that she was responsible for those investigations also. She referred to a schedule containing details of requests made by a firm of lawyers with whom the respondent was associated for registration details of vehicles. Ms Barnes asked that she be informed within seven days if the investigating police officer had any difficulty in her making copies of all of the material, including the schedule, available to the solicitors, including the respondent, and for that material to be used in the investigations conducted by the applicant. She said that she would assume that there was no objection if she did not hear from the officer within seven days.
We have before us a letter from the Assistant Commissioner (Legal) of the Office of the Legal Services Commissioner addressed to Ms Barnes dated 11 September 2012. That letter noted that an investigator presumably appointed by Ms Barnes pursuant to section 267 of the Act was "anxious to avoid any prejudice to his investigation and that he wishes to obtain further evidence from one or more of the practitioners prior to providing to the practitioners copies of the complaints." The letter said that "In those circumstances" the Commissioner was of the of view that "section 508 (1) of the Act does not apply until such time as the investigator has obtained the evidence he presently seeks."
It was submitted on behalf of the respondent that the only basis upon which the representative of the Commissioner could have determined that section 508 (1) did not apply was that set out in section 508 (3) (a), and there was no indication given in the letter about how and in what manner the investigation might be prejudiced.
Furthermore, the respondent complained that the appointment in July 2012 of an investigator under section 267 of the Act was inappropriate. That section is in the following terms; 267 APPOINTMENT OF INVESTIGATORS (1) The Law Society Council may, in writing, appoint a suitably qualified person to investigate the affairs or specified affairs of a law practice. (2) The appointment may be made generally or for the law practice specified in the instrument of appointment. (3) An investigator may, with the approval of the Law Society Council, appoint an assistant.
It was said that the investigator was not appointed to conduct any investigation into the affairs or specified affairs of the law practice, but was in fact appointed to investigate the circumstances in which the respondent and the other solicitors had applied for the relevant certificates from the RTA. This submission was reinforced by section 268 of the Act which was in the following terms; 268 INVESTIGATIONS (1) The instrument of appointment may authorise the investigator to conduct either or both of the following: (a) routine investigations on a regular or other basis, (b) investigations in relation to particular allegations or suspicions regarding trust money, trust property, trust accounts or any other aspect of the affairs of the law practice. (2) The principal purposes of an investigation are to ascertain whether the law practice has complied with or is complying with the requirements of this Part and the regulations under this Part and to detect and prevent fraud or defalcation, but this subsection does not limit the scope of the investigation or the powers of the investigator
The respondent submitted that the applicant should have appointed the investigator under the specific provision contained in Part 4.4 of the Act which was in the following terms; 531 APPOINTMENT OF INVESTIGATOR (1) The Commissioner or a Council investigating or required to investigate a complaint may, in writing, appoint a suitably qualified person as an investigator to investigate the complaint as agent of the Commissioner or Council. (2) Such an appointment may be made generally (to apply for all complaints or for all complaints of a specified class) or for a specified complaint.
The respondent submitted that the investigator held an instrument of appointment which made no reference to the complaints which he was investigating which furnished him with extensive powers under Chapter 6 of the Act. He could compel the respondent to provide access to documents and information under section 659, and to participate in an examination under section 667 and if he failed to do so this would constitute professional misconduct under section 671. All of this could have been undertaken without informing the respondent that a complaint had been made against him personally and that it was being investigated.
We agree that in the circumstances it would have been preferable that the investigator be appointed under what was clearly a more appropriate provision, although arguably section 268 (1) (b) may have provided sufficient support for the appointment of the investigator assuming that the request for certificates made by three solicitors within the same practice could be characterised as an aspect of the affairs of the practice. In circumstances where senior counsel for the respondent eschewed any particular argument based on illegality, invalidity or nullity concerning the circumstances of the appointment it is not necessary that we consider this matter further save to take it into account within the overall "abuse of process" submission.
Evidentiary material indicates that the investigator completed his report on 27 September 2013, and that it was submitted to the applicant a few days later. The respondent submits that there was an inordinate delay between the appointment of the investigator and the completion of his report, without any explanation being provided by the applicant. The applicant responded that any delay was required to be explained by the investigator and not by the applicant. This response was rejected by the respondent on the basis that the applicant was required to deal with complaints as efficiently and expeditiously as practicable pursuant to section 592 of the Act and that it was inappropriate to allow the investigator to complete the investigation in his own time. Accordingly, it was said that there was a breach of section 592 of the Act which was in the following terms; 592 DUTY TO DEAL WITH COMPLAINTS EFFICIENTLY AND EXPEDITIOUSLY It is the duty of the Commissioner and the Councils to deal with complaints (including any investigations) as efficiently and expeditiously as is practicable.
On the basis of the evidentiary material in these proceedings, there is an arguable prima facie case for maintaining that the applicant breached section 592 of the Act. It will be necessary for us to consider the impact of this conclusion on these proceedings.
Ms Barnes forwarded a letter to the respondent dated 18 March 2014. This letter stated that the applicant had resolved to make complaints against him under section 504 of the Act relating to applications for certificates made to the RTA and the complaints arose out of the report of the investigator dated 27 September 2013, a copy of which was then enclosed. The letter then referred to section 506 of the Act which stated that a complaint cannot be dealt with if made more than three years after the conduct on which it is based unless the applicant determined that it was just and fair to deal with a complaint having regard to the delay and the reasons for the delay or the complaint involved an allegation of professional misconduct and it was in the public interest to deal with the complaint. The letters sought written submissions within 21 days as to whether or not the Professional Conduct Committee acting under delegated authority should exercise its discretion to deal with the complaints.
The letter also referred to "previous complaints" made by the Commissioner and the applicant against the respondent. Those complaints appear to be of the same kind and arising out of the same course of conduct. The letter said that "In light of the complaints set out in this letter, the Society does not intend to investigate the previous Society complaints." The respondent submitted that this was misleading, because those previous complaints had already been investigated by the same investigator.
There then followed correspondence between Mr T A Williams, solicitor for the respondent and Ms Barnes which extended over a period of time in which additional information was sought and obtained and Senior Counsel was retained on behalf of the respondent.
Mr Williams responded to the applicant by letter dated 22 April 2014. On 2 June 2014 Ms Barnes informed Mr Williams that the Professional Conduct Committee had resolved on 29 May 2014 to make the complaints against the respondent notwithstanding that a period in excess of three years had elapsed. That letter sought a response within 14 days. The response was delayed having regard to the availability of both Mr Williams and counsel. A detailed response was forwarded by Mr Williams to Ms Barnes by letter dated 20 August 2014.
It appears from the evidentiary material which we hold that the next step in the process was a letter from Ms Barnes to Mr Williams dated 23 July 2015 informing him that the Professional Conduct Committee considered the matter at its meeting on 16 July 2015 and resolved that the respondent be informed of the issues of professional misconduct, inviting submissions within 21 days and indicating that subject to those submissions it would thereafter resolve that if it was satisfied that there was a reasonable likelihood that the respondent would be found by "the Tribunal" to have engaged in professional misconduct, proceedings would be instituted accordingly. The respondent was invited to make submissions within 21 days. There followed further correspondence between the parties culminating in a letter from Mr Williams to Ms Barnes dated 7 September 2015 which provided the submissions sought. We note with interest that on 7 August 2015 Mr Williams had written to Ms Barnes informing her that the resolution of the Committee was deficient in that it had failed to provide reasons as required by section 318 of the Act. The reference to section 318 was in fact an error, as pointed out by Ms Barnes in her reply of 11 August 2015. She correctly referred to section 542 of the Act but then asserted that the resolution was an expression of opinion and not a decision within section 542.
On 15 October 2015 the Professional Conduct Committee resolved to institute proceedings against the respondent and Mr Williams was so informed by letter dated 20 October 2015. Notwithstanding that the applicant had previously been alerted to the requirement to give reasons under section 542 of the Act, no reasons were given, a deficiency which proved fatal when the matter was later litigated in the Supreme Court.
On 1 April 2016 the applicant initiated proceedings in this Tribunal. The proceedings were adjourned pending the outcome of the Supreme Court proceedings referred to below.
On 17 February 2016 the respondent, together with another solicitor against whom a similar complaint had been made, Mr Dev Menon had filed a Summons in the Supreme Court of NSW seeking judicial review of the decision of the applicant to commence proceedings. The matter was heard on 14 June 2016 and judgement was delivered by Fagan J on 20 September 2016 in Menon v Council of the Law Society of NSW [2016] NSWSC 1322. His Honour held that the decision of the applicant that it was satisfied that there was a reasonable likelihood that the respondent would be found by the Tribunal to have engaged in professional misconduct and to institute proceedings was void primarily because of a failure of the Council to provide reasons as required by section 542 of the Act. The applicant was restrained from taking any further steps in the proceedings which had been commenced in this Tribunal.
On 1 November 2016 Mr Williams forwarded submissions on behalf of his client to the applicant as to the further course of the complaints made by the applicant against him. Included within those submissions was material under the heading "Delay". In summary, that material referred to the underlying undertakings given by the respondent to the RTA and to the conversation between the respondent and Ms Bayley in October 2010 and the period of more than six years which had elapsed in general terms since the conduct complained of. Furthermore, a period of more than four years had elapsed since the applicant had initiated complaints and the investigator had interviewed the respondent without informing him and others of the nature of the complaint. It was asserted that the respondent was not responsible for any such delay, and the delay occurred in breach of section 592 of the Act. It was said that the delay was analogous to that considered by the NSW Court of Appeal in Carson v Legal Services Commissioner [2000] NSWCA 308, a decision to which we shall refer later in these reasons for decision.
The current application before this Tribunal was filed on 15 February 2017.

The course of these proceedings

At the commencement of the hearing of these proceedings the applicant asserted that not only was there no appropriate basis for the stay application brought by the respondent, but that this Tribunal had no power to deal with it. The respondent submitted, and the applicant denied, that this Tribunal had both express power and implied power to grant the permanent stay which he sought.
Accordingly, there are two substantial matters which we are required to determine and we shall now deal with each of them in turn.

Express power?

It is uncontroversial that any express power must be found in the provisions of the legislation which establishes this statutory tribunal, namely the Civil and Administrative Tribunal Act. It is also possible that such power may be found in the provisions of any enabling legislation which bestows jurisdiction and power on the Tribunal, such as the Act. The respondent relied on section 563 of the Act, but for reasons which we shall shortly set out, it is not necessary to consider the provisions of the Act. That section is in the following terms; 563 Interlocutory and interim orders (1) The Tribunal may make interlocutory or interim orders as it thinks fit before making its final decision about a complaint against an Australian legal practitioner. (2) Without limiting subsection (1), orders of the kinds referred to in section 562 (Determinations of Tribunal) may be made as interlocutory or interim orders.
The respondent relied on the provisions of sections 28 and 29 of the Civil and Administrative Tribunal Act, which are in the following terms; 28 JURISDICTION OF TRIBUNAL GENERALLY (1) The Tribunal has such jurisdiction and functions as may be conferred or imposed on it by or under this Act or any other legislation. (2) In particular, the jurisdiction of the Tribunal consists of the following kinds of jurisdiction: (a) the general jurisdiction of the Tribunal, (b) the administrative review jurisdiction of the Tribunal, (c) the appeal jurisdiction of the Tribunal (comprising its external and internal appeal jurisdiction), (d) the enforcement jurisdiction of the Tribunal. (3) Subject to this Act and enabling legislation, the Tribunal has jurisdiction in respect of matters arising before or after the establishment of the Tribunal. 29 GENERAL JURISDICTION (1) The Tribunal has "general jurisdiction" over a matter if: (a) legislation (other than this Act or the procedural rules) enables the Tribunal to make decisions or exercise other functions, whether on application or of its own motion, of a kind specified by the legislation in respect of that matter, and (b) the matter does not otherwise fall within the administrative review jurisdiction, appeal jurisdiction or enforcement jurisdiction of the Tribunal. Note : The general jurisdiction of the Tribunal includes (but is not limited to) functions conferred on the Tribunal by enabling legislation to review or otherwise re-examine decisions of persons or bodies other than in connection with the exercise of the Tribunal's administrative review jurisdiction. (2) The Tribunal also has the following jurisdiction in proceedings for the exercise of its general jurisdiction: (a) the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings, (b) the jurisdiction to exercise such other functions as are conferred or imposed on the Tribunal by or under this Act or enabling legislation in connection with the conduct or resolution of such proceedings. (3) A "general decision" of the Tribunal is a decision of the Tribunal determining a matter over which it has general jurisdiction. (4) A "general application" is an application made to the Tribunal for a general decision. (5) Nothing in this section permits general jurisdiction to be conferred on the Tribunal by a statutory rule unless the conferral of jurisdiction by such means is expressly authorised by another Act.
Of these provisions, section 29 (2) (a) is of critical significance. It refers to both ancillary and interlocutory decisions and both these expressions are defined in section 4 of that Act in the following terms; "ancillary decision" of the Tribunal means a decision made by the Tribunal under legislation (other than an interlocutory decision of the Tribunal) that is preliminary to, or consequential on, a decision determining proceedings, including: (a) a decision concerning whether the Tribunal has jurisdiction to deal with a matter, and (b) a decision concerning the awarding of costs in proceedings. "interlocutory decision" of the Tribunal means a decision made by the Tribunal under legislation concerning any of the following: (a) the granting of a stay or adjournment, (b) the prohibition or restriction of the disclosure, broadcast or publication of matters, (c) the issue of a summons, (d) the extension of time for any matter (including for the lodgment of an application or appeal), (e) an evidential matter, (f) the disqualification of any member, (g) the joinder or misjoinder of a party to proceedings, (h) the summary dismissal of proceedings, (i) any other interlocutory issue before the Tribunal.
For completeness, we also set out the definition of decision contained in section 5; 5 MEANING OF "DECISION" (1) In this Act, "decision" includes any of the following: (a) making, suspending, revoking or refusing to make an order or determination, (b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission, (c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument, (d) imposing a condition or restriction, (e) making a declaration, demand or requirement, (f) retaining, or refusing to deliver up, an article, (g) doing or refusing to do any other act or thing. (2) For the purposes of this Act: (a) a decision is made under enabling legislation or this Act if it is made in the exercise (or purported exercise) of a function conferred or imposed by or under the enabling legislation or this Act, and (b) a decision that purports to be made under enabling legislation or this Act is taken to be a decision made under the enabling legislation or this Act even if the decision was beyond the power of the decision-maker to make, and (c) a refusal of a decision-maker to make a decision under enabling legislation or this Act because the decision-maker considers that the decision concerned cannot lawfully be made under the enabling legislation or this Act is taken to be a decision made under the enabling legislation or this Act to refuse to make the decision requested, and (d) a failure by a decision-maker to make a decision within the period specified by enabling legislation or this Act for making the decision is taken to be a decision by the decision-maker at the end of the period to refuse to make the decision.
We also set out the provisions of section 55 of that Act, because the applicant sought to rely upon them; 55 DISMISSAL OF PROCEEDINGS (1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances: (a) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) withdraws the application or appeal to which the proceedings relate, (b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, (c) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) has failed to appear in the proceedings, (d) if the Tribunal considers that there has been a want of prosecution of the proceedings. (2) The Tribunal may reinstate proceedings that have been dismissed under subsection (1) (c) if the Tribunal considers that there is a reasonable explanation for that failure
We first refer to the definition of ancillary decision in section 4 of the Civil and Administrative Tribunal Act. Neither party contended that the permanent stay application with which we are dealing would constitute an ancillary decision for the purpose of the definition, and we agree that it could not do so.
This leaves for consideration whether or not this application for a permanent stay can be characterised as an interlocutory decision in the proceedings.
A great deal of argument in the course of these proceedings revolved around the meaning of the words "interlocutory decision" as defined in section 4 and applied in section 29 (2) (a) of the Civil and Administrative Tribunal Act. It was said by the applicant that those words must bear what we shall describe as the common law meaning as discussed in relevant authorities, and in particular High Court authorities, to which we shall shortly refer.
In order to determine this matter, it is necessary to have regard to the provisions of section 29(2)(a) to see whether they admit of a consideration of the common law meaning. It is not controversial that the substantive proceedings initiated by the applicant against the respondent alleging professional misconduct involve the exercise of the general jurisdiction of this Tribunal. As such, the Tribunal is empowered to make interlocutory decisions, as defined in section 4, while exercising that general jurisdiction. Accordingly, it is empowered to make a decision granting a stay of the proceedings. The reference to "stay" is not qualified in any way having regard to whether it is permanent or not, or absolute or conditional. Prima facie, this Tribunal is empowered to stay proceedings of which it is seised in the exercise of its general jurisdiction. Seen in this way, we do not apprehend that we need to resort to common-law authorities as to what constitutes an interlocutory decision and whether in some circumstances a permanent stay may be characterised as being a final rather than an interlocutory decision.
If we are incorrect in this approach to the construction of the provisions of section 29(2)(a), it then becomes necessary to examine authority to assist in discerning the appropriate meaning of what is an interlocutory decision as that expression is used in section 29(2)(a) and this is an area which was the focus of much of the submissions of the parties. A good starting point is the decision of the High Court of Australia in Licul v Corney (1975) 180 CLR 213. The proceedings concerned an appeal to the High Court from an order of the Full Court of the Supreme Court of Victoria which had set aside orders perfecting the service of a summons in a personal injuries claim. If the order of the Full Court was an interlocutory judgement, leave to appeal was necessary.
The Court was divided on the ultimate disposition of the appeal concerning the grant of leave, however all members of the Court were of the opinion that the order under appeal was an interlocutory judgement.
Barwick CJ distinguished between an interlocutory order and a final order. A final order "must of its own force put an end to the action or proceeding between the parties. It is not enough, in my opinion, that by reason of circumstances unconnected with and uncontrolled by the order itself, it may be or become impossible or impracticable to proceed with this action." (at 219 - 220). His Honour noted that all the proceedings between the parties had been interlocutory. The order of the Full Court did not finally dispose of the action between the parties, nor did it settle their substantive rights because the plaintiff was entitled to apply to a judge for an order extending the time for service of a summons in the action.
Gibbs J, in discussing the distinction between a final and interlocutory judgement noted that it was "not always easy to draw and there has been disagreement as to the test…." In his Honour's opinion the test did not depend upon the nature of the application made to the court but "depends on the nature of the order made; the test is: Does the judgement or order, as made, finally dispose of the rights of the parties?" The order in those proceedings was not final in nature, whatever its practical effect because as was observed by Barwick CJ, the plaintiff could still apply for an extension of time for service of the summons. Each of the other members of the Court, Stephen and Jacobs JJ and Mason J (as his Honour then was) assumed that the order appealed from was an interlocutory order.
The decision in Licul was applied by the High Court in Port of Melbourne Authority v Anshun Pty Ltd (1980) 147 CLR 35. A company sought indemnity from another company for the payment of damages payable to a person who had been injured and had obtained judgement against both of them. The claim for indemnity was stayed on the ground that it constituted an abuse of process and should have been litigated in the course of the original proceedings. On eventual appeal to the High Court, all members of the Court agreed that the decision permanently staying the claim for indemnity was not an interlocutory decision but a final decision. The principal judgment was delivered by Gibbs J (as his Honour then was) with whom Mason J and Murphy J agreed.
In his judgement, Gibbs J distinguished between an order staying an action on the ground that it was frivolous, vexatious and an abuse of process or which disclosed no reasonable cause of action and which was an interlocutory order, from an order granting a stay on the ground that there was an estoppel of the kind present in the proceedings, which his Honour characterised as being "a case in which the abuse of process lies in an attempt to litigate an issue which is res judicata…." His Honour concluded that "in the present case, as a matter of reality, the order made does finally dispose of the rights of the parties,…". and on that basis was a final order.
There is further discussion of the application of the test in Licul in the High Court in Carr v Finance Corporation of Australia Ltd (No 1) (1981) HCA 20, (1980 - 1981) 147 CLR 246. Finance Corporation of Australia obtained default judgement against borrowers for monies owing under a number of finance transactions. The borrowers sought to set aside the judgement and that they be allowed to defend the proceedings. They appealed against an ultimate decision of the Court of Appeal Division of the Supreme Court of NSW refusing to allow them to apply to set aside the judgement. On appeal, the High Court considered inter alia whether the order appealed from was an interlocutory or final order so as to determine whether there was an appeal as of right.
Gibbs CJ affirmed that the appropriate test was that contained in Licul which required the Court "to have regard to the legal rather than the practical effect of the judgement. If this were not so, the question whether a judgement is final or interlocutory would be even more uncertain than it is at present. In some cases it would be necessary for the Court, for the purpose of determining the practical effect of an order refusing to set aside a default judgement, to embark on a detailed enquiry as to the facts of the matter and the course of the proceedings already taken - an enquiry quite inappropriate when the only issue is whether a right of appeal exists. As will be seen, it would be necessary to make an enquiry of that kind in the present case if the practical test were to be adopted…." (at 248 CLR). On this basis, his Honour concluded that the judgement appealed from was not a final judgement.
Mason J (as his Honour then was) adopted a similar approach. At 256 CLR and following his Honour said: The question remains whether the refusal of an application amounts to a final order, when the practical effect of that order is to preclude the defendant from making another application to set aside the judgment, although in strict law the defendant is free to bring his application, knowing that it will inevitably fail. The present case is a striking example. Naturally the Court of Appeal could not be expected to depart from its earlier decision. Consequently a further application to set aside the judgment is of no value to the appellants. In Hewitt (1977) 17 ACTR 1 it was very different. (at p256) The choice for the Court is whether it should continue to adopt the traditional classification of orders of this kind as interlocutory because there is the right to make another application and because the order does not deal directly with the rights in contest in the action or whether it should now classify such orders as final when their practical effect is to shut out the defendant from contesting the default judgment. (at p256) Although the second alternative has some attractions, it has the disadvantage that the character of the order (whether it be final or interlocutory) could not be determined on its face, but could only be ascertained after an examination of the grounds on which the application to set aside was made, the grounds on which it was refused and the formation of a judgment as to the impact of the grounds of refusal on the prospects of bringing a second application. The adoption of this approach would bring yet a further complication to the complexities which already bedevil the existence of appeals as of right to this Court. (at p256) The prospect that there could be a steady stream of appeals to this Court from orders on applications to set aside default judgments, if the character of a final order be conceded to them, is by no means an inviting prospect. Even so, I would not shrink from making that concession if it be correct in law so to do, in order to do justice to the parties. However, for the reasons already given, I do not consider it to be a correct approach. It goes without saying, that the unsuccessful party can, in an appropriate case, apply for and obtain special leave to appeal. (at p257)
This issue was further considered by the High Court in Re Luck [2003] HCA 70. The plaintiff had sought leave to serve a statement of claim issued in the original jurisdiction of the High Court. The Chief Justice had held that it disclosed no cause of action and declined leave to allow it to be served. On appeal the Court (McHugh ACJ, Gummow and Heydon JJ) applied a test formulated in other proceedings in the High Court stating that "…..the usual test for determining whether an order is final or interlocutory is whether the order, as made, finally determines the rights of the parties in a principal cause pending between them. That question is answered by determining whether the legal effect of the judgement is final or not. If the legal effect of the judgement is final, it is a final order; otherwise, it is an interlocutory order." (At [4]).
In the course of their judgement, their Honours said; 6 For more than a century, courts, including courts of the highest authority, have consistently held that an order staying an action on the ground that it is frivolous, vexatious or an abuse of process is an interlocutory order[3]. In 1956 in Hunt v Allied Bakeries Ltd[4], Lord Evershed MR said: "After consulting with the Chief Registrar and looking at the case[s], and also after consultation with my colleagues, I am left in no doubt at all that, rightly or wrongly, orders dismissing actions - either because they are frivolous and vexatious, or on the ground of disclosure of no reasonable cause of action - have for a very long time been treated as interlocutory." 7 The long line of cases to which Lord Evershed referred was confirmed in Tampion v Anderson[5], a decision of the Judicial Committee of the Privy Council on a petition for special leave to appeal against orders of the Supreme Court of Victoria. In Tampion, the Judicial Committee held that orders staying actions for defamation and misfeasance of office on the ground that they were frivolous, vexatious and an abuse of process were interlocutory orders. Lord Kilbrandon, giving the advice of the Judicial Committee, said[6] that "a consistent line of authority" left "no doubt" that such orders were interlocutory. His Lordship said[7] that the "matter is really put beyond doubt" by Hunt[8] and cited the above statement of Lord Evershed. When Tampion was decided, the Judicial Committee of the Privy Council was the final court of appeal for Australia for matters such as those involved in that case. Consequently, the advice of the Judicial Committee in Tampion was binding on all Australian courts including this Court. 8 Privy Council decisions no longer bind this Court. Moreover, no case in this Court has expressly decided that interlocutory orders include an order dismissing an action because it is frivolous, vexatious, an abuse of process or because it fails to disclose a reasonable cause of action. But a number of cases decided in this Court before and after Tampion are consistent with the view that an order falling within any of these categories is an interlocutory order. In Pye v Renshaw[9], the Court held that an order dismissing a suit if no amendment were made to the statement of claim within 21 days was an interlocutory order. In Hall v Nominal Defendant[10], the Court held that an order refusing an extension of time in which to sue was an interlocutory order. Taylor J referred[11] with evident approval to the rule, established in England, that an order striking out a claim on the ground that it was frivolous, vexatious or an abuse of process or that it disclosed no cause of action was interlocutory in nature. In Carr v Finance Corporation of Australia Ltd [No 1][12], the Court held that an order of the Supreme Court of a State refusing to set aside a judgment obtained upon the default of the defendant in delivering a defence was an interlocutory order. In Bienstein[13], the Court found that orders made by a single Justice (a) to dismiss an application to disqualify himself from hearing the application for removal, and (b) to remove particular causes pending in the Family Court into the High Court, were interlocutory orders. 9 Given the long established English rule, the decision in Tampion and our decisions in Pye, Hall, Carr and Bienstein, we see no valid reason for departing from the rule laid down in Tampion. An order is an interlocutory order, therefore, when it stays or dismisses an action or refuses leave to commence or proceed with an action because the action is frivolous, vexatious, an abuse of the process of the court or does not disclose a reasonable cause of action. 10 A Justice who makes an order made under O 58 r 4 does so because it appears that the process filed is frivolous, vexatious or an abuse of process. The order made by Callinan J was therefore an interlocutory order, as was the order of Gleeson CJ refusing leave to proceed. (citations omitted)
We were taken by senior counsel for both parties to a number of authorities which have sought to apply the approach adopted by the High Court in Licul and Carr in the context of difficulties which were perceived to have been created by the Anshun decision. One of those authorities was a decision of the Full Court of the Federal Court of Australia in Egglishaw v Australian Crime Commission [2007] FCAFC 183. Those proceedings dealt with an appeal from a decision of a single Judge of the Court to refuse an application to provide a copy of a computer hard drive on the basis of Anshun estoppel by reference to earlier proceedings between the parties. On appeal, the Full Court held that Anshun estoppel did not apply, and the decision appealed from was a final decision and not an interlocutory decision. It is obvious that the decision under appeal was a final decision because it determined the rights of the plaintiff in the underlying proceedings to obtain a copy of the computer hard drive, that being the only issue to be determined.
In the course of their joint judgement, Finn, Kenny and Edmonds JJ reviewed the several High Court authorities to which we have referred and concluded that there was no inconsistency between the decisions in Anshun and Re Luck. Their Honours said (omitting citations): 43 We do not consider there is any inconsistency between the two decisions. Anshun [No 1] did not concern this kind of case. The difference between Re Luck and Anshun [No 1] flows from the difference between the judgments from which an appeal was brought or sought to be brought. Re Luck applied the rule in Tampion, to which, consistently with Anshun [No 1], the rule applied. Re Luck was not an estoppel or res judicata case. In Re Luck the Court held that the refusal of leave to serve a writ and statement of claim that appeared to be an abuse of the process of the Court would not finally determine the parties' rights and, therefore, the consequential judgment was interlocutory. This conclusion is confirmed by the fact that Ms Luck retained the right to issue proceedings in due form. 44 As Mansfield J observed in SBFF, at 51: But their Honours did not seek to qualify or explain what had earlier been said in Anshun ...and the unequivocal statement at ... 4 does not specifically refer to decisions such as in this case, where the applicant's application to review the decision ... for the second time sought to go behind an already final judgment which had finally determined his rights. We agree that there is nothing in Re Luck that seeks to qualify or overrule the Court in Anshun [No 1]. Furthermore, the Court in Anshun [No 1] recognized that there might well be a relevant difference between a case such as the present, where an earlier judgment or proceeding precludes a further judgment or proceeding, and the ordinary case, where a proceeding discloses no cause of action, is frivolous or vexatious, or is to be dismissed on some other basis involving no final determination of rights. The latter case was the kind discussed in Tampion and Re Luck, but, as the judgment in Anshun [No 1] makes clear, Tampion and therefore Re Luck do not concern the former kind of case, with which we are concerned here.
In Macatangay v State of New South Wales (No 2) [2009] NSWCA 272 the NSW Court of Appeal considered the characterisation of a judgment from a single Judge dismissing proceedings as an abuse of process. The Court (Allsop P, Tobias JA and Handley AJA said; 10 The order of Grove J for the summary dismissal was made under the UCPR, Part 13 r 13.4 which is in the following terms: Frivolous and vexatious proceedings "(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings: (a) the proceedings are frivolous or vexatious, or (b) no reasonable cause of action is disclosed, or (c) the proceedings are an abuse of the process of the court, the court may order that the proceedings be dismissed generally or in relation to that claim. (2) The court may receive evidence on the hearing of an application for an order under subrule (1)." 11 The order of Grove J was interlocutory. This Court decided that in Wickstead v Browne (1992) 30 NSWLR 1 in dealing with the relevantly indistinguishable provisions of Part 13 of the then Supreme Court Rules, citing relevant decisions of the High Court and Privy Council: Hall v Nominal Defendant [1966] HCA 36; 117 CLR 423 at 440; Tampion v Anderson [1973] VicRp 82; (1973) 48 ALJR 11 at 12. The order for dismissal may be seen to have a degree of finality in practical effect, but the test is whether it was final in legal effect: Carr v Finance Corporation of Australia Limited [No 1] [1981] HCA 20; 147 CLR 246 at 248; Bienstein v Bienstein [2003] HCA 7; 195 ALR 225 at [25]; Hi-Fert Pty Ltd v Kiukiang Maritime Carriers Inc (1998) 155 ALR 94 at 104-105. It was not final in legal effect because there was no triable issue, and it did not finally determine the rights of the parties or create res judicata estoppels. Whatever jurisprudential complexities lie behind the analysis, as the Privy Council made clear in Tampion v Anderson, clarity and consistency in approach is vital. The courts have had a consistent approach to the status of orders for, or to the effect of, summary dismissal since the 19th century: they are interlocutory. The High Court most recently reiterated this in In the Matter of An Appeal by Luck [2003] HCA 70; 78 ALJR 177 at 178-179, where the clear rule in Tampion v Anderson was expressly affirmed. The Court (McHugh ACJ, Gummow and Heydon JJ) said at 179: "An order is an interlocutory order, therefore, when it stays or dismisses an action or refuses leave to commence or proceed with an action because the action is frivolous vexatious, an abuse of the process of the court or does not disclose a reasonable cause of action." 12 The principle has been established for over 100 years by decisions some of which are binding on this Court.
The applicant relied substantially on a judgement of McColl JA in the NSW Court of Appeal in Bracks v Smyth-Kirk [2009] NSWCA 401. Those proceedings concerned a claim for damages for defamation where there had been previous proceedings arising with respect to the same matter against another defendant. The proceedings were dismissed because they were held to constitute an abuse of process because the previous judgement precluded recovery of damages by reason of the operation of a provision of the NSW Law Reform (Miscellaneous Provisions) Act dealing with multiple tortfeasors. In a separate judgement, her Honour discussed in great detail the relevant authorities in the High Court and in other courts dealing with the distinction between a final and an interlocutory judgement, and especially by reference to Anshun. Her Honour applied those authorities in what we perceive to be an orthodox manner, recognising the basis upon which an Anshun estoppel can create a final judgement. Her Honour held that in the circumstances of the proceedings in Bracks, the dismissal of the proceedings was relevantly analogous to an Anshun situation and should therefore be characterised as a final judgement. Allsop P in a separate judgement disagreed with this aspect of the reasoning of McColl JA, concluding that the application of the provisions of the Law Reform (Miscellaneous Provisions) Act made it clear that the second action was not barred by some form of statutory estoppel or res judicata but that the sum recoverable was affected by the sum recovered in the earlier proceedings. On this basis, the Anshun estoppel did not apply. The third member of the Court, Young JA did not address this issue. Accordingly, we do not regard these proceedings as authority which would detract from the overall thrust of the authorities which we have discussed above. The judgement of McColl JA was based on her Honour's view of the nature and effect of the operation of the Law Reform (Miscellaneous Provisions) Act, and does not call into question the orthodox approach to the characterisation of a decision as being either interlocutory or final.
The thrust of the authorities to which we have referred requires us to have regard to the legal effect of the stay order which we are asked to make. It is not an order which would determine whether the respondent was or was not guilty of professional misconduct as alleged by the applicant. If the permanent stay was to be granted on the basis contended for by the respondent, it would result from a conclusion that the proceedings constituted an abuse of process and would say nothing about the underlying complaints brought against the respondent. We note that the respondent does not seek to base his application on any allegation that the complaints had no foundation in law or were otherwise doomed to fail.
Nor is there any suggestion of any concurrent or related proceedings or determination of the kind referred to in Anshun or which might apply by way of analogy to Anshun which would cause the proceedings to be characterised as interlocutory. The key distinction drawn by the authorities is between a permanent stay of proceedings on the ground that the proceedings are an abuse of process, and where the abuse is an attempt to re-litigate issues that are res judicata or in respect of which a cause of action estoppel, issue estoppel, or Anshun estoppel, operates. That distinction is consistent with the authorities on which the applicant relied, including Leybourne v Habkouk [2012] NSWCA 212 and Kermani v Westpac Banking Corporation (2012) 36 VR 130.
We conclude, that based on the authorities to which we have referred, that the application for a permanent stay made in these proceedings, which is based upon the application before us is an interlocutory application as that expression is understood at common law, and thus within the Tribunal's powers under s 29(2)(a) of the Civil and Administrative Tribunal Act. For these reasons, we reject the argument of the applicant that we are not empowered to make the order sought.

Implied power

The respondent also asserted that this Tribunal has an implied power to order a permanent stay of proceedings. In support of the existence of this power he relied upon the judgement of Mason P in Strong v the Law Society of NSW [2001] NSWCA 311 (with whom Davies and Ipp AJA agreed). In referring to the jurisdiction of the former Administrative Decisions Tribunal, his Honour said that that Tribunal had power to entertain an application for a permanent stay, citing Director of Public Prosecutions v Shirvanian (1998) 45 NSWLR 129.
In Shirvanian, the NSW Court of Appeal held that a Local Court conducting a summary trial was empowered to permanently stay criminal proceedings on the basis that they constituted an abuse of process. The principal judgment is that of Mason P with whom Beazley JA (as her Honour then was) agreed. Powell JA dissented.
In discussing, in general terms, the jurisdiction/power dichotomy possessed by a court, including an inferior court created by statute Mason P said: The jurisdiction of a court is not to be confused with its powers. Unfortunately, the expression "inherent jurisdiction" tends to promote such confusion. In Harris v Caladine (1991) 172 CLR 84 at 136, Toohey J said: "The distinction between jurisdiction and power is often blurred, particularly in the context of 'inherent jurisdiction'. But the distinction may at times be important. Jurisdiction is the authority which a court has to decide the range of matters that can be litigated before it; in the exercise of that jurisdiction a court has powers expressly or impliedly conferred by the legislation governing the court and 'such powers as are incidental and necessary to the exercise of the jurisdiction or the power so conferred': Parsons v Martin (1984) 5 FCR 235 at 241…." The High Court has warned against using the words "inherent jurisdiction" (1998) 44 NSWLR 129 at 133 in relation to a statutory court, even a superior court such as the Federal Court: see Jackson v Sterling (1987) 162 CLR 612 at 623-634, per Deane J, with whom Mason CJ, Wilson J and Dawson J agreed (at 630-631), per Toohey J. Instead, the majority in that case endorsed (at 623-624) the remarks of Bowen CJ in the Full Court of the Federal Court in Jackson (at 97): "In relation to a statutory court such as the Federal Court it is wise to avoid the use of the words 'inherent jurisdiction'. Nevertheless a statutory court which is expressly given certain jurisdiction and powers must exercise that jurisdiction and those powers. In doing so it must be taken to be given by implication whatever jurisdiction or powers may be necessary for the exercise of those expressly conferred. The implied power for example to prevent abuse of its process, is similar to, if not identical with, inherent power." See also per Toohey J (at 630-631): see also Re Z (1996) 134 FLR 40 at 63. In Grassby v The Queen (1989) 168 CLR 1 at 16-17, Dawson J spoke to similareffect when he said that: "… every court undoubtedly possesses jurisdiction arising by implication upon the principle that a grant of power carries with it everything necessary for its exercise (ubi aliquid conceditur, conceditur et id sine quo res ipsa esse non potest). Those implied powers may in many instances serve a function similar to that served by the inherent powers exercised by a superior court but they are derived from a different source and are limited in their extent. The distinction between inherent jurisdiction and jurisdiction by implication is not always made explicit, but it is, … fundamental." In aid of its statutory jurisdiction a court will have express and implied powers…… (at 132-3)
In discussing the nature and extent of the power to grant a stay, Mason P said: Stays to prevent or nullify abuse of process may be conditional or permanent. A permanent stay may be based upon the conclusion that the proceedings will necessarily fail (Ridgeway (at 41, 43)), or involve irremediable prejudice to the accused person that interferes with the conduct of a fair trial (Jago v District Court (NSW) (1989) 168 CLR 23), or are being conducted for a purpose whichin the eye of the law they are not intended to serve: Jago (at 47-48); Williams v Spautz (1992) 174 CLR 509; Ridgeway (at 46, 60, 75). Abuse of process is not confined to the obstruction of fairness in procedure: Jago (at 58); R v Brown (1989) 17 NSWLR 472 at 478-479; Ridgeway (at 75). There are statements of the highest authority to the effect that every court has either inherent or implied power to prevent its own processes being used to bring about injustice: see Maxwell v The Queen (1996) 184 CLR 501 at 512, 525, 535; CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 391 and cases cited. The chief, but not only, weapon in the courts' armoury is the stay. The power to stay for abuse "arises from the need for the court to be able to exercise effectively the jurisdiction which the court has to dispose of the proceedings": Williams v Spautz (at 518n), per Mason CJ, Dawson J, Toohey J, McHugh J. It is true that some of the discussion about the power to prevent abuse of process uses the language of "inherent jurisdiction" or refers to the powers of "superior courts": see, eg, Ridgeway (at 74), per Gaudron J. However, the passages from Jackson quoted above show that the implied power to prevent abuse of process "is similar to, if not identical with, inherent power". And recognition of a particular court as a superior court does not, in my view, offer a relevant point of distinction. No court in Australia has unlimited jurisdiction, and all courts in Australia are concerned with issues of fairness, avoidance of oppression, and the maintenance of general confidence in legal process. The last-mentioned goal itself imposes severe limits upon the power to stay proceedings, because a court that itself abuses the power to grant a permanent stay transgresses the separation of powers by trenching upon the proper function of the executive arm and declining its own constitutional function of determining disputes. For that reason the power to order a permanent stay is reserved for the extreme case: Jago (at 34), per Mason CJ; see also the English cases cited by Powell JA as to the power being "very strictly confined". In my view Jago v District Court (NSW) resolves in Australian law the question whether a court has the power in an appropriate case to stay criminal proceedings permanently for oppression amounting to abuse of process. The narrowness of the criteria upon which the power might properly be exercised was expressed in different ways by the various justices. However each (with the exception of Brennan J) asserted the ultimate proposition: see (at 33-34), per Mason CJ; (at 58), per Deane J; (at 71), per Toohey J; (at 75), per Gaudron J. Jago involved an inferior statutory court, the District Court of New South Wales. Unless something can be found in the relevant legislation to deprive a magistrate of the Local Court of similar power then there is no basis in point of principle for distinguishing between the District Court and the Local Court. This was the view taken by the Queensland Court of Criminal Appeal in Williamson v Trainor [1992] 2 Qd R 572 in relation to a Magistrates Court in that State. Since the passing of the Local Courts Act 1982 and the enactment in 1992 of Pt 9 of the Constitution Act 1902 (later doubly entrenched), magistrates of the Local Court have become constitutionally tenured judicial officers. They have power to impose substantial fines and terms of imprisonment. They are, like all judicial officers, charged with the duty to administer justice according to law. Since the principle which gives rise to the power in a proper case to grant a stay is that "the public interest in holding a trial does not warrant the holding of an unfair trial" (Jago (at 31), per Mason CJ), it follows that such power resides in a magistrate of the Local Court hearing a (summary) trial unless excluded by clear words. The duty to observe fairness, at least in its procedural sense, is a universal attribute of the judicial function. Those aspects of a fair trial known as the principles of natural justice apply by force of the common law and the presumed intent of parliament unless clearly excluded in a particular context. In my view, the same can be said about the power to prevent abuse of process as an incident of the duty to ensure a fair trial. And I can see no principled ground for excluding a power to grant a stay to prevent or nullify other categories of abuse of process. In Smiles v Commissioner of Taxation (Cth) (1992) 37 FCR 538 at 552, a Full Court of the Federal Court of Australia comprising Morling J, Beaumont J and Gummow J said: "It is clear that, in an appropriate case, the Local Court has the power to stay civil or criminal proceedings before it which are an abuse of process (see Jago (at 25-26), per Mason CJ; Spautz (at 518-521); Newby v Moodie (1988) 83 ALR 523 at 526). … The power of a court to stay a proceeding as an abuse of its process is an essential attribute of the exercise of the jurisdiction with which it is invested: see Spautz (at 520-521)." See also Coleman v Gray (1994) 55 FCR 412 at 437. It will be plain from the foregoing that I respectfully agree. It is appropriate at this stage to consider three arguments advanced by the plaintiff in opposition to this conclusion. They are: (1) the conclusion is precluded by the reasoning in Grassby v The Queen (1989) 168 CLR 1 and the provisions of the Justices Act; (2) the power to grant a permanent stay may be exercised by the Supreme Court and is best left solely in that Court's hands; (3) (text omitted)… [ …………………………………………………………………………… The Supreme Court's protective supervisory jurisdiction is not coincident with the implied powers of the Local Court. Thus, the Supreme Court can punish for certain contempts that are not cognisable in the Local Court, or impose a higher penalty for contempts that are so cognisable: see Re Metal Trades Employers' Association (1951) 82 CLR 208; John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351. In such cases, the Local Court does not have jurisdiction or power in such matters because it is not seen as a necessary incident of its jurisdiction, or because the power in a particular area (for example, contempt in the face of the court) is limited by statute. But it does not follow that the existence of a relevant head of supervisory jurisdiction in the Supreme Court necessarily excludes the exercise of a similar power in the Local Court as the court of trial. In my view, the submission that the power does not exist because it also resides elsewhere is not conclusive, and fails to meet the weight of the countervailing statements expressed with generality in the recent High Court decisions. In my view a magistrate is as well equipped to detect and remedy abuse of process in all of its manifestations as a reviewing judge of the Supreme Court. Indeed the former has the advantage of seeing the matter in immediate context and (from the defendant's viewpoint) the opportunity to remedy it before prejudice is suffered. If the power is exercised in a way that attracts criticism, then it is subject to review in the Supreme Court, as this case demonstrates.
We have quoted from the judgement of Mason P at length because it provides ample justification for the fundamental principle that a court, albeit an inferior statutory court, is empowered to exercise such authority as will ensure that its processes are not the subject of abuse. We see no reason why the same approach should not apply to the powers of this Tribunal. Although this Tribunal is clearly not a court of law, it nevertheless exercises functions and powers within its extensive jurisdiction which are akin to those traditionally exercised by courts. Its jurisdiction extends over a vast range of matters involving disputation between disparate litigants and extends beyond inter parties claims to the enforcement of statutory rights and, as is involved in the present proceedings, disciplinary matters covering a wide range of professions.
The legislation by which this Tribunal is established gives it a wide range of powers and functions. The provisions of sections 36 and 38 are relevant; 36 GUIDING PRINCIPLE TO BE APPLIED TO PRACTICE AND PROCEDURE (1) The "guiding principle" for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The Tribunal must seek to give effect to the guiding principle when it: (a) exercises any power given to it by this Act or the procedural rules, or (b) interprets any provision of this Act or the procedural rules. (3) Each of the following persons is under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal: (a) a party to proceedings in the Tribunal, (b) an Australian legal practitioner or other person who is representing a party in proceedings in the Tribunal. (4) In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings. (5) However, nothing in this section requires or permits the Tribunal to exercise any functions that are conferred or imposed on it under enabling legislation in a manner that is inconsistent with the objects or principles for which that legislation provides in relation to the exercise of those functions. 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.
We note also that even though this Tribunal is not generally bound by the rules of evidence, some of the enabling legislation which bestows jurisdiction does make provision for the application of the rules of evidence and requires that the Tribunal be constituted by members holding judicial qualifications. A ready example is the provisions of the Act and the legislation which has succeeded it. The Health Practitioner Regulation National Law (NSW) provides that when dealing with misconduct complaints against medical practitioners this Tribunal must be constituted by a presiding Senior Judicial Officer as defined in that Act.
The combined provisions of sections 36 and 38 which we have set out above require this Tribunal to engage in a "just "resolution of "the real issues" in matters coming before it, with an overall obligation to observe the rules of natural justice.
It seems to us that it would be anomalous that a tribunal having the functions and powers bestowed upon this Tribunal should not have the implied power to ensure that its own processes were not the subject of abuse and that its procedures were not capable of being stayed by it to avoid such abuse. There seems no reason why, as a matter of logic, these basic powers which repose in all courts including inferior courts created by statute should not also extend by the application of the same principles to the work of this Tribunal. We regard such a power to preclude the abuse of its processes by the grant of a stay of proceedings, whether permanent or conditional or otherwise as representing an inherent power in the sense that that expression is used in the authorities to which we have referred, and excluding, as we emphasise, the kind of inherent power possessed by a court of common law such as the Supreme Court of NSW.
For these reasons, we conclude that this Tribunal has an implied power to grant a permanent stay of proceedings as sought by the respondent provided that it is appropriate to make such an order.

BTH v The Public Guardian

We are conscious that in so concluding we find ourselves in respectful disagreement with a decision of the Appeal Panel of this Tribunal in BTH v The Public Guardian [2017] NSWCATAP 10. In those proceedings the Appeal Panel was asked to make an order for the permanent stay of appeal proceedings because, inter alia, they constituted an abuse of process. In the course of the decision the Appeal Panel said that it was empowered "to grant a stay in the context of making an interlocutory decision" by reference to the provisions of the Civil and Administrative Tribunal Act. Those provisions are contained within section 32 which is in the following terms; 32 INTERNAL APPEAL JURISDICTION OF TRIBUNAL (1) The Tribunal has "internal appeal jurisdiction" over: (a) any decision made by the Tribunal in proceedings for a general decision or administrative review decision, and (b) any decision made by a registrar of a kind that is declared by this Act or the procedural rules to be internally appealable for the purposes of this section. (2) The Tribunal also has the following jurisdiction in proceedings for the exercise of its internal appeal jurisdiction: (a) the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings, (b) the jurisdiction to exercise such other functions as are conferred or imposed on the Tribunal by or under this Act or enabling legislation in connection with the conduct or resolution of such proceedings. (3) However, the internal appeal jurisdiction of the Tribunal does not extend to: (a) any decision of an Appeal Panel, or (b) any decision of the Tribunal in an external appeal, or (c) any decision of the Tribunal in proceedings for the exercise of its enforcement jurisdiction, or (d) any decision of the Tribunal in proceedings for the imposition of a civil penalty in exercise of its general jurisdiction. Note : The decisions above may be appealable to the Supreme Court and, in some cases in relation to civil penalty decisions made by the Tribunal (whether under this Act or enabling legislation), the District Court. See section 73 and Part 6. (4) An "internally appealable decision" is a decision of the Tribunal or a registrar over which the Tribunal has internal appeal jurisdiction. (5) An "internal appeal" is an appeal to the Tribunal against an internally appealable decision. (6) Subject to the procedural rules, if a decision of a registrar is an internally appealable decision, the provisions of this Act relating to the making and determination of an internal appeal are taken to apply as if: (a) any reference to the Tribunal at first instance (however expressed) included a reference to a registrar, and (b) any requirement concerning the granting of leave to appeal against particular kinds of decisions of the Tribunal or on particular grounds extended to decisions of the same kind made by a registrar or grounds of the same kind.
After referring to this section, the Appeal Panel said; 48 The Tribunal is a creature of statute and is not possessed of inherent jurisdiction: Tuffy v Chadban [2004] NSWADT 216 at [21]; Herbert v Workers Compensation Commission [2016] NSWCATAD 28 at [34]. It is a repository of limited statutory powers afforded to it by the NSW Parliament. The Tribunal's powers must be found to be expressly granted to it by legislation, or be implied from the powers granted to, or from the nature and functions of, the Tribunal itself: Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 at [125] (Kirby J). 49 As pointed out by the appellant, the Tribunal in exercising its internal appeal jurisdiction has the jurisdiction to make ancillary and interlocutory decisions in proceedings (s 32(2)(a) CAT Act). The granting of a stay is defined in the CAT Act as an interlocutory decision (s 4(1)). Accordingly, one function that is open to the Appeal Panel in these proceedings is to grant a stay in the context of making an interlocutory decision. 50 The order we are asked to make by BTJ self-evidently however cannot be characterised as an interlocutory decision. On this point, the Appeal Panel accepts the submissions put by the appellant. The CAT Act prescribes to the Appeal Panel the function to order a stay as an interlocutory decision. By its nature, it is a function that goes to procedure, providing an interim power to prevent potential injustice between parties before a matter is finalised. The stay power conferred upon the Appeal Panel in these proceedings does not extend to ordering a stay which permanently ends the proceedings.
It will be seen that the foundation for the decision of the Appeal Panel was, as contained in [50], that an interlocutory decision is one confined to "an interim power to prevent potential injustice between parties before a matter is finalised." Because it had this character, an order in the nature of a permanent stay which was said to end the proceedings could not be characterised as an interlocutory decision. We observe, with respect, that such a conclusion is contrary to a long line of authorities in the High Court of Australia including Licul, to which we were taken at some length in oral and written submissions. We further observe that the Appeal Panel obviously did not have the advantage of being taken to this line of authority in the same meticulous and careful detail which senior counsel for both parties extended to us during the course of the hearing and its decision was made without reference to such authorities. For these reasons, we are unable to accord the degree of comity which we would otherwise apply to the reasoning of the Appeal Panel.

Should a stay be granted - relevant principles

The principles which apply to the exercise of discretion in considering whether to grant a permanent stay of proceedings were comprehensively discussed in the High Court of Australia in Jago v The District Court of NSW and Others [1989] HCA 46; (1989) 168 CLR 23. The appellant had been charged with criminal conduct occurring between 1976 and 1979. His case was listed for trial in 1987. His appeal was brought from a refusal by the trial judge to permanently stay the proceedings. It was submitted on his behalf that at common law a defendant of criminal charges was entitled not only to a fair trial but to a speedy trial. All members of the High Court rejected the existence of any principal that a defendant was entitled to a speedy trial separate from a right to a fair trial.
Whilst those proceedings were concerned with criminal charges, both parties to these proceedings relied on statements of principle contained within the several judgements in Jago as applying to the circumstances of these proceedings. We agree with this approach as being appropriate to assist in the determination of these proceedings.
A convenient starting point for a discussion of Jago is the judgement of Gaudron J who, at CLR 76 said; 14. The nature of the power to grant a permanent stay of proceedings itself reveals an important principle which confines its exercise. The power is, in essence, a power to refuse to exercise jurisdiction. It is thus to be exercised in the light of the principle that the conferral of jurisdiction imports a prima facie right in the person invoking that jurisdiction to have it exercised. In this context it is relevant to note the remarks of Deane J. in Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia [1987] HCA 27; (1987) 61 ALJR 393, at p 399; 72 ALR 1, at p 12, that the "prima facie right to insist upon the exercise of jurisdiction is a concomitant of a basic element of the rule of law, namely, that every person and organisation, regardless of rank, condition or official standing, is 'amenable to the jurisdiction' of the courts and other public tribunals". Thus, the power is one that is readily seen as exercisable (whether in civil or criminal proceedings) only in exceptional cases or, as was said by this Court in refusing special leave to appeal in Attorney-General (NSW) v. Watson (1987) 20 Leg Rep SL 1, "sparingly, and with the utmost caution". See, generally, Cocker v. Tempest [1841] EngR 242; (1841) 7 M & W 502 (151 ER 864); Lawrance v. Norreys, at p 219; Humphrys, at p 26; and Reg. v. Derby Crown Court; Ex parte Brooks (1984) 80 Cr App R 164, at p 168.
Assistance in understanding the in-principle approach adopted by all members of the Court in Jago may be obtained from the following extract from the judgement of Mason CJ at CLR 30-1: In essence then, the power to prevent an abuse of process in this context is derived from the public interest, first that trials and the processes preceding them are conducted fairly and, secondly, that, so far as possible, persons charged with criminal offences are both tried and tried without unreasonable delay. In this sense, fairness to the accused is not the sole criterion when a court decides whether a criminal trial should proceed. For the reasons given, I agree with the approach of Richardson J. as I have explained it. Bearing in mind his Honour's relatively broad view of what may amount to an "abuse of process", I agree also with his explanation of the rationale for the exercise of the power to stay a prosecution. His Honour stated (at p 482): "The justification for staying a prosecution is that the Court is obliged to take that extreme step in order to protect its own processes from abuse. It does so in order to prevent the criminal processes from being used for purposes alien to the administration of criminal justice under law. It may intervene in this way if it concludes from the conduct of the prosecutor ...that the Court processes are being employed for ulterior purposes or in such a way ... as to cause improper vexation and oppression. The yardstick is not simply fairness to the particular accused. It is not whether the initiation and continuation of the particular process seems in the circumstances to be unfair to him. That may be an important consideration. But the focus is on the misuse of the Court process by those responsible for law enforcement. It is whether the continuation of the prosecution is inconsistent with the recognised purposes of the administration of criminal justice and so constitutes an abuse of the process of the Court." The continuation of processes which will culminate in an unfair trial can be seen as a "misuse of the Court process" which will constitute an abuse of process because the public interest in holding a trial does not warrant the holding of an unfair trial. Ultimately, it does not matter whether the problem is resolved in this way, by invoking a wide interpretation of the concept of abuse of process, or by saying that courts possess an inherent power to prevent their processes being used in a manner which gives rise to injustice. In either event the power is discretionary, to be exercised in a principled way, and the same considerations will govern its exercise. And in each case the power will be used only in most exceptional circumstances to order that a criminal prosecution be stayed. I have already noted that a similar result was reached by taking a broad view of the concept of abuse of process in Reg. v. Derby Crown Court; Ex parte Brooks. If the distinction matters, I would prefer to regard the power as an incident of the general power of a court of justice to ensure fairness. (The reference to the judgement of Richardson J is to Moevao v Department of Labour [1980]1 NZLR 464 at 481).
In considering the impact of delay on proceedings Deane J said, at CLR 58; The power of a court to stay proceedings in a case of unreasonable delay is not confined to the case where the effect of the delay is that any subsequent trial must necessarily be an unfair one. Circumstances can arise in which such delay produces a situation in which any continuation of the proceedings would, of itself, be so unfairly and unjustifiably oppressive that it would constitute an abuse of the court's process. Multiple prosecutions arising out of the one set of events but separated by many years or a renewed charge brought years after the dismissal of earlier proceedings for want of prosecution could, in a case where the relevant material had been available to the prosecution from the outset and depending on the particular facts, provide examples. Where such circumstances exist, the power of a court to prevent abuse of its process extends to the making of an order that proceedings be permanently stayed.
It is not necessary for the purpose of this discussion that we examine the reasoning of all members of the High Court in denying the existence of a common-law right to a speedy trial. All members of the Court proceeded to consider the undoubted delay which had occurred in the circumstances of those proceedings in the context of whether and to what extent the delay affected the right of the defendant to a fair trial. This led to a consideration of the processes and procedures available to a trial judge to counter the prejudice which might affect the defendant in the defence of the proceedings. If such processes and procedures were available, this would prevent an unfair trial and would militate against the grant of a permanent stay. An indication of this approach may be gained from an extract from the judgement of Deane J at CLR 60-1; It is not practicable to seek to precisely identify in advance the various factors which may be relevant in determining whether, in the circumstances of a particular case, unreasonable delay has produced the extreme situation in which any further proceedings should be permanently stayed. The starting point will be consideration of the question whether the delay is so prolonged that it is unreasonable in the context of the particular case. An affirmative answer to that question will, at least where the accused does not share responsibility for the delay, prima facie indicate that the accused is entitled to some relief (e.g. an order fixing a date for trial). It will not, however, of itself and viewed in isolation, suffice to found an order that the proceedings be stayed. In that regard, it is relevant to note that, in the context of an accused being entitled to the benefit of any reasonable doubt, the vagueness and uncertainty of memory and evidence which is likely to result from delay is more likely to be damaging to the prosecution than to the defence case. An order that proceedings be permanently stayed will only be justified in the exceptional cases which I have indicated, namely, where it appears that the effect of the unreasonable delay is, in all the circumstances, that any subsequent trial will necessarily be an unfair one or that the continuation of the proceedings would be so unfairly oppressive that it would constitute an abuse of process. In his judgment in the present case, Kirby P. identified five main heads of relevant circumstances and considerations to which a court should advert in deciding whether proceedings should be stayed on the ground that the effect of delay on the part of the prosecution is that any trial will necessarily be an unfair one in all the circumstances. As his Honour indicated, the first four of them can be traced to the opinion of the Supreme Court of the United States (delivered by Powell J.) in Barker v. Wingo [1972] USSC 146; (1972) 407 US 514 (see also United States v. Von Neumann [1986] USSC 6; (1986) 474 US 242; Bell v. D.P.P. (1985) AC 937, at pp 951-952; Herron v. McGregor, at p 252; Reg. v. Clarkson, at p 968; Watson v. Attorney-General (NSW) (1987) 8 NSWLR 685, at pp 697-698). I would slightly adapt them to read: (i) the length of the delay; (ii) reasons given by the prosecution to explain or justify the delay; (iii) the accused's responsibility for and past attitude to the delay; and, (iv) proven or likely prejudice to the accused. The fifth is the public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime (see Reg. v. Clarkson, at p 972; Carver v. Attorney-General (NSW) (1987) 29 A Crim R 24, at p 32). Those five "heads" provide convenient reference points for answering the question whether the effect of a delay in a particular case is such as to bring about a situation where any trial will necessarily be an unfair one from the accused's point of view or a situation where the continuation of proceedings would be so unfairly oppressive that it would constitute an abuse of process. They should not, however, be treated as a code or permitted to divert attention from the fact that what will ordinarily be involved in answering that question is the formation of a value judgment in the context of the nature and seriousness of the alleged offence and having regard to all other relevant circumstances. Consideration of heads (i) (length of the delay) and (ii) (prosecution's explanation) will involve account being taken of the time when relevant material was first known to the authorities and whether the charge is a complex or simple one. It will also involve consideration of what is reasonable in the context of the limitations of institutional resources (cf. Mills v. The Queen, at pp 924-925; Aboud v. Attorney-General (NSW), at pp 683-684). Consideration of head (iv) (prejudice to the accused) will involve account being taken of the availability of other discretionary powers to mitigate the effects of delay. Consideration of head (v) (public interest) will require that account be taken of the fact that the primary responsibility for determining whether criminal proceedings should be maintained lies with the executive and not with the courts (see the judgment of Gaudron J. on this appeal). The delay on the part of the prosecution in the present case was an extraordinarily lengthy one. The reasons advanced by the prosecution to justify or explain it are unpersuasive. Nonetheless, I can see no basis for disagreeing with the conclusion of the majority of the Court of Appeal that the effect of the delay was not such as to produce a situation where any trial of the appellant would necessarily be an unfair one. Nor was its effect to make any continuation of the proceedings so unfairly oppressive of the appellant that it would constitute an abuse of process. As Kirby P. pointed out, the appellant: "... has lost no witnesses. He claims no special prejudice. And he acknowledges that the case of the prosecution is essentially a simple one: simple to present and therefore, by inference, simple to test, to criticise and possibly, to answer."
It follows from the above extract (and from observations to similar effect by other members of the Court) that the defendant must show some appropriate degree of prejudice occasioned by the delay, which has been described as either actual or "presumptive." In this respect, Mason CJ said, at CLR 33-4; The test of fairness which must be applied involves a balancing process, for the interests of the accused cannot be considered in isolation without regard to the community's right to expect that persons charged with criminal offences are brought to trial: see Barton, at pp 102, 106; Sang, at p 437; Carver v. Attorney-General (NSW) (1987) 29 A Crim R 24, at pp 31, 32. At the same time, it should not be overlooked that the community expects trials to be fair and to take place within a reasonable time after a person has been charged. The factors which need to be taken into account in deciding whether a permanent stay is needed in order to vindicate the accused's right to be protected against unfairness in the course of criminal proceedings cannot be precisely defined in a way which will cover every case. But they will generally include such matters as the length of the delay, the reasons for the delay, the accused's responsibility for asserting his rights and, of course, the prejudice suffered by the accused: Barker v. Wingo [1972] USSC 146; (1972) 407 US 514; Bell v. D.P.P. (1985) AC 937, as explained in Watson, and Gorman v. Fitzpatrick (1987) 32 A Crim R 330. In any event, a permanent stay should be ordered only in an extreme case and the making of such an order on the basis of delay alone will accordingly be very rare: Re Cooney (1987) 31 A Crim R 256, at pp 263-264. To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial "of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences": Barton, at p 111, per Wilson J. Where delay is the sole ground of complaint, an accused seeking a permanent stay must be "able to show that the lapse of time is such that any trial is necessarily unfair so that any conviction would bring the administration of justice into disrepute": Clarkson, at p 973. I agree with Toohey J. that no such case has been made out in the present appeal. For that reason, and because there is no right to a speedy trial or trial within a reasonable time independent of the right to be protected from unfairness resulting from undue delay, I would dismiss the appeal.
Toohey J made the following observations, to similar effect, at CLR 72-3; Once the present appellant is driven to rely upon his right to a fair trial, his case disappears for he has failed to show that the majority in the Court of Appeal erred in their approach to his application for a stay of proceedings on the indictment. There is more than one interest involved in the trial of the appellant. The Crown has an interest in bringing him to trial; he, of course, has an interest in obtaining a fair trial; running in parallel is the public interest that charges of serious offences be disposed of but that they be disposed of at a hearing which is fair and not oppressive to the person charged. See Barton, at p 102; also Clarkson, at pp 971-972; Carver v. Attorney-General (NSW) (1987) 29 A Crim R 24, at p 32. The court is alert to see that a person charged receives a fair trial, not to punish the behaviour of the Crown. As Kirby P. pointed out in the Court of Appeal, there is no suggestion in the present case that the prosecuting authorities deliberately caused the delay to gain some advantage for themselves. The appellant's real difficulty is that, notwithstanding a considerable delay in bringing him to trial (for four years of which no satisfactory explanation was offered), he does not suggest any actual prejudice as a result. Though the appellant argues that the delay has brought about "presumptive prejudice", the argument is not persuasive. It is enough to borrow the words of Kirby P. in the Court of Appeal: "This is not, after all, a case the trial of which will involve, as many corporate offences do, complex documentation and interrelated transactions. In such cases the erosion of memory over time could work a serious injustice to an accused person. Here, the basic Crown case will be proof of the financial transactions said to have been made without authority. That proof will rely very heavily upon cheque butts and bank records. No witnesses have died. The documentary evidence remains for the jury's consideration and, if so desired, for the accused's explanation." No doubt the appellant has been subjected to anxiety and also to inconvenience. The Court was told that bail included reporting conditions and the surrender of the appellant's passport. But it was not suggested that at any time a need had arisen to seek a variation of bail conditions. The appellant has not pointed to any particular aspect of the delay which has prejudiced his defence or which otherwise would make it unfair to him for the charges to proceed.
Gaudron J also addressed the concept of presumptive prejudice at CLR 78; The notion of "presumptive prejudice", as presented by reference to the facts of this case, assumes that, by reason of delay, the trial of the charges will involve some general, but unspecified, prejudice or damage, including, it would seem, prejudice in the conduct of the defence by reason of staleness of evidence. So stated, no feature of the proceedings presents itself as one as to which a court could be satisfied that the proceedings were thereby rendered so unfair that they were insusceptible of remedy by less drastic means. Accordingly, there is no power to grant a permanent stay of proceedings on the ground of "presumptive prejudice".
We also observe, for completeness, that the Court in Jago recognised that there was a public interest in the prosecution of criminal charges against persons reasonably suspected of having committed them.
The respondent relied substantially on the approach taken by the NSW Court of Appeal in Carson v Legal Services Commissioner & Anor [2000] NSWCA 308 in considering the impact of the delay by the applicant in prosecuting these proceedings. The circumstances which applied in Carson were complex, and arose out of Mr Carson's involvement as solicitor acting on behalf of clients in extensive litigation concerning a Mr Rajski and others which occupied the Supreme Court of NSW in the 1980s. Mr Rajski made a complaint to the Legal Services Commissioner concerning conduct allegedly engaged in by Mr Carson on 8 July 1994. The conduct complained of took place substantially between 1985 and 1988. There was therefore a considerable lapse of time between the conduct and the making of the complaint. The Commissioner delayed informing Mr Carson about the complaint until 20 January 1995 when he sought submissions about whether he should accept the complaint out of time. He determined to do so on 30 March 1995 but delayed instituting any proceedings before the then Legal Services Tribunal until 17 December 1996. The Commissioner offered no explanation for this further delay. Mr Carson initiated proceedings in the Supreme Court of NSW seeking that these proceedings be permanently stayed on a number of grounds, including but not limited to the delay in the institution of the proceedings. He was successful in part, and brought an appeal to the Court of Appeal with respect to the remainder of the proceedings. We are ultimately concerned only with such part of the appeal proceedings as deal with the question of delay.
On appeal, Sheller JA, (Giles JA agreeing and Hodgson CJ in Eq dissenting) in considering the question of delay referred firstly to the perception that the quality of justice deteriorates where there was delay before considering the application of sections 154 and 155 of the then Legal Profession Act 1987. These provisions required the Commissioner to investigate the complaint expeditiously and to make a decision about it as expeditiously as reasonably possible. His Honour determined that in all the circumstances the conduct of the Commissioner was oppressive and constituted an abuse of process. His Honour said; 262 Simpson J held that because actual prejudice was not proved, there was no abuse of process on account of delay despite "serious questions about the conduct of the office of the [Commissioner]." Her Honour effectively put aside any question of presumptive prejudice occasioned by such enormous delay. 263 In Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 at 551 McHugh J, speaking of the general perception that where there is delay the whole quality of justice deteriorates, said: "Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo [1972] USSC 146; (1972) 407 US 514 at 532, what has been forgotten can rarely be shown'. So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now knowing' that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose." 264 No doubt recognising the general perception which McHugh J discusses, s154 of the Act provides that an investigation by the Commissioner is to be conducted as expeditiously as possible. The delay suggests that this section was not complied with and nothing has been advanced to suggest otherwise. However, it is true that, pursuant to s138(2), the Commissioner accepted the complaint even though it was made more than three years after the conduct was alleged to have occurred and Simpson J rejected the appellant's claim that the acceptance of the complaint out of time was unreasonable. The appellant has not challenged this part of Simpson J's decision. 265 However, in my opinion, having accepted a complaint so far out of time it is the duty of the Commissioner to investigate it and, when the investigation has been completed, to make a decision under s155 as expeditiously as reasonably possible. The delay between 30 March 1995 and 17 December 1996 leads, in my mind, to the inevitable inference that the investigation was not conducted expeditiously and that the delay over this period was unacceptable. To this must be added the lack of any communication with the appellant and the other persons referred to in the affidavit of Ms Chang of 28 February 1997. Those persons were likely to be able to throw light on the validity of some of the complaints. During this period none of them was ever contacted by anyone from the Legal Services Commission about the complaints. To this may be added the circumstances in which the Information was filed hours before an arranged appointment with the appellant's legal advisers and the failure of the Commissioner to comply with the statutory requirements to give reasons. Against this background and in the context of the statutory requirements there is, on the ground of this delay alone, a powerful case to say that the conduct of the Commissioner was oppressive and an abuse of process.
It is important to note that the Court of Appeal was dealing with an appeal with respect to part only of the decision under appeal, the effect of which had been to permanently stay certain aspects of the proceedings instituted by the Legal Services Commissioner but allow others to proceed. The decision of the majority members was to the effect that the appeal with respect to those matters which had been disallowed succeeded, and accordingly, the hearing of all of the grounds of the complaint was permanently stayed. A principal reason in the Court of Appeal for granting the stay on all grounds was that "every ground of complaint alleged by the Commissioner was foredoomed to fail and accordingly the proceedings brought by Information before the Tribunal were an abuse of process and should be permanently stayed." (at [258]). It was only after this conclusion had been reached that Sheller JA went on to consider the question of delay. Whether and to what extent the Court of Appeal would have granted a permanent stay on the basis of delay alone is not stated, although it may be assumed that the use of the words "a powerful case to say that the conduct……. was oppressive and an abuse of process" would allow such an inference to be made.

Should a stay be granted-consideration

Having regard to the principles applying to a consideration of whether a permanent stay should be granted discussed above, and the circumstances applying in these proceedings we conclude as follows;

No ulterior motive

For completeness, we note that there can be no suggestion that the proceedings were instituted against the respondent for any purpose other than to pursue a complaint of professional misconduct. Nor can there be any suggestion that the continuation of the proceedings despite the many delays was motivated by any other reason.

The failure to inform the respondent of the complaint

The respondent complained that he was disadvantaged because none of the Legal Services Commissioner, the applicant or the investigator appointed by it advised the respondent that a complaint had been made, and as to the details of that complaint. The submissions of the respondent were based on a failure by the applicant in particular to comply with the provisions of section 508 (1) of the Act and the inability of the Commissioner and the applicant to rely on the provisions of section 508 (3).
Certainly, there is no evidence of any deliberation made by the Commissioner or officers of the applicant of the reasoning process by which a determination was made that the giving of notice would or would likely create prejudice of the kind referred to in Section 508 (3). It is likely that the respondent would have to engage in some further interlocutory steps before being in a position to prove what is, in effect, a negative proposition. Certainly, for present purposes there is no evidence of the reasoning process beyond the mere recitation of the opinions contained in the letters from the Commissioner and Ms Barnes which we have previously referred to.
It is possible that if there was a failure to comply with Section 508(1) that it may impact in some way on the conduct of the substantive proceedings and may have a bearing on the admissibility, weight or relevance of certain evidentiary material. However, there is no material available to us to indicate that in some way any deficiency would result in an unfair hearing which could not be corrected or accommodated in some way during the course of the hearing. It must be remembered that the rules of evidence will apply to any hearing. Accordingly, there is no evidence of actual prejudice, nor in the circumstances can we ipso facto conclude that there is any presumed prejudice. This conclusion is fortified by the fact that we are unable to conclude on the evidentiary material available that there has been a breach of section 508 (1).

The circumstances in which the investigator was appointed

It will be remembered that the respondent complained that the investigator was appointed and purported to be authorised to act under an incorrect provision of the Act namely section 267. We have previously commented that it would have been more appropriate for the appointment to be made under section 531 of the Act but that it might be arguable that the investigation might be justified by reference to section 268(1)(b) as being concerned with another aspect of the affairs of the law practice.
Again, there is insufficient evidentiary material for us to make any appropriate factual finding to form the basis of this aspect of the respondent's concerns. Again, also, there is no evidence of actual prejudice attaching to the respondent by reason of the circumstances in which the investigator was appointed. We again observe that it is possible that any deficiency may call into question the integrity and probity of the investigator's report and may result in its admissibility, weight or relevance being called into question. These are matters which can be addressed during the course of the hearing. They do not give rise to any question of presumed prejudice.

Delay

There can be no doubt that there has been considerable delay in the initiation and prosecution of these complaints. It is clear that the Commissioner acted promptly upon being informed of certain matters by police officers. Likewise, the applicant initially acted promptly when it resolved to make the complaint against the respondent and on 19 July 2012 when it appointed Mr David Courtenay to carry out an investigation. There is no explanation why it took Mr Courtenay until 27 September 2013 to complete his report. In the absence of any explanation, this represents an extraordinary delay. The applicant, in written submissions, eschewed any responsibility for this delay. It said; "Further, after the appointment of the investigator the progress and timing of his enquiries, investigation including the interviewing of relevant witnesses and the serving of his report were all matters beyond the control of the Society." We disagree. The investigator was at all times the agent of the applicant. The applicant was under a duty to act expeditiously. As will be seen, expedition is not a hallmark of the conduct of the applicant in these proceedings. It is the responsibility of the applicant to ensure that the work of its agent, the investigator, is carried out expeditiously. We acknowledge that we have no evidence as to whether or not Ms Barnes made any contact with the investigator to ensure that his work was completed expeditiously, and these comments are made only in response to the submissions of the applicant.
The respondent submitted that the delay in the completion of the investigator's report constitutes a breach of section 592 of the Act which requires the applicant to deal with complaints as efficiently and expeditiously as practicable. We agree that on a prima facie basis, having regard to the lack of evidentiary material before us, there has been such a breach. This constitutes an additional element of delay.
The respondent complained that there was a period of over three months between the resolution of the Professional Conduct Committee on 12 December 2013 to make a complaint against the respondent and the letter from the respondent of 18 March 2014 notifying him of the complaints and inviting submissions. While such a delay might be regrettable, we do not characterise it as extraordinary.
However, there was, in our opinion, an extraordinary delay between 20 August 2014 when comprehensive submissions were made by Mr Williams, solicitor, on behalf of the respondent and 16 July 2015 when the subcommittee of the Professional Standards Committee resolved to, in effect, proceed with the complaints as formulated. No explanation was provided by or on behalf of the applicant for this delay of almost 7 months.
The matter was further delayed by the necessity of the respondent to seek judicial review of what he had clearly signalled through his solicitor was a defective determination which formed the basis of the initial proceedings in this Tribunal. The applicant in submissions seems to have attributed a delay in the prosecution of these proceedings to the fault of the respondent which was said to be caused by his application to the Supreme Court. Nothing could be further from the truth. Any delay created by the necessity for the matter to be litigated before the Supreme Court must lie with the applicant for reasons which are obvious.
The respondent put particular emphasis on the failure of the applicant to deal with the complaints against him as required by section 592 of the Act, the provisions of which we have earlier set out. It was suggested that the existence of this provision which must inform the work of the applicant creates an additional element in considering whether there has been an abuse of process as that concept has been described and applied at common law in the authorities to which we have earlier made reference, and in particular in Jago. The provisions of section 592 equated with a right to a speedy trial which the High Court denied existed at common law. Accordingly, it was suggested that a clear breach of section 592 would militate towards the making of a permanent stay order because the respondent had been denied an expeditious and efficient consideration of the complaints brought against him.
Whilst this submission has superficial attraction, we do not consider that these proceedings should be approached on the basis that there exists in the respondent a right to have complaint proceedings brought against him in an expeditious manner. The existence of the obligation created by section 592 does not necessarily create a correlative right in the respondent to have any proceedings conducted in the manner asserted by him. If the legislature had intended to create such a right, it would have done so either expressly or by implication. We cannot discern that there is any such right so created. It may be assumed at law that investigating police officers and the like are obliged to conduct their activities in an efficient, effective and expeditious manner as is practicable in all the circumstances. Nevertheless, the law does not recognise an entitlement to a speedy trial, as is made clear in Jago. Whilst we reject any submission that such a right exists independently of a general consideration of delay in the overall context of a determination as to whether a permanent stay should be granted, it does form an important part in the process of determining whether such an order should be granted. Nevertheless, it is still necessary for the respondent to demonstrate that a fair hearing of the complaints brought against him has been compromised in a real sense.
As we have earlier stated, the respondent did not adduce any evidence during the course of these proceedings. Accordingly, as submitted by the applicant, it is virtually impossible to identify any actual prejudice created by the delays to which we have referred. In the course of submissions senior counsel for the respondent emphasised that the delay since the making of the file note by Ms Bayley will impact upon the recall of the respondent about that conversation. However, in the absence of any actual evidence by or on behalf of the respondent of difficulty with recall, senior counsel was forced to rely on the rubric of presumed prejudice.
Having regard to the authorities to which we have referred, we must exercise a great deal of caution in attempting to apply any notion of presumed prejudice. This is particularly so in the circumstances of these proceedings. There will need to be a sufficiently cogent factual matrix upon which a determination of presumed prejudice might be made. Despite a reference to this expression, coupled with a general reference to a deterioration of recollection and memory because of the lapse of time, which we assume is correct as a matter of common knowledge, the respondent was unable to point to any particular matter which would enable us to conclude that there was a prejudice to the respondent which might be presumed and which would deny him the opportunity of participating in a fair hearing.
Again, we are of the opinion that any prejudice whether actual or presumed which might be seen to arise during the course of the hearing can be accommodated by the Tribunal then constituted having regard to its obligation to ensure a fair hearing of the proceedings consistent with the application of the rules of evidence and the rules of natural justice.
As Deane J said, in Jago in the extract reproduced above; An order that proceedings be permanently stayed will only be justified in the exceptional cases which I have indicated, namely, where it appears that the effect of the unreasonable delay is, in all the circumstances, that any subsequent trial will necessarily be an unfair one or that the continuation of the proceedings would be so unfairly oppressive that it would constitute an abuse of process.
It is also necessary that we balance the interests of the respondent against the public interest, the nature of which was adverted to by Mason CJ in Jago extracted above and in the following terms; 20. The test of fairness which must be applied involves a balancing process, for the interests of the accused cannot be considered in isolation without regard to the community's right to expect that persons charged with criminal offences are brought to trial This approach must be applied by analogy to the prosecution of complaints of professional misconduct against legal practitioners.

Carson v Legal Services Commissioner & Anor

The respondent submitted that presumed prejudice could be determined by way of analogy to the factual circumstances which applied in Carson. We have earlier summarised the circumstances applying in those proceedings. The determination concerning the delay in those proceedings was made in the context that some witnesses had not been contacted, many years had passed and that there were other matters which justified the granting of a permanent stay. We are not persuaded that there is sufficient identity of factual circumstances to allow us to apply the decision in Carson as either binding or persuading us that the delay in the prosecution of these proceedings would ipso facto require that a permanent stay be granted.
We have already commented on the circumstances which apply to the probity of the report of the investigator. However, even if that report is not admitted into evidence, as we understand it the complaints made by the applicant are based firstly on documentary evidence of the applications made by the respondent to the RTA with the accompanying declarations and secondly on the file note made by Ms Bayley. These are all matters of documentation. Whether the delay has any impact upon their existence and admissibility into evidence may also arguably prejudice the applicant in the presentation of its case. The circumstances are sufficiently different from those which were considered in Carson.

Costs

The respondent sought an order for costs. Costs would normally follow the event. The question of costs has not been argued before us. We shall reserve costs and grant liberty to apply in the event that the parties cannot reach agreement.

Conclusion and orders

We are not persuaded that there is any actual or presumed prejudice attaching to the respondent in the defence of these proceedings which would justify making an order permanently staying them. Accordingly, the application must be dismissed.
We make the following orders; 1. The application for permanent stay is dismissed 2. Costs are reserved with liberty to apply which must be exercised within one month 3. Matter is listed for directions on 1 November 2017 at 9.30am

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

Amendments 08 January 2018 - Coversheet sheet, order 2 corrected DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 January 2018

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Judgment (21 paragraphs)

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Cited By (9)