Council of the Law Society of NSW v DXW

NCAT Occupational|2019-05-30

Background

On 13 August 2018 the Council of the Law Society of NSW ("the applicant") filed an Application for Disciplinary Findings and Orders in this Tribunal seeking a finding, inter alia, that DXW ("the respondent") was guilty of professional misconduct in his practice as a solicitor, and that certain consequential protective orders should be made against him.
In his Reply document, the respondent raised as a "preliminary issue" whether this Tribunal has jurisdiction to hear and determine this application. This contention was based on an assertion that the NSW Legal Services Commissioner had not delegated certain functions to the applicant. Subsequently, and for the purpose of determining this interlocutory point, the respondent also asserted that the proceedings could not have been validly initiated because an essential precondition to the initiation of the proceedings, namely the making of a complaint under the Legal Profession Uniform Law (NSW) ("the Uniform Law"), had not been attended to.
In dealing with this interlocutory application these reasons for decision will essentially focus on the making, management and administration of the complaints against the respondent solicitor that he is guilty of professional misconduct as particularised.

The statutory framework

Before examining the particular circumstances applying to these proceedings, it is first necessary to set out the statutory framework against which the proceedings have been brought.

The basis of the respondent's interlocutory application

As previously stated, these proceedings were initiated by the applicant. The respondent said it could only have properly done so if: 1. there was in existence a complaint made in accordance with the Uniform Law, and 2. the NSW Legal Services Commissioner had delegated the power to initiate the proceedings in this Tribunal to the applicant. A consideration of these matters is fundamental to the determination of the respondent's interlocutory application. The respondent asserts that neither of these requirements has been met.

The evidentiary material relating to the making of the complaints against the respondent

I was provided with certain documentation including affidavit material for the purpose of determining these interlocutory proceedings which I shall shortly describe. Both the applicant and the respondent were content for me to make a determination based solely on this evidentiary material. I observe that no material has been provided by the NSW Legal Services Commissioner ("the Commissioner"). This observation is not made with any criticism intended. As will be seen, the respondent submitted that the Commissioner was aware of the existence of these proceedings, as conceded to me by the applicant, and asked that I take into consideration the fact that if the Commissioner had available to him any evidence in support of the making of a complaint as required by the Uniform Law and the making of an appropriate delegation to the applicant to institute the proceedings, that evidence would have been provided. Having regard to the role played by the Commissioner in the administration and implementation of the Uniform Law in NSW, I would be surprised if the Commissioner did not volunteer to provide any information at his disposal which would assist in the determination of this interlocutory application. This is particularly so because the Commissioner's conduct, whether in connection with the delegation of functions to the applicant or in the making of the complaint is critical. However, neither party has sought to obtain any evidentiary material from the Commissioner, a course which might be open to them either informally or formally. I am content to determine the proceedings on the basis of such evidentiary material as has been produced, without the need to draw any inferences from the fact that particular evidence relating to delegation is peculiarly within the knowledge of the Commissioner (Compare Apollo Shower Screens v Building and Construction Industry Long Service Payments Corporation (1985) 1 NSWLR 561 at 565 per Hunt J)
A convenient starting point for the consideration of the evidence in these proceedings is the form of an Instrument of Delegation made by the Commissioner dated 18 June 2015. That document delegates, relevantly, to the Law Society of NSW under section 406 of the Uniform Law my functions as the designated local regulatory authority under the provisions of the Uniform Law stated in the Schedule to this delegation, in respect only of a complaint (as defined in section 265 of the Uniform Law) made to or by me which is; (a) a disciplinary matter (as defined in section 270 of the Uniform Law) which I have decided not to deal with or to continue to deal with, which I refer to the relevant Professional Association for assessment, investigation and determination under Chapter 5…………………….."
I note that the focus of attention of the subject of this delegation is always "a complaint", which must be a reference back to a complaint within the provisions of the Uniform Law.
The Schedule to the Instrument of Delegation delegates, inter alia, the "powers, functions, and duties" of the Commissioner under section 266 (2) of the Uniform Law. These are described as "Initiating a complaint", but on condition that a copy of a complaint made by the Law Society is forwarded by it as soon as possible to the Commissioner. There is further, relevantly, the delegation of "Initiation and prosecution of proceedings in a designated tribunal" under section 300 of the Uniform Law.
The respondent emphasised that each of these delegations is subject to the operative provisions of the Instrument of Delegation, namely that the functions are confined to a complaint which is a disciplinary matter which the Commissioner has decided not to deal with or to continue to deal with.
On 23 September 2016, Milania Natuba, an Administrative Assistant of Professional Standards of the applicant wrote a letter to the Commissioner under the heading "making of Complaints Pursuant to Section 266, Legal Profession Uniform Law (NSW)." The letter said; Attached for your information, is a list detailing complaints made which have been made under s 266 which the Society is proceeding to investigate. Please activate your reference number and advise me in due course.
The accompanying list stated that; Pursuant to the provisions of Section 266 of the Legal Profession Uniform Law (NSW) and to the power delegated to the Manager, Professional Standards Department, the following complaints have been made.
There then followed a schedule referring to: File 42731 Complaint Made 22 September, 2016 File opened 23 September, 2016 Solicitor [DXW] Firm Swaab Attorneys Legal Officer Emma Essey, followed by the particulars of the wilful breach of the provisions of the Uniform Law and other legislation previously referred to.
By letter dated 26 September 2016 directed to the then Manager, Professional Standards Department of the Law Society the Commissioner under the heading "Law Society Initiated Complaints" referred to the complaints received on 26 September, 2016, and advised that "these complaints were opened in our office" and indicated that the complaints concerning the respondent had been allocated a reference number 50216. There is no evidence of any further relevant correspondence between the applicant and the Commissioner concerning the complaints made against the respondent which are the subject of these proceedings.
By letter dated 28 September 2016 addressed to the respondent, and noted to be delivered by hand, Emma Essey solicitor, Professional Standards of the Law Society of NSW informed him that the Society "has initiated complaints against you under section 266" of the Uniform Law. The letter then set out "the text" of the complaints all of which referred to an alleged wilful breach of certain provisions of the Uniform Law and the Legal Profession Uniform General Rules 2015 and the NSW Professional Conduct and Practice Rules 2013. That letter invited written submissions which were subsequently provided.
After further correspondence between Ms Essey and the respondent's solicitor, the respondent was informed that the Professional Conduct Committee of the Society had resolved at a meeting on 15 February 2018 to initiate and prosecute proceedings against him in this Tribunal pursuant to section 300 (1) (b) of the Uniform Law, with respect to alleged professional misconduct as particularised.

The making/initiating of complaints dichotomy

A fundamental issue in these proceedings is whether a complaint has been made for the purpose of the Uniform Law, so as to found jurisdiction in this Tribunal. The determination of this issue is complicated by the use in that legislation of the words "make" and "initiate" in reference to a complaint.
Anyone can "make" a complaint (section 266 (1)), but by section 266 (2) the designated local regulatory authority "may initiate a complaint containing a disciplinary matter only." The language used in subsection (2) is unusual. On an initial reading, there is uncertainty as to whether the intention is that only the designated local regulatory authority may initiate a complaint containing a disciplinary matter, or whether the designated local regulatory authority may only initiate a complaint containing a disciplinary matter. The reference to a disciplinary matter in turn directs attention to section 268 which provides the complaint may contain either or both of a consumer matter and a disciplinary matter. A disciplinary matter is defined in section 270 as being so much of a complaint as would, if the conduct were established, amount to unsatisfactory professional conduct or professional misconduct. Notwithstanding this, section 268 (2) provides that a dispute or issue about conduct that is the subject of a complaint can be both a consumer matter and a disciplinary matter.
It is probable that the former meaning is intended to apply, otherwise there would be inconsistency with the provisions of section 300, which enables the designated local regulatory authority to initiate and prosecute proceedings in the designated tribunal, subject to certain preconditions. As I read the legislation, only the local regulatory authority may initiate proceedings, albeit that there is power under section 406 to delegate that power to a prescribed entity. It may be possible to argue that by reason of the use of the word "only" in section 266(2), that some form of inconsistency is created with the otherwise unfettered power of delegation contained in section 406. This is not a matter which was the subject of argument before me, and accordingly it is not appropriate that I deal with it without reference to the parties. As I am able to determine these proceedings without reference to this particular matter, I shall not take it into account.
Nevertheless, this leaves outstanding the consideration of the use of the words "make" and "initiate" in relationship to a complaint. The Macquarie Dictionary defines "make" as to "bring into existence". That dictionary defines "initiate" as "to begin, set going, or originate: to initiate reforms." The Oxford Internet Dictionary relevantly defines "make" as causing something to exist or to come about. That dictionary defines "initiate" as causing a process or action to begin. By adopting these dictionary meanings which I regard as reflecting the ordinary use of language, one makes a complaint by referring allegations concerning conduct to an appropriate entity or authority. (I leave aside from current consideration a private complaint made by a client concerning a lawyer about his or her conduct in a social setting, as one clearly falling outside the purview of the legislation). A complaint is initiated when a process is commenced by that appropriate entity or authority to deal with it. As will be seen, the distinction is critical for the determination of these proceedings.
Reference has been made to the differential meanings to be given to both words in the context of former legislation regulating the legal profession in the High Court of Australia in Barwick v NSW Law Society [2000] HCA 2.
The joint judgement of Gleeson CJ, Gaudron and McHugh JJ referred to the circumstances in which a complaint had been initiated in the following manner; 18 On 29 September 1994, a Professional Conduct Committee, having considered material relating to the appellant, including representations made by him, resolved that he be informed of questions of professional misconduct "involved in the complaint", that submissions from him be invited and that, subject to any submissions, the Committee was of the opinion that there was a reasonable likelihood that he would be found guilty of professional misconduct. It was further resolved that proceedings be instituted "with respect to the complaint" pursuant to s 155(2). Notwithstanding the references to "the complaint", up to that time there had been no resolution that the Council should initiate a complaint against the appellant, and there was no such resolution on 29 September 1994. It was not argued that what occurred on that day should be treated as the initiation of a complaint. There was evidence from an officer of the Law Society to the effect that, until the decisions of the Tribunal and the Law Society in the case of Nutt referred to above, there had been some view within the Law Society that a current enquiry into a solicitor's affairs was, relevantly, a complaint. No attempt was made, either in the Court of Appeal or in this Court, to support that view.
I proceed on the basis that the plurality were of the opinion that even at that stage of the procedures of the Law Society as described, a complaint had not been "initiated," albeit that there was no discussion of the meaning of that word.
However, in his judgment Kirby J said; 116 ……….Some of the uncertainty arises from the use of the word "complaint" in two senses - being (1) the accusation or allegation made against a legal practitioner at the very outset of the statutory process; and (2) the formal "complaint" which triggers consequences further down the statutory track. However, in so far as both the original and subsequent resolutions of the Council of the Law Society proceeded directly from the institution of a "complaint" against Mr Barwick to a decision that proceedings be instituted in the Tribunal, no "investigation into each complaint ... initiated by the Council", as required by the Act, could take place.
I add for completeness that the decision in Barwick revolved around whether investigations have been conducted by the Law Society as required by the relevant legislation, and did not revolve around the distinction between whether a complaint had been made or initiated. Nevertheless, the extract from the judgement of Kirby J above provides a description of the two different processes which I respectfully adopt.
Callinan J also made reference to the distinction between the two processes in Barwick. His Honour said; 142 Section 136 is in the following form: "Complaints made by Commissioner (1) The Commissioner may initiate a complaint against any legal practitioner or interstate legal practitioner under this Part. (2) Any such complaint is, for the purposes of this Part, taken to have been made to the Commissioner." 143 During argument attention was drawn by the first respondent to the significance, if any, to be attached to the differential use of the words "make" and "made" in s 134 and s 138, and "initiate" in ss 135 and 136, and, by the appellant, to the heading to each section which uses the word "made" and not "initiate". It was the first respondent's contention that in empowering the Council or the Commissioner to initiate a complaint, it was the intention of the legislature to treat complaints from those sources differently from complaints made by any other person, and, by implication to relieve the Council or the Commissioner from any obligation to undertake an investigation in respect of a complaint which either had initiated, or to comply with the time limit of three years referred to in s 138: in short to equate the Council's rights and obligations with those of the Commissioner and to distinguish them from any other person. The first respondent's contention was accepted by the Court of Appeal. 144 The legislation is ambiguously drafted. There is certainly an arguable basis for the first respondent's contention and the reasoning of the Court of Appeal in accepting it. However I have formed a different view. I do not think that any particular significance should be attached to the different usages of "made" and "initiate". The point of each is to make it clear that in order for a power or function of laying an information, or of making an investigation of a complaint to be enlivened, it is not necessary that its source be a person other than the Commissioner or the Council. It can be initiated or made by either the Council, the Commissioner or anyone else. It is true that the legislature reverted to the word "made" in s 138 but that reversion in my view does not disclose a legislative intention that there is to be any differential treatment, so far as a limitation period or otherwise is concerned, according to whether complaint is made by the Council or otherwise. That in respect of complaints made by the Council the same conditions with respect to the time of commencement should be fulfilled, can be discerned from the requirement of s 135 that all complaints are to be put into the hands of the Commissioner. The reason for this is to keep the Commissioner informed and to enable him or her to perform the functions set out in s 131. 166 In the Court of Appeal Sheller JA (with whom Mason P and Priestley JA agreed) expressed the view that the language of Pt 10 is not always precise. His Honour said: "This is demonstrated by a consideration of the word 'complaint', which, in this context, usually means an accusation or charge or statement of injury or grievance laid before a tribunal or other body for the purpose of prosecution or redress. Div 3 of Part 10 contemplates three sources of complaint about legal practitioners. These are a complaint by 'any person' (s 134(1)), a complaint by a Council (s 135(1)), and a complaint by the Commissioner (s 136(1)). Those three subsections draw a distinction between, on the one hand, the making [of] a complaint to either the Commissioner (s 134(1)) or the Council (s 135(3)) and, on the other, the initiating of a complaint by the Council or the Commissioner, though the second is, for the purposes of Pt 10, taken to have been made to the Commissioner (s 136(2)). Section 171J(3) refers to the complaint 'made by the Commissioner or a Council.'" 167 Their Honours went on to hold that s 138(1) should be read as referring only to a complaint "made", that is by a person (other than the Commissioner or a Council) under s 134(1) and not to a complaint "initiated" by a Council or by the Commissioner. Sheller JA thought this sensible and explicable because of "a need to prevent stale complaints except to the extent that they are initiated by a Council, by the Commissioner or accepted by the Commissioner if the Commissioner is satisfied that it is just and fair to do so". 168 For the reasons which I have already foreshadowed I am unable to agree with this view of s 138(1). I acknowledge that there is no entirely satisfactory way of construing this legislation in an harmonious way. There are, however, as I have mentioned, several instances in the legislation in which reference is made undiscriminatingly to complaint by whomsoever made, or initiated. Furthermore, the legislation treats the making of a complaint as a formal and substantive matter calling for a deliberative decision as to further formal process in relation to it or otherwise, and the notification and recording of that decision, whether the complaint is initiated or made, and no matter by whom it is initiated or made. 171 In principle there is no reason why the Commissioner should not be bound to turn his mind to the matters referred to in sub-s (2) of s 138 in those cases in which the Council is the complainant, in the same way as those matters must be considered if the complaint originates from some other person. Further, there is no reason for the denial to the practitioner of justice and fairness, or the requirement of regard to a public interest in the investigation of the complaint, because its maker is the Council and not somebody else.
In the extract from the judgement set out above, Callinan J was principally concerned with the application of time limits within which certain action must have been taken by the Law Society, and whether different considerations applied depending upon whether a complaint had been made or initiated. The circumstances with which I am dealing in the context of these proceedings are relevantly different, as is the legislation, although there are parallel provisions. Nevertheless, the approach adopted by his Honour to the construction of the legislation provides a compelling basis for determining the meaning of each of the words used.
The Uniform Law "treats the making of a complaint as a formal and substantive matter calling for a deliberative decision as to further formal process in relation to it" (per Callinan J in Barwick at [168] above). Section 267 (2) requires a complaint to be recorded in writing and to identify the complainant, the lawyer or law practice about whom the complaint is made and contain a description of the alleged conduct that is the subject of the complaint; section 272 creates a time limit for the making of a complaint; section 276 requires a preliminary assessment to be conducted of a complaint; section 279 permits notification to the respondent of a complaint and requires a notice to be given to a respondent after a decision is made to investigate a complaint under section 282.
A clue to the appropriate meaning which differentiates the making of a complaint from the initiation of a complaint is provided by section 276 of the Uniform Law which is in the following terms; 276 Preliminary assessment of complaint (1) The designated local regulatory authority must conduct a preliminary assessment of a complaint. (2) When conducting the preliminary assessment - (a) the designated local regulatory authority may request further information to be provided within a specified period by the complainant, the respondent or another person who may have relevant information; and (b) the designated local regulatory authority is not bound by rules of evidence and may inform itself on any matter in any manner as it thinks fit. (3) Any evidence or information obtained by the designated local regulatory authority in the course of conducting a preliminary assessment may be used by the designated local regulatory authority or an investigator in or in relation to any later investigation or consideration of the complaint. (4) The designated local regulatory authority may complete a preliminary assessment even if requested information is not provided within the specified period.
Obviously, a preliminary assessment can only be made under section 276 once a complaint has been made, in the sense that someone has complained about the conduct of a legal practitioner to the Commissioner or the Commissioner has complained about a legal practitioner, in both cases in a manner which complies with section 267. Thereafter, any step taken either by the Commissioner or, in the case of a solicitor, by the applicant by way of delegation constitutes the initiation of a complaint, being a step taken in a process created by the Uniform Law. One such step is that contemplated by section 276. There are other steps in the process contained within the Uniform Law, which I have summarised above all of which are conducted subsequent to and pursuant to the initiation of a complaint.

Has a complaint been made for the purposes of the Uniform Law?

It will be remembered that by section 267 of the Uniform Law, set out above, a complaint must be made either to or by the designated local regulatory authority, in this case the Commissioner. Furthermore, the complaint must be in writing and must contain the particulars referred to in subsection (2) of section 267.
The schedule to the Instrument of Delegation refers to the initiation of a complaint, referring to section 266(2) of the Uniform Law. That function is delegated to the Applicant "on condition that a copy of a complaint made by the Professional Association is forwarded as soon as possible to the NSW Commissioner by the Professional Association". However, if the plain words of the Instrument of Delegation are to be employed, the delegation to initiate a complaint can only be made if the Commissioner has decided not to deal with it or to continue to deal with it and then to refer it to the Applicant "for assessment, investigation and determination under Chapter 5."
The respondent submitted that there was no evidence that any complaint had been made to the Commissioner, or by the Commissioner. The only evidence of anything having been communicated to the Commissioner is the documentation referred to in [22] to [25] above. However, prima facie the letter of 23 September 2016 refers to complaints which have already been made under section 266 and to the fact that the Law Society was proceeding to investigate them. Indeed, the attachment corroborates the fact that the complaints had already been made on 22 September 2016.
The provisions of the letter of 23 September 2016 are indicative that complaints have been made to the applicant, and that the applicant was informing the Commissioner of the complaints having been received by it. Indeed, it was proceeding to investigate the complaints.
The applicant endeavoured to argue that the complaints had been made by the applicant pursuant to the delegated authority created by the 18 June 2015 Instrument of Delegation described above. Accordingly, this should be considered as though the complaints had been made by the Commissioner, and therefore they had been validly made.
In written submissions the applicant said; "the Law Society Council refers to the Instrument of Delegation which clearly delegates to it the function of initiating a disciplinary complaint pursuant to s 266 (2) of the Uniform Law. At the time the complaints were initiated against the Solicitor (23 September 2016), the Instrument of Delegation had been in force since 18 June 2015.
The difficulty with this argument is that it misconstrues the provisions of the Instrument of Delegation. If the applicant is correct in its approach to the construction of the words used and the resultant meaning of those words, it would result in the Instrument of Delegation creating a blanket delegation with respect to all complaints. It would, in effect, result in a total outsourcing of the work of the Commissioner in dealing with complaints concerning disciplinary matters. A reading of the ordinary meaning of the words used in the Instrument of Delegation reveals that the delegation is specifically described to be one "in respect only of a complaint…..made to or by me" which is, relevantly, a complaint "which I have decided not to deal with or to continue to deal with…". In other words, the delegation is confined firstly to a complaint which has already been made to the Commissioner or made by the Commissioner. This is a reference to a specific complaint and cannot be a reference to complaints generally.
There is certainly no evidence of any kind that the Commissioner has made a complaint. The correspondence to which I have referred could not possibly substantiate such a proposition. The letter of 23 September 2016 from Miliana Natuba of Professional Standards of the Law Society attaches details of "complaints made which have been made under s 266 which the Society is proceeding to investigate." The letter from the Commissioner in response of 26 September 2016 refers to "Law Society Initiated Complaints" as having been received that day, being "opened in our office" and allocated a reference number.
In the same way there is no evidence that a complaint has been made by anyone to the Commissioner. The only evidence available is that any such complaint could only have been made by the applicant. I have previously referred to the correspondence between the applicant and the Commissioner in some detail. That correspondence is indicative that the applicant regarded itself as being in possession of a complaint. If the complaint had been received by it from a third party (of which there is no evidence), the complaint would nevertheless need to have been referred by it to the Commissioner in order to comply with section 267 in order for it to have been appropriately "made." If the complaint had originated with the applicant (as seems logically likely although it is not necessary for me to determine the matter by reference to any such assumption), then the complaint would need in turn to have been made to the Commissioner in order to comply with section 267. There is no evidence that it did so.
In written submissions the respondent said, inter alia, that the circumstances of these proceedings demonstrated: "a clear sign that the Applicant has failed to properly understand the ambit of its delegated authority under the Uniform Law and under the Commissioner's 2015 Instrument of Delegation. This is a matter in respect of which the Applicant has purported to play all of the respective roles of the complainant, the investigator of the complaint, the arbiter of the complaint and the prosecutor of the complaint in these proceedings. This is not contemplated under the Uniform Law and, in purporting to play all of these roles, the Applicant has presumed for itself a delegated authority it has not been given."
It is not necessary for me to determine the motivation of the applicant in dealing with the allegations made against the respondent in the way that it has. It is only sufficient that I determine whether the statutory requirements have been complied with.
In all the circumstances, I conclude that there is no evidence that any complaint as defined in section 265 of the Uniform Law has been made as required by section 267 of that Act. On this basis, there can be no disciplinary matter as defined in section 270 of the Act because there is no complaint to form the basis of such a matter. Even though section 300 makes no specific reference to a complaint forming the basis of proceedings before this Tribunal, the whole of the structure of the Uniform Law within Chapter 5 as it concerns disciplinary matters is confined to matters originating through a complaint process, and being prosecuted as a final step in that process. It follows that in the absence of any evidence of any complaint having been made as contemplated by the Uniform Law, there is no basis for the initiation of proceedings in this Tribunal. This application should be dismissed accordingly.

Was there a delegation of the complaint (assuming it to have been made)?

The reasons which follow assume that I am incorrect in determining that there was no valid complaint which could form the basis of these proceedings.
The applicant sought to argue that the correspondence between it and the Commissioner supported evidence that it was acting under its delegated authority in having initiated a complaint, and that the Commissioner should be taken to have decided not to deal with it. The acceptance of such an argument would involve adding a gloss to the words used. Counsel for the applicant said in oral submissions that the letter of 23 September 2016 represented a notification by the applicant to the Commissioner as required under section 266 (2) of the fact that a complaint had been made by the applicant under its delegated authority. The difficulty with this argument is that it ignores what I regard as the plain words of the Instrument of Delegation, namely that the delegation is confined to a complaint which the Commissioner has decided not to deal with or continue to deal with and which must be referred by the Commissioner to the applicant Law Society.
The correspondence consisting of the letters of 23 and 26 September 2016, which I have described above, must be considered by reference to the entities involved. They are not to be regarded as unsophisticated members of the community with limited literacy skills and a limited understanding of the statutory regimes in which they are operating. The Law Society of NSW represents solicitors in NSW, and has wide ranging statutory duties and responsibilities extending to the regulation of the profession in NSW. The Commissioner is a statutory officer having overall responsibility for the regulation of the profession in NSW. Section 22(2) of the Application Act described above is also relevant. It might be thought in the circumstances that correspondence between them dealing with important matters concerning disciplinary complaints would be framed in a careful, deliberate manner eschewing any unnecessary ambiguity. In the absence of any evidence to the contrary, the plain words used in that correspondence must be taken at face value. Those letters do not admit of any construction other than notification by the applicant to the Commissioner of a complaint already made, and acknowledgement by the Commissioner of that notification. It is impossible to read into that correspondence any determination made by the Commissioner that he has decided not to deal with it. As this is the first occasion on which, on the evidence, the Commissioner had any knowledge of any kind of any disciplinary complaint concerning the respondent, there can be no question that the Commissioner has in some way decided not to continue to deal with it. There is simply no evidence that he ever dealt with it in any way, other than to have acknowledged notification by the applicant.
The mere acknowledgement contained in the letter of 26 September 2016 indicating that the Law Society complaints had been "opened" is not indicative of any decision having been made to deal with it. If there were any agreed protocols between the applicant and the Commissioner that notification of a complaint made in the manner contained in the 23 September 2016 letter, followed by a notification that a complaint had been "opened", was code in some way for representing a decision not to deal with the complaint and a contemporaneous decision delegated to the applicant, I would have expected that some form of evidence to this effect would have been produced. I repeat that the plain words used in this correspondence should bear their ordinary meaning, particularly having regard to the matters set out in [55] and [56] above.
I conclude, based on the evidence, that if, contrary to my finding that no complaint under the Uniform Law had been made in circumstances which would validate the institution of proceedings in this Tribunal, I find that no determination has been made at any stage by the Commissioner to delegate that complaint to the applicant, and to delegate to it the function of instituting proceedings in this Tribunal alleging professional misconduct against the respondent.
On this basis the applicant lacked the power to commence these proceedings and the proceedings should be dismissed accordingly.

The regularity presumption

The applicant sought to rely on the presumption of regularity principle. It was argued that I should infer that the Commissioner has been content for the complaint initiated by the applicant to be continued to be dealt with by it.
In support of this submission the applicant referred to the provisions of the Interpretation of Legislation Act 1984 (Vic) which govern the Uniform Law, and in particular to sections 42 and 42A, which are as follows; INTERPRETATION OF LEGISLATION ACT 1984 - SECT 42 Exercise of delegated powers (1) Where the discharge, exercise or performance by a person of a responsibility, power, authority, duty or function under an Act or subordinate instrument is dependent upon the opinion, belief or state of mind of that person in relation to a matter and the responsibility, power, authority, duty or function is, in accordance with the Act or subordinate instrument, delegated, the delegate may, unless the contrary intention appears, discharge, exercise or perform the responsibility, power, authority, duty or function upon the delegate's own opinion, belief or state of mind (as the case requires) in relation to that matter. (2) Subsection (1) applies in relation to a delegation made under an Act or subordinate instrument, whether the delegation was made before or after the commencement of this Act. INTERPRETATION OF LEGISLATION ACT 1984 - SECT 42A Construction of power to delegate (1) If an Act or subordinate instrument confers on a person or body a power to delegate the discharge, exercise or performance of a responsibility, power, authority, duty or function under that or any other Act or subordinate instrument, then, unless the contrary intention appears - S. 42A(1)(aa) inserted by No. 5/2015 s. 9. (aa) the power to delegate does not include the power to delegate that power of delegation; (a) the delegation does not prevent the discharge, exercise or performance of the responsibility, power, authority, duty or function by the person or body; (b) the delegation may be made subject to such conditions or limitations as the person or body may specify; and (c) a responsibility, power, authority, duty or function so delegated, when discharged, exercised or performed by the delegate, shall, for the purposes of the Act or subordinate instrument, be taken to have been discharged, exercised or performed by the person or body. (2) If an Act or subordinate instrument confers power to delegate to the holder of an office or position, then, unless the contrary intention appears, a delegation may be made to any person for the time being acting in or performing the duties of that office or position.
The applicant relied substantially on the provisions of section 42A (1) (c) to argue that when it discharged, exercised or performed its delegated function under the Instrument of Delegation, that function is taken to have been "discharged, exercised or performed." However, this section refers essentially to the power of the Commissioner to delegate to the applicant the various matters earlier described as set out in section 406 of the Uniform Law. The controversy in these proceedings does not concern the power of the Commissioner to delegate certain matters to the applicant. It is concerned only with the nature and extent of any delegation actually made, and its efficacy in the circumstances of the disciplinary complaint made by the applicant against the respondent, which is the subject of these proceedings. To this extent, the provisions of section 42A have less relevance. However, I can see that they may have relevance as forming a basis for reliance on the principle of presumption of regularity.
As I understand the argument submitted by the applicant, the Tribunal should presume that the action taken by the applicant in purported compliance with the authority delegated to it by the Commissioner was regular in all the circumstances, and should be treated as having been validly exercised.
The presumption of regularity is conveniently described by McHugh JA (as his Honour then was) in the NSW Court of Appeal in Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154. At 164, after discussing relevant authorities his Honour said; Where a public official or authority purports to exercise a power or to do an act in the course of his or its duties, a presumption arises that all conditions necessary to the exercise of that power or the doing of that act have been fulfilled. Thus a person who acts in a public office is presumed to have been validly appointed to that office………………… And a Council which must form an opinion as to whether there will be any detriment upon the granting of a planning permit is presumed to have formed the opinion before granting the permit
However, as is well established by authority the presumption of regularity is rebuttable. Even though one might prima facie attach regularity to the processes and procedures adopted by the applicant in initiating and prosecuting the disciplinary complaint against the respondent in these proceedings, that approach is subject to displacement if it can be demonstrated there was a relevant irregularity. There were such irregularities, as I have found. They cannot be ignored, because the jurisdiction of this Tribunal is founded upon processes which have been validly and properly complied with. No presumption of regularity will avoid the consequent lack of jurisdiction.

Conclusion

For the reasons earlier advanced I have concluded that, on the evidence, no valid complaint has been made by the applicant pursuant to its purported delegated powers, no complaint has been made to or by the Commissioner, and accordingly there is no complaint to found these proceedings. It follows that this Tribunal has no jurisdiction or power to deal with these proceedings and they should be dismissed accordingly.
In addition, for the reasons earlier advanced I have concluded that there has been no valid delegation by the Commissioner to the applicant to empower the applicant to have taken any action in the institution and prosecution by it of these proceedings. In that the proceedings have not been commenced by any person with authority to do so, this Tribunal has no jurisdiction or power to deal with these proceedings and they should be dismissed accordingly.

Costs

Neither party sought a costs order, and it is not necessary for me to deal with the question of costs.

Orders

I make the following order, namely that the application for disciplinary findings is dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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 11 July 2019 - anonymisation of respondent pursuant to section 64 of the Civil and Administrative Tribunal Act 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: 11 July 2019

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Judgment (13 paragraphs)

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Legislation Cited (2)

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Cited By (19)