(c) The Council conducted an 'investigation' into the conduct of the Practitioner between 21 June 2018 up to and including 26 November 2018.

(d) The Council had no jurisdiction to do so because, from 21 June 2018, the Practitioner was no longer an 'Australian lawyer' or an 'Australian legal practitioner' within the meaning of the Act.[7]

(e) The Council's investigation after 21 June 2018 was in respect to the same matters that were the basis for the Council's decision to cancel the Practitioner's practising certificate pursuant to section 56 and therefore was "beyond the scope of section 385".[8]

(f) Although section 385 'applies' Chapter 4 of the LPA to an 'Australian lawyer' or 'former Australian lawyer', it does not do so "in respect to any other matters under the preceding chapters"[9] (which we take to be a reference to matters arising under section 56).

(g) Given that the Practitioner's practising certificate was cancelled on 21 June 2018, the applications for occupational discipline orders are not in furtherance of the 'purposes' of the LPA - i.e. "in the interests of the administration of justice and for the protection of consumers of the services of the legal profession and the public generally".[10]

1. It is not easy to discern the threads of the Practitioner's argument. It is perhaps best simply to reproduce the closing paragraphs of the submission where the threads are drawn together:

The Respondent contends that the decision to 'investigate' post the section 56 determination, was ultra vires the Act. The decision to cancel the Respondents practising certificate on 21 June 2018 was in furtherance of the "purposes" of the Act and had the effect of rendering the Respondent a person who was no longer within the definitions provided for in Sections 7 and 8 of the Act.

The decision in effect to conduct 2 investigations (S 56 and S 410) was, in respect of the purported S. 410 determination, by reason of the earlier S. 56 determination, beyond power because after 21 June 2018 the Respondent was not an Australian lawyer.

The peremptory decision of 21 June 2018 met the purposes of the Act whereas the purported section 410 determination, some 2 years later (23 months) was for an entirely improper purpose namely the imposition of sanctions (Section 425(5)(a) fines?) and the recovery of costs as sought in the relevant application and Orders (see above) and are not within the 'purposes' of the Act.

It is submitted that there is no utility in seeking Order 1 because those matters have already been determined in the section 56 Notice and it is on that basis it is submitted that Orders 2 and 3 are calculated to oppress the Respondent in an entirely impermissible way by reason of their traversal of the "purposes" of the Act.

It is on that basis that the Respondent seeks a declaration that the section 410 determination was ultra vires the Act. [our emphasis]

1. The orders sought by the Council in each application are the same, namely:

(a) a finding pursuant to section 425(1) of the Act that the respondent is guilty of professional misconduct or, alternatively, unsatisfactory professional conduct [order 1];

(b) such further or other order pursuant to section 425 of the Act as the Tribunal thinks fit [order 2];

(c) an order pursuant to section 433(1) of the Act that the respondent pay the applicant's costs on a solicitor own-client basis [order 3].

The Council's power to investigate the complaints against the Practitioner

1. The conduct of the Practitioner, which is the subject of the four complaints, is alleged to have happened between 15 September 2015 and 4 June 2018. During that period the Practitioner was both a person admitted to the legal profession in the ACT and a person who held a local practising certificate. He was, therefore, an 'Australian lawyer' and an 'Australian legal practitioner' within the meaning, respectively, of sections 7 and 8 of the LPA.
2. The Council's investigation of the complaints commenced when the Practitioner was an 'Australian legal practitioner' and spans the period from 16 October 2017 until on or about 9 December 2019.
3. The Practitioner ceased to be an Australian legal practitioner on 21 June 2018 when the cancellation of his local practising certificate took effect.
4. He was at that date, and remains, an 'Australian lawyer' - i.e. "a person who is admitted under the LPA or a corresponding law" - and a 'former Australian legal practitioner'.[11]
5. Section 385(2) of the LPA provides that Chapter 4, which deals with complaints and discipline:

...applies, with necessary changes, to a former Australian legal practitioner in relation to conduct happening while the former practitioner was an Australian legal practitioner in the same way as it applies to an Australian practitioner.

1. As the solicitors for the Council stated in a letter to the Practitioner's solicitor on 21 August 2019:[12]

The Act applies to conduct of Australian Legal Practitioners if, at the time of the conduct, they are Australian Legal Practitioners notwithstanding that they may cease to be Australian Legal Practitioners prior to disciplinary proceedings being filed.

1. Perhaps prompted by that advice, which is clearly correct, the Practitioner shifted ground. The foundation on which the Practitioner's current application stands is the proposition that the Practitioner ceased to be an 'Australian lawyer' after 21 June 2018. The Practitioner's claim that the continuation of the investigation after that date was ultra vires and for an improper purpose is founded exclusively on that proposition. No independent basis is offered for the Practitioner's submission, which we have reproduced in full earlier in these reasons, that the continuation of the Council's investigation of the complaints after that date and the bringing of charges of professional misconduct or unsatisfactory conduct in the Tribunal arising out of the complaints are "not within the purposes of the Act".
2. The Practitioner clearly remained an 'Australian lawyer' after 21 June 2018. The Council's investigation before that date was in respect to complaints about conduct by an 'Australian legal practitioner'. The continuation of the Council's investigation after that date was in respect to complaints about conduct by a former Australian legal practitioner while the person was an 'Australian legal practitioner'. Section 385(2) makes it clear that Chapter 4 applies in the circumstances.
3. The statutory purposes of Chapter 4 appear in section 384 and are as follows:

(a) to provide a nationally consistent scheme for the discipline of the legal profession in the ACT, in the interests of the administration of justice and for the protection of consumers of the services of the legal profession and the public generally;

(b) to promote and enforce the professional standards, competence and honesty of the legal profession;

(c) to provide a means of redress for complaints about lawyers;

(d) to enable people who are not lawyers to participate in complaints and disciplinary processes involving lawyers.

1. The disciplinary charges laid against the Practitioner relate directly to these purposes. If the charge of professional misconduct is established, the Tribunal will have to decide, for the purpose of making appropriate orders pursuant to section 425, (a) whether it considers the Practitioner is a fit and proper person to remain admitted to the legal profession in the Act, (b) whether the Tribunal should make an order recommending that the name of the Practitioner be removed from the local roll, or (c) make some other order. The cost consequence if the Tribunal finds the Practitioner guilty of professional misconduct or unsatisfactory professional conduct are governed by section 433 of the Act.
2. The conduct of the Practitioner that is the subject of the disciplinary proceedings in the Tribunal, relates to his compliance with professional standards, professional competence and honesty. The allegations against the Practitioner, to which the Practitioner has not yet filed responses, are serious and appear, on their face, to be of substance.
3. There is, therefore, utility in determining whether the Practitioner is guilty of professional misconduct or unsatisfactory professional conduct and no basis whatsoever for the Practitioner's submission that the orders sought under section 425 and for costs are "calculated to oppress the Respondent in an entirely impermissible way by reason of their traversal of the purposes of the Act."[13]
4. The fact that, during the course of its investigations, the Council exercised its power under section 56 of the Act to cancel the Practitioner's local practising certificate is irrelevant. The right removed was the Practitioner's right to practise in the ACT, not his right to remain admitted as a legal practitioner in the ACT. The statutory purposes of Part 2.4, in which section 56 appears, are explained in section 33(1)(a) & (b) as follows:

(a) to facilitate the national practice of law by ensuring that Australian legal practitioners can engage in legal practise in the ACT and to provide for the certification of Australian lawyers whether or not admitted in the ACT;

(b) to provide a system for the grant and renewal of local practising certificates.

1. In deciding whether to issue a local practising certificate to a person under Division 2.4.3 of Part 2.4, the Council must be satisfied that the person is a fit and proper person to hold a practising certificate. The considerations the Council may take into account in determining whether a person is, or remains, a fit and proper person to hold a certificate are set out in section 36 and include any relevant matters the Council considers appropriate.[14]
2. Division 2.4.6 of Part 2.4 is concerned with the amendment, suspension or cancellation of local practising certificates. The grounds for the Council to cancel a local practising certificate include that the holder is no longer a fit and proper person to hold the certificate.[15] If the Council believes a ground exists to cancel a local practising certificate the Council must give the holder a notice under section 56(1). If, after considering all written representations, the Council still believes a ground exists to take the proposed action, the Council may cancel the certificate under section 56(2).
3. Section 59 provides:

This division does not prevent a complaint from being made under chapter 4 (Complaints and discipline) about a matter to which this division relates.

1. The Practitioner has not pointed to any statutory language that is capable of supporting a construction of Chapter 4 that excludes from the operation of the chapter conduct by a former Australian legal practitioner that has resulted in the Council exercising a power under section 56 to cancel the practitioner's practising certificate. When section 59 is read with section 385, we consider that the issue is beyond doubt.
2. The Practitioner's application is dismissed for these reasons. While we consider that it would be highly desirable for the parties to attend mediation and we note that both have indicated a willingness to do so, we think that mediation is premature until the Practitioner has filed and served responses to the applications in accordance with the orders made on 24 July 2020.
3. The Practitioner must pay the Council's costs pursuant to section 433(4) of the LPA. We will hear the parties in relation to whether costs should be for a stated amount pursuant to section 433(5) and the terms upon which costs should be paid pursuant to section 433(6).

The Council of the Law Society of the Australian Capital Territory

[1] Affidavit of Robert Anthony Reis dated 25 August 2020 at paragraphs 16-17 and pages 37 to 44 of Exhibit RAR-1

[2] Mr Reis's 25 August 2020 affidavit asserts in paragraph 17, incorrectly, that the letter was sent on 21 August 2019, instead of 26 November 2020 as appears from the copy of the letter at page 41 of Exhibit RAR-1

[3] Paragraph 18 of Mr Reis's 25 August 2020 affidavit

[4] Applicant's submissions dated 26 August 2020 at paragraphs 3.10, 3.15, 3.21 and 3.27

[5] Respondent's written outline of submissions filed on 6 August 2020. The submissions are not paginated and the paragraph numbering, when used, is eccentric and difficult to follow. We have numbered the pages from 1 to 7 and refer to those page numbers in our reasons

[6] At page 1, paragraph (2) and page 3, second full paragraph

[7] At page 3, third last and penultimate paragraph

[13] See the Practitioner's submissions reproduced in paragraph 20 above