De Pardo v Legal Practitioners Complaints Committee

23 The provisions of s 122 of the Family Law Act purport to apply more broadly than s 55B(4) of the Judiciary Act. Under s 122 of the Family Law Act a person entitled to practise in any federal court under s 55B(1) of the Judiciary Act has the like right to practise in any State court exercising jurisdiction under the Family Law Act. The Family Law Act makes no provision for the names of such practitioners to be entered in a Register or for the discipline of such practitioners.

24 The right to practise as a barrister or solicitor in a State court exercising federal jurisdiction is wider than a right of audience in such a court. No doubt, where the provisions of s 55B(5) had been relied upon by a Chief Justice of a State Supreme Court to establish a Register of Practitioners who have a right of audience, it would be intended by the Commonwealth Parliament that the Supreme Court continue to control the right of audience of a barrister or solicitor pursuant to s 55B(7) in State courts exercising federal jurisdiction including a State court exercising jurisdiction invested by the Family Law Act.

25 Under s 4(1) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) the Supreme Court of a State is invested with federal jurisdiction arising under the Family Law Act. Under s 41(3) of the Family Law Act a State Family Court, in respect of which a proclamation has been made under that subsection, is invested with like jurisdiction.

26 In Western Australia the State courts able to exercise federal jurisdiction under the Family Law Act are the Supreme Court and the Family Court of Western Australia.

27 In the absence of establishment of a Register under s 55B(5) of the Judiciary Act, providing for a Supreme Court to discipline practitioners whose names are registered in that Register and to cancel the right of audience in the State courts of those practitioners, the disciplinary powers in s 55C(5), which control the right to practise in federal courts, may be read as extending to the control of a right of audience in State courts in relation to the exercise of federal jurisdiction.

28 Whether s 55B(7) may be read as investing jurisdiction in Supreme Courts to discipline practitioners in respect of conduct unrelated to the exercise of federal jurisdiction in State courts, is unnecessary to consider. 29 The question that arises in the instant case is whether the Commonwealth intended to "cover the field" in respect of such conduct and in doing so overtake the jurisdiction conferred on the Supreme Court and the Board by the State Act. At common law, the Supreme Court has the jurisdiction to review whether a person admitted by the Supreme Court to practise law in the State is a fit person to be continued to be so authorized. A court which admits a person as a fit and proper person to be on the roll maintained by the court has a duty to see that that person does not cease to be a fit and proper person to be on that roll. (See: In re Crick (1907) VII S R (NSW) 576 per Darley CJ at 587.) 30 The Supreme Court admits practitioners to practise law in the State generally whereas the provisions of the Judiciary Act and the Family Law Act have a much more limited purpose. Even provisions relating to admission, referred to in ss 55A and 86(ga) of the Judiciary Act, do not provide a general right to practise law in Australia but only to "practise as barrister or solicitor in any Federal Court [sic]". The Judiciary Act does not provide for the discipline of persons admitted to practise by the High Court but it is within the rule-making power devolved on the High Court in s 86(ga) to so provide in any rules made by the High Court. 31 Sections 55B(1), (4) provide only that a practitioner who is entitled to practise in a Supreme Court of a State has an entitlement to practise in any federal court and a right of audience in any State court in relation to the exercise in that court of federal jurisdiction. Having regard to the legislative power of the Commonwealth provided in s 51(xxxix) of the Constitution, neither provision would entitle a person, not a practitioner admitted by the Supreme Court of a State, to practise law in that State other than to the extent permitted by those subsections for the purpose of assisting the exercise of the judicial power of the Commonwealth. Section 122 of the Family Law Act is to like effect, and the entitlement to practise in a State court under that section is dependent upon, and concomitant with, the exercise of federal jurisdiction vested in that Court pursuant to s 41(3) of the Family Law Act. 32 Under Commonwealth legislation, determination of the fitness of a person to be admitted to practise law generally and whether such a right to practise is to be abrogated or suspended, are recognised as functions of the Supreme Courts of the States and it is accepted that performance of those functions will control who may practise in courts exercising federal jurisdiction. 33 It is not patent from the foregoing that the described disciplinary provisions of the State Act are inconsistent with the provisions of the Judiciary Act or the Family Law Act. The Commonwealth legislation defines persons entitled to practise in federal courts and State courts in relation to the exercise of federal jurisdiction by reference to the recognition of entitlement to practise law granted by a Supreme Court of a State. The complementary recognition under Commonwealth law of an entitlement to practise in federal courts and State courts exercising federal jurisdiction is governed, substantially, by continuation by a Supreme Court of a person's entitlement to practise law. Although the Judiciary Act has made further provision for a Supreme Court of a State to exercise disciplinary procedures in respect of a practitioner who has a right of audience in State courts exercising federal jurisdiction, the context in which that provision appears does not suggest an intention to exclude the jurisdiction of the Supreme Court to determine such issues under relevant State legislation. In construing the Commonwealth laws it is to be borne in mind that those laws were enacted with cognisance of the jurisdiction exercisable by the Supreme Courts of the States at common law. 34 Acceptance of determinations of the Supreme Court as to the fitness of a person to practise, and to continue to practise, implies acquiescence in the determinations and reviews of fitness to practise carried out by Supreme Courts, including consideration of any conduct relevant to that issue committed by a person in the course of the practise of law in a federal jurisdiction. No reason arises in the Commonwealth legislation for regarding the disciplinary power granted to the High Court in s 55C(5) of the Judiciary Act as intended to exclude the disciplinary function of the Supreme Court in respect of any conduct by any practitioner admitted to practise by the Supreme Court who, by reason of that admission, is also entitled to practise as a barrister or solicitor in a federal court, or to a right of audience in a State court in relation to the exercise of federal jurisdiction. (See: Little v Registrar of High Court of Australia (1990) 96 ALR 448 per Jenkinson J at 453; (1990) 101 ALR 247 at 255.) 35 The jurisdiction to discipline persons who practise in federal courts, conferred on the High Court by s 55C(5) of the Judiciary Act, is to be read as providing for an additional disciplinary power appropriate for exercise in certain circumstances. It is concerned with conduct of a degree that warrants the striking off of the name of a person in the Register or suspension of the right of practise or right of audience of that person and not lesser conduct for which other penalties may be appropriate under a general jurisdiction for the supervision of admitted practitioners. It is neither necessary nor appropriate, having regard to contextual provisions, to conclude that the object of s 55C(5) is to exclude a like power exercisable by a Supreme Court and to leave to the Supreme Court discipline of admitted practitioners for conduct for which such lesser penalties may be applied. 36 The State Act (s 3 "practitioner") expressly provides that the disciplinary provisions of the State Act apply to a "person who is entitled by virtue of a law of the Commonwealth to perform in Western Australia the functions of a barrister or solicitor". The intent of that expansion of the definition of practitioner is to make it clear that conduct in the performance of the functions of a barrister or a solicitor within the State, under the authority of Commonwealth law, will be conduct to which the disciplinary provisions apply. As set out above, it is within State legislative power to so provide and it is contemplated within the provisions of the Judiciary Act, that such a legislative power may be exercised. 37 The provisions in the State Act and the Judiciary Act for the discipline of persons admitted to practise by a State Supreme Court are compatible. Exercise of the jurisdiction of a State Supreme Court to examine the conduct of a person in the practise of barrister or solicitor in a federal court, or in a State court exercising federal jurisdiction, is anticipated in the Judiciary Act. It cannot be said, therefore, that such provisions interfere with the exercise of a federal power. (See: Re Residential Tenancies Tribunal of New South Wales; Ex parte Defence Housing Authority (1997) 146 ALR 495; The Commonwealth of Australia v Cigamatic Pty Limited (in liquidation) (1962) 108 CLR 372.) 38 A like result occurs where legislation of a State or Territory provides for taxation proceedings to resolve disputes in respect of costs that have been rendered by a practitioner. That jurisdiction is regarded as concurrent with a jurisdiction to regulate charges levied by practitioners, exercisable by a federal court under federal legislation. In other than special circumstances, disputes over costs incurred in relation to the exercise of federal jurisdiction, are resolved under the provisions of the State or Territory laws. (Woolf v Snipe (1933) 48 CLR 677 per Dixon J at 681; Keith Hercules & Sons v Steedman (1987) 17 FCR 290 per Lockhart J at 300 - 302; Sheppard J at 303.) 39 It follows that there is no inconsistency between the State Act and the Commonwealth legislation to which s 109 of the Constitution may apply. 40 The second limb of De Pardo's argument is that the hearing and determination by the Tribunal of the Committee's complaint would constitute a purported exercise of the judicial power of the Commonwealth by other than a court to which Ch III of the Constitution applies. 41 The facts relevant to that submission are as follows. De Pardo's name appears in the Register of Practitioners maintained by the High Court under s 55C of the Judiciary Act. At some time after he was admitted a practitioner, De Pardo informed the Supreme Court that he had elected to practise only as a barrister. In 1992 De Pardo was instructed by a solicitor to perform work as a barrister in a proceeding in the Family Court of Western Australia in respect of a matter of federal jurisdiction arising under the Family Law Act. In due course, and by consent, orders were made by the Family Court of Western Australia which disposed of the respective claims of the parties. In a bill of costs provided by the solicitor to his client, fees rendered to the solicitor by De Pardo were included as a disbursement. The client had the bill taxed by the Family Court of Western Australia. Items in that bill, other than the disbursement, were agreed between the solicitor and the client before taxation. The taxation hearing concerned only the amount of the disbursement paid by the solicitor to De Pardo as counsel fees. De Pardo attended the taxation hearing pursuant to a subpoena issued by the Family Court of Western Australia. Upon taxation the sum claimed as a disbursement was reduced substantially. 42 The solicitor commenced an application in the Family Court of Western Australia to have De Pardo joined as a party to the matrimonial proceeding and to have the fees rendered by De Pardo to the solicitor made subject to taxation. De Pardo opposed the application on the ground, inter alia, that the application did not concern parties to a marriage and was not part of a "matrimonial cause" and, therefore, the Family Court of Western Australia had no jurisdiction to tax fees rendered by De Pardo to the applicant solicitor. A Magistrate of the Family Court of Western Australia accepted De Pardo's submissions and dismissed the application. 43 The solicitor lodged a complaint against De Pardo with the Committee in respect of the amount of fees rendered by De Pardo and paid by the solicitor. The Committee issued a reference to the Tribunal alleging that De Pardo was guilty of unprofessional conduct in that part of the counsel fees rendered by him to his instructing solicitor were, in all the circumstances, "grossly excessive". 44 De Pardo now asserts that the assessment or taxation of the counsel fees rendered by him is part of a "matrimonial cause" and that only a court on which federal jurisdiction in respect of such matters has been conferred or invested may determine the reasonableness of such fees. 45 It is submitted by De Pardo that determination by the Tribunal of the complaint before it "will inevitably involve an inquiry into, and an adjudication upon a matrimonial cause, namely, what are proper, fair and reasonable costs chargeable by (De Pardo) for the services which he provided" with respect to that matrimonial cause. De Pardo contends that the Tribunal cannot determine the complaint "without the Family Court of Western Australia having first determined the reasonableness or otherwise of the fees" rendered by him to the solicitor. 46 For the above submission to succeed it is necessary to show that a determination by the Tribunal of the Committee's complaint would involve an exercise of judicial power of the Commonwealth. 47 The Committee concedes that all incidental questions arising in the proceeding in the Family Court of Western Australia, including costs, were related to a "matrimonial cause" which attracted federal jurisdiction but submits that the assessment of the amount of the disbursement for the counsel fees payable by the client as part of the solicitor's bill of costs, was a determination by the Family Court of Western Australia of reasonable fees chargeable by De Pardo to the solicitor. 48 Alternatively, the Committee submits that determination by the Tribunal of the complaint before it involves an inquiry into, and finding upon, the single question whether De Pardo has been guilty of unprofessional conduct and that by considering whether the fees charged by De Pardo were grossly excessive, or making such a finding, the Tribunal would not be involved in an adjudication in a matrimonial cause. 49 The question raised by De Pardo is to be answered by analysing the nature of the hearing to be conducted, and the determination to be made, by the Tribunal. De Pardo submits that the Tribunal must ascertain what would have been fair, reasonable or proper charges for De Pardo to have rendered. But if so much is accepted for the purpose of that submission, does that bespeak an exercise of judicial power in respect of federal jurisdiction? 50 The matter of federal jurisdiction in this case is the incidental controversy between the solicitor for a party to the proceeding in the Family Court of Western Australia and counsel instructed by the solicitor in that proceeding. (See: Re Toolin and Cedric R Symonds (1981) 7 Fam LR 179.) An exercise of judicial power of the Commonwealth in that respect would be the resolution of that controversy by findings of fact and orders based upon such findings which determine and enforce the rights of the solicitor and De Pardo as they exist at law. (See: Brandy v HREOC (1995) 183 CLR 245 per Mason CJ, Brennan, Toohey JJ at 256 - 259; Commonwealth of Australia v State of Western Australia (1999) 160 ALR 638 per Gleeson CJ, Gaudron J at [48]; Northern Territory of Australia v GPOA (1999) 161 ALR 318 per Gleeson CJ, Gummow J at [87]; Nicholas v The Queen (1998) 193 CLR 173 per Brennan CJ at [18] - [19], Gaudron J at [70], McHugh J at [107] - [109]; Abebe v Commonwealth of Australia [1999] HCA 14 per Gleeson CJ and McHugh J at [48], [36].) 51 The hearing and determination by the Tribunal of the Committee's complaint will not have the character of such an exercise of judicial power. The task of the Tribunal is to ascertain whether De Pardo has been guilty of unprofessional conduct and if so whether to deal with De Pardo under s 29A(3) or make, and transmit, a report to the Supreme Court under s 29A(2). No part of that procedure will determine the existing rights at law of parties in dispute in a matter of federal jurisdiction. 52 It is alleged by the Committee that De Pardo is guilty of unprofessional conduct by charging counsel fees in a matter in the Family Court of Western Australia in sums that were, in all the circumstances, grossly excessive. A finding of unprofessional conduct, therefore, will involve consideration of a matrix of circumstances including whether it was plain, having regard to all those circumstances, that the fees charged by De Pardo would exceed by a clear measure any sum that might have been regarded as a reasonable fee for the services of a barrister performed by De Pardo. (See: D'Alessandro v Legal Practitioners Complaints Committee (1995) 15 WAR 198 per Ipp J at 211.) 53 The Tribunal will make findings of fact and an ultimate determination. If it is determined that De Pardo has been guilty of unprofessional conduct and that a report should be transmitted to the Supreme Court, such findings of fact recorded in that report will be conclusive findings from which the Supreme Court will make such orders as appear to be fit. Whether the performance of that function by the Tribunal may use the trappings of the exercise of judicial power is immaterial, for it is not an adjudication involving the exercise of a judicial power of the Commonwealth. Control exercisable by a court by taxation over costs or fees charged by a practitioner is a different and separate function from a determination that a practitioner has engaged in unprofessional conduct. The function able to be performed by the Family Court of Western Australia under the federal jurisdiction vested in it is to determine, as De Pardo puts it, "the reasonableness of the costs charged by him to his instructing solicitor". That function does not raise for adjudication the issue whether De Pardo had been guilty of unprofessional conduct. (See: D'Alessandro per Ipp J at 209 - 210.) The Family Court of Western Australia has no jursidiction to make such an adjudication. 54 The power of adjudication granted to the Family Court of Western Australia by the vesting of the federal jurisdiction does include the power to make orders which will effect supervision of the conduct of legal practitioners where such orders are necessary to redress a breach of duty to the court that has occasioned loss or injury and to maintain the integrity of the court's procedures. (See: Caboolture Park Shopping Centre Pty Ltd (In liquidation) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224 at 232 - 233; Jachimowicz v Jachimowicz (1986) 81 FLR 459; Myers v Elman [1940] AC 282 at 289; Re Bendeich (No 2) (1994) 53 FCR 422 at 425 - 427.) However, that judicial power of the Commonwealth is not the same as, and does not supplant, a judicial power of a Supreme Court of a State, assisted in this case by the Tribunal, to find that a practitioner admitted by the Supreme Court has been guilty of unprofessional conduct contrary to the terms of that admission and is liable to a penalty or sanction directed to obtaining adherence by practitioners to the standard of conduct required by reason of that admission. (See: Weaver v Law Society of New South Wales (1979) 142 CLR 201 per Mason J at 207; Wentworth v New South Wales Bar Association (1992) 176 CLR 239 per Deane, Dawson, Toohey and Gaudron JJ at 250 - 253.) 55 It follows from the foregoing that the hearing by the Tribunal of the complaint that De Pardo engaged in unprofessional conduct by rendering grossly excessive fees to an instructing solicitor in respect of De Pardo's practise as a barrister in a matter of the Family Court of Western Australia in the exercise of federal jurisdiction will not involve the exercise of a judicial power of the Commonwealth. 56 The applications for injunctions against the Committee and the Tribunal will be dismissed with costs. I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee.

Counsel for the Applicant: E M Heenan QC B J H Goetze

Solicitor for the Applicant: Minter Ellison

Counsel for the First Respondent: R J Davies QC J D Allanson

Solicitor for the First Respondent: Law Complaints Officer

Date of Hearing: 21 August 1998