Fitzgibbon v Council of New South Wales Bar Association

Judgment 1HANDLEY AJA : Mr Jacobs QC has moved on behalf of Mr David Fitzgibbon, (the barrister), on a summons dated 23 December 2010 for orders in the nature of prohibition and certiorari to quash a decision of the Administrative Decisions Tribunal, (the Tribunal), on 7 December 2010. The Tribunal refused an order for summary dismissal of disciplinary proceedings brought by the Council of the New South Wales Bar Association, (the Council), against the barrister. 2On 18 December 2009 the Council filed an application in the Tribunal seeking findings that the barrister had been guilty of unsatisfactory professional conduct when preparing written submissions for the Court of Criminal Appeal and in his oral argument. Consequential orders were sought. 3The application was listed for hearing in the Tribunal on 16 November 2010. That morning the barrister filed an application for an order striking out the Council's proceedings on two grounds. The first was that the proceedings had been commenced outside the six months time limit in s 552(1) of the Legal Profession Act 2004, (the 2004 Act ) . The second was that as a matter of law the particularised allegations of unsatisfactory professional conduct could not possibly succeed. The Tribunal reserved its decision and gave judgment on 7 December 2010 dismissing the application. This was an interlocutory decision because the Council's disciplinary proceedings awaited a final decision after a hearing on the merits. 4Pursuant to s 729A(4)(a) of the 2004 Act an appeal lies to the Supreme Court from interlocutory decisions of the Tribunal in disciplinary proceedings but only by leave of the Supreme Court. Section 48(1)(a)(viii) of the Supreme Court Act assigns appeals from the Legal Services Division of the Tribunal to the Court of Appeal. Thus the barrister's challenge to the Tribunal's interlocutory decision of 7 December 2010 could have been challenged on appeal by leave of this Court. Judicial review proceedings are brought as of right but the availability of an alternative remedy enlivens a discretion to withhold prerogative relief. More will be said about that later in these reasons. 5The barrister's time bar point is based on s 537(2) and s 552(1) and (6) of the 2004 Act which provide: " 537 Decision of Commissioner or Council after investigation (2) Unless section 540 (Summary conclusion of complaint procedure by caution, reprimand or compensation order) applies, the Council or the Commissioner must commence proceedings in the Tribunal with respect to a complaint against an Australian legal practitioner if satisfied that there is a reasonable likelihood that the practitioner will be found by the Tribunal to have engaged in unsatisfactory professional conduct or professional misconduct. "552 Time for commencing proceedings (1) A disciplinary application may be made to the Tribunal at any time within 6 months after the Council or Commissioner decides that proceedings be commenced in the Tribunal with respect to the complaint concerned. ... (6) For the purposes of subsection (1), a decision that proceedings be commenced is made when: (a) the Council or Commissioner decides that there is a reasonable likelihood that the legal practitioner concerned will be found by the Tribunal to have engaged in unsatisfactory professional conduct or professional misconduct, as referred to in section 537 (2) (Decision of Commissioner or Council after investigation) or 538 (1) (Decision of Commissioner or Council without investigation), or (b) the Commissioner decides to commence proceedings in the Tribunal against the legal practitioner concerned under section 545 (1)(h) (Decision of Commissioner on review). 6Mr Jacobs relies on what he submits was the decision of the Legal Services Commissioner of 27 April 2009 to start time running under s 552(1). On 17 January 2008 the Commissioner wrote to the New South Wales Bar Association, (the Association). The second paragraph of his letter stated: "The Commissioner has now initiated a complaint in relation to [the barrister's] conduct. A copy of his Record of Decision pursuant to s 504 of the Act along with the papers referred by the Registrar of the Court of Criminal Appeal are enclosed." 7On 27 April 2009 the Commissioner recorded his decision under s 535 of the 2004 Act to modify the complaint. Section 504(1)(c) provides that a complaint about an Australian legal practitioner may be made by the Commissioner. Section 535(1) provides inter alia that the Commissioner investigating a complaint "may, during or after completion of the investigation, by instrument in writing, modify the complaint". 8The question is whether in modifying his original complaint on 27 April 2009 the Commissioner was deciding in terms of ss 537(2) and 552(6) "that there is a reasonable likelihood that the legal practitioner concerned will be found by the Tribunal to have engaged in unsatisfactory professional conduct ...". 9The 2004 Act draws a clear distinction between decisions of the Commissioner under s 504 and s 535 that a complaint should be made or modified and the formation of his opinion under s 537(2) and s 552(6) that there is a reasonable likelihood that the practitioner will be found by the Tribunal to have engaged in unsatisfactory professional conduct. If the Commissioner forms that opinion s 537(2) requires him ("must") to commence appropriate proceedings in the Tribunal. There is no direct evidence that the Commissioner ever formed such an opinion and the terms of his modified complaint do not support an inference that he did. 10The original complaint made allegations of unsatisfactory professional conduct against the barrister although they were not described as such in the Commissioner's letter or in the record of his decision. The Commissioner's modified complaint made allegations in terms against the barrister but this was required by s 535(1) which enabled the Commissioner to modify a complaint by omitting or altering allegations or adding additional allegations. The fact that the Commissioner made allegations in his original and modified complaints does not in my judgment establish that he had formed the opinion described in s 537(2) and s 552(6). 11In any event, time would not commence to run under s 552(1) against the Council simply because the Commissioner had formed the required opinion. Time would only commence to run against the Council when it had formed that opinion. Thus even if, contrary to my opinion, the Commissioner's decision of 27 April 2009 was an opinion within s 537(2) and 552(6) which caused time to commence to run, it would only have commenced to run against the Commissioner and not against the Council. 12Mr Jacobs has not submitted that any act or decision of the Council or the relevant Professional Conduct Committee prior to 29 October 2009 fell within s 537(2) and s 552(6). In those circumstances I have reached the clear conclusion that the time bar point raised by Mr Jacobs on behalf of the barrister is without substance and should be rejected. 13In the written submissions and in the summons for judicial review a second ground was taken on behalf of the barrister that the allegations on the face of the Council's application to the Tribunal could not as a matter of law succeed because they did not come within the definition in the Act of "unsatisfactory professional conduct". This point was abandoned by Mr Jacobs but I will make some brief comments on it. 14The definition in s 496 of unsatisfactory professional conduct states that it: "includes conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner". 15The point was that the "and" between "standard of competence" and "diligence" was conjunctive. On this basis it was submitted that conduct could not be unsatisfactory professional conduct unless it fell short both of the standard of competence and the standard of diligence that a member of the public is entitled to expect. 16In my judgment the standard required by the definition is a composite one requiring both competence and diligence. The public are entitled to expect nothing less and it is not to be supposed that Parliament in enacting the definition considered that the public were only entitled to expect either diligence or competence but never both. Parliament cannot have considered that either diligent incompetence or dilatory competence was satisfactory professional conduct. 17I would add that the appropriate remedy for error by the Tribunal is an appeal by leave or by right as provided for in s 729A. On such an appeal the Court can grant all the relief that could be granted in judicial review proceedings and additional relief that could not be granted in such proceedings. There is authority in this Court that it can be an abuse of process to commence judicial review proceedings as of right where appellate relief is available, but only by leave, to avoid that requirement. I refer to Meagher v Stephenson (1993) NSWLR 736. 18I therefore propose that the summons be dismissed with costs. 19BASTEN JA : I agree. 20YOUNG JA : I also agree.