Konstantinidis v Council of the Law Society of New South Wales

Court of Appeal (NSW)|2018-02-09

[2017] NSWCATOD 105 Date of Decision: 4 July 2017 Before: D Fairlie (Presiding Member)P Moran (Senior Member)J Schwager (General Member) File Number(s): 2016/00378572,1620007

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

[This headnote is not to be read as part of the judgment] The Office of the Legal Services Commissioner referred two complaints against Mr Simon Konstantinidis (the Solicitor) to the Law Council of NSW (the Council). On 20 November 2014, the Professional Conduct Committee (the Committee) resolved, in relation to the first complaint, that the Solicitor be informed of "the Committee's opinion that, subject to any submissions, it should resolve that it is satisfied there is a reasonable likelihood the legal practitioner will be found by the [NSW Civil and Administrative Tribunal] to have engaged in unsatisfactory professional conduct and that proceedings be instituted in the Tribunal with respect to the complaint pursuant to Section 537(2) of the Legal Profession Act 2004". On 5 February 2015, the Committee resolved in relevantly the same terms in relation to the second complaint. On 16 April 2015, the Committee resolved that its resolution of 20 November 2014 be rescinded. On 16 July 2015, the Committee resolved that it was satisfied that there was a reasonable likelihood that the Solicitor would be found by the Tribunal to have engaged in professional misconduct, and that proceedings be instituted in the Tribunal. On 7 January 2016 the Council filed an application for disciplinary findings and orders in the Tribunal. The Solicitor contended that the Tribunal had no jurisdiction to entertain the application, because it was not brought by 20 April 2015 (being 6 months after the resolution of 20 November 2014). Section 552(1) of the Legal Profession Act provides that a disciplinary application may be made to the Tribunal at any time within 6 months after the Council decides that proceedings be commenced. A decision that proceedings be commenced is made when the Council decides that there is a reasonable likelihood that the legal practitioner will be found by the Tribunal to have engaged in unsatisfactory professional conduct or professional misconduct. The Tribunal found that the resolution of 20 November 2014 was not a decision for the purposes of s 552(6). The resolution did not record that the Committee had decided that there was a reasonable likelihood that the Solicitor would be found by the Tribunal to have engaged in unsatisfactory profession conduct or professional misconduct. Rather, it was a resolution that the Solicitor be informed of the two matters recorded. The issues on appeal were: (i) Whether, and on what basis, the Court of Appeal had jurisdiction to entertain the proceedings before it; (ii) Whether the 20 November 2014 and 16 April 2015 resolutions were decisions for the purpose of s 552 of the Legal Profession Act; and (iii) Whether the invitation to make submissions was confined to the question of whether the Council should dispose of the complaint using the summary procedure in s 540 of the Legal Profession Act. The Court held, dismissing the appeal: In relation to (i): A right of appeal arose under cl 29 of Sch 5 to the Tribunal Act, which provides for appeals against "profession decisions" of the Tribunal. The decision was "for the purposes of" the Legal Profession Act: [18]. Accepting that the decision of the Tribunal was an ancillary decision, no question of leave arose: [5]; [8]. The proceedings were properly assigned to the Court of Appeal under s 48(1)(viii) of the Supreme Court Act 1970 (NSW): [16]-[17]. In relation to (ii): The Solicitor did not identify any error of law in the Tribunal's construction of s 552 of the Legal Profession Act. The relevant decision for the purposes of s 552(2) occurred on 16 July 2015: [57]. The Tribunal provided clear and cogent reasons for concluding that the 20 November 2014 and 16 April 2015 resolutions were not decisions for the purpose of s 552(6) of the Legal Profession Act. The word "should" plainly indicated that the date for deciding whether to commence proceedings had not been reached: [42]-[43]. An opinion expressed "subject to submissions" cannot be construed as a decision that is final, operative or determinative. The Council could not reach the requisite state of satisfaction required without taking into account the Solicitor's response. Further, it would be futile and contrary to the procedural requirements contained within ss 494(3)(b), 508 and 509 of the Legal Profession Act to invite submissions but then disregard them: [46]; [49]-[50]. Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 In relation to (iii): Neither the language of the resolution nor the surrounding circumstances exhibited an intention to limit the subject matter of the submissions to the question of summary dismissal: [51]-[53].

Judgment

THE COURT: By summons filed on 3 October 2017, Mr Simon Konstantinidis (the Solicitor) seeks leave to appeal from a decision of the Civil and Administrative Tribunal NSW (the Tribunal) made on 4 July 2017 (the primary judgment). By the primary judgment, the Tribunal determined that it had jurisdiction to entertain proceedings commenced in the Tribunal by the Council of the Law Society of New South Wales (the Council) with respect to complaints concerning the Solicitor. [1] The complaints were made under the Legal Profession Act 2004 (NSW), which was repealed as from 1 July 2015 by the Legal Profession Uniform Law Application Act 2014 (NSW). However, as the complaints that were the subject of the proceedings were made prior to 1 July 2015, and not the subject of a disciplinary application finalised by the Tribunal prior to 1 July 2015, the Legal Profession Act continues to apply.
While the substantive question raised in these proceedings is shortly stated, whether the Tribunal had jurisdiction to entertain proceedings commenced by the Council, the appropriate procedure whereby that question can be resolved by this Court is not without complexity.

How the jurisdiction of the Tribunal is to be resolved in the Court

On 13 November 2017, the applicant filed an amended summons seeking leave to appeal against the Tribunal's decision. The summons indicated that the application for leave was brought pursuant to cll 29(2) - (6) of Schedule 5 to the Civil and Administrative Tribunal Act 2013 (NSW) (the Tribunal Act). However, no further analysis was provided in submissions from either party about the basis of the leave application. It appeared that the applicant had sought leave because the decision of the Tribunal was a "profession decision". Clause 29(1)(e) defines profession decisions to include a decision for the purposes of the Legal Profession Uniform Law (NSW). Clause 29(6) provides that an appeal against an interlocutory decision of the Tribunal does not lie to a court under the clause except by leave of the court. Pursuant to cl 21(a) of Schedule 1 to the Tribunal Act, a reference in that Act to the Legal Profession Uniform Law (NSW) includes a reference to the Legal Profession Act 2004.
On 8 February 2018, one day prior to the hearing of the leave application in this Court, counsel for the applicant sent an email to the Registrar of the Court of Appeal attaching a copy of a letter sent by him to counsel for the respondent. The letter stated that on further consideration of the matter, it appeared that the proposed appeal did not require a grant of leave, and that an appeal arose as of right. The letter stated that the decision of the Tribunal was an ancillary decision for the purposes of the Tribunal Act. "Ancillary decision" is defined in s 4 to mean 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 decision concerning whether the Tribunal has jurisdiction to deal with a matter. The letter points out that the requirement for leave in cl 29(6) applies only to interlocutory decisions, and does not operate in respect of an ancillary decision.
Later that day, counsel for the respondent sent an email to the Registrar of the Court of Appeal, indicating that having reviewed the relevant provisions of the Tribunal Act, the Council agreed with the applicant's construction of the Act. The email stated that this had the consequence that leave of the Court was not required for the proposed appeal to proceed. The email indicated that the Council was in a position to, and wished to, proceed with the hearing of the substantive appeal the following day if the Court considered that that was appropriate.
The presiding judge sent an email to the parties indicating that the Court would constitute itself as a three member bench in order to attempt to address the case. The email asked the parties to be in a position to: 1. identify the order or orders made by the Tribunal the subject of these proceedings; 2. address whether the Tribunal has yet made an order capable of challenge in this Court; 3. address whether (if an order has been made) the application made by Mr Konstantinidis is in relation to an interlocutory or final order; 4. address whether (if an order has been made) leave to appeal is required by Mr Konstantinidis; 5. identify the order or orders sought by Mr Konstantinidis from this Court and the suggested juridical basis of the Court making those orders; and 6. identify the appropriate process by which the orders referred to in 5 will be sought.
At the hearing, the Council accepted the Solicitor's submissions that the Tribunal's decision was an ancillary decision. The Council also accepted that the Tribunal's decision was not also an interlocutory decision, which is defined in s 4(h) of the Tribunal Act to include "the summary dismissal of proceedings". The Council accepted that the correct construction of the Tribunal Act was that the Tribunal's decision could not be both an ancillary and an interlocutory decision. This was due to the definition of "ancillary decision", given that one of the examples of an ancillary decision is a decision in respect of jurisdiction.
The Council then raised an additional matter, which was said to be prompted by the presiding judge's email: whether the decision of the Tribunal was properly characterised as a "profession decision" within the meaning of cl 29(1)(e). The Council argued that the decision was not "for the purposes of" the Legal Profession Act.
The Council submitted that, as there was no statutory right of appeal, there was a question as to whether the proceedings were more appropriately dealt with by a judicial review application under s 69 of the Supreme Court Act 1970 (NSW). However, the Council submitted than such an application would be out of time, and that the Council would oppose the grant of an extension of time. The Council argued that this would be on two bases: the "weakness" of the Solicitor's argument and the public interest consideration of delay. However, later in the hearing, the Council conceded that it would not oppose an application by the Solicitor for leave to file and serve an amended summons, so as to facilitate the disposition of the substantive question.
At the conclusion of the hearing, the Court made the following orders: 1. by 4pm on Tuesday 13 February 2018 applicant to file submissions about the jurisdiction the court, including whether this matter is properly allocated to the Court of Appeal or a Division of the Court and the steps it is submitted that the Court should take in either event, including referral by a judge of the Court to the Court of Appeal. The applicant should also attach such amended originating process he seeks to rely upon. 2. by 4pm on Thursday 15 February 2018 respondent to file submissions about the jurisdiction of the Court including all of the matters addressed by applicant. 3. by 4pm on Monday 19 February 2018 applicant to file any submissions in response.
The parties duly filed these submissions.

Assignment of the proceedings

Both parties agreed, for different reasons, that the proceedings were properly assigned to the Court of Appeal.
The Solicitor submitted that there is no provision in the Supreme Court Act, Supreme Court Rules 1970 (NSW), Civil Procedure Act 2005 (NSW) or Uniform Civil Procedure Rules 2005 (NSW) which expressly or impliedly assigns business concerned with the Legal Profession Act when exercising functions under the Legal Profession Act. The Solicitor argued that this is "anomalous", and submitted that the effect of this is that s 49 of the Supreme Court Act assigns the application for leave to appeal and the proposed appeal to a Division, and that s 53(1)(d) of the Supreme Court Act assigns that application for leave to appeal and the proposed appeal to the Common Law Division. Nevertheless, the Solicitor submitted that, to the extent that the proposed appeal requires leave, the summons was a sufficient application for that g rant of leave. Thus, s 51(2)(b) and (d) of the Supreme Court Act would allow the proceedings commenced by summons may be continued and disposed of in the Court of Appeal.
The Council submitted that the "almost invariable" practice of the Court has been for all disciplinary matters concerning lawyers to be assigned to the Court of Appeal. The Council relied on cl 26 of Schedule 4 to the Legal Profession Uniform Law (NSW), which provides that on or after the commencement day, a complaint or investigation under the Legal Profession Act is to continue to be dealt with in accordance with the provisions of the Legal Profession Act, by the entity responsible for dealing with it under those provisions. Accordingly, the current proceedings were properly described as proceedings seeking review of a decision of the Tribunal when exercising functions or purporting to exercise functions under the Uniform Law, and were therefore assigned to the Court of Appeal under s 48(1)(viii) of the Supreme Court Act. [2]
We accept that the submission made by the Council is correct. Clause 26 of Schedule 4 to the Legal Profession Uniform Law (NSW) has the effect that this complaint is to continue to be dealt with in accordance with the provisions of the Legal Profession Act, by the Council as the entity responsible for dealing with it under those provisions. The current proceedings are properly described as proceedings seeking review of a decision of the Tribunal when exercising functions or purporting to exercise functions for the purposes of the Uniform Law even though the Uniform Law directs that the complaint be dealt with in accordance with the provisions of the Legal Profession Act. The Tribunal is dealing with the complaint by virtue of the Uniform Law. That conclusion is reinforced by clause 2 of Schedule 4 to the Uniform Law that provides in substance that things done under provisions of the Legal Profession Act that correspond to provisions of the Uniform Law that were done before the commencement of the Uniform Law continue in effect as if they were done under the Uniform Law. Hence the investigation that commenced before 1 July 2015 is taken to have been done under the Uniform Law. It is by virtue of Schedule 4 to the Uniform Law, that provisions in the old legislation continue to apply. Accordingly, the matter is assigned to the Court of Appeal under s 48(1)(viii) of the Supreme Court Act.
The relevant question is whether the proceedings should consist of a statutory appeal or an application for judicial review.

Form of the proceedings

The Council's submission that the Tribunal's decision was not a decision "for the purposes" of the Legal Profession Act should be rejected. Clause 1(2) in Schedule 5 to the Tribunal Act is sufficient to dispose of this question. Clause 1(2) of Schedule 5 provides that except as otherwise provided, a provision in Schedule 5 that provides for, or limits or excludes, an appeal against a decision of the Tribunal that is made for the purposes of specified legislation (or a specified provision of legislation) is taken to extend to any ancillary or interlocutory decision of the Tribunal in the proceedings in which that decision was made. Accepting (as the parties did) that the decision of the Tribunal was an ancillary decision, the effect of that clause is that a provision providing for an appeal against a decision of the Tribunal extends to an appeal from any ancillary decision of the Tribunal.
It is unnecessary to consider here an issue not raised by the parties, namely whether and to what extent decisions made concerning jurisdiction in other "profession decisions" were "for the purposes" of those Acts, being the Aboriginal Land Rights Act 1983 (NSW), the Architects Act 2003 (NSW), the Building Professionals Act 2005 (NSW) the Health Practitioner Regulation National Law (NSW), the Local Government Act 1993 (NSW), the Surveying and Spatial Information Act 2002 (NSW) and the Veterinary Practice Act 2003 (NSW).
It is also unnecessary to consider the issues raised by the application, made by the Solicitor in the alternative, that the Court grant an extension of time to file an amended summons so that the proceedings conform with the requirements for a "Summons (Judicial Review)".

The Appeal

Section 552(1) of the Legal Profession Act relevantly provided that a disciplinary application may be made to the Tribunal at any time within six months after the Council decides that proceedings be commenced in the Tribunal with respect to the complaints concerned. The proceedings in the Tribunal in question constitute a disciplinary application within the meaning of s 552(1). The Solicitor contends that the proceedings had been commenced in the Tribunal more than six months after the Council had decided that proceedings be commenced with respect to the complaints concerned.
Under s 537(1) of the Legal Profession Act, after completion of an investigation of a complaint against an Australian legal practitioner, the Council must:

commence proceedings in the Tribunal;
dismiss the complaint; or
take action under s 540.

Section 537(2) relevantly provided that, unless s 540 applied, the Council must commence proceedings in the Tribunal with respect to a complaint 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.
Section 552(1) then provided that a disciplinary application may be made at any time to the Tribunal within six months after the Council decides that proceedings be commenced. For the purposes of s 552(1), a decision that proceedings be commenced is made when the Council 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 s 537(2): s 537(6).
Section 540 applied, relevantly, if the Council completes an investigation of a complaint, [3] is satisfied that there is a reasonable likelihood that the practitioner would be found by the Tribunal to have engaged in unsatisfactory professional conduct [4] and is satisfied that taking action under the section is justified in the circumstances of the case [5] . If the Council is so satisfied, the complaint procedure may be concluded summarily by caution, reprimand, compensation order or imposition of conditions rather than by the commencement of proceedings in the Tribunal. However, if s 540 does not apply, the Council is required to commence proceedings in the Tribunal if satisfied that there is a reasonable likelihood that the practitioner would be found by the Tribunal to have engaged in unsatisfactory professional conduct or professional misconduct. Unless a disciplinary application is made to the Tribunal within six months after the Council decided that proceedings be commenced, the disciplinary action will be out of time.
On 21 June 2012, the Office of the Legal Services Commissioner referred to the Council for investigation a complaint against the Solicitor (the first complaint). The Solicitor was notified of the complaint on 19 September 2012. On 6 August 2014, the Legal Services Commissioner referred for investigation a second complaint against the Solicitor (the second complaint). The Solicitor was notified of the second complaint on 22 August 2014.
Pursuant to s 699(3) of the Legal Profession Act, the Council delegated to the Professional Conduct Committee (as constituted at the time of the resolution and as such constitution may be varied from time to time by the President) (the Committee) all of its powers concerning complaints and discipline contained in Ch 4 of the Legal Profession Act, together with power to determine to commence and prosecute proceedings for breaches of the Legal Profession Act.
On 20 November 2014, the Committee resolved as follows: "A. RESOLVED that Simon Konstantinidis ("the legal practitioner") be informed of: 1. The issues of unsatisfactory professional conduct which, in the opinion of the Committee, are involved in the complaint and in respect of which the Committee invites submissions within 14 days of the date of the letter notifying the legal practitioner of these resolutions; and 2. The Committee's opinion that, subject to any submissions, it should resolve that it is satisfied there is a reasonable likelihood the legal practitioner will be found by the Tribunal to have engaged in unsatisfactory professional conduct and that proceedings be instituted in the Tribunal with respect to the complaint pursuant to Section 537(2) of the Legal Profession Act 2004. … 3. It is the Committee's opinion that, subject to any submissions, the appropriate orders to be sought on a referral to the Tribunal of this complaint are as follows: Orders to be Sought 1. The solicitor be reprimanded. 2. The solicitor pays compensation to Apostolos and Ilias Stoikos pursuant to section 573 of the Legal Profession Act 2004. 3. The solicitor pays the Society's costs as agreed or assessed. 4. Any such further or other order the Tribunal thinks fit. 4. Consideration of this complaint is to be placed on the agenda of the whole of the Professional Conduct Committee as soon as practicable after the expiration of 14 days from the date of the letter notifying the legal practitioner of these resolutions…" On 21 November 2014, the Council notified the Solicitor's representative of its resolution of 20 November 2014. The letter concluded under a heading "Resolution A": "If your client wishes to make any further submissions of fact or law, or as to the orders to be sought, they must reach the writer by 5 December 2014. If your client makes no submissions within that time the Committee will reconsider this complaint on the information presently available." There was no evidence before the Tribunal that the Solicitor made any submissions of the kind referred to. [6]
On 5 February 2015, the Committee resolved in relevantly the same terms in relation to the second complaint. On 9 February 2015, the Council notified the Solicitor of the Committee's resolution of 5 February 2015.
On 16 April 2015, the Committee resolved that its resolution of 20 November 2014 be rescinded and that the Solicitor be informed of certain matters concerning the second complaint. The Solicitor's representative was notified of the resolution of 16 April 2015 by letter dated 17 April 2015. On 4 May 2015, the Council sent a further letter to the Solicitor's representative, which referred to the 17 April letter and said: "..if your client wishes to make any further submissions of fact or law, or as to the orders to be sought, they must reach the writer by 18 May 2015 (being 14 days of the date of this letter as set out in the resolution). If your client makes no submissions within that time, then the Committee will reconsider this complaint on the information presently available." There was no evidence before the Tribunal indicating that the Solicitor had responded to either the 17 April or 4 May letters. [7]
On 16 July 2015, the Committee resolved that it was satisfied there was a reasonable likelihood the Solicitor would be found by the Tribunal to have engaged in professional misconduct and that proceedings be instituted in the Tribunal pursuant to s 537(2) of the Legal Profession Act. The Council notified the Solicitor of the Committee's resolution by letter dated 17 July 2015. The letter included a section entitled "Reasons for Decision".
On 7 January 2016, and within 6 months of the 16 July 2015 resolution, the Council filed an application for disciplinary findings and orders in the Tribunal. The Council sought orders that the Solicitor be reprimanded and pay a substantial fine and that he undertake a course in legal ethics. Procedural directions were given for the preparation of the application for hearing and the proceedings were listed for hearing on 20 February 2017. The Council filed and served submissions on 1 February 2017. The Solicitor served submissions on 19 February 2017 and filed them on the day of the hearing.
The Solicitor's written submissions raised for the first time a question as to the Tribunal's jurisdiction, contending that the Tribunal had no jurisdiction to entertain the application before it because the application was not brought by 20 April 2015, the date that was six months after the resolution of 20 November 2014. The Tribunal directed the Solicitor to file an amended reply to the application.
The Solicitor filed an amended reply on 24 February 2017 in which he contended that, in respect of each of the grounds relating to the first complaint, the Tribunal was without jurisdiction to hear and determine the grounds and the application was made without the Council having power or authority to do so and was incompetent.

Reasons of the Tribunal

In its reasons of 4 July 2017, the Tribunal concluded that the resolution of 20 November 2014 was not a decision for the purposes of s 552(6) of the Legal Profession Act because the resolution did not record that the Committee had decided that there was a reasonable likelihood that the Solicitor would be found by the Tribunal to have engaged in unsatisfactory professional conduct or professional misconduct. [8] Rather, the Tribunal concluded that it was a resolution that the Solicitor be informed of the two matters recorded and the expressions of opinion by the Committee. The part of the resolution that invited submissions from the Solicitor was held to be inconsistent with the Committee having made a decision on 20 November 2014. Rather, the resolution expressly contemplated a future event: that it "should resolve" that it is satisfied that there is a reasonable likelihood that the Solicitor would be found by the Tribunal to have engaged in unsatisfactory professional conduct and that proceedings be instituted.
The Tribunal held that the resolution expressly contemplated that any such future resolution would be subject to any submissions that the Solicitor might wish to make if he chose to accept the Committee's invitation to make further submissions. Further, it held that the resolution expressly contemplated that a decision of the kind required by s 537(1) would be made at a future point in time and that such decision, when and if made at that future time, would be made after either receipt of submissions of the Solicitor or the expiration of 14 days in the event that no submissions were received. The Tribunal considered futurity was also noted by the express reference to a further meeting of the Committee as soon as practicable after the expiration of the period of 14 days at which consideration of the issue would be on the agenda.
The Tribunal did not consider that an expression of opinion as to what the Committee should resolve at some future point and subject to any submissions of the Solicitor was a resolution whereby the Committee decided that there was a reasonable likelihood that the Solicitor would be found by the Tribunal to have engaged in unsatisfactory professional conduct or professional misconduct. The Tribunal considered that the phrase "should resolve" was critical as indicating sometime in the future. It also considered that any further resolution that the Committee might make was subject to any submissions that the Solicitor might wish to put. Finally, it considered that, by writing to the Solicitor on 21 November 2014, the Council:

was endeavouring to ensure that the Solicitor was afforded the natural justice and procedural fairness required by s 494(3)(b) of the Legal Profession Act;
was complying with the obligation under s 508 of the Legal Profession Act to inform the Solicitor of his right to make submissions; and
was acting consistently with the principles outlined by this Court in Murray v Legal Services Commissioner (1990) 46 NSWLR 224; [1999] NSWCA 70. Therefore, the Tribunal concluded that the resolution of 20 November 2014 was not a decision as defined in s 552(6), and time did not commence to run from the date of that resolution. For the same reasons, the Tribunal concluded that the resolution of 16 April 2015 was not a decision of the Committee for the purposes of s 552(6).

The Solicitor's Contentions

The Solicitor contended that the 20 November 2014 and 16 April 2015 resolutions were decisions for the purpose of s 552, because on both occasions the Committee had reached the requisite state of satisfaction. He referred to the part of the 20 November 2014 resolution resolving that the Solicitor be informed of "[t]he issues of unsatisfactory professional conduct which, in the opinion of the Committee, are involved in the complaint…". He submitted that that demonstrated a satisfaction on behalf of the Committee that the Solicitor's conduct amounted to unsatisfactory professional conduct.
The response to an enquiry from the Court as to how the Committee could be so satisfied when the opinion was expressed to be "subject to submissions", was that the invitation to make submissions was confined to the question of whether the Council should commence proceedings in the Tribunal, or dispose of the complaint summarily under s 540.
The Solicitor contended that, because the Committee indicated a "stated willingness" to deal with the complaints according to the s 540 procedure, it must have already reached the state of satisfaction required by s 540(1)(b)(i): a satisfaction that there was a reasonable likelihood that the Solicitor would be found by the Tribunal to have engaged in unsatisfactory professional conduct. The Solicitor said that, since that is the same state of satisfaction prescribed by s 552(6)(a), time began to run for the purposes of s 552(1) on 20 November 2014. The crux of the contention is that time did not begin to run on a decision to institute proceedings, but rather on a conclusion characterising the conduct.
The Council, on the other hand, contended that the Tribunal correctly determined that neither the 20 November 2014 nor the 16 April 2015 resolution was a decision for the purpose of s 552(6) of the Legal Profession Act: rather, they were resolutions to inform the Solicitor of certain matters and invite submissions, not resolutions as to an existing state of satisfaction. The Council advanced several further submissions. First, the statutory context of the Legal Profession Act is directly analogous to other statutory schemes in which it has been held that a "decision" means a final determination with operative effect. [9] An opinion expressed to be "subject to any submissions" is incapable of being construed as final or operative. Rather, the resolutions should be construed as steps in the process towards making a final determination. Secondly, the "very fact of an invitation" to make submissions was persuasive, because there would have been no reason for the Committee to invite submissions if the necessary state of satisfaction had already been reached. Thirdly, the words of s 552(7) contemplated that there will be "[a]n official record or notification of a decision" made under s 552(6): the obligation to prepare a statement of reasons would be unduly onerous and uncertain if it applied to provisional opinions. Fourthly, the Solicitor's reliance on s 540 was misguided: while the requisite state of satisfaction may be reached under s 540(1)(b) without a decision being made to commence proceedings, that does not mean that the decisions as to whether the requisite standard has been met and whether or not to commence proceedings can be made at different times; rather, as set out in s 537(2), unless s 540 applies, it "must commence proceedings in the Tribunal" upon making a decision that the requisite standard has been reached. Fifthly, the construction of s 552 proposed by the Solicitor would mean that the "clock starts running" from the time when the Council first forms a preliminary or provisional opinion, without regard to the need for it to investigate fully and properly the Solicitor's response to the matters raised. That state of affairs would "make a mockery" of the principles referred to below. Finally, the letter sent by the Council to the Solicitor on 17 July 2015 included a section entitled "Reasons for Decision", in contrast to the three earlier letters of 21 November 2014, 17 April 2015 and 14 May 2015, which did not include an equivalent section. [10]

Consideration

The Solicitor's contentions must be rejected. The Tribunal provided clear and cogent reasons for concluding that the 20 November 2014 and 16 April 2015 resolutions were not decisions for the purpose of s 552(6) of the Legal Profession Act. It correctly emphasised that the 20 November 2014 and 16 April 2015 resolutions did not record that the Committee had decided that there was a reasonable likelihood that the Solicitor would be found by the Tribunal to have engaged in unsatisfactory professional conduct or professional misconduct. Rather, the resolutions invited submissions from the Solicitor and directed that the Solicitor be informed that "subject to any submissions [by the Solicitor], it should resolve" that there was a reasonable likelihood that the legal practitioner would be found by the Tribunal to have engaged in unsatisfactory professional conduct or professional misconduct.
The Committee's choice of language was significant. It did not direct that the Solicitor be informed that "subject to any submissions, the Committee resolves that it is satisfied". Rather, it directed that "subject to any submissions, the Committee should resolve that it is satisfied". The word "should" plainly indicated that the date for deciding whether to commence proceedings had not been reached. That finding is strengthened by the Council's submission that the 17 July 2015 letter included a section entitled "Reasons for Decision", but the 21 November 2014, 17 April 2015 and 14 May 2015 letters did not.
It is also telling that both resolutions expressly contemplated a further meeting of the Committee. That was to occur as soon as practicable after the expiration of the period of 14 days, at which consideration of the issue (and any relevant submissions) would be on the agenda.
The section of the resolutions inviting submissions from the Solicitor is another indication that the Committee did not make a relevant decision on 20 November 2014 or 16 April 2015. That invitation was significant for three reasons.
First, an opinion expressed "subject to submissions" cannot be construed as a decision that is "final or operative and determinative", as defined by the High Court. [11]
The Council drew an analogy with s 208L of the Legal Profession Act 1987 (NSW), which conferred a right of appeal to the Supreme Court without leave from "a decision of a costs assessor as to a matter of law". Where a costs assessor issues "draft reasons" proposing that costs would be assessed in accordance with a statutory cap until 2005, and uncapped thereafter, there will be no "decision" in respect of which an appeal as of right arises under s 208L. The draft reasons constitute no more than an expression of intention on the part of the costs assessor as to the future conduct of his assessment, and are binding neither on the parties nor on the costs assessor. Nothing would prevent the parties from making further submissions to the costs assessor with a view to seeking a different "decision" to that contained in the draft. The position would be different once a final determination had been made. [12]
Similarly, an opinion that "subject to any submissions, [the Committee] should resolve…" is no more than an expression of intention on the part of the Committee to resolve on the question at a future time. If the Solicitor did choose to make submissions to the Committee, it would be with a view to seeking a "decision" different from that expressed in the resolutions.
Further, it would be both futile and contrary to the procedural fairness requirements in ss 494(3)(b), 508 and 509 of the Legal Profession Act for the Tribunal to invite submissions on the complaints in question, but disregard them because the decision had already been finalised. Indeed, s 509(3) specifically states that the Council "must consider the submissions made within the permitted period before deciding what action is to be taken in relation to the complaint". It is important to emphasise the need to give genuine consideration to submissions received in relation to a complaint.
The Council could hardly reach the level of satisfaction required without taking account of the Solicitor's response to the complaint. The duty of the Council to act either by instituting proceedings in the Tribunal or in some other way did not arise on a satisfaction or opinion that a prima facie case had been made out, so that any material favouring the Solicitor could be ignored. The duty of the Council involves an attempt to predict the outcome of the hearing of the Tribunal. A factor in such a prediction would be the Solicitor's answer to the complaint, if he gives one, or the failure to answer the complaint, if he gives none [13] . The Council could not reach the required satisfaction without providing the Solicitor with a copy of the complaint and calling upon him to respond to it. That is what the Committee's resolution was intending.
Further, the language of the resolution does not demonstrate an intention to limit the subject matter of the submissions to the question of summary dismissal. Neither resolution expressly referred to s 540, or suggested that the Committee was considering the summary dismissal route. To the contrary, the letters sent to the Solicitor's representative on 21 November 2014 and 4 May 2015, which informed the Solicitor of the Committee's resolutions, invited submissions in deliberately broad language: "any further submissions of fact or law, or as to the orders to be sought" (emphasis added).
The broad nature of the invitation to make submissions is also consistent with the history of correspondence between the Solicitor and the Council. On 19 September 2012, the Solicitor was notified of the first complaint. The letter concluded: "to enable the [Committee] to fairly consider the complaint, you must provide me with your written response to the complaint". On 23 September 2014, a solicitor from the Professional Standards Board wrote to the Solicitor again in relation to the first complaint, requesting "any final submissions". On 22 August 2014, the Solicitor was notified of the second complaint. The letter concluded with a request for the Solicitor's "written response to the complaint". In the absence of language limiting the scope of the submissions to be made by the Solicitor following the 20 November 2014 and 16 April 2015 resolutions, there is no reason to interpret these resolutions as inviting submissions on terms narrower than the earlier invitations. Rather, the resolutions demonstrate another attempt by the Committee to garner the Solicitor's perspective in circumstances where he had not yet provided a written response - particularly as the complaint had, by then, significantly progressed.
In any case, substantially limiting the submissions that the Solicitor was entitled to make may have been contrary to s 509 of the Legal Profession Act. Under that section, the Solicitor was entitled to "make submissions to the Commission or Council about the complaint or its subject-matter or both".

The operation of s 540

The Solicitor's argument as to the operation of s 540 must also be rejected. First, and contrary to his submission, the resolution that the Solicitor be informed of "the issues of unsatisfactory professional conduct which… are involved in the complaint" was not an expression of opinion that there had been unsatisfactory conduct. It merely conveyed that unsatisfactory professional misconduct was the subject matter of the complaint.
Secondly, it is not clear on what basis the Solicitor suggested that the Committee's resolutions evinced a willingness to deal with the complaints other than by referral to the Tribunal. To the contrary, the language of the resolution provides that, subject to any submissions, the Committee should resolve that the matter be referred to the Tribunal.
Finally, even if the Committee had reached the requisite state of satisfaction by 20 November 2014, the Committee would not have been entitled to postpone making a decision about whether proceedings should be commenced in the Tribunal. Rather, unless s 540 applies, the Committee "must commence proceedings in the Tribunal" upon making a decision that the requisite standard has been reached. As the requisite standard had not been reached by 20 November 2014, time could not begin to run.
The Solicitor has not identified any error in the Tribunal's construction of s 552 of the Legal Profession Act. The relevant "decision" for the purposes of s 552(2) occurred on 16 July 2015, and the Council's application to commence disciplinary proceedings was filed within time on 7 January 2016.

Orders

The orders of the Court are: 1. Leave granted to the appellant to file a Notice of Appeal in the form annexed to the appellant's submissions dated 13 February 2018 by 4pm on 4 April 2018. 2. Time for filing the Notice of Appeal extended to 4pm, 5 April 2018. 3. Appeal dismissed. 4. Appellant to pay the respondent's costs as agreed or assessed.

Endnotes

Law Society of New South Wales v Konstantinidis [2017] NSWCATOD 105 at [12]-[16].
Sullivan v Council of the Law Society of NSW [2017] NSWSC 427.
See s 540(1)(a).
See s 540(1)(b)(i).
See s 540(1)(b)(ii).
Primary judgment at [41].
Primary judgment at [45].
Primary judgment at [81].
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 at 335-339, 341-342; Solution 6 Holdings Ltd v Industrial Relations Commission of New South Wales (2004) 60 NSWLR 558; [2004] NSWCA 200 at [119]-[120]; Daley v Hughes (2014) 86 NSWLR 729; [2014] NSWCA 268 at [10], [37], [77]-[85].
While the 21 November 2014 letter did include a section entitled "Reasons for Decision", this was in relation to five complaints against the Solicitor dismissed by the Committee on 20 November 2014, and not the complaints relevant to these proceedings.
See Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 at 335-339, 341-342.
See Daley v Hughes (2014) 86 NSWLR 729; [2014] NSWCA 268.
See Murray v Legal Services Commissioner (1990) 46 NSWLR 224; [1999] NSWCA 70. 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: 27 March 2018

Building Professionals Act 2005(NSW)

Legal Profession Act 1987(NSW)

Legal Profession Act 2004(NSW)

Supreme Court Act, Supreme Court Rules 1970(NSW)

(NSW), Civil Procedure Act 2005(NSW)

(NSW), the Architects Act 2003(NSW)

(NSW), the Building Professionals Act 2005(NSW)

Health Practitioner Regulation National Law (NSW), the Local Government Act 1993(NSW)

(NSW), the Surveying and Spatial Information Act 2002(NSW)

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