LAW SOCIETY OF THE ACT v THE LEGAL PRACTITIONER P

LAW SOCIETY OF THE ACT v THE LEGAL PRACTITIONER P - [2009] ACAT 4 - ACAT 2009 case summary — Zoe

[32]

Application LP 8 of 2007 was filed with the former Legal Practitioners Disciplinary Tribunal of the ACT (the replaced tribunal) on 1 November 2007. Application LP 2 of 2008 was filed with the replaced tribunal on 22 April 2008.
The Chairman of the replaced tribunal made directions in relation to the first application on the 17 December 2007. Neither party complied fully with the directions. Both applications were then listed for further direction before the Chairman on 8 May 2008.
The respondent appeared in person before the replaced tribunal that day. He filed a notice of motion with the leave of the Chairman. The notice of motion sought three orders namely:
1. That matter LP 2 of 2008 be joined with [LP 8 of 2007].
2. That the Council of the Law Society of the ACT is not a proper body to prosecute these proceedings.
3. That Mr John Buxton is not a fit and proper person to prosecute this matter on behalf of the Council of the Law Society of the ACT.
The Tribunal was advised by Mr Buxton who appears for the applicant that the first order sought by the respondent was made by consent.
The Chairman directed that the respondent file and serve affidavits in support of his notice of motion in relation to orders 2) and 3) by 6 June 2008 and otherwise stood the applications over to a further call over on 12 June 2008.
Both applications came before the Chairman again on 12 June 2008. The respondent was represented by his partner, Mr W. The directions had not been complied with. The respondent was again directed to file and serve material on which he sought to rely in response to his notice of motion. This was to occur by 4 July 2008. The Chairman ordered that the applications be listed again for further directions on 7 August 2008.
The respondent did not comply with the directions and made no further contact with the replaced tribunal. There was no appearance by or for the respondent on 7 August 2008.
On 7 August the applicant was directed to file written submissions as to the jurisdiction of the tribunal and as to compliance with s 391 of the Legal Profession Act 2006 so that the Respondent's notice of motion could be dealt with on the basis of the papers filed.
The replaced tribunal received submissions on behalf of the applicant on 27 August 2008.
On 18 November 2008 Chairman Harper ordered that the respondent's notice of motion of 8 May 2008 be dismissed and that the respondent pay the applicant's costs of that notice of motion. The order was accompanied by detailed reasons for decision in which the Chairman concluded that the replaced tribunal had jurisdiction to determine the applications, that the Council of the Law Society of the ACT was the proper body to bring the proceedings and that therefore Mr Buxton was a fit and proper person to prosecute the matter on behalf of the Law Society.
The ACT Civil and Administrative Tribunal Act 2008 (ACT) (ACAT Act) commenced operation on 2 February 2009. Consequential amendments to the Legal Profession Act 2006 made by the ACT Civil and Administrative Tribunal Legislation Amendment Act 2008 Schedule 1 Part 1.33 and the ACT Civil and Administrative Tribunal Legislation Amendment Act (No2) Schedule 1 Part 1.64 commenced operation on the same date.
The combined effect of these amendments was to replace the Legal Practitioners Disciplinary Tribunal of the ACT with the ACT Civil and Administrative Tribunal (ACAT). Provision was made for the transition of applications lodged with the replaced tribunal to the ACAT in the ACT Civil and Administrative Tribunal (Transitional Provisions) Regulation 2009 (ACT) (the ACAT Regulation). The Regulation also commenced operation on 2 February 2009.
Section 30 of the Regulation provides:

[35]

Section 30 applies to the two applications now before this Tribunal. They were applications that had been made to the replaced tribunal under the Legal Profession Act 2006. In both cases the replaced tribunal had not begun to hear the applications. The orders made by Chairman Harper on 18 November 2008 in relation to the applications is taken, by virtue of s30 (3), to be an order of this Tribunal.
This Tribunal sent listing notices to the applicant and the respondent on 21 January 2009 advising that the applications were listed for conference in order to review them and make arrangements for the future conduct of the application at 9.30am on 13 February 2009. The applicant requested that the applications be adjourned to 4pm that same day. The request was agreed to, provided that the applicant's representative notified the respondent of the change of time.
The applicant's representative subsequently provided the Tribunal with a copy of a letter addressed to the respondent dated 29 January 2009 that advised him that this Tribunal had, at the applicant's request, agreed to reschedule the conference for 4pm. The letter requested that the respondent indicate whether he agreed to the change.
The respondent did not respond to the letter and did not appear before the Tribunal at 4pm on 13 February 2009. The Tribunal ordered that the applications be listed for hearing on 11 March 2009. A listing notice was sent to the respondent addressed to both the Canberra and Queanbeyan offices of the law firm on 25 February 2009.
The respondent sent a facsimile to the Tribunal on 26 February 2009. It said that he had attended at 9.30am on 13 February 2009 but that the applications had not been listed. He said that he had made enquiries of people in the Court precinct concerning the conference of Tribunal staff either by telephone or at the Tribunal registry counter on the day. Such enquiries would have elicited the information he was seeking.
The respondent was reassured by letter dated 3 March 2009 that his absence at the conference had not prejudiced him. The listing of the two applications for hearing on 11 March 2009 at 10am was confirmed.

[36]

The respondent appeared in person on 11 March 2009. He indicated that he had not, and the Tribunal accepted, received the letter of 29 January 2009 from the applicant's legal representative advising him of the changed time of the Tribunal's conference. That letter appears to have been addressed to him at a former residential address. The respondent agreed, however, that he had received both the original notice of listing of the conference and of the hearing itself.
At the commencement of the hearing, the respondent made two applications. In essence, his first application was that the Tribunal should be reconstituted because the existing members were either actually biased in respect of him or alternatively, an observer might reasonably apprehend that the members of the Tribunal were biased.
The respondent objected to the General President presiding over the Tribunal on the basis that he believed she may have been a member of the Council of the Law Society of the ACT when the matters were 'brought for prosecution'. Further, he objected to Mr Watch and Mr Van Arkel sitting as members of the Tribunal because both had been involved in a previous matter concerning him and had made a finding of fact that the respondent said was based on no evidence whatsoever. The respondent indicated that he was concerned that Mr Watch and Mr Van Arkel made the finding because 'somebody from the Law Society, passed information, under the table, to that Tribunal'.
The generally accepted test for apprehended bias is set out in the decision of the High Court of Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at 344-45. The test is whether a fair-minded lay observer might reasonably apprehend that the decision-maker would not bring an impartial and unprejudiced mind to the resolution of the issues.
The respondent's application was rejected on the basis that:
1. The General President was a member of the Council of the Law Society for approximately 4 years from about September 2003 to August 2007. Her membership of the Council had ceased when that body was asked to consider what action should be taken in respect of the matters set out above. She had no actual knowledge of the complaints with which these applications are concerned until her appointment to this Tribunal in November 2008. There is no actual bias. Nor is it possible that a fair-minded lay observer might reasonably apprehend that the General President's previous membership on the Council of the applicant association would prevent her from bringing an impartial mind to the determination of the question of whether the respondent breached the professional rules of conduct that apply to him;
2. The respondent conceded that he was unable to establish that Mr Watch and Mr Van Arkel had received any information concerning him 'under the table' or in any other improper way. Put at its highest, his complaint was that Mr Watch and Mr Van Arkel had been participants in a decision made by the replaced tribunal in another matter. The respondent contended that their decision contained an error of fact and consequently, a fair-minded person could apprehend that they would not bring an impartial or unprejudiced mind to the determination of this matter. Allegations that decision makers make errors of fact are not uncommon. Participants to hearings have rights of appeal that can be exercised to correct such errors. The making of an error does not mean that the decision maker is actually biased or that a fair-minded person could apprehend bias. The respondent told this tribunal that he had indeed appealed against the decision of the replaced tribunal in the earlier matter and that his appeal was successful. The fact that decision makers sitting on a body hearing a matter have made and have been found to make errors of fact does not disqualify those decision makers from participation in a decision making body dealing with other matters concerning the same parties at a later date.
The respondent's second application was a challenge to the jurisdiction of the Tribunal. In summary, the respondent said that he was not given an opportunity to be heard on the notice of motion made to the replaced tribunal on 8 May 2008. He requested that this Tribunal give him that opportunity before proceeding further. The respondent said that he had not been sent any document from the replaced tribunal notifying him of when or how his notice of motion would be dealt with. He agreed that he had not contacted the Tribunal in relation to his non-compliance with the Chairman's directions or made any enquiry about the progress of the Tribunal's consideration of his notice of motion himself.
He said that he received a telephone call from a person from the replaced tribunal 'in December some time'. He was told that Chairman Harper had made a decision in relation to his notice of motion. He received a copy of the decision. He said that he was surprised to receive the decision and was unhappy about it. He agreed that he made no attempt to have the matter re-listed by the replaced tribunal, nor did he lodge an appeal. The respondent said that he intended to wait until the applications were dealt with by this Tribunal before making any application in relation to the notice of motion or the Chairman's decision.
This Tribunal rejected the respondent's second application. Section 30 of the ACAT Regulation makes it clear that the order made by Chairman Harper on 18 November 2008 is taken to be an order of this Tribunal. It is not open to this Tribunal to revive or revisit that earlier order. It is too late to do so. The respondent's remedy given his unhappiness on learning of the decision of Chairman Harper was to use the then relevant process to appeal from that decision.
The Tribunal told the parties that, on the basis of the decision made by Chairman Harper on 18 November 2009 it was satisfied that it had jurisdiction to proceed with these applications and it intended to do so.
At this point, the respondent left the hearing despite the President of the Tribunal telling him that his presence was required. He said that the Tribunal was wasting his time. On being told that he would have an opportunity to answer the applicant's case through oral evidence, he said that he doubted the Tribunal would give him a proper and fair opportunity and left the hearing room.
The Tribunal considered whether it should proceed with the hearing in the absence of the respondent by referring to the criteria in s 44 of the ACAT Act. The Tribunal was satisfied that adjourning the applications or setting them down for hearing at another time would not necessarily secure the respondent' participation in the hearing in light of his response. The Tribunal decided pursuant to s 44(2)(d) to proceed with the hearing in his absence. Consequently, the respondent provided no evidence in relation to the allegations that he failed to respond to the Society's correspondence.

At a glance

Court

Decision date

Before

Source

Judgment (47 paragraphs)

LAW SOCIETY OF THE ACT v THE LEGAL PRACTITIONER P (Occupational Discipline) [2009] ACAT 4 (3 April 2009)

Parties

Legislation Cited (5)

Cases Cited (1)