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[2015] ACTSC 312
Supreme Court of the ACT
2015-10-21
Refshauge ACJ
Original judgment source is linked above.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Legal Practitioner "M" v Council of the Law Society of the Australian Capital Territory
LEGAL PRACTITIONERS - Discipline - complaint against a legal practitioner - unsatisfactory professional conduct - offensive or provocative language or conduct - Legal Profession (Solicitors) Rules 2007 (ACT) - breach of rule 24 - investigation - determination - complaint determined summarily
LEGAL PRACTITIONERS - Legal Profession Act 2006 (ACT) - need for reform - unnecessary complexity of the process for hearing and determining complaints
ADMINISTRATIVE LAW - ACT Civil and Administrative Tribunal - application for administrative review of a decision - merits review - correct and preferable decision - wide role for ACAT in hearing an appeal from Council of the Law Society of the ACT - receive further evidence - onus of proof - ultimate onus of proof in proceedings for discipline of lawyers is on the professional association which brings the proceedings - evidential onus - evidential onus on a practitioner
APPEAL - General principles - appeal to the ACAT - nature of appeal
APPEAL - Practice and procedure - leave to appeal - leave to appeal from an administrative tribunal - question of law
APPEAL - Practice and procedure - drafting grounds of appeal - re-statement of grounds of appeal - 'scatter gun' approach - importance of being selective in identifying grounds of appeal
APPEAL - Practice and procedure - appeal from the decision of an Appellate Tribunal - appeal from ACAT - serious conflict of fact - complaint dismissed in the public interest - power of ACAT to order costs
ACT Civil and Administrative Tribunal Act 2008 (ACT), ss 6, 79, 81, 86
Family Law Act 1975 (Cth)
Residential Tenancies Act 1997 (ACT), s 125
Family Law Rules 2004 (Cth), rr 12.05, 12.07
Legal Profession (Solicitors) Rules 2007 (ACT), r 24
Appellants v The Law Society of the ACT (2011) 252 FLR 209
Briginshaw v Briginshaw [1938] HCA 34; [1938] 60 CLR 336
Byrne v Law Institute of Victoria Pty Ltd [2005] VSC 509
Casarotto v Australian Postal Commission [1989] FCA 116; (1989) 86 ALR 399
CIC Australia Ltd v ACT Planning and Land Authority [2013] ACTSC 96; (2013) 277 FLR 26
Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331
Donaghy v Council of the Law Society of New South Wales [2013] NSWCA 154
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Eastman v Commissioner for Social Housing [2011] ACTCA 12; (2011) 252 FLR 278
Faull v Commissioner for Social Housing [2013] ACTSC 121; (2013) 277 FLR 61
Hocking v Medical Board of Australia (2014) 287 FLR 54
Johns v Law Society of New South Wales [1982] 2 NSWLR 1
Kozanoglu v Pharmacy Board of Australia [2012] VSCA 295; (2012) 36 VR 656
Lander v Council of the Law Society of the ACT [2009] ACTSC 117; (2009) 231 FLR 399
Law Society of New South Wales re Karageorge (Unreported, NSW Solicitors Statutory Committee, No 12 of 1986, 15 July 1987)
Legal Practitioner v Council of the Law Society of the Australian Capital Territory [2011] ACTSC 110
Legal Practitioner "M" v The Council of the Law Society of the ACT [2014] ACAT 18
Legal Practitioner "M" and the Council of the Law Society of the ACT [2013] ACAT 42
Legal Profession Complaints Committee v in de Braekt [2013] WASC 124
Legal Services Board v McGrath [2010] VSC 266
McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354
Minister for Health v Thomson [1985] FCA 208; (1985) 8 FCR 213
Myers v Medical Practitioners Board (Vic) [2007] VSCA 163; (2007) 18 VR 48
Niemann v Electronic Industries Ltd [1978] VicRp 44; [1978] VR 431
O'Donnell v Environment Protection Authority [2012] ACTSC 140; (2012) 268 FLR 48
Osland v Secretary of the Department of Justice (No 2) [2010] HCA 24; (2010) 241 CLR 320
Re Coldham; Ex parte Brideson (No 2) [1990] HCA 36; (1990) 170 CLR 267
Re VBN and Australian Prudential Regulation Authority [2006] AATA 710; (2006) 92 ALD 259
Secretary, Department of Social Security v Willie [1990] FCA 221; (1990) 96 ALR 211
Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286
Société d'Avances Commerciales (Société Anonyme Egyptienne) v Merchants' Marine Insurance Co (The "Palitana") [1924] 20 LI L Rep 140
Stoenevski v Council of the Law Society of New South Wales [2008] NSWCA 93
Sydneywide Distributions Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157; (2002) 55 IPR 354
Wiser v Havelock Housing Association Inc [2014] ACTSC 138
M J Beazley, PT Vout and SE Fitzgerald, Appeals and Appellate Courts in Australia and New Zealand (LexisNexis Butterworths: Sydney 2014)
McHugh J, "Preparing and Arguing an Appeal", Bar News: The Journal of the NSW Bar Association: Winter, 2010
Council of the Law Society of the Australian Capital Territory (Defendant)
Court/Tribunal: ACT Civil and Administrative Tribunal
Case Title: Legal Practitioner "M" v The Council of the Law Society of the ACT
Citation: [2014] ACAT 18
1. The provisions relating to the hearing and determination of complaints against legal practitioners are complex, perhaps unnecessarily so, in some cases difficult to construe and to apply and have led to differing interpretations by the Courts in this and other jurisdictions.
2. While it is essential that such provisions provide an effective and efficient means of investigating and then determining such complaints and, if upheld, appropriate responses that protect the community and the public interest, it is also essential that they provide fairness and justice to the complainant, the legal practitioner and the public. That does not seem to me, however, to require the level of complexity, ambiguity and obscurity that now seems to prevail.
3. This case is an example, for my hearing of the appeal is the fourth time a body has had to consider whether the complaint made against the legal practitioner should be upheld. The complaint itself is of events said to have occurred on 18 November 2011.
4. Urgent legislative attention should be given to a sensible reform that will preserve the appropriate protections but provide a simplified and reasonably understandable and efficient process for the very important task of responding to complaints against legal practitioners whose misconduct or unsatisfactory conduct has the capacity to cause significant damage or prejudice to complainants and others and, because of the legislated special position occupied by the legal profession, the capacity to damage the standing and probably the value of the profession to the public interest.
5. The complainant and the legal practitioner were, at the relevant time, both principals in their respective law firms. The clients for whom each of them was acting were involved in proceedings under the Family Law Act 1975 (Cth).
6. The two practitioners were attempting to schedule the holding of a conciliation conference in the proceedings (see rr 12.05, 12.07 of the Family Law Rules 2004 (Cth)).
7. On 14 November 2011, the legal practitioner wrote to the Registrar of the Federal Magistrates Court (as the Federal Circuit Court was then known) and advised that she was not available for such a conference on a particular date as she would be recovering from some surgery. This, it appeared from the evidence (though not stated in the letter), was to be hernia surgery, though at one point in the materials before me it was referred to as hand surgery.
8. The complainant then wrote to the legal practitioner:
...while we are of course concerned to accommodate your health difficulties, our ability to prepare and participate in this Conciliation Conference will depend upon the provision by your client of the additional material sought of him by way of discovery...
9. It appears that there had been some delay in the setting of a date for that conference. The legal practitioner asserted that the date of the conference was altered a number of times: first at the request of the complainant, then at the request of the Court, then again at the request of the complainant, then at the request of the legal practitioner because of the required surgery. The legal practitioner commented, rather tendentiously,
As can be seen... it was [the complainant] who continually requested a change of date.
10. No doubt the deferrals caused the legal practitioner a degree of frustration, even though, at the time of the events giving rise to the complaint, her comment was not an entirely fair summary of the chronology.
11. The complainant's letter, however, seems to me to express an appropriate recognition of the collegiality that is to be expected of lawyers between themselves. After all, the legal practitioner had herself raised the issue of surgery and her recovery from it. Regrettably, that was not how the legal practitioner saw it.
12. The letter was sent to the legal practitioner by facsimile transmission and the legal practitioner, apparently on receipt of the letter, immediately telephoned the complainant's firm and spoke to a staff member. There is a dispute about that conversation.
13. The staff member said that the conversation was as follows.
14. The legal practitioner asked to speak to the complainant. The staff member said, "She's not in the office at the moment", for she had gone to court. The legal practitioner replied, "Well, she just sent me a letter from her?". The staff member responded, "[The complainant] doesn't send her own letters. If you have received a letter, her assistant... would have sent it". The legal practitioner said, "Well the letter she has written me is bullshit". The staff member said, "That is inappropriate language". The staff member said that the legal practitioner proceeded "to speak over the top of [her]" and then identified herself. The staff member transferred the call to the complainant's assistant.
15. The legal practitioner says that the conversation was as follows.
16. When the staff member answered the phone the legal practitioner asked for the complainant. She said that the staff member told her that she would "put her through" and the legal practitioner said "Okay". The legal practitioner said that the staff member asked, "What is it - what is it about?" and the legal practitioner said, "It's a private matter". The staff member then insisted, saying, "I have to get what it's about" and the legal practitioner then said, "It is in regards to this ridiculously unfair and bull letter that I have received". The staff member then said "Hold the line" and transferred the call.
17. There were slight differences between the written and oral evidence of the witnesses about their recall of these conversations. I do not need to detail them.
18. As can be seen, there is, however, a substantial difference in the versions of the facts given by the staff member and the legal practitioner.
19. The next relevant conversation is that between the legal practitioner and the complainant's assistant when the legal practitioner's call was transferred to her by the staff member.
20. The complainant's assistant said that the conversation was as follows.
21. The complainant's assistant said that the legal practitioner commenced the conversation abusively and in a forceful, angry tone "saying words to the effect of 'How fucking dare you write a letter to me like that. You have no fucking right. My health is of no concern to you and your firm.'" The complainant's assistant says she answered, "[Name of the legal practitioner], if you keep talking to me like this I am going to hang up". She says that the legal practitioner then said "Fuck you" or "Fuck this" and hung up.
22. In the letter of complaint to the Law Society, the complainant said that the legal practitioner also said to her assistant "Tell fucking [the complainant] to ring me...".
23. The legal practitioner said that the conversation was as follows.
24. The legal practitioner said that the complainant's assistant identified herself as the complainant's assistant and the legal practitioner asked, "Where is [the complainant]?" The complainant's assistant said that the complainant was in court. The legal practitioner then said, "Get her to call me as it is unacceptable for her to write such a letter". The complainant's assistant then said, "I will hang up on you" and the legal practitioner said words to the effected of "I am finished so I will hang up first". The legal practitioner then disconnected the call.
25. Again, there are substantial differences in the versions of the facts given by the complainant's assistant and the legal practitioner.
26. The final conversation was that between the complainant and the legal practitioner. The complainant said that it was as follows.
27. The complainant said she called the legal practitioner and said:
[Name of the legal practitioner], what is going on? Two of my staff have said that you have telephoned here and have sworn at them and were angry with them. I don't care if you want to get cross with me but you should speak to me about that. It's not OK to speak that way to my staff. They are just trying to do their job.
28. The legal practitioner responded, "I didn't say anything, what they are saying that I said, it's not true." The complainant then replied:
I can't repeat back to you word for word what each of them says that you said. [The staff member] said that you used the word 'bullshit' and [my assistant] said that you used the word 'fucking' with her. I want you to apologise, [the legal practitioner], both of the staff are really upset about this.
29. The legal practitioner said, "I did not say those things. I will not apologise. It is not true. Your staff are lying." There was then some further conversation and the complainant said, "So, you are telling me that you will not apologise and despite what my staff say, they are lying to me?". The legal practitioner said, "I did not say those things" and the complainant said, "I will consider making a complaint to the Law Society about your conduct. I consider this conduct to be unprofessional and a breach of our obligations."
30. The legal practitioner said that the conversation with the complainant was as follows.
31. The complainant rang the legal practitioner and said, "You need to apologise". The legal practitioner replied, "Apologise for what?" And the complainant said, "For using obscenities..." The legal practitioner said "What obscenities am I supposed to have used?" and the complainant replied, "The fuck word" to which the legal practitioner said, "You can make your own judgment but I can assure you that I never use such language". The complainant said, "So you are not going to apologise?" and the legal practitioner replied, "I cannot apologise for something I did not do or say".
32. The legal practitioner later said that she added, "You haven't asked me what happened, you haven't said anything. You're demanding an apology. If anyone needs to give an apology, it's you who inserted my personal matter in a letter".
33. The complainant wrote to the Law Society of the Australian Capital Territory (the Law Society) on 9 February 2012 in which she made her complaint about the behaviour of the legal practitioner.
34. The letter, which was lodged by the complaint, set out a history of the matter and then the conversations that she asserted were had between the legal practitioner and the complainant and, earlier, her staff. The conversations set out in the letter of complaint were substantially in the terms of those set out above (at [14], [21] and [27]-[29]). The complainant expressed her satisfaction as to the truth of the conversations recounted to her by her staff, supported by their "distress". Both appeared, she said, "unsettled and shaken" even later in the afternoon.
35. A copy of the complaint was sent to the legal practitioner on 18 February 2012 for her comment and she provided a substantial response dated 26 February 2012.
36. The legal practitioner also set out a history of the proceedings between her client and the complainant's client so far as the attempts to conduct a conciliation conference were concerned. It then addressed the issue of the surgery she was to undergo in which she also made an argumentative, irrelevant and probably inaccurate attempt to distinguish between the description of what she was undergoing as "hernia surgery" and as "a medical procedure", being the phrase used in the letter of complaint. I see no relevant distinction between the two descriptions.
37. The legal practitioner complained that her dispute included a failure by the complainant to return her telephone call after being earlier told of the need for a re-scheduling of the conciliation conference date because of the surgery and that the complainant's letter, in which reference was made to "health difficulties", became an "open letter" which she explained as "available to the clients and could be made available in the court system".
38. The letter of the complainant was of that description, but that it was clearly a matter of anxiety, perhaps irritation or even anger to the legal practitioner, is surprising. In any event, the telephone conversation, in which the legal practitioner advised that she was having surgery, was, relevantly, an "open" conversation as the complainant's client would be entitled to know of its contents and I find it difficult to accept that the Court would re-schedule the date set for the conciliation conference without an appropriately detailed explanation. Thus, the legal practitioner's own letter to the Court (which would also be an "open" letter) referred expressly to the fact that the legal practitioner would be "recovering from surgery". The apparent sensitivity of the legal practitioner seems, at least, misplaced.
40. The legal practitioner denied abusing the members of the complainant's staff and expressed her rejection of such behaviour. She also complained about the complainant's behaviour, commencing her telephone conversation by asking for an apology rather than with inquiry as to the legal practitioner's version of events, which, was, she said, itself offensive. She said that she had herself intended to complain to the Law Society about the behaviour of the complainant in connection with the delay in the proceedings. I do not know if such a complaint was ever made to the Law Society.
41. The complainant's complaint was investigated by the Law Society and then referred to its Complaints Committee, which determined that it should be referred to the Executive of the Council of the Law Society. The Executive seems to have recommended that two members of the Executive undertake a "pastoral visit" to the legal practitioner.
42. Following a report to the Council of the Law Society (the Council) of the outcome of that visit, the Council determined that the complaint should be determined summarily under s 413 of the Legal Profession Act 2006 (ACT) (the Legal Profession Act).
43. The legal practitioner was invited to comment on this proposed course of action and was advised that the Council proposed to deal with the matter on 20 August 2012. The legal practitioner, however, requested that the complaint not be dealt with in this way, but be referred to the ACT Civil and Administrative Tribunal (the ACAT). Nevertheless, the Council proceeded to deal with the complaint and decided that it should be dealt with as a breach of r 24 of the Legal Profession (Solicitors) Rules 2007 (ACT). It advised its decision to the legal practitioner by letter dated 29 August 2012.
44. In that letter, the Council addressed some factual issues and the appropriate response. It then set out of what it was satisfied as follows:
(a) You breached rule 24 of the Legal Profession (Solicitors) Rules 2007 in that you failed to act with fairness and courtesy in your dealings with [the complainant's] office in the course of the family law matter you were undertaking for your client. In coming to this decision the Council was satisfied that:
- (i) You misconstrued the meaning of the alleged offending paragraph in [the complainant's] letter.
- (ii) By your own admission you were not "...happy with the fact that [the complainant] wrote a letter involving my personal issues with that of our respective clients." - Paragraph 8 of your letter to the Law Society dated 26 February 2012.
- (iii) Your insistences to two staff members of [the complainant's firm] that [the complainant] had to be in the office because she had just sent you a letter by facsimile implicitly accused both staff members of lying about [the complainant's] whereabouts. The obvious explanation was that the partner may not necessarily attend to sending of documents by facsimile personally. The suspicion and distrust with which you responded to the news that [the complainant] was unavailable was disproportionate to the occasion and suggested a heightened sense of frustration and anger on your part.
- (iv) There was no advantage or benefit to be gained by either staff member in reporting your conduct to their supervising partner.
- (v) Your conduct on the telephone to the two staff members included swear words which, in the context of the telephone conversations with the two staff members, was inappropriate and unacceptable for a member of the profession.
(b) There is a reasonable likelihood that you would be found guilty by the disciplinary tribunal of unsatisfactory professional conduct but not professional misconduct; and
(c) You are generally competent and diligent and no other material complaints have been made against you.
Council further resolves that you be issued with a caution pursuant to section 413(2)(a) of the Act.
45. The legal practitioner had a right to appeal against this decision under s 416 (1) of the Legal Profession Act. She took advantage of that opportunity on 28 September 2012. The application for the appeal listed 11 grounds, many of them overlapping.
46. There seems to be a disturbing practice of multiplying grounds of appeal in civil litigation where the successive grounds are either re-statements of grounds already pleaded or attempts to give a slightly different gloss on a ground already pleaded, which gloss or glosses can often be perfectly validly argued under the one ground already carefully pleaded. This practice is to be deplored. This infected the 11 grounds of the legal practitioner's appeal. Practitioners should be encouraged to think carefully about the issues the subject of an appeal and draft a pleading that carefully articulates the real issue to be challenged.
47. Similarly, a "scatter gun" approach (see M J Beazley, PT Vout and SE Fitzgerald, Appeals and Appellate Courts in Australia and New Zealand (LexisNexis Butterworths: Sydney 2014) at 98; [5.17]) of loading the grounds of appeal with challenges to every finding with which the appellant disagrees, whether or not the alleged error could change the outcome, is to be deprecated.
48. As McHugh J said, extra-curially, in, "Preparing and Arguing an Appeal", Bar News: The Journal of the NSW Bar Association: Winter, 2010, 85-92:
The cardinal rule for drafting a notice of appeal is to be selective. If the appeal notice contains too many grounds, the best points are likely to be hidden in a thicket of weak points. The notice of appeal should identify only those errors of ultimate fact or law which affected the result, and the fewer the better.
49. His Honour cited also the comments of Branson J in Sydneywide Distributions Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157; (2002) 55 IPR 354 at 355-6, where her Honour made the point as follows:
Not every grievance entertained by a party, or its legal advisors, in respect of the factual findings or legal reasoning of the primary judge will constitute a ground of appeal. Even were the Full Court to be persuaded that different factual findings of this kind should have been made, this would not of itself lead to the judgment, or part of the judgment, being set aside or varied. This result would be achieved, if at all, only if the Full Court were persuaded that an ultimate fact in issue has been wrongly determined. The same applies with respect to steps in the primary judge's process of legal reasoning. Although alleged errors with respect to findings as to subordinate or basic facts, and as to steps in the process of legal reasoning leading to an ultimate conclusion of law, may be relied upon to support a ground of appeal, they do not themselves constitute a ground of appeal.
50. The appeal (and what this means will be dealt with below) was dealt with by Senior Member Lunney SC who received a good deal of further evidence both from the legal practitioner and from the Council. Oral evidence was given, as well as affidavits filed and read, much of which evidence had not been before the Council.
51. Ultimately, Senior Member Lunney SC confirmed the decision of the Council: Legal Practitioner "M" and the Council of the Law Society of the ACT [2013] ACAT 42.
52. Being dissatisfied with this decision, the legal practitioner then, on 17 July 2013, instituted an appeal within the ACAT to an Appeal Tribunal (s 81 of the ACT Civil and Administrative Tribunal Act 2008 (ACT) (the ACAT Act)). Again, the appeal grounds were extensive, but somewhat better focussed and targeted on this occasion, though there was still some unhelpful repetition.
53. The Appeal Tribunal, constituted by Appeal President Mr W Stefaniak AM and Presidential Member Ms E Symons, dismissed the appeal on 31 March 2014: Legal Practitioner "M" v The Council of the Law Society of the ACT [2014] ACAT 18.
54. The legal practitioner has now appealed to this Court. In dealing with this matter, I shall refer to the body dealing with first instance proceedings before Senior Member Lunney SC as "the ACAT" and, to avoid confusion, the body dealing with the internal appeal as "the Appeal Tribunal", though both are, strictly, the ACAT.
55. The grounds of the appeal set out in the Notice of Appeal were pleaded as follows:
56. Before dealing with the appeal grounds, it is appropriate to turn to the relevant legislation.
57. The relevant legislation is to be found in the The Legal Profession Act and in the (ACAT Act).
58. The relevant provisions of the Legal Profession Act are in Pt 4.5 as follows:
Part 4.5 Decision of council
410 Decision of council after investigation
(1) After finishing an investigation of a complaint against a person, the relevant council must -
(a) dismiss the complaint under section 412; or
(b) take action under section 413 (Summary conclusion of complaint procedure by fine etc); or
(c) make an application to the ACAT under part 4.7.
(2) This section does not affect section 400 (Withdrawal of complaints).
411 Decision of council without investigation
(1) This section applies to a complaint against an Australian legal practitioner if the relevant council is satisfied that action should be taken under this section because of -
(a) the nature of the subject matter of the complaint; and
(b) the reasonable likelihood that the practitioner will be found guilty by the ACAT of either unsatisfactory professional conduct or professional misconduct.
(2) This section also applies to a complaint against an employee of a solicitor if the relevant council is satisfied that action should be taken under this section because of -
(a) the nature of the subject matter of the complaint; and
(b) the reasonable likelihood that the employee will be found guilty by the ACAT of unsatisfactory employment conduct.
(3) If this section applies to a complaint, the relevant council may make an application to the ACAT under for an occupational discipline order in relation to the person complained about without starting or finishing an investigation of the complaint.
2 complainant omit matter from application to ACAT that was originally part of complaint
3 Australian legal take action under s 413 in
practitioner complained relation to practitioner
about
59. The relevant provisions of the ACAT Act are as follows:
79 Appeals within tribunal
(1) This section applies if -
(a) the tribunal has decided an application (the original application); and
(b) the original application was not an appeal from a decision by the tribunal.
(2) However, this section does not apply to an application for review of a decision under the Heritage Act 2004, the Planning and Development Act 2007 or the Tree Protection Act 2005.
(3) A party to the original application may, by application, appeal the decision to the tribunal on a question of fact or law.
82 Handling appeals
An appeal tribunal may, as the tribunal considers appropriate, deal with an appeal -
(a) as a new application; or
(b) as a review of all or part of the original decision on the application by the tribunal.
86 Appeals to Supreme Court
(1) A party to an application, other than an application mentioned in subsection (2), for an appeal may appeal to the Supreme Court on a question of fact or law from -
(a) a decision of the appeal tribunal; or
(b) if the appeal president dismissed the appeal under section 80 - the original decision of the tribunal; or
(c) if the appeal president decides not to deal with the appeal under section 85 - the original decision of the tribunal.
(2) A party to an application in relation to a review of a decision under the Heritage Act 2004, the Planning and Development Act 2007 or the Tree Protection Act 2005 may appeal to the Supreme Court on a question of law from the original decision of the tribunal.
(3) However, the appeal may be brought only with the Supreme Court's leave.
60. It is clear from s 86 of the ACAT Act that leave is required before an appeal can be taken to this Court. No such leave was obtained in this case. It was agreed, however, that I should consider the grant of leave at the same time as hearing the appeal.
61. The Council referred to Eastman v Commissioner for Social Housing [2011] ACTCA 12; (2011) 252 FLR 278 (Eastman) where the Court of Appeal considered the correct approach to the grant of leave to appeal. The Court of Appeal decision was heavily reliant on Niemann v Electronic Industries Ltd [1978] VicRp 44; [1978] VR 431, a decision of the Full Court of the Supreme Court of Victoria on whether to grant leave from an interlocutory decision of a single judge to a Full Court.
62. In Faull v Commissioner for Social Housing [2013] ACTSC 121; (2013) 277 FLR 61, I found that guidelines appropriate to a grant of leave from an administrative tribunal (in that case the Residential Tenancies Tribunal) were helpfully set out in what the Court of Appeal of Victoria said in relation to leave to appeal from the Victorian Civil and Administrative Tribunal (VCAT) in Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331 (Hulls) at 335-7; [8]- [17]. The court there pointed out that the orders under challenge were final orders of the Tribunal and, accordingly, stated:
What was said in Niemann v Electronic Industries Ltd [1978] VicRp 44; [1978] VR 431 at 441-2 and Australian Dairy Corporation v Murray Goulburn Co-operative Co Ltd [1990] VicRp 33; [1990] VR 355 can have no direct application; for those two cases were concerned only with leave to appeal from an interlocutory order which, as is common enough, was also discretionary.
63. One of the judges who sat on the decision in Eastman v Commissioner for Social Housing has subsequently suggested that the need to mark that difference in approach was recognised in Eastman. See O'Donnell v Environment Protection Authority [2012] ACTSC 140; (2012) 268 FLR 48 at 65; [77]. In any event, it seems to me to be important. Thus, I followed what was said in Hulls.
64. The Victorian Court of Appeal in Hulls was concerned not to fetter the legislative power to grant leave which was granted in "untrammelled terms".
65. The guidelines that may be discerned from the decision in Hulls were conveniently articulated in Myers v Medical Practitioners Board (Vic) [2007] VSCA 163; (2007) 18 VR 48 at 55-6; [28]- [29]. These guidelines were based on s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic). I held in Faull v Commissioner for Social Housing at 76; [83], that the terms of that section were relevantly the same as s 125 of the Residential Tenancies Act 1997 (ACT) which, in turn, is relevantly identical to s 86 of the ACAT Act. See also CIC Australia Ltd v ACT Planning and Land Authority [2013] ACTSC 96; (2013) 277 FLR 26 at 33; [18].
66. These were the guidelines I followed in Faull v Commissioner for Social Housing. I considered that they were not inconsistent with anything said in Eastman v Commissioner for Social Housing. The Court's attention there does not seem to have been drawn to these decisions and the direct applicability of them to an application for leave to appeal from a final decision of an administrative tribunal.
67. I note, too, that the approach of the Victorian Court of Appeal in Hulls was followed in Wiser v Havelock Housing Association Inc [2014] ACTSC 138 at [3].
68. Accordingly, as in Faull v Commissioner for Social Housing, I shall follow what fell from the Victorian Court of Appeal in Hulls which summary from Myers v Medical Practitioners Board (Vic) I there set out, at 76: [85], as follows:
69. The Victorian Court of Appeal added in Myers v Medical Practitioners Board (Vic) that the applicant may need to show that to allow the error to go uncorrected would impose substantial injustice but, where the order is a final order, that will, in the words of Warren CJ, with whom Chernov JA and Bell AJA agreed, at 56; [29], "often be more readily discernible".
70. Recognising that it is important to apply these as guidelines and not hard and fast rules nor as legislative pronouncements, the Victorian Court of Appeal in Myers v Medical Practitioners Board (Vic) at 56; [29], cited from Hulls at 337 as to the importance of the identification of the question of fact or law or fact and law the subject of appeal, where Phillips JA said:
When leave is sought to appeal under s 148, it will be necessary for the applicant to identify a question of law which is relevant to the granting of the relief sought on appeal. The importance of the question, either generally or to the would-be appellant in the particular case, will probably be relevant. The applicant must show that there is a real or significant argument to be put on that question of law at least to this extent: that there is sufficient doubt about it to justify the grant of leave. Moreover, it may be to be shown that to allow the error to go uncorrected would impose substantial injustice, although, where the order below is final, that injustice will often be more readily discernible.
71. The importance of this has been recognised in this jurisdiction in O'Donnell v Environment Protection Authority at 68; [58], 64; [72], where Penfold J pointed also to the importance of the identified question for the purposes of the appeal itself and not just for the application for leave.
72. It is important to identify the questions of law and fact with clarity, as noted in the above guidelines. See also Osland v Secretary of the Department of Justice (No 2) [2010] HCA 24; (2010) 241 CLR 320 at 333; [21].
73. In her submissions, the legal practitioner reframed the appeal grounds as questions of fact and law as follows:
(1) Did the Appeal Tribunal err in concluding that it was able to deduce the basis for the conclusion expressed by Senior Member Lunney SC at AB47[61] in circumstances where the latter found as a matter of fact [that it could not be possible to assess one account as being more likely than the other]?
(2) Did the Appeal Tribunal err in concluding (at 20; [66]) that it would have made the findings as set out in 20; [65] in circumstances where it had not heard any oral evidence from the key witnesses?
(3) Did the Appeal Tribunal err in concluding 21; [67] that it could decide that Senior Member Lunney SC was satisfied that the 'conduct and tone of the appellant's voice justified of the Council's decision'?
(4) Did the Appeal Tribunal err in concluding at 21; [70] that Senior Member Lunney SC applied as the Briginshaw principle correctly and '... evaluated the evidence and assessed the weight to be given to it so that the defined probability was determined?
(5) Did the Appeal Tribunal err in failing to find that Senior Member Lunney SC had applied an incorrect test in concluding as he did at 13; [61]?
74. After receiving and investigating the complaint, the Council was entitled to proceed in one of the three ways specified in s 410 of the Legal Profession Act, as set out above (at [58]). It chose to proceed under s 413 and concluded the proceedings summarily under that section. It did so by issuing a caution to the legal practitioner under s 413(2).
75. As noted above (at [45]), the legal practitioner appealed against the decision of the Council. Although described as an "appeal" (s 416 of the Legal Profession Act), it is, in reality, an administrative review of the decision of the Council of the Law Society as I explained in Appellants v The Law Society of the ACT (2011) 252 FLR 209 at 228; [109]-[111]. The powers of the ACAT are enlarged beyond those of the Council and are set out in s 416 of the Legal Profession Act: Appellants v The Law Society of the ACT at 229; [119]-[122].
76. An issue arose as to the nature of the proceedings before the ACAT. It was, of course, an administrative review of the decision of the Council.
77. In Appellants v The Law Society of the ACT at 228; [110], I held that the "appeal" was an application for review in the same way as the High Court has viewed appeals to the VCAT in Osland v Secretary, Department of Justice (No 2) at 331-2; [18], namely original jurisdiction "in the nature of judicial review".
78. That, however, did not really address the precise nature of the proceedings and I made no finding as to how the proceedings should be conducted; that was not really in issue in those proceedings.
79. There has been other consideration of the issue. In Legal Practitioner v Council of the Law Society of the Australian Capital Territory [2011] ACTSC 110, the Full Court considered an appeal from a decision of the Council of the Law Society refusing to renew a practising certificate of the appellant legal practitioner. The Court considered at [23]-[24], that, in that case, as the Council was not required to make a record of "what takes place" or give reasons for its decision, the hearing before the Court was a hearing de novo.
80. It expressly contrasted this with the situation where the Council investigates and decides complaints against legal practitioners, where the Legal Profession Act expressly requires the Council of the Law Society to give the legal practitioner notice of the complaint (s 397), allow the legal practitioner to make submissions (s 398), to keep a record of its decision, including the reasons (s 414), give reasons for the decision (s 415) and accord procedural fairness (s 417).
81. The Court there did not expressly identify how these differences would determine the procedure on an appeal in those circumstances, which are, of course, the circumstances here, but implicitly appeared to be suggesting that the hearing in the ACAT would not then be a hearing de novo.
82. More recently, again, the Victorian Court of Appeal considered the nature of an appeal to VCAT in Kozanoglu v Pharmacy Board of Australia [2012] VSCA 295; (2012) 36 VR 656. There was, in issue there, a national scheme for regulation of health professionals (called in the decision "the National Law"). It is similar to the then uniform regulation of the legal profession represented in the Legal Profession Act. The Court considered a number of authorities, though, perhaps curiously, not Osland v Secretary of Justice (No 2). It held at 676; [119]:
The appeal to a responsible tribunal under the National Law is neither an appeal in the strict sense, nor a rehearing de novo. It is rather a hybrid, whereby the material to be considered is confined to that placed before the initial decision-maker, but with the opportunity available to both parties to present additional evidence which bears directly upon that decision as originally taken. It is not "open slather", but nor is it an appeal confined to error.
83. I have to say, however, that the notion of "open slather" is very problematic and vague. It is not clear what it means or how it is to be applied. What material should the tribunal exclude as breaching the "open slather" rubric is by no means clear. Of course, material that is irrelevant is not to be adduced, but that is obvious and hardly all that is likely to have been intended.
84. The only hint that the Court gave was its exclusion of "evidence of facts or matters that had occurred after the notification ... to justify, retrospectively, the decision to take immediate action" (at 672; [95]) and that, in that case, the issue was not "a final determination concerning an allegation of professional misconduct" (at 676; [116]). Neither of these apply here.
85. It needs to be noted, however, that the appeal there was from "immediate action" that had been taken by the delegate of the relevant tribunal and this seems to have had some influence on the conclusions reached though, as expressed above, the approach appeared to be quite general.
86. Thus, the Court had said earlier, at 674; [106]-[110]:
[106] Turning to a consideration of the relevant legislation in this case, it would be unlikely that the legislature, in enacting the National Law, contemplated that an appeal from a decision to take immediate action would involve a rehearing de novo, in the fullest sense of that term. The IAC (as delegate of the board) is expected to act, as the name of the "immediate action" regime suggests, immediately. That suggests a temporal limitation, and also a certain standard of speediness on the board's part. There must be a certain point in time to which the decision to act is "immediate". It is the circumstances existing at that time that are relevant, and the belief spoken of in s 156 must be formed on the basis of those circumstances.
[107] While the purpose of the immediate action provisions is the protection of the public - which would ordinarily strongly argue in favour of the relevant tribunal taking into account the most up to date material - only interim protection is envisaged. The practitioner's suitability to practise is then revisited, on all the material, before the panel or responsible tribunal.
[108] There is some attraction in the notion that the appeal should be viewed as a rehearing on the evidence before the original decision-maker, and nothing more. On the other hand, the better view seems to be, as we have previously indicated, that the decision should be considered in the light of not only that evidence, but also any additional evidence that bears directly upon the position as it was when the original decision was made.
[109] The reason is simple. As we have indicated at [106]-[107], the IAC is expected to act immediately. Necessarily, therefore, the material contained in a notification is likely to be incomplete. It may contain assertions that cannot, upon mature reflection, be justified. Likewise, there may be deficiencies, or gaps, in the material provided which, given a little extra time, can easily be remedied.
[110] A further reason why VCAT should be permitted to receive further material when reviewing an IAC decision is because it would be contrary to the objects of the National Law, and the rights which it expressly confers upon an affected party, to prevent that party from adducing exculpatory material, on appeal, which sheds a different light upon the allegations made in the notification. Of course, if evidence of that kind can be adduced on behalf an affected party, so too, it must follow, can evidence that points in a different direction.
87. Nevertheless, Murrell CJ in Hocking v Medical Board of Australia (2014) 287 FLR 54 at 71; [104], relied on Kozanoglu v Pharmacy Board of Australia to hold:
For the purposes of the appeal, under s 202 National Law the ACAT acts as if it was the Board, hears the evidence afresh, and exercises the Board's powers in reaching a new decision on the merits.
88. Ordinarily, the function of merits review by a tribunal such as the ACAT is to determine what is the "correct or preferable" decision: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589.
89. Indeed, this seems consistent with the approach in Kozanoglu v Pharmacy Board of Australia where the Court held at 176; [121] that, in relation to deciding that the VCAT could receive certain evidence:
If we are wrong about that, and the appeal was in fact an appeal in the strict sense, we would say that the evidence in question did not materially influence the outcome of VCAT's determination. Accordingly, any such error on its part does not vitiate its decision, and should not lead this court to set that decision aside. In that regard, we would note that it is "well established that, in the context of appeals from the AAT, the court may decline to set aside a decision even where an error of law has been demonstrated provided that it considers that the AAT arrived at a decision that was clearly correct on the material before it". That approach is similarly applicable to appeals from decisions of VCAT.
90. It also seems consistent with the objects of the ACAT Act which includes in s 6:
...
(d) to ensure that decisions of the tribunal are fair; and
(e) to enhance the quality of decision-making under legislation ...
91. This would accord with what the unanimous High Court said in Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286, from which the court in Kozanoglu v Pharmacy Board of Australia quoted at some length, and concluded at 674; [105]:
Shi establishes that, ordinarily, an administrative tribunal is entitled to have regard to events which occur in the intervening time between the original decision and the review process, unless that position is altered by the terms of the decision-making power.
92. Sometimes, the classification of decision-making processes, such as appeal stricto sensu, rehearing and hearing de novo, is unhelpful, though the categories usually are useful to encapsulate the way in which the processes are conducted.
93. I note, too, that the Victorian Court of Appeal, as well as not considering Osland v Secretary of Justice (No 2), did not consider a further important decision of the High Court, namely Re Coldham; Ex parte Brideson (No 2) [1990] HCA 36; (1990) 170 CLR 267 at 273-4, where the High Court considered the role of an appellate body considering an appeal from a decision of the Registrar of the Australian Industrial Relations Commission, and held:
... it is well settled that, when the legislature gives a court the power to review or hear an "appeal" against the decision of an administrative body, a presumption arises that the court is to exercise original jurisdiction and to determine the matter on the evidence and law applicable as at the date of the curial proceedings: see Ex parte Australian Sporting Club Ltd; Re Dash [1947] NSWStRp 11; (1947) 47 SR (NSW) 283. Nevertheless, whether the right of appeal against an administrative decision is given to a court or to an administrative body, the nature of the appeal must ultimately depend on the terms of the statute conferring the right: Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd [1976] HCA 62; (1976) 135 CLR 616 at p 621-622.
94. The balance of authority seems to favour a wide role for the ACAT in hearing the appeal from the Council of the Law Society. As noted, the precise label given to the process is not always helpful. It seems, however, that the ACAT proceeds in this situation in a way that is more closely identified with the notion of a hearing de novo; that is, it revisits the application without regard to error and may receive not only the evidence before the Council but additional evidence (perhaps with some limitation) where, as I now address, the onus of proof remains on the Council to prove the conduct the subject of the complaint and that it is unprofessional.
95. The statutory provision under consideration in Re Coldham; Ex parte Brideson (No 2) was quite different from s 416 of the Legal Profession Act which provision, also, unlike the other provision, gives no express power to receive "further evidence" but which gives a wide power of decision, not limited to confirming, quashing or varying the decision of the Council of the Law Society.
96. Further, while also of a somewhat different statutory formulation there considered, it seems to me that the approach of the High Court in Shi v Migration Agents Registration Authority is applicable, especially given the task expressed in s 416(3) of the Legal Profession Act, for which see above (at [58]). The High Court was also considering a provision that did not give express power to receive "further evidence" but accepted that, even where the review body, the Commonwealth Administrative Tribunal (AAT), had all the powers of the Authority (a narrower power than given to the ACAT), the AAT was required to make the correct or preferable decision and was not limited to the material before the decision-maker and was able to make a fresh or original decision.
97. The onus of proof is one other matter that needs to be addressed. In relation to the AAT, it has been held that there is no onus of proof on the party initiating the proceedings in the appeal: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354 at 356-7 per Woodward J.
98. Nevertheless, a party must discharge an evidential onus of satisfying the ACAT of the existence of facts that justify the decision sought to be made.
99. There are comments in the cases that suggest that, in matters of breach of discipline, there is an onus that lies on the accuser. See Minister for Health v Thomson [1985] FCA 208; (1985) 8 FCR 213 at 223; Casarotto v Australian Postal Commission [1989] FCA 116; (1989) 86 ALR 399 at 412-3 and Secretary, Department of Social Security v Willie [1990] FCA 221; (1990) 96 ALR 211 at 221.
100. This, however, may be better described as the Full Tribunal of the ACAT did in Re VBN and Australian Prudential Regulation Authority [2006] AATA 710; (2006) 92 ALD 259 at 330; [235]- [236]:
[235] ...the practical reality that the party wanting to change the status quo must ensure that the relevant evidence is brought to the Tribunal to consider. The party may introduce the evidence, may draw it out in cross-examination of the other party's witnesses or trust that the other party will produce it.
[236] When the evidence is insufficient to persuade the Tribunal, its very insufficiency will determine the outcome of the case. That is because, as Woodward J said, the Tribunal must analyse the question it must decide. As it stands in the shoes of the decision-maker, it has all the powers and discretions of the decision-maker whose decision is under review. It may exercise them after having regard to all relevant material whether that material was seen or considered by the decision-maker or not. In other words, unless its powers are qualified by the relevant legislation, the Tribunal undertakes the review afresh. Therefore, the question it must analyse must be the question that the decision-maker,..., had to ask and answer.
101. In the case of legal profession discipline, it is the Council of the Law Society that is seeking to change the status quo by a finding that the legal practitioner has engaged in unprofessional conduct.
102. In the case of the disciplining of lawyers there have also been strong statements to the effect that there is an onus on the professional body bringing the complaint of a breach of professional discipline to discharge an onus of proof.
103. Thus, in Stoenevski v Council of the Law Society of New South Wales [2008] NSWCA 93 at [58], the NSW Court of Appeal accepted that the Law Society bore the ultimate onus of proof of the ultimate issue. See also Legal Services Board v McGrath [2010] VSC 266 at [9].
104. That does not mean that there may not be an evidential onus on a practitioner, as explained in Johns v Law Society of New South Wales [1982] 2 NSWLR 1 at 9-10.
105. In this case, it seems to me that a consideration of the authorities shows that the "appeal" to the ACAT is to be undertaken on the following basis:
1. The ACAT should have regard to the material before the Council.
2. The ACAT is not limited to that material and can receive further or other material, including material that relates to matters that occurred after the decision was made by the Council.
3. The ACAT may limit the material to be adduced if it addresses issues that are not properly before it.
4. The ACAT is not limited to finding error in the decision of the Council.
5. The ACAT should make the correct or preferable decision at the time that it makes its decision.
6. The ACAT may not rely on facts unless satisfied on the balance of probabilities that they exist and so the status quo may remain unless the ACAT is otherwise satisfied.
7. The ultimate onus of proof in proceedings for discipline of lawyers is on the professional association which brings the proceedings.
8. The legal practitioner may, however, in an appropriate case, bear an evidential onus of proof.
106. It does not seem to me that the ACAT approached its task inconsistently with this basis in the hearing it conducted in this case.
107. As indicated above (at [51]), the ACAT confirmed the decision of the Council.
108. The legal practitioner appealed within the ACAT under s 79 of the ACAT Act to the Appeal Tribunal.
109. No issues arose in relation to the form or nature of that appeal hearing. As also indicated above (at [53]), the appeal was dismissed.
110. It is now for me to hear and determine the appeal from the decision of the Appeal Tribunal.
111. A relevant criticism made by Mr R C Crowe SC, who appeared with Mr T Crispin as counsel for the legal practitioner, was that the proceedings, both before the Council and before the ACAT, was that the complaint was never really particularised.
112. The letter of the complainant was simply forwarded to the legal practitioner without any indication in the covering letter from the Law Society of what, if any, breaches of the Legal Profession (Solicitors) Rules may have been committed.
113. While a prompt referral of a complaint to a legal practitioner is, of course, desirable, it is difficult to see why it should be referred before the Law Society is able to identify it as potentially a complaint that could reasonably constitute a breach of those identified rules or other regulatory requirements, including, perhaps, common law obligations, that a legal practitioner is obliged to observe.
114. The first indication of any particular breach was when the Law Society wrote to the legal practitioner on 20 July 2012, suggesting a breach of r 24 of the Legal Profession (Solicitors) Rules. That rule provides:
24. Communications
A practitioner, in all of the practitioner's dealings with other practitioners, must take all reasonable care to maintain the integrity and reputation of the legal profession by ensuring that the practitioner's communications are courteous and that the practitioner avoids offensive or provocative language or conduct.
115. A question arose as to whether this applied, since neither the complainant's staff member nor the complainant's assistant, to whom the allegedly offensive language was used, were legal practitioners.
116. This was, perhaps, overlooked, for the letter simply articulated the breach as follows:
A breach of Rule 24 in that you failed to act with fairness and courtesy in your dealings with [the complainant's] office in the course of the family law matter you were undertaking for your client.
117. Whether the whole of a legal practitioner's office staff are encompassed within r 24 is not a matter that, fortunately, I have to consider.
118. Later, at the hearing in the ACAT, counsel for the Council of the Law Society submitted that the ACAT:
looks at all of the material to determine whether or not the conduct constitutes unsatisfactory professional conduct for the purpose of the Act.
119. That, however, is problematic, for the Council squarely relied on a breach of r 24. To change the basis of the complaint at the hearing had the capacity to breach the procedural fairness obligations to the legal practitioner.
120. Counsel for the Council of the Law Society, however, drew the attention of the ACAT to the next paragraph of the letter of 20 July 2012 which gave an alternative basis for the complaint, stating:
Alternatively, it may be open for Council to deal with this complaint summarily under section 413 of the Act (copy enclosed). According to section 413, if following the completion of an investigation against a practitioner Council is satisfied that:
121. Ultimately, the Council of the Law Society submitted to the ACAT that the particulars could be identified from the original letter of complaint, namely:
(a) using the word "bullshit" in the conversation with the complainant's staff member; and speaking over the top of her;
(c) asserting to the complainant that her staff were lying;
(d) the effect of the conversations on the complainant's staff, causing them distress, dismay, unsettling them and making them shake;
(e) expressing the legal practitioner's frustration and anger to members of the complainant's staff.
122. While not generally met with satisfaction by counsel for the legal practitioner, it was on that was the basis on which the hearing proceeded.
123. The conduct is clearly particularised. The obligation of the legal practitioner, however, has not been so clearly identified. It cannot be a breach of r 24 of the Legal Profession (Solicitors) Rules, for that refers to relations between practitioners. It was not argued before me that staff of a legal practice, who are not themselves legal practitioners, are themselves encompassed within that rule. Indeed, before the ACAT, the Law Society accepted that they were not. I generally agree that they would be included, but I do not have to make such a finding.
124. The ACAT seemed to consider that the decision of the Full Court in Lander v Council of the Law Society of the ACT [2009] ACTSC 117; (2009) 231 FLR 399, recognised a common law standard. It adopted, at 417; [24], the following earlier quoted statement of the then established Legal Practitioners Disciplinary Tribunal of the relevant obligation of legal practitioners, namely:
... practitioners should, in the course of their practice, conduct their dealings with other members of the community according to the same principles of honesty and fairness which are required in relation with the courts and other lawyers namely, to take all reasonable care to maintain the integrity of the legal profession by ensuring that the practitioner's communications are courteous and that the practitioner avoids offensive or provocative language or conduct.
125. This approach and obligation was recognised as grounding a basis for complaint, if these obligations were breached, in Legal Profession Complaints Committee v in de Braekt [2013] WASC 124 at [29].
126. The Full Court did not accept that offensive conduct, whenever found, must be a matter of unsatisfactory professional conduct as that would be "too broad and sweeping proposition" as the Court said at 420; [52]. The Court, however, continued at 420; [53]:
If the criticisms the solicitor levelled at the Department were true or, at least, fair comment as understood in defamation law, it could not be misconduct or unsatisfactory conduct to draw them to the attention of the relevant officers of the Department and its Minister. That is not an issue which those considering the statements should have to concern themselves. The fact that it was perceived as discourteous and offensive, even provocative, to parties to whom it is directed, is beside the point. In contrast with Karageorge the terms of the solicitor's complaint were not, if the allegations were soundly based, gratuitously insulting or offensive.
127. The reference to Karageorge is to a decision of the Law Society of New South Wales re Karageorge (Unreported, NSW Solicitors Statutory Committee, No 12 of 1986, 15 July 1987), where the solicitor described members of the public (as well as solicitors) in crude, racist and other inappropriate terms and this was held in the circumstances to be professional misconduct.
128. I accept that this obligation, to avoid "offensive or provocative language or conduct", can found a complaint of at least unsatisfactory professional conduct in an appropriate circumstance, such as where gratuitously insulting or offensive.
The proceedings under s 413 of the Legal Profession Act
129. It should also be noted that the approach of the Council of the Law Society to proceed as it did in this case under s 413 of the Legal Profession Act was probably undesirable, though not unauthorised. The difficulties of resolving disputed questions of fact on the papers are well-known and caution and restraint are to be exercised. See Byrne v Law Institute of Victoria Pty Ltd [2005] VSC 509. See, especially, Re PS; Ex parte ZP (1994) 181 CLR 639 at 668, 671 and 673.
130. It was understandable that an issue that was unlikely to put the legal practitioner's right to practice at risk would be seen by the Council to be appropriate for summary consideration.
131. The problem, however, was that there was a serious conflict of fact between the complainant and the legal practitioner and the procedures adopted were not apposite to the resolution of such a conflict.
132. In particular, the conflict may have deflected the Council of the Law Society from its task of determining the likelihood of a finding by the ACAT. In particular, the Council had no function in deciding whether the complaint had actually been made out, though that may have been a step in the way of making the finding.
133. It may have been better, if somewhat more complicated, for the matter to have proceeded directly to the ACAT, where it ended up in any event. The ACAT is designed, inter alia, to deal with conflicts of fact as was clearly the case here. It would then not have had to answer the rather complicated and hypothetical question of whether the ACAT was reasonably likely to make the relevant finding.
134. In this, the legislation is unhelpful. Section 413 of the Legal Profession Act provides for the possible action by the Council of the Law Society where it finds, inter alia, that "there is a reasonable likelihood that the practitioner will be found guilty by the ACAT of unsatisfactory professional conduct (but not professional misconduct)".
135. There is uncertainty about what the Council of the Law Society may do if it cannot so find. Section 412 of the Legal Profession Act provides that it may dismiss the complaint if it is satisfied that there is "no reasonable likelihood that the practitioner will be found guilty of the ACAT" as required. The words "no reasonable likelihood" are strong words suggesting that there must be, for such a finding, absolutely no likelihood of the ACAT making the relevant finding. This seems to leave a gap between a finding that there is a reasonable likelihood and the complete absence of such a likelihood. It does not seem to make provision for the situation where the Council is simply unsure as to what the ACAT may do.
136. The answer seems to lie in s 410 of the Legal Profession Act where, if the Council of the Law Society acts neither to make a decision under s 413 nor dismiss the complaint under s 412, then it is required to refer the matter to the ACAT. Where the Council is unsure, it would seem to me that this is the appropriate course of action for the Council. Thus, I would give the reference to "no reasonable likelihood" the full force of meaning no reasonable likelihood at all, rather than merely the opposite of the finding in s 413 that "there is a reasonable likelihood". That would mean that the Council would refer the matter to the ACAT if it cannot find that there is a reasonable likelihood but cannot find that the ACAT could, under no reasonable circumstances, find that there is a reasonable likelihood.
137. I note also under s 412 of the Legal Profession Act that the Council may dismiss the complaint if it is in the public interest.
138. I turn then to the grounds of appeal argued for the legal practitioner. I consider those as reformulated and set out above (at [73]) and not those set out in the Notice of Appeal. This approach was not opposed by the Law Society.
139. It seems to me that the reformulated grounds of appeal can conveniently be dealt with together for they are, in reality, a combination of various aspects of or decisions along the way in the proceedings of what is submitted by the legal practitioner to be a fundamental flaw in the proceedings.
140. Thus, the questions raised on the appeal all turn on the correct identification of the question that had to be addressed by the Council and then, on appeal, by both the ACAT and the Appeal Tribunal, and whether the ACAT and the Appeal Tribunal, in failing to do so, but in answering another question, had erred.
141. While the questions raised are different, they seem to me to focus on different aspects of the process and so can conveniently be dealt with together as the process is explored.
142. To start with, it is helpful to set out the findings of fact of the ACAT.
143. The relevant factual findings of the ACAT were set out in its decision at 11-2; [57]-[60] as follows:
[57] None of the witnesses who gave evidence were persuaded to depart from the substance of the content of their respective affidavits. All were credible witnesses and it seemed to me that any tribunal of fact would have difficulty in coming to a determination of the content of the conversation that took place on 18 November 2011.
[58] The applicant called a number of credible witnesses who supported her in her general contention that she did not use inappropriate language in a professional or personal context.
[59] After assessing the evidence both oral and documentary, the Tribunal came to the following view.
59.1 It was common ground that the letter from the complainant to the applicant had been sent by facsimile on 17 November 2011. The applicant had responded by telephoning the complainant's office on 18 November 2011, speaking to members of her staff. The applicant responded then by sending a facsimile to the complainant and later the complainant spoke to the applicant by telephone.
59.2 There is a strong inference available that the applicant was upset to some extent by the reference to her health in the facsimile letter dated 17 November 2011 from the complainant to her. That evidence opens the possibility of the applicant having an unsettled mood at the time of her phone call to the complainant's office, possibly amounting to anger.
59.3 The evidence as to the precise content of the telephone call the applicant made to the complainant's firm is conflicting without any significant factor arising from cross examination which would indicate that a tribunal of fact would prefer one version over the other. However, there are inferences available from the apparent mood of the applicant, and the depth of the reaction of the employees to the phone call which could at least potentially impact unfavourably on a tribunal's assessment of the applicant's evidence.
59.4 The evidence is strong that the two staff members were upset by the tone and content of the telephone conversation each had with the applicant and complained to the complainant at the earliest opportunity. They were experienced employees and the tone and content of the conversation was the cause of their upset.
59.5 The evidence is strong that the complainant after taking some time to consider the matter was sufficiently moved by the degree of reaction of her employees to the telephone conversation with the applicant to cause her to telephone the applicant to request an apology on the same day.
144. The ACAT then sought to draw a conclusion from these findings in the words of the statute as follows:
[61] Assessing the weight of that evidence, the Tribunal considers there to be a reasonable likelihood that based upon it the ACAT would make a finding of unsatisfactory professional conduct, but not one of professional misconduct.
145. The difficulty with the question to be answered is that there is a strange uncertainty inherent in it. The task of the decision-maker, which is the Council of the Law Society, is to proceed only if "there is a reasonable likelihood that the legal practitioner will be found guilty by the ACAT of unsatisfactory professional conduct (but not professional misconduct)": s 413(1)(b) of the Legal Profession Act.
146. When it comes to the appeal to the ACAT, it stands in the shoes of the decision-maker and must make that same decision, even though it is the ACAT itself. Thus, it is required to consider whether it is likely that it would to find the legal practitioner guilty of unprofessional conduct (but not professional misconduct) without actually doing so.
147. The parties to these proceedings accepted that, when applying the test as to whether the decision-maker is satisfied of the reasonable likelihood, the decision-maker had to apply the principles set out in Briginshaw v Briginshaw [1938] HCA 34; [1938] 60 CLR 336. In that case, Latham CJ pointed out at 343, the difference in degrees of certainty and that the level of certainty will naturally vary in accordance with the seriousness or importance of the issue.
In a serious matter ... the satisfaction of a just and prudent mind cannot be produced by slender and exiguous proof or circumstances pointing with a wavering finger to an affirmative conclusion.
149. The appellate challenge of the legal practitioner was that, even absent this requirement, the ACAT was unable to make a finding adverse to the legal practitioner. If the principles in Briginshaw v Briginshaw were applied, the relevant threshold could certainly not be met.
150. It is important in assessing the appeal to identify the precise question that the ACAT had to answer. It had to answer the question of whether it could be satisfied to the relevant standard that there is a reasonable likelihood that the practitioner would be found by the ACAT to have engaged in unsatisfactory professional conduct.
151. As held in Donaghy v Council of the Law Society of New South Wales [2013] NSWCA 154, this cannot be answered by the ACAT finding that the legal practitioner had actually engaged in unsatisfactory professional conduct. That is a different question and an answer to it does not answer the proper question for determination.
152. While that may seem counter-intuitive and difficult for lay people to understand, it is clear as a matter of law.
153. The ACAT is required to make a decision on matters brought before it. It makes those decisions on the balance of probabilities on the evidence before it, applying the proper principles of law applicable to the issues it has to decide.
154. Clearly, there will be cases which are clear and where the ACAT will, without difficulty, find that there is an abundance of clear evidence to show that the legal practitioner has, without much doubt, engaged in or not engaged in unsatisfactory professional conduct. In such circumstances, it may then not be difficult to answer the proper question set out above (at [150]).
155. There will, however, often be cases which are not clear. That will particularly, but not exclusively, be where there is strong evidence on both sides and which require a careful balancing, including an assessment, so far as it is proper to do, of a witness' demeanour (cf Société d'Avances Commerciales (Société Anonyme Egyptienne) v Merchants' Marine Insurance Co (The "Palitana") [1924] 20 LI L Rep 140 at 152 per Atkin LJ) in order to make a finding. In those circumstances, it can be seen that it may be very difficult, if not impossible, to answer the relevant question.
156. It would, of course, be perfectly possible that the ACAT would find that the conduct occurred and was unsatisfactory professional conduct, but to answer that question is not to answer the correct question: is it likely that the ACAT would do so?
157. In this case, it has to be said that the ACAT carefully articulated the correct question and explained the relevant process. The problem, however, is that it did not then apply what it articulated. This seems to me to be clear from the passages of the ACAT's reasons cited above (at [143]). Focussing, particularly, on [59], [60] and [61], is helpful in coming to that conclusion.
158. The ACAT found at [59.3], that the conflicting evidence could not be resolved by cross-examination and that the ACAT could not be taken to have preferred one version over the other. On that finding, the ACAT could not be satisfied that there would be a reasonable likelihood that the ACAT would make the required finding.
159. The ACAT, however, then went on to rely on inferences that it considered that were "available" from the mood of the applicant and the depth of the reaction of the staff members. The ACAT did not, however, take the necessary step to consider whether the ACAT would have been reasonably likely to have drawn those inferences, and give reasons for so finding, explaining how and why it did so. That question had to be answered and was not.
160. It is by no means obvious that the ACAT would have been reasonably likely to have drawn those inferences, especially as the ACAT did not explore the inferences and, in particular, any reasonable explanation for them consistent with a finding that the legal practitioner was not engaged in unprofessional conduct.
161. For example, the cause of the distress may have been aggression that the staff members received being expressed by the legal practitioner in the telephone conversation rather than the actual words used. The ACAT would have had to assess whether this was a reasonably possible cause of the distress and, if so, whether that could constitute unsatisfactory professional conduct, neither issue that the ACAT addressed.
162. Thus, the admitted use by the legal practitioner of the description of the letter as "bull" may have been misheard or misinterpreted by the staff member as "bullshit". The ACAT made no consideration of such issues.
163. ACAT described the inferences as "available" but did not address the question that needed to be answered as to whether it was reasonably likely that the ACAT would draw those inferences.
164. Further, the ACAT found that there was strong evidence that the staff member was upset and that this was because of the tone and content of the telephone conversations but that was not a finding that the content was as alleged nor that the tone constituted unsatisfactory professional conduct.
165. What is also stark is that the ACAT completely failed to include in its consideration the eleven character witnesses who each stated that the legal practitioner was not known to use language of the type alleged. The question of whether, in the light of that evidence, the ACAT would be reasonably likely to draw those inferences is simply not addressed. Of course, it may have done so, but that is not the question that it had to answer, as pointed out in Donaghy v Council of the Law Society of New South Wales at [19].
166. This is starkly clearer in relation to the allegation that the legal practitioner improperly described the complainant's staff members as "lying". The quoted finding of the ACAT at [60] shows that it would simply not be possible to find that the ACAT was reasonably likely to have found that.
167. This finding is clear and yet the ACAT made, at [61], no distinction between the complaints of, on the one hand, the staff member of the complainant and her assistant, and, on the other, the complainant's complaint that the legal practitioner accused those employees of lying. If, somehow, its upholding of the complaint of the employees was used as evidence to uphold the complaint about the accusation of lying, then that would be improper reasoning.
168. It is just not possible to see precisely what the findings of the ACAT were on these issues and how the ACAT arrived at its conclusion, a matter in fact recognised by the Appeal Tribunal, as I shall address below at [177]-[179].
170. The decision of the Appeal Tribunal did not resolve the problem for the Law Society. The task of the Appeal Tribunal was hampered because of the superfluity of appeal grounds as referred to above (at [52]).
171. Counsel for the Law Society summarised the grounds and helpfully described them as being able to be subsumed into "categories". That was, no doubt, helpful and, for the most part, accurate.
172. So far as this particular issue was concerned, however, it was inaccurate, for it described the relevant grounds as "findings to the Briginshaw standard", when they clearly went more widely and more closely to this ground. As pleaded, these grounds were:
173. Only ground (viii) is directly a matter of the Briginshaw standard; the other two may, incidentally, have incorporated an element of this but plainly went more widely. To be fair, the legal practitioner's written submissions to the Appeal Tribunal simply did not address the issue. Indeed, those submissions seemed to address few of the grounds of the appeal, at least expressly, though with some imagination one can divine an argument along the lines now being put.
174. The Law Society's submissions, which set out what was seen to be the "categories" into which the appeal grounds could be subsumed then, on this relevant one, addressed the obvious and patent submission of the legal practitioner but without going further into what was really at issue in grounds (vi) and (vii) and which was, therefore, not clearly addressed.
175. Regrettably, the oral submissions of counsel provided no greater clarity on this issue, though it was indirectly raised.
176. It is unsurprising, then, that the Appeal Tribunal did not really grapple with the issue. What it did was suggest that the ACAT should have made a clearer finding which, the Appeal Tribunal held, would have been open to it. Indeed, the Appeal Tribunal said at 20: [65]:
It would have been better had the original tribunal made findings such as - 'having heard and seen the witnesses for the appellant and the respondent I make the following findings - I accept all witnesses were telling the truth as best they could and all witnesses were credible but despite the appellant's denial that she swore and, at worst, used a term such as 'bull', I am satisfied; indeed I am comfortably satisfied that she used the swear words complained of. I am satisfied that her tone was aggressive and menacing. I am further satisfied that she genuinely does not believe that she used those swear words. It seems to me that she was very upset, emotional and/or angry and she used words she said she would not normally use. When angry, one may not even know or remember that they use such words. In my view I believe this would account for her denial of using the swear words. The evidence of several of her witnesses was that she could get upset and she could be verbally aggressive when she was upset.
177. The Appeal Tribunal went on to conclude at 20; [66]
Indeed, those are findings that Tribunal would make having considered all the issues and looked at all the facts that were before the original tribunal.
178. What, according to the Appeal Tribunal, was the gap in the ACAT's process was that while the Appeal Tribunal could "deduce" from the ACAT's decision that it was so satisfied, it had merely not "joined up the dots", by which expression I take to mean that all the elements were present of the desired decision but the expression had not made the necessary (and, presumably, inevitable) connection explicit. What the Appeal Tribunal was really saying, however, was that the conduct was made out, nothing about the likelihood of the ACAT so concluding.
179. Whether that is so is not for me to say, though, for reasons already raised, I do not see the inference as inevitable (which may have been required to "join the dots"). The fact remains that this is the wrong question and the right question has neither been posed nor answered.
180. It is clear to me that the ACAT, while addressing the correct question did not justify its answered by reference to the material before it and that the Appeal Tribunal did not address the correct question.
181. I conclude that the legal practitioner has made out her appeal which must be upheld. This also means, in the circumstances, that leave to appeal should be granted.
182. Given that the correct decision of the ACAT (and, therefore of course, the Appeal Tribunal) should have been that the Council could not have been satisfied that there was a reasonable likelihood that the legal practitioner would be found guilty by the ACAT of unsatisfactory professional conduct, the options available for it were two: it could dismiss the complaint or it could make an application to the ACAT for occupational discipline.
183. The latter is what the legal practitioner wanted to happen, though the decisions of the ACAT and the Appeal Tribunal may suggest that she would not have fared well in that forum, though I have not had to consider - and have not considered - whether the findings about whether the legal practitioner had actually engaged in unsatisfactory professional conduct are ultimately sustainable.
184. Given the inferences that were identified by the ACAT, I do not consider that there was "no reasonable likelihood" (in the sense I have interpreted that phrase above (at [135])) that the ACAT would not have made the relevant finding.
185. In that event, the ordinary result would be that the complaint should be referred to the ACAT.
186. There is, however, one other option and that also comes from s 412 of the Legal Profession Act, namely that it be in the public interest to dismiss the complaint.
187. There seems to me to be strong grounds for considering the option:
1. The passage of time since the facts the subject of the complaint were alleged to have occurred.
2. The inevitable stress that this must have occasioned to the legal practitioner.
3. The number of proceedings that the legal practitioner has had to conduct.
4. The penalty was a caution of limited, but not insignificant, effect.
5. The legal practitioner is responsible for her own costs of the proceedings before the Council, the ACAT and the Appeal Tribunal.
188. As to point 4, I have an agreed statement by the parties of the effect of a caution administered by the Council of the Law Society as follows:
The precise consequences of a caution given under section 413 of the Legal Practitioners Act 2006 are not specifically stated in the Act.
Nevertheless, the giving of a caution must become a matter of record; section 414. It would follow that in the event of future disciplinary action if the decision maker was to find unsatisfactory professional conduct or professional misconduct that decision maker would be obliged to take the record into account in determining what action to take. (This would include circumstances where section 413 might otherwise apply - although it is recognised that section 413(1)(c) refers to 'other material complaints'. Presumably a 'complaint' as vindicated by the giving of a caution would automatically preclude the availability of section 413 in circumstances which might otherwise have allowed a decision to be made under that section.
The giving of a caution, however, will not be entered on the publicly available Register of Disciplinary Action under Part 4.9 of the Act. That is because it does not fit within the definition of 'disciplinary action' contained in section 447. As a consequence the Law Society would not generally notify third parties that a caution had been given to a particular practitioner. It should be noted however that if a regulatory authority from another jurisdiction was to enquire as to a practitioner's disciplinary history the record of a caution would be disclosed.
189. As to costs, I see no reason to depart from my finding in Appellants v Law Society of the Australian Capital Territory at 229; [122], 232; [137]-[140], that the ACAT (including the Appeal Tribunal) have no power to order costs in cases such as this.
190. Accordingly, assuming I have the power to do so, I would order that the complaint be dismissed in the public interest. I note that this is not a finding that the facts were found in the legal practitioner's favour nor that they were found against her.
191. As to the costs of the appeal, the Court has the ordinary power in such a situation to make an order as to the costs of the appeal. In this appeal, I see no reason why the Law Society should not pay the costs.
192. The order will be that the appeal be upheld. I will, however, give the parties an opportunity to make submissions on any other orders to be made as I heard no submissions on the issue. If no such submissions are made or if they do not convince me otherwise, I would propose the following orders in addition to the upholding of the appeal:
2. The orders of the ACT Civil and Administrative Tribunal made on 31 March 2014 be set aside.
3. In lieu, the appeal be upheld and the decision of the ACAT Civil and Administrative Tribunal made on 19 June 2013 be set aside.
4. In lieu, the decision of the Council of the Law Society of the Australian Capital Territory of 20 August 2012 be set aside.
5. In lieu, the complaint to the Law Society of the Australian Capital Territory made by letter dated 13 February 2012 be dismissed in the public interest.
6. The Law Society of the Australian Capital Territory pay the costs of the Legal Practitioner "M" of the appeal in this Court.
I certify that the preceding one hundred and ninety-two [192] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Chief Justice Refshauge
Legal Practitioner "M"
Council of the Law Society of the Australian Capital Territory [2015] ACTSC 312
(2011) 252 FLR 209
(1989) 86 ALR 399
(2013) 277 FLR 26
(1979) 24 ALR 577
(2011) 252 FLR 278
(2013) 277 FLR 61
(2014) 287 FLR 54
412 Dismissal of complaint
(1) After finishing an investigation of a complaint against an Australian legal practitioner, the relevant council may dismiss the complaint if satisfied that -
(a) there is no reasonable likelihood that the practitioner will be found guilty by the ACAT of either unsatisfactory professional conduct or professional misconduct; or
(b) it is in the public interest to dismiss the complaint.
(2) After finishing an investigation of a complaint against an employee of a solicitor, the relevant council may dismiss the complaint if satisfied that there is no reasonable likelihood that the employee will be found guilty by the ACAT of unsatisfactory employment conduct.
413 Summary conclusion of complaint procedure by fine etc
(1) This section applies if the relevant council for an Australian legal practitioner -
(a) completes an investigation of a complaint against the practitioner; and
(b) is satisfied that there is a reasonable likelihood that the practitioner will be found guilty by the ACAT of unsatisfactory professional conduct (but not professional misconduct); and
(c) is satisfied that the practitioner is generally competent and diligent and that no other material complaints have been made against the practitioner.
(2) The relevant council may do all or any of the following:
(a) caution the Australian legal practitioner;
(b) publicly reprimand the Australian legal practitioner or, if there are special circumstances, privately reprimand the practitioner;
(c) make a compensation order under part 4.8 if the complainant requested a compensation order in relation to the complaint;
(d) direct the practitioner to do all or any of the following:
(i) stop accepting, for a stated time, instructions in relation to stated work;
(ii) stop employing a stated person in the practitioner's practice;
(iii) undertake stated further legal education;
(iv) seek advice in relation to the management of the practitioner's practice from a stated person;
(e) impose a fine on the practitioner of a stated amount.
(3) The maximum amount that can be imposed by way of fine is $1,500.
(4) A fine is payable to the relevant council in the way and within the reasonable period required by the relevant council.
(5) If an amount is received by a council as complete or partial payment of a fine imposed under this section, the council must pay the amount into a statutory interest account.
(6) The Australian legal practitioner must not fail to pay a fine imposed under this section in accordance with the requirements of the relevant council.
(7) If action is taken under subsection (2), further action must not be taken under this chapter in relation to the complaint.
414 Record of decision of council about complaint
(1) A council must make and keep a record of its decision in relation to each complaint dealt with by it under this chapter.
(2) The record must include its reasons for the decision.
415 Council to give reasons to complainant and practitioner
If a complaint is made about a person, the complainant and the person about whom the complaint is made are entitled to receive a statement of reasons from the relevant council if any of the following decisions are made by it:
(a) a decision to dismiss the complaint;
(b) a decision to make an application to the ACAT under part 4.7 in relation to the complaint;
(c) a decision to refer a matter to the Supreme Court under section 409 (Referral of matters for costs assessment - complaint investigation) in relation to the complaint;
(d) a decision to take action under section 413 (Summary conclusion of complaint procedure by fine etc);
(e) a decision to omit, from the allegations particularised in an application made by it to the ACAT under part 4.7 in relation to the complaint, matter that was originally part of the complaint.
416 Appeals to ACAT against decisions of relevant council
(1) A person mentioned in table 416, column 2 may appeal a decision mentioned in column 3 to the ACAT.
(2) The appeal must be made not later than -
(a) 28 days after the day the relevant council gave the person making the appeal a statement of reasons under section 415; or
(b) any further time allowed by the ACAT.
(3) The ACAT may make any order it considers appropriate on the appeal.
(4) Without limiting subsection (3), the ACAT may make 1 or more of the orders mentioned in section 425 (3) to (5) (ACAT orders - Australian legal practitioners).
Table 416 Appealable decisions
column 1 column 2 column 3
item person decision
[60] The complaint alleges that in that telephone conversation, the applicant accused the complainant's staff members of lying about the telephone call. This is denied by the applicant who gives a different version of the conversation between herself and the complainant. It is not possible to assess one account of this part of that conversation as being more likely than the other.
(2012) 36 VR 656
(2009) 231 FLR 399
(1984) 1 FCR 354
(1985) 8 FCR 213
(2007) 18 VR 48
(2012) 268 FLR 48
(2010) 241 CLR 320
(1990) 170 CLR 267
(1994) 181 CLR 639
(1990) 96 ALR 211
(2008) 235 CLR 286
(2002) 55 IPR 354
(1976) 135 CLR 616