PROFESSIONS AND TRADES - lawyers - discipline - nature of appeal - referral to Supreme Court - whether appeal should be heard by Full Court

ACT Civil and Administrative Tribunal Act 2008 (ACT) ss 82, 83

Legal Profession Act 2006 (ACT) s 420

Supreme Court Act 1933 (ACT) s 13, 37E

In the Matter of an Application for Leave to Appeal by Thomas James Collins [2003] ACTCA 17

Legal Practitioner v Council of the Law Society of ACT [2011] ACTSC 207

Legal Practitioner v Council of the Law Society of the ACT [2014] ACTSC 50

1. By way of an application lodged on 23 May 2014 the Council of the ACT Law Society inter alia seeks an order that the proceedings be referred to the Full Court for hearing pursuant to s 13(2) of the Supreme Court Act 1933 (ACT) (Supreme Court Act).

2. After a five-day hearing on liability only concerning the alleged misconduct of the legal practitioner, on 24 January 2013 the ACT Civil and Administrative Tribunal (ACAT) made an order recommending that the name of the practitioner be removed from the local roll and the practitioner be reprimanded.

3. The practitioner appealed that decision complaining, inter alia, that he had been denied procedural fairness because the question of penalty had not been canvassed in the liability hearing before ACAT.

4. ACAT reopened the proceedings in relation to the question of penalty and there was a hearing concerning the penalty that should be imposed. On 2 August 2013, ACAT made orders imposing the same penalty that it had originally considered appropriate (recommending that the name of the practitioner be removed from the roll and the practitioner be reprimanded).

5. Following the original liability hearing, the practitioner lodged an appeal. The question of the forum in which the appeal should be heard was considered by ACAT. The parties consented to removal of the matter to the Supreme Court and, pursuant to s 83(1) of the ACT Civil and Administrative Tribunal Act 2008 (ACT) (ACAT Act), the matter was removed to this Court. Section 83(1) provides:

If the parties to an application or an appeal (a matter) jointly apply to have the matter removed to the Supreme Court, the Tribunal must order that the matter be removed to the Supreme Court.

6. The respondent to the appeal, the Council of the Law Society of the ACT, has raised two matters in this application. The first matter concerns the nature of the appeal to this Court and whether, in hearing the appeal, this Court stands in the shoes of ACAT or exercises appellate jurisdiction only by way of review of error. The second issue is the question of whether the matter should be referred to a Full Court pursuant to s 13(2) of the Supreme Court Act.

7. In relation to the first matter, s 82 of the ACAT Act provides:

An appeal tribunal may, as the tribunal considers appropriate, deal with an

(b) as a review of all or part of the original decision on the application by the tribunal.

8. In other words, pursuant to s 82 it would seem that the "appeal tribunal" may either deal with the appeal as a hearing de novo, or deal with it as a review appeal.

Whether the matter should be referred to the Full Court

9. I turn to consider the application that the appeal be referred to a Full Court under s 13(2) of the Supreme Court Act. Section 13 provides -

(1) This section applies in relation to matters in which, apart from this section, the jurisdiction of the court would be exercisable by a single judge.

(2) At any time before the beginning of the hearing of a matter in relation to which this section applies, a judge may order that the jurisdiction of the court in that matter shall be exercised by the Full Court.

10. The section provides little guidance as to the factors that may be taken into account when the Court is exercising its discretion pursuant to s 13(2).

11. The applicant submitted that ACAT has heard a number of similar matters and that, in such cases, ACAT provides a full and comprehensive hearing of the merits of the matter. ACAT sits as a tribunal comprising three members, two of whom are legally qualified, and the third of whom is a lay representative. As is often the case, in the present matter, a very senior legal practitioner or a former judicial officer presides over the hearing. The hearing before ACAT is one in which the tribunal is bound by the rules of evidence, pursuant to s 420 of the Legal Profession Act 2006 (ACT). ACAT has broad powers, including the power to recommend that the name of a practitioner be removed from the roll. The recommendation then comes to this Court.

12. There is some uncertainty as to whether, in dealing with such a recommendation, the Supreme Court exercises administrative power or judicial power. There is also some uncertainty as to the way in which the Court should exercise its function when considering a recommendation for removal.

13. The applicant submitted that the provisions of the ACAT Act and the Supreme Court Act, when taken together, prescribe an unnecessarily tortuous route for the consideration of allegations of professional misconduct by legal practitioners. First, the matter is fully considered on the merits by a well-qualified tribunal of three members. Second, the matter goes on appeal and the appeal is heard either by ACAT or by the Supreme Court (if the matter is referred to the Court under s 83). Third, there could be an appeal to the Court of Appeal. Thereafter, the matter could be considered by the Supreme Court, looking at the recommendation that the name of the practitioner be removed from the roll. As I have mentioned, the nature of that consideration is uncertain.

14. It is submitted that one step in the tortuous process could be removed if the appeal from ACAT that has been referred to this Court was referred to a Full Court. This is because s 37E of the Supreme Court Act provides -

(2) The following matters may be brought before, and heard by, the Court of Appeal:

(i) orders of the master, except interlocutory orders (see section 9 (Exercise of jurisdiction by master));

(ii) other orders of the court (except orders of the registrar, the Full Court exercising appellate jurisdiction or the Court of Appeal itself);

15. The applicant argued that, if the matter was referred to the Full Court, the Full Court would be "exercising appellate jurisdiction", and there would be no appeal from the Full Court to the Court of Appeal.

16. The argument depends upon the premise that, if the appeal was referred to the Full Court, the Full Court would be "exercising appellate jurisdiction". However, having regard to s 82 of the ACAT Act referred to above, it is far from clear that the Full Court would necessarily be "exercising appellate jurisdiction". In Legal Practitioner v Council of the Law Society of ACT [2011] ACTSC 207, Refshauge J, declined to refer an appeal to the Full Court at the request of the counsel. At [70] his Honour said:

It is not at all clear to me that, when an appeal is removed into the Court from the ACAT under s 83 of the ACAT Act, the Court is exercising appellate jurisdiction for the purposes of s 37E(2)(a)(ii).

See also, the decision of Penfold J, in the Legal Practitioner v Council of the Law Society of the ACT [2014] ACTSC 50 at [37]. In The Matter of an Application for Leave to Appeal by Thomas James Collins [2003] ACTCA 17 at [8], which concerned a similar situation (but did not involve a legal practitioner) the Court of Appeal said:

A Full Court would not, ordinarily, be exercising appellate jurisdiction but it might if a single judge referred an appeal from the Magistrates Court to a Full Court as occurred in McEwen v Siely (1972) 21 FLR 131.

17. As it is not clear that, if the matter was referred to a Full Court the Court would be exercising appellate jurisdiction, it is equally unclear that such a referral would exclude the possibility of a further appeal to the Court of Appeal.

18. A second consideration is that the legislature has seen fit to prescribe a tortuous path for matters involving allegations of professional misconduct made against legal practitioners. The number of steps that may be involved in the process makes it a very expensive pathway both for practitioners and for the Council. For the practitioner, the associated delay means that their professional future remains in a state of uncertainty. For the Council, it means that the public is left in a state of uncertainty regarding the status of the practitioner. For the Court, the number of appearances and hearings that may be required places an unnecessary burden on resources. From all perspectives, it is highly desirable that the pathway be simplified. But that is a matter for the legislature, rather than the Court.

19. It is not only in relation to legal practitioner matters that this pathway is prescribed. Appeals from a Magistrate go to a single Judge. In other jurisdictions, the matter would end there but in this jurisdiction the matter can proceed on to the Court of Appeal. This is another unnecessary waste of resources. A single Judge of the Court is more than capable of deciding whether a Magistrate has erred.

20. The application is made under s 13 of the Supreme Court Act, which does not state the matters that should guide the court's discretion when considering whether to refer a matter to the Full Court. Inferentially, there would need to be something special or exceptional about a case before the Court would be persuaded to exercise the discretion under s 13(2). For example, the discretion may be enlivened where a matter involved an important question of principle or a matter of public importance.

21. In relation to this case, nothing exceptional has been identified. On the contrary, the argument has been that this is one of many such cases. There is no reason to refer this matter to the Full Court. The application will be refused.

I certify that the preceding twenty-one [21] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell.