Legal Practitioner v Council of the Law Society of the Australian Capital Territory

[2023] ACTSC 282

(1) Question (a) of the Special Case is answered, "Yes, in relation to [the Legal Practitioner]".

(2) Question (b) of the Special Case is answered, "Yes, in relation to [the Legal Practitioner]".

PROFESSIONS AND TRADES - LEGAL PRACTITIONERS - Complaints and discipline - disciplinary proceedings - referred from the ACT Civil and Administrative Tribunal - where first complaint against legal practitioner summarily dismissed - whether second complaint arose out of the same or substantially the same facts as first complaint - whether summary dismissal binding and conclusive - whether Legal Profession Act 2006 (ACT) prohibited Law Society of the ACT from investigating second complaint

ACT Civil and Administrative Tribunal Act 2008 (ACT), s 84

Court Procedures Rules 2006 (ACT), r 5802

Legal Profession Act 2006 (ACT), ss 384, 393, 395, 397, 398, 399, 400, 401, 402, 403, 405, 406, 407, 408, 409, 410, 411, 412, 413, 414, 415, 416, 419, 422, 423A, 425, 426

Legislation Act 2001 (ACT), s 146

Kabourakis v Medical Practitioners Board of Victoria [2006] VSCA 301

Legal Practitioner P1 v ACT Civil & Administrative Tribunal [2017] ACTSC 173

Sullivan v Council of the Law Society of New South Wales [2017] NSWCA 244

Council of the Law Society of the Australian Capital Territory (Other active party)

• 6․ Pursuant to s 84 of the ACT Civil and Administrative Tribunal Act 2008 (ACT), the ACAT referred to this Court the following questions:

Following the Applicant (the Law Society) dismissing the First Complaint against the Respondents [redacted], that dismissal being notified to them by letter dated 6 March 2019: > > > a) Does the Council of the Law Society of the Australian Capital Territory have the jurisdiction to make the present applications dated 20 May 2021 to the Tribunal with respect to either or both Charges 1 and 2 against each of the Respondents? > > > > b) Does the Tribunal have jurisdiction to hear and determine either or both Charges 1 and 2 against the Respondents?

• 7․ The Application for Referral was granted by Presidential Member Robinson of the ACAT on 22 April 2022.
• 8․ Pursuant to r 5802 of the Court Procedures Rules 2006 (ACT), the questions referred to this Court were in the form of a Special Case. That document was settled by the ACAT.

• 21․ Chapter 4 of the Legal Profession Act 2006 (ACT) contains the provisions relating to Complaints and Discipline and commences at s 383.
• 22․ Part 4.1 is headed "Preliminary and application - ch 4".
• 23․ Section 384 sets out the purposes of Chapter 4:

(a) to provide a nationally consistent scheme for the discipline of the legal profession in the ACT, in the interests of the administration of justice and for the protection of consumers of the services of the legal profession and the public generally;

(b) to promote and enforce the professional standards, competence and honesty of the legal profession;

(c) to provide a means of redress for complaints about lawyers;

(d) to enable people who are not lawyers to participate in complaints and disciplinary processes involving lawyers.

• 24․ Part 4.2 commences at s 393 and is headed "Complaints about Australian legal practitioners and solicitor employees".
• 25․ Section 393 provides:

(1) A complaint may be made under this chapter about conduct to which this chapter applies.

(3) A complaint that is properly made must be dealt with in accordance with this chapter.

• 26․ Section 395 provides that a complaint cannot be dealt with under Chapter 4 (otherwise than to dismiss it or refer it to mediation) if the conduct about which the complaint is made is more than three years old, unless the council has determined that it is just and fair to deal with the complaint or that the complaint involves an allegation of professional misconduct and it is in the public interest to deal with the complaint.
• 27․ The council must inform the legal practitioner that a complaint has been made (s 397) and that person has an opportunity to make submissions (s 398).
• 28․ Section 399 provides:

(1) The relevant council for a person about whom a complaint is made may dismiss a complaint about the person if -

(a) further information is not given, or the complaint or further information is not verified, as required by the council under section 396 (Further information and verification - complaints); or

(b) the complaint is vexatious, misconceived, frivolous or lacking in substance; or

(c) the complaint was made more than 3 years after the conduct complained of is alleged to have happened, unless a decision is made under section 395 (2) (Complaints made more than 3 years after conduct) in relation to the complaint; or

(d) the conduct complained about has been the subject of a previous complaint that has been dismissed; or

(e) the conduct complained about is the subject of another complaint; or

(f) for a person who was an Australian legal practitioner - it is not in the public interest to deal with the complaint having regard to the fact that the name of the person has already been removed from any Australian roll in which the person was enrolled as a legal practitioner; or

(g) the complaint is not a complaint that the council has power to deal with.

(2) The relevant council may dismiss a complaint under this section without completing an investigation if, having considered the complaint, the council forms the view that the complaint requires no further investigation.

• 29․ Section 400 provides that a complainant may withdraw the complaint. Section 400(6) says that a further complaint cannot be made about the subject of a withdrawn complaint unless the council is satisfied that it is appropriate to make a further complaint in the circumstances. Section 400(7) says that if a complaint is properly withdrawn, no further action may be taken under Part 4.2 in relation to the complaint, unless the council is satisfied that investigation or further investigation of the complaint is justified in the particular circumstances.
• 30․ Part 4.3 (ss 401-405) provides for mediation of a complaint.
• 31․ Part 4.4 (ss 406-409) provides for the investigation of a complaint.
• 32․ Section 406(2)(b) provides that a council must investigate a complaint, but that does not apply to a complaint that is dismissed or withdrawn under Chapter 4.
• 33․ Section 407 provides for the appointment of a suitably qualified person as investigator.
• 34․ Part 4.5 (ss 410-416) is headed "Decision of council".
• 35․ Section 410 provides:

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.

• 36․ Section 411 provides that where there is a reasonable likelihood that the practitioner will be found guilty of either unsatisfactory professional conduct or professional misconduct, the council may refer the complaint to the ACAT without conducting an investigation.
• 37․ Section 412 provides that the council may dismiss a complaint if there is no reasonable likelihood that the practitioner will be found guilty by the ACAT of either unsatisfactory professional conduct or professional misconduct, or it is in the public interest to dismiss the complaint.
• 38․ Section 413 provides summary powers to the council to impose cautions, reprimands, compensation orders, directions in relation to the work which a practitioner may undertake or to undertake further legal education, or fines. Section 413(7) imposes a restraint on the taking of further action after summary action.
• 39․ Section 419 provides that a council may apply to the ACAT for an order in relation to a complaint against a practitioner. The application for an order must include a charge of unsatisfactory professional conduct, professional misconduct or unsatisfactory employment conduct.
• 40․ Section 422 provides that an application to the ACAT cannot be challenged on the ground that the application does not deal with all of the allegations in the complaint.
• 41․ Section 423A allows the publication of the details of a complaint in some circumstances.

Does the Law Society have jurisdiction to make the application to the ACAT?

(a) The Act did not impose a mandatory requirement on it to dismiss the Second Complaint summarily pursuant to s 399;

(b) The Act did not prohibit the making or investigation of the Second Complaint;

(c) It was under a statutory obligation under s 406(1) to investigate the Second Complaint; and

(d) As it had a statutory duty to investigate the Second Complaint, it necessarily follows that it had jurisdiction to make the application for disciplinary action as that is one of the three steps which s 410 stipulates it must decide to take following an investigation.

Do the Complaints arise out of the same/substantially the same facts?

• 43․ Counsel for [the Legal Practitioner] submitted that the Second Complaint arose out of 'the same facts' or 'substantially the same facts' as the First Complaint. [Redacted].

• 49․ [Redacted], I decline to find that the Second Complaint raised the same or substantially the same facts as the First Complaint.

Does the Act prohibit the making or investigation of the Second Complaint?

• 50․ The next issue is whether, as counsel for [the Legal Practitioner] submitted, the Law Society had jurisdiction to take disciplinary action about a matter which had been previously dismissed. He submitted that the very nature of taking disciplinary action is not one ordinarily capable of being exercised more than once. One outcome of the process is dismissal. This same term, "dismissal" is used in the Act for both the disposition at the summary level under s 399 and after investigation, in ss 410 and 412. He invited me to find that no form of "dismissal" is less final than the other.
• 51․ However, counsel for [the Legal Practitioner] did not suggest that there was any express provision of the Act which mandated the dismissal of the Second Complaint.
• 52․ It is common ground that whether the Law Society has jurisdiction will depend upon the proper construction of the Act.
• 53․ Counsel for [the Legal Practitioner] relied on the following sections in Chapter 4 of the Act (the text of which is set out earlier in these Reasons), which he said set out a detailed scheme of complaint, notification, summary decision, mediation, investigation, and decision, including as part of the decision making an application to ACAT, which suggested a complete and 'once and for all' process:

(a) Section 395 limits the circumstances in which a complaint is made about conduct which occurred more than three years earlier. This illustrates that there is no automatic right for a complaint to be dealt with.

(b) Section 400 allows a complainant to withdraw a complaint. Section 400(6) provides that in some circumstances, a further complaint cannot be made. This shows that there are limitations on reinvigorating a complaint which has merely been withdrawn and not pursued to a conclusion. If it is inappropriate to restrict reinvigorating a withdrawn complaint, it is highly unlikely that the Act intends to permit the reinvigoration of a complaint which was dismissed seemingly without any limitations. Express words would be required, and there are none.

(c) Section 413 provides summary disciplinary powers to the Law Society. The restraint on taking further action in s 413(7) is consistent with the disciplinary process being used only once in respect of the same matter.

(d) Section 423A implies that the details of a complaint are not to be published unless the practitioner has engaged in misconduct. This means that if the practitioner was found guilty, but then on a second complaint was found not guilty, it would not be possible to retrieve the publication of the practitioner's name.

(e) The word "dismissal" used for summary disposition under s 399 is used in the same way in ss 410 and 412.

• 54․ In reply, counsel for the Law Society submitted that no such intent can be implied or discerned from the terms, purposes, or structure of the Act. In relation to the sections relied on by counsel for [the Legal Practitioner], the complaints were not absolutely barred, which leads to the inference that there is a clear statutory intent that the exclusion of any complaints about the conduct of lawyers from the jurisdiction of Chapter 4 is to be very limited or exceptional.
• 55․ In addition, he submitted, the purposes of Chapter 4 are set out in s 384 as including the enforcement of the professional standards, competence, and honesty of the legal profession and to provide a means of redress for complaints about lawyers. It would, he submitted, be contrary to the purposes of the Act to construe it as precluding complainants from making a second complaint where the first complaint had been dismissed without investigation.
• 56․ I decline to find that a summary dismissal under s 399 of the Act is binding and conclusive and, in the circumstances of this case, precludes the Law Society from dealing with the Second Complaint.
• 57․ The Act envisages that a dismissal under s 399 can be made without any investigation of the complaint. The only outcome is that a "dismissal" is not a positive finding about the conduct of the legal practitioner. There is no right of appeal to the ACAT, although, as conceded by Counsel for the Law Society, the decision may be subject to judicial review. In contrast, a dismissal under s 412 of the Act occurs after an investigation, the practitioner has a right to make submissions, the rules of procedural fairness are expressly stated to apply, an investigation may be undertaken, and a finding must be made by the Law Society that there is no reasonable likelihood that the practitioner will be found guilty by the ACAT of either unsatisfactory professional conduct or professional misconduct, or that it is otherwise in the public interest to dismiss the complaint. In addition, s 416 of the Act provides for a right of appeal to the ACAT in relation to decisions made by the Law Society under Chapter 4, and specifically provides a complainant with a right of appeal where there has been a dismissal under s 412 of the Act.
• 58․ I consider, taking into account the purposes of the Act as set out in s 384, that the legislature cannot be taken to have intended that the dismissal of a complaint without an investigation could bar an investigation of the same or similar matters raised in a later complaint supported by fresh evidence.
• 59․ Further, I am not persuaded that the limitations in the various sections referred to by counsel for [the Legal Practitioner] are necessarily consistent with the legislature intending to provide for a 'once and for all' process. As pointed out by counsel for the Law Society, they are consistent with complaints being excluded only in limited or exceptional circumstances.
• 60․ I would add that I did not find the primary legal authority relied on by counsel for [the Legal Practitioner] to be sufficiently analogous to be helpful. In Kabourakis v Medical Practitioners Board of Victoria [2006] VSCA 301, the Medical Practitioners Board of Victoria received a complaint and determined to conduct an informal hearing into the doctor's professional conduct. A panel of Board members, under the informal hearing provision, found that Dr Kabourakis had not engaged in unprofessional conduct. It was then discovered that the panel had not been given one of the expert reports. The Board decided to re-open the complaint so that the report could be considered. The Victorian Court of Appeal held that there was no power for the Board to consider the same complaint twice. Warren CJ held at [5] that "Dr Kabourakis was entitled to believe, quite properly, that once the finding of the panel was published, together with comprehensive reasons, the matter had reached certainty and finality".
• 61․ However, in that case, there was lengthy correspondence between the Board and the doctor about the particulars of the complaint. As I have already mentioned, the Board sought expert evidence, whereas in these proceedings, the First Complaint was not investigated. The notifier and Dr Kabourakis attended the informal hearing and were interviewed, whereas in these proceedings [the Legal Practitioner] did not attend a panel hearing. After the informal hearing in Kabourakis, the Board prepared written reasons for its decision and published its finding that the doctor had not engaged in unprofessional conduct. In these proceedings, the Law Society did not arrive at a finding, rather, it dismissed the complaint. Lastly, in Kabourakis, there was no second complaint - the Board sought to re-open the hearing into the first (and only) complaint.

• 62․ Section 399(1)(d) of the Act provides that the Law Society may dismiss a complaint if the conduct complained about has been the subject of a previous complaint that has been dismissed.
• 63․ The submission made by counsel for [the Legal Practitioner] turned on the use of the word "may". Section 146(1) of the Legislation Act 2001 (ACT) provides that where an Act uses the word "may" in relation to a function, the function may be exercised or not exercised, at discretion. However, he submitted, there is a manifest contrary intention in s 399 of the Act. He pointed out that s 399(1)(c) and (g) are clear examples because the subject matter of these sections requires the complaint to be dismissed.
• 64․ Counsel for [the Legal Practitioner] relied on the decision of Murrell CJ in Legal Practitioner P1 v ACT Civil & Administrative Tribunal [2017] ACTSC 173, which found that it was a jurisdictional requirement for the Law Society to make a decision under s 395(2) to be able to entertain a complaint made more than three years after the conduct occurred. That finding means, he submitted, that s 399(1)(c) cannot be exercisable at discretion. In relation to s 399(1)(g), counsel for [the Legal Practitioner] submitted that it is inconceivable that it confers a discretion on the Law Society to proceed in the absence of jurisdiction. As s 399(1)(c) and (g) are authorisations and not discretions, s 399(1)(d) is also to be viewed as an authorisation, not a discretion, and thus imposes an obligation on the Law Society to dismiss the Second Complaint.
• 65․ Counsel for the Law Society stated that the submission that s 399(1)(d) does not confer a discretion directly contradicts the authority of the NSW Court of Appeal in Sullivan v Council of the Law Society of New South Wales [2017] NSWCA 244, where the legislation being considered was relevantly in the same terms.
• 66․ I accept this submission by counsel for the Law Society. The discretion conferred by

s 399 is a discretion to dismiss complaints where the Law Society "forms the view that the complaint requires no further investigation" (s 399(2)). It does not operate as a threshold to deciding whether to investigate a complaint.

• 67․ This is consistent with the decision of the NSW Court of Appeal in Sullivan which held at [62]:

The Solicitor contends that the Tribunal should have found that the Society failed to take into account a relevant consideration, namely, that the conduct complained of in the 2015 Complaint was the same conduct as had been the subject of the complaint dismissed in 2013. Section 511 of the Legal Profession Act permitted the Society to dismiss a complaint summarily, relevantly, if the conduct complained about had been the subject of a previous complaint that had been dismissed. However, s 511(2) provided that the discretion may be exercised without any investigation or without completing an investigation. There is nothing in s 511 that required the Society to exercise the discretion under that section before commencing the investigation.

• 68․ An issue which arises in the authorities is whether there is a risk of inconsistent findings consequent on considering two complaints: see Kabourakis at [69].
• 69․ As I have already made clear, I decline to find that the dismissal of a complaint pursuant to s 399 of the Act results in a finding as to whether or not the practitioner is likely to be found guilty by the ACAT of unsatisfactory professional conduct or professional misconduct, or even any finding as to whether it is in the public interest to dismiss the complaint.
• 70․ Accordingly, the risk of inconsistent findings does not arise in these proceedings.

• 71․ For these Reasons, the dismissal of the First Complaint was not final, binding or conclusive of the matters raised in the First Complaint concerning the conduct of [the Legal Practitioner].
• 72․ There was accordingly no statutory prohibition on the making or investigation of the Second Complaint, nor was there any mandatory obligation on the part of the Law Society to dismiss the Second Complaint.
• 73․ In these circumstances, s 406 of the Act provides that the Law Society must investigate each complaint properly made to it. After finishing the investigation, s 410(1) provides that the Law Society 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.

• 74․ After investigating the Second Complaint, the Law Society decided that [the Legal Practitioner's] conduct constituted professional misconduct. This means that it could not take action under s 410(1)(a) or (b) of the Act. It did take action under s 410(1)(c) by making the application to the ACAT pursuant to s 419 of the Act.
• 75․ I am satisfied that the Law Society had jurisdiction to make the application as it was the only available option mandated by s 410 of the Act following the investigation of the Second Complaint.

Does the ACAT have jurisdiction to hear and determine the application?

• 76․ The application was filed in the ACAT by the Law Society pursuant to s 419 of the Act.
• 77․ Section 425 provides for the orders which can be made if, after the ACAT has finished considering an application, it is satisfied that the practitioner is guilty of unsatisfactory professional conduct or professional misconduct.
• 78․ Section 426 provides that, if after the ACAT has finished a hearing in relation to a complaint, it is not satisfied that the practitioner is guilty of unsatisfactory professional conduct or professional misconduct, it must dismiss the complaint.
• 79․ Counsel for the Law Society submitted, and I accept, that there is nothing to suggest that any material or substantive difference is intended to be conveyed by reference to considering an application in s 425 and the reference to hearing an application in s 426.
• 80․ It therefore follows that the ACAT has jurisdiction to hear and determine the application.

(1) Question (a) of the Special Case is answered, "Yes, in relation to [the Legal Practitioner]".

(2) Question (b) of the Special Case is answered, "Yes, in relation to [the Legal Practitioner]".

I certify that the preceding eighty-one [81] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Acting Justice Balla.