[2016] ACTSC 203

The legal practitioner's proceedings for leave to appeal are struck out as incompetent pursuant to r 5172 of the Court Procedures Rules 2006 (ACT).

The legal practitioner is to pay the costs of the proceedings.

JURISDICTION, PRACTICE AND PROCEDURE - statutory interpretation - application to strike out appeal as incompetent - whether decision of the President of ACAT is a decision of an appeal tribunal or a tribunal - definition of 'appeal tribunal' - where the meaning of the term 'tribunal' should not have conflicting meanings within the same rule

ACT Civil and Administrative Tribunal Act 2008 (ACT), 81, 86

ACT Civil and Administrative Tribunal Procedure Rules 2009 (No 2), Pt 7, r 22,

Court Procedures Rules 2006 (ACT), r 5172

Attorney-General for the Commonwealth v Finch [No 1] [1984] HCA 1; (1984) 155 CLR 102

Roy Morgan Research Centre v Commissioner of State Revenue of the State of Victoria [2001] HCA 49; (2001) 207 CLR 72

United Mexican States v Cabal & Ors [2001] HCA 60; (2001) 209 CLR 165

1. Two applications were listed for hearing before me on 3 August 2016. In order of filing, the first is an application by the legal practitioner ("the practitioner") for leave to appeal out of time against an order made in the ACT Civil and Administrative Tribunal ("ACAT").

2. The second application is one by the Council of the Law Society of the Australian Capital Territory ("the Law Society") to strike out the proceedings, under r 5172 of the Court Procedures Rules 2006 (ACT), as being incompetent.

3. The parties agreed that it would be appropriate to deal with the Law Society's application first. Because time did not permit the earlier application to be dealt with on the same day, it was stood over pending the outcome of the strike out application.

4. The following are some important dates: On 1 October 2014, ACAT made a decision on liability in the proceedings brought by the Law Society against the practitioner. The matter was then stood over in respect of penalty. ACAT gave its decision on penalty on 31 March 2015. This ruling triggered the running of time for purposes of filing an appeal against the ACAT decision. Time expired on 28 April 2015.

5. On 20 November 2015, the practitioner, clearly beyond the 28 days, filed an application for leave to appeal out of time. On 3 December 2015, the "appeal president", Mr Stefaniak ("the President"), heard the application and refused leave to appeal.

6. Assuming an entitlement to appeal from the decision of the President, the appeal needed to be lodged within 28 days. This period expired on 4 January 2016. An application for leave to appeal by the practitioner from the decision of the President was filed on 3 February 2016. This application was also out of time.

7. By its application, the Law Society says the practitioner's application is incompetent because the practitioner does not have a right to appeal under the relevant legislation.

8. The relevant legislation is the ACT Civil and Administrative Tribunal Act 2008 (ACT) ("the Act") and the ACT Civil and Administrative Tribunal Procedure Rules 2009 (No 2) ("the Rules").

9. The starting point is s 86 of the Act. It states:

(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 president dismissed the appeal under section 80 - the original decision of the tribunal; or
• (c) if the 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.

10. As the argument developed it became apparent to me that the central question arising from s 86 is whether the decision of the President was a decision of the appeal tribunal. If it was not such a decision then the application by the practitioner could not stand.

11. As already stated, the matter heard by the President was an application for leave to appeal out of time. Applications of this type fall under r 22 of the Rules. This rule states:

(1) This rule applies if a person wants to appeal from a decision of the tribunal out of time.

(2) The person must apply to the tribunal for leave to appeal.

(3) The application for leave to appeal must be accompanied by -

• (a) a written statement showing -
  • (i) the nature of the case; and
  • (ii) the questions involved; and
  • (iii) the reasons why leave should be given; and
• (b) the draft notice of appeal.

(4) If the applicant wants to present the applicant's case for leave in writing, the application must state that the applicant wants to do so.

12. The Law Society submitted that the "tribunal" referred to in sub-r (2) is the same "tribunal" mentioned in sub-r (1). If this was correct then the decision of the President was not a decision of the appeal tribunal but rather a decision of the tribunal. In that case s 86, which enables an ACAT decision to be dealt with in the Supreme Court would not have been activated.

13. Section 81 of the Act deals with the constitution of an appeal tribunal. Arguably in sub-s (3) it is contemplated that an appeal tribunal can be made up of only one presidential member. The practitioner conceded however, that the President was not sitting as an appeal tribunal under s 81 because sub-s (1)(a) was not applicable to the application before the President.

14. The practitioner argued however, that s 86 nevertheless applied because the tribunal referred to in r 22(2) could be an appeal tribunal. This would mean giving the word tribunal in sub-r (2) a different meaning to that which it had in sub-r (1).

15. The practitioner pointed out that the heading of Pt 7, within which r 22 is found, is titled "Appeals within tribunal". The practitioner said that this heading inferred that the President, hearing an application under r 22, was sitting as an appeal tribunal.

16. I do not accept the practitioner's argument. Firstly, an appeal tribunal, under the Act's dictionary, "means a tribunal made up under s 81 to review a decision of the tribunal." As stated above, the practitioner concedes that he does not fall within s 81.

17. Secondly, I do not see how the tribunal referred to respectively in sub-r (1) and (2) of r 22, could have a different meaning in each sub-r.

18. Further, I see no illogicality or legal impediment in the tribunal deciding the question of leave to appeal to the appeal tribunal. In other words, an application for leave to appeal is readily distinguishable from an appeal.

19. In Attorney-General for the Commonwealth v Finch [No 1] [1984] HCA 1; (1984) 155 CLR 102 at page 105 the High Court said:

There is a clear distinction between an appeal and an application for special leave to appeal. Where a right of appeal is conditional on the grant of special leave to appeal, there can be no appeal until special leave is granted.

20. In United Mexican States v Cabal & Ors [2001] HCA 60; (2001) 209 CLR 165 at page 179 the High Court said this:

An application for leave or special leave to appeal is not an appeal. As Barwick CJ, Stephen, Mason and Jacobs JJ pointed out in Collins v The Queen (40), an "applicant for such leave or special leave is no more than an applicant desiring to obtain the Court's leave to commence proceedings in the Court".

21. The practitioner relied on Roy Morgan Research Centre v Commissioner of State Revenue of the State of Victoria [2001] HCA 49; (2001) 207 CLR 72. However, as pointed out by the Law Society, the relevant provision that was being dealt with concerned "any determination of the Trial Division constituted by a Judge". The point of distinction is that the decision here must be from the appeal tribunal rather than any determination in ACAT.

22. In summary, the practitioner failing to fall within s 81 of the Act means that the decision of the President could not have been a decision of an appeal tribunal. This is enforced by the definition of an appeal tribunal in the Dictionary to the Act.

23. Once the President's decision is categorised as not being a decision of the appeal tribunal, the right to appeal to the Supreme Court under s 86 does not exist. Accordingly, the Law Society is entitled to the relief sought in its application under r 5172 of the Court Procedures Rules 2006 (ACT).

(i) The legal practitioner's proceedings for leave to appeal are struck out as incompetent pursuant to r 5172 of the Court Procedures Rules 2006 (ACT).

(ii) The legal practitioner is to pay the costs of the proceedings.

I certify that the preceding twenty-four [24] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim