SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

[2024] ACTCA 17

PROFESSIONS AND TRADES - LAWYERS - Complaints about a legal practitioner - referral of a special case to Supreme Court by the ACT Civil and Administrative Tribunal - appropriateness of referral - whether primary judge erred in answers to special case - where first complaint about legal practitioner's conduct summarily dismissed - whether Law Society must dismiss any subsequent complaint about the same conduct - consideration of summary dismissal power in s 399 and legislative scheme in Ch 4 of the Legal Profession Act 2006 (ACT) - s 399 is a discretionary power to dismiss complaints - mandatory dismissal of subsequent complaints inconsistent with purpose of the legislative scheme - no error demonstrated - appeal dismissed

ACT Civil and Administrative Tribunal Act 2008 (ACT), ss 82, 84

Court Procedures Rules 2006 (ACT), r 5802

Legal Profession Act 2006 (ACT), ss 6(a), 384, 394, 395, 399, 400, 401, 406, 407, 410, 411, 412, 413, 415, 416, 417(2), 419, 422, 423A, 425, 426, Pt 4.2, Pt 4.3, Pt 4.4, Pt 4.5, Pt 4.7, Ch 4

Legislation Act 2001 (ACT), ss 139, 146(1)

Commissioner of Taxes (Vic) v Lennon [1921] HCA 44; (1921) 29 CLR 579

Craig, Williamson Proprietary Limited v Barrowcliff [1915] VicLawRp 66; [1915] VLR 450

Kabourakis v Medical Practitioners Board of Victoria [2006] VSCA 301; 25 VAR 449

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

Tepko Pty Ltd v Water Board [2001] HCA 19; 206 CLR 1

Council of the Law Society of the Australian Capital Territory (Respondent)

Case Title: [redacted] v Council of the Law Society of the Australian Capital Territory

Citation: [2023] ACTSC 282

• 5․ [redacted]. On 22 April 2022, a presidential member of the ACAT granted an application for referral of questions of law to this court, pursuant to s 84 of the ACT Civil and Administrative Tribunal Act 2008 (ACT) (ACAT Act). The questions of law were referred in the form of a special case under r 5802 of the Court Procedures Rules 2006 (ACT). The questions of law were as follows:

(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 of Charges 1 and 2 in applications dated 20 May 2021 brought by the Applicant against the Respondents?

• 6․ Although the first question refers to the "jurisdiction" of the Law Society, it is more appropriate to refer to the power of the Law Society to make the applications.

• 8․ The essential contention raised by the appellant both before the primary judge and in this court was that because a complaint had been dismissed by the Law Society under s 399 of the Legal Profession Act 2006 (ACT) (LP Act), the Law Society was precluded from initiating disciplinary action in the ACAT where the disciplinary action included a charge arising out of the same conduct as was the subject of the dismissed complaint.
• 9․ The primary judge rejected that contention, concluding that both the Law Society and the ACAT had jurisdiction in relation to the appellant notwithstanding the dismissal of the earlier complaint.
• 10․ For the reasons that follow, the answers given by the primary judge to the two questions that were referred were both correct. The Law Society had the power to make the application that it did and the ACAT was obliged to hear and determine the application.
• 11․ Section 423A of the LP Act imposes restrictions upon the identification of lawyers who are the subject of complaints prior to the completion of the disciplinary process and any appeal therefrom and maintains restrictions after that where the legal practitioner has not been found guilty of the conduct complained of. For this reason, the published form of this judgment includes redactions at least until the completion of the disciplinary process and any appeal.

• 20․ It must be observed that the effect of referring these questions to the Supreme Court under s 84 of the ACAT Act has had the effect of fragmenting and delaying the disciplinary proceedings which were commenced in 2021.
• 21․ The reasons for the referral by the ACAT are not clear. The appellant was the party that proposed the referral. The Law Society neither consented to nor opposed that course. Given that a condition for the exercise of the power to refer a question of law under s 84 is that it "raises an issue of public importance", the ACAT must have been satisfied that was the case.
• 22․ It has been recognised in a variety of contexts that great care should be taken in deciding whether to determine questions or issues separately from the substance of proceedings. For example, in Tepko Pty Ltd v Water Board [2001] HCA 19; 206 CLR 1 at [168], Kirby and Callinan JJ said: "The attractions of trials of issues rather than of cases in their totality, are often more chimerical than real. Common experience demonstrates that savings in time and expense are often illusory ...". There are a variety of reasons why this can be so. In the present case, it is because of the potential that the answers to the separate questions do not resolve the proceedings and substantially delay the determination of the substantive issues in the case.
• 23․ Even where a question of law raises an issue of public importance, caution must be exercised when considering a referral of a question to the Supreme Court. It is not uncommon for proceedings in the ACAT to raise important issues of statutory interpretation. Any decision to refer such a question to the Supreme Court must pay appropriate regard to the need to finally determine the case at hand and to avoid having the proceedings fragmented and delayed.
• 24․ It is most unfortunate that a disciplinary matter, the purpose of which is to protect the public, has been dealt with in this way when, had the matter simply been heard and determined by the ACAT, a final determination of all issues in the proceedings could have been made some time ago. That final determination might then have been subject to an appeal through the ordinary mechanisms.

• 26․ After that, her Honour addressed the question of whether the Law Society had jurisdiction to make the application and whether the ACAT had jurisdiction to hear and determine the application.
• 27․ In relation to the first question, the jurisdiction of the Law Society, the primary judge first addressed whether or not the complaints arose out of the same, or substantially the same, facts. This was significant because, if they did not, then that undermined the contention that the dismissal of the first complaint had consequences for the power to address the second complaint. The primary judge recorded that the submission on behalf of [the appellant] was that the second complaint arose out of the same facts or substantially the same facts as the first complaint. [redacted].

• 29․ As a result, the primary judge did not find that the second complaint raised the same or substantially the same facts as the first complaint.
• 30․ Her Honour then turned to consider a second issue relevant to the answer to the question about the powers of the Law Society, namely, whether the LP Act prohibited the making or investigation of the second complaint. Counsel for [the appellant] had submitted that the very nature of taking disciplinary action is not something ordinarily capable of being exercised more than once. He submitted that the term "dismissal" is used in the LP Act for both dismissal at the summary level under s 399 as well as dismissal after an investigation under ss 410 and 412. As a consequence, he submitted that neither form of "dismissal" is less final than the other. However, he acknowledged that there was no express provision of the LP Act which mandated the dismissal of the second complaint.
• 31․ The primary judge recorded the various provisions of the LP Act relied upon by [the appellant], namely ss 395, 400, 413 and 423A, and that the term "dismissal" is used in the same way both in relation to summary dismissal under s 399 and in relation to a dismissal after an investigation under ss 410 and 412. She recorded that the submissions on behalf of the Law Society were that the provisions of the LP Act did not indicate that the complaints were absolutely barred and that the clear intent of the provisions was that any exclusion of complaints about lawyers from the scope of Ch 4 was to be very limited or exceptional. The Law Society also submitted that it would be contrary to the purposes of Ch 4 to interpret the LP Act as precluding complainants from making a second complaint where the first complaint had been dismissed without investigation.
• 32․ The primary judge did not find that summary dismissal under s 399 was a binding and conclusive determination that precluded the Law Society from dealing with the second complaint. That was for four reasons.
• 33․ First, s 399 permits dismissal without any investigation. That does not involve a positive finding about the conduct of the practitioner. There is no right of appeal under the LP Act. In contrast, a dismissal under s 412 occurs after an investigation, the practitioner has a right to make submissions and is accorded procedural fairness. Further, the power in s 412 can only be exercised after a finding has been made 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. Section 416 of the LP Act provides for a right of appeal in relation to decisions under Ch 4, specifically, the complainant has a right of appeal where a complaint is dismissed under s 412.
• 34․ Second, taking into account the purposes of Ch 4 of the LP Act as set out in s 384, the legislature cannot have intended that the dismissal of a complaint without investigation could bar an investigation of the same or similar matters raised in a later complaint supported by fresh evidence.
• 35․ Third, the limitations on the various sections referred to by counsel for [the appellant] were not necessarily consistent with a legislative intention to provide a once and for all process.
• 36․ Fourth, the primary legal authority relied upon by counsel for [the appellant], Kabourakis v Medical Practitioners Board of Victoria [2006] VSCA 301; 25 VAR 449, was not sufficiently analogous to be helpful.
• 37․ The primary judge then turned to consider the operation of s 399(1)(d), which 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. Counsel for [the appellant] submitted that the word "may" in s 399(1) should be interpreted as being mandatory. Notwithstanding that s 146(1) of the Legislation Act 2001 (ACT) provides that the use of "may" indicates a discretion, counsel submitted that a manifest contrary intention was disclosed in relation to s 399. He submitted that paras 399(1)(c) and (g) were examples where the subject matter of the paragraphs required the complaint to be dismissed. The opposing submission made on behalf of the Law Society was that the decision in Sullivan, which considered legislation in relevantly the same terms, found to the contrary.
• 38․ The primary judge accepted the submission made on behalf of the Law Society. Her Honour referred to the language used in s 399(2) where the Law Society "forms the view that the complaint requires no further investigation" and said that it does not operate as a threshold to deciding whether to investigate a complaint, but rather provides a discretion to dismiss a complaint. She indicated that this conclusion was consistent with the decision in Sullivan at [62], which she set out.
• 39․ Next, the primary judge discussed the possibility, referred to in Kabourakis at [69], of inconsistent findings resulting from the consideration of two complaints. Her Honour referred back to her earlier conclusion that dismissal of a complaint pursuant to s 399 does not result 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. Nor does it involve any finding as to whether or not it is in the public interest to dismiss the complaint.
• 40․ As a consequence, her Honour found that the first complaint was not final, binding or conclusive of the matters raised in the first complaint and there was no statutory prohibition on the making or investigation of the second complaint nor any mandatory obligation on the part of the Law Society to dismiss the second complaint.
• 41․ As a result, the Law Society was obliged, under s 406, to investigate each complaint. Because it decided that [the appellant's] conduct constituted professional misconduct, it could not take action in relation to the complaint under ss 410(1)(a) or 410(1)(b) of the LP Act, which allow for dismissal of the complaint under s 412 or the taking of summary disciplinary action under s 413. It took action under s 410(1)(c) by making the application to the ACAT pursuant to s 419 of the LP Act and her Honour said that she was satisfied that the Law Society had jurisdiction to make the application as it did.
• 42․ The primary judge then turned to consider the second question referred by the ACAT: whether or not the ACAT had jurisdiction to hear and determine the application. That application was filed pursuant to s 419 of the LP Act. Her Honour referred to the terms of ss 425 and 426 of the LP Act, which outline what the ACAT must do if it is satisfied or not satisfied that the practitioner is guilty of unsatisfactory professional conduct or professional misconduct. She accepted the submission made on behalf of the Law Society that there was nothing to suggest that any material or substantive difference is intended to be conveyed by the difference in language between the two provisions. It therefore followed that the ACAT had jurisdiction to hear and determine the application.

a) The Supreme Court erroneously construed provisions in Chapter 4 of the Legal Profession Act 2006 resulting in the answer given to Question (1) 'yes', that the respondent had jurisdiction to make an application to the ACT Civil and Administrative Tribunal with respect to charges against the appellant based on the same [or] substantially the same facts as alleged in an earlier complaint which the respondent had dismissed under paragraph 399(1)(b) as 'lacking in substance'. > > b) The Supreme Court erroneously conflated the distinction between the jurisdiction of the respondent to 'investigate' the second complaint with the jurisdiction of the respondent to bring charges against the appellant based on the same [or] substantially the same facts as alleged in an earlier complaint that it had dismissed under paragraph 399(1)(b) as 'lacking in substance'. > > c) The Supreme Court erroneously concluded that there was no complaint made about the conduct of [the appellant] in relation to [redacted] in the First Complaint and declined to infer that there was such a complaint. (Par. [46]) > > d) [redacted]. > > e) The Supreme Court erroneously considered conduct which was not the subject of the charges against the appellant. (Par. [48]) > > f) In consequence of the Supreme Court's construction of Chapter 4 and other matters outlined in the previous paragraphs, the Court erroneously answered Question (2) 'yes' that the ACT Civil and Administrative Tribunal had jurisdiction to hear the charges which the respondent brought before it.

• 44․ Part 4.2 of the LP Act is headed "Complaints about Australian legal practitioners and solicitor employees". Complaints may be made by anyone, including "a council": s 394. The reference to "a council" means the Bar Council or the Law Society Council. Where a complaint is made, s 399 provides a power for summary dismissal of the complaint as follows:
  1. Summary dismissal of complaints

(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.

• 45․ Section 400 provides that a complaint may be withdrawn by a complainant. This may occur even when an investigation has been started or where it has been finished: s 400(5). If a complaint is withdrawn, then "a further complaint about the matter that is the subject of the withdrawn complaint cannot be made unless the relevant council is satisfied that it is appropriate to make a further complaint in the circumstances": s 400(6). However, withdrawal of the complaint does not prevent a council itself making a complaint or action being taken on any other complaint properly made in relation to the matter: s 400(8).
• 46․ Part 4.3 of the Act is headed "Mediation". It contains a power for the relevant council to "suggest to the complainant and the person" who is the subject of the complaint "that they enter into a process of mediation": s 401. It then contains other provisions relating to such a mediation.
• 47․ Part 4.4 is headed "Investigation of complaints". Section 406 provides that the council must investigate each complaint properly made to it. The exceptions include a complaint that is dismissed or withdrawn or is the subject of mediation under other provisions of Ch 4.
• 48․ Part 4.5 is headed "Decision of Council". Section 410 provides:
  1. 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).

• 49․ Section 411 provides a power for a council to commence proceedings in the ACAT in certain circumstances under Pt 4.7 of the LP Act without starting or finishing an investigation of the complaint.
• 50․ Section 412 provides:
  1. 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.

• 51․ Section 413, which is headed "Summary conclusion of complaint procedure by fine etc", provides a power to the relevant council to dispose of the complaint by making certain orders itself without the necessity to make an application to the ACAT. Where that occurs, further action must not be taken under Ch 4 in relation to the complaint: s 413(7).
• 52․ Section 415 requires the giving of reasons for certain decisions, including a decision to dismiss a complaint, to make an application to the ACAT or to deal with the matter summarily under s 413.
• 53․ Section 416 provides for appeals from certain decisions. It allows a complainant to appeal from the dismissal of a complaint under s 412 and to appeal from the failure to include part of a complaint in an application to the ACAT. The provision also allows the legal practitioner to appeal against orders made under s 413.
• 54․ Part 4.7 is headed "Disciplinary action". Section 419 permits the relevant council to apply to the ACAT for an order in relation to a complaint against a practitioner. The application must include the charge of unsatisfactory professional conduct, professional misconduct or unsatisfactory employment conduct that the relevant council considers arises out of the complaint. The allegations in the application need not deal with all of the matters raised in the complaint, may deal differently with matters raised in the complaint and may deal with additional matters: s 422.
• 55․ Section 425 allows the ACAT, when it has "finished considering an application", to make orders in relation to legal practitioners where the ACAT is satisfied that the practitioner is guilty of unsatisfactory professional conduct or professional misconduct. Section 426 requires the ACAT, when it "has finished a hearing under this part", to dismiss a complaint if it is not satisfied that the practitioner is guilty of unsatisfactory professional conduct or professional misconduct.

• 56․ It is most efficient to first describe the operation of the scheme for complaints in Ch 4 of the LP Act and the manner in which the Act addresses the potential for there to be multiple complaints in relation to the conduct of a lawyer when an initial complaint about the same conduct has been dismissed under s 399. Particular features of the LP Act are then pointed to which indicate that this is how the Act should be interpreted as operating. After that, some of the specific arguments put by the appellant will be addressed. It will then be necessary to address the individual grounds of appeal.

Summary of operation of Ch 4 in relation to subsequent complaints

• 57․ A complaint may be made about the conduct of a legal practitioner by anyone, including a relevant council. It must be made to the relevant council.
• 58․ Section 399 provides a power of summary dismissal of complaints. The power is a discretionary one that may or may not be exercised. Where a complaint is dismissed pursuant to s 399, that fact alone does not preclude the subsequent making of a complaint about the same subject matter.
• 59․ Where a second complaint is made about the same subject matter, one of the powers available to the relevant council is to dismiss the complaint for that reason. That is the power provided by s 399(1)(d), which applies where "the conduct complained about has been the subject of a previous complaint that has been dismissed". Where an initial complaint was dismissed pursuant to s 399, the exercise of the discretion to dismiss under s 399(1)(d) will depend upon the circumstances of the case and the relationship between the first complaint and the second complaint. It will be influenced by which of the paragraphs of s 399(1) the dismissal occurred under. However, the fact that the first complaint had been found to be "vexatious, misconceived, frivolous or lacking in substance" will not be determinative of whether or not the second complaint should be dismissed pursuant to s 399(1)(d). If the second complaint is not dismissed, then (assuming that s 411 is not applicable) any investigation under s 406 will need to be commenced or continued until it is finished. Once the investigation is finished, the relevant council would need to make a decision under s 410.
• 60․ The operation of s 399(1)(d) means that it is for the relevant council to determine, in its discretion, the appropriate course to be adopted in relation to the second complaint. It is through that exercise of discretion that an appropriate balance is achieved between the public interest in ensuring that meritorious complaints are properly pursued and the interests of the legal practitioner in avoiding being oppressed by multiple complaints about the same conduct where an initial complaint has been dismissed.

Reasons for conclusions as to the operation of Ch 4 in relation to subsequent complaints

• 61․ The starting point is, therefore, that there is no express limitation in Ch 4 that would indicate that it was not open to the Law Society to make a complaint to the ACAT that included a charge relating to conduct that had previously been the subject of a complaint which was dismissed pursuant to s 399(1)(b).
• 62․ There are numerous features of the LP Act which indicate that subsequent complaints are contemplated by the Act and permitted to proceed, subject to the discretion of the relevant council under s 399. That aggregation of features will be described in more detail below. In summary, they are:

(a) the purpose of Ch 4;

(b) the absence of any express limit in s 394;

(c) section 399 contemplates discretionary dismissal of subsequent complaints;

(d) dismissal under s 399 does not necessarily involve a determination of the merits;

(e) the role of s 399 within the scheme;

(f) there is no right of appeal from a dismissal under s 399;

(g) there is no restriction on a council or another person making a complaint; and

(h) the manner in which complaints that are withdrawn are treated.

• 63․ One of the two express objects of the LP Act is "to provide for the regulation of legal practice 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": s 6(a). That object is largely repeated in relation to complaints and discipline in s 384(a). The other objects in s 384 emphasise professional honesty and competence, having a scheme for complaints and allowing people who are not lawyers to participate in that scheme.
• 64․ The scheme of Ch 4 is to empower relevant councils to take disciplinary action against lawyers arising from complaints made in relation to their conduct. There is nothing in the purpose of the Act or the text of Ch 4 which indicates any particular but unstated solicitude for the interests of lawyers who are the subject of complaints.

• 65․ Section 394 is the provision which empowers the making of complaints under the Act. It creates a wide gateway for complaints. There is no express limit in s 394 upon the number of complaints that may be made in relation to any particular conduct. That means that there is no express limit on the number of times that an individual may make a complaint about specific conduct of a particular lawyer. Nor is there any limit upon a second complainant making a subsequent complaint about the same conduct of a particular lawyer that has already been the subject of a first complaint by a different person.

Section 399 contemplates discretionary dismissal of subsequent complaints

• 66․ The text of s 399 itself is inconsistent with there being any mandatory limitation upon how the relevant council deals with a second complaint in circumstances where a first complaint about the same conduct of a particular lawyer has been dismissed under s 399.
• 67․ Section 399(1)(d) provides, as one of the grounds for dismissal of complaints, the fact that the conduct complained about has been the subject of a previous complaint that has been dismissed. The power in s 399(1) is, on its face, a discretionary power. The existence of para (d) is a powerful indication that the summary dismissal of a first complaint does not prevent a subsequent complaint in relation to the same matter. That is because the existence of a discretion indicates that it would be open to the relevant council to proceed with a complaint notwithstanding that the conduct complained of had been the subject of a previous complaint.
• 68․ That means that para (d) empowers a discretionary decision to dismiss a complaint if the conduct complained about has been the subject of a previous complaint that has been dismissed. The giving of a discretion to the relevant council is an understandable legislative arrangement, having regard to the purpose of the LP Act. For example, an earlier complaint about particular conduct may have been made by person A in terms which were somehow misconceived or premature and, as a result, dismissed under para (b). If person B, who was also affected by the conduct, subsequently made a further and separate complaint that was a coherent and apparently well-founded one, the relevant council would be able to investigate it. On the appellant's construction of s 399(1), notwithstanding the gravity or apparent merit of the subsequent complaint, the later in time complaint would have to be dismissed as soon as the relevant council discovered that it related to the same conduct as the earlier dismissed complaint. Such an interpretation would give rise to manifest inconvenience and would clearly be an inappropriate interpretation having regard to the obligation of the court to interpret the LP Act in a way that best achieves its purpose: Legislation Act, s 139.

Dismissal under s 399 is not necessarily a determination on the merits

• 69․ In the present case, the first complaint was dismissed because it "lacked substance". The power in s 399(1)(d) is a significant power for the Law Society. That is because each of the other grounds for summary dismissal are quite specific. If a complaint is not dismissed, withdrawn, subject to mediation or referred to another council, then s 406 requires the complaint to be investigated. That may require the appointment of an investigator: s 407. The position that appears to have been adopted by the Law Society was that a complaint may lack substance not only because it can be assessed as lacking substantive merit, but also because the involvement of the Law Society at that stage would be premature or otherwise inappropriate. The letter sent to the complainant reporting the dismissal of the complaint included:

• 6․ The Committee noted that this matter involves [redacted], in respect of which the Law Society should not be involved at this stage.

• 8․ It is the view of the Committee that when the dispute is finalised you may wish, upon instructions, to file your complaint regarding breach of Rule 4.1.2. If so the Committee will consider your concerns at that time.
• 70․ The Law Society was correct in adopting an interpretation of the expression "lacking in substance" as extending to circumstances where the complaint may be premature because there are other dispute resolution processes under way and without the result of those processes being known, the complaint is not shown to have substance.
• 71․ Because reaching a conclusion that a complaint is "lacking in substance" extends beyond a conclusion that a fully articulated and documented complaint is without any substantive merit, the scheme is consistent with permitting subsequent complaints to form the basis of action by the Law Society, even where the subsequent complaint relates to conduct the subject of a complaint that has been dismissed under s 399(1)(b). The Law Society would retain a discretion to dismiss the subsequent complaint under para (d), but would not be compelled to do so.
• 72․ The same reasoning would also apply in relation to a complaint which was "misconceived". An unrepresented person might make a complaint about the conduct of a solicitor which is legally misconceived. It may be dismissed by the Law Society on that basis. If the person subsequently obtained legal assistance, that may allow a complaint relating to the same conduct to be framed in a manner which is not legally misconceived. The Law Society would retain a discretion to dismiss the second complaint under para (d), but would not be compelled to do so. Such an interpretation is consistent with the apparent purpose of the legislation. On the other hand, an interpretation which precluded a subsequent complaint or compelled the Law Society to investigate misconceived complaints because of the final nature of a dismissal under s 399 would not be consistent with the statutory purpose.

• 73․ Treating a dismissal under s 399 as having different consequences from other forms of dismissal under the LP Act is consistent with the structure of the scheme for complaints. Section 399 allows summary dismissal of a complaint either before any investigation has commenced or before an investigation is concluded. That is in contrast with a dismissal under s 412, which occurs only after an investigation is completed and only if the relevant council is satisfied either that there is no reasonable likelihood that the practitioner would 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. By the time a matter reaches the ACAT, the relevant council is required to particularise the allegation made against the practitioner: s 419(3). A dismissal under s 426 occurs only after there has been a hearing in the ACAT. The level of investigation of the merits of the complaint under both ss 412 and 426 is substantially different to that which is required to occur for the purposes of s 399.
• 74․ It is appropriate to have regard to the various stages of the complaint process in determining the consequences of a dismissal under s 399. The staged nature of the process and the fact that dismissal under s 399 can occur prior to any investigation and prior to the formal processes involved in an application to the ACAT mean that it is not inconsistent with the scheme to attribute a lesser degree of finality to a dismissal under s 399 than to a dismissal at later stages of the process.

There is no right of appeal from a dismissal under s 399

• 75․ The manner in which the statute addresses a dismissal under s 399 on the one hand and a dismissal under ss 412 or 426 on the other is a statutory indication of different treatment of those different forms of dismissal. Section 399 is a summary dismissal by the relevant council. A dismissal under s 412 is a dismissal by the relevant council which takes place after an investigation is concluded. A dismissal under s 426 is a dismissal by the ACAT which occurs after a hearing in the ACAT. No right of appeal is provided to a complainant in relation to a dismissal under s 399. That contrasts with the provision of a right of appeal to a complainant whose complaint is dismissed under s 412 (see s 416), and with the provision of a right of appeal from the dismissal of a complaint by the ACAT under s 82 of the ACAT Act.
• 76․ For at least some of the paragraphs of s 399(1), the reasons for dismissal are matters which may be cured by improving the form of the application, including additional information or awaiting subsequent events. Section 82 of the ACAT Act permits the ACAT to receive further evidence on appeal. The absence of an entitlement to appeal against a summary dismissal in these categories of cases is consistent with a legislative intent to permit, subject to the exercise of discretion under s 399(1)(d), subsequent complaints to be made by the original complainant.

No restriction on a council or another person making a complaint

• 77․ Section 394 permits a complaint to be made by a council or a person. That means that after an initial complaint is made and dismissed, there is the potential for there to be a later complaint either by another person or by the relevant council itself. The fact that there may be different complainants making complaints about the same conduct of a legal practitioner strongly supports the proposition that the dismissal of a first complaint does not require the dismissal of all subsequent complaints about the same conduct. The capacity to entertain subsequent complaints if, as a discretionary matter, that is appropriate, allows the relevant council to address the substance of the issue in question. That is obviously consistent with the purpose of the legislation and the sensible operation of a regulatory scheme.
• 78․ The alternative is that if a first complaint about particular conduct of a particular lawyer is dismissed under s 399, any or all subsequent complaints about that particular conduct of that particular lawyer must also be dismissed. That would mean that, so far as subsequent complainants are concerned, their interests in making a complaint could be extinguished by the dismissal of an earlier complaint made by a different complainant. That earlier complaint might have been completely misconceived, vexatious or incoherent. Nevertheless, the dismissal of that complaint would immunise the lawyer from any disciplinary consequences flowing from the subsequent complaints. It would, in effect, remove any substance from the right to complain given under s 394 in circumstances where a complainant only acted after an earlier complaint had been dismissed. Such an approach would be contrary to the purpose of the scheme.

The manner in which complaints that are withdrawn are treated

• 79․ The provisions in relation to withdrawal of a complaint in s 400 do not support the appellant's interpretation of the scheme. Although the provisions do not relate to the "dismissal" of a complaint, they do not indicate a statutory scheme which provides a "once only" approach to complaints about the particular conduct of a lawyer.
• 80․ Section 400 permits a complainant to withdraw a complaint. That may happen even where an investigation has been carried out and completed: s 400(5). Under s 400(6), a withdrawn complaint is a prima facie bar to a subsequent complaint "unless the relevant council is satisfied that it is appropriate to make a further complaint in the circumstances". Not only is there a capacity for the original complainant to make another complaint if the relevant council is satisfied that it is appropriate to do so in the circumstances, but also s 400(8) permits the council itself to make a complaint or permits action to be taken on any other complaint properly made in relation to the matter. On its face, the scheme in relation to withdrawal of complaints places an emphasis upon the public interest in meritorious complaints over the interest in finality arising from withdrawal. It does not support the appellant's submissions about the operation of s 399. On the contrary, placing the relevant council as the gatekeeper for subsequent complaints in s 406 is consistent with the approach to s 399(1)(d) described earlier.

• 81․ The principal submissions made on behalf of the appellant lack an appropriate connection to the text used by the legislature. The starting point and overarching theme of the appellant's submissions is an emphasis on finality which is not reflected in the text of the statute. Particular submissions made by the appellant are addressed below.

The very nature of taking disciplinary action is not one ordinarily capable of being exercised more than once. The Act sets out a detailed scheme of complaint, notification, summary decision, mediation, investigation, and decision including as part of the decision making an application to ACAT. That suggests a complete and a 'once and for all' process designed to achieve finality.

• 83․ This proposition was developed by reference to very generalised notions of a process of professional discipline rather than by reference to the terms of the LP Act. The general proposition was that a disciplinary process, once brought to a conclusion, should not be able to be repeated or reopened. To do so would be understood, by the professional person and the courts, as being oppressive. As a consequence, courts should be reluctant to adopt such an interpretation.
• 84․ While the broad rhetorical sweep of the submissions made on behalf of the appellant may sound attractive, they are not appropriately anchored in the text of the statute being interpreted. Courts will generally be slow to attribute to a legislature a scheme of regulation which is "oppressive". However, care must be taken to avoid placing too much weight on assumptions about what might be an appropriate legislative model in preference to a detailed examination of the text of the statute understood in its total context.
• 85․ Of particular significance in relation to the rejection of this argument is the position of s 399 within the scheme of the LP Act. The fact that it is a summary procedure undertaken prior to the completion of an investigation into a complaint does not support an implication of finality when considered against the indications to the contrary in the statutory text referred to earlier.

• 86․ The appellant submitted that a "dismissal" under s 410 is the same as a dismissal under s 399: "Dismissal under one section results in a decision which is no less final than dismissal under the other."
• 87․ This submission appeared to be predicated on the proposition that a dismissal by the relevant council under s 410 of the LP Act is a final decision, which cannot be the subject of a further complaint. Section 413(7) of the LP Act potentially points against such a construction. It states that "If action is taken under subsection (2)" (including a caution, reprimand, fine, compensation order or other direction) "further action must not be taken under this chapter in relation to the complaint". The absence of an equivalent provision in relation to a dismissal under s 410 may suggest that a dismissal under s 410 is not intended to be preclude the relevant council from considering a further complaint about the same subject matter.
• 88․ It is unnecessary to resolve that issue in these proceedings. Even if it is accepted that a dismissal under s 410 precludes the consideration of any further complaint relating to the subject, the proposition that the word "dismiss" in ss 399 and 410 must carry the same meaning cannot be accepted.
• 89․ It may be accepted that, generally speaking, a word used in a statute will have the same meaning throughout: Craig, Williamson Proprietary Limited v Barrowcliff [1915] VicLawRp 66; [1915] VLR 450 at 452. However, this principle of construction must give way when there are other indications in the text, context and purpose of the provision which indicate to the contrary: Commissioner of Taxes (Vic) v Lennon [1921] HCA 44; (1921) 29 CLR 579 at 590.
• 90․ The text, context and purpose of the LP Act each indicate that the term "dismissal" in s 399 is not intended to be precisely the same as a dismissal under s 410. The terms of the LP Act indicate that dismissal under s 399 is to operate as a preliminary filtering process. The Act includes provisions which indicate that subsequent complaints may be made about the same conduct, but will themselves be subject to a filtering process. The filtering process is a discretionary exercise and the legislature has trusted the relevant council to exercise its discretion in a sensible way consistent with the legislative scheme. The statute does not treat a dismissal under s 399 in the same way and, having regard to the summary nature of the exercise, there is no reason that it should.
• 91․ Some of the submissions made on behalf of the appellant tended to adopt language that treated dismissal of complaints under the LP Act in the same way as a dismissal of court proceedings. Care needs to be taken not to characterise statutory processes by reference to common law concepts associated with the finality of judicial decisions. Axiomatically, the incidents of such processes are determined by the statute itself.

• 92․ The appellant placed significant emphasis upon the decision of the Victorian Court of Appeal in Kabourakis. The case related to a panel of the Medical Board that had discovered, after having dismissed a complaint, that it had failed to take into account a significant piece of expert evidence that had not been given to the members of the panel. The issue was whether or not the Board had power to reopen its decision to dismiss the complaint. The Court of Appeal decided, having regard to the particular Victorian legislation in question, that it did not. That decision does contain some language which has been picked up in subsequent cases. Nettle JA, who wrote the principal judgment, was considering whether the Board could revisit its own decision simply because it had changed its mind or recognised that it had made an error within jurisdiction. His Honour said (at [48]):

More often [than] not, the requirements of good administration and the need for people affected directly or indirectly by decisions to know where they stand mean that finality is the paramount consideration, and the statutory scheme, including the conferring and limitation of rights of review on appeal, will be seen to evince an intention inconsistent with capacity for self correction of non-jurisdictional error. In the bulk of cases, logic and common sense so much incline in favour of finality as to permit of no other conclusion.

• 93․ The primary judge concluded (at [60]) "I did not find the primary legal authority relied on by counsel for [the appellant] to be sufficiently analogous to be helpful". We agree. First, as is clear from the passage cited above, Kabourakis concerned a reopening for the purposes of "self-correction" by the Board. The present case concerns quite a different question, namely whether the relevant council may consider a second complaint, having summarily dismissed a previous complaint. More importantly, the statutory context considered in Kabourakis differs considerably from the present case. In particular, unlike the present case, which concerns a summary dismissal of a complaint, the decision in Kabourakis concerned a finding of the Board that the practitioner had not engaged in unprofessional conduct, which followed a contested hearing in which Dr Kabourakis was questioned by the Board. The statutory context of the finding in Kabourakis (including, but not limited to, the nature of the hearing which preceded the finding, and provisions concerning appeals from the finding) differs in significant respects to the context of s 399 of the LP Act.

Section 399 mandated dismissal of later complaints

• 94․ During the hearing of the appeal, counsel for the appellant clarified that his contention was not that the reference to "may" in s 399 was the subject of a manifest contrary intention that turned it into a "must". Rather, the position appeared to be that while the issue of when to exercise the power was discretionary, once the relevant council has reached the view that the conduct of the subject matter of a second or subsequent complaint is the same as that in the first complaint, there is then no discretion and the second or subsequent complaint must be dismissed under s 399(1)(d). It therefore put para (d) in the same position as para (g), which required the dismissal of a complaint that the council did not have power to deal with. However, for the purposes of this argument, it was necessary to look outside s 399 in order to locate the statutory implication which required, rather than permitted, the dismissal of a complaint in circumstances where an earlier complaint about the same subject matter had been dismissed. Thus, the argument depended upon the merits of the other arguments about the context in which s 399 operated. As indicated in relation to those other points, the text of the balance of the statute does not give rise to the implication for which the appellant contended.

The anomalous results of the appellant's interpretation

• 95․ One of the consequences of the interpretation put forward on behalf of the appellant was that a dismissal under s 399 would have the effect of immunising the lawyer in question from any subsequent complaint about the same conduct, even if it was made by another person or by a council itself. A council that was concerned not to be precluded from subsequent action would be encouraged to investigate complaints which were unclear or appeared to lack substance so as to ensure that later action with respect to the conduct was not foreclosed. Encouraging, as a matter of routine, an exhaustive investigation of all complaints, even if they appeared to be misconceived or lack substance, rather than their discretionary filtering, would appear to inhibit the sensible operation of a system of regulation and create a tension with s 417(2), which imposes an obligation upon a council to "deal with complaints as efficiently and quickly as practicable".

• 96․ If, as the appellant contended, there was an obligation to terminate a second or subsequent complaint as soon as the relevant council determined that it concerned the same conduct as a first complaint, determining the precise scope of the conduct the subject of the first complaint would be a significant issue. As illustrated by the circumstances of this case, the power of the Law Society to proceed with an application to the ACAT would turn upon whether the conduct the subject of the complaint (or the charge brought in the ACAT) was the same as that which had been the subject of the complaint that was previously dismissed. Given that complaints may be expressed with a greater or lesser degree of precision and a letter may refer to facts that are not themselves the subject of the complaint, there is enormous potential for arid arguments about precisely whether or not it is open to a council to bring a particular application to the ACAT.
• 97․ An example is provided by the submissions made in the present case about precisely what was or was not the subject matter of the first complaint. Having the scope of the disciplinary powers of the Law Society or Bar Council turn on the outcomes of such debates rather than on a sensible discretionary decision as to whether or not investigation of a subsequent complaint was appropriate in all the circumstances is very unlikely to have been the legislative purpose. It is certainly not indicated by the text of the Act. As pointed out earlier, the text of the Act indicates a process which allows a pragmatic discretionary decision as to whether or not a second or subsequent complaint should be dismissed because of the dismissal of an earlier complaint. That is consistent with the purpose of a disciplinary scheme which is designed to protect the public and ensure proper standards within the legal profession.

• 98․ This ground is a global contention that the primary judge reached the wrong answer as to the power of the Law Society to make an application to the ACAT in relation to charges based on the same or substantially the same facts as alleged in a complaint which had been dismissed under s 399(1)(b) as lacking in substance.
• 99․ For the reasons given earlier, the primary judge gave answers which were correct. None of the specific errors alleged in the appellant's written submissions are established.

(a) The appellant contended that the primary judge (at [55]) gave no consideration to the importance of finality as part of the purpose of the Act as discussed by Nettle JA in Kabourakis. As pointed out earlier, while the general principle in Kabourakis can be accepted, the case is not sufficiently analogous to support an assumption that finality rather than effective regulation was the goal of the legislature.

(b) The appellant contended that the primary judge erred at [58] of her Honour's reasons because she gave no reason or basis in the statute why a summary dismissal under s 399 was different to a dismissal after investigation under s 412. It was submitted that a summary dismissal is a finding on the merits and thereby a final decision. However, as pointed out above, the consequences of dismissal depend upon the place of s 399 within the legislative scheme. Section 399 is a power of summary dismissal, undertaken without the completion of an investigation and does not necessarily reflect a substantive determination of the merits. Further, s 399 expressly contemplates the making of subsequent complaints and provides a discretion to dismiss them. In those circumstances, there is a proper basis in the context of the statute to draw a distinction between a dismissal under s 399 and a dismissal after investigation or after a hearing before the ACAT.

(c) The appellant submitted that, contrary to the primary judge's reasoning at [69], it is not obvious why the dismissal of a matter under s 399 as "lacking in substance" is not an emphatic conclusion that the ACAT would not find a disciplinary offence proven. If a tribunal did find an offence proven, then that would give rise to inconsistent findings. This submission, once again, treats all processes by which complaints may be dismissed as equivalent. For the reasons given earlier, that proposition is not consistent with the statutory scheme.

Ground (b): jurisdiction to 'investigate' vs jurisdiction to bring charges

• 101․ This ground of appeal is said to arise from paragraphs [66] and [72] of the primary judge's reasons. Those paragraphs of her Honour's reasons provide:

• 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.

• 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.
• 102․ The appellant submitted that "Whether a complaint is investigated or not does not answer the question about whether there is jurisdiction to then proceed on the same matter twice."
• 103․ This submission appears to be making the point that there may be power to investigate a complaint at least up to the point where it can be determined that it relates to the same subject matter of an earlier complaint that has been dismissed. At that point, according to the submission, the Law Society was obliged to dismiss the complaint because of the earlier dismissal under s 399(1)(b). This submission is still dependent upon the proposition that the filtering process under s 399(1)(d) compels dismissal of a subsequent complaint. For the reasons given earlier, that is not the case. The paragraph permits but does not compel the dismissal of a previous complaint that has been dismissed. Whether or not it should be dismissed needs to be considered in the particular circumstances of the case, having regard to the overall purpose of the regulatory scheme.
• 104․ This ground of appeal is not made out.

Ground (c): complaint in relation to [redacted]

• 105․ This ground asserts error in relation to the primary judge's finding that the first complaint did not relate to [redacted] (primary judgment at [46]):
  • 46․ There was no complaint made about the conduct of [the appellant] in relation to [redacted] in the First Complaint, and I decline to infer that such a complaint was made.
• 106․ It is unnecessary to address this ground of appeal. That is because, having regard to the interpretation of s 399(1)(d), even if the two complaints related to the same conduct, that fact would not compel the dismissal of the second complaint. As pointed out earlier, the Act does not require such a technical analysis of the subject matter of individual complaints. Rather, it confers a discretion to dismiss on the relevant council. Whether or not the two complaints covered the same or substantially the same conduct would not alter the fact that the correct answer to each of the questions referred was "Yes".

• 109․ This ground of appeal also relates to the issue of whether or not the two complaints related to the same or substantially the same conduct. [redacted]. For the reasons given in relation to ground (c), it is unnecessary for this court to determine this ground of appeal because it would not affect the fact that the correct answer to each of the questions referred was "Yes".

Ground (e): consideration of irrelevant material

• 110․ This ground asserts that the primary judge erred by considering conduct by the appellant that was not the subject of the charges against the appellant. This relates to her Honour's consideration of the appellant's conduct following the dismissal of the first complaint. Her Honour said (at [48]):
  • 48․ [redacted].

• 112․ For the reasons given in relation to grounds (c) and (d), it is unnecessary to resolve this ground of appeal.

• 113․ The primary judge determined that the ACAT had jurisdiction to hear and determine the application made to it. This ground of appeal is dependent upon the success of the earlier grounds of appeal. Given that those grounds of appeal have been rejected or are unnecessary to resolve because they make no difference to the correctness of the answers given by the primary judge, it follows that the ACAT had jurisdiction and, as a consequence, this ground of appeal must also be rejected.

• 114․ Having regard to the rejection of each of the grounds of appeal which it is necessary to address, the appeal must be dismissed.

• 115․ The parties agreed that there were no provisions of the LP Act which affected the court's powers in relation to costs. Both parties agreed that there was no reason why costs would not follow the event. Having regard to the fact that the appeal will be dismissed, it is appropriate to order that the appellant pay the respondent's costs of the appeal.

• 116․ For those reasons, the orders of the Court are:
  1. The appeal is dismissed with costs.

I certify that the preceding one hundred and sixteen [116] numbered paragraphs are a true copy of the Reasons for Judgment of the Court.

18 June 2024 Replace "requires" with "may require" Page 14 at [69], fifth sentence.