SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Legal Practitioner v Law Society of the Australian Capital Territory

[2018] ACTSC 351

COURTS AND JUDICIAL SYSTEM - BIAS AND RECUSAL - Bias of individual judges - Bias on an institutional basis - Whether relationship between the Court and the Law Society creates apprehended bias

LEGAL PROFESSION - DISCIPLINARY PROCEEDINGS - When the Law Society commenced proceeding to remove the practitioner from the local roll - When the proceeding commenced before finalisation of appeals against the ACAT's findings - Whether the proceeding was validly instituted

LEGAL PROFESSION - DISCIPLINARY PROCEEDINGS - Disclosure of identity of the practitioner - Section 423A of Legal Profession Act 2006 (ACT)

Legal Profession Act 2006 (ACT) ss 423A, 431, 558(1), 576(1)

Supreme Court Act 1933 (ACT) ss 3(2), 4A, 4B

Bainton v Rajski (1992) 29 NSWLR 539

Cameron v Role [1944] HCA 5; (1944) 68 CLR 571

Council of the Law Society of the ACT v The Legal Practitioner 'X' (Occupational Discipline) [2012] ACAT 34

Council of the Law Society of the ACT v The Legal Practitioner 'X' (Occupational Discipline) [2012] ACAT 60

Council of the Law Society of the ACT v The Legal Practitioner 'Y' (Occupational Discipline) [2012] ACAT 40

Council of the Law Society of the ACT v The Legal Practitioner 'Y' (Occupational Discipline) [2013] ACAT 8

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337

GAR v A-G (NSW) [2017] NSWCA 47

Law Society of the ACT v Powrie [2017] ACTSCFC 4; 12 ACTLR 184

Legal Practitioner v Council of the Law Society of the ACT [2015] ACTSC 316; 303 FLR 17

Legal Practitioner v Council of the Law Society of the ACT (No 2) [2015] ACTSC 317

Legal Practitioner v Council of the Law Society of the ACT [2016] ACTCA 46

Legal Practitioner v Council of the Law Society of the ACT (No 2) [2016] ACTCA 67

Legal Practitioner v Council of the Law Society of the ACT (No 3) [2017] ACTCA 25

Legal Practitioner v Council of the Law Society of the ACT [2018] ACTCA 19

Legal Practitioner v Council of the Law Society of the ACT [2018] ACTCA 26

Legal Practitioner v The Council of the ACT Law Society [2017] HCASL 2

Legal Practitioner v The Council of the Law Society of the ACT [2018] HCASL 339

Legal Practitioner v The Council of the Law Society of the ACT [2018] HCASL 340

Livesey v NSW Bar Association [1983] HCA 17; (1983) 151 CLR 288

Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; 244 CLR 427

Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17; 205 CLR 507

New South Wales v Kable [2013] HCA 26; 252 CLR 118

Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342

Re Polites; Ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78

The Legal Practitioner DC v The Law Society of the ACT [2017] ACTCA 32

Waterhouse v Independent Commission Against Corruption [2015] NSWCA 300

1. In the substantive proceeding, the Law Society of the ACT (Law Society) asks the Court to accept a recommendation of the ACT Civil and Administrative Tribunal (ACAT) that the legal practitioner's name be removed from the roll pursuant to s 431(3) of the Legal Profession Act 2006 (ACT) (LPA). That proceeding will be heard by the Full Court.

2. By an application lodged on 24 August 2018, the practitioner seeks orders that:

(a) This application be heard by an interstate judge.

(b) The Law Society's substantive application be dismissed or, alternatively, the hearing date be vacated and the associated directions be revoked.

(c) On this application, the legal practitioner be permitted to respond to the Law Society's submissions in reply.

(d) The application before the Full Court be heard by a bench consisting only of interstate judges.

(e) The country name relating to the practitioner published in the judgment of ACTCA 50 of 2015 be amended to read "the foreign country".

3. In relation to (c), I allowed the practitioner to orally address the critical aspects of the Law Society's submissions. Further, I note that the practitioner lodged written submissions in reply prior to the hearing.

4. Between 2010 and 2012, the ACAT heard and determined two disciplinary matters affecting the legal practitioner.

5. In the first matter, the Law Society made the following allegations against the practitioner:

(a) Ground 1 - Failure to properly and promptly discharge his client's retainer;

(b) Ground 2 - Engaging in misleading conduct;

(c) Ground 3 - Engaging in threatening and intimidating conduct.

6. The ACAT found the practitioner guilty of unsatisfactory professional conduct with respect to Ground 1, and professional misconduct with respect to Grounds 2 and 3: Council of the Law Society of the ACT v The Legal Practitioner 'X' (Occupational Discipline) [2012] ACAT 34. The ACAT ordered that the practitioner not be granted a local practicing certificate for three months, and recommended that his name be removed from the local roll: Council of the Law Society of the ACT v The Legal Practitioner 'X' (Occupational Discipline) [2012] ACAT 60.

(a) Ground 1 - Failure to act with competence and diligence;

(b) Ground 2 - Failure to administer a practice efficiently and properly;

(c) Ground 3 - Failure to act honestly and fairly; and

(d) Ground 4 - Failure to be open and frank in his dealings with the Law Society, and engaging in misleading and deceptive conduct.

8. The ACAT found the practitioner guilty of unsatisfactory professional conduct with respect to each of Grounds 1-3, and professional misconduct with respect to Ground 4: Council of the Law Society of the ACT v The Legal Practitioner 'Y' (Occupational Discipline) [2012] ACAT 40. The ACAT recommended that the practitioner's name be removed from the local roll: Council of the Law Society of the ACT v The Legal Practitioner 'Y' (Occupational Discipline) [2013] ACAT 8.

9. The practitioner appealed against the ACAT's findings and recommendations in both matters. Both appeals were dismissed by Burns J: Legal Practitioner v Council of the Law Society of the ACT [2015] ACTSC 316; 303 FLR 17 (first matter), and Legal Practitioner v Council of the Law Society of the ACT (No 2) [2015] ACTSC 317 (second matter).

10. The practitioner appealed to the Court of Appeal. The Law Society obtained an order from Robinson AJ requiring the practitioner to provide security for costs in the total sum of $80,000.00: Legal Practitioner v Council of the Law Society of the ACT [2016] ACTCA 46. Other orders associated with the security for costs order were self-executing. In particular, if the practitioner failed to provide the requisite security, the appeals would be deemed to have been dismissed: at [43].

11. The practitioner failed to comply with these orders. Instead, he sought special leave to appeal to the High Court.

12. In December 2016, the practitioner made an application asking, among other things, that the orders made by Robinson AJ be stayed pending the High Court appeal. Elkaim J concluded that, in effect, the practitioner was seeking an extension of time within which to lodge security for the costs of the appeals: Legal Practitioner v Council of the Law Society of the ACT (No 2) [2016] ACTCA 67 at [14]. Having concluded that he had no power to alter Robinson AJ's order (at [16]), Elkaim J ordered that enforcement of the costs order be stayed until 28 days after any decision by the High Court on the special leave application. In the course of doing so, his Honour made an adverse comment concerning allegations that the practitioner made in the proceedings before him: at [9].

13. On 2 February 2017, the High Court refused the practitioner's special leave application: Legal Practitioner v The Council of the ACT Law Society [2017] HCASL 2.

14. As the practitioner had failed to comply with the order to provide security for costs, the substantive appeals from Burns J's decisions were deemed to have been dismissed.

15. On 16 February 2017, the Law Society commenced the present proceeding (SC 44 of 2017) seeking orders removing the practitioner from the local roll, relying on the ACAT's findings, as upheld by Burns J.

16. On 31 March 2017, the practitioner filed a further application, seeking to vary the time limit for providing the security. On 17 May 2017, the practitioner paid the sum of $80,000.00 to the Registrar.

17. On 25 May 2017, Robinson AJ varied his original order by extending the time limit: Legal Practitioner v Council of the Law Society of the ACT (No 3) [2017] ACTCA 25. The practical effect was that the two appeals from Burns J's decisions were resurrected.

18. On 12 July 2017, Mossop J conducted a directions hearing for both the appeals and the current Full Court proceeding. The practitioner sought to have the Full Court proceeding dismissed. Mossop J declined that application: The Legal Practitioner DC v The Law Society of the ACT [2017] ACTCA 32. The practitioner considers that Mossop J should have dismissed the application to remove him from the roll of practitioners because the subject matter of that application was the subject of the revived appeals before the Court of Appeal.

19. In June 2018, the Court of Appeal (Mossop and Collier JJ and Robinson AJ) dismissed the appeals against the decisions of Burns J: Legal Practitioner v Council of the Law Society of the ACT [2018] ACTCA 26 (first matter) and Legal Practitioner v Council of the Law Society of the ACT [2018] ACTCA 19 (second matter).

20. The practitioner sought special leave in the High Court to appeal against both Court of Appeal decisions.

21. On 24 August 2018, the practitioner made the application currently before me.

22. On 14 November 2018, the High Court refused special leave in both matters: Legal Practitioner v Council of the Law Society of the ACT [2018] HCASL 339 (dismissing [2018] ACTCA 26]) and Legal Practitioner v Council of the Law Society of the ACT [2018] HCASL 340 (dismissing [2018] ACTCA 19).

23. As to the manner with which Burns J dealt with his matters, the practitioner stated that he is "certain that his Honour was uninterested in [his] submissions and was determined to side with the Tribunal and the ACT Law Society 100%". The practitioner said that Burns J had made inconsistent orders regarding the requirements for filing of a notice of appeal and should not have adjourned the proceedings from 10 April 2017 to 31 July 2017 on the application of the Law Society. The practitioner said that he had formed the impression that Burns J was "very keen to always side" with the Law Society.

24. As to the manner with which Mossop J dealt with the appeal matters, the practitioner said that he had formed the view that his Honour considered that the practitioner "was deliberately trying to delay the finalisation of the matters". The practitioner complained that Mossop J would not make minor variations to amend the notice of appeal and required the practitioner to file an application and pay the associated fee. The practitioner formed the opinion (partly based on an interpretation of body language, including the avoidance of eye contact) that Mossop J disliked him.

25. The practitioner contended that Elkaim J should not hear the appeal because of overstatements that his Honour had made at the directions hearing in December 2016.

26. The practitioner expressed concerns that all judges of this Court feel themselves beholden to the Law Society. The practitioner submitted that the Law Society organises itself "in such a way to win over the ACT judiciary towards the ACT Law Society", including by organising receptions for newly appointed and retiring members of the judiciary and for ceremonial sittings. He is concerned that the Law Society is consulted in relation to judicial appointments. In relation to a member of the ACAT, he noted that they had considered a complaint against him as a member of the Council of the Law Society and then dealt with the Law Society disciplinary proceedings against him in the ACAT. He noted that some members of the judiciary were members of the Law Society before they were appointed and may become members of the Law Society when they retire. The practitioner submitted that:

I am absolutely certain that it is impossible for me to obtain a fair and just trial in the ACT. In my ACT Supreme Court and the ACT Court of Appeal appeals the judiciary took the side of the ACT Law Society.

27. In general, the practitioner feels that his concerns are confirmed by the fact that many decisions of this Court have favoured the Law Society rather than him.

28. The practitioner's first submission was that I should disqualify myself from hearing the substantive application (that the Full Court bench be constituted only by interstate judges) because of actual or apprehended bias.

(a) First, I failed to provide redress in response to a written request that he made in April 2017 for the appointment of interstate judges to hear his appeals. Instead, he received a reply from the Registrar suggesting that his allegations be the subject of a complaint to the Judicial Council.

(b) Second, I am involved with the Admissions Board.

(c) Third, I am the head of jurisdiction of a Court that has treated him poorly, and he infers that I will treat him poorly.

30. The test for disqualification for apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question that the judge is required to decide: Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; 244 CLR 427 at [31] (Michael Wilson).

31. The application of the test requires identification of what it is said might lead a judge to decide a case other than on its merits. Second, there must be an articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at [8]. In the case of alleged pre-judgement, it is necessary to examine what the judge has decided in the past and what the judge is required to decide in the instant case: Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17; 205 CLR 507 at [72].

32. In relation to actual bias by pre-judgement, this requires an assessment of the state of mind of the judge in question, primarily on the basis of what they have said and done: Michael Wilson at [33].

33. I declined to recuse myself from hearing the application.

34. The practitioner is of the view that the Law Society is negatively disposed towards him and, more significantly, that the Court is beholden to the Law Society. The practitioner's view of the Law Society's attitude to him may well be correct. However, his perception that the Court is beholden to the Law Society is unsupported. The Court maintains the usual cordial professional relationship between a court and a local profession. On occasions, the profession may host members of the judiciary. On other occasions, senior members of the profession may be hosted by the judiciary. Members of the judiciary may conduct lectures for the Law Society but, contrary to the practitioner's perception, the judiciary is not paid for any such service. At most, a token small gift is provided. The fact that, in an earlier or later life, a judge may have been or may become a member of a large, leading professional organisation is incapable of giving rise to a reasonable apprehension of partiality.

35. To a fair-minded lay observer, the 2017 correspondence would not suggest that I had any view about the practitioner's complaints. No view was stated and none could be imputed to me based on the Registrar's correspondence.

36. As to the practitioner's second concern, the Admissions Board is a statutory body separate to the Law Society: ss 558(1) and 576(1) of the LPA. Furthermore, while I am responsible for appointing members to the Admissions Board, I am not a member of the Board, nor do I attend its meetings or participate in its activities. A fair-minded lay observer could have no legitimate apprehension of partiality by reason of the fact that I appoint Board members.

37. Apart from the brief correspondence in 2017, I have had no previous dealings with any matter related to the practitioner. While the practitioner may have grievances against individual judges of this Court, a fair-minded observer would not conclude that as the head of this jurisdiction, I would not afford him fairness and impartiality.

Application to dismiss/vacate the Full Court hearing

38. The practitioner clarified that his application to dismiss the Full Court proceeding was based on an assertion that proceedings were invalid, because they were commenced before the earlier proceedings were finalised (by the dismissal of the application for special leave to appeal to the High Court).

40. The practitioner's appeals to the Supreme Court against the ACAT's findings were dismissed by Burns J. The Supreme Court is a superior court of record: s 3(2) of Supreme Court Act 1933 (ACT). It is well settled that decisions of a superior court are valid unless and until they are set aside, even if they were made in error: Cameron v Role [1944] HCA 5; (1944) 68 CLR 571 at 590 (Rich J); New South Wales v Kable [2013] HCA 26; 252 CLR 118 at [32] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) and [55]-[56] (Gageler J). Burns J's decisions were not set aside at the time that the Law Society instituted the Full Court proceeding. Indeed, at that juncture the practitioner's appeals to the Court of Appeal were deemed to have been dismissed. The ACAT's findings were capable of forming the basis of the Full Court proceeding.

41. It may have been inappropriate for the Full Court to consider the Law Society's application while earlier proceedings (forming the basis of the Law Society's application) were yet to be finalised. However, there was nothing to stop the Law Society from instituting proceedings seeking an order giving effect to the ACAT's recommendation.

42. In any event, the Court of Appeal has now upheld Burns J's decisions and the applications for special leave to appeal to the High Court have been refused. The ACAT's findings of liability and recommendations for penalty are now finalised. There is no impediment to proceeding with the Full Court application.

Application that Full Court application be heard by interstate judges

44. First, the evidence disclosed no basis for a reasonable concern about bias on an institutional basis by all resident judges of this Court. Second, it is not appropriate for one judge of a court to rule that another judge or judges should be disqualified from hearing a matter; the application should be made to the judge or judges in question. Third, the issues for determination in the current Full Court proceedings differ somewhat from those the subject of earlier proceedings before Burns J and the Court of Appeal.

45. There is an issue about whether, if the practitioner's application was granted, his concern about bias on an institutional level would be assuaged. "Interstate" judges could only sit as judges if they were appointed as Acting or Additional Judges of the Court, i.e. they could only sit as members of the "institution" about which the practitioner complains: Supreme Court Act 1933 (ACT) ss 4A, 4B.

46. A recusal application usually concerns individual judges and should be made to the individual judge in question: Bainton v Rajski (1992) 29 NSWLR 539 at 544 (Mahoney JA); Waterhouse at [15] (Basten and Emmett JJA); GAR v A-G (NSW) [2017] NSWCA 47 at [82] (McColl JA). In this case, as the practitioner categorially challenged the impartiality of all resident judges of this Court, the allegation could be described as one of bias on an institutional basis: Waterhouse v Independent Commission Against Corruption [2015] NSWCA 300 (Waterhouse) at [15] (Basten and Emmett JJA). Assuming that there is any scope for such an argument, the test must be whether a fair-minded observer might consider that every member of this Court might fail to bring an impartial mind to the resolution of the Full Court application: Waterhouse at [18].

47. A fair-minded observer would understand that not all resident judges of the Court have been directly involved with the matters involving the practitioner. As suggested in Waterhouse at [19], that observer would appreciate that "the judges of the Court are as rigorous in their insistence on judicial independence as members of the community, if not more so". Further, as stated above, a fair-minded lay observer would not regard the cordial professional relationship between a court and a local profession as a basis to doubt the impartiality of the Court as an institution.

48. The practitioner's distrust of resident judges of the Court seems to arise primarily from the fact that some have made adverse decisions against him, and his perception that they will make adverse decisions against him in future. Without more, that provides no basis to uphold an application for recusal. The administration of justice would be seriously prejudiced if the contrary was true. In Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352, Mason J made the following observation, which was endorsed by Brennan, Gaudron and McHugh JJ in Re Polites; Ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78 at 86:

It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party.

49. In Livesey v NSW Bar Association [1983] HCA 17; (1983) 151 CLR 288 the High Court held that there was a reasonable apprehension of bias because two members of the Court of Appeal had earlier presided over a trial in which they had expressed a strong view that a party to the proceedings lacked credibility as a witness in relation to what was a significant issue in the proceedings. No such views have been expressed about the practitioner by judges of this Court except, perhaps, in the case of Elkaim J's remark at [9] of his decision.

50. Finally, the issues in the Full Court proceedings differ from those in the earlier proceedings, although the matters are obviously related. In determining whether to accept and act upon the recommendation of the ACAT, the Full Court cannot disturb the findings upon which the recommendation was based: Law Society of the ACT v Powrie [2017] ACTSCFC 4; 12 ACTLR 184 (Powrie) at [83]-[84]. However, the Full Court is not bound to accept the recommendation of the ACAT and must decide for itself whether a practitioner's conduct warrants removal from the roll: Powrie at [86].

51. The practitioner's application that the Full Court proceeding be heard by interstate judges is refused. However, acting in an administrative capacity, the Court will bear in mind the practitioner's difficulties in relation to Mossop, Burns and Elkaim JJ sitting on the application.

52. The practitioner contended that, insofar as the published Court of Appeal judgments refer to his country of origin, they contravene s 423A of the LPA and the references should be changed to "the foreign country".

423A Restriction on publication of certain identifying material from application

(1) A person must not publish an account or report of an application under this part if the account or report -

(a) discloses the identity of the person who is the subject of the complaint to which the application relates (the person concerned); or

(b) allows the identity of the person concerned to be worked out.

(2) However, the identity of the person concerned may be disclosed in an account or report of the application if -

(a) a final decision has been made that the person concerned is guilty of the conduct complained of; and

(i) the appeal period has ended and no appeal has been made; or

(ii) any appeal has been decided against the person concerned.

54. There are three difficulties with this contention. First, the amendment of the judgment is a matter for the court that delivered it and I understand that the Court of Appeal as constituted has already refused the application. Second, the confidentiality provision applies only until a decision is final and, with the dismissal of the application for special leave, the appeal decisions are final. Lastly, I doubt that a references to a particular country are sufficiently specific to breach the privacy requirements of the provision.

55. The practitioner was permitted to orally address the Law Society's written submissions. Otherwise the practitioner's applications were dismissed.

I certify that the preceding fifty-five [55] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell.