Professions and Trades - Lawyers - Complaints and discipline - Disciplinary proceedings - Tasmania - Effect of a recommendation by the Disciplinary Tribunal that the Supreme Court remove the name of a practitioner from its roll.

Legal profession Act 2007 (Tas), ss471(a), 480(3) and 508(2).

Judgment Number: [2011] TASSC 67

1 These reasons relate to the effect of a recommendation of the Disciplinary Tribunal constituted under the Legal Profession Act 2007 that the Supreme Court remove the name of a legal practitioner from its roll of practitioners. That the Tribunal should make such a recommendation rather than simply ordering that the practitioner's name be struck off the roll is a curiosity in this jurisdiction. The reason for it is that the Act, s471(1)(a), did not carry forward the power of the disciplinary body that dealt with legal practitioners to order that a practitioner be struck off, but confined it to a power to recommend that the Supreme Court strike the practitioner off.

2 The issue has arisen because the applicant has filed an originating application seeking an order that the respondent's name be removed from the local roll pursuant to the Legal Profession Act 2007, s480(3), or alternatively, in the exercise of the Court's inherent jurisdiction. The background to this application is a decision of the Tribunal in which it found that the respondent was not a fit and proper person to engage in legal practice, and made orders that included:

• a recommendation that the Supreme Court remove the name of the respondent from the local roll; and

• an order that the respondent's local practising certificate be suspended pending the decision of the Supreme Court as to acceding or otherwise to this recommendation.

3 The power of this Court to strike off a legal practitioner is not in question. The paragraph headed "Practitioners of the Court" in the Charter of Justice 1831 expressly empowers the Court to remove practitioners for "reasonable cause". The inherent jurisdiction of the Court in relation to legal practitioners has consistently been recognised in the legislation that governs them. The currently applicable provision is the Legal Profession Act 2007, s510.

4 Since the Law Society Act 1962, statutory authority has been given to a disciplinary body to hear and determine complaints against legal practitioners. Until the Legal Profession Act 2007 that body had a power to order that a practitioner's name be struck off the roll. In the Law Society Act, s16(2)(a), the power was expressed as a power to make an order "as to removing from or striking off the roll the name of the practitioner". In the Legal Profession Act 1993, s76(1)(f), the power was expressed as the power to make "an order directing the Registrar [of the Supreme Court] to remove the name of the practitioner from the roll of barristers or legal practitioners".

5 In my experience, the parallel jurisdictions of this Court and the disciplinary body governing legal practitioners worked quite satisfactorily. When a practitioner was struck off by the disciplinary body, the Registrar of the Supreme Court, as the administrator of its roll, removed the name from the roll. For reasons that I will now turn to, many changes were made to the legislation governing legal practitioners when the Legal Profession Act 2007 was enacted. It is regrettable that, as so often seems to be the case, whilst the provisions of the Law Society Act 1962 were readily understandable and consistent, the same cannot be said of the provisions of the Legal Profession Act 2007. Moreover, the former Act was comprised of 23 pages, the latter runs to 359 pages.

6 In his text "Lawyers' Professional Responsibility", Lawbook Co 2006, 3rd ed, par1.95, Professor Dal Pont explains that historically the legislation governing the legal profession in each Australian jurisdiction displayed little uniformity. In 2001, the Standing Committee of Attorneys-General (SCAG) resolved to develop model laws to form the foundation for uniform legislation regulating the profession. Model Provisions were released by SCAG on 23 April 2004. Prior to 2007, to varying degrees and in differing ways, some jurisdictions in Australia had adopted the gist of parts of the Model Provisions. The Legal Profession Act 2007 is the embodiment of this State's endeavour to adopt some aspects of the Model Provisions.

7 The Model Provisions were drafted with the intent that they would apply in the particular jurisdiction that adopted them, and also give force to matters arising in other jurisdictions that adopted them. To that end they draw a distinction between an Australian lawyer, a person who is admitted to the legal profession under the Act of the jurisdiction in question, or the law of another jurisdiction that corresponds to the relevant provisions of that Act, s105(a), and a local lawyer, a person who is admitted to the legal profession under the Act of the jurisdiction in question, s105(b). An Australian legal practitioner is an Australian lawyer who holds a current local practising certificate or a current interstate practising certificate, s106(a).

8 A purpose of the Model Provisions, Pt 11, "Complaints and Discipline", is to provide a nationally consistent scheme for the discipline of the legal profession, s1101. Section 1110(1) provides that complaints may be made under Pt 11 about "an Australian legal practitioner's conduct" and that Part includes provisions as to complaints being heard and determined by a disciplinary tribunal. Section 1147 provides that where a complaint against an Australian legal practitioner is made out, the tribunal may make various orders. Subsection (2) deals with orders that require implementation in the jurisdiction in question. Pursuant to par(a) of that subsection, one of the orders that the tribunal may make is: "an order recommending that the name of the practitioner be removed from the local roll". Subsection (3) deals with orders requiring implementation in another jurisdiction. Pursuant to par(a) of that subsection, an order that the tribunal may make is: "an order recommending that the name of the practitioner be removed from an interstate roll". Section 1149(1)(a)(i) provides that persons and bodies having relevant powers or functions under this Act must give effect to any order of the disciplinary tribunal made under s1147(2). Section 1149(3) provides: "If the disciplinary tribunal makes an order recommending that the name of an Australian legal practitioner who is a local lawyer be removed from the local roll, the Supreme Court may order the removal of the name from the roll". Section 1171(2) provides: "If a corresponding disciplinary body makes an order recommending that a person's name be removed from the roll of lawyers under this Act, the Supreme Court may order the removal of the name from the roll".

9 There are obvious deficiencies in these provisions. The primary deficiency is that as to a practitioner whose name is on the roll in the jurisdiction that is subject to the Act, the disciplinary tribunal is not empowered to simply order that the name of that practitioner be removed from the roll. Its power is to do no more than recommend that the name be removed.

10 The drafter of the Legal Profession Act 2007, incorporated many sections from the Model Provisions into that Act. As to those to which I have referred that relate to a decision of a disciplinary tribunal on striking a practitioner off, the sections were adopted with some modifications, and in some instances, those modifications are inconsistent. Relevant sections of Legal Profession Act 2007 are:

"471 Orders of Tribunal requiring official implementation in this jurisdiction

The Tribunal may make the following orders under this section:

(a) an order recommending that the Supreme Court remove the name of the Australian legal practitioner from the local roll;

(b) an order that the practitioner's local practising certificate be suspended for a specified period or cancelled;

(c) an order that a local practising certificate not be granted to the practitioner or renewed before the end of a specified period;

(i) specified conditions be imposed on the practitioner's practising certificate; and

(ii) conditions be imposed for a specified period; and

(iii) specifies the time (if any) after which the practitioner may apply to the Tribunal for the conditions to be amended or removed;

472 Orders of Tribunal requiring official implementation in another jurisdiction

The Tribunal may make the following orders under this section:

(a) an order recommending that the name of the Australian legal practitioner be removed from an interstate roll;

(b) an order recommending that the practitioner's interstate practising certificate be suspended for a specified period or cancelled;

(c) an order recommending that an interstate practising certificate not be granted or renewed to the practitioner before the end of a specified period;

(i) specified conditions be imposed on the practitioner's interstate practising certificate; and

(ii) conditions be imposed for a specified period; and

(iii) conditions be imposed that specify the time (if any) after which the practitioner may apply to the Tribunal for the conditions to be amended or removed.

...

480 Compliance with determinations and orders of Tribunal

(1) Persons and bodies having relevant functions or powers under this Act must -

(i) any order of the Tribunal made under section 471 (Orders of Tribunal requiring official implementation in this jurisdiction);...

...

(3) If the Tribunal makes an order that the name of an Australian legal practitioner who is a local lawyer be removed from the local roll, the Supreme Court is to order the removal of that name from the roll.

...

508 Compliance with recommendations or orders made under corresponding laws

...

(2) If a corresponding disciplinary body makes a recommendation or order that a person's name be removed from the roll of lawyers under this Act, the Supreme Court must order the removal of the name from the local roll."

11 The modifications and inconsistencies to which I refer include the following:

•

In s471(a) the words "recommending that the Supreme Court remove the name of the Australian legal practitioner" have been substituted for the words "recommending that the name of the practitioner be removed" in s1147(2)(a).

•

Section 472 only authorises recommendations. Only par(a) of s1147(3) confines the tribunal to making recommendations.

•

Section 480(3) is inconsistent with s471(a). The former applies to an order that a person be removed from the roll, whilst the latter only authorises a recommendation to the Supreme Court to that effect. Moreover, s480(3) is expressed to impose a mandatory obligation on the Supreme Court to order the removal of a name, whilst in s1149(3), this is expressed to be a discretion.

•

Similarly, s508(2) is expressed to impose a mandatory obligation on the Supreme Court to order the removal of the name, whilst in s1171(2), this is expressed to be a discretion.

12 I am unable to discern the reasons for the form in which the sections referred to have been adopted. It seems to me that the needs of this jurisdiction would have been appropriately served had s1147(2)(a) been adopted omitting the word "recommending". In that case there would have been no need to adopt s1149(3), let alone that which appears in s480(3). Although s508(2) has no direct application to this case, I suggest that it should not require this Court to make a removal order, but provide that in the circumstances there specified the Registrar shall remove the name.

13 In my view a clear distinction is drawn between a recommendation and an order in ss471 and 472 . On the face of these sections a recommendation of the Disciplinary Tribunal is just that, it is a suggestion or advice that something be done. It is not an order that something be done. Putting to one side an issue as to whether s508(2) is unconstitutional, that provision is pertinent as it recognises the distinction between a recommendation and an order.

14 The unconstitutional issue in relation to s508(2) arises from the requirement that this Court make an order removing the name of a practitioner from the local roll where a corresponding disciplinary body has made a recommendation or order that the name be removed. It is arguable that this is unconstitutional insofar as it requires this Court to make a decision in a manner that is incompatible with the proper discharge of its judicial responsibilities and institutional integrity. For relevant purposes an aspect of these matters is the need for the Court to reach its own decision on the merits of a matter based on admissible evidence. No provision in the Legal Profession Act 2007, or any other legislation makes a decision of a corresponding disciplinary body admissible evidence for the purposes of a decision of this Court on whether an order should be made removing the name of a practitioner from the local roll. The effect of s508(2) is to require this Court to make such an order without conducting a hearing on the merits to satisfy itself that the order is appropriate. As to this being incompatible with this Court's proper discharge of its judicial responsibilities and its institutional integrity, see Wainohu v New South Wales [2011] HCA 24; (2011) 243 CLR 181 pars[44] and [105], South Australia v Totani [2010] HCA 39; (2010) 242 CLR 1 pars[62],[69],[427] and [443] and Gypsy Jokers Inc v Commissioner of Police [2008] HCA 4; (2008) 234 CLR 532 par[39].

15 Accepting as I do that in s471, the distinction drawn between an order and a recommendation is intentional and must be observed, what is to be made of ss480(1)(a) and 480(3)? Putting aside the proposition that the Supreme Court is a person or body for the purposes of s480(1), and again putting aside the apparent unconstitutionality of a provision to the effect of that contained in s480(3) which requires that if the Tribunal makes a strike-off order, the Supreme Court must make that order, I am unable to construe these provisions as assisting the applicant. The recommendation of the Tribunal is not an order that a practitioner be removed from the local roll for the purposes of s480(3), or an order for the purposes of s408(1)(a). So neither of these provisions has any application.

16 In result, the authority given to the Disciplinary Tribunal by s471(a) to recommend that the Supreme Court remove the name of an Australian practitioner from the local roll is of little utility. Even without that provision the Tribunal, like any interested entity, could apply to the Supreme Court to have the name of a practitioner removed from the roll. Presumably, such an application would only be made by an applicant that recommended that outcome. For the application to succeed the Supreme Court would have to be satisfied that the order was appropriate. Notwithstanding that a recommendation of the Tribunal was based on it having heard and determined a complaint against a practitioner, this Court would itself have to determine whether a strike off order was appropriate. In the absence of a provision giving the Tribunal's decision evidentiary status for the purposes of that determination, a full rehearing of the complaint could be necessary.

17 It is deplorable that the substantial time, costs and inconvenience associated with the Tribunal having heard and determined the complaint against the respondent will largely be wasted unless the respondent chooses to co-operate with the implementation of the Tribunal's recommendation. The Legal Profession Act 2007 should be amended to restore the power of the Tribunal to order that a practitioner be struck off the roll.