Legal Profession Act 2007 (Tas), s450(d).

Kabourakis v Medical Practioners [sic] Board of Victoria [2006] VSCA 301; Ping v Medical Board of Queensland [2004] 1 Qd R 282, distinguished.

Judgment Number: [2014] TASSC 33

1. There is a dispute between the parties as to the validity of a decision made by the applicant, the Legal Profession Board of Tasmania, to re-open an investigation into a complaint concerning the respondent, who is a legal practitioner. The Board was established by s589 of the Legal Profession Act 2007 ("the Act"). By virtue of s591(c) of the Act, the Board's functions include receiving, investigating and determining complaints about legal practitioners and, as necessary, referring such complaints to the Disciplinary Tribunal established by s610 of the Act, or to this Court, for hearing and determination. In March 2012 the Board resolved to investigate a complaint relating to the respondent. On 27 August 2013 it resolved that it would make an application to the Disciplinary Tribunal in respect of the complaint. The Board has not made such an application. It changed its mind. On 18 March 2014 it resolved to rescind its decision to make such an application, and to resume investigating the complaint, taking the view that the investigation was not complete. The practitioner contends that, because of certain provisions in the Act, the Board had no power to rescind its earlier resolution. The Board contends that it did have the power to rescind it. It has applied to the Court for a declaration to that effect.
2. When the Board receives a complaint about the conduct of a legal practitioner, it is required by the Act to investigate that complaint: s440(1). In the investigation of a complaint, it is required to ensure that the investigation is conducted as efficiently and expeditiously as possible: s441. After the investigation of a complaint has been completed, there are six possible courses that the Board may take. The six alternatives are set out in ss450 and 451, which read as follows:

After an investigation of a complaint against an Australian legal practitioner is completed, the Board may do any one of the following:

(a) hold a hearing if it considers that any matter which is the subject of an investigation is capable of amounting to unsatisfactory professional conduct;

(b) deal with the complaint in accordance with section 456 (Procedure for less serious complaint), if it considers that the subject matter of the complaint is capable of amounting to unsatisfactory professional conduct that is not sufficiently serious to warrant a hearing;

(c) make an application under section 464 (Applications to Tribunal) for the Tribunal to hear and determine any matter that the Board considers is capable of amounting to both unsatisfactory professional conduct and professional misconduct;

(d) make an application under section 464 for the Tribunal to hear and determine the matter, if it considers that the conduct is capable of amounting to professional misconduct;

(e) make an application to the Supreme Court under section 486 (Applications to Supreme Court) to hear and determine the matter, if it considers that the matter is capable of amounting to professional misconduct.

After an investigation of a complaint against an Australian legal practitioner has been completed, the Board may dismiss the complaint if satisfied that -

(a) there is no reasonable likelihood that the practitioner will be found guilty of either unsatisfactory professional conduct or professional misconduct; or

1. In this case, the Board resolved that, pursuant to s450(d), it would make an application under s464 to the Disciplinary Tribunal. By implication, it must at that time have considered that the investigation into the complaint had been completed, and that the practitioner's conduct was capable of amounting to professional misconduct.
2. Section 464(1) provides that any person, including the Board, "may apply to the Tribunal for the hearing and determination of a complaint". As I have said, the Board has made no such application in respect of the complaint. After receiving some advice from its counsel, it made the impugned resolution of 18 March 2014, in the following terms:

"That the Board to proceed as recommended by Mr C Gunson in his advice to the Board dated 17 February 2014.

That the Board rescinds its previous decision of 27 August 2013 to make application to the Disciplinary Tribunal.

That the investigation of the complaint is not complete and is, pursuant to s440 of the Act, to return to investigation.

That the Investigator to write to the Practitioner pursuant to s572 (1) (b), requesting further information."

1. Under s442(1), the Board may appoint a suitably qualified person to investigate a complaint. On the day of the impugned resolution, it resolved to appoint one of its staff, a legal practitioner named Emily Warner, to investigate the complaint in question. In accordance with the impugned resolution, she wrote to the respondent on 19 March 2014 seeking further information. Under s572(1)(b), an investigator may, for the purposes of carrying out a complaint investigation, serve a notice on the lawyer in question requiring him or her to provide written information on or before a specified date. The practitioner took the view that the resolution of 18 March was invalid, that the investigator had not been validly appointed, and that she was not obliged to supply the further information that had been sought. She responded accordingly. The Board then applied to the Court for a mandatory injunction requiring the practitioner to provide the information to the investigator. She subsequently provided it, saying that she did so "under protest". The originating application was amended so as to seek a declaration as to the validity of the resolution of 18 March. That is now the only part of the application that requires determination.
2. In order to determine whether the Board had the power to vacate its decision to make an application to the Disciplinary Tribunal, one must begin by addressing s20(a) of the Acts Interpretation Act 1931, which provides as follows:

"Where an Act confers a power or imposes a duty, the power may be exercised and the duty shall be performed -

(a) from time to time as occasion may require ...".

As a result of that provision, any statutory decision-maker must be regarded as having the power to vary or reverse a statutory decision unless the relevant legislation expressly or impliedly indicates that there is no such power: Purton v Jackson [2012] TASFC 2 at [3], [21].

1. There is nothing in the Act that expressly prohibits the Board from reversing a decision to proceed under s450(d) by making an application to the Disciplinary Tribunal under s464. It is therefore necessary to determine whether the scheme of the Act is such that a decision of that nature must be regarded as irreversible.
2. Once an application has been made to the Disciplinary Tribunal, it is clear that the Board could not unilaterally reverse its decision. That is because s469 prohibits the withdrawal or other termination of an application unless the Tribunal gives leave. That section reads as follows:

"(1) Proceedings before the Tribunal with respect to a complaint cannot be terminated, whether by withdrawal of the disciplinary application or otherwise, before the Tribunal makes its final decision about the complaint, without the leave of the Tribunal.

(2) The Tribunal may give leave for the purposes of this section if it is satisfied that continuation of the proceedings is not warranted in the public interest."

1. The present situation is not governed by that section because the Board sought to change its mind after deciding to make an application, but before making one.
2. Counsel for the respondent argued that the decision of the Board was final and irreversible. He relied heavily on comments made by Nettle JA, with whom Warren CJ and Chernov JA agreed, in Kabourakis v Medical Practioners [sic] Board of Victoria [2006] VSCA 301 at [47] - [57]. In that case at [48], his Honour said:

"More often that 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."

1. The legislation applicable to that case empowered the Medical Practitioners Board to determine that there be either an informal hearing or a formal hearing into the professional conduct of a registered medical practitioner. It decided that an informal hearing would be conducted. The informal hearing resulted in a finding that the practitioner had not engaged in unprofessional conduct. The complainant was dissatisfied. There was an investigation by the Victorian Ombudsman. It was discovered that an important report had not been provided to the panel that conducted the informal hearing. The Board decided to convene a second informal hearing. Not surprisingly, the Court of Appeal concluded that it had no power to do that. One important aspect of the relevant legislation was that, after an informal hearing, the medical practitioner in question could require a formal hearing, whereas there was no corresponding provision empowering the Board to require one.
2. The Court of Appeal also took into account the desirability of finality. At [64] Nettle JA said:

"... 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 more often than not the paramount consideration. It is similar to the principles of public policy which are said to be encapsulated in the maxims nemo debet bis vexari, si constat curiae quod sit pro una et eadem causa [Pearce v R [1998] HCA 57; (1998) 194 CLR 610 at 636 [89], per Kirby J] and interest reipublicae ut sit finis litium [Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 at 597, per Gibbs CJ and Mason and Aickin JJ]. More particularly, however, to borrow from the language of Vaisey, J in Re 56 Denton Road, Twickenham [[1953] 1 Ch 51 at 57], it would introduce a lamentable measure of uncertainty and so much disturbance in the minds of those unfortunate persons who have cause to complain of, or are the subject of complaint of, unprofessional conduct in the practice of medicine that the Act cannot have contemplated the possibility of such vacillations as are claimed to be permissible in such a case as the present."

1. Similar reasoning has often led courts to conclude that statutory decision-makers did not have the power to re-make their decisions after the decision-making process had been completed. Thus, in Purton v Jackson (above), the Full Court held that the Resource Management and Planning Appeal Tribunal did not have the power to reconsider an appeal that it had dismissed on the ground of a lack of jurisdiction, even if its decision about its jurisdiction was wrong. In Re 56 Denton Road, Twickenham, it was held that the War Damage Commission did not have the power to make a second decision on a claim for compensation for loss caused by an enemy bombing raid during the Blitz. Similar decisions have been made in compensation cases concerning building insurance and surrendered firearms: Walter Construction Group Ltd v Fair Trading Administration Corporation [2004] NSWSC 158; Walter Construction Group Ltd v Fair Trading Administration Corporation [2005] NSWCA 65; Firearm Distributors Pty Ltd v Carson [2000] QSC 159; [2001] 2 Qd R 26.
2. However this case concerns a decision of an interlocutory nature. It was not a decision that brought the proceedings about the relevant complaint to a conclusion. The only case that I have been referred to concerning the finality or otherwise of an interlocutory decision in disciplinary proceedings is Ping v Medical Board of Queensland [2004] 1 Qd R 282. In that case the Medical Board had the power to conduct disciplinary proceedings either by way of a hearing or by way of written correspondence: Health Practitioners (Professional Standards) Act 1999 (Qld), s128(3). It elected to proceed by way of correspondence. It was required by s153(1) of the same Act to give notice of that decision to the medical practitioner, the complainant, and the Health Rights Commission. After giving notice accordingly, it decided that it would be preferable to conduct a hearing because credibility issues were involved. It purportedly rescinded its resolution to proceed by way of correspondence and made a decision to proceed by way of hearing. Moynihan J held that it had no power to do that. At 284 his Honour said:

"It is true that the legislation ... implements schemes designed to ensure that an appropriate level of care is delivered to the public in a professional, safe and competent way. Among other considerations this is to uphold the confidence of the public in the profession. Those general considerations have to yield to the specific provisions of the legislation."

1. Statutory powers to discipline legal practitioners exist only for the protection of the public: Dickens v Law Society of Tasmania (unreported 42/1981, Cosgrove J) at 15, 16; Law Society of Tasmania v Turner [2001] TASSC 129; (2001) 11 Tas R 1 at [62]. That is also made clear by s417 of the Act - the first section in Chapter 4 of the Act, which relates to complaints and discipline. That section reads as follows:

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

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

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

1. It is therefore necessary to determine whether the objective of protecting the public is a consideration which, in the words of Moynihan J, must "yield to the specific provisions of the legislation" with the result that the Board's decision to make an application to the Tribunal precluded it from vacating that decision and having further investigative work undertaken. I have already mentioned a number of aspects of the statutory scheme, but there are others that need to be taken into account in addressing that question:
   • An investigator carrying out a complaint investigation has the power to require the practitioner under investigation to produce specified documents or copies thereof: s572(1)(a).
   • An investigator also has the power to require the practitioner to assist in, or co-operate with, the investigation "in a specified manner": s572(1)(c).
   • An investigator also has the power to require any person who has, or has had, control of documents relating to the affairs of the practitioner in relation to his or her practice to provide access to the documents and/or information relating to the law practice affairs of the practitioner that the investigator reasonably requires: s572(2).
   • Subject to the issue of a search warrant by a magistrate under s576, an investigator also has the power to enter premises, search the premises, examine anything on the premises, make copies, seize and take away material and so forth: s577.
   • A failure to comply with a requirement of an investigator is capable of constituting unsatisfactory professional conduct or professional misconduct: s583.
   • It is an offence, punishable by a fine, for a person, without reasonable excuse, to obstruct an investigator exercising a power under the Act: s584.
   • The rules of procedural fairness, to the extent that they are not inconsistent with the provisions of the Act or regulations thereunder, apply in relation to the investigation of complaints and the Board's procedures under Chapter 4 of the Act ("Complaints and discipline"): s460.
   • Because the rules of procedural fairness apply, the Board has an obligation, after the investigation of a complaint has been completed, to provide information to the practitioner in question and to afford that practitioner an opportunity to respond: Murray v Legal Services Commissioner [1999] NSWCA 70; (1999) 46 NSWLR 224 (NSW Court of Appeal).
   • Once the Board has made a decision to exercise one of the powers conferred by s450, including the power to make an application to the Disciplinary Tribunal, it must advise the "prescribed authority" of its decision, and of the reasons for the decision: s452. The "prescribed authority" is the Law Society of Tasmania.
   • The Board has a general duty to ensure that the complainant and the practitioner receive a statement of reasons from the Board in respect of any action taken in relation to a complaint: s462(1)(b).
   • When an application is pending before the Disciplinary Tribunal, that tribunal, amongst other powers, has the power to require the Board to conduct any investigation that it considers necessary in order to hear and determine a complaint: s466(1)(g).
2. If the contentions of the respondent are correct, it would follow that if, as in this case, the Board decided to make an application to the Disciplinary Tribunal, but then decided that it was desirable that a more thorough investigation be undertaken, it would have no option but to make its application to the Tribunal, despite misgivings about the thoroughness of its investigation, and then to ask the Tribunal to require it, pursuant to s466(1)(g), to conduct a further investigation.
3. It would be undesirable if the Disciplinary Tribunal, with its role as an impartial decision-maker, were perceived as involved in the prosecutorial process, but any exercise of the power to require a further investigation under s466(1)(g) could run the risk of the Tribunal being perceived as involved in the bolstering of the case against a practitioner. As a general rule, it must therefore be desirable for that power to be used sparingly.
4. If the contentions of the respondent are correct, a difficult situation would arise if the Board were to receive significant exculpatory evidence between the making of a decision to apply to the Disciplinary Tribunal and the subsequent making of its application. The Board would have no power to vacate its decision, would be obliged to make its application to the Tribunal, and would then have to apply under s469(1) for leave to withdraw that application.
5. In my view it is significant that s469(1) expressly restricts the Board's power to change its mind after an application has been made to the Tribunal, but nothing in the Act imposes any such express restriction in relation to the period between the making of a decision to apply to the Tribunal and the making of the application. Further, the fact that, after making the application, the Board can in effect change its mind, subject to the Tribunal granting leave, weighs against a conclusion that there is an implied absolute prohibition on the Board changing its mind between the making of the decision to apply and the making of the application.
6. Having regard to these aspects of the statutory regime I consider that, although it is highly desirable that legal practitioners should know where they stand in relation to disciplinary proceedings, and although investigators have significant powers, with disciplinary and penal implications if anyone disobeys, the relevant provisions of the Act cannot be regarded as precluding the Board, when it has decided to make an application to the Disciplinary Tribunal but not yet made that application, from vacating its decision and undertaking a further investigation. The decisions relating to other pieces of legislation, particularly Kabourakis v Medical Practioners [sic] Board of Victoria and Ping v Medical Board of Queensland, should be distinguished because they relate to different legislative regimes.
7. It is clear that the dispute between the parties is so important that it is appropriate for the Court to grant declaratory relief. I therefore make an order declaring that the applicant's resolution of 18 March 2014 to rescind its resolution of 27 August 2013 to make an application to the Disciplinary Tribunal is lawful, valid and effectual.