PROCEDURAL FAIRNESS DURING THE INVESTIGATION OF COMPLAINTS
66 Section 125 (a) of the Act expresses what otherwise would be implied that the claimant should be accorded procedural fairness throughout "any disciplinary proceedings" taken against him. The question is what the dictates of fairness require during the time when the Commissioner is investigating a complaint against a legal practitioner. On the one hand, Mr Murray relied on the requirements for procedural fairness set out in such cases as Annetts v McCann (1990) 170 CLR 596 at 598 and Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 577, 578 and 591-2 to submit that he was entitled to a copy of the complaint and an opportunity to answer it. On the other hand, the Commissioner relied upon Re NSW Bar Association; Ex parte Evatt (1967) 67 SR (NSW) 236 and Dennis v The Law Society of New South Wales (unreported) Court of Appeal, 17 December 1979 to argue that before the complaint was dealt with he was not so entitled.
67 In Commissioner of Police v Tanos (1958) 98 CLR 383 at 395-6 Dixon CJ and Webb J remarked:
"For it is a deep-rooted principle of the law that before any one can be punished or prejudiced in his person or property by any judicial or quasi-judicial proceeding he must be afforded an adequate opportunity of being heard. In Cooper v Wandsworth Board of Works (1863) 14 CB (NS) 180; 143 ER 414, Byles J said that a long course of authority established 'that, although there are no positive words in a statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature' at 194; 420. The older authorities ever recur to the lines from Seneca's Medea which apparently were introduced into the subject by Boswel's Case (1583) 6 Co Rep 48b at 52a; 77 ER 326 at 331: Quicunque aliquid statuerit, parte inaudita altera, Aequum licet statuerit, haud aequus fuerit; cf Bonaker v Evans (1850) 16 QB 162 at 171; 117 ER 840 at 844; In re Hammersmith Rent-Charge (1849) 4 Ex 87 at 97; 154 ER 1136 at 1140. The general principle has been restated in this Court with a citation of authority in Delta Properties Pty Limited v Brisbane City Council (1955) 95 CLR 11 at 18. It is hardly necessary to add that its application to proceedings in the established courts is a matter of course. But the rule is subject to a sufficient indication of an intention of the legislature to the contrary. Such an intention is not to be assumed nor is it to be spelled out from indirect references, uncertain inferences or equivocal considerations. The intention must satisfactorily appear from express words of plain intendment."
68 The Latin quotation, which means that any person who decides any matter without hearing both sides, though that person may have rightly decided, has not done justice (what Baron Parke called in Bonaker v Evans at 172 and 844 a 'great principle of justice'), expresses one aspect of the proposition of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done; R v Sussex Justices; ex parte McCarthy [1924] 1 KB 256 at 259.
69 In Annetts Mason CJ, Deane and McHugh JJ, citing the judgment of Dixon CJ and Webb J, said at 598:
"It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment."
70 Their Honours pointed out that the intention of the legislature is not to be inferred from the presence in the statute of rights which are commensurate with some of the rules of natural justice: Baba v Parole Board of New South Wales (1986) 5 NSWLR 338 at 344-5, 347 and 349. At 600 their Honours said that it was beyond argument that the view of the majority in Testro Bros Pty Limited v Tait (1963) 109 CLR 353 at 363 would not prevail today.
71 In Ainsworth at 576-7 Mason CJ, Dawson, Toohey and Gaudron JJ said:
"It was held in Testro Bros that procedural fairness was not required in an investigation conducted by an inspector under the Companies Act 1961 (Vic), because it was not 'in the nature of a judicial proceeding in which the rights of the company …. being investigated may be prejudicially affected by a report made to the Minister', at 363. However, it was said in Annetts that the view of the majority in that case would not prevail today.
It is now clear that a duty of procedural fairness arises, if at all, because the power involved is one which may 'destroy, defeat or prejudice a person's rights, interests or legitimate expectations'. Thus, what is decisive is the nature of the power, not the character of the proceeding which attends its exercise. That is not to deny that provision may be made permitting or requiring procedures which are wholly inconsistent with a requirement of procedural fairness. However, Testro Bros was not concerned with provisions of that kind, and thus, so far as the decision in that case was based on the character of the proceedings, it is inconsistent with the law as it has developed since the decision in Schmidt v Secretary of State for Home Affairs [1969] 2 Ch 149 and since the decision of this Court in Kioa v West (1985) 159 CLR 550. In this regard, it is sufficient to note that it was held in In re Pergamon Press Limited [1971] Ch 388 and in Mahon v Air New Zealand [1984] AC 308 that the investigative powers considered in those cases attracted a duty to act fairly. And the decision of this Court in National Companies and Securities Commission v News Corporation Limited (1984) 156 CLR 296 proceeds on the same basis. However, that case was concerned with the content of a statutory duty, rather than whether there was a duty of fairness under the general law."
72 In this case the question is whether the content of the Commissioner's statutory duty and powers or the general law required that he provide Mr Murray with a copy of the complaint and give him the opportunity to answer it, absent exclusory and plain words of necessary intendment, before he reached any state of satisfaction or made any decision to institute proceedings in the Tribunal pursuant to s155 (2) of the Act or made any other decision under s155. If this should be answered by reference to the dictates of the general law it depends upon whether the Commissioner's duty or power under the section can be characterised as one the performance or exercise of which might destroy, defeat or prejudice the legal practitioner's rights, interests or legitimate expectations.
73 The Full Court of the Supreme Court in Ex parte Evatt at 235 dismissed a contention that a barrister should be given an opportunity to be heard during an inquiry before the Bar Council in part, at least, on the basis that an inquiry and report was not something which determined any question affecting the rights of the barrister, whether a member of the Association or not, or of the applicant for admission, with respect to whom the inquiry was made. The Court referred to Testro Bros. The Court did not address the contention in the way the requirements of procedural fairness now dictate. The emphasis, as in Testro Bros, was on the character of the proceeding and its effect on the rights of the complainant.
74 In Dennis, Moffit P, with whom Glass and Reynolds JJA agreed, in considering if a solicitor should have been given an opportunity to be heard on whether his practising certificate should be cancelled, reached the conclusion that the governing Act provided its own scheme to have the rights of a solicitor fairly dealt with and in particular to enable the solicitor to be heard on the question of interference with his right to practice before that right could in any practical sense be interfered with. This was a reference back to what Reynolds JA had said in White v Ryde Municipal Council [1977] 2 NSWLR 909 at 925 when observing that "the total procedure was devised to ensure that the appellant would be heard before he was adversely affected in a real and practical sense……" and "regard should be had to the realities of the situation, and not to the legalities, when dealing with the question of what fairness demanded in the circumstances".
75 In the particular case, Moffit P concluded that the legislative intent was to provide an administrative decision by the Council on the question whether a certificate should be cancelled with a right of the solicitor to " 'appeal' against this decision and have an original judicial proceeding into whether the certificate should be cancelled." Again in this case the Court emphasised the character of the proceedings looked at in a "real" way rather than the nature of the power, in that case, to cancel a practising certificate. With due respect to the Commissioner's submissions, I do not think that In re Evatt or Dennis' case can be applied to answer Mr Murray's contentions.
76 The Commissioner also relied upon Cornall v AB (a solicitor) [1995] 1 VR 337 at 372, a decision of the Supreme Court of Victoria Appeal Division. That case concerned the investigation by the Secretary of the Law Institute of complaints against a solicitor. The legislative scheme applicable provided that where, after completing the investigation and "considering any explanation made by a solicitor", the secretary was of opinion that there appeared to have been misconduct or a standards breach, he might do one of a number of things including cancelling or suspending the solicitor's practising certificate, subject to the opportunity available to the solicitor upon receipt of a notice setting out the grounds upon which it was proposed to cancel his certificate, to have the matter referred to the Solicitors Board. At 393-4 the Court cited Annetts, Ainsworth and Johns v Australian Securities Commission (1993) 178 CLR 408 and pointed out, as those three cases reiterated, "it has long been accepted that reputation is an interest attracting the protection of the rules of natural justice".
77 For the purposes in hand, the Court assumed that there was a risk that the solicitor's reputation might be affected once the secretary had formed the required opinion and said, at 394, that
"the real question is whether, in those circumstances and having regard to the nature of the legislative scheme, procedural fairness was required before the secretary reached the opinion that there appeared to have been misconduct".
78 At 395 addressing the solicitor's argument that those entrusted with investigative duties ought to be subject to the obligation to afford procedural fairness, certainly in circumstances where the outcome of their investigation may directly or indirectly affect the reputation of the person investigated, their Honours said:
"We would agree that investigators may in certain circumstances be subject to that obligation but we would not agree that such an obligation applies in every case, even where reputation may be affected."
79 Of the cases referred to, the Court said that they were special cases, where the outcome of the investigation and the recommendations made or opinions formed by the investigators were either final in the process thereby undertaken or led to immediate consequences of such importance to the individual investigated that the investigating body was obliged to afford procedural fairness. After reviewing such cases as Ainsworth, Johns, South Australia v O'Shea (1987) 163 CLR 378 at 389, Twist v Randwick Municipal Council (1976) 133 CLR 106, Medical Board of Queensland v Byrne (1958) 100 CLR 582 and Commissioner of Police v Reid (1989) 16 NSWLR 453 at 461 the Appeal Division at 400 said:
"Of course, every statute must be looked at individually and there may be circumstances in which the language of a statute will require, for certain special reasons, some further opportunity to be heard before a prosecution or disciplinary proceeding is launched. Such a case was Rees v Crane [1994] 2 AC 173, but the nature and effect of the decision reached was so different from that presently under consideration that it can clearly be distinguished. Moreover, to adopt Mason J's description in Twist's case, the 'efficiency of the administrative process' in considering the many complaints brought before the Secretary of the Institute must have a 'countervailing' effect in permitting the conclusion to be reached that the proper stage for affording procedural fairness in the present case is at the stage where the matter has been referred for hearing before registrar or board. For those reasons we would conclude that no intention is evinced by the provisions of s38Q and Part III A that solicitors should be given the right to be heard before a matter is referred by the secretary."
80 In Rees v Crane [1994] 2 AC 173 which concerned a three stage process before the removal of a judge from office, Lord Slynn of Hadley, who gave the judgment of the Privy Council, said at 191-2:
"It is clear from the English and Commonwealth decisions which have been cited that there are many situations in which natural justice does not require that a person must be told of the complaints made against him and given a chance to answer them at the particular stage in question. Essential features leading the courts to this conclusion have included the fact that the investigation is purely preliminary, that there will be a full chance adequately to deal with the complaints later, that the making of the inquiry without observing the audi alteram partem maxim is justified by urgency or administrative necessity, that no penalty or serious damage to reputation is inflicted by proceeding to the next stage without such preliminary notice, that the statutory scheme properly construed excludes such a right to know and to reply at the earlier stage.
But their Lordships' opinion there is no absolute rule to this effect even if there is to be, under the procedure, an opportunity to answer the charges later. As Professor de Smith puts it in de Smith's Judicial Review of Administrative Action, 4th ed (1980), p 199:
'Where an act or proposal is only the first step in a sequence of measures which may culminate in a decision detrimental to a person's interests, the courts will generally decline to accede to that person's submission that he is entitled to be heard in opposition to this initial act, particularly if he is entitled to be heard at a later stage.' (Emphasis added)
In considering whether this general practice should be followed the courts should not be bound by rigid rules."