[60] ...[T]he scheme of the Part of the Act in which s 171M appears (Pt 10), dealing with complaints and discipline, introduces significant changes in the law governing the investigation of such complaints against legal practitioners and the conduct of disciplinary proceedings arising out of the investigation of such complaints. The general objects of Pt 10 include to redress 'consumer complaints of users of legal services' and to ensure compliance by individual legal practitioners with the necessary standards of 'honesty, competence and diligence'. As part of the statutory scheme, a differentiation is introduced between 'professional misconduct' and 'unsatisfactory professional conduct'. Clearly, this distinction was designed to meet dissatisfaction with the response of those charged with deciding the complaints of users of legal services and the suggestion that they sometimes tended to neglect conduct falling short of proper standards of competence and diligence. A special statutory officer, the Legal Services Commissioner (the Commissioner), was created by the amending Act which introduced the new scheme. The Commissioner has a wide range of functions including the receipt of complaints about professional misconduct or unsatisfactory professional conduct of legal practitioners. The Commissioner is empowered to monitor investigations by the relevant Council (in this case the Law Society Council) into a complaint. He or she is empowered to give directions and to arrange for a complaint to be independently investigated in certain circumstances. He or she is afforded large statutory powers in doing so. The Act also establishes the Tribunal which is empowered to conduct hearings with respect to a complaint against a legal practitioner brought before it.
[61] In this scheme of discipline, a number of protections are included for the legal practitioner brought before the Tribunal. Proceedings may only be instituted 'with respect to a complaint' by 'an information laid by the appropriate Council or the Commissioner' in accordance with Pt 10 of the Act. The function of the Tribunal is confined to that of conducting a hearing 'into each allegation particularised in the information'. The Tribunal has certain powers of amendment to vary the information laid against the legal practitioner, for example, to permit the inclusion of additional allegations where that is justified. For the purpose of a hearing into a question of professional misconduct, the Tribunal 'is to observe the rules of law governing the admission of evidence'. In other hearings, the Tribunal is not so bound but may inform itself of any matter in such manner as it thinks fit.
[62] Given the scheme of the legislation, and the introduction of new statutory bodies for the task of discipline of members of the legal profession formerly conducted by professional bodies and by the Supreme Court, the requirements of particularity contained in the Act (and the safeguards thereby introduced for the practitioner concerned) would not be narrowly construed.
[63] The function of the Tribunal, after having completed a hearing 'relating to a complaint against a legal practitioner', is to determine whether it is satisfied that the legal practitioner is guilty of professional misconduct or unsatisfactory professional conduct. Only if it is so satisfied may it make any of the orders specified in the Act, including an order for the removal of the name of the legal practitioner from the roll and an order that the legal practitioner pay a fine. The scheme of specificity continues into the provision for an appeal against the order of the Tribunal. By s 171F it is provided (and we add emphasis to the words):
'(1) Any party to a hearing conducted by the Tribunal may appeal to the Supreme Court against the Tribunal's determination of a complaint.'
It is only an appeal against such determinations which the Supreme Court, by the Act, is empowered to hear and determine.
[64] A question arises as to whether the preservation of the inherent jurisdiction of the Supreme Court in s 171M of the Act, previously noted, empowers that Court, in an appeal from the Tribunal heard by the Court of Appeal, to go beyond the 'determination of a complaint' which is otherwise expressed to ground the Supreme Court's jurisdiction. In favour of that view might be the specification that the appeal lies to the Supreme Court whose inherent jurisdiction is preserved and whose ancient functions include the maintenance of standards and enforcement of discipline in relation to legal practitioners whom such courts admit to legal practice. But, by the scheme of the Act, it is clear that this is not what the legislation provides. The provision preserving the inherent power or jurisdiction of a Supreme Court appears in Div 10 (Miscellaneous) of Pt 10 of the Act. In the context, the section's purpose is to permit the Supreme Court to deal directly with cases other than appeals (provided for in Div 8 of Pt 10) where it is appropriate or necessary to invoke the inherent power and jurisdiction of the Court.
[65] An instance which springs to mind in which the inherent power might be invoked is the case of a legal practitioner who is convicted of a relevant criminal offence warranting immediate removal of his or her name from the roll. In New South Wales, proceedings of that kind are commonly brought by the Prothonotary of the Supreme Court. They are ordinarily uncontested. But for appeals from the Tribunal, invoking the jurisdiction of the Supreme Court as provided by s 171F, the measure of particularity which runs through Div 8 applies. Neither the jurisdiction of the Tribunal nor the power and jurisdiction of the Supreme Court are at large, as formerly the latter were under the common law and within the inherent jurisdiction of the Supreme Court untouched by legislation.
[66] The provisions of the Act must be complied with. The focus of its attention is the 'complaint against a legal practitioner' expressed in the 'information laid by the appropriate Council or the Commissioner' in accordance with the Act. That complaint, and the information containing it, may be varied and amended. Notwithstanding dismissal of the complaints contained in one information it remains open to the relevant Council or the Commissioner to bring later complaints. But the function of the Tribunal is to determine the complaint. And the function of the Supreme Court, in this aspect of its power and jurisdiction is, and is only, to hear and determine the appeal 'against the Tribunal's determination of a complaint'. To the extent that the Tribunal proceeded beyond that function or the Supreme Court on appeal did likewise, they would be exceeding the jurisdiction conferred by the Act.
[67] This conclusion reinforces our view about the error in the approach of the Court of Appeal. Instead of addressing its attention to determining the appeal and cross-appeal against the Tribunal's determination of the several complaints about Mr Walsh, it addressed itself to what was described as the 'ultimate question' of Mr Walsh's good fame and character and his suggested unfitness to remain on the roll of legal practitioners. In this, it consciously went outside the 'complaints as formulated and particularised'. In doing so, it strayed beyond its power and jurisdiction. By reason of the preservation of the inherent jurisdiction of the Supreme Court, it may have been open to the Law Society or the Prothonotary in this case to invoke the Supreme Court's inherent jurisdiction and to seek immediate relief in relation to Mr Walsh within that jurisdiction. We leave aside questions of procedural fairness and other objections that might be raised if such an exceptional course had been taken. But if it were, different procedures would have been followed and a different hearing would have ensued. That course was not taken. Instead, the ordinary course, envisaged by Div 8 of Pt 10 of the Act, was followed. In going outside the scheme of the Act and proceeding to ignore the 'complaints as formulated and particularised', the Court of Appeal erred. It was an error substantially disadvantageous to Mr Walsh. He is entitled to complain about it and, on this ground too, to succeed on his objection to the course which the appeal took.