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Parties: Practitioner D3 (Applicant) ACT Civil and Administrative Tribunal (First Respondent) Council of the Law Society of the ACT (Second Respondent)

Representation: Counsel Mr M Orlov (Applicant) No appearance (First Respondent) Ms T Power (Second Respondent)

Solicitors Self-represented (Applicant) No appearance (First Respondent) Phelps Reid (Second Respondent)

File Number: ACTCA 42 of 2017

Decision under appeal: Court/Tribunal: Supreme Court of the ACT Before: Burns J Date of Decision: 8 April 2016 Case Title: Practitioner D3 v ACT Civil and Administrative Tribunal Citation: [2016] ACTSC 61; 308 FLR 462

MURRELL CJ:

Application

1. The applicant sought leave to appeal out of time from the judgment of Burns J in Practitioner D3 v ACT Civil and Administrative Tribunal [2016] ACTSC 61; 308 FLR 462 (D3). His Honour decided that a failure by the Council of the Law Society of the ACT (the Council) to make a decision to extend time under s 395(2) of the Legal Profession Act 2006 (ACT) (LPA) was a “failure by the relevant council to observe a procedural requirement in relation to a complaint” that could be disregarded under s 424 of the LPA (emphasis added).

2. Section 395(1) of the LPA provides that a complaint may be made about the conduct of a legal practitioner irrespective of when the alleged conduct occurred. However, s 395(2) provides that a complaint cannot be dealt with (except by dismissal or referral to mediation) if the complaint is made more than three years after the alleged conduct, unless the relevant council decides that it is just and fair to do so having regard to the delay and the reasons for it, or the complaint alleges professional misconduct and it is in the public interest to deal with it.

3. Section 424 provides:

The ACAT may order that a failure by the relevant council to observe a procedural requirement in relation to a complaint before an application is made to the ACAT is to be disregarded if satisfied that the parties to the hearing have not been prejudiced by the failure. (emphasis added)

4. The decision in D3 was given on 8 April 2016. The 28 day period for filing the notice of appeal expired on 6 May 2016: Court Procedures Rules 2006 (ACT) (CPR) r 5405(1)(b).

5. On 15 September 2017, more than 16 months out of time, the practitioner filed this application for leave to appeal against the decision in D3. The practitioner relied on r 5405(2), which provides that the Court of Appeal may “at any time and for special reasons” give leave to file a notice of appeal.

6. Pursuant to s 37J(1)(b) of the Supreme Court Act 1933 (ACT), an application for extension of time to institute an appeal may be decided by the Court of Appeal constituted by a single judge.

7. The practitioner bore the onus of establishing why the Court should exercise its discretion in favour of extending the time to institute an appeal.

History of proceedings

8. A chronology of the procedural history is contained in Annexure D to the affidavit of Mr Phelps dated 16 November 2016 (filed for the second respondent). A summary of the arguments raised by the practitioner in the course of the proceedings to date is at pages 281–285 of the affidavit of Ms Riley dated 18 October 2017 (filed for the second respondent).

Proceedings prior to 8 April 2016

9. On 19 June 2013, the Council instituted disciplinary proceedings against the practitioner. Before doing so, it did not decide under s 395(2) of the LPA that, despite the lapse of more than three years since the alleged conduct, it was just and fair or in the public interest to do so.

10. The proceedings raised three grounds. Ground 1 alleged that the practitioner had defrauded the Commissioner for ACT Revenue in connection with a First Home Owner Grant. The practitioner argued that, as he was not a practitioner at the time of the alleged conduct, the Council could not pursue the Ground 1 complaint under the LPA. Ground 2 alleged that the practitioner had breached the Solicitors Rules and an undertaking to the Law Society by failing to provide correct information about Supreme Court proceedings related to the First Home Owner Grant. Ground 3 alleged that the practitioner had breached the Solicitors Rules by making false representations to the Law Society and attempting to mislead the Society.

11. The practitioner applied to strike out the proceedings on three grounds, one of which was the Council’s failure to comply with s 395(2) of the LPA. The argument succeeded and the ACT Civil and Administrative Tribunal (the Tribunal) struck out the proceedings: Council of the Law Society of the ACT v Legal Practitioner “D3” [2013] ACAT 77.

12. The Council appealed to the appeal Tribunal.

13. The practitioner filed a second strike out application, which he later abandoned.

14. The Council’s appeal to the appeal Tribunal was successful. In May 2014, the appeal Tribunal decided that a decision to extend time under s 395(2) of the LPA was a “procedural requirement” which could be disregarded under s 424 of the LPA: Council of the Law Society of the ACT v Legal Practitioner “D3” (Appeal) [2015] ACAT 7 at [137].

15. In February 2015, the practitioner applied to the Supreme Court for an order that the proceedings in the Tribunal be permanently stayed (proceedings SC 36 of 2015). The Council applied to strike out the application. The practitioner sought to amend the application.

16. In July 2015, Burns J struck out the practitioner’s application for a permanent stay and granted the practitioner leave to re-plead, but only for the purpose of raising the s 395(2) point. His Honour considered that it was “eminently arguable” that the failure to satisfy the provisions of s 395(2) before commencing proceedings in the Tribunal was more than a mere procedural omission: Practitioner D3 v ACT Civil and Administrative Tribunal [2015] ACTSC 170 at [64].

17. The re-pleaded application concerning s 395(2) was heard by Burns J in September 2015. The practitioner represented himself. As stated above, on 8 April 2016, in D3, his Honour dismissed the application.

Since April 2016

18. In [23] of his affidavit, the practitioner gave evidence that:

… I did not agree with the decision in Practitioner D3 but was unable to afford legal representation for an appeal and did not have the mental, financial or physical capacity to conduct the appeal on my own. By the time my personal circumstances had stabilised the appeal period had expired and I had to deal with the proceedings in the Tribunal, which recommenced following the decision.

19. The practitioner gave evidence of a long-standing and continuing problem with depression. He stated that his taxable income between 2014 and 2017 was modest.

20. On 28 July 2016, the Tribunal made directions for the service of evidence and listed the proceedings for final hearing for a period of up to 5 days, commencing on 6 February 2017.

21. On 7 October 2016, the practitioner filed a third strike out application in the Tribunal. One of the grounds advanced in the application alleged that the Council had failed to give adequate reasons about decisions made in relation to the proceedings as required by ss 414 and 415 of the LPA. During his submissions, the practitioner widened the above ground to include a complaint about the Council’s failure to give adequate reasons for its decision to bring the original application. The practitioner relied on the decision of the Supreme Court of NSW in Menon v Council of the Law Society of NSW [2016] NSWSC 1322 (Menon) contending that giving reasons was a “condition precedent” to an application rather than a “procedural requirement” as had been held by Burns J in D3.

22. On 21 December 2016, the Tribunal dismissed the application. Applying D3, the Tribunal found that the failure to give reasons was a procedural requirement and not a condition precedent: Council of the Law Society of the ACT v Legal Practitioner D3 (Occupational Discipline) [2016] ACAT 155.

23. In evidence on this application, the practitioner stated that around mid-December 2016, he learned that the s 395(2) issue in D3 was to be re-agitated in the Supreme Court proceedings that became known as the P1 proceedings: Practitioner P1 v ACT Legal and Administrative Tribunal [2017] ACTSC 173; 322 FLR 169 (P1).

24. On 13 December 2016, the practitioner filed an originating application in the Supreme Court that challenged the Council’s decision of June 2013 to commence disciplinary proceedings.

25. In early 2017, the practitioner retained his current legal representative, Mr Orlov of counsel, to advise and appear in the application. Until this point, the practitioner had been self-represented in all proceedings. As Mr Orlov was acting in the P1 proceedings (which were then part-heard before me), he provided the practitioner with information about the P1 proceedings.

26. On 3 February 2017, Mossop J dismissed the practitioner’s application for injunctive relief to prevent the final hearing from proceeding in the Tribunal on the basis that the practitioner wished to contend in Supreme Court judicial review proceedings that the Tribunal lacked jurisdiction to entertain a complaint concerning conduct that could not have been the subject of a complaint under the Legal Profession Act 1970 (ACT) (the Old Act).

27. In January 2017, the practitioner applied to vacate the Tribunal hearing on 6–10 February 2017. On 24 January 2017, the Tribunal refused the application.

28. On 3 February 2017, the practitioner filed an application in the Tribunal seeking an order dismissing the proceedings for want of jurisdiction.

29. On 7 February 2017, the Tribunal dismissed Ground 1 of the complaint for lack of jurisdiction because the alleged conduct had occurred prior to the commencement of the LPA and could not have been the subject of a complaint under the Old Act. The Tribunal adjourned the determination of Grounds 2 and 3 until after the determination of the mandamus application regarding Ground 1: Council of the Law Society of the ACT v Legal Practitioner [2017] ACAT 9.

30. On 7 April 2017, the Council commenced proceedings in the Supreme Court seeking prerogative relief in connection with the Tribunal’s decision to dismiss Ground 1.

31. On 25 July 2017, the practitioner filed an application seeking leave to revive the original originating application in which he had relied on the decision in Menon.

32. In the unrelated proceedings P1, on 14 July 2017, I held that, contrary to the decision of Burns J in D3, s 395(2) of the LPA does not impose a procedural requirement that may be disregarded under s 424 of the LPA.

33. On 26 July 2017, the Council’s application and the practitioner’s application were heard by Penfold J. The decision was reserved.

34. In February 2014, the practitioner had been bankrupted. In April 2017, he was discharged from bankruptcy. However, in D3, Burns J had ordered the practitioner to pay the Council’s costs of approximately $62,000.00. In mid-2017 the Council instituted fresh bankruptcy proceedings for the purpose of recovering the costs.

35. On 15 September 2017, the practitioner commenced two sets of proceedings. First, he filed this application for an extension of time to appeal against the decision in D3. Next, he applied to the Federal Circuit Court to set aside the bankruptcy notice relating to the D3 costs and an order that the time for compliance with the bankruptcy notice be extended until the determination of the application for leave to appeal out of time.

36. Soon thereafter, on 22 September 2017, the practitioner sought to abandon his application before Penfold J. On 17 October 2017, the practitioner’s application was dismissed by consent, leaving only the Council’s application for determination.

37. Between 7 February 2017 and early September 2017, the practitioner was self-represented as he could not afford to engage Mr Orlov. Shortly before 15 September 2017, the practitioner reengaged Mr Orlov, who agreed to appear pro bono on the application for leave to appeal.

Applicable principles

38. The principles that govern an application for an extension of time under r 5405(2) were discussed by Refshauge J in R v Meyboom [2012] ACTCA 2; 256 FLR 450 at [48]–[76] and summarised by his Honour in Concerned Citizens of Canberra Inc v Chief Executive (Planning and Land Authority) [2015] ACTCA 56; 303 FLR 49 (Concerned Citizens) at [21]. The principles stated in Concerned Citizens reflect those identified by the Full Court in Director of Public Prosecutions for the ACT v The Honourable Acting Justice Brian Martin [2014] ACTSC 104; 286 FLR 120 (Martin) as relating to applications for an extension of time under r 3557 of the CPR.

39. In Martin at [159], the Court identified seven non-exhaustive considerations drawn from Jess v Scott (1986) 70 ALR 185 (Jess v Scott) and Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, that bear upon the exercise of the discretion to extend time:

(1) The length of the delay; (2) Whether there is an acceptable explanation for the delay; (3) Whether the case raises questions of general importance; (4) The extent of any prejudice to the defendant, including any prejudice in defending the proceedings that is caused by the delay, although absence of prejudice alone is not sufficient to justify a grant of an extension; (5) Whether the interests of third parties have been affected; (6) The wider public interest; (7) The merits of the substantive application.

40. At [160], citing Burchett J in Pozniak v Minister for Health (1986) 9 ALN 256, 256, the Full Court emphasised that the seven considerations are “signposts to guide the court’s discretion”, not “fences to limit the breadth of the field”.

41. In DCL Constructions Pty Limited v Di Lizio [2007] NSWSC 1180 at [37]–[40], Harrison J affirmed that the length of the delay per se is not a reason for refusing an extension of time, and long delay does not mandate the refusal of an application to extend time. Rather, when deciding whether the refusal of an extension would “work an injustice”, it is necessary to consider a range of circumstances, including whether an extension of time would prejudice the defendant.

42. In Gallo v Dawson (1990) 93 ALR 479, 480–481 (Gallo), McHugh J said that, before an applicant can succeed on such an application, the court must be satisfied that to refuse the application “would constitute an injustice”. To a similar effect, in Concerned Citizens, Refshauge J said that the issue of whether the refusal of an extension would cause a miscarriage of justice was always “an overriding consideration”: at [21.10].

43. On the other hand, it is universally agreed that, when considering whether an extension of time should be granted, the length of the delay is a relevant consideration. It is often the case that (as the respondent submitted) the longer the delay, the higher the bar to persuading a court to exercise its discretion by extending the time to appeal. In Gallo at 481, McHugh J said:

I doubt that I would have considered the applicant’s explanation for the delay to be a sufficient reason for enlarging the time for lodging her appeal from 21 days required by the Rules to the more than 16 months which would be required of this application were to succeed, even if I had thought that the applicant had real prospects of succeeding in her proposed appeal. A case would need to be exceptional before a court would enlarge by many months the time for lodging an appeal simply because the applicant had refrained from appealing until he or she had researched the issues involved … When the time for appealing has expired, the litigation is at an end; the successful party is entitled to the benefit of the judgment in his or her favour. At that stage, the successful party has a “vested right to retain the judgment”.

44. In Martin at [154], the Full Court approved the statement of the Full Court of the Federal Court of Australia in Jess v Scott to the effect that “something very persuasive indeed” would be required to justify a grant of leave after a period of, for example, a year.

45. I turn to consider how these principles inform the exercise of discretion in this case.

Length of delay and reasons for delay

46. The lengthy delay of 16 months weighs against the grant of leave.

47. Further, the practitioner was always aware of the requirement to lodge an appeal within 28 days of a decision.

48. The evidence of the practitioner was that he did not appeal the decision in D3 within the 28 day period because he did not have the mental, financial or physical capacity to do so. For present purposes, I am prepared to accept that explanation. The practitioner’s contention that he suffers from chronic depression was not disputed. The practitioner also said that, for a short time after April 2016, he was homeless. There was a period during which he had no income, and between 2014 and 2017, his income was modest, at best.

49. However, these mental, financial and physical difficulties do not explain the failure to seek an extension of time during the period from mid–2016 to September 2017.

50. The practitioner continues to suffer from chronic depression, but since mid–2016, he has managed to conduct considerable litigation. Lack of financial resources to engage a legal representative to pursue an appeal is not a persuasive circumstance in the case of a legal practitioner who, like the practitioner, has a demonstrated capacity to conduct disciplinary proceedings on his own behalf. Between mid-2016 and September 2017, the practitioner’s mental, physical and financial difficulties did not cause litigious immobilisation; on the contrary, he initiated much litigation and responded to litigation instituted by the Council.

51. The practitioner’s counsel fairly conceded that the application to extend time was motivated by three factors: the decision in P1, the fact that the practitioner was offered pro bono legal assistance, and the commencement of bankruptcy proceedings. Of these, the third was “perhaps … critical”.

52. I infer that, with the exception of the initial period of one month, the bulk of the delay is explained by the practitioner’s forensic decisions that he would not challenge the D3 decision but would pursue other arguments. After all, the practitioner was aware of the ss 395(2) and/or 424 argument from the outset; that was the argument upon which he succeeded in his very first litigious foray. The argument was run on four subsequent occasions and, from at least December 2016, the practitioner was aware that another practitioner, P1, was canvassing the argument in the Supreme Court.

53. I conclude that the prospect of bankruptcy was critical to the practitioner’s decision of September 2017 to seek an extension of time within which to appeal the decision in D3.

54. Given the length of the delay, the explanation for the delay that has been provided by the practitioner does not assist him.

The merits of the substantive application

55. The proposed appeal ground is clearly arguable; it was successful in P1.

Whether the case raises questions of general importance

56. The proposed appeal raises a relatively narrow question of law; it turns on the proper construction of ss 395 and 424 of the LPA. The answer to the question is of some general significance, at least to the legal profession, but is of no greater significance than many matters that come before the courts.

57. The practitioner submitted that the appeal raised a question of public importance because of the conflict between the decisions in D3 and P1. However, the mere fact that judges of the same court disagree about a legal principle does not, of itself, elevate the disputed principle to one of general public importance.

The wider public interest

58. There is a public interest in the finality of litigation. As McHugh J said in Gallo, when an appeal period has expired, the successful party has a “vested right to retain the judgment”: at 480 citing Vilenius v Heinegar (1962) 36 ALJR 200, 201.

59. It is for this reason that rules of most courts prescribe a limited period within which an appeal must be lodged. In the ACT, r 5405 requires that there be “special reasons” before the Court will grant an extension of time. In the ACT, the rulemaking power is conferred by the Court Procedures Act 2004 (ACT). The objects and purposes of the Act are set out in ss 5 and 5A, which emphasise the need for improved access to justice and for the just, quick, inexpensive and efficient resolution of civil proceedings. Rule 5405 is consistent with those objects and purposes.

Prejudice to the respondent

60. If the application was granted, the respondent would suffer a significant costs prejudice. Since Burns J decided D3, the respondent has incurred very substantial costs, including the costs of the proceedings before Mossop and Penfold JJ and the proceedings in the Tribunal. Fairness to the practitioner

61. The practitioner submitted that, if the Court did not permit the extension of time then the Court would be permitting an arguably unlawful disciplinary action to continue.

62. This submission does not take the matter any further than the submission about the merits of the appeal.

Orders

63. The parties identified no other considerations that were relevant to the exercise of the discretion, and I have identified none. Other than the fact that the proposed appeal is clearly arguable, all the considerations that are relevant to the exercise of the discretion tell against the grant of an extension of time.

64. The application is refused. The Tribunal should consider the substantive issues.

65. The applicant is to pay the second respondent’s costs.

I certify that the preceding sixty-five [65] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell

Associate:

Date: 15 December 2017