Practitioner D3 v ACT Civil and Administrative Tribunal

1. Pursuant to r 1.32 of the Federal Court Rules 2011 (Cth), that the Council of the Law Society of the ACT be joined as a party to the proceeding.
2. The Council of the Law Society of the ACT be designated as the first respondent.
3. The respondent be redesignated as the second respondent.
4. The applicant pay the costs of the counsel of the Law Society of the ACT in relation to the joinder application.
5. On the oral application of counsel for the Attorney-General for the Australian Capital Territory, under r 17.01(3) of the Federal Court Rules 2011 (Cth), the Attorney-General for the Australian Capital Territory be formally recognised as an intervener.
6. The applicant's interlocutory application filed on 12 September 2018 be dismissed.
7. The applicant serve upon the first respondent and the intervener a draft amended originating application, including the statement of claim contained within it, by 4.00 pm on 28 September 2018.
8. The case management hearing be adjourned until 9.30 am on 5 October 2018.
9. Save for the costs order made in order 4 above, the costs of the hearing dated 14 September 2018 be reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

O'CALLAGHAN J: 1 These reasons for judgment were delivered ex tempore at the hearing on 14 September 2018 and accompany the orders set out above. 2 This is an application brought pursuant to r 1.32 of the Federal Court Rules 2011 (Cth) (the Rules) by the Council of the Law Society of the ACT (the Law Society) that it be joined as party to the proceeding. The power of the court to join a party at the instance of a non-party is undoubted (see, by way of example only, Ottoway Engineering Pty Ltd v Westpac Banking Corporation (No 2) [2017] FCA 39 per Besanko J at [8]). 3 The applicant (Practitioner D3) opposes the making of the joinder order, although in an email sent to the solicitor for the Law Society two days ago the view was expressed that the application for joinder was neither opposed nor consented to. In any event, it was necessary for the Law Society to press its application. 4 In my view, the case that the Law Society be joined as a party to the proceeding is overwhelming for each of the reasons advanced by their counsel, Ms Johnston, in her written submissions. The Law Society ought to have been joined as a party to the proceeding within the meaning of r 9.05(1)(a) of the Rules, which is effectively picked up by r 1.32, upon which the Law Society relies, for the following reasons: (1) first, the Law Society is the body charged with the professional discipline of solicitors in the ACT and, to that end, has various statutory powers and responsibilities under the Legal Profession Act 2006 (ACT); (2) secondly, as was made clear in the affidavit of Mr Phelps, upon which the Law Society relied in its application, the Law Society has been a party to every step of the procedural history of this matter, including the investigation into Practitioner D3's conduct and the taking of disciplinary action against him; (3) thirdly, by this proceeding, Practitioner D3 seeks declaratory relief that would invalidate disciplinary findings made against him with his consent on the basis of his admissions, including a finding that he was guilty of professional misconduct and injunctive relief that would prevent the enforcement of those orders against him; and (4) fourthly, the Law Society is the other party to the ACT Civil and Administrative Tribunal (ACAT) consent orders that Practitioner D3 by this proceeding seeks to have set aside. 5 Further, in my view, for the reasons advanced by Ms Johnston, the Law Society's joinder is necessary to ensure that each issue in dispute in the proceeding is able to be heard and finally determined within the meaning of r 9.05(1)(b)(ii) of the Rules for these reasons: (1) firstly, the only named respondent in the proceeding, namely, ACAT, has filed a submitting appearance in the proceeding; and (2) secondly, the Attorney-General for the Australian Capital Territory has made an application for leave to intervene only on the constitutional issue and, as Ms Johnston submits, will therefore not be able to assist the court with the background to the proceeding or the effect of any orders made (see, generally, Evans v Superannuation Complaints Tribunal [2002] FCA 79 per Finn J). 6 In my view, there was therefore a great deal of force in Ms Johnston's submission that there is no plausible reason why the Law Society was not named as a respondent in this proceeding. 7 Given that there was no plausible reason why the Law Society was not named as a respondent in this proceeding and that the application for joinder was resisted, even this morning, it is appropriate that I order that the applicant pay the costs of the Law Society in relation to the joinder application. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Callaghan.