[2016] ACTSC 61

PROFESSIONS AND TRADES - Lawyers - disciplinary action - breach of s 395(2) of the Legal Profession Act 2006 (ACT) (LPA) - complaint made more than three years after conduct - whether a procedural requirement - whether requirement can be disregarded by the ACAT pursuant to s 424 of the LPA - proceedings dismissed.

Legal Profession Act 1987 (NSW) ss 137, 138, 167A, 171

Legal Profession Amendment Act 2004 (NSW)

Legal Profession Act 2004 (NSW) s 561

Legal Profession Act 2006 (ACT) ss 384, 395, 397, 406, 407, 410, 414, 415, 418, 419, 421, 424

Alcan (NT) Alumnia Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27

Attorney-General (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342

Barwick v NSW Law Society [2000] HCA 2; (2000) 169 ALR 236

Herald and Weekly Times & Anor v The State of Victoria [2006] VSCA 147

John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503

Legal Practitioner v Council of the Law Society of the ACT [2013] ACTSC 134

McKain v R.W. Miller & Company (South Australia) Pty Ltd [1991] HCA 56; (1991) 174 CLR 1

Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 495

Practitioner D3 v ACT Civil and Administrative Tribunal & Ors [2015] ACTSC 170

Explanatory Statement, Legal Profession Bill 2006 (ACT)

New South Wales Attorney-General's Department, A Further Review of Complaints Against Lawyers: Issues Paper (November 2001)

New South Wales Law Reform Commission, Complaints against lawyers: an interim report, Report No 99 (2001)

ACT Civil and Administrative Tribunal (First Defendant)

Law Society of the Australian Capital Territory (Second Defendant)

Mr N Beaumont, SC with Ms T Power (Second Defendant)

1. These proceedings were commenced by way of originating application dated 6 February 2015, and involve an attempt by the plaintiff legal practitioner to stop the hearing of disciplinary proceedings against him, which are currently before the ACT Civil and Administrative Tribunal (the ACAT). I set out the nature of the complaints made against the practitioner in an earlier decision: Practitioner D3 v ACT Civil and Administrative Tribunal & Ors [2015] ACTSC 170.

2. On 22 July 2015, I struck out the practitioner's original pleadings, but granted him leave to replead his claim. However, this was limited to a claim for a declaration that the proceedings in the ACAT are a nullity by reason of the provisions of s 395(2) of the Legal Profession Act 2006 (ACT) (LPA) not being satisfied at the time of the commencement of those proceedings.

3. On 27 July 2015, the practitioner filed an amended originating application seeking a declaration that the proceedings in the ACAT are a nullity, but also, curiously and contrary to my order, seeking damages. Nothing appears to turn upon this irregularity.

4. The proceedings came on for hearing on 4 September 2015. The practitioner represented himself. The second defendant, the Law Society of the Australian Capital Territory (the Society) was represented by Mr Beaumont SC with Ms Power. After hearing the parties I reserved my decision. I am satisfied that the proceedings should be dismissed, for the reasons that follow.

A breach of s 395(2) of the Legal Profession Act 2006 (ACT)

1. Complaints made more than 3 years after conduct

(1) A complaint may be made about conduct to which this chapter applies irrespective of when the conduct is alleged to have happened.

(2) However, the complaint cannot be dealt with (otherwise than to dismiss it or refer it to mediation) if the complaint is made more than 3 years after the conduct is alleged to have happened, unless the relevant council for the person about whom the complaint is made decide that-

(a) it is just and fair to deal with the complaint having regard to the delay and the reasons for the delay; or

(b) the complaint involves an allegation of professional misconduct and it is in the public interest to deal with the complaint.

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.

6. The proceedings before the ACAT concern three grounds of complaint. The first ground, which is the foundation of the complaints made against the practitioner, alleges that he committed fraud on the Commissioner for ACT Revenue with respect to an application for a First Home Owner Grant. It is accepted by the Society that the complaint with respect to that conduct was made more than three years after the conduct occurred, so as to make relevant the provisions of s 395(2). It is further accepted by the Society that s 395(2) was not complied with before the disciplinary proceedings in the ACAT were commenced, in that the Council of the Law Society (the Council) had not made a decision as required by the section. The second and third grounds of complaint were added by amendment of the disciplinary application by order of the ACAT.

7. The practitioner raised the non-compliance with s 395(2) before the ACAT, resulting in Presidential Member Symons making an order striking out the proceedings on 20 September 2013. The Society appealed that order, and on 22 May 2014, Appeal President Stefaniak upheld the appeal and set aside the orders of Presidential Member Symons. Appeal President Stefaniak determined that the failure of the Council to make a decision pursuant to s 395(2) was a failure to observe a procedural requirement which should have been disregarded by virtue of s 424.

8. Before this Court, the practitioner has submitted that the failure of the Council to make the decision required by s 395(2) is more than a failure to observe a procedural requirement, and renders the proceedings in the ACAT a nullity.

9. The practitioner filed written submissions in which he submitted that the words "cannot be dealt with" in s 395(2) govern not only the decision to commence disciplinary proceedings in the ACAT, but also extend to the investigation of the complaint by the Council. It is, he submitted, a condition precedent that there be a "valid and non-statute barred complaint" before the Council may:

(a) appoint an investigator pursuant to s 407 of the LPA;

(b) conduct an investigation: s 406 of the LPA;

(c) make a decision under s 410 of the LPA as to the disposition of a complaint after an investigation; and

(d) apply to the ACAT for an order in relation to a complaint: s 419 of the LPA.

10. The practitioner further submitted that the terms of s 395(2) are mandatory, and preclude the commencement of proceedings in the ACAT unless a decision to deal with the complaint is made by the Council under the section. It follows, he submitted, that the complaint against him is properly characterised as "statute barred", with the corollary that, absent a decision to proceed by the Council, the investigation of the complaint against him, and each step in the investigation was invalid. This would include the appointment of Mr Phelps as the investigator. In support of his submissions, the practitioner referred me to Barwick v NSW Law Society [2000] HCA 2; (2000) 169 ALR 236 (Barwick), which he submitted was binding on this Court and determinative of the issue of the validity of the ACAT proceedings.

11. Grounds two and three of the disciplinary application before the ACAT did not concern conduct which occurred more than three years before the complaint was made about the conduct, and as such s 395(2) does not apply to that conduct. However, the practitioner submitted that the ACAT proceedings concerning grounds two and three of the complaint should also be declared a nullity because:

(a) if there was no valid complaint because of a failure to comply with s 395(2) of the LPA, the powers that may flow from a complaint, including the power to amend disciplinary proceedings in the ACAT to add grounds, could not validly be exercised by the Society or (seemingly) the ACAT;

(b) the decision to amend the application for disciplinary proceedings in the ACAT was not authorised by the Council, with a consequence that the amendment of the application was not made "pursuant to a proper invocation" of the ACAT's powers. In support of this submission the practitioner cited the decisions in the Herald and Weekly Times & Anor v The State of Victoria [2006] VSCA 147; Attorney-General (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342 at 357; and Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 495;

(c) the Council failed to give the practitioner a statement of reasons as required by s 415 of the LPA;

(d) grounds two and three arise out of an improper investigation of a "statute barred" complaint; and

(e) the amendment of the disciplinary application to include grounds two and three was contrary to the decision of the High Court in Barwick, and involved a breach of procedural fairness as it circumvented the investigation phase required by the LPA.

(a) on the plain and ordinary reading of s 395(2) the disciplinary proceedings in the ACAT are not sustainable at law;

(b) grounds two and three of the disciplinary application are unsustainable because the power to conduct an investigation is predicated on a valid,

non-statute-barred complaint being submitted. Further, where a complaint is statute barred by reason of s 395(2), all subsequent actions, including amendments, are also barred; and

(c) the High Court in Barwick made it clear that the complaints and investigation process, including procedural fairness to the practitioner, is central to the disciplinary process.

13. After I had reserved my decision, the practitioner forwarded to my associate a copy of the decision of the High Court in John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503 (John Pfeiffer Pty Ltd) which, he submitted, established that limitation periods were not procedural, but were part of the substantive law. The issue in that case was whether, for the purposes of the choice of law rules (previously referred to as conflict of laws), a court hearing a claim in tort arising out of events that occurred in another state or territory was obliged to apply the laws of the State or Territory where the events occurred, or those of the state or territory where the hearing takes place. The plurality (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) discussed the distinction between questions of substance and of procedure traditionally found in the choice of law rules at [97]-[100]:

[97] As already indicated, the choice of law rules traditionally distinguish between questions of substance and questions of procedure. There is much history that lies behind the distinction, but search as one may, it is very hard, if not impossible, to identify some unifying principle which would assist in making the distinction in a particular case. But as the majority said in McKain:

"Though the dividing line is sometimes doubtful or even artificial, the need to distinguish between substantive law and procedural law is clearly recognised for a number of forensic purposes."

[98] Some statutes of limitation have traditionally been held to be procedural on the basis that they bar the remedy not the right; other limitation provisions have been held to be substantive. But all limitation provisions can affect whether a plaintiff recovers. Questions of what heads of damage are allowable have been held to be substantive; but questions of quantification of damages have been held to be procedural. But all questions about damages can affect how much a plaintiff recovers and, thus, statutes such as the NSW Compensation Act, which is in issue in this case, alter the rights of plaintiffs and, also, the obligations of defendants.

[99] Two guiding principles should be seen as lying behind the need to distinguish between substantive and procedural issues. First, litigants who resort to a court to obtain relief must take the court as they find it. A plaintiff cannot ask that a tribunal which does not exist in the forum (but does in the place where a wrong was committed) should be established to deal, in the forum, with the claim that the plaintiff makes. Similarly, the plaintiff cannot ask that the courts of the forum adopt procedures or give remedies of a kind which their constituting statutes do not contemplate any more than the plaintiff can ask that the court apply any adjectival law other than the laws of the forum. Secondly, matters that affect the existence, extent or enforceability of the rights or duties of the parties to an action are matters that, on their face, appear to be concerned with issues of substance, not with issues of procedure. Or to adopt the formulation put forward by Mason CJ in McKain, "rules which are directed to governing or regulating the mode or conduct of court proceedings" are procedural and all other provisions or rules are to be classified as substantive.

[100] These principles may require further elucidation in subsequent decisions but it should be noted that giving effect to them has significant consequences for the kinds of case in which the distinction between substance and procedure has previously been applied. First, the application of any limitation period, whether barring the remedy or extinguishing the right, would be taken to be a question of substance not procedure ... The application of any limitation period would, therefore, continue to be governed (as that legislation requires) by the lex loci delicti. Secondly, all questions about the kinds of damage, or amount of damages that may be recovered, would likewise be treated as substantive issues governed by the lex loci delicti.

[Footnotes omitted.]

14. The reference to McKain in the above extract is a reference to McKain v R.W. Miller & Company (South Australia) Pty Ltd [1991] HCA 56; (1991) 174 CLR 1, which was also a case concerning the application of the choice of law rules.

15. The Society submitted that the conclusion that a failure to make a decision under s 395(2) of the LPA is a failure to observe "a procedural requirement" capable of being cured by s 424 is supported by:

(a) the statutory text within the general context of the LPA;

(b) the legislative history of these provisions; and

(c) in addition to the general context considered in (a), a consideration of certain other key provisions of the LPA.

16. With regard to the statutory text, the Society submitted that the expression "failure by the relevant council to observe a procedural requirement in relation to a complaint" within s 424 of the LPA naturally means, even in the absence of an understanding of its history, the failure to take steps required by the LPA including the step required by s 395(2), where that provision is applicable.

17. The Society submitted that s 424 is found in Part 4.7 of the LPA, entitled "Disciplinary action". The purpose of such proceedings, it says, is to protect the public: Legal Practitioner v Council of the Law Society of the ACT [2013] ACTSC 134 at [45] - [47]. The reference in s 424 to "a procedural requirement in relation to a complaint before an application is made to the ACAT" is a reference to the requirements set out in Parts 4.2 to 4.6 inclusive of the LPA. Section 395 falls within those Parts, coming within Part 4.2. Other examples of procedural steps which the Council must take as set out in Parts 4.2 to 4.6, the Society submitted, include:

(a) the need to give notice of the complaint in accordance with s 397;

(b) the obligation to investigate the complaint under s 406;

(c) the need to make the relevant decisions under s 410 after investigation;

(d) the need to record (s 414) and give reasons for (s 415) the decision; and

(e) the notice requirements to the complainant and the practitioner the subject of the complaint under s 418.

18. The requirement under s 395(2) not to deal with a complaint unless the relevant council first makes the requisite decision is a requirement on the council, within the natural and ordinary meaning of the words, to take a "procedural step". In that regard, the Society submitted, the use of the word "procedural" does not denote, in its natural and ordinary meaning, a purely mechanical step of no significance. The Society submitted that the requirement under s 395(2) should not be seen as different from any other procedural step in Parts 4.2 to 4.6 of the LPA, such as those set out in [17] above.

19. Turning to the legislative history of the relevant provisions of the LPA, the Society submitted that the "ancestors" of the relevant provisions were either amended or introduced following the decision in Barwick. It submitted that one of the two omissions considered in Barwick was a failure by the applicable body to determine that a complaint should be accepted more than three years after the relevant conduct had occurred. The Society submitted that the subsequent legislative history reveals that the consequence of automatic nullity or voidness, which was the outcome dictated by the High Court's decision in Barwick, was one of the very things the legislature intended to remedy by the provisions now under consideration.

20. At this point it is convenient to consider the decision in Barwick, which concerned disciplinary proceedings against a solicitor under the Legal Profession Act 1987 (NSW) (the NSW Act). The facts in Barwick are set out in the head note of the report of the decision in the Australian Law Reports:

Part 10 of the Legal Profession Act of 1987 (NSW) (the Act) dealt with disciplinary proceedings against legal practitioners. Section 135(1) provided that the Council of the Law Society of New South Wales (the Council) may initiate a complaint against a legal practitioner in respect of conduct of the legal practitioner. Section 138(1) provided that a complaint may only be made within three years after the conduct was alleged to have occurred. Section 138(2) gave the Legal Services Commissioner (the Commissioner) a discretion, to be exercised on specified grounds, to accept a complaint made after three years. Division 5 of Pt 10 dealt with the investigation of complaints. Section 155(2) provided that the Council or the Commissioner must institute proceedings in the Legal Services Tribunal (the tribunal) with respect to a complaint against a legal practitioner if satisfied that there was a reasonable likelihood that the legal practitioner would be found guilty by the tribunal of unsatisfactory professional conduct or professional misconduct. Section 167 provided that proceedings may be instituted in the tribunal with respect to a complaint against a legal practitioner by an information laid in accordance with the Pt 10. Section 167A(1) provided that the tribunal may vary an information laid so as to omit allegations or include additional allegations if the tribunal was satisfied that it was reasonable to do so.

In June 1995 a Professional Conduct Committee of the Law Society, acting under delegation from the Council, resolved that a complaint be initiated against the appellant pursuant to s 135 of the Act in relation to certain conduct and that proceedings be instituted against the appellant in the tribunal with respect to the complaint pursuant to s 155(2) of the Act. Most of the conduct the subject of the complaint occurred before June 1992. An information was filed in September 1996. In July 1997 a Professional Conduct Committee considered further allegations against the appellant, following which the Council resolved that a complaint be initiated against the appellant pursuant to s 135 of the Act in relation to the further allegations and that proceedings be instituted against the appellant in the tribunal with respect to the complaint pursuant to s 155(2) of the Act. The Law Society subsequently filed an amended information pursuant to s 167A of the Act adding the further allegations. The appellant did not oppose the amended information at the time.

When the appellant's matter came on the hearing before the tribunal, the appellant applied to the Court Appeal for relief. The appellant contended that the manner in which the complaints against him were handled involved a failure on the part of the Law Society to comply with the provisions of Pt 10 of the Act in that there was no investigation phase between the initiation of a complaint and the institution of proceedings before the tribunal. The appellant contended that, on this ground, there was no information laid in accordance with Pt 10 so as to found the jurisdiction of the tribunal under s 167. The appellant also noted that some of the conduct the subject of the June 1995 and July 1997 complaints occurred more than three years before the relevant complaint and contended that, as a result of s 138, such conduct could not be the subject of tribunal proceedings. The appellant further contended that the power to amend information given by s 167A of the Act could not be used to add to the information filed in September 1996 the allegations of conduct occurring more than three years before the relevant complaint. The Court of Appeal granted some, but not all, of the relief sought by the appellant. The appellant was granted leave to appeal to the High Court.

21. With respect to the appellant's first contention, the High Court held (per Gleeson CJ, Gaudron and McHugh JJ at [62]-[64]; per Kirby at [115]; and per Callinan J at [181]) that the appellant was entitled to an order for prohibition on the ground that the jurisdiction of the tribunal was not regularly invoked as the Council had overlooked the need to initiate a complaint and conduct an investigation and, hence, had substantially bypassed the required procedures. The plurality (Gleeson CJ, Gaudron and McHugh JJ) said concerning the scheme of Part 10 of the NSW Act at [53]:

Not every departure from the procedures laid down by Pt 10, and, in particular, Div 5, will result in a lack of jurisdiction under s 167. However, one of the purposes of the legislation is to bring about the result that, before a matter comes to the tribunal, it will have been the subject of a complaint which was the subject of an investigation monitored by the Commissioner and considered and dealt with by a Council or the Commissioner under s 155.

22. The appellant was also successful on his second contention. Section 138 of the NSW Act effectively imposed a three year time limit to the making of complaints, but provided that the Legal Services Commissioner could accept a complaint made after that time if satisfied that certain criteria were satisfied. The plurality said, with regard to s 138, at [71]:

The purpose of s 138 is to set a time limit on complaints, while allowing the Commissioner an overriding discretion, to be exercised upon specified grounds, to accept complaints that would otherwise be out of time. That discretion protects the public interest. It has not been exercised in this case.

23. In a separate judgment, Kirby J said, after referring to the fact that proceedings were commenced against the appellant without steps being taken to have the Commissioner consider whether to accept the complaint out of time, at [97]:

Accordingly, the proceedings instituted in the tribunal against Mr Barwick by the information (laid by the appropriate Council) were not, to that extent, in accordance with Pt 10 of the Act. The variance is not an immaterial or a purely procedural one. It goes to the admissibility of the complaint at the threshold. Denial of an insistence upon consideration by the Commissioner of the discretions reposed in that office-holder by s 138(2) is not only an impermissible attempt to bypass the Commissioner's responsibilities under the Act. It also deprives Mr Barwick of provisions enacted by parliament for the protection of legal practitioners. This is a serious departure from the scheme and requirements of the Act. The defects complained of therefore concern the power or jurisdiction of the tribunal to hear and determine the complaint otherwise than in accordance with Pt 10 of the Act.

24. The appellant was also successful on his third contention, with the plurality saying at [74]:

In a case to which s 138 applies, and where there has been no exercise of the discretion by the Commissioner under s 138(2), the clear intent of the statute is that the procedures of Pt 10 of the Act cannot be invoked after the period of three years referred to in s 138 has elapsed. A complaint which is not accepted by the Commissioner under s 138(2) has no statutory effect. The consequences of s 138 cannot be negated by an exercise by the tribunal of its power of variation of an information under s 167A.

25. Returning to the submissions of the Society in the present case, Mr Beaumont submitted that the decision in Barwick prompted legislative reform in New South Wales, specifically that:

(a) a new s 137 permitted the Council, as well as the Commissioner, to extend the time for the making of a complaint; and

(b) s 167A was amended such that an information before the tribunal could be amended to include an additional allegation concerning conduct that occurred more than three years before the variation was made.

26. Subsequently, the New South Wales Law Reform Commission delivered a report in April 2001 (Report 99). The Report recommended that disciplinary proceedings should not be invalidated by a formal defect or an irregularity in the making or referral of a complaint to the tribunal unless the tribunal was of the opinion that substantial injustice had been caused by the defect, and that injustice could not be remedied by an order of the tribunal. In November 2001, an issues paper was released by the NSW

Attorney-General's Department. The paper suggested that the tribunal could be given a broad power to relieve a Council or the Commissioner from the need to comply with procedural requirements set down in the NSW Act. This was provided that it could be shown that the practitioner had suffered no detriment from a failure to comply with the procedural requirements, or that it was in the public interest to do so. A new s 171 was introduced into the NSW Act by the Legal Profession Amendment Act 2004 (NSW), the effect of which was to grant the tribunal power to disregard procedural lapses. That section became s 561 under the Legal Profession Act 2004 (NSW), and which, the Society submitted, is substantially to the same effect as s 424 of the LPA.

27. The Society then referred to the Explanatory Statement to the Legal Profession Bill 2006 (which became the LPA). The object of the Bill was expressed to be "to replace the Legal Practitioners Act 1970 with a new Act to provide for the regulation of legal practice in the ACT and to facilitate the regulation of legal practice on a national basis, in conjunction with the National Legal Profession Model Laws Project". The Statement makes it clear that the LPA was intended to be part of a national program of legislation agreed by the Commonwealth, the states and territories to implement uniform provisions for regulating the legal profession. For that reason, Mr Beaumont submitted, the legislative reform in NSW that followed the decision in Barwick was relevant to understanding equivalent provisions that became part of the LPA.

28. Mr Beaumont then referred me to s 421 of the LPA, dealing with amendments to applications for disciplinary proceedings in the ACAT:

(1) The ACAT may, on application by the relevant council or on its own initiative, amend an application to omit an allegation or to include an additional allegation, if satisfied that it is reasonable to make the amendment having regard to all the circumstances.

(2) Without limiting subsection (1), in considering whether or not it is reasonable to amend an application, the ACAT must have regard to whether amending the application will affect the fairness of the proceeding.

(3) The ACAT may amend an application to include an additional allegation even though the alleged conduct-

(a) happened more than 3 years before the amendment is made; or

(b) has not been the subject of a complaint or investigation under this chapter.

29. Mr Beaumont submitted that the effect of s 421(3) is that the ACAT may amend an application if satisfied of the requisite matters, even though the alleged conduct happened more than three years before the amendment, and has not been the subject of a complaint or investigation. He submitted that it would be surprising if the Legislative Assembly intended to vest the ACAT with such a discretion to amend if it had not intended s 424 to entitle the ACAT to disregard a failure on the part of the Council to make a determination under s 395(2).

Consideration - breach of s 395(2) of the Legal Professions Act 2006 (ACT)

30. I am satisfied that the submissions of the Society should be accepted. I am also satisfied that the Appeal President was correct to find that the commencement of proceedings in the ACAT in the absence of a decision under s 395(2) of the LPA was a failure by the Council to observe a procedural requirement which the ACAT was entitled to disregard pursuant to s 424.

31. The process of construction of a statute begins with the text of the statute, but the text is to be read in its context which includes the statute as a whole, the relevant legislative history and relevant extrinsic material: Alcan (NT) Alumnia Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47]. The exercise which I am obliged to undertake in these proceedings is primarily one of statutory interpretation. The question is not what may be considered procedural in the general law, but what the legislature intended in s 424 of the LPA. I adopt, without here repeating, the submissions made by the Society on the interpretation of the relevant provision of the LPA. For that reason I reject the practitioner's submission that the decision in Barwick compels this Court to determine that the proceedings in the ACAT are a nullity. I do not accept the practitioner's submission that the decision in John Pfeiffer Pty Ltd obliges me to find that s 395(2) of the LPA is a limitation provision and that the failure of the Society to make a decision is not procedural, but is substantive in the sense that it affects the rights of parties.

32. The High Court in John Pfeiffer Pty Ltd was concerned with the distinction traditionally and necessarily drawn between substantive and procedural laws in a particular area of legal discourse, being the choice of law rules. Those rules exist as part of the common law, and the decision was concerned with the development of the common law in that particular area of the law. The nature of proceedings under Part 4.7 of the LPA is significantly different to the type of proceedings to which the choice of law rules apply; the principal difference is that disciplinary proceedings against legal practitioners are primarily intended to protect the public. In addition, s 395(2) of the LPA does not act as a limitation provision in the traditional sense referred to in John Pfeiffer Pty Ltd, as it neither removes a right vested in the practitioner or the Council by the LPA, nor does it bar a remedy for any such right. Chapter 4 of the LPA vests certain powers in the Council, which it must or may exercise for the purposes found in s 384. These purposes focus on the public interest. It is wrong, in my opinion, to think of the powers vested in the Council as the equivalent of a right in tort law. In exercising its functions under Chapter 4 of the LPA the Council is not asserting a right vested in it by the LPA, but is exercising a function given to it by the LPA, and which is to be exercised in the public interest. In exercising that function, the Council is precluded from setting in train the procedures required by the LPA where a complaint concerns events which occurred more than three years before the complaint was made, unless the Council determines to proceed based on the specified grounds. The provisions of s 395(2) are intended to balance interests, not rights; it is a balance between the public interest in promoting professional standards, competence and honesty in the legal profession against the interest of individual practitioners to be protected from stale complaints.

33. It follows from the above that the requirement for a decision under s 395(2) is a procedural requirement, and a failure by the Council to make a decision as required by the section may be disregarded by the ACAT by virtue of s 424.

34. I am further satisfied that the statutory text and context of the LPA, as well as the legislative history of the relevant provisions referred to by the Society, also support the conclusion that a failure to make a decision under s 395(2) is a failure to observe a procedural requirement. In particular, the effect of s 421(3) is clearly contrary to the proposition that a failure to comply with s 395(2) deprives the ACAT of jurisdiction to hear a disciplinary application commenced by the Council.

35. These proceedings will be dismissed. Unless either party makes another application within 14 days, I order that the practitioner pay the costs of the defendants on a

I certify that the preceding thirty-five [35] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns.