Practitioner D3 v Council of the Law Society of the ACT

consideration 7 Abuse of process is "insusceptible of a formulation which comprises closed categories": Tomlinson v Ramsey Food Processing Pty Ltd (Tomlinson) (2015) 256 CLR 507, 518 at [25]. It can arise in any circumstances in which "the use of a court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute": Tomlinson at [25]. 8 Abuse of process is inherently broader and more flexible than estoppel. That is, "… making a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel": Tomlinson at [26].

The applicant's proposed amended statement of claim 9 In his proposed amended statement of claim, the applicant seeks the following relief: (1) a declaration that the orders of the ACAT dated 19 July 2018 were made "pursuant to an invalid exercise of the Judicial Power of the Commonwealth"; (2) a declaration that the originating application filed by the Law Society Council in ACAT was invalid; (3) writs "by way of certiorari and prohibition issue against" the Law Society Council and ACAT quashing the orders made by ACAT on 19 July 2018. 10 The applicant also issued notices under s 78B of the Judiciary Act 1903 (Cth) (the Judiciary Act) (the s 78B notices). 11 The hearing before me was conducted on the basis that the constitutional issue raised by the applicant's originating application and proposed amended statement of claim, and which was the subject of the s 78B notices, is whether the ACAT exercised federal jurisdiction, contrary to s 75(iv) of the Constitution, which vests original jurisdiction in the High Court of Australia "in all matters…between States, or between residents of different States, or between a State and a resident of another State". The applicant accepted that it was thus necessary for him to make good the proposition that the Australian Capital Territory is a State, because s 75(iv) only refers to States and not to Territories. 12 In addition to the constitutional issue, counsel for the Law Society Council accepted that, doing the best one can, the proposed amended statement of claim should also be regarded as comprising the following additional claims: (1) a claim in respect of s 395(2) of the Legal Profession Act 2006 (ACT) (the LPA 2006) that the claim of misconduct made by the Law Society Council before the ACAT is time-barred; (2) a claim that the Law Society Council failed to give reasons for its decisions in respect of the applicant; and (3) a claim that the Law Society Council did not pass a resolution to amend its original complaint in respect of the applicant's conduct and that the amended complaint was not made pursuant to the authority of the Law Society Council. 13 It is not altogether clear to me why the court should permit someone in the applicant's position (he is, after all, a lawyer) the luxury of having his proposed pleading effectively reconstituted by his opponent, but the Law Society Council was content to proceed on the basis that his pleading should thus be construed in the applicant's favour. 14 Nonetheless, each of these claims, including the constitutional claim, is bound to fail. 15 Each of the claims described in paragraph [12] above has been raised by the applicant, and determined adversely to him, in proceedings in the Australian Capital Territory. Further, the applicant, whilst represented by experienced counsel, consented to the final orders made by the ACAT, and in doing so obtained the advantage of having one of the charges (fraud on the Commissioner for ACT Revenue relating to the applicant's application for, and ultimately receipt of, a First Home Owners Grant, called "charge 1") being dismissed. 16 The attempt again to agitate these claims in the Federal Court of Australia is an abuse of process, not only because the applicant has already had his opportunity to raise each of these issues in various proceedings determined in the Australian Capital Territory, but because the Federal Court of Australia has no jurisdiction to entertain them. 17 The constitutional point is bound to fail because the Australian Capital Territory is not a State, a proposition that one would have thought could not conceivably give rise to controversy.

The facts 18 The applicant is a legal practitioner admitted to practise in the ACT, South Australia and Victoria. In late 2008, following receipt of a complaint, the Law Society Council commenced an investigation into his conduct. In 2013, the Law Society Council commenced disciplinary proceedings against him. 19 In the years 2013 through 2018, the applicant brought a number of applications in and relating to those disciplinary proceedings. Those proceedings have been heard and determined by the ACAT in various levels of the judicial hierarchy in the Australian Capital Territory. I do not propose to rehearse all of them. The relevant parts of them are described below. 20 On 8 February 2015, the applicant commenced a proceeding in the Supreme Court of the Australian Capital Territory seeking orders that the disciplinary proceedings then pending before the ACAT be permanently stayed on the basis that they were an abuse of process, among other things. 21 The Law Society Council then sought to have that application struck out. 22 That application was heard and determined by Burns J: see Practitioner D3 v ACT Civil and Administrative Tribunal [2015] ACTSC 170 and Practitioner D3 v ACT Civil and Administrative Tribunal (2016) 308 FLR 132; [2016] ACTSC 61. The effect of those two decisions was that the Supreme Court of the Australian Capital Territory rejected the applicant's case that the disciplinary proceedings against him in the ACAT were time-barred and dismissed his application to stay the disciplinary proceedings. That is the identical issue that the applicant now seeks to agitate in this proceeding: see [12(a)] above. 23 On 3 February 2017, the applicant brought an application in the ACAT which again sought the dismissal of the disciplinary proceedings. In a decision made on 7 February 2017, the ACAT found in favour of the applicant's claim that the LPA 2006 did not apply to conduct the subject of the disciplinary proceedings which occurred prior to the commencement of that Act. 24 The Law Society Council appealed to the Supreme Court of the Australian Capital Territory. That application was heard by Penfold J and, on 6 March 2018, her Honour ruled in favour of the Law Society Council and overturned the decision of the ACAT which had held that the LPA did not apply to pre-2006 conduct: see Council of the Law Society of the ACT v Legal Practitioner D3 (2018) 331 FLR 132; [2018] ACTSC 45. 25 The grounds of misconduct that the Law Society Council sought to rely on before the ACAT were as follows (see Council of the Law Society of the ACT v Legal Practitioner D3 (2018) 331 FLR 132; [2018] ACTSC 45 at [9]): (a) fraud on the Commissioner for ACT Revenue (the Commissioner) relating to [the applicant's] application for, and ultimately receipt of, a First Home Owners Grant (FHOG) (Ground 1); (b) breach by [the applicant] of the Legal Profession (Solicitors) Rules 2007 (ACT) and of an undertaking to the Council, by [the applicant's] failure to advise the Council that Supreme Court proceedings relating to the FHOG application had been re-listed or finalised (Ground 2); and (c) breach by [the applicant] of r 39.1 of the Legal Profession (Solicitors) Rules by making false representations to the Council and attempting to mislead the Council about the outcome of the Supreme Court proceedings related to the FHOG application (Ground 3). 26 On 14 March 2018 her Honour granted relief which included the following: (1) The court declares that [ACAT] has jurisdiction under the Legal Profession Act 2006 (ACT) to hear and determine the plaintiff's application for disciplinary action, including ground 1 in that application; (2) The Court makes an order in the nature of, and to the same effect as, a writ of mandamus pursuant to s 34B(1) of the Supreme Court Act 1933 (ACT), directing the second defendant to deal according to law that the plaintiff's application for disciplinary action, including ground 1. 27 It can immediately be observed that the relief that the applicant seeks in his proposed amended statement of claim is, in significant part, the inverse of the relief granted by Penfold J on 14 March 2018, namely: (1) a declaration that the orders of ACAT dated 19 July 2018 were made "pursuant to an invalid exercise of the Judicial Power of the Commonwealth"; (2) a declaration that the originating application filed by the Law Society Council in ACAT was invalid; (3) writs "by way of certiorari and prohibition issue against" the Law Society Council and ACAT quashing the orders made by ACAT on 19 July 2018. 28 The applicant then filed a notice of appeal in respect of the relief granted by Penfold J. 29 The disciplinary proceedings then returned to ACAT for determination. 30 On 19 July 2018, ACAT made orders by consent that determined the disciplinary proceedings. 31 The orders to which the applicant consented in the ACAT are lengthy, but because they contain critical admissions made by the applicant about his dishonesty, it is necessary to set them out: CONSENT DECISION PURSUANT TO SECTION 55 OF THE ACT CIVIL AND ADMINISTRATIVE TRIBUNAL 2008 (ACT) The parties have reached an agreement as to the terms of a decision of the Tribunal that is acceptable to them; The terms of the agreement have been reduced to writing, signed by or on behalf of the parties and lodged with the Tribunal; The Tribunal is satisfied that a decision consistent with those terms would be within the powers of the Tribunal; …By consent, the Tribunal makes orders in the terms of the agreement signed by the parties and annexed hereto. … By consent, pursuant to s 55(1) of the ACT Civil and Administrative Act 2008 (ACT) …the Tribunal, being satisfied that the below orders are appropriate for the Tribunal to make and within its powers: 1. Finds that it is satisfied that the respondent is guilty of professional misconduct in each of the respects set out in the admissions and further particulars signed by the respondent, copies of which are attached hereto (exhibits 1 & 2). 2. Recommends that the name of the respondent be removed from the Roll of Legal Practitioners in: a. the Australian capital Territory … b. South Australia … c. Victoria … 3. Recommends, pursuant to s 433(1) of the LPA, that the respondent pay the applicant's costs of the proceedings as agreed or assessed. 4. Orders that the further application for disciplinary action (corrected) filed by the applicant be otherwise dismissed. 5. Grants the parties liberty to apply, in the event that costs are not agreed and it becomes necessary to seek further orders as to the means by which the costs are to be assessed. That agreement was signed by the solicitor for the Council of the Law Society and by counsel for the applicant in this proceeding. 32 The exhibits particularise the dishonesty which the applicant agreed constituted professional misconduct which warranted his name being removed from the relevant rolls of legal practitioners. The acts of dishonesty, which include acts that may properly be characterised as perjury and suborning perjury, arose out of the applicant's conduct before proceedings in the Administrative Appeals Tribunal in which the question arose whether the applicant had improperly received and retained payments under the first home buyer's scheme. 33 Exhibit 1 said: [The applicant] accepts that he sought to mislead the AAT in relation to evidence of his occupation of the premises in the proceedings before Senior Member Hatch. He accepts that he failed to disclose those circumstances to the society in his responses to the Law Society's investigation of the Commissioner's complaint. He accepts that he breached his undertaking to inform the Law Society of the outcome of the Supreme Court appeal. He accepts that his conduct in relation to the conduct of the proceedings before the AAT and the Law Society's complaint against him is professional misconduct. He accepts that the appropriate sanction in these circumstances is that the Tribunal should make an order recommending that his name be removed from the Roll of Legal Practitioners. He apologises for his conduct and for his lack of insight in relation to the nature, seriousness and consequences of his conduct. 34 Exhibit 2 said: 1. [The applicant] called his sister to give evidence in the AAT proceedings before Senior Member Hatch in relation to his occupation of the premises from August 2004 in circumstances where he knew: (a) he and his sister had been estranged for many years and that his first contact with her was on 11 January 2015 after he had rented the premises; (b) his sister had no personal knowledge of the facts in respect to which he sought to elicit evidence; (c) the evidence his sister gave in relation to his occupation of the premises from August 2004, including that she attended the premises in August 2004 and helped him set up his wardrobes and set up the house as a home was untrue … 2. In his evidence to the AAT [the applicant] did not give truthful evidence in relation to his claim to have commenced to occupy the premises from April 2004 and subsequently that he lived there full time from August 2004. 3. [The applicant] filed an application in the Supreme Court for leave to appeal against the decision of Senior Member Hatch on grounds that included a claim that the Tribunal had wrongly found that his sister "was wrong about where the applicant was living or was not telling the truth" … 4. [The applicant] swore an affidavit in the Supreme Court in support of his application for leave to appeal in which he falsely stated: (a) at paragraph 16, that "From approximately February 2004 … the Vendor permitted me pre-settlement access to the property … During this time I attended to some preliminary painting and decorating at the property and spent some nights at the property. The frequency of my stays at the property increased around August 2004". (b) At paragraph 18, that "I reiterate my evidence … That I was living full-time in the property from about August 2004" … 5. [The applicant] provided material to the Law Society in response to the complaint by the Commissioner for ACT revenue that included the above-mentioned documents and assertions and at various times during the Law Society's investigation purported to rely on the veracity of the material when he knew it to be untrue. 6. In response to the Law Society's request on 31 July 2012 for [the applicant] to indicate any other factors supporting his contention that he occupied the apartment as his principal place of residence [the applicant] directed the Law Society "to the evidence that was given that the tribunal by myself and a number of other witnesses" when he knew that some of that evidence was untrue … 35 Mr Phelps, the solicitor who has acted for the Law Society Council at all times in respect of the disciplinary proceedings against the applicant, swore, and the applicant did not contest, that the consent orders reflected the compromise position the parties reached. As Mr Phelps explained in his affidavit sworn 18 October 2018: In exchange for entering into the Consent Orders, [the applicant] gained the forensic advantage that he did not face a four-day contested hearing of his claim, and he made admissions as to his conduct, including matters the subject of grounds 2 and 3, and conduct which had occurred in and from 2008. He thereby by avoided any finding, or making any admission, in respect of the fraud charge in ground 1, which was dismissed. The parties agreed in particular that [the applicant's] position in negotiations (through his counsel) was that, if the Society continued to press ground one in the Tribunal, the [applicant] would not lead evidence contradicting it, but nor would he admit it and that, in those circumstances, he would continue with his appeal because he did wish to challenge the Tribunal's jurisdiction to hear ground 1. [The applicant's] position through his counsel was that [he] did not, and would not, challenge the Tribunal's jurisdiction to make findings about [his] conduct in and from 2008 - hence the admissions in exhibits 1 and 2 of those orders directed to conduct in and from 2008. 36 Eventually, the applicant withdrew his notice of appeal from the decision of Penfold J, as he had undertaken to do, although not before he had unsuccessfully sought to have the appeal transferred to the Federal Court of Australia: see Practitioner D3 v Council of the Law Society of the Australian Capital Territory [2018] ACTCA 47. 37 Having consented to the orders made by ACAT on 19 July 2018, and having done so in circumstances where the decision of Penfold J had declared that the ACAT had jurisdiction in respect of the disciplinary proceedings brought against the applicant, because claims in this proceeding have the ultimate aim of securing relief directly contrary to each the orders granted by her Honour, each of the claims that the applicant now seeks to re-agitate in his proposed amended statement of claim is an abuse of process. For that reason alone I would refuse leave to amend the statement of claim and dismiss the proceeding. 38 A stranger to our system of government and the Constitution might well wonder, in any event, what power the Federal Court of Australia has to set aside orders made by the ACAT, which is a creature of a statute of the legislature of the Australian Capital Territory. (The ACAT was established by the Legislative Assembly of the Australian Capital Territory through the ACT Civil and Administrative Tribunal Act 2008 (ACT), a division of which is an occupational discipline division). 39 The simple answer to that question ("what power does the Federal Court of Australia have to set aside orders made by the ACAT?") is that it has no such power. It has no such power because when the ACAT made the orders it did so in the exercise of Territory powers, not in the exercise of federal jurisdiction. As McHugh J said in Scott v Bowden (2002) 194 ALR 593; [2002] HCA 60 at [14]: … There is no substance in the contention of the plaintiffs that the other defendants are also within the diversity jurisdiction of this Court because they are residents of the Northern Territory which, the plaintiffs allege, is a constitutional State for the purposes of s 75(iv) of the Constitution. The Constitution draws a clear distinction between States and Territories, and Territories are not mentioned in s 75(iv). Until the grant of self-government, the Territories were subject to federal law or federal control and ultimately still are. And, as a matter of history, when the Constitution was enacted, the settled doctrine of the United States courts was that the federal courts had no jurisdiction in cases concerning a resident of a State and a resident of a Territory. 40 And the definition of "State" in covering clause 6 of the Constitution unambiguously (although in part anachronistically) draws a clear distinction between States and territories: The States shall mean such of the colonies of New South Wales, New Zealand, Queensland, Tasmania, Victoria, Western Australia, and South Australia, including the northern territory of South Australia, as for the time being are parts of the Commonwealth, and such colonies or territories as may be admitted into or established by the Commonwealth as States; and each of such parts of the Commonwealth shall be called a State. 41 The Australian Capital Territory did not exist when that definition came into force in 1901. It was not a colony. Nor was it then a territory. It was not covered by governing clause 6, and the territory is not and never has been a state. It was, on the contrary, established as a territory from 1 January 1911: see Seat of Government Act 1908 (Cth), ss 3 and 4; Seat of Government Surrender Act 1909 (NSW) s 6, Second Schedule; Seat of Government Acceptance Act 1909 (Cth) ss 4 and 5(2), Second Schedule. 42 As the Solicitor-General further explained in his written submissions: The Territory is not a State 102. The Territory is neither one of the several Australian States nor a part of NSW in either a geographic or body politic sense. As a consequence, ss 75(iv), 77(ii) and 77(iii) of the Constitution and ss 38 and 39 of the Judiciary Act do not apply to the Territory [citing Scott v Bowden [2002] HCA 60; (2002) 194 ALR 593 at [14], per McHugh J]. 103. This means federal jurisdiction in relation to those matters described in s 75(iv) of the Constitution does not arise in an ACAT application between either: (1) the Territory and a State; (2) a resident of the Territory and a resident of a State; or (3) the Territory and a resident of a State. 104. The first of these is not a matter "[b]etween States" within the words of s 75(iv) of the Constitution. 105. The second of these is not a matter "between residents of different States" within the words of s 75(iv) of the Constitution. 106. The third of these is not a matter "between a State and a resident of another State" within the words of s 75(iv) of the Constitution. 107. The Intervener submits the fact the Territory is not a State means the ACAT Application was not a matter described in s 75(iv) of the Constitution. 108. Further, as federal jurisdiction is limited to a matter described in either ss 75 or 76 of the Constitution, and if the matter that was before the ACAT pursuant to the ACAT Application cannot be characterised as such a matter, then it follows that ACAT's determination of the ACAT Application through the ACAT Orders did not involve the exercise of federal jurisdiction. 109. The Intervener submits the fact the Territory is not a State is fatal to the Applicant's ACAT jurisdiction argument. 43 I respectfully agree. 44 It remains only to deal with two other points sought to be made by the applicant. 45 First, the applicant contended that ss 3A and 78AA of the Judiciary Act operate in some fashion to mean that a Territory is a State for the purposes of s 75(iv) of the Constitution. Those provisions do no such thing. Inclusion of the Australian Capital Territory and the Northern Territory within the definition of "State" in the sections is only for the purposes of Division 1A of Part 9 of the Judiciary Act. And that has nothing to do with giving notices under s 78B. It is simply a mechanical provision and a convenient drafting device to ensure that the Attorneys-General of the Territories also receive s 78B notices. 46 Secondly, there was a suggestion in the written submissions filed by the applicant, although nowhere else, that the powers exercised by the ACAT in dealing with the disciplinary proceedings brought against the applicant by the Law Society Council and in making the orders in respect of him involve the exercise of Commonwealth judicial power. But the Commonwealth doctrine of separation of powers (that is to say separation of the vesting and exercise of judicial powers from the vesting and exercise of executive and legislative powers, which prohibits the Commonwealth from vesting federal jurisdiction in Federal tribunals that are not federal courts and prevents Federal tribunals from exercising Commonwealth judicial power (see R v Kirby; ex parte Boilermakers' Society of Australia (1956) 94 CLR 254)) does not apply to the Australian States (K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501 at [153] or to the self-governing Territories (North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569). 47 For all those reasons, it follows that the proceeding has not the remotest prospect of success. 48 There are, as the very helpful written submissions filed on behalf of the Council of the Law Society explain, myriad other reasons which would equally require the summary dismissal of the proceeding and the refusal of leave to amend the statement of claim. There are other constitutional issues which the Solicitor-General's equally helpful submissions may be said to arise in the universe of infinite possibilities. As to the former, it is unnecessary to burden these reasons with a consideration of them. As to the latter, it is undesirable: see ICM Agriculture v The Commonwealth (2009) 240 CLR 140, 199 at [141] (constitutional issues should not be decided unless it is necessary to do justice in a given case and to determine the rights of the parties).

disposition 49 Leave to amend the statement of claim will be refused and the proceeding will be dismissed as an abuse of process. 50 The applicant has been on notice that his claim is hopeless from the outset. He must therefore pay the Law Council Society's costs of the proceeding on an indemnity basis. I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Callaghan.