R v Australian Broadcasting Tribunal; ex parte Hardiman [1980] HCA 13, 144 CLR 13; Fernando v Medical Complaints Tribunal [2007] TASSC 44, 16 Tas R 237; Boland v Clarence City Council [2018] TASSC 43 applied.

Judgment Number: [2025] TASFC 9

1. On 9 January 2025 the appellant brought an appeal to the Supreme Court against a decision of the Disciplinary Tribunal (the Tribunal) under the Legal Profession Act 2007[1] (the Act). On 23 May 2025, Marshall AJ conducted a hearing to address interlocutory applications made in the appeal proceedings, one made by the respondent and two made by the appellant. His Honour made interlocutory orders. The appellant now brings this appeal to the Full Court challenging those interlocutory orders and complaining about the way his Honour addressed, or did not address, her interlocutory applications.
2. The appellant is unrepresented. With respect to her, her arguments betray her misunderstanding of the rules of procedure of the Supreme Court and confusion about what the learned primary judge was called upon to decide at that stage of her appeal. The appeal to this Court should be dismissed.

1. The respondent is a legal practitioner. In 2006 he was engaged by the appellant to act for her and her daughter in an action against the State. In very general terms, the action was based on the allegation that the State, for a period in 2005 and 2006, wrongfully removed the appellant's daughter from her care following a false allegation of assault. The appellant subsequently made a series of complaints to the Legal Profession Board[2] (the Board) about the respondent's professional conduct. It is not necessary to descend to detail, but the substance of the appellant's grievance was that the respondent either failed to advise her of important matters or gave incorrect advice. The appellant's first complaint to the Board was in 2013. It was investigated and dismissed. Another complaint was made in 2015. It was also investigated and dismissed.
2. The complaint from which this appeal originated was made to the Board on 30 April 2019. The new complaint included an allegation, based on later events, that the respondent misled the Board in the course of its investigation of the 2015 complaint. On 8 May 2020 the Board summarily dismissed the 2019 complaint[3]. It did so for three principal reasons. Firstly, the Board determined that the complaint was not one the Board had power to deal with[4], other than to dismiss it, because the complaint was made more than three years after the conduct was alleged to have occurred, and the Board did not determine that it was just and fair to deal with it. Secondly, the Board determined that the complaint concerned conduct which was not capable of amounting to professional misconduct[5]. Thirdly, the Board found that the complaint, at least in part, concerned conduct which had been the subject of the previous complaints made by the appellant which had already been dismissed[6].
3. On 26 May 2020, after having been served with notice of the Board's determination, the appellant applied to have the matter determined by the Disciplinary Tribunal. The power to make that application derived from s 458 of the Act. The application had a lengthy and complicated course, but on 17 December 2024, the Tribunal decided to dismiss it. The effect of the Tribunal's decision was to uphold the Board's decision. The Tribunal agreed with the Board's determination that that there was "no substance in this complaint" and that the conduct complained of did not amount to professional misconduct[7].
4. The appellant then sought to appeal the Tribunal's decision to the Supreme Court.

1. The appellant's notice of appeal advances the same grounds of appeal for each of the interlocutory orders she challenges. She alleges that "the decision involved errors of law", "failed to take relevant considerations into account", "failed to accord natural justice", "misinterpreting (sic) legislation or precedent" or was an "improper exercise of the power conferred by the enactment under which it was purported to be made".
2. The notice of appeal also complained that the primary judge did not completely deal with her interlocutory application filed 13 February 2025, and failed to consider an interlocutory application filed by her on 20 March 2025.
3. The appellant's first set of submissions in support of the appeal are 37 typed pages and are accompanied by two bundles of annexures, one containing 970 pages and the other 790 pages. Her second set of submissions are 50 typed pages, although a small part is annexed copies of legislation. In response to the respondent's submissions the appellant then filed a further, third set of submissions, which are 66 typed pages. As will be explained, the submissions and attachments are almost entirely irrelevant to the interlocutory orders his Honour made. His Honour's function was to manage the preparation of the appeal from the Tribunal's decision and to deal with the orders which were sought by the applications. Rather than address the procedural orders, the arguments advanced by the appellant to this Court, for the most part, seek to re-agitate her many grievances about the proceedings before the Board and the Tribunal and her complaints about the legal practitioner.

1. The first interlocutory order made by Marshall AJ on 23 May 2025 was to adjourn an interlocutory application made by the respondent. His Honour ordered that the application be adjourned to a date to be fixed to await the outcome of an appeal in a different case. In argument before this Court it was not clear whether the appellant still challenged the adjournment order but her notice of appeal identified the order as one of the orders subject to her appeal. The decision to adjourn the application was a discretionary one[8]. The applicant does not identify any error made by his Honour. To the contrary, his Honour's decision was entirely reasonable. It arose in the following circumstances. The only right to appeal a decision of the Tribunal under the Act to the Supreme Court is created by s 484. In Wang v Sheehy [2024] TASSC 67, Brett J decided that the right of appeal created by s 484 does not apply to a determination of the Tribunal made upon an application under s 458. The respondent, relying on Wang v Sheehy, applied for an order that the appellant's appeal be set aside or dismissed. However, Brett J's decision in that case is presently subject to an appeal to this Court which has not yet been decided.
2. Before making the adjournment order Marshall AJ asked the appellant whether she opposed the adjournment. Once she understood what was being asked she responded "I would be happy if that was adjourned". No appeal lies to this Court from an order she consented to[9]. In any event, there is no rational or sensible reason for this Court to interfere. The adjournment of the application to set aside or dismiss the appellant's appeal could only have been for the appellant's benefit. No order was made staying the appeal. There could have been no possible prejudice to the appellant. If this Court ultimately determines that the Supreme Court has no jurisdiction to decide an appeal from a Tribunal decision made on an application under s 458, every party, including the appellant, will be saved the considerable time and expense involved in determining the application and the appeal.

1. The second interlocutory order made by Marshall AJ was to dismiss an application made by the appellant to change the name of the respondent. That issue arose in this way. The original notice of appeal specified, as the respondent, the legal practitioner who was the subject of the complaint. The appellant's interlocutory application on 13 February 2025 sought an order that "the original notice of appeal [of 9 January 2025] be substituted by the amended appeal which names the Legal Profession Disciplinary Tribunal as the defendant and has updated grounds and orders." The proposed amended notice of appeal was attached to the application. One aspect of that proposed new notice was to remove the legal practitioner as respondent to the appeal and to substitute the Tribunal as respondent. His Honour was, with respect, entirely correct to refuse to make that order.
2. Before this Court, the appellant suggested that by the time the application came before Marshall AJ she wished only to change the title of the proceedings so that it accorded with the Supreme Court Rules 2000, r 705. That rule provides that a notice of appeal from a statutory tribunal is to be titled "In the Supreme Court of Tasmania" followed by the name of the registry in which the notice is filed, and in the matter of the Act under which the determination was made, and in the matter of the proceeding in which the determination was made. The appellant is correct that the rule applied to her appeal from the Tribunal decision. However, as it applied to the appellant's appeal, the rule was about form rather than substance. The appellant submitted to Marshall AJ that the naming of Mr Bartlett as respondent was a "clerical error" and that the Tribunal was the correct respondent. The appellant submitted to this Court that the Tribunal should be a respondent because it was the Tribunal's decision she wished to challenge.
3. The appellant's submissions are incorrect. The legal practitioner is the proper contradictor; that is, the proper person to argue against her appeal. Even if the appeal had been titled according to r 705, it would nevertheless have been necessary to serve the notice of appeal on the legal practitioner: r 707(c). According to s 484, if it applies in this case, the right of appeal against a Tribunal decision is given to the Board and "any party to the complaint." The parties to the complaint made under the Act were the appellant as the person who made the complaint and the legal practitioner against whom the complaint was made. The legal practitioner has a right to participate in the appeal. He has an obvious interest in the outcome of the appeal and had a proper interest in upholding the Tribunal's decision. If the appeal succeeds he may be subject to an adverse order for costs but, conversely, if the appeal is unsuccessful he will likely be entitled to recover his costs from the appellant. No order removing the legal practitioner as a party to the appeal should have been made.
4. The primary judge was also correct to refuse to make the Tribunal a party to the appeal. The Tribunal was established by the Legal Profession Act[10] but has no legal personage and no power to sue or be sued. The Tribunal, properly, has not sought to be party to the appeal[11]. The Tribunal's decision was made by three of its members and none of those persons have sought to participate in the appeal to have the decision upheld. There is no logical or cogent reason why the Tribunal or any of its members should be compelled to be a party to the appeal. None are necessary parties. To the contrary, the Tribunal is under no obligation to actively seek to sustain its determinations on appeal. It is an independent decision-making body. Where there is a right of appeal from a decision of a court or tribunal, it is inconsistent with the role of the court or tribunal for it to be a party to the appeal[12]. If the Tribunal, or a member of the Tribunal, chose to actively participate it would put itself or those persons, if unsuccessful, at risk of an adverse costs order[13]. The naming of the Tribunal as respondent to the appeal would be contrary to practice and not in conformity with the Supreme Court Rules, r 705(2).[14] In the appellant's submissions she made frequent reference to parties to an application made to the Supreme Court under the Judicial Review Act 2000. The position is different in proceedings under the Judicial Review Act and in applications for relief in the nature of prerogative relief. The Court is not dealing with an application under that Act or for relief of that nature.

1. The third interlocutory order made by Marshall AJ was to amend the grounds of appeal. It was another discretionary decision in respect to which the appellant has not identified error. The appellant's interlocutory application, dated 13 February 2025, sought to substitute the new notice with "updated grounds and orders." The original notice of appeal contained six grounds. The proposed new notice contained eight grounds, some of which were very similar to the original grounds although not in identical terms. Instead of substituting a new notice, the primary judge ordered that the grounds be amended. His Honour restated the substance of the new grounds the appellant wished to advance in a more coherent form and distilled them to six grounds. The order his Honour made was perfectly proper in the management of the appeal and caused the appellant no disadvantage at all. His Honour took care to ensure that the arguments the appellant said she wished to pursue fell broadly within the grounds. If the interests of justice require it, further amendments can be made if necessary.

The orders sought by the appellant were properly amended

1. The appellant's original notice of appeal filed 9 January 2025, stated that she sought seven orders. Her proposed new notice of appeal stated six orders, some of which had various sub-parts. The proposed new grounds substantially duplicated the original grounds although there were some differences. The appellant now complains that this aspect of her application was not dealt with. That submission is incorrect.
2. The appeal the primary judge was dealing with was an appeal from a statutory tribunal and was subject to the Supreme Court Rules 2000, Part 27, Division 4. Within that Division, r 705 provided that an appeal is to be instituted by notice of appeal in a summary way[15], and was to state the grounds of appeal and the order or determination sought[16]. The purpose of the latter requirement is so the Court and the adverse party have reasonable notice of the relief an appellant seeks. During the hearing, his Honour suggested to counsel for the respondent that "the appellant is entitled to say whatever order she wants and the court will deal with them". Counsel for the respondent agreed. When the appellant questioned the Court about the proposed orders his Honour continued: "I've said you're allowed to have whatever you liked about whatever orders you want and what you've sought there can stay in the amended document so I make that perfectly clear, that the appeal document is amended to reflect the orders you now seek."
3. The order relating to the formulation of the proposed orders was not included in the sealed order issued by the Court on 19 September 2025. However, that is a not a matter of significance. It was made clear to the appellant, and his Honour ordered, that she could rely on the new proposed orders. It is commonly the case that such matters are developed, adjusted and amended by courts and judges to accord with the interests of justice as matters progress. It is to be recalled that these were procedural orders made by his Honour in the management of an appeal prior to hearing. His Honour said nothing about whether the orders the appellant sought were likely to be made. Whether the proposed orders as formulated by the appellant are made, will be a matter for the judge hearing the appeal. For present purposes there is no reason for this Court to intervene.

The interlocutory application dated 13 February 2025 was dealt with

1. The only order sought in the interlocutory application dated 13 February 2025, was that a new notice of appeal be substituted for the notice filed on 9 January 2025. However, during the course of argument in this Court it became apparent for the first time, to me at least, that the appellant intended that on 23 May 2025 Marshall AJ make at least some of the orders which she sought in her proposed new notice of appeal. On that day the appellant did not appear in person before his Honour. She appeared by audio visual link from interstate. Communication was difficult. With due allowance for those difficulties, the transcript of the hearing reveals nothing from which his Honour could reasonably have deduced that the appellant wanted him to make the orders stated in the proposed amended notice of appeal as the final relief she sought in the appeal. In any event, it would not have been appropriate for his Honour to have done so. His Honour was not dealing with the appeal itself. A short examination of the orders the appellant says she was seeking makes clear that there was no proper basis on which any of those orders could or should have been made by his Honour at the hearing on 23 May 2025.
2. The appellant submitted that Marshall AJ should have ordered that the Tribunal orders be stayed. There was no material before Marshall AJ to support the making of such an order on an interlocutory basis. Stay applications are generally supported by evidence, usually in affidavit form, addressing the matters relevant to the exercise of a discretion to grant a stay of an order subject to appeal. On the face of it, there was no reason to stay an order dismissing the application. The appellant explained to this Court that a stay was necessary because she had been made subject to an adverse costs order. If she seeks a stay of that order, it will be necessary for her to make a separate application supported by evidence. No such application was made to Marshall AJ.
3. The appellant submitted that Marshall AJ should have ordered that there be a further investigation of facts she said were either wrongly put to, or found by, the Board and the Tribunal. His Honour had no power to make such an order. The appellant was not able to state who should conduct a further investigation or on what basis it should be conducted.
4. The appellant submitted that Marshall AJ should have made an order that Mr Bartlett be "asked relevant questions that relate to the issues in writing, and is required to respond in writing." His Honour had no power to make such an order. I will return to this issue when addressing the appellant's complaint that the primary judge did not deal with her interlocutory application of 20 March 2025.
5. The appellant submitted that Marshall AJ should have ordered that she be "supplied with the complete file" and inferred that there "could be" documents which were not provided to the Board or the Tribunal or to her which were relevant. His Honour was dealing with an appeal from a decision of a statutory tribunal. The result of Supreme Court Rules, rr 704 and 689, was that the Supreme Court was required to obtain from the Tribunal a recording or transcript of the Tribunal proceedings and copies of any affidavit or other documentary evidence filed in the Tribunal. It will be for the judge hearing the appeal to determine whether the Tribunal mistakenly received or failed to receive any evidence, or whether there was any procedural unfairness by a failure to disclose documents.
6. The appellant submitted that Marshall AJ should have ordered a "reconsideration" of her previously refused requests to the Tribunal to reinvestigate the Board's 2015 decision to dismiss her complaint. The appellant submitted that she had "information" about "discrepancies" in evidence, the Board or the Tribunal or both failed to undertake a "reasonable investigation", the Tribunal omitted crucial findings and was biased. The appellant also submitted that "new" and "fresh" evidence be examined. Marshall AJ had no power to make interlocutory orders of that type. The appellant made frequent reference to XYZ v Legal Professional Board of Tasmania [2014] TASFC 13, 23 Tas R 179 but that case is not authority for the proposition that the primary judge had power to make orders of the nature the appellant claims to have been seeking. The appellant repeatedly referred to the forthcoming hearing of her appeal as a "trial". It will not be a trial in the sense that the term is generally used. It will be for the judge hearing the appeal to determine questions such as the nature of the appeal to the Tribunal from the decision of the Board, and the nature of the appeal, if there was such an appeal, to the Supreme Court from the decision of the Tribunal. It will for the judge hearing the appeal to determine whether the Supreme Court has jurisdiction to hear an appeal from a decision of the Tribunal made on an application under s 458 and, if so, whether it involves a fresh hearing, whether the hearing is limited to the evidence and issues before the Tribunal, and whether further evidence may be permitted.

The interlocutory application dated 20 March 2025

1. That leaves one outstanding issue. The appellant complains that her interlocutory application filed 20 March 2025 was not dealt with by the primary judge. The respondent accepts that the application was listed before his Honour on 23 May 2025. That interlocutory application was not expressly addressed by anyone at the directions hearing on that day. Strictly speaking, the respondent's submission that there was no order to appeal is correct.
2. However, at the conclusion of the hearing, the appellant said to his Honour "can we also have a look at the other interlocutory orders?" His Honour refused, no doubt because he thought, correctly in my view, that everything of consequence that needed to be addressed at the directions hearing had already been dealt with. It is now apparent that the appellant's comment was likely to have been directed at the other orders she wanted concerning her 13 February 2025 application. However, she now complains that his Honour erred by failing to consider the later application. This Court should not intervene. That interlocutory application was of no consequence. It effectively sought three orders. The first order sought was a request that her application of 13 February 2025 be "dealt with". That application sought substitution of the new notice of appeal. Every aspect of that application was dealt with. The second aspect of the application concerned her written requests to the Supreme Court that an "interstate justice as well as an interstate magistrate" be appointed, presumably to hear the appeal. In the application, the appellant expressed her "major concern" that Tasmanian judges may be "reluctant to bring disrepute to the LPBT and Disciplinary Tribunal". It would have been quite inappropriate for the primary judge to have dealt with any such request. It will ultimately be for the judge allocated to hear and determine the appeal to decide issues of actual or apprehended bias. The Chief Justice would need to consider some other arrangement only if no Tasmanian judge was able to hear and determine the appeal.
3. The third matter raised by the application was a request for an order that the respondent be "asked some basic questions that relate to the issues that have never been asked of him by the LPBT or the Disciplinary Tribunal". I briefly addressed a similar contention advanced by the appellant in relation to her other interlocutory application. The primary judge did not expressly address the request for that order but it may now be addressed. Many pages of the appellant's written submissions are devoted to her request that the respondent be "asked questions" and be required to answer them. The submissions make clear that the application originates from the appellant's dissatisfaction with the way in which the Board and the Tribunal addressed her various complaints. However, her application for an interlocutory order to require the respondent to attend to answer questions was so unmeritorious that it did not warrant any time being spent on it. It is obvious that his Honour focussed his attention on what was necessary to advance the appeal towards a hearing at which the real issues were identified and addressed, and did not spend time on irrelevant matters resulting in unnecessary cost and wasted resources. There was no basis upon which any order could or should have been made to compel the respondent to answer questions in advance of the hearing of the appeal or at any other time. The appellant referred to Supreme Court Rules, rr 386 and 387. Those rules concern the discovery of documents and determination of an issue or question in a proceeding before any discovery of documents. The appellant also referred to rr 406 and 410 which concern interrogatories. All of the rules referred to by the appellant have no application to an appeal from a decision of a statutory tribunal.

1. I have read the reasons for judgment of Pearce J and agree that the appeal should be dismissed for the reasons he has given.

[1] The Tribunal is constituted under s 610.

[2] Constituted by the Act, s 589.

[3] Pursuant to the Board's power under s 433 of the Act.

[4] Section 433(1)(e).

[5] Section 428(2)(b).

[6] Section 433(1)(b).

[8] Thus subject to the Supreme Court Civil Procedure Act, s 45(1).

[9] Supreme Court Civil Procedure Act 1932, s 43(a).

[10] Legal Profession Act, s 610

[11] R v Australian Broadcasting Tribunal; ex parte Hardiman [1980] HCA 13, 144 CLR 13 at 35-36.

[12] Fernando v Medical Complaints Tribunal [2007] TASSC 44, 16 Tas R 237 at [28]; Boland v Clarence City

Council [2018] TASSC 43 at [2].

[13] Fernando v Medical Complaints Tribunal at [21].

[14] Fernando v Medical Complaints Tribunal at [28].

[15] Supreme Court Rules 2000, r 705(1).

[16] Rule 705(4).