The relevant sequence of events is uncontroversial.
The appellant was admitted to practice as a legal practitioner on 15 December 2000 (under the provisions of the Legal Profession Act 1987 (NSW) (repealed)). From 2007 she conducted a practice as a sole practitioner under the name "lexicon: legal".
The respondent ("the Council") is the Council of the Law Society of NSW, which has statutory functions with respect, inter alia, to the governance and regulation of legal practitioners who practise as solicitors, including as to conduct and disciplinary matters. Until 1 July 2015 the functions of the Council were provided for by the Legal Profession Act 2004 ("the LPA"); the LPA was repealed with effect from 1 July 2015: Legal Profession Uniform Law Application Act 2014 (NSW), s 167(a). Under the LPA functions with respect to conduct and discipline of members of the legal profession were divided between the Councils of the governing bodies of the two branches of the profession (the NSW Bar Association and the NSW Law Society ("the Law Society")) and the Legal Services Commissioner (appointed under Pt 7.3) ("the Commissioner"). In some respects those entities were given concurrent functions.
Since 1 July 2015 governance of the legal profession has been provided for by the Legal Profession Uniform Law (NSW) ("the Uniform Law"); the Uniform Law states, inter alia, the functions of the Council. As will appear below, the relevant legislation for the purpose of this appeal is the LPA, relevant provisions of which will be outlined in the next section of these reasons.
In January 2015 the Council became aware of certain asserted irregularities in relation to the affairs of lexicon:legal. Pursuant to s 267 of the LPA it appointed a trust account investigator, Mr Gavin Connor, to investigate and report on lexicon:legal's affairs. Mr Connor's investigation revealed defalcations in the management of lexicon:legal's trust account. In an interview with Mr Connor the appellant disclosed a number of instances in which she had made personal use of funds in the trust account, contrary to provisions of the LPA.
On 23 June 2015, pursuant to s 270 of the LPA, Mr Connor provided his report to the Council. On 25 June 2015 the Manager of Professional Standards of the Law Society sent the appellant a copy of
Mr Connor's report. She advised that, as a consequence of its contents, the Council would be:
"… asked to consider passing resolutions to give effect to the following:
The making of the following complaints against you:
The Solicitor has wilfully breached Sections 255, 260, 262 and 264 of the Legal Profession Act, 2004.
The Solicitor has misappropriated trust funds.
Immediately suspending your Practising Certificate …; and
appointing a Manager to your Law Practice."
The Manager invited the appellant, by 3.00 pm on Monday 29 June 2015, to make such submissions as she wished the Council to consider and advised that the Council would meet the following day to consider the matters raised in Mr Connor's report and the proposed resolutions. The appellant made submissions within the nominated time.
The Council met on 30 June 2015 and resolved to deal with the matter on an urgent basis, and further resolved:
"… that … the following complaint be made against [the appellant]:
[The appellant] has wilfully breached s 255, 260, 262 and 264 of the Legal Profession Act, 2004.
[The appellant] has misappropriated trust funds."
The Council further resolved, pursuant to s 548 of the LPA, immediately to suspend the appellant's practising certificate, and, pursuant to s 616(2)(b)(ii), to appoint a manager of lexicon:legal
On 2 July 2015 an administrative assistant of "the Professional Standards Department" of the Law Society wrote to the Commissioner in the following terms, after identifying the appellant as the subject of the correspondence:
"On 2 July 2015, the above complaint was opened by the Professional Standards Department …
The primary complaint diagnosed is:
BREACH s.255 (TRUST MONEY) (2004 LPA)".
On 5 June 2016 a solicitor of "Professional Standards" of the Law Society wrote to the appellant, referring to the letter of 25 June 2015 and the resolutions there proposed, and advised:
"I confirm that at its meeting on 30 June 2015, the Council resolved to make the above two (2) complaints against you under s 504 of the Legal Profession Act, 2004."
On 10 June 2016 the appellant applied to the Law Society for the grant of a practising certificate for the 2016-2017 financial year. On 18 August 2016, after inviting, receiving, and considering submissions from the appellant, the Council declined to issue her with a practising certificate, having resolved:
"… [the Council] is of the opinion that [the appellant] is not a fit and proper person to hold a practising certificate".
On the same date, pursuant to s162 of the Uniform Law, the Council resolved to appoint an investigator to investigate the affairs of the appellant trading as lexicon:legal.
On 16 August 2018 a subcommittee of the Professional Conduct Committee of the Law Society resolved that the appellant be informed of:
"1. The issues of professional misconduct which, in the opinion of the Committee are involved in the complaint and in respect of which the Committee invites submissions within 14 days of the date of the letter notifying the [appellant] of these resolutions; and
2. The Committee's opinion that, subject to any submissions, it should resolve that it is satisfied there is a reasonable likelihood the [appellant] will be found by the Tribunal to have engaged in professional misconduct and that proceedings be instituted in the Tribunal with respect to the complaint pursuant to Section 537(2) of the Legal Profession Act, 2004.
…
3. It is the Committee's opinion that, subject to any submissions, the appropriate orders to be sought on a referral to the Tribunal of this complaint are as follows:
Orders to be sought
(i) The appellant's] name be removed from the Role.
(ii) [The appellant] pay the costs of the Law Society as agreed or assessed.
(iii) Any further or other order the Tribunal deems fit.
4 Consideration of this complaint is to be placed on the agenda of the whole of the Professional Conduct Committee after the expiration of 14 days from the date of the letter notifying [the appellant] of these resolutions."
On 15 November 2018 the Professional Conduct Committee resolved that:
"… The Committee is satisfied there is a reasonable likelihood [the appellant] will be found by the Tribunal to have engaged in professional misconduct and that proceedings be instituted in the Tribunal pursuant to Section 537(2) of the Legal Profession Act, 2004".
The resolution repeated the characterisation of the professional misconduct alleged and the orders to be sought stated in the resolutions of the subcommittee.
On 23 November 2018 the appellant was notified of those resolutions.
On 14 May 2019 the Council filed a proceeding in the Tribunal seeking disciplinary findings and orders as proposed by the subcommittee and the Professional Conduct Committee, and stated, in some detail, the grounds for the application and particulars thereof. On 9 October 2019 the appellant filed an application disputing the jurisdiction of the Tribunal and seeking an order that the proceeding filed by the Council be dismissed.
On 14 November 2019 and 18 December 2019 a hearing of the appellant's application took place in the Tribunal. On 13 May 2020 the Tribunal delivered its decision, dismissing the appellant's application and giving reasons therefor. By notice of appeal filed on 10 June 2020 the appellant appeals against the order dismissing her application.
[2]
The relevant legislation
As indicated above, until 1 July 2015 the legislation regulating legal practice in NSW was the LPA. That legislation was supplanted by the Uniform Law which commenced on that day. The Uniform Law contained, in Schedule 4, detailed transitional provisions which included provision for the continuation, under the LPA, and in accordance with its provisions, of disciplinary complaints and investigations commenced thereunder (cl 26). It was common ground that, because the Council's resolution of 30 June 2015 was made before the transition, the relevant legislation is the LPA. It is the provisions of that legislation to which regard must be had. Given its continuing application, it is convenient to refer to its provisions in the present tense.
Various provisions of the LPA distinguish between Australian, local, and interstate lawyers and legal practitioners (see ss 5 and 6). The distinctions are immaterial for present purposes, and it will be sufficient to adopt the single term "legal practitioner".
Chapter 4 of the LPA deals with "Complaints and discipline" against and of legal practitioners. Part 4.2 (ss 503-513) is directed to complaints. Part 4.4 (ss 525-536) deals with the investigation of complaints. Chapter 6 states, in some detail, the nature of the investigations that may be undertaken. Part 4.5 (ss 537-542) deals with decisions that may be made following receipt of a complaint. Part 4.8 (ss 551-569) confers on the Tribunal jurisdiction to deal with proceedings commenced by a Council or the Commissioner with respect to complaints.
By s 503(1) a complaint may be made under Pt 4.2 about the conduct of a legal practitioner. For the purposes of Ch 4, "complaint" is defined, in s 495, as a complaint made under Ch 4. By subs (3) of s 503, a complaint that "is duly made" is to be dealt with in accordance with Pt 4.2.
By s 504(1) a complaint may be made by:
1. a client of the legal practitioner; or
2. a Council; or
3. the Commissioner; or
4. any other person.
By subs (2) of s 504, a complaint must be in writing. By subs (3) a complaint must:
1. identify the complainant, and
2. identify the legal practitioner about whom the complaint is made, or, if that is not possible, identify the law practice concerned, and
3. describe the alleged conduct the subject of the complaint.
By s 505(1) a complaint other than a complaint made by the Commissioner or a Council is to be made to the Commissioner. By subs (3) of s 505 a copy of a complaint made by a Council is to be forwarded as soon as possible to the Commissioner by the Council. By s 505(2) a complaint that is made to a Council instead of the Commissioner is to be forwarded by the Council to the Commissioner, as is (by subs (3)) a complaint made by a Council. (Thus, the LPA recognises that a complaint may be made by a Council, and may also be made to a Council.)
Section 511 provides for summary dismissal of complaints in specified circumstances.
Pt 4.4 makes provision with respect to the investigation and disposal of complaints, the details of which do not, for the purposes of these reasons, need to be recorded.
Sections 537-542 make provision for the progress of a complaint following investigation.
By s 551 either the Commissioner or a Council may, by "disciplinary application" containing one or more allegations of unsatisfactory professional conduct or professional misconduct, commence proceedings in the Tribunal in accordance with Ch 4, with respect to "the whole or part of a complaint". By subs (2) any such allegation must relate to the subject matter of the complaint, but need not be an allegation made in the original complaint, or have been the subject of separate or further investigations.
Section 537(2) requires a Council or the Commissioner, if satisfied that there is a reasonable likelihood that the practitioner will be found by the Tribunal to have engaged in unsatisfactory professional conduct or professional misconduct (and unless satisfied that the complaint can appropriately be dealt with by caution, reprimand, or an order for compensation, as provided by s 540) to commence proceedings in the Tribunal.
By s 552(1) a disciplinary application may be made at any time within six months after a Council or the Commissioner decides that proceedings be commenced. Subsections (2)-(4) provide for extension of that time at the discretion of the Tribunal, after having regard to certain stated considerations. By subs (6) a decision that proceedings be commenced is made when:
"(a) the Council or Commissioner decides that there is a reasonable likelihood that the legal practitioner concerned will be found by the Tribunal to have engaged in unsatisfactory professional conduct or professional misconduct, …"
By s 553 the Tribunal is to conduct a hearing into each allegation particularised in a disciplinary application. By s 555(1) the Tribunal may vary a disciplinary application by the omission or addition of allegations, if satisfied that, having regard to all of the circumstances, it is reasonable to do so.
By s 562(1) if, after completing a hearing in relation to a complaint, the Tribunal is satisfied that the legal practitioner has engaged in unsatisfactory professional conduct or professional misconduct, the Tribunal may make such orders as it thinks fit. (The following subsections of s 562 state specific orders of the kind the Tribunal may make).
By s 561 the Tribunal may order that a failure by the Commissioner or Council, or a person acting for them or under their direction, to observe a procedural requirement in relation to a complaint (including the making, investigation or referral of a complaint) is to be disregarded, if satisfied that:
1. the failure has not caused any substantial injustice to the parties; or
2. any substantial injustice caused by the failure is outweighed by the public interest in having the complaint dealt with in the Tribunal, or
3. any such substantial injustice can be remedied by an order of the Tribunal.
[3]
The proceedings in the Tribunal
It was not in issue in the Tribunal that its jurisdiction depended on the existence of a complaint, made before 1 July 2015, that had the necessary characteristics of a complaint under Ch 4 - that is, that it was in writing, identified the complainant and the legal practitioner against whom the allegation was made, and described the conduct alleged.
In the Tribunal a number of issues were debated, including some assertions of deficiencies in the Council's compliance with the requirements of Pt 4.2 of the LPA, that are of dubious relevance to the question of jurisdiction. What follows is confined to those matters that go to jurisdiction. There were, essentially, two such questions:
1. whether the Council, before the repeal of the LPA came into effect on 1 July 2015, made a "complaint" within the meaning of that term as defined in s 495? If not, it was common ground, the Tribunal lacked jurisdiction to deal with the Council's disciplinary application; and
2. if the Council did make such a complaint (within time), whether the disciplinary application (made on 14 May 2019) was commenced within the six months allowed by s 552(1)?
A third question, which may not directly go to jurisdiction, concerned whether the Professional Conduct Committee that, on 15 November 2018, decided, pursuant to s 537(2), that there was a reasonable likelihood that the appellant would be found by the Tribunal to have engaged in unsatisfactory professional conduct or professional misconduct was properly authorised to make that decision.
[4]
Question (1)
The Council's position (ultimately accepted by the Tribunal) was that its resolution of 30 June 2015 satisfied the s 495 definition and constituted a "complaint … duly made". The appellant addressed a number of arguments to the contrary, each of which was considered and rejected by the Tribunal. In brief, the appellant's contentions were to the following effect:
1. that the language of the resolution ("resolved that … the following complaint be made …") was not the language of complaint, but the language of an intention to make a complaint at some future time;
2. that the resolution was not shown to have been in writing at any time prior to 1 July 2015, as required by s 504(2), and therefore did not meet one of the necessary criteria of a "complaint … duly made";
3. that the resolution did not sufficiently "describe" the conduct the subject of the complaint (as required by s 504(3)(c)) and therefore did not meet another of the necessary criteria of a "complaint … duly made".
As indicated, the Tribunal rejected each of these contentions.
[5]
As to the appellant's first contention
The Tribunal recognised (at [141]) that the words of the resolution "that ... a complaint be made …" were apt to confuse, but accepted an argument made by the Council that the resolution should be taken to read "that … a complaint is made …".
In reaching its conclusions the Tribunal acknowledged (at [66]) that evidence of the appellant's prior knowledge of the allegations against her was not directly relevant to whether the resolution constituted a complaint. Nevertheless, the Tribunal considered that the appellant's knowledge had potential relevance to the exercise of the discretion conferred by s 561, should it be found that there was a failure to observe a procedural requirement. In other places, notwithstanding its acknowledgment of the limited relevance of evidence of the appellant's knowledge, the Tribunal appears to have taken that evidence into account (for example, at [124], extracted below) and, again, at [151].
[6]
As to the appellant's second contention
The Tribunal was satisfied:
"… that the Law Society did make a complaint against the [appellant] on 30 June 2015 and that they did so by passing [the] resolution [of that date]." (at [105])
It held that that was a complaint in writing which complied with s 504 of the LPA.
Notwithstanding that, at [18], the Tribunal observed that there was no evidence as to the date on which the document setting out the terms of the resolution (that is, the minutes of the meeting) was created, it held (at [185]) that "the relevant minute of the Complaint" was reduced to writing on 30 June 2015. No challenge is made in this appeal to that finding of fact. The Tribunal further held that, even if that were not so, the absence of a complaint in written form did not render the complaint "invalid". The Tribunal said:
"184 …We are satisfied that the complaint was made on 30 June 2015. It is axiomatic that the resolution became effective the moment it was passed. That means the complaint was made by the Council of the Law Society at that moment. The minute which captures the words of the resolution may be (and usually as a practical matter can be) created at a later time, be that on the day the resolution was passed, or later. There is nothing in s 504 which convinces us that the legislature intended or required that the written evidence of the wording of the resolution containing the complaint, needed to be created on the same day as the resolution was passed. We are further satisfied that even if the writing up of the resolution occurred after 30 June 2015 it would not follow that the complaint was made on that date rather than the date upon which the resolution was passed."
[7]
As to the appellant's third contention
The Tribunal accepted submissions made by the Council that differentiated between "description" and "particulars" of the conduct alleged, only the former of which is required by s 504(3)(c). It found (at [123]) that the resolution adequately described the conduct alleged against the appellant. It went on to say:
"124 We are also satisfied that the [appellant] clearly understood what it was about her conduct as a solicitor in the management and use of trust monies which backgrounded the Council's complaint."
[8]
Question (2)
In the Tribunal the appellant argued that time began to run from 18 August 2016 when the Council resolved that it was of the opinion that the appellant was not a fit and proper person to hold a practising certificate. This, the appellant argued, ought to "have triggered the necessity to file proceedings in the Tribunal".
The Tribunal noted the submission made by the appellant concerning the requirements of s 552(1), but considered that this did not go to jurisdiction and that it had a discretion, under s 552(2), to extend the time in appropriate circumstances. It went on to hold (at [228]) that the resolution to commence proceedings was made within time. It did not address the argument that time began to run from 18 August 2016. It considered that the decision to commence proceedings was made by the resolution of the Professional Conduct Committee on 15 November 2018. On that basis, the proceedings were commenced within the six months period allowed by s 552(1).
[9]
The appeal
Initially the appellant pleaded nine grounds of appeal, including grounds asserting factual errors, failures to observe procedural requirements, errors of statutory construction (s 699(3), which empowers the Council to delegate any of its functions), wrongful admission of evidence over objection, failure to rule on evidentiary objections, and erroneous reliance on s 732 (which dispenses with the need for formal proof of certain matters where no evidence to the contrary has been given).
During the course of the hearing of the appeal the grounds were, effectively, reduced to assertions of error in relation to each of the three issues mentioned above -
1. whether the Council's resolution of 15 June 2015 constituted a complaint within the meaning of s 495 and for the purposes of Ch 4;
2. whether the proceeding in the Tribunal was brought within time; and
3. whether the Professional Conduct Committee, which on 15 November 2018 decided that there was a reasonable likelihood that the appellant would be found by the Tribunal to have engaged in unsatisfactory professional conduct or professional misconduct, held an appropriate delegation to perform that function of the Council.
The arguments advanced in support of each of these grounds were essentially those advanced in the Tribunal and outlined above.
[10]
Issue One: did the resolution of 15 June 2015 constitute a complaint?
The making of a complaint is the starting point in the process of adjudication of complaints against legal practitioners. The Tribunal's jurisdiction depends upon there being a "complaint … duly made".
As is apparent from the definition in s 495, "complaint" is not used in its general sense, which might include expressions of grievance, protest, objection or discontent. Rather, it is used in a more confined sense, of an allegation of misconduct against a legal practitioner that satisfies the requirements of s 504(2) and (3). Those requirements are that the allegation:
1. is in writing;
2. identifies the complainant;
3. identifies the legal practitioner or, if that is not possible, the law practice concerned;
4. describes the conduct alleged.
Because the LPA ceased to have effect on 1 July 2015, for the Council's resolution to have the character of a complaint for the purposes of Ch 4 thereof, it was necessary that it meet those requirements or have those characteristics before that date. It could not acquire any of those characteristics on or after 1 July 2015 and still constitute a complaint within the meaning of s 495 (contrary to what the Tribunal appeared to think, as appears in [184] of the reasons - see [49] above).
At the outset it may be observed that the question raised exposes a curiosity in the provisions of the LPA. As a matter of ordinary language the making of a complaint involves some form of communication. A complaint is not made in a vacuum; it is, ordinarily, made to somebody. That is recognised in s 505(1), which requires that a complaint be made to the Commissioner - unless it is made by the Commissioner or a Council, in which case the LPA does not specify to whom the complaint is to be made. Accordingly, that the resolution was not in terms directed to any person or body does not deprive it of the potential to have the characteristics of a complaint as defined by s 495.
There was and is no issue that the resolution of 30 June 2015 identified the Council as the complainant and the appellant as the legal practitioner against whom the allegation was made. Requirements (2) and (3) are satisfied. What is in issue is whether:
1. (i) the resolution could be said to be the making of a complaint, or whether, by its language, it is properly construed as a resolution to make a complaint at some future time;
2. (ii) the resolution adequately described the conduct alleged against the appellant such as to meet the requirements of s 504(3)(c); and
(iii) the resolution was in writing at a time before 1 July 2015;
For the reasons that follow I am of the view that the resolution does not constitute a complaint.
[11]
(i) the resolution was not a complaint
The Council argued that the appellant's contentions "conflate" the making of a complaint and the requirement that the complaint be in writing. It argued that a complaint may be "made" without the necessity for writing, and that a complaint may be made at a time different to the time at which it is put in writing. This reprises the reasoning of the Tribunal at [184].
The short answer to this submission is that it ignores the requirements of s 504(2).
The language of the resolution is against the construction the Council seeks to give it. It is not the language of the making of a complaint; rather, the resolution is framed in the language of intention that a complaint be made. There are many ways in which the making of a complaint (as distinct from the signifying of an intention that a complaint be made) could be expressed - for example "a complaint is hereby made"; "the Council complains that …". None of those was adopted by the Council.
Expressions such as these use the present tense, contrasted with the future tense used in the resolution. I do not accept (as the Tribunal did) that the resolution can properly be read as though it were "the following complaint is made". That is not the language chosen by the Council.
The issue is not dissimilar to that which arose in Konstantinidis. There, the Council resolved to invite submissions in respect of the complaint, and further resolved:
"that, subject to any submissions, [the Council] should resolve that it is satisfied …".
This Court rejected an argument, in support of a contention that the resolution was a decision pursuant to s 537(2) and, therefore, that time began to run for the purposes of s 552(1) from its date. The Court said:
"42. The Committee's choice of language was significant. It did not direct that the Solicitor be informed that 'subject to any submissions, the Committee resolves that it is satisfied'. Rather, it directed that 'subject to any submissions, the Committee should resolve that it is satisfied'. The word 'should' plainly indicated that the date for deciding whether to commence proceedings had not been reached …". (italics in original)
There was, in that case, another indicator, the invitation to the solicitor to make submissions, to the same end. But the futurity of the language used stood as an independent reason for finding that no relevant decision had been made.
Adopting the same approach, I am of the view that the futurity of the language of the 30 June 2015 resolution indicated an intention to do something - make a complaint - at a later time. The resolution should be so construed.
Accordingly, I accept, as submitted by the appellant, that no complaint was made prior to 1 July 2015. The Tribunal did not have jurisdiction to deal with the Council's disciplinary application, which depended upon there being a "complaint … duly made".
This conclusion is sufficient to dispose of the first issue raised in the appeal.
I will, however, address the other issues raised.
[12]
(ii) the resolution did not describe the conduct alleged
I would also accept, as contended for by the appellant, and contrary to the position of the Council, that the resolution did not meet the requirements of s 504(3)(c) - that is, it did not sufficiently describe the conduct the subject of the Council's allegations. Identification of four sections of the LPA which the Council alleged the appellant "had wilfully breached" was not a description of the conduct alleged; that deficiency was not remedied by the addition of "[the appellant] has misappropriated trust funds". Assertion of breaches of particular provisions of the LPA is not a description of conduct alleged; it is a statement of the legal conclusions that should be drawn from the conduct. Although an assertion of "misappropriation of trust funds" comes closer to a description of conduct, it, again, states a legal conclusion to be drawn from whatever conduct is alleged.
The Council proposed a number of answers to the appellant's contention that the conduct alleged was insufficiently described by the resolution to qualify as a "complaint … duly made".
First, it set considerable store on evidence that the appellant was already aware of the allegations against her. So much may be accepted, but it does not address the question of what is required, at a minimum, for allegations of misconduct to constitute a "complaint … duly made" within s 503(3). The appellant's prior knowledge of the nature of the allegations is irrelevant to whether the resolution satisfied the requirements of a "complaint".
The Council then resorted to dictionary definitions of the word "describe". These included:
"to set forth in written or spoken words; give an account of";
"portray in words, recite the characteristics of, give a detailed or graphic account of. … assert to be, call. … write down, transcribe, copy out …".
The word "describe" is one that is used in common parlance. Speakers of the English language have an understanding of what it means. Dictionary definitions add little, if anything, to that understanding. To the extent that they may do so, those extracted by the Council support the conclusion that what was contained in the resolution could not be said to be a description of the conduct alleged against the appellant.
The Council then, as it had in the Tribunal, distinguished between "a description" of conduct and "particularisation" of the conduct alleged. The distinction is valid but immaterial. No doubt the legislature chose the word "described" in preference to "particularise" because it was providing that a complaint may be made by clients of legal practitioners, and other persons not legally qualified. The word "describes" allows for some generality of the way in which the conduct of which complaint is made is identified, but nevertheless (as a matter of basic fairness) requires sufficient identification of the conduct for the Council or the Commissioner and the legal practitioner to be made aware of what is alleged.
Finally, the Council argued that, even if the resolution did not describe the conduct alleged, non-compliance does not affect the validity of the "complaint". The Council placed reliance on the decision of the High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [93] (McHugh, Gummow, Kirby and Hayne JJ).
Reliance on Project Blue Sky was inapposite. That decision was concerned with whether an act done in breach of a provision of a regulatory statute was invalid. The majority (McHugh, Gummow, Kirby and Hayne JJ) held that it was not: [94]-[100]. In [93], on which the Council relied, their Honours rejected the previously popular distinction between "mandatory" and "directory" provisions, and said that a better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. In answering that question, regard must be had to "the language of the relevant provision and the scope and object of the whole statute" (see Tasker v Fullwood [1978] 1 NSWLR 20 at 24).
In this case there is no asserted breach of any provision of the LPA. Nor is there any question of invalidity. The issue was one of characterisation of a recorded resolution of the Council - if it satisfies the requirements of s 504 (subject to what I have said above) it could be, within s 503(3) "a complaint … duly made" and could set in train the powers and the procedures of investigation and resolution of the allegations. If it does not satisfy those requirements, it is not a "complaint … duly made".
The deficiency in the description of the conduct is exposed when regard is had to the provisions which the appellant was alleged to have "wilfully breached".
Section 255 of the LPA imposes three requirements on a law practice holding and operating a trust account: the law practice must hold the money in a trust account exclusively for the benefit of the person on whose behalf the money is held (s 255(1)(a)); it must disburse the money only in accordance with a direction given by that person (subs (1)(b)); and it must account for the trust money as required by the regulations (subs (3)). An allegation of a wilful breach of that section does not in any way describe the conduct said to constitute the asserted breach; and it does not identify which of the three requirements the Council asserts the appellant breached.
Section 260(1) prohibits, other than as permitted by subs (2), mixing trust money with other money. Mere allegation of wilful breach of that section does not describe the conduct said to constitute the breach.
Section 262 creates offences of, without reasonable excuse, causing (as further defined in subs (3)) a deficiency (as also further defined in subs (3)) in any trust account or trust ledger account, and of, without reasonable excuse, causing a failure to pay or deliver any trust money. An assertion of a wilful breach of s 262 does not identify which of the (at least) two offences created the Council claims the appellant committed; nor does it describe the conduct it claims constitutes the offence or offences which the Council alleges.
Section 264(1) requires a law practice to keep, in accordance with subs (2), in permanent form, trust records relating to money received. Subsection (2) specifies four requirements of the manner in which the law practice must keep the record. Assertion of a breach of s 264 does not identify in which respect the Council claims the appellant's maintenance of trust records was deficient. It does not describe the conduct it alleges against the appellant.
For an allegation to constitute a complaint for the purposes of Ch 4, there must be a minimum level of specification (description) of the conduct concerned.
The making of a "complaint" is the trigger that sets in motion the investigative processes set out in Pt 4.4. It gives rise to the power conferred by s 548, which, in subs (1), permits the immediate suspension of a practising certificate on the ground of the seriousness of the conduct "in respect of which a complaint has been made". It also sets in train the investigative procedures laid out in Ch 6 of the LPA, which confers on investigators powers of search and seizure, powers to require access to documents and records, and powers to enter premises.
These are all reasons why the requirement of description must be taken seriously. The resolution of the Council was no more than a cursory statement of the conclusions that Council anticipated would be drawn.
[13]
(iii) the finding that the complaint was in writing should not be disturbed
The Tribunal made an express finding (at [185]) that has not been challenged, that the resolution of the Council was reduced to writing prior to midnight on 30 June 2015.
Although the reasoning of the Tribunal, at [184], set out above at [49] is questionable, suggesting that an allegation, by being retrospectively committed to writing, may become a complaint for the purposes of Ch 4, in the absence of any express challenge, the finding in [185] need not be disturbed in light of my conclusions on the previous issues.
Since preparing these reasons I have had the advantage of reading the additional observations of McCallum JA, with whom I agree. If it were necessary for the disposition of the appeal, the absence of a written complaint would be sufficient, of itself, to justify setting aside the orders of the Tribunal. As there are other reasons for reaching the same result, it is unnecessary to do more than note the importance of the requirement that a complaint be in writing.
[14]
Issue Two: were the proceedings commenced within time?
The appellant's argument on this ground may be succinctly outlined. As already stated, subs (1) of s 552, read with subs (6), creates a statutory time limit (subject to discretionary extension, on application by a Council or the Commissioner) of six months from the date on which the Council or Commissioner decides that there is a reasonable likelihood that the legal practitioner will be found by the Tribunal to have engaged in unsatisfactory professional conduct or professional misconduct.
On 15 November 2018, the Professional Conduct Committee of the Council made and recorded such a decision, in the precise terms of s 537(2). The proceedings in the Tribunal were commenced on 14 May 2019 - one day before the expiration of the permitted period, but within time.
The appellant, however, contends that an earlier decision of the Council, made on 18 August 2016, qualifies as a decision within s 552(6). At a meeting on that day, the Council resolved that it was of the opinion that the appellant was not a fit and proper person to hold a practising certificate, and, accordingly, declined her application that she be issued with a practising certificate. If that were correct, time began to run from that date, and the proceeding commenced on 14 May 2019 was out of time. No application for extension of time had been made.
The appellant's submission should be rejected. The decision of the Council on 18 August 2016 was not a decision for the purposes of s 552(6), and cannot be equated with such a decision. A decision under s 552(6) involves an exercise in predicting the likely outcome of proceedings in the Tribunal: Council of the Law Society of New South Wales v Levitt [2018] NSWCA 247. The Council made no such prediction. Its own expression of opinion of the fitness of the appellant to hold a practising certificate is not the same as or equivalent to a prediction of the outcome of any proceedings in the Tribunal. The outcome of proceedings in the Tribunal depends on the evidence adduced, not only the evidence in the possession of the Council, but any evidence adduced by or on behalf of the legal practitioner.
The Tribunal was not deprived of jurisdiction by reason of the expiration of the limitation period provided for in s 552(1).
[15]
Issue three: did the Professional Conduct Committee hold an appropriate delegation?
The appellant finally argued that the decision of 15 November 2018 made by the Professional Conduct Committee, which founded the decision to commence the proceedings in the Tribunal, was unauthorised because the power to make the decision was not the subject of a delegation to that Committee.
In dealing with this argument, I would not wish to be taken to be acceding to the proposition that the absence of an appropriate delegation gives rise to a jurisdictional issue. No such proposition was argued and its validity is not self-evident.
However, since the argument should, in any event (on the facts) be rejected, it is appropriate to record the reasons for its rejection.
By s 699(3) of the LPA the Council may delegate any of its functions (other than the power of delegation) to, inter alia, any of its committees. The evidence showed that, on 15 January 2015, the Council passed a resolution in the following terms:
"Resolved that:
…
7. Pursuant to s 699(3) of the Legal Profession Act 2004, Council delegates to the Professional Conduct Committees, as constituted on and from the date of this resolution and as such constitution may be varied from time to time by the President:
i. all of its powers contained in Chapter 4 (complaints and discipline) of the Legal Profession Act 2004 other than those contained in Section 548 (immediate suspension of a local practising certificate);
…".
Having regard to the transitional provisions referred to above, there is no reason to think that that delegation was not operative as at November 2018 when the s 552(6) decision was made by the Professional Conduct Committee.
Even if the absence of delegation would deprive the Tribunal of jurisdiction, no such absence has been shown.
However, my conclusions in relation to the first issue require that the appeal be upheld and the decision of the Tribunal be set aside.
[16]
Conclusion
The right of appeal against a decision of the Tribunal is, somewhat obscurely, located in Sch 5 of the Civil and Administrative Tribunal Act 2013 (NSW).
The decision of the Tribunal was a "profession decision" within cl 29 of Sch 5: see Konstantinidis. By subcl (2) a party to proceedings in which a profession decision is made is given a right of appeal, in the case of a decision for the purposes of the Uniform Law, to this Court. By cl 21(a) of Sch 1 a reference to the Uniform Law includes a reference to the LPA. Thus, the decision of the Tribunal to dismiss the appellant's application was a decision against which she has a right of appeal. By cl 29(4) of Sch 5 the appeal is one to which s 75A of the Supreme Court Act 1970 (NSW) applies; it is a rehearing, and this Court has the powers and duties of the Tribunal including the power to give any judgment or make any order which ought to have been given or which the nature of the case requires (subs (10)).
In my opinion the following orders ought to be made:
Appeal allowed.
Orders of the Civil and Administrative Tribunal of New South Wales of 13 May 2020 set aside.
In lieu thereof, order that the disciplinary application filed on 14 May 2019 be dismissed.
The respondent to pay the appellant's costs of the appeal.
[17]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 03 November 2020
Solicitors:
Kingston Swift (Appellant)
Law Society of NSW (Respondent)
File Number(s): 2020/173003
Decision under appeal Court or tribunal: Civil & Administrative Tribunal of NSW
Jurisdiction: Occupational Division
Citation: Council of The Law Society v Taylor [2020] NSWCATOD 55
Date of Decision: 13 May 2020
Before: Le Poer Trench ADCJ, Principal Member
M Sindler, Senior Member
B Thomson, General Member
File Number(s): 2019/151086
Judgment
MACFARLAN JA: I agree with Simpson AJA and also with the additional observations of McCallum JA.
McCALLUM JA: I agree with Simpson AJA, subject to the following additional remarks concerning the Tribunal's finding that the complaint was in writing. As that issue is not dispositive of the appeal, I accept that this Court may appropriately decline to address it, applying what has been termed the principle of "judicial economy": Boensch v Pascoe [2019] HCA 49 at [7]-[8] (Kiefel CJ, Gageler and Keane JJ); [101] (Bell, Nettle, Gordon and Edelman JJ). While I am content to adopt that approach, I would not wish my agreement to be taken as any endorsement of the proposition that a minute of a resolution passed orally at a meeting meets the requirement of s 504(2) of the Legal Profession Act 2004 (NSW) (now repealed) that a complaint about an Australian legal practitioner "must be in writing".
The complaint is central to the process of disciplining Australian legal practitioners. As submitted by senior counsel for the appellant, Mr Green SC, there are several textual indications that the making of a complaint under Pt 4.2 of the Act serves a role analogous to the formulation of a charge for the purpose of criminal proceedings. A complaint that is "duly made" must be dealt with in accordance with that part: s 503(3). The terms in which the complaint is formulated are required to be understood by a variety of people for the purpose of performing a variety of functions. A complaint might be the subject of: a determination by the Commissioner or a Council under s 506 (whether to deal with a complaint made over 3 years after the conduct concerned); a requirement for verification by the complainant by statutory declaration under s 507; preliminary assessment by a person appointed by the Commissioner or the Council as an investigator under s 510; or summary dismissal by the Commissioner or the Council under s 511. A complaint can be withdrawn under s 512; referred to mediation under s 515; investigated by a Council under s 525; taken over by the Commissioner under s 526 and modified during or after completion of an investigation "by instrument in writing" under s 535. It forms the basis on which proceedings may be commenced in the Tribunal under s 551 and may be the basis for a request for compensation under s 570.
Mr Green relied in this context on the recent decision of the High Court in Smethurst v Commissioner of Police [2020] HCA 14, which considered the degree of particularity with which the relevant offence must be stated in a search warrant. The Court noted that the answer may vary with the nature of the offence, some offences being able to be shortly described, others requiring more. The joint judgment said at [30]:
"No verbal formula is possible, rather in each case it is necessary to apply the principle that the warrant should describe the nature of the offence so as to indicate the bounds of the search, and to assess the sufficiency of what is provided from the point of view of those reading it".
A complaint for the purposes of Pt 4.2 of the Legal Profession Act 2004 should similarly be framed, if not with the specificity of an indictment, then at least in terms that enable any person reading the complaint to know its parameters for any purpose for which it is required to be considered.
In that context, a requirement that the process be initiated by a written articulation of the complaint is understandable. In my view, the passing of an oral resolution at a meeting, the accurate recording of which is left to the keeper of the minutes, does not meet that requirement. The passing of a resolution may be a necessary first step for a Council. However, in my view, in order to complete the process of making a complaint in accordance with s 504, the Council was required to proceed to make a document (not a minute of the meeting) which would stand as the complaint for the many purposes for which it might be required under the Act.
I agree with the orders proposed by Simpson AJA.
SIMPSON AJA: The sole issue in this appeal is whether the NSW Civil and Administrative Tribunal ("the Tribunal") had jurisdiction to deal with a disciplinary application made under s 551 of the Legal Profession Act 2004 (NSW) (now repealed) by the respondent against the appellant and lodged in the Tribunal on 14 May 2019. By decision dated 13 May 2020 the Tribunal held, contrary to the submissions of the appellant, that it had jurisdiction: Council of the Law Society of New South Wales v Taylor [2020] NSWCATOD 55. The appellant appeals as of right (Konstantinidis v Council of the Law Society of New South Wales [2018] NSWCA 59) against that decision.