1. I note the applicant's submission that she will be prejudiced generally and that the interests of others, whose complaints may have been considered by the Committee acting without lawful authority be adversely affected, if her appeal cannot proceed. It was not suggested to me that the applicant will receive any payment or other direct personal benefit as a result of the outcome of the original proceedings, or of this appeal. Her complaint was, as a result of the consent order, considered by the Council (having been earlier considered by its Complaints Committee) and a decision was made to discipline RA using powers under section 413 of the Legal Profession Act 2006. The actions she consented to, and that she asked for in her interim application, have been undertaken. The prejudice to her might be described as the loss of an opportunity to make public her concern about the decision-making process of the Council, rather than the deprivation of any entitlement in relation to her complaint about RA. Her complaint has been reconsidered, a decision made and finalised.
2. Neither the Council's, nor RA's representative addressed this issue directly although RA's representative did say that his client "has already been through the ringer here with this." It is apparent that RA will suffer prejudice if leave is granted because after the consent order was made, the Council further considered the complaint and then took action against him under section 413 of the Legal Profession Act. Both the Council and RA will have additional expenses and there will potentially be additional stress for RA, in circumstances in which he was entitled to assume that the complaint process was finalised.
3. I accept that both parties will experience prejudice to some degree although the prejudice to the applicant is general in nature and not directly related to her complaint about RA. The personal prejudice that RA may experience and the prejudice to the Council in terms of resources, is more direct and evident. A consideration of prejudice is not, in this case, by itself sufficient to decide whether time should be extended but it weighs in favour of refusing the application.

1. There is a real doubt about whether section 79 of the ACAT Act permits an appeal in relation to a consent order. This is because making an order by consent does not usually involve the making of a decision by the tribunal and no question of fact or law could usually be associated with it. The usual process followed by a person who changes their mind about a consent order is to apply to set it aside and request that the application be restored to a hearing list. Such an application could perhaps be made relying on the powers given to the tribunal under section 56 of the ACAT Act. I note that, the ACAT procedural directions deal with such applications by saying[11]:

45.3 The tribunal may set aside a consent judgment only if any of the following apply in relation to the application for judgment or the entry of judgment:

45.3.3 suppression of relevant information or evidence;

45.3.4 false evidence or information given and relied on;

45.3.7 any other ground the tribunal considers just.

1. The Council raised this issue in its submissions referring to the remarks of Brennan J in his High Court decision of Harris v Caladine [1991] HCA 9 at paragraph 13, and to the provisions of Rule 1613 of the Court Procedures Rules 2006. The Rule does not apply to tribunal proceedings but its content is similar to procedural direction 45.3 and in both cases, the procedures reflect the position described by Brennan J - that is, that a consent order finalising a matter embodies the terms of a contract between the parties and should only be disturbed on the same grounds as any other contract.
2. The applicant's submissions did not address this issue and I have decided not to reject her application on this basis but to consider whether the reasons for appeal proposed show at least an arguable case in accordance with the seventh and eighth principles set out in paragraph 12 above.
3. I note however, that if an application to set aside the consent order had been made, I am of the view that the application could not succeed. A review of the transcript of the hearing shows no hint of fraud, false information or evidence, suppression of relevant information or evidence, or duress. The member was at pains to make clear to the applicant that she did not have to consent to what had been proposed - even though it was what she said she wanted - and that she could continue to consider the proposal after the hearing. This issue is considered further below. There is no suggestion of a relevant change in circumstances since the order was made. The order has been enforced in the sense that what was agreed would be done, has been done.

1. The draft application for appeal has an attachment headed 'Reasons for Appeal' that sets out 10 reasons, some of which cover the same things.
2. Reason 1 says "The appellant was unsuccessful in her endeavours in relation to question of law to be taken into account and refer to the Supreme Court by presiding member of the Tribunal, Ms Daniel...the President violated the appellant's rights in ACAT proceedings." A number of transcript references are then given. This reason is difficult to follow because it does not explain what rights were violated or in what way, and neither is it apparent from the transcript references. The tribunal did not have an application to refer a question of law or to remove the whole application to the Supreme Court, before it. At one point the applicant's son said "we're still undecided whether we will be going down that road." The member clearly told the applicant what she needed to do if she wished to pursue such an application.[12] The member expressed a view about the potential outcome if an application to refer a question of law were made, but made no decision about it because that was not the application before her. The reason does not disclose an arguable basis for appeal.
3. Reason 2 and 4 cover similar ground and refer to a failure to "deal correctly according to tribunal's powers and acts over the issue of interim orders under section 53 and 55" and a failure to have consent in writing under section 55(1)(b). The references to sections here are to the ACAT Act.
4. Section 53 of the ACAT Act permits the tribunal to make any order "that it considers appropriate to protect the position of the party that applied for the order" if the threshold requirements in section 53(1) are met. This section is intended to allow the tribunal to make orders that assist to maintain a status quo for a party while a matter is dealt with by the tribunal. Most commonly, orders made under this section are in the nature of stay orders, or interim injunctive relief pending the hearing of the substantive application.
5. The order sought in the application filed on 11 March 2016 and described in paragraph 19 above was not an application for an interim order pursuant to section 53. There is no sense in which it could be said that the order sought was an order that was relevant to the protection of the position of the applicant - in truth, it was an application for substantive orders. Had the Council not indicated that it agreed to the orders sought by the applicant and the hearing of the application proceeded, at best the tribunal could have decided to consider the matters raised as part of the hearing of the substantive application, that is, the application to appeal the dismissal of the complaint. The only other possible outcome was a dismissal of the application. As it transpired, the tribunal did not need to deal with it because an agreement was reached. This is not an arguable basis for appeal.
6. Section 55 provides the tribunal with a power to make a decision in accordance with agreed terms that are reduced to writing, signed by the parties and lodged with the tribunal. The reasons for appeal contend that the consent order was not correctly made because there were no written terms of agreement signed by the parties.
7. This misunderstands the role of section 55 and the powers of the tribunal. Section 55 is permissive and does not proscribe the tribunal's power to make consent orders. It is most commonly used when parties reach an agreement outside of a formal tribunal listing such as a conference or hearing. That was not the case here. Section 56 (b) of the ACAT Act provides a clear power to make orders with the consent of the parties and it is also clear that the power extends to the making of consent orders that finalise or decide proceedings. The example provided for section 56(b) is of an order dismissing a proceeding with the consent of the parties. It is not the case that consent orders can only be made after the terms of an agreement have been reduced to writing and signed by the parties. There was no error in the way in which the consent order was made in this case.
8. Reasons 2 and 4 do not disclose any arguable case for appeal.
9. Reason 3 is that the member "was leading the appellant to make consent with the respondent and other party on the day of the hearing ...regarding the appellant application back to ACT Law Society for reconsideration instead of referring the matter to the Supreme Court..." This reason does not disclose an arguable basis for appeal. First, there was no application for a referral to the Supreme Court before the tribunal. Second, as a matter of fact the member made it clear that it was for the applicant to say what she wanted to do. It is true that on a number of occasions the member reminded the applicant that what was proposed was exactly what the applicant had asked for in the application that was before the tribunal and that if she didn't want that order any more, she should withdraw her application. That was an appropriate reminder. It would have been an abuse of the tribunal's processes for the applicant to insist on there being some sort of hearing of her application in circumstances in which the respondent and party joined said they agreed with the order she wanted. Her choices were accurately described by the member - to either withdraw the application if she no longer wanted the order she had sought and allow her substantive hearing to proceed while continuing to consider the offer if she wished to do so, or to accept the agreement offered there and then.
10. The member engaged in lengthy discussions with the applicant and her son about the actual and potential consequences of the various options available. The Council's representative protested at one point about the discussion and the member responded by referring to the obligation to ensure that the applicant understood what would happen to her application.[13] The member adjourned to give the applicant some time to talk to her son outside the hearing room. To the extent to which this reason suggests that there was some duress applied by the member, the suggestion cannot be sustained on a reading of the transcript.
11. Reason 5 is that the member "erred by failing to obtain the statement of reasons for ACT Law Society dismissal decision ..." I take this to mean that the member erred by not deciding the second application listed for hearing on 1 April, that is, the application filed on 18 March 2016, and making the order sought by the applicant. The orders made on 1 April 2016 noted that the application in relation to the reasons statement did not need to be considered because the relevant decision had been set aside. The application had been opposed by the Council and RA, both contending that an adequate reasons statement had been provided.
12. The member heard submissions from the parties before the agreement was reached. RA's representative said:

MR WHYBROW: I just want to add that if we're at a point where effectively the applicant is getting the exact relief that she seeks, which is that the decision be set aside and it goes back to the council of the Law Society, not to the committee, and be considered afresh, then I agree with Mr Buxton's use of the word "otiose". It's totally otiose to still seek reasons for a decision that no longer exists.

MR WHYBROW: That will no longer exist if we get to that point.

...But in the circumstances where everybody is effectively putting a proposal to the applicant that we will go back and do it again, or consent to it, it is a matter that should be, in effect, put in abeyance until we know whether she accepts it.

1. These submissions are correct. It would not have been reasonable for the member to make an order requiring the provision of a further reasons statement when the applicant had yet to make up her mind about what she wanted to do.
2. Once the parties agreed to set aside the decision under appeal, there was no basis to require a further statement of reasons, whether or not the existing statement was adequate. The substantive application was finalised. The tribunal's function was discharged and no further orders could or needed to be made.
3. Reason 5 does not disclose an arguable case for appeal.
4. Reason 6 is that the member "failed in her professional competency when expressing her own view regarding whether to refer a question of law to the Supreme Court and what outcome will be from it." Three transcript references are given.
5. This reason needs to be considered in context. The application being considered asked that the tribunal investigate the validity of the Council's delegation instrument. At the hearing the applicant confirmed that she wanted the tribunal to determine whether the decision under review was a valid decision.[14] The powers of the tribunal were clearly central to a consideration of what the applicant was seeking. At page 11 of the transcript the member refers to having asked the parties in an earlier hearing to look at the question of whether the tribunal had the power to decide if the decision under review was unlawful.
6. The applicant's son asked the member to explain the procedure for referral of questions of law to the Supreme Court.[15] She did so. She explained her concern that the referral of a question of law would not necessarily achieve what the applicant wanted. The applicant's son asked questions about the potential outcomes. She answered the questions. She indicated that if she were dealing with such an application she would not grant it and explained why.
7. It was proper and appropriate in that context for the member to give an indication of the outcome of an application for the referral of a question of law. In doing so she may have created a situation in which she could not be allocated to the tribunal to decide such an application if it was in fact made because it might be said that she had pre-judged the issue, but in the context of the application that was before her and the unrepresented applicant's wish to understand procedures and outcomes it was appropriate for her to express this view. It was also consistent with the tribunal's obligation to assist unrepresented parties to understand proceedings and with the tribunal's objects and principles in so far as they require that the tribunal deal with matters quickly and simply.
8. Moreover, the view she expressed was correct. The substantive application to appeal the decision to dismiss the complaint, did not give the tribunal a wide ranging power to investigate or inquire into the validity of any delegation by the Council of its powers to the Committee. The member's analysis was correct as a matter of law. Any referral to the Court must relate to a question that the tribunal needs to know the answer to, so that it can discharge its function. The tribunal's function in this case was a merits review function. That is not a function that involves investigating the validity of the decision making process. The member made reference on at least two occasions to the difference between the tribunal's function and the Court's powers on an application for judicial review of an administrative decision. The Court's powers to consider the validity of a decision and to make a declaration cannot be triggered by the tribunal referring a question of law to the Court under section 84 of the ACAT Act, or by the tribunal removing an application to the Court under section 83 of the ACAT Act.
9. No arguable case for appeal can arise from reason 6.
10. Reason 7 is that the member "erred by failing to provide an opportunity for appellant to appeal from reconsidered decision of the Law Society Council because she said, she would dispose of the application anyway." This reason involves a misunderstanding of what was said, ignores the rest of the conversation and misunderstands the powers of the tribunal. It does not disclose an arguable case for appeal. The transcript reference given is to the following:

PRESIDENTIAL MEMBER: If I make the interim order that you sought asking for the matter to go back to the Council of the Law Society, that takes care of your whole proceedings here and now and you would go back to the Law Society and then if you're not happy with the decision that they make you may or may not have rights of review depending on what decision they do make. You see? But you wouldn't be coming back here because I would have disposed of your application. I would have made an order that your complaint go back to the Council of the Law Society to be considered and that disposes of your application for review.

MS URBANIAK-BAK: Yes, now I understand (indistinct)

PRESIDENTIAL MEMBER: The use of the legal terminology, it's not always clear the first time you say it.

1. This discussion had nothing to do with the decision that the Council was going to reconsider. The reference to the disposal of the application was a reference to the substantive application seeking to appeal or review the decision made on 21 December 2015. The member correctly stated the law. The tribunal's power was limited to appealing that decision. If the decision was rescinded or set aside, the tribunal had no power, or no authority, or no jurisdiction to do anything further in relation to that decision. The application was finished. The tribunal could not somehow hold the application open so that the Council could reconsider the decision and then continue with the substantive application if the applicant was unhappy with the outcome the second time around. The tribunal's power was restricted to the application to appeal the decision made on 21 December 2015. It did not mean that any future rights of appeal could not be pursued, and the applicant clearly understood that that was the case. The conversation continued:

PRESIDENTIAL MEMBER: So that means there's an end for now, and you go to the council and you give any further information about your complaint, let them sort it out. If you're not happy with the decision

PRESIDENTIAL MEMBER: It depends on the decision. Some decisions you can appeal. Some decisions you can't.

MR URBANIAK: What does 413 - I haven't really read it - state about when the council can reject the decision without it going to ACAT?

PRESIDENTIAL MEMBER: I haven't read that, I'm sorry.

1. Reason 8 generally asserts that the member denied the applicant natural justice and procedural fairness. No particulars are given of how this is the case. A review of the transcript shows that the applicant was given generous opportunities to put her case and to respond to matters raised on behalf of the Council and RA. Further, nothing in the transcript supports an assertion of actual or apprehended bias on the part of the member.
2. Reason 9 asserts that the member erred by failing to give the applicant an opportunity to have time to consider the consent decision. This assertion cannot be made out. A review of the transcript shows that the member adjourned the hearing to give the applicant time to consider the Council's proposal that her application be accepted and the order that she asked for made, and then repeated on several occasions that the applicant could elect to withdraw her application and continue to consider the proposal which the Council's representative said he would put in writing to her, outside the tribunal hearing process. The applicant was clearly given that opportunity but decided not to pursue it.
3. Reason 10 says that the member failed to deal with the issue of the Council's delegated powers as it was an important matter in an application concerning public interest under section 50 and 51 of the ACAT Act. This reason involves a misunderstanding of the law and of the role of the tribunal. Section 50 and 51 of the ACAT Act relate to the procedure to be followed when a member allocated to a tribunal has a material interest in a matter before the tribunal. The sections have nothing to do with general matters of public interest.
4. Further, for the reasons set out in paragraph 66 above, the tribunal could not "deal with the issue of the Council's delegated powers." The functions of the tribunal and the powers available to it in reaction to the substantive application did not allow the tribunal to do so.
5. No arguable case for appeal is shown in any of the proposed reasons for appeal.
6. While I understand the applicant is concerned about the decision making process initially adopted by the respondent in relation to her case and that she wishes to make those concerns public, the tribunal is not the vehicle to pursue those concerns. The tribunal cannot ignore its statutory limitations and its obligation to only deal with matters that it has power to deal with. Whether or not there is a matter of public interest, section 84 of the ACAT Act does not give the tribunal a broad ranging power to refer any matter of public interest or any question of law that might engage a public interest to the Court. It is not a "stand alone" power. It operates only to give the tribunal a power to ask the Court to consider questions of law that the tribunal must determine in order to discharge its function in relation to an application that it is authorised to deal with. The question that the applicant wishes to pursue is not such a question.
7. There is a further practical problem - the decision that the tribunal was authorised to deal with by section 416 of the Legal Profession Act has been rescinded. Another decision has been made. The applicant's complaint has been considered and an outcome reached. The tribunal is not authorised to review the new decision. As a matter of practice there is now no decision that the tribunal can review.
8. I have considered whether justice demands that leave be given to appeal out of time and whether a miscarriage of justice will occur if it is not. Given the conclusions set out in paragraphs 74 to 76 above, I am satisfied that there will not be a miscarriage of justice and that justice does not demand that the applicant's application for leave be granted. In all the circumstances, including the reason for delay, the prejudice to her and to the other parties and the merits of her proposed appeal, it is proper that the application be dismissed.

.........................................................

[1] Section 410, Legal Profession Act 2006

[2] section 81, ACAT Act

[5] See the discussion of this by Elkaim J in Legal Practitioner v Law Society of the ACT [2016] ACTSC 203

[6] [2015] ACTCA 56 at [20] - [21]

[7] [2016] ACAT 84

[8] See the consideration of the approach that the ACAT should take on appeal in Giusida Pty Limited v Commissioner for Revenue [2016] ACTSC 275 at [29] to [42]

[9] Transcript of Proceedings 1 April 2016 page 42, lines 10 - 30

[10] Outline of Council's submissions, 12 August 2016, paragraph 3

[11] ACT Civil and Administrative Tribunal Procedural Directions 2010 (No 1), PD 45.3

[12] Transcript of Proceedings 1 April 2016 page 42, lines 10 - 14

[13] Transcript of Proceedings 1 April 2016 page 48, lines 18 - 29

[14] Transcript of Proceedings 1 April 2016 page 9, line 10

[15] Transcript of proceedings 1 April 2016 page 26, line 21