Boland v Boxall [2016] TASSC 30

Fox v Percy [2003] HCA 22, 214 CLR 118

Legal Profession Board of Tasmania v Disciplinary Tribunal [2022] TASSC 65

Legal Profession Act 2007, s 451, s 456, s 458(1)(a), 458(2), s 458(3), s 458(5), s 464, s 467(5)(b), s 470, s 484, s 486

Supreme Court Civil Procedure Act 1932, s 39

Judgment Number: [2024] TASSC 67

1. On 18 January 2022, the appellant made a complaint to the Legal Profession Board (the Board) concerning the respondent's representation of her during family law property settlement proceedings. The Board conducted an investigation of the complaint in accordance with the provisions of Part 4.4 of the Legal Profession Act 2007 (the Act). On 16 March 2023, after completion of the investigation, the Board, in accordance with its powers pursuant to s 451 of the Act, dismissed the complaint on the basis that it was satisfied that there was no reasonable likelihood that the respondent would be found guilty of either unsatisfactory professional conduct or professional misconduct. The appellant then made an application to the Legal Profession Disciplinary Tribunal (the Tribunal), pursuant to s 458(1)(a) to have the matter to which the Board's determination relates determined by the Tribunal. On 7 August 2023, after a hearing, the Tribunal arrived at the same decision as the Board, that is, that there was no reasonable likelihood that the respondent would be found guilty of either unsatisfactory professional conduct or professional misconduct, and it dismissed the application.
2. The appellant now seeks to appeal the Tribunal's decision. However, a preliminary question arises as to whether the legislation provides a right of appeal from a determination of the Tribunal under s 458. The appellant asserts that her right to appeal is contained in s 484 of the Act. It should be acknowledged at this point that there is no other statutory provision for an appeal against an order of the Tribunal, so this Court's jurisdiction to entertain this appeal will depend on whether or not it is authorised by s 484.
3. There is no question that s 484 provides for an appeal to this Court from certain orders made by the Tribunal, but there is a real question as to whether that right extends to the decision made by the Tribunal in this case. In particular, the text of s 484 provides that the "Board and any party to a complaint who is aggrieved by an order made by the Tribunal under this Part may... appeal against that order to the Supreme Court." The difficulty which arises for the appellant is that the section appears only to authorise an appeal in respect of orders made by the Tribunal "under this Part". Section 484 is contained in Part 4.7 of Chapter 4 of the Act, whereas s 458 is contained in Part 4.5. As I will now discuss, the jurisdiction exercised by the Tribunal under each is separate and distinct, and accordingly, the restriction of the right of appeal to only those orders made under Part 4.7 must be seen as a deliberate legislative choice, which should be given effect by this Court.
4. Chapter 4 deals with complaints against and the discipline of Australian legal practitioners. The Chapter is divided into twelve parts. Part 4.2 authorises such complaints. By s 427(2), a complaint by a person other than the Board is to be made to the Board. The Board has power to summarily dismiss a complaint in certain circumstances under s 433, but otherwise must investigate the complaint in accordance with the process provided for in Part 4.4. That, of course, is what happened in this case.
5. Part 4.5 deals with the powers of the Board after an investigation. The powers are set out in s 450 and include the power to hold a hearing in respect of conduct which is capable of amounting to unsatisfactory professional conduct, dealing with the complaint pursuant to the procedure for a less serious complaint provided in s 456, and making an application to the Tribunal under s 464, or the Supreme Court under s 486, for the hearing and determination of the complaint. The latter two options are clearly intended to accommodate cases where there is at least a possibility that the relevant conduct may amount to professional misconduct. Further, s 451 provides that after an investigation has been completed, the Board may dismiss the complaint if satisfied that there is no reasonable likelihood that the practitioner will be found guilty of either unsatisfactory professional conduct or professional misconduct. Section 458 permits the complainant or the practitioner who is the subject of the complaint, who has been served with a notice of determination of the Board in relation to the complaint, to apply to the Tribunal or the Supreme Court to have the matter to which the determination relates, determined by the relevant body. Section 458(2) provides that for the purposes of the section, certain decisions of the Board are determinations of the Board. These include a decision to dismiss the complaint under s 451.
6. Section 464, which provides for an application to the Tribunal to hear and determine a complaint, is contained in Part 4.7. The application can be made by any person, including the Board. The provisions contained in Part 4.7 prescribe the procedures applicable to such an application, and the orders available to the Tribunal in respect of the hearing and determination of the complaint. It is clear from the scheme set out in these provisions that the Tribunal is exercising original jurisdiction in the determination of the complaint. This can be distinguished from the jurisdiction conferred by s 458 to rehear a determination of the Board. That jurisdiction is limited to the redetermination of the issue that was before the Board. Boland v Boxall [2016] TASSC 30 per Blow CJ at [4]; Legal Profession Board of Tasmania v Disciplinary Tribunal [2022] TASSC 65 per Wood J at [68].
7. The distinction between the jurisdiction exercised by the Tribunal pursuant to s 458 and that arising under s 464, is also apparent from the stark difference between the nature of the hearing contemplated by each provision. Section 458(3) provides that the Tribunal's determination of the matter pursuant to an application under that section "is to be by way of re-hearing". In Boland v Boxall, Blow CJ concluded that the nature of the re-hearing is as described by Gleeson CJ, Gummow and Kirby JJ in Fox v Percy [2003] HCA 22, 214 CLR 118 at [22], as follows:

"The 'rehearing' does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits."

1. A hearing of this nature can be distinguished from the type of hearing contemplated by Part 4.7, which is a full evidence based hearing involving a first instance determination of the complaint.
2. In Legal Profession Board of Tasmania v Disciplinary Tribunal, Wood J was concerned with the operation of s 458(5), which permits the Tribunal to determine an application, made to it under s 458, in accordance with Part 4.7, "as if the application were an application made under Division 2 of that Part." Her Honour observed that the section permitted the Tribunal to invoke procedural powers that would be available to the Tribunal in respect of the hearing of a complaint under Part 4.7, but firmly distinguished proceedings under s 458 from those conducted under Part 4.7.

"It can be seen from the scheme and the consideration of s 458 by the Chief Justice in Boland v Boxall that the proper characterisation of the proceedings before the Tribunal is conceptually different to proceedings under Pt 4.7 involving applications to the Tribunal to hear and determine a complaint at first instance. It can be seen from the 'carve-outs' in s 458(5) that some of these provisions could have no application to the nature of proceedings under s 458. For example, one of the exceptions listed in s 458(5) is s 464, concerning the content of applications for the hearing and determination of complaints.

So, s 467(5) provides for a right to certain processes at the hearing of an application, and the amendment to s 458 enables the Tribunal, but does not require the Tribunal, to invoke that section, with certain exceptions."

1. It can be noted that one of the other "carve-outs" excepted from the application of s 458(5) is the right of a party at the hearing to give or adduce evidence, s 467(5)(b). This again emphasises the intended difference between the jurisdiction exercised under s 458 and that under Part 4.7.
2. A further matter considered by Wood J in Legal Profession Board of Tasmania v Disciplinary Tribunal was the meaning of the word "order" in the phrase "aggrieved by an order made by the Tribunal under this Part" in s 484. Her Honour concluded that "order" in s 484 has the same meaning as it has elsewhere in Part 4.7. Div 3 of Pt 4.7 deals with the orders which can be made by the Tribunal. Section 470 provides for such orders to be available "If, after it has completed a hearing under this Part in relation to a complaint against an Australian legal practitioner, the Tribunal is satisfied that the practitioner has engaged in unsatisfactory professional conduct or professional misconduct". There are other provisions dealing with ancillary, alternative and consequential orders, but overall it is apparent that the orders which can be made under Part 4.7 relate to the exercise of jurisdiction under that Part. There is no suggestion that the reference to "order" in s 484 extends to the exercise of jurisdiction under other provisions, for example s 458. As I have already observed, the inclusion of the words "under this Part" in s 484 evinces a clear legislative choice to confine the right of appeal created by that section to orders made under Part 4.7. Given the distinct nature of the jurisdiction exercisable under Part 4.7 in comparison to Part 4.5, the said choice is clear.
3. In this case, it is beyond argument that the Tribunal was exercising its jurisdiction under s 458. Further, the Tribunal did not purport to invoke any powers pursuant to s 458(5). Even if it had done so, it would not convert an order made under that section to one amenable to appeal under s 484. The fact remains that on the plain text of the Act, there is no provision for an appeal to the Supreme Court from a decision of the Tribunal under s 458.
4. Before leaving this question of jurisdiction, it is appropriate to deal with an aspect of the legislative scheme encapsulated in s 458, in particular the choice available under s 458(1)(a) to make the application to the Tribunal or the Supreme Court. The appellant is unrepresented and clearly has limited knowledge of the relevant legislation. The respondent has fairly and properly acknowledged the potential argument that the text of s 458(1)(a) may be construed as permitting the complainant to now apply to the Supreme Court for redetermination, notwithstanding her unsuccessful application to the Tribunal under the same provision. The argument acknowledges the possibility that the Court could treat the purported appeal as such an application.
5. Having made that acknowledgment, the respondent argues that the text of the provision, in particular, the use of the word "or", requires the complainant or the legal practitioner who is the subject of the complaint, to elect whether the redetermination will be by the Tribunal or the Supreme Court. It is submitted that upon such an election, the right to pursue the other option is extinguished. I accept this submission. The text of s 458, taken together with the context provided by the scheme set out in Part 4.5, makes it clear that the section permits one application only. The use of the word "or" in this provision should be read disjunctively. Any other interpretation would lead to absurd consequences. Most obvious of these is the potential for different outcomes, without any indication as to how such conflict would be resolved. It would also mean that a decision of the Supreme Court could potentially be supplanted by a subsequent determination of the Tribunal. It is clear that the jurisdiction under this provision is exhausted once a decision is made on the first application. This is the appropriate construction, notwithstanding that a curious and perhaps unintended consequence of the provision of the choice is that although no appeal is available if the determination is made by the Tribunal, an appeal against a determination by the Supreme Court may be available to the Full Court pursuant to s 39 of the Supreme Court Civil Procedure Act 1932. However, that is not a question that requires further consideration in these proceedings. It is sufficient to conclude that the appellant is not entitled to seek further relief pursuant to s 458.
6. It follows that this Court has no jurisdiction to entertain the purported appeal. The appeal is dismissed.