[2014] TASSC 33

Professions and Trades - Lawyers - Complaints and discipline - Disciplinary proceedings - Tasmania - Decision of Legal Profession Board to apply to Disciplinary Tribunal in respect of a practitioner - Board purported to rescind decision and re-open investigation before application made - Validity of decision to rescind challenged by practitioner - Status of decision before application to Tribunal.

Legal Profession Act 2007 (Tas), s 450(d).

Acts Interpretation Act 1931 (Tas), s 20(a).

Kabourakis v Medical Practitioners Board of Victoria [2006] VSCA 301; Ping v Medical Board of Queensland [2004] 1 Qd R 282, distinguished.

Judgment Number: [2014] TASFC 13

1. I have had the benefit of reading the reasons of Estcourt J in draft form. In substance, I agree with those reasons and I would also dismiss the appeal. However, I would make some comment about certain arguments raised by counsel at the hearing.
2. The appellant's counsel on the appeal, due to circumstances entirely beyond the appellant's control, was not counsel who argued the matter on the appellant's behalf at first instance. The written submissions of counsel for the appellant, extensively outlined in the draft reasons of Estcourt J, were prepared by the appellant's previous counsel. While those submissions referred to each ground of appeal, counsel on the appeal did not speak to the specific grounds at all.
3. The essence of the oral argument of counsel for the appellant was that, once the Legal Profession Board ("the Board") had made a decision pursuant to the Legal Profession Act 2007 (the Act), s 450, it was precluded from changing its mind. From the point at which a decision was made, the Board, he submitted, moved from an investigative stage to an adjudicative stage of the complaint process and, in effect, could not go back.
4. As a result of some discussion during the course of the hearing of the appeal, the position of counsel for the appellant changed to a degree. That is, he argued that his primary position was that the Board could not change its mind at all but that, in the alternative, really all the appellant needed to establish was that the Board could not return to the investigative phase. Counsel maintained that position even when asked to consider a scenario where additional material might come to light after a decision had been made pursuant to s 450 to make application to the Disciplinary Tribunal ("the Tribunal"), but before any actual application had been made, which might, for example, mean that the Board might not wish to proceed to the Tribunal at all.
5. Counsel for the appellant submitted that what the issue came down to was a balancing of the rights of the practitioner, and that the practitioner, the subject of a complaint, needed to know where he or she stood. If the Board were able to change its mind, that level of certainty would no longer be available to the practitioner.
6. Counsel for the appellant identified what he submitted were the factors detrimental to the appellant which might flow were the Board permitted to return to what he described as the investigative stage of the complaint process. He then submitted that the Board was not precluded, once it was before the Tribunal in a hearing, from requesting that the Tribunal exercise its wide powers. If the Board determined at that stage that it needed to seek the production of more documents or more information, it could ask the Tribunal to exercise its powers to obtain the documents or information sought. That this was an avenue open to the Board supported an interpretation of the legislation consistent with a conclusion that the Board could not go back once a decision had been made under s 450. The submission of course was predicated upon an acceptance that once a determination had been made pursuant to s 450, the investigative phase of the complaint process was exhausted. With respect, however, if the submission was made for the purpose of suggesting that asking the Tribunal to exercise that sort of power in the course of proceedings before it was a process which was less detrimental to the practitioner than that proposed in the present case, the submission must fail. It would result in inevitable delay in the Tribunal proceedings were it to accede to a request from the Board of this type and possibly further cost to the practitioner. Further, it appears to be a suggestion that, while the Board could not further investigate once a matter was actually before the Tribunal, the Tribunal could be asked, on the Board's behalf, to seek documents or information for the purpose of doing just that.
7. I should add for completeness that it is unnecessary for the purpose of this case to determine whether, had the Board actually made an application to the Tribunal, it would have been precluded from returning to any form of investigation of the complaint. My agreement with the reasons of Estcourt J does not extend to any finding as to that issue.

1. I have read the reasons for judgment of Estcourt J in which his Honour has set out the facts, the relevant statutory provisions and features of the primary judge's decision, and the grounds of appeal. Subject to what I say later, I generally agree with those reasons and agree that the appeal should be dismissed. To the extent that it might be necessary I would prefer however, to expressly confine my agreement to the specific facts of this case. The Board made a decision under s 450 and later rescinded that decision without having implemented it. I agree that it had the power to do so.
2. The issue I want to discuss is that of the Board's powers under s 450 of the Legal Profession Act 2007 (the Act), once the decided course has been embarked on.
3. For the sake of convenience I will set out s 450 in these reasons:

After an investigation of a complaint against an Australian legal practitioner is completed, the Board may do any one of the following:

(a) hold a hearing if it considers that any matter which is the subject of an investigation is capable of amounting to unsatisfactory professional conduct;

(b) deal with the complaint in accordance with section 456 (Procedure for less serious complaint), if it considers that the subject matter of the complaint is capable of amounting to unsatisfactory professional conduct that is not sufficiently serious to warrant a hearing;

(c) make an application under section 464 (Applications to Tribunal) for the Tribunal to hear and determine any matter that the Board considers is capable of amounting to both unsatisfactory professional conduct and professional misconduct;

(d) make an application under section 464 for the Tribunal to hear and determine the matter, if it considers that the conduct is capable of amounting to professional misconduct;

(e) make an application to the Supreme Court under section 486 (Applications to Supreme Court) to hear and determine the matter, if it considers that the matter is capable of amounting to professional misconduct."

1. A distinction can be drawn between the situation in which the Board seeks simply to rescind a decision and decide on an alternative course under s 450, and one in which the Board seeks to rescind a decision and revert to an investigation under Pt 4.4 of the Act.
2. The appellant's essential point is that once the Board had made a decision under s 450, it was deprived of the power to do anything further under that provision. In the course of argument, the appellant acknowledged at least the possibility of that distinction having significance, and as an alternative position, advanced the contention that the Board may rescind a decision before its implementation and make a substitute decision, but not re-open the investigation.
3. As I understand it, the respondent accepts that once a decision under s 450(a) or (b) has been implemented, the decision-making power under that section is spent because it has then embarked on an adjudicative process. The respondent also accepts that, as to the Board's powers, the same situation arises when an application has been made to the Disciplinary Tribunal (and, I infer, to the Supreme Court).
4. Estcourt J has observed that the preferable construction of the Act is one in which the Board, upon the making of an application to the tribunal, and only then, exhausts its statutory investigative powers. His Honour has said that, on the basis of that construction, it is not a condition precedent to the making of a decision under s 450 that the Board's investigation be irrevocably closed, and that the opening words of s 450 which provide that the Board may do one of a number of things after an investigation is completed, do not compel a conclusion that the investigation can never be re-opened by the Board after its decision to prosecute but before making an application to the tribunal.
5. I digress slightly to note that the s 450 decision-making process occurs "after an investigation of a complaint". The Act does not provide any assistance as to when an investigation is said to have been completed. When an investigation comes to an end is an issue of fact. Although its extent might be objectively measured in terms of reasonableness, its completion would be subjectively determined by the investigator. In some investigations there may be relevant material which, through fault or not, remains unearthed.
6. Section 447 of the Act requires the Board to advise the prescribed authority of the outcome of an investigation. Precisely what is meant by "the outcome" is not clear. Section 452 requires the Board to advise the prescribed authority of any decision under s 450, so "outcome" in s 447 is obviously different to that. I assume it means findings and any recommendations.

17 My observations on the operation of s 450 are as follows. First, it may well be correct to say that after the Board has embarked on either of the procedures referred to in s 450(a) or (b), it cannot re-open the investigation. That would involve an unacceptable mix of the investigative and adjudicative roles. Further, it would seem unable to make any decision to move the adjudication to a different disciplinary forum other than by way of making a determination under s 454(2)(c)[1].

1. Second, in terms of re-opening the investigation after an application has been made to the tribunal or the Supreme Court, s 466(1)(g) enables the tribunal to require the Board to conduct any investigation that the tribunal considers necessary in order to hear and determine a complaint. There is the question of whether the Board has any power of its own motion to re-open an investigation after an application has been made. The Board, as a party to the proceedings, may want, or have the need, to conduct further investigations in the course of the hearing of the application. There is nothing immediately apparent in the Act which would prevent that from being done, although I can see the conceptual difficulties involved. I would prefer to leave open this question.
2. As to whether the Board can make a decision altering the identity of the forum in which the hearing of a complaint is to be conducted, I observe that there does not seem to be any obvious obstacle to such a course. Indeed, s 469, a section which attracted much attention in argument, plainly contemplates that the Board may make such a decision. The section provides that proceedings before the tribunal with respect to a complaint cannot be terminated, whether by withdrawal of a disciplinary application or otherwise, before the tribunal makes its final decision about the complaint, without the leave of the tribunal.
3. With respect, I do not agree with statements to the effect that this section restricts the Board's power to change its mind after an application has been made to the tribunal. In my view, it does not restrict the Board's power to change its mind, but it prescribes a limitation on the way in which such a decision can be implemented.
4. To return to my point of reservation, I do not want to be taken as agreeing with the proposition that once an application has been made to the tribunal, the Board's powers under s 450 are completely spent or that it is otherwise prevented from re-opening an investigation or changing its mind about the appropriate forum. I agree that in this case, no application having been made to the tribunal, the Board was free to rescind its decision to make an application to the tribunal and re-open the investigation. In my view, the resolution of further and broader questions of the exercise of the power under s 450 can await determination in appropriate cases.

1. This is an appeal against a decision of Chief Justice Blow of 30 June 2014, Legal Profession Board of Tasmania v XYZ [2014] TASSC 33. The learned Chief Justice by that decision made an order declaring that a resolution of the respondent of 18 March 2014 rescinding a resolution of 27 August 2013 to make an application to the Disciplinary Tribunal (the Tribunal) in respect of a complaint against the appellant was lawful, valid and effectual.
2. The background to the dispute between the parties was set out by the learned Chief Justice at [1]-[5] of his reasons for judgment as follows:

"1 There is a dispute between the parties as to the validity of a decision made by the applicant, the Legal Profession Board of Tasmania, to re-open an investigation into a complaint concerning the respondent, who is a legal practitioner. The Board was established by s589 of the Legal Profession Act 2007 ('the Act'). By virtue of s591(c) of the Act, the Board's functions include receiving, investigating and determining complaints about legal practitioners and, as necessary, referring such complaints to the Disciplinary Tribunal established by s610 of the Act, or to this Court, for hearing and determination. In March 2012 the Board resolved to investigate a complaint relating to the respondent. On 27 August 2013 it resolved that it would make an application to the Disciplinary Tribunal in respect of the complaint. The Board has not made such an application. It changed its mind. On 18 March 2014 it resolved to rescind its decision to make such an application, and to resume investigating the complaint, taking the view that the investigation was not complete. The practitioner contends that, because of certain provisions in the Act, the Board had no power to rescind its earlier resolution. The Board contends that it did have the power to rescind it. It has applied to the Court for a declaration to that effect.

2 When the Board receives a complaint about the conduct of a legal practitioner, it is required by the Act to investigate that complaint: s440(1). In the investigation of a complaint, it is required to ensure that the investigation is conducted as efficiently and expeditiously as possible: s441. After the investigation of a complaint has been completed, there are six possible courses that the Board may take. The six alternatives are set out in ss450 and 451, which read as follows:

After an investigation of a complaint against an Australian legal practitioner is completed, the Board may do any one of the following:

(a) hold a hearing if it considers that any matter which is the subject of an investigation is capable of amounting to unsatisfactory professional conduct;

(b) deal with the complaint in accordance with section 456 (Procedure for less serious complaint), if it considers that the subject matter of the complaint is capable of amounting to unsatisfactory professional conduct that is not sufficiently serious to warrant a hearing;

(c) make an application under section 464 (Applications to Tribunal) for the Tribunal to hear and determine any matter that the Board considers is capable of amounting to both unsatisfactory professional conduct and professional misconduct;

(d) make an application under section 464 for the Tribunal to hear and determine the matter, if it considers that the conduct is capable of amounting to professional misconduct;

(e) make an application to the Supreme Court under section 486 (Applications to Supreme Court) to hear and determine the matter, if it considers that the matter is capable of amounting to professional misconduct.

After an investigation of a complaint against an Australian legal practitioner has been completed, the Board may dismiss the complaint if satisfied that -

(a) there is no reasonable likelihood that the practitioner will be found guilty of either unsatisfactory professional conduct or professional misconduct; or

3 In this case, the Board resolved that, pursuant to s450(d), it would make an application under s464 to the Disciplinary Tribunal. By implication, it must at that time have considered that the investigation into the complaint had been completed, and that the practitioner's conduct was capable of amounting to professional misconduct.

4 Section 464(1) provides that any person, including the Board, 'may apply to the Tribunal for the hearing and determination of a complaint'. As I have said, the Board has made no such application in respect of the complaint. After receiving some advice from its counsel, it made the impugned resolution of 18 March 2014, in the following terms:

'That the Board to proceed as recommended by Mr C Gunson in his advice to the Board dated 17 February 2014.

That the Board rescinds its previous decision of 27 August 2013 to make application to the Disciplinary Tribunal.

That the investigation of the complaint is not complete and is, pursuant to s440 of the Act, to return to investigation.

That the Investigator to write to the Practitioner pursuant to s572 (1) (b), requesting further information.'

5 Under s442(1), the Board may appoint a suitably qualified person to investigate a complaint. On the day of the impugned resolution, it resolved to appoint one of its staff, a legal practitioner named Emily Warner, to investigate the complaint in question. In accordance with the impugned resolution, she wrote to the respondent on 19 March 2014 seeking further information. Under s572(1)(b), an investigator may, for the purposes of carrying out a complaint investigation, serve a notice on the lawyer in question requiring him or her to provide written information on or before a specified date. The practitioner took the view that the resolution of 18 March was invalid, that the investigator had not been validly appointed, and that she was not obliged to supply the further information that had been sought. She responded accordingly. The Board then applied to the Court for a mandatory injunction requiring the practitioner to provide the information to the investigator. She subsequently provided it, saying that she did so 'under protest'. The originating application was amended so as to seek a declaration as to the validity of the resolution of 18 March. That is now the only part of the application that requires determination."

1. His Honour's approach to the question raised by the dispute was that in order to determine whether the Board had the power to vacate its decision to make an application to the Tribunal, one must begin by addressing s 20(a) of the Acts Interpretation Act 1931. That section provides that where an Act confers a power or imposes a duty, the power may be exercised and the duty shall be performed from time to time as occasion may require.
2. His Honour noted that as a result of that provision, any statutory decision-maker must be regarded as having the power to vary or reverse a statutory decision unless the relevant legislation expressly or impliedly indicates that there is no such power: Purton v Jackson (2012) Tas R 310 at [3] and [21]. He further noted that there was nothing in the Legal Profession Act 2007 (the Act) that expressly prohibited the Board from reversing a decision to proceed under s 450(d) by making an application to the Tribunal under s 464. It was therefore necessary he said, to determine whether the scheme of the Act was such that a decision of that nature must be regarded as irreversible.
3. The learned Chief Justice noted that once an application had been made to the Tribunal, it was clear that the Board could not unilaterally reverse its decision because s 469 prohibits the withdrawal or other termination of an application unless the Tribunal gives leave.
4. That section reads as follows:

"469(1) Proceedings before the Tribunal with respect to a complaint cannot be terminated, whether by withdrawal of the disciplinary application or otherwise, before the Tribunal makes its final decision about the complaint, without the leave of the Tribunal.

(2) The Tribunal may give leave for the purposes of this section if it is satisfied that continuation of the proceedings is not warranted in the public interest."

1. His Honour observed that the situation in the present case was not governed by that section because the Board had sought to change its mind after deciding to make an application to the Tribunal, but before making one.
2. Counsel for the respondent argued below that the decision of the Board was final and irreversible. He relied heavily on comments made by Nettle JA, with whom Warren CJ and Chernov JA agreed, in Kabourakis v Medical Practitioners Board of Victoria [2006] VSCA 301 at [47]-[57].
3. In that case at [48], Nettle JA said:

"More often that not, the requirements of good administration and the need for people affected directly or indirectly by decisions to know where they stand mean that finality is the paramount consideration, and the statutory scheme, including the conferring and limitation of rights of review on appeal, will be seen to evince an intention inconsistent with capacity for self correction of non-jurisdictional error. In the bulk of cases, logic and common sense so much incline in favour of finality as to permit of no other conclusion."

1. Blow CJ observed that the legislation applicable to that case empowered the Medical Practitioners Board to determine that there be held, either an informal hearing or a formal hearing into the professional conduct of a registered medical practitioner. It decided that an informal hearing would be conducted. The informal hearing resulted in a finding that the practitioner had not engaged in unprofessional conduct. The complainant was dissatisfied. There was an investigation by the Victorian Ombudsman. It was discovered that an important expert report had not been provided to the panel that conducted the informal hearing. The Medical Practitioners Board decided to convene a second informal hearing. The Court of Appeal concluded that the Medical Practitioners Board had no power to do that. One important aspect of the relevant legislation was that, after an informal hearing, the medical practitioner in question could require a formal hearing, whereas there was no corresponding provision empowering the Board to require one.
2. Blow CJ also noted that the Court of Appeal took into account the desirability of finality.

1. His Honour noted that at [64] Nettle JA said:

"... the requirements of good administration and the need for people affected directly or indirectly by decisions to know where they stand mean that finality is more often than not the paramount consideration. It is similar to the principles of public policy which are said to be encapsulated in the maxims nemo debet bis vexari, si constat curiae quod sit pro una et eadem causa [Pearce v R [1998] HCA 57; (1998) 194 CLR 610 at 636 [89], per Kirby J] and interest reipublicae ut sit finis litium [Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 at 597, per Gibbs CJ and Mason and Aickin JJ]. More particularly, however, to borrow from the language of Vaisey, J in Re 56 Denton Road, Twickenham [[1953] 1 Ch 51 at 57], it would introduce a lamentable measure of uncertainty and so much disturbance in the minds of those unfortunate persons who have cause to complain of, or are the subject of complaint of, unprofessional conduct in the practice of medicine that the Act cannot have contemplated the possibility of such vacillations as are claimed to be permissible in such a case as the present."

1. The learned Chief Justice went on to say at [14] of his reasons:

"However this [the present] case concerns a decision of an interlocutory nature. It was not a decision that brought the proceedings about the relevant complaint to a conclusion. The only case that I have been referred to concerning the finality or otherwise of an interlocutory decision in disciplinary proceedings is Ping v Medical Board of Queensland [2004] 1 Qd R 282. In that case the Medical Board had the power to conduct disciplinary proceedings either by way of a hearing or by way of written correspondence: Health Practitioners (Professional Standards) Act 1999 (Qld), s128(3). It elected to proceed by way of correspondence. It was required by s153(1) of the same Act to give notice of that decision to the medical practitioner, the complainant, and the Health Rights Commission. After giving notice accordingly, it decided that it would be preferable to conduct a hearing because credibility issues were involved. It purportedly rescinded its resolution to proceed by way of correspondence and made a decision to proceed by way of hearing. Moynihan J held that it had no power to do that. At 284 his Honour said:

'It is true that the legislation ... implements schemes designed to ensure that an appropriate level of care is delivered to the public in a professional, safe and competent way. Among other considerations this is to uphold the confidence of the public in the profession. Those general considerations have to yield to the specific provisions of the legislation.'"

1. The learned Chief Justice then noted that statutory powers to discipline legal practitioners exist only for the protection of the public: Dickens v Law Society of Tasmania (unreported 42/1981, Cosgrove J) at 15, 16; Law Society of Tasmania v Turner [2001] TASSC 129; (2001) 11 Tas R 1 at [62], and that such was made clear by s 417 of the Act. He set out the first section in Ch 4 of the Act, which relates to complaints and discipline and provides as follows:

(a) to provide a nationally consistent scheme for the discipline of the legal profession in this jurisdiction, in the interests of the administration of justice and for the protection of consumers of the services of the legal profession and the public generally;

(b) to promote and enforce the professional standards, competence and honesty of the legal profession;

(c) to provide a means of redress for complaints about lawyers."

1. By the route of such reasoning the learned Chief Justice arrived at what I regard as the pivotal point in his decision, stating that the question it was necessary to determine was whether the objective of protecting the public was a consideration which, in the words of Moynihan J, must "yield to the specific provisions of the legislation" with the result that the Board's decision to make an application to the Tribunal precluded it from vacating that decision and having further investigative work undertaken.
2. Stating the question in that way does not depart in any way from that which his Honour had earlier stated as the rule in Tasmania based on Purton v Jackson (above). That rule being, that as a result of s 20(a) of the Acts Interpretation Act, any statutory decision-maker must be regarded as having the power to vary or reverse a statutory decision unless the relevant legislation expressly or impliedly indicates that there is no such power.
3. His Honour next noted that he had already made reference to a number of aspects of the statutory scheme that were relevant to the question for the determination of that question, but that there were others that needed to be taken into account. They were he observed as follows.
   • An investigator carrying out a complaint investigation has the power to require the practitioner under investigation to produce specified documents or copies thereof: s 572(1)(a).
   • An investigator also has the power to require the practitioner to assist in, or co-operate with, the investigation "in a specified manner": s 572(1)(c).
   • An investigator also has the power to require any person who has, or has had, control of documents relating to the affairs of the practitioner in relation to his or her practice to provide access to the documents and/or information relating to the law practice affairs of the practitioner that the investigator reasonably requires: s 572(2).
   • Subject to the issue of a search warrant by a magistrate under s 576, an investigator also has the power to enter premises, search the premises, examine anything on the premises, make copies, seize and take away material and so forth: s 577.
   • A failure to comply with a requirement of an investigator is capable of constituting unsatisfactory professional conduct or professional misconduct: s 583.
   • It is an offence, punishable by a fine, for a person, without reasonable excuse, to obstruct an investigator exercising a power under the Act: s 584.
   • The rules of procedural fairness, to the extent that they are not inconsistent with the provisions of the Act or regulations thereunder, apply in relation to the investigation of complaints and the Board's procedures under Ch 4 of the Act ("Complaints and discipline"): s 460.
   • Because the rules of procedural fairness apply, the Board has an obligation, after the investigation of a complaint has been completed, to provide information to the practitioner in question and to afford that practitioner an opportunity to respond: Murray v Legal Services Commissioner [1999] NSWCA 70; (1999) 46 NSWLR 224.
   • Once the Board has made a decision to exercise one of the powers conferred by s 450, including the power to make an application to the Tribunal, it must advise the "prescribed authority" of its decision, and of the reasons for the decision: s 452. The "prescribed authority" is the Law Society of Tasmania.
   • The Board has a general duty to ensure that the complainant and the practitioner receive a statement of reasons from the Board in respect of any action taken in relation to a complaint: s 462(1)(b).
   • When an application is pending before the Tribunal, that Tribunal, amongst other powers, has the power to require the Board to conduct any investigation that it considers necessary in order to hear and determine a complaint: s 466(1)(g).
4. The learned Chief Justice, having set out those considerations, then observed that if the contentions of the respondent (before him), were correct, it would follow that if the Board decided to make an application to the Tribunal, but then decided that it was desirable that a more thorough investigation be undertaken, it would have no option but to proceed to make its application to the Tribunal, despite misgivings about the thoroughness of its investigation, and then to ask the Tribunal to require it, pursuant to s 466(1)(g), to conduct a further investigation.
5. His Honour noted that it would be undesirable if the Tribunal, with its role as an impartial decision-maker, were perceived as involved in the prosecutorial process, yet any exercise by it of the power to require a further investigation under s 466(1)(g) could run the risk of the Tribunal being perceived as involved in the bolstering of the case against a practitioner. Therefore he said, that as a general rule, it must be desirable for that power to be used sparingly.
6. His Honour then also observed that if the contentions of the respondent (before him) were correct, a difficult situation would arise if the Board were to receive significant exculpatory evidence between the making of a decision to apply to the Tribunal and the subsequent making of its application. The Board would have no power to vacate its decision, would be obliged to make its application to the Tribunal, and would then have to apply under s 469(1) for leave to withdraw that application.
7. His Honour said that, in his view, it was significant that s 469(1) expressly restricted the Board's power to change its mind after an application has been made to the Tribunal, but nothing in the Act imposed any such express restriction in relation to the period between the making of a decision to apply to the Tribunal and the actual making of the application.
8. Further, he observed, the fact that after making the application the Board can, in effect, change its mind subject to the Tribunal granting leave, weighed against a conclusion that there is an implied absolute prohibition on the Board changing its mind between the making of the decision to apply and the actual making of the application.
9. The learned Chief Justice then concluded, at [21] of his reasons, that having regard to the aspects of the statutory regime he had enumerated and discussed, he considered that, although it was highly desirable that legal practitioners should know where they stood in relation to disciplinary proceedings, and although investigators had significant powers, with disciplinary and penal implications if anyone disobeyed, the relevant provisions of the Act could not be regarded as precluding the Board, when it had decided to make an application to the Tribunal, but had not yet made that application, from vacating its decision and undertaking a further investigation. His Honour held that Kabourakis v Medical Practitioners Board of Victoria (above), and Ping v Medical Board of Queensland (above) should be distinguished because they related to different legislative regimes.

1. The appellant has appealed against the decision of the learned Chief Justice on 11 grounds. They are:

"1 The learned judge failed to consider, properly, or at all, the provisions of the Legal Profession Act 2007, ss450 and 451 and/or the effect, or consequences, of a decision made under them.

1. The learned judge erred in law in that the principles of natural justice which it is obliged to extend to a practitioner before making a decision under ss450 or 451 are unfairly distorted, or rendered nugatory by allowing the Board to revoke its decision.
2. The learned judge erred in law in failing to construe the provisions of ss450 and 451 as marking out the transition between the investigative and adjudicative processes in the scheme of the Act relating to discipline.
3. The learned judge erred in law in finding that a decision of the Board under ss450 or 451 is interlocutory and not final.
4. The learned judge erred in law in failing to give sufficient weight to the principle of finality in administrative decision making.
5. The learned judge erred in law in finding that as a result of the ss466(1)(g) and 469(1) the relevant provisions of the Act did not preclude the respondent from rescinding its decision and undertaking a further investigation.
6. The learned judge erred in law in finding that the Disciplinary Tribunal's power under s466(1)(g) was to be used sparingly.
7. The learned judge erred in law by failing to construe s466(1)(g) as being consistent with the proposition that once completed an investigation by the Board can only be ordered by the Disciplinary Tribunal.
8. The learned judge erred in assuming, for the purpose of construing s466(1)(g), that its purpose was to bolster the respondent's case against a practitioner in disciplinary matters, when it is equally available to be ordered for the benefit of the practitioner, or for the assistance of the Tribunal.
9. The learned judge erred in law in finding that it was a consequence of the express restriction in s469(1) on the respondent's power to change its mind after an application had been made to the Tribunal that the respondent was permitted to change its mind before it made such an application.
10. The learned judge failed to consider, properly, or at all, the consequences of the respondent's decision of 27 August 2013."

1. Grounds 1 and 2 were argued together by the appellant. I will, for ease of reference, set them out again. They are as follows:

"1 The learned judge failed to consider, properly, or at all, the provisions of the Legal Profession Act 2007, ss 450 and 451 and/or the effect, or consequences, of a decision made under them.

2 The learned judge erred in law in that the principles of natural justice which it is obliged to extend to a practitioner before making a decision under ss 450 or 451 are unfairly distorted, or rendered nugatory by allowing the Board to revoke its decision."

1. On these grounds the appellant submitted:
   • That whether a legally effective decision has been made depends on the kind of legal effect under consideration.
   • That the legal effect of the Board's decision was to re-open the investigation, which it had previously determined to be closed. There is no evidence of any further factual material before the Board for the purpose of making its decision to revoke. It had counsel's advice. It did not consider whether the practitioner's conduct was or was not capable of amounting to professional misconduct.
   • That the legal consequences for the practitioner of a decision under s 450 are important. They come at a time when the Board has given the practitioner the grounds of complaint and asked the practitioner for submissions about the characterisation of the conduct and how it is to proceed.
   • That the effect of a change of mind is to vex the practitioner twice with the Board's investigatory process and the election process envisaged by s 450, including any further submissions in response to a further Murray's case letter.
   • That the Board also had a duty to report its decision to the prescribed authority and give reasons.
   • That whether a legally effective decision has been made also depends upon the further facts as to what was done, or not done, following the communication of the decision.
   • That in the present case, the Board acted. It had briefed counsel. Counsel reviewed the matter and, by inference, advised that the investigation was somehow deficient.
   • That the practitioner has acted. She had briefed counsel. There was a conference specifically for the purposes of facilitating the making of the application to the Tribunal.
   • That there will be cost implications for the practitioner. It is unlikely that she will be able to recover her wasted costs of the revoked process.
   • That the effect of his Honour's decision is that the Board is entitled to rescind its decision in any case it chooses. It fails to identify or give any weight to the consequences of allowing the Board the latitude of recalling a decision. It is to be remembered that at this stage of the process the Board has written to the practitioner (the Murray case letter) asking for a response to the allegations and submissions about why the matter should not be treated as professional or unprofessional conduct. The Board is required to nail its colours to the mast. The practitioner is required, effectively, to "show cause".
   • That his Honour's reasoning entails that in every case, having done all of that and obtained the practitioner's final word, the Board is entitled to make its decision, but, before making its application to the Tribunal, is entitled to refer the whole matter off for review by counsel to see if anything further needs to be done.
   • Such consequence could not be intended by the Act. It puts the Board in an extraordinary position vis a vis the practitioner. It distorts the natural justice requirements on which the decision in Murray is based.
2. The respondent, as to those submissions, replied:
   • That a decision under s 450 does not finally determine a complaint. Such a decision does not, of itself, alter the legal rights, liabilities or obligations of either the complainant or the practitioner. The decision is neither adjudicative nor determinative in nature. The decision does not involve a process of fact finding. It is, in essence, a decision to prosecute. Other than flagging a future intention to prosecute a practitioner in respect of a complaint, a decision made under s 450 is of no legal consequence.
   • In Rootkin v Kent County Council [1981] 1 WLR 1186, Lawton LJ said at 1195:

"It is the law that if a citizen is entitled to payment in certain circumstances and a local authority is given the duty of deciding whether the circumstances exist and if they do exist making the payment, then there is a determination which the local authority cannot rescind. That was established in Livingstone v Westminster Corporation [1904] 2 KB 109. But that line of authority does not apply to a case where the citizen has no right to a determination on certain facts being established; but only to the benefit of the exercise of a discretion by the local authority."

• A decision under s 450 falls squarely within the exception established in Rootkin because the making of a decision under s 450 or s 451 does not entitle either the practitioner or the complainant to any particular determination upon certain facts being established. Rather, both the practitioner and the complainant merely have an expectation of a discretion being exercised by the Board.
• The Rootkin distinction has been recognised in Australia and it is submitted should be applied by this Court.
• That approach is consistent with the general proposition identified by Gleeson CJ in Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 at 603 [5]- [6]:

"[5] There is nothing in the nature of an administrative decision which requires a conclusion that a power to make a decision, once purportedly exercised, is necessarily spent. In Ridge v Baldwin [4], Lord Reid said:

'I do not doubt that if an officer or body realises that it has acted hastily and reconsiders the whole matter afresh, after affording to the person affected a proper opportunity to present his case, then its later decision will be valid.'

[6] That general proposition must yield to the legislation under which a decision-maker is acting. And much may depend upon the nature of the power that is being exercised and of the error that has been made."

• The prima facie position in Tasmania is that, subject to a contrary legislative intention, s 20 confers on a statutory authority or decision-maker the power to vary or reverse a statutory decision.
• There is nothing in the Act that evinces a legislative intent contrary to s 20 of the Acts Interpretation Act applying to a decision made under s 450. To the contrary, when the purposes of Ch 4 are taken into account, very good reason for the respondent being able to rescind a decision made under s 450 can be identified. The purposes of Ch 4 are found in s 417 which provides:

(a) to provide a nationally consistent scheme for the discipline of the legal profession in this jurisdiction, in the interests of the administration of justice and for the protection of consumers of the services of the legal profession and the public generally;

(b) to promote and enforce the professional standards, competence and honesty of the legal profession;

(c) to provide a means of redress for complaints about lawyers."

• Those purposes could not be achieved if the respondent could not vary or reverse a decision made under s 450. Lawyers who had engaged in serious professional misconduct might escape being disciplined and thereby the public would not be protected. Conversely the respondent may be forced to prosecute legal practitioners in the face of exculpatory evidence that has come to light after a decision has been made under s 450, which would be contrary to public policy.
• Having rescinded its original decision, the respondent will be obliged to afford appropriate natural justice and procedural fairness to the appellant before it makes a further decision under s 450. It is not suggested that by rescinding its original resolution the respondent can in some way avoid its obligations to afford natural justice and procedural fairness to the appellant.

1. I do not accept the appellant's submissions on these grounds. The learned Chief Justice's holding, that the prima facie position in Tasmania is that, subject to a contrary legislative intention, s 20 of the Acts Interpretation Act confers on a statutory authority or decision-maker the power to vary or reverse a statutory decision, is well established by Purton v Jackson (above) and there is no suggestion in this case that Purton v Jackson was in some way wrongly decided.
2. I accept the respondent's submissions, to the extent that they embrace his Honour's conclusion, that there is nothing in the Act, either express or implied that evinces a legislative intent to displace the prima facie position established by s 20(a) of the Acts Interpretation Act in its application to a decision made under s 450 of the Act. Because of the clear application of s 20 (a) in the present case I do not find it necessary to consider whether Rootkin v Kent City Council (above) is authority in Australia since Bhardwaj (above) for the proposition that there exists a free standing common law power to re-open administrative decisions in the absence of jurisdictional error.
3. In my view, a decision made under s 450 of the Act to make an application to the Tribunal under s 464 to hear and determine a complaint against a legal practitioner, is neither a final decision nor an interlocutory decision. I accept the respondent's submission that a decision under s 450 does not finally determine a complaint and does not, of itself, alter the legal rights, liabilities or obligations of either the complainant or the practitioner. A practitioner, the subject of a complaint that has been investigated by the Board is, before the making of a decision by the Board under s 450, a person who is liable to be the subject of an application to the Tribunal by the Board, and he or she remains so after the making of the decision until such time as the application is actually made.
4. In my view, it is correct, as submitted on behalf of the respondent, that the decision under s 450 is neither adjudicative nor determinative in nature. The decision does not involve a process of fact finding. It is, in essence, a decision to prosecute by filing an application, and as such it seems to me that it is executory in nature until the application is filed. It does not, in my view, delineate the Board's investigative process from the adjudicative process. It is the actual making of the application to the Tribunal that does that. I accept the respondent's submission that other than flagging a future intention to prosecute a practitioner in respect of a complaint, a decision made under s 450 is of no legal consequence. I reject the appellant's submissions to the contrary
5. Moreover, as pointed out by the learned Chief Justice, a construction of the Act that would require the Board to adhere to and implement a decision under s 450 to make an application to the Tribunal, notwithstanding that it may be premature or unwise absent further investigation, or present later acquired exculpatory information, cannot be sustained.
6. Given my view that a decision made by the Board under s 450 is not final, I am of the opinion that the reasoning in Kabourakis (above) has no application to the question for determination in this appeal. As counsel for the respondent submitted, Kabourakis involved the proposed reopening of an adjudicative process after a final decision had been made. The Medical Practitioners' Board wished to have an adjudicative panel, which had already heard and determined the complaint against Dr Kabourakis by dismissing it, to reconsider its decision afresh. In the present case, there has been no determination of the complaint by an adjudicative body. On the contrary, the Board's decision was merely the signification of an intention to lodge, at some future point in time, an application with an adjudicative body for the hearing and determination of a complaint.
7. And whether or not it is correct to characterise a decision under s 450 as interlocutory there is nothing in the Act, nor any implication arising from it, that would justify a similar result to that in Ping (above). As the learned Chief Justice pointed out, correctly with respect, that case should be distinguished because it relates to a different legislative regime.
8. In Ping, the Medical Board resolved, under s 118(1)(c)(iii) of the Health Practitioners (Professional Standards) Act 1999 (Qld), to deal with the matter by itself taking disciplinary proceedings and to proceed by way of correspondence rather than by way of a hearing. The decision clearly had legal consequences for Dr Ping because as a result he would not be subject to oral examination in a case where there were significant differences between the complainant's version of events and that of Dr Ping.
9. The refusal by Moynihan J to allow the Medical Practitioners Board to change its mind and to proceed to a hearing would appear to be based on his view that the terms of the particular legislation left no room for the application of the provisions of the Acts Interpretation Act 1954 (Qld). Moynihan J said at 284:

"In my view, the provisions of s 164(1) of the Health Practitioners (Professional Standards) Act required the respondent to decide or elect to proceed by way of correspondence or to pursue the alternative course. In the knowledge of the facts which subsequently led to its purported change of mind, it chose to adopt the former course. In summary, on my view of the legislation, the respondent having chosen one course cannot abandon it. On this view the Acts Interpretation Act does not arise for consideration."

1. Thus Ping is distinguishable on the basis of both the facts of the case and the particular legislative scheme under consideration. The Medical Practitioners Board's decision as to which adjudicative process to elect to pursue plainly had significant forensic consequences for the medical practitioner and the terms of the Health Practitioners (Professional Standards) Act, unlike those in the present case, displaced the operation of the relevant provision of the Acts Interpretation Act 1954 (Qld).
2. As to considerations of natural justice, counsel for the respondent is, in my view, unquestionably correct when he points out that having rescinded its original decision, the respondent will be obliged to afford appropriate natural justice and procedural fairness to the appellant before it makes a further decision under s 450. By rescinding its original resolution the respondent cannot avoid its obligations to afford natural justice and procedural fairness to the appellant. Those obligations are not unfairly distorted, or rendered nugatory by allowing the Board to revoke its decision. The Board will be required to serve a further "Murray's case letter" before it makes a fresh decision under s 450 after completing its new investigation.
3. That the appellant will be "twice vexed" by being required to respond to a second "Murray's case letter" might be annoying or causative of some further cost, but that does not, in my view, give rise to an implication that the prima facie position of the freedom of a statutory decision-maker to vary or reverse a statutory decision must yield to an implied legislative indication that there is no such power under the Act.
4. I would dismiss grounds 1 and 2.

1. Grounds 3 and 4 were argued together by the appellant. They are, again for ease of reference, as follows:

"3 The learned judge erred in law in failing to construe the provisions of ss 450 and 451 as marking out the transition between the investigative and adjudicative processes in the scheme of the Act relating to discipline.

1. The learned judge erred in law in finding that a decision of the Board under ss 450 or 451 is interlocutory and not final."
2. The appellant's written submissions on these grounds were as follows:
   • His Honour found that the Board's decision to apply to the Tribunal was interlocutory. It is contended that:

(a) the decision is final, in that it concludes an identifiable part of the statutory process, viz, the investigation; or

(b) the use of the term "interlocutory" is apt to mislead, because it deflects attention from the legal consequences of the particular decision.

• A decision under ss 450 or 451 is part of a statutory process that may, or may not lead to disciplinary action against a practitioner.
• The provisions of ss 450 and 451 mark out the transition between the investigative and adjudicative functions of the system. It is inherent in that transition that the practitioner has a right to be heard, before the matter proceeds further.
• A decision to dismiss a complaint under s 451 is final. The Board has no right of review. Consistent with finality it would be wrong to suggest that the Board could change its mind after dismissing a complaint.
• That his Honour found it significant that no application had been made to the Tribunal is at best a neutral consideration. The Board is not required to apply to itself under subs 450(a) or (b).

1. I have already touched on these grounds in my consideration of grounds 1 and 2. There is no substance to them in my view. As already noted, in my view, it is not the decision under s 450 of the Act to make an application to the Tribunal under s 464 to hear and determine a complaint against a legal practitioner that marks out the transition between the investigative and adjudicative stages of the system. It is the actual making of the application that has that function. And, as I have already said, a practitioner, the subject of a complaint that has been investigated by the Board is, before the making of a decision by the Board under s 450, a person who is liable to be the subject of an application to the Tribunal by the Board and he or she remains so after the making of the decision until such time as the application is actually made. Circumstances may arise, as they did in the present case, which result in the Board delaying or not making the intended application to the Tribunal.
2. Whether or not it is correct to characterise such a decision under s 450 as interlocutory or final, there is nothing in the Act, or any implication arising from it, that would justify a similar result to that in Kabourakis (above) and Ping (above). Comparison with the position under subs 450(a) or (b) or s 451 of the Act is uninstructive in this context. Those provisions involve quite different considerations.
3. I would dismiss grounds 3 and 4.

1. Ground 5 contends that the learned Chief Justice erred in law in failing to give sufficient weight to the principle of finality in administrative decision-making.
2. The written submissions advanced in support of the ground are as follows:
   • Where the decision is made and communicated in terms which are not expressly preliminary or provisional, the decision is final and, in the absence of a statutory power or the consent of the person affected, is not able to be altered or withdrawn.
   • Finality is a paramount consideration when determining the legal effect of an administrative decision.
   • There are provisions in Ch 4 that compel a conclusion consistent with finality.
   • The Act, ss 450 and 451 provide the Board with an election to take action on the complaint.

(a) It is a condition precedent to actions under these provisions that the Board has completed its investigation.

(b) The investigation phase itself is significant because of the wide powers it confers on the investigator. Its cessation is an important part of the resolution of the complaint.

(c) The importance of the completion of the investigation is also marked by notice to the prescribed authority.

(d) The exercise of the Board's powers under s 450 also requires the Board to advise the prescribed authority and give its reasons for doing so.

• Under subs 450(d) or (e) the Board may choose to send the matter to the Tribunal or this Court if the conduct is capable of amounting to professional misconduct. That is significant because the Board has no power to impose disciplinary action for professional misconduct.
• In order for the Board to exercise the powers or duties in these provisions, it must reach an affirmative state of mind, viz that the matter is capable of amounting to unsatisfactory professional conduct or professional misconduct.
• The formation of that state of mind necessarily requires the Board to deal with the complaint itself, or refer it to the Tribunal, or this Court. Thereafter, it becomes the prosecutor, or adjudicator, not the investigator.
• The power to make and unmake a decision does not stretch to infinity. The "occasion", in the Acts Interpretation Act, s 20, requires a "terminus".
• Investigations are to be conducted as efficiently and expeditiously as possible. This suggests that investigations should have a terminus. That terminus is expressly provided in ss 450 and 451.
• The terminus would be illusory, if once the Board finds that its investigation is complete, it was permitted to put the investigation in train again.
• A duty to decide, or determine a question which affects the rights of a subject is likely to attract finality.
• The Board's decision so affects the rights and interests of the practitioner that it is necessary, before the Board's decision is made, to provide the practitioner with an opportunity to make submissions as to the appropriate course to be taken.
• His Honour referred to the desirability of finality. He found that (amongst other things) while it was "highly desirable that legal practitioners should know where they stand in relation to disciplinary proceedings" the Board should not be precluded from changing its mind.
• It is contended that the desirability of finality is a matter which is inherent in any consideration of the Acts Interpretation Act, s 20. It is not easily displaced. That is because it is usually considered paramount. Cases in which it has been displaced are those which do not involve decisions which affect rights, or in which the statutory scheme permits the decision-maker to change its mind.
• The "occasion" the Board relies on to trigger s 20 is not a jurisdictional error. The decision of the Board on 27 August 2013 was properly made under the Act, s 450. The question of whether the Board can exercise the power again is therefore different from the question that arose in Minister for Immigration v Bhardwaj. Generally speaking, a non-jurisdictional error is binding on the parties, unless set aside on appeal or review.
• The decision was communicated to the practitioner in terms which were final, that is, to the effect that the Board had:

(b) found that the conduct may amount to professional misconduct; and

(c) elected to make an application to the Tribunal.

1. The learned Chief Justice recognised the principle of finality in administrative decision-making. After discussing Kabourakis (above) his Honour noted that similar reasoning had often led courts to conclude that statutory decision-makers did not have the power to re-make their decisions after the decision-making process had been completed. At [13] his Honour said:

"Similar reasoning has often led courts to conclude that statutory decision-makers did not have the power to re-make their decisions after the decision-making process had been completed. Thus, in Purton v Jackson (above), the Full Court held that the Resource Management and Planning Appeal Tribunal did not have the power to reconsider an appeal that it had dismissed on the ground of a lack of jurisdiction, even if its decision about its jurisdiction was wrong. In Re 56 Denton Road, Twickenham [1953] 1 Ch 51 it was held that the War Damage Commission did not have the power to make a second decision on a claim for compensation for loss caused by an enemy bombing raid during the Blitz. Similar decisions have been made in compensation cases concerning building insurance and surrendered firearms: Walter Construction Group Ltd v Fair Trading Administration Corporation [2004] NSWSC 158; Walter Construction Group Ltd v Fair Trading Administration Corporation [2005] NSWCA 65; Firearm Distributors Pty Ltd v Carson [2000] QSC 159; [2001] 2 Qd R 26."

1. In Re 56 Denton Road, Twickenham (above) Vaisey J said at 56-57:

"On the second point counsel offered for my acceptance the following proposition: that where Parliament confers upon a body such as the War Damage Commission the duty of deciding or determining any question, the deciding or determining of which affects the rights of a subject, such decision or determination made and communicated in terms which are not expressly preliminary or provisional is final and conclusive and cannot in the absence of express statutory power or the consent of the person or persons affected, be altered or withdrawn by that body. I accept that proposition as well founded, and applicable to the present case." (Emphasis added.)

1. However, in the present case the learned Chief Justice plainly took the view that the decision was not a final or conclusive decision, and of course there was a statutory power, namely s 20(a) of the Acts Interpretation Act. His Honour said that the case before him concerned a decision of an interlocutory nature and it was not a decision that brought the proceedings about the relevant complaint to a conclusion. He said that the only case that he had been referred to concerning the finality or otherwise of an interlocutory decision in disciplinary proceedings was Ping (above) and he distinguished that case.
2. One can accept the appellant's submission that the respondent's decision was communicated to the appellant in terms which were not expressly "preliminary or provisional". They were to the effect that the respondent had:

(b) found that the conduct may amount to professional misconduct; and

(c) elected to make an application to the Tribunal,

However, that does not, in my view, render the decision final or of legal consequence in the sense of affecting "the rights of the subject". The decision merely flagged an intention on the part of the respondent to make an application to the Tribunal.

1. In my view, the principle of finality in administrative decision-making is not determinative in the present case. In Re 56 Denton Road, Twickenham (above) the proposition posited by counsel and accepted by Vaisey J was embraced by his Honour in the absence of reliance on an express statutory power. In the present case the relevant express statutory power is s 20(a) of the Acts Interpretation Act, which, as construed in Purton v Jackson, has the result that any statutory decision-maker must be regarded as having the power to vary or reverse a statutory decision unless the relevant legislation expressly or impliedly indicates that there is no such power. It is only where the terms of a particular Act leave no room for the application of the Acts Interpretation Act that the principle of finality trumps s 20(a). That was the case in Kabourakis (above at [86]) and Ping (above at 284). For the reasons given by the learned Chief Justice, with which I respectfully agree, the present case is not such a case.
2. I have already discussed Ping at [55]-[58] above. In Kabourakis, Nettle JA took the view that the Victorian equivalent of s 20(a) did not justify the Medical Board's decision to revoke its earlier decision. Nettle JA said at [86]:

"86 ... Even if s 40 of the Interpretation of Legislation Act enables the Board to exercise from time to time the power conferred by s 25(7) and thereby to add to, subtract from, or reverse previous exercises of the power, it says nothing to suggest that the Board could thereby annihilate the effects of a finding made by a panel in the determination of a hearing undertaken pursuant to a previous exercise of the power conferred by s 25(7) and a fortiori nothing to suggest that the Board could thereby annihilate a finding made by a panel in the determination of a hearing undertaken pursuant to referral made by the Board in exercise of the power conferred by s 39."

1. Those comments reflect the views of Nettle JA expressed earlier in his judgment as to the nature of the legislative framework with which he was concerned. I apprehend his Honour to have meant that the terms of the Medical Practice Act 1994 (Vic) left no room for the application of the Interpretation of Legislation Act. That was also the view of Moynihan J in Ping, as I read his Honour's judgment. In the present case however, the learned Chief Justice took the view that the Act did not expressly or impliedly indicate that there was no power in the Board to vary or reverse a statutory decision under s 450 of the Act. As I have already said, I respectfully agree with the Chief Justice's conclusion for the reasons that he gave.
2. To the extent that power to vary or reverse a decision cannot stretch to infinity and thus, as submitted on behalf of the appellant, the "occasion" referred to in s 20(a) of the Acts Interpretation Act requires a "terminus", that terminus is provided by the making of an application under s 464 of the Act. After such an application is actually made, further investigation or withdrawal of the proceedings by the Board requires an order of the Tribunal.
3. I would dismiss ground 5.

1. Grounds 6, 7, 8, 9 and 10 were argued together by the appellant. They are, for ease of reference, as follows:

"6 The learned judge erred in law in finding that as a result of the ss466(1)(g) and 469(1) the relevant provisions of the Act did not preclude the respondent from rescinding its decision and undertaking a further investigation.

7 The learned judge erred in law in finding that the Disciplinary Tribunal's power under s 466(1)(g) was to be used sparingly.

8 The learned judge erred in law by failing to construe s 466(1)(g) as being consistent with the proposition that once completed an investigation by the Board can only be ordered by the Disciplinary Tribunal.

9 The learned judge erred in assuming, for the purpose of construing s 466(1)(g), that its purpose was to bolster the respondent's case against a practitioner in disciplinary matters, when it is equally available to be ordered for the benefit of the practitioner, or for the assistance of the Tribunal.

10 The learned judge erred in law in finding that it was a consequence of the express restriction in s 469(1) on the respondent's power to change its mind after an application had been made to the Tribunal that the respondent was permitted to change its mind before it made such an application."

1. The appellant's submissions in support of these grounds were:
   • That the ratio of the learned Chief Justice's decision is found at [21] of his Honour's reasons and involves the following propositions:

(a) Because of ss 466(1)(g) and 469(1), the relevant provisions of the Act do not preclude the Board from rescinding its decision and undertaking a further investigation;

(b) The need for practitioners to know where they stand in relation to disciplinary proceedings and the jeopardy of facing the investigation are displaced.

• His Honour selected ss 466 (1)(g) and 469 from a long list of provisions.

• Section 466(1)(g) empowers the Tribunal to require the Board to conduct an investigation. His Honour found that it should be used sparingly. His reason for that view was that it would be undesirable for the Tribunal, with its role as an impartial decision-maker, to be involved in the prosecutorial process.
• It is contended that his Honour's construction places an unnecessary fetter on s 466(1)(g).

(a) First, there is nothing in the Act that suggests that the power should be read down in this way. The provision occupies a place in a long list of powers given to the Tribunal to perform its functions. These include other very coercive powers.

(b) Secondly, a construction to the effect that the power is to be used sparingly is irrelevant to the nature of Board's decision. The Board's decision is not attended by considerations of the future. It is attended by the material that is before it at the time.

• Further, his Honour referred to bolstering the Board's case. The presumption is unwarranted. The power can just as easily be exercised for the practitioner's benefit, where the Board has overlooked a matter, or it may be entirely neutral.
• Finally, his Honour's construction fails to recognise fundamentally that the Tribunal is not involved in the prosecution of the matter. It is an adjudicator with specific powers of inquiry. It must exercise the power fairly.

• Section 469(1), set out at [6] of his Honour's reasons, prevents proceedings before the Tribunal with respect to a complaint from being terminated without the Tribunal's leave.
• His Honour found that s 469(1) expressly restricts the Board's power to change its mind after an application is made. It followed that, before the application is made, the application could be withdrawn. It is contended that this is incorrect.
• It has been recognised that parties may agree to treat a disputed final decision as having no consequence, without the need to obtain a juridical determination. Under s 469(1) the proceedings could only be determined with Tribunal's consent, for the reason that the Tribunal is seized of the matter.
• In any event, it does not follow that the Board's decision to refer the matter to the Tribunal is not final, or that the Board, the complainant and the practitioner may together decide not to proceed. In that event, it would be unusual for the Tribunal to insist on the matter proceeding.

1. In my view, for the reasons articulated by the respondent in the submissions made on its behalf, there is no merit in any of these grounds of appeal.
2. I deal with each in turn.

1. The learned Chief Justice did not find that as a result of ss 466(1)(g) and 469(1) the relevant provisions of the Act did not preclude the respondent from rescinding its decision and conducting further investigations. As I have already said at [44] of these reasons, the learned Chief Justice concluded at [21] of his reasons that having regard to the aspects of the statutory regime he had enumerated and discussed, he considered that, although it was highly desirable that legal practitioners should know where they stood in relation to disciplinary proceedings, and although investigators had significant powers, the relevant provisions of the Act could not be regarded as precluding the Board, when it had decided to make an application to the Tribunal, but had not yet made that application, from vacating its decision and undertaking a further investigation. The aspects of the legislation that his Honour enumerated and discussed were not confined to ss 466(1)(g) and 469(1) of the Act, and his Honour's conclusion was not simply "as a result of s466(1)(g) and s469 (1)" of the Act as submitted by the appellant.

1. The learned Chief Justice was, with respect, correct to observe at [18] of his reasons that as a general rule, it must be desirable for the power of the Tribunal to order a further investigation to be used sparingly. Proceedings in the Tribunal are in the nature of a prosecution and are adversarial with the Tribunal constituting the independent arbiter of fact. The Tribunal needs to remain independent of the prosecutorial processes.

1. A construction of ss 466(1)(g) and 469(1) as being consistent with the proposition that once completed, an investigation by the Board can only be ordered by the Tribunal has no merit in my view. As was pointed out by the learned Chief Justice at [17] of his reasons, if the appellant's construction were correct, it would follow that if the Board decided to make an application to the Tribunal, but then decided that it was desirable that a more thorough investigation be undertaken, it would have no option but to make its application to the Tribunal, despite misgivings about the thoroughness of its investigation, and then to ask the Tribunal to require it, pursuant to s 466(1)(g), to conduct a further investigation. That is a wholly unsatisfactory state of affairs and cannot have been one contemplated by the legislature.

1. The learned Chief Justice did not assume, for the purpose of construing s 466(1)(g) of the Act, that its purpose was to bolster the respondent's case against a practitioner in disciplinary matters. That is a misconception. What his Honour said at [18] of his reasons was that it would be undesirable if the Tribunal, with its role as an impartial decision-maker, might run the risk of being perceived as involved in the bolstering of the case against a practitioner by the exercise of the power to require a further investigation under s 466(1)(g).

1. The learned Chief Justice did not find that it was a consequence of the express restriction in s 469(1) of the Act on the respondent's power to change its mind after an application had been made to the Tribunal that the respondent was permitted to change its mind before it made such an application.
2. The learned Chief Justice's findings in relation to s 469(1) are at [20] of his reasons. What his Honour said was that in his view it was significant that s 469(1) expressly restricted the Board's power to change its mind after an application has been made to the Tribunal, but nothing in the Act imposed any such express restriction in relation to the period between the making of a decision to apply to the Tribunal and the making of the application. In my view, with respect, his Honour was perfectly correct in his observation that the effect of that provision was significant.
3. His Honour said at [21] that having regard to these aspects of the statutory regime he considered that, although it was highly desirable that legal practitioners should know where they stood in relation to disciplinary proceedings, and although investigators have significant powers, the relevant provisions of the Act could not be regarded as precluding the Board, when it had decided to make an application to the Tribunal but not yet made that application, from vacating its decision and undertaking a further investigation. As can be seen, his Honour had set out a number of provisions of the Act and had used the operation of s 469(1) as merely one factor leading to the conclusion he reached. His Honour did not err in so doing.
4. I would dismiss grounds 6, 7, 8, 9 and 10.

1. Ground 11 asserts that the learned Chief Justice failed to consider, properly, or at all, the consequences of the respondent's decision of 27 August 2013.
2. The appellant's written submissions in support of that ground are as follows:

"• It is submitted that the ratio of the decision improperly bifurcates the Board's decision. It says that a decision under which an application has been made is final. A decision under which an application has not been made is not final.

• First, it ignores the condition of making a decision under s450 that the Board's investigation is complete.
• Secondly, it ignores the fact that the Board is required, once that condition has been satisfied to make an election to act under one of the provisions of s450 or 451.
• Thirdly, it ignores the clear transition marked by that election between the investigation and the adjudication of the complaint. Indeed, s466(1)(g) itself supports the proposition that the investigation once completed may only be re-opened by an order of the Tribunal."

1. This ground is, in my view, misconceived.
2. The conclusion of the learned Chief Justice is not that a decision under which an application has not been made is not final, but somehow retrospectively becomes a final decision when the application to the Tribunal contemplated by it has actually been made.
3. His Honour merely held that a decision made under s 450 of the Act to make an application to the Tribunal under s 464 to hear and determine a complaint against a legal practitioner is not a final decision. In doing so he observed that the effect of ss 466(1)(g) and 469(1) of the Act is that, once proceedings before the Tribunal with respect to a complaint are brought, only the Tribunal may order a further investigation, and that the proceedings cannot be terminated, whether by withdrawal of the disciplinary application or otherwise, before the Tribunal makes its final decision about the complaint, without the leave of the Tribunal.
4. Put another way, the making of the application to the Tribunal does not alter the legal nature of the decision under s 450 of the Act, but s 469(1) does have the effect that the application, once made, cannot thereafter be withdrawn or otherwise terminated without the leave of the Tribunal, and s 466(1)(g) has the effect that only the Tribunal may require the Board to conduct any further investigation.
5. Those considerations favour a construction of the Act whereby the Board, upon the making of the application, and only then, exhausts its own statutory investigative powers. It is thus the making of the application to the Tribunal that marks the transition between the investigation and the adjudication of the complaint and not the decision under s 450 itself. On the basis of such a construction it is not a condition precedent to the making of a decision under s 450 that the Board's investigation be irrevocably closed. The opening words of s 450 providing that after an investigation of a complaint against an Australian legal practitioner "is completed", the Board may do any one of a number of things, do not compel a conclusion that the investigation can never be re-opened by the Board after its decision to prosecute but prior to making an application to the Tribunal.
6. I would dismiss ground 11.

1. Given that all grounds should fail in my view, I would dismiss the appeal.

(2) If, after it has completed a hearing under this Part, the Board is satisfied that an Australian legal practitioner is guilty of unsatisfactory professional conduct, the Board may make one or more of the following determinations:

(c) a determination that the complaint be referred to the Tribunal with a recommendation that the Tribunal make a compensation order.