ACT CIVIL & ADMINISTRATIVE TRIBUNAL

COUNCIL OF THE LAW SOCIETY OF THE ACT v LEGAL PRACTITIONER P1 (Occupational Discipline) [2016] ACAT 66

OR 31/2015

Catchwords: OCCUPATIONAL DISCIPLINE – legal practitioner – interim application – breach of section 395(2) of the Legal Profession Act 2006 (ACT) (LP Act) – complaint more than three years after conduct – procedural or substantive requirement – Supreme Court decision on same provision - effect of s 424 of the LP Act – evidence of prejudice

Legislation: Legal Profession Act 2006 s 395, 410, 416, 419, 421,424

Cases Cited: Appellants v Council of the Law Society of the ACT (2011) 252 FLR 209Byrne v Council of the Law Society of the ACT [2015] ACAT 19Council of the Law Society of the ACT v Legal Practitioner “D3” [2015] ACAT 7Farnaby v Military Rehabilitation and Compensation Commission (2007) 97 ALD 788John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503Law Society of New South Wales v Boland [2001] NSWADT 35Practitioner D3 v ACT Civil and Administrative Tribunal [2016] ACTSC 61

Tribunal: Senior Member M Brennan (Presiding)Senior Member R Orr QC

Date of Orders: 28 June 2016Date of Reasons for Decision: 28 June 2016

ACT CIVIL & ADMINISTRATIVE TRIBUNAL OR 31/2015

BETWEEN:

COUNCIL OF THE LAW SOCIETY OF THE ACT Applicant

AND:

LEGAL PRACTITIONER P1Respondent

TRIBUNAL: Senior Member M Brennan (Presiding)Senior Member R Orr QC

DATE: 28 June 2016

ORDERS

Being satisfied that the parties have not been prejudiced by the applicant’s

failure to observe the procedural requirement in section 395(2) of the Legal

Profession Act 2006 (LP Act), the Tribunal orders under section 424 of the LP

Act that:

1. The applicant’s failure to observe section 395(2) of the LP Act in

relation to the complaint about the respondent be disregarded.

2. The matter be listed for further directions on a date to be fixed.

………………………………. Senior Member M Brennan

for and on behalf of the Tribunal

REASONS FOR DECISION

Introduction

1. In this case the Council of the Law Society of the ACT (applicant) failed to

consider whether it was just and fair, or in the public interest, that it should deal

with a complaint about Legal Practitioner 1 (respondent) raising conduct

allegedly occurring more than three years prior. In failing to consider whether it

should deal with such a complaint, the applicant failed to observe section 395(2)

of the Legal Profession Act 2006 (ACT) (LP Act). Under section 424 of the LP

Act the Tribunal may order that a failure to observe a procedural requirement is

to be disregarded if satisfied that the parties have not been prejudiced by the

failure. The applicant sought such an order by application for interim or other

orders dated 11 March 2016.

2. The first issue for this Tribunal is whether section 395(2) is a procedural

requirement, such that the Tribunal has the discretion to disregard the failure

pursuant to section 424 of the LP Act. If so, the second issue is whether in this

case the Tribunal should order that the failure to observe this procedural

requirement is to be disregarded on the basis that it is satisfied that the parties

have not been prejudiced by the failure.

3. In the reasons below, a reference to ‘ACAT’ or ‘tribunal’ refers to the ACT

Civil and Administrative Tribunal generally or a previous tribunal, whereas

‘Tribunal’ refers to the members who heard the application.

Summary of Tribunal decision

4. In summary, the Tribunal finds that section 395(2) of the LP Act is a procedural

requirement for the purposes of section 424, following the decision of the

Supreme Court in Practitioner D3 v ACT Civil and Administrative Tribunal and

Law Society of the Australian Capital Territory (Practitioner D3).1 The

Tribunal also finds that in this case it should order that the failure to observe this

procedural requirement is disregarded on the basis that it is satisfied that the

parties have not been prejudiced by the failure.

1 [2016] ACTSC 61

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Background

5. On 23 May 2011 Mr Simon Byrne wrote to the council submitting a formal

complaint against the respondent practitioner concerning his conduct as a

lawyer (complaint).

6. The practitioner’s conduct subject to the complaint allegedly occurred between

February and November 2005. Section 395 of the LP Act provides:

(1)     A complaint may be made about conduct to which this chapter applies irrespective of when the conduct is alleged to have happened.

(2)     However, the complaint cannot be dealt with (otherwise than to dismiss it or refer it to mediation) if the complaint is made more than 3 years after the conduct is alleged to have happened, unless the relevant council for the person about whom the complaint is made decides that—(a)     it is just and fair to deal with the complaint having regard to the

delay and the reasons for the delay; or(b)     the complaint involves an allegation of professional misconduct

and it is in the public interest to deal with the complaint.

7. The ‘relevant council’ is the Council of the Law Society of the ACT, the

applicant in these proceedings.2 Hence, section 395(2) of the LP Act permitted

the applicant to consider the complaint but it needed to have reviewed the

factors listed in section 395(2)(a) and (2)(b) of the LP Act, and make a relevant

decision. The applicant failed to consider these factors prior to determining that

the complaint should be investigated, and failed to make the relevant decision.

8. Following the investigation, the applicant decided, pursuant to section 412 of

the LP Act, to dismiss Mr Byrne’s complaint against the practitioner on

1 August 2013.

9. On 19 September 2013 Mr Byrne filed an application in the tribunal for review

of the applicant’s decision pursuant to section 416 of the LP Act.

10. When the matter was heard by the tribunal on 22 August 2014 neither party

raised the issue of the applicant’s failure to make a decision under section

395(2) of the LP Act. 2 See Dictionary to LP Act

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11. In a decision dated 3 March 2015 the tribunal ordered the applicant to bring

proceedings against the practitioner under section 419(1) of the LP Act arising

from Mr Byrne’s complaint.3

12. Pursuant to the decision in Byrne, the applicant commenced proceedings against

the respondent practitioner in an application for disciplinary action dated

4 August 2015.

13. In an application dated 11 March 2016 the council sought an order that its

failure to comply with section 395(2) of the LP Act, prior to dealing with the

complaint dated 23 May 2011 lodged by Mr Byrne against the practitioner, be

disregarded. It also asked the tribunal to list the matter for further directions.

14. In written submissions dated 23 March 2016 the applicant noted that it was at

least arguable that the tribunal’s decision and orders in Byrne did not cure the

noncompliance with section 395(2).

15. This Tribunal agrees with that analysis which follows Refshauge J’s decision in

Appellants v Council of the Law Society of the ACT4 that action taken under

section 416 of the LP Act is akin to a merits review where the tribunal stands in

the place of the original decision maker.

The hearing

16. The applicant council’s application was heard on 31 March 2016. The council

relied on an affidavit of Robert Anthony Reis sworn 15 March 2016 (exhibit

A4). The respondent practitioner relied on annexure A to an affidavit of Jennifer

Anne Shaw sworn on 21 March 2016, which was a reformulated complaint by

Mr Byrne (exhibit A2). This document had been relied on by the applicant in its

application concerning the use of an affidavit, a matter heard at the same time as

this application under section 424. Both parties filed written submissions, and

made oral submissions. The Tribunal reserved its decision. As discussed below,

further written submissions were provided in relation to the decision in

Practitioner D3.

3 Byrne v Council of the Law Society of the ACT [2015] ACAT 19 (Byrne)

4 (2011) 252 FLR 209 at [111]

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The Law

17. Section 424 of the LP Act provides:

The ACAT may order that a failure by the relevant council to observe a procedural requirement in relation to a complaint before an application is made to the ACAT is to be disregarded if satisfied that the parties to the hearing have not been prejudiced by the failure.

Note: The ACAT may make rules about its practice and procedure under the ACT Civil and Administrative Tribunal Act 2008, s 24

The applicant council argued that section 395(2) was such a procedural

requirement. The respondent argued that it was not.

18. In the appeal decision of Council of the Law Society of the ACT v Legal

Practitioner “D3” (Appeal) [2015] ACAT 7 Appeal President Stefaniak

determined that the failure of the applicant to make a decision pursuant to

section 395(2) of the LP Act was a failure “to observe a procedural

requirement” which could be and, in that case, should be disregarded pursuant

to section 424.

19. The practitioner in that case appealed that decision and submitted to the

Supreme Court that the failure of the applicant to make a decision under section

395(2) was more than the failure to observe a procedural requirement, which

therefore could not be cured under section 424, and rendered the proceedings in

the ACAT a nullity.

20. Justice Burns heard this appeal on 4 September 2015. At the time this Tribunal

heard the council’s application for relief under section 424 his Honour’s

decision was reserved. When Burns J’s decision in Practitioner D3 was

delivered on 8 April 2016, the Tribunal invited the parties to file and serve any

further submissions on the effect of this decision within 14 days.

21. The applicant filed a brief submission dated 12 April 2016 and the respondent’s

submission is dated 26 April 2016. The Tribunal has considered both

documents.

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22. Burns J noted in Practitioner D3 that the question he had to decide was not

what constitutes a procedural requirement in the general law but rather what

was the legislature’s intent in drafting section 424 of the LP Act, that is what

did the term ‘procedural requirement’ mean in section 424.5 The practitioner in

that case had argued that the plain meaning of ‘procedural requirement’ did not

include section 395(2). He also argued that the decision in John Pfeiffer Pty Ltd

v Rogerson (2000) 203 CLR 503 (Pfeiffer) concerning choice of law rules

meant that a limitation period was a question of substance and not procedure,

that in effect section 395(2) of the LP Act imposed a limitation period, and that

it was therefore not a procedural requirement under section 424.6 However, his

Honour held that proceedings under the LP Act, which are primarily intended to

protect the public, are different to the type of proceedings to which the choice of

law rules apply. He also found that section 395(2) is not a limitation provision

in the traditional sense, and that the powers vested in the council are not the

equivalent of a right in tort law. Principally, Burns J was satisfied that the

statutory text and context of the LP Act, in addition to the legislative history of

provisions in the LP Act, supported the conclusion that section 395(2) of the LP

Act is a procedural requirement under section 424, and that a failure by the

applicant to make a decision as required by section 395(2) may be disregarded

by the ACAT under section 424.7

23. Burns J also found that, in particular, the effect of section 421(3) of the LP Act

is contrary to the proposition that a failure to comply with section 395(2) falls

outside section 424 and deprives the ACAT of jurisdiction to hear a disciplinary

application filed by the council.8 Subsection 421(3) provides:

The ACAT may amend an application to include an additional allegation even though the alleged conduct-

(a) happened more than 3 years before the amendment is made; or

(b) has not been the subject of a complaint or investigation under this chapter.

5 at [31]6 see at [12]-[13] of Practitioner D3, referring to [97]-[100] of Pfeiffer, in

the joint judgment of Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ

7 at [31]-[34]8 at [34]

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24. His Honour accepted the council’s submission that this subsection has the effect

that the tribunal may amend an application if satisfied as to its reasonableness,

even though the alleged conduct occurred more than three years before the

amendment and had not been the subject of a complaint or investigation. The

council had argued that it would be surprising if the legislature would have

given the ACAT this discretion to amend if it had not also intended to allow the

tribunal to disregard the council’s failure to make a determination under section

395(2).9

The parties’ supplementary submissions

25. The applicant submitted that the decision in Practitioner D3 conclusively

decides that a breach of section 395(2) of the LP Act can be cured by a tribunal

order under section 424.

26. The respondent submitted that the Tribunal should not follow Burns J’s decision

but rather the decision of Pfeiffer where it was stated that for choice of law rules

a limitation period would be taken to be a question of substance not procedure.10

The respondent argued that Burns J erred in considering proceedings under the

LP Act, where protection of the public is the principle concern, differ to

proceedings where the choice of law rules apply. Secondly, the practitioner

submitted Burns J was in error in considering section 395 is not a limitation

provision as contemplated by Pfeiffer, finding it neither removed a right nor

barred a remedy created by the LP Act.

27. However it is clear that what was considered in Pfeiffer was the effect the courts

of the jurisdiction in which proceedings are brought should give to legislation of

the jurisdiction in which a tort was committed,11 and the discussion of limitation

periods took place in this context.12 Pfeiffer did not consider the LP Act, nor the

meaning of ‘procedural requirement’ in section 424 of that Act. As Justice

Burns discussed the principal issue in Practitioner D3 was what does the term

‘procedural requirement’ mean in section 424 of the LP Act, and does it include

9 See at [29]10 Pfeiffer at [100]11 Pfeiffer at [1]12 Pfeiffer at [98]-[100]

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the requirement in section 395(2). 13 The discussion in Pfeiffer may be relevant

to this issue, and Justice Burns considered it.14 But, it is clearly not

determinative, and Justice Burns held that in the specific context of the LP Act

the term ‘procedural requirement’ in section 424 does include the requirement

in section 395(2). The meaning of ‘procedural requirement’ in section 424 is

also the principal issue in this application. In the Tribunal’s view it is the

decision in Practitioner D3 which determines this issue, not the decision in

Pfeiffer.

28. The respondent also submitted that while ordinarily a tribunal should not

decline to follow a judicial pronouncement interpreting a statutory provision

just because it does not agree with it, there is authority for a tribunal doing so

where a decision of the High Court points to a different result. In support of this

submission the decision of Re Farnaby and Military Rehabilitation and

Compensation Commission15 (Farnaby) was cited. Farnaby examined the

question of whether legal professional privilege applies in relation to

proceedings in the Administrative Appeals Tribunal, and considered the earlier

decisions of Ingot Capital Investments Pty Ltd v Macquarie Equity Capital

Markets16 and Waterford v Commonwealth17 both of which dealt specifically

with this issue. Farnaby considered a situation quite different to this case, which

concerns how section 424 of the LP Act should be interpreted and where the

decision in Practitioner D3 deals specifically and thoroughly with this issue,

and the decision in Pfeiffer, which Practitioner D3 considers, does not deal with

it at all.

29. The Tribunal considers that it should follow and is bound by Justice Burns’

decision in Practitioner D3 which covers exactly the same provision in the LP

Act in question in this application.

13 at [31]-[34]14 at [13] and [31]-[32]15 (2007) 97 ALD 788 at [15]-[19] and [25]-[31]16 (2006) 67 NSWLR 9117 (1987) 163 CLR 54

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Prejudice due to the council’s failure

30. On this basis, section 424 of the LP Act empowers the Tribunal to make an

order that the council’s failure to observe the procedural requirement in section

395(2) is to be disregarded if it is satisfied that the parties have not been

prejudiced by the failure.

31. In written submissions dated 23 March 2016 the applicant gave four reasons

why the Tribunal should exercise the discretion given by section 424 of the

LP Act. The factors listed were: no forensic prejudice to either party; the public

interest in testing the serious allegations raised by the complaint; the applicant’s

failure to make a decision under section 395(2) was not deliberate; and the

complainant had only learnt of the practitioner’s alleged conduct after the three

year period has passed.

32. The respondent’s written submissions dated 30 March 2016 did not address the

issue of prejudice but oral submissions were made by the practitioner’s counsel

during the hearing.

33. The respondent practitioner argued first that the term ‘prejudice’ in section 424

may extend to forensic prejudice, but the application of ordinary principles of

statutory construction militate against limiting the term in this way. There may

be other kinds of prejudice and the Tribunal should apply the words of the

statute. The respondent submitted that as section 395(2) of the LP Act creates an

opportunity for a complaint to be dismissed at that time, he suffered prejudice

through being deprived of a right to make submissions and protect his position.

34. A second argument made was that the practitioner was subject to a second

complaint covering the same issues to those raised by the first complaint due to

the process that was commenced by the council without jurisdiction. There is

evidence concerning this second complaint in exhibit A4, the affidavit of Robert

Reis sworn 15 March 2016, at paragraphs 32-39, and exhibit A2, annexure A to

the affidavit of Jennifer Anne Shaw sworn on 21 March 2016, is the full second

complaint.

35. The applicant noted in reply that if ‘prejudice’ extended to the practitioner’s

deprivation of a right to make submissions about a complaint more than three

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years old, section 424 of the LP Act would be a ‘dead letter’ for the purposes of

section 395(2) as ‘prejudice’ could be established by virtue of the council’s

omission.

36. In relation to the second ground raised by the respondent, the council noted the

second complaint should be dealt with separately and on its own merits. The

Tribunal notes that if the respondent practitioner regards the second complaint

as involving unfairness, in light of the first complaint, he can argue this position

in the context of the procedures in relation to that second complaint. The

Tribunal does not think this second ground gives rise to prejudice in the relevant

sense.

37. As to the first ground, in Law Society of New South Wales v Boland18 the NSW

Administrative Decisions Tribunal found at [26] that the relevant practitioner

had not provided any evidence as to prejudice and noted:

… the onus is on the applicant practitioner to demonstrate actual prejudice rather than simply relying on "presumptive prejudice" but, as Gleeson CJ said in Gill -v- Walton (at page 198) claimants "nevertheless refer to and rely upon the practical considerations as to the usual consequences of delay .... ‘Memories fade, relevant evidence becomes lost’. In the very nature of the adversarial process, which applies in the Medical Tribunal as well as in the ordinary civil and criminal courts, a person's capacity to wage a forensic contest in defence of conduct which occurred some fifteen or more years earlier may reasonably be expected to be diminished by the lapse of time. That is a matter of common experience and commonsense".

38. In this case the respondent did not provide the Tribunal with any evidence of

prejudice suffered; counsel for the practitioner simply made the oral submission

that the practitioner was denied the opportunity to address the age of the

complaint due to the applicant’s failure to consider section 395(2)’s

requirements and was subject to a second complaint. The Tribunal agrees with

the applicant’s reply to the first argument put by the respondent, considering

that section 424 would have no work to do if prejudice could be established due

to the omissions the section has been created to address.

39. Further, the history of this matter is that the respondent practitioner has had

opportunities to put whatever submissions he wished in relation to the

18 [2001] NSWADT 35

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complaint, and its age.19 As noted he has not provided any evidence of detriment

due to the age of the complaint, nor raised any substantive issue about the age in

this application; he has only raised as an issue the loss of one opportunity to

make unspecified submissions on this issue, namely by the failure of the

applicant to make a decision under section 395(2) of the LP Act.

40. Also, the delay in dealing with the complaint has been caused by a number of

factors. The complainant only learnt of the full extent of the practitioner’s

alleged conduct after the three year period had passed and as a result of

Supreme Court litigation the complainant brought. The respondent practitioner

himself asked for a delay on one occasion because of the Supreme Court

proceedings.20 In August 2013 the complaint was dismissed by the applicant.

The complainant applied to the tribunal appealing the council’s dismissal.21 The

respondent practitioner chose not to take part in those proceedings. On 3

March 2015 in its decision in Byrne the tribunal set aside the dismissal and

ordered that an application be made to the tribunal in relation to the complaint.

In doing so it indicated that there were serious allegations raised by the

complaint. In these circumstances the delay has not been unexplained and

unwarranted.

41. The Tribunal is satisfied that the parties have not been prejudiced by the

council’s failure to observe the procedural requirement in section 395(2) of the

LP Act.

………………………………..Senior Member M Brennan

for and on behalf of the Tribunal

19 See exhibit A4, affidavit of Robert Reis at [6]-[24] 20 See exhibit A4, affidavit of Robert Reis at [7]21 See exhibit A4, affidavit of Robert Reis at [25]-[31]

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HEARING DETAILS

FILE NUMBER: OR 31/2015

PARTIES, APPLICANT: Council of the Law Society of the ACT

PARTIES, RESPONDENT: Legal Practitioner P1

COUNSEL APPEARING, APPLICANT Mr N Beaumont, Ms R Withana;

COUNSEL APPEARING, RESPONDENT Mr M Orlov

SOLICITORS FOR APPLICANT Eakin McCaffery Cox

SOLICITORS FOR RESPONDENT Self Represented

TRIBUNAL MEMBERS: Senior Member M Brennan (Presiding), Senior Member R Orr QC

DATES OF HEARING: 31 March 2016

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