2016-08-05 Legal Practitioner V Council of the Law Society of the ACT 2016 ACTCA 35

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

PENFOLD J:

1. I have read in draft the judgment of Burns and Rangiah JJ, and gratefully adopt their description of the factual background of this matter. Unfortunately, I have not come to the same conclusions as their Honours in respect of all matters canvassed on this appeal.

The practitioner’s appeal

2. In January 2013, in proceedings brought by the Council of the Law Society of the ACT (the Law Society), the ACT Civil and Administrative Tribunal (ACAT) found the practitioner guilty of 18 counts of professional misconduct.

3. The practitioner’s appeal to this Court concerned ACAT’s treatment of the evidence relevant to one of those counts, which related to a particular payment allegedly made to the practitioner by a complainant, TT. The evidence given by TT before ACAT was said to be inconsistent with the evidence of one Dr Douglas Hassall, counsel practising in this jurisdiction.

4. The immediate significance of the alleged payment was the Law Society’s further allegation that the practitioner had failed to deposit the amount in his trust account, and had failed to issue a trust receipt. As explained by Burns and Rangiah JJ at [61] below, the ultimate significance, in the practitioner’s eyes, was:

(a) that ACAT’s acceptance of TT’s evidence had affected ACAT’s assessment of the practitioner’s credibility in relation to that count;

(b) that if TT’s evidence had been rejected, the practitioner’s own credibility would have been restored; and

(c) that ACAT, as well as finding in the practitioner’s favour in relation to TT’s complaint, would, or perhaps could, then have dismissed all the other complaints against the practitioner.

5. I agree with their Honours’ conclusion that this was a “dubious proposition”. I also agree that, on proper analysis, there was no inherent inconsistency between the evidence of TT and that of Dr Hassall, and that no error has been shown in the primary judge’s approach to the evidence.

6. Finally in relation to the practitioner’s appeal, I note that counsel made various submissions about Dr Hassall along the following lines:

there has never been any allegation against Dr Hassall of any wrongdoing that I'm aware of in this or any other proceeding. He is a counsel in good standing of many years. He enjoys the respect of this and other superior courts, and it would be in my submission a very unusual circumstance in which the credibility of a legal practitioner of his standing would be called into question without being challenged.

7. I do not question in any way counsel’s description of Dr Hassall as an experienced counsel of this Territory in good standing, and I note also the conclusion of Burns and Rangiah JJ, with which I have agreed, that there was in any case no inherent inconsistency between the evidence of TT and that of Dr Hassall (at [59] below). Nothing I say below should be interpreted as any criticism of Dr Hassall.

8. However, counsel for the practitioner at several points submitted to the effect that as a general proposition, a tribunal’s rejection of the evidence of a person who can be described, for instance, as “a counsel in good standing of many years”, would be “extraordinary” or “indefensible” or “contrary to compelling inferences” so as to bring the matter within the category of cases in which, in reliance on Fox v Percy [2003] HCA 22; 214 CLR 118 at [28] and [29], the tribunal’s finding of fact may be overturned despite being based on a credibility assessment.

9. It seems to me that proceedings against a legal practitioner for professional misconduct are not proceedings in which it is enough for counsel to say that a witness is “a barrister in good standing” or “an upstanding member of the profession” (as was done in the appellant’s written submissions to the primary judge, quoted at [51] below), or “an experienced counsel ... in good standing” (as was done in oral submissions before the primary judge, quoted at [53] below), in order to exclude any challenge to such a witness’s reliability.

10. This is because, by definition, such proceedings involve allegations of misconduct against a member of the legal profession (in this case the appellant, rather than any witness); they cannot sensibly be conducted on the assumption that all members of the legal profession necessarily and at all times act honourably.

11. Accordingly, I agree with Burns and Rangiah JJ that the practitioner’s appeal should be dismissed.

The Law Society’s cross-appeal

12. As explained in more detail by their Honours below, the Law Society’s appeal is against the primary judge’s order remitting the matter to ACAT for further hearing and decision. That further hearing and decision was to relate to the question of what orders should be made consequent on the findings of professional misconduct made by ACAT and not disturbed by the primary judge (at [41] below).

13. I agree with Burns and Rangiah JJ that the efficiency considerations referred to by ACAT and by the primary judge (at [78] and [79] below) did not constitute “extraordinary circumstances” so as to permit ACAT, in reliance on s 56(c)(iii) of the ACT Civil and Administrative Tribunal Act 2008 (ACT) (the ACAT Act), to re-open the hearing and reconsider its orders as to penalty. However, I do not agree that, by analogy with the principles expressed in Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597 (Bhardwaj), this was a case in which ACAT’s original decision on penalty was a nullity and in which the ACAT Act permitted or even required ACAT to correct its failure to exercise jurisdiction.

14. First, I do not consider that the circumstances in which ACAT made its first decision on penalty, or the decision it made, are sufficiently similar to the circumstances and the decision in Bhardwaj to be relied on to justify ACAT’s decision to re-open the proceedings. Nor do I consider that, consistently with or apart from Bhardwaj, s 56(c) permits re-opening proceedings for a further substantive exercise of power.

15. In Bhardwaj, Gleeson CJ at [14]; 605-606 described the process which led to the Immigration Review Tribunal (the IRT) re-opening a matter and making a new decision:

In the present case there was a denial of procedural fairness; but there was more to it than that. There was an error of the kind described as "error in fact" in the context of proceedings by writ of error: the non-fulfilment or non-performance of a condition precedent to regularity of adjudication such as would ordinarily induce a tribunal "to stay its hand if it had knowledge, or to re-open its judgment had it the power." The Act, in Pt 5 Div 5, prescribed the procedures according to which the Tribunal was required to conduct its review of the delegate's decision. If the Tribunal was not prepared to decide in the respondent's favour on the written material before it, then s 360 required that it give the respondent an opportunity to appear and give evidence and present arguments. The Tribunal set out to give the respondent such an opportunity. It intended to follow the statutory procedure. As a result of an administrative slip, it denied the respondent the opportunity that he wanted to have, and that the Tribunal intended to give him. And, in consequence, it dealt with the matter in the belief that the respondent had nothing to say by way of explanation of the conduct that had resulted in the cancellation of his visa. The Tribunal, through an administrative error, failed to implement its own intention, and failed to comply with the statutory requirement to give the respondent an opportunity to be heard. In its reasons for its "decision", the Tribunal merely noted the delegate's decision, and observed that nothing had been put before it as to why the decision was unfair or inappropriate. That did not amount to the conduct of a review. The Act provided, in s 353, that the Tribunal, in reviewing the delegate's decision, was not bound by technicalities or legal forms and should act according to substantial justice. When it learned of its own administrative error, the Tribunal recognised that it had not performed its functions and proceeded to do so. (citations omitted)

16. His Honour went on to conclude at [15]; 606:

In those circumstances, it was not inconsistent with the statutory scheme for the Tribunal, upon becoming aware that it had not given effect to its own intention, and that it had failed to conduct a review of the delegate's decision, to give the respondent the opportunity which the statute required, which he wanted, and which the Tribunal had intended to give him. On the contrary, it was in accordance with the requirements of the Act.

17. The significant factors identified by Gleeson CJ in Bhardwaj were:

(a) That the legislation explicitly required the IRT, unless it was willing to find in the appellant’s favour on the papers, to give an appellant “an opportunity to appear and give evidence and present arguments”.

(b) The IRT intended, and attempted, to follow the statutory procedure, but failed as a result of an administrative slip.

(c) The IRT then dealt with the matter in the belief that the appellant “had nothing to say by way of explanation of the conduct that had resulted in the cancellation of his visa”.

(d) In its reasons for its "decision", the IRT merely noted the decision appealed from, and observed that nothing had been put before it as to why the decision was unfair or inappropriate.

(e) That procedure did not amount to the conduct of a review.

(f) Accordingly, the IRT had, through administrative error, not exercised its statutory function, and it subsequently proceeded to do so.

18. Gleeson CJ concluded that the IRT’s failure to exercise its function under the legislation was appropriately corrected by providing a hearing as required by the legislation. Given that, after hearing the appellant’s submissions, the IRT overturned the decision under review, there was no ground for claiming (or suspecting) that the IRT had not given genuine consideration to what was put before it by the appellant.

19. This case is different.

(a) First, ACAT was not reviewing anything, but exercising a first instance power, which it did by reaching substantive conclusions as to penalty and recording them in substantive orders.

(b) Secondly, having initially exercised that power substantively but, as a result of an administrative error, without giving a hearing, ACAT then purported to set that substantive exercise of power aside, conduct a hearing, and then again exercise the power substantively.

(c) After the flaw in ACAT’s process came to light (as a result of being identified by the practitioner in his notice of appeal), the Law Society invited ACAT to re-open the proceedings in preference to going through what counsel for the Law Society before us described as “an unnecessary appeal”.

(d) The practitioner, perhaps understandably, resisted the re-opening, and declined to take part in the next stage of the proceedings.

(e) ACAT then reconvened and, in the absence of submissions from the practitioner, purported to re-make a substantive decision on penalties.

20. Unsurprisingly, perhaps, ACAT reached the same decision it had reached initially. This does not prove it did not consider its decision from scratch based on what was then before it. On the other hand, it does exclude any conclusion that the second decision represented the outcome of a new and unqualified consideration of the submissions of both parties.

21. As indicated above, Gleeson CJ concluded in Bhardwaj that the applicable legislation intended reviews to be conducted in a specified way, and that it was within the powers of the IRT to rectify its own failure to conduct a review in compliance with the procedure laid down in the legislation. In this case, ACAT had exercised substantive powers (as distinct from failing to do so), albeit without providing procedural fairness. In this case, however, while procedural fairness was generally implicit in what was required of ACAT, the requirement to provide a hearing was not, in effect, the essential pre-requisite to making a decision against the appellant. It is necessary to look closely at the ACAT Act to see whether the legislative scheme provided a basis on which ACAT could in specified circumstances re-open its proceedings to correct a failure to give procedural fairness or whether in this case, in Gleeson CJ’s words in Bhardwaj (at 603, after his Honour has quoted from Ridge v Baldwin [1964] AC 40 at 79):

[the] general proposition [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] must yield to the legislation under which a decision-maker was acting.

22. An examination of the legislative scheme in the current case requires consideration of s 56 of the ACAT Act.

23. In this respect too I have reached a different conclusion from that of Burns and Rangiah JJ. I do not agree that s 56(c)(iii), permitting an order to be amended or set aside where “extraordinary circumstances make it appropriate”, extends to permitting decisions that have been made in breach of the rules of procedural fairness to be set aside by the body that made the decision, such that a new hearing can be held and a new substantive decision can be made.

24. I do not have any doubt that s 56 is in general terms a procedural provision, and one that is not intended to have any particularly controversial or substantive effect.

25. Sections 56(a) and (b), providing respectively for hearing related matters together and for making consent orders, have only procedural significance.

26. Section 56(d) permits ACAT to take “any other action in relation to an application” that is appropriate and consistent with the ACAT Act or an authorising law. This provision may go beyond the purely procedural, but only for actions that can be identified as consistent with (not just not inconsistent with) other specified provisions.

27. Sections 56(c)(i) and (ii) have a very limited scope.

28. Section 56(c)(i) is a provision of a kind common in legislation dealing with the procedures of courts and tribunals, permitting matters to be dismissed if parties do not attend hearings and permitting dismissed matters to be reinstated if the tribunal is satisfied that the non-attendance was explicable (for other examples see eg Administrative Appeals Tribunal Act 1975 (Cth), s 42A; State Administrative Tribunal Act 2004 (WA), s 84; Civil And Administrative Tribunal Act 2013 (NSW), s 55).

29. Section 56(c)(ii) provides a very narrow power to amend orders containing mistakes in the names or addresses of parties.

30. Section 56(c)(iii) gives an unqualified power to amend or set aside an order, but only in “extraordinary circumstances”. However, that provision must be read in the context of the rest of s 56, as well as the legislation more broadly.

31. While I do not disagree that the failure of an administrative tribunal to provide procedural fairness may in one sense be characterised as extraordinary, I am not convinced that such a failure by the tribunal itself should be accepted as “extraordinary circumstances” permitting the tribunal to set aside its own decision and have another go at getting the decision right.

32. For a start, the provision permits the amendment and setting aside of a decision, but it does not expressly or, in my view, by implication permit such amendment or setting aside to be followed by a further hearing and the making of a new substantive decision. It is clear from the wording of the provision that it confers a power in respect of a particular order that has been made by ACAT, and no more (“a” tribunal order may be amended or set aside if it is appropriate to amend or set aside “the” order).

33. This may be contrasted with some of the legislation creating other Australian administrative tribunals – for instance, see the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act), which provides a specific re-opening power that enables issues to be “heard and decided by way of a fresh hearing on the merits” (ss 138 and 140 and the definition of “reopening ground” in the Dictionary to that Act); a “reopening ground” is, in general terms:

(a) a reasonable excuse for a party’s failure to appear at a hearing (dealt with in the ACAT Act by s 56(c)(i)); and