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Supreme Courts’ inherent jurisdiction to discipline lawyers to be invoked sparingly

February 1st, 2010 · No Comments

Update, 5 March 2012: See also, to similar effect, Bott v Carter [2009] NSWSC 236 at [28] – [34].

Original post:  In AM v Legal Practitioners Disciplinary Tribunal [2010] NTSC 02, a Full Court of the Supreme Court of the Northern Territory heard an appeal by way of rehearing into a decision of the Disciplinary Tribunal (see my earlier post on the case).  One of the grounds of appeal was that the Tribunal had not had jurisdiction. The Law Society of the Northern Territory argued that whether or not the Legal Practitioners Disciplinary Tribunal had had jurisdiction, the matter was now before the Court on a rehearing and it could exercise its inherent jurisdiction, rendering the fascinating jurisdictional questions irrelevant.  ‘I don’t think so!’, said the Chief Justice, with whom Justice Riley agreed.  ‘Wrong way, go back!’ they said with emphasis, noting that the Northern Territory was not the wild West:

‘[159] The Law Society submitted that if this Court was of the view that the Tribunal lacked jurisdiction, as the evidence and the matter of the practitioner’s conduct is now before the Court, it should exercise its inherent jurisdiction over the profession by dealing with the practitioner in respect of her conduct. This approach would require this Court to rely on evidence placed before the Tribunal in the course of invalid proceedings. Counsel for the practitioner submitted that as the Law Society chose the Tribunal route, it would be inappropriate for this Court to exercise other than the appellate jurisdiction. As counsel put it it is “counter-intuitive” to make use of material put before the Tribunal and, if the Tribunal lacked jurisdiction, justice demands a fresh proceeding. To exercise the inherent jurisdiction de novo would involve formulating a charge and carrying the baggage of the old proceedings. Overall, suggested counsel, exercising the inherent jurisdiction would carry with it a flavour of the “wild west”.

[160] In my view, there is considerable force in the submissions of counsel for the practitioner. If I am wrong in my view that the Tribunal possessed jurisdiction, in my opinion this Court should not endeavour to exercise its inherent jurisdiction.’

See also:

Tags: appeals · Discipline · jurisdiction · procedure