Can a legal regulator rescind a decision to bring disciplinary proceedings

The Supreme Court of Tasmania has made an important ruling in  Legal Profession Board of Tasmania v XYZ [2014] TASSC 33 about the finality of decisions made by legal regulators at the end of disciplinary investigations.  The decision suggests that in those jurisdictions with similar statutory provisions, until a disciplinary prosecution is launched, such decisions may be less final than I suspect many lawyers in Australia have previously believed.  A decision of the Victorian Court of Appeal, which related to a different situation where one of two courses following a disciplinary investigation was gone down and completed and the professional regulator sought subsequently to go back down the alternative course, was distinguished: Kabourakis v Medical Practitioners Board of Victoria [2006] VSCA 301.

Tasmania’s legal regulator decided, following an investigation, to launch a disciplinary prosecution of a lawyer.  Counsel was briefed, and the regulator was advised that the investigation was incomplete and should be re-commenced.  So the regulator rescinded its decision to prosecute before having commenced proceedings in the disciplinary tribunal and sought to re-investigate.  The lawyer refused to cooperate, asserting that the regulator did not have the power to do so.

The Court observed that once disciplinary proceedings were commenced, they could not be withdrawn without leave of the disciplinary tribunal, by virtue of a provision in the Tasmanian Legal Profession Act 2007.  But prior to that stage having been reached, that Act did not cut-down the presumption provided for in the Tasmanian legislation in relation to the interpretation of statutes that a statutory decision maker may generally reverse or vary statutory decisions. The Court described the statutory decision to launch the disciplinary prosecution as ‘interlocutory’.

I am not sure whether the same result would be produced in Victoria, but no one should assume without carefully considering that question that the Legal Services Commissioner may not rescind a decision to prosecute should exculpatory evidence come to light after deciding to prosecute and giving notice of such a decision.  So, if a lawyer has missed his opportunity to respond to a ‘Murray letter’ setting out the Commissioner’s tentative conclusions following what is proposed to be the end of the investigation and providing a last chance to comment, and a decision to prosecute is launched, it may well be worth sending a response to the Murray letter promptly in the hope that the Commissioner will be convinced to substitute a different decision before it is too late and the prosecution is commenced. Equally, a lawyer who receives the benefit of a decision in a disciplinary complaint which does not involve prosecution ought not assume that that is necessarily the end of the matter.  If a new witness were to come forward, or it became clear that the investigation was incompetently conducted in some way, or simply that a mistake had been made, the Commissioner might seek to rescind the original decision and reopen it.

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