LPUL’s transitional provisions

Nothing is quite as un-fun as argument about transitional provisions, but it is often unavoidable, since disciplinary tribunals are usually creatures of statute, and if the new or the old statute is mistakenly invoked, the Tribunal may purport to exercise jurisdiction which it does not have, with the result that its orders will be nullities which may be disregarded even absent an appeal: The Herald and Weekly Times Pty Ltd v Victoria [2006] VSCA 146 at [33].  I suspect the people who dream up these things would say that counsel have an obligation to assist Tribunals to avoid over-reaching.

This post principally considers Griffin v The Council of the Law Society of NSW [2016] NSWCA 364, a judgment of Sackville AJA with whom Ward and Gleeson JJA agreed, and Council of the NSW Bar Association v Nagle [2018] NSWCATOD 104, a decision of the Hon F Marks, Principal Member.

If you have been the subject of disciplinary orders since 1 July 2015, you might want to dust them off and check whether the correct Applicant sought them under the correct legislation.  If not, you might be entitled to disregard them, and require their removal from the disciplinary register.

To save you from having to puzzle over the detail of what follows, here is my summary, which assumes that you understand that Schedule 1 to the Legal Profession Uniform Law Application Act (Vic), which Schedule I refer to as ‘the LPUL’, stands as a law of NSW by virtue of the Legal Profession Uniform Law Application Act (NSW):

  1. Disciplinary complaints which pre-dated Victoria’s and NSW’s Legal Profession Uniform Laws’ 1 July 2015 commencements, and resulting prosecutions, are dealt with under the predecessor legislation regardless of when the prosecution was initiated: LPUL Sch. 4 cl. 26.  Griffin v The Council of the Law Society of NSW [2016] NSWCA 364 at [72] explains that such a complaint is not ‘disposed of’ when a decision is made at the end of the investigation to institute a prosecution, but when the prosecution is concluded, so pre-LPUL complaints which give rise to prosecutions commenced after the LPUL’s commencement are dealt with by the predecessor legislation all the way to the end of the prosecution.  (The powers that be seem to have neglected to specify by regulation someone else to do the job of prosecuting these matters, with the result that clause 26(2)(b) requires that the complaint (including the prosecution: Griffin) is to ‘continue to be dealt with by the entity responsible for dealing with it under the provisions of the [Legal Profession Act 2004], i.e. in Victoria Michael McGarvie qua Legal Services Commissioner, and not Fiona McLeay qua Victorian Legal Services Commissioner, which must be quite inconvenient given that Mr McGarvie is also now on the board of a water company, an adjunct professor at Monash, and adviser to an ecological justice project at Jesuit Social Services.)

  2. Disciplinary complaints the first making of which which post-date 1 July 2015, including in relation to conduct before that date, are dealt with by the LPUL but in such a way as not to be more onerous than the predecessor legislation so as not to offend the presumption against retrospectivity: Sch. 4 cl. 27(6).  According to Nagle’s Case it is unnecessary to consider whether the prosecution itself  is more onerous than the prosecution which could have been taken under the predecessor legislation (whatever that actually means); sub-cl. (6) requires only that the penalties be no more onerous than were available under the predecessor legislation.  The maximum penalty for professional misconduct in Victoria, for example, would be that fixed by the Legal Profession Act 2004 (Vic), $50,000 rather than the $100,000 maximum provided for by the LPUL.

  3. Further complication has been added to the already ghastly task of trying to reconcile all these statutory provisions (see Griffin at [73] for an example of the ghastliness) by one former judge’s approach in NSW’s equivalent of VCAT to construing NSW’s LPUL by reference to definitions in NSW’s Application Act.  Not only is the content of Victoria’s and NSW’s two Application Acts different, but two different Interpretation Acts regulate their interpretation: see Griffin at [58].  If this principle is followed (which need not be the case, since decisions of Tribunals do not give rise to binding precedents) it will give rise to instability in the uniformity of the LPULs in practice.

  4. The costs claimed by disciplinary regulators against poor schmuks who get caught up in transitional provision test cases, for taking advice on and arguing points which should have been their bread and butter since 1 July 2015 as responsible regulators, have warranted judicial comment.

There ends the summary.

You really earn your brief fee when you have to grapple with:

  • interpretation statutes (e.g. s. 14(1)(g) Interpretation of Legislation Act 1984 (Vic) which governs the interpretation of both the Legal Profession Uniform Law (Vic) and the Legal Profession Uniform Law (NSW) but does not govern the Legal Profession Uniform Law Application Act (NSW));
  • specific transitional provisions in the LPUL e.g. Schedule 4,  cll 26 and 27 (reproduced in full below);
  • general transitional  provisions in the LPUL (e.g. cll 2-5); and
  • transitional provisions in the two Application Acts (e.g. Part 12, Legal Profession Uniform Law Application Act 2014).

Especially since, by virtue of s. 163(2) of the Victorian Application Act, it is necessary to check for transitional provisions in Rules and regulations made under the LPUL.

It is always worth keeping in mind, however, that specific provisions such as cll. 26 and 27 trump general provisions such as cl. 2 (see cl. 2(6) and Griffin at [73]), and the Interpretation Acts are expressly subordinate to contrary indication in the legislation being interpreted: Interpretation Act 1987 (NSW) s 5(2); Interpretation of Legislation Act 1984 (Vic) s 4(1).

In Council of the NSW Bar Association v Nagle [2018] NSWCATOD 104, a disciplinary tribunal heard an unsuccessful challenge to its jurisdiction to hear a matter under the LPUL. The question seems to me to have been clearly dealt with by specific provisions: cl. 26, Schedule 4, LPUL (reproduced at the end of this post), and the judge agreed.

The Applicant, a gaggle of top barristers, had managed to spend $21,000 on solicitors’ representation just on this question, on top of $4,500 in senior and junior counsel’s fees.  This is partly explained by the procedurally lugubrious course tolerated by the Tribunal: there was a hearing on 12 April 2018, then written submissions dated 2 May and 13 June 2018, then a costs hearing on 12 July 2018, and then written submissions dated 20 August 2018 and 4 September 2018, and two sets of reasons.

The LPULs reduce the impediments to counsel accepting direct access briefs, and you might think that a gaggle of top barristers would be well placed to direct brief another barrister.  I would also like to think that when new laws come into operation, those charged with their administration take a hard look at them, and work out what they think they mean, so they can make correct decisions, taking advice at the outset if necessary.  Then the costs of getting it right in a disciplinary prosecution borne by the poor schmuk whose case happens to be the first to throw up the question would be limited to the costs of a member of the prosecutor’s staff applying that considered position to the facts at hand in a written submission.  How then, could the barristers’ peak body justify engaging solicitors at such great cost, and seeking to pass it on to the disciplinary respondent?

Principal Member Marks was sufficiently unsure in the costs reasons [2018] NSWCATOD 154 about this question that he said at [15] – [16] that the disciplinary prosecutor’s costs claim should go to taxation:

‘On one view, the interlocutory proceedings involved the interpretation of a short statutory provision against the context of what I recollect to have been an agreed factual basis. Assuming that the relevant questions of law would primarily be the purview of counsel, of whom there were two, and that this is a matter which had obviously been considered by the respondent for the purpose of the initiation of the proceedings and the directions hearings all of which preceded the interlocutory application filed by the respondent, I wonder what work needed to be undertaken by the solicitors in connection with the preparation for and defence of the interlocutory application.

Whilst there was obviously a need to peruse the respondent’s material, formally brief counsel, and file submissions, report to the client and the like, much of the preparatory legal research work is usually undertaken by counsel. And of course, these matters must have been considered before the substantive proceedings were instituted.’

There was one question which did require a bit of thought, though, namely whether cl. 27(6)’s reference to ‘disciplinary action’ referred to ‘disciplinary orders’ or ‘disciplinary investigation and/or prosecution’.  I pondered that question myself in a different context in the fourth last paragraph in this post. That sub-clause says:

‘(6) However, disciplinary action may not be taken against a person under this Law in relation to the conduct if it is more onerous than the disciplinary action that could have been taken against the person under the old legislation in relation to the conduct.’

The question it threw up was identified by Principal Member Marks at [6]

‘If those words refer to and comprehend the initiation of proceedings alleging misconduct, then it would be necessary to enquire about whether the proceedings themselves and the available disciplinary orders are “more onerous” under the Uniform Law than under the [2004] Act.’

The Principal Member found that the words ‘disciplinary action’ referred to the orders a disciplinary tribunal can make, and not to the action of launching the prosecution, so the enquiry he postulated was unnecessary.  All that was necessary to clear the ‘not more onerous’ test was to check whether the sanction proposed to be imposed was available under the 2004 Act.

It seems regrettable that neither party apparently brought to the Principal Member’s attention the textual context of ss. 66, 202 and 207 of the LPUL, treated in my blog post referred to above.  Without considering that textual context, the Principal Member ascertained the meaning of ‘disciplinary action’ in the LPUL (NSW) by reference to a definition for a limited purpose in s. 148 of the NSW Application Act.  That definition was only for the bit about the NSW Register of Disciplinary Action (c.f. s. 150A of the Victorian Application Act).  The Principal Member justified that approach by reference to s.  3(2) of the NSW Application Act (which is identical to s. 3(2) of the Victorian Application Act):

‘(2) Terms used in this [Application] Act and also in the Legal Profession Uniform Law (NSW) have the same meanings in this Act as they have in that Law.’

Of course that provision provides an aide to the interpretation of provisions in the Application rather than the LPUL, and it seems his Honour must have considered that impliedly the converse of the rule expressed by s. 3(2) must also have application, namely that terms used in the Law have the same meanings that they have in the Application Act, and reasoned from there.

Division 7 – Dispute resolution and professional discipline

26 Current complaints and investigations

(1) This clause applies to–

(a) a complaint made under old Chapter 4 but not disposed of before the commencement day; or

(b) an investigation referred to in old Chapter 4 that had begun but had not been completed before the commencement day.

(2) On and after the commencement day–

(a) the complaint or investigation is to continue to be dealt with in accordance with the provisions of the old legislation; and

(b) for that purpose, the complaint or investigation is to continue to be dealt with by the entity responsible for dealing with it under those provisions (the “current entity” ).

(3) Subclause (2)(b) does not apply if a local regulation or other legislation of this jurisdiction directs that another entity referred to in this Law (the “substituted entity” ) is to deal with the complaint or investigation instead of the current entity.

(4) The substituted entity may have regard to anything done by the current entity before, on or after the commencement day but before the direction takes effect.

 

27 Complaints and investigations under this Law of prior conduct

(1) This clause applies to conduct that–

(a) happened or is alleged to have happened before the commencement day; and

(b) could have been, but was not, the subject of a complaint (or, if relevant, a request for dispute resolution) under old Chapter 4.

(2) A complaint may be made under this Law on or after the commencement day in relation to the conduct, even if the conduct could not be the subject of a complaint under this Law if it had happened on or after the commencement day.

(3) An investigation may be commenced under this Law on or after the commencement day in relation to the conduct, so long as the same conduct had not been, or had not commenced to be, investigated before that day under the old legislation.

(4) The complaint may be made, or the investigation may be commenced, even if the conduct could not be the subject of a complaint under this Law if it had happened after the commencement day.

(5) This Law applies (with the necessary modifications) in relation to the conduct.

(6) However, disciplinary action may not be taken against a person under this Law in relation to the conduct if it is more onerous than the disciplinary action that could have been taken against the person under the old legislation in relation to the conduct.

(7) This clause does not authorise an investigation to be commenced after the commencement day in relation to the conduct if an investigation of the relevant kind could not have been commenced under the old legislation in relation to the conduct had the old legislation not been repealed.

 

See also:

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