This time it’s the NSW bureaux bungling: the Great Delegation Debacle #2

Oh dear, I can feel another bit of retrospective cock-up fix-up blowing through parliament, the NSW parliament this time. Imagine how excited the pollies must be to be diverted from the drought to pass retrospective legislation which has to go through pesky scrutiny of bills committees, because the peak body of NSW Lawyers and the regulator of NSW Lawyers couldn’t draft and read a delegation properly.

A retired judge sitting in NCAT has determined that own motion investigations under the LPUL by delegates of NSW’s Legal Services Commissioner, e.g. the Council of the Law Society of NSW, have been procedurally irregular because of the terms of the relevant delegation, robbing NCAT of jurisdiction in two cases which have fallen over and probably revealing past decisions to have been nullities notwithstanding that the point was not taken in them.

The leading decision is Council of the Law Society of NSW v DXW [2019] NSWCATOD 101, a decision of the Hon. Frank Marks, a Principal Member. He said, in a nutshell: to have a valid prosecution, you must have a complaint made to the Commissioner or an own motion investigation commenced by the Commissioner. Here there was no complaint, because the Law Society was not a delegate of the Commissioner’s power to make a complaint to himself, i.e. commence an own motion investigation, but had purported to make a complaint to itself, then investigate it, then decide to prosecute it and then prosecute it, all while the Commissioner apparently went about his other business. No complaint, no jurisdiction, case dismissed.

Council of the Law Society of NSW v Judah [2019] NSWCATOD 135 simply applies DXW and is noteworthy principally because the Tribunal of Deputy President Westgarth and two others awarded costs of the proceeding to the practitioner, finding that the commencement of the ‘proceedings otherwise than in conformity with the provisions of the Uniform Law’ was a ‘special circumstance’ which justified the costs order against the Commissioner.

As to the Great Delegation Debacle #1, see this blogpost. I tell, you, whenever you’re litigating against Legal Services Commissioners, you should always call for and inspect the instruments of delegation by which various actors in the disciplinary process acted. The delegations are sometimes set out in the Commissioners’ annual reports, and the current delegations by the VLSC are here. Sometimes, they get them wrong (watch this space…).

Section 266 of the LPUL (NSW) says:

‘Who may make a complaint?
(1) Any person or body may make a complaint.
(2) The [Legal Services Commissioner] may initiate a complaint containing a disciplinary matter only.’

In 2015 the Commissioner delegated to an officeholder at the Law Council his powers to ‘initiate a complaint’ under s. 266 and to ‘initiate and prosecute’ disciplinary proceedings under s. 300, in each case ‘in respect only of a [disciplinary] complaint … made to or by me which … I have decided not to deal with or to continue to deal with, which I refer to the Law Council for assessment, investigation and determination under Chapter 5’. The delegation of his power to initiate a complaint was conditional upon the delegate promptly forwarding a copy of the complaint to the Commissioner.

At [31] – [40], the Tribunal found that s. 266(2) means that only the Commissioner may take steps in response to a complaint, not that the only kind of complaint the Commissioner can make is a disciplinary complaint (which seems to leave open the possibility of a Commissioner making a consumer complaint). To ‘initiate’ a complaint is not to ‘make’ a complaint. The drafters used two different words ‘make’, and ‘initiate’. Someone has to make the complaint before it is ‘initiated’ by the taking of steps in response to it, the Tribunal found, most likely as a first step the preliminary assessment procedure provided for by s. 277.

Why, given that all complaints must be made to the Commissioner, and the only person entitled to perform the functions described in the Part of the Act relating to the investigation and prosecution of disciplinary complaints is the Commissioner, the parliament would have specified in a section headed ‘Who may make a complaint’ that only the Commissioner can act in response to a complaint is something of a mystery, but that is what NCAT decided.

In 2016, the Law Society made a complaint against the practitioner, and notified the Commissioner of having done so. The terms of this communication were not such as to allow it to be read as the making of a complaint by the Law Society to the Commissioner.

In 2018 the Law Society, having investigated the complaint, predicted that, if prosecuted, there was a reasonable likelihood that NCAT would find the practitioner guilty of misconduct, and so the same year, the Society commenced the disciplinary proceeding which the Hon. F. Marks dismissed for want of jurisdiction on 25 June 2019.

The Tribunal found at [53] that the making of the complaint was not within the Law Society’s delegated power because the same complaint had not previously been made to the Commissioner and the Commissioner had not decided not to deal with it or continue to deal with it, and those were the only circumstances in which the Law Society had had delegated to it the power to make a complaint. Part of the necessary reasoning was as follows:

‘In all the circumstances, I conclude that there is no evidence that any complaint as defined in section 265 of the Uniform Law has been made as required by section 267 of that Act. On this basis, there can be no disciplinary matter as defined in section 270 of the Act because there is no complaint to form the basis of such a matter. Even though section 300 makes no specific reference to a complaint forming the basis of proceedings before this Tribunal, the whole of the structure of the Uniform Law within Chapter 5 as it concerns disciplinary matters is confined to matters originating through a complaint process, and being prosecuted as a final step in that process. It follows that in the absence of any evidence of any complaint having been made as contemplated by the Uniform Law, there is no basis for the initiation of proceedings in this Tribunal.’

Just like Callinan J said in Barwick v NSW Law Society [2000] HCA 2 at [168], the formalities of the complaint are fundamentally important, the Tribunal found, since the complaint is the subject of the important provisions as to the procedure for the making, investigating and prosecution of disciplinary allegations. At [39] Callinan J’s words were adopted:

‘the legislation treats the making of a complaint as a formal and substantive matter calling for a deliberative decision as to further formal process in relation to it or otherwise, and the notification and recording of that decision, whether the complaint is initiated or made, and no matter by whom it is initiated or made.’

It is apparent that:

(a) the onus of proof to establish jurisdiction was on the Law Society, as you would expect and the presumption of regularity did not get it very far;
(b) NCAT was content to review the procedures anterior to the disciplinary proceedings (illustrating the limits on statutory tribunals’ reluctance to be drawn into quasi-judicial reviews in enquiries into jurisdiction articulated in Director of Housing v Sudi (2011) 33 VR 559).

Presumably, it would have been open to the Law Society to have reframed its correspondence by which it provided a copy of the complaint it considered it was investigating on its own motion, so as to make, in its capacity as a member of the class ‘any person or body’ in s. 266(1), a complaint to the Commissioner, and the Commissioner might then have decided not to deal with the complaint, and referred it to the Law Society for investigation. But that is not what happened.

Oddly, neither the prosecutor (the Law Council) nor the practitioner sought to adduce evidence from the Commissioner or his records. Notwithstanding that the Commissioner was a non-party, the Tribunal noted:

‘Having regard to the role played by the Commissioner in the administration and implementation of the Uniform Law in NSW, I would be surprised if the Commissioner did not volunteer to provide any information at his disposal which would assist in the determination of this interlocutory application. This is particularly so because the Commissioner’s conduct, whether in connection with the delegation of functions to the applicant or in the making of the complaint is critical.’

So far as I know, the decision is unlikely to have significant ramifications in Victoria because I am unaware of any delegation to a body like the Law Society of NSW which is framed by reference to a similar condition. The Commissioner has delegated to the Victorian Bar his s. 166(2) power to make disciplinary complaints in respect of interactions between Victorian barristers. It may be problematic for the Bar to use this delegation essentially to commence an own motion investigation, since NCAT has ruled that s. 166(2) is not about making complaints, but about responding to complaints. All complaints in Victoria seem to be made to or initiated by the Victorian Legal Services Commissioner, and then only occasionally referred for investigation. All disciplinary prosecutions seem to be brought by the Commissioner, even when investigated by the Bar.

However, the decision does underscore the need for disciplinary prosecutors to establish jurisdiction, and makes clear that NCAT’s and VCAT’s jurisdiction depend on proof of a formal complaint made by the right person and (other than a Commissioner’s own motion investigation) to the right persons.

As an aside, I noticed this unusual delegation to the Victorian Bar in relation to the affairs of a single named but here redacted solicitor. Tantalising.

See also:

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