Cases applying Barwick’s Case, and related legislative developments

In a recent post, I provided a case note of the High Court’s decision in Barwick v Law Society of NSW (2000) 169 ALR 236. This rather workmanlike post looks at decisions which have applied it, and Barwick-related legislative developments in NSW and elsewhere not replicated in Victoria, which have sought to undo the strictness of Barwick, some but not all of which are now with us in Victoria through the Legal Profession Uniform Law.

But it notes that Melbourne’s legislators have in the main signally not taken up the NSW penchant for passing provisions ever more generous to the State with regard to allowing matters to be prosecuted whether or not they were the subject of a complaint or an investigation which was authorised by the relevant legislation and played by the rules.

Perhaps that is because in relation to these questions the practitioners of Victoria — my clients excluded of course — have been inexplicably more supine than, or the Victorian disciplinary tribunals not as punctilious as, their Sydney counterparts such that the need for the provisions has not impressed itself on the minds of our parliamentarians.

But perhaps it is because Victoria thinks that in the context of the battle between the vast resources of the state and a citizen faced with prosecution in which costs of scores and hundreds of thousands of dollars are regularly ordered, against which the citizen may not obtain any insurance if s/he is a solicitor, the State should be encouraged to play by the book by the prospect of its prosecutions falling over if they don’t. After all, if the first prosecution falls over, they can usually go back and do it again, playing by the book.

2000 legislative amendments

In 2000, the NSW parliament added s. 167A(3) into the Legal Profession Act 1987:

‘(3)   The variation of an information by the Tribunal to include an additional allegation is not precluded because the alleged conduct concerned occurred more than 3 years before the variation is made.’

When the Legal Profession Act 2004 replaced that legislation, the provision was re-enacted as s. 155.’

No similar provision has been enacted in Victoria.

NSW Law Reform Commission Report (April 2001)

In April 2001, the NSW Law Reform Commission issued Report 99, an interim report concerning complaints against lawyers.  In Chapter 4 of the Report (concerning the complaints handling process) the Commission considered difficulties that had been identified in relation to non-compliance with Part 10 of the 1987 NSW Act, including difficulties identified in Barwick and in the decisions of Carson v Legal Services Commissioner [2000] NSWCA 308 (commencement of clearly untenable proceedings, inexcusable delay and failure to satisfy requirements of procedural fairness) and Murray v Legal Services Commissioner [1999] NSWCA 70; 46 NSWLR 224 (failure to satisfy procedural fairness requirements by failing to provide the practitioner with a copy of the complaint and an opportunity to respond to it). See Legal Practitioner P1 v ACT Civil and Administrative Tribunal [2017] ACTSC 173 at [61].

Law Society of NSW v Boland ( May 2001): Onus of proof as to jurisdiction

In Law Society of New South Wales v Boland [2001] NSWADT 35, a tribunal with two judicial members and a third member explained how it is a matter for the Commissioner to establish compliance with the legislative regime, by evidence, in limine, whether or not the point is taken by the practitioner respondent:

’45 … It is clear to us that the onus rests on the Council to satisfy the Tribunal that Barwick has been followed. This follows from the reasoning in the High Court so that even on an ex-parte application the Society (or the Commissioner) has to file as part of its case sufficient evidence to show that Barwick has been followed. The High Court appears to have regarded the legislative steps as so fundamental such that a failure to follow those steps results in a lack of jurisdiction in this Tribunal, and it must follow that in order to be satisfied as to its jurisdiction this Tribunal must require the Council (or the Commissioner) to produce sufficient evidence to enable the Tribunal to be satisfied that Barwick has been followed. In the course of argument learned counsel for the applicant/ practitioner suggested that once the issue of Barwick is raised by the practitioner then the Society bears the onus of proof of establishing jurisdiction. For our part we are of the view that the onus rests with the Society as part of its case and is not a matter that has to be raised by the practitioner. Unfortunately, that places a heavy evidentiary and costs burden on the Society (or the Commissioner) but that must be the natural result of the Barwick decision.

46 We would go so far as to suggest that in the future the Society or the Commissioner should file and serve as part of its/his case an Affidavit as to Jurisdiction limited to the  Barwick point. After all, the  Barwick decision raises a jurisdictional point which if absent deprives this Tribunal of jurisdiction. This Tribunal must be satisfied that it is seized of jurisdiction and the practitioner must be able to consider the material to enable him/her to mount an argument if so advised that the  Barwick pre-requisites have not been met.’

Mitry v Council of the NSW Bar Association (August 2001)

Mitry v Council of the NSW Bar Association [2001] NSWCA 273 is a case in which a depressed barrister was struck off by a disciplinary tribunal in 1999 following his conviction upon a guilty plea for a criminal offence. That decision was confirmed on appeal within the disciplinary tribunal in 2000. The Court of Appeal reversed the tribunal’s decisions in 2001 and remitted the matter to the tribunal to be determined in accordance with law by a differently constituted tribunal. On the remitter, the tribunal, noting that the barrister had not practised since 1998, ordered him to do the readers course again, reprimanded him, and required him to do additional CPD. Quite a turnaround.

The officers of Red Anchor Resources Limited were trying to have it publicly listed. That required it to show that it had a minimum number of shareholders each holding a minimum number of shares such as to provide for a marketplace for the trading of the shares. Red Anchor arranged for companies associated with the barrister to purchase shares so as to meet these requirements, but the money actually came from Red Anchor.

The Bar Council read about the conviction in the newspaper and initiated a complaint pursuant to an own motion power it had to do so under the same legislation considered by the High Court in Barwick’s Case. But the conduct the subject of the conviction had occurred more than 3 years earlier and so the Bar Council had to get the Legal Services Commissioner to accept the Bar Council’s complaint out of time, which he did. The complaint which was so accepted was that by engaging in certain conduct, the barrister had breached statutory provisions setting up criminal offences in respect of assisting a company to finance the purchase of its own shares:

‘between 7 August, 1990 and 30 November, 1990 at Sydney, Mitry was knowingly concerned with Christopher Donlon, an officer of Red Anchor Resources Limited, giving financial assistance in connection with the acquisition by Selmit Pacific Holdings Pty Limited of shares in Red Anchor Resources Limited. Selmit … is a company of which Mitry is a director.’

The conduct involved sham transactions involving the barrister’s companies, and the deception of an auditor. See [83]

The Bar Council filed a charge in those terms.

On day 2 of the trial, the barrister indicated that he denied having committed the crime, which seems to have been a volte face. His QC had advised him that on his instructions, he did not have the mens rea Yorke v Lucas required for accessorial liability.

As a result, the Bar Council sought leave to amend the charges. The barrister opposed the application unsuccessfully.

The tribunal in the first instance appeal held that the amendments simply set out in greater detail the conduct which was the subject of the conviction, in recognition of the fact that the admission made by the conviction, and the barrister’s case up to day 2 of the trial, was now in issue, so that the conduct itself had to be established. By virtue of the original charge having been laid following the acceptance of the antecedent complaint out of time by the Commissioner, waiving the 3 year limit, the disciplinary tribunal had had jurisdiction to allow the amendment. So the first instance appeal tribunal said. See [102].

There is no doubt that there was a very high degree of similarity between the conduct the subject of the original charges and that the subject of the latter charges. The new allegations all occurred as part of the same transaction involving the same entities between 7 August 1990 and 30 November 1990. The original charges are set out in Spigelman CJ’s reasons at [43] . The Amended Application was reproduced as Appendix A to the Court’s reasons.

The first instance tribunal, the appeal tribunal, and Justice of Appeal Powell all considered that, given the Tribunal’s specific statutory power (s. 167A) to amend charges before it, the Tribunal had jurisdiction over the whole of the barrister’s involvement in the transaction. See [170] – [177].

But the Chief Justice with whom Justice of Appeal Giles agreed took a more punctilious approach, and their decision represents the ratio decidendi of the case, even though, like Barwick’s Case, the barrister ‘does not rely on any denial of natural justice as a result of the amendment’: [103].

First, Spigelman CJ observed at [132] that the amendments introduced allegations that the barrister’s conduct the subject of the charge was also wrongful as a breach of his director’s duties to the companies he caused to participate in the shame transactions, but this characterisation of his conduct was not something that was before the Commissioner when he had agreed to accept the complaint out of time, and not something which had been investigated before the disciplinary charges were laid.

Secondly, his Honour observed that an alternative case was put, namely that if as the barrister newly contended, he did not have the requisite mens rea, the same conduct nevertheless constituted professional misconduct because he ought to have known the matters relevant to mens rea. See [134].

Thirdly, his Honour observed that there were other allegations which, though they could have been charged as particulars of the commission of the criminal offences, were not so charged. Rather, they were charged as separate acts which, by themselves amounted to professional misconduct, regardless of whether or not the commission of the criminal offences were made out. See especially [137].

The majority’s conclusion is set out below. It is useful to know before considering them, however, what s. 137I and s. 167A of the Legal Profession Act 1987 (NSW) said.

Section 137I set out the formal requirements of a complaint, e.g. that it be in writing and, most relevantly, ‘must give particulars of the alleged conduct of the legal practitioner that is the subject of the complaint’. See [23].

Section 167A said ‘The Tribunal may, on the application of a Council or the Commissioner who laid an information, vary the information laid so as to omit allegations or to include additional allegations if the Tribunal is satisfied, having regard to all the circumstances, that it is reasonable to do so.’

This is what Spigelman CJ and Giles JA concluded:

‘115 The Commissioner agreed to accept a “complaint”. However, that complaint related to specific conduct about which he was informed, indeed about which it was necessary to inform him, by reason of the express requirement to particularise the “alleged conduct … that is the subject of the complaint” under s137I and in order to enable the Commissioner to satisfy himself of the matters set out in s138(2)(b). The Commissioner has not “accepted” a complaint with respect to any conduct which was not specified in the materials before him at the time of the exercise of the power. The Tribunal has no jurisdiction to consider any complaint about the conduct which has not been ‘accepted’ by the Commissioner and which fell within s138(1). Section 167A can not be used to overcome the lack of jurisdiction. 

116 The best evidence of the scope of the investigation conducted by the Bar Council is the memorandum of 27 September 1996. …

148    The word “conduct” does not change form between the singular and the plural. “Conduct” in the Legal Profession Act 1987 encompasses single acts (or omissions) and multiple acts (or omissions). Where the cumulative effect of a number of distinct acts is relied upon in order to characterise “conduct” as “professional misconduct”, the particulars required by s137I would ordinarily indicate that to be the case. Similarly, where acts are relied upon in the alternative, the particulars would indicate that to be the case. 

149 An information under s167(1) commencing proceedings “with respect to a complaint” about conduct may refer to more than one kind of “conduct” about which a complaint has been made under s134, s135 or s136. Under s137I a complaint must give particulars of “alleged conduct”. In ss167(2), (3) and s167A(1), reference is made to “allegations” in the plural. The legislative scheme contemplates a single complaint about more than one conduct. Where this occurs, the various provisions of Pt 10 may apply differently to the different conduct. Some may have been the subject of s155 “investigation”, whereas other conduct may not have been. Some may have been the subject of an acceptance under s138(2), whereas other conduct may not have been. 

150    Reference in an information to impermissible conduct does not, in my opinion, invalidate the institution of proceedings as a whole. Where s155 or s138 have not been complied with, the Tribunal has no jurisdiction to consider that conduct. It is not, however, deprived of jurisdiction with respect to conduct with respect to which Pt 10 has been complied with. The obligation of the Tribunal under s167(2) is to conduct a hearing “into each allegation”. Under s167(3) the legal practitioner must file a reply “to the allegations”. In my opinion, these are references to “alleged conduct”, particularised under s137I. The power to join informations under ss167(4) and (5) does not detract from the proposition that the jurisdiction of the Tribunal is invoked with respect to each complaint made about separate conduct. 

151    Issues of severability may arise. For present purposes, it is sufficient to consider the four headings in the amended Annexure “A” separately. 

152 The third and fourth subheadings in Annexure “A” of the Amended information did not involve conduct about which the Commissioner had ‘accepted’ a complaint under s138(2). The Tribunal had no jurisdiction to deal with these matters. It could not vary the information under s167A by including the additional allegations with respect to the conduct with constructive knowledge or conduct as director of Selmit, Valdese and Tamsulu. 

153 Nothing in the Tribunal’s judgment suggests that it determined any matter arising under pars [45]-[57] of the amended Annexure “A”. There was therefore no error relevant to the Tribunal’s determination. This ground of appeal is not made out with respect to filing the complaint out of time and the purported exercise of the s167A power to vary an information by the addition of these paragraphs. 

154    This leaves pars [1]-[38]. As noted above, pars [1]-[37] are said, in par [38], to constitute professional misconduct. They are expressed as an alternative basis to such a finding to that set out in pars [39]-[43]. Those latter paragraphs are said in par [44], to constitute professional misconduct. That conclusion does not purport to be based on the facts and matters set out in pars [1]-[37]. 

155 In its letter of 15 November 1996 requesting the Commissioner to exercise his power under s138(2), the Bar Council identified the conduct which had occurred more than three years ago as being “the conduct particularised in the charges laid against Mr Mitry by the ASC” [emphasis added]. Furthermore, the “complaint” which the Bar Council asked the Commissioner to “accept” was “the complaint made to you in your letter of 29 April 1996”. That letter had referred only to the article in the Sydney Morning Herald about the plea of guilty to a specific charge.

156 As I have indicated above, no criticism can be made about the recitation of the original Annexure “A” in pars [39]-[44]. These matters were investigated by the Council and constituted the complaint ‘accepted’ by the Commissioner. Paragraphs [1]-[37] were not, however, an elaboration of the facts, matters and circumstances underlying the allegations in pars [39]-[44]. They are expressed to be different conduct relied upon, in the alternative, as constituting professional misconduct. No complaint about such conduct, considered as such, was ever ‘accepted’ by the Commissioner under s138(2). In my opinion, the Tribunal did not have jurisdiction to deal with the matters set out in pars [1]-[37] as “conduct” about which a “complaint” had been made, accepted and investigated. The power to vary an information under s167A(1)could not be exercised to add the allegations set out in pars [1]-[38]. 

157    With respect to these matters, I am unable to conclude that they played no role in the Tribunal’s determination.’ 

Since the Tribunal’s orders were potentially infected by reliance on the matters newly added by paras [1]-[37], the Court set aside the tribunals’ decisions and remitted the matter to be reheard. As noted above, a differently constituted tribunal came to a markedly different result, the Bar Council having abandoned many of the contentions it sought, on the hop, to introduce. Perhaps once those allegations were the subject of intercourse between the barrister and his Bar Council outside of the furnace of a fraud trial, the matters which would have become evident in a calm disciplinary investigation became apparent. Perhaps the whole story is a lesson in why amendments to allege uninvestigated conduct in an effort to save a fraud trial from failure ought not be allowed as a matter of common sense.

Veterinary Surgeons Investigating Committee v Lloyd (2002)

Veterinary Surgeons Investigating Committee v Lloyd (Inquiry 4: ‘Total Eclipse’ – Findings) [2003] NSWADTAP 19 is a weird old case. On 25 February 1997, Kim Korokonay’s daughter’s cat was presented to Dr Lloyd, a vet, to check for ringworm. His Woods lamp was broken, so on the basis of an examination he opined and certified by scribbling a note that ‘Total Eclipse’, a pedigree Chinchilla, was free of ringworm. Then the mother sold the kitten to a petshop, the kid’s brother got ringworm, and another vet diagnosed Total Eclipse with ringworm using his Woods lamp.

On 31 December 2002, NCAT decided that though it could not find that Total Eclipse had had ringworm at the time when Dr Lloyd examined it, he misdiagnosed the cat as not having ringworm (weird, I know). It did so despite what the Tribunal saw as bizarre conduct by the Investigating Committee in arguing against its own prosecution. Indeed, the Tribunal refused to accept the parties’ joint position that the case would not be pressed because ‘the Committee had failed to adduce any professional evidence that the cat was infected with ringworm … or that Dr Lloyd’s diagnosis was not correct or possible.’ See the 173 paragraph decision at [2002] NSWADT 284.

It seems to be part of quite the saga, but the stipes were after Dr Lloyd on a number of different counts, not just Total Eclipse’s putative, and her mistress’s brother’s actual, ringworm. Consider Lloyd v Veterinary Surgeons Investigating Committee [1999] NSWCA 68; Lloyd v Veterinary Surgeons Investigating Committee [2002] NSWCA 224; Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456, (2005) 65 NSWLR 245.

Also on 31 December 2002, NCAT decided a jurisdiction question first raised by Dr Lloyd after his disciplinary trial had been completed, the first inkling of which was raised during his re-examination. See [2002] NSWADT 283. The Tribunal said its role was not to conduct a judicial review into the adequacy of the antecedent investigation; if he wanted to take that point, he should have sought judicial review of the decision to prosecute back in the 1990s. It also construed the statute such as to find that the requirement to give an opportunity to make written submissions was not one breach of which invalidated the commencement of disciplinary proceedings such as to rob the statutory disciplinary tribunal of jurisdiction.

Dr Lloyd appealed, and an appeal panel of the Tribunal presided over by Deputy President Chesterman ADCJ allowed the appeal. Not satisfied with the original Tribunal’s refusal to allow the Investigating Committee not to press the case, on appeal both parties supported the appeal. The Tribunal insisted on making its own decision and it did so, finding that because of shortcomings in the disciplinary investigation, the Tribunal’s processes had not been regularly invoked, with the result that it had not had jurisdiction.

Dr Lloyd knew that the Veterinary Association who had received Total Eclipse’s owner’s mother’s complaint and his response to it had referred it to the Investigating Committee. He was interviewed about it at a meeting which he had understood to be about his treatment of Remus the dog, not having been written to by the Investigating Committee about the kitten Total Eclipse beforehand.

The legislation in question required that, before prosecuting, the Investigating Committee first give the vet the opportunity to make written representations and, if still considering prosecution after considering them, to make oral submissions. Accordingly, the Committee had failed to allow Dr Lloyd to make written representations before appearing before it.

The Committee was also said by Dr Lloyd not to have conducted a real investigation, and not to have resolved, as it was required to have done, that such ‘investigation’ as it did conduct revealed a prima facie case. (This blog post does not treat a fourth ground of appeal.)

The appeal panel found at [47] et seq that the Tribunal did have jurisdiction to investigate whether a real investigation with the characteristics impliedly required by the statute had taken place: Trajkowski v Telstra Corporation Ltd (1998) 153 ALR 248Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8;  (1999) 46 NSWLR 55, at 71; Aronson et al, Judicial Review of Administrative Action, 2nd ed, LBC, 2000, at 201, footnote 50. It allowed the appeal on the basis that no proper investigation had taken place.

It also allowed the appeal on a further basis:

’53 … the two separate procedural steps in s 28(3) whereby a practitioner may make representations to the Committee must both be classified as ‘fundamental’. It is not logical to label one in this way (relating to oral representations), but not the other (relating to written representations). 

54 The Panel believes that this conclusion receives direct and strong support from the Court of Appeal’s judgments in Murray. Unlike the authorities on which the Tribunal at first instance relied, this case dealt squarely with the issue of procedural fairness for a practitioner whose conduct is subject to investigation on disciplinary grounds and who faces the prospect of proceedings for a disciplinary ‘offence’. Both in Murray and in the present case, the professional disciplinary body had the responsibility of determining whether, on the facts found after an investigation, it was appropriate to refer the matter to the Tribunal or to adopt a lesser course, such as reprimanding the practitioner.

55 The Court of Appeal held in Murray that in these circumstances notice of a complaint and an opportunity to respond had to be given even though nothing to this effect was explicitly stated in the governing legislation. Non-observance of this implicit requirement invalidated the subsequent tribunal proceedings. 

56 The Panel sees no way in which, consistently with this decision, non-observance of an express statutory requirement designed to ensure procedural fairness during the investigatory stage of a professional disciplinary matter – such as the requirement in s 28(3) that was not observed in this case – could be held not to invalidate subsequent legal proceedings. It is fortified in this conclusion by the High Court’s judgments in Barwick and by the policy arguments which Mr Grey advanced with regard to the role of the investigatory process.’

These policy arguments were recorded at [35] et seq:

’35 In his written submission, Mr Grey, counsel for the Committee, advanced a broad argument, based on policy considerations, for treating strict compliance with procedural steps laid down in the Act as essential to the validity of subsequent proceedings in the Tribunal. He pointed out that, taken together, the two types of disciplinary ‘offence’ that may be alleged before the Tribunal – namely ‘misconduct in a professional respect’ and ‘serious misconduct in a professional respect’ – cover a very wide range of matters. These include relatively minor matters as well as very serious ones. To illustrate this, the lesser of the two offences, defined in s 22, may (though not necessarily will) be committed by a breach of a provision of the Veterinary Surgeons’ Code of Professional Conduct, which appears in Schedule 1 of the Veterinary Surgeons Regulation 1995. This Code sets out broad and wide-ranging principles of veterinary practice, the precise interpretation and application of which may provoke differences of opinion amongst expert practitioners. 

36 Mr Grey submitted that in this context the Committee’s investigation of complaints plays an important role through providing the important element of peer review. It is, in the words of his written submission, ‘the essential filter that ensures most matters are disposed of quickly, informally and fairly’. It provides a safeguard against practitioners being burdened with the stress and cost of defending Tribunal proceedings in cases where the misconduct alleged against them turns out to be trivial. For these reasons, Mr Grey submitted, “it is very important that the procedural aspects of the investigation are complied with”.’

2004 amendments: disregarding of procedural lapses

In 2004, NSW introduced s. 171 of the Legal Profession Act 1987, a power in the disciplinary tribunal to disregard ‘procedural lapses’ by the disciplinary investigator (pre-prosecution) or the disciplinary prosecutor (in the prosecution):

‘(1)   The Tribunal may order that a failure by the Commissioner or a Council, or a person acting for them or under their direction, to observe a procedural requirement in relation to a complaint is to be disregarded, if satisfied that the parties to the hearing have not been prejudiced by the failure.

(2)  This section applies to a failure occurring before proceedings were instituted in the Tribunal in relation to the complaint as well as to a failure occurring afterwards.’

When the Legal Profession Act 2004 superseded the 1987 Act, the equivalent power was found in s. 561 (Procedural lapses and defects in appointments):

(1)   The Tribunal may order that a failure by the Commissioner or a Council, or a person acting for them or under their direction, to observe a procedural requirement in relation to a complaint (including the making, investigation or referral of a complaint, the giving of notice in connection with a complaint, or the making of a decision in connection with a complaint) is to be disregarded, if satisfied that:

(a)  the failure has not caused substantial injustice to the parties to the hearing, or

(b)  any substantial injustice caused by the failure is outweighed by the public interest in having the complaint dealt with by the Tribunal, or

(c)  any substantial injustice caused by the failure can be remedied by an order of the Tribunal.

(2)  Subsection (1) applies to a failure occurring before proceedings were commenced in the Tribunal in relation to the complaint as well as to a failure occurring afterwards.

(3)  A defect or irregularity in the appointment of any person exercising, or purporting to exercise, a power or function under this Chapter or Chapter 6 does not invalidate an act done or omitted by the person in good faith.’

No similar amendment was made in Victoria, until the Legal Profession Uniform Law commenced on 1 July 2015 in relation to complaints made after that date. See s. 305, which is in different but similar terms.

NSW Architects Registration Board v Cserhalmi (2006)

The NSW Architects Registration Board made a goose of themselves in NSW Architects Registration Board v Cserhalmi [2006] NSWADT 110. A judicial member, Deputy President Chesterman found that his tribunal had no jurisdiction because of imperfections in the way the disciplinary investigation had been carried out by the Board.

First, complaints had to be ‘verified’ by an architect or a lawyer before they could be acted upon by the Board. The Board asked the complainant to verify the complaint but she did not. The Board investigated nonetheless. The Tribunal was all ready to declare it had no jurisdiction on the basis that this failure by the Board to follow the rules set down by the governing statute when it was discovered that the complainant was a barrister and barristers were exempt from the obligation to have complaints made by them verified.

But the Tribunal found it had no jurisdiction anyway because of another failure to follow the rules.

One provision (s. 43, in Division 2 (‘Complaints’)) said that following an investigation, the Board must take no further action if satisfied that the architect was not guilty of conduct warranting discipline, but if it was so satisfied, it could deal with the architect internally in the case of less serious conduct or could prosecute such conduct but was required to prosecute him in the Tribunal if satisfied of misconduct.

Division 3 (‘Applications to Tribunal for disciplinary findings’) commenced with s. 46:

‘The Board may apply to the Tribunal for a disciplinary finding against an architect with respect to any complaint against the architect.’

Following what NCAT seems to have considered a rather desultory investigation the Board seemed to be satisfied neither that the architect was or was not guilty of conduct warranting discipline, a scenario which the legislation in question regrettably did not seem to contemplate. So they resolved under s. 43 to prosecute the resolution but expressly said ‘The Board expresses no opinion as to the merit of these allegations.’ (Wrong way! Go back! Dear oh dear.)

The Tribunal found that it had no jurisdiction. The regulator had not followed the rules. The Board’s counsel valiantly argued that the prosecution could be justified under s. 46, but the Tribunal found:

’59 … subsections (2) and (3) of s 43 are intended to define exhaustively the circumstances in which the Board may make an application to the Tribunal under s 46. The alternative approach gives too much leeway to the Board to avoid the responsibilities of investigation and determination imposed on it by ss 39 – 43 of the Act. Having imposed these responsibilities by enacting these sections, with a view to ensuring that cases lacking a sufficient evidentiary basis should not reach the Tribunal, the legislature cannot have intended that s 46 should confer on the Board a wholly independent power to apply to the Tribunal. Instead, the function of s 46 would appear to be that of making it clear that the Board alone has standing to make a disciplinary application to the Tribunal.

60 The Tribunal further concludes that, in accordance with the principles laid down in Barwick v Law Society of New South Wales [2000] HCA 2, it was the legislative intention of Part 4 that if an application is made to the Tribunal in breach of the conditions stipulated in s 43(2) and s 43(3), the application should be deemed invalid and the Tribunal should lack jurisdiction to entertain it. The legislature cannot have intended that these conditions should be able to be bypassed by the simple expedient of invoking s 46 as a ‘stand-alone provision’.

Council of the NSW Bar Association v Asuzu (2011)

In Council of the New South Wales Bar Association v Asuzu [2011] NSWADT 209, the Administrative Decisions Tribunal of NSW considered whether s 561 of the Legal Profession Act 2004 (NSW) (‘561   Procedural lapses and defects in appointments’), referred to above, could be used when the conduct had occurred outside NSW and there had been a failure to obtain the statutory consent that was required before a complaint was initiated in NSW. The Tribunal decided that, while the s 561 expression “procedural requirement in relation to a complaint” permitted the ADT to disregard a failure to observe a procedural requirement in relation to a complaint where it had jurisdiction, it did not permit the Tribunal to acquire jurisdiction in relation to a complaint in respect of which it did not otherwise have jurisdiction because the condition precedent (the giving of consent before proceedings were commenced) had not been satisfied. (See [2017] ACTSC 173 at [45].)

Legal Profession Uniform Law (2015)

The LPUL commenced on 1 July 2015 in NSW and Victoria, and imported into Victorian law a power to disregard procedural lapses, as s. 305:

‘(1) The designated tribunal may order that a failure by the designated local regulatory authority to observe a procedural requirement in relation to a complaint is to be disregarded, if satisfied that the parties to the proceedings have not been prejudiced by the failure.

(2) This section applies to a failure occurring before proceedings were instituted in the designated tribunal in relation to the complaint as well as to a failure occurring afterwards.’

The Legal Profession Uniform Law Application Act 2014 (NSW) contains further provisions which were obviously not to the taste of the Victorian Attorney-General, finding no equivalent in the Victorian regime:

Section 140 (‘Variation of disciplinary application’), similar to s. 555 of the Legal Profession Act 2004 (NSW) referred to above says:

‘(1)  The Tribunal may vary a disciplinary application, on the application of the person who made the disciplinary application or on its own motion, so as to omit allegations or to include additional allegations, if satisfied that it is reasonable to do so having regard to all the circumstances.

(2)  Without limiting subsection (1), when considering whether or not it is reasonable to vary a disciplinary application, the Tribunal is to have regard to whether varying the disciplinary application will affect the fairness of the proceedings.

(3)  The inclusion of an additional allegation is not precluded on any or all of the following grounds:

(a)  the additional allegation has not been the subject of a complaint,
(b)  the additional allegation has not been the subject of an investigation,
(c)  the alleged conduct concerned occurred more than 3 years ago.’

Section 141 (‘Nature of allegations’) says:

‘(1)  A disciplinary application in respect of a complaint cannot be challenged on the ground that the allegations contained in the application do not deal with all of the matters raised in the complaint or deal differently with matters raised in the complaint or deal with additional matters.

(2)  This section applies whether the allegations were included in the disciplinary application as made to the Tribunal or were included by way of variation of the application.’

Practitioner P1 v ACT Civil and Administrative Tribunal (2017)

In Practitioner P1 v ACT Civil and Administrative Tribunal [2017] ACTSC 173 the Chief Justice decided that a failure by the disciplinary investigator, the Council of the Law Society of the ACT, to waive the three year time limit on disciplinary complaints was not a procedural requirement which could be cured by ACAT disregarding a ‘procedural lapse’ under the ACT equivalent of s. 171 of the Legal Profession Act 1987 (NSW) and s. 561 of the Legal Profession Act 2004 (NSW), namely s. 424 of the Legal Profession Act 2006 (ACT).

The Law Society had received a disciplinary complaint about conduct more than 3 years old. It had simply failed to consider whether to waive the 3 year time limit and so had not done so. It carried out an investigation. It was no part of the case that the investigation was not a fair one. But, drawing on Barwick, the Chief Justice decided that the failure to follow the rules meant that ACAT’s jurisdiction had not been regularly invoked, and she prohibited ACAT from continuing to deal with the prosecution, except to dismiss it.

The Great Delegation Debacle No. 2

See this post.

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