Legal Practitioner ‘M’ v Council of the Law Society of the Australian Capital Territory

• Jurisdiction: Australian Capital Territory
• Court: Supreme Court of ACT
• Judge: Refshauge ACJ
• Judgment Date: 21 October 2015
• Docket Number: File Number(s): SC 18 of 2014
• Date: 21 October 2015

[2015] ACTSC 312

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Before:

Refshauge ACJ

File Number(s): SC 18 of 2014

Legal Practitioner ‘M’

(Plaintiff)

and

Council of the Law Society of the Australian Capital Territory

(Defendant)

Representation:

Counsel

Mr R Crowe SC with him Mr T Crispin (Plaintiff)

Mr G Blank (Defendant)

Cases Cited:

Appellants v The Law Society of the ACT (2011) 252 FLR 209

Briginshaw v Briginshaw [1938] 60 CLR 336

Byrne v Law Institute of Victoria Pty Ltd [2005] VSC 509

Casarotto v Australian Postal Commission (1989) 86 ALR 399

CIC Australia Ltd v ACT Planning and Land Authority (2013) 277 FLR 26

Department of Premier and Cabinet v Hulls [1999] 3 VR 331

Donaghy v Council of the Law Society of New South Wales [2013] NSWCA 154

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577

Eastman v Commissioner for Social Housing (2011) 252 FLR 278

Faull v Commissioner for Social Housing (2013) 277 FLR 61

Hocking v Medical Board of Australia (2014) 287 FLR 54

Johns v Law Society of New South Wales [1982] 2 NSWLR 1

Kozanoglu v Pharmacy Board of Australia (2012) 36 VR 656

Lander v Council of the Law Society of the ACT (2009) 231 FLR 399

Law Society of New South Wales re Karageorge (Unreported, NSW Solicitors Statutory Committee, No 12 of 1986, 15 July 1987)

Legal Practitioner v Council of the Law Society of the Australian Capital Territory [2011] ACTSC 110

Legal Practitioner ‘M’ v The Council of the Law Society of the ACT [2014] ACAT 18

Legal Practitioner ‘M’ and the Council of the Law Society of the ACT [2013] ACAT 42

Legal Profession Complaints Committee v in de Braekt [2013] WASC 124

Legal Services Board v McGrath [2010] VSC 266

McDonald v Director-General of Social Security (1984) 1 FCR 354

Minister for Health v Thomson (1985) 8 FCR 213

Myers v Medical Practitioners Board (Vic) (2007) 18 VR 48

Niemann v Electronic Industries Ltd [1978] VR 431

O'Donnell v Environment Protection Authority (2012) 268 FLR 48

Osland v Secretary of the Department of Justice (No 2) (2010) 241 CLR 320

Re Coldham; Ex parte Brideson (No 2) (1990) 170 CLR 267

Re PS; Ex parte ZP (1994) 181 CLR 639

Re VBN and Australian Prudential Regulation Authority (2006) 92 ALD 259

Secretary, Department of Social Security v Willie (1990) 96 ALR 211

Shi v Migration Agents Registration Authority (2008) 235 CLR 286

Soci?t? d'Avances Commerciales (Soci?t? Anonyme Egyptienne) v Merchants' Marine Insurance Co (The ‘Palitana’) [1924] 20 LI L Rep 140

Stoenevski v Council of the Law Society of New South Wales [2008] NSWCA 93

Sydneywide Distributions Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354

Wiser v Havelock Housing Association Inc [2014] ACTSC 138

Legislation Cited:

ACT Civil and Administrative Tribunal Act 2008 (ACT), ss 6, 79, 81, 86

Family Law Act 1975 (Cth)

Legal Profession Act 2006 (ACT), ss 397, 398, 410, 412, 413, 413(1)(b), 413(2), 414, 415, 416, 416(3), 417, Pt 4.5

Residential Tenancies Act 1997 (ACT), s 125

Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 148

Family Law Rules 2004 (Cth), rr 12.05, 12.07

Legal Profession (Solicitors) Rules 2007 (ACT), r 24

Texts Cited:

M J Beazley, PT Vout and SE Fitzgerald, Appeals and Appellate Courts in Australia and New Zealand (LexisNexis Butterworths: Sydney 2014)

McHugh J, ‘Preparing and Arguing an Appeal’, Bar News: The Journal of the NSW Bar Association: Winter, 2010

LEGAL PRACTITIONERS — Discipline — complaint against a legal practitioner — unsatisfactory professional conduct — offensive or provocative language or conduct — Legal Profession (Solicitors) Rules 2007 (ACT) — breach of rule 24 — investigation — determination — complaint determined summarily

LEGAL PRACTITIONERS — Legal Profession Act 2006 (ACT) — need for reform — unnecessary complexity of the process for hearing and determining complaints

ADMINISTRATIVE LAW — ACT Civil and Administrative Tribunal — application for administrative review of a decision— merits review — correct and preferable decision — wide role for ACAT in hearing an appeal from Council of the Law Society of the ACT — receive further evidence — onus of proof — ultimate onus of proof in proceedings for discipline of lawyers is on the professional association which brings the proceedings — evidential onus — evidential onus on a practitioner

APPEAL — General principles — appeal to the ACAT — nature of appeal

APPEAL — Practice and procedure — leave to appeal — leave to appeal from an administrative tribunal — question of law

APPEAL — Practice and procedure — drafting grounds of appeal — re-statement of grounds of appeal — “scatter gun' approach — importance of being selective in identifying grounds of appeal

APPEAL — Practice and procedure — appeal from the decision of an Appellate Tribunal — appeal from ACAT — serious conflict of fact — complaint dismissed in the public interest — power of ACAT to order costs

Decision:

1. The appellant be granted leave to appeal.

2. The appeal be upheld.

3. The parties be heard as to any other orders to be made.

Refshauge ACJ

1 The provisions relating to the hearing and determination of complaints against legal practitioners are complex, perhaps unnecessarily so, in some cases difficult to construe and to apply and have led to differing interpretations by the Courts in this and other jurisdictions.

2 While it is essential that such provisions provide an effective and efficient means of investigating and then determining such complaints and, if upheld, appropriate responses that protect the community and the public interest, it is also essential that they provide fairness and justice to the complainant, the legal practitioner and the public. That does not seem to me, however, to require the level of complexity, ambiguity and obscurity that now seems to prevail.

3 This case is an example, for my hearing of the appeal is the fourth time a body has had to consider whether the complaint made against the legal practitioner should be upheld. The complaint itself is of events said to have occurred on 18 November 2011.

4 Urgent legislative attention should be given to a sensible reform that will preserve the appropriate protections but provide a simplified and reasonably understandable and efficient process for the very important task of responding to complaints against legal practitioners whose misconduct or unsatisfactory conduct has the capacity to cause significant damage or prejudice to complainants and others and, because of the legislated special position occupied by the legal profession, the capacity to damage the standing and probably the value of the profession to the public interest.

The complaint

5 The complainant and the legal practitioner were, at the relevant time, both principals in their respective law firms. The clients for whom each of them was acting were involved in proceedings under the Family Law Act 1975 (Cth).

6 The two practitioners were attempting to schedule the holding of a conciliation conference in the proceedings (see rr 12.05, 12.07 of the Family Law Rules 2004 (Cth)).

7 On 14 November 2011, the legal practitioner wrote to the Registrar of the Federal Magistrates Court (as the Federal Circuit Court was then known) and advised that she was not available for such a conference on a particular date as she would be recovering from some surgery. This, it appeared from the evidence (though not stated in the letter), was to be hernia surgery, though at one point in the materials before me it was referred to as hand surgery.

8 The complainant then wrote to the legal practitioner:

…while we are of course concerned to accommodate your health difficulties, our ability to prepare and participate in this Conciliation Conference will depend upon the provision by your client of the additional material sought of him by way of discovery…

9 It appears that there had been some delay in the setting of a date for that conference. The legal practitioner asserted that the date of the conference was altered a number of times: first at the request of the complainant, then at the request of the Court, then again at the request of the complainant, then at the request of the legal practitioner because of the required surgery. The legal practitioner commented, rather tendentiously,

As can be seen… it was [the complainant] who continually requested a change of date.

10 No doubt the deferrals caused the legal practitioner a degree of frustration, even though, at the time of the events giving rise to the complaint, her comment was not an entirely fair summary of the chronology.

11 The complainant's letter, however, seems to me to express an appropriate recognition of the collegiality that is to be expected of lawyers between themselves. After all, the legal practitioner had herself raised the issue of surgery and her recovery from it. Regrettably, that was not how the legal practitioner saw it.

12 The letter was sent to the legal practitioner by facsimile transmission and the legal practitioner, apparently on receipt of the letter, immediately telephoned the complainant's firm and spoke to a staff member. There is a dispute about that conversation.

13 The staff member said that the conversation was as follows.

14 The legal practitioner asked to speak to the complainant. The staff member said, ‘She's not in the office at the moment’, for she had gone to court. The legal practitioner replied, ‘Well, she just sent me a letter from her?’. The staff member responded, ‘[The complainant] doesn't send her own letters. If you have received a letter, her assistant… would have sent it’. The legal practitioner said, ‘Well the letter she has written me is bullshit’. The staff member said, ‘That is inappropriate language’. The staff member said that the legal practitioner proceeded ‘to speak over the top of [her]’...