The Legal Practitioner v Council of the Law Society of the Australian Capital Territory

• Jurisdiction: Australian Capital Territory
• Judge: Penfold,North JJ,Mathews AJ
• Judgment Date: 01 July 2011
• Date: 01 July 2011
• Court: Supreme Court of ACT
• Docket Number: No. SCA 44 of 2009

[2011] ACTSC 110

IN THE FULL COURT OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

ON APPEAL FROM THE COUNCIL OF THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY

Judge:

Penfold, North JJ and Mathews AJ

No. SCA 44 of 2009

Between:

The Legal Practitioner

Appellant

and

Council of the Law Society of the Australian Capital Territory

Respondent

Counsel for the appellant: Self-represented

Counsel for the respondent: Mr N Beaumont

Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616

Council of the New South Wales Bar Association v Slowgrove [2009] NSWADT 150

New South Wales Bar Association v Murphy (2002) 55 NSWLR 23

Re A Solicitor (1992) 107 FLR 389

The Council of the Law Society of the Australian Capital Territory & The Legal Practitioner (Occupational Discipline) [2010] ACAT 73

Veghelyi v Council of the Law Society of New South Wales (1989) 17 NSWLR 669

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

Legal Profession Act 2006 (ACT), ss 3, 11, 11(1)(a), 11(1)(f), 26, 36(2), 36(2)(f), 44, 44(4)(b), 56, 81, 81(1)(a), 386, 387(1), 387(2), 389(a), 394, 412, 413, 416, 419, 419(1), 419(3), 423A, 425, 425(3), 425(3)(a), 425(3)(b), 431(3), Pts 4.2, 4.4, 4.5, 4.6, 4.7, Dictionary

Legal Profession Act 1970 (ACT), s 129

Legislation Act 2001 (ACT), s 104, Dictionary

Supreme Court Act 1934 (ACT), ss 11, 11(2), 11(3)

Legal Profession (Solicitor) Rules 2007 (ACT), rr 1.1, 1.2, 31.1(b), 39.1

Legal Profession Act 1987 (NSW), s 37(1)

LEGAL PRACTITIONERS — appeal de novo from decision of the Council of the Law Society of the ACT — refusal to renew practising certificate — whether the practitioner is a fit and proper person to continue to hold restricted practising certificate — fundamental obligation of legal practitioner to act in accordance with, and not contrary to, instructions — proper administration of justice requires courts to be able to rely on integrity of legal practitioners — power to refuse to renew practising certificate is for protection of public — appeal dismissed.

REASONS FOR JUDGMENT

THE COURT:

Introduction

1 Before the Court is an appeal instituted by a legal practitioner ( the appellant) on 22 June 2010, against a decision made on 3 June 2010 by the respondent, the Council of the Law Society of the ACT (the Law Society Council). The Law Society Council came to the view that the appellant was not a fit and proper person to continue to hold a restricted practising certificate. It therefore determined that the appellant's restricted practising certificate not be renewed for the 2010–2011 year.

2 At the conclusion of the hearing of the appeal the Court announced that the appeal would be dismissed and that reasons for judgment would be published later. These are those reasons.

Regulation of the legal profession

3 Under provisions set out in the Legal Profession Act 2006 (ACT) (the Legal Profession Act), the ACT Civil and Administrative Tribunal Act 2008 (ACT) (the ACAT Act) and the Supreme Court Act 1934 (ACT), the responsibility for regulating the legal profession in the ACT is divided among several bodies.

4 Specific provisions will be dealt with later in this judgment, but the relevant arrangements can be summarised as follows.

Admission

5 The Supreme Court (generally a Full Court) admits people as lawyers ( Legal Profession Act, s 26, and Supreme Court Act, s 11).

Practising certificates

6 Under the Legal Profession Act, the licensing body (being the Law Society Council) has the power to grant and renew practising certificates and to refuse such grants (s 44). It also has the power to amend, suspend or cancel practising certificates (s 56). Decisions of the licensing body to refuse to grant or renew a practising certificate, or to amend, suspend or cancel a practising certificate, may be appealed to a Full Court of the Supreme Court ( Legal Profession Act, s 81 and Supreme Court Act, s 11(2)).

Complaints and disciplinary proceedings

7 Under the Legal Profession Act, complaints about legal practitioners may be made to the ‘relevant council’ (s 394). The relevant council may dismiss the complaint (s 412), deal with it in a summary way (s 413), or apply to the ACT Civil and Administrative Tribunal established under the ACAT Act (see Legislation Act 2001 (ACT), Dictionary) (the Tribunal) for an order in relation to the complaint (s 419). A decision to dismiss a complaint or deal with it summarily may be appealed to the Tribunal by the complainant or the legal practitioner respectively (s 416). If the Tribunal finds the practitioner guilty of unsatisfactory professional conduct or professional misconduct, it may recommend that the practitioner's name be removed from the local roll, or suspend, cancel or otherwise restrict the practitioner's local practising certificate, or reprimand the practitioner (s 425). Tribunal decisions may be appealed internally ( ACAT Act, s 79) or to the Supreme Court ( ACAT Act, s 86).

Removal from the roll

8 A recommendation by the Tribunal to remove a practitioner's name from the roll is dealt with by a Full Court of the Supreme Court ( Supreme Court Act, s 11(3)).

Multiple roles in regulation of the legal profession

9 Thus, in relation to a practitioner, the Law Society Council may be at the same time a party to disciplinary proceedings in the Tribunal, and a decision-maker in relation to the practitioner's practising certificate. The Supreme Court may have in its lists an appeal against a refusal to renew a practitioner's practising certificate, appeals against Tribunal decisions in disciplinary proceedings against the practitioner, and a recommendation to remove the practitioner's name from the roll, all arising out of the same circumstances. That is the situation in this matter.

Proceedings involving the appellant

10 The current proceedings involve an appeal against a refusal to renew a practising certificate. Some of the other matters in the Supreme Court's lists are, however, relevant in the current proceedings.

11 Proceedings concerning the appellant have been running since at least 2008. Some proceedings have arisen out of complaints made to the Law Society about the appellant. Three of those complaints were the subject of Law Society Council applications to the Tribunal, and in three of them the Tribunal has made findings adverse to the appellant. In two of them the Tribunal has imposed sanctions, being an order that the practitioner's practising certificate be cancelled and a recommendation that the practitioner's name be removed from the ACT roll of practitioners, and the appellant has appealed to the Supreme Court; in the third matter the Tribunal is apparently awaiting the outcome of those appeals, and this appeal, before deciding on a sanction. Other complaints are still making their way through the Law Society and Tribunal processes.

12 The matter before this Court arises out of the exercise by the Law Society Council of its power to refuse to renew a practising certificate, which decision has made in reliance on the material that has emerged, and the decisions that have been made, in relation to the complaints mentioned above.

Suppression of names

13 Section 423A of the Legal Profession Act restricts publication of certain identifying material relating to applications under Pt 4.7 of that Act, which deals with disciplinary proceedings, as follows:

• (1) A person must not publish an account or report of an application under this part if the account or report —

  • (a) discloses the identity of the person who is the subject of the complaint to which the application relates (the person concerned); or

  • (b) allows the identity of the person concerned to be worked out.

• (2) However, the identity of the person concerned may be disclosed in an account or report of the application if —

  • (a) a final decision has been made that the person concerned is guilty of the conduct complained of; and

  • (b) either —

    • (i) the appeal period has ended and no appeal has been made; or

    • (ii) any appeal has been decided against the person concerned.

• (3) In this section:

  appeal means an appeal from a decision by the tribunal under the ACT Civil and Administrative Tribunal Act 2008, section 79.

  appeal period means the period within which an appeal may be made.

  Note See the Court Procedures Rules 2006, r 5052 (Appeals to Supreme Court — general powers) and r 5103 (Appeals to Supreme Court — time for filing notice of appeal).

14 These reasons refer to a number of disciplinary proceedings against the appellant, some of which have not been finalised or are still subject to outstanding appeals. Publishing the name of the appellant in these reasons may enable the appellant also to be identified, in breach of s 423A, as the subject of the complaint to which an outstanding disciplinary proceeding relates.

15 There may be room for argument whether this Court, in publishing its reasons, is ‘a person’ subject to s 423A; this question was not argued before us, and in any case would not necessarily address the position of, for instance, public service employees responsible for publishing the reasons via the Supreme Court's website. Accordingly, these reasons do not refer to the appellant by name.

16 Our reasons also adopt the Tribunal's approach in protecting the identities of complainants, witnesses and certain other participants in the various matters.

17 We have added to these reasons an appendix identifying people whose identities are disguised in these reasons. We order that the appendix is not to be published but is to be made available to the parties only, to be used by them if required for the purposes of these and any subsequent proceedings.

The nature of the appeal

18 The decision of the Law Society under appeal was made under s 44(4)(b) of the Legal Profession Act, which relevantly provides...