ACT CIVIL & ADMINISTRATIVE TRIBUNAL

COUNCIL OF THE LAW SOCIETY OF THE ACT v LEGAL PRACTITIONER D3 (Occupational Discipline) [2017] ACAT 9

OR 20/2013

Catchwords: OCCUPATIONAL DISCIPLINE – jurisdiction of the Tribunal –new complaint in respect of pre Act conduct – transitional provisions –section 613 of the Legal Profession Act 2006

Legislation cited: ACT Civil & Administrative Tribunal Act 2008 ss 9, 57Legal Practitioners Act 1970 ss 3, 37, 67, 50, 191HLegal Profession Act 2006 ss 385, 390,391, 394, 395, 410, 411, 415, 419, 422, 425, 462, 612, 613, 620, 619 (repealed) Legislation Act 2001 ss 84, 88Statute Law Amendment Act 2006 s 2.6

Cases cited: Law Society of New South Wales v Beyer [2007] NSWAET 191 Legal Practitioner D3 v ACT Civil & Administrative Tribunal [2016] ACTSC 61La Macchia v Minister for Primary Industry (1986) 72 ALR 23McLaren v Legal Practitioners Disciplinary Tribunal and the Law Society of the Northern Territory [2010] NTSC 2Re a Solicitors Clerk [1957] 1 WLR 1219

List of Texts/ Papers cited: Pearce and Geddes, Statutory Interpretation in Australia (Lexis Nexis,

8th Ed, 2014)

Tribunal: Senior Member B Meagher SCSenior Member M BrennanMember G Wright

Date of Orders: 7 February 2017Date of Reasons for Decision: 17 February 2017

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AUSTRALIAN CAPITAL TERRITORY )CIVIL & ADMINISTRATIVE TRIBUNAL ) OR 20/2013

BETWEEN:

COUNCIL OF THE LAW SOCIETY OF THE ACTApplicant

AND:

LEGAL PRACTITIONER “D3”Respondent

TRIBUNAL: Senior Member B Meagher SC (Presiding)Senior Member M BrennanMember G Wright

DATE: 7 February 2017

ORDER

The Tribunal orders that:

1. Grant leave to the respondent to file his application for Interim or Other orders dated

3 February 2017 at the hearing on 6 February 2017.

2. Waive the requirement for service of the application which is heard instanter.

3. Ground 1 of the Further Amended Application for Disciplinary Action (Corrected)

dated 11 October 2016 in OR 20/2013 be dismissed for want of jurisdiction.

4. There be no order as to costs in respect of the interim application.

5. Reserve reasons for the decision.

6. Adjourn the further hearing of the application to a date to be fixed for the provision of

reasons and if required further directions.

……………Signed…………..Senior Member B Meagher SC

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REASONS FOR DECISION

The question

1. Can the Council of the Law Society of the ACT (the Council) apply to the ACT Civil &

Administrative Tribunal (ACAT) under section 419 of the Legal Profession Act 2006 in

relation to a complaint against a legal practitioner about conduct occurring prior to the

commencement of the Legal Profession Act 2006 if such conduct could not have been the

subject of a complaint under the Legal Practitioners Act 1970?

2. If not, then under section 9 and 57 of the ACT Civil & Administrative Tribunal Act 2008

the ACAT has no power to deal with the application as it is dependent on the authorising

law namely the Legal Profession Act 2006.

Background

3. The matter has long and unfortunate history. The practitioner has represented himself

throughout until now. The most recent description of its history is contained in a decision

of the ACAT of 21 December 2016.1 The matter finally was scheduled to be heard

commencing on 6 February 2017. On Friday 3 February the practitioner represented by

Counsel sought to restrain the ACAT hearing in the Supreme Court based on a new

argument which is now the matter we have to determine. Associate Justice Mossop

dismissed the application in the proceedings, even though he expressed the view that the

application made a strong point, because the argument ought to have been raised in the

ACAT first. Consequently by an interim application in these proceedings delivered late to

the tribunal on Friday 3 February, the practitioner, through his now Counsel, Mr Orlov,

sought an order that the proceedings be dismissed based on this argument.

4. If the argument is correct the Tribunal had no jurisdiction and no discretion to refuse to

allow the point to be argued at this late stage. There are numerous reasons why it would

have been appropriate to refuse to deal with the argument if there was any power to do so.

They are not repeated here but were referred to in the decision of 21 December 2016 of

the Tribunal at [9]-[12] and discussed at [73]-[76].

1 A copy of that decision is Annexure C of the affidavit of the practitioner of 1 February 2017 filed in the Supreme Court matter SC 561 of 2016

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5. The Tribunal allowed the application to be heard before embarking on the hearing of the

Council’s application for disciplinary action and waived any late service and filing

requirements. The Council argued that we should not, based on the obvious wasted

expense and waiting witnesses. The facts necessary to decide the argument were

uncontroversial and established without the need to hear the whole disciplinary

application. The Tribunal accepted the force of the opposition to this by the Council but, if

it had no jurisdiction as the Practitioner sought to argue, then proceeding to hear the

disciplinary action would be beyond power.

6. To understand the argument it is necessary to know what is in the application for

disciplinary action brought in the Tribunal by the Council. The most recent version, which

is called the ‘Further Amended Application for Disciplinary Action (corrected)’, is dated

11 October 2016. The application was first filed on 19 June 2013.

7. It is alleged in paragraph 1 (and admitted by the practitioner in his ‘Points of Defence’

dated 27 January 2017) that the practitioner was admitted as a legal practitioner of the

Supreme Court of South Australia on 5 September 1994, the Supreme Court of Victoria

on 31 May 1995 and the Supreme Court of the Australian Capital Territory on

1 May 2002. Also alleged and admitted were the facts that he was the holder of a local

(ACT) practising certificate issued by the Council for the period 17 April 2009 as a

restricted certificate and as an unrestricted certificate for the period 18 August 2009 to

30 June 2012. Further alleged and admitted is that he is a holder of a current unrestricted

practising certificate issued by the Law Institute of Victoria.

8. In addition, the practitioner tendered an email from the Victorian Legal Services Board

and Commissioner dated 31 January 2017 showing that he had an employee practising

certificate in Victoria from 9/5/1998 to 31/12/1999, 13/1/2014 to 30/6/2014, and 1/7/2014

to 30/6/2015; a Principal without Trust Authorisation certificate from 9/5/1998 to

31/12/1999, 20/12/2001 to 30/6/2002, 15/8/2014 to 30/6/2015 and 1/7/2015 to 30/6/2016;

and as a Principal with Trust Authorisation from 1/1/2000 to 30/6/2000, 1/7/2012 to

30/6/2013, 6/4/2016 to 30/6/2016 and 1/7/2016 “until current”. There is some overlapping

but there is no evidence nor is it alleged that he had a practising certificate in the ACT at

any other time or that he was a member of the ACT Law Society at any time prior to the

repeal of the Legal Practitioners Act 1970.

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9. It is necessary to know also what the allegations are in the disciplinary application and in

particular their timing. There is a good description of the allegations in the decision of

Burns J in Practitioner D3 v ACT Civil and Administrative Tribunal & Ors [2015]

ACTSC 170 and what follows is extracted from this description in paragraphs [4]–[30]:

4. Ground 1 alleges that the practitioner committed fraud on the Commissioner for ACT Revenue (the Commissioner) in that he, deliberately or recklessly, dishonestly:

(a) obtained a First Home Owner Grant of $7000.00 plus the additional grant of $7000.00 in circumstances where he knew he was not entitled to the grants;

(b) failed to notify the Commissioner of matters required to be disclosed by him, in breach of undertakings and the terms of the Commissioner’s letter to him dated 29 November 2011; and

(c) retained and failed to repay the grants when he knew he was not entitled to obtain and retain them.

5. The Society alleges that, on 21 August 2011, the practitioner entered into a contract for an off the plan purchase of a property known as 91/23 Macquarie Street, Barton in the ACT. The contract specified that the date for registration of the unit plan was 31 December 2002. Clause 24 of the Special Conditions to the contract provided that completion of the contract “shall be effected within 10 days of written notification from the Seller to the Buyer of the registration of the Units plan”. Clause 34 of the Special Conditions provided that the seller could extend the date for registration in certain circumstances.

6. The Society alleges that, on 3 September 2001, the practitioner completed and signed an application form for a First Home Owner Grant of $7000.00 and an addendum to the application claiming an additional $7000.00 grant. In each case, the practitioner stated that the intended settlement date was 31 December 2002.

7. It is alleged by the Society that one of the criteria for obtaining a First Home Owner Grant was that the dwelling to be purchased must be used as the principal place of residence of the recipient of the grant within 12 months of the date of settlement in the case of an established home, or 12 months from the date construction is completed for a new home. It is further alleged that the practitioner was aware of the requirement to notify the Commissioner if any part of the eligibility criteria was not met.

8. The Society alleges that, by signing the application form, the practitioner made, inter alia, the following declarations and undertakings (the first undertaking):

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I have completed and submitted all relevant documents in support of my application and to my knowledge they are true and correct.

I undertake to notify the Commissioner of any notifiable event relevant to the legislation requirements under the First Home Owner Grant Act 2000 within 28 days of the occurrence of this event.

I have read and understood the information prepared by the ACT Revenue Office regarding the conditions of eligibility. I accept that if the conditions are not met, I may not be entitled to receive or retain the grant.

9. It is further alleged that the addendum to the application concerned an additional grant of $7000.00 available to those purchasing or building a new home. The addendum specified that, to qualify for the additional $7000.00, the applicant must satisfy the eligibility requirements for the First Home Owner Grant. The Society alleges that, by signing the addendum, the practitioner made the following further declarations and undertakings (the second undertaking):

I declare that the information provided above is to my knowledge true and correct.

I undertake to notify the Commissioner for Australian Capital Territory Revenue if any of the eligibility criteria, as declared in this application, are not met. I accept that if the conditions are not met, I may not be entitled to receive or retain the grant.

10. The Society alleges that, at the time of signing the application and the addendum, the practitioner knew that his eligibility for the grants was conditional upon:

(a) him occupying the property as his principal place of residence within 12 months of settlement; and

(b) settlement occurring on or before 31 December 2002.

11. It is further alleged that, at the time of signing the application and addendum, the practitioner knew that both the first undertaking and the second undertaking obliged him to notify the Commissioner within 28 days if:

(a) he had not occupied the property as his principal place of residence within 12 months of settlement; and

(b) settlement had not occurred by 31 December 2002.

12. On 29 November 2001, the Commissioner forwarded a letter to the practitioner advising that payment of the grant would be made on 31 December 2002, and further stated:

If settlement is delayed and does not proceed on 31 December 2002, a period of 20 days from that date will be allowed for settlement to be completed. If the

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transaction is still not completed by that time, you must advise the Commissioner for ACT Revenue of this and repay the First Home Owner Grant to the ACT Revenue Office.

If any of the details contained in your application change, or if the transaction does not proceed, you must advise the ACT Revenue Office immediately.

13. It is alleged that, following receipt of this letter, the practitioner knew and understood that:

(a) the criteria for payment of the grant had been varied in that settlement could occur by no later than 20 January 2003, rather than 31 December 2002; and

(b) he had an obligation to notify the Commissioner if a settlement had not occurred by 20 January 2003.

14. The Society alleges that, on 28 August 2002, the vendor’s solicitor advised the practitioner that, pursuant to clause 34 of the Special Conditions of the contract for purchase, the date for registration of the unit plan had been extended to 30 June 2003. Following receipt of that letter, the Society says the practitioner knew that settlement would not occur until after 30 June 2003, and certainly would not occur by 31 December 2002. Although the complaint is not pleaded in this way, I would also presume that the Society alleges that the practitioner must also have been aware that settlement would not occur by 20 January 2003.

15. It is alleged that the practitioner dishonestly failed to notify the Commissioner following receipt of the letter of 28 August 2002 from the vendor’s solicitor that settlement would not occur by 31 December 2002, which was in breach of the first undertaking, the second undertaking and the requirements in the Commissioner’s letter to him of 29 November 2001.

16. On 7 January 2003, the grant money of $14,000.00 was deposited into the nominated joint bank account of the practitioner and his then partner. It is alleged that the receipt of the grants by the practitioner in the circumstances was dishonest.

17. It is alleged that settlement of the property was delayed and did not occur until 15 October 2004.

18. The Society alleges that, on or after 20 January 2003, the practitioner dishonestly failed to notify the Commissioner that settlement had not occurred in breach of the first undertaking, the second undertaking and the requirements of the Commissioner’s letter to him of 29 November 2001. It is alleged that the practitioner dishonestly retained and failed to repay the grants to the Commissioner after 20 January 2003 in circumstances where he was not eligible to retain the grants.

19. It is alleged that, at the time he signed the application and the addendum, and at all other relevant times, the practitioner:

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(a) did not intend to occupy the property as his principal place of residence within 12 months of the date of settlement; and

(b) intended to lease the property, as an investment property, as soon as possible after settlement.

20. It is alleged that the practitioner did not occupy the property as his principal place of residence within 12 months of the date of settlement and that, after 15 October 2005, the practitioner knew that he had not satisfied the residency requirement which was a condition of the payment of the grants, and that accordingly he was obliged to immediately repay the grants to the Commissioner. It is alleged that the practitioner dishonestly failed to notify the Commissioner that the residency requirement had not been, or would not be, complied with by 14 October 2005, which was in breach of the first undertaking, the second undertaking and the requirements in the Commissioner’s letter to him of 29 November 2001. It is further alleged that, after 15 October 2005, the practitioner dishonestly retained the grants and failed to repay them to the Commissioner in circumstances where he was not eligible to retain the grants.

Grounds 2 and 3

21. Ground 2 alleges that the practitioner breached r 25.1 and r 39.1 of the Legal Profession (Solicitors) Rules 2007 (ACT) (the Solicitors Rules) and breached his undertaking to the Society by failing to advise that the Supreme Court proceedings had been relisted or finalised. Ground 3 alleges a breach of r 39.1 of the Solicitors Rules by making false representations to the Society and attempting to mislead the Society.

22. The Society alleges that, on 20 February 2006, the Commissioner requested repayment of the grants from the practitioner together with payment of a 100 percent penalty and interest of $597.19. After consideration of the practitioner’s objection to the Commissioner’s decision to withdraw the grant, the Commissioner allowed the objection in part by reducing the penalty from 100 percent to 75 percent of the grant amount.

23. On 15 February 2008, the practitioner filed an application in the ACT Administrative Appeals Tribunal (now the ACAT) for review of the Commissioner’s decision. This proceeded to hearing before Senior Member Hatch in July 2008. On 6 November 2008, Senior Member Hatch affirmed the decision under review.

24. On 20 November 2008, the Commissioner filed a complaint with the Society in relation to the practitioner’s conduct.

25. On 3 December 2008, the practitioner filed an application in this Court for leave to appeal the decision of Senior Member Hatch.

26. On 8 December 2008, the Society provided the practitioner with a copy of the Commissioner’s complaint.

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27. On 22 December 2008, the Society received a letter from the practitioner in which he informed the Society of the appeal against the decision of Senior Member Hatch and said:

I formally request that this complaint be adjourned until such time that the Supreme Court has determined the issues before it. I have not yet briefed Counsel, but it is my intention to do so in the New Year. I undertake to advise you when the matter has been relisted.

28. On 22 December 2008, the Society wrote to the practitioner and agreed to defer further consideration of the Commissioner’s complaint pending the resolution of the Supreme Court proceedings and asked the practitioner to advise the Society when that had occurred.

29. It is alleged that, on 26 November 2009, the Supreme Court proceedings were settled by consent, with the Court ordering on that date and by consent that the decision of Senior Member Hatch be set aside and noted in its orders the parties’ agreement that the practitioner pay the Commissioner the sum of $18,000.00 within 90 days of the date of the orders. It is alleged that the practitioner dishonestly failed to inform the Society that the Supreme Court proceedings had settled, which was in breach of the undertaking given by the practitioner to the Society on 22 December 2008.

30. On 23 December 2010, having heard nothing further from the practitioner, the Society wrote to the practitioner to enquire as to the status of the Supreme Court proceedings. On 28 January 2011, the practitioner sent an email to the Society in which he stated that the orders of senior Member Hatch were set aside in the Supreme Court by consent, and requested that the complaint by the Commissioner be dismissed and no further action be taken by the Society. The Society alleges that, in making those statements in the email, the practitioner was representing that the orders of Senior Member Hatch had been set aside in circumstances wholly favourable to the practitioner, such that there was no longer any basis for a continued investigation into the Commissioner’s complaint. It is alleged that these representations were, to the knowledge of the practitioner, false or misleading in that the Supreme Court proceedings had in fact been settled on the basis that the practitioner refunded the grants together with an additional sum.

10. It can be seen that the conduct in ground 1 occurred before 2006. The Legal Profession

Act 2006 commenced on 1 July 2006 according to the ACT Legislation Register website.

It was notified on 21 June 2006 but commenced on 1 July: see section 2. The conduct in

grounds 2 and 3 occurred after the Act commenced. The application sought that the whole

application for disciplinary action be dismissed but during argument Counsel for the

practitioner conceded grounds 2 and 3 so that the application was confined to ground 1.

11. As can be seen the practitioner did not have a practising certificate in the ACT during this

period. He did have what is described as an interstate practising certificate prior to the

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current Act for some of the time. In connection with dates alleged in ground 1 the only

period that was within the general time frame was 20/12/2001 to 30/6/2002. This period is

not however when the alleged misconduct occurs. The first date is 3 September 2001

[paragraph 3 of the application] and the next date is 28 August 2002 [paragraph 5-5A of

the application].

12. It can be seen that he did not have an interstate practising certificate at the time of the

alleged misconduct in ground 1. There was no argument put to the contrary.

13. The complaint made by ACT Revenue was after the current Act. It was tendered by the

Council. The complaint did not in terms complain of the matters in ground 1. It is a letter

dated 20 November 2008. It attaches the decision of the ACT AAT. It says the concerns

are twofold. Firstly, Senior Member Hatch had determined at paragraph 11 of the decision

that he did not regard the practitioner as a witness of truth. Further, that the applicant

would have and probably did say anything at all to obfuscate any issue which would assist

the truth. Secondly, the Senior Member found the practitioner’s case so lacking in merit as

to prompt consideration of increasing the penalty tax from 75 to 100 per cent. The

question of penalty involved considerations of whether the conduct of the practitioner was

dishonest in respect of his dealing with the ACT Revenue concerning the grant. It is fair to

understand that the facts relevant to the grant such as those in count 1 were being drawn to

the attention of the Council in that they were the subject of the AAT proceedings.

The Legislation

14. It should be observed that after the commencement of the Legal Profession Act 2006 and

until the commencement of the ACT Civil & Administrative Tribunal Act 2008 there was a

body known as the Legal Practitioners Disciplinary Tribunal. It replaced the Professional

Conduct Board (the Board) that existed under the Legal Practitioners Act 1970 but

nothing turns on that. The application for disciplinary action to ACAT was commenced on

19 June 2013.

15. Relevant provisions of the Legal Profession Act 2006 referred to by the parties include the

following.

16. Section 385 which provides that chapter 4 applies to Australian lawyers in the same way

as it applies to Australian legal practitioners. A legal practitioner is a lawyer with a

practising certificate whereas a lawyer is not. It applies then to lawyers admitted in any

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State or Territory and applies to the practitioner in this case. It also includes former

lawyers or legal practitioners. Section 390 makes it applicable to all Australian legal

practitioners and applies whether or not the lawyer has a practising certificate locally or

interstate. By section 391 it applies if the conduct happens in the ACT. Here it did.

Sections 394 and 395 introduce the complaint process. It can be a complaint made by

anyone to the relevant Council including a complaint by the Council itself.

17. Section 395 provides:

(1)A complaint may be made about conduct to which this chapter applies irrespective of when the conduct is alleged to have happened. [our highlighting]

(2)However, the complaint cannot be dealt with (otherwise than to dismiss it or refer it to mediation) if the complaint is made more than 3 years after the conduct is alleged to have happened, unless the relevant council for the person about whom the complaint is made decides that—

(a) it is just and fair to deal with the complaint having regard to the delay and the reasons for the delay; or

(b) the complaint involves an allegation of professional misconduct and it is in the public interest to deal with the complaint.

18. In this case the complaint was more than three years old and the Council did not decide

the matters in (2)(a) and (b). However this was held to be a procedural requirement and

was the subject of an order under section 424 whereby ACAT might disregard a

procedural lapse. This was held to be permissible by Burns J in Legal Practitioner D3 v

ACT Civil & Administrative Tribunal [2016] ACTSC 61.

19. The words highlighted “irrespective of when the conduct is alleged to have happened”

were relied on by the Council in this application.

20. Section 410 requires the Council to deal with the complaint and includes making an

application to ACAT under part 4.7. Such an application is also contemplated in section

411 and requires the Council to be satisfied because of the nature of the subject matter of

the complaint and the reasonable likelihood of a guilty finding by ACAT.

21. Section 415 requires reasons to be given for a decision to make an application to the

ACAT under part 4.7. Here it was held in the tribunal decision of 21 December 2016 that

this had not been done but it was disregarded under section 424.

22. Section 419 provides:

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419 Application to ACAT(1) The relevant council for an Australian legal practitioner may apply to the ACAT for an order in relation to a complaint against the practitioner.

(2) The relevant council for an employee of a solicitor may apply to the ACAT for an order under this part in relation to a complaint against the employee.

(3) The application must include the charge of unsatisfactory professional conduct, professional misconduct or unsatisfactory employment conduct that the relevant council considers arise out of the complaint.

23. There was some reference to the breadth of the words ‘in relation to’ and we were referred

to an interlocutory decision given orally by Senior Member Lunney in a matter entitled

Council of the Law Society v Legal Practitioner 12 which is identifiable by its number OR

12 of 2016. It is authority for the unsurprising submission that an application that differs

from the terms of the complaint to some extent is arguably valid. There is no submission

by the practitioner here that the application for disciplinary action cannot contain the

matters in ground 1 if they related to events after 1 July 2006 even though they vary from

the actual complaint made.

24. Section 422 makes that clear and provides:

422 Nature of allegations in complaint applications(1)An application to the ACAT in relation to 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 application as made or were included by amendment of the application.

25. Section 425 sets out the orders ACAT may make.

26. Although the inherent power of the Supreme Court was not the subject of any submission

it might be observed that section 462 provides:

462 Jurisdiction of Supreme Court not affected

The inherent jurisdiction and powers of the Supreme Court in relation to the control and discipline of local lawyers are not affected by anything in this chapter, and extend to—

(a) local legal practitioners; and

(b) interstate legal practitioners engaged in legal practice in the ACT.

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Transitional Provisions

27. Chapter 10 appeared in the first version of the Act. Whilst it has expired as at 1 July 2008

(see section 619), it is still in force by reason of section 88 of the Legislation Act 2001.

28. Counsel for the practitioner also provided us with an amendment to the Legislation Act

2001 by the Statute Law Amendment Act 2006 which had an internal explanatory

statement and the amendment as follows:

2.6 Section 88(1) and (2)substitute(1)The continuing operation of a transitional law or validating law is not affected only because the law is repealed.(2)Subsection (1) does not apply to a law that is a transitional law or validating law because of modifications that it makes to another law.

Explanatory noteThis amendment and the next clarify and simplify provisions of section 88 (Repeal does not end effect of transitional laws etc). To make existing section 88 (1) more readable, details of the subsection are proposed to be moved to definitions inserted by the next amendment and the language of the subsection brought more closely into line with Legislation Act, section 86 (2). Existing section 88 (2) is only amended consequentially.The Legislation Act, like other interpretation legislation in Australia, contains provisions dealing with the effect of the repeal and amendment of laws (see chapter 9). Despite these provisions and the general principle against the retrospective operation of legislation, transitional provisions are commonly included in legislation, particularly in legislation moving from one legislative scheme to another. It is readily apparent that not all of these transitional provisions are, on a strict analysis, legally necessary. Transitional provisions that may not be strictly legally necessary are commonly included for at least 2 reasons. First, to put the intended effect of legislation during a transitional period completely beyond doubt. Second, to have an express statement of the transitional effect of provisions. Such a statement assists members of the Legislative Assembly and users of new or amended legislation to arrive at a clear understanding of the intended effect of the new or amended legislation.In this regard the statement is educative rather than having an intended long-term legal effect. Hence the practice in the ACT for a number of years has been to include transitional provisions even though they may not be strictly necessary and to sunset the transitional provisions (including those that may be legally necessary) after they have become known to users. Sunsetting transitional provisions assists in avoiding unnecessary clutter in the statute book. However, because the ACT legislation register provides ready access to versions of the law at each point in time since the establishment of the register, these sunsetted transitional provisions can be readily located by looking at a version of the law for the relevant point in time or at the extensive endnotes provided for all ACT legislation. Because of the ACT drafting practice of including transitional provisions for amended legislation by amendment into the legislation being amended, it is unnecessary for users of ACT legislation to check amending legislation for transitional provisions.The ACT legislative drafting practice is supported by section 88 which enables transitional provisions to be removed from current versions of legislation after a period sufficient to allow users to become familiar with them, whether or not they may have a continuing legal effect. The operation of this legislative drafting practice is reflected in the sunsetting of every transitional provision that was included in the Legislation Act when it was enacted. It is also demonstrated in many other Acts enacted by the Legislative Assembly in recent years. For example, see—

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29. Sections 612 and 613 relate to pending complaints and new complaints about old conduct

and are as follows:

612 Pending complaints before professional conduct board(1)This section applies in relation to a complaint that was made under the repealed Act and in relation to which, immediately before the commencement day, the professional conduct board had not completed its inquiry.

(2)The complaint is to be dealt with as if this Act had not been enacted.

(3)The professional conduct board established under the repealed Act continues in existence but only for this section.

(4)The provisions of the repealed Act, division 8.5 (Inquiries) apply in relation to the complaint as if—

(a) those provisions were provisions of this Act; and

(b) all necessary changes, and any changes prescribed by regulation, were made to apply those provisions as provisions of this Act.

613 New complaints about old conduct(1)This section applies to conduct that happened or is alleged to have happened before the commencement day and that could have been, but was not, the subject of a complaint under the repealed Act.

(2)A complaint about the conduct may be made, and dealt with, under this Act, even if the conduct could not be the subject of a complaint under this Act if it had happened after the commencement day.

(3)Chapter 4, and all other relevant provisions of this Act, apply in relation to the conduct with any necessary changes.

(4)However, disciplinary action may not be taken against a person under this Act in relation to the conduct that is more onerous than the disciplinary action that could have been taken against the person under the repealed Act in relation to the conduct.

30. The Legal Practitioners Act 1970 was repealed by the Legal Profession Act 2006 section

620 which provided:

620 Legislation repealed(1)The Legal Practitioners Act 1970 A1970-43 is repealed.

(2)All registrable instruments under the Legal Practitioners Act 1970 are

repealed.

31. We were referred also to section 84 of the Legislation Act 2001 which provides:

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84 Saving of operation of repealed and amended laws

(1)The repeal or amendment of a law does not—

(a) revive anything not in force or existing when the repeal or amendment takes effect; or

(b) affect the previous operation of the law or anything done, begun or suffered under the law; or

(c) affect an existing right, privilege or liability acquired, accrued or incurred under the law.

(2)An investigation, proceeding or remedy in relation to an existing right, privilege or liability under the law may be started, exercised, continued or completed, and the right, privilege or liability may be enforced and any penalty imposed, as if the repeal or amendment had not happened.

(3)Without limiting subsections (1) and (2), the repeal or amendment of a law does not affect—

(a) the proof of anything that has happened; or

(b) any right, privilege or liability saved by the law.

(4)This section does not limit any other provision of this chapter and is in addition to any provision of the law by which the repeal or amendment is made.

(5)This section is a determinative provision.

Note See s 5 for the meaning of determinative provisions, and s 6 for their displacement.

(6) In this section:

liability includes liability to penalty for an offence against the law.

penalty includes punishment and forfeiture.

privilege includes immunity.

right includes capacity, interest, status and title.

Relevant provisions of the Legal Practitioners Act 1970

32. The 2006 Act was an enactment of a model law that was intended to be introduced

throughout Australia and it was in most states and both Territories. It was an endeavour to

introduce uniformity for all lawyers and their clients in Australia irrespective of where

they were practising. The Explanatory Memorandum introducing the 2006 Bill explains

this. The question of jurisdiction to deal with complaints under the current Act applies to

Australian lawyers not just local lawyers. The connection to the ACT was based mainly

on the conduct occurring here. This was the same for all states and the Northern Territory

that introduced the model law.

33. Prior to this initiative the jurisdiction was limited.

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34. In the ACT the relevant provisions were as follows.

35. Section 50 which provided:

50 Complaints (1)The council may make a written complaint to the professional conduct board regarding the professional conduct of a solicitor or the employment conduct of an employee of a solicitor.

(2)Where the council makes a complaint to the professional conduct board, it shall forward to the board—

(a) any documents or information received by the law society in relation to the complaint; and

(b) particulars of any statement relating to the complaint made to the law society by the solicitor, or employee, to whom the complaint relates.

36. The Professional Conduct Board was the equivalent of ACAT. It can be seen that the

communications by members of the public to the Council were considered by it and if

thought appropriate it utilised section 50. The word complaint is confined to the process

by which the Council starts proceedings and is the equivalent of an application for

disciplinary action to ACAT.

37. ‘Solicitor’ for the part that contained section 50 was defined in section 37 as follows:

solicitor means a legal practitioner who—(a) is a member of the law society and was not, at the relevant time, practising solely as a barrister; or(b) holds or, at the relevant time, held a practising certificate.

38. Legal practitioner was defined in section 3 as a person whose name is on the roll of legal

practitioners. The roll is the ACT Supreme Court roll.

39. Part 15A dealt with interstate practitioners. An interstate legal practitioner was one that

had to have a practising certificate or otherwise be entitled to practise in the other state and

whose principal place of business was in that state. Section 191H allowed a complaint

against an interstate legal practitioner as was available for local legal practitioners in

respect of his or her legal practice in the ACT.

40. The Supreme Court could deal with matters involving allegation of misconduct for anyone

on the ACT roll.2

2 see section 67 and the definition of legal practitioner in section 3

18

Basic submissions by the practitioner and issues that arose from it

41. The application of the practitioner details that at no relevant time was the practitioner a

solicitor, interstate practitioner or a member of the Law Society and thus could not have

been the subject of a complaint under the old Act. Thus no power to deal with him for old

conduct was conferred on the Council or the ACAT by section 613 and therefore there

was no jurisdiction for ACAT to deal with the matter or allow amendments under section

421.3 The conduct being referred to in subsection (2) was the conduct described in

subsection (1). The inability to have been dealt with under the earlier Act was not related

to the quality of the conduct but the lack of territorial jurisdiction in that the matter could

not be the subject of a complaint. The attack on grounds 2 and 3 was not maintained. We

have taken this to be a concession that there was jurisdiction to deal with those matters as

the conduct occurred after the new Act. We would have taken some persuasion to have

reached a different view.

42. There was no dispute that under the old Act, the Council could not have made a complaint

to the Board because the practitioner was not one that the Council could deal with by

making a complaint to the Professional Conduct Board because there was no relevant

extra-territorial jurisdiction. It should be remembered that this did not stop a matter being

referred to the Supreme Court.

43. During the course of his argument Mr Orlov who appeared for the practitioner made the

following points.

44. Whilst there was a complaint made by the ACT Revenue, that dealt with post 2006 Act

conduct the application to ACAT by the Council was entirely concerning pre 2006 Act

conduct. Thus the complaint that must be considered is really the complaint that now is

contained in the application not the ACT Revenue complaint. In effect it is really a

complaint made by the Council.

45. That conduct could not have been the subject of a complaint (an application to the Board)

under the old Act.

Submissions of the Council

46. The submissions of the Council are as follows:

3 see paragraph 15 of the practitioner’s application

19

(a) In construing the Act regard should be had to the purpose of the Act set out in

section 6 which includes protection of the public.

(b) It was remedial legislation and should be construed accordingly.

(c) There is no gap, so section 613 did not need to expressly confer power.

(d) Section 384 includes former lawyers and has no time restriction.

(e) Section 387 includes past conduct again with no time restriction.

(f) Section 395 expressly says the conduct may be at any time. It provides a three year

time limit that may be overcome but does not otherwise limit the conduct by time.

(g) Section 410 explains that the application is a step that differs from the complaint.

(h) It is not an official complaint as described in section 383(2)(c).

(i) The Council had jurisdiction to deal with it as it was directed at post Act conduct.

Once such a complaint was received it was open to the Council to bring an

application under section 419 in relation to the complaint and that may involve pre

Act conduct. The phrase ‘in relation to’ was wide enough to include pre Act

conduct.

(j) Section 421 allows amendments even if the matters are more than three years old.

There is no time restriction otherwise in that section.

(k) Section 613 can be ignored because it is common ground 613(1) doesn’t apply.

(l) Its purpose appears to add power not restrict it and the words ‘even if…’ in

subsection (2) demonstrate that its purpose was not to add scope to deal with pre Act

conduct per se but only such pre Act conduct that is not already conferred. The only

suggested example was advertising conduct that used to be frowned on but is no

longer. To be fair to Counsel he had little time to research the point and for reasons

of the need to get on with the hearing it was incumbent on us to decide the point

instanter. Mr Beaumont SC acknowledged that this may not be a good example but

he used it to illustrate a suggested legislative intent.

(m) There is no gap and section 613 doesn’t create one.

20

(n) Section 612 assists in the conclusion that the gap being addressed is directed to the

process to be used.

(o) It was not a case where existing immunities or rights were affected.

(p) There is no retrospective operation as it is merely future action on past events. This

is referring to Pearce and Geddes Statutory Interpretation in Australia 8 th Edition

Lexis Nexis 2014 at [10.4 ] and La Macchia v Minister for Primary Industry (1986)

72 ALR 23 and Re a Solicitors Clerk [1957]1 WLR 1219.

Practitioner’s submissions in reply

47. The practitioner’s submission in reply are as follows:

(a) Common law presumptions, section 84 of the Legislation Act 2001and the principle

of legality require the 2006 Act to be construed so as not to enable what could not

have been done earlier. An express provision would be needed to effect such an

outcome. Section 84(b) means that the repeal of the former Act does not affect the

previous operation of the Act.

(b) Section 395 applies to conduct that the part applies to but must be read with chapter

10. The references to the past are still qualified by the need to consider the

transitional provisions and they are subject to reference to the time the Act

commenced.

(c) The submission is not that it does not apply to past conduct generally but that it does

not apply to past conduct that could not have been the subject of a complaint under

the earlier legislation. It is not submitted that section 613 created the gap but that it

did not fill one that was there.

(d) The incapacity to have made a complaint to the Board under the old Act was not

related to the quality of the conduct but the jurisdiction to deal with it under the old

Act.

(e) In McLaren v Legal Practitioners Disciplinary Tribunal and the Law Society of the

Northern Territory [2010] NTSC 24 (McLaren) at [115] it was pointed out by

4 The parties had not found any case that dealt with this issue under the Act either here or in other jurisdictions but the Tribunal drew to their attention the case of McLaren v Legal Practitioners Disciplinary

21

Martin CJ that ‘complaint’ in section 747(1) (the equivalent of section 613) must be

determined by reference to section 747 in its entirety in the context of the statutory

scheme for transition from the repealed Act to the new Act. He construed it widely

as referring to conduct that had been formally called into question.

Consideration

48. We agree that the 2006 Act is at least in part remedial. It is also in part penal. It is not

necessary to determine if it is substantially one or the other as the construction point may

be resolved without being confined by such distinctions. It would be a matter of concern if

the construction led to an outcome that it was not open at all anywhere to discipline a

person who should be disciplined. Here, as the practitioner was admitted in the ACT, it

was and still is part of the inherent jurisdiction of the ACT Supreme Court to deal with the

matter. It may well be open in other jurisdictions to deal with him at a tribunal level. This

case is only about the availability of a process involving the ACAT.

49. We do not need to decide whether the application of the 2006 Act to conduct that could

not have been taken to the Board under the old Act is retrospective. In one sense it would

be providing future action for past conduct as described in Pearce and Geddes at [10.4 ]

and La Macchia v Minister for Primary Industry (1986) 72 ALR 23 and Re a Solicitors

Clerk [1957] 1 WLR 1219. We doubt that this classification extended to matters relating

to extra-territoriality as opposed to the quality of the conduct.

50. We also do not need to decide if the outcome advanced by the Council was one that

deprived the practitioner of rights or immunities. If it does not strictly do this it is correct

to say that by a figurative stroke of the pen on 1 July 2006 the practitioner could be the

subject of this process when he could not have been beforehand. This outcome appears to

jar with a common understanding of the principle of legality and the various common law

presumptions that inform it.

51. We accept the argument of Mr Orlov that the language in section 395 and the other

provisions where past conduct was included must be read in conjunction with the

transitional provisions and also with section 84 of the Legislation Act 2001. There was no

need for the Act to say expressly that such past conduct does not include pre 2006 Act

Tribunal and the Law Society of the Northern Territory [2010] NTSC 2 a decision of a Full Court. We were later referred to Law Society of New South Wales v Beyer [2007] NSWAET 191 10 but told it did not add anything

22

conduct that was unavailable under the repealed Act. In our opinion if it was intended to

apply now to such conduct it should have been expressly stated. Section 84(1)(b) of the

Legislation Act 2001 continues the operation of the old Act unaffected notwithstanding its

repeal.

52. It seems implicit in McLaren that section 474 of the NT Act was more than merely

enacting the position that would apply anyway. The Explanatory Note about transition

provisions in the Legislation Act 2001 suggests that usually transitional provisions are not

necessary but are sometimes provided to make the position clear. Here it seems in our

opinion that without section 613 the new Act would not have had that effect and it was

necessary.

53. Further, in our opinion to construe section 613 by finding that its sole purpose was to give

the extra jurisdiction following the words ‘even if’ is to ignore section 613(1) and (4). The

example of advertising is wrong. The capacity to deal with such matters is controlled by

the definitions of professional misconduct or unsatisfactory professional conduct both in

the legislation and at common law. What might be regarded as misconduct will change but

that is covered by the existing language and section 613 was not needed for that.

54. In our view the need to enact section 613 points to what it does not include and that is

conduct that could not have been the subject of a complaint to the Board.

55. What is less clear is what might be meant by the word ‘complaint’ which appears in

section 613(1) and 613(2). A complaint under the 1970 Act was a formal application by

the Council to the Board. This is recognised in section 612. Under the current Act it may

be a complaint of the Council or it may be a complaint by a member of the public.

56. As has been mentioned this caused some concern in McLaren. The Court favoured a

broad interpretation.

57. It is understandable that there could be a mixed use of the word. The Act was based on the

model law described earlier and would apply to jurisdictions throughout Australia that all

had different regimes for the discipline of legal practitioners. A complaint in one

jurisdiction may be a different process in another. The core provisions of the model law

were one size fits all. The jurisdiction that could be exercised by the Board under the

repealed Act depends on a complaint under section 50. Here there was none. The

23

complaint under the new Act from the ACT Revenue may have referred to post 2006 Act

conduct but the complaint to ACAT in ground 1 did not. While under section 419 what

may be referred is a matter ‘in relation to’ a complaint, it is going too far to pretend that

what is referred to ACAT is not a complaint about conduct that predates the Act.

58. Mr Orlov solved this quandary by equating the application made by the Council to ACAT

to the word ‘complaint’ in section 613(2). It is true that the complaint by the ACT

Revenue was focussed on post 2006 Act conduct. It drew attention by implication to pre

2006 Act conduct. If the Council had brought an application confined to the post 2006 Act

conduct it could not have been criticised. It may have been dissuaded by the fact that the

ACT AAT decision had been set aside. It chose instead to refer conduct that was not the

gist of the ACT Revenue complaint. It was argued that the application was made in

relation to the ACT Revenue complaint under section 419. This is debatable. In a loose

sense it is correct but it is really a new complaint in the way ground 1 is drafted. As

pointed out by the Council, section 410 shows that there are two different steps in that

there is a complaint followed by the application under the current Act. It was also argued

that section 422 prevented any objection based on such a change. But as Mr Orlov

submitted section 422 must be read as subject to the jurisdictional limits not permitted by

section 613.

59. It seems to us that notwithstanding the disavowal of this being an official complaint, it has

changed in substance so much that it is a complaint of the Council and is not the complaint

of the ACT Revenue. In any event we are of the view that the word complaint must be

construed broadly so that it would include the substance of ground 1 of the application.

60. Finally even if section 613(2) is confined to a complaint under the new Act such as that by

the ACT Revenue it is not section 613(2) that governs what is not permitted. The answer

is that without an express provision that enables the Council and ACAT to deal with pre

Act conduct that cannot be the subject of a complaint under the 1970 Act, there is no

scope for the process to be undertaken.

61. It should be emphasised that this issue relates only to the process that culminates in an

application to ACAT and does not affect the capacity to use the inherent jurisdiction of the

Supreme Court.

Subsequent events

24

62. We informed the parties that we had come to the conclusion that ground 1 should be

dismissed but that we would reserve our reasons. We indicated that we would proceed to

deal with grounds 2 and 3. The Council informed us that it would seek an order by way of

mandamus and in the circumstances asked us to adjourn the matter. We were persuaded

that grounds 2 and 3 would be affected by the absence of ground 1 as the quality of the

conduct would not be seen as grave as was asserted. This was not opposed. Consequently

we made the orders since sent to the parties as follows:

Orders

Grant leave to the respondent to file his application for Interim or Other orders dated

3 February 2017 at the hearing on 6 February 2017.

1. Waive the requirement for service of the application which is heard instanter.

2. Ground 1 of the Further Amended Application for Disciplinary Action (Corrected)

dated 11 October 2016 in OR 20/2013 be dismissed for want of jurisdiction.

3. There be no order as to costs in respect of the interim application.

4. Reserve reasons for the decision.

5. Adjourn the further hearing of the application to a date to be fixed for the provision

of reasons and if required further directions.

………………………………..Senior Member B Meagher SC

Delivered for and on behalf of the Tribunal

25

HEARING DETAILS

FILE NUMBER: OR 20/2013

PARTIES, APPLICANT: Council of the Law Society of the ACT

PARTIES, RESPONDENT: Legal Practitioner D3

COUNSEL APPEARING, APPLICANT Mr Beaumont SC

COUNSEL APPEARING, RESPONDENT Mr Orlov

SOLICITORS FOR APPLICANT Phelps Reid Lawyers

SOLICITORS FOR RESPONDENT N/A

TRIBUNAL MEMBERS: Senior Member B Meagher SC, Senior Member M Brennan, Member G Wright

DATES OF HEARING: 6-7 February 2017