KNAGGS v THE SOLICITORS' STATUTORY COMMITTEE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, MAHONEY and MEAGHER JJA 8 October 1990, 8 October 1990 [1990] NSWCA 108 KEY WORDS: PRACTICE AND PROCEDURE — LEGAL PRACTITIONERS — LAW REFORM PRACTICE AND PROCEDURE — Court of Appeal — assignment of business in the Supreme Court — Judge of Common Law Division (Lusher AJ) refers to the Court of Appeal a challenge by a suspended solicitor to the validity of the order of suspension by the Solicitors' Statutory Committee — Legal Practitioners' Act 1898 providing for Solicitors' Statutory Committee is repealed in 1987 — transitional proceedings apply only to uncompleted matters — reference to Committee deleted from s48(1) — Supreme Court Act 1970 — replaced by reference to Disciplinary Tribunal created by Legal Profession Act 1987 — suspended solicitor seeks order for reassignment of proceedings to Common Law Division — contends that they should remain where assigned by the Act and that he should not be deprived of the entitlement to appellate review of a primary decision on his point of challenge to the orders of the Committee concerning him — Clarke JA, exercising the jurisdiction of the Court of Appeal under s46(1) Supreme Court Act, 1970 declines to reassign the proceedings to the Common Law Division — claimant seeks review of that order pursuant to s46(4) of the Act — held: — dismissing the application: (1) Normally the Court of Appeal will follow the assignment of the business of the Supreme Court provided by the Supreme Court Act 1970 and where a matter is assigned to a Division will require that the matter be decided there so that it has the benefit of a conclusion of the primary judge. Law Society of New South Wales v Weaver [1977] NSWLR 67 referred to; A Barton v Berman [1980] NSWLR 63, 67 approved; (2) Nevertheless the proceedings had been validly referred to the Court of Appeal by a judge of the Supreme Court and it was for the claimant to persuade the Court of Appeal to assign it back to a Division pursuant to s51(4) Supreme Court Act; (3) The claimant had to show that Clarke JA's exercise of his discretion under that section had miscarried; (4) As the point of challenge was a pure question of law with no review of facts it was suitable for resolution by the Court of Appeal and it had not been shown that the decision of Clarke JA was wrong; (5) Accordingly, the application for review should be dismissed. LEGAL PRACTITIONERS — suspended solicitor — belated challenge to order of Solicitors' Statutory Committee — trial judge refers to Court of Appeal — Judge of Appeal declines to reassign proceedings to the Common Law Division — on application for variation or discharge of that order by the Court of Appeal — held: The decision should stand reference by Kirby P to the long established role of the Court of Appeal in matters affecting the discipline of legal practitioners. LAW REFORM — amendment to legislation governing the discipline of solicitors — Legal Profession Act 1987 assignment to Court of Appeal — suggestion by Kirby P of possible need to provide expressly for residual cases completed in the former Solicitors' Statutory Committee which come before the Supreme Court on applications for judicial review. Legal Practitioners' Act 1898, s76. Legal Profession Act 1987. Supreme Court Act, s46, s48, s51. Supreme Court Rules, Pt12, R1 and r2. ORDER Motion dismissed; Claimant to pay opponent's costs. 2 UNREPORTED JUDGMENTS Kirby P Mr Douglas Knaggs (the claimant) is a solicitor under suspension. The Solicitors' Statutory Committee on 19 June 1985 ordered that he be suspended from the Roll of Solicitors. That Committee was established by the Legal Practitioners Act 1898. It had conducted an inquiry and investigation into Mr Knaggs' affairs as a solicitor pursuant to s76 of that Act. It had reached conclusions adverse to him. At the time of the order by the Committee, and until the amendments to the law governing legal practitioners effected by the Legal Profession Act, 1987 (the 1987 Act), arrangements had been made for the assignment of proceedings on appeal from, or on review of, the Committee when brought in the Supreme Court. By s48(1)(a)(vili) of the Supreme Court Act 1970, the Committee was a "specified tribunal". Further, by Pt12 R1 of the Supreme Court Rules, there was an assignment to the Court of Appeal of proceedings in the Supreme Court in the exercise of the disciplinary power of the Court with respect to barristers and solicitors. These arrangements were changed in 1987 following the passage of the 1987 Act. The changes came into force on 12 June 1987 when the Royal Assent was given to that Act. Under the 1987 Act the Solicitors' Statutory Committee was replaced by the Disciplinary Tribunal constituted by s128 of that Act. However, also under the 1987 Act, the Solicitors' Statutory Committee continued in existence for the purpose of uncompleted proceedings before it. Transitional provisions were specifically enacted to govern outstanding matters in the Supreme Court affecting the Solicitors Statutory Committee. See eg Schedule 8 CL18 to the 1987 Act. By such provisions, the arrangements in respect of that Committee which formerly obtained under s48 of the Supreme Court Act and ptl2 of the Rules, were preserved for such cases. In contrast, s48 of the Supreme Court Act was amended. The amendment deleted reference to the Solicitors' Statutory Committee in that section. The Disciplinary Tribunal created by the 1987 Act, and not the Committee now appears as the "specified tribunal" for the purposes of that section. The Supreme Court Act is now silent in respect of the Solicitors' Statutory Committee. The Rules were also amended, as I have said. It would appear that the adaptations of the Act and the Rules did not foresee the precise situation which has arisen in the present case. Somewhat belatedly the claimant wishes to challenge the validity of the order made by the Committee concerning him. He does not seek to do so on the merits of the facts on the basis of which the order was made. His argument is that an irregularity occurred in the making of that order which affects its validity. He contends that the irregularity contaminated the order and rendered the suspension of his name from the Roll a nullity in law. The precise ground of the nullity is said to be the fact that the Committee, as constituted when the orders were pronounced, was not the same as the Committee which heard the evidence. This Court has not been concerned with the legal merits of the point which the claimant wishes to argue. It is a technicality. However it cannot be dismissed as such, having regard to other cases of an analogous kind which may be illustrated by reference to such decisions as Ex Parte Currie: Re Dempsey; (1969) 70 SR (NSW) 443; 91 WN (NSW) 34; [1970] NSWLR 617; John Fairfax and Sons Limited v Police Tribunal of New South Wales (1986) 5 NSWLR 465 and Palmer v Clark (1989) 19 NSWLR 158, 166. URJ KNAGGS v THE SOLICITORS' STATUTORY COMMITTEE (Kirby P) 3 In due course the issue raised by the claimant will need to be determined judicially within the Supreme Court. To contest the point, the claimant issued a summons out of the Common Law Division. In it he sought the following relief which still remains that which is relevant to his case: (1) An order that the proceedings before the Committee be deemed dismissed; and (2) A declaration that the purported Statement of Findings and Order by the Committee is a nullity. There would be no doubt that had such a summons been taken out before the commencement of the 1987 Act, it would have been returned in the Court of Appeal pursuant to the Supreme Court Act and the Rules of the Court. However, following the deletion of the reference to the Committee from the Act, and the change in Ptl2 of the Rules, the Registry returned the summons where the claimant had set the venue - namely in the Common Law Division. The correctness of that return was never challenged. Both the Solicitors' Statutory Committee (the first opponent) and the Law Society of New South Wales (the second opponent) appeared in the Common Law Division and in this Court to answer the summons and to contest the relief sought by the claimant. The proceedings in the Common Law Division were duly listed before Lusher AJ. His Honour considered that the matter was covered by a decision of this Court in Law Society of New South Wales v Weaver [1977] 1 NSWLR 67 (CA). He ordered that the proceedings be removed to the Court of Appeal. The proceedings, so removed, were listed before Clarke JA exercising the jurisdiction of the Court of Appeal pursuant to s46(1) of the Supreme Court Act. His Honour considered a motion by the claimant to reassign the proceedings to the Common Law Division. In reasons delivered on 10 September 1990, Clarke JA dismissed that motion. He pointed out that no appeal had been brought from Lusher AJ's orders removing the proceedings into the Court of Appeal. He therefore had before him a valid proceeding in which the claimant was, in effect, seeking to have yet another reassignment within the Supreme Court. The power to reassign a proceeding in the Court of Appeal to a Division exists under s51(4) of the Supreme Court Act. That subsection confers a wide discretion on the Court of Appeal. Such discretion fell to be exercised by Clarke JA, within the terms of s51(4) of the Act. The reasons which led Clarke JA to dismiss the motion were essentially two. They can be summarised as follows: 1. No clear legislative intent could be evinced in the change in the legislation to remove the Statutory Committee from its relationship with the Court of Appeal. What had occurred was a "hiatus" in the legislation. As the claimant's proceedings were now validly before the Court of Appeal by virtue of an order of a judge of the Supreme Court which had not been set aside, it was for the Court of Appeal to decide whether good reason had been shown why such proceedings should be sent back to the Common Law Division. In his Honour's opinion such a reason had not been established; and 2. The suggested reason upon which the claimant relied was that he would lose the opportunity of an appeal as of right to the Court of Appeal from a primary decision if the proceedings were tried for the first time in the Court of Appeal. Clarke JA decided that this submission did not require a different conclusion. The substantive point raised by the claimant was "highly technical". It presented an issue of pure law. No detailed review of the facts would be required. Accordingly, it was a question "singularly appropriate" for determination by the Court of Appeal. 4 UNREPORTED JUDGMENTS The claimant has now asked this Court, as presently constituted, to discharge or vary the orders made by Clarke JA. He has urged us to do so pursuant to the Court's powers under s46(4) of the Supreme Court Act. This process is not an appeal, as such. However, it seems to me that the claimant must show that Clarke JA's discretion miscarried. Otherwise, every discretionary practice decision made by a Judge of Appeal under s46(1) sitting alone would be open to complete reargument as if the order made under that section had never been pronounced. I do not believe that such was the intention of the Act, providing as it does in s46 for the economic deployment of the Judges of Appeal. No error has been shown in the exercise by Clarke JA of the discretion of the Court of Appeal under s51(4) of the Supreme Court Act. In fact, I agree with the two reasons which Clarke JA assigned as to why he would not exercise the discretion to reassign the matter yet again to the Common Law Division. In doing so, I would reserve the question of the correctness of Lusher AJ's decision to refer the proceedings to the Court of Appeal in the first instance. The claimant has pointed out that this Court has generally adhered to the assignment of proceedings as provided under the Act and the Rules. That is true. The Court has normally required that questions of law should be determined by the primary judicial officer before the Court of Appeal will consider the matter. This is certainly the normal scheme of the Supreme Court Act as it has been expounded in several cases. See for example A Barton v Berman [1980] 1 NSWLR 63. In that case Hope JA, at 67, speaking for the Court said that particularly where technical issues are involved, it is "all the more reason why the Court should have the benefit of the [primary judicial officer's] concluded views on it". In this case, in the course followed, this Court will not have Lusher AJ's views or those of any other judge of the Common Law Division upon the point of law which the claimant wishes to advance. The claimant also points out that Lusher AJ, if acting under Pt12 rule 2 of the Supreme Court Rules, did not state with exact precision the question to be decided by the Court of Appeal. Nor did his Honour state any "special circumstances" which existed and which rendered it desirable for the Court to make an order under the Part assigning the matter to the Court of Appeal. Nevertheless, he properly conceded that the point to be determined was clear enough from the face of the summons which he had filed. However these objections may be, Lusher AJ's order was undoubtedly valid. It may be sustained on a number of bases. It was the order of a judge of a superior court never set aside or varied. The proceedings were thus validly before the Court of Appeal when they came before Clarke JA. Accordingly, the claimant had the task of persuading his Honour to exercise the Court of Appeal's undoubted discretion to remit the matter to the Common Law Division. For the two reasons stated, Clarke JA determined that such reason had not been shown. Because it is my view that no error has been shown in the decision of Clarke JA (and, indeed, that his Honour's decision was right) the result must be that the order which his Honour made will stand. What has occurred in the drafting of the 1987 Act and the amendment to the Supreme Court Rules (including the transitional legislation) would appear to be an oversight. That oversight should be drawn to the attention of Parliament, even though it cannot be expected, as time passes, that many cases of the present kind will arise. In addition to the reasons given by Clarke JA there are further reasons why it is appropriate to keep the matter in the Court of Appeal once the proceedings have been validly assigned here. The additional reasons include: the established URJ = KNAGGS v THE SOLICITORS' STATUTORY COMMITTEE (Meagher JA) 5 role of the Court of Appeal in this State in supervising the legal profession and the desirability of securing a speedy hearing and finality in determining all questions of fact and law, having regard to the public interest in the status of the legal practitioner concerned. I therefore propose that the motion for variation or discharge of Clarke JA's orders be dismissed. The claimant must pay the opponent's costs. Mahoney JA The matter is to be treated, as it was treated before Clarke JA, viz, as an application for prerogative relief against the orders made or the essential findings of the Statutory Committee, seeking that those orders or findings be treated as a nullity. On that basis, Lusher AJ had jurisdiction to do what he did and Clarke JA was correct in doing what he did. Viewed in that way, it is possible to understand what has taken place. On that basis, I agree with the orders proposed. Meagher JA Once it is clear that Lusher AJ's decision is not on appeal before us and that no error has been shown to exist in Clarke JA's judgment, the result is inevitable: the motion must be dismissed. 1. Motion dismissed; and 2. Claimant to pay opponent's costs. The Claimant appeared in person Counsel for first Opponent: C Logan (Solicitor) Solicitors first Opponent: Murphy and Moloney Counsel for second Opponent: LW Pierotti (Solicitor) Solicitors second Opponent: Rosemary MacDougall