BARWICK v LAW SOCIETY OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MASON P, PRIESTLEY and SHELLER JJA 28 April 1998, 16 July 1998 [1998] NSWCA 31 STATUTORY INTERPRETATION — Legal Profession Act 1987 — proper construction of s138, s155 and s167 The claimant brought proceedings against the Law Society of New South Wales (the Law Society) and the Legal Services Tribunal (the Tribunal) for declarations and an order prohibiting or otherwise restraining the Tribunal from proceeding with a hearing into allegations against the claimant or a permanent stay of those proceedings. The Claimant submitted that for a valid filing of an Information under s167 of the Legal Profession Act 1987 the following preconditions need to be met. First, that there be a valid complaint under Ptl0, Div 3 and any Information must be with respect to such a complaint. In this respect, for the Information to be valid, the complaint must have been initiated within three years of the conduct complained of Further, it was submitted that s167A does not authorise an amendment of an Information if the amendment has the effect of depriving the Information of the character of being one with respect to the complaint or it results in an original Information which is not one with respect to the complaint or the amendment adds allegations which could not have been the subject of a valid complaint. Second, that the initiation of proceedings must be proceeded by a proper investigation under Pt10. Held: 1. The proper construction of the Act is that the time limitation in s138 does not apply to complaints initiated by a Council or by the Commissioner. 2. $155 requires that until the Council has completed an investigation the Council cannot institute proceedings in the Tribunal. The effect of s155 is to provide the legal practitioner with important protection. This would be undermined if before the investigation were completed, proceedings were instituted in the Tribunal with respect to the complaint. 3. The Act does not require that the investigation be begun after the complaint has been initiated. The investigation can be begun and can be completed before any complaint is initiated. 4. The language of s167(1) makes it clear that the allegations of conduct which base the Information cannot extend beyond the subject of the complaint. However, on application by the Council or the Commissioner, the Tribunal may vary an Information pursuant to s167A if it is satisfied that it is reasonable to do so having regard to whether such variation will affect the fairness of the, proceedings. Authorities: Council of the Law Society of New South Wales v Nutt (unreported) Court of Appeal 24 August 1995 Carver v Law Society of New South Wales (1998) 43 NSWLR 71 Herron v Rathmines & Rathgar Improvement Commissioners [1892] AC 498 Millar v Taylor [1769] 4 Burr 2303; 98 ER 201 R v Hertford College [1878] 3 QBD 693 Mason P I agree with Sheller JA. Priestley JA I agree with Sheller JA. 2 UNREPORTED JUDGMENTS Sheller JA INTRODUCTION By summons filed on 19 November 1997 the claimant, Ross Garfield Barwick, brought these proceedings against the Law Society of New South Wales (the Law Society) and the Legal Services Tribunal (the Tribunal) for declarations and an order prohibiting or otherwise restraining the Tribunal from proceeding with a hearing into allegations against the claimant particularised in an Information filed in the tribunal. on 30 September 1996 and an Amended Information filed in the Tribunal on 24 July 1997. Alternatively, the claimant sought a permanent stay of those proceedings. The Tribunal filed a submitting appearance save as to costs. BACKGROUND By letter dated 14 July 1995 Mr D K Barton, a solicitor in the Professional Standards Department of the Law Society, wrote to the claimant stating under the heading "Re Trust Account Inspection" that on 8 June 1995 a joint sitting of the Society's Professional Conduct Committees had resolved that a complaint be initiated against him pursuant to s135(1) of the Legal Profession Act 1987 (the Act) in relation to matters which were described in four numbered paragraphs under the heading "Professional Misconduct". The letter went on to say that a copy of the complaint had been forwarded to the Legal Services Commissioner (the Commissioner) pursuant to s135 of the Act and that the Committee [sic] subsequently resolved that the Committee was satisfied there was a reasonable likelihood that the claimant would be found guilty by the Tribunal of professional misconduct and that proceedings be instituted in the Tribunal pursuant to s155(2) of the Act. On the same date Mr Barton wrote to the claimant's former partner, Roman Alexander Dechnicz, informing him of the Professional Conduct Committee's resolutions of 8 June 1995 that a complaint be initiated against him pursuant to s135(1). S157 of the Act provides that a Council may delegate to any of its committees the exercise of any or all of its functions under Div 5 of Pt10, which concerns the investigation of complaints, provided the delegation is to a committee whose presiding member is a member of the Council. There was no challenge to the power of the committees referred to to exercise the functions described. On 5 September 1996 the Professional Conduct Committees of the Law Society at a joint meeting resolved to adopt the form of the Information which became the Information filed in the Tribunal on 30 September. The Council of the Law Society (the Council), which is by s3(1) of the Act a Council within the meaning of the Act, informed the Tribunal "of a complaint of professional misconduct" against the claimant, the grounds of which were set out in five numbered paragraphs and particularised in annexures to the Information. On 30 September 1996 the Council also filed an Information in the Tribunal "of professional misconduct" against Mr Dechnicz. On 15 April 1997 the Tribunal made an order to the effect that there be a joinder of the Information's filed in the two sets of proceedings. On 17 July 1997 the Council passed resolutions referable to s135(1) and s155(2) of the Act in support of what became the amended Information filed in the Tribunal on 24 July 1997. The amended Information contained six grounds. On | August 1997 the Tribunal granted the Council leave in each set of proceedings to amend the Information in accordance with the Amended Information's. URJ BARWICK v LAW SOCIETY OF NEW SOUTH WALES (Sheller JA) 3 TRIBUNAL HEARING On 17 November 1997 the hearing in the Tribunal began. The claimant and Mr Dechnicz applied to have part of the amended ground 5 and the whole of the amended ground 6 of the Amended Information (or alternatively, so much of it as relied on conduct before July 1994) stayed as an abuse of process. The Tribunal announced that, for reasons to be published at a later date, it proposed to make an order granting, in part, the relief sought by the claimant and Mr Dechnicz. On the following day, before the Tribunal published reasons for its rulings, the Law Society made an application that the order made or proposed to be made by the Tribunal giving effect to the ruling be set aside. After hearing further argument the Tribunal decided to set aside its ruling and to rule, instead, that the solicitors' application for a stay be dismissed and that the Tribunal proceedings continue without any amendment to the Amended Information's filed against the respective solicitors. After publishing reasons in support of its second ruling, the Tribunal, on the application of the claimant, adjourned the Tribunal proceedings to 19 November 1997 to permit the claimant to begin proceedings in the Court of Appeal. On the same date the Summons was filed in this Court. This Court made orders, inter alia, to the effect that: (i) Mr Dechnicz be added as the third opponent in the proceedings; (ii) Mr Dechnicz be granted leave to submit as to the orders of the Court (save as to costs), reserving an entitlement to be heard as to the form of such orders as might be made by the Court; and (iii) The Tribunal proceedings be stayed pending determination of the Court proceedings. In the light of these orders the Tribunal proceedings were adjourned pending determination of the proceedings in the Court of Appeal. Mr Dechnicz took no part in the hearing of the proceedings in this Court. LEGAL PROFESSION ACT 1987 On 1 January 1988 the Act (incorporating a form of "Pt10" replaced on 1 July 1994) came into force in place of the Legal Practitioners Act 1898. As from 1 July 1994 the Legal Profession Reform Act 1993 omitted the old and inserted a new Pt10 in the 1987 Act. The centre piece of the 1993 reforms was the creation of a Legal Services Commissioner; see the explanatory memorandum to the Bill. As from 1 April 1997 the Legal Profession Amendment Act 1996 amended s167 and inserted s167A. The claimant relied upon: (i) s138(1) of the Act to say that the complaints made against him were, at least in substantial part, out of time; (ii) upon s148(1) and s155(1), to say that the Council was obliged to conduct an investigation into each complaint after it had been initiated by the Council and was prevented from instituting proceedings with respect to any complaint until it had completed the investigation; and (iii) upon s167(1), to submit that both the original Information and the Amended Information were in part or wholly defective because they raised matters not included in any complaint. Pt10 of the Act is headed "Complaints and Discipline" and divided into ten divisions of which Div 1, which states the objects of the Part and includes Definitions, Div 3 "Complaints about legal practitioners", Div 5 "Investigation of complaints", and Div 8 "Hearing and determinations by Tribunal" are important to this appeal. $123 in Div | states the general objects of Ptl0, namely: 4 UNREPORTED JUDGMENTS "(a) to redress the consumer complaints of users of legal services; and (b) to ensure compliance by individual legal practitioners with the necessary standards of honesty, competence and diligence; and (c) to maintain at a sufficiently high level the ethical and practice standards of the legal profession as a whole." $124 and s125 state the objects of Ptl0 relating respectively to the users of legal services and to the providers of legal services. The first object stated in 124 is: "(a) to give every person the right to complain about the conduct of legal practitioners;" The first object stated in 125 is: "(a) to ensure that the rules of natural justice (being rules for procedural fairness) are applied to any disciplinary proceedings taken against legal practitioners;" $126 is the definition section and provides that in Pt10 "complaint" means "a complaint made under Division 3." This definition is qualified by s6 of the Interpretation Act 1987 which provides that definitions that occur in an Act apply to the construction of the Act "except in so far as the context or subject matter otherwise indicates or requires." $134, s135 and s136, the first three sections of Div 3, which is concerned with complaints about legal practitioners, stipulate three sources of complaint. S134 provides, so far as presently material: "Right to make a complaint to Commissioner (1) Any person may make a complaint to the Commissioner about the conduct of a legal practitioner." $135 and s136 provide as follows: "Complaints made by or to Council 135. (1) A Council may initiate a complaint against any legal practitioner under this Part. (2) A copy of any such Complaint is to be forwarded immediately to the Commissioner. (3) A complaint that is made to a Council instead of to the Commissioner is to be forwarded immediately to the Commissioner by the Council. Complaints made by Commissioner 136.11) The Commissioner may initiate a complaint against any legal practitioner under this Part. (2) Any such complaint is, for the purposes of this Part, taken to have been made to the Commissioner." $137 and s138 provide: "How complaint made 137. A complaint: (a) must be in writing; and (b) must identify the complainant and the legal practitioner against whom the complaint is made; and (c) must give particulars of the alleged conduct of the legal practitioner that is the subject of the complaint. URJ BARWICK v LAW SOCIETY OF NEW SOUTH WALES (Sheller JA) 5 When complaint made 138. (1) A complaint may only be made within 3 years after the conduct is alleged to have occurred. (2) However, the Commissioner may accept a complaint made after that time if. (a) the Commissioner is satisfied that it is just and fair to do so having regard to the delay and the reason for the delay; or (b) the Commissioner is satisfied that the complaint concerns an allegation of professional misconduct and that it is necessary in the public interest to investigate the complaint." $140 and s141 provide: "Further particulars 140. (1) The Commissioner: (a) may require further particulars of a complaint to be given; and (b) may require the complaint, or any further particulars, to be verified by statutory declaration. (2) The requirement is to be notified in writing to the complainant and is to specify a reasonable time for compliance. Summary dismissal of complaints 141. The Commissioner may dismiss a complaint without referring to the appropriate Council: (a) if further particulars of the complaint are not given, or the complaint or the further particulars are not verified, as required by the Commissioner; or (b) if the complaint is vexatious, misconceived, frivolous or lacking in substance." In Div 5, which concerns investigation of complaints, s148, so far as presently material, provides: "Investigation of complaints by Council (1) A Council must, subject to this section, conduct an investigation into each complaint referred to it by the Commissioner or initiated by the Council. (2) A Council may dismiss a complaint without investigation if further particulars of the complaint are not given, or the complaint or the further particulars are not verified, as required by the Council. (3) This section does not apply to a complaint which is taken over by the Commissioner under s147A, a complaint which is referred to an independent investigator under s151 or a complaint which is referred only to mediation." S155, so far as presently material, provides: "Decision after investigation of complaint (1) After a Council or the Commissioner has completed an investigation into a complaint against a legal practitioner, the complaint is to be dealt with in accordance with this section. (2) The Council or the Commissioner must institute proceedings in the Tribunal with respect to the complaint against the legal practitioner if satisfied that there is a reasonable likelihood that the legal practitioner will be found guilty by the Tribunal of unsatisfactory professional conduct or professional misconduct. 6 UNREPORTED JUDGMENTS (3) However, if the Council or the Commissioner is satisfied that there is a reasonable likelihood that the legal practitioner will be found guilty by the Tribunal of unsatisfactory professional conduct (but not professional misconduct), the Council or the Commissioner may instead: (a) reprimand the legal practitioner if the legal practitioner consents to the reprimand; or (b) dismiss the complaint if satisfied that the legal practitioner is generally competent and diligent and that no other material complaints have been made against the legal practitioner. (4) The Council or the Commissioner is to dismiss the complaint against the legal practitioner if satisfied that there is no reasonable likelihood that the legal practitioner will be found guilty by the Tribunal of either unsatisfactory professional conduct or professional misconduct." S156 provides: "Record of decision after investigation of complaint A Council or the Commissioner must cause a record of its decision with respect to a complaint, together with the reasons for the decision, to be kept in respect of each investigation conducted under this Division." In Div 8, which concerns the hearing and determination by the Tribunal, s167, so far as presently material, provides: "Institution of proceedings and hearings (1) Proceedings may be instituted in the Tribunal with respect to a complaint against a legal practitioner by an information laid by the appropriate Council or the Commissioner in accordance with this Part. (2) The Tribunal is to conduct a hearing into each allegation particularised in the Information." S167A provides: "Tribunal may vary an information (1) 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. (2) Without limiting subs(1), when considering whether or not it is reasonable to vary an information, the Tribunal is to have regard to whether varying the information will affect the fairness of the proceedings." During the course of this judgment it will be necessary to refer to other sections to assist in dealing with the arguments put to the Court on this application. THE CLAIMANT'S SUBMISSIONS The claimant put his argument under five headings. 1. Although the jurisdiction of the Tribunal is invoked by the filing of an Information under s167 there are necessary preconditions to the valid and effective filing of an Information: first, that there be a valid complaint under Pt10, Div 3 and any Information must be with respect to such a complaint; and secondly, that a proper investigation of such complaint under the earlier provisions of Pt10 has preceded the initiation of proceedings. URJ BARWICK v LAW SOCIETY OF NEW SOUTH WALES (Sheller JA) 7 2. In order to found a valid Information, a complaint must have been made or initiated within three years of the conduct about which it is made or initiated, unless the Commissioner has made a decision to accept the complaint out of time under s138(2). 3. While s167A authorises additions to or omissions from allegations in the original Information, it does not authorise an original Information which is not one with respect to the complaint nor additions or omissions which have the effect of depriving the Information of the character of being one with respect to the complaint nor the addition of allegations which could not have been the subject of a valid complaint. 4. The original Information filed in the Tribunal was not, at least in a very large part, one with respect to a complaint because the first complaint was, in large part, in respect of conduct which occurred more than three years before it was initiated and the Commissioner had not made a decision to accept it out of time under s138(2). To the extent that the original complaint was about conduct more than three years old, it was not a valid complaint. 5. The amended Information was likewise not validly instituted because, first of all, it was in respect of conduct which was not the subject of a valid complaint, it being, in large part, in respect of conduct which occurred more than three years before the second. complaint was initiated and there having been no decision to accept it out of time. Second, because it, too, was instituted in the Tribunal without a proper investigation under the Act of the second complaint. COMPLAINTS AND DISCIPLINARY PROCEEDINGS Before dealing with these submissions I will state how, in my opinion, Pt10 of the Act, so far as it is relevant to these proceedings, operates. I recognise that the language is not always precise. This is demonstrated by a consideration of the word "complaint", which, in this context, usually means an accusation or charge or statement of injury or grievance laid before a tribunal or other body for the purpose of prosecution or redress. Div 3 of Pt10 contemplates three sources of complaint about legal practitioners. These are a complaint by "any person" (s134(1)), a complaint by a Council (s135(1)), and a complaint by the Commissioner (s136(1)). Those three subsections draw a distinction between, on the one hand, the making a complaint to either the Commissioner (s134(1)) or the Council (s135(3)) and, on the other, the initiating of a complaint by the Council or the Commissioner, though the second is, for the purposes of Pt10, taken to have been made to the Commissioner (s136(2)). S$171J(3) refers to the complaint "made by the Commissioner or a Council." The making or initiating of a complaint is a formal step. $137 requires that the complaint: (a) must be in writing; and (b) must identify the complainant and the legal practitioner against whom the complaint is made; and (c) must give particulars of the alleged conduct of the legal practitioner that is the subject of the complaint. The sections that follow in Div 3 do not always distinguish between the complaint made by any person to the Commissioner or to a Council and the complaint a Council or the Commissioner initiates, unless such a distinction is to be found in the use of the word "made" in association with "complaint". $136(2) 8 UNREPORTED JUDGMENTS provides that any complaint initiated by the Commissioner shall be taken to have been made to the Commissioner. There is no similar provision in relation to a complaint initiated by a Council. Time Limitation $138(1) provides that a complaint "may only be made within three years after the conduct is alleged to have occurred". Subs(2) enables the Commissioner to "accept" a complaint "made" after that time if the Commissioner is satisfied about matters therein referred to. The acceptance by the Commissioner of a complaint suggests that the complaint was made to the Commissioner and was, therefore, a complaint made by a person under s134(1) or perhaps a complaint made to a Council and forwarded to the Commissioner by the Council pursuant to s135(3), but not a complaint initiated by a Council or by the Commissioner, despite s136(2). I would read s138(1) as referring only to a complaint "made", that is by a person under s134(1), and not a complaint "initiated" by a Council or by the Commissioner. This seems sensible and is explained by a need to prevent stale complaints except to the extent that they are initiated by a Council, by the Commissioner or accepted by the Commissioner if the Commissioner is satisfied that it is just and fair to do so, having regard to the delay and the reason for the delay, or that the complaint concerns an allegation of professional misconduct and it is necessary in the public interest to investigate the complaint. Before the omission of the original Pt10 and the insertion of the new Pt10, including s138 there was no statutory limit on the time within which a complaint might be made even though s130(1) in the original Pt10 enabled "a person" to make a complaint to the appropriate Council alleging that a legal practitioner was guilty of conduct that might constitute unsatisfactory professional conduct or professional misconduct. The Attorney General in the Second Reading Speech for the Legal Professional Reform Bill 1993 which substituted the new Pt10 said only: "New s138 provides that complaints must be brought within three years of the conduct which gives rise to the complaint. This is a reduction from the current six year period but it has been provided that the Commissioner may allow a complaint out of time where it is just and fair to do so having regard to the delay, or where the matter concerns professional misconduct and the Commissioner believes it to be in the public interest to investigate the complaint." The reference to a six year period was a reference to s139 the equivalent section in the original Bill. Under the same heading that section provided: "(1) A complaint may only be made within six years after the unsatisfactory professional conduct or professional misconduct is alleged to have occurred. (2) This section does not apply to a complaint about professional misconduct made by the Commissioner or a Council." As it became law the period for making a complaint was reduced from six years to three years and subs(2) was omitted to be replaced by a subs(2) conferring power upon the Commissioner to accept a complaint out of time if certain conditions are met. In Herron v Rathmines & Rathgar Improvement Commissioners [1892] AC 498 at 501-2 Lord Halsbury LC said that he very heartily concurred with the language of Fitz Gibbon LJ that we "cannot interpret the Act by reference to the Bill, nor can we determine its construction by any reference to its original form". In Millar v Taylor [1769] 4 Burr 2303 at 2332; 98 ER 201 at 217 Willes J said: URJ BARWICK v LAW SOCIETY OF NEW SOUTH WALES (Sheller JA) 9 "The sense and meaning of an Act of Parliament must be collected from what it says when passed into law; and not from the history of changes it underwent in the house where it took its rise. That history is not known to the other house or to the Sovereign". The alterations made during the passage of legislation through committee are, as the court said in R v Herffiord College [1878] 3 QBD 693 at 707 "wisely inadmissible to explain it". See generally Craies on Statute Law, 7" ed, at 129. In the interpretation of a provision of an Act, if any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision, s34(1) of the Interpretation Act 1987 allows consideration to be given to that material - (a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act and the purpose or object underlying the Act); or (b) to determine the meaning of the provision - (i) if the provision is ambiguous or obscure; or (ii) if the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act and the purpose or object underlying the Act) leads to a result that is manifestly absurd or is unreasonable. Compare Catlow v Accident Compensation Commission (1989) 167 CLR 543 at 549. With some hesitation and despite the strictures in the judgments to which I have referred, I have not put aside altogether the form of the equivalent section in the Bill. However, I have come to the conclusion that the new subs(2) was in a form which could be seen as making unnecessary subs(2) in the Bill for the reasons which follow. The claimant's argument that s138 limited the time within which a complaint may be initiated by a Council finds some support in the definition of complaint in s126. Since that defines "complaint" as meaning "a complaint made under Division 3", it is said that to make Ptl0 work this phrase must always include a complaint which a Council or the Commissioner has initiated and therefore s138(1) limits the time within which a complaint so initiated may be made. The definition is an awkward one. In many instances the word complaint in Ptl0 can appropriately be read as complaint made by any person or initiated by a Council or the Commissioner; see for example s148(1) which requires the Council to conduct an investigation into "each complaint referred to it by the Commissioner or initiated by the Council." The definition becomes awkward in the expressions "any person may make a complaint' (any person may make "a complaint made under Div 3"), a Council may initiate a complaint against any legal practitioner under this Part", *the Commissioner may initiate a complaint against any legal practitioner under this Part". In these examples the Interpretation Act qualification of the definition must be called in aid. I do not think the definition can be allowed to distort what seems to me to be the intended meaning of s138. Even though such a complaint for the purposes of Pt10 is to be taken as having been made to the Commissioner, it could not have been intended that, if the Commissioner decided to initiate a complaint more than three years after the conduct was alleged to have occurred, s138(2) should be read as making the complaint invalid unless the Commissioner was satisfied of the matters required by para(a) and para(b) and "accepted" the complaint. The definition of "complaint" does not help the argument. It is absurd to read s138(1) 10 UNREPORTED JUDGMENTS as meaning "a complaint made under Division 3 may only be made within three years after the conduct is alleged to have occurred." S138 is the first of five sections up to and including s142, which, although not expressly limited to claims made, sensibly understood, could only be dealing with complaints made by "any person" under s134(1). Thus, s139 (1) enables a complainant who has suffered a loss because of the conduct of the subject of the complaint to request a compensation order. $140 enables the Commissioner to require further particulars of a complaint to be given and verified by statutory declaration. $141 enables the Commissioner to dismiss a complaint without referring it to the appropriate Council if particulars are not given, the complaint or further particulars are not verified, or the complaint is frivolous or vexatious. $142 enables the Commissioner to refer a complaint to the appropriate Council, to recommend investigation or mediation or both and to require the complainant to provide further particulars. The provisions of these sections cannot apply to complaints initiated by the Commissioner or, I would have thought, by a Council. In my opinion, s138 does not apply to complaints initiated by a Council or by the Commissioner. Investigation There could be no doubt that s148 requires a Council to conduct an investigation into each complaint referred to it by the Commissioner or initiated by the Council subject to the Council's power to dismiss the complaint without investigation if further particulars of the complaint are not given or not verified, provisions applicable in cases of referral pursuant to s142. S147A enables the Commissioner to conduct an investigation into a complaint instead of referring it to a Council for investigation or to take over the investigation of a complaint from a Council. $155(1) provides that after a Council or the Commissioner has completed an investigation into a complaint against a legal practitioner, the complaint is to be dealt with in accordance with that section. Subs(2) provides that the Council or the Commissioner must institute proceedings in the Tribunal, with respect to the complaint against the legal practitioner, if satisfied that there is a reasonable likelihood that the practitioner will be found guilty by the Tribunal of unsatisfactory professional conduct or professional misconduct. Subs(3) qualifies this, if the Council or the Commissioner is satisfied that there is a reasonable likelihood that the legal practitioner would be found guilty by the Tribunal of unsatisfactory professional conduct (but not professional misconduct). Subs(4) requires the Council or the Commissioner to dismiss the complaint against the legal practitioner if satisfied there is no reasonable likelihood that the legal practitioner will be found guilty by the Tribunal of either unsatisfactory professional conduct or professional misconduct. The claimant submitted that until this investigation is completed the Council cannot institute proceedings in the Tribunal. I agree. Proceedings must be instituted in the Tribunal if the Council or the Commissioner is satisfied that there is a reasonable likelihood that the legal practitioner will be found guilty by the Tribunal of professional misconduct, and the complaint dismissed if it is satisfied that there is no such likelihood. The complainant may apply to the Commissioner for a review of a Council's decision to dismiss a complaint made by the complainant or to reprimand the legal practitioner because of the complaint the under Div 6 "Review of Councils' Decisions". In short, the Act is concerned to ensure that complaints investigated by a Council should go before the Tribunal if there is a reasonable likelihood of success but be dismissed if there is not. I do URJ BARWICK v LAW SOCIETY OF NEW SOUTH WALES (Sheller JA) 11 not think, despite the language, that there is a hiatus between the case where the Council is satisfied there is a reasonable likelihood and where the Council is satisfied that there is no reasonable likelihood that the practitioner would be found guilty. I read s155 as giving the legal practitioner important protection after the investigation has been completed. If the Council or the Commissioner is satisfied that there is no reasonable likelihood that the legal practitioner will be found guilty by the Tribunal of unsatisfactory professional conduct or professional misconduct, the complaint must be dismissed. This protection would be undermined to a significant degree if, before the investigation were completed, proceedings were instituted in the Tribunal with respect to the complaint. In the Council of the Law Society of New South Wales v Nutt (unreported) Court of Appeal, 24 August 1995 Mahoney JA referred to the procedure under the Act both before and after the substitution of the new Ptl0. Before the change s133(1) required a Council to conduct an investigation into each complaint made to it under s130, the complaints section, with exceptions that I need not refer to. $134(1) provided that if "after it has completed an investigation into a complaint against a legal practitioner" the Council was satisfied, relevantly, that the complaint did not involve any question of unsatisfactory professional conduct or professional misconduct, it "shall" dismiss the complaint. On the other hand if the Council was satisfied, that the complaint did involve a question of professional misconduct, it "shall" refer the complaint to the Tribunal as then constituted. Turning to Ptl0 in the form it took from 1 July 1994 Mahoney JA said at 4: "Provision was made for the investigation of the complaints by the Legal Services Commissioner and by the Law Society Council: compare s147A et seq. After investigation, proceedings could be instituted in the Legal Services Tribunal, the new Tribunal, with respect to the complaint and the Tribunal was required to hear and determine the matter: s167." Although his Honour did not examine the matter in detail, I respectfully agree with his conclusion. It would be a far reaching amendment substantially reducing the protection afforded to legal practitioners if proceedings could be begun before the investigation was complete. At 14 Mahoney JA said: "T am conscious of the importance of disciplinary proceedings of this kind in the public sense and to the solicitors concerned. A finding of professional misconduct can destroy a man's professional reputation, affect his professional income and restrict or prevent his practice as a solicitor. The rule of law and the general principles of construction warrant that careful attention be given to the safeguards, legislative and otherwise, which have been provided for the protection of the individual in this regard. I am conscious that the existing legislation provides both for the screening of complaints before they come before the relevant Tribunal and, when they do, for the determination of them to be attended by due formality. But, in my opinion, if and in so far as there have been departures from the literal requirements of the legislation in the present case, those departures do not, I think, relate to any provision which is, in substance, directed to the protection of the individual in this way. This cannot be said in the present case if the complaint was initiated before the investigation had been completed by the Council within the meaning of s155 (1). 12 UNREPORTED JUDGMENTS When can the investigation begin? However, I do not read the sections as requiring that the investigation be begun after the complaint has been initiated. This would involve a degree of inflexibility which was not intended. Ordinarily one would expect the investigation to be begun before the complaint was initiated and no doubt in many cases completed. It would be quite absurd to read the Act as intending that after the complaint has been initiated another investigation be undertaken. Even if this were a mere formality, it would be a triumph of form over substance. I think the legal practitioner is entitled to have an investigation and have it completed before proceedings are instituted in the Tribunal, but that investigation can be begun and can be completed before any complaint is initiated. No doubt, the Council's investigation into a complaint referred to it by the Commissioner would not begin until after the reference but in the case of a complaint initiated by the Council there is no reason why that should be so. With respect I do not think there is anything in the judgment of Powell JA in Carver v Law Society of New South Wales (1998) 43 NSWLR 71 particularly at 98 which is inconsistent with the conclusion I have come to. At 98 his Honour said: "In these circumstances, it seems to me that it would be contrary to principle so to construe the provisions of s135 of the Act as to require that a process of investigation which had already been completed prior to 1 July 1994 should be recommenced." Information "with respect to a complaint" The claimant alleged that the Information filed on 30 September 1996 included allegations of conduct which fell outside the complaint initiated on 8 June 1995. S167(1) enables the appropriate Council or the Commissioner by laying an Information to institute proceedings in the Tribunal "with respect to a complaint against a legal practitioner". The complaint referred to is the formal complaint made or initiated under Div 3. The language is plain. The allegations of conduct which base the Information cannot extend beyond those the subject of the complaint. However, the Tribunal may vary an Information pursuant to s167A on the application of a Council or the Commissioner who has laid an Information so as to omit allegations or to include additional allegations if the Tribunal is satisfied that it is reasonable to do so having regard to whether varying the Information will affect the fairness of the proceedings. S167(2), amended at the same time as the introduction of s167A, picks this up by providing that the Tribunal is to conduct a hearing into each allegation particularised in the Information. The result is that when laying an Information the Council or the Commissioner is limited to allegations of conduct contained in a complaint but thereafter may apply to the Tribunal to vary the Information to include additional allegations, including allegations of conduct during the investigation or the hearing before the Tribunal such as misleading the investigator or the Tribunal; see generally The Attorney General's Second Reading Speech on 24 October 1996. CONCLUSION What I have said disposes of the grounds relied upon by the claimant for the relief sought in the summons. I do not think that the Informations are defective because the conduct complained of in part or in whole was alleged to have occurred more than three years before the Council initiated the complaint. However, I am satisfied that proceedings with respect to a complaint may not be URJ BARWICK v LAW SOCIETY OF NEW SOUTH WALES (Sheller JA) 13 instituted until the mandatory investigation pursuant to s148(1) has within the meaning of s155(1) been completed. Further, to the extent that the Information is based upon allegations of conduct neither included in the complaint with respect to which the Information is laid nor added to the Information pursuant to an application for variation under s167A, the Tribunal should vary the Information to omit those allegations pursuant to that section or add them nunc pro tunc, if it is satisfied that it is reasonable to do so having regard to whether such variation will affect the fairness of the proceedings. I do not think this Court on this application should investigate whether or not the Information was laid before the investigation of the complaint was complete or whether or not the allegations of conduct on which the Information was based extended beyond the allegations of conduct in the complaint or added pursuant to a variation under s167A. It is sufficient that this Court make the following declarations and orders. Since the claimant has succeeded in part and the Law Society in part, I think it appropriate that there be no order as to costs. DECLARATIONS AND ORDERS Declare: (a) That neither the complaint initiated on 8 June 1995 nor the Information laid on 30 September 1996 and amended on | August 1997 is defective because the complaint was not made within three years after the conduct or any of it is alleged to have occurred; (b) That the Information is defective, if it was laid before the conduct of the Council's investigation into the complaint, pursuant to s148 (1) of the Act, was completed within the meaning of s155(1) and should, unless the claimant waives the defect, be struck out; (c) That pursuant to s167(2) the Tribunal is to conduct a hearing only into such allegations particularised in the Information as were contained in the complaint initiated by the Council on 8 June 1995 as varied by any decision of the Tribunal made under s16 7A of the Act. 2. Remit the proceedings to the Tribunal to continue the hearing of the Information and Amended Information in accordance with law. 3. No order as to costs. (a) That neither the complaint initiated on 8 June 1995 nor the Information laid on 30 September 1996 and amended on | August 1997 is defective because the complaint was not made within three years after the conduct or any of it is alleged to have occurred; (b) That the Information is defective, if it was laid before the conduct of the Council's investigation into the complaint, pursuant to s148 (1) of the Act, was completed within the meaning of s155(1) and should, unless the claimant waives the defect, be struck out; (c) That pursuant to s167 (2) the Tribunal is to conduct a hearing only into such allegations particularised in the Information as were contained in the complaint initiated by the Council on 8 June 1995 as varied by any decision of the Tribunal made under s167A of the Act. 2. Remit the proceedings to the Tribunal to continue the hearing of the Information and Amended Information in accordance with law. 3. No order as to costs. Counsel for the claimant: P LeG Brereton 14 UNREPORTED JUDGMENTS Solicitors for the claimant: Eakin McCaffery Cox Counsel for the first opponent: GC Lindsay SC Solicitors for the first opponent: Law Society of New South Wales Counsel for the second and third opponent: Submitting appearances Solicitors for the second and third opponent: Legal Services Tribunal